UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

SANDRA M. SCHUMPERT,

Plaintiff, Case No. 3:17-cv-288

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 

TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) 

FOR AN IMMEDIATE AWARD OF BENEFITS; 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. 10. At issue is whether the Administrative Law Judge 

(“ALJ”) erred in a decision issued on January 19, 2016 by finding Plaintiff not “disabled” and 

therefore unentitled to Disability Insurance Benefits (“DIB”). This case is before the Court on 

Plaintiff’s Statement of Errors (doc. 13), the Commissioner’s memorandum in opposition (doc. 

12), Plaintiff’s reply (doc. 13), the administrative record (docs. 6, 7),1and the record as a whole.

I.

A. Procedural History

Plaintiff filed for DIB alleging a disability onset date of February 19, 2007. PageID 305-

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

cervical spine degenerative disc disease, bilateral osteoarthritis of the knees, lumbar spine 

 

1

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

number. 
2

degenerative disc disease, irritable bowel syndrome, residuals of right shoulder injury and 

corrective surgery, affective (depressive) disorder, and anxiety. PageID 1980.

After an initial denial of her application, Plaintiff received a hearing before ALJ Janice M. 

Bruning on April 20, 2010. PageID 123-41. ALJ Bruning issued a decision on September 7, 2010

finding Plaintiff not disabled. PageID 148-57. Specifically, ALJ Bruning found at Step Five that, 

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

sedentary work,

2

“there are jobs that exist in significant numbers in the national economy that 

[Plaintiff] can perform[.]” PageID 153-57. The Appeals Council granted Plaintiff’s request for 

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

proceedings. PageID 165-69.

On remand from the Appeals Council, Plaintiff received a hearing before ALJ Amelia G. 

Lombardo on June 14, 2013. PageID 102-22. ALJ Lombardo issued a decision on July 12, 2013 

finding Plaintiff not disabled. PageID 71-90. Specifically, ALJ Lombardo found at Step Five that, 

based upon Plaintiff’s RFC to perform a reduced range of light work,3“there were jobs that existed 

in significant numbers in the national economy that [Plaintiff] could have performed[.]” PageID 

82-90.

Thereafter, the Appeals Council denied Plaintiff’s request for a review of ALJ Lombardo’s

decision, making her non-disability finding the final administrative decision of the Commissioner. 

PageID 53-55. See Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). 

On appeal to this Court, Judge Rose granted the parties’ joint stipulation to remand to the 

 

2 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.” 20 C.F.R. § 404.1567(a).

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.” 20 C.F.R. § 404.1567(b). An individual 

who can perform light work is presumed also able to perform sedentary work. Id. 
3

Commissioner, thereby reversing ALJ Lombardo’s non-disability finding and remanding the case 

to the Commissioner for additional administrative proceedings. PageID 2113.

On remand from this Court, Plaintiff received a hearing before ALJ Eric Anschuetz on 

November 17, 2015. PageID 2055-2104. ALJ Anschuetz issued a decision on January 19, 2016 

finding Plaintiff not disabled. PageID 1976-99. Specifically, ALJ Anschuetz found at Step Five 

that, based upon Plaintiff’s RFC to perform a reduced range of light work, “there [are] jobs that 

exist in significant numbers in the national economy that [he can] perform[.]” PageID 1990-99. 

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

Anschuetz’s non-disability finding the final administrative decision of the Commissioner. PageID 

1965-67. See Casey, 987 F.2d at 1233. Plaintiff then filed this timely appeal challenging the nondisability finding by ALJ Anschuetz (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 1976-99), 

Plaintiff’s Statement of Errors (doc. 13) 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

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. § 404.1520(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?;
5

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

III.

The medical opinion evidence of record includes, inter alia, opinions from a number of 

treating sources, namely: treating psychiatrists Cheng T. Pan, M.D. and Rafay Atiq, M.D.4; treating 

physicians Barbara A. Hill, M.D. and James Hoover, M.D.; and treating pain management 

specialist Lita Mathai, M.D. PageID 1078-83, 1236-42, 1251-52, 1678-82, 1807-11, 1812-14. 

The record also contains opinions from examining psychologist Alan Boerger, Ph.D.; record 

reviewing physicians Teresita Cruz, M.D. and William Bolz, M.D.; and record reviewing 

psychologist Karen Terry, Ph.D. PageID 734-41, 1084-1102. 

Plaintiff argues that the ALJ erred by: (1) improperly weighing certain medical opinion 

evidence; and (2) failing to properly apply principles of res judicata. Doc. 13 at PageID 2411-21. 

 

4 Dr. Atiq’s opinion was co-authored with Plaintiff’s treating therapist, Lynne Workman, MS, 

LPCC. PageID 1236-62. The remand order from the Appeals court indicated ALJ Bruning inadequately 

evaluated this joint opinion because, in assigning it “little weight,” his only explanation was that Ms. 

Workman was not a recognized acceptable source. PageID 155. While mental health therapists are not 

included among the acceptable sources of medical evidence, see 20 § 404.1513, this opinion was coauthored by Dr. Atiq, an acceptable source. Therefore the reasoning ALJ Bruning provided was insufficient 

to explain the weight assigned. PageID 165-69. As a result, the joint opinion is from a treating source and 

is entitled to review under 20 C.F.R. § 404.1527(c)(2). 
6

Finding error in the ALJ’s analysis of Drs. Pan, Atiq, Cruz, and Bolz, the undersigned does not 

reach the merits of Plaintiff’s res judicata argument or other alleges errors.

Until March 27, 2017, “the Commissioner’s regulations [which 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 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 Cir. 2009); see also 20 C.F.R. § 404.1527(c).5 

 

5

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. § 404.1527. Id.
7

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. § 404.1527(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).

A. Dr. Pan and Dr. Atiq

The ALJ concluded that the joint opinion by Dr. Atiq was entitled to “no weight” and the 

opinion by Dr. Pan was entitled to “little weight.” PageID 1986-87. In so concluding, the ALJ 

found that these opinions were “neither well supported by medically acceptable clinical and 

laboratory diagnostic techniques nor consistent with other substantial evidence in the case record. 

The extent of impairment described could only be based on critical acceptance of [Plaintiff’s] 

subjective pain complaints - which are largely lacking adequate foundation in medical treatment 

records.” PageID 1987. 

The ALJ’s statement in this regard fails to satisfy the requirements of the treating physician 

rule set forth in 20 C.F.R. § 404.1527(c). See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377 

(6th Cir. 2013). The ALJ’s conclusory statement -- that these opinions are not “well supported by 

medically acceptable clinical and laboratory diagnostic techniques nor consistent with other 
8

substantial evidence in the case record[,]” PageID 1987 -- is ambiguous because “[o]ne cannot 

determine whether the purported problem is that the opinions rely on findings that are not objective 

(i.e., that are not the result of medically acceptable clinical and laboratory diagnostic techniques, 

see 20 C.F.R. § 404.1527(c)(2)), or that the findings are sufficiently objective but do not support 

the content of the opinions.” Gayheart, 710 F.3d at 377.

Further, insofar as the ALJ may have concluded that the record was devoid of any clinical 

findings,6such conclusion is unsupported by substantial evidence. First, records from Drs. Pan

and Atiq note objective clinical signs supportive of these opinions, undermining the ALJ’s 

assumption that these opinions were supported only by an uncritical acceptance of Plaintiff’s 

subjective complaints. On mental status examination, Drs. Pan and Atiq found that Plaintiff 

presented with poor memory, difficulty thinking and concentrating, decreased energy, and a 

cautious and passive attitude, and also displayed a flat, anxious and depressed mood/affect. 

PageID 1236-42, 1812-14. Based upon such findings, the ALJ’s conclusion -- that these opinions

“could be based on uncritical acceptance” of Plaintiff’s subjective complaints -- is contrary to the 

record and, thus, unsupported by substantial evidence. Accord Kiser v. Comm’r of Soc. Sec., Case 

No. 3:16-cv-317, 2017 U.S. Dist. LEXIS 158339, *9-10 (S.D. Ohio Sept. 27, 2017).

B. Drs. Cruz and Bolz

Rather than rely on treating physicians Hill and Hoover, the ALJ relied instead on the 

opinions of two record reviewers -- Drs. Cruz and Bolz -- in assessing Plaintiff’s physical 

limitations. See PageID 734-41, 1102. The opinions by Drs. Cruz and Bolz were written on July 

3, 2007 and December 24, 2007, respectively. Id. The ALJ stated “on purely concrete grounds 

 

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)).
9

(i.e., based on objective medical evidence and clinical findings),” these opinions are entitled “great 

weight (in most respects).” PageID 1992. The ALJ provided no further explanation regarding 

how objective evidence of record supports these opinions.

This Court, on a number of occasions, has concluded that such conclusory analysis of 

record reviewing opinions amounts to reversible error. See Hollon v. Comm’r of Soc. Sec., 142 F. 

Supp.3d 577, 584 (S.D. Ohio 2015); Marks v. Colvin, 201 F. Supp.3d 870, 884 (S.D. Ohio 2016); 

Laning v. Comm’r of Soc. Sec., No. 3:15-CV-75, 2016 WL 1729650, at *6 (S.D. Ohio Mar. 28, 

2016); Boyd v. Comm’r of Soc. Sec., No. 3:16-CV-477, 2018 WL 300174, at *3 (S.D. Ohio Jan. 5, 

2018); Marshall v. Comm’r of Soc. Sec., No. 3:16-CV-190, 2017 WL 4324763, at *4 (S.D. Ohio 

Sept. 29, 2017); Boyd v. Comm’r of Soc. Sec., No. 3:16-CV-506, 2018 WL 739103, at *4 (S.D. 

Ohio Feb. 7, 2018); Dowell v. Comm’r of Soc. Sec., No. 3:16-CV-451, 2018 WL 671340, at *4 

(S.D. Ohio Feb. 2, 2018); Logan v. Comm’r of Soc. Sec., No. 3:16-CV-480, 2018 WL 300175, at 

*4 (S.D. Ohio Jan. 5, 2018); Worden v. Comm’r of Soc. Sec., No. 3:14-CV-438, 2016 WL 860694, 

at *6 (S.D. Ohio Mar. 7, 2016); Hale v. Comm’r of Soc. Sec., No. 3:15-CV-360, 2017 WL 1190543, 

at *8 (S.D. Ohio Mar. 30, 2017); Jones v. Comm’r of Soc. Sec., No. 3:15-CV-00428, 2017 WL 

540923, at *6 (S.D. Ohio Feb. 10, 2017). Consistent with the foregoing authority, the undersigned 

finds the ALJ’s analysis of opinions by the two record reviewers (Drs. Cruz and Bolz) unsupported 

by substantial evidence. This serves as an independent basis meriting reversal.

In addition, the opinions by Drs. Cruz and Bolz were written in 2007 while treating source 

opinions were written in 2012. PageID 1078-83, 1236-42, 1251-52, 1678-82, 1807-11, 1812-14. 

While opinions of record reviewers “can be substantial evidence ‘[i]n appropriate circumstances' 

to discount the opinion of examining and treating sources[,]” the record []reviewer must generally 

have had “access to the entire body of medical evidence.” Kaylor v. Astrue, No. 08-415-GWU, 

2009 WL 2473630 at *5 (E.D. Ky. Aug. 11, 2009); see also Ward v. Astrue, No. 09-199-GWU, 
10

2010 WL 1038198, at *3 (E.D. Ky. Mar. 18, 2010). In reviewing the arguments presented by the 

parties, the undersigned agrees with Plaintiff that the ALJ erred in relying on the opinions of nonexamining sources who did not review the complete record, including numerous objective imaging 

findings. As set forth above, Drs. Cruz, Bolz, and Terry -- upon whom the ALJ relied in 

determining the RFC -- did not review the entire body of medical evidence, and specifically, the 

extensive objective imaging findings relied upon by Drs. Pan, Atiq, Hill, Hoover, and Mathai.

PageID 1078-83, 1236-42, 1251-52, 1678-82, 1807-11, 1812-14.

Here, the treating source opinions are consistent and not contradicted by any medical 

source that has reviewed a significant part of the record. Therefore the only medical opinions 

remaining are those of treating sources Drs. Pan, Atiq, M.D, Hill, Hoover, and Mathai which are 

indicative of disability. Id. Therefore, an immediate award of benefits is appropriate. 

IV.

When, as here, the ALJ’s non-disability determination is unsupported by substantial 

evidence, the Court must determine whether to reverse and remand the matter for rehearing or to 

reverse and order the award of benefits. The Court has authority to affirm, modify or reverse the 

Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C. § 

405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991). Generally, benefits may be awarded 

immediately “only 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); 

Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).

In this case, evidence of disability is overwhelming. Plaintiff’s disability is shown by the 

consistent and supported disabling opinions of treaters Atiq, Pan, Hill, Hoover, and Mathai --

opinions which are entitled to deferential, if not controlling, weight. Evidence to the contrary, i.e., 
11

the opinion of record-reviewers Cruz, Bolz, and Terry is based upon a records review of an 

incomplete record, not a physical examination. Accordingly, because the evidence 

overwhelmingly demonstrates Plaintiff’s disability, this case must be remanded for an immediate 

award of benefits. Cf. Moody v. Comm’r of Soc. Sec., No. 14-CV-224, 2016 WL 1729579, at *5 

(S.D. Ohio Feb. 5, 2016); Washington v. Comm’r of Soc. Sec., No. 3:15-CV-367, 2016 WL 

6694199, at *5 (S.D. Ohio Nov. 15, 2016), report and recommendation adopted sub nom. 

Washington v. Colvin, No. 3:15-CV-367, 2016 WL 7494887 (S.D. Ohio Dec. 30, 2016). 

Additionally, given the extensive procedural history of this case, another remand will only serve 

to unnecessarily delay the ultimate outcome here -- a disability finding.

V.

For the foregoing reasons, IT IS ORDERED THAT: (1) the Commissioner’s nondisability finding is 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 an 

immediate award of benefits; 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