UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

KATELYNN R. GILPIN, 

Plaintiff, 

vs. 

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION, 

Defendant. 

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Case No. 3:18-cv-194 

Magistrate Judge Sharon L. Ovington 

(by full consent of the parties) 

DECISION AND ENTRY 

I. Introduction 

Plaintiff Katelynn R. Gilpin previously received Supplemental Security Income 

based on disability as a child. When she turned eighteen years old, the Social Security 

Administration redetermined her eligibility for benefits as an adult and concluded that, as 

of December 1, 2015, she was not under a disability. Upon reconsideration, the 

determination was upheld. At Plaintiff’s request, Administrative Law Judge (ALJ) Mark 

Hockensmith held two hearings after which he concluded that she was not eligible for 

benefits because she is not under a “disability” as defined in the Social Security Act. 

Plaintiff brings this case challenging the Social Security Administration’s denial of her 

application for Supplemental Security Income. 
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The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #8), the 

Commissioner’s Memorandum in Opposition (Doc. #12), Plaintiff’s Reply (Doc. #13), 

and the administrative record (Doc. #7). 

Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for 

further proceedings. The Commissioner asks the Court to affirm ALJ Hockensmith’s 

non-disability decision. 

II. Background 

Plaintiff asserts that she has been under a “disability” since December 1, 2015. 

She was eighteen years old at that time and was therefore considered a “younger person” 

under Social Security Regulations. See 20 C.F.R. § 416.963(c). She has a limited 

education. See id. § 416.964(b)(3). 

A. Plaintiff’s Testimony 

At her first hearing before ALJ Hockensmith, Plaintiff did not have an attorney. 

(Doc. #7, PageID #s 118-34). The ALJ offered to postpone the hearing if she wanted 

time to find counsel. After considering her options, Plaintiff decided to postpone it. 

A few months later, at the second hearing, Plaintiff testified that she struggles with 

depression and anxiety. She sees a counselor at New Creation Counseling. Id. at 87. 

Plaintiff has a panic attack once or twice a week. Id. She has panic attacks when she has 

to make decisions, if something changes, or when she tries something new. Id. at 87-88. 

When she has one, she usually runs into a bathroom or into her room to hide and to try to 

breathe. Id. at 87. Additionally, “I see things that I shouldn’t be seeing like in the 

mirror.... [I]f I go to the bathroom just to splash my face with some water to calm 
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myself down, I will see these little things of myself being like a monster or like a beast ... 

and then I start to cry because I’m getting worked up and I’m not feeling safe.” Id. at 88. 

Plaintiff has crying spells at least once or twice a month. Id. at 91. She cries if she gets 

yelled at or has to calm herself down when she is anxious. Id. 

She has trouble staying focused on one task at a time. For example, when she is 

washing dishes, if she sees a basket of towels, she will stop washing dishes and start 

folding towels. Id. at 89-90. She cannot concentrate on one thing for very long. Id. at 

92. She cannot make it through an entire movie without thinking of other things and 

leaving the room. Id. She also has some problems with her short-term memory but can 

remember things from her childhood. Id. 

Plaintiff lives in a house with her grandparents. Id. at 86. During a typical day, 

she sits in her room and gets on her computer to talk to her friends or she gets herself 

ready to do chores around the house. Id. Plaintiff does not have very many friends; she 

only has one best friend who comes to see her. Id. at 100. Her chores include washing 

dishes, sweeping, doing laundry, and taking care of her pets. Id. at 86. 

Plaintiff tried to work at a daycare with the assistance of her job coach. Id. at 93-

94. After a week, she thought her job was going to change, her anxiety increased, and 

“that’s when that all went down.” Id. at 94. For the three months before the hearing, 

Plaintiff volunteered at a nursing home, helping two men play bingo. Id. She goes three 

times a week—once for an hour and twice for an hour and a half. Id. at 95. She likes 

volunteering because it makes her feel good. Id. at 96. But when she is having a rough 

day, she does not go. Id. at 96-97. She also volunteers to help with kids at her church. 
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Id. at 97. She tries to make a little lesson and then they play games. Id. However, this 

sometimes leads to increased anxiety and as a result, she does not help unless they need 

her to. Id. She started babysitting her neighbor’s five-year-old child in late fall 2016. Id.

at 98. Although it depended on the parents’ schedule, she usually babysat three days a 

week from 8:00 a.m. to 12:30 p.m. Id. at 99. At the time of the hearing she was not 

babysitting because it was summer and she was not sure if she would babysit the child 

again in the fall. Id. at 99. 

Plaintiff does not think she could perform a full-time job because she is afraid she 

will see someone that bullied her in the past, panic, and not know what to do. Id. at 90. 

In addition, she would “freak out” and not want to return if something at the job changed. 

Id. 

B. Brenda Gilpin’s Testimony 

Plaintiff’s grandma, Brenda Gilpin, also testified at the hearing before ALJ 

Hockensmith. Id. at 101. Plaintiff moved in with her grandma when she was high 

school. Id. at 102. But, even before then, Ms. Gilpin took partial care of her when 

Plaintiff’s mother was working. Id. 

Ms. Gilpin has witnessed Plaintiff’s panic attacks. She explained, “She cries. She 

shakes.... [Y]ou can’t hardly reason with her and you have to get her to a safe place and 

there’s not much I can do but comfort her ....” Id. at 103. Plaintiff has meltdowns when 

something is not “on an even keel” or is “out of whack.” Id. Additionally, she 

sometimes has a meltdown when there are lots of people. Id. 
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Plaintiff has outbursts too. Id. She gets mad if Ms. Gilpin tells her to do 

something that she does not think she can do or tells her something she does not want to 

hear. Id. at 107-08. There are some things that Ms. Gilpin can discuss with Plaintiff one 

day and Plaintiff is perfectly fine but then the next day, the same discussion might set 

Plaintiff off. Id. at 108. However, that does not happen very often at Ms. Gilpin’s house 

because things are “pretty even keel.” Id. at 107-08. If Plaintiff is with her mother—who 

has a lot of the same issues as Plaintiff—she has more frequent outbursts. Id. at 108. 

Ms. Gilpin explained that Plaintiff has a difficult time with change. For example, 

if Plaintiff was working and one day her boss changed what she was doing, she would be 

scared and could have a “full panic attack.” Id. at 104. She would then need to find a 

safe place where she could try to calm herself down. Id. at 105. How long she needs to 

calm down depends on the situation. If it is not too bad, she may be able to just leave the 

room to calm herself down. However, it could take her hours or the rest of the day to 

calm down. Id. at 105. 

Ms. Gilpin sometimes has to help Plaintiff stay focused and has to remind her to 

do things like chores and cooking. Id. at 104. She sometimes has to remind her to take 

her medication. Id. 

Ms. Gilpin does not believe Plaintiff is able to work because she would get upset if 

something happened and other people are rude in the workplace. Id. at 106. Further, 

“[Plaintiff] is different and she says things off the wall that other people don’t understand 

....” Id. However, Ms. Gilpin hopes that Plaintiff can work someday in a safe 

environment where people are not mean to her. Id. Ms. Gilpin indicated that Plaintiff 
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would need coworkers and a boss that always spoke to her in a nice and pleasant tone. 

Id. at 108. 

C. Medical Opinions 

i. Fred M. Sacks, Ph.D. 

Plaintiff was referred to Dr. Sacks for a neuropsychological evaluation “because of 

multiple functional deficits and concerns with cognitive, emotional and behavioral 

functioning.” Id. at 817. As part of his evaluation, Dr. Sacks reviewed Plaintiff’s 

medical and school records and met with Plaintiff six times between April and July 2013. 

Id. at 817-18. He administered several tests to Plaintiff, including, for example, the 

Wechsler Intelligence Scale for Children–Fourth Edition; Halstead-Reitan 

Neuropsychological Test Battery; Personality Assessment Inventory–Adolescent; and 

Conners’ Continuous Performance Test–II. Id. at 819. Dr. Sacks also administered two 

tests to Plaintiff’s mother and grandmother—the Behavior Rating Inventory of Executive 

Function (BRIEF) and the Gilliam Autism Rating Scale–Second Edition. 

 Relevant to the present case, Plaintiff’s mother and grandmother collaboratively 

completed the Gilliam Autism Rating Scale–Second Edition (GARS-2). Their ratings 

yielded an Autism Index of 89 which is indicative of a “very likely” or probable 

diagnosis of autistic disorder. Dr. Sacks noted, “Review of item responses indicates that 

[Plaintiff] has stereotyped behaviors, communication problems, and difficulties in social 

interaction which are generally characteristic of individuals who present autistic 

disorder.” Id. at 824. Looking first at stereotyped behaviors, Plaintiff frequently avoids 

eye contact, stares at her hands or objects, has very significant preferences for foods and 
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refuses to eat what most people usually will eat. She frequently whirls or turns in circles 

as well as rocking back and forth while seated and standing. Id. Turning to the domain 

of communication problems, Plaintiff frequently looks away or avoids looking at the 

speaker when her name is called. Id. She sometimes repeats words or phrases over and 

over, responds inappropriately to simple commands, and does not ask for things that she 

may want. Id. However, “More significant problems are reported in the domain in social 

interaction.” Id. For example, Plaintiff frequently avoids eye contact or looks away 

when someone is looking at her, withdraws or remains rather aloof and detached in group 

situations, becomes upset when her routines are changed, and responds negatively or with 

temper tantrums when given commands, requests or directions.” Id. She less frequently 

stares or looks unhappy or unexcited when praised or entertained; resists physical contact 

with others; is generally reticent or unwilling to give displays of affection; does things 

repetitively or ritualistically; and lines up objects in a precise, orderly fashion and then 

becomes upset when the order is disturbed. Dr. Sacks concluded, “The combination of 

these behaviors in multiple domains yields a ‘very likely’ classification of [Plaintiff] as 

having autistic disorder.” Id. at 824. 

 Dr. Sacks summarized his findings: “[Plaintiff] is functioning within the 

borderline range of intelligence and presenting with moderate cerebral impairment. 

Neurocognitive deficits are quite prominent in attentional functioning and higher cortical 

functioning including problem-solving and abilities to organize experience. Problems in 

social-emotional functioning are also quite prominent. [Plaintiff] is presenting with 

multiple and severe emotional problems. Her history is positive for a past episode of 
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major depressive disorder, severe, with psychotic features.” Id. at 825. Dr. Sacks 

concluded that Plaintiff meets the diagnostic criteria for major depressive disorder, 

recurrent, mild; posttraumatic stress disorder; attention deficit hyperactivity disorder, 

combined type; autistic disorder; and borderline intellectual functioning. He 

recommended continued medication management and therapy. Id. at 817-26. 

 Dr. Sacks evaluated Plaintiff again in 2017 “for the purpose of determining 

eligibility for social security insurance benefits.” Id. at 1381. He met with her five times 

and reviewed her medical and school records. He administered several of the same tests 

(some different versions) to Plaintiff. And, his finding from the second round of tests 

was “generally, consistent with the previous (2013) neuropsychological test findings ....” 

Id. at 1389. 

 Dr. Sacks administered the Gilliam Autism Rating Scale–Third Edition to 

Plaintiff’s grandmother. “Overall, the ratings by the grandparent are highly significant 

for [Plaintiff] meeting diagnostic criteria for autism spectrum disorder which further 

compounds her general problems in neurocognitive, social and emotional functioning.” 

Id. at 1388. 

 Dr. Sacks diagnosed unspecified neurocognitive disorder; major depressive 

disorder, recurrent episode, severe; attention deficit/hyperactivity disorder, predominantly 

inattentive presentation; autism spectrum disorder; and borderline intellectual 

functioning. Id. at 1390. Dr. Sacks “strongly recommended that [Plaintiff] be viewed as 

eligible for continuation of her social security benefits.” Id. at 1389. 

 In June 2017, Dr. Sacks completed a mental impairment questionnaire. He 
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indicated that Plaintiff had marked or extreme limitations in every functional activity. Id.

at 1392-93. He opined, “[Plaintiff] has multiple cognitive impairments and functions, 

generally, at a moderate level of cerebral impairment. Her capabilities to function 

effectively in a work environment are further compromised to an extreme degree by 

multiple and sometimes severe difficulties which contribute to significant difficulties in 

maintaining emotional equilibrium.” Id. at 1393. 

ii. Paul Tangeman, Ph.D., & Leslie Rudy, Ph.D. 

 Dr. Tangeman reviewed Plaintiff’s record in November 2015. He found that she 

had two non-severe impairments—obesity and sleep-related breathing disorders—and 

four severe impairments—affective disorders; schizophrenic, paranoid, and other 

functional psychotic disorders; ADD/ADHD; and anxiety disorders. Id. at 149. He 

opined that Plaintiff has the ability to complete any complexity of task in a stable 

environment in which changes are explained, and she only has superficial contact with 

others. Id. at 149-53. 

 In June 2016, Dr. Rudy reviewed Plaintiff’s record. She concluded that Plaintiff 

“is able to perform simple and routine 1–3 step tasks in work that does not require her to 

adhere to strict production quotas or deadlines and also only requires occasional and 

superficial social interaction. It should be situated in a fairly static work environment 

with few changes.” Id. at 700-16. 

III. Standard of Review 

The Social Security Administration provides Supplemental Security Income to 

individuals who are under a “disability,” among other eligibility requirements. Bowen v. 
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City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 1382(a). The term 

“disability”—as defined by the Social Security Act—has specialized meaning of limited 

scope. It encompasses “any medically determinable physical or mental impairment” that 

precludes an applicant from performing a significant paid job—i.e., “substantial gainful 

activity,” in Social Security lexicon. 42 U.S.C. § 1382c(a)(3)(A); see Bowen, 476 U.S. at 

469-70. 

Judicial review of an ALJ’s non-disability decision proceeds along two lines: 

“whether the ALJ applied the correct legal standards and whether the findings of the ALJ 

are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 

406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 

2007). Review for substantial evidence is not driven by whether the Court agrees or 

disagrees with the ALJ’s factual findings or by whether the administrative record 

contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741 

F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 

2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard 

is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to 

support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc. 

Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a 

scintilla of evidence but less than a preponderance ....” Rogers, 486 F.3d at 241 

(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722. 

The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal 

criteria—may result in reversal even when the record contains substantial evidence 
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supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 

651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial 

evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to 

follow its own regulations and where that error prejudices a claimant on the merits or 

deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part 

Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 

(6th Cir. 2004)). 

IV. The ALJ’s Decision 

 As noted previously, it fell to ALJ Hockensmith to evaluate the evidence 

connected to Plaintiff’s eligibility for benefits. He did so by considering the steps set 

forth in the Social Security Regulations. See 20 C.F.R. § 416.920. He reached the 

following main conclusions: 

 Since December 1, 2015, Plaintiff has had the severe impairments of 

major depressive disorder, attention-deficit hyperactivity disorder, 

psychotic disorder, anxiety, and borderline intellectual functioning. 

 Since December 1, 2015, she does not have an impairment or 

combination of impairments that meets or equals the severity of one in 

the Commissioner’s Listing of Impairments, 20 C.F.R. Part 404, 

Subpart P, Appendix 1. 

 Since December 1, 2015, her residual functional capacity, or the most 

she could do despite her impairments, see Howard v. Comm’r of Soc. 

Sec., 276 F.3d 235, 239 (6th Cir. 2002), consists of “a full range of 

work at all exertional levels but with the following nonexertional 

limitations: (1) simple, routine, repetitive tasks; (2) in a static work 

environment with few changes in routine and those changes explained 

in advance; (3) no fast paced work or strict production quotas; (4) 

occasional interaction with the public, coworkers and supervisors; (5) 

no math or reading above the 6th grade level; and (6) would be off 

task less than 10% of [a] workday.” 
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 She has no past relevant work. 

 Since December 1, 2015, she could perform a significant number of 

jobs that exist in the national economy. 

(Doc. #7, PageID #s 54-68). These main findings led the ALJ to ultimately conclude that 

Plaintiff’s disability ended on December 15, 2015, and she has not become disabled again 

since that date. Id. at 68. 

V. Discussion 

 Plaintiff asserts that the ALJ failed to reasonably weigh the assessments from the 

neuropsychological examinations of Dr. Sacks “which strongly support Plaintiff’s 

allegations of disabling mental health symptoms.” (Doc. #8, PageID #s 1401-05). 

Further, ALJ Hockensmith erred in rejecting her autism diagnosis. Id. at 1405-08. 

 The Commissioner maintains that substantial evidence supports both the ALJ’s 

evaluation of the medical opinions and his assessment of Plaintiff’s autism diagnosis. 

A. Medical Opinions 

Social Security Regulations require ALJs to adhere to certain standards when 

weighing medical opinions. “Key among these is that greater deference is generally 

given to the opinions of treating physicians than to those of non-treating physicians, 

commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations 

omitted). The rule is straightforward: 

Treating-source opinions must be given “controlling weight” 

if two conditions are met: (1) the opinion “is well-supported by 

medically acceptable clinical and laboratory diagnostic 

techniques”; and (2) the opinion “is not inconsistent with the 

other substantial evidence in [the] case record.” 
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Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20 

C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723. 

Regardless of the source, the Regulations require an ALJ to consider and evaluate 

every medical opinion in the record. See 20 C.F.R. §§ 416.927(b), (c). “Unless a treating 

source’s opinion is given controlling weight, the administrative law judge must explain in 

the decision the weight given to the opinions of a State agency medical or psychological 

consultant or other program physician, psychologist or other medical specialist, as the 

administrative law judge must do for any opinions from treating sources, nontreating 

sources, and other nonexamining sources who do not work for us.” Id. at (e)(2)(ii) 

(emphasis added). In deciding what weight to assign an opinion, an ALJ must consider 

the following factors: examining relationship; treatment relationship; supportability; 

consistency; specialization; and other factors. Id. at (c). 

In the present case, ALJ Hockensmith concluded—and Plaintiff does not 

contest—that Dr. Sacks is not a treating source. Despite his conclusion, the ALJ notes 

that under the criteria for evaluating treating source opinions, Dr. Sacks’ opinions are not 

entitled to controlling or deferential weight “because it is not well supported by medically 

acceptable clinical findings in the preponderance [of the] record and is inconsistent with 

other substantial medical evidence of record.” (Doc. #7, PageID #64). The ALJ instead 

assigned Dr. Sacks’ opinions little weight. Because the ALJ did not give controlling 

weight to a treating physician’s opinion, he must explain the weight given to Dr. Sacks’ 

opinions using the factors set forth above. See 20 C.F.R. § 416.927(e)(2)(ii). 
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ALJ Hockensmith did consider some of the factors. For instance, the ALJ 

properly recognized that Dr. Sacks is a specialist—specifically, a neuropsychologist. 

(Doc. #7, PageID #64); see 20 C.F.R. § 416.927(c)(5) (“We generally give more weight 

to the medical opinion of a specialist about medical issues related to his or her area of 

specialty than to the medical opinion of a source who is not a specialist.”). 

The ALJ also discussed the examining relationship between Dr. Sacks and 

Plaintiff. He acknowledged that Dr. Sacks examined Plaintiff but discounted Dr. Sacks’ 

opinions because he only saw Plaintiff on “a few occasions in 2013, and not again until 

2017.” (Doc. #7, PageID #64). Dr. Sacks met with Plaintiff six times in 2013 and five 

times in 2017. To the extent the ALJ was considering whether Dr. Sacks examined 

Plaintiff, the ALJ properly addressed the first factor—“examining relationship.” 

However, the ALJ’s conclusion involves more than the examining-relationship factor; it 

encompasses the treatment-relationship factor—specifically, the length of the treatment 

relationship and the frequency of examination. Notably, that subsection refers only to 

“treating sources,” not all medical sources. See 20 C.F.R. § 416.927(c)(2)(i) (“Generally, 

the longer a treating source has treated you and the more times you have been seen by a 

treating source, the more weight we will give to the source’s medical opinion.”). To the 

extent that the ALJ was considering the treatment-relationship factor, he held Dr. Sacks 

to the higher standards of a treating physician. 

The ALJ did not, however, apply the same higher standard to the State agency 

consultants’ opinions. In contrast to the “little weight” the ALJ assigned to Dr. Sacks, he 

concluded that the opinions of State agency reviewing psychologists, Dr. Tangeman and 
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Dr. Rudy, were entitled to “moderate weight.” (Doc. #7, PageID #63). Although the 

ALJ discounted Dr. Sacks’ opinions because he only examined Plaintiff on a few 

occasions, the ALJ did not mention that State agency consultants did not examine 

Plaintiff. Further, he ALJ did not address the consultants’ failure to provide explanations 

in support of their opinions. This is important “because nonexamining sources have no 

examining or treating relationship with [a claimant], the weight [the Social Security 

Administration] will give their medical opinions will depend on the degree to which they 

provide supporting explanations for their medical opinions.” 20 C.F.R. § 416.927(c)(3). 

Moreover, the ALJ ignored or overlooked that the consultants did not review any of Dr. 

Sacks’ opinions. The Regulations, however, specifically point out that “[the 

Administration] will evaluate the degree to which these medical opinions consider all of 

the pertinent evidence in [a claimant’s] claim, including medical opinions of treating and 

other examining sources.” Id. 

The ALJ gave one primary reason for assigning moderate weight to the 

consultants’ opinions: “Their opinions are generally supported by objective signs and 

findings in the preponderance of the record, including the records submitted after their 

assessments.” (Doc. #7, PageID #63). He did not identify any of the objective signs and 

findings. Instead, he noted, “Dr. Rudy’s limitation to simple, routine tasks more than 

adequately accounts for [Plaintiff’s] borderline intellectual functioning ....” Id. And, he 

rejected their limitation to “only occasional and superficial social interaction” because it 

“is more restrictive than warranted by this record.” Id. The ALJ erred by failing to apply 

the same level of scrutiny to reviewing psychologists’ opinions as he applied to treating 
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source’s opinion. See Gayheart, 710 F.3d at 379 (citing 20 C.F.R. § 404.1527(c); Soc. 

Sec. R. 96-6p, 1996 WL 374180, at *2 (July 2, 1996)) (“A more rigorous scrutiny of the 

treating-source opinion than the nontreating and nonexamining opinions is precisely the 

inverse of the analysis that the regulation requires.”). 

Turning back to Dr. Sacks’ opinions, the ALJ gave additional reasons for 

assigning his opinions “little weight.” He found they are “not fully supported by 

objective signs and findings in his own reports and in the preponderance of the record.” 

(Doc. #7, PageID #64). However, the ALJ acknowledged that Dr. Sacks administered IQ 

tests which indicated borderline intellectual functioning. He accounted for those test 

results by limiting Plaintiff to simple, routine, repetitive tasks with no math or reading 

above the 6th grade level. The ALJ did not address any of the other tests Dr. Sacks 

administered to Plaintiff. 

Instead, the ALJ turned to statements from Plaintiff and her grandmother. He 

found, “Many of his other findings are based on the subjective statements of [Plaintiff] 

and her grandmother, which as discussed herein, are not fully supported by objective 

signs and findings.” Id. at 64. The ALJ gives one example: “Dr. Sacks based the autism 

disorder diagnosis primarily on the answers from [Plaintiff’s] mother and grandmother on 

the Gilliam Autism Rating Scale.” Id. 

Substantial evidence does not support the ALJ’s conclusion. There is nothing in 

Dr. Sacks’ evaluations that suggests that he based any of his opinions exclusively on 

Plaintiff’s grandmother or mother’s statements. Indeed, the ALJ overlooked or ignored 
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the numerous other tests Dr. Sacks administered to Plaintiff—for example, in 2013, he 

administered to Plaintiff: 

1. Halstead-Reitan Neuropsychological Test Battery, including: 

a. Category Test, 

b. Tactual Performance Test, 

c. Trail Making Test, 

d. Seashore Rhythm Test, 

e. Speech-Sounds Perception Test, 

f. Finger Oscillation Test, 

g. Grip Strength, 

h. Sensory Perceptual Examination, 

i. Lateral Dominance Examination, and 

j. Aphasia Screening Examination; 

2. Conners’ Continuous Performance Test-II; 

3. Integrated Visual-Auditory Continuous Performance Test-Plus; 

4. Personality Assessment Inventory-Adolescent; and 

5. Adolescent Psychopathology Scale. 

(Doc. #7, PageID #819) (as mentioned above, he also administered the Wechsler 

Intelligence Scale for Children-Fourth Edition and the Picture Arrangement subtest from 

the Wechsler Intelligence Scale for Children-Third Edition). Moreover, in 2017, Dr. 

Sacks administered to Plaintiff: 

1. Wechsler Adult Intelligence Scale-Fourth Edition; 

2. Wechsler Memory Scale-Fourth Edition (selected subtests); 

3. Halstead-Reitan Neuropsychological Test Battery (including the same tests 

identified above); 

4. Conners’ Continuous Performance Test-3; 

5. Integrated Visual-Auditory Continuous Performance Test-Plus; 

6. Personality Assessment Inventory; and 

7. Beck Depression Inventory-II 

Id. at 1383. It is not reasonable to conclude that Dr. Sacks did not rely on the results of 

any of these tests in diagnosing autism. 
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Likewise, the ALJ does not acknowledge that, in preparation for his evaluations of 

Plaintiff, Dr. Sacks reviewed progress notes from Stacey Fellers, LPCC; medical records 

from the emergency department of Upper Valley Medical Center; an evaluation team 

report from Tri- Village Local School District; and a central auditory processing 

preliminary evaluation. Id. at 817-18. Ms. Fellers’ progress notes revealed that 

Plaintiff’s treatment included cognitive behavioral therapy and solution-oriented therapy 

for anger management, recurrent conflicts with her mother, mood instability, episodic 

displays of oppositional and defiant behavior; self-injurious behavior, and 

communication skills. This treatment is consistent with Plaintiff’s grandmother’s 

statements indicating that Plaintiff has frequent temper tantrums when she is told to do 

something she does not want to do; she gets upset when routines are changed; and she is 

“rather socially isolated.” Id. at 1388. 

The ALJ also discounted Dr. Sacks’ opinions because treatment notes from 

Plaintiff’s treating psychiatrist do not mention autism as a working diagnosis. Id. at 64. 

However, as Plaintiff points out, Dr. Khavari also did not perform testing to substantiate 

an autism diagnosis. Interestingly, in 2013 (a little more than two years before Plaintiff 

was notified that she was no longer disabled), Denise Rabold, Ph.D.—a State agency 

consultant—found that Plaintiff’s severe impairments included “autistic disorders and 

other pervasive developmental disorders.” Id. at 139. 

The ALJ found, “the mental health treatment notes consistently document 

improvement in [Plaintiff’s] depression and anxiety, which is inconsistent with Dr. 

Sacks’ findings of marked to extreme impairment.” Id. at 64. Importantly, despite the 
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four-year gap between examinations and the updated or different tests, Dr. Sacks’ 

evaluations are consistent. Further, the ALJ does not acknowledge that Dr. Sacks 

addressed Plaintiff’s variable symptoms. Specifically, he noted, “While depressed mood 

appears to be the most prominent, there are signs in the psychological test record that 

[Plaintiff] does episodically experience elevated and variable mood.” Id. at 822. A 

review of Plaintiff’s treatment notes supports his finding. 

For example, in September 2014, Dr. Khavari indicated that Plaintiff was doing 

better with having flashbacks since they changed her medication. Id at 1244. But, she 

reported increased depression for the three weeks before her appointment. She had 

irritability, crying, and some feelings of hopelessness but also more motivation and 

energy. And, “She endorses some peer relationship difficulties at her new school.” Id. 

A month later, in October 2014, Plaintiff reported to Dr. Khavari that, since her last 

appointment, she has had more depressive symptoms such as sadness, irritability, 

anhedonia, poor motivation, lower energy, and passive thoughts of self-harm. Id. at 

1243. Additionally, she has had several panic attacks that she describes as coming out of 

nowhere. Her symptoms—which peaked over an hour—include shortness of breath, 

feeling numb and tingly, being nauseated, and feeling smothered. During those episodes, 

she also hears voices. Her family increased her dose of Abilify to decrease her episodes 

but they have not seen significant improvement. Id. 

 Treatment notes then indicate that she experienced some improvement in her 

symptoms. In February 2016, for instance, she had had less depressed moods and 

irritability and was more hopeful and energetic. Id. at 1235. But, in August 2016, “She 
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only endorses auditory hallucinations when she is anxious and overwhelmed. She does 

endorse increased anxiety, excessive worry, feeling overwhelmed when she thinks about 

her future. This occurs several times per week.” Id. at 1231. Plaintiff reported to Dr. 

Khavari that during an appointment with a job coach, she became overwhelmed with 

multiple requests and had a meltdown. Id. And, Dr. Khavari noted, “Patient became 

emotional during the interview and was indecisive when discussing different options. 

She finally agreed upon taking increased doses [of] Zoloft to help with her increased 

anxiety.” Id. 

The ALJ further found, “Dr. Sacks also referred to prominent issues in social 

emotional functioning, but as discussed above, she reported activities such as 

communicating with friends, babysitting, and volunteering.” Id. at 64. These activities 

do not conflict with Dr. Sacks’ evaluations. For example, although Plaintiff testified that 

she talks to her friends online, she only talks to them online; she does not see them. Id. at 

86, 100. She has one friend that she sees (albeit not very often). Id. at 100-01. Likewise, 

she testified that she babysat one five-year-old child three days a week for up to four and 

a half hours. Id. at 98-99. And, even with just one child, she had anxiety when problems 

with him arose. Id. at 99. She volunteers at a nursing home, helping two men play 

bingo, for a total of three and a half hours per week. Id. at 95. And, if she is having a 

rough day, she probably would not go. Id. at 96-97. She also volunteered at her church 

to work with kids. But, she did that more often when she was around seventeen years old 

(and under a disability) and it was on Wednesdays, not Sundays. Id. at 97-98. Each of 
21

these activities are incredibly limited but can cause Plaintiff anxiety. This is consistent 

with Dr. Sacks’ assessment. 

Last, the ALJ assigned little weight to Dr. Sacks’ opinion that Plaintiff was 

eligible for disability benefits. He noted, “The determination of disability is a question 

reserved to the Commissioner, and there is no indication that Dr. Sacks is qualified to 

offer an opinion on [Plaintiff’s] employability.” Id. at 64. Although medical source 

opinions on issues reserved to the Commissioner are not entitled to special significance, 

“opinions from any medical source on issues reserved to the Commissioner must never 

be ignored.” Soc. Sec. R. 96-5p, 1996 WL 374183, at *2-3 (Soc. Sec. Admin. July 2, 

1996). In evaluating a similar statement by an ALJ, the Seventh Circuit emphasized, 

The pertinent regulation says that “a statement by a medical 

source that you are ‘disabled’ or ‘unable to work’ does not 

mean that you are disabled.” 20 C.F.R. § 404.1527(e)(1). 

That’s not the same thing as saying such a statement is 

improper and therefore to be ignored, as is further made clear 

when the regulation goes on to state that “the final

responsibility for deciding” residual functional capacity 

(ability to work—and so whether the applicant is disabled) “is 

reserved to the Commissioner.” 20 C.F.R. § 404.1527(e)(2). 

And “we will not give any special significance to the source of 

an opinion on issues reserved to the Commissioner.” 20 C.F.R. 

§ 404.1527(e)(3). 

Bjornson v. Astrue, 671 F.3d 640, 647-48 (7th Cir. 2012) (emphasis in original). Thus, 

the fact that Dr. Sacks provided his opinion about Plaintiff’s inability to work does not 

properly serve as a ground for placing little weight on Dr. Sacks’ opinion. 

In sum, although ALJ Hockensmith provided some reasons for discounting Dr. 

Sacks’ evaluations, he failed to provide reasons—supported by substantial evidence—for 
22

rejecting Dr. Sacks’ evaluations. And, because the ALJ did not assign controlling weight 

to a treating physician’s opinion, this constitutes error. 20 C.F.R. §§ 416.927(e)(2)(ii) 

(“Unless a treating source’s opinion is given controlling weight, the administrative law 

judge must explain in the decision the weight given to the opinions of a State agency 

medical or psychological consultant or other program physician, psychologist or other 

medical specialist, as the administrative law judge must do for any opinions from treating 

sources, nontreating sources, and other nonexamining sources who do not work for us.”) 

Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.1

B. Remand 

A remand is appropriate when the ALJ’s decision is unsupported by substantial 

evidence or when the ALJ failed to follow the Administration’s own regulations and that 

shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial 

right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to 

provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson, 

378 F.3d at 545-47; failed to consider certain evidence, such as a treating source’s 

opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the 

plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific 

reasons supported by substantial evidence for finding the plaintiff lacks credibility, see 

Rogers, 486 F.3d at 249. 

 

1

 In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of 

Plaintiff’s other challenges to the ALJ’s decision is unwarranted. 
23

Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm, 

modify, or reverse the Commissioner’s decision “with or without remanding the cause for 

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand 

under sentence four may result in the need for further proceedings or an immediate award 

of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th 

Cir. 1994). The latter is warranted where the evidence of disability is overwhelming or 

where the evidence of disability is strong while contrary evidence is lacking. Faucher v. 

Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). 

A judicial award of benefits is unwarranted in the present case because the 

evidence of disability is not overwhelming and the evidence of disability is not strong 

while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding 

this case to the Social Security Administration pursuant to sentence four of § 405(g) due 

to the problems discussed above. On remand, the ALJ should be directed to evaluate the 

evidence of record, including the medical source opinions, under the applicable legal 

criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and 

to evaluate Plaintiff’s disability claim under the required analysis to determine anew 

whether Plaintiff was under a disability and whether her application for Supplemental 

Security Income should be granted. 

IT IS THEREFORE ORDERED THAT: 

1. The Commissioner’s non-disability finding is vacated; 

2. No finding is made as to whether Plaintiff Katelynn R. Gilpin was under a 

“disability” within the meaning of the Social Security Act; 
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3. This matter is REMANDED to the Social Security Administration under 

sentence four of 42 U.S.C. § 405(g) for further consideration consistent 

with this Decision and Entry; and 

4. The case is terminated on the Court’s docket. 

Date: December 11, 2019 s/Sharon L. Ovington 

 Sharon L. Ovington 

 United States Magistrate Judge