UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MICHAEL E. McGLOTHIN,

Plaintiff,

vs.

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

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Case No. 3:18-cv-00052

District Judge Thomas M. Rose

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

I. Introduction

Plaintiff Michael E. McGlothin began working in 1982 and continued to work for 

more than two decades. In 2014, he concluded that his health problems prevented him 

from working any longer, and he applied for Disability Insurance Benefits.

The Social Security Administration, through a decision by Administrative Law 

Judge (ALJ) Eric Anschuetz, denied Plaintiff’s application for Disability Insurance 

Benefits. ALJ Anschuetz found that although Plaintiff’s health problems limited his

ability to work, he could still do a significant number of available jobs. This led ALJ 

Anschuetz to conclude that Plaintiff was not under a “disability” as defined by the Social 

Security Act. And without such a disability, he was not eligible to receive Disability 

Insurance Benefits. See 42 U.S.C. § 423(a)(1)(E).

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
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Plaintiff contends in the present case that ALJ Anschuetz erred by (1) rejecting the 

opinions of his long-term treating psychiatrist Sunita Agarwal, M.D.; and, (2) failing to 

accept the state-agency record-reviewing physicians’ opinion about his limited ability to 

perform mental-work activities.

The Commissioner counters that (1) substantial evidence supports the ALJ’s 

decision; (2) the ALJ properly accorded Dr. Agarwal’s opinions little weight in light of 

the record as a whole; and, (3) the ALJ provided the requisite “good reasons” for 

discounting Dr. Agarwal’s opinions and appropriately weighed her opinions in 

accordance with the law.

II. “Disability” Defined

As alluded to above, eligibility to receive Disability Insurance Benefits depends, 

among other things, on whether the applicant for such benefits was under a “disability” as 

defined by social security law. See Bowen v. City of New York, 476 U.S. 467, 470 

(1986). A disability exists when an applicant’s long-lasting (at least one year) “medically 

determinable physical or mental impairment” prevents him or her from engaging in “any 

substantial gainful activity.” 42 U.S.C. §§ 423(d)(1)-(2)(A).

III. Background

A. Plaintiff and His Testimony

On June 17, 2014, the date Plaintiff’s asserted disability began, he was 49 years

old—a person “closely approaching advanced age” under Social Security law. See Doc. 

#8, PageID 55. He has a high-school education.
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At the outset of Plaintiff’s administrative hearing, ALJ Anschuetz noted that

Plaintiff had “an excellent work history from 1982 to 2008.” Id. at 69. He was laid off in 

2008 and his income level fell to $848 in 2009. Id. at 69, 226. Over the next three years, 

he went from “[o]ne job to the next, to the next, to the next, to the next, not keeping a job, 

holding a job down.” Id. at 69.

From January 2013 to June 2014, he worked as a blade maker for a manufacturing 

company. Id. at 249. He testified, “that’s probably the toughest job I ever had, mentally. 

I just couldn’t take it. I tried. I was there altogether almost two years, and the people 

were just so backstabbing....” Id. at 75. He explained that he had an absenteeism 

problem because his wife had cancer and was going through treatment, including 

chemotherapy. A new plant manager told him they would be happy to work with him 

about his absenteeism due to his wife’s cancer. But the plant manager also told him that 

if he missed one more day of work during the next year, he would be fired. These 

paradoxical statements angered Plaintiff to the point he “went into a rage,” but he “kept it 

internal.” Id. at 76. Still, his emotional reaction was extreme: He told the ALJ, “I just 

wanted hurt everybody there, and that’s not me. I’m a... very pacifist person. But this 

place just pushed me beyond limits ... even I knew I had, I didn’t know what I was 

capable of. So I just sat—went back to my workstation....” Id. He said (perhaps to 

himself), “I can’t take this anymore. I can’t. And I—just like they broke me. And I said 

I just can’t do this. I have to get out of here before somebody gets hurt, either somebody 

else or me. And so I just walked out and left. And to be honest with you, I don’t—I’m 
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scared to even look for a job now, because I don’t trust people. I don’t trust... —I just 

don’t trust any of it.” Id.

Plaintiff testified that he cannot perform sedentary jobs because of his mentalhealth problems. He does his best to stay away from people because he does not trust 

them. Being around people causes his panic attacks. He noted, “I’m just not good with 

people. I literally have no desire to be around people.” Id. at 88. 

At one of Plaintiff’s past jobs, the plant manager would watch everything Plaintiff 

did because he wanted Plaintiff to lose his job. Plaintiff had no idea why the plant 

manager wanted this. Plaintiff said, “he hated my guts and wanted me out of that job.” 

Id. at 102.

Plaintiff also discussed his desire to get better and his participation in mentalhealth counseling. He informed the ALJ that he saw Dr. Agarwal, his psychiatrist, every 

2 months. Id. at 116-17.

B. Medical Records

Plaintiff does not argue that the ALJ erred in his findings about Plaintiff’s physical 

impairments and limitations. It is therefore the mental-health evidence that draws 

attention.

Plaintiff underwent counseling with Mental Health Services of Clark and Madison

Counties, starting in September 2014. Over the next few years, he participated in therapy 

with counselors (different ones at different times). He took Xanax daily to combat his 

anxiety and panic attacks. In January 2015, Dr. Agarwal prescribed Plaintiff Seroquel 
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and continued his prescription for Klonopin. Id. at 377.

In September 2015, Dr. Agarwal completed a Medical Source Statement. She 

noted that she began treating Plaintiff on January 21, 2015. Plaintiff reported to Dr. 

Agarwal that his condition had been going on since June 17, 2014. Id. at 424.

Dr. Agarwal believed that Plaintiff had “extreme” limitations—meaning he was 

“unable to function in this area over 50% of the work day or work week ...,” id. at 425—

in four areas of mental-work abilities: (1) his ability to work in coordination with or in 

proximity to others without distracting them or exhibiting behavioral extremes; (2) his 

ability to respond appropriately to co-workers or peers; (3) his ability to perform at 

production levels expected by most employers; and (4) his ability to behave predictably, 

reliably, and in an emotionally stable manner. Id. at 425-26. 

Dr. Agarwal found Plaintiff had “marked” limitations—meaning he was “unable 

to function in this area from 26% to 50% of the work day or work week...,” id.—in many 

areas, including his ability to: (1) accept instruction from or respond appropriately to 

criticism from supervisors or superiors; (2) relate to the general public and maintain 

socially appropriate behavior; (3) perform and complete work tasks in a normal work day 

or work week at a consistent pace; (4) work in cooperation with or in proximity to others 

without being distracted by them; (5) process subjective information accurately and to 

use appropriate judgment; (6) carry through instructions and complete tasks 

independently; (7) maintain attention and concentration for more than brief periods of

time; and (8) respond appropriately to changes in work setting. Id. at 384-86.
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Dr. Agarwal reported that Plaintiff had “very low frustration tolerance” and “anger 

outbursts despite taking medicines.” Id. at 386. She thought that Plaintiff was likely to 

have partial or full-day unscheduled absences from work occurring 5 or more days per 

month due to his conditions and medication side effects. Id.

Record-reviewing psychologist Tonnie Hoyle, Psy.D. opined in March 2015 that 

Plaintiff was markedly limited in his ability to carry out detailed instructions and 

markedly limited in his ability to interact with the public. Id. at 137-138. She further

believed that Plaintiff was moderately limited in his ability to complete a normal 

workday or workweek without interruptions from psychologically based symptoms and 

to perform at a consistent pace without an unreasonable number and length of rest 

periods. Id. at 138. She explained that Plaintiff’s symptoms interfere with his ability to 

sustain close consistent attention to detail. Id.

Two months later, psychologist Mary K. Hill, Ph.D. reviewed Plaintiff’s medical 

records. She found that Plaintiff was markedly limited in his ability to interact 

appropriately with the public and moderately limited in other areas of his mental-work 

functioning. Id. at 150-51. The latter included that Plaintiff was moderately limited in 

his ability to complete a normal workday or workweek without interruptions from 

psychologically based symptoms and to perform at a consistent pace without an 

unreasonable number and length of rest periods. Id. at 151. Dr. Hill explained that 

Plaintiff’s symptoms will limit his concentration, persistence, and pace (c/p/p) and his 

ability to tolerate normal work pressures. And Dr. Hill thought Plaintiff could perform 
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one to three steps tasks with no more than moderate pace or production quotas. Id.

IV. The ALJ’s Decision

ALJ Anschuetz’s decision tracked the 5-step analysis required by Regulation, 

specifically 20 C.F.R. § 404.1520. His more significant findings began (step 2) with the

recognition of Plaintiff’s severe impairments—namely, “osteoarthritis; degenerative disc 

disease; degenerative joint disease [in his] left knee; anxiety disorder; attention deficit 

disorder/attention hyperactive disorder; history of substance abuse in alleged remission.” 

(Doc. #8, PageID #49). The ALJ next (step 3) determined that Plaintiff was not 

automatically eligible for benefits under the Commissioner’s Listing of Impairments, 20 

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

At the next step (step 4), the ALJ evaluated and determined the most Plaintiff 

could do despite his impairments—his residual functional capacity. See Howard v. 

Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002). He found that Plaintiff could 

perform light work with many physical- and mental-work limitations. The ALJ described 

Plaintiff’s mental-work limitations as follows: “Due to mental health impairments, the 

claimant is limited to performing simple, routine, repetitive tasks, but not at a production 

rate. He can have occasional interaction with supervisors, coworkers, and the public. He 

needs to have a stable work environment with gradual changes....” (Doc. #8, PageID

#51).

Plaintiff’s limitations, both physical and mental, led the ALJ to find (step 4) that 

he could not perform his previous work but could (step 5) do a significant number of jobs 
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available in the national economy. Id. at 54-56. These and other finding led to ALJ 

Anschuetz’s final conclusions that Plaintiff was not under a disability and not eligible for 

benefits. Id.

V. Standard of Review

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); see 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. 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,
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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)).

VI. Discussion

The ALJ’s decision to place little weight on Dr. Agarwal’s opinions is at the 

forefront of this case. The ALJ recognized that Dr. Agarwal looked at the form Dr. 

Agarwal completed and concluded, “I give Dr. Agarwal’s opinion little weight; however, 

the extreme and marked limitations are not supported in the treatment notes.” (Doc. 

#54).

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

If 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).

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)).2

The ALJ’s single reason to for placing little weight on Dr. Agarwal’s opinions—

“the extreme and marked limitations are not supported in treatment notes....” (Doc. #8, 

PageID #54)—is insufficient. The ALJ did not cite any specific evidence to support this 

conclusion. He did not point to any examples of treatment notes upon which he rested 

his conclusion. And he did not explain what treatment records led him to reach his

conclusion. By itself, his lone conclusion fails to provide good reasons for discounting 

Dr. Agarwal’s opinions because it is not “‘sufficiently specific to make clear to any 

subsequent reviewers the weight the adjudicator gave to the treating source’s medical 

 2 The Commissioner has rescinded Soc. Sec. R. 96-2p, “effective for claims filed on or after March 27, 

2017.” See 82 FR 15263-01, 2017 WL 1105348 (March 27, 2017). At the time of ALJ Anschuetz’s

decision in this case, Soc. Sec. R. 96-2p was still in effect.
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opinion and the reasons for that weight.’” Gayheart, 710 F.3d at 376 (quoting Ruling 96–

2p, 1996 WL 374188, at *5). There is, moreover, no indication in the ALJ’s mention of 

Dr. Agarwal’s opinion that he evaluated Dr. Agarwal’s opinions under the treatingphysician rule. As a result, the ALJ’s decision does not permit a meaningful review of 

his application of that rule and thus fails to comply with the good-reasons requirement. 

Id. (the good-reasons “requirement ‘ensures that the ALJ applies the treating physician 

rule and permits meaningful review of the ALJ’s application of the rule.’” (quoting

Wilson, 378 F.3d at 544)).

The Commissioner’s contention that the ALJ evaluated Dr. Agarwal’s opinions in 

light of the record as a whole lacks merit. The incorporeal reference to the record as a 

whole sidesteps, without alleviating, the ALJ’s mistake in failing to provide good reasons 

for placing little weight on Dr. Agarwal’s opinions. The ALJ, moreover, did not mention 

evidence in “the record as a whole” when assessing Dr. Agarwal’s opinions and did not 

point to any particular evidence—his reference to Dr. Agarwal’s “treatment notes” is too 

general to matter. See Doc. #8, PageID #54.

The Commissioner borrows the reference “the record as a whole” from Kepke v. 

Comm’r of Soc. Sec., 636 F. App’x 625, 628-29 (6th Cir. 2016) but takes it out of 

context. Kepke states, “In determining whether substantial evidence is inconsistent with 

the treating source’s opinion, the ALJ must examine the record as a whole, ‘not just 

medical opinions.’” Id. This is a far cry from saying that an ALJ’s examination of the 

record as a whole excuses an ALJ’s failure to comply with the good-reasons mandate. 
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“Put simply, it is not enough to dismiss a treating physician’s opinion as ‘incompatible’ 

with other evidence of record; there must be some effort to identify the specific 

discrepancies and to explain why it is the treating physician’s conclusion that gets the 

short end of the stick.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 552 (6th Cir. 

2010).

Turning to the record-reviewing psychologists’ opinions, the regulations required 

the ALJ to consider several factors—at a minimum, the factors of supportability, 

consistency, and specialization—when weighing their opinions. Miller v. Comm'r of Soc. 

Sec., 811 F.3d 825, 836-37 (6th Cir. 2016). Yet ALJ Anschuetz did not do so in any 

meaningful way. He instead placed “partial weight” on their opinions “because they are 

experienced medical personnel who reviewed all the medical evidence of record 

available.” (Doc. #8, PageID #54). This merely reiterated what is true of all physicians 

or psychologists—treating or otherwise: they are experienced medical personnel. The 

fact, moreover, that Drs. Hoyle and Hill reviewed all the available medical records is a 

mere acknowledgment of a circumstance rather that an insight into the validity of their 

opinions provided by an application of the regulatory factors. For these reasons, the 

ALJ’s review of Drs. Hoyle’s and Hill’s opinions fails to comply with the regulations. 

See Soc. Sec. Ruling 96-6p, 1996 WL 374180, *3 (July 2, 1996) (“The regulations 

provide progressively more rigorous tests for weighing opinions as the ties between the 

source of the opinion and the individual become weaker....”).

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

A remand is warranted 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. Examples of situation where remand may be warranted 

include the ALJ’s failure to provide “good reasons” for rejecting a treating medical 

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

treating source’s opinions, see Bowen, 478 F.3d at 747-50; to consider the combined 

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

specific reasons supported by substantial evidence for finding the plaintiff lacks 

credibility, see Rogers, 486 F.3d at 249.

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 
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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. The ALJ should be directed to evaluate, on remand, 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 his application for 

Disability Insurance Benefits 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 Michael McGlothin was under a 

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

3. This case be remanded to the Commissioner and the Administrative Law Judge 

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

this Report and any Decision and Entry adopting this Report; and

4. The case be terminated on the docket of this Court.

April 30, 2019 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
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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).