UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

SHAUNA CROCKETT-JOHNSON,

Plaintiff, Case No. 3:18-cv-219

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

Security Income (“SSI”).1

 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. 5),2 and the record as a whole.

I.

A. Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of May 1, 2014. Tr. 99. Plaintiff 

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

disorder, panic disorder, and post-traumatic stress disorder (“PTSD”). Tr. 41. 

 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 

Transcript (Tr.) number. 
2

After an initial denial of her application, Plaintiff received a hearing before ALJ Deborah F. 

Sanders on July 17, 2017. Tr 34-73. The ALJ issued a written decision on September 28, 2017 finding 

Plaintiff not disabled. Tr. 15-26. Specifically, the ALJ found at Step Five that, based upon Plaintiff’s 

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

exist in significant numbers in the national economy that [Plaintiff] can perform[.]” Tr. 21-26.

Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. Tr. 1-3. 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 (Tr. 15-26), Plaintiff’s 

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

reply (doc. 14). 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).

 3 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

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 weighing the medical source 

opinions of record. Doc. 9 at PageID 859. As explained more fully herein, the undersigned agrees 

with Plaintiff’s assignment of error and orders a remand 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. § 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 
5

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).

Plaintiff’s psychiatrist, Jeffrey Bishop, M.D., authored a medical opinion on September 26, 

2016 regarding her mental RFC. Tr. 616-17. Dr. Bishop noted that he treated Plaintiff seven times 

per month at thirty to sixty-minute-long sessions during which he observed instances of “high level of 

anxiety, difficulty with concentration, psychomotor agitation, anhedonia, depressed mood, and 

withdrawal.” Tr. 616. Secondary to a diagnosis of bipolar disorder and panic disorder, Dr. Bishop 

 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

opined that Plaintiff had “extreme”5 limitations in maintaining social functioning and in concentration, 

persistence, or pace; had “marked” limitation in episodes of deterioration or decompensation at work; 

and, ultimately, that she would be absent more than three times a month due to her impairments or 

treatment for the same. Id. 

Despite the deference owed to Dr. Bishop’s treating opinion, the ALJ determined it could be 

afforded “no weight.” Tr. 20. In reaching this conclusion, the ALJ reasoned: 

Although Dr. Bishop is the claimant’s psychiatrist, this opinion is not given controlling weight. 

Although the claimant has marked issues with social functioning due to an inability to tolerate 

crowds, his record indicates she is doing reasonably well, she has had no hospitalizations for 

mental health issues, and she reported she has had these issues since age 16 and was able to 

work. After leaving the workforce, she related spending her time ferrying her children to 

sporting events and involving herself in dog rescue causes. Mental status examinations 

conducted at Mahajan Therapeutic indicate at most the persistence of some mild anxiety, but 

her medications are noted to be effective and no other major psychological deficits are noted. 

Other medical records in the file indicate the claimant repeatedly presents with a normal mood 

and affect.

Id. (internal citations omitted). 

While the ALJ correctly analyzed whether Dr. Bishop’s opinion was consistent with other 

substantial evidence in the record, error lies in the ALJ’s failure to conduct the second part of the 

controlling weight test. Indeed, “[a] finding that a treating source medical opinion . . . is inconsistent 

with the other substantial evidence in the case record means only that the opinion is not entitled to 

‘controlling weight,’ not that the opinion should be rejected.” Soc. Sec. Rul. 96-2p, 1996 SSR LEXIS 

9 at *9. Rather, Dr. Bishop’s opinion was still entitled to deference, and the ALJ was required to assess 

Dr. Bishop’s opinion under all the factors enumerated in 20 C.F.R. § 404.1527. Blakley, 581 F.3d at 

408. These factors include the length, nature and extent of the treatment relationship, the frequency of 

examination, the medical specialty of the source, how well-supported by evidence the opinion is, how 

consistent the opinion is with the record as a whole, and other factors which tend to support or 

 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. 404, Subpt. P, App. 1 § 12.00(C); Lankford v. Sullivan, 942 

F.2d 301, 307 (6th Cir. 1991). 
7

contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2)-(6). The ALJ’s analysis is patently devoid of any 

discussion of these factors. Tr. 20. This Court has made clear that such an omission constitutes error. 

Riopelle v. Comm’r of Soc. Sec., No. 1:18-cv-009, 2019 U.S. Dist. LEXIS 13247, at *36-37 (S.D.

Ohio Jan 28, 2019); Puckett v. Comm’r of Soc. Sec., No. 1:10-cv-528, 2011 U.S. Dist. LEXIS 

106068, at *37-41 (S.D. Ohio Aug. 11, 2011); Carroll v. Astrue, No. 1:09-cv-2580, 2010 U.S. 

Dist. LEXIS 140643, at *10-13 (S.D. Ohio Jan. 28, 2010); Barcelona v. Astrue, No. 3:06-cv-382, 

2008 U.S. Dist. LEXIS 7682, at *5 (S.D. Ohio Feb. 1, 2008).

Nor is Dr. Bishop’s opinion “so patently deficient that the Commissioner could not 

possibly credit it” to excuse the ALJ’s failure in this case. Wilson v. Comm’r of Soc. Sec., 378 F.3d 

541, 547 (6th. Cir. 2004). For instance, Dr. Bishop’s own treatment records consistently document 

anxious or depressed moods. Tr. 585-92. Moreover, while the Commissioner relies heavily on 

the contrast between Plaintiff’s daily activities and Dr. Bishop’s opinion, see tr. 20, the record 

demonstrates that Plaintiff volunteered only once a week, but “continue[d] to isolate.” Tr. 329. 

Even so, “these somewhat minimal daily functions are not comparable to typical work activities.” 

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 248 (6th Cir. 2007). The record also undermines 

the ALJ’s assertion that Plaintiff experienced these same symptoms since age sixteen. Tr. 20. 

Plaintiff testified to the contrary -- that she experienced an increase in symptoms in 2014, 

necessitating her then-treating psychiatrist, Dr. Ahmed, to write a note prescribing a short-term 

disability for her. Tr. 57. Therefore, substantial evidence does not support the ALJ’s analysis and,

the ALJ’s error was not harmless.

Finally, the undersigned notes that the ALJ’s summary dismissal of the treating physician’s 

opinion stands in stark contrast to her uncritical acceptance of the opinions written by the state agency 

record reviewing physicians. Tr. 20-21. ALJs are not permitted to apply greater scrutiny to a 

treating-source opinion than a non-treating source. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 

380 (6th Cir. 2013). Such was not the case here, where the ALJ’s conclusory assessment of the 
8

record reviewers’ opinions failed “to give a meaningful explanation of any of the required 20 

C.F.R. § 404.1527(c) factors,” which “evidences application of ‘greater scrutiny’ to the opinion[] 

given by [the] treating source[].” Marks v. Colvin, 201 F. Supp. 3d 870, 884 (S.D. Ohio 2016) 

(citing Gayheart, 710 F.3d at 380).

Having failed to properly conduct a controlling weight analysis, and having applied greater 

scrutiny to non-treating opinions, the ALJ committed reversible errors. See Wilson v. Comm’r of 

Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (Even where “substantial evidence otherwise supports 

the decision of the Commissioner ... reversal is required [where] the agency failed to follow its 

own procedural regulation”).

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 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 proceedings consistent with 

this opinion; and (3) this case is TERMINATED on the docket. 
9

IT IS SO ORDERED.

Date: 7/26/2019 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge