UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JULIE B. MASSIE,

Plaintiff, Case No. 3:18-cv-190

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”). This case is before 

the Court on Plaintiff’s Statement of Errors (doc. 8), the Commissioner’s memorandum in opposition 

(doc. 15), Plaintiff’s reply (doc. 16), the administrative record (doc. 6),1 and the record as a whole.

I.

A. Procedural History

Plaintiff filed for DIB alleging a disability onset date of June 9, 2012. PageID 2884. Plaintiff 

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

thoracolumbar degenerative disc disease with residuals of surgery, Arnold-Chiari malformation, 

headaches, should strain, Ehler’s-Danlos Syndrome, depressive disorder, and an anxiety disorder. 

PageID 623. 

 1

 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 Emily Ruth 

Statum on June 19, 2014. PageID 89-109. ALJ Statum issued a written decision on July 24, 2014

finding Plaintiff not disabled. PageID 193-95. Plaintiff appealed the non-disability finding, and, with 

consent from the Commissioner, this Court remanded her claim for further consideration. PageID 695;

Massie v. Comm’r of Soc. Sec., No. 3:16-cv-73 (S.D. Ohio Sep. 30, 2016).

On remand, Plaintiff received a second administrative hearing on July 12, 2017 before ALJ 

Elizabeth A. Motta. PageID 671-96. ALJ Motta issued a written decision on October 25, 2017 finding 

Plaintiff not disabled. PageID 620-40. Specifically, ALJ Motta 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 

630-40.

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

non-disability finding the final administrative decision of the Commissioner. PageID 50-52. 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 October 25, 

2017 non-disability finding by ALJ Motta (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 40-60), 

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

and Plaintiff’s reply (doc. 16). The undersigned incorporates all of the foregoing and sets forth the 

facts relevant to this appeal herein.

 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. § 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.” 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 weighing the medical source 

opinions of record. Doc. 13 at PageID 2884. Finding error in the ALJ’s assessments of the opinions

written by Plaintiff’s treating physicians, the undersigned agrees with her alleged errors. 

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).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. § 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).

 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. § 404.1527. Id.
6

Here, Noshir Deboo, M.D., Plaintiff’s treating orthopedist, authored an opinion on March 21, 

2014 regarding Plaintiff’s physical functional limitations. PageID 491-95. Dr. Deboo determined that 

-- due to her Chiari Arnold Syndrome, Trapezial Atrophy, and frozen shoulder -- Plaintiff could 

occasionally lift and carry less than ten pounds; frequently lift and carry less than five pounds; stand 

and walk zero hours per day without interruption; sit less than four hours per day but not more than 

two hours without interruption; could never climb, balance, stoop, crouch, or crawl; and that reaching, 

handling, fingering, and feeling were affected by her impairments. PageID 491-93. Ultimately, Dr. 

Deboo concluded that Plaintiff could not perform even sedentary work on a sustained basis and would 

be absent more than three times a month due to her impairments or treatment for the same. PageID 

494-95.

In affording this treating opinion “minimal weight,” the ALJ found it unsupported by 

“objective and clinical findings.” PageID 637. Specifically, the ALJ asserted that shoulder imaging 

revealing “a strain/sprain with no imaging evidence of bony or joint pathology” and an MRI “of the 

claimant’s spine...[showing] post-surgical changes at L4-L5 with mild degenerative changes and 

central annular tear at L5-S1” could not support Dr. Deboo’s opinion. Id. (internal citations omitted). 

The ALJ does not, however, have the medical acumen to unilaterally interpret these abnormal images 

as inconsistent with the walking and lifting limitations contained in Dr. Deboo’s opinion. See Mabra 

v. Comm’r of Soc. Sec., No. 2:11-CV-00407, 2012 WL 3600127, at *3 (S.D. Ohio Aug. 21, 2012)

(“[T]he Court cannot ignore that the ALJ offered [his] own lay interpretation of the medical evidence 

in the face of more severe opinions from Plaintiff’s treating physician”); Deskin v. Comm’r of Soc. 

Sec., 605 F.Supp.2d 908, 912 (N.D. Ohio 2008) (“[T]he ALJ may not interpret raw medical data in 

functional terms”). In so doing, the ALJ erred in supplanting her own medical judgment for that of 

Plaintiff’s treating physician. See Simpson v. Comm’r of Soc. Sec., 344 Fed. Appx. 181, 194 (6th Cir. 

2009) (citing Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)) (stating “ALJ’s must not succumb to 

the temptation to play doctor and make their own independent medical findings”). 
7

But even assuming, arguendo, that the ALJ is correct, she failed to consider that there is other 

clinical evidence supportive of Dr. Deboo’s limitations. Dr. Deboo stated as much when he listed 

Plaintiff’s Chiari-Arnold Syndrome; trapezial atrophy; frozen shoulder; weakness in upper extremities, 

neck, and shoulder; and loss of motion, strength, and dexterity as supportive of his assessment. PageID 

491-94. The ALJ also overlooked the additional MRIs of Plaintiff’s spine and shoulder, which show 

“multiple disc protrusions as well as a T9-T10 left-sided disc herniation with mild disc extrusions [and] 

[m]ultilevel flattening of the spinal cord”; “[d]isc protrusion at the C2-C3 and C5-C6 levels”; and 

“postoperative changes for Chiari decompression surgery.” PageID 450-53. Dr. Deboo’s treatment 

notes state that an MRI “of the trapezial area showed focal edema along the muscle adjacent to the skin 

marker” and “left shoulder shows a high riding scapula and myofascial objective spasm of the left 

trapezius, tenderness and pain and limited flexion and abduction.” PageID 407-09. By 2016, MRI 

imaging revealed that Plaintiff had “postsurgical changes at L4-5 and L5-S1... [and] mild foraminal 

narrowing at the L5-S1 level” and “disc bulge and facet arthropathy with mild effacement of the thecal 

sac at L3-4.” PgaeID 1035. Additional treatment notes in early 2017 documented lumbar and sacral 

tenderness with palpation; positive straight leg test; and L5-S1 radiculopathies. PageID 1028-29. Thus, 

the ALJ’s assertion -- that Dr. Deboo’s opinion is inconsistent with objective and clinical findings --

is not supported by substantial evidence.

Dr. Deebo’s opinion is not only supported by objective medical evidence in the record, but it 

is also bolstered by the opinion of Joseph M. Mormon, M.D., Plaintiff’s longtime family physician. 

Consistent with Dr. Deebo’s opinion, Dr. Mormon opined that Plaintiff could lift five pounds 

frequently and ten pounds occasionally; stand and walk for three to four hours total but not for more 

than thirty minutes without interruption; and sit for six hours a day “if able to change positions and get 

up when needed” but not for more than one hour without interruption. PageID 593-94. Dr. Mormon 

additionally found that Plaintiff could occasionally climb, balance, and kneel but could never stoop, 

crouch, or crawl. PageID 594. Finally, Dr. Mormon found that Plaintiff’s “concentration and 
8

communication are affected by the daily pain med[ications].” PageID 595. The ALJ wholly 

discredited this treating opinion, as well, finding that it was not “fully supported” by the record. 

PageID 636. The undersigned finds two additional errors in her assessment of Dr. Mormon’s opinion. 

First, requiring Dr. Mormon’s treating opinion to be “fully supported” by the record is an 

erroneous application of the controlling weight test. Soc. Sec. R. 96-2, 1996 WL 374188, at *83 

(A treating opinion “not inconsistent with substantial evidence in the first step does not have to be 

supported directly by all of the other evidence (i.e., it does not have to be consistent with all other 

evidence) as long as there is no other substantial evidence in the case record that contradicts or 

conflicts with the opinion”); see also Cowens v. Berryhill, No. 3:16-CV-227, 2017 WL 3015701, 

at *6 (S.D. Ohio July 17, 2017). Second, the record demonstrates that -- in violation of 20 C.F.R. 

§ 404.1527(c) -- the ALJ applied more rigorous scrutiny to the opinion of this treating physician 

than the non-treaters. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 379 (6th Cir. 2013) (holding 

that ALJs are prohibited from applying greater scrutiny to the opinions of treating physicians than 

non-treaters). Indeed, the ALJ afforded “great weight” to the state agency’s non-examining

physicians after summarily finding their opinions “remain consistent with the evidence.” PageID 

635. Yet, these treating physicians did not review any of Plaintiff’s abnormal MRIs after April of 

2013. PageID 123, 129. The undersigned thus finds reversal mandated in light of the ALJ’s errors 

in assessing both of Plaintiff’s treating physicians’ opinions. Blakley, 581 F.3d at 406-07.

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 
9

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 case, evidence of disability is overwhelming. Plaintiff’s disability is shown by the 

opinion of her two treaters, Drs. Deboo and Mormon, both of whom relied upon objective medical 

evidence. Evidence to the contrary, i.e., the opinions of record-reviewing physicians, was written 

without reviewing the entirety of Plaintiff’s abnormal imaging. 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 over five years ago. 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). Accordingly, because the 

evidence overwhelmingly demonstrates Plaintiff’s disability, this case must be remanded for an 

immediate award of benefits. Cf. Moody v. Comm’r of Soc. Sec., No. 14–CV–224, 2016 WL 

1729579, at *5 (S.D. Ohio Feb. 5, 2016); Washington v. Comm’r of Soc. Sec., No. 3:15–CV–367, 

2016 WL 6694199, at *5 (S.D. Ohio Nov. 15, 2016), report and recommendation adopted sub 

nom. Washington v. Colvin, No. 3:15–CV–367, 2016 WL 7494887 (S.D. Ohio Dec. 30, 2016).

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 an immediate award of benefits; 

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

IT IS SO ORDERED.
10

Date: 8/29/2019 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge