United States District Court, N.D. Ohio, Eastern Division
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT UNITED STATES MAGISTRATE JUDGE.
Amber Brown (“Plaintiff”) requests judicial
review of the final decision of the Commissioner of Social
Security Administration (“Defendant”) denying her
application for Disability Insurance Benefits
(“DIB”). ECF Dkt. #1. In her brief on the merits,
filed on March 9, 2017, Plaintiff asserts that the
administrative law judge's (“ALJ”) decision:
(1) violates the treating physician rule; and (2) is not
supported by substantial evidence. ECF Dkt. #14. Defendant
filed a response brief on May 10, 2017. ECF Dkt. #16.
Plaintiff did not file a reply brief.
following reasons, the undersigned RECOMMENDS that the Court
AFFIRM the ALJ's decision and dismiss Plaintiff's
case in its entirety with prejudice.
December 16, 2013, Plaintiff protectively filed an
application for DIB. ECF Dkt. #12 (“Tr.”) at 28,
160-66. The application was denied initially and
upon reconsideration. Id. Plaintiff then requested a
hearing, which was held on August 5, 2015. Id. at
46. On August 27, 2015, the ALJ issued a decision denying
Plaintiff's claim. Id. at 25. Subsequently, the
Appeals Council denied Plaintiff's request for review.
Id. at 1. Accordingly, the August 27, 2015, decision
issued by the ALJ stands as the final decision.
filed the instant suit seeking review of the ALJ's August
27, 2015, decision on October 31, 2016. ECF Dkt. #1. On March
9, 2017, Plaintiff filed a brief on the merits. ECF Dkt. #14.
Defendant filed a response brief on May 10, 2017. ECF Dkt.
#16. Plaintiff did not file a reply brief.
RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE A. Medical
January 2013, Plaintiff sought psychiatric care at
Neighborhood Family Practice. Tr. at 358-59. Plaintiff
reported a history of depression. Id. Over the course
of approximately twenty primary care visits from January 2013
through July 2015, Plaintiff consistently displayed normal
mood, affect, behavior, judgment, and thought content on
examination. Id. at 287, 293, 299, 312, 317, 324,
329, 336, 341, 348, 361, 489, 500, 792, 918, 923, 926, 981,
991, 1006. Plaintiff underwent a mental health examination on
February 11, 2013, during which it was noted that she was
twenty-four years old and reported that the onset of her
symptoms occurred two years prior. Id. at 384. At
the examination, Plaintiff reported that she was the
caretaker for her ailing parents, had a two-year old
daughter, and that her husband was a heroin addict who was
serving time in prison for involuntary manslaughter.
Id. at 385. Regarding her work history, Plaintiff
stated that she worked at Giant Eagle for six years, but was
let go due to missing too much work once her parents became
ill. Id. It was noted that the illnesses of her
parents and relationship stress with her husband were
contributing factors to Plaintiff's mental state.
10, 2013, Richard Hill, M.D., stated that Plaintiff reported
significant depression, but added that her medications had
“worked wonders” and helped “even
out” her mood. Tr. at 380. Dr. Hill noted that
Plaintiff stated that she was diagnosed as
“schizoaffective with bipolar tendencies” in her
early teenage years, and that she had experienced auditory
and visual hallucinations in the past, but was not
experiencing hallucinations at the time of the examination.
Id. Dr. Hill further noted that Plaintiff: was
morbidly obese; dressed in casual clothes that fit; had
makeup that was applied carefully; spoke rapidly and in a
pressured manner; had thoughts that were “a bit
tangential at times, ” but most often circumstantial;
responded well to refocusing; denied auditory and/or visual
hallucinations; denied paranoia or suspiciousness; and
conducted herself in a “somewhat ‘overly
familiar' manner.” Id. at 382. Plaintiff
was diagnosed with depression and vertigo, and Dr. Hill
issued a rule-out diagnosis of schizoaffective disorder.
Id. at 382.
second appointment with Dr. Hill, on May 28, 2013, Plaintiff
reported that she had not heard voices or experienced
paranoia since high school, and that she had been doing
“quite well” during her time working at Giant
Eagle. Tr. at 377. Plaintiff denied auditory or visual
hallucinations. Id. Continuing, Plaintiff stated
that she had an individualized education program in school
because she “couldn't sit still and couldn't
pay attention, ” but that she was never diagnosed with
attention deficit hyperactivity disorder
(“ADHD”). Id. Dr. Hill assessed that
bipolar disorder was unlikely and that it was “much
more likely” that Plaintiff had ADHD, and prescribed
medication accordingly. Id. at 378.
2013, Plaintiff told Dr. Hill that she: finished tasks before
moving on to another; was better able to focus without being
distracted by other things, citing a movie as an example; and
felt a bit more calm and “less driven by a
motor.” Tr. at 374. Dr. Hill indicated that Plaintiff
was casually dressed and groomed, and had her “younger
daughter and cousin” with her for the appointment.
Id. Plaintiff again denied auditory or visual
hallucinations. Id. at 375. Continuing, Plaintiff
stated that she slept four to five hours per night, her
appetite was stable, and that she did not experience
dangerous thoughts or intentions. Id. In August
2013, Plaintiff reported that her ability to focus had
improved greatly, and that she was less
“scattered” and more organized and calm.
Id. at 371. Plaintiff also reported increased
periods of insomnia and that she had been awake for
seventy-two hours straight twice in the last month.
Id. Dr. Hill noted that Plaintiff: was neatly
dressed and groomed, with her hair neatly styled; spoke at a
normal rate/rhythm and at a normal volume; was not agitated
or irritable; and denied psychosis, paranoia, and dangerous
thoughts/intentions. Id. Additionally, Dr. Hill
revised his assessment and plan to omit any indication of
bipolar disorder, instead only listing depressive disorder.
September 6, 2013, Dr. Hill indicated that Plaintiff reported
increased rage and anger, and that she was lashing out at her
parents and daughter. Tr. at 368. Dr. Hill reported that
Plaintiff's mood and demeanor were “markedly
different” from her previous appointment, and that she
appeared to be “on edge.” Id. On
September 23, 2013, Plaintiff reported to a nurse
practitioner that she had an argument with her father and was
staying with a friend for the day. Id. at 292. In
November 2013, Plaintiff reported that she was working on
finding a job. Id. at 510.
returned to Dr. Hill on December 11, 2013, and reported that
she had been out of her ADHD medication for several weeks and
was “fidgeting, moving all around, and talking fast,
” and that she was feeling “overwhelmed and then
driving everyone at my house crazy because [she] became
angry.” Tr. at 364. Plaintiff stated that she
“used to be a cutter.” Id. Continuing,
Plaintiff told Dr. Hill that she had recently seen bugs
coming out of her couch and that she had not had any other
visual hallucinations in the prior seven years. Id.
Plaintiff indicated that she had tried to work many times,
but that stress usually led to irritability and her
termination. Id. at 365. Dr. Hill noted that
Plaintiff: was dressed neatly; had very good hygiene and
grooming, however, Dr. Hill also stated that her hygiene was
poor and she was somewhat malodorous; was able to attend well
and maintain eye contact; had logical and goal-oriented
thoughts; appeared to be “on edge”; spoke loudly
and with pressure; denied dangerous thoughts/intentions; and
was sleeping very well with the addition of a new medication.
Id. at 365. Additionally, Dr. Hill noted that
Plaintiff wondered if she should pursue disability benefits.
Id. Dr. Hill diagnosed Plaintiff with ADHD and
completed a function report on December 28, 2013. Tr. at 191.
In the report, Plaintiff indicated that she stayed at home
with her two-year old daughter and that she helped care for
her disabled parents. Id. at 193. Continuing,
Plaintiff noted that she cleaned, drove her parents to
doctor's appointments, and shopped for food. Id.
at 193, 195. Plaintiff stated that she prepared one meal a
day and that she was able to keep up with the house work when
she took her medications. Id. at 196. When asked if
she had problems with family, friends, neighbors, or others,
Plaintiff stated that she had problems with her sisters and
parents due to anger and anxiety, and that she found it
“hard to get along with anyone most of the time.”
Id. at 197. Plaintiff indicated that her hobbies and
interests consisted of watching television, playing with her
daughter, and playing games on the computer or television.
Id. at 198.
agency psychological consultant, Cynthia Waggoner, Ph.D.,
evaluated Plaintiff's mental impairments on January 10,
2014. Tr. at 80. Dr. Waggoner found that Plaintiff medically
supported mental impairments of ADD/ADHD and affective
disorder did not satisfy the criteria of 20 C.F.R. Part 404,
Subpart P, Appendix 1 §§ 12.02 and 12.04.
Id. Continuing, Dr. Waggoner assessed that Plaintiff
had: mild restriction in activities of daily living; moderate
difficulties in maintaining social functioning; moderate
difficulties in maintaining concentration, persistence, or
pace; and no episodes of decompensation of extended duration.
Id. at 83-85. Dr. Waggoner found that Plaintiff was
capable of: understanding and remembering simple one- to
three-step instructions; sustaining concentration and
persistence on simple one- to three-step tasks in a setting
devoid of fast-paced demands; interacting superficially; and
adapting to infrequent changes in a static work setting.
Id. Further, Dr. Waggoner stated that Plaintiff had
a history of hallucinations as a teenager, but had not
experienced any episodes in several years, and reported that
she had been able to sustain employment. Id. at 85.
Dr. Waggoner also noted that Plaintiff helped her parents.
Id. Carl Tishler, Ph.D., affirmed Dr. Waggoner's
findings on reconsideration. Id. at 94-95, 97-99.
February 2014, Plaintiff reported increased anxiety and
worsening depression, and that she did not think her
medications were working any longer. Tr. at 497. Plaintiff
was diagnosed with diabetes, neuropathy, and dermatitis.
Id. at 498. In March 2014, Plaintiff visited Dr.
Hill with her mother. Id. at 492. Dr. Hill indicated
that Plaintiff's mother stated that her behavior had
improved significantly since her teenage years, and that she
had been diagnosed with schizoaffective disorder bipolar
subtype and oppositional defiant disorder as a teenager.
Id. Dr. Hill noted that Plaintiff still appeared to
be “on edge, ” but that she had vastly improved
since her previous appointment. Id. Plaintiff denied
dangerous thoughts/intentions, as well as any psychosis or
paranoia. Id. The following day, Plaintiff reported
to the Parma Community General Hospital complaining of a
headache and anxiety. Id. at 610. Joseph Cooper,
D.O., noted a flat affect and that he believed Plaintiff was
baseline. Id. Dr. Cooper indicated that Plaintiff
did not appear to be a threat to herself or others, and was
not acting psychotic. Id. at 610-11. Plaintiff was
diagnosed with a headache and anxiety/depression, and Dr.
Cooper recommended a change to her medication before
discharging her without further testing. Id. at 611.
reported hypertension, weight management problems, and
depression in May 2014. Tr. at 790. In July 2014, Melanie
Golembiewski, M.D., examined Plaintiff. Tr. at 929. Dr.
Golembiewski stated the Plaintiff's back pain seemed to
subside over the course of the visit and that the location of
the pain was not consistent with Plaintiff's large
ovarian cyst. Id. Continuing, Dr. Golembiewski
indicated that she was “worried [Plaintiff] will seek
ER services again, though they do not seem warranted at this
returned to Dr. Hill in November 2014, and reported that she
saw the “snow moving like sand, a car distorting itself
back and forth, a ‘monster like thing' that she saw
under a blanket, and ‘people' that she talked to on
one occasion.” Tr. at 1001. Additionally, Plaintiff
told Dr. Hill that her ex-husband was released from prison
and had been harassing her with phone calls. Id. Dr.
Hill noted that Plaintiff: was neatly dressed and groomed;
well nourished; and reported insomnia, decreased energy,
tearfulness, and limited hallucinations. Id. After
the examination, Dr. Hill diagnosed adjustment disorder with
mixed emotional features and schizoaffective disorder bipolar
subtype. Id. at 1002. Dr. Hill recommended
psychotherapy, encouraged Plaintiff to become involved in an
activity to improve her self-esteem, and adjusted her
medications by reducing her antidepressant and eliminating
her ADHD and sleep-aid medications. Id.
days later, on November 24, 2014, Plaintiff was admitted to
Southwest General Hospital complaining of weakness, fatigue,
and memory loss. Tr. at 942. Plaintiff was diagnosed with
anxiety and schizoaffective disorder, but was noted to be in
stable condition. Id. at 945. After the diagnosis,
Plaintiff was transferred to Oakview Behavioral Health
Center. Id. at 949. Upon transfer, Plaintiff stated
that she was not taking care of herself mentally or
physically, and that she had been experiencing psychotic
episodes. Id. at 494. Plaintiff reported seeing
“bugs coming out of the couch” and people that
did not exist. Id. As for stressors, Plaintiff cited
her mentally abusive ex-husband. Id. Plaintiff
denied current visual hallucinations and other psychiatric
symptoms, and stated that she “really need[ed]
outpatient help.” Id. at 956. The nurse
practitioner examining Plaintiff stated that “[i]t is
also important to note patient stated that she recently filed
for disability.” Id. After the examination,
Plaintiff was diagnosed with schizoaffective disorder by
history, ADHD by history, rule-out post-traumatic stress
disorder, rule-out “factitious disorder vs.
malingering, ” traits or borderline personality
disorder, and assigned a global assessment of functioning
(“GAF”) score of thirty. Id. at 962.
Plaintiff was discharged on November 26, 2014, with the same
diagnosis other than an increased GAF score of forty-five to
fifty and medication adjustments. Id. at 970-71.
December 2014, Plaintiff visited a licensed professional
clinical counselor who noted that Plaintiff: arrived on time;
dressed appropriately for the weather; was well-groomed; had
normal thought process and content; was cordial and
cooperative; displayed limited eye contact; was somewhat
anxious; had normal speech; and displayed logical and
thoughtful judgment, good insight, and the ability to
verbalize feelings and thoughts. Tr. at 999. Plaintiff also
reported that she is responsible for keeping her house clean.
Id. In January 2015, Plaintiff indicated that her
friend's family was staying with her and her parents
while they saved money for their own place to live.
Id. at 994. Additionally, Plaintiff reported that
she spent four days at her cousin's home at the end of
the year and that it was like a “little
vacation.” Id. at 995. Plaintiff also stated
that she changed her phone number so her ex-husband could not
contact her and that she was throwing away his possessions
that were still in her home. Id. It was noted that
Plaintiff recognized that she had “a lot going on
around her and has a lot she [could] get overwhelmed with,
” and that she agreed with the recommendation that she
focus on herself and her self-care. Id.
February 2015, Plaintiff visited Dr. Hill and reported that:
she was seeing people and formed images prior to her
admission to the hospital in November 2014; her ex-husband
found a way to reach her despite the changed phone number;
and she was feeling much better on her medication regimen.
Tr. at 987. On examination, Plaintiff: appeared well
nourished; was neatly dressed and groomed; had good hygiene;
had dyed hair and carefully applied makeup; was somewhat
“dressed up”; and somewhat historic/dramatic.
Id. at 987-88. Dr. Hill noted that a
fictitious/malingering diagnosis was entertained in the
hospital, but that Plaintiff's borderline personality
disorder, which was also noted, “may influence sense
[Plaintiff] is malingering.” Id. at 988.
Additionally, Dr. Hill indicated that Plaintiff may have been
“splitting” and remarked that her report that she
became ill after a change in her medications may have
actually had to do with her ex-husband being released from
prison. Id. In March 2015, Dr. Hill indicated that
Plaintiff reported increased anxiety and stress due to a
possible pregnancy. Id. at 985. Dr. Hill explained
to Plaintiff that given the complexity of her
medical/psychiatric status and strong psychosocial component,
he was no longer comfortable treating her if she did not make
arrangements to get concurrent psychotherapy, as repeatedly
recommended. Id. at 985-86. Plaintiff stated that
transportation to the counseling session was an issue and she
was offered bus tickets by Dr. Hill. Id. Plaintiff
indicated that the bus tickets would help. Id. at
April 8, 2016, Dr. Hill completed a check-the-box style
Medical Source Statement regarding Plaintiff's mental
capacity. Tr. at 940-41. Dr. Hill opined rated
Plaintiff's capabilities to perform basic mental
activities of work on a sustained basis as follows:
frequently follow work rules; frequently use judgment;
occasionally maintain attention and concentration for
extended periods of two-hour segments; frequently respond
appropriately to changes in the work setting; rarely maintain
regular attendance and be punctual with customary tolerance;
rarely deal with the public; rarely relate to co-workers;
rarely interact with supervisors; occasionally function
without redirection; occasionally working in coordination
with or proximity to others without being distracted;
occasionally working in coordination with or proximity to
others without being distracting; rarely deal with work
stress; rarely complete a normal workday and workweek without
interruption from psychologically based symptoms and perform
at a consistent pace without an unreasonable number of rest
periods; occasionally understand, remember, and carry out
complex job instructions; occasionally understand, remember,
and carry out detailed, but not complex, job instructions;
occasionally understand, remember, and carry out simple job
instructions; frequently maintain appearance; frequently
socialize; rarely behave in an emotionally stable manner;
rarely relate predictably in social situations; occasionally
manage funds and scheduling; and occasionally leave home on
her own. Id. After completing the check-the-box
portion of the form, Dr. Hill listed Plaintiff's
diagnosis and symptoms that support the assessment as
schizoaffective disorder, bipolar personality disorder,
hallucinations, self injurious behavior, and chaotic
relationships. Id. at 941.