Russell v. Commissioner of Social Security Administration

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SHEREE RUSSELL,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
CASE NO. 1:25-cv-640
DISTRICT JUDGE
PATRICIA A. GAUGHAN
MAGISTRATE JUDGE
JAMES E. GRIMES JR.
REPORT AND
RECOMMENDATION
Plaintiff Sheree Russell filed a complaint against the Commissioner of
Social Security seeking judicial review of the Commissioner’s decision denying
her applications for disability insurance benefits and supplemental security
income. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). The
Court referred this matter to a Magistrate Judge under Local Rule 72.2(b)(1)
for the preparation of a Report and Recommendation. Following review, and
for the reasons stated below, I recommend that the District Court reverse the
Commissioner’s decision and remand for further proceedings.
Procedural background
In December 2021, Russell filed applications for disability insurance
benefits and supplemental security income, alleging a disability onset date of
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October 19, 2021.1 See Tr. 34. In pertinent part, Russell claimed that she was
disabled and limited in her ability to work due to epilepsy. See Tr. 268. The
Commissioner denied Russell’s applications initially and on reconsideration.
Tr. 128, 133, 145, 149.
In March 2023, Russell requested a hearing. Tr. 152. In December 2023,
Administrative Law Judge (“ALJ”) Amy Budney held a telephonic hearing. Tr.
58–90. Russell appeared, testified, and was represented by counsel at the
December 2023 hearing. See Tr. 58. Qualified vocational expert Michelle Ross
also testified. Id. In January 2024, the ALJ issued a written decision finding
that Russell was not entitled to benefits. Tr. 34–51.
In February 2024, Russell appealed the ALJ’s decision to the Appeals
Council. See Tr. 217. In January 2025, the Appeals Council denied Russell’s
appeal, making the ALJ’s January 2024 decision the final decision of the
Commissioner. Tr. 2; see 20 C.F.R. § 404.981.
Russell timely filed this action in April 2025. Doc. 1. In it, she asserts
the following legal issue:
Whether the 	ALJ 	reversibly 	erred by 	failing 	to
properly evaluate the prior administrative medical
findings and medical opinions for supportability and
consistency as required by 20 C.F.R. § 404.1520c.
Doc. 9, at 1.
1 	“Once a finding of disability is made, the [agency] must determine the
onset date of the disability.” McClanahan v. Comm’r of Soc. Sec., 193 F. App’x
422, 425 (6th Cir. 2006).
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Evidence2
Russel was 43 years old on the alleged disability onset date. Tr. 49. She
has a high school education and many past relevant jobs including, among
other roles, as a material handler and stamp press operator. Tr. 48–49.
The ALJ’s Decision
The ALJ made the following findings of fact and conclusions of law:
1. 	The claimant meets the insured status requirements
of the Social Security Act through December 31,
2024.
2. 	The claimant has not engaged in substantial gainful
activity since October 19, 2021, the alleged onset
date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. 	The claimant has the following severe impairments:
seizure disorder, major depressive disorder, anxiety
disorder, 	and 	obesity 	(20 	CFR 	404.1520(c) 	and
416.920(c)).
4. 	The 	claimant 	does 	not 	have 	an 	impairment 	or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 	404.1525, 	404.1526, 	416.920(d),
416.925 and 416.926).
5. 	After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform a full range of work
2 	Russell did not include any discussion of the medical or opinion evidence
in her factual background section, as required by the Court’s initial order. See
Doc. 4, at 3. As a result, I have only considered Russell’s arguments to the
extent that they raise purely legal issues and do not rely on the medical
evidence of record.
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at all exertional levels but with the following non-
exertional limitations: never climb ladders, ropes,
and 	scaffolds; 	should 	never 	be 	exposed 	to
unprotected heights, dangerous moving mechanical
parts, and commercial motor vehicles; never work
around 	open 	flames 	or 	open 	bodies 	of 	water;
occasionally 	and 	superficially 	interact 	with
supervisors, coworkers, and the public; and tolerate
occasional 	changes 	in 	a 	routine 	work 	setting.
Superficial interaction is defined as work that does
not 	involve 	any 	tasks 	such 	as 	arbitration,
negotiation, confrontation, being responsible for the
safety of others, or directing the work of others.
6. 	The claimant is unable to perform any past relevant
work (20 CFR 404.1565 and 416.965).
7. 	The claimant was born on November 27, 1977, and
was 43 years old, which is defined as a younger
individual age 18–49, on the alleged disability onset
date (20 CFR 404.1563 and 416.963).
8. 	The claimant has a least a high school education (20
CFR 404.1564 and 416.964).
9. 	Transferability of job skills is not material to the
determination 	of 	disability 	because 	using 	the
Medical-Vocational Rules as framework supports a
finding that the claimant is “not disabled,” whether
or not the claimant has transferable job skills (See
SSR 	82-41 	and 	20 	CFR 	Part 	404, 	Subpart 	P,
Appendix 2).
10. Considering 	the 	claimant’s 	age, 	education, 	work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20
CFR 404.1569, 404.1569a, 416.969, and 416.969a).
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11. The claimant has not been under a disability, as
defined in the Social Security Act, from October 19,
2021, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
Tr. 34–50.
Standard for Disability
Eligibility for social security benefit payments depends on the existence
of a disability. 42 U.S.C. §§ 423(a), 1382(a). “Disability” is defined as the
“inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C.
§ 1382c(a)(3)(A).
An ALJ is required to follow a five-step sequential analysis to make a
disability determination:
1. 	Is the claimant engaged in substantial gainful
activity? If so, the claimant is not disabled.
2. 	Does 	the 	claimant 	have 	a 	medically
determinable impairment, or a combination of
impairments, 	that 	is 	“severe”? 	If 	not, 	the
claimant is not disabled.
3. 	Does the claimant’s impairment meet or equal
one of the listed impairments and meet the
duration requirement? If so, the claimant is
disabled. If not, the ALJ proceeds to the next
step.
4. 	What is the claimant’s residual functional
capacity and can the claimant perform past
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relevant 	work? 	If 	so, 	the 	claimant 	is 	not
disabled. If not, the ALJ proceeds to the next
step.
5. 	Can 	the 	claimant 	do 	any 	other 	work
considering the claimant’s residual functional
capacity, 	age, 	education, 	and 	work
experience? If so, the claimant is not disabled.
If not, the claimant is disabled.
20 C.F.R. §§ 404.1520, 416.920; see Jordan v. Comm’r of Soc. Sec., 548 F.3d
417, 422 (6th Cir. 2008). Under this sequential analysis, the claimant has the
burden of proof at steps one through four. Jordan, 548 F.3d at 423. The burden
shifts to the Commissioner at step five “to prove the availability of jobs in the
national economy that the claimant is capable of performing.” Id. “The
claimant, however, retains the burden of proving her lack of residual functional
capacity.” Id. If a claimant satisfies each element of the analysis and meets the
duration requirements, the claimant is determined to be disabled. Walters
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
Standard of Review
A reviewing court must affirm the Commissioner’s conclusions unless it
determines “that the ALJ has failed to apply the correct legal standards or has
made findings of fact unsupported by substantial evidence in the record.”
Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence’ is a ‘term of art’” under which
“a court … asks whether” the “existing administrative record … contains
‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek
v. Berryhill, 587 U.S. 97, 102 (2019) (citations omitted). The substantial
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evidence standard “is not high.” Id. at 103. Substantial evidence “is ‘more than
a mere scintilla’” but it “means only[] ‘such relevant evidence as a reasonable
mind might 	accept 	as 	adequate 	to 	support 	a 	conclusion.’” 	Id. 	(citations
omitted). The Commissioner’s “findings … as to any fact if supported by
substantial evidence [are] conclusive.” 42 U.S.C. § 405(g); Biestek, 587 U.S. at
99.
A court may “not try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.
2007). Even if substantial evidence or a preponderance of the evidence
supports 	a 	claimant’s 	position, 	a 	reviewing 	court 	cannot 	overturn 	the
Commissioner’s decision “so long as substantial evidence also supports the
conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
477 (6th Cir. 2003). This is so because there is a “zone of choice within which”
the Commissioner can act, without fear of judicial “interference.” Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009) (quoting Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)).
Discussion
As an initial issue, Russell begins her argument section by asserting
that the ALJ did not apply the correct standard for evaluating opinion
evidence. See Doc. 9, at 7. This argument is not clearly contemplated by her
issue statement, which challenges only whether supportability and consistency
were properly evaluated, see Doc. 9, at 1, and it is meritless because as the
Commissioner points out, see Doc. 11, at 7–8, the ALJ cited the correct
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standard for the evaluation of medical opinion evidence. See Tr. 45; see also 20
C.F.R. §§ 404.1520c(a), 416.920c(a).
Beyond this initial argument, all of Russell’s arguments challenge the
ALJ’s evaluation of specific opinion evidence. As the following demonstrates,
the ALJ failed to comply with regulations governing the evaluation of that
evidence. As a result, for all of the following reasons I recommend that the
reverse the ALJ’s decision and remand this matter for further consideration.
The Commissioner is required to evaluate the persuasiveness of all
medical 	opinions 	using 	the 	following 	factors: 	supportability; 	consistency;
treatment relationship, including the length, frequency, purpose, and extent;
specialization; and other factors. 20 C.F.R. §§ 416.920c(a), 416.920c(c)(1)–(5).
Supportability and consistency are the most important factors. 20 C.F.R. §
416.920c(a). Supportability means that “[t]he more relevant the objective
medical evidence and supporting explanations presented by a medical source
are to support his or her medical opinion[] … the more persuasive the medical
opinions … will be.” 20 C.F.R. § 416.920c(c)(1). Consistency means “[t]he more
consistent a medical opinion[] … is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the medical
opinion[] … will be.” 20 C.F.R. § 416.920c(c)(2). The Commissioner must
explain the supportability and consistency factors when discussing a medical
opinion. 20 C.F.R. § 416.920c(b)(2). “[A]n ALJ need not,” however, “specifically
use the terms ‘supportability’ or ‘consistency’ in his analysis.” Cormany v.
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Kijakazi, No. 5:21-cv-933, 2022 WL 4115232, at *3 (N.D. Ohio Sept. 9, 2022)
(citing cases). The Commissioner is not required to discuss the remaining
factors. Id. “A reviewing court evaluates whether the ALJ properly considered
the factors as set forth in the regulations to determine the persuasiveness of a
medical opinion.” Toennies v. Comm’r of Soc. Sec., 2020 WL 2841379, at *14
(N.D. Ohio June 1, 2020) (internal quotation marks and citation omitted).
To start, Russell challenges the ALJ’s evaluation of the consultative
examiner’s opinion. Doc. 9, at 8. Russell’s objection to the ALJ’s evaluation of
Dr. Konieczny’s opinion is purely legal because she asserts that the ALJ simply
“failed to evaluate the opinion” by not discussing “both supportability and
consistency.” Id. The Court is able to consider this argument despite Russell’s
failure to comply with the Court’s initial order. So Russell’s failure to include
a Facts section in her brief, as the Court’s initial order requires, see Doc. 4, at
3, does not doom her complaint.
The ALJ discussed Dr. Konieczny’s exam findings and concluded as
follows:
The 	undersigned 	also 	considered 	the 	opinion
provided by J. Joseph Konieczny, Ph.D. based on a
psychological consultative evaluation conducted on
January 26, 2023. Dr. Konieczny opined no obvious
limitations in the ability to understand, remember,
and carry out instructions and in attention and
concentration and persistence in single and multi-
step tasks but that as a result of mood symptoms,
the claimant would have diminished tolerance for
frustration 	and 	diminished 	coping 	skills 	which
would 	impact 	her 	ability 	to 	respond 	to 	typical
supervision and interpersonal situations in the work
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setting as well as to respond to typical pressure
situations in the work setting. The undersigned
finds this opinion somewhat persuasive because it is
vague as to degree of limitations in these areas and
does 	not 	account 	for 	difficulty 	with 	memory,
confusion, focus, and concentration.
Tr. 46 (citations omitted).
The ALJ did not discuss either supportability or consistency in the
passage above. The Commissioner does not claim otherwise. See Doc. 11, at 8.
The ALJ’s failure to discuss the supportability and consistency factors is
reversible error. See 20 C.F.R. § 416.920c(b)(2) (the ALJ “must explain the
supportability and consistency factors when discussing a medical opinion.”);
see, e.g., Brenda T. v. Comm’r of Soc. Sec. Admin., No. 2:23-cv-2980, 2024 WL
3506947, at *10 (S.D. Ohio July 22, 2024) (finding that the ALJ committed
reversible error when he failed to discuss the supportability of a medical
opinion), report and recommendation adopted, 2024 WL 3677636 (S.D. Ohio
Aug. 6, 2024); Kopec v. Comm’r of Soc. Sec., No. 1:23-cv-680, 2023 WL 6958636,
at *7 (N.D. Ohio Oct. 20, 2023) (“Simply put, the ALJ didn’t comply with the
regulations” when she failed to discuss the supportability factor, “which is
grounds for reversal.”); John F. v. Comm’r of Soc. Sec. Admin., No. 3:22-cv-260,
2023 WL 4759127, at *6 (S.D. Ohio July 26, 2023) (“[T]his Court agrees that
the ALJ failed to follow the regulatory requirement to evaluate the consultants’
opinions for supportability. The failure to comply with a legal requirement
constitutes reversible error.”); Reed v. Comm’r of Soc. Sec., No. 3:20-cv-2611,
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2021 WL 5908381, at *6 (N.D. Ohio Dec. 14, 2021) (the ALJ’s failure to discuss
the supportability factor was reversible error).
The Commissioner argues that the ALJ’s description of the of Dr.
Konieczny’s as “vague” was sufficient to excuse the ALJ’s failure to discuss
supportability and consistency. See Doc. 11, at 8. But the Commissioner
seemingly ignores that the ALJ did not fully discount Dr. Konieczny’s opinion
due to vagueness. See Tr. 46 (“this opinion [is] somewhat persuasive because
it is vague”). And while the cases cited support the Commissioner’s argument
that vagueness can be a basis to discount a medical opinion, they do not hold
that a vagueness finding would allow an ALJ to avoid assessing an opinion’s
supportability 	and 	consistency. 	For 	instance, 	in 	Woodward, 	the 	court
considered whether the ALJ’s decision that an opinion was unpersuasive
because the “opined limitations were vague and/or not defined in vocationally
relevant terms,” was supported by substantial evidence. Woodward v. Comm’r
of Soc. Sec., No. 5:22-cv-01728, 2023 WL 6005004, at *10 (N.D. Ohio Jul. 27,
2023), report and recommendation adopted 2023 WL 5842016 (N.D. Ohio Sept.
11, 2023). There the district court also concluded that whether it was sufficient
for the ALJ to reject an opinion as vague was “a close question” but “also a
question that the Court need not address because it has already found that
substantial evidence justifies the ALJ’s weighing of [the] opinion.” See 2023
WL 5842016, at *3. Importantly, the court concluded that the ALJ did address
supportability and consistency. Woodward, 2023 WL 6005004, at *8, 10.
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The 	other 	case 	cited 	by 	the 	Commissioner, 	Springer, 	is 	also
distinguishable. See Doc. 11, at 8. Most relevantly, because Springer’s claim
was filed before March 2017, the former treating physician rule applied and
the current regulation did not apply. See Springer v. Comm’r of Soc. Sec., 2020
WL 9259707, at *6 (N.D. Ohio Oct. 8, 2020) (applying the former treating-
physician rule), report and recommendation adopted 2021 WL 1015944 (N.D.
Ohio Mar. 17, 2021). And the court in Springer, considered the vagueness of a
medical opinion through the lens of plaintiff’s disagreement over whether, as
a matter of fact, the medical opinion was vague. Id. at 9.
Here, Russell only challenges whether the ALJ complied with applicable
regulations, a purely legal argument. See Doc. 9, at 8. So the Commissioner’s
apparent position that the “ALJ reasonably found these limitations vague, and
thus, she did not discuss supportability and consistency” evades the issue
presented. Neither of the cases cited support the broad suggestion that the
Commissioner appears to make: that an ALJ is excused from discussing the
mandatory factors of supportability and consistency simply because the ALJ
opined that the content of an opinion was vague. Instead, the cases support
that where an ALJ describes an opinion as vague, that determination may
provide substantial evidence to support the ALJ’s conclusion that the decision
is unpersuasive. This factual conclusion is distinct from the ALJ’s mandatory
evaluation of supportability and consistency. See 20 C.F.R. § 416.920c(b)(2).
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Because the Commissioner has not shown that the ALJ considered these
mandatory factors, remand is necessary.
Russell next argues that the ALJ erred by failing to discuss the
supportability of Nurse Hanchin’s opinion. Doc. 9, at 10. When explaining her
evaluation of Nurse Hanchin’s opinion, the ALJ said:
In addition, the undersigned considered the opinion
of Karlee Hanchin, CNP dated May 17, 2022 (Ex.
5F). She opined the claimant can walk two city
blocks without rest, sit more than two hours at a
time, stand for about one hour at a time, and sit and
stand/walk at least six hours total in an eight-hour
workday. The claimant does not need a job that
permits 	shifting 	positions 	at 	will 	from 	sitting,
standing, or walking, and needs no unscheduled
breaks. She can frequently lift up to 20 pounds
frequently, never climb ladders, and occasionally
climb stairs, frequently twist, stoop, and crouch.
There 	are 	no 	manipulative 	limitations. 	She 	is
unlikely to be off task unless a seizure occurs and
would 	be 	absent 	from 	work 	as 	a 	result 	of
impairments or treatment about two days a month
if a seizure occurs. The claimant is required to follow
general seizure precautions of no heavy machinery,
heights, lifting over 25 pounds overhead, or driving
until six-months seizure-free. The undersigned finds
this opinion somewhat persuasive because standing,
walking, 	lifting, 	and 	reaching 	limitations 	are
inconsistent with other examinations in the record
that showed full strength, no deficits in range of
motion, particularly affecting bilateral lower and
upper 	extremities, 	and 	normal 	and 	intact 	gait,
balance, and coordination.
Tr. 47 (citations omitted) (emphasis added).
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Here, as the Commissioner concedes, Doc. 11, at 11, the extent of the
ALJ’s consideration of Nurse Hanchin’s opinion was limited to the consistency
factor. Id. The ALJ only evaluated Nurse Hanchin’s opinion in comparison with
“other examinations in the record,” which goes to consistency. The ALJ’s
discussion is silent as to whether or how she evaluated the supportability of
Nurse Hanchin’s opinion.
The Commissioner, however, asks the Court to find Nurse Hanchin’s
opinion is patently deficient because it was rendered on a check-the-box form.
See Doc. 11, at 11. Under certain circumstances, such as in the case the
Commissioner cites, where an ALJ’s decision is challenged based on a lack of
substantial 	evidence, 	the 	Court 	might 	agree 	with 	the 	Commissioner’s
argument. See Doc. 11, at 11 (citing Dornan v. Comm’r of Soc. Sec., No. 1:22-
cv-02244, 2023 WL 8789168, at *10 (N.D. Ohio Dec. 4, 2023), report and
recommendation adopted 2023 WL 8780713 (N.D. Ohio Dec. 19, 2023). But
here, the ALJ did not discount Nurse Hanchin’s opinion because it was
rendered. 	Indeed, 	the 	ALJ 	found 	Nurse 	Hanchin’s 	opinion 	“somewhat
persuasive.” 	Tr. 	46. 	The 	check-the-box 	nature 	of 	that 	opinion 	is 	a
characterization that appears for the first time in the Commissioner’s brief.
The Commissioner’s post-hoc basis for rejecting Nurse Hanchin’s opinion is not
well-taken. See Berryhill v. Shalala, 4 F.3d 993 (Table), 1993 WL 361792, at
*7 (6th Cir. 1993) (“in large part, an agency's decision must be affirmed on the
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grounds noted in the decision”); see also Harvey v. Comm’r of Soc. Sec., No. 16–
3266, 2017 WL 4216585, at *7 (6th Cir. Mar. 6, 2017).
Russell similarly challenges the ALJ’s evaluation of the state agency
medical consultants’ opinions, claiming that she failed to articulate how she
considered the supportability factor. Doc. 9, at 8–9. The ALJ found persuasive
the opinions issued by state agency medical consultants Drs. Dana Schultz and
W. Scott Bolz. Tr. 45. The ALJ also found physical additional limitations were
appropriate. Tr. 46. Then, the ALJ found “somewhat persuasive” the opinion
offered by 	state agency psychological consultant, Dr. Aracelis Rivera Castro.
Tr. 46. To explain her consideration of these three opinions, the ALJ stated:
The 	undersigned considered the 	opinions 	of 	the
State agency consultants. The State agency medical
consultants, Dana Schultz, M.D. and W. Scott Bolz,
M.D., opined the claimant could never climb ladders,
ropes, or scaffolds, and must avoid all exposure to
hazards and no work around dangerous or moving
machinery and no work at unprotected heights. The
undersigned 	finds 	these 	opinions 	persuasive
because they are consistent with and supported by
the 	unremarkable 	testing 	and 	intact 	physical
examinations and within normal limits, including
regular heart rate and rhythm, clear lungs, full
strength, 	normal 	balance 	and 	gait, 	intact
coordination and neurological functioning; however,
the undersigned has added additional limitations to
account for seizure precaution.
The State agency psychological consultant, Aracelis
Rivera 	Castro, 	Psy.D., 	opined 	no 	limitation 	in
understand, 	remember, 	or 	apply 	information;
moderate 	limitation 	in 	interact 	with 	others; 	no
limitation in concentrate, persist, or maintain pace,
and moderate limitation in adapt or manage oneself
and no evidence of Part C criteria. The claimant can
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interact on an occasional and superficial basis and
can adapt to occasional workplace changes. The
undersigned finds this opinion somewhat persuasive
because it is consistent with the objective evidence
that 	demonstrated 	treatment 	consisting 	of
psychotropic medication and outpatient visits for
depression and anxiety symptoms. However, the
undersigned has added limitations to account for
any deficits in memory, focus, and concentration and
experiencing confusion noted in additional evidence
submitted at the hearing level and the claimant’s
subjective complaints.
Tr. 45–46 (citations omitted).
As to the state agency medical consultant’s opinions, the ALJ stated that
the opinions were persuasive because they “are consistent with and supported
by the unremarkable testing and intact physical examinations and within
normal limits[.]” Tr. 45. While the ALJ used the words “consistent” and
“support,” she only described medical evidence found elsewhere in the record–
without discussing the evidence or explanations cited within the subject
opinions. Tr. 46. In other words, the ALJ only explained how she considered
the consistency of the state agency medical consultant’s opinions.
As to the state agency psychological consultant’s opinion, the ALJ wrote
that Dr. Rivera Castro’s opinion was “somewhat persuasive because it is
consistent with the objective evidence that demonstrated treatment consisting
of psychotropic medication and outpatient visits for depression and anxiety
symptoms.” Tr. 46. The ALJ did not discuss what Dr. Rivera Castro’s opinion
was based on and instead only discussed how that opinion compared to other
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evidence in the record. In other words, the ALJ again only explained how she
only considered the consistency of Dr. Rivera Castro’s opinion.
The Commissioner argues that the since the ALJ included all the
limitations, as well as additional limitations, that each of the state agency
reviewers 	opined, 	Russell 	“has 	failed 	to 	show 	why 	remand 	for 	further
consideration of these prior administrative medical findings is warranted.”
Doc. 11, at 9, 10. The Commissioner does not refute that the ALJ failed to
explain how she considered the supportability factor when evaluating the state
agency consultants’ opinions. The Commissioner also does not respond to
Russell’s argument that “if the ALJ commits an error of law, the court must
reverse 	and 	remand, 	‘even 	if 	the 	factual 	determinations 	are 	otherwise
supported by substantial evidence and the outcome on remand is unlikely to
be different.’” See Doc. 9, at 17 (quoting Reynolds v. Comm’r of Soc. Sec., 424
F. App’x 411, 414 (6th Cir. 2011) (internal citation omitted)). Nor, does the
Commissioner argue that the ALJ’s failure to consider the supportability
amounted to harmless error. The Court is not inclined to make these forfeited
arguments for the Commissioner. See United States v. Sineneng-Smith, 590
U.S. 371, 375–76 (2020). Because the ALJ failed to comply with applicable
regulations requiring her to consider both the supportability and consistency
factors, remand is required.
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Next, Russell argues that the ALJ failed to discuss the consistency of
Dr. Rajeet Shrestha’s opinion. Doc. 9, at 10. As to Dr. Shrestha’s opinion, the
ALJ stated:
Rajeet Shrestha, M.D. provided an opinion dated
August 8, 2023 (Ex. 14F). Dr. Shrestha opined the
claimant would be off-task greater than 25 percent
of an eight-hour workday due to symptoms severe
enough 	to 	interfere 	with 	the 	attention 	and
concentration necessary to perform simple tasks,
and she is not able to sustain an eight-hour workday
due to anxiety and depression and is not able to be
in a work situation at all at this point. Dr. Shrestha
further 	opined 	marked 	limitations 	in 	work
activities, such as ability to remember locations and
work-like 	procedures; 	maintain 	attention 	and
concentration 	for 	extended 	periods; 	perform
activities 	within 	a 	schedule, 	maintain 	regular
attendance, 	and 	be 	punctual 	within 	customary
tolerances; 	sustain 	an 	ordinary 	routine 	without
special supervision; work in coordination with or
proximity 	to 	others 	without 	being 	distracted by
them; complete a normal workday and work week
without interruptions from psychologically based
symptoms 	and 	to 	perform 	at 	a 	consistent 	pace
without an unreasonable number and length of rest
periods; 	and 	accept 	instructions 	and 	respond
appropriately 	to 	criticism 	from 	supervisors. 	The
undersigned 	finds 	this 	opinion 	unpersuasive.
Although Dr. Shrestha has a specialty in psychiatry,
marked limitations and degree of off-task are not
supported by his own treatment notes that indicated
some benefit with medication, no side effects, and
examinations 	that 	showed 	intact 	mental 	status
functioning with good appearance, grooming, and
hygiene, cooperative and pleasant behavior, normal
speech, improved mood, goal-directed, linear, and
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organized thought process, no paranoia, delusions,
or ideation, no hallucinations, except for reports of
hearing her cat or dog at a distance and seeing
shadows out of the corner of her eyes, fair insight
and 	judgment, 	orientation 	to 	time, 	place, 	and
person, 	fair 	recent 	and 	remote 	recall, 	intact
attention and concentration, no language deficits,
and average fund of knowledge. The undersigned
also finds that the opinion regarding not able to
sustain an eight-hour workday or be in a work
situation 	at 	all 	at 	this 	point 	is 	not 	persuasive
because it is vague regarding duration of limitations,
and 	the 	issue 	regarding 	the 	ability 	to 	work 	is
reserved to the Commissioner.
Tr. 46–47 (citations omitted)
Here, as Russell argues, the ALJ failed to discuss the consistency factor.
In her evaluation, the ALJ explained that she found Dr. Shrestha’s opinion
unpersuasive based on her consideration and comparison between the opinion
and Dr. Shrestha’s own treatment notes and examinations. See Tr. 47.
Nowhere in the ALJ’s explanation of her consideration of Dr. Shrestha’s
opinion does she discuss how that opinion was considered against the record
as a whole, i.e. consistency.
In response, the Commissioner admits that “[t]he ALJ did not discuss
the consistency of this opinion in this section of the decision” and directs the
Court the ALJ’s discussion of the Paragraph B criteria.3 See Doc. 11, at 12
3 	As part of step three in the sequential evaluation, the ALJ considered
what are called the “paragraph B criteria.” See Tr. 38. Listings 12.04 and 12.06,
concerning mental impairments, contain three paragraphs—A, B, and C. To
satisfy either listing, a claimant must satisfy the requirements in paragraphs
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(citing Tr. 38). To this end, the Commissioner submits that the Court must
review the ALJ’s decision as a whole and asserts that “[t]hat the ALJ was not
required to repeat [the Paragraph B] analysis again when considering the
persuasiveness of Dr. Shrestha’s opinion.” Id. at 13. Indeed, the ALJ’s decision
must be read as a whole, see Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 551
(6th Cir. 2014), and the ALJ is not required to repeat factual findings made
elsewhere in her decision, see Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359,
366 (6th Cir. 2014). But the Commissioner hasn’t identified where in the
decision the ALJ discussed the consistency factor as to Dr. Shrestha’s opinion.
A and B or paragraphs A and C. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1,
12.00A2. To satisfy the paragraph B criteria, the claimant must have an
“extreme” limitation of one, or “marked” limitation of two, of the four areas of
mental functioning: understanding, remembering, and applying information;
interacting with others; concentrating, persisting, and maintaining pace; and
adapting 	and 	managing 	oneself. 	Id. 	at 	12.00A2b. 	Notably, 	as 	the 	ALJ
recognized, consideration of the paragraph B criteria is explicitly distinct from
the ALJ’s evaluation of opinion evidence in crafting Russell’s RFC:
The 	limitations 	identified 	in 	the 	“paragraph 	B”
criteria 	are 	not 	a 	residual 	functional 	capacity
assessment but are used to rate the severity of
mental 	impairments 	at 	steps 	2 	and 	3 	of 	the
sequential evaluation process. The mental residual
functional capacity assessment used at steps 4 and
5 of the sequential evaluation process requires a
more detailed assessment of the areas of mental
functioning. 	The 	following 	residual 	functional
capacity assessment reflects the degree of limitation
the undersigned has found in the “paragraph B”
mental function analysis.
Tr. 30.
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And review of the cited portion of the ALJ’s decision does not show that the
ALJ discussed the consistency factor as to Dr. Shreshta’s opinion.
Additionally, the Commissioner does not argue that the ALJ’s error was
harmless. Instead, the Commissioner avers that the ALJ’s discussion of the
Paragraph B criteria was sufficient and concludes that “substantial evidence
supports the ALJ’s” ultimate finding that Russell was not disabled. See Doc.
11, at 13, 16. Without more, the Commissioner’s responsive argument amounts
to a post hoc rationalization, which is not permitted. See Hicks v. Comm’r of
Soc. Sec., 909 F.3d 786, 808 (6th Cir. 2018) (“[A]n agency’s actions must be
upheld, if at all, on the basis articulated by the agency itself, and not based on
appellate counsel’s post hoc rationalization[s]”) (internal quotation marks and
citations omitted). While the ALJ may not have been required to walk through
the Paragraph B criteria once that evaluation was complete, the ALJ was
required to discuss how she considered the consistency of Dr. Shrestha’s
opinion. See 20 C.F.R. § 416.920c(b)(2). The ALJ did not discuss how she
considered the consistency factor, so remand is required.
Lastly, Russell argues that the ALJ erred when evaluating Counselor
Javaheri’s opinion. Doc. 9, at 11. The ALJ’s analysis on that opinion is as
follows:
The 	undersigned 	also 	considered 	another
assessment dated August 9, 2023 by Fauzia Javheri,
an independent licensed social worker. She opined
the 	claimant 	would be 	off-task 	greater than 25
percent of an eight-hour workday due to symptoms
severe enough to interfere with the attention and
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concentration necessary to perform simple tasks and
is likely to miss a lot of days. The claimant has
marked in the ability to perform activities within a
schedule, 	maintain 	regular 	attendance, 	and 	be
punctual within customary tolerances as well as
accept instructions and respond appropriately to
criticism 	from 	supervisors. 	The 	claimant 	has
extreme 	limitation 	in 	the 	ability 	to 	sustain 	an
ordinary routine without special supervision; work
in coordination with or proximity to others without
being 	distracted 	by 	them; 	complete 	a 	normal
workday and work week without interruptions from
psychologically based symptoms and to perform at a
consistent pace without an unreasonable number
and length of rest periods; get along with coworkers
or 	peers 	without 	distracting 	them 	or 	exhibiting
behavioral 	extremes; 	respond 	appropriately 	to
changes in the work setting; and set realistic goals
or 	make 	plans 	independently 	of 	others. 	Fauzia
Javheri noted the claimant has severe generalized
anxiety and depression since she started having
seizures that have heightened her symptoms and
have limited her from performing simple tasks or
being around a large crowd, and she experiences
severe panic attacks and has isolated herself from
going out. The undersigned also finds this opinion
unpersuasive. Marked or extreme limitations and
degree of off-task are not supported by treatment
notes that indicated some benefit from medications,
no side effects, and that the claimant answered
questions, indicated understanding of instructions,
attended appointments, and was generally able to
follow treatment plans with changes as needed. This
degree of limitation is also inconsistent with and not
supported by Fauzia Javheri’s own examinations
that indicated the claimant routinely presented as
alert and oriented with appropriate behavior and
appearance, 	normal 	speech, 	euthymic 	mood,
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congruent affect, excellent judgment, insight, and
impulse control, intact memory, good attention and
concentration, 	unremarkable 	thought 	process,
appropriate 	thought 	content, 	unremarkable
perception, 	and 	intact 	functional 	status. 	Fauzia
Javheri’s progress notes from these outpatient visits
also indicated the claimant was able to engage in
activities that suggest a higher degree of functioning
than that with marked or extreme limitations. For
example, despite some issues with social anxiety,
difficulty being around others, fearful of having a
seizure in public, and being distracted or losing
track, 	the 	claimant 	reported 	working 	in 	the
backyard 	growing 	vegetables, 	communicated
directly 	with 	her 	boyfriend’s 	daughter, 	started
visiting with her neighbor, could go to the grocery
store early in the morning when few people were
around, and focused on cleaning her house and
preparing for the holidays.
Tr. 47–48 (citations omitted).
Here, though ALJ used the words supported and consistent, the analysis
and citation accompanying the ALJ’s statements reflect that she did not
consider both factors. For example, when the ALJ stated that certain marked
or extreme limitations contained in Javheri’s opinion were unpersuasive
because they were “not supported by treatment notes,” the ALJ cited only
Javheri’s own treatment notes. Tr. 48 (citing exhibits 10F, 13F, and 19F). And,
when the ALJ said the degree of limitation to which Javheri opined was
“inconsistent with and not supported by [Javheri’s] own examinations” the ALJ
cited again only to Javheri’s records. Id. (citing exhibit 19F). Regardless of the
words used, it is apparent from the ALJ’s statements that her consideration of
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Javheri’s opinion was limited to how it compared to Javheri’s own records. By
explaining her consideration of Javheri’s opinion only in terms of Javheri’s own
notes and examinations the ALJ only discussed the supportability factor. Since
the ALJ failed to explain how she considered Javheri’s opinion against the
records as a whole, she did not show if or how she considered the consistency
factor and failed to comply with the applicable regulations.
The Commissioner again recognizes that “the ALJ did not explicitly
discuss the consistency” factor and points to the ALJ’s Paragraph B evaluation.
See Doc. 11, at 14–15. And the Commissioner does not engage with Russell’s
argument that remand is necessary even if the outcome on remand may not be
different. Doc. 9, at 17 (quoting Reynolds v. Comm’r of Soc. Sec., 424 F. App’x
411, 414 (6th Cir. 2011) (internal citation omitted)). So, for the same reasons
discussed above in relation to Dr. Shrestha’s opinion, the Commissioner’s
suggestion, that the Court look to the ALJ’s evaluation under Paragraph B,
falls short. The Commissioner does not point to any instance elsewhere the
ALJ discussed the consistency of Javheri’s opinion. As a result, remand is
necessary.
Conclusion
For the reasons explained above, I recommend that the Court reverse
the Commissioner’s decision and remand for further proceedings.
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Dated: November 14, 2025
/s/ James E. Grimes Jr.
James E. Grimes Jr.
U.S. Magistrate Judge
OBJECTIONS
Any objections to this Report and Recommendation must be filed with
the Clerk of Court within 14 days after the party objecting has been served
with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure
to file objections within the specified time may forfeit the right to appeal the
District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–531 (6th
Cir. 2019).
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