UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

NICOLE L. GREENE,

Plaintiff, Case No. 3:17-cv-281

vs.

COMMISSIONER OF SOCIAL SECURITY, Magistrate Judge Michael J. Newman

(Consent Case)

Defendant.

DECISION AND ENTRY: (1) REVERSING THE ALJ’S NON-DISABILITY FINDING 

AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE 

UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR FURTHER 

PROCEEDINGS; AND (3) TERMINATING THIS CASE ON THE COURT’S DOCKET

This Social Security disability benefits appeal is before the undersigned for disposition 

based upon the parties’ consent. Doc 7. At issue is whether the Administrative Law Judge (“ALJ”) 

erred in a May 4, 2016 decision by finding Plaintiff not “disabled” and therefore unentitled to 

Disability Insurance Benefits (“DIB”) and/or Supplemental Security Income (“SSI”).1 This case 

is before the Court upon Plaintiff’s Statement of Errors (doc. 12), Commissioner’s memorandum 

in opposition (doc. 15), Plaintiff’s response (doc. 16), the administrative record (doc. 5),2and the 

record as a whole.

 

1

“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. § 416.920 respectively.” Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Decision and Entry to DIB regulations are 

made with full knowledge of the corresponding SSI regulations, and vice versa.

2 Hereafter, citations to the electronically-filed administrative record will refer only to the PageID 

number. 
2

I.

A. Procedural History

Plaintiff originally filed applications for DIB and SSI on November 17, 2009. PageID 441-

47. Plaintiff then claimed disability as a result of a number of alleged impairments including, inter 

alia, a bilateral knee impairment, lumbar degenerative disc disease, a mood disorder, attention 

deficit disorder, and anxiety. PageID 61.

After an initial denial of her applications, Plaintiff received a hearing before ALJ James 

I.K. Knapp on July 5, 2013. PageID 152-71. ALJ Knapp issued a decision on July 23, 2013

finding Plaintiff not disabled. PageID 224-34. Specifically, ALJ Knapp found at Step Five that, 

based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of 

sedentary work,3 “there are jobs that exist in significant numbers in the national economy that 

[Plaintiff] can perform[.]” PageID 230-34. The Appeals Council granted Plaintiff’s request for 

review, vacated ALJ Knapp’s non-disability finding, and remanded the case for further 

proceedings. PageID 243-44.

On remand from the Appeals Council, Plaintiff received hearings before ALJ Elizabeth 

Motta on July 16, 2015 and again on February 10, 2016. PageID 89-149. ALJ Motta issued a 

decision on May 4, 2016 finding Plaintiff not disabled. PageID 58-77. Specifically (and like ALJ 

Knapp before her), ALJ Motta found at Step Five that, based upon Plaintiff’s RFC to perform a 

reduced range of sedentary work, “there are jobs that exist in significant numbers in the national 

economy that [Plaintiff] can perform[.]” PageID 76-77. 

 

3 The Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy, 

and very heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. 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. § 404.1567(a).
3

Thereafter, the Appeals Council denied Plaintiff’s request for review, making ALJ Motta’s

non-disability finding the final administrative decision of the Commissioner. PageID 46-48. See 

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

filed this timely appeal challenging the non-disability determination by ALJ Motta (hereafter,

“ALJ”). 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 58-77), 

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

15), and Plaintiff’s reply (doc. 16). 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).

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.
4

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. § 404.1520(a)(4). Although a dispositive finding at any step ends the 

ALJ’s review, see Colvin, 475 F.3d at 730, 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?;

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?
5

20 C.F.R. § 404.1520(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. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997). 

III.

In her Statement of Errors, Plaintiff argues the ALJ erred by: (1) improperly weighing 

medical opinion evidence from her treating physician, Martha Johnston, M.D.; and (2) improperly 

evaluating her impairments under Listing § 1.02. Doc. 12 PageID 2444-52. Finding merit to 

Plaintiff’s first alleged error -- regarding the ALJ’s weighing of Dr. Johnston’s opinion of both 

Plaintiff’s physical and mental impairments -- the undersigned does not address Plaintiff’s

remaining alleged error, but directs that it be addressed by the ALJ 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, which control here, 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. § 404.1527(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 (6th Cir. 2013). Even if a treater’s opinion is not entitled to controlling weight, “the ALJ must 
6

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. § 404.1527(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)).

A. Physical Impairments

The medical opinion evidence in this case, inter alia, includes an opinion as to Plaintiff’s 

physical limitations from Dr. Johnston. PageID 1396-1400. After declining to assign Dr. 

Johnston’s opinion controlling or deferential weight, the ALJ assigned the opinion “little weight.” 

PageID 74. 

The Court finds the ALJ improperly gave only conclusory reasons as to the ultimate weight 

accorded to Dr. Johnston’s opinion. Although the ALJ states factors under the controlling weight 

test, the ALJ failed to fully provide an explanation supporting her decision to give Dr. Johnston’s 

opinion “little weight.” PageID. 74-75. Specifically, while the ALJ found that “Dr. Johnston’s

opinion[] [is] inconsistent with the [Plaintiff’s] activities of daily living cited throughout medical 

records, including her own,” PageID 74, the ALJ fails to cite any specific treatment note(s) within 
7

those documents in support of such conclusory contention. Such omission is error. See Friend v. 

Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010) (holding that “it is not enough to 

dismiss a treating physician’s opinion as ‘incompatible’ with other evidence of record” in the 

absence of “some effort to identify the specific discrepancies and to explain why it is the treating 

physician’s conclusion” is accorded lesser weight). 

B. Mental Impairments

Dr. Johnston also provided an opinion as to Plaintiff’s mental health limitations, see 

PageID 1386-95, which the ALJ assigned “some weight.” PageID 74. With regard to the ALJ’s 

rejection of Dr. Johnston’s opinion regarding Plaintiff’s mental limitations partially on the basis 

that she is a family physician and “not a professional mental health source,” such critique is not 

relevant at the controlling weight stage of the treating physician analysis and, instead, is a factor 

“properly applied only after the ALJ has determined that a treating-source opinion will not be 

given controlling weight.” Gayheart, 710 F.3d at 376; see also 20 C.F.R. § 404.1527(c)(5). Courts 

have routinely found that primary physicians are able to provide opinions on mental impairments. 

Specifically, “it is well established that primary care physicians (those in family or general 

practice) ‘identify and treat the majority of Americans’ psychiatric disorders.’” Sprague v. Bowen, 

812 F.2d 1226, 1232 (9th Cir. 1987). A family physician such as Dr. Johnston is authorized to 

opine regarding Plaintiff’s mental status. Wert v. Comm’r of Soc. Sec., 166 F. Supp. 3d 935, 946 

(S.D. Ohio 2016); Byrd v. Comm’r of Soc. Sec., No. 3:14-CV-242, 2015 WL 4540575, at *5 (S.D. 

Ohio May 29, 2015); King v. Comm’r of Soc. Sec., No. 3:14-CV-351, 2016 WL 1729550, at *6 

(S.D. Ohio Mar. 28, 2016).
8

Based on all of the foregoing, the undersigned finds error in the ALJ’s analysis of the 

medical opinion as to both Plaintiff’s physical and mental impairments from Dr. Johnston. 

Accordingly, the ALJ’s non-disability finding is unsupported by substantial evidence.

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); Mowery v. Heckler, 771 F.2d 966, 

973 (6th Cir. 1985). In this case, the evidence of disability is not overwhelming. Therefore, a 

remand for further proceedings is proper.

V.

For the foregoing reasons, IT IS ORDERED THAT: (1) the Commissioner’s nondisability finding is found unsupported by substantial evidence, and REVERSED; (2) this matter 

is 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 is TERMINATED on the docket.

IT IS SO ORDERED.

Date: May 7, 2018 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge