# Brown v. Commissioner of Social Security

> District Court, S.D. Ohio · March 31, 2025

URL: https://www.frixlaw.com/law-library/cases/10836165

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10836165. Public record. Not legal advice.