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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MICHELLE L. HUFF,

Plaintiff, Case No. 3:18-cv-57

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 

UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR FURTHER 

PROCEEDINGS; 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, 11. 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. 12), the 

Commissioner’s memorandum in opposition (doc. 15), Plaintiff’s reply (doc. 16), the 

administrative record (doc. 7),

1 and the record as a whole.

I.

A. Procedural History

Plaintiff filed for SSI alleging a disability onset date of June 30, 2009. PageID 56. Plaintiff 

claims disability as a result of a number of alleged impairments including, inter alia, degenerative 

disc disease, depression, and anxiety. PageID 41.

 1

 Hereafter, citations to the electronically-filed administrative record will refer only to the PageID number. 
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After an initial denial of her application, Plaintiff received a hearing before ALJ Mark 

Hockensmith on August 10, 2016. PageID 98-122. The ALJ issued a written decision on 

November 1, 2016 finding Plaintiff not disabled. PageID 39-51. Specifically, the ALJ found at 

Step Five that, based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced 

range of light work,2 “there are jobs that exist in significant numbers in the national economy that 

[Plaintiff] can perform[.]” PageID 43-51. 

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 29-31. 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 Plaintiff’s Statement of Errors (doc. 

12) and the Commissioner’s memorandum in opposition (doc. 15). The undersigned incorporates

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 

2 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. § 416.967(b). An individual 

who can perform light work is presumed also 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.” 20 C.F.R. § 416.967(a).
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(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” 

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 v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential 

review poses five questions:
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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. § 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’s definition. 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 in (1) weighing the opinion 

of her treating physician, Matthew Noordsij-Jones, M.D.; (2) weighing the opinion of her treating 

mental health nurse; and (3) weighing the opinion of the state agency’s consulting examiners. 

PageID 1148. Finding error in the ALJ’s assessment of Dr. Noordsij-Jones’s opinion, the undersigned 

would direct that the ALJ consider Plaintiff’s remaining arguments on remand.

Under the regulations in effect prior to March 27, 2017, 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. § 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 
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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 opinions, consistency of the opinions 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. “The 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)).

Plaintiff’s treating physician, Matthew Noordsij-Jones, M.D., issued an opinion on August 

5, 2016. PageID 1128. Based on a diagnosis of “chronic low back pain with severe radiculopathy 

symptoms” and “severe anxiety and depression,” Dr. Noordsij-Jones opined that Plaintiff can stand 

for 15 minutes at one time, sit for 30 minutes at one time, and work for only one hour per day. Id. 

He found that Plaintiff could never bend or stoop and could only occasionally balance. Id. 

Ultimately, Dr. Noordsij-Jones concluded that Plaintiff could not perform full-time competitive 

work on a sustained basis without missing work more than two times a month or being off task 

more than 15% of the workday. PageID 1129. 

The ALJ afforded Dr. Noordsij-Jones opinion “little weight,” dismissing it as an opinion 

with “several extreme limitations that are not supported by the record.” PageID 48. Despite 
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acknowledging Dr. Noordsij-Jones’s status as a treating physician, the ALJ erred by failing to 

specifically set forth the relevant controlling weight analysis. Such a failure is reversible error 

because “it deprives the Court of the opportunity to meaningfully review whether [the ALJ] 

undertook the ‘two-step’ inquiry required when analyzing treating source opinions.” Marks v. 

Colvin, 201 F. Supp. 3d 870, 882 (S.D. Ohio 2016).

Rather, the ALJ omitted the first step of the controlling weight test, and instead analyzed

the “[s]upportability” factor found at 20 C.F.R. § 416.927(c)(3) (“The more a medical source 

presents relevant evidence to support a medical opinion, particularly medical signs and laboratory 

findings, the more weight we will give that medical opinion”). As noted by the Court on numerous 

occasions, the “supportability” factor set forth in 20 C.F.R. § 416.927(c)(3) is not part of the 

controlling weight analysis. Lutz v. Comm’r of Soc. Sec., No. 3:16-CV-210, 2017 WL 3140878, 

at *3 (S.D. Ohio July 25, 2017), report and recommendation adopted, No. 3:16-CV-210, 2017 

WL 3432725 (S.D. Ohio Aug. 9, 2017); Dunham v. Comm’r of Soc. Sec., No. 3:16-CV-414, 2017 

WL 4769010, at *4 (S.D. Ohio Oct. 20, 2017), report and recommendation adopted sub nom. 

Dunham v. Berryhill, No. 3:16-CV-414, 2018 WL 502715 (S.D. Ohio Jan. 22, 2018); Caraway v. 

Comm’r of Soc. Sec., No. 3:16-CV-138, 2017 WL 3224665, at *4 (S.D. Ohio July 31, 2017), report 

and recommendation adopted sub nom. Caraway v. Berryhill, No. 3:16-CV-138, 2017 WL 

3581097 (S.D. Ohio Aug. 17, 2017); Hall v. Comm’r of Soc. Sec., No. 3:17-CV-345, 2018 WL 

3386311, at *4 (S.D. Ohio July 12, 2018), report and recommendation adopted, No. 3:17-CV-345, 

2018 WL 3636590 (S.D. Ohio July 31, 2018); Wolder v. Comm’r of Soc. Sec., No. 3:16-CV-00331, 

2017 WL 2544087, at *4 (S.D. Ohio June 13, 2017), report and recommendation adopted, No. 

3:16-CV-331, 2017 WL 2819882 (S.D. Ohio June 28, 2017); Warren v. Comm’r of Soc. Sec., No. 

3:16-CV-00099, 2017 WL 480405, at *4 (S.D. Ohio Feb. 6, 2017), report and recommendation 
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adopted, No. 3:16-CV-99, 2017 WL 1019508 (S.D. Ohio Mar. 14, 2017); Klein v. Comm’r of Soc. 

Sec., No. 3:14-CV-78, 2015 WL 4550786, at *6 (S.D. Ohio Mar. 24, 2015). 

Instead, the supportability factor under 20 C.F.R. § 416.927(c)(3) “is one applied after the 

ALJ decides to ‘not give the treating source’s medical opinion controlling weight.’” Lutz, No. 

3:16-CV-210, 2017 WL 3140878, at *3; see also 20 C.F.R. § 416.927(c)(2) (stating that the 

supportability factor in paragraph (c)(3) is applied when the ALJ does “not give the treating 

source’s medical opinion controlling weight”); see also Gayheart, 710 F.3d at 376 (noting that this 

factor is “properly applied only after the ALJ has determined that a treating-source opinion will 

not be given controlling weight”). 

Even if the ALJ were properly assessing the supportability factor, the ALJ nevertheless 

erred. Specifically, the ALJ found Dr. Noordsij-Jones’s disability opinion unsupported because 

other medical evidence of record suggests “that the claimant ambulates with a normal gait, has full 

muscle strength, and does generally not appear to be in acute distress.” PageID 48. The medical 

records the ALJ cited, however, do not constitute substantial evidence. As a preliminary matter, 

two of the citations contradict the ALJ’s assertion and actually document “gait disturbance.” Id. 

(citing PageID 301). The other records the ALJ cited highlight a diagnosis of a herniated disc that 

prompted emergency back surgery. Id. (citing PageID 370). The remaining records cited by the 

ALJ were medical records generated from hospital visits where Plaintiff was seeking treatment for 

ailments unrelated to this Social Security claim. See e.g., PageID 483 (chief complaint: “flu-like 

symptoms”), 815 (chief complaint: “right eye problem”), 825 (chief complaint: “facial swelling”), 

831 (chief complaint: “shoulder injury”), 839 (chief complaint: nasal congestion and cough), 997 

(chief complaint: “intractable nausea and vomiting”). Where Plaintiff was seeking treatment for 

her degenerative disc disease (one of the medical impairments here at issue), medical records 

consistently demonstrate abnormal clinical findings supportive of Dr. Noordsij-Jones’s opinion. 
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See e.g., PageID 307, 312, 345, 350, 486, 1014, 1019, 1026 (noting reduced strength flexion and 

extension, pain with straight leg raising, joint swelling, numbness in extremities, and lumbar spine 

tenderness). The ALJ’s election -- to focus exclusively on the normal portions of Plaintiff’s 

medical records -- was also error. Hawthorne v. Comm’r of Soc. Sec., No. 3:13–cv–179, 2014 WL 

1668477, at *11 (S.D. Ohio Apr. 25, 2014) (citing Loza v. Apfel, 219 F.3d 378, 393 (5th Cir.2000)). 

Having failed to properly conduct a controlling weight analysis of Dr. Noordsij-Jones’s 

opinion, the non-disability finding by the ALJ here at issue must be reversed.

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 necessary. 

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 

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

IT IS SO ORDERED.
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Date: April 9, 2019 

Michael J. Newman

United States Magistrate Judge

/s Michael Newman