UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

KARA MARIE BROOKS, 

Plaintiff, Case No.: 3:17-cv-84

vs.

COMMISSIONER OF District Judge Walter H. Rice

SOCIAL SECURITY, Magistrate Judge Michael J. Newman

 

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’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

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

(“SSI”).2 This case is before the Court upon Plaintiff’s Statement of Errors (doc. 9), the 

Commissioner’s memorandum in opposition (doc. 11), Plaintiff’s reply memorandum (doc. 12), 

the administrative record (doc. 7),3and the record as a whole.

 

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

Recommendation.

2

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

identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 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.

3

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

PageID number. 
2

I.

A. Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of April 1, 2013. PageID

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

alcoholic hepatitis, hepatitis C, chronic obstructive pulmonary disease (“COPD”), and 

depression. PageID 68.

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

G. Kenyon on December 18, 2015. PageID 212. On February 25, 2016 ALJ Kenyon issued a 

written decision finding Plaintiff not disabled. PageID 66-75. Specifically, ALJ Kenyon found 

at Step 5 that, based upon Plaintiff’s residual functional capacity (“RFC”) to perform a limited 

range of light work,

4

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

that [Plaintiff] can perform[.]” PageID 70. 

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

non-disability finding the final administrative decision of the Commissioner. PageID 52. 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 66-75), 

Plaintiff’s Statement of Errors (doc. 9), the Commissioner’s memorandum in opposition (doc. 

 

4 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. 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. § 404.1567(b). An individual who can perform light 

work is presumed to also be 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. § 404.1567(a).
3

11), and Plaintiff’s reply (doc. 12). 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 

non-disability 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.

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” 
4

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?

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 that the ALJ erred by: (1) improperly 

weighing the medical source opinions; (2) failing to properly evaluate her impairments under the 

Listings; and (3) improperly assessing her credibility. Doc. 9 at PageID 1959-66. The Court 

finds reversible error in the ALJ’s analysis of the medical source opinions and, therefore, need 

not reach the merits of Plaintiff’s other assignments of error.

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 
5

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 

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, 

 

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.
6

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).

Here, there are no treating physicians. As a result, each of the medical source opinions is 

to be analyzed under 20 C.F.R. § 404.1527(c). Record-reviewers Ermias Seleshi, M.D. and 

Cindy Matyi, Ph.D., provided written opinions on Plaintiff’s mental health limitations. PageID 

121-35, 153-67. The ALJ assigned both opinions “great weight” stating only that “they are 

consistent with the objective record as a whole.” PageID 73. 

Record-reviewers Esberdado Villlanueva, M.D. and Michael Delphia, M.D. provided 

written report on Plaintiff’s physical limitations. PageID 136-50, 153-67. The ALJ assigned 

both opinions “moderate weight” stating “the records [do] support further exertional limitations 

to light work, as well as non-exertional limitations.” PageID 73. 

Consulting psychologist Giovanni Bonds, Ph.D. also provided a written report regarding 

Plaintiff’s mental health limitations. PageID 959-68. The ALJ assigned Dr. Bonds’ opinion 

“great weight,” stating only that it “is consistent with the record as a whole.” 

Consulting physician, Morris Brown, M.D., completed a medical source statement

regarding Plaintiff’s limitations.6 PageID 1882-85. The ALJ gave “little weight” to Dr. Brown’s 

opinion stating only that “there is no basis to conclude that the [Plaintiff] cannot perform 

 

6 The Court notes that, although Plaintiff refers to Dr. Brown as a treating physician, the Court 

finds he is not. PageID 1962. Dr. Brown saw Plaintiff only one time which fails to establish an ongoing 

treatment relationship. Thus, Dr. Brown is, at best, a consulting physician. Smith v. Comm’r of Soc. Sec., 

482 F.3d 873, 876 (6th Cir. Apr. 9, 2007) (finding that doctors who had examined the claimant on a 

single occasion or treated claimant on a very limited basis did not constitute the type of ongoing treatment 

relationship contemplated by the “treating physician rule”).
7

sedentary work and final determinations of disability are reserved for the [Commissioner].” 

PageID 73. 

The undersigned finds error in the ALJ’s assessment of each medical source opinion. 

The ALJ’s analysis is conclusory and lacking in meaningful explanation. PageID 73. With 

regard to Drs. Seleshi, Matyi and Bonds, despite finding the opinions consistent with the record 

as a whole, the ALJ provides no insight with regard to such evidence. Id. Simply restating a 

medical source’s opinion -- and offering a conclusory assessment of the weight given, without 

further discussion -- fails to satisfy the requirement that the ALJ provide meaningful explanation 

of the weight given to all medical opinion evidence of record. See 20 C.F.R. § 404.927(c); see 

also Aytch v. Comm’r of Soc. Sec., No. 3:13-cv-135, 2014 U.S. Dist. LEXIS 115119, *1, at *5-6

(S.D. Ohio Aug. 19, 2014) (finding the ALJ’s explanation “lacking” where the ALJ merely 

“recapitulated” the reasons stated by the medical expert for disagreeing with the opinion of a 

treating physician and failed to “provide his reasons for according [the] opinion the ... weight he 

did”). 

Based upon all of the foregoing, the Court concludes that the non-disability finding must 

be reversed as a result of the ALJ’s failure to meaningfully analyze the medical source opinions 

regarding Plaintiff’s physical and mental health limitations. 

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 an 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 
8

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). Here, the 

undersigned finds that evidence of disability is not overwhelming, despite two administrative 

hearings being held below. Remand for further proceedings is thus proper. On remand, the ALJ 

should hold another administrative haring nd review all medical opinion evidence under the § 

404.1527(c) factors.

V.

IT IS THEREFORE RECOMMENDED THAT: 

1. The Commissioner’s non-disability finding be found unsupported by substantial 

evidence, and REVERSED; 

2. This matter be REMANDED to the Commissioner under the Fourth Sentence of 

42 U.S.C. § 405(g) for proceedings consistent with this opinion; and

3. This case be CLOSED.

Date: January 5, 2018 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge
9

NOTICE REGARDING OBJECTIONS

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

objections to the proposed findings and recommendations within FOURTEEN days after being 

served with this Report and Recommendation. This period is not extended by virtue of Fed. R. 

Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. 

If, however, this Report and Recommendation was served upon you by mail, this deadline is 

extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an 

extension of the deadline to file objections by filing a motion for extension, which the Court may 

grant upon a showing of good cause. 

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

objected to, and shall be accompanied by a memorandum of law in support of the objections. If 

the Report and Recommendation is based, in whole or in part, upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, 

or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, 

unless the assigned District Judge otherwise directs. 

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

served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. 

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If, 

however, this Report and Recommendation was served upon you by mail, this deadline is 

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

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

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

(6th Cir. 1981).