Falkosky v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

EDWARD FALKOSKY, ) Case No. 1:19-cv-2632

)

Plaintiff, )

) MAGISTRATE JUDGE

v. ) THOMAS M. PARKER

)

COMMISSIONER OF )

SOCIAL SECURITY, ) MEMORANDUM OPINION

) AND ORDER

Defendant. )

I. Introduction

Plaintiff, Edward Falkosky, seeks judicial review of the final decision of the

Commissioner of Social Security denying his application for a period of Disability Insurance

benefits (“DIB”) under Title II of the Social Security Act. This matter is before me pursuant to

42 U.S.C. §§ 405(g), 1383(c)(3), and Local Rule 72.2(b), and the parties consented to my

jurisdiction under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. ECF Doc. 10. Because the ALJ

failed to follow the proper legal standards in determining Falkosky’s residual functional

capacity, the ALJ’s decision must be VACATED and REMANDED for further consideration

consistent with this opinion.

II. Procedural History

Falkosky applied for DIB in February 2017. (Tr. 145-146).1 He alleged that he became

disabled on November 20, 2011, due to degenerative track disease of left hip, high blood

pressure, hyperlipidemia, Dupuytren’s contracture, finger stiffeners, osteoarthrosis, carpal tunnel

syndrome, trigger finger, contraction of palm, abnormal enzymes, high cholesterol, and

degenerative arthritis of hand. (Tr. 145, 160). The Social Security Administration denied

Falkosky’s application initially and upon reconsideration. (Tr. 56, 63). Falkosky requested an

administrative hearing. (Tr. 86). ALJ Peter Beekman heard Falkosky’s case on July 18, 2018

and denied his claim in an October 29, 2018 decision. (Tr. 18-27).

On September 18, 2019, the Appeals Council denied further review, rendering ALJ

Beekman’s decision the final decision of the Commissioner. (Tr. 1-3). On November 11, 2019,

Falkosky filed a complaint seeking judicial review of the Commissioner’s decision. ECF Doc. 1.

III. Evidence

A. Relevant Medical Evidence

On February 7, 2012, Falkosky treated with Felix C. Nwaokafor, MD, for “trigger

finger.” Falkosky reported intermittent locking of the left pinky finger for months and that it had

recently become more painful at the palm. Dr. Nwaokafor diagnosed trigger finger, administered

a cortisone injection and advised Falkosky to continue finger exercises (stress ball) and to follow

up “as needed.” (Tr. 225-226).

In September 2012, Falkosky began treating with Thomas Ginley, D.O., for trigger finger

of the left hand. Dr. Ginley referred Falkosky to an orthopedic hand specialist. (Tr. 324-326).

1 The administrative transcript is in ECF Doc. 8.

On November 28, 2012, at a follow-up appointment for hyperlipidemia, Falkosky reported doing

yard work and exercising on a stationary bike for ten minutes a day. (Tr. 318).

On April 5, 2013, Falkosky reported tingling pain in his arms and hands on his right more

than the left. (Tr. 314). Dr. Julia Bruner examined Falkosky and observed a full range of motion

of the shoulders, elbows and wrist, but she did not document any observations related to his

fingers or the use of his hands. She diagnosed peripheral neuropathy and ordered an EMG. She

advised Falkosky to use wrist splints “as needed.” Falkosky declined any changes to his

medications. (Tr. 315).

After reviewing the results of Falkosky’s EMG, Dr. Ginley noted that it was positive for

carpal tunnel syndrome. (Tr. 312-314). In May 2013, Dr. Ginley again referred Falkosky to an

orthopedist hand specialist. (Tr. 312).

On May 9, 2014 an X-ray of Falkosky’s right hand showed degenerative changes on the

radial aspect of the wrist. An X-ray of his left hand showed mild or minor degenerative changes.

(Tr. 342-343). The same day, Falkosky consulted with Dr. Michael Keith regarding his bilateral

hand numbness and tingling. Dr. Keith discussed treatment options, including conservative

management, braces, corticosterioid injections and surgical management. (Tr. 304).

On July 11, 2014, Falkosky followed-up with Dr. Keith. Falkosky complained of

worsening right hand pain and painful forearm as well as triggering and locking of fingers. (Tr.

252). Physical examination was positive for Phalen’s and Tinel’s signs and palmar wrist

pressure. (Tr. 301). Falkosky declined injections, and Dr. Keith prescribed braces for carpal

tunnel syndrome. (Tr. 302). Falkosky returned to Dr. Keith in August 2014. Dr. Keith

administered corticoid injections. (Tr. 260).

Falkosky was last insured on December 31, 2014.2 In July 2015, he returned to see Dr.

Keith. He continued to complain of trigger fingers with locking and swelling, numbness and

tingling. (Tr. 298). Falkosky underwent surgical release of his trigger fingers and carpal tunnel

release surgery in August 2015. He underwent two more surgical releases of trigger fingers in

September 2016 and April 2017. (Tr. 394).

B. Relevant Opinion Evidence - State Agency Consultants

On March 11, 2017, state agency physician, Leon D. Hughes, M.D., reviewed Falkosky’s

file and opined that he had the severe impairment of carpal tunnel syndrome but stated there was

insufficient evidence to evaluate Falkosky’s claim. (Tr. 59). On March 7, 2017, Stephen

Sutherland, M.D., reviewed Falkosky’s records and affirmed Dr. Hughes’s opinions. (Tr. 66-

67).

C. Relevant Testimonial Evidence

Falkosky testified at the ALJ hearing before ALJ Beekman. (Tr. 37-50). Falkosky had

begun working as an extruder operator in 1974. In that job he was required to lift and pull up to

100 pounds by himself. (Tr. 37).

Falkosky began to have problems with his hands in 2011. He was given injections for his

symptoms. In 2013, his hands started “locking up.” In 2015, after his date last insured, he

started having surgeries because he could no longer tolerate the injections. (Tr. 39). The

injections allowed him to bend his fingers but he could not get all of the fingers treated at the

2 The ALJ considered some evidence of Falkosky’s medical treatment after his date last insured. (Tr. 23).

However, as argued by the Commissioner, this evidence was of little probative value. Strong v. Social

Sec. Admin., 88 F. App’x 841, 845 (6th Cir. 2004). Falkosky was required to establish disability on or

before the date of last insurance. See 42 U.S.C. § 423(a)(1)(A), (c)(1); see also Moon v. Sullivan, 923

F.2d 1175, 1182 (6th Cir. 1990).

same time. (Tr. 41). Falkosky testified that his condition was equally bad in both hands.

However, his carpal tunnel syndrome was worse on the right. (Tr. 40).

Between 2011 and 2014, Falkosky was living with his mother. He was able to drive a car

and drove his mother to Pennsylvania several times. (Tr. 45-46). He testified that he was able to

lift a gallon of milk, but had trouble gripping objects. (Tr. 42-43). When he tried to lift

anything, his back and shoulders would hurt later in the evening. (Tr. 46).

Vocational Expert (“VE”) Michael Klein also testified at the hearing. (Tr. 50-53). The

ALJ asked the VE to consider an individual of Falkosky’s age and education who could lift 50

pounds occasionally, 25 pounds frequently, could stand, walk or sit six out of eight hours; could

frequently use a ramp or stairs; could occasionally use a ladder, rope or scaffold; had no

limitations in his ability to balance, stoop, kneel, crouch, push/pull, reach in all directions and

feel; could frequently handle and finger; had no visual or communication deficits; and must

avoid high concentrations of dangerous machinery and unprotected heights. The VE testified

that this individual would be able to perform Falkosky’s previous job of extruder operator as it

was described by the DOT, but not as he actually performed it. (Tr. 52). However, the VE

opined that Falkosky could perform other jobs in the national economy such as cleaner, packer

and production helper. (Tr. 52-53). If the individual was limited to light exertional work

(lifting/carrying 20 pounds occasionally and 10 pounds frequently) the VE opined that he would

be able to perform the jobs of marker, weigher and office cleaner. (Tr. 53).

IV. The ALJ Decision

The ALJ made the following paraphrased findings relevant to this appeal:

5. Falkosky had the residual functional capacity to perform less than a full range

of medium work. He could lift/carry 50 pounds occasionally and 25 pounds

frequently; could stand, sit and/or walk for six out of eight hours during the

workday; could constantly push/pull and use a foot pedal; could constantly

balance, kneel, stoop and crouch; could frequently crawl; could constantly

reach and constantly feel; could frequently handle and finger with both hands;

had no visual or communications deficits; and must avoid high concentrations

of dangerous machinery and unprotected heights. (Tr. 21).

6. Considering Falkosky’s age, education, work experience and residual

functional capacity , he was able to perform his past work as an extruder

operator, as it was generally performed. (Tr. 24-25).

10. Alternatively, there were jobs that existed in significant numbers in the

national economy that Falkosky could perform. (Tr. 25).

Based on all of his findings, the ALJ determined that Falkosky was not under a disability from

November 20, 2011 through December 31, 2014, the date last insured. (Tr. 26).

V. Law & Analysis

A. Standard of Review

The court reviews the Commissioner’s final decision to determine whether it was

supported by substantial evidence and whether proper legal standards were applied. 42 U.S.C.

§§ 405(g), 1383(c)(3); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

Substantial evidence is any relevant evidence, greater than a scintilla, that a reasonable person

would accept as adequate to support a conclusion. Rogers, 486 F.3d at 241; Biestek v. Comm’r

of Soc. Sec., 880 F.3d 778, 783 (6th Cir. 2017) (“Substantial evidence supports a decision if

‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion’

backs it up.” (citing Richardson v. Perales, 402 U.S. 389, 401 (1971))). “[T]he threshold for

such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).

Substantial evidence in this context “means – and means only – ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Id.; see also, O’Brien v.

Comm’r of Soc. Sec., No. 19-2441, 2020 U.S. App. LEXIS 25007, at *15, ___ F. App’x ___ (6th

Cir. Aug 7, 2020).

Under this standard, the court cannot decide the facts anew, evaluate credibility, or re-

weigh the evidence. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). If

supported by substantial evidence and reasonably drawn from the record, the Commissioner’s

factual findings are conclusive – even if this court might reach a different conclusion or if the

evidence could have supported a different conclusion. 42 U.S.C. §§ 405(g), 1383(c)(3); see also

Rogers, 486 F.3d at 241 (“[I]t is not necessary that this court agree with the Commissioner’s

finding, as long as it is substantially supported in the record.”); Biestek, 880 F.3d at 783 (“It is

not our role to try the case de novo.” (quotation omitted)). This is so because the Commissioner

enjoys a “zone of choice” within which to decide cases without being second-guessed by a court.

Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

Even if substantial evidence supported the ALJ’s decision, the court will not uphold that

decision when the Commissioner failed to apply proper legal standards, unless the legal error

was harmless. Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“[A] decision

. . . will not be upheld [when] the SSA fails to follow its own regulations and [when] that error

prejudices a claimant on the merits or deprives the claimant of a substantial right.”); Rabbers v.

Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (“Generally, . . . we review

decisions of administrative agencies for harmless error.”). Furthermore, the court will not

uphold a decision, when the Commissioner’s reasoning does “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. Charter, 78 F.3d 305, 307 (7th Cir. 1996)); accord Shrader v.

Astrue, No. 11-13000, 2012 U.S. Dist. LEXIS 157595 (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 U.S. Dist. LEXIS 141342 (S.D. Ohio

Nov. 15, 2011); Gilliams v. Astrue, No. 2:10 CV 017, 2010 U.S. Dist. LEXIS 72346 (E.D. Tenn.

July 19, 2010); Hook v. Astrue, No. 1:09-CV-19822010, 2010 U.S. Dist. LEXIS 75321 (N.D.

Ohio July 9, 2010). Requiring an accurate and logical bridge ensures that a claimant, as well as a

reviewing court, will understand the ALJ’s reasoning.

The Social Security regulations outline a five-step process the ALJ must use to determine

whether a claimant is entitled to benefits: (1) whether the claimant is engaged in substantial

gainful activity; (2) if not, whether the claimant has a severe impairment or combination of

impairments; (3) if so, whether that impairment, or combination of impairments, meets or equals

any of the listings in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) if not, whether the claimant

can perform his past relevant work in light of his RFC; and (5) if not, whether, based on the

claimant’s age, education, and work experience, she can perform other work found in the

national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Combs v. Comm’r

of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006). Although it is the Commissioner’s obligation

to produce evidence at Step Five, the claimant bears the ultimate burden to produce sufficient

evidence to prove that she is disabled and, thus, entitled to benefits. 20 C.F.R. §§ 404.1512(a),

416.912(a).

B. Residual Functional Capacity and Developing the Record

Falkosky argues that the ALJ’s RFC determination was not supported by substantial

evidence and that he erred by failing to develop the record on Falkosky’s impairments.

Specifically, he argues that, because there was no medical opinion in the record regarding his

physical limitations, the ALJ improperly “played doctor” in determining his RFC. The

Commissioner concedes that there were no medical opinions related to Falkosky’s functional

limitations. ECF Doc. 13 at 7. However, he argues that the ALJ properly evaluated Falkosky’s

evidence when he made his RFC finding. The Commissioner argues that the limited medical

evidence was not complex and showed that Falkosky was not disabled during the relevant time

period. Thus, the Commissioner argues that substantial evidence (or the lack thereof) supported

the ALJ’s decision. The Commissioner’s argument can be summarized as: 1) Falkosky was

responsible for producing evidence of disability; 2) the paucity of evidence itself supported the

ALJ’s finding; and 3) the ALJ was not required to obtain a medical opinion concerning

Falkosky’s functional abilities. ECF Doc. 13 at 9.

At Step Four of the sequential analysis, the ALJ must determine a claimant’s RFC by

considering all relevant medical and other evidence. 20 C.F.R. §§ 404.1520(e). Here, there was

little evidence to analyze. Indeed, the state reviewing physicians found that Falkosky’s records

showed that he had a severe impairment but concluded there was insufficient evidence to form

an opinion as to how that impairment impacted his functional abilities. If there was, in fact,

insufficient evidence to opine on the effect that Falkosky’s impairment had on his ability to

function, whose responsibility was it to gather more evidence? That is the starting point of our

discussion.

Both sides cite the agency’s regulations to support their arguments, and it is easy to see

why. 20 CFR § 404.1545(a)(3) provides in relevant part:

In general, you are responsible for providing the evidence we will use to make a

finding about your residual functional capacity. (See § 404.1512(c).) However,

before we make a determination that you are not disabled, we are responsible for

developing your complete medical history, including arranging for a consultative

examination(s) if necessary, and making every reasonable effort to help you get

medical reports from your own medical sources. (See §§ 404.1512(d) through

(e).)

Thus, the regulations place the responsibility of providing evidence on the claimant, but also

require the Commissioner to develop a complete record by obtaining opinion evidence, if

necessary.

Courts within the Sixth Circuit attempting to interpret this regulation and to hold both the

claimant and the agency responsible, decided a line of cases with which we must reckon. In

2008, a court in this district reviewed a case in which there was only one medical opinion, from a

state agency reviewing physician who reviewed the record two years before the ALJ made an

RFC finding and without the benefit of two years’ worth of medical records. Deskin v. Comm'r

of Soc. Sec., 605 F. Supp. 2d 908 (N.D. Ohio 2008). Because Deskin’s record contained two

years’ worth of medical records post-dating the medical opinion, the court held that the

Commissioner had not developed the record as required by the regulations. Deskin, 605 F. Supp.

2d at 911. Deskin held that an ALJ “may not interpret raw medical data in functional terms,”

and, with that principle in mind, established the following rule:

. . . [when] the transcript contains only diagnostic evidence and no opinion from a

medical source about functional limitations (or only an outdated nonexamining

agency opinion), to fulfill the responsibility to develop a complete record, the ALJ

must recontact the treating source, order a consultative examination, or have a

medical expert testify at the hearing. This responsibility can be satisfied without

such opinion only in a limited number of cases [in which] the medical evidence

shows relatively little physical impairment and an ALJ can render a commonsense

judgment about functional capacity.

Id. at 912 (quotation marks and citation omitted).

Deskin was not met with open arms. Shelley v. Comm’r of Soc. Sec., 2019 U.S. Dist.

LEXIS 144744 at *19 (S. Dist. Ohio 2019). Another district court in the Sixth Circuit found that

it was “not representative of the law” because the ALJ, “not a physician is assigned the

responsibility of determining a claimant’s RFC based on the evidence as a whole.” Henderson v.

Comm’r of Soc. Sec., 2010 U.S. Dist. LEXIS 18644 (N.D. Ohio Mar. 2, 2010). Roughly a year

and a half after Henderson, the Deskin court reaffirmed the ruling but made several caveats

regarding its application. See Kizys v. Comm’r of Soc. Sec., No. 3:10-cv-25, 2011 U.S. Dist.

LEXIS 122296 (N.D. Ohio Oct. 21, 2011). Kizys clarified that Deskin potentially applies in only

two circumstances: 1) when an ALJ made an RFC determination based on no medical source

opinion; or 2) when an ALJ made an RFC based on an “outdated” medical source opinion “that

does not include consideration of a critical body of objective medical evidence.” See Kizys, 2011

U.S. Dist. LEXIS 122296at *6-7; see also Raber v. Comm’r of Soc. Sec., No. 4:12-cv-97, 2013

U.S. Dist. LEXIS 43428, 2013 WL 1284312, at *15 (N.D. Ohio Mar. 27, 2013) (explaining post-

Deskin application of the rule). Falkosky’s claim involves the first Deskin circumstance because

there was no medical opinion as to his functional limitations.

Deskin is not controlling. Nevertheless, because it is now commonly referred to as the

“Deskin Rule,” and is directly applicable to Falkosky’s argument, it cannot be ignored. See

Shelley, 2019 U.S. Dist. LEXIS at *18-23; Bryant v. Comm’r of Soc. Sec., No. 3:15-cv-354, 2017

U.S. Dist. LEXIS 17126 at *8-10 (S.D. Ohio Feb. 7, 2017); Raber v. Comm'r of Soc. Sec., 2013

U.S. Dist. LEXIS 43428 at *45-46. Moreover, when the court applies the reasoning of Deskin

and Kizys to the facts presented by this case, they make good sense. Given the persuasive

authority of Deskin and the decade-plus of cases that have applied the Deskin “rule,” the court

can safely say that, in some circumstances, an ALJ is required to obtain a medical opinion in

furtherance of his 20 CFR § 404.1545(a)(3) responsibility to develop the record. Without doubt,

it is the ALJ’s responsibility (not a physician’s) to determine a claimant’s RFC based on the

evidence as a whole. Equally clear is the claimant’s burden to produce evidence in support of his

claim. But, once it is determined that the evidence supports a finding of a severe impairment, the

ALJ may be obligated to develop a record that provides substantial evidence supporting his or

her RFC finding. The question then becomes, “did the ALJ have a responsibility to further

develop the record in this case?”

The Commissioner argues that there was substantial evidence supporting the ALJ’s RFC

finding. The ALJ was tasked with considering all relevant medical and other evidence. 20

C.F.R. §§ 404.1520(e). The ALJ stated that he considered Falkosky’s testimony, however he

found that Falkosky’s allegations were out of proportion to the medical evidence. The ALJ also

stated that he considered the medical treatment notes of Dr. Felix Nwaokafor, Thomas Ginley,

D.O., Julia Bruner, M.D., Michael Keith, M.D., an April 2013 EMG, and the fact that Falkosky

did not follow-up with several referrals. (Tr. 23). He then stated:

During the relevant timeframe, I find that the objective medical evidence, clinical

findings on examination, and course of treatment in this case are not consistent

with disabling physical impairment or disabling pain and are more consistent with

the residual functional capacity. As recounted above, the claimant had some pain,

numbness, and tingling of his hands treated with braces. He received some

injections for trigger fingers and the claimant testified that the injections provided

him with three to eight months of relief. As recounted above, the claimant did not

pursue several referrals and he did not undergo surgical management until late

August 2015. From all of this, I find that the claimant’s symptoms and limitations

were not as severe as alleged during the relevant timeframe. (Tr. 22-23).

None of the treatment notes the ALJ discussed assessed Falkosky’s functional abilities. Rather,

they documented Falkosky’s symptoms and the physician’s recommended treatments. There

was very little discussion in the evidence of how Falkosky’s symptoms affected his daily

activities. Even the ALJ’s finding that the injections provided “relief” did not explain how that

impacted Falkosky’s ability to function. The ALJ seemingly did not take into account the fact

that Falkosky was not able to receive injections for all of his fingers at the same time. (Tr. 41).

Moreover, it is difficult to understand how the ALJ gleaned Falkosky’s functional abilities from

the symptoms and treatments (or lack thereof) documented in his physicians’ notes.

After reviewing Falkosky’s records, the state-agency reviewing physicians recognized

that he had the impairment of carpal tunnel syndrome during the relevant time period and found

that there was insufficient evidence to determine how that impairment affected his functional

abilities. (Tr. 58-60, 66-67). The ALJ rejected their decision, stating:

I give little weight to their opinions because there is sufficient medical evidence

of record during the relevant timeframe. Instead, I find the claimant could

perform medium exertional work with the postural, manipulative, and

environmental limitations listed above. Significantly, I find the claimant could

perform medium exertional work with constant reaching and constant feeling

bilaterally and he could frequently handle and finger bilaterally. In particular, I

decline to reduce the claimant to light work and I decline to impose more

restrictive manipulative limitations because of the limited course of treatment

during the relevant timeframe, with several referrals not pursued by the claimant.

(Tr. 24).

Absent from the ALJ’s decision is any explanation of how he could make a detailed RFC finding

when the reviewing physicians could not?3 In his own words, he based his RFC finding on the

lack of evidence – namely a lack of treatment and/or Falkosky’s failure to obtain more

aggressive treatment during the relevant time period. A physician may have had the expertise to

opine that Falkosky’s decision to pursue conservative treatment was indicative of his ability to

perform work at the medium exertional level. But the ALJ did not have such expertise.

The Commissioner argues that the ALJ was not required to base his RFC on any one

medical opinion. I agree. In Mokbel-Aljahmi v. Comm’r of Soc. Sec., the Sixth Circuit held that

the ALJ was not required to obtain an opinion from another physician after assigning no weight

to a medical opinion in the record. 732 F. App’x 395, 401 (6th Cir. 2018). But in Mokbel-

Aljahmi, the ALJ had rejected a medical source opinion that the claimant was limited to less than

light work because that same physician had noted that the claimant’s muscle bulk and tone were

3 The Commissioner points out that the ALJ received new evidence, Exhibit 6F, that the state agency

reviewing physicians had not seen. ECF Doc. 13 at 7. However, this exhibit shows records post-dating

Falkosky’s date last insured, which (as argued by the Commissioner) was of little probative value.

normal, as was his gait. Id. at 400. Thus, the same evidence supporting the rejection of a

medical source opinion also supported the ALJ’s RFC finding.

Support for an ALJ’s RFC finding is often described in the rejection of a medical opinion

because the treating physician rule requires an ALJ to cite evidence from the record supporting

the weight assigned to such an opinion. The Kizys court recognized this phenomena in

distinguishing the Henderson case. In Henderson, which rejected the Deskin rule, the ALJ had

analyzed at least three medical opinions related to the claimant’s functional limitations. The

Kizys court noted that, in Henderson, the ALJ had three medical source opinions as “a guide to

peg a residual functional capacity finding.” Kizys, 2011 U.S. Dist. LEXIS at *5. So, even

though the ALJ had rejected the physicians’ opinions, he had done so based on other evidence in

the record related to the claimant’s functional limitations. In contrast, Falkosky’s record

contained no medical opinions on his functional limitations. Thus, the ALJ had no medical

opinions on Falkosky’s functional abilities to evaluate. And any evidence of Falkosky’s

condition that he cited to support his RFC finding necessarily supported only his own lay

conclusion regarding Falkosky’s functional capacity.

The Commissioner cites cases supporting the proposition that a limited course of

treatment is relevant and may be relied upon by the ALJ. ECF Doc. 13 at 9. I do not disagree

with the holdings of these cases. But these cases involved the ALJ’s assessment of medical

opinions. For example, the Commissioner cites Soeder v. Comm’r of Soc. Sec., for the

proposition that limited treatment and a lack of medical opinion evidence are valid reasons for

not assessing greater RFC limitations. 2014 U.S. Dist. LEXIS 100985 at *49-50. But Soeder

involved the assessment of several medical opinions and the assignment of greater weight to a

non-examining physician’s opinion than to the opinion of a treating physician. The Soeder ALJ

based his RFC finding, in part, on the non-examining source’s opinion and the evidence he cited

in analyzing the opinion of the treating source. Thus, the ALJ’s RFC finding was not formed in

the absence of any medical opinion or upon his own opinion of what the claimant was able to do

despite his impairments. Id.

The court also agrees with the Commissioner that an ALJ is not always required to have a

medical opinion to determine a claimant’s RFC. Deskin and Kizys acknowledge that “an ALJ

may make a residual functional capacity finding without a physician’s assessment ‘where the

medical evidence shows relatively little physical impairment.’” Kizys, 2011 U.S. Dist. at *3,

citing Deskin, 605 F.Supp.2d at 912. But here, rather than showing little physical impairment,

the records show that Falkosky had severe impairments but sought little treatment or only

conservative treatment.4 In the absence of any medical opinion, the ALJ evaluated Falkosky’s

records and inferred from his limited treatment record that he was able to perform work at the

medium level during the relevant period. Only a medical expert should be able to draw such

conclusions. The ALJ’s RFC finding does not appear to be based on substantial evidence.

Rather, it appears to be based on his own extrapolation from the limited medical records

submitted by Falkosky.

This case would be different had the ALJ cited medical records demonstrating Falkosky’s

functional abilities. For example, the ALJ might have been able to forego a medical opinion if

he had cited medical records showing that Falkosky was capable of lifting 50 pounds

occasionally or constantly pushing and pulling. But he didn’t. Instead, he cited Falkosky’s

reported symptoms, the physicians’ suggested treatments, and the fact that Falkosky didn’t

4 Falkosky’s records before the date last insured show that his fingers were locking; that he had

degenerative changes in his hands; and that he’d been diagnosed with carpal tunnel syndrome. (Tr. 225-

226, 252, 312-314, 342-343). It cannot be said that this is only a “little” physical impairment. Even the

state agency reviewers found that Falkosky’s carpal tunnel syndrome was severe.

pursue more aggressive treatments. Then, he made a detailed RFC finding that could only have

been based on his own opinion of Falkosky’s functional abilities. If there was substantial

evidence in the record to support such conclusions, the ALJ failed to cite it and, thereby, failed to

build a logical bridge between the evidence and his RFC finding.

The Commissioner argues that it is “telling” that Falkosky’s attorney did not ask the ALJ

to obtain additional evidence, such as a medical expert at the hearing. ECF Doc. 13 at 14.

However, the Commissioner has not cited any authority that a claimant’s failure to request

additional opinion evidence constitutes a waiver of Falkosky’s argument. As already stated, the

ALJ had some responsibility to develop the record; and, here, the state agency reviewing

physicians opined that there was not enough evidence to determine Falkosky’s functional

limitations. Prior to the issuance of the ALJ’s decision, Falkosky’s counsel may have assumed

that the ALJ would accept Falkosky’s own statements regarding what he was able to do during

the relevant time period. He could not have known, in advance, that the ALJ would find

Falkosky’s statements to be inconsistent with the objective evidence.

Because there was no medical opinion on Falkosky’s functional limitations, the ALJ had

a responsibility to further develop the record under 20 CFR § 404.1545(a)(3). Rather than

obtaining a medical opinion related to the relevant time period, the ALJ reviewed Falkosky’s

records and made conclusions about Falkosky’s functional abilities. Because the ALJ was not a

medical expert, he did not have the expertise to draw such conclusions. Consequently, his RFC

finding was not supported by substantial evidence. And, even if the record may have contained

substantial evidence that could have supported his RFC finding, the ALJ did not build a logical

bridge between such evidence and his RFC finding. Because the ALJ failed to follow the proper

legal standards in determining Falkosky’s residual functional capacity, the ALJ’s decision must

be vacated and the case remanded for further consideration consistent with this opinion.

C. Falkosky’s Subjective Statements

Falkosky also argues that the ALJ inadequately assessed his credibility because the ALJ

did not take his stellar work history into account. ECF Doc. 11 at 10-11. The ALJ’s assessment

of symptoms, formerly referred to as the “credibility” determination in SSR 96-7p, 1996 SSR

LEXIS 4, was clarified in SSR 16-3p, 2016 SSR LEXIS 4 to remove the word “credibility” and

refocus the ALJ’s attention on the “extent to which the symptoms can reasonably be accepted as

consistent with the objective medical and other evidence in the individual’s record.” SSR 16-3p,

2016 SSR LEXIS 4, 2017 WL 5180304 at *2 (October 25, 2017) (emphasis added). The new

ruling emphasizes that “our adjudicators will not assess an individual’s overall character or

truthfulness in the manner typically used during an adversarial court litigation.” See 2016 SSR

LEXIS 4,[WL] at *11. Under SSR 16-3p, 2016 SSR LEXIS 4, an ALJ is to consider all of the

evidence in the record in order to evaluate the limiting effects of a plaintiff’s symptoms,

including the following factors:

1. Daily activities;

2. The location, duration, frequency, and intensity of pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any medication an

individual takes or has taken to alleviate pain or other symptoms;

5. Treatment, other than medication, an individual receives or has received for

relief of pain or other symptoms;

6. Any measures other than treatment an individual uses or has used to relieve

pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to

20 minutes every hour, or sleeping on a board); and

7. Any other factors concerning an individual's functional limitations and

restrictions due to pain or other symptoms.

Id., 2016 SSR LEXIS 4, 2017 WL 5180304, at *7-8; see also 20 C.F.R. §§ 404.1529(c),

416.929(c) and former SSR 96-7p, 1996 SSR LEXIS 4.

Even after SSR 16-3 clarified the rules concerning subjective symptom evaluation and

removed the term “credibility” from the regulations, the procedures for reviewing an ALJ’s

assessment under SSR 16-3p, 2016 SSR LEXIS 4 are substantially the same as the procedures

under SSR 96-7p, 1996 SSR LEXIS 4. Delong v. Comm’r of Soc. Sec., No. 2:18-cv-368, 2019

U.S. Dist. LEXIS 16167 (S. D. Ohio, Feb. 1, 2019). Therefore, courts agree that the prior case

law remains fully applicable to the renamed “consistency determination” under SSR 16-3p, 2016

SSR LEXIS 4, with few exceptions. Whicker-Smith v. Comm’r of Soc. Sec., No. 1:18-cv-52.

2019 U.S. Dist. LEXIS 29085 at *16; See Duty v. Comm’r of Soc. Sec., 2018 U.S. Dist. LEXIS

159013, 2018 WL 4442595 at *6 (S.D. Ohio Sept. 18, 2018) (“existing case law controls to the

extent it is consistent with the clarification of the rules embodied in SSR 16-3p’s clarification.”).

A claimant’s subjective symptom complaints may support a disability finding only when

objective medical evidence confirms the alleged severity of the symptoms. Blankenship v.

Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989). An ALJ is not required to accept a claimant’s

subjective symptom complaints, however, and may properly discount the claimant’s testimony

about his symptoms when it is inconsistent with objective medical and other evidence. See Jones

v. Comm’r of Soc. Sec., 336 F.3d 469, 475-76 (6th Cir. 2003); SSR 16-3p, 2016 SSR LEXIS 4

*15 (Oct. 25, 2017) (“We will consider an individual’s statements about the intensity,

persistence, and limiting effects of symptoms, and we will evaluate whether the statements are

consistent with objective medical evidence and the other evidence.”). In evaluating a claimant’s

subjective symptom complaints, an ALJ may consider several factors, including the claimant’s

daily activities, the nature of the claimant’s symptoms, the claimant’s efforts to alleviate his

symptoms, the type and efficacy of any treatment, and any other factors concerning the

claimant’s functional limitations and restrictions. SSR 16-3p, 2016 SSR LEXIS 4 *15-19; 20

C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Temples v. Comm’r of Soc. Sec., 515 F. App’x

460, 462 (6th Cir. 2013) (stating that an ALJ properly considered a claimant’s ability to perform

day-to-day activities in determining whether his testimony regarding his pain was credible).

Here, the ALJ considered Falkosky’s statements regarding his limitations during the

relevant time period and found that they were not as severe as alleged. First, he found that the

objective medical evidence did not support the severity alleged by Falkosky. This finding was

based, in part, on the fact that Falkosky sought limited treatment during the relevant time period.

This was an appropriate factor to consider in this context.5 The ALJ also cited records showing

that Falkosky was driving during the relevant time period; had gotten bed bug bites from staying

at a hotel; drank four to five beers a day and ate fast food daily; reported doing yard work; and

had refinished a bathtub. (Tr. 24). Although it is not entirely clear how the ALJ related all of

these facts to Falkosky’s statements regarding his ability to use his hands, it was generally

appropriate for the ALJ to compare Falkosky’s treatment notes to the statements he made

regarding his functional abilities. And, it was not necessary that he expressly consider factors

such as Falkosky’s claimed stellar work history.

Falkosky cites cases holding that a claimant’s poor work history might detract from the

claimant’s overall credibility. See e.g. Thompson v. Comm’r of Soc. Sec., 2017 U.S. Dist. LEXIS

127615, at *25 (S.D. Ohio Aug. 11, 2017). He also cites authority for the idea that a claimant’s

5 It was appropriate for the ALJ to discount Falkosky’s statements of severity based on the fact that he

sought little treatment during the relevant time period. However, because 20 CFR § 404.1545(a)(3)

places some responsibility on the ALJ to develop a record to determine the claimant’s functional abilities,

for the reasons discussed in detail above, it was not appropriate for the ALJ to make functional limitations

conclusions based on Falkosky’s limited treatment.

positive work history or attempts to work may bolster credibility. See e.g., Hedden v. Comm’r of

Soc. Sec., 2011 U.S. Dist. LEXIS 153704 (W.D. Mich. Sept. 6, 2011); White v. Comm’r of Soc.

Sec., 312 F. App’x 779, 789 (6th Cir. 2009). But he has not cited any authority requiring the

ALJ to consider his work history or expressly evaluate it in his decision. Nor is the court aware

of any.

If an ALJ discounts or rejects a claimant’s subjective complaints, he must state clearly his

reasons for doing so. See Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). But, an ALJ’s

decision need not explicitly discuss each of the factors. See Renstrom v. Astrue, 680 F.3d 1057,

1067 (8th Cir. 2012) (“The ALJ is not required to discuss methodically each [factor], so long as

she acknowledged and examined those [factors] before discounting a claimant’s subjective

complaints.” (quotation omitted)). Here, the ALJ did not err by failing to discuss Falkosky’s

positive work history.

Moreover, reversal of the Commissioner’s decision based upon error in a

credibility/consistency determination requires a particularly strong showing by a plaintiff.

Whicker-Smith, 2019 U.S. Dist. LEXIS 29085, *16-17 (S.D. Ohio, Feb. 25 ,2019). Like the

ultimate non-disability determination, the assessment of subjective complaints must be supported

by substantial evidence, but “an ALJ’s findings based on the credibility of the applicant are to be

accorded great weight and deference, particularly since an ALJ is charged with the duty of

observing a witness’s demeanor and credibility.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525,

531 (6th Cir. 1997). Further, a credibility/consistency determination cannot be disturbed “absent

a compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). Thus, it is proper for

an ALJ to discount the claimant’s testimony when there are inconsistencies and contradictions

among the medical records, [his] testimony, and other evidence. Warner v. Comm’r of Soc. Sec.,

375 F.3d 387, 392 (6th Cir. 2004).

Because the ALJ applied proper legal standards when he evaluated Falkosky’s subjective

symptom complaints, and because his conclusions were supported by substantial evidence, the

ALJ’s assessment of Falkosky’s subjective statements fell within the Commissioner’s “zone of

choice.” 42 U.S.C. §§ 405(g), 1383(c)(3); see also Elam v. Comm’r of Soc. Sec., 348 F.3d 124,

125 (6th Cir. 2003); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003); Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); Mullen v. Bowen, 800 F.2d 535, 545

(6th Cir. 1986). The court must reject Falkosky’s complaint about the ALJ’s handling of his

subjective symptom complaints. However, as already explained above, the ALJ’s decision must

be vacated on other grounds.

VI. Conclusion

Because the ALJ failed to follow the proper legal standards in determining Falkosky’s

residual functional capacity, the ALJ’s decision is VACATED and the case is REMANDED for

further consideration consistent with this opinion.

IT IS SO ORDERED.

Dated: September 10, 2020

United States istrate Judge

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