Torres v. O'Malley

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
CAMILLE COLON TORRES 	)
) 	Case No. 3:24-cv-01509
v. 	)
)
FRANK BISIGNANO, Commissioner of Social
Security Administration1
)
)
To: 	The Honorable William L. Campbell, Jr., Chief District Judge
REPORT AND RECOMMENDATION
Plaintiff Camille Colon Torres filed this action pursuant to 42 U.S.C. § 405(g) to obtain
judicial review of the final decision of the Social Security Administration denying her disability
insurance benefits under Title II of the Social Security Act. The case is currently pending on
Plaintiff’s motion for judgment on the administrative record (Docket No. 13) and memorandum in
support (Docket No. 14), to which Defendant Frank Bisignano, Commissioner of Social Security
Administration, has responded (Docket No. 16). This matter has been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b) for initial consideration and a report and
recommendation. (Docket No. 17.) Upon review of the administrative record as a whole and
consideration of the parties’ filings, the undersigned Magistrate Judge respectfully recommends
that Plaintiff’s motion (Docket No. 13) be GRANTED.
I. 	INTRODUCTION
On May 13, 2023, Plaintiff proactively filed an application for disability insurance benefits
(“DIB”) with the Social Security Administration (“SSA”). (Transcript of the Administrative
1 Frank Bisignano became the Commissioner of Social Security on May 7, 2025. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Frank Bisignano is substituted for Martin
O’Malley (who served as Acting Commissioner from December 20, 2023 to November 29, 2024)
as the defendant.
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Record (Docket No. 5) at 163–65).2 In her applications, Plaintiff asserted that, as of the alleged
onset date of July 1, 2018, she was disabled and unable to work due to segmental dysfunction,
radiculopathy left and right lower extremity, right foot metatarsalgia, bilateral ankle strain,
neurocognitive disorder with insomnia, tension headaches, tinnitus, interval disc syndrome, and
bilateral patellofemoral with tendonitis. (AR 222.)
These claims were denied initially on August 15, 2023 and upon reconsideration on
January 19, 2024. (AR 67–75, 77–86.) On July 1, 2024, Plaintiff appeared with attorney William
Benjamin and testified at an in-person hearing conducted by Administrative Law Judge (“ALJ”)
Angele Pietrangelo. (AR 40–66.) On August 26, 2024, the ALJ denied the claim. (AR 25–36.) On
December 2, 2024, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision,
thereby making it the final decision of the SSA. (AR 1–3.) Plaintiff then timely commenced this
civil action, over which the Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
II. 	THE ALJ’S FINDINGS
In her August 26, 2024 unfavorable decision, the ALJ included the following enumerated
findings:
1. 	The claimant meets the insured status requirements of the Social Security Act on
December 31, 2023.
2. 	The claimant did not engage in substantial gainful activity during the period from
her alleged onset date of July 1, 2018, through her date last insured of December
31, 2023 (20 CFR 404.1571 et seq.).
3. 	Through the date last insured, the claimant had the following severe impairments:
degenerative disc disease (“DDD”); Scoliosis; Right ankle sprain; Insomnia; Mild
neurocognitive disorder; Depressive Disorder and Anxiety Disorder (20 CFR
404.1520(c)).
2 The Transcript of the Administrative Record is hereinafter referenced by the abbreviation
“AR” followed by the corresponding Bates-stamped number(s) in large black print in the bottom
right corner of each page.
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4. 	Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. 	After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except she can lift and/or carry 20
pounds occasionally and 10 pounds frequently; stand, sit and walk 6 out of 8 hours
in an 8-hour workday; can occasionally climb ladders, ropes and scaffolds, and can
frequently engage in all other postural activities. She is able to understand,
remember and carry out simple routine tasks; able to maintain concentration,
persistence, and pace for 2 hours at a time with customary breaks; able to adapt to
only occasional workplace changes; could occasionally interact with the general
public; frequently interact with coworkers and supervisors; should not work around
large crowds such as at sporting events/theaters; and should work around no greater
than a moderate noise level.
6. 	The claimant has no past relevant work (20 CFR 404.1565).
7. 	The claimant was born on November 18, 1979, and was 44 years old, which is
defined as a younger individual age 18-49, on the date last insured (20 CFR
404.1563).
8. 	The claimant has at least a high school education (20 CFR 404.1564).
9. 	Transferability of job skills is not an issue because the claimant does not have past
relevant work (20 CFR 404.1568).
10. 	Through the date last insured, considering the claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have
performed (20 CFR 404.1569 and 404.1569a).
11. 	The claimant was not under a disability, as defined in the Social Security Act, at
any time from July 1, 2018, the alleged onset date, through December 31, 2023, the
date last insured (20 CFR 404.1520(g)).
(AR 27–36.)
III. 	REVIEW OF THE RECORD
The parties and the ALJ, in combination, have thoroughly summarized and discussed the
medical and testimonial evidence of the administrative record. Accordingly, the Court will discuss
those matters only to the extent necessary to analyze the parties’ arguments.
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IV. 	DISCUSSION AND CONCLUSIONS OF LAW
A. 	Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court upon judicial review are: (1) whether the SSA’s decision is supported
by substantial evidence, and (2) whether the proper legal criteria were applied to the SSA’s
decision. Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)). The SSA’s decision must be affirmed if
it is supported by substantial evidence, “even if there is substantial evidence in the record that
would have supported an opposite conclusion.” Blakley, 581 F.3d at 406 (quoting Key v. Callahan,
109 F.3d 270, 273 (6th Cir. 1997)). Substantial evidence is defined as “more than a mere scintilla”
and “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007); LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions
adopting language substantially like that in Richardson).
The SSA utilizes a five-step sequential evaluation process to determine whether a claimant
is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). If the issue of disability can be resolved at any
point during the evaluation, the ALJ does not proceed to the next step and the claim is not reviewed
further. Id. First, if the claimant is engaged in substantial gainful activity, she is not disabled. Id.
Second, if the claimant does not have a severe medically determinable impairment that meets the
12-month durational requirements, she is not disabled. Id. Third, if the claimant suffers from a
listed impairment, or its equivalent, for the proper duration, she is presumed disabled. Id. Fourth,
if the claimant can perform relevant past work based on her residual functional capacity (“RFC”),
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which is an assessment of “the most you [the claimant] can still do despite your limitations,” 20
C.F.R. § 404.1545(a)(1), she is not disabled. Id. Fifth, if the claimant can adjust to other work
based on her RFC, age, education, and work experience, she is not disabled. Id. The claimant bears
the burden of proof through the first four steps, while the burden shifts to the SSA at step five.
Johnson v. Comm’r of Soc. Sec., 652 F.3d 646, 651 (6th Cir. 2011) (citing Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)).
The Court’s review of the SSA’s decision is limited to the record made in the administrative
hearing process. Jones v. Sec’y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991).
A reviewing court may not try a case de novo, resolve conflicts in evidence, or decide questions
of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v. Richardson,
471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit findings and
determination unless the record is without substantial evidence to support the ALJ’s determination.
Houston v. Sec’y of Health & Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
B. 	The ALJ’s Five-Step Evaluation of Plaintiff
Following the five-step sequential analysis, the ALJ determined that Plaintiff was not
disabled. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since her alleged onset date of July 1, 2018, through her date last insured of December 31, 2023.
(AR 27.) At step two, the ALJ found that Plaintiff’s impairments of “degenerative disc disease
(‘DDD’); Scoliosis; Right ankle sprain; Insomnia; Mild neurocognitive disorder; Depressive
Disorder and Anxiety Disorder” were severe. (AR 27.) At step three, the ALJ determined that
Plaintiff was not presumptively disabled because she did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (AR 28–29.) At step four, the ALJ determined that
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Plaintiff had the RFC to perform a light range of work with certain exertional and non-exertional
limitations. (AR 29–34.) Finally, at step five, the ALJ determined that there were jobs that existed
in significant numbers in the national economy that Plaintiff could have performed through the
date last insured, such as marking clerk, routing clerk, and cleaner, housekeeping. (AR 35–36.)
Therefore, the ALJ concluded that Plaintiff was not under a disability at any time from July
1, 2018, her alleged onset date, through December 31, 2023, her date last insured. (AR 36.)
C. 	Plaintiff’s Assertion of Error
Plaintiff sets forth one assertion of error: “ALJ erred by not properly addressing persuasion
of medical opinion.” (Docket No. 14 at 11–16.) Specifically, Plaintiff contends that the ALJ erred
in two different ways: (1) by failing to analyze the medical findings of Raymond J. Myles, Psy.D.,
Jennifer Prewitt, Psy.D., Max Gunther, Ph.D., and Rebecca Hilfiker, FNP, all of which Plaintiff
argues are “medical opinions”; and (2) by wrongly analyzing the medical opinion of consultative
examiner Alice K. Garland, M.S., L.S.P.E. Accordingly, pursuant to sentence four of 42 U.S.C. §
405(g), Plaintiff asks the Court to either reverse the decision of the SSA and award her DIB, or
remand the matter back to the SSA for further consideration. See 42 U.S.C. § 405(g) (“The court
shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”).
In response, the SSA argues that the four medical opinions from VA professionals were
not, in fact, opinions, and therefore the ALJ was not obligated to consider them. (Docket No. 16
at 5–10.) The SSA agrees that Ms. Garland offered an opinion, but argues that the ALJ properly
analyzed that opinion. (Id. at 10–17.)
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The ALJ must consider all evidence submitted to the SSA that pertains to a claim. 20 C.F.R.
§ 404.1513(a). However, the ALJ considers different categories of evidence in different ways.
There are five categories of evidence: (1) objective medical evidence, (2) medical opinion, (3)
other medical evidence, (4) evidence from nonmedical sources, and (5) prior administrative
medical findings.
The first three categories are relevant to the instant dispute. The first category, “objective
medical evidence,” is defined as “medical signs, laboratory findings, or both.” 20 C.F.R. §
404.1513(a)(1). The second category, “medical opinion” is defined as follows:
A medical opinion is a statement from a medical source about what you can still do
despite your impairment(s) and whether you have one or more impairment-related
limitations or restrictions in the following abilities: . . .
(i) 	Your ability to perform physical demands of work activities, such
as sitting, standing, walking, lifting, carrying, pushing, pulling, or
other 	physical 	functions 	(including 	manipulative 	or 	postural
functions, such as reaching, handling, stooping, or crouching);
(ii) 	Your ability to perform mental demands of work activities, such as
understanding; 	remembering; 	maintaining 	concentration,
persistence, 	or 	pace; 	carrying 	out 	instructions; 	or 	responding
appropriately to supervision, co-workers, or work pressures in a
work setting;
(iii) 	Your ability to perform other demands of work, such as seeing,
hearing, or using other senses; and
(iv) 	Your 	ability 	to 	adapt 	to 	environmental 	conditions, 	such 	as
temperature extremes or fumes.
20 C.F.R. § 404.1513(a)(2). The third category, “other medical evidence,” is evidence from a
medical source that is not “objective medical evidence” or “medical opinion.” 20 C.F.R. §
404.1513(a)(3). It can include “judgments about the nature and severity of your impairments, your
medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis.” Id.
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If the evidence is considered to belong to the second category as a “medical opinion,” the
ALJ must evaluate that opinion by articulating how “persuasive” she finds it to be. 20 C.F.R. §
404.1520c(b). The “persuasiveness” of the medical opinion is based on five categories: (1)
supportability, (2) consistency, (3) the provider’s relationship with the claimant, (4) the provider’s
specialization, and (5) other factors such as familiarity with the disability program’s policies. 20
C.F.R. § 404.1520c(c). The ALJ is not required to “defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s).” 20 C.F.R. § 404.1520c (a).
Supportability and consistency are the “most important factors” in this analysis. Id. §
404.1520c(a). In assessing supportability, medical opinions and prior findings are “more
persuasive” if the objective medical evidence and supporting explanations that are used to support
those opinions or findings are “more relevant.” Id. § 404.1520c(c)(1). In assessing consistency,
medical opinions and prior findings are “more persuasive” if they are “more consistent” with
evidence from other medical and nonmedical sources. Id. § 404.1520c(c)(2). These two most
important factors – supportability and consistency – must be explained, while the other factors
may be explained. Id. § 404.1520c(b)(2). To determine the persuasiveness of a particular medical
opinion, a court must evaluate whether the ALJ properly considered the factors set forth in the
regulations. Toennies v. Comm’r of Soc. Sec., No. 1:19-CV-02261, 2020 WL 2841379, at *14
(N.D. Ohio June 1, 2020) (quoting Ryan L.F. v. Comm’r of Soc. Sec., No. 6:18-cv-01958, 2019
WL 6468560, at *4 (D. Or. Dec. 2, 2019)).
The applicable SSA regulations “require that the ALJ provide a coherent explanation of
his reasoning.” Lester v. Saul, No. 5:20-cv-01364, 2020 WL 8093313, at *14 (N.D. Ohio Dec. 11,
2020), report and recommendation adopted sub nom. Lester v. Comm’r of Soc. Sec., No. 20-1364,
2021 WL 119287 (N.D. Ohio Jan. 13, 2021). The ALJ must provide a “minimum level of
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articulation” in his determinations and decisions to “provide sufficient rationale for a reviewing
adjudicator or court.” Warren I v. Comm’r of Soc. Sec., No. 20-495, 2021 WL 860506, at *8
(N.D.N.Y. Mar. 8, 2021) (quoting 82 Fed. Reg. 5844-01 (2017)). A failure to meet these
“minimum levels” of articulation “frustrates” the court’s ability to determine if the ALJ’s decision
was supported by substantial evidence. Hardy v. Comm’r of Soc. Sec., 554 F. Supp. 3d 900, 906
(quoting Vaughn v. Comm’r of Soc. Sec., No. 20-1119, 2021 WL 3056108, at *11 (W.D. Tenn.
July 20, 2021)).
If a medical provider’s findings do not constitute a “medical opinion,” the SSA is not
required to assess the persuasiveness of the evidence or explain why the findings were not adopted.
Robinson v. Comm’r of Soc. Sec., No. 22-1397, 2022 WL 17168444, at *2 (6th Cir. Nov. 22, 2022)
(citing 20 C.F.R. § 404.1520c(a); Social Security Ruling, 1996 WL 374184, 96-8p (SSA 1996)).
1. 	Dr. Myles, Dr. Prewitt, Dr. Gunther, and Ms. Hilfiker
In order to determine whether the ALJ erred with respect to the findings of Raymond J.
Myles, Psy.D., Jennifer Prewitt, Psy.D., Max Gunther, Ph.D., and Rebecca Hilfiker, FNP, the
Court must decide whether the findings are “medical opinions” as defined in 20 C.F.R. §
404.1513(a)(2).
On January 26, 2018, Dr. Myles completed an “aeromedical psychological evaluation” of
Plaintiff based on testing performed on November 27, 2017. (AR 712–16.) Plaintiff was referred
to Dr. Myles to “determine her psychological fitness for duty in the field of aviation.” She had
previous issues with insomnia and “apparent deficits on previous psychological neurological
testing,” and was being reevaluated. Dr. Myles found that Plaintiff had “deficits in the area of
visual working memory, encoding nonverbal information, and below average in the area of visual
attention” and that it was “possible” that these deficits could preclude her ability to function on
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flight. Accordingly, he concluded that she was not fit for flight status. Dr. Myles concluded that
Plaintiff’s emotional, psychological, cognitive, social, and occupational functioning were not
impaired, but that her neuropsychological function was impaired in the areas of manual dexterity,
working memory, visuospatial memory, encoding of complex nonverbal information, and
confrontation naming.
On April 30, 2020, Dr. Prewitt completed a “neuropsychological evaluation” of Plaintiff
based on a clinical interview and testing performed in December 2017. (AR 472–80.) Dr. Myles
referred Plaintiff to Dr. Prewitt. Dr. Prewitt concluded that Plaintiff “continues to experience a
deficit in encoding of complex nonverbal information” and diagnosed Plaintiff with “mild
neurocognitive disorder.” Dr. Prewitt included recommendations, including that Plaintiff could
benefit from exercises and games focused on visuospatial activities. She also included tips for
those with attention difficulties, which she acquired from “various websites dedicated to ADHD.”
On April 18, 2024, Dr. Gunther conducted a telehealth examination of Plaintiff. (AR 1075–
79.) He diagnosed Plaintiff with unspecified cognitive disorder, primary insomnia, and generalized
anxiety disorder. He checked a box to indicate that Plaintiff had “[o]ccupational and social
impairment with deficiencies in most areas, such as work, family relations, judgment, thinking
and/or mood.” He concluded that Plaintiff’s generalized anxiety disorder symptoms were
consistent with a ”comorbid reaction association with neurocognitive impairment and insomnia.”
On April 17, 2024, Ms. Hilfiker examined Plaintiff in person for a disability benefits
questionnaire. (AR 1079–1107.) The examination focused on Plaintiff’s feet, headaches, back, and
peripheral nerves. For her feet, Ms. Hilfiker noted that Plaintiff had pain on physical examination,
as well as with running, prolonged standing over four hours, and prolonged walking over one mile.
Ms. Hilfiker diagnosed Plaintiff with pes planus or flat feet. Next, for her headaches, Ms. Hilfiker
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indicated no significant diagnostic test findings or results and concluded that Plaintiff’s head
condition did not impact her ability to work. Next, for her back, Plaintiff reported pain with high
impact activities like running. She underwent a range of motion test, which indicated that her
measurements were abnormal or outside of normal range. Plaintiff reported pain during portions
of the test. Ms. Hilfiker commented that her back pain “could cause difficulty with tasks requiring
ending, heavy lifting and high-impact.” Ms. Hilfiker diagnosed Plaintiff with intervertebral disc
syndrome, lumbar spine, and radiculopathy of left and right lower extremities. However, she noted
that the radiculopathy diagnoses were resolved or erroneous. She nevertheless concluded that
Plaintiff’s back conditions impacted her ability to perform occupational tasks. She described the
“functional impact” of Plaintiff’s back condition as pain with prolonged standing, sitting, and
walking over a certain period of time; pain with lifting and carrying over a certain weight; and pain
with tasks requiring bending and stooping. Finally, for her peripheral nerves, Ms. Hilfiker noted
Plaintiff’s prior issues with radiculopathy of her left and right lower extremities, but concluded
that that was no objective evidence to render a diagnosis of neuropathy.
In her motion, Plaintiff argues that the ALJ erred by “completely omitting a persuasion
analysis” for these four providers. (Docket No. 14 at 12.) Plaintiff summarizes the evaluations and
examinations of the four providers and argues that “the limitations given for sitting and standing .
. . would not allow [Plaintiff] to finish a full workday.” (Id. at 16.) However, Plaintiff does not
provide explicit argument that the findings from these four providers are “medical opinions” as
defined in 20 C.F.R. § 404.1513(a)(2).
In response, the SSA explicitly argues that the findings from these four providers are not
“medical opinions.” (Docket No. 16 at 5–10.) The SSA contends that the findings are based on
vague, general statements and do not assess what Plaintiff “can do despite [her] impairments.” 20
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C.F.R. § 404.1513(a)(2). In other words, the SSA argues that these findings do not contain specific
statements regarding Plaintiff’s functional limitations with respect to work activities. The SSA
argues that these finds are, instead, “other medical evidence.” This is defined as “evidence from a
medical source that is not objective medical evidence [i.e., medical signs, laboratory findings, or
both] or a medical opinion, including judgments about the nature and severity of your impairments,
your medical history, clinical findings, diagnosis, treatment prescribed with response, or
prognosis.” 20 C.F.R. § 404.1513(a)(3). Accordingly, the SSA asserts that the ALJ was under no
duty to assess the persuasiveness of the findings made by Dr. Myles, Dr. Prewitt, Dr. Gunther, and
Ms. Hilfiker.
Plaintiff did not file a reply and, therefore, did not provide any explicit argument that the
findings are, indeed, “medical opinions.”
The Court agrees with the SSA that these four evaluations or assessments are not “medical
opinions” under 20 C.F.R. § 404.1513(a)(2). The four providers made no reference to and provided
no insight into whether or how Plaintiff may or may not be able to perform the physical or mental
demands of any specific work activities. Instead, the providers both generally and superficially
discussed Plaintiff’s physical or mental diagnoses – including her neurological disorders,
generalized anxiety disorder, feet, headaches, back, and peripheral nerves – without explicitly
linking those diagnoses to her ability to perform certain work activities.
For example, although Dr. Myles discussed impairments to Plaintiff’s manual dexterity, he
did not detail how those impairments would impact Plaintiff’s ability to perform physical demands
of work activity, such as carrying, pushing, or pulling. See 20 C.F.R. § 404.1513(a)(2)(i).
Similarly, although Dr. Prewitt recommended that Plaintiff could benefit from certain visuospatial
activities to help with her mild neurocognitive disorder, she did not detail how this disorder would
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impact Plaintiff’s ability to perform mental demands of work activities, such as understanding,
remembering, or maintaining concentration. See 20 C.F.R. § 404.1513(a)(2)(ii).
Although Ms. Hilfiker’s examination is a closer call, it ultimately does not fit the definition
of “medical opinion” either. Ms. Hilfiker detailed the “functional impact” of Plaintiff’s back issues
and stated that Plaintiff would have pain if she engaged in certain activities for a certain period of
time. For example, Ms. Hilfiker concluded that Plaintiff would have pain with prolonged standing
over five hours. Although this statement comes closer to being a “medical opinion,” it does not
state what Plaintiff “can still do despite [her] impairment(s).” The statement indicates that Plaintiff
will feel pain at a certain point, but does not comment on Plaintiff’s ability to perform physical,
mental, or other demands of work, or to adapt to environmental conditions. Accordingly, the Court
does not find that Ms. Hilfiker’s examination is a “medical opinion.”
Rather, the Court finds that the evaluations from these four providers are “other medical
evidence” under 20 C.F.R. § 404.1513(a)(3). The four assessments are better categorized as
“judgments about the nature and severity of [Plaintiff’s] impairments, [Plaintiff’s] medical history,
clinical findings, diagnosis, treatment prescribed with response, or prognosis.” 20 C.F.R. §
404.1513(a)(3). Accordingly, the ALJ was not obligated to determine the persuasiveness of these
findings because they are “other medical evidence” rather than “medical opinions.” See Robinson,
2022 WL 17168444, at *2.
For these reasons, the Court finds that the ALJ appropriately analyzed the medical
evidence from Dr. Myles, Dr. Prewitt, Dr. Gunther, and Ms. Hilfiker. The Court therefore rejects
this portion of Plaintiff’s assertion of error.
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2. 	Consultative Examiner: Ms. Garland
Plaintiff next argues that the ALJ’s analysis of a consultative examination by psychological
examiner Alice K. Garland, M.S., L.S.P.E was insufficient for two reasons: first, because the ALJ
“erroneously does not address the opinions regarding ability to persist and concentrate or
adaptation at all”; and second, because Ms. Garland was not provided with certain records from
Plaintiff’s file. (Docket No. 14 at 14–15.)
On September 14, 2023, Ms. Garland completed an evaluation of Plaintiff based on a
clinical interview, mental status examination, tests, assessments, and a function report. (AR 799–
803.) Psychologist Jerry Campbell also signed the evaluation. In the evaluation, Ms. Garland
summarized Plaintiff’s medications, illnesses, drug and alcohol usage, personal and family history,
mental status, symptoms, activities of daily living, and more. She found that Plaintiff had average
intelligence, had a good ability to relate, and was capable of managing funds. As for the tests and
assessment, Ms. Garland indicated that Plaintiff’s effort “may not have been consistently optimal”
and that certain results “may be slightly low.” However, Ms. Garland noted that the examiner did
not have third party records or medical records. Nevertheless, Ms. Garland concluded that Plaintiff
may have a diagnosis of unspecified depressive disorder and mild neurocognitive disorder.3 Ms.
Garland then found that Plaintiff’s ability to perform complex and detailed tasks was mild to
moderate; Plaintiff’s ability to persist and concentrate was no more than moderately limited;
Plaintiff’s ability to work with the public was mildly limited; and Plaintiff’s adaptation was mildly
to moderately limited.
3 In her notes, Ms. Garland described these diagnoses as “rule out” unspecified depressive
disorder and “rule out” mild neurocognitive disorder. (AR 803.) The Court believes that the term
“rule out” indicates that Ms. Garland believes Plaintiff may have these diagnoses, but they need to
be explored further and either confirmed or ruled out.
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In her decision, the ALJ found that Ms. Garland’s opinion was “partially persuasive.” The
ALJ stated:
The claimant presented to Alice K. Garland, M.S. and Jerry Campbell, Psy.D. for
a psychological evaluation on August 26, 2022. Her full scale IQ was 81 on the
WAIS-IV, placing her in the low average range of intellectual functioning, which
appeared to be a reduction of functioning for the claimant, as she indicated she had
a master’s degree. During the day, she prepared school lunch for the twins. She
cleaned the house when returning home from taking them to school and then she
would pick them up. She might shop every two weeks. She did not visit. She
appeared capable of managing her funds. Ms. Garland diagnosed the claimant with
rule out unspecified depressive disorder and rule out mild neurocognitive disorder.
In regard to the medical assessment, Ms. Garland stated the claimant had mild to
moderate limitations in the ability to perform complex and detailed task and in
adaptation. She was no more than moderately limited in the ability to persist and
concentrate. She was only mildly limited in the ability to work with the public.
(Exhibit 4F).
* * *
The mental CE assessment by Ms. Garland and Dr. Campbell on 7/26/2022 noting
mild limitations in working with the public is partially persuasive because the
medical evidence supports greater limitations in social interaction. She might shop
every two weeks and did not visit others. (Exhibit 4F). However, Ms. Garland’s
assessment is consistent with the mental DDS opinions by Dr. Khaleeli and Dr.
Staab, who also found mild limitations in the claimant’s ability to interact with
others. (Exhibits 1A, 3A and 4F).
(AR 32–34.)
The Court finds that the ALJ sufficiently discussed the persuasiveness of Ms. Garland’s
opinion. As set forth above, an ALJ must discuss the “persuasiveness” of medical opinions based
on five categories, with supportability and consistency being the two most important categories
that must be explained. 20 C.F.R. § 404.1520c(a)-(c). With respect to supportability, the ALJ
found that medical evidence supported greater limitations on Plaintiff’s social interaction than Ms.
Garland found. (AR 32.) The ALJ referenced notes in Ms. Garland’s examination stating that
Plaintiff shops every two weeks and does not visit others. However, in her opinion, Ms. Garland
found that Plaintiff was only “mildly limited” in her ability to work with the public. (AR 80.) In
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the RFC, the ALJ included more limitations on Plaintiff’s social abilities than did Ms. Garland,
including limiting Plaintiff to occasional interaction with the general public and precluding
Plaintiff from working around large crowds, such as at sporting events or theaters. The Court finds
that this explanation sufficiently explained whether and why the ALJ believed that Ms. Garland
did not have “sufficient justification for their own conclusions.” Elizabeth A. v. Comm’r of Soc.
Sec. Admin., No. 2:22-cv-02313, 2023 WL 5924414, at *4 (S.D. Ohio Sept. 12, 2023).
With respect to consistency, the ALJ found that Ms. Garland’s opinion was consistent with
opinions from two other medical sources, Jenaan Khaleeli, Pys.D., and Rebecca Staab, Ed.
According to the ALJ, Dr. Khaleeli and Dr. Staab “also found mild limitations in the claimant’s
ability to interact with others.” (AR 34.) In their opinions, Dr. Khaleeli and Dr. Staab both found
that Plaintiff had “mild” limitations in her ability to interact with others. (AR 69–74, 80–84.) Dr.
Khaleeli explained Plaintiff’s RFC as: “The claimant can adapt to occasional changes within a
work-environment. Changes in work duties should be introduced gradually. The claimant can
tolerate travel in unfamiliar places, and can avoid hazards, make plans, and set realistic goals
independently.” (AR 74.) Dr. Staab explained Plaintiff’s RFC as: “able to maintain attention,
concentration, persistence and pace for above tasks, for at least 2 hours, with approp breaks, despite
periods of increased signs and sxs.” (AR 84.) The Court finds that the ALJ’s references to other
evidence in the record provides a “minimum level of articulation” to show the Court why the ALJ
found Ms. Garland’s opinion to be consistent with the findings of two other medical sources, and
therefore partially persuasive.
Plaintiff, however, contends that the ALJ should have addressed Ms. Garland’s opinion on
two areas of Plaintiff’s mental functioning: her “ability to persist and concentrate” and her
“adaptation.” In response, the SSA argues that the ALJ was not required to explain her findings
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regarding Ms. Garland’s opinion on Plaintiff’s “ability to persist and concentrate” and her
“adaptation” because the ALJ agreed with Ms. Garland on those findings and adapted them in the
RFC. (Docket No. 16 at 14–15.) The SSA points to a regulation that states: “The RFC assessment
must always consider and address medical source opinions. If the RFC assessment conflicts with
an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.”
SSR 96-8p, 1996 WL 374184, at *7.
The Court agrees with the SSA that the ALJ adequately discussed Ms. Garland’s opinion,
and had no obligation to expressly address each and every finding made by Ms. Garland,
particularly when the ALJ agreed with Ms. Garland’s findings and adopted them in her decision.
First, concentrating, persisting, or maintaining pace refers to the ability to “focus attention on work
activities and stay on task at a sustained rate.” 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00(E)(3).
Ms. Garland found that Plaintiff’s ability to persist and concentrate was no more than moderately
limited. (AR 803.) In her decision, the ALJ agreed and found that Plaintiff had a moderate
limitation in concentrating, persisting, or maintaining pace, and the RFC stated that Plaintiff is
“able to maintain concentration, persistence, and pace for 2 hours at a time with customary breaks.”
(AR 28–29.) Second, adapting or managing oneself refers to the ability to “regulate emotions,
control behavior, and maintain well-being in a work setting.” 20 C.F.R. Part 404, Subpt. P, App.
1, § 12.00(E)(4). Ms. Garland found that Plaintiff’s ability to adapt was mildly to moderately
limited. (AR 803.) In her decision, the ALJ agreed and found that Plaintiff had a moderate
limitation in adapting or managing oneself, and the RFC stated that Plaintiff was “able to adapt to
only occasional workplace changes.” (AR 28–29.) Accordingly, the ALJ was under no obligation
to expressly discuss these two areas of mental functioning because her assessment did not conflict
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with Ms. Garland’s opinion, and because she largely incorporated those portions of Ms. Garland’s
opinion.
Plaintiff also contends that the ALJ’s decision lacks substantial evidence because Ms.
Garland had “no records from the file to review.” (Docket No. 14 at 14.) In the summary section
of her opinion, Ms. Garland stated that the examiner “did not have third party records and no
medical records.” (AR 802.) Plaintiff argues, however, that most of her mental testing results –
aside from a 2024 report from Dr. Gunther – were available at the time of the examination and
should have been provided to Ms. Garland pursuant to 20 C.F.R. § 404.1517. (Id. at 14–15 (citing
Brantley v. Comm’r of Soc. Sec., 637 F. App’x 888 (6th Cir. 2016)). Plaintiff argues that this
matters because Ms. Garland “did not feel the testing involving memory and visual memory were
valid and then made projected scores much higher than the actual deficient scores.” (Id. at 14.) In
response, the SSA argues that Plaintiff never received mental health treatment, so there were no
“relevant mental health medical records” to provide to Ms. Garland. (Docket No. 16 at 16.)
The applicable federal regulations require an ALJ to provide a consultative examiner with
“any necessary background about your condition.” 20 C.F.R. § 404.1517. In Brantley, the Sixth
Circuit discussed this “necessary background information” as follows:
In 	the 	course 	of 	discussing 	“background 	information” 	for 	consultative
examinations, 	the 	POMS 	specifically 	instructs 	SSA 	employees 	to 	provide
consultative examiners with “duplicates or summaries of relevant evidence such as
. . . [m]edical evidence of record including any medical opinion(s).” . . .
Additionally, the Commissioner's Hearings, Appeals and Litigation Law Manual
(“HALLEX”) instructs the ALJ or hearing office staff to supplement a request for
a consultative examination with “[a] medical exhibits folder which contains
evidence relating to the type of examination ordered with instructions for the State
agency to send the folder to the consultative examiner for review.”
637 F. App’x at 894–95 (citations omitted).
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The Court agrees with Plaintiff that the ALJ was required to provide Ms. Garland with
Plaintiff’s medical records pursuant to 20 C.F.R. § 404.1517 and the Sixth Circuit’s guidance in
Brantley. Ms. Garland’s examination notes clearly state, “The examiner did not have third party
records and no medical records so please confirm.” (AR 802.) Although the SSA may be correct
that the record did not contain Plaintiff’s “mental health treatment” records at the time of Ms.
Garland’s examination, Plaintiff’s other medical records may have been relevant to Ms. Garland’s
assessment of Plaintiff’s mental health. For example, Plaintiff’s records reference headaches and
insomnia, both of which could potentially impact Ms. Garland’s assessment of Plaintiff’s mental
health status. Regardless, the ALJ was obligated to provide Ms. Garland with Plaintiff’s medical
records, and the failure to do so was in error. See Brantley, 637 F. App’x at 894–95; Goppert v.
Berryhill, No. 3:16-CV-02739, 2018 WL 513435 (M.D. Tenn. Jan. 23, 2018), report and
recommendation adopted, No. 3:16-CV-0239, 2018 WL 1138533, at *9–11 (M.D. Tenn. Mar. 1,
2018) (“[B]ased upon the Sixth Circuit's analysis in Brantley, the Magistrate Judge concludes that
under 20 C.F.R. §§ 404.1517 and 416.917 the ALJ was obligated to provide Dr. Robinson with
Plaintiff's medical records and x-rays and failure to do so constituted error.”); McCarter v.
Berryhill, No. 3:16-CV-385-CCS, 2018 WL 327765, at *7–8 (E.D. Tenn. Jan. 8, 2018); Barnett v.
Berryhill, No. 3:16-CV-00279, 2017 WL 2537362, at *3–4 (S.D. Ohio June 12, 2017), report and
recommendation adopted, No. 3:16-CV-279, 2017 WL 4281126 (S.D. Ohio Sept. 27, 2017).
For these reasons, Plaintiff's assertion of error is well-taken. The Court finds the ALJ’s
failure to comply with agency regulations prejudiced Plaintiff and warrants remand for proper
consideration of Plaintiff's claims. See Brantley, 637 F. App’x at 896 (“Not to reverse a decision
that resulted from the ALJ's violation of the law—either negligently or otherwise—required for a
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fair decision would ‘afford the Commissioner the ability [to] violate the regulation with impunity
and render protections promised therein illusory.’”).
V. 	RECOMMENDATION
For the above stated reasons, it is respectfully RECOMMENDED that Plaintiff’s motion
for judgment on the administrative record (Docket No. 13) be GRANTED, and this matter be
REMANDED to the Social Security Administration for further administrative proceedings
consistent with the Report and Recommendation.
ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen
(14) days of service of this Report and Recommendation and must state with particularity the
specific portions of this Report and Recommendation to which objection is made. See Fed. R. Civ.
P. 72(b)(2); Local Rule 72.02(a). Failure to file specific written objections within the specified
time can be deemed to be a waiver of the right to appeal the District Court’s order. See Thomas v.
Arn, 474 U.S. 140 (1985); Cowherd v. Milton, 380 F.3d 909, 912 (6th Cir. 2004) (en banc). Any
responses to objections to this Report and Recommendation must be filed within fourteen (14)
days of the filing of the objections. See Fed. R. Civ. P. 72(b)(2); Local Rule 72.02(b).
Respectfully submitted,
Signed By:
J. Gregory Wehrman
United States Magistrate Judge
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