Gargano v. Commissioner of Social Security

Filing 15

Memorandum Opinion and Order: The Court AFFIRMS the Commissioner's decision. Magistrate Judge Kathleen B. Burke on 2/27/2019. (D, I)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CARMINE JOSHUWA GARGANO,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:18-cv-00325
MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiff Carmine Joshuwa Gargano (“Plaintiff” or “Gargano”) seeks judicial review of
the final decision of Defendant Commissioner of Social Security (“Defendant” or
“Commissioner”) denying his applications for social security disability benefits. Doc. 1. This
Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned
Magistrate Judge pursuant to the consent of the parties. Doc. 10. For the reasons explained
herein, the Court AFFIRMS the Commissioner’s decision.
I. Procedural History
Gargano protectively filed applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on July 23, 2013. 1 Tr. 85-86, 177-180, 181-186, 389.
Gargano alleged a disability onset date of May 15, 2013. Tr. 177, 181, 202, 226. He alleged
disability due to memory problems, bipolar disorder, cannabis dependence, schizoaffective
disorder, and back problems. Tr. 64, 87, 117, 133, 202. Gargano’s applications were denied

1

The Social Security Administration explains that “protective filing date” is “The date you first contact us about
filing for benefits. It may be used to establish an earlier application date than when we receive your signed
application.” http://www.socialsecurity.gov/agency/glossary/ (last visited 2/27/2019).

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initially (Tr. 117-130) and upon reconsideration by the state agency (Tr. 133-137). Thereafter,
he requested an administrative hearing. Tr. 143-144. On April 28, 2015, Administrative Law
Judge Eric Westley (“ALJ” or “ALJ Westley”) conducted a hearing. Tr. 36-63.
On May 19, 2015, the ALJ denied benefits, determining that Gargano had not been under
a disability within the meaning of the Social Security Act from May 15, 2013, through the date
of the decision. Tr. 19-35. Gargano requested review of the ALJ’s decision by the Appeals
Council. Tr. 14-18. On February 11, 2016, the Appeals Council denied Gargano’s request for
review, making the ALJ’s decision the final decision of the Commissioner. Tr. 1-6.
Gargano filed an appeal in the U.S. District Court for the Northern District, Case No.
1:16-cv-00796, and, on March 13, 2017, this Court reversed and remanded the Commissioner’s
decision, finding that the ALJ’s analysis of the medical opinion evidence was insufficient to
allow the Court to assess whether the decision was supported by substantial evidence. Tr. 452489. Pursuant to the Court’s remand order, on May 30, 2017, the Appeals Council remanded the
case to an Administrative Law Judge for further proceedings consistent with the Court’s order.
Tr. 491-495.
Following issuance of the remand order, ALJ Westley conducted a hearing in November
2017. 2 Tr. 406-435. On December 7, 2017, the ALJ denied benefits, finding that Gargano had
not been under a disability within the meaning of the Social Security Act from May 15, 2013,
through the date of the decision. Tr. 386-405. There is no indication that Gargano filed written
exceptions to the ALJ’s December 7, 2017, decision or that that the Appeals Council reviewed

2

The hearing transcript contains two different hearing dates - November 7, 2017, and November 11, 2017. Tr. 406,
408, 435.

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the decision on its own. 3 Doc. 12, p. 3. Thus, the ALJ’s December 7, 2017, decision became the
final decision on the 61st day following the ALJ’s notice of decision. Tr. 387. On February 9,
2018, Gargano appealed the ALJ’s December 7, 2017, decision to this Court. Doc. 1.
II. Evidence
A.

Personal, vocational and educational evidence
Gargano was born in 1983. Tr. 42, 177. Gargano completed school through the 12th

grade and started working right after high school. Tr. 42-43. He worked at a coffee/donut shop
owned by his father. Tr. 45-46. The shop sold other items such as tobacco and lottery. Tr. 45.
Gargano stocked shelves and performed janitorial work. Tr. 45-46. Gargano had some minimal
supervisory responsibilities. Tr. 45-46. For example, if someone did not show up for work, he
would call them or try to find out why they were not at work. Tr. 46. Ultimately, his father fired
him because he had made some female co-workers cry and was showing up late or not showing
up for work. Tr. 46-47. Gargano was not told and he does not know what he did to make his
co-workers cry. Tr. 47. Gargano worked for a painting company doing outdoor painting when
he was in high school. Tr. 47-48. Gargano worked in the fall of 2014 at a zombie paintball
attraction at Mapleside, an apple farm. Tr. 43-45, 419-420. His friends were responsible for
running the paintball attraction so his schedule was pretty much whatever he wanted it to be. Tr.
44. Gargano was not fired from the job; the job just ended. 4 Tr. 45.

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20 C.F.R. § 404.984 provides that, “when a case is remanded by a Federal court for further consideration, the
decision of the administrative law judge will become the final decision of the Commissioner after remand on your
case unless the Appeals Council assumes jurisdiction of the case.” 20 C.F.R. § 404.984(a). Thus, when a claimant
does not file exceptions and the Appeals Council does not assume jurisdiction without exceptions being filed, “the
decision of the administrative law judge becomes the final decision of the Commissioner after remand.” 20 C.F.R. §
404.984(d).

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In addition to the work history discussed herein, the medical records reflect that Gargano may have worked in
other capacities after 2014. See Tr. 1017 (9/12/2016 visit – Gargano reported that he lost his job due to another
coworker losing something on the job and he was looking for work); Tr. 1013 (12/19/2016 visit – Gargano reported
that he was working – moving furniture off and on jobs).
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B.

Medical evidence
1.

Treatment history

On May 15, 2013, Gargano presented to the emergency room at Lutheran Hospital with
complaints of hallucinations. Doc. Tr. 268-271. Gargano’s mother was present with him. Tr.
238. Gargano’s mother relayed that, over the prior two weeks, her son had been wandering
around and acting strange. Tr. 268. Gargano considered jumping off a bridge, thinking it was a
quarry. Tr. 268. Gargano admitted to abusing marijuana and opiates but denied using for about
a week. Tr. 268. However, the lab results on admission were positive for marijuana. Tr. 249.
Gargano had never been diagnosed with a mental health issue. Tr. 268. He denied any
exacerbating or alleviating factors and denied any suicidal or homicidal ideations. Tr. 268. On
physical examination, Gargano was observed to have a normal mood and affect; his thought
content was normal; his speech was rapid and/or pressured and tangential; he was actively
hallucinating; his thought content was not paranoid and not delusional; his cognition and
memory were normal; he expressed impulsivity; and he expressed no homicidal or suicidal plans
or ideation. Tr. 269. Gargano was initially diagnosed with hallucinations and schizophrenia.
Tr. 270. He was admitted to North Coast Behavioral Center from May 17, 2013, through May
31, 2013. Tr. 248, 272. His GAF score on admission was 39. 5 Tr. 252. Gargano’s diagnoses on

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As set forth in the DSM-IV, GAF (Global Assessment of Functioning) considers psychological, social and
occupational functioning on a hypothetical continuum of mental health illnesses. See American Psychiatric
Association: Diagnostic & Statistical Manual of Mental Health Disorders, Fourth Edition, Text Revision.
Washington, DC, American Psychiatric Association, 2000 (“DSM-IV-TR”), at 34. A GAF score between 31 and 40
indicates “some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or
irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or
mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger
children, is defiant at home, and is failing at school).” Id. With the publication of the DSM-5 in 2013, the GAF was
not included in the DSM-5. See American Psychiatric Association: Diagnostic & Statistical Manual of Mental
Health Disorders, Fifth Edition, Arlington, VA, American Psychiatric Association, 2013 (“DSM-5”), at 16.

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admission were bipolar I, hypomanic with psychotic features and marijuana dependence. Tr.
248.
During his admission at North Coast Behavioral Center, Gargano reported that he did not
trust anyone except his mother; he had neglected his personal hygiene, he had periods of over
activity and periods of sleeping just a few hours; he lost almost 50 pounds over several months;
his spending behavior was reckless; he felt that people were out to get him; and he had very
impulsive behavior. Tr. 248. Gargano had a history of skeletal pain that led to OxyContin abuse
and he almost ended up in trouble for drug trafficking. Tr. 248. Gargano also had a past history
of using steroids for bodybuilding. Tr. 248. When he used steroids, he had racing thoughts. Tr.
248. At discharge, Gargano’s diagnoses were bipolar I, hypomanic with psychotic features and
marijuana dependence (Tr. 252) and his GAF score was 56. 6 Tr. 252. At discharge, Gargano
was in control; not psychotic; not suicidal; had no auditory or visual hallucinations; his mood
was even; and his judgment and insight had improved. Tr. 251. Dr. Manual Gordillo, M.D., the
discharging physician, recommended that Gargano return home, look for a job, and proceed with
outpatient psychiatric follow up at Center for Families and Children Service. Tr. 252.
Gargano’s prognosis was guarded. Tr. 252.
On July 18, 2013, Gargano began receiving outpatient services at Center for Families and
Children Service. Tr. 301-306. Gargano saw Maureen Sweeney, NP, for a Psychiatric
Evaluation. Tr. 301-306. Gargano reported that he was seeking treatment because he was not
feeling mentally stable. Tr. 301. Gargano’s mother was present for the evaluation. Tr. 301.
Gargano and his mother indicated that his symptoms started when he was 16 or 17 years old. Tr.
301. Gargano reported psychomotor agitation (shaking legs) and sleep disturbance. Tr. 301.

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A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or
school functioning. DSM-IV-TR, at 34.
5

Gargano was sleeping 2 hours a night. Tr. 301. He reported daily audio hallucinations, visual
hallucinations, manic periods lasting for weeks to months, and depressive periods that last for
days. Tr. 301. Nurse Sweeney observed that Gargano appeared hypomanic during the
evaluation. Tr. 301. Gargano reported using marijuana a couple times per week and drinking
alcohol only occasionally. Tr. 301. Gargano felt that the marijuana helped with the pain in his
body. Tr. 301. Gargano indicated that he had been working with his father but his father did
not want him to work at the donut/coffee shop because of his mental illness. Tr. 302. Gargano
indicated that he had a lot of debt from being in business with his father. Tr. 302. Nurse
Sweeney diagnosed bipolar I disorder, with psychotic features but rule out schizoaffective
disorder, noting that it was unclear whether Gargano’s psychotic features go away when Gargano
is not manic. Tr. 303.

Nurse Sweeney assigned a GAF score of 40. Tr. 304. Gargano was

taking Gedeon and Depakote ER but reported having more days of severe depression. Tr. 303.
Nurse Sweeney modified Gargano’s medications. Tr. 303. She added Seroquel XR, continued
Depakote, and decreased the Gedeon dosage. Tr. 303.
Gargano saw Nurse Sweeney again on August 1, 2013. Tr. 308-309. Gargano indicated
that he was depressed and irritable. Tr. 308. He was feeling isolated because his father and
sister were judgmental about him seeking mental health treatment. Tr. 308. Gargano was
continuing to have audio hallucinations but only at night. Tr. 308. Nurse Sweeney observed that
Gargano appeared euthymic during the appointment and discussed with Gargano that his feelings
of depression could be the effect of returning to euthymia following a period of hypomania. Tr.
308. Gargano reported medication side effects of sedation and muscle tightness. Tr. 309. Nurse
Sweeney continued Gargano on Depakote, discontinued Gedeon, increased Seroquel, and added
Cogentin to address Gargano’s muscle tightness. Tr. 309. On August 13, 2013, Gargano saw

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Nurse Sweeney and reported “still feeling really depressed.” Tr. 310. Gargano was sleeping
about 10 hours each day and still feeling fatigued during the day. Tr. 310. Gargano was
continuing to have audio hallucinations but only at night. Tr. 310. Nurse Sweeney ordered
Wellbutrin XL to address Gargano’s depression but advised that there was a risk that the new
medication could cause mania. Tr. 311. Gargano expressed his understanding of the risks and
felt that the possible benefits outweighed the risks. Tr. 311. Nurse Sweeney indicated she
would see Gargano again in 2 weeks to start him on Wellbutrin XL. Tr. 311. On August 27,
2013, Gargano saw Nurse Sweeney and reported the he was “still feeling pretty down.” Tr. 312.
Nurse Sweeney started Gargano on Wellbutrin XL. Tr. 313.
On September 23, 2013, Gargano saw Nurse Sweeney. Tr. 315-316. Gargano indicated
that his mood was “normal.” Tr. 315. During that month, Gargano had a decreased need for
sleep and he was having paranoid delusions. Tr. 315. He felt “like there was a conspiracy to get
[him]” and “thought that the government was watching [him] and that other people’s animals
were watching [him.]” Tr. 315. Since starting on Wellbutrin XL, Gargano indicated that he felt
less depressed and did not think that the Wellbutrin XL was causing his manic symptoms. Tr.
315. He relayed that, prior to having the manic symptoms, he had an increase in stressors – he
had received a number of shut off notices from the city. Tr. 315. Gargano reported that he was
continuing to have audio hallucinations. Tr. 315. He explained that, “[he] zone[s] out and
[doesn’t] hear the t.v. and . . . hear[s] old friend’s that are no longer with [him], in a good way[.]”
Tr. 315. Nurse Sweeney noted that Gargano was not manic or hypomanic. Tr. 315. Also, she
indicated that Gargano’s mood had “gotten better” since starting on Wellbutrin XL. Tr. 316.
Since Gargano was having psychotic symptoms in the absence of mood deregulation, Nurse

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Sweeney suspected that a more accurate diagnosis might be schizoaffective disorder. Tr. 315316. Nurse Sweeney increased Gargano’s Seroquel to target his psychotic symptoms. Tr. 316.
On October 7, 2013, Gargano saw his primary care physician Dr. Mudita Bhatia, M.D.,
for a physical at which time it was noted that Gargano was receiving outpatient treatment for
bipolar disorder. Tr. 294. Gargano indicated that his hallucinations/delusions had improved
since May 2013 but, at times, his mother observed him talking to himself or unseen people. Tr.
294. Also, it was noted that Gargano had very low attention and concentration and did not do
anything at home except read. Tr. 294.
During an October 21, 2013, appointment with Nurse Sweeney, Gargano indicated that
his mood was “okay.” Tr. 318. He was continuing to have a difficult time processing stressors
but was gaining insight. Tr. 318. He denied psychotic features. Tr. 318. Nurse Sweeney
indicated that Gargano appeared stable on his medications. Tr. 319. On November 18, 2013,
Gargano saw Nurse Sweeney. Tr. 320. He indicated that “things [were] okay, a little out of
sorts[.]” Tr. 320. He indicated that he was “not feeling up or down.” Tr. 320. He was mostly
medication compliant. Tr. 320. Gargano had no major issues to report. Tr. 320. He reported
that his sleep was good. Tr. 320. Gargano was somewhat withdrawn but did not seem
uncomfortable with that. Tr. 320. Gargano denied psychotic symptoms and, when asked if he
thought his medications were helpful, he indicated, “yes . . . I was really out in left field before
the meds[.]” Tr. 320. Gargano’s mood was stable. Tr. 320-321. He felt somewhat blunted on
his medication but felt that the benefits outweighed the risks. Tr. 321.
On January 2, 2014, Gargano saw Nurse Sweeney reporting, “I am not feeling too good
today[.]” Tr. 338. Gargano reported anger and irritability. Tr. 338. Nurse Sweeney was not
sure whether Gargano’s irritability was related to his depression or to personality issues. Tr. 339.

8

Since Gargano did not report other symptoms of depression, Nurse Sweeney suspected that
Gargano’s irritability was related to personality issues. Tr. 339. Nurse Sweeney explained that
anger is not something that is medicated and she offered Gargano a referral for counseling but
Gargano declined. Tr. 338, 339. Gargano denied any hypomanic, manic, or psychotic
symptoms. Tr. 338. Nurse Sweeney indicated that Gargano was easily confused. Tr. 338.
During a February 3, 2014, visit with Nurse Sweeney, Gargano relayed that he was
“really hearing a lot of voices all the time[.]” Tr. 340. Gargano’s mood was “down.” Tr. 340.
Gargano was hearing multiple voices and felt like certain television and radio programs were
talking to him. Tr. 340. Gargano had insight into his feelings being abnormal but was
continuing to have them. Tr. 340. Gargano’s sleep was poor and varied. Tr. 340. At times, he
was sleeping 10-12 hours a day and, at other times, he could not sleep. Tr. 340. Gargano
reported no mania/hypomania symptoms. Tr. 340. Nurse Sweeney switched Gargano’s
diagnosis to paranoid schizophrenia due to the presence of psychotic features in the absence of
mood issues. Tr. 341. Nurse Sweeney started Gargano on Latuda in place of Seroquel. Tr. 341.
Gargano did not think that the Seroquel helped and it made him groggy. Tr. 340.
On March 3, 2014, Gargano saw Nurse Sweeney and reported that “the [L]atuda works
much better than the [S]eroquel[.]” Tr. 342. Gargano was no longer having audio hallucinations
but he was having paranoid delusions. Tr. 342. He felt that the government was watching him
through his electronic devices. Tr. 342. Nurse Sweeney observed that Gargano appeared less
blunted and was pleasant. Tr. 343. Nurse Sweeney noted the possibility of sleep apnea. 7 Tr.
342

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On March 14, 2014, a sleep study was performed. Tr. 347-356. The results of the sleep study showed mild
obstructive sleep apnea that was controlled on CPAP therapy. Tr. 349.
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On April 1, 2014, Gargano saw Nurse Sweeney and reported that his mood had been “up
and down” that month but better on Latuda. Tr. 357. Gargano’s audio hallucinations and
paranoid symptoms were reduced but he continued to believe he was being monitored through
his television and computer but recognized that those thoughts were “not normal.” Tr. 357.
Gargano was continuing to have difficulty processing information, especially when complicated
situations were involved. Tr. 357. Nurse Sweeney observed a change in Gargano’s physical
appearance over the preceding year, noting that Gargano was dressing very casual and his hair
was disheveled and no longer styled. Tr. 357. Nurse Sweeney continued to diagnose paranoid
schizophrenia, noting that Gargano’s psychotic symptoms had improved on Latuda but he was
continuing to suffer negative symptoms of schizophrenia, including cognitive impairments
evidenced by difficulty processing information. Tr. 358.
On May 1, 2014, Gargano saw Nurse Sweeney reporting that he was “still having up and
down days[.]” Tr. 359. Gargano felt that the Latuda was helping with his paranoid thoughts but
he was continuing to have delusions about people monitoring him at his home. Tr. 359.
Gargano continued to understand that these were abnormal thoughts but they felt very real to
him. Tr. 359. Gargano decreased his Depakote on his own because he was sleeping too much.
Tr. 359, 360. There was no mania/hypomania present and Gargano’s speech was normal. Tr.
359. Gargano’s sleep had improved on the CPAP. Tr. 359. Gargano was continuing to isolate
himself, which he indicated was due to his mood. Tr. 359. Because Gargano was continuing to
have psychotic features, Nurse Sweeney increased Gargano’s Latuda. Tr. 360. Also, Nurse
Sweeney increased Gargano’s Wellbutrin XL for his mood. Tr. 360.

During a May 30, 2014,

visit with Nurse Sweeney, Gargano reported that “things are getting better[.]” Tr. 361. Gargano
denied audio hallucinations or delusional thinking – he no longer felt that the television was

10

sending him messages. Tr. 361. Gargano was continuing to exhibit a flat affect, which his
family was having a difficult time with. Tr. 361. Gargano’s sleep was better; he was averaging
about 8 hours. Tr. 361. Nurse Sweeney’s assessment was that Gargano appeared more stable.
Tr. 362. Nurse Sweeney informed Gargano that he would be seeing Kelley Kauffman because
Nurse Sweeney was going to be out on leave. Tr. 362.
On June 30, 2014, Gargano saw Kelley Kauffman, RN, NP. Tr. 363-364. Gargano
reported that he had been taking it easy and was compliant with his medication. Tr. 363. He
indicated that his audio hallucinations had decreased but he was having visual hallucinations. Tr.
363. He was having “feelings that animals and bugs [were] tracking him and reporting back to
someone unknown.” Tr. 363. He said he ignores cameras and reported some paranoia of an
unknown threat that he had been trying to discover for over a year. Tr. 363. Gargano stated that
when he takes his Latuda he feels he needs to pace. Tr. 363. The Cogentin was not helping
with Gargano’s restlessness so Gargano requested an increase. Tr. 364. Nurse Kauffman
increased Gargano’s Cogentin dose and continued his other medication. Tr. 364.
On July 30, 2014, Gargano saw Nurse Sweeney. Tr. 365. Gargano reported that his
mood was “[g]ood for the most part[.]” Tr. 365. He was continuing to experience akathisia 8
“mostly at night” due to the Latuda but he was not taking his Cogentin regularly. Tr. 365, 366.
Nurse Sweeney discussed this with Gargano and he agreed to increase his medication
compliance. Tr. 366. Gargano denied psychotic features. Tr. 365. He was continuing to have
some tax issues related to his father’s business. Tr. 365. Gargano was no longer taking
Depakote but continued with Cogentin, Latuda and Wellbutrin XL. Tr. 366.

8

Akathisia, spelled akesthesia in the treatment records, is “a condition of motor restlessness in which there is a
feeling of muscular quivering, an urge to move about constantly, and an inability to sit still[.]” See Dorland’s
Illustrated Medical Dictionary, 32nd Edition, 2012, at 42.
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During an August 27, 2014, visit with Nurse Sweeney, Gargano indicated that his mood
was “okay.” Tr. 367. He denied audio hallucinations but continued to have delusional thinking.
Tr. 367. He relayed, “I feel like when I see white cars then they are all on the same team or
something.” Tr. 367. His sleep was okay except when his akathisia was bad. Tr. 367. His
Cogentin was not working. Tr. 367. Nurse Sweeney recommended discontinuing Cogentin
because it was not effective and starting Benadryl. Tr. 368.
On September 25, 2014, Gargano saw Nurse Sweeney reporting that his mood was “okay
but stressed[.]” Tr. 369. Gargano relayed that he was working at Mapleside Farm for the
season. Tr. 369. He was enjoying the work but was feeling stressed because he was working
Monday through Friday 8:30-6 and unable to find time to meet with his case manager to discuss
getting assistance with his medical bills. Tr. 369. However, Gargano did indicate that his mom
could drop off paperwork with his case manager and Nurse Sweeney encouraged Gargano to set
up a phone appointment with his case manager. Tr. 369.

Sweeney indicated that his work was

seasonal so he would stop working in November. Tr. 369. Gargano indicated that the audio
hallucinations were “less on meds” and he was using music as a distraction from baseline
symptoms. Tr. 369. Gargano’s sleep was “good” – he was averaging 8 hours. Tr. 369. He
denied suicidal and homicidal ideation and other psychotic features. Tr. 369. Nurse Sweeney
assessed Gargano as stable, noting he was able to work part time at a seasonal job and was
compliant on medication. Tr. 370. She noted he needed assistance with social stressors and
would forward a note to his case manager regarding that need. Tr. 370.
On November 10, 2014, Gargano saw Nurse Sweeney and reported that his mood was
“not great.” Tr. 371. Gargano indicated that performing seasonal work had affected his ability
to take his medication so he was having more symptoms. Tr. 371. He was taking Latuda

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intermittently because of his work schedule. Tr. 371. He reported an increase in audio
hallucinations and paranoia. Tr. 371. Gargano was interested in an injectable form of
medication. Tr. 371-372. Nurse Sweeney discontinued Latuda and started Gargano on Invega
with a plan to work towards Sustenna. Tr. 372.
On December 1, 2014, Gargano saw Nurse Sweeney and reported that his mood was
“okay” since starting on Invega but noted increased sedation and some mild toe cramping. Tr.
373. Gargano no longer believed that he had “vague ‘special powers’” but he was having some
paranoia. Tr. 373. He explained “he stares out his window and ‘feels like there is something bad
going to happen to him.’” Tr. 373. Gargano remained somewhat social with friends and he had
recently had Thanksgiving dinner with his family. Tr. 373. Gargano felt that his symptoms were
more controlled with Invega than Latuda but, because of the sedation caused by the Invega,
Gargano was interested in switching to a new medication. Tr. 373. Nurse Sweeney changed
Gargano’s medication from Invega to Abilify. Tr. 374.
On February 2, 2015, Gargano saw Nurse Kauffman. Tr. 376-377. Gargano was
euthymic with a congruent affect. Tr. 376. Gargano reported decreased paranoia and believed
that his symptoms were well controlled on his current medication but he was still having
instances of increased paranoia when under stress. Tr. 376. Gargano reported drinking to the
point of “blacking out” when stressed. Tr. 376. Nurse Kauffman encouraged abstinence and
discussed the effects of combining alcohol with medication. Tr. 376. Gargano saw Nurse
Kauffman again on February 27, 2015. Tr. 378-379. Gargano reported that the Abilify was
causing anxious feelings but did feel that the Abilify was helping manage his psychotic
symptoms. Tr. 378. He denied internal restlessness but endorsed feeling that he needed to walk
around. Tr. 378. He indicated that his mood was stable with intermittent paranoia that was

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manageable. Tr. 378. Gargano reported side effects of anxiety and heart burn. Tr. 379.
Because side effects made taking his medication “regularly intolerable,” Gargano requested a
decrease in his medication rather than changing medications. Tr. 378. Gargano felt that the
benefits of staying on Abilify at a reduced dose outweighed risks at the time. Tr. 379. Per
Gargano’s request, Nurse Kauffman decreased the Abilify dose to decrease the risk of side
effects and continued the treatment of his symptoms of psychosis. Tr. 379.
During a medical visit on September 12, 2016, for follow up regarding hypogonadism
and back pain after falling down the steps, Gargano reported that he had lost his job because a
co-worker had lost something on the job. Tr. 1016-1017. Gargano relayed that he was looking
for work. Tr. 1017. During a December 19, 2016, medical visit for follow up regarding back
pain, Gargano noted that he was working – moving furniture off and on. Tr. 1013. Gargano was
also going to the gym for weight lifting. Tr. 1013. On physical examination, Gargano had a
normal mood and affect. Tr. 1014-1015.
Gargano saw Nurse Kauffman on February 10, 2017. Tr. 1034-1035. Gargano reported
continued audio hallucinations. Tr. 1034. Gargano was fearful that he was going to lose his
ability to get medication because of the new health care act and thought he should wean off his
medications. Tr. 1034. After discussions with Nurse Kauffman, Gargano agreed to stay on his
medications. Tr. 1034. He felt that his medications were helpful. Tr. 1034. He denied suicidal
or homicidal ideation and felt optimistic about his mood, noting that he felt “pretty good.” Tr.
1034. Gargano noted though that he was sleeping 12 hours per night but not feeling rested. Tr.
1034. He was dealing with issues pertaining to his father’s estate, including tax debt and
properties that were in foreclosure. Tr. 1034. He was not getting assistance with managing his
father’s estate from his half-brothers. Tr. 1034. Nurse Kauffman diagnosed schizophrenia,

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noting that Gargano had continued audio hallucinations at baseline, his mood was improved, and
he was better able to manage his stressors. Tr. 1035. Nurse Kauffman prescribed Abilify,
Wellbutrin, and Cogentin. Tr. 1035.
On May 17, 2017, Gargano saw David Brager, NP, at Center for Families and Children.
Tr. 1039-1040. Gargano relayed that he had been off his medications for one month. Tr. 1039.
Gargano’s mother, however, indicated that Gargano had been off his medications for two or
three months. Tr. 1039. Gargano reported paranoid ideation, hypervigilance, restlessness,
increased agitation, irritability and he felt that people were reading his thoughts. Tr. 1039.
Gargano reported that he had done well on Gedeon. Tr. 1040. Gargano did not like the side
effects he experienced when taking Wellburtin and Abilify. Tr. 1040. Nurse Brager
discontinued Wellbutrin and Abilify and prescribed Gedeon. Tr. 1040.
The following day, on May 18, 2017, Gargano presented to the emergency room at
Lutheran Hospital with his mother for a psychological evaluation. Tr. 725-731. When Gargano
arrived at the emergency room, he was pacing and restless, his speech was tangential and
rambling, and his thought process was disorganized. Tr. 726. Gargano’s mother relayed that
Gargano had not taken his medications for three months and had just restarted his medications
the day before. Tr. 726, 728. Gargano admitted to drinking for the prior two days and using
marijuana, which was possibly laced with something. Tr. 728. Gargano denied suicidal or
homicidal thoughts and denied hallucinations. Tr. 728. Gargano was pink slipped and admitted
for psychiatric evaluation. Tr. 730. Gargano’s diagnosis on admission was bipolar I disorder.
Tr. 730. During his hospitalization, Gargano’s psychiatric symptoms improved, he was able to
participate in unit activities, and comply with activities of daily living. Tr. 732. Gargano was
discharged on May 30, 2017, with a diagnosis of mood disorder bipolar disorder I, most recent

15

episode manic severe with psychotic features. Tr. 732. On the day of his discharge, Gargano
denied hallucinations as well as suicidal or homicidal ideation and he appeared future oriented.
Tr. 732. Gargano was discharged in stable condition. Tr. 732.
Gargano saw Nurse Brager on May 31, 2017. Tr. 1042-1043. Gargano relayed that he
had been hospitalized and reported that his mood was stable on medication. Tr. 1042. Nurse
Brager continued Gargano on Depakote, which had been started while Gargano was at Lutheran
as a mood stabilizer, and he prescribed Abilify and Cogentin. Tr. 1043.
During a June 12, 2017, visit with Nurse Brager, Gargano was more accepting of the fact
that he had schizoaffective disorder versus schizophrenia. Tr. 1044. Gargano relayed that he
had separated from his significant other. Tr. 1044. He was working on processing his thoughts
and feelings regarding the relationship ending. Tr. 1044. Nurse Brager continued Gargano on
Depakote, Abilify and Cogentin. Tr. 1045.
On August 11, 2017, Gargano saw Nurse Kauffman. Tr. 1046-1047. Gargano relayed
that things had been really rough. Tr. 1046. He had weaned himself off of Depakote. Tr. 1046.
He reported getting into arguments with friends and family and he owed a lot of people money.
Tr. 1046. Gargano was experiencing audio hallucinations that were mocking and taunting him,
which was preventing him from accomplishing tasks. Tr. 1046. He denied suicidal and
homicidal ideation but indicated that some days he was unable to get out of bed and would rather
go back to bed than face the day. Tr. 1046. Nurse Kauffman diagnosed schizophrenia,
depression, anxiety with possible paranoia and distressful audio hallucination. Tr. 1047. Nurse
Kauffman made some adjustments to Gargano’s medications. Tr. 1047.
During a September 7, 2017, visit with Nurse Kauffman, Gargano reported being “really
down the last few days.” Tr. 1048. He relayed that he felt not in control of his life. Tr. 1048.

16

He was losing all of his father’s properties because he did not file something in time; he had
increased depression; he was frustrated by multiple denials of social security; he rated his
paranoia a 9/10, with 10 being the worst; he felt like he was being judged and watched all the
time by family members. Tr. 1048. Nurse Kauffman diagnosed schizophrenia, continued
depression and anxiety about stressors. Tr. 1049. She indicated that Gargano had continued
psychosis but noted that his psychosis improved when he was on Abilify more regularly. Tr.
1049. Nurse Kauffman continued Gargano’s medications. Tr. 1049.
2.

Opinion evidence
a. Treating sources

Nurse Sweeney – January 2, 2014
On January 2, 2014, Nurse Sweeney completed a “Mental Impairment Questionnaire
(RFC & Listings).” Tr. 324-327. Nurse Sweeney indicated in the Questionnaire that she had
seen Gargano since July 2013 and that Gargano had a diagnosis of bipolar I disorder and a GAF
score of 40. Tr. 324. She offered the following information regarding his “treatment and
response:”
On Seroquel & Depakote for mood stabilization & Wellbutrin XL for depression.
[N]o recent hypomanic/manic episodes but recent episodes of severe depression
marked by anger/irritability.
Tr. 324. Nurse Sweeney indicated that Gargano’s medication caused drowsiness, fatigue, and
lethargy. Tr. 324. Nurse Sweeney indicated that the following clinical findings demonstrated
the severity of Gargano’s impairment and symptoms – irritable during appointments; difficult
time concentrating; often confused; needs repeated education on medication and mental health;
very concrete in his thinking; and unable to cope with stressors. Tr. 324. Nurse Sweeney opined

17

that Gargano was unable to function at a level needed to maintain employment because of his
diagnosis of bipolar disorder that was expected to last for more than 12 months. Tr. 324.
As part of the Questionnaire, Nurse Sweeney opined that Gargano had marked
restrictions in activities of daily living; marked difficulties in maintaining social functioning;
extreme difficulties in maintaining concentration, persistence or pace; and three episodes of
decompensation within a 12 month period, each of at least two weeks duration. Tr. 327.
Nurse Sweeney also rated Gargano’s functional abilities in specific categories within the
areas of “understanding and memory limitations;” “sustained concentration and persistence
limitations;” “social interaction limitations;” and “adaptation limitations.” Tr. 325-326. The
rating choices were “unlimited or very good,” “limited but satisfactory,” “seriously limited, but
not precluded,” “unable to meet competitive standards,” and “no useful ability to function.” Tr.
325.
In the area of “understanding and memory,” Nurse Sweeney rated Gargano’s ability to
understand and remember very short and simple instructions as “unlimited or very good” and his
ability to remember locations and work-like procedures and understand and remember detailed
instructions as “seriously limited, but not precluded.” Tr. 325. She explained her ratings, noting
that Gargano “has difficulty [with] concentration [and] memory when mood [at] extremes.” Tr.
325.
In the area of “sustained concentration and persistence,” Nurse Sweeney rated Gargano’s
ability to carry out very short and simple instructions as “limited but satisfactory.” Tr. 325.
Nurse Sweeney rated Gargano’s ability in the following seven categories as “seriously limited,
but not precluded” – carry out detailed instructions; maintain attention and concentration for
extended periods; perform activities within a schedule; sustain an ordinary routine without

18

special supervision; work in coordination with or in proximity to others without being distracted
by them; make simple work-related decisions; and perform at a consistent pace without an
unreasonable number and length of rest periods. Tr. 325. She rated Gargano as “unable to meet
competitive standards” in the following two categories – manage regular attendance and be
punctual within customary tolerances and complete a normal workday and workweek without
interruptions from psychologically based symptoms. Tr. 325. She explained her ratings by
noting that, “due to extreme moods related to bipolar [disorder,] [Gargano] is extremely limited
in ability to handle normal work activities (i.e. concentration, persistence, attention, schedule)[.]”
Tr. 325.
In the area of “social interaction,” Nurse Sweeney rated Gargano as “seriously limited,
but not precluded” in his ability to ask simple questions or request assistance and “unable to meet
competitive standards” in the following four categories - interact appropriately with the general
public; accept instructions and respond appropriately to criticism from supervisors; get along
with coworkers or peers without distracting them or exhibiting behavioral extremes; and
maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness.
Tr. 326. Nurse Sweeney explained her ratings, noting “[due to] bipolar [disorder] [Gargano] is
extremely limited in ability to behave appropriately [with] co-workers or general public.” Tr.
326.
In the area of “adaptation,” Nurse Sweeney rated Gargano as having “limited but
satisfactory” ability to travel in unfamiliar places or use public transportation and she rated
Gargano as “seriously limited, but not precluded” in his ability to respond appropriately to
changes in the work setting; be aware of normal hazards and take appropriate precautions; and

19

set realistic goals or make plans independently of others. Tr. 326. She explained her ratings,
noting “[Gargano] has difficulty processing information [due to] bipolar [disorder.]” Tr. 326.
Nurse Sweeney indicated that Gargano did not have a low IQ or reduced intellectual
functioning. Tr. 326. She opined that Gargano’s impairments or treatment would cause him to
be absent form work more than four days per month and his symptoms would cause him to be
off-task 25% of an 8-hour workday. Tr. 327. Also, she opined that Gargano’s symptoms would
cause him to be tardy to work more than four times per month. Tr. 327.
Nurse Sweeney, co-signed by M.D. – March 3, 2014
On March 3, 2014, Nurse Sweeney completed a Mental Status Questionnaire. Tr. 334336. The March 3, 2014, Questionnaire was co-signed by an M.D. Tr. 336. However, the name
of the M.D. is not identifiable from the signature. Tr. 336. In his brief, Gargano indicates that
the March 3, 2014, questionnaire was signed by Nurse Sweeney and Dr. Hunt. Doc. 12, p. 6.
Gargano’s mental status was described as follows: his appearance was pale and somewhat
disheveled; his flow of conversation and speech were normal rate, rhythm and volume; his mood
was “good” and his affect was congruent on that date but in the past his affect was appropriate;
he had anxiety about his normal life stressors; he had paranoid delusions that the government
was watching him through technology, he felt like he was thought projecting and at times felt
like the television and radio were talking to him and sending him messages so he was having
delusions of reference; he was alert and oriented; he had difficulty with concentration and short
term memory because at times he had difficulty telling reality from psychosis; he had
impairment with abstract reasoning; he had good insight into psychotic features but only when
symptoms are well controlled; his judgment was dependent on the level of psychosis; and there
were no substance abuse issues. Tr. 334.

20

Nurse Sweeney indicated that Gargano’s diagnosis was paranoid schizophrenia. Tr. 335.
Gargano’s treatment included Latuda to decrease his psychosis but he was still having some
delusions of reference and paranoia. Tr. 335. Gargano was also taking Wellbutrin to stabilize
his mood. Tr. 335.
Nurse Sweeney offered her opinion regarding Gargano’s functional abilities. Tr. 335.
She opined that Gargano had difficulty with memory and comprehension due to psychosis. Tr.
335. He had severe difficulty in maintaining attention due to psychosis. Tr. 335. He had
difficulty sustaining concentration or persisting at tasks due to psychosis. Tr. 335. He had
difficulty interacting socially due to paranoia and psychosis and difficulty adapting due to
psychosis. Tr. 335. In response to an inquiry regarding how Gargano would “react to the
pressures, in work settings or elsewhere, involved in simple and routine, or repetitive, tasks,”
Nurse Sweeney stated that Gargano “would react very poorly to any work or life stressors as they
would likely [increase] paranoia [and] psychosis.” Tr. 335.
Nurse Kauffman and Dr. Hunt – April 2015
In April 2015, Nurse Kauffman and Dr. Andrew Hunt, M.D., completed a “Mental
Impairment Questionnaire.” Tr. 384-385. Nurse Kauffman signed the Questionnaire on April 2,
2015, and Dr. Hunt signed the Questionnaire April 9, 2015. Tr. 385. They indicated that
Gargano had been with the agency since July 2013 and with Nurse Kauffman in February 2015.
Tr. 384. The space for listing “treating source(s)” was left blank. Tr. 384. Gargano’s diagnosis
was listed as schizophrenia. Tr. 384. They indicated that Gargano was prescribed Abilify,
Wellbutrin XL, and Cogentin, with restlessness listed as a side effect. Tr. 384. The following
clinical findings were listed as demonstrating the severity of Gargano’s impairment and
symptoms – paranoia, disorganization, delusions of “special powers.” Tr. 384. Nurse Kauffman

21

and Dr. Hunt indicated that Gargano’s prognosis was “unclear, may be good with continued
adherence to medication.” Tr. 384. They opined that Gargano’s impairment lasted or was
expected to last at least 12 months. Tr. 384.
Nurse Kauffman and Dr. Hunt also rated Gargano’s functional abilities in specific
categories within the areas of “sustained concentration and persistence limitations;”
“understanding and memory limitations;” “social interaction limitations;” and “adaptation
limitations.” Tr. 384-385. The rating choices were “unlimited or very good,” “limited but
satisfactory,” “seriously limited, but not precluded,” “unable to meet competitive standards,” and
“no useful ability to function.” Tr. 384.
In the area of “sustained concentration and persistence,” Nurse Kauffman and Dr. Hunt
rated Gargano’s ability to carry out very short and simple instructions; manage regular
attendance and be punctual within customary tolerances; and perform at a consistent pace
without an unreasonable number and length of rest periods as “seriously limited, but not
precluded.” Tr. 384. They rated Gargano as “unable to meet competitive standards” in the
following categories – carry out detailed instructions; maintain attention and concentration for
extended periods; perform activities within a schedule; sustain an ordinary routine without
special supervision; work in coordination with or in proximity to others without being distracted
by them; and complete a normal workday and workweek without interruptions from
psychologically based symptoms. Tr. 384.
In the area of “understanding and memory,” Nurse Kauffman and Dr. Hunt rated
Gargano’s ability to understand and remember very short and simple instructions as “seriously
limited, but not precluded” and “unable to meet competitive standards” in the following

22

categories – remember locations and work-like procedures and understand and remember
detailed instructions. Tr. 385.
In the area of “social interaction,” Nurse Kauffman and Dr. Hunt rated Gargano’s ability
to maintain socially appropriate behavior and adhere to basic standards of neatness and
cleanliness as “limited but satisfactory.” Tr. 385. They rated Gargano as “seriously limited, but
not precluded” in his ability to interact appropriately with the general public; ask simple
questions or request assistance; and accept instructions and respond appropriately to criticism
from supervisors. Tr. 385. They indicated that Gargano was “unable to meet competitive
standards” in the following category – get along with coworkers or peers without distracting
them or exhibiting behavioral extremes. Tr. 385.
In the area of “adaptation,” Nurse Kauffman and Dr. Hunt rated Gargano as “seriously
limited, but not precluded” in his ability to be aware of normal hazards and take appropriate
precautions. Tr. 385. They rated Gargano as “unable to meet competitive standards” in the
following categories – respond appropriately to changes in the work setting and set realistic goals
or make plans independently of others. Tr. 385.
Nurse Kauffman and Dr. Hunt opined that, on average, Gargano’s impairments or
treatment would cause him to be absent from work more than four days per month. Tr. 385.
Also, they opined that, on average, Gargano’s symptoms would cause him to be off-task more
than 25% of an 8-hour workday. Tr. 385.
b. Consultative examiner
On October 8, 2013, Amber L. Hill, Ph.D., met with Gargano for the purpose of
conducting a psychological evaluation. 9 Tr. 275-286. When asked why he applied for social

9

Per Gargano’s request, Gargano’s mother was present during the evaluation. Tr. 275.
23

security disability benefits, Gargano responded, “Because of the mental state that I’m in. I can’t
keep my train of thought.” Tr. 275. Dr. Hill’s diagnoses included bipolar disorder, most recent
episode depressed, severe with psychotic features; opioid dependence with physiological
dependence, in reported full sustained remission; alcohol dependence with physiological
dependence; and cannabis dependence with physiological dependence. Tr. 282-283. Dr. Hill
assigned a GAF score of 50. Tr. 283. Dr. Hill felt that Gargano’s prognosis was guarded at the
time because he was “engaged in pharmacological management related to his reported mental
health concerns.” Tr. 283. She indicated that “he could benefit from additional services such as
counseling and therapy services” and noted that he was not participating in any type of drug or
alcohol treatment pertaining to his reported remission from opioid dependence and abuse of
alcohol and marijuana. Tr. 283.
Dr. Hill concluded that:
Based on the claimant’s report of a current major depressive episode where there
has previously been at least one manic episode that are not better accounted for by
schizoaffective disorder, his reported symptoms satisfy criteria for bipolar I
disorder, most recent episode depressed, and is given the specifiers of severe with
psychotic features due to his report of auditory and visual hallucinations that are
mood congruent psychotic features and also includes paranoid ideation.
Tr. 283. Dr. Hill indicated that Gargano also had additional psychosocial stressors related to
problems with his family. Tr. 284. Dr. Hill noted that Gargano had instability in interpersonal
relationships, self-image and affects. Tr. 284. Gargano indicated that medication was helpful in
controlling his manic episodes and psychotic features. Tr. 284. However, Dr. Hill felt that
Gargano could benefit from additional mental health treatment such as counseling and therapy
services and alcohol and drug services. Tr. 284.
With respect to Gargano’s work-related mental abilities, Dr. Hill opined:

24

1. Describe the claimant’s abilities and limitations in understanding,
remembering, and carrying out instructions.
The claimant appears able to understand, remember, and carry out instructions
as evidenced by his presentation during the clinical interview, his performance
on the mental status exam tasks, and his report of daily functioning. However,
if the claimant is not taking his medication as prescribed or is experiencing a
manic episode the claimant would likely be extremely limited in his ability to
understand, remember, and carry out instructions related to his psychotic
features.
2. Describe the claimant’s abilities and limitations in maintaining attention and
concentration, and in maintaining persistence and pace, to perform simple tasks
and to perform multi-step tasks.
The claimant appears able to maintain attention and concentration, maintain
persistence and pace, and perform simple and multi-step tasks as evidenced by
his presentation during the clinical interview, his reported work and academic
history, and his reported daily functioning. However, the claimant is likely
limited in his ability in all of these areas as he is not taking his medication as
prescribed or is experiencing psychotic features with a manic episode.
3. Describe the claimant’s abilities and limitations in responding appropriately to
supervision and to coworkers in a work setting.
The claimant is likely able to respond appropriately to supervisors and to
coworkers within a work setting based on his socially appropriate manner of
interacting within the clinical interview setting. However, it is important to
note that if the claimant is actively experiencing a manic episode, including
psychotic features, the claimant is likely not able to respond appropriately to
supervisors and to coworkers within a work setting related to his auditory and
visual hallucinations and other psychotic features. He would further be limited
within a manic episode and is likely unable to respond appropriately if ever
returning to his work setting that he has worked within for the past 12 years
with his father related to his unresolved conflict and anger with his father. The
claimant could possibly benefit from counseling and therapy in this area to
assist with improving limitations. The claimant also reports an extensive
history related to legal involvement.
4. Describe the claimant’s abilities and limitations in responding appropriately to
work pressures in a work setting.
The claimant is likely limited in his ability to respond appropriately to work
pressures within a work setting based on his report of paranoid ideation and
other psychotic features that appear to be currently medication controlled. The
claimant could possibly benefit from additional metal health services such as
25

counseling and therapy to increase coping skills and address limitations in this
area. Further, the claimant has an extensive alcohol and drug history of which
he is only reporting remission from his opioids and continues to use alcohol and
marijuana, which could further exacerbate limitations in this area.
Tr. 285-286.
c. State agency reviewers
Mel Zwissler, Ph.D.
On October 10, 2013, state agency reviewing psychologist Mel Zwissler, Ph.D.,
completed a Psychiatric Review Technique and Mental RFC Assessment. Tr. 68-71. 10 As part
of the Psychiatric Review Technique, Dr. Zwissler opined that Gargano had moderate
restrictions in activities of daily living, moderate difficulties in maintaining social functioning,
moderate difficulties in maintaining concentration, persistence or pace, and one or two episodes
of decompensation, each of extended duration. Tr. 69.
In assessing Gargano’s Mental RFC, Dr. Zwissler found that Gargano had no
understanding and memory limitations and no social interaction limitations. Tr. 70-71. Dr.
Zwissler concluded that Gargano had limitations in sustained concentration and persistence and
adaptation. Tr. 70-71.
With respect to limitations in the area of sustained concentration and persistence, Dr.
Zwissler opined that Gargano was moderately limited in his ability to carry out detailed
instructions; maintain attention and concentration for extended periods; work in coordination or
in proximity to others without being distracted by them; and complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. Tr. 70-71. Dr.
Zwissler found that Gargano was not significantly limited in his ability to carry out very short

10

Dr. Zwissler’s opinions are also found at Tr. 78-81.
26

and simple instructions; perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances; sustain an ordinary routine without special supervision;
and make simple work-related decisions. Tr. 70-71. Dr. Zwissler further explained the
limitations in this area, stating that Gargano could “carry out simple routine tasks without strict
time demands.” Tr. 71.
With respect to adaptation limitations, Dr. Zwissler opined that Gargano was moderately
limited in his ability to respond appropriately to changes in the work setting ; moderately limited
in his ability to set realistic goals or make plans independently of others; not significantly limited
in his ability to be aware of normal hazards and take appropriate precautions; and not
significantly limited in his ability to travel in unfamiliar places or use public transportation. Tr.
71. Dr. Zwissler further explained the limitations in this area, stating that Gargano could “adapt
to minor expected and infrequent changes. He could use help setting more realistic goals to be
more independent and less reliant on [his] [m]other and girlfriend.” Tr. 71.
Leslie Rudy Ph.D.
Upon reconsideration, on December 13, 2013, state agency reviewing psychologist Leslie
Rudy, Ph.D., completed a Psychiatric Review Technique and Mental RFC Assessment. Tr. 9293, 94-97. 11 As part of the Psychiatric Review Technique, like Dr. Zwissler, Dr. Rudy opined
that Gargano had moderate restrictions in activities of daily living, moderate difficulties in
maintaining social functioning, moderate difficulties in maintaining concentration, persistence or
pace, and one or two episodes of decompensation, each of extended duration. Tr. 93.

11

Dr. Rudy’s opinions are also located at Tr. 105-110.
27

In assessing Gargano’s Mental RFC, Dr. Rudy found that Gargano had understanding and
memory limitations, sustained concentration and persistence limitations, social interaction
limitations, and adaptation limitations. Tr. 95-96.
With respect to limitations in the area of understanding and memory, Dr. Rudy opined
that Gargano was moderately limited in his ability to understand and remember detailed
instructions and not significantly limited in his ability to understand and remember very short
and simple instructions. Tr. 95. Dr. Rudy found no evidence of limitation in ability to remember
locations and work-like procedures. Tr. 95. Dr. Rudy further explained the limitations in this
areas, stating that Gargano “reports being able to follow short/simple instructions, must be
reminded to care for pet. He does live alone. Can do one and two step tasks.” Tr. 95.
With respect to limitations in the area of sustained concentration and persistence, Dr.
Rudy opined that Gargano was moderately limited in his ability to carry out detailed instructions;
maintain attention and concentration for extended periods; work in coordination with or in
proximity to others without being distracted by them; and complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. Tr. 95-96. Dr. Rudy
found that Gargano was not significantly limited in his ability to carry out very short and simple
instructions; perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; sustain an ordinary routine without special supervision; and make
simple work-related decisions. Tr. 95-96. Dr. Rudy further explained the limitations in this
area, stating that Gargano could “carry out simple routine tasks without strict time demands. He
reports that he can watch TV but doesn’t pay attention. He has [history of] mood swings and
excessive sleep.” Tr. 96.

28

With respect to social interaction limitations, Dr. Rudy opined that Gargano was
markedly limited in his ability to interact appropriately with the general public; moderately
limited in his ability to accept instructions and respond appropriately to criticism from
supervisors, get along with coworkers or peers without distracting them or exhibiting behavioral
extremes, and maintain socially appropriate behavior and adhere to basic standards of neatness
and cleanliness; and not significantly limited in his ability to ask simple questions or request
assistance. Tr. 96. Dr. Rudy further explained the limitations in this area, stating that Gargano
“neglects ADLs and has mood swings to mania. He has also reported some paranoid delusions.
He can do work that doesn’t involve contact with the general public and only superficial contact
with coworkers and supervisors.” Tr. 96.
With respect to adaptation limitations, Dr. Rudy opined that Gargano was moderately
limited in his ability to respond appropriately to changes in the work setting or in his ability to
set realistic goals or make plans independently of others. Tr. 96. Dr. Rudy also opined that
Gargano was not significantly limited in his ability to be aware of normal hazards and take
appropriate precautions or in his ability to travel in unfamiliar places or use public transportation.
Tr. 96. Dr. Rudy further explained the limitations in this area, in narrative form that Gargano
“can adapt to minor expected and infrequent changes. He could use help setting more realistic
goals to be more independent and less reliant on [his] [m]other and girlfriend. [Gargano] has
been [diagnosed] with DAA but cut down per report.” Tr. 96.
C.

Testimonial evidence
1.

Plaintiff’s testimony

Gargano was represented and testified at the April 2015 and November 2017 hearings.
Tr. 41-57, 59, 408, 412-430.

29

April 2015 hearing
Gargano resided in his own home but he had his mail sent to his mother’s house to make
sure he does not lose anything important. Tr. 41-42. Gargano explained that he would be unable
to work a regular 40 hour per week job because he could not keep a set schedule due to his
irregular sleep patterns. Tr. 48. Gargano indicated that his medication affected his sleep. Tr. 49,
52-53. At times, Gargano is unable to sleep at all due to his schizophrenia causing him to be
manic for days. Tr. 53. At other times, Gargano sleeps all the time and cannot get out of bed.
Tr. 53. Gargano also indicated that he would have issues getting along with people at a job
because he does not have the ability to always listen and isolates himself at times. Tr. 49-50.
Gargano has paranoia about people and insects or animals watching or listening to him and/or
thinks that people know what he is thinking. Tr. 49-50, 53-54.
When Gargano is depressed he estimated being in bed about 12 hours a day, on the couch
about 6 hours a day and in a chair about 2 hours a day. Tr. 54-55. He does not use the phone or
television and does not have people over. Tr. 54. Sometimes he can read a book or comics or
play an instrument but sometimes he cannot do those things. Tr. 54-55. He tries to keep himself
occupied because he feels crazy – like pulling all his hair out or jumping off bridges or jumping
into rivers. Tr. 55. When Gargano is in a manic state, he feels unstoppable. Tr. 55-56. Gargano
does not know what triggers a manic state. Tr. 56. Gargano could not say whether his manic
behavior was tied to a medication change. Tr. 56. He stated that he follows his doctors’ orders
regarding treatment and has always been honest with the effects and side effects of medication.
Tr. 57.
Gargano had past problems with abusing pain pills but he went to rehab, NA and AA. Tr.
50-51. He was still using marijuana every so often to help him sleep and to help increase his

30

appetite. Tr. 51-52. He indicated he did not have much of an an appetite and did not prepare
meals for himself. Tr. 52. At the hearing he was at a good weight of 200 pounds but in the past
he had been down to 140 pounds. Tr. 52.
November 2017 hearing
Gargano was 34 at the time of the hearing. Tr. 413. He continued to live in his own
home but had his mail sent to his mother’s address. Tr. 412-413. Gargano had a dog. Tr. 414.
Gargano had a girlfriend that he had been seeing for three or four years. Tr. 424. He met her
when he was working at the farm. Tr. 424.
Gargano explained that he inherited a number of properties from his father when his
father passed away but there is a large amount of debt owed. Tr. 414-419. Gargano was trying
to maintain the properties and use some rent to pay back taxes owed on the various properties but
he was having a difficulty time doing so. Tr. 414-419. One of the properties was lost in
foreclosure and another was in foreclosure. Tr. 416. Gargano also indicated that the government
was claiming that he owed money for debt accumulated in connection with his father’s business.
Tr. 418.
The ALJ asked Gargano to explain in his own words why he felt he was disabled. Tr.
421. Gargano indicated that things stress him out and he tends to lose track of the days. Tr. 421.
He explained that there are times when he is in bed for a week, with the exception of using the
restroom or feeding his dog. Tr. 421. He is often unable to recall what happens during those
periods. Tr. 421. Gargano tries to comply with taking his medications as prescribed. Tr. 422.
To help him remember his medication, he started using a folder with pockets and dates that is
filled by his doctor’s office. Tr. 422. Gargano had been using the new medication reminder
system for about three months. Tr. 422. Since using the new reminder system, Gargano missed

31

about a week’s worth of medication per month. Tr. 422. Sometimes Gargano just has a hard
time taking his medication even when people remind him to do so. Tr. 422-424. In addition to
taking pills, once a month Gargano receives his medication through an injection at a hospital.
Tr. 423-424. Gargano’s girlfriend or mother remind him about his appointments. Tr. 424.
Gargano feels that people are judging him and are condescending. Tr. 422-423. Gargano
indicated that he felt that he had worse events happen since he was present for the April 2015
hearing. Tr. 424-425. His father’s debt that the government was claiming that he owed was
stressing him out. Tr. 425-429. Gargano also explained that he felt stressed because his family
did not talk to him; he was the outcast in the family. Tr. 425. Gargano stated that he felt that
people were telling him to shut up and he asked the ALJ if he heard it as well. Tr. 429. The ALJ
indicated he could hear Gargano but nothing else. Tr. 429.
2.

Vocational Expert

Vocational Expert (“VE”) Robert Mosely testified at the hearing and the November 2017
hearing. 12 Tr. 430-434. The VE described Gargano’s past work as a stock clerk as a heavy,
semi-skilled job and his past work as a cashier II as a light, unskilled. Tr. 431. The ALJ asked
the VE to assume a hypothetical individual who can perform work at all exertional levels;
perform simple tasks in a setting with occasional changes; perform goal-oriented work but
cannot work at a production rate pace; and can interact with supervisors and co-workers if that
interaction is limited to speaking and signaling but cannot interact with the public. Tr. 431-432.
The VE indicated that the described individual would be unable to perform Gargano’s past work
but there were other jobs that could be performed, including (1) cleaner II, a medium, unskilled

12

Vocational Expert Deborah Lee testified at the hearing and the April 2015 hearing. Tr. 57-61.

32

position; (2) laundry worker II, a medium, unskilled position; and (3) laborer, stores, a medium,
unskilled position.13 Tr. 432.
Next, the ALJ asked the VE to consider a hypothetical individual who would be off task
20% of the time. Tr. 432-433. The VE indicated that the hypothetical worker would not be able
to maintain or retain employment in any job in the local or national economy. Tr. 433. In
response to additional questioning from the ALJ, the VE indicated that a hypothetical worker
who would be absent from work two days per month on an ongoing basis would not be able to
maintain or retain employment in any job in the local or national economy. Tr. 433.
Gargano’s counsel asked the VE whether a hypothetical individual who occasionally was
unable to understand, remember or carry out instructions would be able to perform unskilled
work. Tr. 433-434. The VE indicated that the hypothetical individual would be unable to
maintain unskilled employment. Tr. 434.
III. Standard for Disability
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy14 . . . .
13

The VE provided national job incidence data for the jobs identified. Tr. 432.

14

“’[W]ork which exists in the national economy’ means work which exists in significant numbers either in the
region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).

33

42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.

If claimant is doing substantial gainful activity, he is not disabled.

2.

If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.

3.

If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a listed
impairment, 15 claimant is presumed disabled without further inquiry.

4.

If the impairment does not meet or equal a listed impairment, the ALJ must
assess the claimant’s residual functional capacity and use it to determine if
claimant’s impairment prevents him from doing past relevant work. If
claimant’s impairment does not prevent him from doing his past relevant
work, he is not disabled.

5.

If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.

20 C.F.R. §§ 404.1520, 416.920; 16 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the

15

The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525.
16
The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).

34

Commissioner at Step Five to establish whether the claimant has the RFC and vocational factors
to perform work available in the national economy. Id.
IV. The ALJ’s Decision
In his December 7, 2017, decision, the ALJ made the following findings: 17
1.

2.

Gargano has not engaged in substantial gainful activity since May 15,
2013, the alleged onset date. Tr. 392. Gargano did perform work after the
alleged disability onset date but the work activity did not rise to the level
of substantial gainful activity. Tr. 392.

3.

Gargano has the following severe impairments: schizophrenia and bipolar
disorder. Tr. 392.

4.

Gargano does not have an impairment or combination of impairments that
meets or medically equals the severity of the Listings. Tr. 392-394.

5.

Gargano has the RFC to perform a full range of work at all exertional levels
but with the following nonexertional limitations: can perform simple tasks
in a setting with occasional changes; can perform goal-oriented work but
cannot work at a production rate pace; can interact with supervisors and
coworkers if that interaction is limited to speaking and signaling but cannot
interact with the public. Tr. 394-397.

6.

Gargano is unable to perform any past relevant work. Tr. 398.

7.

Gargano was born in 1983 and was 30 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date. Tr. 398.

8.

Gargano has at least a high school education and is able to communicate
in English. Tr. 398.

9.

Transferability of job skills is not material to the determination of
disability. Tr. 398.

10.

17

Gargano meets the insured status requirements through December 31,
2015. Tr. 392.

Considering Gargano’s age, education, work experience and RFC, there
are jobs that exist in significant numbers in the national economy that
Gargano can perform, including, cleaner II, laundry worker II, and laborer,
stores. Tr. 398-399.

The ALJ’s findings are summarized.

35

Based on the foregoing, the ALJ determined that Gargano had not been under a disability,
as defined in the Social Security Act, from May 15, 2013, through the date of the decision. Tr.
399.
V. Plaintiff’s Arguments
Gargano contends that reversal and remand is warranted because the ALJ did not
properly analyze the medical evidence offered by treating sources and the consultative
examining psychologist. Doc. 12, pp. 16-28.
VI. Law & Analysis
A.

Standard of review
A reviewing court must affirm the Commissioner’s conclusions absent a determination

that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989).
The Commissioner’s findings “as to any fact if supported by substantial evidence shall be
conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42
U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the evidence
supports a claimant’s position, a reviewing court cannot overturn the Commissioner’s decision
“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Accordingly, a court “may not try the
36

case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
B.

Reversal and remand is not warranted
Gargano challenges the ALJ’s weighing of the medical opinions offered by Nurse

Sweeney, Nurse Kauffman, Dr. Hunt, and Dr. Hill.
Under the treating physician rule, “[t]reating 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.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)); see also Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004).
If an ALJ decides to give a treating source’s opinion less than controlling weight, she
must give “good reasons” for the weight given to the opinion. Gayheart, 710 F.3d at 376;
Wilson, 378 F.3d at 544; Cole v. Comm’r of Soc. Sec., 661 F.3d 931, 937 (6th Cir. 2011). In
deciding the weight to be given, the ALJ must consider factors such as (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, (4) the consistency of the opinion
with the record as a whole, (5) the specialization of the source, and (6) any other factors that tend
to support or contradict the opinion. Bowen v. Comm’r of Soc Sec., 478 F.3d 742, 747 (6th Cir.
2007); 20 C.F.R. § 404.1527(c).
An ALJ is not obliged to provide “an exhaustive factor-by-factor analysis” of the factors
considered when weighing medical opinions. See Francis v. Comm’r of Soc. Sec., 414 Fed.
Appx. 802, 804 (6th Cir. 2011).

However, the “good reasons must be supported by the

37

evidence in the case record, and must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.” Cole, 661 F.3d at 937 (quoting Soc. Sec. Rul. No. 96-2p, 1996 SSR
LEXIS 9, at *12 (Soc. Sec. Admin. July 2, 1996)) (internal quotations omitted). “This
requirement is not simply a formality; it is to safeguard the claimant’s procedural rights [and] [i]t
is intended ‘to let claimants understand the disposition of their cases, particularly in situations
where a claimant knows that his physician has deemed him disabled and therefore might be
especially bewildered when told by an administrative bureaucracy that he is not.’” Id. at 937938 (citing Wilson, 378 F.3d at 544). Moreover, “the requirement safeguards a reviewing court’s
time, as it ‘permits meaningful’ and efficient ‘review of the ALJ’s application of the treating
physician rule.’” Id. at 938 (citing Wilson, 378 F.3d at 544-545).
Where there is no ongoing treatment relationship, an opinion is not entitled to deference
or controlling weight under the treating physician rule. See Kornecky v. Comm’r of Soc. Sec, 167
Fed. Appx. 496, 508 (6th Cir. 2006); Daniels v. Comm’r of Soc. Sec., 152 Fed. Appx. 485, 490
(6th Cir. 2005).
Additionally, not all medical sources are “acceptable medical sources.” See 20 C.F.R. §
404.1513. For example, nurse practitioners are medical sources but they are not considered
“acceptable medical sources.” Id. However, the opinion of a medical source who is not an
“acceptable medical source” who has seen a claimant in her professional capacity is relevant
evidence. SSR 06-03p, 2006 WL 2329939, * 6 (August 9, 2006). SSR 06-03p provides
guidance as to how opinions of medical sources who are not “acceptable medical sources” are to
be considered, stating,
Since there is a requirement to consider all relevant evidence in an individual’s case
record, the case record should reflect the consideration of opinions from medical
38

sources who are not ‘acceptable medical sources’ [and] [a]lthough there is a
distinction between what an adjudicator must consider and what the adjudicator
must explain in the disability determination or decision, the adjudicator generally
should explain the weight given to opinions from these ‘other sources,’ or otherwise
ensure that the discussion of the evidence in the determination or decision allows a
claimant or a subsequent reviewer to follow the adjudicator’s reasoning, when such
opinions may have an effect on the outcome of the case.
SSR 06-03p, 2006 WL 2329939, * 6.
Nurse Sweeney
The ALJ discussed and weighed Nurse Sweeney’s opinion, stating:
The undersigned accords partial weigh[t] to the opinion of nurse practitioner
Sweeney dated January 2, 2014 (exh. 6F; see also exh. 8F, p. 4).[ 18] Although Ms.
Sweeney was not an acceptable source for rendering a medical source statement,
she had been treating the claimant for six months as the time she rendered her
opinion (exh. 6F). Ms. Sweeney opined that the claimant would be off task more
than four days per month, up to 25% of the work day, tardy at least four days per
month, and have marked to extreme limitations in all areas of mental functioning
(exh. 6F p. 4). Furthermore, Ms. Sweeney opined that the claimant was not
employable. The undersigned notes that the issue of disability is reserved for the
Commissioner. Ms. Sweeney’s opinion is not consistent with her treatment notes.
For example, Ms. Sweeney indicated that “due to extreme moods related to bipolar
disorder, client is extremely limited in ability to handle normal work activities (i.e.
concentration, persistence, attention, schedule[)]” and due to his bipolar disorder
the claimant was “extremely limited in ability to behave appropriately with coworkers or general public[“] [exh. 6F). While Ms. Sweeney’s treatment notes
document the claimant’s symptoms the day the opinion was rendered, the totality
of her records document that he did well with a prescribed course of treatment, and
declines were concurrent with non-compliance (exh. 3F, 8F). Furthermore, that
decline was later attributed to difficulty with medication compliance (exhs. 8F, p.
7, 13F, p. 18).
Tr. 396. As correctly noted by the ALJ, Nurse Sweeney is not an acceptable medical source.
Thus, her opinions were not entitled to deference under the treating physician rule. Nevertheless,
consistent with the regulations, the ALJ provided sufficient explanation for his decision to assign
only partial weight to her opinions. In doing so the ALJ recognized the existence of a treatment
relationship but found and explained that her extreme limitations were not consistent with

18

Exhibit 8, pp. 3-5 (Tr. 334-336) is Nurse Sweeney’s March 3, 2014, Mental Status Questionnaire.
39

treatment records reflecting that Gargano did well when he followed a prescribed course of
treatment but declines were observed when Gargano was not compliant with taking his
medications. See e.g., 371-371 (increased symptoms observed over past month related to
medication compliance issues – not taking medication due to work schedule); Tr. 726 (at time of
psychiatric hospitalization in May 2017, Gargano had not taken his medication for three
months). When weighing the evidence, it is not improper for an ALJ’s to take into account a
claimant’s lack of compliance with prescribed medical treatment. See e.g., Biestek v. Commr. of
Soc. Sec., 880 F.3d 778, 789 (6th Cir. 2017) cert. granted sub nom. Biestek v. Berryhill, 138
S.CT. 2677 (2018).
Gargano claims that discounting a medical opinion because it is inconsistent with the
provider’s own treatment records is error, arguing that by doing so the ALJ impermissibly
substituted his lay opinion for that of the medical provider. However, the ALJ did not substitute
his judgment for that of a treating source. Rather, consistent with the regulations, the ALJ
considered Nurse Sweeney’s opinions and assessed the consistency of her opinions with the
record as whole, which included treatment records demonstrating improvement with a prescribed
course of treatment. See e.g., Tr. 320-321, 600, 604, 606, 608. Gargano argues that the medical
records do not simply show that he did well with a prescribed course of medication or that
declines occurred with non-compliance. He contends that they also show repeated episodes of
depression, mania, paranoia and hallucinations. While it is correct that Gargano’s medical
treatment records document instances of the foregoing, the ALJ did not fail to consider
Gargano’s medical treatment history, including evidence documenting the foregoing mental
health issues and symptoms. Tr. 394-396. Thus, Gargano’s argument amounts to the request
that this Court consider the case de novo. However, it is not for this court to “try the case de

40

novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner, 745 F.2d at
387. Further, even if substantial evidence or indeed a preponderance of the evidence supports a
claimant’s position, a reviewing court cannot overturn the Commissioner’s decision “so long as
substantial evidence also supports the conclusion reached by the ALJ.” Jones, 336 F.3d at 477.
Here, while Gargano disagrees with the ALJ’s weighing and consideration of the evidence,
Gargano has not shown that the ALJ’s finding that Nurse Sweeney’s extreme functional
limitations were inconsistent with medical records is unsupported by substantial evidence. Nor
has Gargano shown that the ALJ ignored evidence or improperly relied on his own lay analysis
of the raw medical data. The ALJ weighed the opinion evidence in light of the entirety of the
record.
Additionally, as correctly observed by the ALJ, Nurse Sweeney’s opinion that Gargano
was unemployable is an issue reserved to the Commissioner. See Johnson v. Comm’r of Soc.
Sec., 535 Fed. Appx. 498, 505 (6th Cir. 2013) (unpublished) (“If the treating physician . . .
submits an opinion on an issue reserved to the Commissioner – such as whether the claimant is
disabled, unable to work, the claimant’s RFC, or the application of vocational factors – [the
ALJ’s] decision need only explain the consideration given to the treating source’s opinion.”)
(internal quotations and citations omitted). Thus, that opinion was not entitled to any particular
weight. Id. Gargano notes that Nurse Sweeney’s opinion also addressed his mental impairments
and functional limitations and thus suggests that discounting Nurse Sweeney’s opinion because it
contained an opinion on an issue reserved to the Commissioner was error. However, as outlined
and discussed above, the ALJ did not discount the opinion based solely on that reason.

41

Considering the foregoing, the Court finds that the ALJ’s analysis regarding the weight
assigned to Nurse Sweeney’s is sufficient under the regulations and Gargano has not shown that
the ALJ’s reasons are unsupported by substantial evidence.
Nurse Kauffman and Dr. Hunt
The ALJ discussed and weighed the opinion rendered by Nurse Kauffman and Dr. Hunt,
stating:
The undersigned accords partial weight to the April 2015 opinion of nurse
practitioner Kelley Kauffman, that was subsequently signed by Andrew Hunt,
M.D., (exh. 12F). They indicated that the claimant experienced paranoia,
disorganization and delusions of power as part of his diagnosis of schizophrenia.
They indicate that the claimant had an unclear prognosis, maybe good, with
continued adherence to medication, but that his impairment lasted or was expected
to last at least 12 months (exh. 12F). Consequently, they opined that the claimant
was seriously limited or unable to meet competitive standards in nearly all areas of
functioning (exh. 12F). Lastly, they opined that the claimant would be off work
more than four days per month, and would be off-task more than 25% of an eighthour workday.
The undersigned notes that there is no evidence of Dr. Hunt ever treating the
claimant, or signing off on treatment notes. Although Ms. Kauffman’s statement
that the claimant had been a patient at Centers for Families and Children for two
years at the time the decision was rendered, treatment notes suggest that she had
just begun a treating relationship with the claimant in January 2015 (exh. 11F p. 3).
Prior to that point, Ms. Sweeney was the claimant’s nurse, and Ms. Kauffman had
treated the claimant on one occasion in June (exhs. 10F p. 7; see duplicates at exh.
13F). Additionally, Ms. Kauffman’s treatment notes in March 2015 indicated that
claimant’s symptoms were well managed with medication, however the claimant
was struggling to remain compliant because of side effects including anxiety and
heart burn (exh. 11F p. 7).
Tr. 396-397.
Like Nurse Sweeney, Nurse Kauffman is not an acceptable medical source. Also, as
indicated, in discounting the opinion of Nurse Kauffman and Dr. Hunt, consistent with the
regulations, the ALJ considered the extent of the treatment relationship, i.e., no record of Dr.
Hunt treating Gargano and evidence that Nurse Kauffman had only recently started to treat

42

Gargano. Gargano does not contend that these findings are unsupported by the record. Rather,
he argues that there is no evidence that Nurse Kauffman and Dr. Hunt did not have access to all
of Gargano’s medical records from the Center for Families and Children when they prepared
their opinion. While they may have had access to all of Gargano’s records, Gargano has not
shown that it was improper for the ALJ to take into account the limited nature of the treatment
relationship(s) when weighing the opinion.
Gargano also takes issue with the ALJ’s decision to provide the most weight to the
opinion of the state agency examining psychologist, who reviewed records covering a limited
period of time. The ALJ explained that great weight was assigned to the opinion of the state
agency reviewing psychologist Dr. Rudy because the ALJ found her opinion to be consistent
with the record, which included evidence that Gargano did well when adhering to a prescribed
course of medical treatment. Tr. 397. Although Dr. Rudy did not have an opportunity to review
the medical records for the entire period at issue, the ALJ reviewed the entirety of the record
when weighing the evidence, including later dated treatment records and medical opinion
evidence, and found Dr. Rudy’s opinion “consistent with the record.” Tr. 397. Accordingly, the
Court finds no reason to find that it was error for the ALJ to assign the most weight to Dr.
Rudy’s opinion. See McGrew v. Comm’r of Soc. Sec., 343 Fed. Appx. 26, 32 (6th Cir. 2009)
(indicating that an ALJ’s reliance upon state agency reviewing physicians’ opinions that were
outdated was not error where the ALJ considered the evidence that developed after the issuance
of those opinions); see also Pence v. Comm’r of Soc. Sec., 2014 WL 1153704, *13 (N.D. Ohio
Mar. 20, 2014) (finding no error where the ALJ explained that weight was given to non-treating
physicians’ opinions because they were generally consistent with evidence of record and where
the ALJ considered relevant evidence that was developed after the issuance those opinions).

43

Considering the foregoing, the Court finds that the ALJ did not err when weighing the
opinions rendered by Nurse Kauffman and Dr. Hunt and Gargano has not shown that the ALJ’s
reasons are unsupported by substantial evidence.
Dr. Hill
The ALJ discussed and weighed the opinion rendered by Dr. Hill, the consultative
examining psychologist, stating:
The undersigned accords partial weight to Dr. Hill’s October 2013 opinion (exh.
3F). Dr. Hill opined that the claimant appeared to understand, remember and carry
out instructions based on his presentation during the interview. She indicated the
claimant appeared to be able to maintain attention, concentration persistence and
pace to perform simple and multi-step tasks as evidenced by his presentation,
reported work, academic history and reported daily functioning. He could respond
appropriately to supervisors and co-workers. Lastly, she opined that the claimant
“is likely limited in his ability to respond appropriately to work pressures within a
work setting based on his report of paranoid ideation and other psychotic features
that appear to be currently medication controlled.” Dr. Hill qualified her opinions
to state that if the claimant were non-compliant with medication or experiencing a
manic episode he would be extremely limited in his abilities and functioning. The
undersigned accords Dr. Hill’s opinion partial weight because she qualified her
opinion with statements based on a presentation that was not before her at the
evaluation. The statements appear to be based on the claimant’s reports of
functioning.
Tr. 397.
Contrary to Gargano’s contention, the ALJ’s finding that Dr. Hill’s opinion was based on
Gargano’s subjective complaints was not pure speculation. For example, Dr. Hill stated “Based
on the claimant’s report of a current major depressive episode that are not better accounted for by
schizoaffective disorder his reported symptoms satisfy criteria for bipolar I disorder, most recent
episode depressed, and is given the specifiers of severe with psychotic features due to his report
of auditory and visual hallucinations . . .” Tr. 283 (emphasis supplied). And she stated, “The
claimant is likely limited in his ability to respond appropriately to work pressures within a work
setting based on his report of paranoid ideation and other psychotic features that appear to be
44

currently medication controlled.” Tr. 285 (emphasis supplied). Further, while it is
understandable that a physician will hear and rely on subjective statements from a patient, it is
not improper for an ALJ to take into account and discount an opinion founded primarily on a
claimant’s subjective statements. See Kepke v. Comm’r of Soc. Sec., 636 Fed. Appx. 625, 629
(6th Cir. 2016) (“Regardless of the inherent subjectivity in the field of psychiatry, a doctor
cannot simply report what his patient says and re-package it as an opinion.”). Additionally, the
ALJ did not discount Dr. Hill’s opinion solely on the basis that it was based on subjective reports
from Gargano. The ALJ found that Dr. Hill’s statements were qualified based on a presentation
that was not before her, e.g., Dr. Hill made statements that if Gargano was non-compliant he
would be extremely limited but, she found that, based on his presentation during the interview,
Gargano appeared less limited. Tr. 284-285. While Dr. Hill may have reviewed progress notes
from Children and Family Services, Gargano has not shown that it was error for the ALJ to
discount the opinion of a non-treating psychologist based on that opinion being qualified and/or
based on subjective reports.
Gargano also argues that the ALJ discussed the opinions of Nurses Sweeney and
Kauffman and Drs. Hunt and Hill in isolation without taking into account that the opinions were
in agreement that Gargano’s ability to perform full-time work due to his mental impairments was
much more limited than the RFC. The ALJ discussed the details of all the opinions and weighed
the opinion evidence. Tr. 396-397. Further, assuming arguendo that all the limitations contained
in those opinions were more restrictive that the limitations included in the ALJ’s RFC, the ALJ,
not a physician, is responsible for assessing a claimant’s RFC. See 20 C.F.R. § 404.1546 (c);
Poe v. Comm'r of Soc. Sec., 342 Fed. Appx. 149, 157 (6th Cir.2009). In formulating the RFC,
the ALJ weighed in the opinion evidence in light of the entirety of the record. While Gargano

45

disagrees with the ALJ’s decision and weighing of the evidence, he has not shown a basis upon
which this matter should be reversed and remanded for further consideration or evaluation of the
evidence.
Considering the foregoing, the Court finds that reversal and remand is not warranted for
further analysis of the opinions of Drs. Hunt and Hill and Nurses Sweeney and Kauffman.
VII. Conclusion
For the reasons set forth herein, the Court AFFIRMS the Commissioner’s decision.

/s/ Kathleen B. Burke

Dated: February 27, 2019

Kathleen B. Burke
United States Magistrate Judge

46