Memorandum of Opinion and Order

PATRICIA A. GAUGHAN, United States District Judge, Chief Judge.

INTRODUCTION

This matter is before the Court upon the Report and Recommendation of Magistrate Judge Jonathan D. Greenberg (Doc. 15) ("R&R"), recommending that the decision of the Commissioner be VACATED and this matter REMANDED for further proceedings. Defendant filed an objection to the R&R. For the reasons that follow, the R&R is REJECTED with respect to the Step Five analysis and AFFIRMED in all other respects. The decision of the Commissioner is AFFIRMED.

STANDARD OF REVIEW

When objections are made to a Magistrate Judge's Report and Recommendation, the district court reviews the case de novo. Federal Rule of Civil Procedure 72(b) provides in pertinent part:

Here, the Court notes that it will apply the de novo standard of review to the objection raised by the government. The Court reviewed for clear error those parts of the R&R to which no party objected. Having done so, the Court finds no clear error and, therefore, proceeds to a de novo review solely with respect to the government's objection.

ANALYSIS

The government objects to the Magistrate Judge's recommendation that substantial evidence does not support the Administrative Law Judge's ("ALJ") determination that plaintiff is capable of performing a significant number of jobs in the national economy. The decision is based on the testimony of the vocational expert ("VE"). The VE testified as follows:

Later, upon cross-examination, the VE testified as follows:

According to the R&R, the VE's testimony was "based on 2018 data," and not data from the relevant time period. Here, the R&R indicates that the relevant time period is March 31, 2013, i.e., the claimant's "date last insured." Because the data is from 2018 and not from 2013, the R&R recommends finding that the ALJ's decision is not supported by substantial evidence.

Upon review, the Court disagrees with the R&R and finds the objection by the government to be well-taken. The R&R characterizes the VE's testimony as pertaining to 2018. But, the VE testified only that the data relied upon is "current." There is nothing in the record suggesting that the "current" data was actually compiled in 2018. Nor is there any evidence suggesting how frequently data is updated or that the data relied upon was not also applicable to 2013. Moreover, the VE knew of the plaintiff's "date last insured" because the VE attended the hearing by phone. (Tr. 526, 531, 538). Regardless, it would be reasonable to interpret the VE's testimony to mean that the VE relied on "current data," as opposed to "outdated data," i.e., data pre-dating the alleged onset date. This is especially so in that ALJs make disability determinations based on a period of time, not a one-day snapshot.1 The Court finds that the ALJ's reliance on the VE's use of "current" data supports a finding that substantial evidence exists to show that plaintiff is capable of performing a significant number of jobs in the national economy. Regardless, the Court agrees with the government that, to the extent the testimony is arguably ambiguous, any error on the ALJ's reliance thereon is harmless. To the extent the testimony could be construed to mean that the data was actually compiled on the date of the hearing, the data shows that a total of 240,000 jobs exist. As noted by the government, the Sixth Circuit has held that as few as 2,000 jobs constitute a "significant number." Nejat v. Comm'r of Soc. Sec., 359 Fed.Appx. 574, 579 (6th Cir. 2009) (2,000 jobs is sufficient to a finding of non-disability). It defies basic logic that just five years earlier fewer than 2,000 of those jobs existed. "No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result." Shkabari v. Gonzales, 427 F.3d 324, 328 (6th Cir. 2005) (citation omitted). See also Kobetic v. Comm'r of Soc. Sec., 114 Fed. App'x 171, 173 (6th Cir. 2004) (When "remand would be an idle and useless formality," courts are not required to "convert judicial review of agency action into a ping-pong game.").

CONCLUSION

For the foregoing reasons, the court REJECTS the R&R with respect to the Step Five challenge. The Court ADOPTS the remainder of the R&R in total. Accordingly, the decision of the Commissioner is AFFIRMED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

Jonathan D. Greenberg, United States Magistrate Judge.

Plaintiff, George John Gearing, ("Plaintiff" or "Gearing"), challenges the final decision of Defendant, Andrew Saul,1 Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. ("Act"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be VACATED and REMANDED for further consideration consistent with this opinion.

I. PROCEDURAL HISTORY

In February 2013, Gearing filed an application for DIB, alleging a disability onset date of August 27, 2011 and claiming he was disabled due to lumbar disc disease with back and leg pain and muscle spasms, low back pain, frequent falls, depression and anxiety, and hypertension. (Transcript ("Tr.") 197-98, 215.) The application was denied initially and upon reconsideration, and Gearing requested a hearing before an administrative law judge ("ALP). (Id. at 30.)

On February 26, 2015, an ALJ held a hearing, during which Gearing, represented by a non-attorney representative, and an impartial vocational expert ("VE") testified. (Id.) On May 1, 2015, the ALJ issued a written decision finding Gearing was not disabled. (Id. at 37.) The ALJ's decision became final on August 19, 2016, when the Appeals Council declined further review. (Id. at 1-7.) Gearing, through counsel, appealed that decision to this Court, which remanded the case as a result of the ALJ's failure to provide "sufficiently specific reasoning" to support the weight assigned to the opinion of treating physician Dr. Kurtz. Gearing v. Berryhill, No. 1:16-cv-2440, 2017 WL 3575765 (N.D. Ohio July 31, 2017), report and recommendation adopted by 2017 WL 3537601 (N.D. Ohio Aug. 17, 2017).

The same ALJ heard the case on remand on April 10, 2018.2 (Tr. 523-66.) On August 22, 2018, the ALJ issued a written decision finding Gearing was not disabled. (Id. at 498-517.) Given the earlier federal court remand, the Social Security Agency ("SSA") allowed Gearing to bypass the Appeals Council and present his case for judicial review. (Id. at 495-96.)

On December 11, 2018, Gearing filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 11, 13, 14.) Gearing asserts the following assignments of error:

(Doc. No. 11.)

II. EVIDENCE

A. Personal and Vocational Evidence

Gearing was born in March 1964 and was 49 years-old on the date last insured (Tr. 515), making him a "younger person" at all times relevant to his claim under social security regulations. See 20 C.F.R. § 404.1563(c). He has a limited education and is able to communicate in English. (Tr. 516.) He has past relevant work as a locomotive mechanic. (Id. at 515.)

B. Medical Evidence During the Relevant Period3

During the period relevant to his claim,4 Gearing sought treatment from neurologist Lisa Kurtz, M.D. on three occasions. (Tr. 240-44, 491-94.) On November 22, 2011, Gearing complained that earlier in the week his leg suddenly went numb and he almost fell over. (Id. at 242.) Dr. Kurtz noted Gearing had a history of lumbar disc disease, and she observed that Gearing had an antalgic gait. (Id.). On May 10, 2012, Gearing complained that he had been falling a lot, that he had trouble walking, and that he was experiencing more weakness than pain in his legs. (Id. at 241.) In one instance, his leg reportedly went out and he fell into his dresser. (Id.) On November 22, 2012, Gearing complained that his legs were bothering him and that he had fallen a few times. (Id. at 240.) He reported pain, weakness, and sometimes numbness. (Id.)

C. Medical Evidence After the Relevant Period

On July 8, 2013, Dr. Kurtz completed a questionnaire on Gearing's behalf. (Id. at 259-60.) Dr. Kurtz indicated that she had been treating Gearing since September 2008. (Id. at 259.) She diagnosed low back pain, lumbar degenerative disc disease, and leg pain. (Id.) Clinical findings included antalgic gait with use of a cane. (Id.) Dr. Kurtz noted symptoms of fatigue, pain, balance problems, weakness, unstable walking, numbness/tingling/sensory disturbance, and increased muscle tension. (Id.) Dr. Kurtz opined that Gearing needed an assistive device to walk more than five feet due to balance problems and lower extremity weakness. (Id.) She also opined that, on average, Gearing was likely to be absent from work more than three times a month due to complications from his impairment or to receive necessary medical treatment. (Id. at 260). In addition, it was Dr. Kurtz's opinion that Gearing's fatigue, weakness, or pain was sufficiently severe to interfere often with his attention and concentration. (Id.) Dr. Kurtz concluded that Gearing was not able to work. (Id.)

On August 22, 2013, Plaintiff again complained of leg and back pain. (Id. at 494.) He reported to Dr. Kurtz that he had trouble getting dressed that day and has "off and on days." (Id.) He also complained that the medication he was taking at the time was not much help if his back was hurting badly and he was considering going to a pain clinic in the winter. (Id.) On exam, Dr. Kurtz noted no neurological changes and that Gearing was not using a cane that day. (Id.)

An October 2013 MRI of Plaintiff's lumbar spine showed degenerative changes in the lumbar spine, most marked at L4-L5 and L5-S1. (Id. at 436-38.) A thoracic spine MRI from the same month showed mild degenerative changes. (Id. at 439-40.) A physical examination on October 28, 2013 revealed intact muscle strength in the left upper extremity, no asymmetrical weakness in his bilateral lower extremities, discomfort to palpation in the low back, no significant tenderness by percussing, decreased pinprick sensation in his bilateral lower extremities, and decreased vibration pinprick sensation distal to proximal distribution in the lower extremities. (Id. at 302.) His gait was not tested at that time. (Id.)

On March 20, 2018, Dr. Kurtz completed another questionnaire Gearing's behalf. (Id. at 693-96.) She diagnosed lumbar disc herniation at L4-L5, lumbar disc bulging at L5-S1, low back pain, and leg pain. (Id. at 693.) Dr. Kurtz opined that Gearing could sit, stand, and walk for less than two hours a day, intermittently. (Id.) Gearing would need to shift positions at will, and would need to take unscheduled breaks. (Id.) Gearing could only rarely lift less than 10 pounds, and never more than 10 pounds. (Id. at 694.) He could never crouch, stoop (bend), or kneel, and could only rarely twist and climb stairs. (Id.) Dr. Kurtz also opined that Gearing would be off task 25% or more of the work day, and on average he was likely to be absent from work more than four times a month due to complications from his impairment or to receive necessary medical treatment. (Id. at 694-95.) Dr. Kurtz concluded that Gearing "has severe physical limitations due to his lumbar disc herniation at L4-L5 and lumbar disc bulging at L5-S1, which severely limits his work abilities and precludes his ability to work." (Id. at 696.)

D. State Agency Reports

On July 11, 2013, state agency physician, Dr. Leslie Green, M.D., reviewed Gearing's medical record and concluded that an ALJ's formulation of Plaintiff's RFC for a previously adjudicated period (decision date: August 26, 2011) should be adopted based on Acquiescence Ruling (AR) 98-4(6) ("Drummond Ruling").5 (Tr. 141-42.) Dr. Green accordingly opined that Gearing was able to perform sedentary work; was unable to use ladders, ropes, or scaffolds; and could occasionally climb stairs or ramps. (Tr. 142).

D. Hearing Testimony

During the April 10, 2018 hearing, Gearing testified to the following:

The VE testified Gearing had past work as a locomotive mechanic. (Id. at 561.) The ALJ then posed the following hypothetical question:

(Id. at 562.)

The VE testified the hypothetical individual would not be able to perform Gearing's past work as a locomotive mechanic. (Id.) The VE further explained the hypothetical individual would be able to perform other representative jobs in the economy, such as electronics assembler, charge account clerk, and bench assembler. (Id. at 563.) Use of a cane for ambulation would not change the VE's testimony in response to the ALJ's hypothetical. (Id. at 564.)

III. STANDARD FOR DISABILITY

In order to establish entitlement to DIB under the Act, a claimant must be insured at the time of disability and must prove an inability to engage "in substantial gainful activity by reason of any medically determinable physical or mental impairment," or combination of impairments, that 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." 20 C.F.R. §§ 404.130, 404.315 and 404.1505(a).

The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). See also Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate that he is not currently engaged in "substantial gainful activity" at the time of the disability application. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant must show that he suffers from a "severe impairment" in order to warrant a finding of disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A "severe impairment" is one that "significantly limits ... physical or mental ability to do basic work activities." Abbott, 905 F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the impairment, or combination of impairments, meets or medically equals a required listing under 20 CFR Part 404, Subpart P, Appendix 1, the claimant is presumed to be disabled regardless of age, education, or work experience. See 20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the claimant's impairment or combination of impairments does not prevent him from doing his past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step, even if the claimant's impairment does prevent him from doing his past relevant work, if other work exists in the national economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g), 404.1560(c), and 416.920(g).

Here, Gearing was insured on his alleged disability onset date, August 27, 2011, and remained insured through March 31, 2013, his date last insured ("DLI"). (Tr. 501.) Therefore, in order to be entitled to DIB, Gearing must establish a continuous twelve month period of disability commencing between these dates. Any discontinuity in the twelve month period precludes an entitlement to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v. Gardner, 381 F.2d 191, 195 (6th Cir. 1967).

IV. SUMMARY OF COMMISSIONER'S DECISION

The ALJ made the following findings of fact and conclusions of law:

(Tr. 501-17.)

V. STANDARD OF REVIEW

"The Social Security Act authorizes narrow judicial review of the final decision of the Social Security Administration (SSA)." Reynolds v. Comm'r of Soc. Sec., 424 F. App'x 411, 414 (6th Cir. 2011). Specifically, this Court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence and was made pursuant to proper legal standards. See Ealy, 594 F.3d at 512; White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009). Substantial evidence has been defined as "`more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec'y of Health and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In determining whether an ALJ's findings are supported by substantial evidence, the Court does not review the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).

Review of the Commissioner's decision must be based on the record as a whole. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of the Commissioner are not subject to reversal, however, merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-73 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) ("Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached.") This is so because there is a "zone of choice" within which the Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).

In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must determine whether proper legal standards were applied. Failure of the Commissioner to apply the correct legal standards as promulgated by the regulations is grounds for reversal. See, e.g., White, 572 F.3d at 281; Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) ("Even if supported by substantial evidence, however, a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.").

Finally, a district court cannot uphold an ALJ's decision, even if there "is enough evidence in the record to support the decision, [where] the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result." Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996); accord Shrader v. Astrue, No. 11-13000, 2012 WL 5383120 (E.D. Mich. Nov. 1, 2012) ("If relevant evidence is not mentioned, the Court cannot determine if it was discounted or merely overlooked."); McHugh v. Astrue, No. 1:10-cv-734, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v. Astrue, No. 2:10-CV-017, 2010 WL 2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, No. 1:09-cv-1982, 2010 WL 2929562 (N.D. Ohio July 9, 2010).

VI. ANALYSIS

The Court addresses Gearing's Appointments Clause challenge first, and then addresses the merits raised by Gearing's other assertions of error.

A. Appointments Clause Challenge

Gearing asserts, in light of the Supreme Court's decision in Lucia v. S.E.C., ___ U.S. ___, 138 S.Ct. 2044, 201 L.Ed.2d 464 (2018), that the ALJ who conducted his hearing was not properly appointed under the Constitution's Appointments Clause at the time of his hearing and therefore did not have legal authority to preside over his case. (Doc. No. 11 at 6.) Gearing maintains that SSA "has never contested the fact that its ALJs were not properly appointed" before July 16, 2018, but rather "uniformly offers only a technical defense of issue exhaustion with respect to ALJs it admits were constitutionally illicit...." (Id. at 7.)

Gearing advances five arguments to support his claim that SSA's exhaustion/forfeiture defense is unavailing: (1) Social Security Ruling ("SSR") 19-1p bars SSA from arguing a claimant forfeits an Appointments Clause challenge by failing to raise it before the ALJ because the SSR "explicitly states that relief will be granted on this issue even if the challenge was not raised before the ALJ"; (2) the petitioner in Lucia never raised an Appointments Clause challenge at the ALJ level;6 (3) under the Supreme Court's decision in Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), "ALJ level issue exhaustion/forfeiture should not be applied"; (4) under the Supreme Court's decision in Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), "structural constitutional objections" such as Appointments Clause challenges "may be considered on appeal to federal court regardless of whether they were raised during the administrative process below"; and (5) under the Supreme Court decision in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), "a Social Security claimant is not barred from raising a constitutional claim for the first time on appeal to a federal court because SSA has no power to adjudicate such a challenge and the topic is inherently beyond the scope of the administrative proceeding." (Doc. No. 11 at 7-9.)

The Commissioner argues Gearing forfeited his Appointments Clause challenge by failing to raise it with the agency during the administrative proceedings. (Doc. No. 13 at 16.) The Commissioner disputes Gearing's readings of Lucia and Freytag, as well as SSR 19-1p. (Id. at 15-20.) In addition, the Commissioner directs the Court to the fact that "in the wake of Lucia, 34 out of the 35 district courts that have decided the issue have rejected attacks on the validity of an SSA ALJ's appointment where the claimant failed to make the constitutional challenge at the administrative level (although there is a split in two of the districts — the Eastern District of North Carolina and Eastern District of Pennsylvania)." (Doc. No. 13 at 21-22) (collecting cases).

"It is axiomatic that `a court should not consider an argument that has not been raised in the agency proceeding that preceded the appeal.'" Maloney v. Comm'r of Soc. Sec., 480 F. App'x 804, 810 (6th Cir. 2012). "[C]ourts require administrative issue exhaustion `as a general rule' because it is usually appropriate under [an agency's] practice' for `contestants in an adversary proceeding' before it to develop fully all issues there." Sims, 530 U.S. at 109, 120 S.Ct. 2080. Sims' narrow holding consisted of the finding that issue exhaustion was not required in a request for review by the Appeals Council. Id. at 105, 120 S.Ct. 2080. The Supreme Court emphasized that whether a claimant must exhaust issues before the ALJ was not before the Court. Id. at 107, 120 S.Ct. 2080.

Five other judges within this district explicitly have rejected Gearing's Sims argument. See Gilbert v. Comm'r of Soc. Sec., 391 F.Supp.3d 745, 748-49 (N.D. Ohio 2019), adopting report and recommendation ("Gilbert's argument `overextends Sims's limited holding.'") (quoting Hutchins v. Berryhill, 376 F.Supp.3d 775, 778-79 (E.D. Mich. 2019) (additional citations omitted)); Williams v. Comm'r of Soc. Sec., No. 3:18-cv-1706, 2019 WL 3736660, at *6 (N.D. Ohio May 23, 2019) ("Other courts in this district have already considered and rejected this argument because Sims held only that a claimant need not exhaust issues at the Appeals Council level prior to judicial review."); Wreede v. Comm'r of Soc. Sec., No. 3:18-CV-164, 2019 WL 1324024, at **21-22 (N.D. Ohio Mar. 25, 2019), adopting report and recommendation;7 Cummins v. Comm'r of Soc. Sec., No. 3:18-CV-1892, 2019 WL 2465300, at *2 (N.D. Ohio Mar. 18, 2019) (report and recommendation) ("I find Cummins's reading of Sims too broad...."). A number of other courts, including those within the Sixth Circuit, have found that "Sims left untouched the general rule that a claimant forfeits a claim on appeal that [he] failed to raise during the administrative process." Flack v. Comm'r of Soc. Sec., No. 2:18-cv-501, 2018 WL 6011147, at *3 (S.D. Ohio Nov. 16, 2018) (collecting cases), report and recommendation adopted by 2019 WL 1236097 (Mar. 18, 2019). The Court finds the minority view presented in the non-binding cases cited by Gearing8 to be unpersuasive.

In Gilbert, the Court further distinguished Sims on the ground that, in Sims, the claimant challenged the ALJ's evaluation of the evidence, which meant "her objections could not materialize until the ALJ issued the decision." Gilbert, 391 F.Supp.3d at 748-49. Here, Gearing's "Appointments Clause challenge arose when SSA assigned the ALJ" to his case. Id. Gearing, unlike Sims, had the chance to raise his objection to the ALJ. Id. And since, as Gearing points out, SSA allowed him to bypass Appeals Council review given the previous remand from this Court, the importance of raising his Appointments Clause challenge to the ALJ was heightened even more.9

In Freytag, the Supreme Court excused the failure to raise an Appointments Clause challenge to the authority of the special tax court judge below. 501 U.S. at 879, 111 S.Ct. 2631. However, the Supreme Court made clear it was a "rare case." Id. Other courts, including this district, have rejected carrying Freytag's holding over to excuse the failure to raise Appointments Clause challenges in Social Security appeals. See Gilbert, 391 F.Supp.3d at 750-52; Fortin v. Comm'r of Soc. Sec., 372 F.Supp.3d 558, 564-65 (E.D. Mich. 2019) (rejecting report and recommendation regarding Appointments Clause challenge; adopting alternate findings in report and recommendation).

Gearing's argument under the Supreme Court's decision in Mathews v. Eldridge that he may raise a constitutional claim for the first time on appeal to this Court because SSA has no power to adjudicate such a challenge and the topic is inherently beyond the scope of the administrative proceeding also fails. Gearing's reading of Eldridge "sweeps too broadly and ignores subsequent caselaw." Diane S.P. v. Berryhill, 379 F.Supp.3d 498, 527 (E.D. Va. 2019). First, Eldridge concerned specific and "unusual" facts that are not present here. Id. Second, in Lucia, the Supreme Court confirmed that Appointments Clause challenges "should, as a matter of course, be timely presented to the agency involved." Id. (citing Lucia, 138 S.Ct. at 2055). And absent timely presentment, the Supreme Court "indicated in Freytag that judicial discretion should be exercised to excuse forfeiture in only `rare cases.'" Id. (citing Freytag, 501 U.S. at 879, 111 S.Ct. 2631). Finally, to the extent Gearing alleges his constitutional claim is collateral to his claim for benefits, the Supreme Court's decision in Elgin v. Dep't of Treasury, 567 U.S. 1, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012), "indicates otherwise." Id. at 528 ("`[P]etitioners' constitutional claims are the vehicle by which they seek to reverse' agency action and are `War from ... wholly collateral....'") (quoting Elgin, 567 U.S. at 22, 132 S.Ct. 2126).

Gearing also argues that SSA cannot argue he forfeited his Appointments Clause challenge because "SSR 19-1 explicitly states that relief will be granted on this issue even if the challenge was not raised before the ALJ." (Doc. No. 11 at 7.) But Gearing mischaracterizes SSR 19-1p. It states: "The Appeals Council will grant the claimant's request for review in cases where the claimant: (1) Timely requests Appeals Council review of an ALJ's decision or dismissal issued before July 16, 2018; and (2) raises before us (either at the Appeals Council level, or previously had raised at the ALJ level) a challenge under the Appointments Clause to the authority of the ALJ who issued the decision or dismissal in this case." SSR 19-1p, 2019 WL 1324866, at *3 (S.S.A. Mar. 15, 2019) (emphasis added).

In his reply, Gearing notes that it is "interesting to look to the Sixth Circuit's decision" in Jones Bros., Inc. v. Sec'y of Labor, Mine Safety, and Health Admin., 898 F.3d 669 (6th Cir. 2018). (Doc. No. 14 at 4.) But Jones Brothers does not change the analysis. See Page v. Comm'r of Soc. Sec., 344 F.Supp.3d 902, 904-05 (E.D. Mich. 2018). In Jones Brothers, the plaintiff raised, but failed to "press," the issue of whether the ALJ appointment procedure was constitutional as applied at the administrative level. 898 F.3d at 677. The Sixth Circuit found the plaintiff forfeited the Appointments Clause claim but excused the forfeiture under the Mine Act's "extraordinary circumstances" provision given the reasonable confusion on the plaintiff's part regarding the Commission's jurisdiction.10 Id. at 677-78. Furthermore, the Sixth Circuit recently reemphasized that the "extraordinary circumstances" exception came from the Mine Act's statutory text. Island Creek Coal Co., et al. v. Bryan, et al., 937 F.3d 738, 752 (6th Cir. 2018).

Gearing appeared before an ALJ in February 2015 and in April 2018. The Supreme Court decided Lucia in June 2018. The ALJ issued his most recent decision in this case in August 2018. Again, while SSA allowed Gearing to bypass Appeals Council review given his previous Court remand, he could have — and should have — raised his Appointments Clause challenge to the ALJ. First, a circuit split on the constitutionality of the appointment of ALJs occurred well before the ALJ most recently considered Gearing's application for benefits. Axley v. Comm'r of Soc. Sec., No. 1:18-cv-1106-STA-cgc, 2019 WL 489998, at *2 n.1 (W.D. Tenn. Feb. 7, 2019) ("By the time Plaintiff received his final agency decision on March 24, 2017, there was already a split of authority on the issue of whether SEC ALJs were constitutionally appointed. Compare Bandimere v. SEC, 844 F.3d 1168 (10th Cir. 2016) (finding the appointments unconstitutional), with Lucia v. SEC, 832 F.3d 277 (D.C. Circ. 2016) (rejecting the argument that appointments were unconstitutional)). Second, "a regulation in effect long prior to the events in question states that claimants may receive an expedited appeals process to challenge a `provision in the law that [the claimant] believe[s] is unconstitutional.'" Page, 344 F. Supp. 3d at 905 (citing 20 C.F.R. § 404.924(d)).11

The Sixth Circuit's discussion about Lucia arguments in a case where the plaintiff failed to raise an Appointments Clause challenge in its opening brief before the Court of Appeals is illuminating with respect to the timing of Gearing's Appointments Clause challenge:

Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 257 (6th Cir. 2018).

Accordingly, the Court should find Gearing forfeited his Appointments Clause challenge by failing to raise it before the agency.

B. Treating Source Opinion

Gearing asserts the ALJ once again "improperly rejected" the opinion of treating neurologist Dr. Kurtz. (Doc. No. 11 at 3-6.) Gearing insists that the ALJ rejected Dr. Kurtz's opinion "for nearly the same reasons".as the prior opinion this Court found in error, compounded by the fact that SSA failed to further develop the record on remand. (Id. at 4-5.) Gearing also faults the ALJ's reliance on the state agency reviewing physician's opinion, despite the fact that the state agency physician "effectively offered an erroneous legal conclusion instead of a medical opinion." (Id. at 5.) In addition, Gearing maintains the ALJ's statement that he failed to seek out additional alternative therapies was false and violated SSR 82-59.12 (Id.) Gearing asserts the ALJ also erred in criticizing Gearing's failure to obtain additional injections. (Id.)

The Commissioner maintains the ALJ provided "good reasons" for assigning little weight to Dr. Kurtz's opinions, including: (1) opinions regarding the ultimate issue of disability are reserved to the Commissioner and entitled to no deference; (2) both opinions post-dated Gearing's DLI and did not state what period of time they addressed; and (3) the opinions were inconsistent with the record. (Doc. No. 14 at 6-10.) The Commissioner also asserts the ALJ did not err in assigning "great weight" to the state agency reviewing physician's opinions. (Id. at 11.)

As the Sixth Circuit has explained, "`[t]he Commissioner has elected to impose certain standards on the treatment of medical source evidence.'" Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013) (citing Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)). Medical opinions are to be weighed by the process set forth in 20 C.F.R. § 404.1527(c), and "[t]he source of the opinion ... dictates the process by which the Commissioner accords it weight." Id. "As a general matter, an opinion from a medical source who has examined a claimant is given more weight than that from a source who has not performed an examination (a `nonexamining source'), id. § 404.1502, 404.1527(c)(1), and an opinion from a medical source who regularly treats the claimant (a `treating source') is afforded more weight than that from a source who has examined the claimant but does not have an ongoing treatment relationship (a `nontreating source'), id. § 404.1502, 404.1527(c)(2)." Id. In other words, "the regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker.'" Gayheart, 710 F.3d at 375 (quoting Soc. Sec. Rul. No. 96-6p,13 1996 WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996)).

A treating source opinion must be given "controlling weight" if such opinion (1) "is well-supported by medically acceptable clinical and laboratory diagnostic techniques" and (2) "is not inconsistent with the other substantial evidence in [the] case record." Gayheart, 710 F.3d at 376; 20 C.F.R. § 404.1527(c)(2).14 However, "a finding that a treating source medical opinion... is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to `controlling weight,' not that the opinion should be rejected." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399 (6th Cir. 2009). Indeed, "[t]reating source medical opinions are still entitled to deference and must be weighed using all of the factórs provided in 20 C.F.R. § 404.1527 and 416.927." Blakley, 581 F.3d at 408.15 See also Gayheart, 710 F.3d at 376 ("If the Commissioner does not give a treating-source opinion controlling weight, then the opinion is weighed based on the length, frequency, nature, and extent of the treatment relationship, id., as well as the treating source's area of specialty and the degree to which the opinion is consistent with the record as a whole and is supported by relevant evidence, id. § 404.1527(c)(2)-(6).").

If the ALJ determines a treating source opinion is not entitled to controlling weight, "the ALJ must provide `good reasons' for discounting [the opinion], reasons that are `sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). See also Gayheart, 710 F.3d at 376. The purpose of this requirement is two-fold. First, a sufficiently clear explanation "`let[s] claimants understand the disposition of their cases,' particularly where a claimant knows that his physician has deemed him disabled and therefore `might be bewildered when told by an administrative bureaucracy that she is not, unless some reason for the agency's decision is supplied." Id. (quoting Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Second, the explanation "ensures that the ALJ applies the treating physician rule and permits meaningful appellate review of the ALJ's application of the rule," Wilson, 378 F.3d at 544. Because of the significance of this requirement, the Sixth Circuit has held that the failure to articulate "good reasons" for discounting a treating physician's opinion "denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record." Rogers, 486 F.3d at 243.

Nevertheless, the opinion of a treating physician must be based on sufficient medical data, and upon detailed clinical and diagnostic test evidence. See Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993); Blakley, 581 F.3d at 406. Moreover, the "treating physician rule" only applies to medical opinions. "If the treating physician instead submits an opinion on an issue reserved to the Commissioner —such as whether the claimant is disabled, unable to work, the claimant's RFC, or the application of vocational factors —[the ALJ] decision need only `explain the consideration given to the treating source's opinion." Johnson v. Comm'r of Soc. Sec., 535 Fed. App'x 498, 505 (6th Cir. 2013). The opinion, however, "is not entitled to any particular weight." Turner, 381 Fed. App'x at 493. See also Curler v. Comm'r of Soc. Sec., 561 Fed. App'x 464, 471 (6th Cir. 2014).

A treating physician's opinion rendered after the DLI "may be considered to the extent [that] it illuminates a claimant's health before the expiration of his insured status." Nagle v. Comm'r of Soc. Sec., 1999 WL 777355, at *1 (6th Cir. Sept. 21, 1999) (citing Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)). See also Morgan v. Comm'r of Soc. Sec., 2018 WL 849478, at *10 (S.D. Ohio Feb. 14, 2018). "However, to be given significant weight, this retrospective opinion must be supported by relevant, objective evidence that was contemporaneous to the insured period." Stark v. Comm'r of Soc. Sec., 2016 WL 1077100, at *6 (N.D. Ohio March 18, 2016) (citing Strong v. Soc. Sec. Admin., 88 Fed. App'x 841, 845 (6th Cir. 2004)).

The ALJ assigned no weight to Dr. Kurtz's opinions addressing the ultimate issue of disability, as that issue is one reserved to the Commissioner. (Tr. 513.) The ALJ assigned "limited weight" to the remainder of Dr. Kurtz's opinions:

(Tr. 512-14.)

The ALJ provided an extensive discussion of Dr. Kurtz's opinions and — supported by specific citations to the record — the evidence the ALJ determined undercut Dr. Kurtz's opinions. (Id.) Inconsistency with the record is a "good reason" under the regulations to assign less weight to a treating physician's opinions. Gayheart, 710 F.3d at 376; 20 C.F.R. § 404.1527(c). The decision makes clear the ALJ's overarching issue with Dr. Kurtz's opinions is the lack of support in the record. Indeed, at the hearing, the ALJ expressed to counsel his overall problem with Gearing's claim was the lack of medical evidence during the relevant time period. (Tr. 536-37, 556-59.)

Although Gearing alleges the ALJ violated SSR 82-59 by "falsely claim[ing]" Gearing failed to seek out additional therapies such as aqua therapy despite his testimony that he couldn't afford it, that policy only comes into play when the claimant is found to be under a disabling condition. Strong v. Soc. Sec. Admin., 88 F. App'x 841, 846 (6th Cir. 2004) ("The issue of poverty as legal justification for failure to obtain treatment does not arise unless a claimant is found to be under a disabling condition.") (citation omitted). Here, the ALJ found Gearing was not under a disabling condition. (Tr. 506-508.) And to the extent the ALJ considered Gearing's overall lack of treatment, this was proper. Strong, 88 F. App'x at 846 ("In the ordinary course, when a claimant alleges pain so severe as to be disabling, there is a reasonable expectation that the claimant will seek examination or treatment.")

Furthermore, although Gearing asserts "the ALJ ignored the contemporaneous clinical evidence confirming [his] difficulties with falls due to leg weakness" (Doc. No. 11 at 6), the ALJ discussed this evidence at length and specifically noted in his analysis of Dr. Kurtz's opinions a notation in the medical records that there was no asymmetrical weakness found in Gearing's lower extremities. (Tr. 509-10, 514.)

Gearing also makes much of the fact that the ALJ assigned great weight to the state agency reviewing sources' opinions, even though the state agency reviewing physician erroneously applied res judicata. (Doc. No. 11 at 5.) However, the ALJ acknowledged the error and stated that because of an additional non-exertional limitation, he was not applying res judicata to Gearing's RFC. (Tr. 498-99.) The ALJ analyzed the state agency reviewing sources' findings and cited to specific medical evidence supporting the remainder of the state agency reviewing sources' opinions. (Id. at 512.)

The ALJ weighed and analyzed the conflicting evidence in determining what weight to assign to Dr. Kurtz's opinions. While Gearing may have weighed the evidence differently, the ALJ was within the zone of choice and substantial evidence supports the ALJ's decision.

C. Step 5 Challenge

Gearing argues that SSA failed to meet its Step 5 burden "because the VE did not provide any job incidence data whatsoever with respect to the relevant time period." (Doc. No. 11 at 11.) The VE testified in April 2018, five years after Gearing's date last insured. (Id.) As Gearing established on cross-examination that the VE's testimony was based on 2018 data, Gearing asserts "there [was] no evidentiary basis of record to support a presumption as to what the job incidence data was for these occupations five years before." (Id.)

The Commissioner responds that the VE understood Gearing's DLI was March 31, 2013. (Doc. No. 13 at 13.) In addition, the Commissioner asserts that Gearing's counsel "did not question the VE regarding these numbers, or the basis for her testimony, at the hearing," and as such there is "no reason to believe that her testimony was not pertinent to the relevant period." (Id. at 13-14.) The Commissioner also maintains that "any potential error was harmless," as "[t]here is no reason to believe" the three representative jobs identified by the VE "did not exist in 2013 at approximately the same numbers they existed in 2018." (Id. at 14.) Further, the Commissioner argues that "even if only a fraction of the number of jobs existed in 2013, this would still constitute a significant number." (Id.)

During the April 2018 hearing, on cross-examination, Gearing's counsel questioned the VE in part as follows:

(Tr. 564.)

The ALJ found at Step Five that "[t]hrough the date last insured, considering the claimant's age, education, work experience, and [RFC], there were jobs that existed in significant numbers in the national economy that the claimant could have performed." (Id. at 516) (citing 20 C.F.R §§ 404.1569 and 404.1569a) (emphasis added). The ALJ relied on the VE's testimony in making this finding. (Tr. 516-17.)

The ALJ's reliance on 2018 numbers provided by the VE when Gearing's DLI was March 31, 2013 was error. See Myers v. Astrue, No. 4:11-cv-62, 2012 WL 4050182, at *19 (E.D. Va. July 6, 2012) ("The Court further FINDS that this error is not harmless because, absent vocational evidence to suggest that one or more of these jobs should be classified as unskilled sedentary positions requiring Level 1 reasoning development notwithstanding the DOT descriptions, or vocational evidence regarding other positions available in significant numbers in the national economy that the claimant could perform as of his date last insured, the ALJ may have reached a different outcome with respect to the plaintiff's disability determination.") (emphasis added) (citations omitted), report and recommendation adopted by 2012 WL 4479971 (E.D. Va. Sep. 28, 2012). The VE's testimony simply cannot support the ALJ's Step Five finding that, through Gearing's DLI, jobs existed in significant numbers in the national economy that Gearing could perform. (Tr. 516.)

Contrary to the Commissioner's assertion, Gearing's counsel specifically questioned the VE on the basis for her testimony. (Tr. 564.) As Gearing points out, the ALJ could have questioned the VE on redirect to obtain testimony regarding the relevant time period, but did not. (Doc. No. 14 at 6-7.) It is well-established the Commissioner cannot cure a deficient opinion by offering explanations that were not offered by the ALJ. Indeed, as courts within this district have noted, "arguments [crafted by defense counsel] are of no consequence, as it is the opinion given by an administrative agency rather than counsel's `post hoc rationale' that is under the Court's consideration." See, e.g., Blackburn, v. Colvin, No. 5:12-CV-2355, 2013 WL 3967282, at *8 (N.D. Ohio July 31, 2013); Cashin v. Colvin, No. 1:12-CV-909, 2013 WL 3791439, at *6 (N.D. Ohio July 18, 2013); Jaworski v. Astrue, No. 1:10-cv-02936, 2012 WL 253320, at *5 (N.D. Ohio Jan. 26, 2012). Because the various arguments now advanced by the Commissioner were not articulated by the ALJ as reasons for accepting and relying on the VE's testimony, they are rejected as post hoc rationalizations.

The Commissioner bears the burden of proof at Step Five, and failed to meet it here. Remand is required.

D. Award of Benefits Request

Gearing argues that the "unique circumstances" of his case "warrant an outright award of benefits." (Doc. No. 11 at 12.) Gearing maintains that he applied for benefits over six years ago, he had an extensive work history, he cannot perform his past relevant work, his treating neurologist provided two functional assessments that Gearing maintains are "consistent with disability," and SSA "did virtually nothing" to develop the record on remand. (Id.) In light of these facts and his remote DLI, Gearing asserts this Court should award him benefits instead of remanding the case back to the Agency. (Id.) The Commissioner responds that "[e]ven if all of Plaintiff's points are well taken, not all essential factual issues have been resolved in this case," making an award of benefits inappropriate. (Doc. No. 13 at 15.)

"If a court determines that substantial evidence does not support the Secretary's decision, the court can reverse the decision and immediately award benefits only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Faucher v. Secy. of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994) (citations omitted). Furthermore, an award of benefits "is proper only where the proof of disability is overwhelming or where the proof of disability is strong and evidence to the contrary is lacking." Id.

While the Court is sympathetic to the amount of time that has passed since Gearing applied for benefits, the Court agrees with the Commissioner that a judicial award of benefits in this case is inappropriate. Faucher addressed an analogous set of facts: there, the ALJ relied on the testimony of the VE in support of the Step Five finding, but the hypothetical posed to the VE failed to adequately incorporate all of the claimant's limitations. Id. at 174-75. In addition, the evidence regarding the claimant's impairments was mixed. Id. at 176. Here, as discussed above, there is insufficient evidence regarding whether, as of Gearing's DLI, a significant number of jobs existed in the national economy that Gearing could perform. Furthermore, the evidence regarding Gearing's impairments is mixed. Therefore, the proper remedy is remand. Id. (reversing lower court's award of benefits and remanding under sentence four of 42 U.S.C. § 405(g)).

VII. CONCLUSION

For the foregoing reasons, the Magistrate Judge recommends that the Commissioner's final decision be VACATED and REMANDED for further consideration consistent with this opinion.

Date: September 25, 2019