Boetticher v. Commissioner of Social Security

1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
GREGORY LEE BOETTICHER, ) CASE NO. 3:25-cv-01220-JRK
)
Plaintiff, ) JUDGE JAMES R. KNEPP II
)
v. ) MAGISTRATE JUDGE
) REUBEN J. SHEPERD
FRANK BISIGNANO, )
Commissioner of Social Security, ) REPORT AND RECOMMENDATION
)
Defendant. )
I. Introduction
Plaintiff, Gregory Lee Boetticher (“Boetticher”), seeks judicial review of the final
decision of the Commissioner of Social Security, denying his application for Supplemental
Security Income (“SSI”) under Title XVI of the Social Security Act. This matter is before me
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), and Local Rule 72.2(b). Boetticher raises one issue
on review of the Administrative Law Judge’s (“ALJ”) decision, arguing that the ALJ improperly
relied on her own lay opinion in assessing his residual functional capacity (“RFC”). (ECF Doc.
7, p. 1). Because the ALJ applied proper legal standards and reached a decision supported by
substantial evidence, I recommend that the Commissioner’s final decision denying Boetticher’s
application for SSI be affirmed.
II. Procedural History
Boetticher protectively filed for SSI on December 19, 2022, alleging a disability onset
date of December 3, 2022. (Tr. 191-94). The claims were denied initially and on reconsideration.
(Tr. 78, 97). Boetticher then requested a hearing before an ALJ. (Tr. 118). Boetticher,
represented by counsel, and a Vocational Expert (“VE”) testified before an ALJ on January 19,
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2024. (Tr. 35-77). On May 24, 2024, the ALJ issued a written decision finding Boetticher not
disabled. (Tr. 14-34). The Appeals Council denied his request for review on April 11, 2025,
making the hearing decision the final decision of the Commissioner. (Tr. 1-6; see 20 C.F.R. §§
404.955, 404.981). Boetticher timely filed this action on June 10, 2025. (ECF Doc. 1).
III. Evidence
A. Personal, Educational, and Vocational Evidence
Boetticher was born September 11, 1976. (Tr. 191). He was 46 years old on the protected
filing date making him a younger individual according to agency regulations. (Tr. 79). He
completed the 10th grade. (Tr. 219). He has past relevant work as a machine operator, DOT
754.685-014, SVP 2, light exertional level; construction worker, DOT 869.664-014, SVP 4,
heavy exertional level; and tow motor operator, DOT 921.683-050, SVP 3, medium exertional
level as generally performed, and light exertional level as he performed it. (Tr. 27).
B. Relevant Medical Evidence
On April 12, 2022, Boetticher established as a patient with Dr. Kaitlin Schwerer, D.O.
(Tr. 290). He reported to her that he had prior assessments of arthritis in his lumbar spine and
carpal tunnel syndrome in his bilateral wrists. (Id.). He also complained of pain in his hands, his
right knee, and sometimes in his left pelvis. (Id.). Boetticher suggested that his pain is related to
the work he does as a roofer. (Id.).
The following day Boetticher presented to the emergency department complaining of
lower back pain. (Tr. 322). Examination notes indicate mild lumbar paraspinal tenderness to
palpation bilaterally, with normal gait,strength intact, and that Boetticher received a Toradol
injection for the pain. (Id.). X-rays showed lower lumbar degeneration with no acute findings
(Tr. 325), minimal mid-cervical listhesis with cervical spondylosis most prominent at C5-6 (Tr.
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332), and moderate thoracic spondylosis (Tr. 334). Boetticher returned to see Dr. Schwerer on
April 15, 2022, claiming extreme pain in his mid- and low-back. (Tr. 294). His strength was
measurend as 5/5 in his bilateral lower extremities, and he had tenderness to light palpation over
the paraspinal muscles in his bilateral thoracic and lumbar spine. (Id.). He returned to the
emergency department on May 12, 2022, again complaining of lower back pain, but refused an
x-ray or a Toradol injection. (Tr. 320). He was given a medrol dosepak and diclofenac gel. (Id.).
Boetticher attended an appointment with a rheumatologist, Margaret Tsai, M.D., on May
24, 2022, for an evaluation of his positive ANA. (Tr. 368). He indicated ongoing back and knee
pain, worsening over the previous 6 to12 months, with numbness and tingling in his bilateral
lower extremities, and cramping in his hands. (Id.). Dr. Tsai diagnosed him with positive ANA;
chronic pain of the bilateral feet, ankles, knees, and hips; fibromyalgia; chronic lower back pain
with bilateral sciatica; secondary osteoarthritis, bilateral carpal tunnel syndrome; and hand
cramping. (Id.).
On June 1, 2022, Boetticher attended an appointment with Thomas Felter, M.D., for pain
management. (Tr. 344-46). He rated his lower back pain as eight out of ten, and indicated he was
struggling to perform his activities of daily living. (Id.). He further indicated he had historically
found no relief from medical marijuana, percocets, Mobic, neurontin, or epidurals. (Id.).
Boetticher had an evaluation of his hands on June 8, 2022, which showed a flattening of the
thenar eminence due to atrophy, right worse than left. (Tr. 348). An EMG was positive for right
carpal tunnel syndrome from demyelinating syndrome. (Id.). A carpal compression test was
positive on the right, and he was assessed with bilateral carpal tunnel syndrome and advised to
wear a brace and begin occupational therapy. (Id.).
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Boetticher began physical therapy to treat his lower back pain on July 1, 2022, but was
discharged on July 21, 2022. (Tr. 299-313). He had a lumbar MRI performed on August 31,
2022, which revealed broad based disc bulge with facet hypertrophy at L3-4 and L4-5, with mild
spinal canal narrowing, and mild bilateral neural foraminal narrowing at L3-4 and mild to
moderate bilateral neural foraminal narrowing at L4-5. (Tr. 297). At an appointment with Dr.
Felter on September 27, 2022 it was determined that Boetticher had failed previous conservative
treatment, including physical therapy, and that Boetticher felt his symptoms were progressing.
(Tr. 339). He declined interest in any other conservative treatment options, and Dr. Felter
prescribed a muscle relaxer but refused to prescribe opiates. (Id.).
Boetticher attended a pain management appointment on November 23, 2022, where he
described diffuse body pain, worst in his lower back, at a level of eight out of ten. (Tr. 554). He
had an appointment with Dr. Tsai where he indicated he had no interest in pain medications and
was unable to afford medical marijuana. (Tr. 523). He complained of sharp pain in his bilateral
hands and wrists, knees, hips, and feet, with some cramping and experience of dropping objects
he was holding. (Id.). He ambulated slowly with some tenderness in his lumbar, hips and knees
(right worse than left), knees, ankles, hands, wrists, and neck, with decreased range of motion.
(Id.).
On February 22, 2023, Boetticher presented again with back pain he described as sharp,
dull, and stabbing, at a level of ten out of ten. (Tr. 402). Examination notes showed, “Good Gait
able to walk on Toes and Heels pain on Lumbar flexion and Extension, No tenderness Pain on
SLRs both sides more Rt. Side [sic].” (Tr. 403). Boetticher received a trans foraminal epidural
steroid injection (“TFESI”) at right L4-5 and left L5-S1. (Tr. 428).
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On April 4, 2023, Boetticher underwent a right knee MRI that showed an oblique tear at
the posterior horn of the medial meniscus extending to the tibial articular surface with a 7 mm
osteochondral stable fragment in the posterior portion of the medial femoral condyle. (Tr. 703).
Surgery was recommended due to the results of the MRI, as well as a previous x-ray that showed
medial compartment degenerative joint disease with a loss of space, osteophytes and a small
cyst, and assessed a tear of the medial meniscus of the right knee with osteochondral defect of
the femoral condyle; internal derangement of the right knee; right knee primary osteoarthritis;
and bilateral capral tunnel syndrome. (Tr. 410). Boetticher underwent an arthroscopic right knee
medial menscectomy on May 23, 2023. (Tr. 434). At his first post-operative follow up on May
31, 2023, Boetticher’s right knee was swollen with moderate effusion, so an aspiration was
performed. (Tr. 441).
On April 27, 2023, Boetticher reported he had received little benefit from the TFESI, and
received right L4-5 and L5-S1 facet blocks. (Tr. 785). He received facet blocks again on May 5,
2023 (Tr. 780), June 22, 2023 (Tr. 776), and July 5, 2023 (Tr. 773). He also underwent
radiofrequency ablations on June 27, 2023 (Tr. 769) and August 14, 2023. (Tr. 766).
On August 7, 2023, 11 weeks after his partial medial meniscectomy, Boetticher reported
he was mostly returning to normal, but had experienced pain for the past three days, particularly
with activity. (Tr. 472). He again reported right knee pain on October 25, 2023, but refused
cortisone shots and pain medications as he found those ineffective in the past. (Tr. 470).
Examination notes document some pain at the medial retinaculum with a mild click with knee
extension, but 5/5 strength. (Id.). Boetticher was prescribed nabumetone, Tylenol, and Toradol
for breakthrough pain, and referred for physical therapy. (Id.). He started physical therapy on
November 17, 2023. (Tr. 665).
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On November 14, 2023, Boetticher presented to the emergency department with lower
back pain without paresthesias or radiating pain down his lower extremities. (T. 676). There was
bilateral lumbar tenderness with palpation, but x-rays revealed no acute bony deformity. (Id.).
Another x-ray on November 27, 2023 showed degenerative changes of the lumbar spine with
moderate disc space narrowing at L1-2, similar to prior studies. (Tr. 675). He was assessed with
lumbar radiculopathy, lumbar disc herniation and sacroiliac inflammation. (Tr. 805). On January
15, 2024, Boetticher appeared at pain management with complaints of axial neck and back pain
that had grown increasingly worse over the past two years, and was affecting his sleep and his
ability to perform activities of daily living. (Tr. 807). He was assessed with sacroiliitis,
spondylosis without myelopathy or radiculopathy in the lumbosacral region, and other chronic
pain. (Id.).
C. Medical Opinion Evidence
1. State Agency Reviewing Opinion Evidence
On March 3, 2023, state agency reviewing physician Douglas Chang, M.D., opined that
Boetticher was capable of performing work at the light exertional level except that he could only
occasionally climb ramps or stairs, but could never climb ladders, ropes or scaffolds; could
occasionally stoop, kneel, crouch or crawl; he was limited in his ability to reach overhead
bilaterally; and he needed to avoid allexposure to hazards. (Tr. 83-85). Dr. Chang’s opinion was
affirmed by state agency reviewing physician Gerald Klyop, M.D., on July 27, 2023. (Tr. 92-95).
2. Treating Source Opinion Evidence
Dr. Schwerer submitted a primary source statement on December 5, 2023, in which she
noted diagnoses of joint pain, back pain, parasthesias, positive ANA, hypertension, and impaired
fasting glucose. (Tr. 499). She did not opine further, however, noting that she had not tested his
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functional capacity, was treating him only for his high blood pressure and not chronic pain, and
she had not seen him in seven months as he had failed to appear for his last scheduled
appointment. (Tr. 499-505).
D. Administrative Hearing Evidence
Boetticher testified before an ALJ on January 19, 2024. (Tr. 35-77). He testified that he
was 47 years old and that he had a 10th grade education. (Tr. 43). He had last worked driving a
dump truck for a concrete company for a couple of months prior to Thanksgiving 2023. (Tr. 43-
44). He resides by himself, and is capable of driving. (Tr. 55). He lives in a first floor apartment,
but there is a basement and it hurts his knees and back to go up and down the stairs. (Id.). He
does household chores such as sweeping, mopping, and wiping countertops, but his girlfriend
does his laundry and he is limited to preparing simple foods. (Tr. 56). He spends most of his time
watching television. (Id.). He will also cut the grass, water flowers, or clear some snow. (Tr. 56-
57). He occasionally goes on Facebook, but does not consider himself very social. (Tr. 58). He
spends most weekends with his girlfriend and her autistc son. (Tr. 59).
He reports problems with his lumbar, neck, knees, and hands. (Id.). He has tried physical
therapy for his back and knees but found “it was just too much.” (Tr. 60). He has found no relief
from injections in his SI joints or radiofrequency ablation. (Id.). The only medication he is
currently taking is for his blood pressure. (Tr. 61). When he tries to hold onto anything for a long
period of time, such as a hammer, after a few minutes his hands will start to cramp. (Tr. 62). He
wears braces on his hands at night. (Id.).
Under questioning by his attorney Boetticher noted his right hand was a bigger problem
than his left, but that both are bad, and he drops things at least a few times every day. (Tr. 63).
His hands also cramp and cause him pain sometimes when he drives. (Tr. 64). He testified that if
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his most recent employer offered to have him return he would try to do it, at least on a part-time
basis. (Tr. 65). He thinks he could work three to five hours per day. (Id.). He becomes
uncomfortable if he sits more than a few minutes, regardless of the type of chair,and he has to
then get up and stretch for a couple of minutes. (Tr. 65-66). His back starts hurting after he walks
five to ten minutes. (Tr. 66). He is unable to stand in one place, he has to move around. (Id.). He
has to take breaks when doing chores such as washing the dishes because of his inability to stand
in one place. (Id.). He cannot do a full trip to the grocery store, rather, he will just pick up a few
items at a time. (Tr. 67). He also testified to headaches he attributes to his high blood pressure.
(Tr. 68).
Once Boetticher’s testimony was complete, VE Mary Everts testified. (Tr. 70-76). VE
Everts classified Boetticher’s past work as a dump truck driver, DOT 902.663-010, SVP 2,
described in the DOT at the medium exertional level but performed at light; as a construction
laborer, DOT 869.687-026, SVP 2, described in the DOT as very heavy, performed at light; as a
construction worker, DOT 869.664-014, SVP 4, described in the DOT and performed at the
heavy exertional level; as a tow motor operator, DOT 921.683-050, SVP 3, described in the DOT
at the medium exertional level, but performed at light; and as a machine operator, DOT 754.685-
014, SVP 2, described in the DOT and performed at light. (Tr. 72-73).
For her first hypothetical, the ALJ asked the VE to consider an individual of the same age
and education as the claimant, and with the same work history excepting the job of dump truck
driver, capable of performing light work except that the individual can never climb ladders, ropes
or scaffolds; can occasionally climb ramps and stairs, balance, crouch, kneel, stoop, and crawl;
can occasionally reach overhead bilaterally; can frequently finger, handle, and feel bilaterally;
can occasionally push and/or pull or operate foot controls with the right lower extremity; can
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frequently push and/or pull or operate foot controls with the left lower extremity; cannot work
around vibrations, unprotected heights or heavy machinery; and can occasionally perform any
occupational driving. (Tr. 73). The VE opined that this individual could perform Boetticher’s
past work as a machine operator, both as it is described in the DOT and as Boetticher actually
performed it. (Tr. 73-74). The individual could also perform other light, unskilled, SVP 2 jobs,
such as cashier, DOT 211.462-010, with approximately 570,000 jobs nationally; retail marker,
DOT 209.587-034, with approximately 226,000 jobs nationally, and inspector/packer, DOT
559.687-074, with 7,000 jobs nationally. (Tr. 74). The VE further testified that employers expect
someone to be on task at least 85% of the time, and will typically allow one absence per month.
(Id.). Anything beyond those levels would be work preclusive. (Id.).
On questioning by Boetticher’s attorney, VE Everts testified that if the individual in the
ALJ’s first hypothetical were limited to occasional handling and fingering, that individual would
be unable to perform Boetticher’s past work, none of the three jobs cited would remain available,
and there would only be one job available within that limitation. (Tr. 75). The VE also testified
that if the individual in the ALJ’s first hypothetical required the ability to switch position and
move away from the work station, the individual would be unable to perform Boetticher’s past
work, and there would be no other jobs available. (Id.).
IV. The ALJ’s Decision
In her decision dated May 24, 2024, the ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity since December
19, 2022, the application date (20 CFR 404.1571 et seq.).
2. The claimant has the following severe impairments: cervical, thoracic, and
lumbar degenerative disc disease; fibromyalgia; bilateral hallux valgus
deformities; bilateral carpal tunnel syndrome; right knee osteoarthritis and
meniscus tear and small cysts, status post May 2023 medial meniscectomy;
and sacroiliitis (20 CFR 416.920(C)).
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3. 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 416.920(d), 416.925
and 416.926).
4. After careful consideration of the entire record, the undersigned finds that
the claimant had the residual functional capacity to perform light work as
defined in 20 CFR 416.967 (b) except: The claimant can never climb
ladders, ropes, or scaffolds and can occasionally climb ramps and stairs,
balance, crouch, kneel, stoop, and crawl. With the bilateral uppoer
extremities, he can occasionally reach overhead and frequently handle,
finger, and feel. With the right lower extremity, he can occasionally push
and/or pull or operate foot controls. With the left lower extremity, he can
frequently push and/or pull or operate foot controls. He cannot work around
vibrations, unprotected heights, or heavy machinery. He can occasionally
perform any occupational driving.
5. The claimant is capable of performing past relevant work as a machine
operator, Dictionary of Occupational Titles (DOT) #754.685-014, SVP 2,
light as listed and performed. This work does not require the performance
of work-related activities precluded by the claimant’s residual functional
capacity (20 CFR 416.965).
6. The claimant has not been under a disability, as defined in the Social
Security Act, since December 19, 2022, the date the application was filed
(20 CFR 416.920(f)).
(Tr. 14-29).
V. Law and Analysis
A. Standard for Disability
Social Security regulations outline a five-step process the ALJ must use to determine
whether a claimant is entitled to benefits:
1. whether the claimant is engaged in substantial gainful activity;
2. if not, whether the claimant has a severe impairment or combination of
impairments;
3. if so, whether that impairment, or combination of impairments, meets or equals
any of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1;
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4. if not, whether the claimant can perform their past relevant work in light of his
RFC; and
5. if not, whether, based on the claimant’s age, education, and work experience, they
can perform other work found in the national economy.
20 C.F.R. § 404.1520(a)(4)(i)-(v)1; Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642-43 (6th
Cir. 2006). The Commissioner is obligated to produce evidence at Step Five, but the claimant
bears the ultimate burden to produce sufficient evidence to prove they are disabled and, thus,
entitled to benefits. 20 C.F.R. § 404.1512(a).
B. Standard of Review
This Court reviews the Commissioner’s final decision to determine whether it is
supported by substantial evidence and whether proper legal standards were applied. 42 U.S.C.
§ 405(g); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). However, the
substantial evidence standard is not a high threshold for sufficiency. Biestek v. Berryhill, 139 S.
Ct. 1148, 1154 (2019). “It means – and means only – ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Id., quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). Even if a preponderance of the evidence supports the
claimant’s position, the Commissioner’s decision cannot be overturned “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).
Under this standard, the court cannot decide the facts anew, evaluate credibility, or re-
weigh the evidence. Id. at 476. And “it is not necessary that this court agree with the
Commissioner’s finding,” so long as it meets the substantial evidence standard. Rogers, 486 F.3d
1 The regulations governing DIB claims are found in 20 C.F.R. § 404, et seq. and the regulations
governing SSI claims are found in 20 C.F.R. § 416, et seq. Generally, these regulations are duplicates and
establish the same analytical framework. For ease of analysis, I will cite only to the relevant regulations in
20 C.F.R. § 404, et seq. unless there is a relevant difference in the regulations.
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at 241; see also Biestek, 880 F.3d at 783. This is so because the Commissioner enjoys a “zone of
choice” within which to decide cases without court interference. Mullen v. Bowen, 800 F.2d 535,
545 (6th Cir. 1986).
Even if substantial evidence supported the ALJ’s decision, the court will not uphold that
decision when the Commissioner failed to apply proper legal standards, unless the legal error
was harmless. Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“[A] decision
. . . will not be upheld [when] the SSA fails to follow its own regulations and that error
prejudices a claimant on the merits or deprives the claimant of a substantial right.”); Rabbers v.
Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (“Generally, . . . we review
decisions of administrative agencies for harmless error.”). Furthermore, this Court will not
uphold a decision when the Commissioner’s reasoning does “not build an accurate and logical
bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D.
Ohio 2011). Requiring an accurate and logical bridge ensures that a claimant and the reviewing
court will understand the ALJ’s reasoning, because “[i]f relevant evidence is not mentioned, the
court cannot determine if it was discounted or merely overlooked.” Shrader v. Astrue, No. 11-
13000, 2012 WL 5383120, at *6 (E.D. Mich. Nov. 1, 2012).
VI. Discussion
Boetticher raises a single issue for this Court’s review, arguing that the ALJ improperly
relied upon her own lay opinion in assessing the RFC. (ECF Doc. 7, p. 1). Specifically,
Boetticher argues that the ALJ found the only opinions of record partially persuasive but vague,
and further that these opinions failed to address his bilateral carpal tunnel syndrome and cervical
spine issues. (Id. at p. 10). The only meaningful opinions in the record were rendered by the state
agency reviewing physicans, neither of whom addressed Boetticher’s carpal tunnel diagnosis.
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(Id. at p. 11). The ALJ offered no explanation for her assessment of the frequency for handling,
fingering, and overhead reaching, thereby, in Boetticher’s view, frustrating meaningful review.
(Id.). Boetticher contends that the lack of opinion evidence on these topics necessitated that the
ALJ further develop the record for an opinion regarding these impairments and the resulting
functional limitations. (Id. at p. 12).
The Commissioner responds that Boetticher’s argument should be rejected because the
ALJ explained the basis of her RFC finding, and the ALJ’s RFC need not be based on any
medical opinion. (ECF Doc. 9, p. 5). The Commissioner notes that Boetticher relied on cases
descended from Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908 (N.D. Ohio 2008), and
Deskin itself, as support for his claim of the requirement of a medical opinion to base the RFC
upon, and argues that subsequent case law has shown Deskin is not binding law. (ECF Doc. 9,
pp. 5-6). As Boetticher has pointed to no diagnostic evidence that the ALJ might have
improperly interpreted when assessing the RFC, the Commissioner argues the ALJ did not
commit error. (Id. at p. 7).
The RFC assessment requires an ALJ to walk a fine line. An ALJ must temper her duty to
evaluate the medical and other evidence with the temptation to “play doctor” by substituting her
own medical judgment for that of medical professionals. Schmidt v. Sullivan, 914 F.2d 117, 118
(7th Cir. 1990); accord Meece v. Barnhart, 192 F. App’x 456, 465 (6th Cir. 2006); Winning v.
Comm’r of Soc. Sec., 661 F. Supp. 2d 807, 823-24 (N.D. Ohio 2009) (“[A]n ALJ ‘does not have
the expertise to make medical judgments.’”). An ALJ might cross this fine line when she:
(1) rejects a medical opinion without relying on other evidence or authority in the record;
(2) interprets raw medical data (e.g., uninterpreted x-rays and lab results); or (3) applies a
sit-and-squirm test to assess a claimant’s limitations based on observations at the hearing. See,
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e.g., Harris v. Comm’r of Soc. Sec., No. 1:14-cv-1212, 2015 WL 770340, at *19 (N.D. Ohio,
Feb. 23, 2015) (collecting cases indicating that an ALJ needs a medical opinion to interpret “raw
medical data”); Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (“[A]n ALJ must not
substitute his own judgment for a physician’s opinion without relying on other evidence or
authority in the record.”); Weaver v. Sec’y of Health and Hum. Servs., 722 F.2d 310, 312 (6th
Cir. 1983) (requiring an ALJ to cite evidence beyond personal observations).
Nevertheless, the Sixth Circuit has “rejected the argument that an [RFC] determination
cannot be supported by substantial evidence unless a physician offers an opinion consistent with
that of the ALJ.” Mokbel-Aljahmi v. Comm’r of Soc. Sec., 732 F. App’x 395, 401 (6th Cir. 2018).
The RFC determination “is an ‘administrative finding,’ and the final responsibility for
determining an individual’s RFC is reserved to the Commissioner.” Shepard v. Comm’r of Soc.
Sec., 705 F. App’x 435, 442 (6th Cir. 2017). And an ALJ does not err simply because her RFC
finding is based on the objective medical evidence instead of a physician’s opinion. See Rudd v.
Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th Cir. 2013) (“[T]o require the ALJ to base [his]
RFC finding on a physician’s opinion, would, in effect, confer upon the treating source the
authority to make the determination or decision about whether an individual is under a disability,
and thus would be an abdication of the Commissioner’s statutory responsibility to determine
whether an individual is disabled.” (quotation marks omitted)).
Here, Boetticher relies on several cases following a similar line of reasoning as Deskin to
support the contention that the ALJ must generally obtain a medical expert opinion when
formulating the RFC unless “the medical evidence shows relatively little physical impairment
such that the ALJ can permissibly render commonsense judgment about functional capacity.”
(ECF Doc. 7, p. 10 citing Guido v. Comm’r of Soc. Sec.., No. 13-cv-13520, 2014 WL 4771929,
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at *12 (E.D. Mich. Sept 24, 2014); Wyatt v. Comm’r of Soc. Sec., No. 12-11406, 2013 WL
4483074, at *16 (E.D. Mich. Aug. 19, 2013); Allen v. Comm’r. of Soc. Sec., No. 12-15097, 2013
WL 5676254, at *15 (E.D. Mich. Sept. 13, 2013), report and recommendation adopted, No. 12-
15097, 2013 WL 5676251 (E.D. Mich. Oct 18, 2013); Ali v. Comm’r of Soc. Sec., No. 15-14483,
2017 WL 726665, at *11 (E.D. Mich. Jan. 20, 2017), report and recommendation adopted, No.
15-14483, 2017 WL 712899 (E.D. Mich. Feb. 23, 2017)).
But, as the Court noted in Carr v. Comm’r of Soc. Sec. No. 23-CV-00187, 2024 WL
1556398, at *11 (N.D. Ohio Jan. 8, 2024), “Deskin is not binding authority and several courts in
the District have criticized or declined to follow the Deskin standard.” See, e.g., Winans v.
Comm’r of Soc. Sec., No. 5:22-cv-01793, 2023 WL 7622634, *4 (N.D. Ohio November 15,
2023); Fox v. Comm’r of Soc. Sec., No. 5:23-CV-580, 2023 WL 7018362, at *8-9 (N.D. Ohio
Oct. 10, 2023) (noting Deskin is not controlling and finding “the ALJ had sufficient evidence to
make his determination and the record doesn’t establish that a consultative examination was
necessary”), report and recommendation adopted, No. 5:23 CV 580, 2023 WL 7222824 (N.D.
Ohio Nov. 2, 2023); Davidson v. Comm’r of Soc. Sec., No. 3:22CV938, 2023 WL 5948122, *4
(N.D. Ohio Sept. 13, 2023) (“This Court has itself recently determined reliance on ‘stale’ non-
examining state agency opinions does not require remand.”); Van Pelt v. Comm’r of Soc. Sec.,
No. 1:19 CV 2844, 2020 WL 7769729, at *10-11 (N.D. Ohio Dec. 30, 2020) (discussing Sixth
Circuit decisions contrary to Deskin and finding reliance on “outdated” non-examining state
agency opinions did not require remand where the ALJ considered subsequent medical
evidence). Further, the determinative inquiry in assessing whether the ALJ properly evaluated
the RFC is not whether the ALJ gathered a requisite medical opinion, but, rather, whether the
RFC is supported by substantial evidence. See Mokbel-Aljahmi 732 F. App’x 395. In Mokbel-
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Aljahmi, the plaintiff argued that where an ALJ gave no weight to physicians’ opinions, the ALJ
was required to get the opinion of another physician before determining the RFC. The 6th Circuit
disagreed, writing:
We have previously rejected the argument that a residual functional capacity
determination cannot be supported by substantial evidence unless a physician offers
an opinion consistent with that of the ALJ. See Shepard v. Comm’r of Soc. Sec.,
705 Fed.Appx. 435, 442–43 (6th Cir. 2017) (rejecting the argument that “the ALJ’s
[residual functional capacity] lacks substantial evidence because no physician
opined that [the claimant] was capable of light work”); Rudd v. Comm’r of Soc.
Sec., 531 Fed.Appx. 719, 728 (6th Cir. 2013) (rejecting the same argument because
“the ALJ is charged with the responsibility of determining the [residual *402
functional capacity] based on her evaluation of the medical and non-medical
evidence”). We similarly find no error here. The ALJ undertook a laborious
evaluation of the medical record when determining the residual functional capacity,
and substantial evidence supports the ALJ’s conclusions.
Id. at 401.
Here, in finding the opinions of the state agency reviewing physicians somewhat
persuasive, the ALJ noted that the restriction to “limited overhead reaching” was vague as to
whether that would indicate overhead reaching would be frequent or occasional. (Tr. 25). The
ALJ then articulated her reasoning for the RFC determination for overhead reaching, as well as
handling and fingering, writing that Boetticher had:
[A] five out of five grip and no tenderness in the cervical, thoracic or lumbar spine
and normal gait with no joint deformities and he had atrophy and flattening of the
thenar eminence in his hand but full range of mtion in his wrists and fingers . . .
[t]he claimant is able to shovel, build objects, use a hammer, etc. that shows the
ongoing ability to use his upper extremities. However, given his carpal tunnel
diagnosis and the claimant’s testimony that he does drop objects, he has bene (sic)
limited to the frequent use of the upper extremities for handling and fingering and
occasional reaching overhead given his cervical impairments.
(Tr. 26, see also Tr. 57-62, 348, 523-26, 805). This explanation is based on a thorough review of
the medical records, and provides substantial evidence creating a logical and accurate bridge,
allowing for meaningful subsequent review of the RFC. Further, Boetticher does not point to any
specific medical evidence that might have been improperly interpreted when assessing his RFC.
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Boetticher seems to suggest that because the ALJ found the state agency physician opinions only
somewhat persuasive, the ALJ is thus required to order a separate medical opinion. An ALJ is
under no such mandate. Watson v. Comm’r of Soc. Sec., 25-cv-287, 2025 WL 2458765, at *5
(N.D. Ohio, August 27, 2025). In determining the RFC, the ALJ evaluated the evidence
appropriately and properly articulated her findings. Accordingly, the ALJ met her burden in this
matter, and I recommend her decision be affirmed.
VII. Recommendation
Because the ALJ applied proper legal standards and reached a decision supported by
substantial evidence, I recommend that the Commissioner’s final decision denying Boetticher’s
application for SSI be affirmed.
Dated: January 2, 2026
Reuben J. Sheperd
United States Magistrate Judge
________________________________________
OBJECTIONS
Objections, Review, and Appeal
Within 14 days after being served with a copy of this report and recommendation, a party
may serve and file specific written objections to the proposed findings and recommendations of
the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28 U.S.C
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636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo by the
assigned district judge.
***
Failure to file objection within the specified time may result in the forfeiture or waiver of
the right to raise the issue on appeal either to the district judge or in subsequent appeal to the
United States Court of Appeals, depending on how or whether the party responds to the report
and recommendations. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be
specific and not merely indicate a general objection to the entirety of the report and
recommendation; “a general objection has the same effect as would a failure to object.” Howard
v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991) Objections should focus
on specific concerns and not merely restate the arguments in briefs submitted to the magistrate
judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge
without specific objections ‘wastes judicial resources rather than saving them, and runs contrary
to the purpose of the Magistrates Act.” Overholt v. Green, No. 1:17-CV-00186, 2018 WL
3018175, 2 (W.D. Ky. June 15, 2018) quoting Howard. The failure to assert specific objections
may in rare cases be excused in the interests of justice. See United States v. Wandashega, 924
F.3d 868, 878-79 (6th Cir. 2019)
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