IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ABBEY S. SHELLEY, 

Plaintiff,

v. Civil Action 2:18-cv-676

 Magistrate Judge Jolson

 

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff, Abbey S. Shelley, filed this action seeking review of a decision of the 

Commissioner of Social Security (“Commissioner”) denying her application for Title II Disability 

Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Title XVI. For the 

reasons that follow, Plaintiff’s Statement of Errors (Doc. 12) is SUSTAINED and the case is 

REMANDED to the Commissioner for further proceedings pursuant to 42 U.S.C. § 405(g), 

sentence four. 

I. BACKGROUND

A. Prior Proceedings

Plaintiff applied for DIB and SSI on August 22, 2013, alleging disability beginning July 

14, 2013, due to numerous physical and mental impairments. (Doc. 11, Tr. 399, 404, 428). An 

Administrative Law Judge (the “ALJ”) held a hearing (Tr. 36–88) after Plaintiff’s application was 

denied initially and upon reconsideration. The ALJ then denied benefits in a written decision on. 

(Tr. 186–195). But the Appeals Council reviewed and remanded the case for a new hearing, which 

was held on October 4, 2017 (Tr. 89–126). The ALJ again denied benefits in a written decision. 
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(Tr. 14–27). That became the final decision of the Commissioner when the Appeals Council 

denied review. (Tr. 1–6). 

This matter is fully briefed and ripe for resolution. (See Docs. 1, 11, 12, 15, 16).

B. Relevant Testimony

At the time of the hearing, Plaintiff was 43-years-old. (Tr. 93). She is married and lives 

with her husband and 17-year-old child. (Tr. 94). At the time of the hearing, she was 5 feet tall 

and weighed 283 pounds. (Id.). She testified that she had gained nearly 60 pounds in the past year 

due to “not moving” and depression. (Tr. 95). 

As for her work history, Plaintiff testified that, for seven months between 2015 and 2016, 

she worked 16 hours a week at a dog shelter. (Tr. 96). She explains that she was hired to do office 

work but was subsequently asked to work with the dogs, which forced her to quit because she 

could not tolerate being on her feet. (Id.). Before that, Plaintiff worked intermittently for more 

than five years at a gas station before quitting due to difficulty being on her feet all day. (Tr. 97–

98). 

When asked which of her physical issues was the most severe, Plaintiff responded that her 

neuropathy is the most limiting, describing the pain as “shoot[ing] up and down” both legs. (Tr. 

99). In the five or so months leading up to the hearing, she had experienced “severe swelling” due 

to the beginning stages of kidney failure. (Tr. 100). When asked about her hand surgeries, Plaintiff 

explained that she had received multiple carpal tunnel release surgeries. (Tr. 106). 

With regard to her mental health, Plaintiff testified that she gets “really snippy and agitated 

very easily,” cries “a lot,” sleeps “a lot,” and has isolated herself. (Tr. 104). Her mental health 
3

issues have put a strain on her marriage. (Id.). Plaintiff also described anxiety and panic attacks 

brought on by being around a lot of people. (Tr. 105). 

As far as household tasks, Plaintiff’s children help her with shopping, yardwork and 

cleaning, but she is able to straighten up around the house. (Tr. 113). She spends her days on

Facebook, reading, and watching TV. (Tr. 114, 115, 118). When asked to describe her pain on a 

0 to 10 scale, Plaintiff said she experienced a level 8 pain even with medication. (Tr. 120). 

Finally, a Vocational Expert (“VE”) opined that Plaintiff could perform the requirements 

of a document preparer, inspector, and sorter. (Tr. 123). 

C. Relevant Medical Background

1. Physical Health

The record demonstrates a myriad of physical health problems, ranging from leg and foot 

problems to back issues. 

In August 2012, Plaintiff received treatment for bilateral leg and foot pain. (Tr. 563). She 

had been struggling with tingling and sharp shooting pains for six months. (Id.). Records show

crepitus in Plaintiff’s knees, bilaterally. (Tr. 565). June 2013 physical exam records show 

diminished sensation in her toes. (Tr. 537–39). Records from a July 2013 musculoskeletal exam 

indicate that Plaintiff maintained normal range of motion, muscle strength, and stability in all 

extremities with no pain on inspection. (Tr. 535). 

In August 2013, Plaintiff received treatment at the emergency room for a foot injury. (Tr. 

613). She injured her foot while vacuuming when the cord wrapped around her foot, which she 

could not feel because of her neuropathy, causing her to fall and fracture her toe. (Tr. 615–16). In

September 2013, Plaintiff saw neurologist Dr. Robert Thompson. (Tr. 663). At the appointment, 
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she described neurological symptoms for the past four years, and also reported that her knees lock 

up, she gets arthritis, and experiences numbness and tingling in both lower and upper extremities 

along with swelling in her feet. (Id.). She also reported difficulty using the stairs, resulting in 

several falls. (Id.). Dr. Thompson noted Plaintiff’s gait as slow and cautious and reported that she 

is areflexic in both lower extremities, displayed crepitus and discomfort during range of motion 

testing, and suffered diminished sensation to all modalities in a stocking glove distribution in both 

feet. (Tr. 664). In September 2013, Dr. Thompson opined that Plaintiff’s EMGs and nerve 

conduction velocities of both lower extremities were abnormal, consistent with severe mixed 

polyneuropathy, mainly axonal in nature. (Tr. 662). A September 2013 arterial study of Plaintiff’s 

lower extremity revealed normal findings. (Tr. 690). Three months later, Plaintiff complained of 

a “dead weight” sensation in her legs. (Tr. 683). 

On June 24, 2014, Plaintiff began seeing Dr. Tony Starr, who noted that Plaintiff suffered 

from sub patellar crepitus with flexion and extension. (Tr. 769). On July 24, 2014, she saw Dr. 

Corey Jackson for bilateral knee pain and swelling. (Tr. 738). At that appointment, Dr. Jackson 

documented Plaintiff’s patellar crepitation. (Tr. 739). The exam revealed a full range of motion 

and strength, and x-rays of her knees showed mild osteoarthritic changes in the medical 

compartment. He observed that her weight was likely causing “additional discomfort” and offered 

an injection at the time, which she “deferred.” (Id.). 

On January 26, 2015, Plaintiff received treatment from pain specialist, Dr. Michael Sayegh. 

(Tr. 749). Plaintiff reported pain at a severity of 9 on a scale of 10 in both arms, her mid-back, 

and both legs. (Id.). Dr. Sayegh’s exam notes show a mild decreased sensation in both arms and 

hands up to the mid-biceps, which was worse on the right, weakened bilateral grips, mild decreased 
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sensation in bilateral legs, and moderate decreased sensation in her feet. (Id.). He noted bilateral 

weakness in her legs, a decreased push/pull, and increased pain and tenderness with movement in 

both hips. (Id). 

In March 2015, Plaintiff returned to Dr. Starr for neuropathy spreading to her back. (Tr. 

758). Dr. Starr ordered an EMG with nerve conduction study, which took place on April 11, 2015. 

(Tr. 760–62). The test results show severe carpel tunnel syndrome in both hands. (Tr. 762). 

On April 23, 2015, Plaintiff told Dr. Sayegh that her pain medication had not alleviated her

pain. (Tr. 747). Dr. Sayegh noted that Plaintiff continued to suffer mild decreased sensation in 

both arms and hands up to the mid-biceps, which was worse on the right, weakened bilateral grips, 

mild decreased sensation in her legs, moderate decreased sensation in her feet, weakness in her 

legs, decreased push/pull, and increased pain and tenderness with movement in both hips. (Id.). 

On May 15, 2015, Plaintiff underwent carpal tunnel release surgery on her left wrist. (Tr. 734, 

812). Post-surgery records show improvement but swelling in her bilateral wrists with tingling 

sensation in first three fingers. (Tr. 734, 812). Records from two weeks post-surgery document

“improvement” in Plaintiff’s condition, as she was able to make a full composite fist and had 

normal range of motion despite soreness. (Tr. 732). Plaintiff then received pain management 

treatment, including injection therapy, from Dr. Sayegh. (Tr. 741–45, 775). 

In December 2015, Plaintiff alleged continued low back pain and bilateral hip and leg pain

but acknowledged that medication seemed to help improve her symptoms and that injection 

therapy gave her relief for about a month. (Tr. 775). Physical exam records show trigger points 

and tenderness in the paraspinal muscles, and a neurological exam of upper and lower extremities 

showed mild decreased sensation with moderate decreased sensation in her feet. (Id.).
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On January 10, 2016, Plaintiff underwent an MRI of her lumbar spine, which revealed left 

sided facet osteoarthropathy at L5-S1 but no degeneration or herniation. (Tr. 808). On January 

25, 2106, Plaintiff saw Dr. Starr for her “locking” left thumb. (Tr. 910). Dr. Starr reported that 

her left thumb had a triggering effect with tenderness and a nodular area tendon of the flexor 

component below the MCP joint region. (Tr. 911). Plaintiff received injection therapy on her

thumb. (Tr. 828). 

On February 22, 2016, Plaintiff returned to Dr. Sayegh for further pain management. (Tr. 

850). He noted that Plaintiff’s physical examination still displayed mild decreased sensation in 

both arms and hands up to the mid-biceps, worse on the right, weakened bilateral grips, mild 

decreased sensation in bilateral legs, moderate decreased sensation in her feet, weakness and 

decreased push/pull in both legs, and increased pain and tenderness with movement in her hips. 

(Id.). Plaintiff returned every several months throughout the remainder of the year and continued 

to receive injection therapy for pain. (See Tr. 842, 844, 846, 848, 856–57). 

On August 11, 2016, Plaintiff returned to Dr. Starr for left hand pain and swelling. (Tr. 

920). Dr. Starr noted that she was suffering left wrist pain with tenderness at the ulnar aspect 

dorsally with questionable triggering of the little finger with pain associated with ulnar 

compression. (Tr. 921).

Finally, on June 28, 2017, Dr. Eyad Mahayri completed a sleep study of Plaintiff. (Tr. 

1026). The study revealed “a significant number of respiratory events which were mainly 

obstructive and hypopnea in nature.” (Tr. 1027). Dr. Mahayri diagnosed Plaintiff with severe 

obstructive sleep apnea, sleep related hypoxemia, and hypersomnia. (Id.).
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2. Mental Health

On January 8, 2014, Plaintiff saw therapist Robert Block. (Tr. 698). She told him that she 

tries not to associate with people, suffers panic attacks when she goes into stores, and experiences 

problems with her medications. (Tr. 700–03). She reported that she had previously attempted 

suicide by slashing her wrists. (Tr. 707). She described anger problems and violent episodes, 

including impulsivity and hitting others. (Tr. 708). She also reported hearing voices and seeing 

shadows. (Id.). Mr. Block diagnosed Plaintiff with anxiety and depression. (Tr. 711–12). Plaintiff 

returned to see Mr. Block several times a month through May 2014. During these visits she 

reported episodes of violence and isolation. (See generally Tr. 698–715, 783–806). 

On November 5, 2014, clinical psychologist James Spindler performed a consultative 

psychological evaluation of Plaintiff. (Tr. 665–70). He diagnosed Plaintiff with depressive 

disorder, not otherwise specified and anxiety disorder, and estimated her Global Assessment of 

Functioning (“GAF”) at 61. (Tr. 669). On mental status examination, Plaintiff appeared 

cooperative and demonstrated no difficulty staying focused. (Tr. 667). She did not appear 

depressed or anxious and appeared comfortable with the interview process. (Tr. 668). She was 

alert and oriented and appeared to function in the average range of intelligence. (Id.). Her insight 

and judgment appeared within normal limits. (Id.). She also reported engaging in several activities 

of daily living, including caring for her son, caring for her dog, maintaining personal care, and 

tending to household chores, including washing dishes, vacuuming, and doing laundry. (Id.). She 

also reported having 10 friends with whom she enjoys talking. (Tr. 669). He further opined that 

Plaintiff appeared capable of understanding, remembering, and carrying out instructions; did not 

appear to have any major difficulty staying focused and would have the mental ability to sustain a 
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working pace and maintain a level of attention and concentration sufficient for most job settings; 

would likely respond appropriately to supervision and at least tolerate coworkers. (Tr. 670). 

In January 2015, Plaintiff saw a new therapist, Kathy Soltis. (Tr. 723). Plaintiff explained 

that she had stopped attending counseling sessions because her regular counselor had quit, and she 

did not feel comfortable with the replacement counselor. (Tr. 729). Plaintiff reported that she had 

been feeling moody and angry, isolated herself, lacked motivation, and routinely overslept. (Id.). 

The next month, Plaintiff told Ms. Soltis that she was doing okay and was looking forward to 

spring. (Tr. 871). She expressed a desire to “work on” managing her depression. (Id.). She also 

hoped to be able to plant flowers and work in her yard. (Id.). Plaintiff continued to see Ms. Soltis 

through April of that year, and consistently reported anxiety and depression, often related to 

personal and familial issues. (See, e.g., Tr. 873, 875, 877). It appears from the record, however, 

that Plaintiff stopped attending therapy in April 2015 and was discharged from the program in 

March 2017. (Tr. 883). On January 25, 2016, Plaintiff told Dr. Starr that her anxiety and 

depression were worsening, and her medications were not helping. (Tr. 910). 

D. The ALJ’s Decision 

The ALJ found that Plaintiff met the insured status requirement through December 31, 

2018, and had not engaged in substantial gainful activity since July 14, 2013, the alleged onset 

date. (Tr. 17). The ALJ found that Plaintiff had the following severe impairments: diabetes 

mellitus with peripheral neuropathy, chondromalacia patella, bilateral osteoarthritis of the knees, 

bilateral carpal tunnel syndrome, lumbar-sacral facet osteoarthropathy, left thumb trigger finger, 

bilateral degenerative joint disease of the hips, sciatica, obesity, sleep apnea, major depressive 

disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder with anxiety and 
9

depression. (Id.). The ALJ held, however, that there was no medical opinion of record to indicate 

the existence of an impairment or combination of impairments that met or equaled in severity the 

level of the Listings of Impairments. (Tr. 18). 

In reviewing the evidence, the ALJ concluded that while Plaintiff’s medically determinable 

impairments could reasonably be expected to cause her alleged symptoms, the medical evidence 

is “inconsistent” with Plaintiff’s subjective allegations of pain and limitation. (Tr. 21). For 

example, the ALJ observed: 

. . . Despite the claimant’s allegations of disabling physical impairments, 

examination findings of record have remained largely unremarkable. For example, 

records dated July 2013 include complaints of pain and numbness in the upper and 

lower extremities; however, on musculoskeletal examination, the claimant 

maintained normal range of motion, muscle strength, and stability in all extremities 

with no pain on inspection (1F/10). Neurological examination was negative as well 

(Id.). The following month, the claimant was noted to have several ailments 

including diabetes mellitus, but normal examination findings were noted (Id. at 5). 

It was further observed the claimant’s medications resulted in stable condition (Id. 

at 6). 

(Tr. 21). The ALJ also observed that, “aside from the claimant’s CTS surgeries, she has not 

required other or additional surgical intervention.” (Tr. 23). The ALJ elaborated:

. . . she appears to have undergone relatively conservative treatment for her alleged

pain in the form of medication management, brief physical therapy, and injections. 

The claimant has also acknowledged improvement with such treatment. Therefore, 

given the signs and findings on examinations, diagnostic tests, and treatment 

history, the undersigned finds the claimant remains capable of performing a 

reduced range of sedentary work . . . 

(Id.). 

As for Plaintiff’s mental health symptoms, the ALJ found her allegations inconsistent with 

the objective medical findings. (Tr. 24). The ALJ explained:

. . . the claimant alleged disability in part due to several mental impairments, which, 

among other things, caused her to isolate herself from others. She testified that she 
10

had only one friend, who she talks with over the phone and does not interact with 

extended family. Indeed, she testified she had not spoken to her mother in 

approximately 20 years. She also testified that her knee pain interfered with her 

ability to travel and drive. The claimant testified she had not been able to take a 

vacation or travel. However, the record does not support the extent to which the 

claimant alleged she did not socialize with others, including her mother. While the 

claimant may have been estranged from her mother at one time, her Cambridge 

Counseling records showed she spoke with her mother (6F/3) and in March 2014, 

the claimant stated she was traveling to Georgia to visit her mother. (Id.).

(Id.).

The ALJ then turned to the opinion evidence. He assigned “some weight” to the opinion 

of state agency psychiatrist, Dr. Cacchillo, who completed a physical RFC on January 23, 2014, 

and opined that Plaintiff could perform a range of light work. (Id.). The ALJ explained that “[n]ew 

evidence received at the hearing level, including the testimony of the claimant, subsequent CTS 

surgery, and continued complaints of pain and limitation support a finding of greater limitation, as 

provided above.” (Id.).

Next, the ALJ assigned “some weight” to the opinion of clinical psychologist Mr. Spindler, 

who completed a psychological evaluation of Plaintiff on November 4, 2014. (Id.). The ALJ 

assigned it only some weight because he “had the opportunity to evaluate the claimant in person, 

but only on one occasion and not in a treating context.” (Id.). Moreover, the ALJ found that 

“while his assessment appears generally consistent with signs and findings on evaluation, the 

medical evidence of record as a whole, including the testimony of the claimant and subsequent 

treatment records detailing continued mental distress, support a finding of greater/additional 

mental limitation, as reflected above.” (Tr. 24–25).

Finally, the ALJ assigned “great weight” to the opinion of Plaintiff’s therapist, Kathy 

Soltis, who completed an initial evaluation of Plaintiff. The ALJ explained that although Ms. 
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Soltis is not considered an “acceptable” medical source, “her assessment appears based on and 

consistent with signs and findings on evaluation and largely consistent with the record as a whole, 

including the claimant’s own reports of functioning.” (Tr. 25).

II. STANDARD OF REVIEW

The Court’s review “is limited to determining whether the Commissioner’s decision is 

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v. 

Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see also 42 U.S.C. § 405(g). 

“[S]ubstantial evidence is defined as ‘more than a scintilla of evidence but less than a 

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting 

Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)). 

“After the Appeals Council reviews the ALJ’s decision, the determination of the council 

becomes the final decision of the Secretary and is subject to review by this Court.” Olive v. 

Comm’r of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007) 

(citing Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538 

(6th Cir. 1986) (en banc)). If the Commissioner’s decision is supported by substantial evidence, 

it must be affirmed, “even if a reviewing court would decide the matter differently.” Id. (citing 42 

U.S.C. § 405(g); Kinsella v. Schweiker, 708 F.2d 1058, 1059–60 (6th Cir. 1983)). In other words, 

“if substantial evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there 

is substantial evidence in the record that would have supported an opposite conclusion.’” Blakley 

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 

273 (6th Cir. 1997)). 
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III. DISCUSSION

Plaintiff, in her sole assignment of error, asserts that the ALJ’s RFC is not supported by 

substantial evidence. Specifically, Plaintiff states that, because the only medical opinions were 

from 2014 and 2015, the ALJ erred in failing to obtain a physical and psychiatric medical opinion 

for the 2016–2017 records. (See generally Doc. 12 at 10–15). In support, Plaintiff relies on the 

seminal case in this Circuit addressing this issue, Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 

908 (N.D. Ohio 2008). Ultimately, the court in that case was presented with the same question 

before the Court here: What is the ALJ’s additional obligation, if any, in a case where the medical 

record, or a substantial portion of the medical record, is devoid of a medical opinion? See id. at

910–11. 

A. The Deskin Rule

In Deskin, the only medical opinion in the record came from a state agency reviewing 

physician issued in October 2003. Deskin, 605 F. Supp. at 910. But the record also contained two 

years’ worth of medical records post-dating that opinion. Id. Up front, the court noted that, in 

social security cases, the plaintiff bears the burden to prove disability. Id. at 911. The Agency, 

however, bears the burden to develop the record. Id. As part of that burden, it is “critical” that the 

ALJ obtain and consider residual functional capacity opinions offered by medical sources such as 

treating physicians, consultative examining physicians, medical experts who testify at hearings 

before the ALJ, or state agency physicians who reviewed the claimant’s medical records. Id. at 

911–12. This means, therefore, that an ALJ “may not interpret raw medical data in functional 

terms.” Id. at 912. With that principle in mind, the court set forth the following rule: 

. . . where the transcript contains only diagnostic evidence and no opinion from a 

medical source about functional limitations (or only an outdated nonexamining 
13

agency opinion), to fulfill the responsibility to develop a complete record, the ALJ 

must recontact the treating source, order a consultative examination, or have a 

medical expert testify at the hearing. This responsibility can be satisfied without 

such opinion only in a limited number of cases where the medical evidence shows 

relatively little physical impairment and an ALJ can render a commonsense 

judgment about functional capacity. 

Id. at 912 (quotation marks and citation omitted).

At first, Deskin was not met with open arms. Indeed, a judge in the same court rejected 

Deskin, finding it “not representative of the law” because the ALJ, “not a physician is assigned the 

responsibility of determining a claimant’s RFC based on the evidence as a whole.” Henderson v. 

Comm’r of Soc. Sec., No. 1:08-cv-2080, 2010 WL 750222, at *2 (N.D. Ohio Mar. 2, 2010). 

Roughly a year and a half after Henderson, the author of Deskin reaffirmed the ruling but made 

several caveats regarding its application. See Kizys v. Comm’r of Soc. Sec., No. 3:10-cv-25, 2011 

WL 5024866 (N.D. Ohio Oct. 21, 2011). And Deskin potentially applies in only two 

circumstances. See id; see also Raber v. Comm’r of Soc. Sec., No. 4:12-cv-97, 2013 WL 1284312, 

at *15 (N.D. Ohio Mar. 27, 2013) (explaining post-Deskin application of the rule). First, Deskin

matters where an ALJ made an RFC determination based on no medical source opinion. See Kizys,

2011 WL 5024866, at *2. Second, Deskin also matters where an ALJ made an RFC based on an 

“outdated” medical source opinion “that does not include consideration of a critical body of 

objective medical evidence.” Id. 

Importantly, simply because a case falls within the Deksin rule does not mean that the court 

must remand the matter. In certain circumstances, an ALJ still has “discretion” to develop an RFC 

without a proper medical opinion “where the medical evidence shows relatively little physical 

impairment” such that “an ALJ can render a commonsense judgment about functional capacity.” 

Id. (quotation marks and citation omitted). These occasions, however, are “limited” and the 
14

medical evidence must be “so clear” and “undisputed,” that an ALJ could justifiably make an RFC 

finding without the aid of a current medical source. Harris v. Comm’r of Soc. Sec., No. 15-10966, 

2016 WL 8114128, at *10 (E.D. Mich. Mar. 2, 2016), report and recommendation adopted sub 

nom. Harris v. Colvin, No. 15-CV-10966, 2016 WL 2848422 (E.D. Mich. May 16, 2016) (citations 

omitted). At base, the “key inquiry” when deciding whether to remand under Deskin, is whether 

the ALJ “fully and fairly developed the record through a conscientious probing of all relevant 

facts.” Bryant v. Comm’r of Soc. Sec., No. 3:15-CV-354, 2017 WL 489746, at *3–5 (S.D. Ohio 

Feb. 7, 2017) (quotation marks and citation omitted), report and recommendation adopted sub 

nom. Bryant v. Berryhill, No. 3:15-CV-354, 2017 WL 713564 (S.D. Ohio Feb. 22, 2017).

B. The Deskin Rule Applied

The Court must consider Deskin’s import because the facts here fall into the second 

category of cases in which the ALJ relied on “outdated” medical source opinions. Yet, as noted, 

remand is not triggered automatically. Instead, the Court must decide two things: first, whether 

the evidence without a medical opinion constitutes “a critical body of objective medical evidence;”

and second, whether that evidence “shows relatively little physical impairment” so that the ALJ 

was able to make a “commonsense judgment” about Plaintiff’s functional capacity. See Deskin, 

605 F. Supp. at 912.

First, Plaintiff states that there are three years of medical records without an opinion source 

and two years of mental treatment records without an opinion source. (Doc. 12 at 12). The Court 

finds—and Defendant does not argue otherwise—that this constitutes a “critical body” of objective 

medical evidence. As discussed below, Plaintiff underwent multiple procedures for her physical 

symptoms and had dozens of appointments in the years since the last medical opinion was issued. 
15

Plaintiff’s mental health records, however, present a closer question. There are simply not as many 

mental health records in the recent years. But, as discussed more fully below, the ALJ presumably 

found that the record and Plaintiff’s testimony showed that Plaintiff’s mental health condition 

deteriorated since the opinions were issued, and as such, greater functional limitations were 

necessary. (see Tr. 24–25). Accordingly, the Court finds that the additional evidence constitutes

a “critical body” under Deskin.

Second, the Court must decide whether the subsequent evidence shows “relatively little” 

impairment such that the ALJ could, without the benefit of a source opinion, render a functional 

capacity opinion. See Deskin, 605 F. Supp. at 912. Generally, when a plaintiff “has sufficiently 

placed his or her functional inability at issue, the ALJ must measure [his or her] capabilities,” and 

in doing so, “an expert’s RFC evaluation is ordinarily essential.” Mabra v. Comm’r of Soc. Sec., 

No. 2:11-CV-00407, 2012 WL 2319245, at *10 (S.D. Ohio June 19, 2012), report and 

recommendation adopted, No. 2:11-CV-00407, 2012 WL 3600127 (S.D. Ohio Aug. 21, 2012)

(quotation marks and citation omitted). But “[t]here are limited occasions when the medical 

evidence is so clear, and so undisputed, that an ALJ would be justified in drawing functional 

capacity conclusions from such evidence without the assistance of a current medical source.” 

Harris, 2016 WL 8114128, at *10 (citations omitted).

Defendant argues that Plaintiff does not cite evidence showing that her impairments caused 

functional limitations and that the ALJ properly considered all of the evidence. (See generally

Doc. 15 at 6–12). Specifically, Defendant emphasizes the ALJ’s treatment of the opinion 

evidence. Plaintiff emphasizes this, too, but for different reasons. In reviewing the opinion 

evidence that predated numerous medical records, the ALJ acknowledged that the subsequent 
16

evidence justified greater restrictions. Indeed, the ALJ assigned less weight to nearly all of the 

opinions, largely because substantial evidence post-dating the opinions showed the need for greater 

restrictions. 

For example, in reviewing the opinion of Dr. Cacchillo, who completed a physical RFC 

assessment and opined that Plaintiff could perform a range of light work, the ALJ found that the

opinion was entitled to only “some weight” because “[n]ew evidence received at the hearing level, 

including the testimony of the claimant, subsequent CTS surgery, and continued complaints of 

pain and limitation support a finding of greater limitation[.]” (Tr. 24). Similarly, when reviewing 

the opinion of Dr. Tishler, who completed a psychiatric review of Plaintiff, the ALJ afforded the 

opinion “little weight,” explaining that it was “inconsistent with the record as a whole, including 

the testimony of the claimant regarding continued depression, anxiety, and panic attacks, as well 

as subsequent treatment records documenting such complaints.” (Id.). And, when reviewing the 

opinion of clinical psychologist James Spindler, who completed a consultative psychological 

evaluation of Plaintiff, the ALJ assigned the opinion “some weight,” explaining that “while his 

assessment appears generally consistent with signs and findings on evaluation, the medical 

evidence of record as a whole, including the testimony of the claimant and subsequent treatment 

records detailing continued mental distress, support a finding of greater/additional mental 

limitation[.]” (Tr. 24–25). 

While Defendant relies on the above analysis as proof that the ALJ carefully considered all 

of the evidence, the Court finds that the opposite is true. Indeed, this Court recently remanded an 

ALJ’s decision with facts similar to those here. See Snell v. Comm’r of Soc. Sec. No. 3:18-CV173, 2019 WL 3406435, at *3–4 (S.D. Ohio July 29, 2019). There, the record contained two 
17

medical opinions regarding the plaintiff’s physical RFC. Id. at *3. But the record also contained 

two additional years of evidence, including a CT scan showing abnormal results. See id. And, 

like the ALJ here, the ALJ in Snell afforded the medical opinions only “some weight” because he 

found that the record contained “significant additional evidence,” following these opinions, “which 

suggests need for some changes” to their RFC opinions. Id. (internal quotation marks omitted). 

Consequently, the Court remanded the matter under Deskin. See id. In doing so, the Court noted 

that, while “it is generally up to the discretion of the ALJ,” “the use of a medical consultant was 

necessary—rather than simply helpful—in order to allow the ALJ to make a proper decision.” Id. 

at *4 (quotation marks and citation omitted). 

So too here. The fact that the ALJ found that the new evidence made the opinion evidence 

less relevant only underscores that the use of a current medical expert was necessary and not just 

merely helpful. See id. 

Defendant also relies on the fact that the ALJ considered the evidence that post-dated the 

medical opinions, and reasonably found that they revealed unremarkable findings. But courts 

routinely reject similar arguments. For example, in this Court’s decision in Mabra, 2012 WL 

2319245, at *9–10, the ALJ rejected the opinion evidence for a number of reasons and, relying on 

“her own lay interpretation” of the MRIs, concluded that the record showed “relatively minimal 

clinical and diagnostic findings”, and concluded that Plaintiff was capable of a full range of 

medium work. Id. at *8–9 (internal quotation marks omitted). Despite the ALJ’s interpretation 

that the record contained “minimal” findings, the Court noted that the MRIs revealed “at least 

some level of degenerative changes in [plaintiff’s] back” and that treatment notes “consistently 

included findings of tenderness.” Id. The Court concluded that “[a]lthough Plaintiff’s MRI results 
18

may appear minimal to the lay person, the ALJ was not qualified to translate this medical data into 

functional capacity determinations.” Id. (citing Meadors v. Astrue, 370 F. App’x 179, 183 (2d 

Cir. 2010)) (holding that, although MRI results showed only mild degenerative changes of a 

claimant’s lumbar spine, “the ALJ was not at liberty to substitute his own lay interpretation of that 

diagnostic test for the uncontradicted testimony of [the treating physician], who is more qualified 

and better suited to opine as to the test’s medical significance.”)).

The same is true here. The ALJ interpreted “raw” medical records and concluded they 

showed minimal findings. (Tr. 23). But without a relatively recent medical opinion, the ALJ “was 

not qualified to translate this medical data into functional capacity determinations.” See id. 

Indeed, while the evidence may appear minimal, Plaintiff’s January 2016 MRI revealed left sided 

facet osteoarthropathy at L5-S1. (Tr. 808). Subsequent records also document consistent

complaints of pain and injection procedures. (See, e.g., Tr. 846, 850, 852, 856–58). Therefore, the 

Court concludes that the record “potentially indicate[s]” more than “relatively little” impairment. 

Lachcik, 2017 WL 2210276, at *4 (quoting Deskin, 605 F. Supp. 2d at 912). And, the record is 

not “so clear, and so undisputed” that the ALJ could justifiably make RFC conclusions from such 

evidence without the aid of a current medical source. See Harris, 2016 WL 8114128, at *10; see 

also Lachcik, 2017 WL 2210276, at *4–5 (remanding, noting that the record contained medical 

evidence, such as MRI results, “not easily understood by the layperson’s eye and that potentially 

indicate more than relatively little physical impairment,” including joint and nerve injections)

(quotation marks and citation omitted); Childress v. Berryhill, No. 1: 16-CV-00119-HBB, 2017 

WL 758941, at *4–6 (W.D. Ky. Feb. 27, 2017) (finding that while the ALJ considered subsequent 

MRIs and an EMG and attempted to downplay their results, the Court remanded the case, finding 
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that the ALJ made an RFC determination using “raw medical data.”); Wheeler v. Comm’r of Soc. 

Sec., No. 14-12540, 2015 WL 5461527, at *9 (E.D. Mich. Aug. 14, 2015), report and 

recommendation adopted, No. 14-12540, 2015 WL 5460709 (E.D. Mich. Sept. 17, 2015)

(remanding, noting that Plaintiff presented subsequent evidence including MRI findings, evidence 

of trigger point injections, evidence of overwhelming pain examinations, and evidence that he was 

taking strong narcotic medications, among others). 

Finally, as for Plaintiff’s mental health treatment records, the ALJ did not explicitly discuss 

her recent mental health records but concluded that the record supported “a finding of no more 

than moderate mental limitation aside from social interaction.” (Id.). To be fair, and as already 

noted, Plaintiff has not presented much in terms of her recent mental health treatment. But because 

the ALJ seemed to find that her testimony and the subsequent records supported greater limitations, 

(see Tr. 24–25), the Court can conclude only that the ALJ should have consulted an expert opinion 

regarding both her physical and mental health. 

In sum, even if it does not result in a different outcome, remand is still appropriate. Upon 

remand, the ALJ shall obtain the opinion of an acceptable medical source regarding Plaintiff’s 

physical and mental health impairments and any corresponding functional limitations. 

IV. CONCLUSION

For the reasons stated, Plaintiff’s statement of errors (Doc. 12) is SUSTAINED and the 

case is REMANDED to the Commissioner for further proceedings pursuant to 42 U.S.C. § 405(g), 

sentence four. 

IT IS SO ORDERED.
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Date: August 26, 2019 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE