IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHARITY F. WITT,

Plaintiff,

vs. Civil Action 2:11-CV-347

Judge Smith

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

I.

Introduction and Background

This is an action instituted under the provisions of 42

U.S.C. §405(g) for review of a final decision of the Commissioner

of Social Security denying plaintiff’s application for disability

insurance benefits.1 This matter is now before the Court on

plaintiff’s Statement of Errors, Doc. No. 15, the Commissioner’s

Memorandum in Support, Doc. No. 20, and plaintiff’s Reply

Memorandum, Doc. No. 21.

Plaintiff Charity F. Will filed her application for

benefits on February 20, 2007, alleging that she has been disabled

since December 20, 2005, as a result of arthritis in both ankles,

back, feet and left knee. PageID 201, 206. Plaintiff also claims

disability due to mood swings and emotional problems. PageID 209.

The application was denied initially and upon reconsideration, and

plaintiff requested a de novo hearing before an administrative law

judge.

1

Plaintiff initially filed applications for both disability insurance

benefits and supplement security income but, as of November 6, 2007, plaintiff

withdrew the supplemental security income portion of her application. PageID

247, 252. 

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A hearing was held on October 6, 2009, at which

plaintiff, represented by counsel, appeared and testified, as did 

Jerry A. Olsheski, Ph.D., who testified as a vocational expert. In

a decision dated January 28, 2010, the administrative law judge

concluded that plaintiff was not disabled within the meaning of the

Social Security Act at any time prior to the lapse of her insured

status on March 31, 2009. PageID 58-73. That decision became the

final decision of the Commissioner of Social Security when the

Appeals Council declined review on February 25, 2011. PageID 48-52.

Plaintiff was 32 years of age at the time the

administrative law judge issued her decision. She has a high school

education, having been enrolled in special education classes.

PageID 211. Plaintiff has past relevant work experience as an egg

inspector, short order cook, handicap aide, assembly line worker,

pizza cook, fast food worker and trimmer. PageID 207, 214-21.

 II.

 The Evidence of Record

Plaintiff alleges, and the administrative law judge

found, that plaintiff suffers both physical and mental impairments. 

However, plaintiff challenges only the Commissioner’s finding that

plaintiff’s mental impairments are not disabling. The Court will

therefore address only that contention.

Plaintiff testified at the administrative hearing that

her worst problems are emotional and mental. PageID 94. Plaintiff

testified to anger issues and believed that this problem had

worsened over the prior four years. PageID 95. Plaintiff would “fly

off of the handle real easy, I threaten to beat people up, I bottle

stuff up inside, I don't talk about it.” Id. She reported that,

two years prior to the hearing, she beat up her aunt. Id. She also

reporting fights with her sister. PageID 96. Plaintiff complained

of crying spells “all the time,” about three or four times a week.

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PageID 96-97. Mental health treatment at Six County, Inc., helped

“some.” PageID 97. She is always tired. Id.

As to her daily activities, plaintiff can feed, dress and

bathe herself. PageID 105. She shares cooking duties with her

husband. Id. She washes dishes perhaps twice a week but does no

laundry, ironing, sweeping, mopping or vacuuming. PageID 106. She

cares for two dogs. PageID 107. She enjoys crossword puzzles but

sometimes loses concentration. PageID 109. She watches about two

hours of television a day. PageID 110. She does not go out where

there are too many people. PageID 109-10. A friend visits once or

twice a week and her sister visits once a month. PageID 110-11.

When initially evaluated at Six County, Inc., in May

2007, plaintiff reported intermittent mood difficulty for the prior

6 or 7 months. PageID 312-23. She expressed unhappiness with having

to live with her parents. PageID 312. She performed all the

housework. PageID 312-13. She also liked to crochet, listen to

music and play video games. PageID 313. Kathleen Davison, the

intake counselor, noted a normal mental status examination,

including normal speech, absence of aggressive or abnormal thought

content, no hallucinations or perceptual abnormalities, logical and

concrete thought process, euthymic mood, full affect, cooperative

behavior, and fair insight and judgment. PageID 323. Plaintiff was

diagnosed with an adjustment disorder, rule out mood disorder, and

a learning disorder. Plaintiff’s Global Assessment of Functioning

(GAF) was rated 65, which is indicative of only mild dysfunction.

PageID 321.I

Charles W. Loomis, M.A., performed a consultative

evaluation of plaintiff on September 17, 2007. PageID 324-29.

According to Mr. Loomis, testing indicated borderline intellectual

functioning. Plaintiff read at the fourth grade level. Clinical

examination was suggestive of an anger disorder and conflict in

interpersonal relationships. PageID 326. Plaintiff reported that

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her daily consisted of housework, watching television, crocheting

and listening to music. PageID 327. Mr. Loomis diagnosed an

oppositional defiant disorder and borderline intellectual

functioning. He assigned a GAF of 60, which is suggestive of

moderate dysfunction. PageID 328-29. According to Mr. Loomis,

plaintiff would not be significantly impaired in her abilities to

understand, remember and follow routine instructions and in

maintaining attention and concentration. PageID 329. Plaintiff

would be moderately impaired in her ability to cope with the

ordinary stresses and pressures of competitive work and in relating

to others, including fellow workers, supervisors and the general

public. Id.

A state agency psychologist, Mel Zwissler, Ph.D.,

reviewed the file in October 2, 2007 and concluded that plaintiff

retained the ability to complete at least simple repetitive tasks

in a low stress work environment, and that she would work best in

a setting with few social interactions. PageID 346.

Plaintiff returned to Six County, Inc., in December 2007. 

PageID 349-50. Plaintiff reported that she and her husband were no

longer living with her parents, which reduced her stress levels. 

PageID 349. She was tired all the time. On mental status

examination, social worker Elise McMath, LISW, noted a distressed

mood and restricted affect but normal speech and thought, normal

mental content with no reported delusions or hallucinations, good

insight and judgment and normal memory. Concentration “seems ok.”

PageID 350. Plaintiff admitted to being mean and hateful much of

the time. She also described an irritability toward others and a

propensity to be easily agitated in social situations. Ms. McMath

assessed an adjustment disorder and again assigned a GAF score of

65. Id. However, Ms. McMath also indicated in a form for the county

Job and Family Services Department that plaintiff’s “psychological

propensities” would be work preclusive. PageID 351-52.

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Plaintiff began counseling sessions with Susan Dorsky, a

social worker at Six County Inc., on August 5, 2008. PageID 365-68.

Plaintiff underwent a mental status examination and an

individualized service plan was developed. Id. Progress notes from

October and December 2008 indicate that plaintiff was a danger to

no one and that she and her husband got along pretty well. PageID

369-71. Ms. Dorsky noted that plaintiff sometimes took things too

personally. Id.

Wheaton Wood, M.D., a psychiatrist at Six County, Inc.,

began treatment of plaintiff on November 7, 2008. Plaintiff

reported rejection sensitivity since childhood, increasing symptoms

of disproportionate anger, non-psychotic paranoia, rejection

sensitivity, affective lability and anger, hatefulness,

irritability and physical aggression since 2005, following a series

of deaths in her family. Dr. Wood surmised that plaintiff became

depressed at that time and then vacillated between a hypomania and

depression ever since; underlying borderline symptoms have always

been present. PageID 418. Dr. Wood characterized plaintiff as an

above average, intelligent patient with a borderline personality

disorder who had developed bipolar disorder in the prior three

years. PageID 419. A psychiatric/pharmacological management plan

was established. PageID 365.

In December 2008, plaintiff reported to Dr. Wood that she

was “doing okay” but was “irritable from time to time.” Her mood

was euthymic and her affect remained labile. She was not suicidal

or homicidal; she reported no hallucinations or delusions. Dr. Wood

modified her medication because of reported side effects. PageID

415.

On February 13, 2009, plaintiff experienced an outburst

of anger, including tears and cursing, toward Dr. Wood’s staff.

PageID 432. Dr. Wood described plaintiff as “seeking disability”

with “the usual confused lifestyle but this is a case of borderline

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that is really tough to keep under wraps.” Id. According to Dr.

Wood, plaintiff was “completely disabled,” “explosive, paranoid.”

Frankly, she is, at times, quite dangerous.

She infers meanings that are not there from

those around her. Imagining her in a work

place, I see her lasting about 1⁄2 day before

she would get into an entanglement based on an

erroneous perception emotionally and an

aggressive reaction.

Id. Dr. Wood described plaintiff’s mental status as follows:

Mood is angry. Affect is labile. Self-control

is minimal. She is explosive, upset, paranoid

and has out of proportion rage. She was able

to be worked with by sophisticated techniques

of introspection not by CBT. This is not

something that the work place is going to be

able to provide. I have done my best with

medicine but I am afraid this is not a good

prognosis. 

PageID 433. In a letter to plaintiff’s attorney, Dr. Wood

characterized plaintiff as explosive and paranoid; she interpreted

other people’s looks in a malevolent way, and acted on those

malevolent misinterpretations. PageID 422. According to Dr. Wood,

plaintiff’s prognosis was poor; he characterized her as “barely

able to survive because of her extremely paranoid type of

borderline personality.” Id.

Dr. Wood completed a mental residual functional capacity

assessment on that same day, opining that plaintiff is extremely

limited in her ability to relate to the general public and maintain

socially appropriate behavior, to work in cooperation with or in

proximity to others without being distracted by them and to behave

predictably, reliably and in an emotionally stable manner.

Plaintiff is markedly limited in her ability to accept instructions

from or respond appropriately to criticism from supervisors or

superiors, to work in coordination with or in proximity to others

without distracting them or exhibiting behavioral extremes, to

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respond appropriately to co-workers or peers, and to process

subjective information accurately and to use appropriate judgment.

According to Dr. Wood, plaintiff’s condition would likely

deteriorate if she were placed under stress, particularly that of

a job. PageID 423-25. He concluded that plaintiff suffered from a

serious borderline personality disorder with paranoia that would

cause “aggressive acting out.” PageID 425.

Following a March 2009 a therapy session with plaintiff

and her husband, Ms. Dorsky reported that “client did not get over

her mistrust and/or hostility toward therapist despite therapist’s

attempting to address the strong trust that has been established to

now. [T]he fear of losing control of her husband was intense and

way out of proportion to situation.” PageID 431.

 In May 2009, Dr. Wood noted that plaintiff was neither

suicidal nor homicidal, but that she experienced panic attacks

triggered by her fear of her husband’s suicide attempt. Her mood

was euthymic, her affect was congruent and her perception was

normal. Dr. Wood described “a complex[,] basically factitious

anxiety disorder” and noted that “Factitious Disorders have a very

poor prognosis.” Dr. Wood’s diagnosis changed to a conversion

disorder on borderline personality disorder. PageID 428-29.

Ms. Dorsky again treated plaintiff and her husband on

July 15, 2009. The couple denied major problems but reported

chronic stressors related to health, poverty and insufficient

stimulation. They discussed their concerns and plans for dealing

with increased stress. PageID 427. 

The record also includes notes relating to plaintiff’s

medical treatment. To the extent that those records refer to

plaintiff’s mental status, the records include such observations as

normal affect, “cheerful” demeanor and calm mood. See, e.g.,

PageID 380, 411, 436.

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At the administrative hearing, Dr. Olsheski was asked to

assume a claimant with plaintiff’s vocation profile and the

residual functional capacity for medium exertion with only

occasional bending and squatting, limited to only low-stress work,

which was defined as non-fast-paced, simple, repetitive, non-public

tasks with little social interaction. PageID 119. In response,

the vocational expert testified that such a clamant could perform

certain of plaintiff’s prior relevant work, i.e., egg inspector,

assembly line worker and trimmer. PageID 121-22. If one were to

credit the opinions articulated by treating psychiatrist Dr. Wood,

however, plaintiff would be unemployable. PageID 123.

III.

Administrative Decision

In her decision, the administrative law judge found that

plaintiff suffers the severe mental impairments of an affective

disorder, borderline intellectual functioning and a personality

disorder. PageID 60. Plaintiff’s impairments neither meet nor equal 

a listed impairment. PageID 62. From a mental standpoint, the

administrative law judge found that plaintiff is limited to low

stress work, defined as non-fast paced, simple, repetitive, nonpublic tasks with little social interaction. PageID 66. In making

this finding, the administrative law judge gave “little weight” to

Dr. Wood’s opinion of disability:

The opinions of Wheaton B. Wood, M.D., have

been considered, but are given little weight. 

These opinions are not supported by the

evidence of record and appear to be

inconsistent with and unsupported by other

evidence in the record. For example, Dr. Wood

opined that the claimant is markedly socially

impaired, but the claimant is described

elsewhere in the record as being pleasant,

cheerful, having a normal mood and attitude

and calm, to name a few. Dr. Wood’s opinions

appear to be based primarily on the claimant’s

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subjective complaints. Additionally, with the

exception of one note about the claimant

exhibiting inappropriate behavior, there is no

indication in the record that the claimant was

not cooperative or socially appropriate with

her treating sources.

PageID 68 (citations to record omitted). Instead, the

administrative law judge relied on and gave “significant weight” to

the opinions of the state agency psychologists the consultative

examiner, Mr. Loomis, finding that those opinions were consistent

with and well supported by the evidence of the record as a whole. 

PageID 67-68. The administrative law judge found that plaintiff’s

testimony and subjective complaints of disabling mental impairments

were not fully credible:

The claimant has not required any inpatient

hospitalization or emergency room care for

mental complaints. Further, while the

claimant endorsed fighting with people and

beating someone up, the record is devoid of

any objective documentation of the same, and

she has never been convicted of an assault or

other criminal charge. Further, quite

inconsistent with her allegations at the

hearing, in June 2009 the claimant told a

treating physician that she is disabled

because of COPD and diabetes, and did not

mention her mental condition as a contributing

cause to her disability. Moreover, in July

2009, the claimant denied any major problems

to her social worker.

PageID 69 (citations to record omitted).

Relying on the vocational expert’s testimony, the

administrative law judge found that plaintiff was capable of

performing some of her past relevant work despite her impairments. 

PageID 72. Accordingly, the administrative law judge concluded that

plaintiff is not disabled within the meaning of the Social Security

Act at any time from her alleged onset date of December 20, 2005

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through March 31, 2009, i.e., the date she was last insured. PageID

73. 

V.

DISCUSSION

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the

findings of the administrative law judge are supported by

substantial evidence and employed the proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971). Substantial evidence is

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. See Buxton v. Halter, 246 F.3d

762, 772 (6th Cir. 2001); Kirk v. Secretary of Health & Human

Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try

the case de novo, nor does it resolve conflicts in the evidence or

questions of credibility. See Brainard v. Secretary of Health &

Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler,

745 F.2d 383, 387 (6th Cir. 1984).

In determining the existence of substantial evidence,

this Court must examine the administrative record as a whole. Kirk,

667 F.2d at 536. If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would

decide the matter differently, see Kinsella v. Schweiker, 708 F.2d

1058, 1059 (6th Cir. 1983), and even if substantial evidence also

supports the opposite conclusion. Longworth v. Comm’r Soc. Sec.,

402 F.3d 591, 595 (6th Cir. 2005).

In her Statement of Errors, plaintiff contends that the

administrative law judge erred in rejecting the opinions of 

plaintiff’s treating psychiatrist, Dr. Wood. Doc. No. 15. 

Plaintiff also contends that the administrative law judge’s

adoption of the opinions of the non-examining state agency

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psychologists, and rejection of those of Dr. Wood violated SSR 96-

6p. Id.

As a general rule, an administrative law judge must give

greater deference to the opinions of treating physicians than to

the opinions of non-treating physicians because the former are

“‘most able to provide a detailed, longitudinal picture of [the

claimant’s] medical impairment(s) and may bring a unique

perspective to the medical evidence that cannot be obtained from

the objective medical findings alone or from reports of individual

examinations, such as consultative examinations or brief

hospitalizations.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,

406 (6th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)). Thus, an

administrative law judge must give controlling weight to a treating

source if she finds the opinion well-supported by medically

acceptable data and not inconsistent with other substantial

evidence in the record. Wilson v. Comm’r of Soc. Sec., 378 F.3d

541, 544 (6th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)). If,

on the other hand, the administrative law judge concludes that the

treating physician’s opinion is not entitled to controlling weight,

the administrative law judge must nevertheless apply the factors

listed in 20 C.F.R. § 404.1527(d)(2) – i.e., length of treatment

relationship and the frequency of examination, the nature and

extent of the treatment relationship, the supportability of the

opinion, the consistency of the opinion with the record as a whole

and the specialization of the treating source – in determining what

weight to give the opinion. Hensley v. Astrue, 573 F.3d 263, 266-67

(6th Cir. 2009). In weighing these factors, there is a presumption

that the treating physician’s opinion is entitled to “great

deference.” See id. See also SSR 96-2p, 1996 SSR LEXIS 9, at *9-10

(“In many cases, a treating source’s medical opinion will be

entitled to the greatest weight and should be adopted, even if it

does not meet the test for controlling weight”).

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Closely associated with the treating physician rule is

the “good reasons rule,” which “require[s] the administrative law

judge to ‘always give good reasons in [the] notice of determination

or decision for the weight’ given to the claimant’s treating

source’s opinion.” Blakley, 581 F.3d at 406 (citing 20 C.F.R. §

404.1527(d)(2)). “Those good reasons must be ‘supported by the

evidence in the case record, and must be sufficiently specific to

make clear to any subsequent reviewers the weight the adjudicator

gave to the treating source’s medical opinion and the reasons for

that weight.’” Id. at 406-07 (citing SSR 96-2p, 1996 SSR LEXIS 9,

at *12).

In the case presently before the Court, the

administrative law judge correctly set forth the standards

applicable to the evaluation of a treating physician’s opinion,

PageID 67, but found that Dr. Wood’s opinions were “inconsistent

with and unsupported by other evidence in the record.” PageID 68;

see 20 C.F.R. 404.1527(d)(2). The administrative law judge went on

to consider the weight to be accorded to Dr. Wood’s opinion, and

concluded that those opinions were entitled to “little weight.” 

PageID 68. By way of example, the administrative law judge noted

that, although Dr. Wood opined that plaintiff is markedly socially

impaired, “claimant is described elsewhere in the record as being

pleasant, cheerful, having a normal mood and attitude and calm . .

. .” Id. “[W]ith the exception of one note about the claimant

exhibiting inappropriate behavior, there is no indication in the

record that the claimant was not cooperative or socially

appropriate with her treating sources.” Id. The administrative

law judge also found that Dr. Wood’s opinions were based “primarily

on the clamant’s subjective complaints,” id., which, as noted, the

administrative law judge found were not fully credible.

It is true that Ms. McMath, a license social worker, also

characterized plaintiff’s mental impairments as work preclusive,

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PageID 351-52, but, as the administrative law judge noted, that

opinion was entirely inconsistent with Ms. McMath’s GAF score of 65,

PageID 350, which is indicative of only mild dysfunction.

In short, the Court concludes that the decision of the

administrative law judge applied all appropriate standards and

enjoys substantial support in the record.

It is therefore RECOMMENDED that the decision of the

Commissioner be AFFIRMED and that this action be DISMISSED.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14)

days, file and serve on all parties objections to the Report and

Recommendation, 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); F.R. Civ. P.

72(b). Response to objections must be filed within fourteen (14)

days after being served with a copy thereof. F.R. Civ. P. 72(b).

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 of the right

to appeal the decision of the District Court adopting the Report and

Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v.

Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th

Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King

Norah McCann King

United States Magistrate Judge

July 5, 2012

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