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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

NAOMI RUTH STURGILL, Case No. 1:18-cv-607 

Plaintiff, Black, J. 

 Bowman, M.J. 

 v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

 Plaintiff Naomi Ruth Sturgill seeks judicial review of the agency’s final decision that 

she is not disabled, and therefore not entitled to Supplemental Security Income (SSI) and 

Widow’s Insurance Benefits. Proceeding through counsel, Plaintiff presents four claims 

of error, all of which Defendant disputes. For the reasons explained below, I conclude 

that the ALJ’s finding of non-disability should be REVERSED and REMANDED for an 

immediate award of benefits because it is not supported by substantial evidence in the 

administrative record. 

I. Summary of Administrative Record 

 This is Plaintiff’s second application for SSI Benefits. In the first application, the 

ALJ issued a fully favorable decision in March 2006.1 However, her benefits ceased in 

June 2009 when her spousal income exceeded the limitations allowed by the SSI program 

(Tr. 246, 566). Plaintiff’s spouse died on December 29, 2014. 

 

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 The ALJ found Plaintiff was unable to perform sustained, competitive work activity of any nature, including 

sedentary work, because she was limited to low stress tasks with no production quotas, no requirement to maintain 

concentration on a single task for longer than 15 minutes at a time and no exposure to the general public. (Tr. 78). 
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 On February 4, 2015, Plaintiff filed a new application for Supplemental Security 

Income benefits and Widow’s Benefits. (Tr. 221-231). The Social Security Administration 

denied Plaintiff’s claims initially and upon reconsideration. (Tr. 138-155). Plaintiff then 

requested a hearing before an administrative law judge (ALJ). (Tr. 157-159). On July 27, 

2017, ALJ Thomas McNichols held a hearing in which he heard testimony from Plaintiff, 

vocational expert, Eric Pruitt, and Plaintiff’s case manager, Angela Duncan. On July 13, 

2018, the ALJ denied Plaintiff’s application. (Tr. 7-27). Plaintiff filed a request for review 

with the Social Security Administration Appeals Council on April 16, 2018. (Tr. 214-220). 

On July 13, 2018, the Appeals Council denied further review. (Tr. 1-6). Plaintiff now seeks 

judicial review of the denial of her application for benefits. 

 Plaintiff was 54 years old on the date of the ALJ’s decision. (Tr. 33). She has a 10th

grade education and no past relevant work. (Tr. 216). Plaintiff testified that she is able to 

read newspapers, but unable to understand what she reads. (Tr. 34). Plaintiff also testified 

that her husband passed away and she lives in a house with her two brothers. (Tr. 33-

34). 

 Based upon the record and testimony presented at the hearing, the ALJ found that 

Plaintiff had the following severe impairments: “a seizure disorder; sensorineural hearing 

loss; residual effects status-post right wrist fracture; asthma; anxiety; and depression. 

(Tr. 13). The ALJ concluded that none of Plaintiff’s impairments alone or in combination 

met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subp. P, Appendix 

1. The ALJ determined that Plaintiff has the residual functional capacity to perform a full 

range of work at all exertional levels but with the following non-exertional limitations: 

(1) no climbing ladders, ropes, or scaffolds; (2) no work around hazards, such as 

unprotected heights or dangerous machinery; (3) no driving of automotive 
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equipment; (4) limited to performing jobs in which she would be exposed to no 

more than moderate level background noise, such as that found in a 

department store or grocery store; (5) no jobs requiring telephone 

communication; (6) no concentrated exposure to temperature extremes or 

respiratory irritants; (7) limited to unskilled, simple, and repetitive tasks; (8) 

occasional contact with coworkers and supervisors; (9) no public contact; (10) 

no fast-paced production work or jobs that involve strict production quotas; and 

(11) limited to jobs that involve very little, if any, change in the job duties or 

work routine from one day to the next. 

(Tr. 15). 

 Based upon the record as a whole including testimony from the vocational expert, 

and given Plaintiff’s age, education, work experience, and RFC, the ALJ concluded that 

there are jobs that exist in significant numbers in the national economy that she can 

perform, including such jobs as a machine feeder, polisher/buffer, and a conveyor feeder 

(Tr. 20). Accordingly, the ALJ determined that Plaintiff is not under disability, as defined 

in the Social Security Regulations, and is not entitled to DIB. Id. 

 The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s 

decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff 

argues that the ALJ erred by: 1) finding claimant did not meet/equal Listing 12.06b, 2) 

weighing the opinion evidence of record, 3) not adopting the prior ALJ decision, and 4) 

affording little weight to the witness testimony of Angela Duncan, claimant’s case 

manager. The undersigned finds Plaintiff’s first and third assignments of error to be 

dispositive, thereby requiring remand. 

 II. Analysis 

 A. Judicial Standard of Review 

 To be eligible for SSI or DIB a claimant must be under a “disability” within the 

definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition 
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of the term “disability” is essentially the same for both DIB and SSI. See Bowen v. City 

of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory meaning, a 

“disability” includes only physical or mental impairments that are both “medically 

determinable” and severe enough to prevent the applicant from (1) performing his or her 

past job and (2) engaging in “substantial gainful activity” that is available in the regional 

or national economies. See Bowen, 476 U.S. at 469-70 (1986). 

 When a court is asked to review the Commissioner’s denial of benefits, the court’s 

first inquiry is to determine whether the ALJ’s non-disability finding is supported by 

substantial evidence. 42 U.S.C. § 405(g). 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) (additional citation and internal quotation 

omitted). In conducting this review, the court should consider the record as a whole. 

Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports 

the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial 

evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35 

F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained: 

The Secretary’s findings are not subject to reversal merely because 

substantial evidence exists in the record to support a different conclusion . 

. . . The substantial evidence standard presupposes that there is a ‘zone of 

choice’ within which the Secretary may proceed without interference from 

the courts. If the Secretary’s decision is supported by substantial evidence, 

a reviewing court must affirm. 

Id. (citations omitted). 

 In considering an application for disability benefits, the Social Security Agency is 

guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if 

the claimant is still performing substantial gainful activity; at Step 2, the Commissioner 
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determines if one or more of the claimant’s impairments are “severe;” at Step 3, the 

Commissioner analyzes whether the claimant’s impairments, singly or in combination, 

meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner 

determines whether or not the claimant can still perform his or her past relevant work; 

and finally, at Step 5, if it is established that claimant can no longer perform his or her 

past relevant work, the burden of proof shifts to the agency to determine whether a 

significant number of other jobs which the claimant can perform exist in the national 

economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 

20 C.F.R. §§404.1520, 416.920. 

 A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she 

is entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking benefits 

must present sufficient evidence to show that, during the relevant time period, he or she 

suffered impairment, or combination of impairments, expected to last at least twelve 

months, that left him or her unable to perform any job in the national economy. 42 U.S.C. 

§ 423(d)(1)(A). 

 B. The ALJ’s decision is not supported by Substantial evidence 

 Upon careful review, the undersigned finds that the ALJ erred in failing to give 

controlling weight to the findings of Plaintiff’s therapist, Ms. Tupa and also erred in failing 

to adopt the prior ALJ’s decision. 

 In evaluating the opinion evidence, “[t]he ALJ ‘must’ give a treating source opinion 

controlling weight if the treating source opinion is ‘well-supported by medically acceptable 

clinical and laboratory diagnostic techniques' and is ‘not inconsistent with the other 

substantial evidence in [the] case record.’” Blakley v. Commissioner of Social Sec., 581 
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F.3d 399, 406 (6th Cir.2009) (quoting Wilson v. Commissioner, 378 F.3d 541, 544 (6th 

Cir.2004). If the ALJ does not accord controlling weight to a treating physician, 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. 

Wilson, 378 F.3d at 544; see also 20 C.F.R. § 404.1527(d)(2). 

 In weighing differing medical opinion evidence, an ALJ considers the factors set 

forth in 20 C.F.R. § 404.1527(d)(2). These factors include: “(1) the length of the treatment 

relationship and the frequency of the examination; (2) the nature and extent of the 

treatment relationship; (3) the supportability of the opinion, with respect to relevant 

evidence such as medical signs and laboratory findings; (4) the consistency of the opinion 

with the record as a whole; (5) the specialization of the physician rendering the opinion; 

and (6) any other factor raised by the applicant.” Meece v. Barnhart, 192 Fed. Appx. 456, 

461 (6th Cir.2006) (citing 20 C.F.R. §§ 404.1527(d)(2)-(d)(6)). 

 More weight is generally given to an opinion offered by a medical source who has 

examined the claimant over an opinion offered by a medical source who has not examined 

the claimant. 20 C.F.R. § 404.1527(d)(1). More weight is given to opinions supported by 

“relevant evidence” such as “medical signs and laboratory findings[.]” 20 C.F.R. § 

404.1527(d)(3). Further, more weight is given to those medical opinions that are “more 

consistent ... with the record as a whole[.]” 20 C.F.R. § 404.1527(d)(3). 

 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 
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a claimant's ability to work. 20 C.F.R. § 404.1513(d). “Other sources” include medical 

sources such as nurse practitioners that do not qualify as “acceptable medical sources” 

under the regulations. Id. Although “other medical sources” who have treated a claimant 

are not entitled to controlling weight like a treating physician or psychologist are, 

“other sources” may be entitled to more weight than “acceptable medical sources” under 

the unique circumstances of a given case. SSR 06–03p, 2006 WL 2329939, at *5 (Aug. 

9, 2006). In fact, the opinions of “other sources,” such as nurse practitioners, 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.

 ALJs weigh the opinions of “other sources” using the factors set forth in 20 C.F.R. 

§ 404.1527(c), i.e., “how long the source has known the individual, how frequently the 

source has seen the individual, how consistent the opinion of the source is with other 

evidence, how well the source explains the opinion, and whether the source has a 

specialty or area of expertise related to the individual's impairment.” Williamson v. 

Comm'r of Soc. Sec., No. 1:14–cv–731, 2016 WL 255033, at *8 (S.D. Ohio Jan. 20, 

2016); see also 20 C.F.R. § 404.1527(c). ALJs should “explain the weight given” such 

opinions, “or otherwise ensure that the discussion of the evidence in the determination or 

decision allows a claimant or subsequent reviewer to follow the [ALJ's] reasoning, when 

such opinions may have an effect on the outcome of the case.” Williamson, at *8. 

 Here, in July 2017, Ms. Tupa completed a “Mental Impairment Questionnaire” form 

wherein she opined, in part, that Plaintiff had “severe” limitations in mental functioning, 

including in: the ability to understand and remember detailed instructions; the ability to 
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maintain attention and concentration for extended periods; restriction in activities of daily 

living; and difficulties in maintaining concentration, persistence or pace. (Tr. 1435-36). 

The form defined a “severe” limitation as “not able to perform designated task or function 

on regular, reliable, and sustained schedule.” (Tr. 1435). Ms. Tupa also opined that 

Plaintiff had “moderately severe” limitations in other areas of mental functioning. (Tr. 

1435-36). Ms. Tupa further opined that Plaintiff would miss more than four days of work 

per month. (Tr. 1437). 

 In formulating Plaintiff’s RFC, the ALJ gave little weight to Ms. Tupa’s opinions. 

The ALJ noted that Ms. Tupa is not considered acceptable medical sources under the 

regulations. (Tr. 219). See 20 C.F.R. § 404.1513(d); Engebrecht v. Comm'r of Soc. Sec.,

572 F. App'x 392, 399 (6th Cir.2014) (a therapist—is not properly classified as an 

“acceptable medical source” opinion but is an “other source” opinion); See also 20 C.F.R. 

§ 404.1513 (1997). The ALJ further explained that Ms. Tupa’s findings were not 

supported by the overall longitudinal objective evidence of record. (Id.). See 20 C.F.R. § 

404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as a whole, 

the more weight we will give to that opinion”). For example, the ALJ noted that Dr. Baula, 

a psychiatrist at Community Behavioral Health, recently found Plaintiff had normal mood 

and thought content, and opined she was doing ok with mostly controlled anxiety (Id., 

citing 1085-92). The ALJ also considered that other treatment notes indicated that Plaintiff 

had good fund of knowledge and normal comprehension. (Id., citing 1279, 1284). The 

ALJ further noted that Ms. Tupa did not explain why she believed Plaintiff would miss 

more than four days of work per month, or what would cause Plaintiff to miss work. (Id.) 

 
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 Plaintiff treated with Ms. Tupa for about eight months leading up to the completion 

of the medical source statement and saw her for at least six individual therapy sessions. 

(Tr. 1134, 1139, 1154; 1378, 1395, 1416). As an LPC, Ms. Tupa is a licensed professional 

counselor trained to work with individuals in treating mental, behavioral and emotional 

problems and disorders. Her medical opinion is well supported and consistent with the 

records as a whole. In this regard, Ms. Tupa’s treatment notes included the following 

clinical findings: flight of ideas/disordered thoughts (Tr. 620, 870, 895, 1134, 1154, 1421); 

difficulty following along (Tr. 833, 849, 1115, 1118, 1158, 1167, 1174, 1198, 1204, 1236, 

1349, 1401, 1408); difficulty focusing (Tr. 838, 849, 852, 915, 935, 944, 967, 1349); 

difficulty processing thoughts and questions (Tr. 836, 849, 1115, 1118, 1158, 1186, 1198, 

1204, 1236, 1257, 1353, 1366, 1375, 1378, 1408) and difficulty comprehending 

information (Tr. 911, 1236, 1351, 1375, 1395). 

 Ms. Tupa further noted that Plaintiff struggles to maintain focus, scheduling and 

comprehension in general; frequently misinterprets the intention of others and has 

difficulty in comprehending or following through on any but the most basic of tasks. (Tr. 

1440). These findings are echoed throughout Plaintiff’s treatment at Community 

Behavioral Health. (Tr. 583-655, 824-998, 1093-1271, 1330-1432). 

 Ms. Tupa’s findings are also consistent with those of Ms. Duncan, Plaintiff’s case 

manager. See 20 C.F.R. § 404.1527(d)(3) (more weight is given to those medical opinions 

that are “more consistent ... with the record as a whole[.]”). At the administrative hearing, 

Angela Duncan testified she is Plaintiff’s mental health case manager for more than two 

years. (Tr. 51). Ms. Duncan met with Plaintiff at least once a week individually, sometimes 

more and Plaintiff attended two group sessions each week. (Tr. 51-52). Ms. Duncan 
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testified Plaintiff can follow very simple one to two step instructions, more than three is 

difficult for her. (Tr. 53). Plaintiff needs one-on-one instruction with one to two step tasks. 

(Id). Ms. Duncan testified that she helps Plaintiff with her weekly schedule. (Tr. 54). 

Plaintiff needs be given verbal instructions, because she cannot understand written 

instructions. (Tr. 55). Plaintiff needs to be redirected multiple times in one session. (Tr. 

56). Ms. Duncan testified Plaintiff would need clarification and redirecting with one to two 

step tasks in a job setting. (Tr. 58). Ms. Duncan stated that she did not feel Plaintiff could 

live independently and would recommend she live in an assisted living program where 

she could be monitored. (Tr. 61). 

 The ALJ also assigned little weight to Ms. Duncan’s testimony. The ALJ noted that 

Ms. Duncan was not an acceptable medical source and that her testimony was 

inconsistent with the findings from the neurologist which showed normal mood, affect, 

speech and behavior. Here testimony was also inconsistent with Dr. Baula, a psychiatrist 

who also treated Plaintiff at community Behavior Health, who noted that Plaintiff was 

doing “ok” and her anxiety was “mostly under control.” (Tr. 19). Plaintiff’ argues that the 

ALJ’ s findings with respect to Ms. Tupa is not supported by substantial evidence. The 

undersigned agrees. 

 The undersigned acknowledges that Ms. Tupa and Ms. Duncan are not acceptable 

medical sources, however, they have both treated Plaintiff regularly over a two-year 

period. As such, they are in the best position to assess the functional limitations caused 

by Plaintiff’s mental impairments. Notably, “other sources” may be entitled to more weight 

than “acceptable medical sources” under the unique circumstances of a given case. 

Woodcock v. Comm'r of Soc. Sec., 201 F. Supp. 3d 912, 920 (S.D. Ohio 2016). Such is 
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the case here. In light of the foregoing, the undersigned finds that the ALJ erred in failing 

to adopt the limitations included in the Mental Impairment Questionnaire completed by 

Ms. Tupa, in July 2017. 

 Additionally, the ALJ’s failure to adopt the prior ALJ decision as required by 

Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997) is not 

supported by substantial evidence. As noted by the ALJ, absent evidence of a change in 

a Plaintiff’s condition, an ALJ in a subsequent proceeding is bound by the findings of a 

previous ALJ. Id. 

 In a prior application for Supplemental Security Income benefits filed on July 28, 

2003, Plaintiff was found disabled. The ALJ found Plaintiff was unable to perform 

sustained, competitive work activity of any nature, including sedentary work, because she 

was limited to low stress tasks with no production quotas, no requirement to maintain 

concentration on a single task for longer than 15 minutes at a time and no exposure to 

the general public. (Tr. 78). However, her benefits ceased in June 2009 when her spousal 

income exceeded the limitations allowed by the SSI program. (Tr. 246, 566). Plaintiff’s 

spouse died on December 29, 2014. As such, Plaintiff argues that the only reason 

Plaintiff’s SSI benefits were ceased on the prior claim was due to change in income, not 

because her symptoms had improved. (Tr. 566). The undersigned agrees. 

 Here, the ALJ determined that the record contained new and material evidence 

and therefore Drummond did not apply. (Tr. 10). Such a finding is not substantially 

supported. As outlined by Plaintiff, to show a change in the severity of Plaintiff’s condition, 

the ALJ cites to records from Dr. Privitera, Plaintiff’s neurologist. (Tr. 482, 486, 1278, 

1283-1284), a diagnostic update (Tr. 1076) and one office note from Plaintiff’s 
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psychiatrist. (Tr. 609). However, the evidence of record overwhelming supports the 

severity of limitation in the area of concentration as found by the prior ALJ. As noted 

above, the record is replete with difficulty with concentrating/focusing and 

comprehending; flight of ideas/disordered thoughts (Tr. 620, 870, 895, 1134, 1154, 1421); 

difficulty following along (Tr. 833, 849, 1115, 1118, 1158, 1167, 1174, 1198, 1204, 1236, 

1349, 1401, 1408); difficulty focusing (Tr. 838, 849, 852, 915, 935, 944, 967, 1349); 

difficulty processing thoughts and questions (Tr. 836, 849, 1115, 1118, 1158, 1186, 1198, 

1204, 1236, 1257, 1353, 1366, 1375, 1378, 1408) and difficulty comprehending 

information (Tr. 911, 1236, 1251, 1375, 1395). 

 Based on the foregoing, the undersigned finds that the ALJ erred by not adopting 

the prior ALJ’s findings that Plaintiff was disabled. 

 When, as here, the non-disability determination is not supported by substantial 

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

or to reverse and order benefits granted. 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, 111 S.Ct. 2157, 115 L.Ed.2d 

78 (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). The Court may award 

benefits where the proof of disability is strong and opposing evidence is lacking in 

substance, so that remand would merely involve the presentation of cumulative evidence, 
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or where the proof of disability is overwhelming. Faucher, 17 F.3d at 176; see 

also Felisky, 35 F.3d at 1041; Mowery v. Heckler, 772 F.2d 966, 973 (6th Cir.1985). Such 

is the case here.

 Here, proof of disability is overwhelming and a remand will serve no purpose other 

than delay. As fully explained above, in view of the extensive medical record of evidence 

of disability and the credible and controlling findings of Ms. Tupa, proof of disability is 

overwhelming. 

 III. Conclusion and Recommendation

 For the reasons explained herein, IT IS RECOMMENDED THAT Defendant's 

decision be REVERSED AND REMANDED to the Commissioner of Social Security for 

an immediate award of benefits; and that this case be CLOSED in this Court. 

 s/Stephanie K. Bowman 

Stephanie K. Bowman 

 United States Magistrate Judge 
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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

NAOMI RUTH STURGILL, Case No. 1:17-CV-607 

Plaintiff, Black, J. 

 Bowman, M.J. 

 v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

NOTICE 

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

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) 

of the R&R objected to, and shall be accompanied by a memorandum of law in support 

of the objections. A party shall respond to an opponent’s objections within FOURTEEN 

(14) DAYS after being served with a copy of those objections. Failure to make objections 

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).