Osborne v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS overruling Plaintiff's Statement of Errors and entering judgment in favor of Defendant. Objections to R&R due by 8/7/2018. Signed by Magistrate Judge Kimberly A. Jolson on 7/24/2018. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MIRANDA S. OSBORNE,
Plaintiff,
v.

Civil Action 2:17-cv-938
Judge George C. Smith
Magistrate Judge Jolson

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Miranda S. Osborne, filed this action seeking review of a decision of the
Commissioner of Social Security (“Commissioner”) denying her Title II application for a period
of disability and disability insurance benefits.

For the reasons that follow, it is

RECOMMENDED that Plaintiff’s Statement of Errors (Doc. 9) be OVERRULED, and that
judgment be entered in favor of Defendant.
I.

BACKGROUND
A. Prior Proceedings
Plaintiff filed a Title II application for a period of disability and disability insurance

benefits on December 5, 2013, alleging disability since June 1, 2008. (Tr. 12, PAGEID #: 51).
After Plaintiff’s application was denied initially and on reconsideration, Plaintiff requested a
hearing before an Administrative Law Judge. (Id.).
Administrative Law Judge Edmund Giorgione held a hearing on February 29, 2016, but
passed away before issuing a decision. (Tr. 51–72, PAGEID #: 90–111). Administrative Law
Judge Timothy Gates (the “ALJ”) held a supplemental hearing on July 21, 2016. (Tr. 34–50,

PAGEID #: 73–89). On August 31, 2016, the ALJ issued a decision finding that Plaintiff was not
disabled as defined in the Social Security Act from June 1, 2008 (the alleged onset date) through
September 30, 2012 (the last date insured). (Tr. 9–27, PAGEID #: 48–66). The Appeals Council
denied review, making the ALJ’s decision the final decision of the Commissioner. (Tr. 1, PAGEID
#: 40).
Plaintiff filed this case on October 24, 2017 (Doc. 1), and the Commissioner filed the
administrative record on February 14, 2018 (Doc. 6). Plaintiff filed a Statement of Specific Errors
(Doc. 9), the Commissioner responded (Doc. 12), and Plaintiff filed a Reply (Doc. 13).
B. Relevant Hearing Testimony
1. February 29, 2016 Hearing
Plaintiff testified that she was forty-eight years old at the time of the hearing, had completed
high school, and is married. (Tr. 56, PAGEID #: 95). She last worked in 2007 as an assistant
manager at a retail store. (Id.). Plaintiff testified that she stopped work when a supervisor
mistreated her after returning from leave under the Family and Medical Leave Act. (Tr. 58, 65,
PAGEID #: 97, 104).
Plaintiff explained that her mental impairments prevent her from working. (Tr. 57,
PAGEID #: 96). She stated:
Well, sometimes I just can’t get up. I’m depressed and I may be crying or, I just
can’t go anyplace. And if I do go places, sometimes I may be at a grocery store
and I would feel like people’s looking at me and I become paranoid and I get all,
upset stomach and got to leave. So, I have to, you know, go home to where I feel
comfortable.
(Id.).
Plaintiff watches some television but is unable to sit for an extended period of time. (Tr.
58, PAGEID #: 97). Sometimes she can follow a television show, but other times she cannot. (Tr.

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59, PAGEID #: 98). Plaintiff plays golf once in a while, and also plays organ and guitar. (Id.).
She showers daily, maintains a driver’s license, and has no difficulty driving. (Tr. 59–60, PAGEID
#: 98–99). She does household chores such as cooking, washing dishes, doing laundry, and
vacuuming. (Tr. 60, PAGEID #: 99). Plaintiff’s husband also does chores around the house. (Id.).
Plaintiff drinks approximately three to four 12-ounce cans of beer daily. (Id.). Her
prescription medicine causes her to experience side effects, such as dry mouth and weight gain.
(Tr. 60–61, PAGEID #: 99–100). She explained that she has to go the bathroom hourly due to the
water she consumes for her dry mouth. (Tr. 60, PAGEID #: 99). Plaintiff leaves the house to
attend doctor’s appointments and to take her mother to the doctor. (Tr. 61–62, PAGEID #: 100–
01).
Plaintiff testified that she suffers from paranoia once a month and that panic attacks can
happen any moment, but typically occur once a week. (Tr. 62, PAGEID #: 101). She stated that
she deals with depression weekly and that it can last all day and has the potential to produce crying
spells, irritability, and decreased appetite. (Tr. 64–65, PAGEID #: 103–04). Plaintiff also testified
that she suffers from memory issues since she stopped working and has trouble concentrating. (Tr.
67, PAGEID #: 106).
At the hearing, the ALJ asked vocational expert Connie O’Brien Heckler two hypothetical
questions. As to the first hypothetical, the ALJ stated:
I would like you to consider a hypothetical individual with the Claimant’s age,
education, and work experience. This hypothetical individual would not have any
physical restrictions but would need to work in relative isolation defined as
occasionally interacts with supervisors, infrequent and incidental contact with coworkers and that they need not to listen to or talk to co-workers to perform job
tasks. No contact with the general public.

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(Tr. 69, PAGEID #: 108). Ms. Heckler testified that, with these limitations, the hypothetical
individual could not have performed Plaintiff’s prior work, but the hypothetical individual could
work as a floor waxer, store laborer, or dryer attendant. (Id.).
The ALJ then changed the hypothetical scenario, adding that the individual would not be
able to maintain an eight-hour workday or a 40-hour workweek due to the inability to maintain
attention and concentration.

(Tr. 70, PAGEID #: 109).

According to Ms. Heckler, these

circumstances would be work preclusive. (Id.).
2. July 21, 2016 Supplemental Hearing
During her supplemental hearing, Plaintiff testified that from 1997 to 1999 she worked as
a retail store manager prior to her position as an assistant manager at a different retail store. (Tr.
40–41, PAGEID #: 79–80). Plaintiff stated that she attends church, but not weekly, because she
has a difficult time getting up due to her sleep medication. (Tr. 44, PAGEID #: 83). Plaintiff plays
the organ in her church approximately once per month. (Id.).
During questioning by her attorney, Plaintiff elaborated on just how late her medication
makes her sleep, stating “[s]ometimes I’ll get up at 12:30 or 2:00 in the afternoon.” (Tr. 45,
PAGEID #: 84). She also testified that she has two to three “bad days” a week in which her
symptoms worsen, and she gets out of bed only to use the restroom and eat. (Id.). Plaintiff
identified her depression as the reason for her “bad days.” (Tr. 46, PAGEID #: 85). Plaintiff
testified that she also experiences panic attacks once a month. (Tr. 44, PAGEID #: 83).
The ALJ asked vocational expert Eric Pruitt (“the VE”) to:
assume a hypothetical individual [of] the Claimant’s age and education and with
the past jobs of Retail Store Manager, Retail Assistant Manager. Further assume
this individual has the following mental limitations. Occasional interaction with
co-workers, occasional interaction with the general public and occasional
interaction with supervisors, with no other limitations.

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(Tr. 47–48, PAGEID #: 86–87). The VE testified that, with these limitations, the hypothetical
individual would not be able to perform Plaintiff’s past work, but could work as an industrial
cleaner, laundry worker, or machine packager. (Tr.48, PAGEID #: 87).
The ALJ then limited the individual to simple, routine tasks. (Id.). The VE concluded that
the hypothetical individual could still complete the three jobs mentioned previously. (Id.).
However, the VE opined that the hypothetical individual would be precluded from work if the
individual: would be unable to work an eight-hour day or 40-hour work week; would be off task
ten minutes every hour in addition to normal breaks; or would be absent three or more days per
month. (Tr. 49, PAGEID #: 88).
C. Relevant Medical Background
1. Scioto Paint Valley Mental Health Center
Plaintiff’s medical records begin with Dr. Daniel S. Lettvin about a year and a half prior to
the alleged onset date and carry through the date last insured, including treatment by Dr. Lettvin,
Dr. Susan E. Wolfe, and Dr. Chris Kovell. Dr. Wolfe’s records and assessments are most relevant
to Plaintiff’s assignments of error.
Plaintiff’s counseling sessions with Dr. Wolfe are documented from February 20, 2008 to
September 15, 2010 (Tr. 443–61, PAGEID #: 488–506).

On a Psychiatric/Psychological

Impairment Questionnaire dated October 8, 2013, Dr. Wolfe indicated that she had been treating
Plaintiff for bipolar II disorder and anxiety disorder since January 2007. (Tr. 477, PAGEID #:
522). Dr. Wolfe noted a current GAF of 50, with the lowest GAF of the past year being 47. (Id.)
When asked to identify the laboratory and diagnostic test results which demonstrate support for
her diagnosis, Dr. Wolfe stated, “see clinical records.” (Tr. 478, PAGEID #: 523). Dr. Wolfe
listed Plaintiff’s primary symptoms as paranoia, depression, and anxiety. (Tr. 479, PAGEID #:

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524). Dr. Wolfe noted prior psychiatric hospitalizations in the early 1980s, 2001, and 2005. (Id.).
On the questionnaire, Dr. Wolfe noted that Plaintiff was markedly limited in 13 of the 20 listed
mental activities, moderately limited in six, and mildly limited in one. (Tr. 480–82, PAGEID #:
525–27).
Dr. Wolfe also completed a narrative statement for Plaintiff’s counsel on April 11, 2014.
(Tr. 548, PAGEID #: 593). She noted that Plaintiff still had intermittent episodes of paranoia but
had not identified any regular pattern or triggers for the paranoia episodes. (Id.). Dr. Wolfe
indicated that Plaintiff suffered from depression in between her episodes of paranoia. (Id.). Dr.
Wolfe also wrote that Plaintiff was “not able to perform full-time work as her symptoms interfere
with her ability to maintain the attention and emotional stability needed to maintain full-time
work.” (Id.).
Dr. Wolfe completed another Mental Impairment Questionnaire on April 11, 2016,
indicating that Plaintiff would miss work three times per month. (Tr. 883–86, PAGEID #: 929–
32). She noted a diagnosis of Bipolar II disorder and stated that Plaintiff’s most severe symptoms
were anxiety and depression. (Id.).
2. Jamestown Family Medicine
Dr. Kevin L. Sharrett has been Plaintiff’s primary care physician since at least July 2010.
(Tr. 327, PAGEID #: 372). Plaintiff primarily visited Dr. Sharrett for physical ailments, not mental
impairments. (Tr. 327–55, PAGEID #: 372–400). Dr. Sharrett noted that Plaintiff began weaning
herself off her anti-depressant in June 2012, without adverse effects. (Tr. 352, PAGEID #: 397).
At a recheck in July 2012, Plaintiff informed Dr. Sharrett that, “she [was] feeling somewhat
anxious and [is] stopping her medication.” (Tr. 356, PAGEID #: 401).

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Dr. Sharrett completed a Psychiatric/Psychological Impairment Questionnaire in January
2014, diagnosing Plaintiff with depression with bipolar tendencies and anxiety. (Tr. 518, PAGEID
#: 563). Dr. Sharrett described Plaintiff’s prognosis as “fair” because she had been stable on
medication. (Id.). Dr. Sharrett opined that Plaintiff was moderately limited in 11 of the 20 mental
activity categories listed and mildly limited in 9. (Tr. 520–23, PAGEID #: 565–68). Dr. Sharrett
indicated that Plaintiff could tolerate low-level stress at work. (Tr. 524, PAGEID #: 569).
Dr. Sharrett likewise completed a Disability Impairment Questionnaire in February 2016.
(Tr. 724, PAGEID #: 769). His diagnoses included anxiety, depression, alcohol abuse, altered
mental state, behavioral disturbance, and psychosis/visual hallucinations. (Id.). When asked to
estimate Plaintiff’s ability to perform work in a competitive environment on a sustained and
ongoing basis, he selected the option with the highest number of hours, noting that it was not
medically necessary for Plaintiff to avoid continuous sitting in an 8-hour workday. (Tr. 726,
PAGEID #: 771). Later in the questionnaire, however, he noted that Plaintiff’s anxiety would be
severe enough to interfere with her attention and concentration for 1/3 to 2/3 of an 8-hour workday,
and she would need to take very frequent breaks that could last hours. (Tr. 727, PAGEID #: 772).
Dr. Sharrett opined that Plaintiff’s symptoms began in June 2008. (Tr. 728, PAGEID #: 773). He
explained that she began treating with his office in July 2010, and that she “suffers from
moderately severe mental illness manifested as depression, anxiety, and psychosis.” (Id.). Finally,
Dr. Sharrett opined that Plaintiff was “not able to work in a competitive work environment.” (Id.).
3. TCN Behavioral Health
Plaintiff began seeing Licensed Nurse Practitioner Bobbie Fussichen in November 2013.
(Tr. 487, PAGEID #: 532).

After two appointments, Nurse Fussichen completed a

Psychiatric/Psychological Impairment Questionnaire in January 2014. (Tr. 527–34, 572–79). Dr.

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Franklin Halley co-signed the questionnaire, but his signature is undated. (Tr. 534, PAGEID #:
579). The questionnaire indicated that Plaintiff had a GAF of 65 and diagnoses of major
depression, psychosis, and panic disorder without agoraphobia. (Tr. 527, PAGEID #: 572). Nurse
Fussichen noted that Plaintiff was stable on medication at her first visit. (Tr. 528, PAGEID #:
573). Nurse Fussichen identified Plaintiff’s primary symptoms as, “vivid weird dreams, anxious
around people, loss of interest in things, [and] motivation varies.” (Tr. 529, PAGEID #: 574).
When rating Plaintiff’s mental activity, Nurse Fussichen assigned Plaintiff a moderate limitation
in eight out of 20 categories and a mild limitation in the other 12. (Tr. 530–32, PAGEID #: 575–
77). Nurse Fussichen also indicated that Plaintiff could tolerate low-level stress at work. (Tr. 533,
PAGEID #: 578).
Nurse Fussichen completed a Mental Impairment Questionnaire in 2016.

(Tr. 878,

PAGEID #: 924). She diagnosed Plaintiff with major depressive disorder, psychosis, and panic
disorder.

(Id.).

She checked “yes” to indicate that Plaintiff experiences episodes of

decompensation in a work or work-like setting, but she did not respond to the corresponding
request for explanation. (Tr. 880, PAGEID #: 926). When completing a different mental activities
assessment portion of the questionnaire, Nurse Fussichen indicated that Plaintiff suffers a
moderate-to-marked limitation in 12 categories and a moderate limitation in 10 categories. (Tr.
881, PAGEID #: 927). Nurse Fussichen also indicated that Plaintiff’s limitations dated back to
June 2008, despite first treating Plaintiff in November 2013. (Tr. 882, PAGEID #: 928).
4. State Agency Assessments
On March 10, 2014, state agency psychologist Dr. Vicki Warren, Ph.D. opined that
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

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of decompensation. (Tr. 77, PAGEID #: 117). Dr. Warren also opined that Plaintiff’s statements
about the intensity, persistence, and functionally limiting effects of her symptoms were not
substantiated by the objective medical evidence alone, especially in light of her activities of daily
living. (Tr. 78, PAGEID #: 118). Ultimately, Dr. Warren found Plaintiff to be only partially
credible. (Id.). State agency psychologist Dr. Deryck Richardson, Ph.D made identical findings
at the reconsideration level on June 21, 2014. (Tr. 89–90, PAGEID #: 129–30).
D. The ALJ’s Decision
The ALJ determined that Plaintiff last met the insured status requirements on September
30, 2012, and she had not engaged in substantial gainful activity from June 1, 2008 (her alleged
onset date) through September 30, 2012 (her date last insured). (Tr. 14, PAGEID #: 53). The ALJ
found that Plaintiff suffered from the following severe impairments: affective disorder with
psychotic features/psychotic disorder NOS, anxiety disorders, and alcohol dependence. (Tr. 15,
PAGEID #: 54). However, the ALJ found that none of these impairments alone or in combination
met or equaled a listed impairment. (Id.). More specifically, the ALJ found that Plaintiff’s mental
impairments did not meet Listing 12.03, 12.04, 12.06, and 12.09, because Plaintiff only had a mild
restriction of activities of daily living, a moderate limitation in social functioning, a mild limitation
in concentration, persistence, or pace, and no episodes of decompensation through the date last
insured. (Tr. 15–16, PAGEID #: 54–55).
As to Plaintiff’s residual functional capacity (“RFC”), the ALJ found that:
[a]fter careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity to perform a
full range of work at all exertional levels but with the following non-exertional
limitations: The claimant could have occasional interaction with coworkers,
occasional interaction with the general public, and occasional interaction with
supervisors.
(Tr. 17, PAGEID #: 56).
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Although the ALJ recognized that Dr. Wolfe was a treating source, he assigned little weight
to Dr. Wolfe’s opinions because they were unsupported by medically acceptable clinical or
laboratory diagnostic evidence and inconsistent with other substantial evidence in the record. (Tr.
22–23, PAGEID #: 61–62). The ALJ likewise noted that Dr. Wolfe issued opinions on issues
reserved to the Commissioner, and that such opinions could never be entitled to controlling weight.
(Tr. 23, PAGEID #: 62).
The ALJ also assigned little weight to Dr. Sharrett’s opinions because they were
inconsistent with the evidence, including Dr. Sharrett’s own treatment records. (Id.). Similarly,
the ALJ assigned Nurse Fussichen’s opinions little weight for a variety of reasons. The ALJ first
determined that Nurse Fussichen was not an “acceptable medical source” pursuant to Social
Security Ruling (“SSR”) 06-3p. (Id.). Next, the ALJ observed that Nurse Fussichen did not
evaluate Plaintiff until November 2013 and noted only moderate limitations, which is generally
inconsistent with disability. (Tr. 23–24, PAGEID #: 62–63). Finally, the ALJ determined that
Nurse Fussichen failed to support her assessments with specific, clinical evidence. (Tr. 24,
PAGEID #: 63).
The ALJ assigned great weight to the State agency psychological consultants’ mental
assessments based on his determination that they were the most consistent with, and well supported
by, the evidence during the relevant period. (Id.). The ALJ also assigned the GAF scores little
weight because they “are not indicative of the claimant’s day-to-day functioning in a work setting
but rather represent a snapshot of the claimant’s symptoms and functioning at the time of the
rating.” (Tr. 25, PAGEID #: 64).
The ALJ held that, although Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, her statements concerning the intensity,

10

persistence, and limiting effects of her symptoms were not entirely consistent with the medical
evidence and other evidence in the record. (Tr. 18, PAGEID #: 57). The ALJ noted, however, that:
the claimant’s complaints have not been completely dismissed, but rather, have
been included in the residual functional capacity to the extent that they are
consistent with the evidence as a whole. Nevertheless, in considering the criteria
enumerated in the Regulations, Rulings, and case law for evaluating the claimant’s
subjective complaints, the evidence is inconsistent with an inability to perform the
range of work assessed herein. The location, duration, frequency, and intensity of
the claimant’s alleged symptoms, as well as precipitating and aggravating factors
are adequately addressed and accommodated in the residual functional capacity….
(Tr. 25, PAGEID #: 64). Based on Plaintiff’s age, education, work experience, and RFC, the ALJ
ultimately determined that there were jobs that existed in significant numbers in the national
economy that Plaintiff could perform. (Tr. 26, PAGEID #: 65). Therefore, the ALJ held that
Plaintiff was not under a disability, as defined in the Social Security Act, from the alleged onset
date through the date last insured. (Id.).
II.

STANDARD OF REVIEW
The Court’s review “is limited to determining whether the Commissioner’s decision is

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g). “[S]ubstantial
evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of HHS, 25 F.3d
284, 286 (6th Cir. 1994)). “Therefore, if substantial evidence supports the ALJ’s decision, this
Court defers to that finding ‘even if there is substantial evidence in the record that would have
supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir.
2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).

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III.

DISCUSSION
Plaintiff asserts two assignments of error. First, Plaintiff argues that the ALJ failed to

weigh the medical opinion evidence properly. Second, Plaintiff contends that the ALJ failed to
evaluate her testimony properly.

(See generally Doc. 9).

The Court examines Plaintiff’s

arguments in turn.
A. Weighing the Medical Opinion Evidence
Plaintiff challenges the ALJ’s decision to assign treating psychologist Dr. Wolfe, treating
primary care physician Dr. Sharrett, and Nurse Fussichen less than controlling weight. (Id. at 19–
28). Further, Plaintiff argues that “[t]he ALJ’s reliance on the non-examining sources was
particularly egregious[.]” (Id. at 26).
As an initial matter, the undersigned notes that “[i]t is the Commissioner’s function to
resolve conflicts in the medical evidence[.]” Ray v. Comm’r of Soc. Sec., 940 F. Supp. 2d 718,
727 (S.D. Ohio 2013) (citing Hardaway v. Sec’y of Health & Human Servs., 823 F.2d 922, 928
(6th Cir. 1987)). Accordingly, when medical sources rely on the same evidence and reach different
conclusions, it is the ALJ’s job to resolve the inconsistency. See, e.g., Goodson v. Chater, No. 956582, 1996 WL 338663, at *1 (6th Cir. June 17, 1996). With this standard in mind, the undersigned
turns to the opinions.
1. Dr. Wolfe
Two related rules govern how an ALJ is required to analyze a treating physician’s opinion.
Dixon v. Comm’r of Soc. Sec., No. 3:14-cv-478, 2016 WL 860695, at *4 (S.D. Ohio Mar. 7, 2016).
The first is the “treating physician rule.” Id. The rule requires an ALJ to “give controlling weight
to a treating source’s opinion on the issue(s) of the nature and severity of the claimant’s
impairment(s) if the opinion is well-supported by medically acceptable clinical and laboratory

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diagnostic techniques and is not inconsistent with the other substantial evidence in the case
record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 384 (6th Cir. 2013) (quoting 20
C.F.R. § 404.1527(c)(2)) (internal quotation marks omitted). Closely associated is “the good
reasons rule,” which requires an ALJ always to give “good reasons . . . for the weight given to the
claimant’s treating source opinion.” Dixon, 2016 WL 860695, at *4 (quoting Blakely v. Comm’r
of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (alterations in original)); 20 C.F.R.
§ 404.1527(c)(2). The treating physician rule and the good reasons rule together create what has
been referred to as the “two-step analysis created by the Sixth Circuit.” Allums v. Comm’r of Soc.
Sec., 975 F. Supp. 2d 823, 832 (N.D. Ohio 2013).
The ALJ afforded little weight to Dr. Wolfe’s opinions, explaining that the opinions were
“not well supported by medically acceptable clinical or laboratory diagnostic evidence nor are
[they] [] consistent with other substantial evidence in the record.” (Tr. 22–23, PAGEID # 61–62).
The ALJ also found that certain conclusions in Dr. Wolfe’s 2014 narrative statement—namely,
that Plaintiff was unable to work—were not medical opinions, but rather were dispositive findings
reserved to the Commissioner. (Tr. 23, PAGEID #: 62). It is well-settled that a statement by a
medical source that a claimant is “disabled” or “unable to work” does not mean that the
Commissioner must find that the claimant is disabled. Marvin v. Comm’r of Soc. Sec., No. 3:11
CV 2170, 2013 WL 518721, at *3 (N.D. Ohio Feb. 12, 2013) (citing 20 C.F.R. § 1527(d)(1)). “A
Social Security Administration policy interpretation clarifies that, although statements that an
individual is disabled are reserved for the Commissioner, such opinions “must never be ignored”
and “notice of the determination or decision must explain the consideration given to the treating
source’s opinion.” Id. (citing SSR 96–5p).

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Here, the ALJ adequately explained the consideration given to Dr. Wolfe’s opinion. First,
Dr. Wolfe indicated on an assessment in 2013 that Plaintiff suffered from moderate to marked
limitations in almost every single area of mental functioning, yet treatment records of Drs. Lettvin
and Kovell documented improvement with medication and counseling. (Id.). Specifically, Dr.
Kovell noted that Plaintiff’s depression was in remission in January 2013; Dr. Kovell noted
Plaintiff’s improvement and stability in mood and functioning; and Plaintiff had a GAF score of
65 in November 2013 with consistently normal mental status exams. (Tr. 22, PAGEID #: 61).
The ALJ also explained that Plaintiff’s mental status examinations were largely within
normal limits; there was no evidence of active psychosis or paranoia; Plaintiff was active with
family and friends and engaged in activities; and Plaintiff continued to use alcohol and decline
treatment for alcohol despite treating sources consistently telling her to stop. (Tr. 23, PAGEID #:
62). Further, the ALJ noted that Dr. Wolfe’s opinions appeared to be based heavily on Plaintiff’s
subjective complaints of symptoms and limitations, rather than objective, clinical findings. (Id.).
Moreover, the ALJ found Dr. Wolfe’s opinion to be “speculative and not supported by the
evidence.” (Id.). For example, Dr. Wolfe opined that Plaintiff was incapable of even “low stress”
and would miss more than three days of work per month. (Tr. 22, PAGEID #: 61). Dr. Wolfe
made a similar claim in 2016 regarding Plaintiff’s missing work more than three days a month,
despite notes in her own medical records that Plaintiff seemed to be doing well, was enjoying her
new grandchild, and enjoyed gardening in the years between the two assessments. (Tr. 22,
PAGEID #: 61).
Finally, the ALJ noted that Plaintiff declined treatment for alcohol and continued to use
alcohol despite treating sources consistently telling her to stop. (Tr. 23, PAGEID #: 62). Plaintiff
argues that the medical opinions of Dr. Wolfe “cannot be wholly rejected simply because Plaintiff

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was advised to stop using alcohol.” (Doc. 9 at 24). That, however, is not what the ALJ did.
Although the ALJ recognized Plaintiff’s alcohol abuse, and consistently noted it in reviewing the
record, his analysis of the medical opinions did not in any way rely on Plaintiff’s alcohol
dependence. Thus, any argument by Plaintiff to the contrary is unpersuasive.
Ultimately, the ALJ provided an explicit rationale for the conclusions he reached, and the
decision provided sufficient detail to satisfy the good-reasons requirement and appropriately
explained the disposition of the case to Plaintiff. See Henderson v. Astrue, No. 10-CV-238-JMH,
2011 WL 3608164, at *3 (E.D. Ky. Aug. 16, 2011) (Good reasons include, inter alia, “a treating
physician’s opinion that contradicts other medical evidence in the record[.]”). Thus, the weight
accorded by the ALJ to Dr. Wolfe was supported by substantial evidence.
2. Dr. Sharrett
The ALJ assigned Dr. Sharrett’s opinions little weight because they were inconsistent with
the medical evidence, including Dr. Sharrett’s own treatment records. (Tr. 23, PAGEID #: 62).
For example, Dr. Sharrett noted that Plaintiff’s mental limitations would result in frequent
absences or decompensation with moderate to severe stress. (Tr. 523, PAGEID #: 568). The ALJ
held, however, that there was no evidence to support this conclusion because Plaintiff’s mental
status exams were within normal limits and largely stable through the date last insured. (Tr. 23,
PAGEID #: 62). Indeed, Dr. Sharrett consistently noted in the “review of systems” that Plaintiff
“[d]enies depression, anxiety, suicidal ideation or homicidal ideation.” (Tr. 327–96, PAGEID #:
372–441). The ALJ acknowledged this in his summary of the medical record, writing, “these notes
generally document no significant physical or mental symptoms or impairment. The claimant
often denied notable symptoms. She did not present as significantly depressed or anxious.” (Tr.
20, PAGEID #: 59).

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Additionally, in a 2014 assessment, Dr. Sharrett noted only moderate to mild limits in
mental functioning (Tr. 521–23, PAGEID #: 566–68), which the ALJ concluded was not entirely
consistent with disabling mental impairments. (Tr. 23, PAGEID #: 62). Further, Dr. Sharrett
opined that Plaintiff’s symptoms were “fairly well controlled” by her medication (Tr. 607,
PAGEID #: 652) and that any periods of worsening symptoms were caused by changes or
discontinuation of medications where Plaintiff would then improve upon restarting or adjusting
the medication (Tr. 352–68, PAGEID #: 397–412).
In sum, Dr. Sharrett provided inconsistent opinions.

That the ALJ resolved these

inconsistencies in a manner unfavorable to Plaintiff does not mean the ALJ’s ultimate conclusion
was unsupported by substantial evidence. It is the ALJ’s “function to resolve conflicts in the
evidence,” see Hardaway v. Sec of H.H.S., 823 F.2d 922, 928 (6th Cir. 1987), which is what the
ALJ did, while providing explicit rationales for the conclusions he reached. It was therefore not
an error for the ALJ to assign Dr. Sharrett’s opinion little weight.
3. Nurse Fussichen
Plaintiff next argues that the ALJ improperly evaluated Nurse Fussichen’s opinions. (Doc.
9 at 28). As an initial matter, as a nurse practitioner, Nurse Fussichen is not an “acceptable medical
source” pursuant to Social Security Ruling SSR 06-03P; instead she is an “other source.” 1 See
SSR 06-03P (S.S.A.), 2006 SSR LEXIS 4, 2006 WL 2329939, at *2. “Other sources” cannot
establish the existence of a medically determinable impairment but “may provide insight into the
severity of the impairment and how it affects the individual’s ability to function.” Id. Ultimately,
an ALJ “generally should explain the weight given to opinions from these ‘other sources,’ or

1

This regulation has been rescinded. It still applies, however, to claims (like this one) filed before March 27, 2017.
20 CFR § 404.1527.

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otherwise ensure that the discussion of the evidence in the determination or decision allows a
claimant or subsequent reviewer to follow the adjudicator’s reasoning.” Starr v. Comm’r of Soc.
Sec., No. 2:12-CV-290, 2013 WL 653280, at *5 (S.D. Ohio Feb. 21, 2013)
Here, the ALJ assigned little weight to Nurse Fussichen’s assessments for several reasons.
First, the ALJ noted that Nurse Fussichen was not an acceptable medical source, and thus her
opinion was “never entitled to controlling weight.” (Tr. 23, PAGEID #: 62). Although Plaintiff
argues that the ALJ failed to acknowledge that Dr. Halley co-signed one of the reports from Nurse
Fussichen (Doc. 9 at 28 (citing Tr. 527–34)), this does not change the analysis. Dr. Halley may
have signed the report, but he provided no explanation or clarification for presumably “signing
on” to the opinion.
Second, Nurse Fussichen evaluated Plaintiff for the first time on November 22, 2013 (Tr.
493, PAGEID #: 538), more than a year after the date last insured. In order to qualify for disability
insurance benefits, “a claimant must ‘establish the onset of disability prior to the expiration or his
[or her] insured status.’” Kingery v. Comm’r of Soc. Sec., 142 F. Supp. 3d 598, 602 (S.D. Ohio
2015) (quoting Garner v. Heckler, 745 F.2d 383, 390 (6th Cir.1984) (citation omitted) (emphasis
in original). Consequently, “[e]vidence of disability obtained after the expiration of insured status
is generally of little probative value.” Strong v. Soc. Sec. Admin., 88 F. App’x 841, 845 (6th Cir.
2004) (citations omitted). It was thus reasonable for the ALJ to discredit Nurse Fussichen’s
opinions based upon the timeframe in which they were offered.
Third, Nurse Fussichen noted only mild to moderate limitations in functioning (Tr. 530–
32, PAGEID #: 575–77), which is generally inconsistent with disability. Finally, the ALJ found
that Nurse Fussichen failed to support her assessments with specific, clinical evidence. In fact, the
ALJ noted that Plaintiff’s mental status examinations directly contradict Nurse Fussichen’s

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conclusions on her questionnaire, as Plaintiff’s mental status examinations were consistently
normal with the exception of the months surrounding her two psychiatric hospitalizations in 2014.
(Tr. 584–88, 682–91, PAGEID #: 629–33, 727–36). In sum, the ALJ provided adequate reasons
to assign little weight to Nurse Fussichen’s opinions.
4. Non-Examining Physicians
Plaintiff argues that the ALJ’s reliance on the non-examining sources—the state agency
psychologists—was “particularly egregious.” (Doc. 9 at 26). In support, Plaintiff argues that the
first non-examining psychologist, Dr. Warren, reviewed Plaintiff’s file on March 10, 2014, but it
included medical records through only September 2012. (Id. (citing Tr. 76–79). Further, Plaintiff
notes that the second psychologist, Dr. Richardson, failed to indicate if any additional evidence
was reviewed. (Id. (citing Tr. 88–91)). According to Plaintiff these opinions are “of limited value”
because the “non-examining sources did not review any of the opinions from the treating
specialists as they were entered into the record at a later time.” (Id.).
Of course, it is the job of the ALJ, not Plaintiff, to determine how much value and weight
to assign certain medical opinions.

Although “Social Security regulations specify that

‘[g]enerally,’ the ALJ assigns ‘more weight to the opinion of a source who has examined you than
to the opinion of a source who has not examined you,’” there are exceptions. Miller v. Comm’r of
Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016) (quoting 20 C.F.R. § 404.1527(c)(1)). To be sure,
state agency consultants are “highly qualified physicians and psychologists who are experts in the
evaluation of the medical issues in disability claims under the [Social Security] Act.” Id. (quoting
SSR 96–6p, 1996 WL 374180, at *2 (July 2, 1996)). “Thus, under certain circumstances, an ALJ
may assign greater weight to a state agency consultant’s opinion than to that of a treating or
examining source.” Id.

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Here, the ALJ provided a detailed explanation for why he assigned the state agency
psychologists great weight:
[T]he undersigned gives great weight to the State agency psychological
consultant’s mental assessments, as these are the most consistent with and well
supported by the evidence during the relevant prior. Evidence received after the
State agency consultants rendered their assessments does not support greater
limitation in the claimant’s mental functioning during the relevant period. . . . In
making this finding, the undersigned notes that the State agency consultants are
well-qualified by reason of training and experience in reviewing an objective record
and formulating an opinion as to limitations. The State Agency consultants are
deemed to possess specific “understanding of our disability programs and their
evidentiary requirements” (Social Security Ruling 96-6p). Here, the consultants’
assessments are consistent with and well supported by the evidence of the record
as a whole and are accepted as an accurate representation of the claimant’s mental
status.
(Tr. 24, PAGEID #: 63).
When a non-examining source did not review a complete case record, as was the case here,
“‘we require some indication that the ALJ at least considered these facts before giving greater
weight to an opinion’ from the non-examining source.” Miller, 811 F.3d at 834 (quoting Blakley,
581 F.3d at 409). In this case, the ALJ acknowledged that additional evidence was received, but
it did not support greater limitations. Thus, the ALJ’s decision to assign great weight to the state
agency psychologists was supported by substantial evidence.
At base, considering every medical opinion, along with the record evidence, the ALJ
ultimately concluded that Plaintiff was not disabled. Even if the undersigned believed enough
evidence existed to demonstrate Plaintiff’s inability to work, as Plaintiff argues, the ALJ’s decision
may not be reversed simply because record evidence supports a different conclusion. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1996). Because it is the ALJ’s “function to resolve conflicts
in the evidence, see Hardaway v. Sec’ of H.H.S., 823 F.2d 922, 928 (6th Cir. 1987),” and that is
what the ALJ did here, the Court finds that substantial evidence supports the decision.

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B. Credibility Determination
Plaintiff argues that substantial evidence does not support the ALJ’s evaluation of Ms.
Osborne’s testimony.

(Doc. 9 at 30–32).

Specifically, Plaintiff contends that the ALJ’s

“conclusory finding that [her] disability is not supported by the treatment records is directly
contradicted by the record.” (Id. at 31).
It is well established that the “subjective complaints of a claimant can support a claim for
disability, if there is also objective medical evidence of an underlying medical condition in the
record.” E.g., Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (citations omitted).
“Nevertheless, an ALJ is not required to accept a claimant’s subjective complaints and may
properly consider the credibility of a claimant when making a determination of disability.” Id.
(citations omitted). Recently enacted, SSR 16-3p eliminated the use of the term “credibility” and
clarified that an ALJ should consider whether the claimant’s statements about the intensity,
persistence, and limiting effects of symptoms are consistent with the objective medical evidence
and other evidence of record. 2016 WL 1119029 at *7.
Here, the ALJ stated explicitly that Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her symptoms were not entirely consistent with the record. (Tr.
18, PAGEID #: 57). For example, the ALJ noted that although Plaintiff quit her job around the
time she began treatment for her bipolar and anxiety disorders, “she also remained quite active.”
(Id). The ALJ further relied on the fact that Plaintiff reported that she enjoyed activities with her
family and friends, exercised regularly, performed projects around the house, hosted a wedding
reception, attended a retirement dinner with her husband, performed chores, watched movies,
gardened, and golfed. (Tr. 18–20, PAGEID #: 57–59 (citing Exhibit 2F)). Thus, it was reasonable
for the ALJ to rely on Plaintiff’s daily activities to find Plaintiff’s statements about the intensity,

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persistence, and limiting effects of her symptoms not consistent with the evidence of record. See,
e.g., Blacha v. Sec’y of HHS, 927 F.3d 228, 231 (6th Cir. 1990) (holding that the ALJ may consider
a claimant’s household and social activities when assessing credibility); Murphy v. Comm’r of Soc.
Sec., No. 2:13-cv-730, 2014 WL 5432125, *8 (S.D. Ohio Oct. 27, 2014) (“[A]n ALJ may take
activities of daily living into account in making a credibility determination, especially if those
activities appear inconsistent with Plaintiff’s own reports of what she can and cannot do.”).
Additionally, the ALJ found that clinical evidence documented only mild abnormalities.
As Defendant explains:
[T]he ALJ noted that Plaintiff “generally got along well with others,” “socialized
regularly with friends and family . . . [and] was able to get along with authority
figures” (Tr. 15-16, 225-231). She denied having been fired from a job due to
problems getting along with others (Tr. 16). Despite depression and anxiety,
Plaintiff “was generally able to relate appropriately to treating and examining
sources throughout the record. She was consistently cooperative without abnormal
or unusual behaviors noted” (Tr. 16, 225-231, 289-326, 403-476). The ALJ also
noted that Plaintiff “not exhibit concentration or attention deficits” and that
“[d]uring the relevant period, the claimant did not exhibit active hallucinations,
psychosis, or paranoia.” (Tr. 16). Plaintiff had no evidence of a thought disorder,
and “generally exhibited clear and coherent speech with fairly tight associations.”
(Tr. 16, 225-231, 289-326, 403-476).
(Doc. 12 at 19). These examples of clinical evidence from the record are in direct contradiction to
Plaintiff’s allegations of disabling symptomology. When an ALJ finds contradictions between
medical reports and Plaintiff’s complaints, “the ALJ may properly discount the credibility of the
claimant.” Hartman v. Colvin, 954 F. Supp. 2d 618, 636 (W.D. Ky. 2013).
The ALJ also noted that Plaintiff was actively looking for work (Tr. 18, PAGEID #: 57
(citing Exhibit 4F), which is inconsistent with a finding of disability. See Smith v. Berryhill, No.
3:15-CV-384, 2017 WL 929163, at *3 (S.D. Ohio Mar. 8, 2017) (affirming “the ALJ’s decision to
find Plaintiff’s testimony not fully credible” based, in part, on the fact that Plaintiff was actively
looking for work despite her contention that she was “unable to perform work activity”).
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Finally, the ALJ relied on the fact that Plaintiff’s symptoms were well-controlled and
showed improvement. The ALJ noted numerous examples, explaining that Plaintiff reported
improvement in her symptoms in November 2007 when she cut back on alcohol (Tr. 18, PAGEID
#: 57); she stated she was doing “fairly well” in May 2008 (id.); she reported improvement with
her most recent medication adjustments in November 2008 (Tr. 19, PAGEID #: 58); counseling
notes from January 2009 documented improvement following medication adjustments (id. (citing
Exhibit 4F)); and she reported that she was doing well on multiple occasions, including in May
2009, September 2009, September 2010, and April 2012 (Tr. 19–21, PAGEID #: 58–60). It is
permissible for an ALJ to consider this type of evidence. See, e.g., Dempley v. Astrue, No.
CIV.A.309CV651, 2010 WL 1979404, at *3 (W.D. Ky. May 14, 2010) (holding that an ALJ’s
credibility determination was supported by substantial evidence when the ALJ considered, inter
alia, improvement in a plaintiff’s symptoms).
At base, the Sixth Circuit has held that courts must accord great deference to an ALJ’s
“credibility” assessment, particularly “because of the ALJ’s unique opportunity to observe the
claimant and judge [his] subjective complaints.” Buxton, 246 F.3d at 773 (citations omitted). To
that end, it is not the province of the reviewing court to “try the case de novo, nor resolve conflicts
in the evidence, nor decide questions of credibility.” Walters v. Comm’r of Soc. Sec., 127 F.3d
525, 528 (6th Cir. 1997). In this case, the ALJ set forth the various factors that he considered in
his credibility assessment, including specific citations to medical records, objective clinical
findings, and Plaintiff’s daily activities. Moreover, the ALJ’s determination has support in the
record. (See Tr. 15–20, PAGEID #: 54–59). Consequently, the ALJ complied with the regulations,
and substantial evidence supports his decision.

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IV.

CONCLUSION
For the reasons stated, it is RECOMMENDED that Plaintiff’s Statement of Errors (Doc.

9) be OVERRULED and that judgment be entered in favor of Defendant.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). Failure to object to
the Report and Recommendation will result in a waiver of the right to have the district judge review
the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the
decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474
U.S. 140, 152–53 (1985).
IT IS SO ORDERED.

Date: July 24, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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