IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Elisa Gay Landenberger, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0091

Commissioner of Social : JUDGE MICHAEL H. WATSON

 Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Elisa Gay Landenberger, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her application for disability insurance benefits. That

application was filed on June 29, 2009, and alleged that

plaintiff became disabled on March 14, 2008.

After initial administrative denials of her application,

plaintiff was given a vidoeconference hearing before an

Administrative Law Judge on June 6, 2011. In a decision dated

July 6, 2011, the ALJ denied benefits. That became the

Commissioner’s final decision on January 3, 2012, when the

Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on April 23, 2012. Plaintiff filed her

statement of specific errors on June 5, 2012. The Commissioner

filed a response on September 6, 2012. No reply brief has been

filed, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 43 years old at the time of the

administrative hearing and who has a high school education plus

one year of college, testified as follows. Her testimony appears

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at pages 35-67 of the administrative record.

Plaintiff last worked as a receptionist, a job which

required both sitting and standing or walking, and lifting up to

50 pounds. She testified that she was fired because she could no

longer do what the job required. She had previously worked as a

scheduler for a care center and as a patient recruiter. Both of

those jobs were sedentary. Finally, she had been employed as a

teacher at the pre-kindergarten and elementary school levels.

She elaborated on the difficulty she had at her last job,

stating that she became unable to remember how to work the

computer system or to put files in alphabetical order. Her

physical health had also deteriorated. At the time of the

hearing, she was using a walker due to pain in her hips and

knees. At home, she uses a cane. She could not sit for more

than fifteen minutes at a time and could stand for about the same

duration. She could walk a block using either a cane or walker.

Plaintiff was asked if she could do a job which would allow

her to alternate between sitting, standing and walking. She did

not believe she could do that for eight hours, or even for four. 

She cannot lift a gallon of milk and could not stoop or bend to

pick a half gallon of milk off the floor. Walking down a flight

of steps was painful. 

Plaintiff testified that she also suffers from fibromyalgia. 

It is always painful, but sometimes the pain, even from being

touched, is intense. It primarily affected her hips, feet, arms

and hands. She testified to having no energy and napping during

the day. She was also experiencing problems with short-term

memory, had constant headaches, and was both depressed and

anxious. At least once a month her depression will cause her to

stay in her room for a week, sleeping up to 20 hours per day. If

she does not take her medication, she is very irritable and

thinks about harming herself or others. Her sleep is interrupted

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by pain. She lives with her parents and 15-year-old son, but is

unable to care for her younger child. 

Plaintiff said she did no housework. She occasionally

shopped for groceries with her mother. Her last hospitalization

was in 2010. Her treating doctor was pleased with her response

to medication but did not believe she could hold a job. She

attributed her inability to work to a combination of her physical

and mental issues. Her medications caused severe drowsiness and

confusion. 

III. The Medical Records

The medical records in this case are found beginning on page

202 of the administrative record. The pertinent records - those

relating to her two assignments of error, and particularly to her

claim that the opinions of her treating sources, Drs. Malas and

Spare were not dealt with properly - can be summarized as

follows. 

The earliest records relate to her treatment by Dr.

Hackshaw, a rheumatologist. In 2006, he reported her pain as

“very fatiguing and limiting” and noted that she showed

tenderness in 18 of 18 tender point sites. He began her on 300

mg. of Neurontin but suspected that the dosage would have to

increase. It did so, and Dr. Hackshaw also prescribed Cymbalta

and trazodone, all for treatment of her fibromyalgia. (Tr. 206-

08). By 2008, she had been switched from Neurontin to Lyrica,

which had significantly decreased her pain, and had also had

steroid injections for her hip symptoms. However, she was

reporting memory loss and inability to concentrate. (Tr. 248). 

That was at about the same time as she stopped working. About a

month later, Dr. Hackshaw saw her and recommended that she begin

an exercise routine. (Tr. 348). Dr. Everhart, who had treated

plaintiff from July, 2008 to September, 2009, reported on

September 16, 2009 that she suffered from alcohol withdrawal,

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fibromyalgia, anxiety and depression, that her status both

physically and emotionally had deteriorated since July 1, 2009,

and that she was significantly limited due to chronic pain,

anxiety, depression, and alcohol withdrawal. (Tr. 370-72). Dr.

Lake, also a rheumatologist, saw her a month later and noted

diagnoses of fibromyalgia, bilateral trochanteric bursitis, right

subdeltoid bursitis, osteoarthritis, vitamin D deficiency, B12

deficiency, hypothyroidism, and a history of depression and

anxiety. Her fibromyalgia was described as “uncontrolled despite

multiple medications.” Due to pain, she was unable to carry

through on a recommendation that she begin walking. Her Lyrica

dosage was increased at that time. (Tr. 423-25). Apparently,

Dr. Lake did not see plaintiff between March of 2010 and

September of 2010; when seen on that latter date, she reported

two hospitalizations for mental issues, a change in medications,

and the fact that she was doing somewhat better. (Tr. 674-75). 

Dr. Reece, a psychologist, evaluated plaintiff on September

23, 2009 at the request of the Bureau of Disability

Determination. At that time, she was receiving outpatient

counseling at Dublin Counseling Center. She had stopped drinking

alcohol only two weeks before the interview. Plaintiff told Dr.

Reece that she had problems at her most recent job due to failing

at procedures previously learned. Her mood was mildly to

moderately anxious and dysphoric, with some weeping. She

reported both daily pain and daily sadness, and lacked energy. 

Her short-term memory was poor but her concentration was

satisfactory. Dr. Reece diagnosed a depressive disorder and an

anxiety disorder and rated her current GAF at 55. He thought

that she was moderately impaired in her ability to relate to

others and to withstand normal work pressure. (Tr. 414-17). Dr.

Collins, a state agency psychologist, reviewed this report and

other reports on January 4, 2010, indicating that she was

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evaluating plaintiff’s residual functional capacity from March

14, 2008 to that date. Dr. Collins concluded that plaintiff

suffered from, among others, an affective disorder, an anxiety

disorder, and a personality disorder, and that she had moderate

limitations in the areas of maintaining social functioning and

maintaining concentration, persistence and pace, and that the

same moderate limitations applied to eleven separate areas of

functioning, including completing a workday and work week without

interruption from psychologically-based symptoms. Dr. Collins

thought that plaintiff would benefit from a work environment that

allowed her to work “somewhat independently w/o many changes in

routine.” (Tr. 460-76). 

Plaintiff was admitted to Riverside Hospital on May 13, 2010

with severe psychological symptoms of increased depression and

suicidality. At that time, she was functionally incapacitated. 

She stayed in the hospital for seven days and was discharged with

diagnoses of major depressive disorder, recurrent, anxiety

disorder with obsessive-compulsive and post-traumatic stress

disorder features, and a history of substance abuse. By the time

of discharge, her GAF was rated at 60. A number of new

medications, including Seroquel, were prescribed, and she was

referred to intensive outpatient treatment. (Tr. 700-02). She

completed that program on June 18, 2010, and on July 6, 2010, she

was again seen in the emergency room after reporting plans to

kill herself by taking drugs and alcohol. She stated that her

condition had deteriorated after the outpatient counseling ended. 

She was admitted to the hospital and treated by Dr. Spare, a

psychiatrist, at a variety of group sessions. Upon discharge ten

days later, she was diagnosed with bipolar disorder, which had

been treated with medication during her hospital stay. (Tr. 711-

12). Dr. Spare continued to see plaintiff after her discharge,

and his notes indicate that she continued to describe chronic

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pain, an inability to function on her own, depression, and an

inability to be around others. Her mood and symptoms fluctuated

over this time period as well and she reported side effects from

her medication. She also described problems with sleeplessness

and irritability. (Tr. 777-856). By March 21, 2011, she was

taking Abilify, Wellbutrin, seroquel, trileptal, trazodone,

lamotrigine, and Cymbalta. In May, 2011, Dr. Spare described her

as unemployable and thought she had marked or extreme limitations

in seven separate areas of functioning. (Tr. 864). 

Notes from throughout the period from 2009-2011 from the

Dublin Counseling Center show that plaintiff’s mood was

“depressed, overwhelmed” or “sad, angry” for the first several

months, but that it had improved by January of 2010. A month

later she was described as positive and engaged, but by March,

2010, she reported increases in pain and stress and was emotional

and tearful. Her mood continued to vary over the next several

months, months which included her two hospitalizations. (Tr.

607-73). On May 4, 2011, her counselor completed a form

indicating that plaintiff had marked or extreme limitations in a

number of areas of functioning and, like Dr. Spare, concluded

that she was not employable. (Tr. 857).

Finally, plaintiff received treatment for her fibromyalgia

and other physical disorders from OSU Internal Medicine at

Morehouse. She saw various physicians there from 2009 to 2011. 

Dr. Malas, one of those physicians, reported on May 19, 2011 that

she had a “complex medical history including sever functionally

limiting fibromyalgia and bipolar disease.” His testing showed

that she could “move all of her limbs against gravity but has no

ability to provide any strength resistance.” He noted that she

had been referred for a “complete gait, coordination and strength

exam” (the results of which do not appear to be in the record). 

Finally, as part of her history (but not in a way that would

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appear to his own assessment of the situation), his notes state

that plaintiff is unable to work even one hour in a day and

cannot lift or carry anything heavier than five pounds. (Tr.

859-63).

 IV. The Vocational Testimony

A vocational expert, Dr. Robinson, also testified at the

administrative hearing. His testimony begins at page 67 of the

record. He characterized plaintiff’s past work as a daycare

worker as light and semiskilled and as a receptionist as

sedentary and semiskilled, although plaintiff performed both of

these jobs at a higher exertional level. The personnel scheduler

job was also sedentary and semiskilled, as was her other clerical

job.

Dr. Robinson was asked some questions about a hypothetical

person who was limited to lifting twenty pounds occasionally and

ten pounds frequently. That person could sit for four hours at a

time for a total of eight hours per day and could also stand or

walk for a total of two hours at a time and for up to six hours

total. Additionally, the person could not climb ropes, ladders

or scaffolds and could climb ramps or stairs occasionally. 

Occasional stooping, kneeling, crouching, crawling and balancing

could also be performed. From a mental standpoint, the person

could perform only simple to moderately complex tasks with no

high stress, fast pace, or strict production quotas, and could

interact with others in the workplace only occasionally. 

According to Dr. Robinson, a person with those restrictions,

could not perform any of plaintiff’s past work. That person

could, however, do other unskilled light jobs such as garment

sorter, housekeeper/cleaner, or laundry folder. If that person

was limited as described by plaintiff in her testimony, however,

or as described by Dr. Spare, no work would be available. 

V. The Administrative Law Judge’s Decision

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The Administrative Law Judge’s decision appears at pages 8

through 17 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements for disability benefits through

December 31, 2013. Next, plaintiff had not engaged in

substantial gainful activity from her alleged onset date of March

14, 2008, through the date of the decision. As far as

plaintiff’s impairments are concerned, the ALJ found that

plaintiff had severe impairments including fibromyalgia, obesity,

degenerative disc disease of the lumbar spine, bilateral

trochanter bursitis, vitamin deficiency, hypothyroidism,

depression, anxiety, borderline personality disorder, bipolar

disorder, and a history of drug and alcohol abuse. The ALJ also

found that these impairments did not, at any time, meet or equal

the requirements of any section of the Listing of Impairments (20

C.F.R. Part 404, Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform a limited range of light work, essentially as

described to the vocational expert, along with the mental

limitations which were also set out in the hypothetical question

posed to him. Adopting the vocational expert’s testimony, the

ALJ found that plaintiff could not do any of her past work but

could perform unskilled light jobs such as garment sorter,

cleaner or laundry folder. Because these jobs exist in

significant numbers in the local and national economies, the ALJ

concluded that plaintiff was not entitled to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises two

issues. She argues (1) that the ALJ improperly discounted the

opinion of her treating physician, Dr. Spare, and also the

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opinion of Dr. Malas; and (2) that the ALJ did not properly

evaluate her credibility. The Court generally reviews the

administrative decision of a Social Security ALJ under this legal

standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

The primary issue here is the ALJ’s treatment of Dr. Spare’s

opinion which, if accepted, would support a finding of

disability. The ALJ’s entire rationale for rejecting his opinion

is as follows: “These limitations [in Exhibit 31F, Dr. Spare’s

report of May, 2011] are inconsistent with the treatment notes

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and activity levels as described above. Specifically the

claimant noted improvements in her depression and anxiety and

further noted she was getting out more. While Dr. Spare’s

treatment notes are considered, his opinion is given limited

weight.” (Tr. 15). The ALJ then went on to give significant

weight to the opinions of Dr. Reece and the state agency

reviewers, noting that they were “generally consistent with the

record as a whole ....” Id. The notes from Dublin Counseling

Center were mentioned only once, and only for the proposition

that plaintiff’s mental condition was “improving” in January,

2010 (Tr. 14). The opinion of her counselor was not mentioned at

all.

It has long been the law in social security disability cases

that a treating physician's opinion is entitled to weight

substantially greater than that of a nonexamining medical

advisor or a physician who saw plaintiff only once. 20 C.F.R.

§404.1527(d); see also Lashley v. Secretary of H.H.S., 708 F.2d

1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,

1113 (S.D. Ohio 1981). However, in evaluating a treating

physician’s opinion, the Commissioner may consider the extent to

which that physician’s own objective findings support or

contradict that opinion. Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.

1990). The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations

performed by non-treating medical sources, and may consider the

claimant’s activities of daily living. Cutlip v. Secretary of

HHS, 25 F.3d 284 (6th Cir. 1994). No matter how the issue of the

weight to be given to a treating physician’s opinion is finally

resolved, the ALJ is required to provide a reasoned explanation

so that both the claimant and a reviewing Court can determine why

the opinion was rejected (if it was) and whether the ALJ

considered only appropriate factors in making that decision. 

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Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.

2004).

Here, the Commissioner attempts to justify the ALJ’s

decision to give little weight to Dr. Spare’s opinion based on

two factors - its alleged inconsistency with his own treatment

notes, and the general consistency of the contrary reports of the

state agency reviewers with the “record as a whole.” Doc. 19, at

10. The Commissioner recognizes that the state agency reviewers

did not have the benefit of reviewing records relating to

plaintiff’s two hospitalizations for psychological issues or any

of Dr. Spare’s notes, since he did not begin to treat her until

those hospitalizations occurred. Generally, a review done by a

state agency physician that is not based on the entire record

must be viewed with some caution. See, e.g., Blakley v. Comm’r

of Social Security, 581 F.3d 399 (6th cir. 2009). However, the

Commissioner argues that none of those records would have been

significant to the reviewers because the 2010 hospitalizations

were both triggered by plaintiff’s decision to separate from her

husband.

The Court concludes that these rationales are insufficient. 

First, the hospital records and Dr. Spare’s treatment notes were

not the only portions of the record not reviewed by the state

agency psychologists. They also did not have the benefit of a

large volume of the counseling records from Dublin Counseling

Center. Those records, the records from Marion General Hospital,

and Dr. Spare’s records constitute the bulk of the evidence about

plaintiff’s mental condition. Under these circumstances, the

state agency reviewers’ opinions simply do not reflect the type

of record review which can trump the opinion of a treating

source.

Further, in order to have found that these various records -

including the Dublin Counseling Center records, to which the ALJ

referred only once - were generally consistent with the

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reviewers’ opinions, and generally inconsistent with Dr. Spare’s

conclusions - the ALJ must have engaged in a very selective

review of the records. As the Court’s summary of these records

reveals, they do not show a general pattern of improvement. 

Rather, fairly read, they show wide swings in plaintiff’s mood,

affect, and symptoms, as well as her response to medications and

the side effects they caused. The ALJ did not cite any of the

evidence showing changes or deterioration in plaintiff’s

condition, preferring to rely exclusively on records which showed

temporary improvements in her outlook and activity level. This,

too, is impermissible. See, e.g, Schultz v. Comm’r of Social

Security, 2012 WL 553565 (E.D. Mich. Jan. 31, 2012), *7 (“‘cherry

picking’ or disregarding favorable statements from a record that

as a whole, demonstrate the need for long-term mental health

intervention, amounts to a distortion of the record”), adopted

and affirmed 2012 WL 553944 (E.D. Mich. 2012). The same is true

for the characterizations of plaintiff’s emergency

hospitalizations as relating exclusively to the break-up of her

marriage. The records demonstrate that various stressors,

including her chronic pain, contributed to these hospitalizations

(see, e.g., Tr. 700), and that these factors were not all

transient or limited in duration. For all of these reasons,

including the fact that the Dublin Counseling Center’s notes and

the opinion of plaintiff’s counselor (even though she is not

considered a treating source for purposes of the “treating

physician” rule) do not appear to have been considered at all -

in violation of 20 C.F.R. §404.1513(d)(1) - a remand is

necessary.

This decision largely moots plaintiff’s other arguments. 

The Court does note, however, that, as set forth in the summary

of the evidence, Dr. Malas’ office note does not appear to

constitute his actual opinion as to plaintiff’s physical

limitations, and the ALJ was entitled to give the content of that

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note little or no weight. As to plaintiff’s credibility,

however, the Court, while agreeing that plaintiff’s testimony as

to a total level of physical disability, may be inconsistent with

the record as a whole, again views the ALJ’s decision as

reflecting a very selective reading of the record. For example,

as plaintiff notes in her statement of errors, the ALJ cited her

notes of chiropractic treatment only when they showed that she

was engaged in some level of activity, apparently choosing to

ignore the balance of the notes which reflected the contrary. 

The same can be said of the review of Dr. Spare’s notes and,

again, there was no mention of the Dublin Counseling Center notes

when plaintiff’s credibility was being discussed by the ALJ. In

this determination, too, the ALJ should perform a complete review

of the record before coming to a final conclusion as to the

credibility of plaintiff’s testimony about the nature and extent

of her symptoms.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be sustained to the extent that

the case be remanded to the Commissioner of Social Security for

further proceedings pursuant to 42 U.S.C. §405(g), sentence four.

VIII. 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

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or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that 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 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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