UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ADAM L. REESE,

Plaintiff, Case No. 3:17-cv-283

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 PROCEEDINGS CONSISTENT WITH THIS OPINION; 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 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. 11), the 

Commissioner’s memorandum in opposition (doc. 13), Plaintiff’s reply (doc. 14) the 

administrative record (doc. 7),1and the record as a whole. 

I.

A. Procedural History

Plaintiff filed for SSI on March 29, 2014 alleging disability as a result of a number of 

alleged impairments including, inter alia, depression and panic disorder with agoraphobia. PageID 

54, 196-200.

 

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

number. 
2

After an initial denial of his application, Plaintiff received a hearing before ALJ Benjamin 

Chaykin on March 7, 2016. PageID 67-108. The ALJ issued a decision on April 5, 2016 finding 

Plaintiff not disabled. PageID 52-62. Specifically, the ALJ found at Step Five that, based upon 

Plaintiff’s residual functional capacity (“RFC”) to perform a full range of work at all exertional 

levels subject to non-exertional limitations, “there are jobs that exist in significant numbers in the 

national economy that [Plaintiff] can perform[.]” PageID 57-62.

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 30-32. 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 52-62), 

Plaintiff’s Statement of Errors (doc. 11), the Commissioner’s memorandum in opposition (doc. 

13), and Plaintiff’s reply (doc. 14). 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 
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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. § 416.920(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?;
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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. § 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. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).

III.

In his Statement of Errors, Plaintiff alleges that the ALJ erred by: (1) improperly weighing 

opinions by treating psychiatrist Stephanie Fitz, M.D.; (2) improperly weighing record reviewers 

Jennifer Swain, Psy.D. and Aracelis Rivera, Psy.D.; (3) failing to explain how Plaintiff’s 

“marked”2social impairments are reasonably reflected in the RFC; and (4) improperly assessing 

her credibility. Doc. 11 at PageID 764-71. Finding error in the ALJ’s weighing of Dr. Fitz’s 

opinion, the undersigned does not address Plaintiff’s other alleged errors, but directs that they be 

addressed by the ALJ on remand.

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 

 

2

“Marked” limitations are suggestive of disability See 20 C.F.R. Pt. 416, Subpt. P, App. 1 § 

12.00(C); Lankford v. Sullivan, 942 F.2d 301, 307 (6th Cir. 1991).
5

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

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)). 

Dr. Fitz completed a mental impairment questionnaire in August 2014 and another in July 

2015. PageID 300-03, 621-24. Dr. Fitz opined that Plaintiff was “markedly” impaired in his 

restrictions of activities of daily living, and also “markedly” restricted in his ability to ability to 

maintain social functioning, understand and remember detailed instructions, carry out very detailed 

instructions, maintain attention and concentration for extended periods, sustain an ordinary routine 

without special supervision, work in coordination with or in proximity to others without being 
6

distracted by them; make simple work-related decisions, ask simple questions or request 

assistance, accept instructions and respond appropriately to criticism from supervisors, get along 

with coworkers or peers without distracting them or exhibiting behavioral extremes, maintain 

socially appropriate behavior, and adhere to basic standards of neatness and cleanliness. PageID 

302-303, 623-24. The ALJ found the August 2015 findings by Dr. Fitz “inconsistent with [her] 

July 2014 assessment of [Plaintiff’s] mental limitations as well as her subsequent assessment. For 

that reason, and because the evidence shows that the [Plaintiff] has achieved some improvement 

in lowering his levels of anxiety with treatment,” the ALJ assigned Dr. Fitz’s opinions “moderate 

weight.” PageID 59.

Initially, the Court notes that the ALJ failed to mention the concept of “controlling weight” 

when analyzing Dr. Fitz’s opinions, and further failed to specifically decline to give them

controlling weight. PageID 58-59; Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 

2013) (finding error where the ALJ’s “analysis does not explain to which aspect of the controllingweight test [a] critique is relevant”). Such failure is error. See Martin v. Colvin, 207 F. Supp. 3d 

782, 789 (S.D. Ohio 2016).

Further, with regard to the specific reasoning the ALJ gave in assigning Dr. Fitz’s opinions 

only “moderate weight,” the explanation was contradictory to other statements made by the ALJ. 

PageID 59. Specifically, the ALJ stated that Plaintiff had achieved “some improvement in 

lowering his levels of anxiety with treatment,” yet earlier in the ALJ’s opinion he stated that 

Plaintiff “has a long and consistent treatment history for anxiety and depression.... The Progress 

Notes in [Plaintiff’s] record of his mental health care indicate that he has made little progress 

towards his goals of controlling his panic and anxiety and overcoming his mood disorder.” PageID 

58-59. Dr. Fitz opined in August 2014 that Plaintiff had only a modest response to treatment. 

PageID 301. It is unclear to the undersigned how progress notes -- that state Plaintiff demonstrated 
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“a limited response to mediations and therapy,” “limited progress [and] appeared to be regressing 

towards reaching his goals,” and “a poor response to treatment” -- support a finding that “Plaintiff 

has some improvement in lowering his levels of anxiety with treatment.” PageID 59, 303-04, 634-

24, 622, 697. 

Based upon all of the foregoing, the undersigned concludes that the ALJ’s non-disability 

finding is unsupported by substantial evidence.

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 instance, 

evidence of disability is not overwhelming, and a remand for further proceedings is required. 

V.

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

proceedings consistent with this opinion; and (3) this case is TERMINATED on the docket.

IT IS SO ORDERED.
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Date: May 25, 2018 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge