United States District Court, S.D. Ohio, Eastern Division
MIRANDA S. OSBORNE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
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.
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.).
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).
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).
Relevant Hearing Testimony
February 29, 2016 Hearing
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).
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.
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.
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.
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).
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).
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 co-workers and that
they need not to listen to or talk to co-workers to perform
job tasks. No. contact with the general public.
(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.).
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.).
July 21, 2016 Supplemental Hearing
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.).
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).
asked vocational expert Eric Pruitt (“the VE”)
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
(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).
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).
Relevant Medical Background
Scioto Paint Valley Mental Health Center
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.
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 #: 524).
Dr. Wolfe noted prior psychiatric hospitalizations in the
early 1980s, 2001, ...