UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

SHARON E. SNYDER,

Plaintiff, Case No. 3:17-cv-393

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 Social Security disability benefits appeal is before the undersigned for disposition 

based upon the parties’ consent. Doc. 11, 13. 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. 12), the Commissioner’s memorandum in opposition (doc. 

16), the administrative record (doc. 8),

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and the record as a whole.

I.

A. Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of January 1, 2009. PageID 

381-401. Plaintiff claims disability as a result of a number of alleged impairments including, inter 

alia, cervical and lumbosacral sprains/strains, anemia, depression and anxiety. PageID 80.

 

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 Decision and Entry to DIB regulations are 

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

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 Hereafter, citations to the electronically-filed administrative record will refer only to the PageID. 
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After an initial denial of her application, Plaintiff received a hearing before ALJ Gregory 

Kenyon on October 3, 2016. PageID 98-122. The ALJ issued a written decision on November 

22, 2016 finding Plaintiff not disabled. PageID 78-88. Specifically, the ALJ 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 82, 87.

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

non-disability finding the final administrative decision of the Commissioner. PageID 57-62. 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 Plaintiff’s Statement of Errors (doc. 

12) and the Commissioner’s memorandum in opposition (doc. 16). The undersigned incorporates 

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 

 

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“Medium work” involves the occasional lifting of 50 pounds at a time, and frequent lifting or 

carrying of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567. Medium work can require standing 

and walking as much as six hours during any given eight-hour workday. Id. It may also involve frequent 

stooping, grasping, holding, and turning objects. Id. “The functional capacity to perform medium work 

includes the functional capacity to perform sedentary, light, and medium work.” 20 C.F.R. § Pt. 404, Sub 

Pt. P, App. 2, § 203.00(a). 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).
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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.

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 
4

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 his assessment of the 

treating opinion offered by Bobby Lenox, Jr., D.O. Doc. 12. For the reasons set forth herein, the

undersigned agrees.

Under the regulations in effect prior to March 27, 2017, 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 opinions, consistency of the opinions 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). 

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. “The 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)).

Plaintiff’s treating physician, Dr. Lenox, issued multiple opinions in this instance. PageID 

934-39. On January 6, 2011, Dr. Lenox opined that Plaintiff was unable to work full or part time, 

specifically finding that she cannot stand or walk for more than one to four hours in a workday; sit 

for more than three-a-one-half to five hours per workday; lift more than ten pounds; and bend, 

squat, crawl, climb, push, or pull. PageID 928. On October 21, 2014, Dr. Lenox opined that 

Plaintiff’s symptoms would frequently be severe enough to interfere with the attention and 

concentration required to perform simple work-related tasks; could stand or walk for no more than 

twenty minutes at a time (for a total of two hours in an eight-hour day); and could sit for no more 

than thirty minutes at a time (for a total of six hours in an eight-hour day); needs to shift positions 

at will from sitting, standing or walking, and needs a five-to-ten-minute break every thirty to fifty 
6

minutes; could never lift ten pounds; could only reach with her arms twenty-five percent of a 

workday; and would likely be absent from work multiple times in a month. PageID 929-30.

The ALJ concluded that Dr. Lenox’s 2011 and 2014 opinions were unentitled to controlling 

or deferential weight and, ultimately, found them entitled to little weight. PageID 84. In so 

finding, the ALJ stated that Dr. Lenox “provided no objective findings to support his medical 

opinion[s]” and, instead, “appears to have [relied] on an uncritical acceptance of [Plaintiff’s] 

subjective pain complaints, which are inconsistent with the medical evidence.” PageID 84. The 

ALJ thus found that “Dr. Lenox’s medical opinion[s] [are] not supported by the medical record 

and [are] inconsistent with other medical evidence of record[.]” PageID 84. 

In so finding, the ALJ erred by setting forth no substantive analysis of the controlling 

weight factors, a failure which deprives the undersigned of the ability to meaningfully review his 

conclusions. See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013). The only 

substantive critique of Dr. Lenox’s opinions made by the ALJ was that, in setting out his opinions

on the form provided, Dr. Lenox did not reference “objective findings to support his opinion” and, 

therefore, must “have [relied] on an uncritical acceptance of [Plaintiff’s] subjective pain 

complaints.” PageID 84. Such critique is an analysis of the “[s]upportability” factor found at 20 

C.F.R. § 404.1527(c)(3) (“The more a medical source presents relevant evidence to support a 

medical opinion, particularly medical signs and laboratory findings, the more weight we will give 

that medical opinion”). As noted by the Court on numerous occasions, the “supportability” factor 

set forth under 20 C.F.R. § 404.1527(c)(3) is not part of the controlling weight analysis. Lutz v. 

Comm’r of Soc. Sec., No. 3:16-CV-210, 2017 WL 3140878, at *3 (S.D. Ohio July 25, 2017), report 

and recommendation adopted, No. 3:16-CV-210, 2017 WL 3432725 (S.D. Ohio Aug. 9, 2017); 

Dunham v. Comm’r of Soc. Sec., No. 3:16-CV-414, 2017 WL 4769010, at *4 (S.D. Ohio Oct. 20, 

2017), report and recommendation adopted sub nom. Dunham v. Berryhill, No. 3:16-CV-414, 
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2018 WL 502715 (S.D. Ohio Jan. 22, 2018); Caraway v. Comm’r of Soc. Sec., No. 3:16-CV-138, 

2017 WL 3224665, at *4 (S.D. Ohio July 31, 2017), report and recommendation adopted sub nom. 

Caraway v. Berryhill, No. 3:16-CV-138, 2017 WL 3581097 (S.D. Ohio Aug. 17, 2017); Hall v. 

Comm’r of Soc. Sec., No. 3:17-CV-345, 2018 WL 3386311, at *4 (S.D. Ohio July 12, 2018), report 

and recommendation adopted, No. 3:17-CV-345, 2018 WL 3636590 (S.D. Ohio July 31, 2018); 

Wolder v. Comm’r of Soc. Sec., No. 3:16-CV-00331, 2017 WL 2544087, at *4 (S.D. Ohio June 

13, 2017), report and recommendation adopted, No. 3:16-CV-331, 2017 WL 2819882 (S.D. Ohio 

June 28, 2017); Warren v. Comm’r of Soc. Sec., No. 3:16-CV-00099, 2017 WL 480405, at *4 

(S.D. Ohio Feb. 6, 2017), report and recommendation adopted, No. 3:16-CV-99, 2017 WL 

1019508 (S.D. Ohio Mar. 14, 2017); Klein v. Comm’r of Soc. Sec., No. 3:14-CV-78, 2015 WL 

4550786, at *6 (S.D. Ohio Mar. 24, 2015). 

Instead, the supportability factor under 20 C.F.R. § 404.1527(c)(3) “is one applied after the 

ALJ decides to ‘not give the treating source’s medical opinion controlling weight.’” Lutz, No. 

3:16-CV-210, 2017 WL 3140878, at *3; see also 20 C.F.R. § 404.1527(c)(2) (stating that the 

supportability factor in paragraph (c)(3) is applied when the ALJ does “not give the treating 

source’s medical opinion controlling weight”); see also Gayheart, 710 F.3d at 376 (noting that this 

factor is “properly applied only after the ALJ has determined that a treating-source opinion will 

not be given controlling weight”).

Thus, although the ALJ “correctly noted the controlling-weight standard[,]” he “did not 

provide ‘good reasons’ for why [Dr. Lenox’s] opinions fail to meet either prong of this test.” 

Gayheart, 710 F.3d at 376. Again, the ALJ’s conclusory assessment in this regard deprives the 

Court of the ability to conduct a meaningful review of the ALJ’s assessment and, therefore, is 

error. See id. (finding error where the ALJ did “not identify the substantial evidence . . . 

purportedly inconsistent with [the treater’s] opinions). Having failed to properly conduct a 
8

controlling weight analysis of Dr. Lenox’s opinion, the non-disability finding by the ALJ here at 

issue must be reversed. 

Although not specifically argued by Plaintiff in her Statement of Errors, the undersigned 

also finds that the ALJ erred in providing a conclusory and perfunctory analysis of the opinions 

offered by the record-reviewers,4as well as the opinions offered by Plaintiff’s mental health 

providers Cynthia Holloway, IMFT, LPN and Amber Plessinger-Williams, BSW, LSW.5 On 

remand, the ALJ should conduct a thorough review of all opinion evidence anew and set forth a 

complete and appropriate analysis of the weight due to each such opinion.

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 

 

4 These record-reviewers are Leanne M. Bertani, M.D.; Jaime Lai, Psy.D.; James Cacchillo, D.O.;

Paul Tangeman, Ph.D. The ALJ assigned favorable weight to each of these reviewers’ opinions without 

any specific analysis whatsoever, which is error. “The ALJ’s conclusory assessment of the recordreviewers’ opinions thus erroneously fails to give a meaningful explanation of any of the required 20 C.F.R. 

§ 404.1527(c) factors, and evidences application of “greater scrutiny” to the opinions given by treating 

sources, a practice deemed error by the Sixth Circuit.” Marks v. Colvin, 201 F. Supp. 3d 870, 884 (S.D. 

Ohio 2016) (citing Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 380 (6th Cir. 2013) (holding that “the 

regulations do not allow the application of greater scrutiny to a treating-source opinion as a means to justify 

giving such an opinion little weight[,]” and “[i]ndeed, they call for just the opposite”)).

5

In addition to “medical source opinions,” opinions from “other sources” can be used to establish 

the severity of a claimant’s impairment and establish how impairments affect a claimant's ability to work. 

20 C.F.R. § 404.1513(d). “Other sources” include medical sources such as nurse practitioners or counselors 

who do not qualify as “acceptable medical sources” under the regulations. Id. Although opinions from 

“other medical sources” who have treated a claimant are not entitled to controlling weight like those of a 

treating physician or psychologist, “other source” opinions may be entitled to more weight than “acceptable 

medical sources” under the unique circumstances of a given case. Soc. Sec. Ruling (“SSR”) 06–03p, 2006 

WL 2329939, at *5 (Aug. 9, 2006) (emphasis added). In fact, the opinions of “other sources” may even be 

given more weight than a treating physician if the “other sources” have seen the claimant more frequently 

than the “acceptable sources” and have provided better explanations for their opinions. Id.
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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 nondisability 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. 

IT IS SO ORDERED.

Date: April 5, 2019 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge