1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RACHEL R. BALL, 

 Plaintiff, 

 Civil Action 2:18-cv-376 

 v. JUDGE MICHAEL H. WATSON 

 Chief Magistrate Judge Elizabeth P. Deavers 

COMMISSIONER OF SOCIAL 

SECURITY, 

 

 Defendant. 

REPORT AND RECOMMENDATION 

 Plaintiff, Rachel R. Ball, brings this action under 42 U.S.C. § 405(g) for review of a final 

decision of the Commissioner of Social Security (“Commissioner”) denying her application for 

Social Security Supplemental Security Income benefits (“SSI”). This matter is before the 

United States Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of 

Errors (ECF No. 9), the Commissioner’s Memorandum in Opposition (ECF No. 15), Plaintiff’s 

Reply (ECF No. 16), and the administrative record (ECF No. 8). For the reasons that follow, it 

is RECOMMENDED that the decision of the Commissioner be REVERSED and that this 

action be REMANDED under Sentence Four of § 405(g). 

I. BACKGROUND

Plaintiff protectively filed her application for benefits in August 2014, alleging that she 

has been disabled since April 29, 2005, due to rejection of her heart transplant and brain damage 

caused from her heart stopping. (R. at 153–60, 171.) Plaintiff’s application was denied 

initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative 

law judge. (R. at 117–19.) Administrative Law Judge Jeannine Lesperance (“ALJ”) held a 
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hearing on March 28, 2017, at which Plaintiff, who was represented by counsel, appeared and 

testified. (R. at 35–77.) On August 2, 2017, the ALJ issued a decision finding that Plaintiff 

was not disabled within the meaning of the Social Security Act. (R. at 15–26.) On February 

22, 2018, the Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s 

decision as the Commissioner’s final decision. (R. at 1–6.) Plaintiff then timely commenced 

the instant action. 

II. PLAINTIFF’S TESTIMONY 

 At the administrative hearing, Plaintiff testified that she lived with her 5-year-old son. 

(R. at 40.) She is able to drive and has a driver’s license. (R. at 41.) However, her father 

drove her to the hearing and drives her to doctor’s appointments because she “get[s] confused[.]” 

(R. at 42.) Plaintiff graduated from high school, and she went to college for “a few months.” 

(Id.) She previously worked part-time in several restaurants while she was in high school, but 

she has not worked since 2005. (R. at 42–44.) Plaintiff testified that she is unable to work 

because she is unable to stand for “even 20 minutes,” “a lot of things I don’t understand,” and 

“I’m not good with people [] skills.” (R. at 45.) 

 Plaintiff explained that while some of her medical records indicate that she was walking 

three miles a day and running after her son, this was only for a period of time when she was 

getting better. (R. at 45–46.) She started trying to walk because she was told she needed a 

new heart and the doctors wouldn’t consider surgery unless she lost weight. (R. at 46.) At the 

time of the hearing, she weighed approximately 186 pounds, she has previously weighed as 

much as 230 pounds. (Id.) She lost the weight over a period of five years. (Id.) 

 When discussing her activities of daily living, Plaintiff testified that she has a case 

manager who assists her in understanding her mail and paying her bills. (R. at 48.) A friend 
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helps her care for her pets. (Id.) Plaintiff is able to do “routine things” such as shopping, and 

taking care of basic household tasks such as cooking and cleaning. (Id.) Plaintiff writes down 

her appointments so that she does not forget them. (R. at 49.) Socially, she visits friends and 

they watch movies together. (Id.) 

III. MEDICAL RECORDS1

Upon referral for a repeat neuropsychological evaluation by John Kovalchin, M.D., to 

document her neuropsychological functioning and to assist with clinical management, Plaintiff 

presented for evaluation and testing on three occasions in April and July 2014. (R. at 228–34). 

Both Amery Treble-Barna, M.A., a psychology intern with the Pediatric Neuropsychology 

Program, and Jennifer Cass, Ph.D., ABPP/CN, Pediatric Neuropsychologist, signed the 

neuropsychological evaluation (“the neuropsychological evaluation”). (R. at 233–34.) 

According to the neuropsychological evaluation, Plaintiff experienced cognitive 

impairments relating to her cardiac arrest in 2000 and subsequent heart transplant in 2005. (R. 

at 229.) Psychosocial history was remarkable for mood difficulties and several significant 

stressors. (Id.) Plaintiff reported feelings of depression and anxiety. (Id.) Plaintiff has two 

close friends but spends most of her time at home. (Id.) 

 Plaintiff was tested on three occasions, including two during hospitalizations for inpatient 

medical procedures and once as an outpatient. (R. at 230.) During the inpatient testing sessions, 

“Plaintiff had difficulty concentrating, was drowsy, and fell asleep during both testing sessions” 

and had to schedule an outpatient appointment to complete testing. (Id.) Testing results 

revealed overall cognitive ability in the low-average range on the WASI-II, with a full-scale 

 

1

 The Undersigned limits the analysis of the evidence and the administrative decision to the first 

contention of error raised in the Statement of Errors. 
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score of 82, around the tenth percentile. (Id.) Verbal comprehension and perceptual reasoning 

indices were in the low average range with standard scores of 89 (25th percentile) and 80 (10th 

percentile). (Id.) Plaintiff demonstrated significant impairments in verbal learning and 

memory, and improved right hand motor functioning. (R. at 230–31.) 

Plaintiff’s neuropsychological profile places her at risk for academic, vocational, and 

adaptive difficulties. (R. at 232.) She may have difficulty acquiring new skills, performing 

skills independently, learning and recalling new information, and communicating her 

understanding. (Id.) Because of her difficulties with executive functions, she may have a hard 

time getting started on tasks, and struggle to complete her work in a systematic and efficient 

manner. (Id.) Plaintiff’s work may be slow or impulsive, disorganized, or of inconsistent 

quality and her slower processing would likely interfere with her ability to complete tasks 

efficiently. (Id.) Without some level of support, Plaintiff may have difficulty maintaining 

employment. (Id.) 

The neuropsychological evaluation opined that Plaintiff is likely to function best in a 

consistent, highly structured work environment in which she has an individual supervisor/mentor 

who can monitor her performance and offer support. (R. at 232–33.) Plaintiff would benefit 

from cues and ongoing monitoring to ensure that she starts tasks when expected, remain focused, 

and attend to relevant information. (R. at 233.) 

According to the neuropsychological evaluation, Plaintiff’s memory impairments warrant 

particular consideration. (Id.) When possible, Plaintiff’s memory difficulties should be 

managed through environmental supports, external prompts, repetition and review of 

information, and extended drill and practice. (Id.) In future workplace or post-secondary 
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education settings, Plaintiff should qualify for services under the Americans with Disabilities 

Act. (Id.) 

IV. ADMINISTRATIVE DECISION 

On August 2, 2017, the ALJ issued her decision. (R. at 15–26.) At step one of the 

sequential evaluation process,2

 the ALJ first found that Plaintiff had not engaged in substantial 

gainful activity since July 10, 2014, the application date. (R. at 17.) 

At step two, the ALJ concluded that Plaintiff had the following severe impairments: 

coronary artery disease, status post remote heart transplant; obesity; a cognitive impairment; 

anxiety; and depression. (Id.) The ALJ concluded, however, that Plaintiff’s right lower 

extremity neuropathy is non-medically determinable impairment during the relevant period. (R. 

at 17-18.) 

At step three of the sequential process, the ALJ concluded that Plaintiff did not have an 

impairment or combination of impairments that met or equaled one of the listed impairments 

 

2

Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

 1. Is 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, 

20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the claimant perform 

his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the national 

economy? 

See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 
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described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 18.) At step four of the 

sequential process, the ALJ set forth Plaintiff’s RFC as follows: 

After careful consideration of the entire record, I find that the claimant has the 

residual functional capacity to perform sedentary work as defined in 20 CFR 

416.967(a) except that she can occasionally balance, stoop, kneel, crouch, or crawl 

and can climb ramps and stairs for up to two hours per day. She cannot climb 

ladders, ropes, or scaffolds; and she cannot work around hazards such as 

unprotected heights, or moving mechanical parts. The claimant should also avoid 

work in temperature extremes, and avoid exposure to humidity, wetness, vibration, 

and atmospheric conditions. The claimant can perform simple, routine, short-cycle 

tasks at an average pace, but she cannot perform jobs that have strict time or 

production demands. She can adapt to a relatively static set of tasks where changes 

are explained and demonstrated, and she can interact on an unlimited basis with 

coworkers and supervisors, but job duties should not require interaction with the 

general public. 

(R. at 20.) In reaching this determination, the ALJ assigned “some weight” to the 

neuropsychological evaluation. (R. at 24.) 

 Relying on the VE’s testimony, the ALJ concluded that Plaintiff is capable of work that 

exists in significant numbers in the national economy. (R. at 25–26.) She therefore concluded 

that Plaintiff was not disabled under the Social Security Act. (R. at 26.) 

V. STANDARD OF REVIEW 

When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is 

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant 
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evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

 Although the substantial evidence standard is deferential, it is not trivial. The Court 

must “‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley 

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 

1997)). 

 Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘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 Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 

(6th Cir. 2007)). 

VI. ANALYSIS 

 Plaintiff advances three contentions of error. First, Plaintiff argues the RFC does not 

adequately account for Plaintiff’s limitations because, inter alia, the ALJ erred by assigning only 

“some” weight to the opinion of Marc Miller, Ph.D., and the evaluation signed by Amery TrebleBarna, M.A., and Jennifer Cass, Ph.D. ABPP/CN. Plaintiff next contends the ALJ erred by not 

finding her idiopathic progressive polyneuropathy to be a medically determinable impairment or 

non-severe impairment. Plaintiff also argues that the ALJ improperly evaluated Listing 12.02, 

relating to neurocognitive disorders, failing to address the A criteria of Listing 12.02, and only 
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discussing the B and C criteria of the Listing in her decision. Finally, Plaintiff contends the 

ALJ erroneously determined that Plaintiff’s idiopathic progressive polyneuropathy should not 

even be considered a medically determinable impairment. (ECF Nos. 9, 16). For the reasons 

that follow, the Undersigned finds that the ALJ erred when assessing the neuropsychological 

evaluation signed by Ms. Treble-Barna and Dr. Cass. 

 The ALJ assigned “some weight” to this evaluation, explaining as follows: 

In her neuropsychological examination discussed above, Ms. Treble-Barna finds 

that the claimant’s memory and cognitive impairments “may affect” the claimant’s 

ability to function in future work settings (2F/1). The report also indicates that the 

claimant would likely function best in a consistent highly structured work 

environment that she may have difficulty acquiring new skills, getting started on 

tasks and may face psychosocial stressors (2F/6). Although Ms. Treble-Bama is 

not an acceptable medical source, and the purpose of her report was to advise the 

claimant’s parents regarding treatment methods, and not to identify work-related 

functional limits, I give the report some weight. The above residual functional 

capacity assessment accommodates the described functional limitations by limiting 

the claimant to simple routine tasks with few changes, no strict production 

requirements, and no public interaction. 

(R. at 24.) 

 Dr. Cass, who co-signed Ms. Treble-Barna’s neuropsychological evaluation, is a licensed 

clinical neuropsychologist. (R. at 234.) Although the ALJ contends that Ms. Treble-Barna is 

not an “acceptable medical source,” “she makes no attempt to explain why a report that is cosigned by an acceptable medical source . . . [(a licensed neuropsychologist)] cannot be 

considered[]” an “acceptable medical source.” Smith-Johnson v. Comm’r of Soc. Sec., 579 F. 

App’x 426, 435 (6th Cir. 2014); see also Mitchell v. Comm’r of Soc. Sec., No. 5:15 CV 974, 

2016 WL 4507791, at *6 (N.D. Ohio Aug. 29, 2016) (“Where an ALJ confronted by such an 

opinion bearing the signatures of both an acceptable and non-acceptable source simply declares 

the non-acceptable source the sole ‘author’ of that opinion, and makes no attempt to ascertain 
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whether the acceptable source qualifies as a ‘treating source’ the ALJ has failed to evaluate that 

opinion under the proper standard.”) (citations omitted); Pater v. Comm’r of Soc. Sec., No. 1:15 

CV 1295, 2016 WL 3477220, at *7 (N.D. Ohio June 27, 2016) (“Under the law, there is no 

difference between ‘opinions filled out and signed by a treating psychiatrist and opinions filled 

out by a social worker and then signed – thus adopted – by a treating psychiatrist.’”) (citations 

omitted); Fairchild v. Colvin, 14 F. Supp. 3d 908, 917 n.5 (S.D. Ohio 2014) (finding that an ALJ 

typically is not required to treat the opinions of licensed clinical social workers with the 

deference that is due an “acceptable medical source” under 20 C.F.R. § 404.1513(a), but “in this 

instance, Plaintiff’s treating psychiatrist, Esam Alkhawaga, M.D. signed off on the statements 

given by Ms. Rothman, thus making the statements an opinion from an acceptable medical 

source.”) (citations omitted); cf. Loukinas v. Comm’r of Soc. Sec., No. 1:14-cv-930, 2016 WL 

1126550, at *12 (S.D. Ohio Mar. 21, 2016) (“Dr. Natarajan’s endorsement of the mental status 

questionnaire rendered it an opinion of a treating physician, even if Dr. Natarajan did not 

personally complete the form. . . . Accordingly, the fact that Dr. Natarajan’s opinion was 

contained on a form he may not have generated is not a ‘good reason’ for discounting his 

opinion.”) (citations omitted); Robinson v. Comm’r of Soc. Sec., No. 2:14-cv-01682, 2015 WL 

5768483, at *3 (S.D. Ohio Sept. 30, 2015) (“The Ruling [SSR 96-2p] does not distinguish 

between opinions filled out and signed by a treating psychiatrist and opinions filled out by a 

social worker and then signed—and thus adopted—by a treating psychiatrist. . . . The March 11 

Assessment is a treating source opinion.”). 

 Accordingly, whether Dr. Cass is a treating physician as Plaintiff contends (ECF No. 16 

at 3–4) or examining physician, the ALJ, in weighing Dr. Cass’s medical opinion with the rest of 

the relevant evidence, must apply the factors set forth in 20 C.F.R. § 416.927(c), including the 
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examining and treatment relationship, supportability of the opinion, consistency of the opinion 

with the record as a whole, and the specialization of the source. Id.; 20 C.F.R. § 404.1527(a)–

(c); see also Smith-Johnson, 579 F. App’x 426, 435 (“Koopman’s opinions also are properly 

considered under the regulations that require evaluation of every medical opinion ‘[r]egardless of 

its source,’ and that permit ‘other sources’ to be used to determine severity.”) (citing 20 C.F.R. 

§§ 404.1513(d), 404.1527(c)); Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 

2010) (indicating that there is no requirement, however, that the ALJ “expressly” consider each 

of the factors under Wilson v. Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 

2004) when not affording controlling weight to a treating physician’s opinion within the written 

decision). Here, the ALJ failed to address any of these factors. (R. at 24.) Because of the 

ALJ’s fundamental mischaracterization of the neuropsychological evaluation co-signed by Ms. 

Treble-Barna and Dr. Cass as not an acceptable medical source, it cannot be said that the ALJ 

properly considered the opinions within that evaluation. Id.; see also Trietsch v. Astrue, No. 

3:09-cv-413, 2010 WL 6407037, at *8 (S.D. Ohio Dec. 1, 2010) (recommending case be 

remanded where, inter alia, the ALJ failed to weigh doctor’s opinions under the same regulatory 

factors that are applicable to treating medical source opinions), adopted by 2011 WL 1234683 

(S.D. Ohio Mar. 30, 2011). 

 The Commissioner nevertheless insists that the ALJ properly considered the 

neuropsychological evaluation and, in any event, “incorporated many of Ms. Treble-Barna’s 

restrictions by limiting Plaintiff to simple routine tasks with few changes, no strict production 

requirements, and no public interaction.” (ECF No. 15 at 6.) The Commissioner’s arguments 

are not well taken. For the reasons previously discussed, the ALJ erred in concluding that the 

neuropsychological evaluation was not from an “acceptable medical source.” However, even 
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assuming for the moment that the neuropsychological evaluation is not an acceptable medical 

source, it is still an “other source” entitled to consideration using the same factors under 20 

C.F.R. § 404.1527(c) even though “not every factor for weighing opinion evidence will apply in 

every case” depending “on the particular facts in each case.” 20 C.F.R. § 404.1527(f)(1). The 

ALJ “generally should explain the weight given to opinions from these other sources or 

otherwise ensure that the discussion of the evidence in the determination or decision allows a 

claimant or subsequent reviewer to follow the [ALJ’s] reasoning, when such opinions may have 

an effect on the outcome of the case.” 20 C.F.R. § 404.1527(f)(2); see also SSR 06-03p (same). 

The ALJ failed to do so here (R. at 24), rendering the undersigned unable to follow the ALJ’s 

reasoning and requiring remand. Randazzio v. Comm’r of Soc. Sec., No. 2:13–cv–689, 2015 

WL 881511, at *3 (S.D. Ohio Mar. 2, 2015) (finding remand “the most appropriate remedy to 

ensure the ALJ considers” other source opinion in light of ALJ’s failure to properly consider 

such opinion under SSR 06–3p). 

 The ALJ’s assertion that the RFC accommodated the functional limitations in the 

neuropsychological evaluation does not require a different result. Regardless of whether the 

neuropsychological evaluation is from a treating source, other acceptable medical source, or 

other source, the ALJ’s failure to explain how she evaluated this evaluation precludes 

meaningful review. See id.; Tyson v. Comm’r of Soc. Sec., No. 1:16-cv-130, 2017 WL 

1130028, at *5 (W.D. Mich. Mar. 27, 2017) (“It is more than merely ‘helpful’ for the ALJ to 

articulate reasons . . . for crediting or rejecting particular sources of evidence. It is absolutely 

essential for meaningful appellate review.”) (quoting Hurst v. Sec’y of Health and Human Servs., 

753 F.2d 517, 519 (6th Cir. 1985)); Poole v. Berryhill, No. 16-10912, 2017 WL 4960167, at *1 

(E.D. Mich. Sept. 13, 2017) (finding that meaningful review was precluded where the ALJ 
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“failed in meaningful respects to consider the entire period at issue, failed to sufficiently explain 

the weight that she gave to the opinions in the record, and generally failed to provide a logical 

bridge between the evidence and the result”).3

 

 VII. CONCLUSION

 In sum, due to the error outlined above, Plaintiff is entitled to an order remanding this 

case to the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g). 

Accordingly, it is RECOMMENDED that the decision of the Commissioner be REVERSED

and that this action be REMANDED under Sentence Four of § 405(g). 

VIII. PROCEDURE ON OBJECTIONS

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that the failure to object to the Report and 

Recommendation will result in a waiver of the right to de novo review by the District Judge and 

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

 

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This finding obviates the need for in-depth analysis of Plaintiff’s remaining contentions of error 

(See ECF No. 9.) However, on remand, the ALJ may consider these remaining contentions of 

error, if appropriate. 
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court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, 

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to 

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation 

omitted)). 

 

/s/ Elizabeth A. Preston Deavers______ 

DATED: July 15, 2019 ELIZABETH A. PRESTON DEAVERS 

 CHIEF UNITED STATES MAGISTRATE JUDGE