UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CHATIQUA C. PERDUE,

Plaintiff, Case No. 3:18-cv-156

vs.

COMMISSIONER OF SOCIAL SECURITY, District Judge Walter H. Rice

Magistrate Judge Michael J. Newman

Defendant.

______________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT: (1) THE NON-DISABILITY

FINDING AT ISSUE BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND 

REVERSED; (2) THIS MATTER BE 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 BE CLOSED

______________________________________________________________________________

This is a Social Security disability benefits appeal. 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”).2

 This case is before the Court on 

Plaintiff’s Statement of Errors (doc. 9), the Commissioner’s memorandum in opposition (doc. 13), 

Plaintiff’s reply (doc. 14), the administrative record (doc. 6),3 and the record as a whole.

I.

A. Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of June 30, 2014. PageID 38. 

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

mellitus, diabetic retinopathy, a depressive disorder, and an anxiety disorder. PageID 41. 

 1 Attached hereto is a NOTICE to the parties regarding objections to this Report and 

Recommendation.

2 “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. 3

 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 Eric Anschuetz

on December 8, 2016. PageID 63-99. The ALJ issued a written decision on May 24, 2017 finding 

Plaintiff not disabled. PageID 38-50. Specifically, the ALJ found at Step Five that, based upon 

Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of light work,4 “there are 

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

43-50.

Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s nondisability 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 the ALJ’s decision (PageID 38-50), 

Plaintiff’s Statement of Errors (doc. 9), and the Commissioner’s memorandum in opposition (doc. 13). 

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).

 4 “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.” Id. § 404.1567(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.” Id. § 404.1567(a).
3

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. § 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?;
4

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 (1) evaluating the opinion of

her treating physician; (2) evaluating the opinion of her treating therapist; (3) weighing the opinions of 

the state agency reviewing physicians; and (4) applying the wrong standard to her allegations of 

disability. Doc. 9 at PageID 749. Agreeing with the first assignment of error, the undersigned would 

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

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. § 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 
5

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).5

 

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).

In this case Plaintiff’s treating primary care physician, Rajindra Bhat, M.D., authored an 

opinion in December, 2016. PageID 737-38. Based on a diagnosis of Type I Diabetes, neuropathy, 

and Retinitis proliferans, Dr. Bhat opined that Plaintiff was able to work only four hours a day, stand 

 5 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

for one hour, and sit for two hours. Id. He concluded that she could lift only ten pounds occasionally 

and five pounds frequently, but never balance. Id. Dr. Bhat also found that Plaintiff suffered from 

problems with anxiety and/or depression that would markedly limit her ability to withstand the stresses 

and pressure of ordinary work activity. Id. Relatedly, he determined that Plaintiff would be off task 

20% or more during an average work week, and would be absent about twice per month. PageID 738. 

The ALJ afforded Dr. Bhat’s opinion only “partial weight.” PageID 48. 

Initially, the undersigned finds error in the ALJ’s failure to explicitly recognize Dr. Bhat’s 

status as a treating physician, specifically mention the applicable concept of controlling weight, or

analyze the controlling weight factors. PageID 48. As noted by this Court on numerous occasions, 

such 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 entirety of the ALJ’s analysis consists of one sentence summarily dismissing Dr. 

Bhat’s 2016 opinion as “not supported by the medical evidence of record, which clearly shows the 

claimant is not as limited [] in her ability to sit, stand, walk, lift, or balance.” PageID 48. The ALJ’s 

failure to provide even a single citation to the record to “identify the specific discrepancies and explain 

why it is the treating physician’s conclusion...gets the short end of the stick” constitutes reversible 

error. Friend v. Comm’r of Soc. Sec., 375 F. App’x. 543, 551–52 (6th Cir. 2010) (holding that “it is 

not enough to dismiss a treating physician’s opinion as ‘incompatible’ with other evidence of record”); 

Cox v. Comm’r of Soc. Sec., 615 Fed. Appx. 254, 258 (6th Cir. 2015) (finding the “ALJ erred by 

discounting a treating source’s opinions as inconsistent with the record without discussing extensive 

treatment notes from another source”); Mays v. Comm’r of Soc. Sec., No. 1:08-cv-871, 2010 U.S. 
7

Dist. LEXIS 131619, at *34 (6th Cir. Nov. 8, 2010) (holding that where the ALJ did not cite to the 

record, “[t]he ALJ failed to sufficiently articulate his assessment of the evidence to assure the Court 

that he considered the relevant record evidence and to enable the Court to trace the path of his 

reasoning”). Such an error is especially glaring where, as here, the record contains evidence supportive 

of Dr. Bhat’s opinion. For example, Plaintiff’s diabetes was labeled “severely uncontrolled” and “with 

a high risk for morbidity and mortality associated with severe hypoglycemic events,” PageID 346-47, 

she was seen at urgent care facilities for multiple-day bouts of vomiting, and consistently reported 

these same symptoms to her physicians. PageID 363, 372, 543.

Thus, the ALJ failed to establish “good reasons” for discounting the opinion of Plaintiff’s 

treating physician, and reversal is warranted. Mitchell v. Comm’r of Soc. Sec., 330 Fed. App’x. 

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 remand the matter for rehearing or to award benefits. 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 instance, evidence of disability is not overwhelming and, therefore, the 

undersigned concludes that a remand for further proceedings -- as specifically set forth above -- is 

proper. 
8

V.

IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s non-disability 

finding be found unsupported by substantial evidence, and REVERSED; (2) this matter be

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 be CLOSED.

Date: April 7, 2019 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge
NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to 

the proposed findings and recommendations within FOURTEEN days after being served with this 

Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if served 

on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this Report 

and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS

by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to file objections 

by filing a motion for extension, which the Court may grant upon a showing of good cause. 

Any objections filed shall specify the portions of the Report and Recommendation objected to, 

and shall be accompanied by a memorandum of law in support of the objections. If the Report and 

Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, the 

objecting party shall promptly arrange for the transcription of the record, or such portions of it as all 

parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge 

otherwise directs. 

A party may respond to another party’s objections within FOURTEEN days after being served 

with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. P. 6(d) if 

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this 

Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN 

DAYS by application of Fed. R. Civ. P. 6(d). 

Failure to make objections in accordance with this procedure may forfeit rights on appeal. See 

Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 

1981).