Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DEREK B.1, 	Case No. 3:25-cv-83
Plaintiff, 	Newman, J.
Litkovitz, MJ.
vs.
COMMISSIONER OF 	REPORT AND
SOCIAL SECURITY, 	RECOMMENDATION
Defendant.
Plaintiff, Derek B. brings this action under 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of Social Security (Commissioner) denying plaintiff’s
application for Disability Insurance benefits (DIB). This matter is before Court on plaintiff’s
Statement of Errors (Doc. 6), the Commissioner’s response in opposition (Doc. 9), and plaintiff’s
reply (Doc. 11).
I. Procedural Background
In October 2023, plaintiff protectively filed an application for DIB alleging disability
beginning November 23, 2022, due to post-traumatic stress disorder, anxiety, depression, cervico-
occipital neuralgia, left shoulder radiculopathy, obstructive sleep apnea, cervical intervertebral
degeneration, tight tendons in bilateral knees, low mobility, and high blood pressure. (Tr. 205-
210, Tr. 251). The application was denied initially and on reconsideration. Plaintiff, through
counsel, requested and was granted a de novo telephone hearing before administrative law judge
(ALJ) Genevieve Adamo. Plaintiff and a vocational expert (VE) appeared telephonically and
testified at the hearing on October 23, 2024. (Tr. 41-66). On November 22, 2024, the ALJ issued
1 Pursuant to General Order 22-01, due to significant privacy concerns in social security cases, any opinion, order,
judgment or other disposition in social security cases in the Southern District of Ohio shall refer to plaintiffs only by
their first names and last initials.
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a decision denying plaintiff’s application. (Tr. 12-36). The Appeals Council denied plaintiff’s
request for review, making the ALJ’s decision the final decision of the Commissioner. (Tr. 1-6).
II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that 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).
The impairment must render a claimant unable to engage in the work previously performed or in
any other substantial gainful employment that exists in the national economy. 42 U.S.C. §
423(d)(2).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment – i.e., an impairment that significantly limits his or her physical
or mental ability to do basic work activities – the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant’s impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
disabled.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four
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steps of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548
(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to
perform the relevant previous employment, the burden shifts to the Commissioner to show that
the claimant can perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir.
1999).
B. The Administrative Law Judge’s Findings
The ALJ applied the sequential evaluation process and made the following findings of fact
and conclusions of law:
1. [Plaintiff] meets the insured status requirements of the Social Security Act
through December 31, 2026.
2. [Plaintiff] has not engaged in substantial gainful activity since November 23,
2022, the alleged onset date (20 CFR 404.1571 et seq.).
3. [Plaintiff] has the following severe impairments: obesity; osteoarthritis and
impingement 	syndrome 	of 	the 	left 	shoulder 	status-post 	rotator 	cuff 	repair;
chondromalacia of the left patella; right knee effusion; post-traumatic stress disorder
(PTSD); 	generalized 	anxiety 	disorder 	(GAD); 	panic 	disorder; 	and 	alcohol
dependence (20 CFR 404.1520(c)).
4. [Plaintiff] 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 and 404.1526).
5. After careful consideration of the entire record, the [ALJ] finds that [plaintiff] has
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except he can frequently push or pull with the bilateral upper
extremities; cannot reach overhead but can frequently reach in all other directions
with the left (non-dominant) upper extremity; never climb ladders, ropes, or
scaffolds; frequently climb ramps or stairs, kneel, crouch, or crawl; he must avoid
unprotected heights, heavy machinery, and commercial driving; he is able to
understand, remember, and carry out simple and detailed, but not complex,
instructions; he cannot perform work requiring a specific production rate pace, such
as assembly-line work, or an hourly production quota, but he can meet production
requirements that allow a flexible and goal-oriented pace; he can maintain the focus,
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persistence, concentration, pace, and attention to engage in such tasks for two-hour
increments, for eight-hour workdays, within the confines of normal work breaks and
lunch periods; he can deal with occasional changes in a routine work setting; and he
can tolerate frequent interaction with supervisors, coworkers, and the general public.
6. [Plaintiff] is unable to perform any past relevant work (20 CFR 404.1565).2
7. [Plaintiff] was born [in] . . . 1978, and was 44 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date (20 CFR
404.1563).
8. [Plaintiff] has at least a high school education (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding that
[plaintiff] is “not disabled,” whether or not [plaintiff] has transferable job skills (See
SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. 	Considering 	[plaintiff]’s 	age, 	education, 	work 	experience, 	and 	residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that [plaintiff] can perform (20 CFR 404.1569 and 404.1569a).3
11. [Plaintiff] has not been under a disability, as defined in the Social Security Act,
from November 23, 2022, through the date of this decision (20 CFR 404.1520(g)).
(Tr. 17-36).
C. Judicial Standard of Review
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
2 Plaintiff’s past relevant work was as a Combat Crew Member, a very heavy exertion position as actually and as
generally performed. (Tr. 34, 62).
3 Relying on the VE’s testimony, the ALJ found plaintiff would be able to perform the requirements of representative
light, unskilled occupations such as marker (59,000 jobs in the national economy), garment sorter (23,000 jobs in the
national economy), or router (34,000 jobs in the national economy). (Tr. 35, 63). In the ALJ’s decision, she referred to
these as “medium exertion,” but in context, other references to light work it clear that this was a scrivener’s error.
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The Commissioner’s findings must stand if they are supported by “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” 	Biestek v. Berryhill, 587
U.S. 97, 103 (2019) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
Substantial evidence consists of “more than a scintilla of evidence but less than a preponderance. .
. .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In deciding whether the
Commissioner’s findings are supported by substantial evidence, the Court considers the record as
a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
D. Specific Errors4
Plaintiff argues that “the ALJ’s mental RFC assessment is unsupported by any creditable
medical opinion evidence whatsoever and, thus, the ALJ implicitly found that the evidence
was insufficient and should have further developed the record.” (Doc. 6 at PAGEID 1358).
Plaintiff also argues that the ALJ improperly relied on plaintiff’s demeanor and presentation
during the administrative hearing, which he refers to as “sit and squirm” jurisprudence. (Id.).
A. Duty to develop the record
1. Mental RFC
4 Plaintiff does not raise any arguments related to his physical impairments, and any such arguments are therefore
deemed waived. See Watts v. Comm’r of Soc. Sec., No. 1:16-cv-319, 2017 WL 430733, at *11 (S.D. Ohio Jan. 31,
2017) (argument waived where plaintiff did not “develop it either legally or factually in the Statement of Errors”)
(report and recommendation), adopted, 2017 WL 680538 (S.D. Ohio Feb. 21, 2017).
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Two state agency psychological consultants reviewed plaintiff’s file, and these were the
only medical sources to opine on plaintiff’s mental limitations. Audrey Todd, Ph.D., determined
that there was insufficient evidence to render an opinion on plaintiff’s mental RFC (see Tr. 70),
and the ALJ therefore did not rely on her opinion. (Tr. 32). Vicki Warren, Ph.D., reviewed the
file on reconsideration, noted that she had reviewed additional medical records, and opined that
plaintiff had no more than mild limitation in any of the paragraph “B” mental functioning areas.
(Tr. 75-76). The ALJ did not find Dr. Warren’s opinion persuasive because it was not supported
by the more recent record evidence, and it was inconsistent with other medical evidence detailed
in the ALJ’s decision. (Tr. 33). The ALJ concluded that more recent medical evidence
demonstrated that plaintiff had moderate limitations in three of the four paragraph “B” mental
functioning areas. (Id.). 	As a result, the ALJ rejected the state agency medical consultant
opinions related to plaintiff’s mental impairments. (Tr. 32-33).
2. Arguments
While plaintiff acknowledges that the ALJ was not required to adopt any particular
medical opinion, he argues that an ALJ may not substitute her lay judgment where an expert
opinion is required. He argues that the ALJ’s duty to develop the record includes a duty to
complete an incomplete record, and the record here is incomplete because no accepted medical
source “meaningfully opined” on plaintiffs mental impairments. (Doc. 6 at PAGEID 1367).
The Commissioner argues in response that the ALJ extensively discussed and based her
RFC determination on substantial non-opinion evidence. The Commissioner points to the ALJ’s
discussion of plaintiff’s subjective symptom reports, reported activities of daily living, medical
records related to mental impairments, and their consistency with one another. The
Commissioner notes that the ALJ explained why she did not rely on a letter from plaintiff’s
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counselor or plaintiff’s Department of Veterans Affairs disability rating. The Commissioner
emphasizes that it is precisely the province of the ALJ to determine a claimant’s RFC based on
the evidence of record.
In reply, plaintiff maintains that while the ALJ need not adopt a particular medical opinion
in her RFC determination, the failure to do so here was tantamount to not fully developing the
record as required under the regulations.
3. Analysis
The ALJ is charged with the final responsibility in determining a claimant’s RFC. See 20
C.F.R. § 404.1546(c). A claimant’s RFC is an assessment of “the most [a claimant] can still do
despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1). A claimant’s RFC assessment must be
based on all the relevant medical and other evidence in his case file. 20 C.F.R. § 404.1545(a)(3).
The governing regulations5 describe five different categories of evidence: (1) objective medical
evidence, (2) medical opinions, (3) other medical evidence, (4) evidence from nonmedical
sources, and (5) prior administrative medical findings. 20 C.F.R. § 404.1513(a)(1)-(5). With
regard to two of these categories—medical opinions and prior administrative findings—an ALJ is
not required to “defer or give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) or prior administrative finding(s) including those from [the claimant’s]
medical sources.” 20 C.F.R. § 404.1520c(a).
As for development of the record, “[t]he ALJ has discretion to determine whether
additional evidence is necessary.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 275 (6th Cir.
2010). The responsibility for record development in the disability context is subject to some
5 Plaintiff’s application was filed after March 27, 2017. Therefore, it is governed by the revised
regulations redefining how evidence is categorized and evaluated when an RFC is assessed. See 20 C.F.R. §§
404.1513(a), 404.1520c.
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tension in relevant law and regulations. On one hand, under 20 C.F.R. § 404.1545(a)(3), “before
[the Social Security Administration] make[s] a determination that you are not disabled, [it is]
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 also id. at § 404.1512(b)(1) (“Before [the Social Security
Administration] make[s] a determination that you are not disabled, we will develop your complete
medical history. . . . We will make every reasonable effort to help you get medical evidence. . .
.”). The Sixth Circuit has noted that “develop[ing] a full and fair record” is a “basic obligation”
of the ALJ. Kidd v. Comm’r of Soc. Sec., 283 F. App’x 336, 344 (6th Cir. 2008) (quoting Lashley
v. Sec’y of Health and Human Servs., 708 F.2d 1048, 1051 (6th Cir. 1983)).
On the other hand, under 20 C.F.R. § 404.1512(a)(1), “[i]n general, you have to prove to
us that you are . . . disabled.” A plaintiff has the burden of proof on the first four steps of the
disability evaluation process. Rabbers, 582 F.3d at 652; Wilson v. Comm’r of Soc. Sec., 280 F.
App’x 456, 459 (6th Cir. 2008) (“[T]his court repeatedly affirms that the claimant bears the
ultimate burden of proving disability.”). Balancing these competing principles, the Sixth Circuit
has held that the duty to conduct a full inquiry “does not require [record development] at
government expense unless the record establishes that such [record development] is necessary to
enable the [ALJ] to make the disability decision.” Landsaw v. Sec’y of Health & Human Servs.,
803 F.2d 211, 214 (6th Cir. 1986) (quoting Turner v. Califano, 563 F.2d 669, 671 (5th Cir.
1977)).
In this case, the ALJ’s RFC determination is based on substantial evidence, and the ALJ
was under no obligation to further develop the record. The ALJ’s decision reflects a thorough
review of the evidence of record, beginning with her discussion of the paragraph “B” criteria.
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The ALJ considered the first functional area of the paragraph “B” criteria—understanding,
remembering, or applying information. The ALJ contrasted plaintiff’s statements in his function
report suggesting difficulty in understanding, remembering, or applying information with
plaintiff’s testimony and other parts of that report that showed plaintiff prepared simple meals,
contributed to household chores, ordered food online, paid bills, counted change, and handled a
savings account. (Tr. 20-21, referring to Tr. 257-64 and Tr. 51-59). The ALJ also considered
plaintiff’s report that he could manage his own funds, which requires significant cognitive
facilities. (Tr. 21). The ALJ further reviewed plaintiff’s mental status examinations and noted
that “all” showed intact memory and average or appropriate fund of knowledge (see Tr. 21,
referring to Tr. 494, 496, 1051-52, 1120-21, 1303) and none showed reported memory issues (see
id., referring to Tr. 392, 425, 461, 494, 539, 1233, 1253, 1282, 1301). The ALJ reasonably found
no limitation in this mental functioning area. (Tr. 21).
Next, the ALJ addressed the functional area of interacting with others. (Id.). The ALJ
considered plaintiff’s function report and testimony with respect to his reported difficulties in
interacting with others. (Id., referring to Tr. 257-64 and Tr. 51-59). The ALJ contrasted
plaintiff’s reported difficulties, however, with the fact that he reported interacting with friends at
least once per week and seeing a counselor weekly. (Id., referring to Tr. 53, 56). While
acknowledging certain records that showed plaintiff’s presentation on examination as tired,
depressed, or frustrated, the ALJ noted that most medical records reflected plaintiff’s
unremarkable mood. (Id., referring to Tr. 341-42, 394, 426, 462, 475, 478, 480-81, 484-85, 496,
504-05, 507, 509, 514, 529, 541 (mood okay/pleasant/good/euthymic)). The ALJ then
summarized records from medication management and primary care visits between March of
2023 and September of 2024. (Tr. 21-22). While acknowledging certain remarkable findings
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(plaintiff reporting an altercation with his fiancé, difficulty sleeping, and a PTSD flare up), the
ALJ explained that most records reflected improvement with medication (see Tr. 22, referring to
Tr. 388, 1229), unremarkable mental status examination findings (id., referring to Tr. 392-95,
408, 461-63, 494-97, 1233-35, 1254-55), and that plaintiff’s panic disorder was eventually
assessed as in “partial remission” (id., referring to Tr. 1238, 1258). This is substantial evidence
supporting the ALJ’s assessment of moderate limitation in this mental functioning area. (Tr. 22).
The ALJ also considered plaintiff’s function report and testimony with respect to his
reported difficulties in the third functional area of the paragraph “B” criteria—concentrating,
persisting, or maintaining pace. (Tr. 22, referring to Tr. 257-64 and Tr. 51-59). Plaintiff alleged
difficulty with competing tasks and concentration. The ALJ contrasted this, however, with
plaintiff’s reported abilities to prepare meals, order food online, do the dishes, do yard work, and
care for pets. (Id., referring to Tr. 257-64 and Tr. 54). The ALJ also noted that examination
findings do not demonstrate a marked or serious limitation of functioning, referencing a series of
records showing that plaintiff’s attention and concentration abilities were within normal limits.
(Tr. 22-23, referring to Tr. 395, 427, 463, 496, 541, 605, 740, 809-10, 854, 873, 943, 1051, 1095,
1235, 1255, 1284, 1303). The ALJ also compared plaintiff’s testimony that he experiences three
to four panic attacks each week with the medical record. Notably, at a medication management
appointment in March 2023, plaintiff reported only two panic attacks since December 2022,
lasting 20 minutes each. (Tr. 23, referring to Tr. 490). The provider assessed his panic disorder
as well controlled. (Id., referring to Tr. 500). In May 2024, plaintiff’s panic disorder was
assessed as being in partial remission. (Id., referring to Tr. 1258). In September 2024, plaintiff’s
panic attacks were reduced with a change in medication, and his provider again assessed his panic
disorder as being in partial remission. (Id., referring to Tr. 1229, 1238). The ALJ repeated her
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summary of plaintiff’s medication and primary care visit records between March of 2023 and
September 2024 as mostly unremarkable with respect to reported mental health symptoms or
findings on examination. (Tr. 23). Based on that summary and the other records discussed, the
ALJ reasonably assessed a moderate limitation in this mental functioning area.
As for the fourth functional area of the paragraph “B” criteria—adapting or managing
oneself—the ALJ again considered reported difficulties reflected in plaintiff’s function report and
testimony. (Tr. 23, referring to Tr. 257-64 and Tr. 51-59). The ALJ contrasted this, however,
with plaintiff’s ability to care for pets, prepare simple meals, do household chores, pay bills, count
change, handle a savings account, manage his medications and counseling appointments, and
remain sober. (Id.). The ALJ noted that plaintiff’s mental status examinations generally showed
fair, good, or unremarkable insight and normal grooming. (Tr. 23-24, referring to Tr. 496-97,
1051-52, 1120-21, 1283-84, 1302-03). The ALJ reasonably determined that while the record as a
whole demonstrated some degree of impairment, plaintiff has no worse than moderate limitations
in this area of functioning. This conclusion supported by substantial evidence.
The ALJ also acknowledged the medical records reflecting remarkable symptom reports
or objective findings beginning in June 2022—namely, those describing alcohol abuse,
nightmares, flashbacks, and panic attacks. (See Tr. 28). The ALJ explained that plaintiff
underwent inpatient treatment for alcohol use, aftercare treatment, and group therapy. (Tr. 28-
29). The ALJ reiterated a summary of plaintiff’s medication management and primary care visits
between March of 2023 and September of 2024. (Id.). On this basis, the ALJ concluded that
“[a]side from some findings related to mood and reports of difficulty sleeping, the claimant’s
mental status examination and psychological exam findings demonstrated generally that the
claimant’s impairments are well controlled with medication and with counseling/therapy. The
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evidence supports mental functional limitations, but not to the extent alleged.” (Tr. 29). Based
on the record as a whole, the ALJ’s findings are supported by substantial evidence.
Critically, plaintiff fails to argue that the ALJ erred in any part of this analysis, such as by
cherry picking records or not properly evaluating plaintiff’s symptoms under applicable
regulations. Plaintiff’s core argument is simply that this analysis was incomplete. Plaintiff relies
heavily on the following passage from: Anita Lynn H.-J. v. Comm’r of Soc. Sec. Admin., No.
3:21-cv-025, 2022 WL 10686665 (S.D. Ohio June 23, 2022):
[W]hile there is ‘no bright line test’ for determining whether the ALJ has failed to
fully develop the record, [Lashley v. Sec’y of Health and Human Servs., 708 F.2d
1048, 1052 (6th Cir. 1983)], matters are subject to remand if the ‘ALJ makes a
finding of work-related limitations based on no medical source opinion or an
outdated source opinion that did not include consideration of a critical body of
objective medical evidence.’ Kizys v. Comm’r of Soc. Sec., No. 3:10-cv-25, 2011
WL 5024866, at *1-3 (N.D. Ohio Oct. 21, 2011).
Id. at *3 (emphasis added). In that case, however, the ALJ had adopted the opinion of two non-
examining state agency physicians despite the fact that those physicians had not reviewed
“numerous examinations with abnormal findings” that included several x-rays of different parts of
the body reflecting impairments. Id. at *4. The Court concluded that further development was
necessary given this “critical body of objective medical evidence,” which had not been accounted
for by adopting the state agency opinions. Id. (quoting Kizys v. Comm’r of Soc. Sec., No. 3:10-
cv-25, 2011 WL 5024866, at *13 (N.D. Ohio Oct. 21, 2011)). This case is readily distinguishable
from the case at bar, where plaintiff appears to concede that the ALJ properly considered all of the
evidence in the record.
Plaintiff also relies on Susan T. v. Comm’r of Soc. Sec., No. 3:22-cv-41, 2023 WL
2594989 (S.D. Ohio Mar. 22, 2023), where the Court remanded the case for further development
of the record. In that case, the ALJ did not rely on any medical opinions because the state agency
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consultants had found that there was “insufficient evidence” on which to form an opinion. In
addition, the ALJ acknowledged that “there was not a ‘plethora of information’” otherwise
regarding plaintiff’s mental or physical impairments, which were “significant[,] . . . complex[,]”
and “overlapping. . . .” Id. at *8. The Court concluded that “no medical evidence” at all
supported the ALJ’s RFC determination. Id. at *7. By contrast, in the case at bar, the ALJ
considered substantial non-opinion medical and other evidence.
Moreover, the Sixth Circuit has rejected the contention that an RFC determination must be
based on a medical opinion. See Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th Cir.
2013) (“[T]he ALJ was not required to base her determination on a medical opinion, and
substantial evidence, including objective medical evidence, supported her decision.”); Shepard v.
Comm’r of Soc. Sec., 705 F. App’x 435, 442 (6th Cir. 2017) (quoting Rudd, 531 F. App’x at 728)
(“Shepard also argues that the ALJ’s RFC lacks substantial evidence because no physician opined
that Shepard was capable of light work. But ‘the ALJ is charged with the responsibility of
determining the RFC based on her evaluation of the medical and non-medical evidence.’”);
Mokbel-Aljahmi v. Comm’r of Soc. Sec., 732 F. App’x 395, 402 (6th Cir. 2018) (citing Rudd and
Shepard and finding no error by the ALJ in giving virtually no weight to the medical opinions in
the record, and finding that substantial evidence supported the RFC determination where “[t]he
ALJ undertook a laborious evaluation of the medical record”); Tucker v. Comm’r of Soc. Sec., 775
F. App’x 220, 226 (6th Cir. 2019) (“No bright-line rule exists in our circuit directing that medical
opinions must be the building blocks of the residual functional capacity finding, but the
administrative law judge must make a connection between the evidence relied on and the
conclusion reached. The administrative law judge made that connection here.”). The ALJ here
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undertook a comprehensive and detailed examination of the medical record, and the Court finds
no error in the ALJ’s lack of reliance on medical opinion evidence.
The plaintiff in Davis v. Comm’r of Soc. Sec. Admin., No. 2:18-cv-10228, 2019 WL
2051899 (E.D. Mich. Feb. 19, 2019) (report and recommendation), adopted, 2019 WL 1324239
(E.D. Mich. Mar. 25, 2019), made a very similar argument to plaintiff here—asserting the sole
error was the fact that the ALJ failed to rely on a medical opinion in formulating the RFC. Id. at
*5. The court concluded that substantial evidence supported the ALJ’s decision because, the lack
of reliance on a medical opinion notwithstanding, he had clearly articulated the evidence he
considered and explained inconsistencies in the evidence. Id. at *6. The court also noted that,
like here, the plaintiff “fail[ed] to suggest what additional limitations the ALJ should have
included in the RFC assessment, or identify any evidence that would compel greater limitations.”
Id. Plaintiff here asserts that he has been “diagnosed with psychiatric impairments, been treated
significantly for those impairments, and has endorsed symptoms related to his mental health” but
fails to identify any further limitations warranted by those generic observations. (Doc. 6 at
PAGEID 1367).
The ALJ carefully considered the evidence of record regarding plaintiff’s mental
impairments, including plaintiff’s testimony and function report, medical records related to his
mental impairments, and state agency opinions. Plaintiff does not challenge the ALJ’s assessment
of this evidence; the ALJ was not required to secure a medical opinion before determining a
plaintiff’s RFC where substantial evidence otherwise supports the ALJ’s RFC determination; and
there is no unresolved conflict in the record evidence. There was sufficient evidence in the record
for the ALJ to make a disability determination, and that decision is substantially supported by the
record. This assignment of error should be overruled.
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B. “Sit and Squirm”
In this narrow assignment of error, plaintiff faults the ALJ for her several references to
plaintiff’s normal/appropriate demeanor at the hearing as evidence supporting her RFC
determination (see Tr. 21-24). The Commissioner argues in response that while such references
might have amounted to error if the ALJ had assigned them inordinate weight or otherwise
ignored relevant medical evidence, the ALJ’s RFC determination here is supported by substantial
evidence. The Commissioner also argues that it is not “categorically inappropriate for an ALJ to
make personal observations from the hearing. . . .” (Doc. 9 at PAGEID 1384).
As explained above, the ALJ’s decision is based on substantial evidence. It was therefore
not error for the ALJ to remark on plaintiff’s hearing demeanor. See 20 C.F.R. § 404.1529 (“We
will consider all of the evidence presented, including . . . observations by our employees. . . .”).
This assignment of error should be overruled.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s statement of errors (Doc. 6) be OVERRULED and the Commissioner’s
non-disability finding be AFFIRMED.
2. Judgment be entered in favor of the Commissioner and this case be closed on the
docket of the Court.
Date: _________________________ 	__________________________________
Karen L. Litkovitz
United States Magistrate Judge
12/23/2025
Case: 3:25-cv-00083-MJN-KLL Doc #: 12 Filed: 12/23/25 Page: 15 of 16 PAGEID #: <pageID>

16
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEREK B., 	Case No. 3:25-cv-83
Plaintiff, 	Newman, J.
Litkovitz, MJ.
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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