UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JENNIFER M. HATTON,

Plaintiff, Case No. 3:18-cv-008

vs.

COMMISSIONER OF SOCIAL SECURITY, District Judge Thomas M. Rose

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”). This case is before the Court on Plaintiff’s Statement of Errors (doc. 10), 

the Commissioner’s memorandum in opposition (doc. 15), Plaintiff’s reply (doc. 16), the 

administrative record (doc. 6),2and the record as a whole.

I.

A. Procedural History

Plaintiff filed for SSI on August 20, 2014. PageID 816. Plaintiff claims disability as a result 

of a number of alleged impairments including, inter alia, anxiety and depression. PageID 819. 

After an initial denial of her application, Plaintiff received a hearing before ALJ Eric Anschuetz

on September 15, 2016. PageID 816. The ALJ issued a written decision on December 22, 2016 finding 

Plaintiff not disabled. PageID 65. Specifically, the ALJ found at Step Five that, based upon Plaintiff’s 

 

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

Recommendation.

2

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

number. 
2

residual functional capacity (“RFC”) to perform a reduced range of light work,3“there are jobs that 

exist in significant numbers in the national economy that [Plaintiff] can perform[.]” PageID 76.

Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. PageID 44. 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 65-77), 

Plaintiff’s Statement of Errors (doc. 10), and the Commissioner’s memorandum in opposition (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).

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 

 

3

“Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying 

of objects weighing up to 10 pounds” and “requires a good deal of walking or standing, or . . . sitting most 

of the time with some pushing and pulling of arm or leg controls.” Id. § 416.967(b). An individual who 

can perform light work is presumed also able to perform sedentary work. Id. 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. § 416.967(a).
3

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. § 416.920(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;

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
4

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. § 416.920(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.

In her Statement of Errors, Plaintiff argues that the ALJ erred in evaluating the opinion of

treating psychiatrist Ellen Ballerene, M.D. Doc. 10 at PageID 821. 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 in effect prior to March 27, 2017, 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. § 416.927(c)(2). 

A treater’s opinion 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 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 opinion, consistency of the opinion 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 
5

Cir. 2009); see also 20 C.F.R. § 416.927(c).4 

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. Put simply, “[t]he 

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)). In the absence of a controlling treating source opinion, an ALJ must 

“evaluate all medical opinions” with regard to the factors set forth in 20 C.F.R. § 416.927(c), i.e.,

length of treatment history; consistency of the opinion with other evidence; supportability; and 

specialty or expertise in the medical field related to the individual’s impairment(s). Walton v. Comm’r 

of Soc. Sec., No. 97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).

In this case, Dr. Ballerene, a clinical psychologist who has treated Plaintiff since 2012, 

diagnosed Plaintiff with post-traumatic stress disorder (“PTSD”) with panic-like symptoms and major 

depressive disorder. PageID 658-59. As a result of these mental impairments, Dr. Ballerene found 

Plaintiff moderately limited5in a number of areas of mental functioning, including her ability to 

perform activities within a schedule, maintain regular attendance, and be punctual within customary 

tolerances. See PageID 571-573. More specifically, Dr. Ballerene found that Plaintiff would miss at 

 

4

In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with 

care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12-cv-3071, 2013 WL 

5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is 

entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating 

physician’s opinion is the opinion subjected to another analysis based on the particulars of” 20 C.F.R. 

§ 416.927. 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

least three days of work per month and would be distracted by her psychological symptoms for “twothirds or more” of an eight-hour work day. PageID 658-59. 

The ALJ gave Dr. Ballerene’s opinion “partial weight,” but he adopted none of the limitations 

actually set forth by Dr. Ballerene -- namely, that Plaintiff would miss at least three days of work per 

month and would be distracted for two-thirds of the workday. PageID 75. The ALJ also set forth no 

explanation as to why any specific limitation found by Dr. Ballerene was apparently rejected. Id. The 

omission of any discussion regarding the ALJ’s rejection of these specific disabling limitations is error 

because an ALJ must meaningfully explain why certain limitations are not included in the RFC 

determination, especially when such limitations are set forth in an opinion the ALJ weighs favorably. 

O’Ryan v. Comm’r of Soc. Sec., No. 3:14-CV-125, 2015 WL 6889607, at *4 (S.D. Ohio July 30, 2015), 

report and recommendation adopted, No. 3:14-CV-125, 2015 WL 4934190 (S.D. Ohio Aug. 18, 2015); 

Howard v. Comm’r of Soc. Sec., No. 3:14-CV-364, 2015 WL 8213614, at *4 (S.D. Ohio Dec. 9, 2015), 

report and recommendation adopted, No. 3:14-CV-364, 2016 WL 99114 (S.D. Ohio Jan. 7, 2016); see 

also SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996); Hann v. Colvin, No. 12-cv-06234-JCS, 2014 

WL 1382063, at *22 (N.D. Cal. Mar. 28, 2014); Stoddard v. Astrue, No. 3:09-cv-91, 2010 WL 

3723924, at *1 (E.D. Tenn. Feb. 19, 2010); Washington v. Colvin, No. 13–1147–SAC, 2014 WL 

4145547, at *3 (D. Kan. Aug. 19, 2014).

The undersigned also finds error in the ALJ’s failure, when analyzing Dr. Ballerene’s opinion, 

to specifically mention the concept of controlling weight, analyze the controlling weight factors, or 

specifically decline to give her opinion controlling weight. PageID 75. As noted by this Court on 

numerous occasions, such failure is reversible error because it “deprives the Court of the opportunity 

to meaningfully review whether [the ALJ] undertook the ‘two-step inquiry’ required when analyzing 

treating source opinions.” See, e.g., Marks v. Colvin, 201 F. Supp. 3d 870, 882 (S.D. Ohio 2016). 
7

Such failure is significant because the record contains a number of clinical findings6that appear 

supportive of Dr. Ballerene’s opinion. Specifically, Plaintiff’s treatment records show anxious mood, 

variable concentration and attention, abnormal/psychotic thoughts, persistent anxiety and panic 

attacks, poor memory and concentration, and crying spells. PageID 429, 657, 662, 757.

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, therefore, the 

undersigned concludes that a 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.

 

6 With regard to clinical findings of a mental impairment, the Sixth Circuit has “acknowledged the 

difficulty inherent in proving psychological disabilities.” Keeton v. Comm’r of Soc. Sec., 583 F. App’x 

515, 526 (6th Cir. 2014). “’[W]hen mental illness is the basis of a disability claim, clinical and laboratory 

data may consist of the diagnosis and observations of professionals trained in the field of 

psychopathology.’” Id. (quoting Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989)).
8

Date: October 3, 2018 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge
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).