Thomas v. Commissioner of Social Security

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TYLER RAYSHON THOMAS, ) CASE NO. 1:23-cv-00612-BMB
)
Plaintiff, ) JUDGE BRIDGET MEEHAN BRENNAN
)
v. ) MAGISTRATE JUDGE
) REUBEN J. SHEPERD
FRANK BISIGNANO, )
Commissioner of Social Security ) REPORT AND RECOMMENDATION
Defendant. )
I. Introduction
Plaintiff, Tyler Rayshon Thomas (“Thomas”), seeks judicial review of the final decision
of the Commissioner of Social Security, denying his application for disability insurance benefits
(“DIB”) under Title II of the Social Security Act and 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).
Thomas raises one issue on review of the Administrative Law Judge’s (“ALJ”) decision,
arguing that the ALJ’s Residual Functional Capacity (“RFC”) determination is the product of
legal error because the ALJ failed to properly evaluate Thomas’ subjective complaints pursuant
to SSR 16-3 and 20 C.F.R. §404.1529. 416.929, leaving the Court ubable to proceed to a
substantial evidence review. (ECF Doc. #14, at p. 1). Because the Administrative Law Judge
applied proper legal standards and reached a decision supported by substantial evidence, I
recommend that the Commissioner’s final decision denying Thomas’ application for DIB and
SSI be affirmed.
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II. Procedural History
Thomas filed for DIB and SSI on March 24, 2021, alleging a disability onset date of May
29, 2020. (Tr. 329-50). The claims were denied initially and on reconsideration. (Tr. 49, 56, 64,
72). Thomas then requested a hearing before an ALJ. (Tr. 132-33). Thomas, represented by
counsel, and a Vocational Expert (“VE”) testified before an ALJ on April 20, 2022. (Tr. 467-91).
At the hearing, Thomas sought to amend his claim to seek benefits for a closed period dating
from the alleged onset date of May 29, 2020, through September 24, 2021, which is when
Thomas returned to substantial gainful work activity. (Tr. 472). On May 3, 2022, the ALJ issued
a written decision finding Thomas not disabled. (Tr. 73-89). The Appeals Council denied his
request for review on February 9, 2023, making the hearing decision the final decision of the
Commissioner. (Tr. 90-95).
On May 23, 2023, the case was remanded to the Commissioner by this Court, based upon
an Unopposed Motion to Remand Pursuant to Sentence Six of 42 U.S.C. §405(g). (Tr. 101).
Accordingly, a second hearing was held before the ALJ on July 11, 2024, where Thomas and a
different VE testified. (Tr. 22-42). The ALJ then issued a written decision on August 12, 2024,
again finding Thomas not disabled. (Tr. 1-14). The Commissioner moved to reopen and reinstate
the case on March 28, 2025. (ECF Doc. #10).
III. Evidence
A. Personal, Educational, and Vocational Evidence
Thomas was born September 3, 1980. (Tr. 49). He was 39 years old on his alleged onset
date of May 29, 2020, making him a younger individual according to agency regulations. (Tr.
47). His date last insured (“DLI”) is December 31, 2025. (Tr. 43). He has at least a high school
education. (Tr. 47). He has past relevant work as a fast-food services manager, DOT #185.137-
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010, SVP 5, light exertional level as generally performed and medium exertional level as he
actually performed it. (Tr. 12).
B. Relevant Medical Evidence
A review of the medical records reveals that on March 10, 2020, Thomas
presented at the South Pointe hospital emergency department for an asthma exacerbation. (Tr.
532). His past medical history included HIV diagnosed in 2006 and avascular necrosis of the
right hip which had been treated with a right hip joint replacement in 2017. (Id.). As his
symptoms were persistent after treatment he was admitted for further management. (Tr. 534).
On August 18, 2020, Thomas was seen by Willonda Nicholson, RMA, who noted normal
gait and station. (Tr. 628). At a January 19, 2021 visit with RMA Nicholson, treatment notes
indicate normal gait and station, as as well as normal reflexes and lower extremity strength of
+5/5. (Tr. 618) On May 3, 2021, Thomas was seen by by Nicholas Romeo, DO, for purposes of
establishing a new patient relationship. (Tr. 762). Thomas reported left pain with ambulation,
and was utilizing a walker. (Id.). The treatment notes indicated that Thomas had developed
avascular necrosis from HIV medications, and that his right hip total arthroplasty in 2017 had
been successful.(Id.). Thomas’ HIV viral load had been checked the prior week and was
undetectable. (Id.).
Thomas underwent a left total hip arthroplasty on June 23, 2021. (Tr. 794). By July 2,
2021, Thomas was in physical therapy and had achieved “weight bearing as tolerated” status.
(Tr. 782). He had 2/5 strength in his left 1-2 Psoas, gluteus medius and hamstring, with 3-5
strength in his left quadriceps. (Tr. 784). A strength measurement of his gluteus maximus was
deferred. (Id.). He had a walking speed of 15 seconds with a rolling walker, and a lower
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extremity functional scale (“LEFS”) of 18 out of 80. (Id.). His therapist indicated he would
request 9 additional PT visits. (Tr. 785).
On 7/20/2021, Thomas reported his pain as a four on a ten point scale and noted his
hamstring strength had improved to 3-/5. (Tr. 847). At his July 22, 2021 PT visit, Thomas
reported his left hip pain as zero on a ten point scale, and he was ambulating with a cane. (Tr.
854). By July 27, 2022, he reported he was feeling “stronger every day.” (Tr. 862). His walking
speed had improved to nine seconds with a rolling walker. (Tr. 864). He still had significant left
leg weakness, and his therapist recommended continued use of his rolling walker. (Tr. 865).
Thomas’ July 30, 2021 physical therapy notes showed his left 1-2 Psoas strength improved to 3-
/5, his gluteus medius strength improved to 2+/5, and noted his hip addducter strength at 2+/5.
(Tr. 872).
An x-ray of Thomas’ pelvis and left hip on August 4, 2021 showed stable bilateral total
hip arthroplasties. (Tr. 888). At his August 9, 2021 PT appointment Thomas evaluated his pain
as one to two on a ten point scale. (Tr. 884). He was cleared for driving, and ambulated from his
car using a cane. (Tr. 886). His walking speed was now nine seconds with a rolling walker and
11 seconds with a cane. (Tr. 1366). On August 16, 2021, eight weeks removed from surgery,
Thomas reported difficulty walking “community distances,” cooking, cleaning or shopping due
to left leg weakness. (Tr. 1359). On August 25, 2021, Thomas reported that he “feels he is
growing stronger however still weakness in the Quads (sic).” (Tr. 1347). At his September 10,
2021 PT appointment, Thomas’ LEFS had improved to38 out of 80, his walking speed had
improved to ten seconds with a cane, and his Timed up and go test (“TUG”) had improved from
23 seconds with a cane to 11 seconds with a cane. (Tr. 1338). He was also showing some
improvement with leg strength. (Tr. 1340).
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C. State Agency Reviewing Opinion Evidence
On July 29, 2021, state agency reviewing physician Steve McKee, MD opined that
Thomas was limited to light exertion, with additional restrictions limiting him to occasional
climbing of ramps and stairs, but never climbing ladders, ropes or scaffolds; frequent balancing,
stooping or kneeling, but only occasional crouching or crawling; avoiding concentrated exposure
to extreme heat or cold, humidity, wetness or respiratory irritants such as fumes, odors, dusts,
gases or poor ventilation; and no exposure to hazardous machinery including dangerous
machinery and unprotected heights. (Tr. 45-47). On September 28, 2021 state agency reviewing
physician Gail Mutchler, MD, affirmed the opinion of Dr. McKee, except that she suggested no
limitation for wetness, and limited his crawling to frequent. (Tr. 59-61).
D. Administrative Hearing Evidence
Thomas first testified before the ALJ on April 20, 2022. (Tr. 473-487). He testified that
he was living with his cousin, and that Thomas was a 41 year old high school graduate. (Tr. 473-
74). After graduating he had attended school to study cosmetology and business management.
(Tr. 474). He drives without restriction, and he had not worked during the closed period in
question. (Tr. 475). He had received unemployment benefits up until September, 2021. (Id.). He
began working at Burger King, primarily as a cashier, on September 24, 2021, which
corresponds to the end of the closed period. (Tr. 476). He had previously worked at a Popeye’s
restaurant and a Wendy’s restaurant as a general manager. (Tr. 478-79). He also worked as a
bank teller. (Tr. 479).
Thomas testified that during the closed period he was incapable of performing simple
tasks such as grooming himself without resting between activities. (Tr. 481). He was in constant
pain even when laying down, and could not walk long enough to take out the trash. (Tr. 482).
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When he did walk his hips caused him to be so unstable he required the assistance of either a
walker or a cane. (Id.). Even now, after having both hips replaced, he still uses a cane to steady
himself. (Id.). His hip pain was also causing his back and knees to hurt. (Id.). It got to the point
where he could not stand ot go to the grocery store, or even clip his toenails. (Tr. 482-83).
After the hip replacement surgery he attended physical therapy for about two to three
months. (Tr. 483). Otherwise he was basically laying in bed all day. (Id.). Anything that required
him to stand for more than two or three minutes had to be “broken up into shifts” in order for
him to do it. (Tr. 484). He was unable to help with any household chores and relied on his cousin
to do them. (Tr. 484-85). His day typically involved getting up around noon, eating breakfast his
cousin had prepared, doing some grooming, and then returning to bed. (Tr. 485). His cousin, who
worked second shift, would come home around 11:00 p.m., they would then eat dinner, and he
would go back to bed. (Id.).
On questioning by his attorney Thomas testified that he was using a prescribed walker
throughout the closed period. (Tr. 486). The walker had originally been prescribed after he had
his first hip replaced in 2017. (Id.). By the time he had a left total hip arthroscopy in 2021 the hip
had deteriorated to the point that he had no ball joint, and he rquired a walker because he was
uncoordinated and wobbly. (Tr. 487) a cane would not have been sufficient to balance him. (Id.).
Once Thomas finished testifying VE David Salewsky testified. (Tr. 487-90). VE
Salewsky testified that Thomas had past work as a fast food services manager, DOT #185.137-
010, with an SVP of 5, light per the DOT, medium as performed. (Tr. 488). For her first
hypothetical the ALJ asked the VE to consider an individual of the claimant’s age, education and
work experience capable of performing light work with the additional limitations that he could
occasionally climb ramps and stairs, but never climb ladders, ropes or scaffolds; frequently
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balance, stoop, kneel and crawl, but only occasionally crouch; could frequently be exposed to
extreme cold, extreme heat, humidity, fumes, odors, dust, gases and poor ventilation; and could
never be exposed to hazards of unprotected heights or dangerous machinery. (Tr. 488-89). The
VE opined that this individual could perform Thomas’ past work as generally performed, and
could also work as merchandise marker, DOT #209.587-034, light, SVP 2, wih approximately
131,000 jobs in the national economy; as a cleaner and polisher, DOT #709.687-010, light, SVP
2, with approximately 43,000 jobs in the national economy; and as a small products assembler,
DOT #706.684-022, ight, SVP 2, with approximately 319,000 jobs in the national economy. (Tr.
489). The VE further testified that employers will typically tolerate 10% or six minutes per hour
off task, and 2 days absent per month would be work preclusive. (Tr. 490).
Thomas next testified before the ALJ on July 11, 2024. (Tr. 29-36). He reported he was
still working at Burger King. (Tr. 30). Thomas testified that during the closed period in question
he was unable to perform even simple tasks such as putting on socks and shoes due to the
deterioration of his left hip.(Tr. 33). He would have to break up tasks like brushing his teeth,
washing his face, shaving or showering, because he could not stand for extended periods of time.
(Id.). When he did stand or walk he required a walker in order to maintain his balance. (Id.). The
pain was so bad that pain medications did not even help him. (Id.). He was not able to work until
after his left total hip arthroscopy. (Id.). He was not able to perform any household chores and
relied on his cousin for everything. (Tr. 34). He was spending all of his time in bed, watching
television or going through his phone. (Tr. 35).
On questioning by his attorney, Thomas testified he was unable sit at a desk for 40 hours
per week during the closed period because it would have caused pain in his lower back and hips.
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(Id.). He also confirmed he was using a walker for the entire period of time he was not working.
(Id.).
VE Guy Hostetler testified next. (Tr. 36-41). For her first hypothetical the ALJ asked the
VE to consider an individual of the claimant’s age, education and work experience who can
perform light work, but who is limited to occasionally climbing ramps and stairs, but never
climbing ladders, ropes and scaffolds; frequently balancing, stooping, kneeling or crawling, but
only occasionally crouching; frequently being exposed to extereme cold or heat, humidity,
fumes, odors, dusts, gases and poor ventilation; and never being exposed to hazards of
unprotected heights or dangerous machinery. (Tr. 37-38). The VE opined this individual could
perform Thomas’ past work as generally performed, but not as he actually performed it. (Tr. 38).
The individual could also work as an assembler, small parts, DOT #706.684-022, SVP 2,
strength of light, with approximately 200,000 jobs in the national economy; as an information
clerk, DOT #239.567-010, SVP of 2, strength of light, with approximately 75,000 jobs in the
national economy, and as a mail sorter, DOT #209.687-026. SVP of 2, strength of light, with
approximately 90,000 jobes in the national economy. (Tr. 39).
Thomas’ attorney asked whether there would be light or sedentary jobs if an individual
required a walker for both balance and ambulation. (Id.). The VE opined there would be no light
jobs, and only very restricted sedentary jobs, meaning only accommodated work. (Tr. 39-40).
IV. The ALJ’s Decision
In her decision dated August 12, 2024, the ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social Security
Act through December 31, 2027.
2. The claimant has engaged in substantial gainful activity (SGA) beginning
September 24, 2021 through the date of the decision (20 CFR 404.1520(b),
404.1571 et seq., 416.920(b) and 416.971 et seq.).
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3. However, there has been a continuous 12-month period from May 29, 2020
to September 24, 2021 when the claimant did not engage in substantial
gainful activity. The remaining findings address the period(s) the claimant
did not engage in substantial gainful activity.
4. The claimant has the following severe impairments: osteoarthritis and allied
disorders; asymptomatic HIV infection; asthma; and obesity (20 C.F.R
404.1520(c) and 416.920(c)).
5. The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525
and 404.1526, 416.920(d), 416.925 and 416.926).
6. 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 404.1567(b) and 416.967 (b) except occasional climbing
of ramps and stairs; never ladders/ropes/scaffolds; frequent balance, stoop,
kneel and crawl and occasionally crouch; frequent exposure to extreme
cold, extreme hot, humidity, and fumes/odors/dusts/gases/ and poor
ventilation; and never exposure to hazards (unprotected heights/dangerous
machinery).
7. The claimant is capable of performing past relevant work as a fast-food
services manager. This work does not require performance of work-related
activities precluded by the claimant’s residual functional capacity (20 CFR
404.1565 and 416.965).
8. The claimant has not been under a disability, as defined in the Social
Security Act, from May 29, 2020, through the date of this decision (20 CFR
404.1520(f) and 416.920(f)).
(Tr. 21-31).
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;
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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;
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).
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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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
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
Thomas brings a single issue for this Court’s review, arguing that the ALJ’s RFC
determination is the product of legal error because the ALJ failed to properly evaluate Plaintiff’s
subjective complaints pursuant to SSR 16-3p and 20 C.F.R. §§ 404.1529, 416.929, leaving the
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Court unable to proceed to a substantial evidence review. (ECF Doc. #14, at p. 10). Specifically,
Thomas notes that the ALJ’s RFC, without explanation, did not include a restriction requiring the
use of a wheeled walker despite Thomas’ testimony that he required one for walking or
balancing throughout the closed period in question. (Id., at p. 11-13). Further, the VE testified
that use of a walker to walk or balance would eliminate competitive employment at the light and
sedentary levels. (Id. at p.13). The ALJ, Thomas contends, provided only a “boilerplate recitation
rejecting [Thomas’] subjective complaints but then did nothing more than provide a summary of
evidence without discussing any of the factors required under SSR 16-3p and C.F.R.
§§404.1529, 416.929.” (Id., at p. 15). The ALJ failed to acknowledge significant evidence that
supports Thomas’ subjective reports of requiring a walker beginning in May, 2020, including
evidence of degeneration of his hips due to his HIV medications, the right total hip arthroplasty
he underwent tin 2017 and the severity of pain he was experiencing in January, 2021 that led to
him quitting his job. (Id., at p. 15-16). In Thomas’ view, the ALJ further failed to discuss
imaging that revealed osteonecrosis in the left hip and the collapse of the femoral head, as well
as the fact that his medical provider “dispensed and fitted [him] with a walker with wheels.” (Id.,
at p. 16; ECF Doc. #18, at p. 2). Finally, Thomas argues that even if state agency medical
consultant opinions provide substantial evidence in support of the RFC, the Court is unable to
engage in a substantial evidence review because the ALJ failed to properly apply the regulations
in making her non-disability determination. (ECF Doc.#14., at p. 18).
The Commissioner responds by arguing that substantial evidence supports the ALJ’s
RFC determination, and if substantial evidence supports the ALJ’s conclusions, this Court is
required to affirm, even if the evidence could support a different conclusion. (ECF Doc. #16, at
p. 7-8). The Commissioner asserts that the ALJ, in formulating the RFC, considered Thomas’
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subjective statements along with the objective medical evidence and treatment history
appropriately. (Id., at p. 8-9). Further, the ALJ properly considered the persuasiveness of the
state agency medical consultants in reaching her conclusions. (Id., at p. 9).
While the Commissioner concedes that there is evidence in the record indicating that
Thomas was utilizing a walker through May, 2021, he also argues there are several exampleses
in the record during the period in question that showed Thomas walking with a normal gait and
with no indication that he required an assistive device. (Id.). Further, while Thomas alleged he
needed a wheeled walker as of May, 2020, the Commissioner notes that he did not seek
treatment for his left hip until January, 2021 and the is no indication in the record of his need for
a wheeled walker until May, 2021. (Id., at p. 10). The Commissioner argues that Thomas’ own
subjective belief that he needed a wheeled walker is insufficient to establish that was medically
required. (Id., at p. 11-12). The Commissioner further asserts that the ALJ adequately discussed
her consideration of Thomas’ subjective complaints (Id., at p. 11-12). Finally, the Commissioner
contends the ALJ’s consideration of the prior administrative findings was not in error owing to
her consideration of a continuing period of disability rather than the closed period Thomas
requested as the ALJ denied Thomas’ request to consider the closed period. (Id., at p. 13).
A. The ALJ’s determination that no restriction regarding use of a walker
should be included in the RFC was supported by substantial evidence.
The RFC determination sets out an individual's work-related abilities despite his or her
limitations. See 20 C.F.R. § 416.945(a)(1). A claimant's RFC is not a medical opinion, but an
administrative determination reserved to the Commissioner. See 20 C.F.R.§ 416.927(d)(2). An
ALJ “will not give any special significance to the source of an opinion on issues reserved to the
Commissioner.” See 20 C.F.R.§ 416.927(d)(3). As such, the ALJ bears the responsibility for
assessing a claimant's RFC based on all the relevant evidence (20 C.F.R. § 416.946(c)) and must
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consider all of a claimant's medically determinable impairments, both individually and in
combination. See SSR 96–8p, 1996 WL 374184 (SSA July 2, 1996).
“In rendering his RFC decision, the ALJ must give some indication of the evidence upon
which he is relying, and he may not ignore evidence that does not support his decision, especially
when that evidence, if accepted, would change his analysis.” Fleischer, 774 F. Supp. 2d at 880
(citing Bryan v. Comm'r of Soc. Sec., 383 F. App'x 140, 148 (3d Cir. 2010) (“The ALJ has an
obligation to ‘consider all evidence before him’ when he ‘mak[es] a residual functional capacity
determination,’ and must also ‘mention or refute [...] contradictory, objective medical evidence’
presented to him.”)). See also SSR 96-8p at *7, 1996 WL 374184 (SSA July 2, 1996) (“The RFC
assessment must always consider and address medical source opinions. If the RFC assessment
conflicts with an opinion from a medical source, the adjudicator must explain why the opinion
was not adopted.”)). While the RFC is for the ALJ to determine, the claimant bears the burden of
establishing the impairments that determine her RFC. See Her v. Comm'r of Soc. Sec., 203 F.3d
388, 391 (6th Cir. 1999).
It is well-established there is no requirement that the ALJ discuss each piece of evidence
or limitation considered. See, e.g., Conner v. Comm'r, 658 F. App'x 248, 254 (6th Cir. 2016)
(citing Thacker v. Comm'r, 99 F. Appx. 661, 665 (6th Cir. May 21, 2004) (finding an ALJ need
not discuss every piece of evidence in the record); Arthur v. Colvin, No. 3:16CV765, 2017 WL
784563, at *14 (N.D. Ohio Feb. 28, 2017) (accord). However, courts have not hesitated to
remand where an ALJ selectively includes only those portions of the medical evidence that
places a claimant in a capable light and fails to acknowledge evidence that potentially supports a
finding of disability. See e.g., Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 724 (6th Cir. 2014)
(reversing where the ALJ “cherry-picked select portions of the record” rather than doing a proper
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analysis); Germany–Johnson v. Comm'r of Soc. Sec., 313 F. App'x 771, 777 (6th Cir. 2008)
(finding error where the ALJ was “selective in parsing the various medical reports”). See also
Ackles v. Colvin, No. 3:14cv00249, 2015 WL 1757474, at *6 (S.D. Ohio April 17, 2015) (“The
ALJ did not mention this objective evidence and erred by selectively including only the portions
of the medical evidence that placed Plaintiff in a capable light.”); Smith v. Comm'r of Soc. Sec.,
No. 1:11-CV-2313, 2013 WL 943874, at *6 (N.D. Ohio March 11, 2013) (“It is generally
recognized that an ALJ ‘may not cherry-pick facts to support a finding of non-disability while
ignoring evidence that points to a disability finding.’ ”); Johnson v. Comm'r of Soc. Sec., No.
2:16-cv-172, 2016 WL 7208783, at *4 (S.D. Ohio Dec. 13, 2016) (“This Court has not hesitated
to remand cases where the ALJ engaged in a very selective review of the record and significantly
mischaracterized the treatment notes.”).
In determining Thomas’ RFC, the ALJ clearly gave significant consideration to the
question of whether he required a walker during the period between May 29, 2020 and
September 24, 2021. The ALJ noted Thomas’s testimony that he utilized a walker throughout
this period as he had a high level of pain due to the deterioration of his left hip, and he needed
the walker to maintain his balance. (Tr. 10). The ALJ also noted, however, that treatment records
from August 8, 2020 through February 12, 2021 indicated that Thomas appeared with “a normal
gait and there is no indication that [Thomas] needed an assistive device.” (Tr. 8). The ALJ
further wrote that the record reflected normal gait and reflexes, with muscle strength at 5/5 prior
to February 13, 2021. (Tr. 11). The ALJ acknowledged that the record demonstrates that Thomas
was utilizing a walker on May 3, 2021, and continued to do so following his hip replacement
surgery on June 23, 2021. (Tr. 8). By August 9, 2021, however, he had shown improvement and
was ambulating using a cane in one hand. (Id.). A left hip x-ray dated August 4, 2021 showed
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bilateral total hip arthroplasties with hardware in tact, and no fracture or aggressive osseous
lesion. (Tr. 11). Finally, the ALJ wrote that by Septermber 24, 2021, Thomas was able to return
to substantial gainful activity. (Id.).
The ALJ clearly described when during the period in question Thomas required a walker
and when it appeared he did not, and in so doing, offered substantial evidence in support of her
determination that no requirement for a walker should be included in the RFC. In order for this
Court to conclude such a limitation should have been imposed within the RFC, it would have to
conduct a reweighing of the evidence, an exercise beyond its purview. Accordingly, the failure to
include such a restriction does not countenance remand.
B. The ALJ properly applied SSR 16-3p in considering Thomas’ subjective
complaints.
The evaluation of a claimant's subjective complaints rests with the ALJ. See Siterlet v.
Sec'y of HHS, 823 F.2d 918, 920 (6th Cir. 1987); Rogers, 486 F.3d at 248 (noting that
“credibility determinations regarding subjective complaints rest with the ALJ”). In evaluating a
claimant's symptoms, the ALJ must look to medical evidence, statements by the claimant, other
information provided by medical sources, and any other relevant evidence on the record. 20
C.F.R. § 404.1529(c); SSR 16-3p, 2017 WL 5180304.
Beyond medical evidence, SSR 16-3p sets forth seven factors that the ALJ should
consider: daily activities; location, duration, frequency, and intensity of the pain or other
symptoms; factors that precipitate and aggravate the symptoms; type, dosage, effectiveness, and
side effects of medication to alleviate pain or other symptoms; treatment other than medication;
any measures other than treatment the individual uses to relieve symptoms; and any other factors
concerning the individual's functional limitations and restrictions. 2017 WL 5180304 at *7-8.
The ALJ need not analyze all seven factors but should show that she considered the relevant
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evidence. See Cross v. Comm'r of Soc. Sec., 373 F. Supp. 2d 724, 733 (N.D. Ohio 2005). SSR
16-3p states:
[I]f an individual's statements about the intensity, persistence, and
limiting effects of symptoms are inconsistent with the objective medical
evidence and the other evidence, we will determine that the individual's
symptoms are less likely to reduce his or her capacities to perform work-
related activities or abilities to function independently, appropriately, and
effectively in an age-appropriate manner.
The ALJ's “decision must contain specific reasons for the weight given to the individual's
symptoms ... and be clearly articulated so the individual and any subsequent reviewer can assess
how the adjudicator evaluated the individual's symptoms.” SSR 16-3p, 2017 WL 5180304; see
also Felisky v. Bowen, 35 F.2d 1027, 1036 (6th Cir. 1994) (“If an ALJ rejects a claimant's
testimony as incredible, he must clearly state his reason for doing so.”). While a reviewing court
gives deference to an ALJ's credibility determination, “the ALJ's credibility determination will
not be upheld if it is unsupported by the record or insufficiently explained.” Carr v. Comm'r of
Soc. Sec., No. 3:18CV1639, 2019 WL 2465273, at *10 (N.D. Ohio April 24, 2019) (citing
Rogers, 486 F.3d at 248–49), report and recommendation adopted, 2019 WL 3752687 (N.D.
Ohio Aug. 8, 2019).
The ALJ properly applied SSR 16-3p in her determination of Thomas’ RFC. In
evaluating his subjective complaints concerning left hip pain, the ALJ suggested that the medical
records were not universally consistent with the severity of his allegations, again noting normal
gait, reflexes and muscle strength through much of the period in question. (Tr. 11). The ALJ also
considered Thomas’ testimony concerning his inability to perform basic activities of daily living
without assistance. (Tr. 10). The ALJ wrote that the record supported a worsening of Thomas’
condition as of May 3, 2021, when he was first reported to be utilizing a walker, but noted that
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he had the right total hip arthroplasty the following month, and responded well to physical
therapy after the surgery was completed. (Tr. 11). Thomas was able to return to substantial
gainful activity on September 24, 2021, just three months after the surgery was performed,
further demonstrating a positive response to surgical and therapeutic intervention. (Id.). The ALJ
also considered the impact of Thomas HIV medication regimen which has rendered him
asymptomatic (Tr. 10-11), as well as his asthma treatment protocol involving medications and a
rescue inhaler. (Tr. 11). The ALJ’s consideration of several of the seven factors outlined in SSR
16-3p, including daily activities; location, duration, frequency, and intensity of the pain or other
symptoms; type, dosage, effectiveness, and side effects of medication to alleviate pain or other
symptoms; and treatment other than medication daily activities, provide the requisite substantial
evidence in support of her decision to discount Thomas’s subjective allegations, and I therefore
do not recommend disturbing the ALJ’s opinion.
C. Substantial supports the ALJ’s assessment of the prior administrative
medical findings.
Thomas seems to suggest that the ALJ’s evaluation of the persuasiveness of the State
agency medical consultants was misguided because the opinions were offered “based upon a
continuing period of disability, they did not have the knowledge that Plaintiff had altered his
application for a closed period.”. (ECF Doc. #14, at p.18). I do note that the record shows that
the earlier opinion in question was rendered on July 29, 2021, directly within the closed period
(Tr. 47), while the later opinion was dated September 28, 2021, just four days after the
conclusion of the requested closed period. (Tr. 61). Thomas offers no explanation of how the
consultants’ opinions may have changed as a result of the consideration of a closed period, nor
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why it would necessarily impact the persuasiveness of the opinions. Accordingly, without further
support, this argument fails.
I. 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 Thomas’
application for DIB and SSI be affirmed.
Dated: February 11, 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
636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo by the
assigned district judge.
***
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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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