Campbell v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS that the Comm of SSA decision be AFFIRMED; Dft's motion for summary judgment be GRANTED; Objections to R&R due by 7/12/2013. Signed by Magistrate Judge Mark R. Abel on 6/25/13. (sh1)

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

Stephanie M. Campbell,
Plaintiff

Carolyn Colvin,
Commissioner of Social Security,
Defendant

Civil Action 2:12-cv-00446

:

v.

:
:

Judge Sargus

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Plaintiff Stephanie M. Campbell brings this action under 42 U.S.C. §§405(g) and
1383(c)(3) for review of a final decision of the Commissioner of Social Security denying
her application for Supplemental Security Income benefits. This matter is before the
Magistrate Judge for a report and recommendation on the parties’ cross-motions for
summary judgment.
Summary of Issues. Plaintiff Stephanie M. Campbell alleges she became disabled
in September 2008 at age 28. She was single and lived with her eleven year old son. Her
income consisted of child support payments. Although she had worked in the past, her
work never constituted substantial gainful employment. The administrative law judge
found that plaintiff had the following severe impairments: hypotension with syncopal
episodes, mitral valve prolapse and mild regurgitation, and lumbar and thoracic
contusion/sprain/spasm with chronic pain and radiculopathy, major depression,
posttraumatic stress disorder, generalized anxiety disorder, personality disorder with
antisocial features; panic disorder with agoraphobia, and cannabis abuse.

The administrative law judge found that plaintiff retained the residual functional
capacity for a reduced range of low stress jobs involving unskilled, simple, routine and
repetitive tasks having light exertional demands. She could have occasional and
superficial contact with supervisors and coworkers and minimal to no contact with the
public.
Plaintiff argues that the decision of the Commissioner denying benefits should be
reversed because:
• The administrative law judge failed to follow Social Security Ruling 06-3p
with respect to the opinion of Campbell's treating psychiatric nurse
practitioner;
• The administrative law judge improperly assigned great weight to the
opinions of the State agency reviewers; and,
• The testimony of the vocational expert was not supported by substantial
evidence.
Procedural History. Plaintiff Stephanie M. Campbell filed her application for
disability insurance benefits on September 19, 2008, alleging that she became disabled
on September 10, 2006, at age 28, by panic attacks, blood pressure, bad nerves, heart
problems and a blood clot in her right leg. (R. 147, 174.) The application was denied
initially and upon reconsideration. Plaintiff sought a de novo hearing before an
administrative law judge. On August 12, 2010, an administrative law judge held a
hearing at which plaintiff, represented by counsel, appeared and testified. (R. 32.) A
vocational expert and a medical advisor also testified. On September 7, 2010, the
administrative law judge issued a decision finding that Campbell was not disabled
within the meaning of the Act. (R. 9-26.) On March 28, 2012, the Appeals Council
2

denied plaintiff’s request for review and adopted the administrative law judge’s
decision as the final decision of the Commissioner of Social Security. (R. 1-3.)
Age, Education, and Work Experience. Stephanie M. Campbell was born
August 11, 1978.

(R. 147.) She completed the 11th grade. (R. 179.) She has worked as a

bagger at a grocery store, a laborer and a maid. She last worked November 1, 2005. (R.
174.)
Plaintiff’s Testimony. The administrative law judge fairly summarized
Campbell's testimony as follows:
At the hearing the claimant testified that she lived in a trailer with
her eleven-year-old son. She stated that she attended school to the
eleventh grade and worked in 2008 as a self-employed babysitter; she
babysat two children, ages five and seven. She testified that she did
not think that there was any job she could perform due to shortness
of breath when walking as well as difficulty being around people.
She stated that she tried to work as a housekeeper at hotels prior to
2008, but was let go because she "was not moving fast enough" due
to shortness of breath.
The claimant further testified that she suffered from a mitral valve
prolapse with chest pain and shortness of breath. She stated that she
experienced blackouts 2-3 times a week on average, particularly if
she stood too long. She testified that she smoked a pack and a half of
cigarettes daily. She stated that she was unable to take a stress test in
February 2010 as it was on an incline and increased her shortness of
breath.
The claimant also testified that she was treated by Dr. Sayegh for
constant back pain due to a dislocated disc in her lower back;
however, the last time she saw Dr. Sayegh was about two years ago.
She stated that her back pain started in October of 2009 when she fell
down a flight of stairs and described the pain as if someone were
cutting her with a knife. She testified that sitting on the couch with a
pillow behind her eased the pain somewhat.
3

With regard to mental impairments, the claimant testified that she
had participated in counseling sessions with Mr. Bova for symptoms
of depression and anxiety for the past two years. She stated at the
time she did not feel like doing anything; she got "all shaky" and just
wanted to be by herself. She stated that she suffered from mood
swings twice a month and racing thoughts twice a week in addition
to constant feelings of helplessness and hopelessness. She testified
that she had thoughts of harming self and experienced such thoughts
about a month ago. She stated that she had trouble trusting people,
especially men as she was molested by her uncle when she was 15-16
years old. She testified that she had flashbacks of this experience,
which made her feel dirty. County songs that she heard while
partying with her uncle brought on flashbacks of the abuse as well as
being touched by her boyfriend in "certain ways." She testified that
being around people caused her to experience panic attacks; she had
panic attacks, described as getting "shaky inside," about four times a
month. At the questioning of the undersigned, the claimant testified
that her difficulties being around other people started at the
beginning of the previous year due to depression.
(R. 16-17.)
Medical Evidence of Record. The administrative law judge’s decision fairly sets
out the relevant medical evidence of record. This Report and Recommendation will
only briefly summarize that evidence.
Physical Impairments.
An October 11, 2006 echocardiogram showed estimated ejection fraction 68%.
There was mild systolic mitral valve prolapse with trace mild mitral insufficiency. (R.
356-57.)
A May 31, 2007 MRI revealed significant intramuscular edema involving the
vastus medialis musculature with an associated large intra- and extra muscular or
resolving hematoma. (R. 251.)
4

Elizabeth Das, M.D. On October 5, 2007, Dr. Das, a State agency reviewing
physician completed a physical residual functional capacity assessment. Dr. Das opined
that plaintiff could occasionally lift and/or carry 50 pounds and frequently lift and/or
carry 25 pounds. Plaintiff could stand and/or walk for about 6 hours in an 8-hour day.
Campbell was unlimited in her ability to push and/or pull. (R. 302-09.)
An August 1, 2008 echocardiogram revealed moderately to severely sclerotic
mitral valve with mild mitral valvular prolapse and a jet of moderately severe to severe
posterolaterally directed mitral insufficiency. (R. 311.)
Heather Horton, M.D. On August 25, 2008, Dr. Horton, a cardiovascular doctor,
examined plaintiff. Dr. Horton reviewed August 1, 2008 echo reports that showed
normal left ventricular size, no wall motion abnormalities, moderate to severe mitral
regurgitation with mitral valve prolapse, mild tricuspid regurgitation, normal
pulmonary pressures, and ejection fraction of 65%. Plaintiff reported chronic chest pain
lasting 3-4 minutes several times per week. The pain occurs without exertion. She had
shortness of breath with speaking. She had a dry smoker’s cough. She had one episode
of syncope when she was pregnant. Dr. Horton stated that it was difficult to sort out
which symptoms were attributable to her mitral valve prolapse or her anxiety. Dr.
Horton doubted that they were attributable to ischemic heart disease. She
recommended that plaintiff undergo a transesophaegeal echo to determine whether
there has been progression toward the need for valve replacement or a right and left
heart catheterization. (R. 315-16.)
5

On October 6, 2008, Dr. Horton noted that plaintiff’s mitral valve prolapse was
stable on her current therapy and was not clinically significant at this time. Dr. Horton
recommended that plaintiff stop smoking. She noted that plaintiff’s blood pressure was
low and recommended that she stop her medication. Dr. Horton did not believe that
plaintiff’s chest pain was anginal in nature. (R. 313-14.)
A November 6, 2008 stress echocardiogram revealed that plaintiff had average
exercise tolerance. Her chest discomfort with exercise may have be pulmonary. The
EKG was negative for myocardial ischemia. There were no arrhythmias. The images
were negative for myocardial ischemia.
Michael Stock, M.D. On January 21, 2009, Dr. Stock, a State agency physician,
completed a physical residual functional capacity assessment. Dr. Stock opined that
plaintiff could occasionally lift and/or carry 50 pounds and frequently lift and/or carry
25 pounds. Plaintiff could stand and/or walk for about 6 hours in an 8-hour day. She
could sit for 6 hours in an 8-hour workday. Her ability to push and/or pull was
unlimited. Plaintiff could frequently climb ramps or stairs, balance, stoop, kneel, or
crawl. She could occasionally climb ladders, ropes or scaffolds and crouch.(R. 342-49.)
On April 4, 2009, Anton Freihofner, M.D. reviewed the record and affirmed the
assessment of Dr. Stock. (R. 352.)
John E. Vangilder, M.D. On January 18, 2006, Dr. Vangilder, a cardiologist,
performed a consultative examination. Plaintiff reported chest pain and occasional
lightheadedness. She was diagnosed with low blood pressure. Dr. Vangilder
6

recommended that plaintiff have a transesophaegeal echo. (R. 364-66.) On October 11,
2006, Dr. Vangilder noted that plaintiff had tightness in her chest and shortness of
breath. (R. 362.)
On February 18, 2009, Dr. Vangilder saw plaintiff after a three year absence due
to insurance problems. Dr. Vangilder diagnosed mild mitral valve prolapse and
hypotension. Plaintiff experienced occasional heaviness and palpitations in her chest.
(R. 355.) On April 15, 2009, Dr. Vangilder examined plaintiff to follow up on her
hypotension and mitral valve prolapse. She complained of blackouts, but she did not
lose consciousness completely. She felt lightheaded when standing. She experienced
midsternal chest pain, which was sharp and worse when coughing. (R. 354.)
On May 19, 2009, Sayynanrayana Mamidi, M.D., a colleague of Dr. Vangilder,
saw plaintiff for follow up care. Dr. Mamidi noted that she was doing well and that her
blood pressure had improved. She had mitral insufficiency murmur. No heart failure
was seen. She had polycythemia. Dr. Mamidi instructed plaintiff on how to eat correctly
to avoid hypoglycemia. (R. 428-29.) On August 25, 2009, Dr. Mamidi indicated that
plaintiff was doing well clinically and had had no recurrence of syncope. (R. 426.)
On May 18, 2009, plaintiff was treated at the emergency room following a fall in
which she injured her lumbar spine. (R. 382-83.)
Micahel Sayegh, M.D. On July 21, 2009, Dr. Sayegh performed an initial
consultation for further evaluation and possible treatment for her mid back pain.
Plaintiff reported burning and throbbing pain. She identified her pain as an 8 on a ten7

point scale. On physical examination, she had tenderness in her mid back and trigger
points bilaterally and in the paraspinal muscles. Neurological examination of the upper
extremities showed mild decreased sensation in the lateral aspect of both forearms. Dr.
Sayegh diagnosed thoracic pain, radiculopathy, sprain/strain, anxiety, depression, and
a sleep disturbance. He prescribed Vicodin. (R. 401-02.)
An August 5, 2009 exam of plaintiff’s thoracic spine revealed congenital block
vertebra at the T3-4 level. There was no evidence of disc herniation, central canal or
neural foraminal compromise. (R. 400.)
Psychological Impairments.
Richard L. Meilander, Ph.D. On August 20, 2007, Dr. Meilander, a psychologist,
completed an evaluation at the request of the Bureau of Disability Determination.
Plaintiff reported that she is prescribed Xanax, 0.5 mg, twice daily for anxiety. She
reported that she does not associate with her neighbors and that she does not like to go
out. The longest that she held a job was for one month when she worked as a
housekeeper for Comfort Inn.
On mental status examination, Campbell exhibited flat affect and reported that
her mood was not very good. She said she was very angry. Her eye contact was fair in
quantity and fair to poor in quality. She described her appetite as not too bad. Her sleep
was not too good. She had problems falling asleep and staying asleep. She had about
five hours of restless sleep without sleep medication. She felt helpless, hopeless and
worthless two times per week. She had suicidal ideation in the past month. She
8

exhibited slight psychomotor agitation. She reported feeling depressed. Her energy
level was poor. She had little motivation. She experienced racing thoughts and
irritability.
Campbell reported shaking, fidgeting, tremor, vigilance, scanning, and
hyperventilating two to three times per month. Plaintiff believed that she
misunderstood or misinterpreted others 75% of the time. She was suspicious of new
people. She feels hostile towards others and can be aggressive.
Campbell had fair to poor memory with respect to past events, but her memory
for present events was good. She had average working memory. Her judgment ranged
from fair to poor.
Her daily activities included caring for her 8-year old son, cleaning house,
watching television, playing video games, and preparing meals. She no longer enjoyed
playing cards, going to movies, or visiting friends.
Dr. Meilander diagnosed major depression, single episode, severe without
psychotic features and panic disorder with agoraphobia. He assigned her a Global
Assessment of Functioning (“GAF”) score of 45. Dr. Meilander concluded that plaintiff’s
ability to relate to others including co-workers and supervisors was fair to poor, which
resulted in a moderate impairment. Plaintiff had minimal impairment of her abilities to
understand and follow directions and to maintain attention to perform, simple
repetitive tasks. Plaintiff’s ability to tolerate work stress and pressures associated with
day-to-day work was severely impaired. (R. 279-83.)
9

David Dietz, Ph.D. On September 26, 2007, Dr. Dietz, a State agency reviewing
psychologist, completed a psychiatric review technique and a mental residual
functional capacity assessment. He noted that plaintiff was diagnosed with major
depressive disorder and panic disorder with agoraphobia. Plaintiff had mild restriction
of activities of daily living, moderate difficulties in maintaining social functioning, mild
difficulties in maintaining concentration, persistence or pace, and no episodes of
decompensation. (R. 284-97.)
Dr. Dietz opined that plaintiff was not significantly limited with respect to
understanding and memory. With respect to sustained concentration and persistence,
she was moderately limited in her abilities to maintain attention and concentration for
extended periods and to work in coordination with or proximity to others without
being distracted by them. She was also moderately limited in her ability to 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. With respect to social interaction, plaintiff’s abilities to interact
appropriately with the general public, to accept instructions and respond appropriately
to criticism from supervisors, to get along with coworkers or peers without distracting
them or exhibiting behavioral extremes, to maintain socially appropriate behavior and
to adhere to basic standards of neatness and cleanliness were moderately limited. With
respect to adaptation, plaintiff’s ability to respond appropriately to changes in the work
setting were moderately impaired.
10

Dr. Dietz did not give the consultative examiner full weight because there was
nothing to support his opinion that plaintiff’s ability to handle changes in the work
place was severely impaired. Dr. Dietz noted that plaintiff had no psychiatric treatment,
no episodes of decompensation or even increases in her medication from her primary
care physician. He primary care physician’s report did not suggest any difficulties. Dr.
Dietz concluded that plaintiff’s allegations appeared credible. Dr. Dietz opined that
plaintiff was capable of completing some mildly complex tasks that do not involve strict
production standards or schedules, but she would be unable to interact on a frequent
basis with the general public. (R. 298-301.)
James N. Spindler, M.S. On December 3, 2008, Mr. Spindler, a psychologist,
completed a clinical interview to assess Campbell’s mental status at the request of the
Bureau of Disability Determination. On mental status examination, plaintiff did not
appear to be depressed. She was tense and did not relax as the session progressed. She
reported that she generally slept through the night. She reported recent suicidal
thoughts. She had poor energy. She had difficulty controlling her anger. She described
herself as a worrywart, and despite her medication, she always felt anxious.
Plaintiff woke up in the morning by 8 o’clock. She helped her son get ready for
school. She washed dishes, swept floors, and did laundry. She had three friends with
whom she enjoyed talking, visiting, and playing cards. She helped her son with his
homework.
Mr. Spindler diagnosed generalized anxiety disorder; depressive disorder, not
11

otherwise specified in partial remission; and a personality disorder not otherwise
specified with antisocial features. Although he estimated Campbell's functional GAF to
be 60, Spindler assigned a GAF score of 50 based on her severity of symptoms and level
of functioning during the past week. Mr. Spindler concluded that plaintiff was
moderately impaired in her ability to relate to others based on her anxiety and
personality disorders. She had a longstanding problem with controlling her temper and
had been physically aggressive towards others. She reported that she had difficulty
getting along with coworkers and supervisors. Plaintiff was not impaired with respect
to understanding, remembering, and following instructions. Her ability to maintain
attention, concentration, persistence, and pace was not impaired. Her ability to
withstand the stress and pressure associated with day-to-day work activities was
moderately impaired. (R. 317-22.)
Todd Finnerty, Psy.D. On December 18, 2008, Dr. Finnerty, a State agency
reviewing psychologist, completed a mental residual functional capacity assessment
and a psychiatric review technique. He concluded that plaintiff was not significantly
limited with respect to understanding and memory. With respect to sustained
concentration and persistence, plaintiff was moderately limited in her abilities to
maintain attention and concentration for extended periods and in her ability to
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. With respect to social interaction, plaintiff was moderately
12

limited in her abilities to interact appropriately with the general public; to accept
instructions and respond appropriately to criticism from supervisors; and to get along
with coworkers or peers without distracting them or exhibiting behavioral extremes.
With respect to adaptation, plaintiff was moderately limited in her ability to respond
appropriately to changes in the work setting. Dr. Finnerty opined that plaintiff could
perform static duties in settings with superficial interactions with others without fast
pace. She could interact in situations that do not require resolving conflict or
persuading others to follow demands. Plaintiff’s allegations appeared credible and
consistent.
Dr. Finnerty concluded that plaintiff had mild restriction of activities of daily
living, moderate difficulties in maintaining social functioning, moderate difficulties in
maintaining concentration, persistence or pace, and no episodes of decompensation. (R.
324-41.)
On March 10, 2009, John Waddell, Ph.D. reviewed the evidence in the prior and
current files and affirmed the assessment of Dr. Finnerty. (R. 351.)
Six County, Inc. On May 14, 2008, plaintiff sought counseling to address her
difficulty being around people, anxiety, panic attacks, and difficulty controlling her
anger. (R. 409-20.) On August 15, 2008, plaintiff reported taking five or six Xanax per
day. When she ran out of her medication, she "smoked more weed." (R. 423.) On
November 10, 2008, plaintiff reported to Ms. Morris that she had had an altercation with
her mother, who called the police. A warrant was issued for plaintiff’s arrest. She
13

turned herself in, and the charges were eventually dropped. (R. 405.) On August 11,
2009, plaintiff was terminated from counseling because she had not returned. (R. 40708.)
Edward L. Colby, D.O. Dr. Colby, Campbell's primary care physician, diagnosed
depression since 2002. (R. 254-55.) He prescribed Xanax. (R. 256.) The condition was
stable with treatment. (R. 255.) He found no deficits in cognitive functioning. There
were no restrictions in daily activities. There were no restrictions in interests or social
activities noted. (R. 254.) Diagnoses included mitral valve prolapse, right ovaries cyst,
benign renal mass, and depression/anxiety. (R. 255.)
John Bova, M.S., CNP-BC, LPC, LICDC. In a January 12, 2010 letter to plaintiff’s
counsel, Mr. Bova, a certified nurse practitioner with Muskingum Valley Health
Centers, reported that he had treated Campbell there from August 2009 through at least
March 2010. (R. 449-63.) Intake notes from August 25, 2009 indicate Campbell denied
mental health issues in the past. Her current medications included Xanax and Celexa.
(R. 463.) On September 22, 2009, Campbell reported sleeping better. Her mood was
better than it was. She said she really didn't have anyone to talk to. She reported anxiety
about past sexual abuse. (R. 462.) On October 29, 2009, Campbell called and reported
that someone broke in while she was out shopping and stole her Xanax and Xanax
prescription. Notes indicate she was told that the prescription could not be refilled
early. She was advised to go to the Emergency Room if she had symptoms of Xanax
withdrawal. (R. 461.) On October 30, 2009, Center notes indicate there was a police
14

report about a stolen Xanax prescription. Progress notes dated November 17, 2009 say
Campbell was miserable without Xanax for two weeks. Now she was sleeping well. Her
motivation was poor. She was not moving toward a plan to address her problems. (R.
460.) On November 17, 2009, Campbell said she needed Xanax, but that her pharmacist
told her she had enough to last through November 30. A prescription was called in, but
she was to be conservative about using it as needed. Notes for November 30, 2009 state
there is a consistent pattern of Campbell consistently filling her Xanax prescriptions
early. Her existing prescriptions should leave her well-stocked with Xanax until
Christmas. Wellburtin was to be substituted for Xanax. (R. 459.) On December 2, 2009,
Campbell called in and was angry about the letter saying she would no longer be
prescribed Xanax. She threatened to quit treatment unless she got the needed
medication. (R. 457.) On December 7, 2009, a note indicated the Center would send
Campbell information about how to wean herself off Xanax and why that was
necessary. (R. 457.) On January 12 and again on February 9, Campbell failed to show for
appointments. (R. 456, 454 .) On January 14, 2010, Campbell called and asked for
something for her nerves. The notes indicate they can no longer prescribe a
benzodiazepine for her and instruct the staff to ask her to make an appointment to
discuss other anxiety medications. (R. 455.) On February 22, 2010, Campbell telephoned
requesting Xanax. She said the Wellburtin wasn't working and she was about to go
crazy. However, the notes indicate that Campbell had been told in December that no
Xanax or other benzodiazepine would be prescribed. (R. 453.) On March 2, 2010,
15

Campbell's mood was depressed and anxious. She had a plan for suicide, and they
discussed how suicide runs in families. (R. 452.) On March 30, 2010, Bova's treatment
notes state that Campbell was sleeping only five hours a night. She was depressed and
anxious. He affect was bland to flat. She denied suicidal ideation. (R. 451.)
Bova reported that plaintiff met the criteria for post-traumatic stress disorder.
Plaintiff exhibited distress reactions, feelings of helplessness, recurring dreams and
flashbacks, avoidance of interpersonal contact, diminished interest in activities,
increased arousal, and social, familial, and occupational dysfunction. Mr. Boava noted
that plaintiff’s prognosis was guarded. (R. 432.)
Mr. Bova completed a questionnaire as to mental residual functional capacity. He
opined that plaintiff moderate limitations in her abilities to accept instruction or
respond appropriately to criticism from supervisors, to respond appropriately to
coworkers or peers, and to relate to the general public and maintain socially appropriate
behavior. With respect to sustained concentration and persistence, plaintiff was
moderately limited in her abilities to perform and complete work tasks, to maintain
attention and concentration for more than brief periods of time, and to perform at
production levels expected by most employers. She was markedly limited in her ability
to work in cooperation with or in proximity to others without being distracted by them.
With respect to adaptation, plaintiff was moderately limited in her ability to respond
appropriately to changes in the work setting. She was markedly limited in her abilities
to behave predictably, reliably and in an emotionally stable manner and to tolerate
16

customary work pressures. (R. 433-35.)
Administrative Law Judge’s Findings.
1.

The claimant has not engaged in substantial gainful activity since
September 10, 2008, the application date (20 CFR 416.971. et seq.).

2.

The claimant has the following severe impairments: hypotension
with syncopal episodes; mitral valve prolapse/mild regurgitation;
lumbar and thoracic contusion/sprain/spasm with chronic pain
and radiculopathy; major depression, single episode, severe
without psychotic features; posttraumatic stress disorder;
generalized anxiety disorder; personality disorder with antisocial
features; panic disorder with agoraphobia; and cannabis abuse (20
CFR 416.920(c)).

3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to lift up
to 20 pounds occasionally; lift and carry 10 pounds frequently in
light work as defined by the regulations. However, she may
stand/and or walk for up to 1 hour at a time, and requires a 15
minute break before standing again, and must be allowed to sit or
stand at will provided she is not off task more than 10% of the work
period. She may occasionally climb ramps and stairs, bend, balance,
stoop, kneel, and crouch, but may never climb ladders, ropes or
scaffolds or crawl. She must avoid concentrated exposure to
extreme cold, vibration, and hazards such as moving machinery
and heights. She is fully capable of learning, remembering and
performing unskilled simple, routine, and repetitive work tasks
performed in a low stress work environment, defined as one in
which there is not production pace, no quota requirements, no
strict time standards, and no "over-the-shoulder" supervision. She
may have occasional and superficial contact with supervisors and
co-workers, and minimal to no contact with the public.

5.

The claimant has no past relevant work (20 CFR 416.965).
17

6.

The claimant was born on August 11, 1978, and was 30 years old,
which is defined as a younger individual age 18-49, on the date the
application was filed (20 CFR 416.963).

7.

The claimant has a limited education and is able to communicate in
English (20 CFR 416.964).

8.

Transferability of job skills is not an issue because the claimant does
not have past relevant work (20 CFR 416.968).

9.

Considering the claimant's age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 416.969 and 416.969(a)).

10.

The claimant has not been under a disability, as defined in the
Social Security Act, since September 10, 2008, the date the
application was filed (20 CFR 920(g)).

(R. 11-25.)
Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he findings
of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive. . . ." Substantial evidence is "'such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389,
401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is
"'more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.
1976). The Commissioner's findings of fact must be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366
(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining
whether the Commissioner's decision is supported by substantial evidence, the Court

18

must "'take into account whatever in the record fairly detracts from its weight.'" Beavers
v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and
Human Services, 755 F.2d 495, 497 (6th Cir. 1985).
Plaintiff’s Arguments. Plaintiff argues that the decision of the Commissioner
denying benefits should be reversed because:
• The administrative law judge failed to follow Social Security Ruling 06-3p
with respect to the opinion of Campbell's treating psychiatric nurse
practitioner. Plaintiff argues that the administrative law judge failed to
consider the opinion of her treating psychiatric nurse practitioner because he
was not an “acceptable medical source.” Medical sources, such as nurse
practitioners, may be entitled to greater weight than an acceptable medical
source when the medical source has seen the individual in a professional
capacity more often than an acceptable medical source and has greater
knowledge of their functioning over time. Plaintiff maintains that Mr. Bova
treated her once a month for a year. His opinion was well supported and
detailed the diagnostic techniques upon which it was based. Mr. Bova had the
longest treatment relationship of any source in the record related to her mental
impairment, and, as a result, he had the most comprehensive longitudinal
picture of the effects of her impairment over time. Plaintiff also maintains that
Dr. Bova’s opinion was supported by other examining sources in the record.
19

• The administrative law judge improperly assigned great weight to the
opinions of the State agency reviewers. Plaintiff argues that the opinions of
State agency consultants can be given weight only insofar as they are
supported by evidence in the case record, considering such factors as the
supportability of the opinion in the evidence. The opinions of State agency
reviewers are entitled to greater weight than examining sources in limited
circumstances, such as where they are based on a review of a complete case
record with more detailed and comprehensive information than was available
to the other sources. Plaintiff maintains that the opinions of Drs. Finnerty and
Dietz were not entitled to the weight accorded them by the administrative law
judge because they were not based on a review of a more detailed and
complete case record Mr. Bova’s opinion. Plaintiff maintains that the opinions
of the reviewing psychologists were inconsistent with the preponderance of
the evidence concerning her severe mental impairments and were not based
on the complete record. Plaintiff maintains that Mr. Bova and the clinical
examiners all found that she had severe symptoms and limitations. Plaintiff
further argues that the opinions from the clinical examinations of Richard L.
Meilander, Ph.D., and James M. Spindler, M.D., should have been given
greater weight than the State agency reviews. As a general rule, examining
sources are given greater weight than nonexamining sources. Dr. Meilander’s
opinion were consistent with the opinions of Mr. Spindler and Mr. Bova. His
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opinion was based on psychiatric signs observed during his exam.
• The testimony of the vocational expert was not supported by substantial
evidence. Plaintiff argues that the administrative law judge failed to resolve
discrepancies between the vocational expert’s testimony and the Dictionary of
Occupational Titles (“DOT”). Although the administrative law judge asked the
vocational expert whether his testimony was consistent with the DOT, on
cross-examination it was clear that his testimony was not consistent. The
vocational expert acknowledged that his testimony on jobs that allowed a
sit/stand option was inconsistent with the DOT. Plaintiff further argues that
the jobs presented by the vocational expert cannot be performed by a person
with the limitations posed in the hypotheticals because they required mroe
than simple, routine and repetitive tasks.

Analysis. A nurse practitioner working for a mental health care provider is not
an acceptable medical source. 20 C.F.R. § 404.1513(a). Nonetheless, the Commissioner
will consider evidence from other sources “to show the severity of your impairment(s)
and how it affects your ability to work.” 20 C.F.R. § 404.1513(d). Social Security Ruling
06-03p, 2006 WL 2329939, provides that the same factors used to evaluate the opinions
of “acceptable medical sources,” see 20 C.F.R. §§ 404.1427(d) and 416.927(d), “can be
applied to opinion evidence from ‘other sources.’” See, Gayheart v. Commissioner of Social
Security,

F.3d

,

, 2013 WL 896255, *14 (6th Cir. March 12, 2013). Those
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factors include:
• How long the source has known and how frequently the source has
seen the individual;
• How consistent the opinion is with other evidence;
• The degree to which the source presents relevant evidence to support
an opinion;
• How well the source explains the opinion;
• Whether the source has a specialty or area of expertise related to the
individual's impairment(s), and
• Any other factors that tend to support or refute the opinion.
SSR 06-03p. These factors “represent basic principles that apply to the consideration of
all opinions from medical sources . . . who have seen the individual in their professional
capacity.” Id.
Here, the administrative provided specific reasons for not affording Mr. Bova’s
opinion any weight :
The opinions propounded by John Bova, Psychiatric Nurse Practitioner,
on January 12, 2010, are afforded no weight as they were not rendered by
an acceptable medical source and are not supported by the longitudinal
evidence of record. In fact, Mr. Bova’s own counseling notes do not
support such extreme limitations; they appeared to be based on solely
upon the subjective representations of the claimant (Exhibit B-21F).
(R. 24.) Although a source that is not an acceptable medical source may be entitled to
controlling weight, the administrative law judge relied on other substantial evidence in
the record in determining how much weight to give Mr. Bova’s opinion. Mr. Bova’s
opinion was inconsistent with the opinions of the reviewing and examining
psychologists. Mr. Bova’s relied on plaintiff’s subjective representations, and the
administrative law judge concluded that plaintiff’s allegations were not entirely

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credible.
Weight Accorded the Reviewing and Examining Psychologists. With respect to
Dr. Meilander, the administrative law judge stated:
[O]n August 20, 2007, Dr. Meilander opined that the claimant had
moderate impairment in relating to others; mild impairment in her ability
to understand, maintain attention, and follow instructions; and severe
impairment in her ability to tolerate stress at work. He felt that the
claimant’s global assessment of functioning level was 45, reflecting serious
impairment in social or occupational functioning (Exhibit B-3F). The
undersigned gives some weight to the opinion of Dr. Meilander with
regard to the claimant’s ability to relate to others as well as her ability to
understand, maintain attention, and follow instructions; however, there is
nothing to support a severe impairment in the claimant’s ability to handle
changes in the work place or a global assessment functional level of 45.
The claimant had no psychiatric treatment/hospitalizations, no episodes
of decompensation, or even increases in medications by her primary care
provider; her primary care provider’s report did not even suggest
difficulties. In addition, Dr. Meilander’s global assessment of functioning
level conflicted with assessments at Six County (Exhibit 19F, page 16).
(R. 22.) With respect to Mr. Spindler, the administrative law judge stated:
On December 3, 2008, Mr. Spindler opined that the claimant’s global
assessment of functioning level was 50, reflecting serious symptoms in
occupational functioning. Mr. Spindler felt that the claimant had moderate
limitations in her ability to relate to others, including coworkers and
supervisors as well as in her ability to withstand the stress and pressure
associated with day-to-day work activities. He opined that the claimant’s
ability to understand, remember, and follow instructions, as well as her
ability to maintain attention, concentration, persistence and pace to
perform simple repetitive tasks was not impaired (Exhibit B-9F). The
undersigned affords some weight to the opinion of Mr. Spindler; although
the global assessment of functioning level is inconsistent with the
evidence of record, the propounded mental functional capacity is not.
(R. 23.) Here, the administrative law judge properly evaluated the medical opinions of
the reviewing and examining psychologists. The administrative law judge noted
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inconsistencies in Dr. Meilander’s opinion with that of other evidence in the record. Dr.
Meilander’s opinion was based on plaintiff’s self-report, which the administrative law
judge found were not supported by her previous lack of mental health treatment. The
administrative law judge also noted that plaintiff’s primary care physician had not
indicated that plaintiff had difficulty because of her mental impairment.
The administrative law judge concluded that the GAF score that Mr. Spindler
assigned to plaintiff was inconsistent with his overall assessment of plaintiff’s abilities.
Mr. Spindler found that plaintiff had only moderate impairments in functioning, and a
GAF score of 50 was not consistent with only moderate impairments. Although plaintiff
maintains that the administrative law judge improperly adopted the opinion of Dr.
Finnerty over the examining psychologist, Dr. Finnerty in most respect agreed with Mr.
Spinder’s opinion.
The administrative law judge provided good reasons for according greater
weight to the opinions of Drs. Dietz and Finnerty over those of Dr. Meilander and Mr.
Bova and his decision is supported by substantial evidence.
Testimony of the Vocational Expert. Plaintiff argues that the vocational expert
testified that his opinion was inconsistent with the DOT and that the administrative law
judge failed to account for the discrepancies in the vocational expert’s testimony and
the DOT. The vocational expert testified that his testimony regarding a sit/stand
opinion was based on his experience and external sources because the DOT did not
account for a sit/stand option. Baranich v. Barnhart, 128 Fed. Appx. 481, 487, 2005 WL
24

894363, at *4 (6th Cir. 2005)(holding that the administrative law judge did not err by
including a sit/stand option when such an option is not indicated in the DOT because
the DOT is only one source to be used in assessing the availability of jobs for the
claimant).The administrative law judge did not err by relying on the testimony of the
vocational expert.
From a review of the record as a whole, I conclude that there is substantial
evidence supporting the administrative law judge's decision denying benefits.
Accordingly, it is RECOMMENDED that the decision of the Commissioner of Social
Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s motion for
summary judgment be DENIED and that defendant’s motion for summary judgment
be GRANTED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
s/Mark R. Abel
United States Magistrate Judge

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