Brown v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

ASHLEY B., : Case No. 1:23-cv-690

Plaintiff, Judge Matthew W. McFarland

:

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

ENTRY AND ORDER DECLINING TO ADOPT REPORT AND

RECOMMENDATION (Doc. 11)

This matter is before the Court on the Report and Recommendation of United

States Magistrate Judge Peter B. Silvain, Jr., (Doc. 11), to whom this case is referred

pursuant to 28 U.S.C. § 636(b). Plaintiff Ashley B. brought this action pursuant to 42

US.C. § 405(g) for judicial review of the Defendant Commissioner of Social Security’s

non-disability determination. In the Report and Recommendation (Doc. 11), the

Magistrate Judge recommended that: (1) this Court sustain Plaintiff's Statement of Errors

(Doc. 8); (2) vacate the Commissioner’s non-disability finding; and (3) make no finding

of Plaintiff's disability status but remand the case to the Social Security Administration

for further consideration. (Report, Doc. 11, Pg. ID 2145.) Defendant filed Objections (Doc.

13). Plaintiff then filed a Response to Defendant's Objections (Doc. 14). Thus, the matter

is ripe for review.

Pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure Rule 72(b), the

Court has made a de novo review of the record in this case. Judicial review of an

administrative law judge’s (“ ALJ”) decision is limited to whether the AL]’s findings are

supported by substantial evidence and whether the ALJ applied the correct legal

standards. Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009). Substantial

evidence is “relevant evidence that a reasonable mind might accept as adequate to

support a conclusion.” Gentry v. Comm’ of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). It is

“less than a preponderance but more than a scintilla.” Id. The second judicial inquiry —

reviewing the correctness of the ALJ's legal analysis— may result in reversal even if the

ALJ's decision is supported by substantial evidence in the record. Rabbers v. Comm’r of

Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009).

Defendant objects to the Report and Recommendation based on its application of

the Deskin rule. (Objections, Doc. 13, Pg. ID 2149.) Defendant argues that both its

originating court and this Court have since rejected the rule, which “runs afoul” of the

ALJ's authority. (Id. at Pg. ID 2149, 2152.) Further, Defendant argues that the Deskin rule

conflicts with Sixth Circuit case law. (Id. at Pg. ID 2152.)

The Magistrate Judge relied, in part, on Deskin v. Commissioner of Social Security,

605 F. Supp. 2d 908 (N.D. Ohio 2008), in deciding to recommend remand for further

consideration of Plaintiff's medical records. (Report, Doc. 11, Pg. ID 2138-39.) While the

Report declines to assert that Plaintiff has a disability under the Social Security Act, it

recommends vacating the current ALJ’s determination because the ALJ “did not

sufficiently make the connection” between the evidence relied on and the conclusion

reached. (Id. at Pg. ID 2143.) In other words, the evidence that the AL] relied on was not

subject to the ALJ’s commonsense judgment. (Id. (citing Tucker v. Comm’ of Soc. Sec., 775

F, App’x 220, 226 (6th Cir. 2019)).) To reach this conclusion, the Report applies the Deskin

rule; Defendant objects to this application.

In Deskin, the District Court for the Northern District of Ohio held that “where the

transcript contains only diagnostic evidence and no opinion from a medical source about

functional limitations (or only an outdated non-examining 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.” 605 F.

Supp. 2d at 912. As the Report points out, the rule “potentially applies only” in those two

cases of an under-developed record of diagnostic evidence. (Report, Doc. 11, Pg. ID 2139.)

Still, under the Deskin rule, the ALJ “retains discretion to impose work-related limitations

without a proper source opinion where the medical evidence shows relatively little

physical impairment and the ALJ can render a commonsense judgment about functional

capacity.” Kyzys v. Comm’r of Soc. Sec., No. 3:10-CV-25, 2011 WL 5024866, at *2 (N.D. Ohio

Oct. 21, 2011) (cleaned up). The Report found that the last medical opinion in Plaintiff's

record came from 2020, but the record also contained CT scans from 2022, and the ALJ

relied, in part, on these later scans. (Doc. 11, Pg. ID 2140.) Thus, the Report recommends

that, under the rule, the ALJ’s decision should be remanded because the ALJ relied on

evidence without a medical opinion (the later CT scans), and such evidence fell outside

the scope of the ALJ’s commonsense judgment. (/d.)

Defendant disagrees. First, Defendant points out that Deskin has been “rejected by

both its originating court and this Court.” (Objections, Doc. 13, Pg. ID 2150.) In support

of this argument, Defendant cites Northern District of Ohio case law which stated that

Deskin “conflicts with the regulations and Sixth Circuit case law.” (Id. at Pg. ID 2150-51;

Carr v. Comm’r of Soc. Sec., No. 5:23-CV-187, 2024 WL 1343473, at *5 (N.D. Ohio Mar. 30,

2024); see also Williams v. Astrue, No. 1:11-CV-1569, 2012 WL 3586962, at *7 (N.D. Ohio

Aug. 12, 2021) (“But [residual functional capacity] is for the ALJ to determine, see 20 C.F.R.

§ 416.945(a).”)) And, this Court found similarly: “Deskin has been criticized by nearly two

dozen cases, including this Court,” as “not representative of the law established by the

legislature, and [as] interpreted by the Sixth Circuit Court of Appeals.” Lawson v. Comm’r

of Soc. Sec., No. 1:20-CV-324, 2021 WL 2659176, at *9 (S.D. Ohio June 29, 2021), report and

recommendation adopted, 2021 WL 3663649 (S.D. Ohio Aug. 18, 2021) (quotation omitted).

Further, the law and this Court have made clear that the ALJ, when determining

the residual functional capacity (“RFC”) of a claimant, has “discretion to seek additional

or clarifying information” if the information on the record is insufficient. (Objections,

Doc. 13, Pg. ID 2151; see also 20 C.F.R. § 416.920b.) Code of Federal Regulations § 416.920b

describes how the AL] considers evidence in making an RFC determination. The process

gives exclusive control over the consideration of evidence to the ALJ and does not

mention any requirement of an ALJ to request a medical opinion for every piece of

evidence. 20 C.F.R. § 416.920b. Defendant points not only to the Code, but also Sixth

Circuit case law to establish that the ALJ has the sole responsibility to determine a

claimant’s RFC. (Objections, Doc. 13, Pg. ID 2151 (citing Coldiron v. Comm’r Soc. Sec., 391

F. App’x 435, 439 (6th Cir. 2010)); see also Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001)

(“An ALJ has discretion to determine whether further evidence, such as additional testing

or expert testimony, is necessary.”)) In Coldiron, the Sixth Circuit held that the Social

Security Act “instructs that the ALJ —nota physician — ultimately determines a claimant's

RFC.” 391 F. App’x at 439. And, the Sixth Circuit has stated that “to require the ALJ to

base her RFC finding on a physician’s opinion . . . would be an abdication of the

Commissioner’s statutory responsibility to determine whether an individual is disabled.”

Rudd v. Comm’r Soc. Sec., 531 F. App’x 719, 728 (6th Cir. 2013).

Defendant also argues that Deskin strays from case law which states that an ALJ

“can reject all medical evidence and still properly make an RFC finding based on the

record as a whole.” (Objections, Doc. 13, Pg. ID 2152.) Indeed, Defendant points to a Sixth

Circuit case in which the court rejected the argument that an ALJ was required to receive

a medical opinion before setting the RFC. (Id. (citing Mokbel-Aljahmi v. Comm’r Soc. Sec.,

732 Fed. App’x 395, 401 (6th Cir. 2018)).) The Sixth Circuit in Mokbel-Aljahmi found that

the ALJ’s RFC determination was supported by substantial evidence on the record, even

though the ALJ declined to give any weight to the medical opinion provided or request

additional opinion evidence. 732 F. App’x at 401-02. As Defendant put it, this Court “has

upheld this principle that an AL] is free to reject the medical opinions and make his own

RFC determination because an ALJ need not rely on any medical opinions in crafting the

RFC.” (Objections, Doc. 13, Pg. ID 2152-53 (citing Kevin v. Comm’r Soc. Sec., No. 1:22-CV-

307, 2023 WL 4545164, at *7-11 (S.D. Ohio July 14, 2023)).) The Report does note that the

“final responsibility for deciding the RFC is reserved to the Commissioner, not a

physician.” (Report, Doc. 11, Pg. ID 2139.) But, the ALJ must “sufficiently make a

connection between the evidence relied on and the conclusions reached.” (Id., quoting

Tucker v. Comm’r of Soc. Sec., 775 F. App’x 220, 226 (6th Cir. 2019).) However, according to

Defendant, the Report’s conclusion that the ALJ’s decision lacked the proper connection

“invokes the ‘commonsense judgment’ language found in” Deskin and its progeny.

(Objection, Doc. 13, Pg. ID 2150.) Thus, the Report's finding was in error. (Id.)

Finally, Defendant compares Plaintiff's medical evidence to the plaintiff's record

in Carr, as in both cases, some evidence post-dated the medical opinions of the record.

(Objections, Doc. 13, Pg. ID 2153.) According to Defendant, the ALJ provided a “detailed

consideration of the medical evidence” following the May 2020 opinion. (Id.) Defendant

also points out that the ALJ did consider the last medical opinion from May 2020,

particularly in relation to Plaintiff's continued pain complaints. (Id.) The ALJ found some

of the prior opinions to be unpersuasive, in accordance with the guidance provided in 20

C.F.R. § 416.920c. (Id. at Pg. ID 2154.) And, the ALJ found the May 2020 opinion “partially

persuasive” because some of its recommendations were consistent with the record, but

other recommended limitations were not. (Id. at Pg. ID 2154-55.) Nevertheless, in

Defendant's estimation, the AL] considered the entire record, from older medical

opinions to recent medical evidence. (Id. at Pg. ID 2155.) Thus, the ALJ “demonstrated a

clear consideration of the evidence postdating the medical opinions,” indicating that the

AL] “supported his decision with substantial evidence,” satisfying the standard of review

under 40 U.S.C. § 405(g). (Id.; see also Carr, 2024 WL 1343473, at *7 (finding that, where the

ALJ conducted a careful examination of all evidence, Plaintiff could not demonstrate that

new medical opinion was necessary).)

In response, Plaintiff alleges that she relied on cases besides Deskin to establish that

ALJs “should not interpret a critical body of objective medical evidence in functional

terms.” (Response, Doc. 14, Pg. ID 2158.) Plaintiff states that a case is subject to remand if

the ALJ makes a finding based on “no medical source opinion or an outdated source

opinion that did not include consideration of a critical body of objective medical

evidence.” (Id. at 2158-59.) But, this argument comes from Kizys, a case that applies and

narrows the Deskin rule. Nevertheless, Plaintiff points to other cases from the Southern

District of Ohio in which the court found that the ALJs did not consider proper medical

opinion. (Id.) Specifically, in Colaner v. Commissioner of Social Security, No. 12-CV-716, 2013

WL 5487037, at *4 (S.D. Ohio Sept. 30, 2013), and Banks v. Commissioner of Social Security,

No. 3:19-CV-307, 2020 WL 5757173, at *3 (S.D. Ohio Sept. 28, 2020), the courts remanded

the cases, finding that the ALJs’ use of raw medical data with no opinion resulted in

determinations unsupported by substantial evidence. (Id.)

However, these cases are not persuasive. First, Colaner is distinguishable, as the

ALJ had no opinions to aid in the RFC assessment. 2013 WL 5487037, at *3. In contrast,

the ALJ here had several medical opinions from both state agency physicians and

Plaintiff's treating physician. (Report, Doc. 11, Pg. ID 2154-55.) In Banks, the record

included medical opinions, but also included MRI reports that were not reviewed by

medical sources. 2020 WL 5757173, at *3. These MRIs “indisputably showed” the

plaintiff's impairment. Id. The court found that the lack of medical opinion on the MRIs

showed that the ALJ’s determination was not based on substantial evidence. Id. But, a

later case with a similar posture declined to follow Banks, finding that “Sixth Circuit

precedent provides that the ALJ in this case was not required to obtain an updated

medical opinion to evaluate the new medical evidence.” Abshire. v. Comm’r of Soc. Sec.,

3:23-CV-238, 2024 WL 4010024, at *10 (S.D. Ohio Aug. 30, 2024), report and recommendation

adopted, 3:23-CV-238 (S.D. Ohio Sept. 19, 2024). And, to the extent that Banks, Deskin, and

related cases claim that an AL] is not qualified to interpret raw medical data in functional

terms, the court in Abshire noted that spine imaging reports, like the ones reviewed by

the ALJ here, are not “raw medical data, because the raw medical data ... was read and

interpreted by a radiologist.” Id. (cleaned up). These radiological interpretations are

precisely the data upon which the ALJ relied here in determining the RFC, and such

reliance was proper. Id.; see also Rudd, 531 F. App’x at 726-27.

Accordingly, the Court agrees with Defendant's analysis. The application of Deskin

and its progeny is improper, as it contradicts not only statutory law, but Sixth Circuit case

law as well. The ALJ had discretion to request additional medical opinions on the newer

evidence, and chose not to, in accordance with 20 C.F.R. § 416.920b. And, the ALJ

thoroughly reviewed both the available medical opinions, as well as the postdated new

evidence, which included radiological interpretations, before making his determination

on Plaintiff's RFC. (See Decision, Doc. 7-9, Pg. ID 1326-30.) The ALJ, within his discretion,

did not find the record insufficient and was able to support his decision with substantial

evidence. His rejection of some of the opinions, as well as his declination to collect more

medical opinions, were appropriate and supported by a considerable amount of case law.

See, e.g., Mokbel-Aljahmi, 732 F. App’x at 401; Rudd, 531 F. App’x at 728; Coldiron, 391 F.

App’x at 439. These cases directly contradict the Deskin rule, as the rule requires that the

ALJ cannot consider evidence without a medical opinion and must request additional

opinion or examinations. The Report relied heavily on Deskin and Kizys in finding that

the ALJ could not reach his decision without acquiring additional medical opinion and

thus failed to support his decision with substantial evidence. But, in light of the case law

and statutes, this reliance was improper.

Furthermore, the Sixth Circuit has held that, when the evidence could support

multiple conclusions, the decision of the ALJ “must stand if the evidence could

reasonably support the conclusion.” Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th

Cir. 1999). It was reasonable for the ALJ to find prior medical opinions unpersuasive, as,

in some instances, they were inconsistent with evidence. (Doc. 7-9, Pg. ID 1330.) And, in

other instances, the ALJ imposed greater functional limitations than were recommended

by the doctors. (Id. at Pg. ID 1326.) These findings demonstrate that the ALJ conducted a

thorough, holistic review of all the evidence in Plaintiff's record. Mokbel-Aljahmi, 732 F.

App’x at 401-02 (finding that the ALJ decision was supported by substantial evidence

where ALJ made thorough review of record, even where the ALJ declined to give weight

to the medical opinions). The Court finds that the ALJ’s actions comport with relevant

statutes and case law and that he supported his determination with substantial evidence.

His decision shall stand.

Accordingly, the Court finds that Defendant's Objections (Doc. 13) are well-taken

and are thus SUSTAINED. The Court REJECTS the Report and Recommendation (Doc.

11) and FINDS that Defendant's decision is SUPPORTED BY SUBSTANTIAL

EVIDENCE and, therefore, AFFIRMED. Thus, this case is TERMINATED on the Court’s

docket.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

Wath, wes

By:

JUDGE MATTHEW W. McFARLAND

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