UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

PETER W. MILLER,

Plaintiff, Case No. 3:18-cv-281

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. 14), 

the Commissioner’s memorandum in opposition (doc. 16), Plaintiff’s reply (doc. 17), the 

administrative record (doc. 7),2 and the record as a whole.

I.

A. Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of August 1, 2004. PageID 1188. 

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

degenerative disc disease, an adjustment disorder with depression, attention deficit hyperactivity 

disorder (“ADHD”), and moderate borderline intellectual disability. PageID 1189. 

 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 PageID number. 
2

After an initial denial of his application, Plaintiff received a hearing before ALJ Mark 

Hockensmith on April 6, 2017. PageID 123-61. The ALJ issued a written decision on July 20, 2017

finding Plaintiff not disabled. PageID 49-63. 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[.]” PageID 

54-62.

Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. PageID 35-37. See Casey v. 

Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this timely 

appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007). 

B. Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 56-65), 

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). 

 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). Individuals capable of performing light work 

are presumed 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

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 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?;
4

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 his Statement of Errors, Plaintiff argues that the ALJ erred in weighing the medical source 

opinions of record. Doc. 9. Finding error in the ALJ’s assessment of the opinion written by Plaintiff’s 

treating psychiatrist, the undersigned agrees with his 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 

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 
5

(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).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).

Sunita Agarwal, M.D., Plaintiff’s treating psychiatrist, authored an opinion regarding 

Plaintiff’s mental impairments in June 2016. Dr. Agarwal found that Plaintiff would have “extreme” 

limitations in his ability to: accept instructions from or respond appropriately to criticism; work in 

coordination with or in proximity to others; respond appropriately to coworkers and peers; perform 

and complete work tasks in a normal work day or work week; use appropriate judgment; carry through 

 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

instructions and complete tasks independently; maintain attention and concentration; respond 

appropriately to changes in the work setting; and behave predictably, reliably, and in an emotionally 

stable manner. PageID 866-67. Ultimately, Dr. Agarwal opined that Plaintiff could be absent as many 

as five days a week (i.e., not be present in the workplace at all), and that his condition would likely 

deteriorate if he were required to work eight hours per day, five days per week. PageID 868. In 

affording this treating opinion “little weight,” the ALJ committed multiple reversible errors. PageID 

60.

The undersigned initially notes that in requiring Dr. Agarwal’s treating opinion to be “fully 

supported” by the record, the ALJ erroneously applied 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). While such an error can be harmless, it is not where, 

as here, the ALJ’s misapplication of the “controlling weight [analysis] hinders a meaningful review of 

whether the ALJ properly applied the treating-physician rule that is at the heart of this regulation.” 

Gayheart, 710 F.3d at 376. 

Rather than analyze any specific medical evidence of record, the ALJ instead proceeded to 

discredit the opinion because it was internally inconsistent and because “Dr. Argawal only saw the 

claimant on three occasions over a six-month period.” PageID 60. Such conclusions fall under the 

“consistency” and “treatment relationship” factors found at 20 C.F.R. §§ 404.1527(c)(2)(i) and (c)(3). 

As this Court has repeatedly found, these factors are 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, 
7

2017), report and recommendation adopted sub nom. Dunham v. Berryhill, No. 3:16-CV-414, 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 factors found at 20 C.F.R. § 404.1527(c) (2)(i) and (c)(3) are “applied after the 

ALJ decides to ‘not give the treating source’s medical opinion controlling weight.’” Lutz, 2017 WL 

3140878, at *3; see also 20 C.F.R. § 404.1527(c)(2) (stating that the factors in paragraphs (c)(2)(i) and

(c)(3) are 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 these factors are “properly applied only after 

the ALJ has determined that a treating-source opinion will not be given controlling weight”). Because 

the ALJ enunciated the wrong standard and analyzed the treatment relationship and consistency factors

thereafter, it is unclear to the undersigned whether the ALJ performed the requisite two-step process 

without conflating the steps. Cadle, 2013 WL 5173127, at *5.

But even assuming, arguendo, that the ALJ correctly considered these factors, the ALJ 

nevertheless erred. The criticism of Dr. Argawal’s treating relationship with Plaintiff demonstrates 

that -- in violation of 20 C.F.R. § 404.1527(c) -- the ALJ applied more rigorous scrutiny to the opinion 

of this treating psychiatrist 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 
8

treating physicians than non-treaters). While the ALJ discounted Dr. Argawal’s opinion due to a sixmonth treating relationship, the ALJ did not scrutinize the non-treating opinion of George Schulz, 

Ph.D. -- an opinion based on a mere one-time evaluation of Plaintiff -- on these same grounds. PageID 

61. 

The ALJ also asserts that Dr. Argawal’s finding -- that Plaintiff “could not think clearly or 

comprehend information” -- was inconsistent with his ability to “complete math skills” or “manage his 

own funds.” PageID 60. The undersigned is not convinced, however, that an ability to complete

discrete and simple number skills is -- as the ALJ contends -- demonstrative of a general ability to 

comprehend information, especially on a sustained basis. See Gayheart, 710 F.3d at 377 (finding error 

where “the ALJ [did] not contend, and the record [did] not suggest, that [plaintiff] could do ... activities 

on a sustained basis, which is how the functional limitations of mental impairments are to be 

assessed”). Nor does this critique provide “good reasons” to discount the entirety of Dr. Argawal’s 

treating opinion. Saunders v. Comm’r of Soc. Sec., No. 3:14-cv-97, 2015 U.S. Dist. LEXIS 151641, 

at *16-17 (S.D. Ohio Sept. 8, 2015) (“Accordingly, the Court fails to find that this purported 

inconsistency constitutes substantial evidence in support of discounting the entirety of [the treating 

physician’s] opinion) (citing Austin v. Astrue, No. C—12-3349 EMC, 2013 U.S. Dist. LEXIS 66467, 

at *5 (N.D. Cal. May 9, 2013) (finding an ALJ’s reliance on an insignificant inconsistency to discount 

the opinion of a treating physician was “misplaced”)).

To the extent the ALJ discredited Dr. Argawal’s opinion because “there is no evidence of 

marked limitations in social functioning,” such a conclusion also constitutes error because it is 

undermined by Plaintiff’s treatment notes contained in the record.5

 For example, Dr. Agarwal’s notes 

document poor hygiene, pressured and verbose speech, anxious mood, hyperactive and agitated 

 5

 “[A] psychiatric impairment is not as readily amenable to substantiation by objective laboratory testing as 

a medical impairment ... consequently, the diagnostic techniques employed in the field of psychiatry may be somewhat 

less tangible than those in the field of medicine.... When mental illness is the basis of a disability claim, clinical and 

laboratory data may consist of the diagnosis and observations of professionals trained in the field of psychopathology.” 

Blankenship, 874 F.2d at 1121.
9

psychomotor activity, easily distracted attention, tangential thought process, dramatic and labile affect, 

an influence of delusions, paranoid thoughts, visual hallucinations, disoriented in time, recent memory 

impaired, and limited insight and judgment. PageID 956, 1021-22, 1024-25, 1027-28. Treatment notes 

from Donald Amos, M.S, R.C. similarly document: “irritability secondary to acute pain”; he is 

“frustrated and easily discouraged”; he exhibits “pressured speech” and “mild rambling”; an

“overanxious” and depressed mood; he “struggles with concentration/memory”; he fails to “interact[] 

productively”; “thought process obsessional”; and that he is “not substantially responsive to verbal 

intervention” See, e.g., PageID 1038, 1039, 1040, 1041, 1043, 1046, 1048, 1050, 1053, 1057. It is 

entirely plausible that, inter alia, Plaintiff’s anxiety, irritability, and difficulties with speech and 

concentration would interfere with his social interactions. More importantly, the ALJ does not have 

the medical acumen to disagree with Plaintiff’s treating psychiatrist on this basis. 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”); Isaacs v. Comm’r of Soc. Sec., No. 1:08-cv-828, 2009 WL 

3672060, at *10 (S.D. Ohio Nov. 4, 2009). Thus, the ALJ’s analysis of Dr. Argawal’s opinion, in this 

regard, is unsupported by substantial evidence.

In light of all the foregoing reversal is mandated even if “substantial evidence otherwise 

supports the decision of the Commissioner.” See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6th Cir. 2004). 

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 
10

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 further proceedings; and (3) 

this case is TERMINATED on the docket. 

IT IS SO ORDERED.

Date: 9/9/2019 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge