UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

PAMELA S. WATKINS,

Plaintiff, Case No. 3:18-cv-154

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 AN IMMEDIATE AWARD OF 

BENEFITS; 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 Disability Insurance Benefits (“DIB”) and/or Supplemental 

Security Income (“SSI”).1

 This case is before the Court on Plaintiff’s Statement of Errors (doc. 11), 

the Commissioner’s memorandum in opposition (doc. 15), Plaintiff’s reply (doc. 17), the 

administrative record (doc. 7),2 and the record as a whole.

I.

A. Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of April 30, 2012. PageID 1916. 

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

fibromyalgia, migraine headaches, depression, and anxiety. PageID 69. 

 1 “The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are 

identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB 

regulations are made with full knowledge of the corresponding SSI regulations, and vice versa. 2

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

number. 
2

After an initial denial of her application, Plaintiff received a hearing before ALJ Lloyd E. 

Hubler, III on April 16, 2015. PageID 135-80. The ALJ issued a written decision on May 30, 2015 

finding Plaintiff not disabled. PageID 242-45. The Appeals Council remanded ALJ Hubler’s decision, 

ordering a reconsideration of whether Plaintiff was disabled for a closed period of disability. PageID 

254-55.

On remand, Plaintiff received a hearing before ALJ Gregory G. Kenyon on January 10, 2017. 

PageID 85-117. ALJ Kenyon issued a written decision on March 23, 2017, again finding Plaintiff not 

disabled. PageID 66-75. Specifically, ALJ Kenyon found at Step Five that, based upon Plaintiff’s 

residual functional capacity (“RFC”) to perform a reduced range of medium work,3 “there are jobs that 

exist in significant numbers in the national economy that [Plaintiff] can perform[.]” PageID 70-75.

Thereafter, the Appeals Council denied Plaintiff’s request for review, making ALJ Kenyon’s 

non-disability finding the final administrative decision of the Commissioner. PageID 58-60. 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). This March 23, 

2017 non-disability finding by ALJ Kenyon (hereinafter “ALJ”) is now before the Court for review.

B. Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 66-73), 

Plaintiff’s Statement of Errors (doc. 11), the Commissioner’s memorandum in opposition (doc. 15), 

and Plaintiff’s reply (doc. 17). The undersigned incorporates all of the foregoing and sets forth the 

facts relevant to this appeal herein.

 3 Medium work involves “lifting no more than 50 pounds at a time with frequent lifting or carrying 

of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c). An individual who can perform medium

work is presumed also able to perform sedentary and light work. Id. 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. § 404.1567(b). 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. § 404.1567(a).
3

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 

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.
4

Administrative regulations require a five-step sequential evaluation for disability 

determinations. 20 C.F.R. § 404.1520(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

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. § 404.1520(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 evaluating her treating-source

opinions. Doc. 11 at PageID 1896. As explained more fully herein, the undersigned agrees with 

Plaintiff’s assignment of error. 

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 
5

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. § 404.1527(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. § 404.1527(c).4

 

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. § 404.1527(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).

 4 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. 

§ 404.1527. Id.
6

Here, Plaintiff’s family physician, John Sefton, D.O., authored an opinion on December 2, 

2013 concluding that “it would be very difficult for [Plaintiff] to get and maintain a job at this 

point -- she would miss as many days as she was there.” PageID 1004. Consistent with his 

December opinion, Dr. Sefton again issued an opinion on March 17, 2015. PageID 1491-98. 

Based on his twenty years of treating her for, inter alia, depression, migraines, and anxiety, Dr. 

Sefton opined that Plaintiff was unable to be prompt and regular in attendance “due to migraines”; 

respond appropriately to supervision, co-workers, and customary work pressures “due to her 

anxiety and depression”; withstand the pressure of meeting normal standards of work productivity 

and accuracy without significant risk of decompensation; sustain attention and concentration at

work; behave in an emotionally stable manner due to “frequent anxiety/depressive episodes”; 

demonstrate reliability; or complete a normal work day and work week without interruption from 

her impairments. PageID 1491-97. Ultimately, Dr. Sefton found that Plaintiff had “marked”5

limitations in maintaining social functioning and in concentration, persistence and pace resulting 

in a failure to complete tasks in a timely manner. PageID 1498.

The ALJ afforded Dr. Sefton’s opinions “little weight.” PageID 70. Initially, the 

undersigned notes that -- despite acknowledging that Dr. Sefton was Plaintiff’s family physician 

-- the ALJ erred in neglecting to explicitly recognize him as a “treating source.” Coldiron v. 

Comm’r of Soc. Sec., 391 F. App’x 435, 442 (6th Cir. 2010). The ALJ also erred in failing to 

mention the applicable concept of controlling weight, analyze the controlling weight factors, or 

specifically decline to give Dr. Sefton’s opinions controlling weight. PageID 70-71. 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 

 5 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

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). 

Instead, the ALJ focused on the supportability and specialty factors set forth in 20 C.F.R. 

§§ 404.1527(c)(4) and (5), both of which apply only after an ALJ specifically declines to afford a 

treater’s opinion controlling weight. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 

2013). Because of the ALJ’s error in this regard, the Court cannot determine whether the ALJ

undertook the “two-step inquiry” required when analyzing treating source opinions. See id. at 376-

78.

Additional error lies in the ALJ’s assessment that -- because Dr. Sefton was Plaintiff’s 

family physician -- “comment[s] on [Plaintiff’s] psychological functioning” was “outside the 

scope of his medical expertise.” PageID 70-71. Dr. Sefton’s lack of specialty in psychiatry or 

psychology does not equate to a lack of qualification to offer mental health opinions -- especially 

since “it is well established that primary care physicians (those in family or general practice) 

‘identify and treat the majority of Americans’ psychiatric disorders.’” Sprague v. Bowen, 812 F.2d 

1226, 1232 (9th Cir. 1987). A family physician such as Dr. Sefton is authorized to opine regarding 

Plaintiff’s mental status. Wert v. Comm’r of Soc. Sec., 166 F. Supp. 3d 935, 946 (S.D. Ohio 2016); 

Byrd v. Comm’r of Soc. Sec., No. 3:14-CV-242, 2015 WL 4540575, at *5 (S.D. Ohio May 29, 

2015); King v. Comm’r of Soc. Sec., No. 3:14-CV-351, 2016 WL 1729550, at *6 (S.D. Ohio Mar. 

28, 2016). 

The ALJ’s error is more glaring when considering two additional factors. First, the only other 

treater of record lends support to Dr. Sefton’s opinions. Specifically, Otto R. Dueno, M.D. opined that 

Plaintiff would be absent more than three times a month; had marked limitation in concentration, 

persistence or pace resulting in a failure to complete tasks in a timely manner; and also had “marked”
8

limitations in episodes of deterioration or decompensation in work. PageID 1458. Dr. Dueno 

supported his opinion with clinical findings, including depressed, anxious mood; difficulty with 

attention and concentration; and an inability to complete tasks. PageID 1457. His prognosis was 

guarded. Id. 

Second, the ALJ’s intense scrutiny of Dr. Sefton’s opinions is glaring in light of the perfunctory 

analysis given to the opinions of the state agency’s record reviewing physicians. Gayheart, 710 F.3d 

at 379 (holding that ALJs are prohibited from applying greater scrutiny to the opinions of treating 

physicians than non-treaters). The ALJ granted these non-treating opinions “moderate weight” without 

any explanation or consideration of the enumerated factors in listed in 20 C.F.R. § 404.1527. PageID 

71. Such an omission contravenes the explicit instructions of the Commissioner’s own regulations 

and rulings, which require the ALJ to weigh the opinions of non-treating physicians under the 

delineated factors, including supportability, consistency, and specialization. See 20 C.F.R. 

§§ 404.1527(d), (f); Social Security Ruling 96-6p, 1996 SSR LEXIS 3, at *5. This error alone 

merits reversal. Capps v. Astrue, No. 3:11-cv-182, 2012 U.S. Dist. LEXIS 58281, at *24-25 (S.D. 

Ohio Apr. 26, 2012) (finding reversible error where the ALJ failed to mention the regulatory 

factors, including supportability, consistency, and specialization); Broyles v. Astrue, No. 3:11-cv179, 2012 U.S. Dist. LEXIS 70150, at *22-23 (S.D. Ohio May 21, 2012) (same); Heatherly v. 

Astrue, No. 3:11-cv-438, 2012 U.S. Dist. LEXIS 162638, at *25-26 (S.D. Ohio Nov. 14, 2012) 

(reversing where “[t]he ALJ’s decision neither considers nor mentions the supportability or 

consistency of [the examining physician’s] opinion and does not refer to any other factor, when 

discussing this physician’s opinion”).

Having failed to properly conduct a controlling weight analysis of the treating-source

opinions, and applying a lesser scrutiny to the non-treating source opinions, the non-disability 

finding by the ALJ here at issue must be reversed. 
9

IV.

When the ALJ’s non-disability determination is unsupported by substantial evidence, the Court 

must determine whether to remand the matter for rehearing or award 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 “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). 

The Court may only award benefits where proof of disability is strong and opposing evidence is lacking 

in substance, so that remand would merely involve the presentation of cumulative evidence, or where 

proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 

1041 (6th Cir. 1994). 

In this case, the ALJ’s errors merit reversal for an immediate award of benefits because proof 

of disability is strong and opposing evidence lacks substance. As noted above, there are opinions from 

two treating physicians -- both of which preclude work or are more restrictive than the ALJ’s RFC 

finding -- and, together, they establish Plaintiff’s entitlement to benefits. See PageID 1004, 1456-68, 

1491-98. Further, the undersigned is disinclined to remand in light of the two administrative hearings 

Plaintiff has already received -- indicating that sufficient fact-finding has taken place -- and because it 

would further and unnecessarily delay this case filed six years ago. Accordingly, because no factual 

issues remain and the record demonstrates Plaintiff’s entitlement to benefits, remand for an immediate 

award of benefits should occur. Ellis v. Comm’r of Soc. Sec., No. 3:15-CV-137, 2016 WL 463359, at 

*2 (S.D. Ohio Feb. 8, 2016), report and recommendation adopted, No. 3:15-CV-137, 2016 WL 828144 

(S.D. Ohio Feb. 26, 2016). 
10

V.

IT IS THEREFORE ORDERED THAT: (1) the Commissioner’s non-disability 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 an immediate award of benefits; 

and (3) this case is CLOSED.

IT IS SO ORDERED.

Date: 7/29/2019 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge