IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISON

TYSHON LAVELL FREEMAN, ) CASE NO.1:20-CV-02323 ) Plaintiff, ) ) MAGISTRATE JUDGE v. ) WILLIAM H. BAUGHMAN, JR. ) COMMISSIONER OF SOCIAL ) MEMORANDUM OPINION AND SECURITY. ) ORDER ) Defendant, )

Introduction Before me1 is an action under

(g) by Tyshon Lavelle Freeman for judicial review of the 2019 decision of the Commissioner of Social Security that denied Freeman’s 2018 application for disability insurance benefits and supplemental security income.2 The Commissioner has filed the transcript of the administrative proceedings.3 Pursuant to my initial4 and procedural5 orders, the parties have briefed their positions6 and

1 The parties have consented to my exercise of jurisdiction and the matter was transferred to me by United States District Judge John R. Adams. ECF No. 16. 2 ECF No. 1. 3 ECF No. 12. Under Local Rule 16.3.1(d) the filing of a certified copy of the administrative record “shall suffice as the [Commissioner’s] answer.” 4 ECF No. 6. 5 ECF No. 13. 6 ECF Nos. 17 (Freeman), 20 (Commissioner), 21 (Freeman reply). filed supplemental fact sheets and charts.7The parties have met and conferred with the goal of reducing or clarifying the issues.8They have participated in a telephonic oral argument.9

For the following reasons, the decision of the Commissioner is affirmed.

Facts Freeman, who was 50 years old at the time of the hearing,10 has an eleventh-grade education11with past relevant work as a material handler, cashier, and general foundry worker.12The ALJ found that Freeman has the following severe impairments: pancreatitis,

diabetes mellitus, diabetic peripheral neuropathy, essential hypertension, weight loss status post hernia repair, gallbladder, spleen and pseudocyst surgeries, depressive disorder, anxiety disorder and post-traumatic stress disorder.13The ALJ then further found that Freeman does not have an impairment of combination of impairments that meet or medically equal a listing, paying particular attention to Listings 11.14 (peripheral

neuropathies), 11.04B (central nervous system vascular accidents), 12.04 (affective disorder) and 12.06 (anxiety related disorders).14In addressing the paragraph B criteria of

7 ECF Nos. 18 (Freeman), 20, Attachment (Commissioner). 8 ECF No. 22. 9 ECF No. 24. 10 Tr. at 31, 93. I note that a previous application for benefits was denied by an ALJ in 2016, which decision was upheld by the Appeals Council.

. Thus, the relevant period of potential disability begins at November16, 2016. 11

. 12

. 13

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. Listings 12.04 and 12.06, which are identical,15the ALJ found that Freeman had moderate limitations in the areas of understanding, remembering and applying information, as well

as concentration, persistence and pace, while finding only mild limitations in the remaining two areas.16 The ALJ concluded that Freeman has an RFC for light work with some additional

physical and mental limitations.17In arriving at that conclusion, the AFC considered Freeman’s testimony at the hearing which, as the ALJ characterized it, alleged a very limited ability to walk, lift and stand, but also indicated “minimal mental symptoms.”18The ALJ further noted that the 2019 records review by state agency physician Gerald Kloyp, M.D. was unpersuasive because, as Dr. Klyop noted, Freeman failed to appear at a consultative examination with Dr. Kylop, resulting in an Dr. Klyop’s inability “to assess

the totality of [Freeman’s] complaints.”19 After concluding that Freeman was capable or performing his past relevant work as a cashier under the RFC, the ALJ, with the assistance of testimony from a VE, alternatively

found that Freeman could perform the duties of marker, garment sorter, and classifier, and further found that jobs in significant numbers exist in the national economy for all named occupations.20

15 Lara v. Berryhill,

, at *4 (S.D. Texas Nov. 28, 2017). 16 Tr. at 19. 17

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. Therefore, Freeman was found not disabled.

Analysis This matter is reviewed under the well-established substantial evidence standard

which need not be restated here. Freeman raises two issues on judicial review:

1. While formulating the RFC, the ALJ assessed a physical RFC finding that is unsupported by any opinion, though there is a professional opinion that further evidence is required, resulting in a failure of the ALJ’s duty to develop the record.21

2. The ALJ failed to explain his analysis of Freeman’s subjective report of symptoms. As is clear from the briefs and the oral argument, the dominant issue here is whether

the ALJ erred by not further developing the record in light of Dr. Klyop’s 2019 observation that there was insufficient evidence to assess the totality of Freeman’s complaints. The essential facts in this instance are a sad snapshot of what may be assumed to be the situation of many claimants. Apparently, Freeman agreed to undergo a consultative examination in August 2018 when contacted by the state agency.22But, when the state agency attempted

21 ECF No. 17 at 12-14. 22 Tr. at 122. in November and December of 2018 to confirm that acceptance and arrange the examination, the agency was not able to connect with Freeman.

To that point, Freeman notes that on January 25, 2019, he was living at a homeless shelter,23 suggesting, but not proving, that he was in such a situation in the preceding months. In any event, it appears undisputed that Freeman did not attend the consultative

examination the state agency was arranging for him and that the state agency, after two unsuccessful attempts to contact Freeman, made no further attempts at contacting Freeman nor sought any explanation as to why Freeman failed to respond to calls for a procedure he had agreed to.

On these facts, we are left, as noted, with Freeman claiming that it was the ALJ who erred by failing to develop the record. The Commissioner, in turn, stated that it is the claimant’s duty to prove his claim and provide a record detailed enough to enable a disability determination.24

I find that the Commissioner has the better argument. While, as observed earlier, it would indeed be unfortunate if Freeman missed the calls from the state agency because of homelessness, it remains true that he has the burden of proving his claim. Far from failing to develop the record, the ALJ here recognized the need for the consultative examination25

23 ECF No. 21 at 2. 24 ECF No. 20 at 4 (citations omitted). 25 Landsaw v. Sec’y of HHS,

(6th Cir. 1986). and acted appropriately. But having ordered the consultative examination, the ball returned to the claimant’s court.

In Hornyak v. Commissioner of Social Security,26the court confronted a very similar situation to this matter where the state agency scheduled a consultative examination that the claimant did not attend and subsequently that physician found insufficient evidence of record on which to opine on disability becsuse of the claimant’s failure to cooperate.27The

Hornyak court, also as here, found nothing in the record to show that the claimant or her counsel requested a new date for the consultative appointment or provided an explanation on the record as to why she failed to appear for the examination.28

Hornyak then noted that under the regulations, a claimant’s application can be denied for failing to appear, without good reason, at an examination the agency schedules.29Moreover, also according to the regulations, if, the agency having made an effort to obtain evidence, the evidence sought is not obtained or is insufficient to determine disability, “[the agency] will make a determination or decision based on the evidence we

have.”30 In sum, I find no error by the ALJ as regards his actions regarding the consultative examination that Freeman, without an on the record reason, did not attend.

26

(W.D. Pennsylvania March 30, 2016). 27

. 28

29

citing

(a), 416.918(a). 30

citing

.1520b(d), 416.b(d). Further, I find no error in the ALJ formulating the RFC with the evidence available. As noted above, that is in express conformity with the regulations. Moreover, it is the ALJ alone who ultimately formulates the RFC,31 and in doing so there is no legal requirement

that a physician must first have made the particular findings the ALJ adopts in the RFC.32I further note, as discussed above, that the so-called Deskins33 rule, as clarified in Kizys,34would appear inapposite here, where the ALJ did order a consultative examination.

As to the matter of the ALJ’s discussion of Freeman’s subjective complaints, as detailed earlier, that the ALJ characterized Freeman’s testimony at the hearing about physical symptoms as stating he had a “very limited” ability to walk, stand, or lift because of back, abdominal, hip, and knee pain, as well as difficulty due to neuropathy.35

But, in assessing the credibility of those complaints, the ALJ, after noting Freeman’s hospitalizations for pancreatitis, found that his symptoms were exacerbated by drug and alcohol use.36 He further found that although Freeman was required to follow up after being treated for thrombosis, he did not do so and was discharged from the anticoagulation clinic

after multiple phone calls and letters.37

31

(d)(2), 404.1546(c), 416.927(d), 416.946(c); SSR 96-5p,

(SSA 1996). 32 Tucker v. Comm’r,

, 226 (6th Cir. 2019). 33 Deskins v. Comm’r,

(N.D. Ohio 2008). 34 Kizys v. Comm’r,

(N.D. Ohio Oct. 21, 2011). 35 Tr. at 20. 36

. 37

. In addition, the ALJ found that a January 2019 x-ray of the left hip showed no fracture or dislocation and further exam findings were of a normal gait, normal reflexes and intact sensation.38Moreover, the ALJ noted that a 2019 exam of Freeman’s left leg

after he complained of pain showed no infection, intact tibia and fibula, and was negative for peripheral vascular disease.39Similarly, a 2019 spinal outpatient examination at the Cleveland Clinic showed that the thoracic, cervical and lumbar spines were normal, motor exam was 5/5 in al muscle groups, the sensory exam was normal, and Freeman’s gait was normal.40He was referred for pain management and physical therapy but made no

appointments.41 Freeman here seems to be arguing that the ALJ failed to do more than cite the objective evidence.42I find that the ALJ both thoroughly reviewed the clinical evidence and

the consistent record of Freeman’s failure to follow recommended treatment43in finding that his claims of disabling pain were not consistent with the evidence.44I further find that the ALJ’s analysis in this regard was sufficiently set forth so as to be fully capable of judicial review.

38

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42 ECF No. 17 at 15. 43 Sias v. Sec’y of HHS,

(6th Cir. 1988). Claimant’s failure to follow prescribed treatment undercuts credibility regarding subjective functional limitations. “The Social Security Act did not repeal the concept of individual responsibility.” 44 Tr. at 20. Conclusion

Accordingly, for the reasons stated, the decision of the Commissioner is affirmed. IT IS SO ORDERED. Signed by: Dated: March 30, 2022 s/William H. Baughman Jr. United States Magistrate Judge