UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JAMMIE M. BOWERMASTER,

Plaintiff, Case No. 3:18-cv-146

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 is a Social Security disability benefits appeal for which the parties have consented to entry 

of final judgment. 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. 14), Plaintiff’s reply (doc. 15), the administrative record (doc. 7),1 and the record as a whole.

I.

A. Procedural History

Plaintiff filed for SSI on January 20, 2015 alleging disability as a result of a number of alleged 

impairments including, inter alia, esophageal disease, a refractory overactive bladder, osteoarthritis, 

migraine headaches, a mood disorder, and an anxiety disorder. PageID 63. 

After an initial denial of her application, Plaintiff received a hearing before ALJ Mark 

Hockensmith on December 7, 2016. PageID 78-108. The ALJ issued a written decision on May 24, 

2017 finding Plaintiff not disabled. PageID 61-72. Specifically, the ALJ found at Step Five that, based 

 1

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

number. 
2

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] could perform[.]”

PageID 66-72.

Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. PageID 46-48. 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 61-72), 

Plaintiff’s Statement of Errors (doc. 11), the Commissioner’s memorandum in opposition (doc. 14), 

and Plaintiff’s reply (doc. 15). 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 substantial evidence 

 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).
3

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:

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
4

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 weighing the medical opinions 

of record. PageID 1659. As explained more fully herein, the undersigned agrees with Plaintiff’s 

alleged error and finds remand warranted on that basis.

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 medical source opinions 

are: (1) treaters; (2) examiners; and (3) record reviewers. Id. Under the regulations then in effect, 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 

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 
5

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).3

 

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)). 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. § 416.927(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, Plaintiff’s longstanding treating psychiatrist, Mark Smith, M.D., authored opinions

regarding Plaintiff’s mental functional capacity on April 15, 2015 and July 14, 2016. PageID 640, 

1538. In April 2015, Dr. Smith wrote that “because of ongoing mood swings and depression and her 

impaired focus[][,] concentration[,] and memory, she is not able to follow through with work tasks. 

Her anxiety escalates when she tries to work.” PageID 640. In July 2016, based on his observations 

during treatment sessions dating back to 2005, Dr. Smith diagnosed Plaintiff with bipolar disorder, 

panic disorder, and agoraphobia. Id. Due to these impairments, Dr. Smith opined that Plaintiff had 

 3 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. 

§ 416.927. Id.
6

“marked” or “extreme”4 limitations in: restrictions of daily living; difficulties in maintaining social 

functioning; difficulties of concentration, persistence, or pace; and episodes of deterioration or 

decompensation in work. PageID 1541. Ultimately, Dr. Smith concluded that Plaintiff would be 

absent three days a month or more as a result of her impairments or treatment for the same. Id. The 

ALJ afforded both opinions “little weight,” discounting them as inconsistent with the treatment notes 

written contemporaneously with the opinions and with Plaintiff’s alleged “continuing improvement.” 

PageID 70. The ALJ committed multiple errors in weighing the opinions of Dr. Smith.

Initially, the undersigned notes that the ALJ erred in failing to specifically acknowledge Dr. 

Smith’s status as a treating physician, mention the applicable concept of controlling weight, or decline 

to give Dr. Smith’s opinions controlling weight. Id. As noted by this Court on numerous occasions, 

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); Hatton v. Comm’r of Soc. 

Sec., No. 3:18-CV-008, 2018 WL 4766963, at *4 (S.D. Ohio Oct. 3, 2018), report and recommendation 

adopted, No. 3:18-CV-8, 2018 WL 5084758 (S.D. Ohio Oct. 18, 2018); Reese v. Comm’r of Soc. Sec., 

No. 3:17-CV-283, 2018 WL 2381896, at *3 (S.D. Ohio May 25, 2018).

Rather, the ALJ analyzed whether each of Dr. Smith’s opinions were consistent with a single

treatment note written on the same days as his opinions. PageID 70. Such an analysis is not, however, 

tantamount to performing a controlling weight test, which requires the ALJ to analyze whether the 

opinions are “inconsistent with the other substantial evidence in [the] case record.” LaRiccia, 549 F. 

App’x at 384. Discounting Dr. Smith’s longitudinal pictures of Plaintiff’s mental health based on a 

treatment note reflecting Plaintiff’s symptoms on a single day also flouts the very heart of the treating 

physician rule -- which grants deference to the treating physician due to his or her ability “to provide 

 4 Whereas “mild” and “moderate” functional limitations are generally considered “non-disabling,” 

see Sims v. Comm’r of Soc. Sec., 406 F. App’x 977, 980 (6th Cir. 2011), “marked” and “extreme” 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).
7

a detailed, longitudinal picture of [the 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) (emphasis added); see also 

Blakely, 581 F.3d at 406. 

These errors are more glaring when considering that Dr. Smith’s records -- dating back to 2012 

-- consistently document medical findings5 supportive of his opinion. See, e.g., PageID 524, 579, 586, 

588, 600-01, 640-41, 1545-46 (noting anxious, depressed moods; impaired short-term memory; and 

constricted affect). Also supporting Dr. Smith’s opinions is the opinion written by Joseph Edwards, 

Ph.D, the state agency’s record reviewing physician, who opined that Plaintiff was markedly limited 

in maintaining social functioning.

6

 PageID 121.

Insofar as the ALJ found Dr. Smith’s opinions to be inconsistent with Plaintiff’s purported 

improvement, such an analysis was also erroneous. PageID 70. Indeed, the ALJ seemingly 

overlooked that on the same treatment note indicating Plaintiff’s “improved mood,” Dr. Smith also 

noted that “she is not able to work as her focusing and concertation is impaired due to her bipolar 

disorder and panic disorder and her agoraphobia. Her panic easily exacerbates with stress.” PageID 

1545-46. 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)) (An “ALJ must consider all 

the record evidence and cannot ‘pick and choose’ only the evidence that supports his [or her] 

position”); Boulis-Gasche v. Comm’r of Soc. Sec, 451 Fed. Appx. 488, 494 (6th Cir. 2011) (finding 

 5

 “[A] psychiatric impairment is not as readily amenable to substantiation by objective laboratory 

testing as a medical impairment ... consequently, the diagnostic techniques employed in the field of 

psychiatry may be somewhat less tangible than those in the field of medicine.... When mental illness is the 

basis of a disability claim, clinical and laboratory data may consist of the diagnosis and observations of 

professionals trained in the field of psychopathology.” Blankenship, 874 F.2d at 1121.

6

 The undersigned notes that, while the ALJ purportedly “considered” Dr. Edwards’s opinion, the 

ALJ’s did not substantively analyze the opinion nor did the ALJ assign the opinion any weight at all. 

PageID 71. Such an omission violates Commissioner’s regulations, which required him to evaluate the 

opinions of non-treating medical experts under the same regulatory factors -- such as the supportability, 

consistency, and specialization of the medical source -- that apply to treating medical source opinions. See 

SSR 96–6p, 1996 WL 374180 at *2–3 (interpreting, in part, 20 C.F.R. § 416.927(f)).
8

that “the word ‘better’... did not provide the ALJ with substantial evidence from which to find that 

Plaintiff’s mental impairment had subsided”). This is especially true considering that the nature of 

mental health impairments is fluctuating, and any improvement experienced by Plaintiff may have 

been fleeting. Fithen v. Comm’r of Soc. Sec., No. 17-14222, 2016 WL 1281822, at *8 (S.D. Ohio Apr. 

6, 2016) (“The Social Security regulations recognize that a claimant’s level of functioning may vary 

considerably over time and that longitudinal evidence is required in the case of mental impairments”). 

Thus, in light of all the foregoing, the ALJ failed to establish “good reasons” for discounting 

the opinions of Plaintiff’s treating psychiatrist, Dr. Smith. Mitchell v. Comm’r of Soc. Sec., 330 Fed. 

Appx. 563, 569 (6th Cir. 2009). 

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 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 non-disability 

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 further proceedings; and (3) 

this case is TERMINATED on the docket. 
9

IT IS SO ORDERED.

Date: 9/25/2019 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge