UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

TAMARA MARTIN, 

Plaintiff, 

vs. 

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION, 

Defendant. 

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Case No. 3:17-cv-279 

District Judge Walter H. Rice 

Magistrate Judge Sharon L. Ovington 

REPORT AND RECOMMENDATIONS1

I. Introduction 

Plaintiff Tamara Martin brings this case challenging the Social Security 

Administration’s denial of her applications for period of disability, Disability Insurance 

Benefits, and Supplemental Security Income. She applied for benefits on May 16, 2014 

and October 8, 2014, respectively, asserting that she could no longer work a substantial 

paid job. Administrative Law Judge (ALJ) Gregory G. Kenyon concluded that she was 

not eligible for benefits because she is not under a “disability” as defined in the Social 

Security Act. 

The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the 

Commissioner’s Memorandum in Opposition (Doc. #10), Plaintiff’s Reply (Doc. #11), 

and the administrative record (Doc. #6). 

 

1

 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations. 
2 

Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for 

further proceedings. The Commissioner asks the Court to affirm ALJ Kenyon’s nondisability decision. 

II. Background 

Plaintiff asserts that she has been under a “disability” beginning December 15, 

2011. She was forty-six years old at that time and was therefore considered a “younger 

person” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). 

At the time of the ALJ’s decision, she was fifty years old and is thus considered a person 

“closely approaching advanced age.” See 20 C.F.R. §§ 404.1563(d), 416.963(d). She 

has a high school education. See 20 C.F.R. §§ 404.1564(b)(4), 416.964(b)(4).2

A. Plaintiff’s Testimony 

Plaintiff testified at the hearing before ALJ Kenyon that she has kyphosis.”3

 (Doc. 

#6, PageID #84). Additionally, she is missing discs in her upper back and has “no 

cushion” between her tailbone and her hip bone. Id. She “can physically hear them grind 

at some ... points.” Id. She has pain “all over her back.” Id. On a scale from one to ten, 

her pain—on average—ranges between eight and twenty. Id. The pain in her back is 

sharp and aching, and she has numbing and pain down her legs as well. Id. at 84-85. 

She has tried several treatments for her back pain. Injections helped for about a 

week, but when they wore off, the pain was “twice as bad as it was before ... the shot.” 

 

2

 The remaining citations will identify the pertinent Disability Insurance Benefits Regulations with full 

knowledge of the corresponding Supplemental Security Income Regulations. 

3

 “Kyphosis is an exaggerated, forward rounding of the back.” Kyphosis, MAYO CLINIC, 

https://www.mayoclinic.org/diseases-conditions/kyphosis/symptoms-causes/syc-20374205 (last visited 

June 22, 2018). 
3 

Id. at 85. She had not had a shot since November 2015 because of difficulties with her 

insurance. Id. Plaintiff tried physical therapy for six to eight weeks but she stopped 

because “it just causes more pain.” Id. at 85-86. She “occasionally” uses a TENS unit. 

Id. at 86. Unfortunately, when she uses it, it causes her pulse rate to increase and “then I 

get anxious and freak out like I’m going to die.” Id. With her boyfriend’s help, she tries 

to use it at different levels so that her pulse will not increase. Id. Nonetheless, she is 

scared to use it. Id. 

Plaintiff has COPD. Id. at 87. It causes her shortness of breath every day and, 

when she gets anxious, it gets worse. Id. at 88. When she walks from her garage to her 

house, she loses her breath. Id. She has two inhalers. Id. She uses one, Combivent, 

every day. Id. at 88-89. She has to use the rescue inhaler at least once per day and 

sometimes two to three times per day. Id. at 103. She has a nebulizer machine with two 

different medications that she is supposed to use three times a day. Id. at 89. She 

generally only uses it in the morning because it makes her lightheaded, and with her other 

medications, it makes her feel like she is drunk. Id. Respiratory irritants such as dust, 

smoke and smells cause her to cough; sometimes, she coughs so hard that it hurts her 

lungs. Id. at 89. She used to smoke two packs of cigarettes per day but she has cut back 

significantly to less than half a pack per day. Id. at 90. She is trying to quit. Id. 

Plaintiff gets migraines four or five times a month. Id. at 99. If she does not take 

her medication quickly enough, they last all day. Id. If she does take it in time, her 

migraines usually last an hour. Id. Her migraines are “very debilitating.” Id. She 

usually lies on the sofa with something over her eyes to block out the light. Id. at 100. 
4 

Plaintiff has a history of bipolar disorder. Id. at 91. She has “lots of mood swings, 

mostly anger.” Id. She gets angry with everyone and screams at people. Id. She argues 

with and snaps at her boyfriend, sons, daughter, sister, and aunt. Id. at 92. She has “been 

terminated for [her] attitude more than once”—indeed, three of four times. Id. at 92-93. 

The same thing happened each time: she disagrees with something her boss says, gets 

into a heated discussion, tells her boss to “screw off,” and is fired. Id. at 93. She gets 

irritated when she goes into public and does not like crowds. Id. at 96. When she goes to 

the grocery, she “run[s] off the mouth. [She] get[s] told to shut up a lot ....” Id. Plaintiff 

has one best friend. Id. at 97. She lives in another state, and Plaintiff speculated that if 

she lived next door, they “probably wouldn’t be friends anymore ....” Id. 

She also has some depression. Id. at 93. She gets sad often and cries one or two 

times per day. Id. at 93-94. She has anxiety attacks more than once per day. Id. at 95. 

During the attacks, she has chest pain and her heart races. Id. at 95-96. They are 

sometimes so severe that she goes to the hospital because she thinks that she is having a 

heart attack. Id. at 95. Other times, while she is having an attack, she needs someone 

else, like her boyfriend or sister, to help her calm down. Id. There is nothing in 

particular that causes the attacks. Id. at 96. 

She constantly has racing thoughts: “my brain never stops. It never stops. Not 

even to sleep.” Id. at 94. She usually can only sleep for three to five hours per night. Id. 

And she cannot nap during the day. Id. She tried medication to help her sleep but then it 

causes her to sleep all day. Id. at 94-95. 
5 

Plaintiff is very easily distracted and has a difficult time staying on task. Id. at 

102. When she starts something, she usually walks away eventually to start something 

else and never finishes the first thing she started. Id. 

Plaintiff estimated that she can sit for approximately an hour. Id. at 87. She can 

stand for fifteen to twenty minutes but it is painful for her. Id. She cannot walk very far 

because she cannot breathe. Id. She can walk for about one-hundred yards before she 

has to sit down.” Id. at 97. She is not able to lift very much without pain. Id. If she 

picks up a full coffee pot, it causes pain in her lower back. Id. 

On an ordinary day, she spends most of her time sitting around. Id. at 98. She 

babysits her son’s dog, watches TV, and gets on her computer and phone. Id. She 

estimated that she spends seventy-five percent of time on the couch. Id. at 101-02. 

If she takes all of her medications—gabapentin, ibuprofen, and a muscle relaxer—

and does not go to sleep, then she has a low-pain day. Id. at 100. On “low pain days,” 

Plaintiff is able to do some household chores but they are still very tiring. Id. at 98, 100. 

She can vacuum and wash dishes—but she has to do them in shifts with breaks in 

between. Id. at 98. She does not have low-pain days very often. Id. at 100. On highpain days, she is “lucky to get a cup of coffee” because it hurts when she picks up the 

coffeepot. Id. at 101. Then she will spend the rest of the day on the couch. Id. 

Plaintiff lives in a house with her boyfriend. Id. at 79. She has a driver’s license 

and is able to drive for about forty-five minutes at a time and then she has to stop and 

take a break because of the pain. Id. at 79-80. 
6 

Since December 2011, she has only worked—answering the phone—for her 

boyfriend’s business. Id. at 82. She worked for about a year and a half, and she stopped 

working in January 2016 when he closed the business. Id. at 83. She never received a 

paycheck but he paid some of her bills. Id. 

Plaintiff testified that she is a college graduate and is also attending college online 

to get a bachelor’s degree in communications. Id. at 80. She takes one class per semester 

and spends about two hours per week on her schoolwork. Id. at 81. When Plaintiff tried 

to take two classes, “it was too confusing for [her] to keep track of both classes at the 

same time.” Id. Her grades are “about a C average.” Id. She is able to focus better with 

online classes because she does not have a teacher or classroom and she is able to read 

whenever she wants. Id. at 81-82. When her instructors criticize her assignments, she 

gets frustrated and has “gotten out of line with that a couple times.” Id. at 82. 

B. Medical Opinions 

i. Warren C. Morris, M.D. 

Dr. Morris, Plaintiff’s treating physician, completed a medical impairment 

questionnaire on July 7, 2015. Id. at 642. He indicated that Plaintiff’s medical history 

includes chronic shortness of breath, frequent migraines, recent pneumonia, and chronic 

back pain with radicular signs. Id. He diagnosed COPD, back pain, and migraines. Id. 

Plaintiff’s pain is moderate to severe. Id. at 643. 

Dr. Morris opined that Plaintiff could stand for thirty minutes at one time, sit for 

two hours at one time, and work for two hours per day. Id. at 642. She could 

occasionally lift five pounds; occasionally bend and balance; and never stoop or raise her 
7 

arms over shoulder level. Id. at 642-43. He concluded that she is not able to perform 

full-time, competitive work over a sustained basis without missing work more than two 

times per month or being off task more than fifteen percent of the workday due to her 

impairments, medical appointments, and/or her medical treatment. Id. at 643. 

ii. Babatunde T. Onamusi, M.D. 

On April 8, 2013, Dr. Onamusi evaluated Plaintiff and assessed: “1. Chronic back 

pain, probably secondary to degenerative disc disease with moderate degree of thoracic 

kyphosis[;] 2. Report of chronic obstructive pulmonary disease with no objective findings 

on today’s examination.” Id. at 471-77. He opined that Plaintiff “is currently capable of 

engaging in sedentary to light physical demand level activities ....” Id.

iii. Mary Ann Jones, Ph.D 

On September 15, 2011, Dr. Jones evaluated Plaintiff. Id. at 698-704. Plaintiff 

reported to Dr. Jones that her mental health was poor, she suffers from anxiety, 

depression, anger, and irritability, and she has difficulties with her short-term memory. 

Id. at 700. Further, she has difficulty sleeping because of her pain and racing thoughts. 

Id. at 702. Dr. Jones noted that Plaintiff had a tendency to “ramble on and on” and her 

thought association was “very circumstantial.” Id. at 700. In addition, Plaintiff’s 

demeanor was resigned and dysphoric, her affect was sad, she maintained limited eye 

contact, and she presented as preoccupied with her own symptomology. Id. at 701. 

Dr. Jones diagnosed pain disorder and bipolar disorder. Id. at 703. She opined 

Plaintiff “could understand and apply instructions in a work setting consistent with ...” 

an average to low-average range of intelligence. Id. She concluded, “there does appear 
8 

to be some limitations in her ability to respond consistently [and] appropriately to 

common workplace stressors.” Id.

iv. Alan R. Boerger, Ph.D. 

Dr. Boerger evaluated Plaintiff twice—first, on April 10, 2013 and then again on 

July 14, 2014. Id. at 464-69, 522-27. In 2013, Dr. Boerger noted that Plaintiff’s speech 

was “mildly pressured.” Id. at 466. Her affect was positive and “she tended to relate in a 

somewhat joking manner.” Id. at 467. She indicated that she does not have a problem 

with depression, anxiety, or panic attacks. Id. But, she does have trouble falling asleep 

at night because she “worr[ies] about everything and can’t shut [her] mind off.” Id. She 

reported that she does not trust anyone except her boyfriend. Id. 

Dr. Boerger diagnosed bipolar disorder, not otherwise specified (NOS). Id. at 468. 

He indicated that Plaintiff “had a tendency to get bored and frustrated with work 

situations and then to quit her jobs. This low frustration tolerance may result in difficulty 

tolerating work pressures in a work setting.” Id. at 469. Further, “Because of the 

longstanding nature of [Plaintiff’s] emotional difficulties along with current situation 

stressors to include not working and health problems, symptoms are likely to continue for 

the indefinite future.” Id. at 468. 

Dr. Boerger’s next report in 2014 revealed changes in Plaintiff’s mental health. 

Plaintiff reported that she may have some problems with depression; she cries all the 

time; she experiences panic attacks a couple times a week and has had to go to the 

hospital at times because of them; her “short-term memory has gone to hell in a 

handcart”; she has trouble staying focused; and she still has trouble sleeping. Id. at 524. 
9 

Dr. Boerger noted that she was “very verbal and [her] speech was pressured.” Id. at 525. 

And, she appeared “somewhat preoccupied with her physical problems.” Id. 

Dr. Boerger diagnosed bipolar disorder, NOS, attention-deficit/hyperactivity 

disorder, and anxiety disorder, NOS. Id. at 526. He opined that although Plaintiff 

appeared to be capable of understanding instructions, she may have difficulty retaining 

instructions because she “does appear easily stimulated by outside distractions and may 

have difficulty staying on task in work situations.” Id. at 527. He also noted that while 

she related with him in an appropriate manner, she “does appear to have a pattern of 

being impulsive in relationships with others and may have difficulty exercising restraint 

in expressing her opinions in an appropriate fashion.” Id. He concluded that her “anxiety 

and low frustration tolerance are likely to reduce her ability to tolerate work pressures in 

a work setting.” Id. 

v. Michael W. Firmin, Ph.D. 

On June 26, 2014, Dr. Firmin evaluated Plaintiff and completed a mental 

functional capacity assessment. Id. at 545-56. He opined that she was moderately 

limited in her ability to understand, remember, and carry out detailed instructions and 

respond appropriately to changes in a work setting. Id. at 545. She was markedly limited 

in several categories including, for example, her ability to maintain attention and 

concentration for extended periods, interact appropriately with the general public, get 

along with coworkers without distracting them or exhibiting behavioral extremes, and 

travel to unfamiliar places or use public transportation. Id. When asked if Plaintiff was 
10 

employable, Dr. Firmin indicated “deferred. Sustainability would be an issue [with] her 

anger issues.” Id. 

Dr. Firmin noted, “she exhibited mental health symptoms during this particular 

clinical interview that seemingly might interfere with work-related activities because of 

having anxiety, distractibility, excessive talking, lack of focus, and impatience.” Id. at 

548. Her mood was nervous and pessimistic and her facial expressions were sad and 

anxious. Id. at 548-49. She “showed outward anxiety manifestations of excessive 

talking, lack of focus, and nail biting.” Id. at 549. 

Dr. Firmin diagnosed bipolar I disorder, most recent episode manic, moderate; 

generalized anxiety disorder, and intermittent explosive disorder. Id. at 550. He opined 

that “few current intellectual limitations are suggested for [Plaintiff’s] general workplace 

performance. As such, she seemingly possesses the ability to learn various specialized 

job-related tasks.” Id. at 551. Plaintiff “tracked conversation relevantly” during the 

exam but she was distracted by occasional minor sounds. Id. at 552. She reported that 

she had trouble with coworkers and supervisors in the past. Id. He noted, “Mental health 

issues impacted previous work via difficulties caused by having temper issues at work, 

talking too much when feeling manic, and having called in sick at times due to 

depression.” Id. He further observed that she “showed some particular difficulty in 

responding appropriately to the stress of the present clinical interview. She talked 

constantly ... and frequently required redirection in order to answer the clinical interview 

question.” Id. 
11 

vi. Leslie Rudy, Ph.D., Larry Kravitz, Psy.D., & Denise Rabold, Ph.D. 

Dr. Rudy reviewed Plaintiff’s records on April 23, 2013 in connection with 

Plaintiff’s previous application for Social Security benefits. Id. at 114-28. She found 

that Plaintiff had two severe impairments—spine disorders and affective disorders—and 

one non-severe impairment—COPD. Id. at 121. Dr. Rudy opined that Plaintiff has a 

mild restriction of activities of daily living; moderate difficulties in maintaining social 

functioning; moderate difficulties in maintaining concentration, persistence, or pace; and 

no repeated episodes of decompensation. Id. “Due to her bipolar [disorder], [Plaintiff] 

would be limited to superficial contact with coworkers, supervisors and the general 

public.” Id. at 125. Further, she would be “limited to a static environment where any 

changes in routine could be adequately explained.” Id. at 126. 

On July 21, 2014, Dr. Kravitz reviewed Plaintiff’s records and found that she had 

five severe impairments: disorders of back-discogenic and degenerative; COPD, 

affective disorders, anxiety disorders, and ADD/ADHD. Id. at 130-46. He agreed with 

most of Dr. Rudy’s assessment but added some additional restrictions. Dr. Kravitz 

opined that Plaintiff “is capable of understanding, remembering and carrying out simple 

and some detailed instructions.” Id. at 143. Her “anxiety and avoidance of social contact 

would make involved interpersonal exchanges difficult ....” Id. Accordingly, she is 

limited to “primarily brief and superficial workplace contacts” and “would do best in an 

environment “where supervisory contact was mainly task focused and assignment 

directed”; where her contact with the public and coworkers is limited; and “where she 

could complete tasks relatively independently[] with minimal interaction/distraction by 
12 

others.” Id. Further, because Plaintiff “can become easily overwhelmed and frustrated, 

with increased anxiety symptoms,” her “work routine should have only limited changes, 

with no high or unpredictable levels of work stress.” Id. 

Dr. Rabold reviewed Plaintiffs records on December 12, 2014 and affirmed most 

of Dr. Kravitz’s assessment. Id. at 148-63. Dr. Rabold opined Plaintiff is limited to a 

work environment with no fast pace or high production rates. Id. at 159. Additionally, 

she should have no contact with the public. Id. at 160. 

vii. Diane Manos, M.D., Michael Delphia, M.D., & Eli Perencevich, D.O. 

On April 23, 2013, Dr. Manos reviewed Plaintiff’s records in connection with her 

previous application for benefits. Id. at 114-28. She opined that Plaintiff could lift 

and/or carry fifty pounds occasionally and twenty-five pounds frequently, stand and/or 

walk for a total of six hours in an eight-hour day, and sit for six hours. Id. at 123. She 

could occasionally climb ladders, ropes, or scaffolds and frequently climb ramps or stairs. 

Id. at 124. She could frequently balance, stoop, kneel, crouch, or crawl. Id. Dr. Manos 

concluded that Plaintiff was not under a disability. Id. at 128. 

Dr. Delphia reviewed Plaintiff’s records on July 10, 2014. Id. at 130-46. He 

affirmed most of Dr. Manos’s assessment. Id. However, he concluded that Plaintiff did 

not have any limitations balancing, kneeling, or climbing ramps or stairs. Id. at 140. 

Further, Plaintiff could crawl occasionally and should avoid concentrated exposure to 

fumes, odors, dusts, gases, poor ventilation, etc. Id. at 140-41. 

On December 2, 2014, Dr. Perencevich reviewed Plaintiff’s records and affirmed 

Dr. Delphia’s assessment. Id. at 148-63. He did, however, add one additional limitation: 
13 

Plaintiff should avoid concentrated exposure to hazards such as machinery or heights. Id.

at 158. 

III. Standard of Review 

The Social Security Administration provides Disability Insurance Benefits and 

Supplemental Security Income to individuals who are under a “disability,” among other 

eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42 

U.S.C. §§ 423(a)(1), 1382(a). The term “disability”—as defined by the Social Security 

Act—has specialized meaning of limited scope. It encompasses “any medically 

determinable physical or mental impairment” that precludes an applicant from 

performing a significant paid job—i.e., “substantial gainful activity,” in Social Security 

lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70. 

Judicial review of an ALJ’s non-disability decision proceeds along two lines: 

“whether the ALJ applied the correct legal standards and whether the findings of the ALJ 

are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 

406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 

2007). Review for substantial evidence is not driven by whether the Court agrees or 

disagrees with the ALJ’s factual findings or by whether the administrative record 

contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741 

F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 

2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard 

is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to 

support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc. 
14 

Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a 

scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241 

(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722. 

The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal 

criteria—may result in reversal even when the record contains substantial evidence 

supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 

651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial 

evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to 

follow its own regulations and where that error prejudices a claimant on the merits or 

deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part 

Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 

(6th Cir. 2004)). 

IV. The ALJ’s Decision 

 As noted previously, it fell to ALJ Kenyon to evaluate the evidence connected to 

Plaintiff’s applications for benefits. He did so by considering each of the five sequential 

steps set forth in the Social Security Regulations. See 20 C.F.R. § 404.1520. He reached 

the following main conclusions: 

 Step 1: Plaintiff has not engaged in substantial gainful employment since May 

1, 2013. 

 Step 2: She has the severe impairments of chronic obstructive pulmonary 

disease; degenerative disc disease of the thoracic spine and 

lumbosacral spine; a history of migraine headaches; a bipolar 

disorder; depression; and anxiety. 
15 

 Step 3: She does not have an impairment or combination of impairments that 

meets or equals the severity of one in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. 

 Step 4: Her residual functional capacity, or the most she could do despite her 

impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 

(6th Cir. 2002), consists of “light work ... subject to the following 

limitations: (1) occasional crouching, crawling, kneeling, stooping, 

and climbing of ramps and stairs; (2) no climbing of ladders, ropes, 

and scaffolds; (3) no work around hazards such as unprotected heights 

or dangerous machinery; (4) no concentrated exposure to temperature 

extremes or respiratory irritants; (5) limited to performing unskilled, 

simple, repetitive tasks; (6) occasional contact with co-workers and 

supervisors; (7) no public contact; (8) no teamwork or tandem tasks; 

(9) no fast paced production work or jobs which involve strict 

production quotas; and (10) limited to performing jobs in a relatively 

static work environment in which there is very little, if any, change in 

the job duties or the work routine from one day to the next.” 

 Step 4: She is unable to perform any of her past relevant work. 

 Step 5: She could perform a significant number of jobs that exist in the 

national economy. 

(Doc. #6, PageID #s 54-64). These main findings led the ALJ to ultimately conclude that 

Plaintiff was not under a benefits-qualifying disability. Id. at 64. 

V. Discussion 

Plaintiff contends that the ALJ failed to adequately weigh the medical opinions. 

She also argues that the ALJ erred in finding that she was not credible and in applying 

administrative res judicata and collateral estoppel. The Commissioner maintains that the 

ALJ properly evaluated the medical opinion evidence and Plaintiff’s subjective 

complaints. Further, the ALJ properly applied res judicata to Plaintiff’s previous 

application. 
16 

A. Medical Opinions 

Social Security Regulations require ALJs to adhere to certain standards when 

weighing medical opinions. “Key among these is that greater deference is generally 

given to the opinions of treating physicians than to those of non-treating physicians, 

commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations 

omitted). The rule is straightforward: 

Treating-source opinions must be given “controlling weight” 

if two conditions are met: (1) the opinion “is well-supported by 

medically acceptable clinical and laboratory diagnostic 

techniques”; and (2) the opinion “is not inconsistent with the 

other substantial evidence in [the] case record.” 

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20 

C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723. 

 The Regulations also require ALJs to provide “good reasons” for the weight 

placed upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory 

“good reasons” requirement is satisfied when the ALJ provides “specific reasons for the 

weight placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. R. 96-2p, 

1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to 

any subsequent reviewer the weight given and the reasons for that weight. Id. 

Substantial evidence must support the reasons provided by the ALJ. Id. 

In the present case, ALJ Kenyon observed that Plaintiff’s treating physician, Dr. 

Morris, “reported that [Plaintiff] was disabled from all work activity ....” (Doc. #6, 

PageID #60) (citing Exh. 14F [Doc. #6, PageID #s 642-43]). The ALJ is correct that Dr. 

Morris opined Plaintiff could not “perform full-time, competitive work over a sustained 
17 

basis without missing work more than 2 times a month or being off task more than 15% 

of the work day due to ... her impairments, her medical appointments, and/or her medical 

treatment[.]” Id. at 643. However, the ALJ ignored or overlooked that Dr. Morris 

thought Plaintiff could work two hours per day. Id. at 642. While two hours of work per 

day does not constitute substantial gainful employment, it does indicate that the ALJ 

ignored or overlooked a part of Dr. Morris’s opinion and that Plaintiff’s limitations 

(according to Dr. Morris) are not as severe as set forth by the ALJ. 

ALJ Kenyon determined that Dr. Morris’s opinion that Plaintiff is unable to work 

“cannot be given controlling, or even deferential, weight.” Id. at 60-61. He provided a 

couple reasons: “[Dr. Morris] appears to have based this assessment solely upon an 

uncritical acceptance of [Plaintiff’s] subjective complaints, which are not consistent with 

the medical evidence. There are no pulmonary function test results to support Dr. 

Morris’s contention that [Plaintiff] has serious shortness of breath.” Id. at 60 (citation 

omitted). The ALJ concluded, “As Dr. Morris’ medical opinion is not supported by the 

medical record and is inconsistent with other medical evidence of record, it is afforded 

little weight.” Id. at 60-61. 

Although the ALJ correctly stated the treating physician rule previously in his 

decision, he does not does not address the first condition—whether the opinion is wellsupported by medically acceptable clinical and laboratory diagnostic techniques. “For a 

medical opinion to be well-supported by medically acceptable clinical and laboratory 

diagnostic techniques, it is not necessary that the opinion be fully supported by such 

evidence.” Soc. Sec. R. 96-2p, 1996 WL 374188, at *2. 
18 

ALJ Kenyon very briefly discussed support, noting there are no pulmonary 

function test results that support Dr. Morris’s opinion. But, the absence of one kind of 

test does not reasonably lead to the conclusion that Dr. Morris’s opinion is not wellsupported; it merely indicates that his opinion is not supported by that test. See Soc. Sec. 

R. 96-2p, 1996 WL 374188, at *2. 

Moreover, the ALJ does not adequately address the second condition of the 

treating physician rule—whether the opinion is not inconsistent with the other substantial 

evidence in the case record. The ALJ found that Dr. Morris based his opinion “solely” on 

Plaintiff’s subjective complaints and her complaints are not consistent with medical 

evidence. However, ALJ Kenyon does not explain—or even suggest—why he assumes 

Dr. Morris based his opinion solely on Plaintiff’s subjective complaints. This assumption 

is unreasonable because Dr. Morris did not indicate in any way that he relied only on 

Plaintiff’s subjective reports and because physicians are trained to both consider and 

investigate subjective reports as opposed to blindly accepting them on face value. 

Moreover, the ALJ fails to identify what medical evidence is inconsistent with Dr. 

Morris’s opinion. The ALJ does, however, discuss Plaintiff’s subjective statements later 

in his decision but he does not identify what is inconsistent with Dr. Morris’s opinion. 

See Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010) (“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); Dalton 

v. Berryhill, No. 3:16-CV-57, 2017 WL 766908, at *2 (S.D. Ohio Feb. 27, 2017) (Rice, 
19 

D.J.) (citing Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009)) (“[t]he ALJ is not 

required to discuss every piece of evidence, but must build a logical bridge from evidence 

to conclusion.”). Further, as discussed above, it is not reasonable for the ALJ to assume 

that Dr. Morris relied upon Plaintiff’s statements alone. 

Nonetheless, even if Dr. Morris’s opinion is not entitled to controlling weight, the 

ALJ’s job is not complete: “When the treating physician’s opinion is not controlling, the 

ALJ, in determining how much weight is appropriate, must consider a host of factors, 

including the length, frequency, nature, and extent of the treatment relationship; the 

supportability and consistency of the physician’s conclusions; the specialization of the 

physician; and any other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 

F.3d at 544). “However, in all cases there remains a presumption, albeit a rebuttable 

one, that the opinion of a treating physician is entitled to great deference, its noncontrolling status notwithstanding.” Id. (citing and quoting parenthetically, Soc. Sec. 

Rul. 96–2p, 1996 WL 374188, at *4 (“In many cases, a treating physician’s medical 

opinion will be entitled to the greatest weight and should be adopted, even if it does not 

meet the test for controlling weight.”)). 

Although ALJ Kenyon listed the factors previously in his decision, he does not 

meaningfully address them in his assessment of Dr. Morris’s opinion. 

ALJ Kenyon’s two reasons for assigning Dr. Morris’s opinion little weight do not 

constitute “good reasons” under the Regulations. “A failure to follow the procedural 

requirement ‘of identifying the reasons for discounting the opinions and for explaining 

precisely how those reasons affected the weight accorded the opinions denotes a lack of 
20 

substantial evidence, even where the conclusion of the ALJ may be justified based upon 

the record.’” Friend v. Comm'r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) 

(quoting Rogers, 486 F.3d at 243). The Sixth Circuit “has made clear that ‘[w]e do not 

hesitate to remand when the Commissioner has not provided ‘good reasons’ for the 

weight given to a treating physician’s opinion and we will continue remanding when we 

encounter opinions from ALJ’s that do not comprehensively set forth the reasons for the 

weight assigned to a treating physician’s opinion.’” Cole, 661 F.3d at 939 (quoting 

Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009) 

Dr. Boerger & Dr. Firmin 

ALJ Kenyon “afforded weight” to Dr. Boerger’s assessment and to Dr. Firmin’s 

assessment, “to the extent that it has been incorporated into the above captioned residual 

functional capacity.” (Doc. #6, PageID #60). But, the ALJ erred by reversing the 

analysis required. The correct sequential analysis at Step Four requires the ALJ ground 

his assessment of residual functional capacity on medical source opinions, not the 

reverse. 20 C.F.R. § 404.1545(a)(3). The medical opinions must be weighed before, and 

as an essential part of, the ALJ’s assessment of residual functional capacity. It was error 

to the extent the ALJ did the reverse. Although the Commissioner correctly points out 

that the ALJ discussed both psychologists’ opinions at several other points in his 

decision, the ALJ failed to address their opinions under any applicable factors. The 

Commissioner claims that if the ALJ erred in weighing their opinions, it was harmless 

because the ALJ “‘merely failed to explain why he favored several examining physicians’ 
21 

opinion over another’s. ...’” (Doc. #10, PageID #745) (quoting Kornecky v. Comm’r of 

Soc. Sec., 167 F. App’x 496, 507 (6th Cir. 2006)). 

The ALJ did not only fail to explain why he favored one evaluating psychologist 

over another; he also failed to state whether he favored one over the other. There is no 

indication from the ALJ what their opinions are or to what extent he incorporated them 

into the residual functional capacity. This constitutes error: “Unless a treating source’s 

opinion is given controlling weight, the administrative law judge must explain in the 

decision the weight given to the opinions of a State agency medical or psychological 

consultant....” 20 C.F.R. § 404.1527(e)(2)(ii). 

Interestingly, although Dr. Boerger examined Plaintiff twice, ALJ Kenyon does 

not discuss the first evaluation. To understand why requires a little background 

information. Plaintiff asserts that her disability began December 15, 2011 and thus the 

first evaluation—which occurred on April 10, 2013—is relevant to the present case. The 

ALJ, however, observing that Plaintiff previously applied for Social Security benefits, 

was denied on April 30, 2013, and did not appeal, found that “[u]nder the principles of 

administrative res judicata and collateral estoppel, the earliest date that [Plaintiff] can be 

found disabled is May 1, 2013 ....”4

 (Doc. #6, PageID #54). Accordingly, it is likely 

that the ALJ did not discuss the first opinion because, under his approach, Dr. Boerger’s 

first examination occurred less than one month before Plaintiff’s disability start date. 

 

4

 Plaintiff asserts that the ALJ erred in applying administrative res judicata and collateral estoppel to the 

present case because the denial of Plaintiff’s previous application was only an “initial determination” and 

“not the product of a hearing ....” (Doc. #7, PageID #720) (citation omitted). 
22 

This tactic by the ALJ is illogical. “[T]he Commissioner acknowledges that the ALJ 

should have discussed the report. However, the error was harmless because the ALJ 

discussed the July 2014 opinion and the findings were similar.” (Doc. #10, PageID

#746). The Commissioner’s claim of harmless error flies in the face of Social Security 

Ruling 96-6p: “Administrative law judges ... are not bound by findings made by State 

agency or other program physicians and psychologists, but they may not ignore these 

opinions and must explain the weight given to the opinions in their decisions.” 1996 WL 

374180, at *2 (Soc. Sec. Admin. July 2, 1996) (emphasis added). 

Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.5

B. Remand 

A remand is appropriate when the ALJ’s decision is unsupported by substantial 

evidence or when the ALJ failed to follow the Administration’s own regulations and that 

shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial 

right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to 

provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson, 

378 F.3d at 545-47; failed to consider certain evidence, such as a treating source’s 

opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the 

plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific 

reasons supported by substantial evidence for finding the plaintiff lacks credibility, see 

Rogers, 486 F.3d at 249. 

 

5

 In light of the above discussion, and the resulting need to remand this case, an in-depth analysis 

of Plaintiff’s other challenges to the ALJ’s decision is unwarranted.
23 

Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm, 

modify, or reverse the Commissioner’s decision “with or without remanding the cause for 

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand 

under sentence four may result in the need for further proceedings or an immediate award 

of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th 

Cir. 1994). The latter is warranted where the evidence of disability is overwhelming or 

where the evidence of disability is strong while contrary evidence is lacking. Faucher v. 

Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). 

A judicial award of benefits is unwarranted in the present case because the 

evidence of disability is not overwhelming, and the evidence of disability is not strong 

while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding 

this case to the Social Security Administration pursuant to sentence four of § 405(g) due 

to the problems discussed above. On remand, the ALJ should be directed to evaluate the 

evidence of record, including the medical source opinions, under the applicable legal 

criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and 

to evaluate Plaintiff’s disability claim under the required five-step sequential analysis to 

determine anew whether Plaintiff was under a disability and whether her applications for 

Disability Insurance Benefits and Supplemental Security Income should be granted. 

IT IS THEREFORE RECOMMENDED THAT: 

1. The Commissioner’s non-disability finding be vacated; 

2. No finding be made as to whether Plaintiff Tamara Martin was under a 

“disability” within the meaning of the Social Security Act; 
24 

3. This matter be REMANDED to the Social Security Administration under 

sentence four of 42 U.S.C. § 405(g) for further consideration consistent 

with this Report and Recommendations, and any decision adopting this 

Report and Recommendations; and 

4. The case be terminated on the Court’s docket. 

July 9, 2018 s/Sharon L. Ovington 

 Sharon L. Ovington 

 United States Magistrate Judge 

 
25 

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 Recommendations. Such objections shall specify the 

portions of the Report 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. 

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

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).