UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CHRISTOPHER J. ONDRE,

Plaintiff, Case No. 3:18-cv-284

vs.

COMMISSIONER OF SOCIAL SECURITY, District Judge Thomas M. Rose

Magistrate Judge Michael J. Newman

Defendant.

_____________________________________________________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT: (1) THE NON-DISABILITY

FINDING AT ISSUE BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, 

AND REVERSED; (2) THIS MATTER BE 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 BE CLOSED

_____________________________________________________________________________________________________________________

This is a Social Security disability benefits appeal. At issue is whether the Administrative 

Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to 

Supplemental Security Income (“SSI”) and/or Disability Insurance Benefits (“DIB”).

2

 This case 

is before the Court upon Plaintiff’s Statement of Errors (doc. 7), the Commissioner’s memorandum 

in opposition (doc. 12), the administrative record (doc. 7), and the record as a whole.3

I.

A. Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of February 1, 2002. PageID 

209-21. Plaintiff claims disability as a result of a number of alleged impairments including, inter 

 

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and 

Recommendation.

2

“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.

3 Hereafter, citations to the electronically-filed record will refer only to the PageID number. 
2

alia, degenerative disc disease of the thoracic and lumbosacral spine and osteoarthritis of the 

knees. PageID 37. 

After an initial denial of his applications, Plaintiff received a hearing before ALJ Deborah 

Sanders on May 26, 2017. PageID 73-107. The ALJ issued a written decision on January 4, 2018

finding Plaintiff not disabled. PageID 34-41. Specifically, the ALJ found at Step Four that, based 

upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of light work,4

Plaintiff “is capable of performing past relevant work.” PageID 40. 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 24-26. 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

Evidence of record is summarized in the ALJ’s decision (PageID 37), Plaintiff’s Statement 

of Errors (doc. 7), and the Commissioner’s memorandum in opposition (doc. 12). 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 

 

4 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).
3

(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 

ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential 

review poses five questions:
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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.

On appeal, Plaintiff argues that the ALJ erred in her assessment of the medical source 

opinions of record, including the opinion of treating primary care physician Ratnam Oza, M.D. 

Doc. 7 at PageID 612. 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 

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 
5

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)).

Here, Dr. Ratnam Oza5opined in July 2015 that, because of Plaintiff’s impairments, he 

could lift no more than 10 pounds, could not stand or walk for 6-8 hours per workday, and needed 

to change his body position every 20 minutes. PageID 404, 407. The ALJ’s entire analysis of Dr.

Ratnam Oza’s treating opinion is as follows:

His opinion is given little weight as his lifting limitations were inconsistent with 

the claimant’s own testimony regarding his physical abilities, though[] I have 

included a sit/stand option as the overall record supports the need for one.

PageID 38. Notably, this analysis is error because the ALJ did not mention the concept of 

controlling weight and never specifically declined to afford Dr. Ratnam Oza’s opinion controlling 

weight. See Wilson v. Comm’r of Social Sec., 378 F.3d 541, 544 (6th Cir. 2004) (stating that the 

regulations are designed to “ensure[ ] that the ALJ applies the treating physician rule and permits 

 

5 The Court uses Dr. Ratnam Oza’s full name because the record also contains a similar opinion 

from record-reviewing physician Amita Oza, M.D., who is part of Dr. Ratnam Oza’ practice. See PageID 

338-39.
6

meaningful review of the ALJ's application of the rule”). Such failure is error where the Court, as 

here, cannot determine whether the ALJ undertook the “two-step inquiry” required when weighing 

treating source opinions. See Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376-78 (6th Cir. 

2013); Chrismon v. Colvin, 531 F. App’x 893, 900 (10th Cir. 2013).

The ALJ’s error is not simply omitting mention of the controlling weight test, but also 

failing to set forth the required analysis of the controlling weight factors. PageID 38. The ALJ’s 

only critique of Dr. Ratnam Oza’s opinion is the comment that it is purportedly inconsistent with 

Plaintiff’s testimony. Id. However, the consistency factor set forth in 20 C.F.R. § 404.1527(c)(4) 

is one applied only after the ALJ declines to “give the treating source’s opinion controlling 

weight[.]” 20 C.F.R. § 404.1527(c)(2); see also Gayheart, 710 F.3d at 376 (noting that certain 

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

not be given controlling weight”); Ryan v. Comm’r of Soc. Sec., 307 F. Supp. 3d 797, 804 (S.D. 

Ohio 2017), report and recommendation adopted, No. 3:16-CV-124, 2017 WL 3412107 (S.D. 

Ohio Aug. 8, 2017); 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); Loper v. Comm’r of Soc. Sec., 

No. 3:18-CV-85, 2019 WL 1552045, at *4 (S.D. Ohio Apr. 10, 2019); Smith v. Comm’r of Soc. 

Sec., No. 3:16-CV-264, 2017 WL 3124157, at *4 (S.D. Ohio July 24, 2017), report and 

recommendation adopted sub nom. Smith v. Comm’r of Soc. Sec., No. 3:16-CV-264, 2017 WL 

3412109 (S.D. Ohio Aug. 8, 2017). 

Having failed to properly conduct a controlling weight analysis of Dr. Ratnam Oza’s

opinion, the non-disability finding by the ALJ here at issue should be reversed. See Wilson v. 

Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (stating that, even where “substantial 

evidence otherwise supports [a] decision of the Commissioner[,]” reversal may, nevertheless, be 
7

warranted if an ALJ fails “to follow its own procedural regulation, and the regulation was intended 

to protect applicants”).

IV.

When, as here, the ALJ’s non-disability determination is unsupported by substantial 

evidence, the Court must determine whether to reverse and remand the matter for rehearing or to 

reverse and order the award of benefits. The Court has authority to affirm, modify or reverse the 

Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C. 

§ 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991). Generally, benefits may be awarded 

immediately “only if all essential factual issues have been resolved and the record adequately 

establishes a plaintiff’s entitlement to benefits.” Faucher v. Sec’y of Health & Human Servs., 17 

F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); 

Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987). In this instance, 

evidence of disability is not overwhelming, and a remand for further proceedings is necessary. 

V.

IT IS THEREFORE RECOMMENDED THAT: (1) the ALJ’s non-disability finding 

be found unsupported by substantial evidence, and REVERSED; (2) this matter be 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 be CLOSED.

Date: May 15, 2019 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections 

to the proposed findings and recommendations within FOURTEEN days after being served with 

this Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if 

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, 

this Report and Recommendation was served upon you by mail, this deadline is extended to 

SEVENTEEN DAYS per Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to 

file objections by filing a motion for extension, which the Court may grant upon a showing of good 

cause. 

Any objections filed shall specify the portions of the Report and Recommendation objected 

to and shall be accompanied by a memorandum of law in support. If the Report and 

Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, 

the objecting party shall promptly arrange for the transcription of the record, or such portions of it 

as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District 

Judge otherwise directs. 

A party may respond to another party’s objections within FOURTEEN days after being 

served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. 

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If, 

however, this Report and Recommendation was served upon you by mail, this deadline is extended 

to SEVENTEEN DAYS per Fed. R. Civ. P. 6(d). 

Failure to make objections in accordance with this procedure may forfeit rights on appeal. 

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 

(6th Cir. 1981).