Brown

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SIEEDA BROWN, CASE NO. 1:25-cv-1993

Plaintiff, DISTRICT JUDGE

BENITA Y. PEARSON

vs.

MAGISTRATE JUDGE

COMMISSIONER OF SOCIAL JAMES E. GRIMES JR.

SECURITY,

Defendant. REPORT &

RECOMMENDATION

Plaintiff Sieeda Brown filed a Complaint against the Commissioner of

Social Security seeking judicial review of the Commissioner’s decision denying

disability insurance benefits and supplemental security income. This Court

has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). The Court referred this

matter to a Magistrate Judge under Local Rule 72.2(b)(1) for the preparation

of a Report and Recommendation. Following review, and for the reasons stated

below, I recommend that the District Court affirm the Commissioner’s

decision.

Procedural history

In May 2023, Brown filed applications for disability insurance benefits

and supplemental security income, alleging a disability onset date of

September 29, 2022.1 Tr. 15. In her applications, Brown claimed disability due

to fibromyalgia, migraines, chronic pain, major depression, plantar fasciitis,

asthma, sleep apnea, damaged right rotator cuff, anxiety, and sciatica. Tr. 267.

The Social Security Administration denied Brown’s applications and her

motion for reconsideration. Tr. 106, 115, 123, 131. Brown then requested a

hearing before an Administrative Law Judge (ALJ). Tr. 153.

In August 2024, an ALJ held a hearing, during which Brown and a

vocational expert testified. Tr. 41–70. The next month, the ALJ issued a

written decision finding that Brown was not disabled. Tr. 15–32. The ALJ’s

decision became final on July 25, 2025, when the Social Security Appeals

Council declined further review. Tr. 1–3; see 20 C.F.R. § 404.981.

Brown filed this action on September 19, 2025. Doc. 1. She asserts the

following assignments of error:

1. The ALJ’s finding that Plaintiff did not require

the use of a cane for standing or a rollator was not

supported by substantial evidence and was contrary

to Social Security Ruling 96-9p.

2. The ALJ committed harmful error when he

applied the wrong standard of review when he

mostly adopted the residual functional capacity as

set forth by the prior Administrative Law Judge.

1 “Once a finding of disability is made, the [agency] must determine the

onset date of the disability.” McClanahan v. Comm’r of Soc. Sec., 193 F. App’x

422, 425 (6th Cir. 2006).

3. The ALJ erred when he failed to support his

conclusions or discuss supportability and

consistency when he evaluated the opinion of the

treating rheumatologist.

Doc. 7, at 1.

Evidence

Personal and vocational evidence

Brown was 41 years old on her alleged disability onset date. Tr. 30. She

completed twelfth grade and used to work as a hand packager. Tr. 59, 268.

Relevant medical evidence

In August 2022, Brown saw her primary care doctor, Andrew Brobbey,

MD. Tr. 341. Brown reported shortness of breath with exertion and increased

fatigue. Tr. 341. Dr. Brobbey assessed obstructive sleep apnea and commented

that Brown needed her CPAP machine adjusted. Tr. 342. As for Brown’s

shortness of breath, Dr. Brobbey advised that Brown see her pulmonologist.

Tr. 342.

In September 2022, Brown followed up with Dr. Brobbey. Tr. 347. She

reported that she had been to the emergency room and given antibiotics for a

urinary tract infection. Tr. 347. Brown reported hip pain and Dr. Brobbey

noted that she had an injection scheduled for the following week. Tr. 347.

Brown followed up with Dr. Brobbey in October 2022 and reported

itching, shoulder pain, and right-flank pain. Tr. 360. Dr. Brobbey assessed

Brown with migraine without aura or status migrainosus, for which Dr.

Brobbey advised Brown take her medication “as ordered.” Tr. 361. Dr. Brobbey

assessed chronic left shoulder pain, for which Dr. Brobbey advised Brown to

follow up with “ortho,” and chronic pain syndrome, for which Dr. Brobbey

prescribed Gabapentin. Tr. 361.

In November 2022, Brown saw Dr. Brobbey and reported shortness of

breath with activity and increased leg swelling. Tr. 366. Dr. Brobbey assessed

orthopnea (shortness of breath when lying flat) and chronic deep vein

thrombosis of the right leg. Tr. 367. The next month, Brown told Dr. Brobbey

that she had increased leg swelling despite taking a diuretic. Tr. 373. Dr.

Brobbey increased Brown’s diuretic dosage. Tr. 376.

In January 2023, Brown saw a certified nurse practitioner from Dr.

Brobbey’s office and reported fatigue, shortness of breath with exertion,

dizziness, and anxiety with panic attacks. Tr. 393. The nurse noted that testing

was negative for acute deep vein thrombosis. Tr. 394. The nurse adjusted

Brown’s anxiety medication and continued Brown’s anticoagulant medication.

Tr. 394.

In February 2023, Brown saw a certified nurse practitioner at Dr.

Brobbey’s office to follow up after an urgent-care visit the day before the

appointment for chest pain and shortness of breath. Tr. 406. Brown told the

nurse that she had bruising and swelling in her feet, and that elevating her

feet “helped a lot.” Tr. 406. On exam, she had no edema, calf tenderness, or

motor deficits. Tr. 407. She had fluent speech and a steady gait. Tr. 407. Brown

declined another leg ultrasound. Tr. 406.

In March 2022, Brown told Dr. Brobbey that her legs swelled at the end

of the day. Tr. 413. On exam, Brown had no joint swelling or deformity, edema,

calf tenderness, or motor deficits. Tr. 414. She had a normal range of motion

and a steady gait. Tr. 414. Dr. Brobbey diagnosed pedal edema and instructed

Brown to wear compression stockings. Tr. 414.

On a Wednesday in early May 2023, Brown told the nurse in Dr.

Brobbey’s office that she had swelling and pain in her left calf “since Monday.”

Tr. 436. She reported being medication compliant and that elevating her leg

did not help. Tr. 436. The nurse commented that Brown had edema in her legs,

left greater than right. Tr. 436. She had no swelling in her joints and full range

of motion, a normal gait, and no motor deficits. Tr. 436. The nurse increased

Brown’s diuretic dosage and commented that she “suspect[ed] [Brown] may

have missed [medication] doses.” Tr. 436. She ordered Brown to undergo a left

leg ultrasound. Tr. 436.

Five days later, Brown visited the emergency room to undergo the

ultrasound early because she couldn’t stand the pain that she was

experiencing. Tr. 501. She appeared to be in no acute distress and she walked

with a steady gait. Tr. 501, 504. The ultrasound was negative. Tr. 504. The

doctor prescribed “symptomatic care with topical diclofenac and lidocaine” and

advised Brown to follow up with her primary care provider. Tr. 504.

In late May, Brown followed up with the nurse in Dr. Brobbey’s office.

Tr. 442. She told the nurse that she had an upcoming vascular appointment.

Tr. 442. On exam, Brown had no edema or calf tenderness. Tr. 443. The nurse

commented that Brown’s legs were large but proportional to “her body

habitus.” Tr. 442. Brown had no joint swelling or motor deficits and a steady

gait. Tr. 443. The nurse assessed pain in both lower extremities and prescribed

a trial of muscle relaxants. Tr. 443. She assessed Brown’s fibromyalgia as

stable. Tr. 443.

In June, Brown saw the nurse for swollen feet. Tr. 450. She also reported

some migraines despite migraine-prevention medication. Tr. 450. On exam,

Brown had no edema, joint swelling, calf tenderness, or motor deficits. Tr. 451.

She had a normal range of motion in her joints and a steady gait. Tr. 451. The

nurse assessed pedal edema and adjusted Brown’s diuretic and migraine

medications. Tr. 451.

The next day, Brown went to the emergency department complaining of

pain and swelling in her legs and dizziness. Tr. 478. Brown said that she was

going on a trip and wanted to make sure everything was okay. Tr. 478. On

exam, she had edema in her lower legs. Tr. 480. Her swelling decreased while

sitting in the emergency room and she was diagnosed with pedal edema. Tr.

481.

At Brown’s June and July 2023 routine appointments at Dr. Brobbey’s

office, she reported headaches every other day, which she believed were related

to stress—her mother was hospitalized—and the weather. Tr. 456, 475–76. The

nurse discussed with Brown the importance of adequate food and water intake,

especially since Brown was taking a diuretic. Tr. 457, 476. At both visits,

Brown’s exam findings were normal. Tr. 457, 476.

In July 2023, a pulmonologist diagnosed Brown with restrictive lung

disease, asthma, and possibly lupus. Tr. 473–74.

In August 2023, Brown returned to Dr. Brobbey’s office for a routine

appointment. Tr. 1583. She reported ongoing lower leg edema that improved

with elevation. Tr. 1583. The nurse commented that Brown had not received

her compression stockings despite having been measured. Tr. 1583. On exam,

Brown had no joint swelling, edema, calf tenderness or motor deficits. Tr. 1584.

She had a normal range of motion in her joints and a steady gait. Tr. 1584. The

nurse assessed pedal edema. Tr. 1584.

That month, Brown completed a Function Report. Tr. 275–85. Brown

wrote that her minor daughter helped her shower and sometimes dress. Tr.

276. She stated that her rheumatologist had prescribed a cane. Tr. 281.

In September 2023, Brown had a physical therapy appointment. Tr. 832.

Brown complained of hip and lower back pain that interfered with her ability

to rise from a chair, stand, walk more than a few minutes, and “physical

activities.” Tr. 836. Brown presented with impairments in her balance, gait,

posture, range of motion, strength, and functional performance, which showed

that she was a fall risk. Tr. 836. She said that she had “recently” started using

a cane due to feeling unstable while walking and she walked with a cane during

the exam. Tr. 833, 835. She tried aquatic therapy in the past but hadn’t stuck

with it long enough to see if it would help. Tr. 833. The therapist recommended

aquatic therapy. Tr. 833.

About two weeks later, Brown had a pain management evaluation. Tr.

821. She reported muscle pain and pain in her lower back that radiated to her

left thigh. Tr. 822. Brown’s “current medications” list included a rollator

walker (a walker with wheels and sometimes a seat) “to assist walking as

needed.” Tr. 822. On exam, Brown had full lower extremity strength and

sensation. Tr. 824. The doctor wrote that Brown “uses a wheeled walker for

distance” and he described her gait as “awkward.” Tr. 824. She had mild

discomfort in her lower back, sacroiliac joints, and left hip. Tr. 824. The doctor

diagnosed chronic bilateral low back pain with left-sided sciatica, diffuse

myofascial pain syndrome, chronic pain syndrome, and left hip trochanteric

bursitis. Tr. 824–25. The doctor wrote that Brown should continue with

physical therapy, after which time he planned to re-evaluate. Tr. 825.

In October 2023, Brown saw Natalie Whitlow, Ph.D., for a psychological

consultative exam. Tr. 694–702. Dr. Whitlow diagnosed Brown with

adjustment disorder with depressed mood, Tr. 770, and assessed no functional

limitations, explaining that none were adequately substantiated, Tr. 701–02.

In December 2023, Brown saw a physician assistant at the neurological

institute and reported “pain everywhere.” Tr. 783. She said that she

experienced pain for five or six years which had worsened over time. Tr. 783.

Brown reported trouble walking and said that she used “a walker to ambulate.”

Tr. 783. She denied dizziness or leg weakness, but said that she felt that her

balance was off and that she would fall. Tr. 783. On exam, Brown could rise

from a seated position without assistance. Tr. 786. She had a normal range of

motion in her spine and an antalgic gait.2 Tr. 786. The provider recommended

that Brown undergo Ketamine infusions and follow up four weeks after that.

Tr. 786.

In January 2024, Brown told her pain management doctor that she had

completed nine physical therapy sessions but experienced limited benefit. Tr.

772. At this video appointment, the doctor stated that Brown could “stand and

move about the room without apparent issue.” Tr. 775. She had “[n]o overt

weakness or asymmetry within the limitations of the video exam.” Tr. 775. The

doctor assessed chronic bilateral low back pain with left-sided sciatica, diffuse

myofascial pain syndrome, chronic pain syndrome, and spinal stenosis of the

lumbar region. Tr. 775. He remarked that an MRI of Brown’s left hip showed

mild osteoarthritis and ordered a lumbar MRI. Tr. 775.

In February 2024, Brown had a virtual follow-up visit with the nurse at

Dr. Brobbey’s office. Tr. 1598. Brown’s virtual exam indicated no joint swelling

or edema and a full range of motion. Tr. 1600. The next day, a psychologist

virtually assessed Brown for cognitive and behavioral group therapy focused

on coping with chronic pain. Tr. 756–57. The doctor described Brown as

2 An antalgic gait is an abnormal gait due to the person trying to avoid

pain. See Dorland’s Illustrated Medical Dictionary, at 96 (33rd ed. 2020).

depressed and anxious, but she commented that Brown paid “good attention”

during the session and verbalized her understanding of it. Tr. 756. She

assessed Brown with major depressive disorder, general anxiety disorder, pain

disorder with psychological and physical features, fibromyalgia, and chronic

pain syndrome. Tr. 757.

In March 2024, Brown returned to Brobbey’s office. Tr. 752. Brown

reported generalized aches and pains, fatigue, and pain in her right shoulder

and right knee. Tr. 752. On exam, Brown had no edema, calf tenderness, or

joint swelling. Tr. 752. She had a normal range of motion and a steady gait. Tr.

752. The nurse assessed chronic pain in both knees and leg pain, for which

Brown was to wear compression hose. Tr. 752. The nurse also assessed greater

trochanteric pain syndrome of the left leg, chronic left hip pain, fibromyalgia,

and radiculopathy in the lumbar region, and wrote that for these conditions

Brown was to use a rollator. Tr. 752.

At an April 2024 visit at a spine institute, Brown said that she was using

her walker and cane “as needed for gait stability.” Tr. 743. She reported that

her pain was unchanged and rated it eight-out-of-ten. Tr. 744. On exam, Brown

had a normal gait and reflexes, normal lower extremity strength, and, in her

lumbar spine, muscle spasms and decreased mobility. Tr. 748. The provider

recommended that Brown re-start pain management and perform back

stretches. Tr. 748.

Brown returned to physical therapy. In July 2024, the therapist wrote

that Brown “demonstrate[d] difficulty with sitting, rising from a chair,

standing, walking, walking in the house, walking in the community, stair

negotiation, physical activities, and sleeping.” Tr. 922. Brown had made

limited progress due to her failure to follow up since her initial evaluation. Tr.

922. She again presented with impairments in her activities of daily living,

“gait, independence in exercise, overall function, strength, stress management,

and symptom management that interfered with walking, stair negotiation,

sitting, rising from a chair, standing, cooking, cleaning, [and] sleeping.” Tr.

922. Nevertheless, she had improved to “moderate dysfunction” from “severe

dysfunction.” Tr. 923. The therapist gauged Brown’s prognosis as “fair,” due in

part to her limited compliance with previous therapy. Tr. 922. On exam, Brown

had “4/5” strength in her lower extremities. Tr. 924. She needed to use her

arms to stand up from a seated position and she had decreased control while

returning to a sitting position. Tr. 924. Brown used a cane to walk and she had

an antalgic gait with a decreased cadence and lateral sway. Tr. 924.

In July 2024, Brown saw rheumatologist Anabelle Morales-Mena, MD.

Tr. 1375. Brown complained of tenderness in both shoulders, hands, feet, and

left upper leg. Tr. 1380. Dr. Morales-Mena assessed Brown with

“[p]olyarthritis with negative rheumatoid factor,” “[o]ther systemic lupus

erythematosus with other organ involvement,” and fibromyalgia. Tr. 1386.

That day, Dr. Morales-Mena completed a medical source statement on Brown’s

behalf. Tr. 1579–82. She opined that Brown could perform less than a full

range of sedentary work and would need to elevate her legs more than half of

the workday. Tr. 1580–81. Brown would need to use an assistive device for

walking and standing all of the time due to imbalance and pain. Tr. 1580.

State agency opinions3

In September 2023, Lynne Torello, MD, reviewed Brown’s record. Tr.

98–103. Regarding Brown’s physical residual functional capacity (RFC),4 Dr.

Torello adopted “based on AR-98-4” the prior ALJ’s RFC, limiting Brown to

light work5—lifting, carrying, pushing, and pulling twenty pounds occasionally

and ten pounds frequently, and sitting, standing, and walking for six hours.

Tr. 103. Brown could occasionally reach overhead to the right and had postural

3 When a claimant applies for disability benefits, the State Agency creates

a record. The record includes the claimant’s medical evidence. A State Agency

disability examiner and a State Agency physician or psychologist review the

claimant’s record and determine whether and to what extent the claimant’s

condition affects his or her ability to work. If the State Agency denies the

claimant’s application, the claimant can ask for reconsideration. On

reconsideration, the State Agency updates the record and a second disability

examiner and doctor review the file and make a new determination. See, e.g.,

20 C.F.R. § 404.1615.

4 An RFC is an “‘assessment of’” a claimant’s ability to work, taking his or

her “limitations … into account.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235,

239 (6th Cir. 2002) (quoting 20 C.F.R. § 416.945). Essentially, it’s the SSA’s

“description of what the claimant ‘can and cannot do.’” Webb v. Comm’r of Soc.

Sec., 368 F.3d 629, 631 (6th Cir. 2004) (quoting Howard, 276 F.3d at 239).

5 The regulations define light work as “lifting no more than 20 pounds at

a time with frequent lifting or carrying of objects weighing up to 10 pounds.

Even though the weight lifted may be very little, a job is in this category when

it requires a good deal of walking or standing, or when it involves sitting most

of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §

404.1567(b).

and environmental limitations. Tr. 103. In March 2024, Mehr Siddiqui, MD,

reviewed Brown’s record and agreed with Dr. Torello’s assessment. Tr. 120.

Hearing testimony

Brown, who was represented by counsel, testified at the telephonic

administrative hearing held in August 2024. Brown stated that she lived with

her teenaged daughter. Tr. 47. She has a driver’s license but no longer drives.

Tr. 48. She doesn’t have a car and she cannot drive long distances due to her

legs and feet. Tr. 48.

When asked how her conditions had changed since 2022, Brown stated

that they have gotten worse. Tr. 50. She “could barely move or hold anything

or walk.” Tr. 50. Her feet and legs swell and her shoulder gives out. Tr. 50. Her

migraines were worse. Tr. 50. Brown said that her doctor told her that these

problems were caused by lupus and arthritis. Tr. 50. For treatment, she takes

medication and attends a pain program. Tr. 51. When asked how often she had

migraines, Brown said that it depends. Tr. 51. She could get a migraine that

lasted for days or for weeks. Tr. 55.

When asked to describe a typical day, Brown said that she goes to

therapy a lot, and on days that she did not have therapy she didn’t do much.

Tr. 52. Her daughter helps her dress. Tr. 52. She is in pain 24 hours a day. Tr.

52. Anytime she tries to do something her legs swell. Tr. 52. Brown’s daughter

performed the household chores. Tr. 52. Brown went to the grocery once or

twice a month but mostly had groceries delivered. Tr. 52.

When asked what prevents her from working, Brown cited her legs and

feet. Tr. 53. She couldn’t walk or move around and she was always tired. Tr.

53. Brown elevates her legs, which reduces her swelling, but once she gets up

and moves around, the swelling returns. Tr. 53. She uses a prescribed rollator

walker, which she had for about a year. Tr. 54. It kept her from falling. Tr. 54.

She also needed to use it to stand from a seated position. Tr. 54–55.

The ALJ discussed with the vocational expert Brown’s past work as a

hand packager. Tr. 58–59. The ALJ asked the vocational expert to determine

whether a hypothetical individual with the same age, education, and work

experience as Brown could perform Brown’s past work or any other work if the

individual was limited to light work with additional reaching, postural, and

environmental limitations. Tr. 59–60. The vocational expert answered that

such an individual could not perform Brown’s past work, but listed three

examples of other jobs that the individual could perform. Tr. 59–60. The ALJ

asked the vocational expert to identify jobs the individual could perform if she

was limited to sedentary,6 rather than light, work. Tr. 60. The vocational

expert listed three such jobs—waxer, final assembler, and bench hand. Tr. 60.

The ALJ then asked the vocational expert whether the first individual

6 The regulations define sedentary work as “lifting no more than 10

pounds at a time and occasionally lifting or carrying articles like docket files,

ledgers, and small tools. Although a sedentary job is defined as one which

involves sitting, a certain amount of walking and standing is often necessary

in carrying out job duties. Jobs are sedentary if walking and standing are

required occasionally and other sedentary criteria are met.” 20 C.F.R. §

404.1567(a).

he described, limited to light work, could still perform the jobs the vocational

expert identified if the individual needed to use a cane for walking. Tr. 61. The

vocational expert said that her answer would change, and that such an

individual could perform the following jobs: router, sorter, and information

clerk. Tr. 59, 61. She explained that these jobs could be performed while sitting

or standing, and because a cane only required the use of one hand, the

individual could carry an item in the other hand. Tr. 62. When asked if her

answer would change if this hypothetical individual needed a walker instead

of a cane, the vocational expert said that there would be no jobs for such an

individual. Tr. 62–63. The ALJ asked whether such an individual with a

walker could still perform any of the sedentary jobs, and the vocational expert

stated that such an individual could perform the sedentary jobs that she had

identified. Tr. 63.

Brown’s attorney asked the vocational expert if her answer would

change if the individual the ALJ had described needed to use a walker or a

cane for standing and walking, rather than just walking. Tr. 64–65. The

vocational expert answered that if the individual needed either assistive device

for standing and walking, there were no jobs for such an individual. Tr. 64–65.

The ALJ’s Decision

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

1. The claimant meets the insured status

requirements of the Social Security Act through

December 31, 2026.

2. The claimant has not engaged in substantial

gainful activity since September 29, 2022, the

alleged onset date (20 CFR 404.1571 et seq., and

416.971 et seq.).

3. The claimant has the following severe

impairments: osteoarthritis of the right hip,

postsurgical changes of the right shoulder, L4-5

degenerative disc disease with foraminal narrowing,

obesity, migraines, asthma, fibromyalgia,

obstructive sleep apnea, and lupus (20 CFR

404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or

combination of impairments that meets or medically

equals the severity of one of the listed impairments

in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525, 404.1526, 416.920(d),

416.925 and 416.926).

5. After careful consideration of the entire record,

the undersigned finds that the claimant has the

residual functional capacity to perform light work as

defined in 20 CFR 404.1567(b) and 416.967(b) except

she could lift and/or carry 20 pounds occasionally

and 10 pounds frequently. She could push/pull as

much as she could lift and/or carry. She could sit,

stand, or walk about 6 hours in an 8-hour workday.

She could occasionally overhead reach on the right.

She could occasionally climb ramps or stairs. She

could never climb ladders, ropes, or scaffolds. She

could occasionally stoop, kneel, crouch, or crawl. She

can never work at unprotected heights, around

dangerous moving machinery, or operate motor

vehicles. She cannot perform commercial driving.

She requires the use of a cane for ambulation.

6. The claimant is unable to perform any past

relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was … 41 years old, which is defined

as a younger individual age 18–49, on the alleged

disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education

(20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not an issue in this

case because the claimant’s past relevant work is

unskilled (20 CFR 404.1568 and 416.968).

10. Considering the claimant’s age, education, work

experience, and residual functional capacity, there

are jobs that exist in significant numbers in the

national economy that the claimant can perform (20

CFR 404.1569, 404.1569a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as

defined in the Social Security Act, from September

29, 2022, through the date of this decision (20 CFR

404.1520(g) and 416.920(g)).

Tr. 18–31.

Standard for Disability

Eligibility for social security benefit payments depends on the existence

of a disability. 42 U.S.C. §§ 423(a), 1382(a). “Disability” is defined as the

“inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which 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[.]” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C.

§ 1382c(a)(3)(A).

An ALJ is required to follow a five-step sequential analysis to make a

disability determination:

1. Is the claimant engaged in substantial gainful

activity? If so, the claimant is not disabled.

2. Does the claimant have a medically

determinable impairment, or a combination of

impairments, that is “severe”? If not, the

claimant is not disabled.

3. Does the claimant’s impairment meet or equal

one of the listed impairments and meet the

duration requirement? If so, the claimant is

disabled. If not, the ALJ proceeds to the next

step.

4. What is the claimant’s residual functional

capacity and can the claimant perform past

relevant work? If so, the claimant is not

disabled. If not, the ALJ proceeds to the next

step.

5. Can the claimant do any other work

considering the claimant’s residual functional

capacity, age, education, and work

experience? If so, the claimant is not disabled.

If not, the claimant is disabled.

20 C.F.R. §§ 404.1520, 416.920. see Jordan v. Comm’r of Soc. Sec., 548 F.3d

417, 422 (6th Cir. 2008). Under this sequential analysis, the claimant has the

burden of proof at steps one through four. Jordan, 548 F.3d at 423. The burden

shifts to the Commissioner at step five “to prove the availability of jobs in the

national economy that the claimant is capable of performing.” Id. “The

claimant, however, retains the burden of proving her lack of residual functional

capacity.” Id. If a claimant satisfies each element of the analysis and meets the

duration requirements, the claimant is determined to be disabled. Walters

Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).

Standard of review

A reviewing court must affirm the Commissioner’s conclusions unless it

determines “that the ALJ has failed to apply the correct legal standards or has

made findings of fact unsupported by substantial evidence in the record.”

Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence’ is a ‘term of art’” under which

“a court … asks whether” the “existing administrative record … contains

‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek

v. Berryhill, 587 U.S. 97, 102 (2019) (citations omitted). The substantial

evidence standard “is not high.” Id. at 103. Substantial evidence “is ‘more than

a mere scintilla’” but it “means only[] ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Id. (citations

omitted). The Commissioner’s “findings … as to any fact if supported by

substantial evidence [are] conclusive.” 42 U.S.C. § 405(g); Biestek, 587 U.S. at

99.

A court may “not try the case de novo, resolve conflicts in evidence, or

decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.

2007). Even if substantial evidence or a preponderance of the evidence

supports a claimant’s position, a reviewing court cannot overturn the

Commissioner’s decision “so long as substantial evidence also supports the

conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,

477 (6th Cir. 2003). This is so because there is a “zone of choice within which”

the Commissioner can act, without fear of judicial “interference.” Lindsley v.

Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009) (quoting Felisky v.

Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)).

Discussion

1. The ALJ did not run afoul of the rule in Early

Brown argues that the ALJ erred “when he applied the wrong standard

of review when he mostly adopted the residual functional capacity of the prior

Administrative Law Judge.” Doc. 7, at 12.

In Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir.

1997), the Sixth Circuit said that certain previous cases “clearly demonstrate

that the principles of res judicata can be applied against the Commissioner.

When the Commissioner has made a final decision concerning a claimant’s

entitlement to benefits, the Commissioner is bound by this determination

absent changed circumstances.” Id. at 842. The Social Security Administration

adopted this ruling as Acquiescence Ruling 98-4(6). See SSAR 98-4(6), 63 FR

29771-01, 1998 WL 274052 (June 1, 1998).

But in Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir.

2018), the Sixth Circuit said that “[w]hen an individual seeks disability

benefits for a distinct period of time, each application is entitled to review.

There is nothing in the relevant statutes to the contrary. And res judicata only

‘foreclose[s] successive litigation of the very same claim.’” Id. at 933 (“a claim

that one became disabled in 1990 is not the same as a claim that one became

disabled in 1994.”). The Social Security Administration rescinded Acquiescence

Ruling 98-4(6) and replaced it with Acquiescence Ruling 24-1(6), effective

December 2, 2024, to reflect the Sixth Circuit’s Earley decision. See SSAR 24-

1(6), 89 FR 92992, 2024 WL 5256889 (Nov. 25, 2024).

Brown’s claim covers October 4, 2022 to September 4, 2024. Tr. 15. This

is a distinct period from that of Brown’s previous claim, which covered the time

up to October 3, 2022. Tr. 15. So Brown’s current application is entitled to a

“fresh look.” See Dennis D. v. Comm’r of Soc. Sec., No. 23-3667, 2024 WL

1193662, at *4 (6th Cir. Mar. 20, 2024) (quoting Earley, 893 F.3d at 931).

At the outset of his decision, the ALJ stated that he was “not bound by

the principles of res judicata” to adopt the prior ALJ decision because he found

“that new and material evidence or changed circumstances have been

established after the prior [ALJ’s] decision dated October 3, 2022.” Tr. 15–16.

The ALJ therefore evaluated the evidence, gave it a “fresh look,” and found

that he was not bound by the prior ALJ’s decision. Indeed, the ALJ’s RFC

included a limitation due to Brown’s worsening condition that was not in the

prior ALJ decision. Compare Tr. 22, 28 (current ALJ decision), with Tr. 79

(prior ALJ decision). The ALJ’s decision conformed to Earley.

Brown argues that the ALJ applied the wrong legal standard because,

she claims, the ALJ’s “RFC determination [was] based on his prior

determination.” Doc. 7, at 13. But the ALJ is permitted to use the prior

determination as a starting point. See Earley, 893 F.3d at 934 (“Fresh review

is not blind review. A later administrative law judge may consider what an

earlier judge did if for no other reason than to strive for consistent decision

making”); see also See Dennis D., 2024 WL 1193662, at *6 (“it is perfectly

acceptable for a subsequent ALJ to presume the accuracy of a prior finding ….

Presuming accuracy is not the same as treating prior findings as binding.”).

Brown next contends that the ALJ erred because he “relied on the

partially persuasive findings by the state agency [reviewers] even though they

adopted the prior ALJ decision.” Doc. 7, at 14–15. But the ALJ recognized that

the reviewers adopted the prior ALJ decision. Tr. 28. The ALJ then explained

that Brown’s conditions “worsened and now [she] requires the use of a cane.”

Tr. 28. In other words, the ALJ gave a “fresh look” to the state agency

reviewers’ opinions and the evidence, explained his findings, and crafted a

different RFC. Brown has not explained how the ALJ erred in this regard.7

In support of her argument, Brown cites Dilauro v. Comm’r of Soc. Sec.,

No. 5:19-cv-2691, 2021 WL 1175415, at *4 (N.D. Ohio Mar. 29, 2021). Doc. 7,

at 17; Doc. 10, at 3. But Dilauro is not on point. There, the “ALJ’s opinion

stated at the beginning that ‘no new and material evidence exist[ed] to justify

not adopting the [RFC] from the previously adjudicated period.’” 2021 WL

1175415, at *3. The court wrote that “[i]t is hard to imagine a clearer example

of ‘considering the previous [RFC finding] a mandatory starting point’ for a

7 In her reply brief, Brown states that “[a]ccording to Defendant the fact

that the ALJ acknowledged the later submitted evidence and found that

Plaintiff needed a cane established that he provided a fresh look. This analysis

is incorrect and inconsistent with the ALJ’s decision.” Doc. 10, at 3. She

continues: “In this matter, the period of time under consideration since

February 23, 2022 was after the prior ALJ determination in December 2020.”

Id. Neither of the dates Brown cites appear to have any relevance to Brown’s

case. And she doesn’t explain why she believes that the ALJ’s analysis was

“incorrect and inconsistent with the ALJ’s decision.”

new claim.” Id. Here, in contrast, the ALJ found that there was new and

material evidence and expressly stated that he was not bound by the earlier

ALJ decision. Tr. 15. Also, the ALJ in Dilauro gave “great weight” to the state

agency reviewers opinions even though they “preceded … the most significant

developments in Plaintiff’s medical history since her previous claim—her May

2017 spine surgery and her October 2017 and August 2018 mental health

hospitalizations.” 2021 WL 1175415, at *4. Here, the ALJ found “partially

persuasive” the state agency reviewers’ opinions and expressly accounted for

later evidence showing that Brown needed a cane. Tr. 28. All told, Brown has

not shown that the ALJ ran afoul of the rule in Earley.

2. The ALJ did not err when evaluating Brown’s cane use

Brown argues that the ALJ’s finding that Brown needed a cane for

walking is not supported by substantial evidence and violated Social Security

rule 96-9p. Doc. 7, at 9.

If an assistive device is “not a necessary device for [a] claimant’s use, it

cannot be considered an exertional limitation that reduce[s] [the claimant’s]

ability to work.” Carreon v. Massanari, 51 F. App’x 571, 575 (6th Cir. 2002). To

be considered a restriction or limitation, an assistive device “must be so

necessary that it would trigger an obligation on the part of the Agency to

conclude that the [device] is medically necessary.” Murphy v. Astrue, No. 2:11-

cv-114, 2013 WL 829316, at *10 (M.D. Tenn. March 6, 2013) (citations omitted).

To be medically necessary, the record must reflect “more than just a subjective

desire on the part of the plaintiff as to the use of a[n] [assistive device].” Id.

(citation omitted). And there must be medical documentation “describing the

circumstances for which it is needed (i.e., whether all the time, periodically, or

only in certain situations; distance and terrain; and any other relevant

information).” Soc. Sec. Ruling 96-9p, 1996 WL 374185, *7 (S.S.A. July 2,

1996); see Golden v. Berryhill, No. 1:18-cv-636, 2018 WL 7079506, at *19 (N.D.

Ohio Dec. 12, 2018) (“a cane prescription [that] does not indicate ‘the

circumstances for which [the cane] is needed,’ … does not fulfil the

requirements under SSR 96-9p”), report and recommendation adopted, 2019

WL 415250 (N.D. Ohio Feb. 1, 2019).

The ALJ found that Brown needed a cane for walking. Tr. 22. Brown

challenges two aspects of this finding: that (1) Brown needed a cane, rather

than a rollator or walker, and (2) Brown needed an assistive device only while

walking, rather than while standing and walking. Doc. 7, at 9. Relatedly,

Brown also challenges the ALJ’s evaluation of Dr. Morales-Mena’s opinion. Id.

at 20.

The ALJ evaluated Dr. Morales-Mena’s opinion as follows:

On July 17, 2024, Anabelle Morales-Mena, M.D.

completed a questionnaire in which she stated that

she saw the claimant every three months since

August of 2022 (Ex. B12F/1). She was diagnosed

with lupus, rheumatoid arthritis, and fibromyalgia.

Her symptoms were low grade temperature, fatigue,

brain fog, shortness of break, atypical chest pain,

joint pain and swelling, weakness, tingling,

depression, and anxiety. She had impending fusion

treatments. She would need a cane or hand-held

assistive device for walking and standing all of the

time due to imbalance and [pain] (Ex. B12F/2). She

would be able to use her hands bilaterally for

twisting, fine manipulation, reaching in front of her

body, and reaching overhead less than 25% of the

time. She could rarely lift and carry 10 pounds and

occasionally lift and carry less than 10 pounds. She

would be off-task 25% of the workday. She would be

incapable of even “low stress” work. She could sit 10-

15 minutes at one time and stand 10-15 minutes at

one time (Ex. B12F/3). She could sit less than two

hours total in an 8-hour workday. She could

stand/walk less than 2 hours total in an 8-hour

workday. She would need to take frequent

unscheduled breaks during the work day. She would

need to elevate her legs to greater than 90 degrees,

for more than 50% of the workday. She would be

absent from work more than four days per month

(Ex. 12F/4). She would need to avoid loud noises,

fumes, gases, dust, cold air, and temperature

extremes. This opinion was partially persuasive only

to the extent that the record supported that the

claimant’s physical impairments worsened and she

had more pain and that she would need a cane for

ambulation. However, Dr. Morales-Mena’s opinion

was given on a checklist form and was not supported

by specific examination findings or diagnostic

evidence. On August 30, 2023, the claimant treated

with Julianna Lucas, APRN-CNP for routine follow

up (Ex. B13F/1). She had ongoing lower extremity

edema that improved with elevation. But she had

not received her compression hose, despite being

measured. Examination showed no joint swelling,

and normal rotation of motion of the joints (Ex.

B13F/2). There was no edema in the extremities and

no calf tenderness. Further, it was inconsistent with

the state agency physical consultants’ opinions.

Tr. 29.

Brown argues that she was prescribed a rollator “to assist with walking

as early as September 28, 2023,” and that she was observed at medical

appointments to use a cane and a rollator. Doc. 7, at 11 (citing Tr. 822, 835).

She doesn’t say that Dr. Morales-Mena prescribed the rollator.8 Dr. Morales-

Mena’s opinion doesn’t say which type of assistive device Brown would need.

The form Dr. Morales-Mena completed first references “the need for a cane”

and then asks whether the patient “need[s] a cane or other hand-held assistive

device for walking, standing or both,” to which Dr. Morales-Mena answered

“yes.” Tr. 1580. So it’s not clear whether Dr. Morales-Mena opined that Brown

needed a rollator, versus a cane, nor whether the doctor’s “yes” answer was to

standing, walking, or both. Tr. 1580. These types of ambiguous, compound

questions that elicit yes-or-no answers highlight why check-box or check-list

forms are disfavored. And it is true, as the ALJ observed, that Dr. Morales-

Mena’s check-list form wasn’t “supported by specific examination findings or

diagnostic evidence.” Tr. 29. This is an appropriate reason to discount opinion

evidence. See Dollinger v. Comm’r of Soc. Sec., No. 22-3359, 2023 WL 1777386,

at *4 (6th Cir. Feb. 6, 2023) (a check-box form completed by a treating source

which only contained a brief explanatory note for the assessed limitations “is

the kind of ‘vague and unhelpful’ opinion that is patently deficient and could

not have been credited by the Commissioner”) (citation omitted).

8 In her function report, Brown stated that Dr. Morales-Mena prescribed

a cane. Tr. 281. The treatment records Brown cites showing that she had a

rollator prescribed are from a pain management office, Tr. 821–22, and do not

state who prescribed it. A September 2023 physical therapy treatment note

indicates that Brown discussed with the therapist the “benefits of rollator vs.

cane” and that Brown “request[ed] a referral from MD for rollator.” Tr. 835.

Brown resists the ALJ’s finding that Dr. Morales-Mena didn’t support

her check-list form with specific exam findings or diagnostic evidence. Doc. 7,

at 20. She cites Dr. Morales-Mena’s exam findings in another treatment note

dated the same day. Id. (citing Tr. 1380). But the list of “positive” findings

Brown cites in this treatment note weren’t exam findings, they were Brown’s

reports of symptoms. Tr. 1380–81. In fact, it doesn’t appear that Dr. Morales-

Mena examined Brown that day. Tr. 1379–87. In any event, Dr. Morales-Mena

didn’t cite in her opinion any specific exam findings or diagnostic evidence to

support her assistive-device finding, despite the form’s invitation to do so.9 See

Tr. 1579 (form instructing the provider to “[a]ttach relevant treatment notes,

radiologist reports, laboratory and test results as appropriate”); see Chidsey v.

Kijakazi, No. 1:20-cv-1858, 2022 WL 4599195, at *10 (N.D. Ohio Sept. 30, 2022)

(“Plaintiff’s citations to treatment records not actually relied upon or identified

by the medical source does not render the opinion ‘supportable,’ as the

regulations specifically look to the medical source’s own presentation of

objective evidence and/or supporting explanations rather than a claimant’s

post hoc rationale.”). Brown has not shown that the ALJ erred when finding

unsupported Dr. Morales-Meno’s opinion.10

9 The only “clinical findings and objective signs” noted by Dr. Morales-

Mena on the opinion form were untethered to any of her assessed limitations

and included Brown’s “elevated inflammatory markers, anemia, [illegible],

[and] low vitamin D.” Tr. 1579.

10 Brown also argues that evidence supports a need to elevate her legs

because she experienced leg edema. Doc. 7, at 20–21. The ALJ acknowledged

Next, Brown cites evidence that she believes supports her need for a

rollator and for any assistive device while standing. Doc. 7, at 11. In her reply

brief, she states that she “needed the walker for both standing and walking”

and writes, “[e]ven the ALJ acknowledged … that [Brown] had diminished

strength in her lower extremities, required the use of her bilateral upper

extremities to stand, and had an antalgic gait with a decreased cadence.” Doc.

10, at 2 (citing Tr. 28). But this does not show that Brown needed an assistive

device while standing. Using one’s arms to rise from a seated to a standing

position is not the same thing as needing an assistive device while one remains

standing. Brown has not cited any evidence—other than Dr. Morales-Mena’s

opinion, which the ALJ properly discounted—that she needed any assistive

device while standing. Indeed, the reference to the rollator prescription she

cites indicates that Brown was to use the rollator “to assist walking as needed.”

Doc. 7, at 11 (citing Tr. 822); see also id. (citing Tr. 835 (September 2023

physical therapy notes showing Brown used a “cane, rollator” while

ambulating), and Tr. 743 (April 2024 spine institute note that Brown “has been

using her walker and her cane as needed for gait stability”)); see also Tr. 824

(doctor’s note that Brown “uses a wheeled walker for distance”); Tr. 924

(physical therapy note listing Brown’s “[g]ait [d]evice” as a “cane”); Tr. 783

that Brown at times experienced leg edema but at other times did not. Tr. 25,

27. The ALJ noted this inconsistency when discussing Dr. Morales-Meno’s

opinion. Tr. 29. The ALJ also remarked that Brown had not received her

compression hose to treat her leg edema. Tr. 29. Brown does not challenge this

finding by the ALJ.

(neurology note that Brown reported trouble walking and that she used a

walker to “ambulate”).

In short, Brown has cited evidence that she believes supports her need

for a rollator or any assistive device while standing, but she has not shown that

the ALJ’s finding that she needed a cane for walking is unsupported by

substantial evidence. And even if it could be said that the ALJ erred when

finding that Brown needed a cane, rather than a rollator, the vocational expert

testified that if so, there were several jobs at the sedentary level that Brown

could perform. Tr. 60–63; see Austin v. Comm’r of Soc. Sec., No. 1:19-cv-2380,

2020 WL 9460505, at *14 (N.D. Ohio July 7, 2020) (“[C]ourts throughout the

Sixth Circuit have held that an ALJ’s failure to include a use-of-a-cane

limitation (which would have precluded light work) in the RFC was harmless

error when the VE’s testimony identified several jobs at the sedentary level

that would be available to the claimant had the use-of-a-cane limitation been

integrated into the RFC finding”) (collecting cases), report and

recommendation adopted, 2021 WL 1540389 (N.D. Ohio Apr. 19, 2021).11

11 In her reply brief, Brown says that the Commissioner’s argument on this

point is not supported by the hearing testimony because the vocational expert

said that a hypothetical individual who needed any assistive device for

standing and walking could not perform any work. Doc. 10, at 1–2. This is true.

See Tr. 64–65. But the vocational expert testified that an individual who

needed a cane or a walker for “ambulation” could perform jobs. Tr. 60–63. Both

sides conflate these two restrictions, but they are separate findings. And while

Brown’s rollator argument is arguably stronger, since Brown was prescribed a

rollator for ambulating, her argument that she needed a device to stand is not

supported by the record. Brown hasn’t identified any evidence other than Dr.

Conclusion

For the reasons explained above, I recommend that the Court affirm the

Commissioner’s decision.

Dated: March 26, 2026

/s/ James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th

Cir. 2019).

Morales-Mena’s opinion that she needed an assistive device to stand, and the

ALJ found that opinion unpersuasive.