UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ANGELA RIDENOUR,

Plaintiff, Case No. 3:17-cv-375

vs.

COMMISSIONER OF SOCIAL SECURITY, District Judge Walter H. Rice

Magistrate Judge Michael J. Newman

Defendant.

______________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT: (1) THE NON-DISABILITY

FINDING AT ISSUE BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND 

REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER 

THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT 

WITH THIS OPINION; AND (3) THIS CASE BE CLOSED

______________________________________________________________________________

This is a Social Security disability benefits appeal. At issue is whether the Administrative Law 

Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Supplemental 

Security Income (“SSI”) and/or Disability Insurance Benefits (“DIB”).

2

 This case is before the Court 

upon Plaintiff’s Statement of Errors (doc. 12), the Commissioner’s memorandum in opposition (doc. 

14), Plaintiff’s reply (doc. 15), the administrative record (doc. 7),3and the record as a whole.

I.

A. Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of August 1, 2014. PageID 111. 

Plaintiff claims disability as a result of a number of alleged impairments including, inter alia, 

degenerative disc disease; an anxiety disorder; and bipolar disorder/depression. PageID 113. 

 

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.

2

“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are identical . . . 

and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.1520 respectively.” Colvin v. Barnhart, 475 F.3d 727, 

730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB regulations are made with full knowledge 

of the corresponding SSI regulations, and vice versa.

3 Hereafter, citations to the electronically-filed record will refer only to the PageID number. 
2

After initial denial of her applications, Plaintiff received a hearing before ALJ Gregory G. 

Kenyon on January 21, 2016. PageID 111. The ALJ issued a written decision on April 21, 2016

finding Plaintiff not disabled. PageID 128. Specifically, the ALJ found at Step Five that, based upon 

Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of sedentary work,4“there 

are jobs that exist in significant numbers in the national economy that [she] can perform[.]” PageID 

126-28.

Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. PageID 32-35. See Casey v. 

Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this timely 

appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).

B. Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 111-28), 

Plaintiff’s Statement of Errors (doc. 12), the Commissioner’s memorandum in opposition (doc. 14), 

and Plaintiff’s reply (doc. 15). The undersigned incorporates all of the foregoing and sets forth the 

facts relevant to this appeal herein.

II.

A. Standard of Review

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s nondisability finding is supported by substantial evidence, and (2) whether the ALJ employed the correct 

legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,745-46 (6th Cir. 2007). 

In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 

F.2d 359, 362 (6th Cir. 1978).

 

4 Sedentary work “involves lifting no more than 10 pounds at a time and occasionally lifting or carrying 

articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, 

a certain amount of walking and standing is often necessary in carrying out job duties.” Id. § 416.1567(a).
3

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When substantial evidence 

supports the ALJ’s denial of benefits, that finding must be affirmed, even if substantial evidence also 

exists in the record upon which the ALJ could have found Plaintiff disabled. Buxton v. Halter, 246 

F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of choice’ within which he [or she] can act 

without the fear of court interference.” Id. at 773.

The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -- may 

result in reversal even if the ALJ’s decision is supported by substantial evidence in the record. Rabbers 

v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the Commissioner will 

not be upheld where the [Social Security Administration] fails to follow its own regulations and where 

that error prejudices a claimant on the merits or deprives the claimant of a substantial right.” Bowen, 

478 F.3d at 746.

B. “Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined by the 

Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a “disability” 

includes physical and/or mental impairments that are both “medically determinable” and severe enough 

to prevent a claimant from (1) performing his or her past job and (2) engaging in “substantial gainful 

activity” that is available in the regional or national economies. Id.

Administrative regulations require a five-step sequential evaluation for disability 

determinations. 20 C.F.R. § 416.1520(a)(4). Although a dispositive finding at any step ends the ALJ’s 

review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review 

poses five questions:

1. Has the claimant engaged in substantial gainful activity?;

2. Does the claimant suffer from one or more severe impairments?;
4

3. Do the claimant’s severe impairments, alone or in combination, meet or equal 

the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?;

4. Considering the claimant’s RFC, can he or she perform his or her past relevant 

work?; and

5. Assuming the claimant can no longer perform his or her past relevant work --

and also considering the claimant’s age, education, past work experience, and 

RFC -- do significant numbers of other jobs exist in the national economy 

which the claimant can perform?

20 C.F.R. § 416.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818 (S.D. 

Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social Security 

Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).

III.

On appeal, Plaintiff argues that the ALJ erred in: (1) evaluating the medical opinion of treating 

physicians Robert Linn, D.O., and Mustafa Quadri, M.D.; (2) assuming the role of a medical expert; 

and (3) calculating her RFC. Finding error in the ALJ’s assessment of Dr. Linn’s opinion, the 

undersigned would direct that the ALJ consider Plaintiff’s remaining arguments on remand.

Until March 27, 2017, “the Commissioner’s regulations [that apply to this appeal] establish[ed] 

a hierarchy of acceptable medical source opinions[.]” Snell v. Comm’r of Soc. Sec., No. 3:12-cv-119, 

2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). In descending order, these medical source opinions 

are: (1) treaters; (2) examiners; and (3) record reviewers. Id. Under the regulations then in effect, the 

opinions of treaters are entitled to the greatest deference because they “are likely to be . . . most able

to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a 

unique perspective to the medical evidence that cannot be obtained from the objective medical findings 

alone or from reports of individual examinations[.]” 20 C.F.R. § 416.1527(c)(2).

A treater’s opinions must be given “controlling weight” if “well-supported by medically 

acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other 

substantial evidence in [the] case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 384 
5

(6th Cir. 2013). Even if a treater’s opinion is not entitled to controlling weight, “the ALJ must still 

determine how much weight is appropriate by considering a number of factors, including the length of 

the treatment relationship and the frequency of examination, the nature and extent of the treatment 

relationship, supportability of the opinions, consistency of the opinions with the record as a whole, and 

any specialization of the treating physician.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th 

Cir. 2009); see also 20 C.F.R. § 416.1527(c). 

After treaters, “[n]ext in the hierarchy are examining physicians and psychologists, who often 

see and examine claimants only once.” Snell, 2013 WL 372032, at *9. 

Record reviewers are afforded the least deference and these “non-examining physicians’ 

opinions are on the lowest rung of the hierarchy of medical source opinions.” Id. “The regulations 

provide progressively more rigorous tests for weighing opinions as the ties between the source of the 

opinion and the individual [claimant] become weaker.” Id. (citing SSR 96-6p, 1996 WL 374180, at 

*2 (July 2, 1996)).

Here, the record includes the opinion of Dr. Linn, Plaintiff’s general physician and primary 

treatment provider throughout the period at issue. PageID 597-602, 943-62, 1422-51. Dr. Linn opined 

that, due to her impairments, Plaintiff is able stand for sixty minutes at a time and sit for thirty; work 

for two hours a day; occasionally lift ten pounds; frequently lift nothing; and occasionally engage in a 

number of postural activities. Page 989. Dr. Linn also found that Plaintiff’s depression and anxiety 

would markedly5limit her ability to withstand the stress and pressure of ordinary work activity.6 Id. 

Ultimately, Dr. Linn concluded that Plaintiff was suffering from severe pain and would consequently 

be off task 15% of the workday. Id.

 

5 Whereas “mild” and “moderate” functional limitations are generally considered “non-disabling,” see Sims 

v. Comm’r of Soc. Sec., 406 F. App’x 977, 980 (6th Cir. 2011), “marked” limitations are suggestive of disability. See

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C); Lankford v. Sullivan, 942 F.2d 301, 307 (6th Cir. 1991).

6 Notably, the ALJ concluded that “[n]o treating mental health source has provided an opinion that the 

claimant is ‘disabled’” notwithstanding this portion of Dr. Linn’s opinion. PageID 126. 
6

Albeit recognizing that Dr. Linn’s opinion fell within the purview of the treating physician’s 

rule, the ALJ found it “not entitled to controlling or deferential weight” and instead afforded it “little 

weight.” PageID 124. The ALJ discounted the opinion, first, because “it is unsupported by objective 

signs and findings.” Id. Specifically, the ALJ cited “Dr. Linn’s progress notes [that] show some 

decreased spinal range of motion, tenderness, spasms, and positive straight leg raising, but only on 

some occasions.” Id. The undersigned finds error in this regard because the ALJ’s conclusion is not 

supported by the record. Blakely, 581 F.3d at 406-07 (an ALJ must give good reasons that are 

“supported by the evidence in the case record”); see also Dillman v. Comm’r of Soc. Sec., 990 F. Supp. 

2d 787, 798 (S.D. Ohio 2013). While the ALJ posits that such findings are present in Dr. Linn’s notes 

“only on some occasions,” a thorough reading of the record reveals that Dr. Linn frequently observed 

spasms, tenderness, a limited range of motion, and swelling in Plaintiff’s back. PageID 124. Indeed, 

Dr. Linn documented these findings at twelve out of Plaintiff’s seventeen visits. Compare PageID 

944, 949, 953, 957, 1423, 1427, 1431, 1435, 1438, 1442, 1445, 1449 with PageID 592, 596, 599, 560.

An “ALJ must consider all the record evidence and cannot 'pick and choose' only the evidence that 

supports his [or her] position.” Daniel v. Comm’r of Soc. Sec., No. 3:14-cv-51, 2015 WL 4550406, at 

*4 (S.D. Ohio Mar. 6, 2015); cf. Carter v. Comm’r of Soc. Sec., No. 3:13-cv-296, 2015 WL 791473, 

at *6 (S.D. Ohio Feb. 24, 2015) (finding error where the ALJ referenced only normal findings while 

either ignoring or minimizing abnormal findings).

Insofar as the ALJ discounted Dr. Linn’s opinion because it was unsupported by “other findings 

in the record,” or inconsistent with “the level of treatment [Plaintiff] received,” the undersigned finds 

this analysis similarly flawed. PageID 124. The record is rife with raw medical data that is supportive 

of Dr. Linn’s opinion and overlooked by the ALJ. Most significantly, an MRI in March 2015 showed 

moderate to severe disc space narrowing. PageID 983-84. An MRI in September 2015 demonstrated

neural foraminal narrowing and multilevel cervical spondylosis. PageID 1381. In December 2015, 

Plaintiff’s condition necessitated surgery. PageID 1106. And, finally, X-rays subsequent to Plaintiff’s 
7

surgery continued to exhibit mild foraminal encroachment, uncovertebral arthropathy, and 

degenerative changes of the lumbar spine. PageID 928-29. The record also contravenes the ALJ’s 

statement regarding Plaintiff’s treatment level, as it demonstrates that she underwent surgery, physical 

therapy, and injections for her back pain. Page ID 927-42, 928, 1106. See Dillman v. Comm'r of Soc. 

Sec., 990 F. Supp. 2d 787, 797 (S.D. Ohio 2013) (finding the ALJ’s characterization of “conservative 

treatment” to be belied by a record indicating that Plaintiff had a surgery for her impairment).

However, even assuming, arguendo, that the ALJ’s assessment of the medical record was 

accurate, the ALJ nevertheless erred by determining that such a record could not support Dr. Linn’s 

opinion. Simpson v. Comm’r. of Soc. Sec., 344 Fed. Appx. 181, 194 (6th Cir. 2009) (citing Rohan v. 

Chater, 98 F.3d 966, 970 (7th Cir. 1996) (stating “ALJ’s must not succumb to the temptation to play 

doctor and make their own independent medical findings”)). To the extent that the ALJ interpreted 

Dr. Linn’s objective findings, the raw medical data, and treatment records to be inconsistent with Dr. 

Linn’s opinions, such a judgment was an impermissible supplanting of his own medical judgment for 

that of the treating physician’s. Meece v. Barnhart, 192 F. App’x 456, 465 (6th Cir. 2006) (holding an 

ALJ “may not substitute his own medical judgment for that of the treating physician where the opinion 

of the treating physician is supported by the medical evidence”); Isaacs v. Comm’r of Soc. Sec., No. 

1:08-cv-828, 2009 WL 3672060, at *10 (S.D. Ohio Nov. 4, 2009) (holding that, “[i]n making the 

residual functional capacity finding, the ALJ may not interpret raw medical data in functional terms”). 

Finally, the undersigned notes the ALJ’s conclusion—that Dr. Linn’s opinions are based on an 

uncritical acceptance of Plaintiff’s subjective complaints—is contrary to the record as explained above 

and, thus, unsupported by substantial evidence. Accord Kiser v. Comm’r of Soc. Sec., No. 3:16–cv–

317, 2017 WL 4276657, at *4–5, (S.D. Ohio Sept. 27, 2017). The ALJ points to no evidence that Dr. 

Linn relied on Plaintiff’s complaints rather than his long-standing treating relationship with Plaintiff. 

Thus, the ALJ failed to provide good reasons, supported by evidence in the record, for the insufficient 

weight given to the opinion by Plaintiff’s treater.
8

In light of all the foregoing, the undersigned finds reversible error in the ALJ’s analysis of Dr. 

Linn’s medical opinion. Jones v. Comm’r of Soc. Sec., No.: 3:14-cv-131, 2015 U.S. Dist. LEXIS 

98223, at *14 (S.D. Ohio May 26, 2015) (finding reversible error where the ALJ “failed to conduct a 

controlling weight analysis in analyzing the opinions of [treating physicians] and also failed to give 

good reasons for affording their opinions little weight”). 

IV.

When the ALJ’s non-disability determination is unsupported by substantial evidence, the Court 

must determine whether to remand the matter for rehearing or to award benefits. Generally, benefits 

may be awarded immediately “if all essential factual issues have been resolved and the record 

adequately establishes a plaintiff's entitlement to benefits.” Faucher v. Sec’y of Health & Human 

Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990). 

The Court may only award benefits where proof of disability is strong and opposing evidence is lacking 

in substance, so that remand would merely involve the presentation of cumulative evidence, or where 

proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 

1041 (6th Cir. 1994). In this instance, evidence of disability is not overwhelming, and remand for 

further proceedings -- as specifically set forth above -- is proper. 

V.

IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s non-disability 

finding be found unsupported by substantial evidence, and REVERSED; (2) this matter be

REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for proceedings 

consistent with this opinion; and (3) this case be CLOSED.

Date: December 18, 2018 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge
9

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to 

the proposed findings and recommendations within FOURTEEN days after being served with this 

Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if served 

on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this Report 

and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS

by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to file objections 

by filing a motion for extension, which the Court may grant upon a showing of good cause. 

Any objections filed shall specify the portions of the Report and Recommendation objected to 

and shall be accompanied by a memorandum of law in support of the objections. If the Report and 

Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, the 

objecting party shall promptly arrange for the transcription of the record, or such portions of it as all 

parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge 

otherwise directs. 

A party may respond to another party’s objections within FOURTEEN days after being served 

with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. P. 6(d) if 

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this 

Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN 

DAYS by application of Fed. R. Civ. P. 6(d). 

Failure to make objections in accordance with this procedure may forfeit rights on appeal. See 

Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 

1981).