[Cite as State ex rel. Showman v. State Teachers Retirement Sys. of Ohio, 2017-Ohio-2768.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Rebecca Showman,                     :

                 Relator,                              :

v.                                                     :                         No. 16AP-202

State Teachers Retirement System of Ohio, :                               (REGULAR CALENDAR)

                 Respondent.                           :



                                           D E C I S I O N

                                       Rendered on May 11, 2017


                 On brief: The Bainbridge Firm, and Carol L. Herdman, for
                 relator.

                 On brief: Michael DeWine, Attorney General, John J.
                 Danish, and Mary Therese J. Bridge, for respondent.

                                            IN MANDAMUS

LUPER SCHUSTER, J.
        {¶ 1} Relator Rebecca Showman has filed an original action requesting this court
issue a writ of mandamus ordering respondent State Teachers Retirement System of Ohio
to vacate its February 18, 2016 decision denying relator's application for disability benefits
and to grant the application.
        {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
court deny relator's request for a writ of mandamus. No objections have been filed to that
decision.
No. 16AP-202                                                                             2

      {¶ 3} Finding no error of law or other defect on the face of the magistrate's
decision, this court adopts the magistrate's decision as our own, including the findings of
fact and conclusions of law. In accordance with the magistrate's decision, we deny
relator's requested writ of mandamus.
                                                               Writ of mandamus denied.

                           KLATT and BRUNNER, JJ., concur.
No. 16AP-202                                                                              3

                                        APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel. Rebecca Showman,            :

              Relator,                        :

v.                                            :                    No. 16AP-202

State Teachers Retirement System of Ohio, :                     (REGULAR CALENDAR)

              Respondent.                     :


                         MAGISTRATE'S DECISION

                              Rendered on January 31, 2017


              The Bainbridge Firm, and Carol L. Herdman, for relator.

              Michael DeWine, Attorney General, John J. Danish, and
              Mary Therese J. Bridge, for respondent.


                                     IN MANDAMUS

       {¶ 4} In this original action, relator, Rebecca Showman, requests a writ of
mandamus ordering respondent, State Teachers Retirement System of Ohio ("STRS"),
to vacate its February 18, 2016 decision that denies relator's application for a disability
benefit, and to enter a decision that grants the application.
Findings of Fact:
       {¶ 5} 1. On September 3, 2014, relator completed an application for a disability
benefit on a form provided by STRS.         On the form, relator indicated that she is
employed by the North Fork Local School District as a fifth grade teacher.
       {¶ 6} Section 4 of the form asks the applicant to list specific diagnoses or
conditions that are the cause of disability and that will incapacitate the applicant for the
performance of the applicant's most recent STRS position for at least 12 months from
No. 16AP-202                                                                            4

the date the application is received. In response, relator listed three conditions: (1)
clinical depression, (2) panic disorder/anxiety, and (3) social phobia.
       {¶ 7} Section 5 of the form asks the applicant to identify the attending physician.
Relator identified Dr. Donald DeShetler.
       {¶ 8} 2. On August 31, 2014, Dr. DeShetler completed an STRS form captioned
"Attending Physician's Report." Dr. DeShetler indicated that he specializes in "Family
Practice."
       {¶ 9} The form asks the attending physician to certify whether the applicant is
incapacitated for the performance of duty and whether disability is considered
permanent.     In the space provided, Dr. DeShetler wrote that disability "may be"
considered permanent.
       {¶ 10} 3. By letter dated September 10, 2014, STRS informed relator:
              We received an Attending Physician's Report from Dr.
              Donald DeShetler, recommending that you do not meet
              STRS Ohio's definition of disability. Therefore, your
              application for benefits cannot be processed.

              ***

              In order to continue processing your current disability
              application, we will need an Attending Physician's Report,
              completed by a psychiatrist (M.D. or D.O.) within 30 days of
              this letter.

       {¶ 11} 4. On October 6, 2014, psychiatrist Sahaja Reddy, M.D., completed an
STRS attending physicians report. In response to the forms query, Dr. Reddy certified
that relator is incapacitated for the performance of duty and that the disability is
expected to last 12 or more months. Dr. Reddy's report was received by STRS on
October 8, 2014.
       {¶ 12} Attached to Dr. Reddy's report is a three-page September 15, 2014 report
of certified nurse practitioner ("CNP") Laura Davis regarding relator's treatment at
Dublin Springs. CNP Davis' report states:
              The patient had first presented to the Intensive Outpatient
              Program for Mental Health on September 10, 2014, with
              symptoms of high anxiety and panic with agoraphobia as
              well as major depressive disorder symptoms. She was
              evaluated by myself on September 10th and I had
No. 16AP-202                                                                  5

           recommended to her at the time to be reassessed for the
           Partial Hospitalization Program. She reports today that she
           was reluctant to do so, but her husband had told her to
           follow whatever guidelines the staff here had set out for her,
           and so she did present for reassessment to the Partial
           Hospitalization Program. The patient reports that she has
           been depressed and anxious for many years. However, her
           anxiety has turned to panic in the last couple years due to
           changes instituted at her job as an elementary school
           teacher. She is very unhappy about new state testing
           requirements and the reports she has to prepared [sic] as
           well as the evaluation criteria she is submitted to. This
           apparently has caused her a great deal of distress and makes
           her feel as though it is impossible for her to work. * * * On
           her admission to the Intensive Outpatient Program, I took a
           great deal of time with her to explain that she needed more
           medication. She had been seeing her primary care physician
           who had prescribed her 0.5 mg of Klonopin 2 times daily and
           nothing else. * * * She did agree to be prescribed Remeron
           and initially I had wanted to start her on 15 mg. Her note
           from the Intensive Outpatient Program states 15 mg.
           However, at the last minute, the patient had changed her
           mind and wanted to try only 7.5 mg. She reports her sleep
           was great the first night as it had been very disordered prior
           to taking the Remeron, but she now reports she is back to
           frequent awakenings about 6 times a night, though she is
           able to go back to sleep fairly quickly. She reports no suicidal
           ideation today and last experienced suicidal ideation on
           Friday after seeing me for assessment for the Intensive
           Outpatient Program. She reports the impetus for her suicidal
           ideation is worrying about the financial burden she is placing
           on her husband if she is to go through with the disability.
           The patient seems a good deal calmer today but reports her
           anxiety is still at an 8/10, which is down from 10/10 last
           Friday. She reports her depression is a 7/10.

           ***

           MENTAL STATUS EXAMINATION

           Mood is depressed and anxious. The patient is not tearful
           today as she had been last Friday. Thought content is
           without suicidal ideation, but last experienced on September
           10th. She denies any history of homicidal ideation or
           psychotic symptoms. Thought processes remain hopeless,
           helpless, and infused with anxiety. The patient is also
           perseverated [sic] on whether or not to leave her job as a
No. 16AP-202                                                                        6

            teacher. Recent and remote memory are impaired with
            increase in her mood symptoms. Attention and
            concentration are likewise impaired with an increase in her
            mood symptoms. Associations are intact. General fund of
            knowledge is average to above average. Judgment is fair at
            best. Insight is rather poor.

            DIAGNOSES:
            AXIS I:
            1. Major depressive disorder, recurrent, severe, without
            psychotic features.
            2. Generalized anxiety disorder.
            3. Panic disorder with agoraphobia.

            AXIS II: Deferred.
            AXIS III:
            1. Hypertension.
            2. Premature ventricular contractions with anxiety and
            stress.
            AXIS IV: Severe occupational stress.
            AXIS V: Global Assessment of Functioning is 39.

            ***

            TREATMENT AND DISCHARGE PLAN NEEDS
            The patient is admitted to Dublin Springs Hospital Partial
            Hospitalization Program where she will take part in all group
            activities and therapy at the direction of the mental health
            group therapist. The patient's Remeron will be increased to
            15 mg daily and possibly 30 mg daily if her symptoms do not
            improve. I will consider the addition of an antidepressant if
            her anxiety abates further and she is still experiencing high
            depressive symptoms or a return of her suicidal ideation.

      {¶ 13} 5. By letter dated October 14, 2014, Earl N. Metz, M.D., the chair of the
Medical Review Board ("MRB"), informed relator:
            Acting on behalf of the Medical Review Board, I have advised
            a period of psychiatric treatment for [six] months prior to
            the determination of disability. This is based on the current
            information in the medical records which indicate disability
            for psychiatric reasons. I have determined that medical
            treatment offers a reasonable expectation of correction or
            rehabilitation of the disabling condition to the extent that the
            applicant could be expected to be capable of performing
            teaching duties within a reasonable time, but not to exceed
No. 16AP-202                                                                      7

             six months as allowed in Section 3307.62 of the Ohio
             Revised Code.

      {¶ 14} 6. By letter dated October 14, 2014, STRS informed relator:
             After reviewing your attending physician reports, the
             Medical Review Board determined that you must secure
             psychiatric treatment for six months before further
             consideration of your application for disability benefits. The
             Retirement System cannot assume financial responsibility
             for such treatment. Following six months of treatment, you
             should request your doctor to furnish this office with a report
             regarding the treatment provided and progress you have
             made.

             ***

             Please inform us of the name and address of the psychiatrist
             you will be seeing for treatment.

             After receiving your doctor's report, we will arrange for
             examination. * * *

             The Ohio Administrative Code 3307:1-7-04 reserves the right
             to request this delay as a prerequisite toward determination
             of permanent disability. Failure to promptly obtain the
             treatment suggested above will seriously jeopardize any
             further consideration of your application.

      {¶ 15} 7. On December 16, 2014, treating psychiatrist Erin R. Roylance, D.O.,
who is employed by Behavioral Healthcare Partners of Central Ohio, Inc., wrote:
             Her diagnoses are:

             294.9 Cognitive Disorder NOS
             296.32 Major Depressive Disorder, Recurrent, Moderate
             300.02 Generalized Anxiety Disorder
             300.21 Panic Disorder With Agoraphobia

             She is on the following medications:

             Klonopin (clonazepam) (0.5 mg tablet) Take 1 tablet by
             mouth three times a day

             Remeron (mirtazapine) (15 mg tablet) Take 1 tablet by
             mouth at bedtime
No. 16AP-202                                                                        8

             Her ability to return to work is primarily limited by cognitive
             problems. She has had trouble with concentration and
             memory. She has difficulty remembering instructions on
             how to take medications, she has difficulty remembering
             what I have said about follow-up appointments. I told her
             repeatedly that she needed to see a therapist in addition to
             seeing me, but she called back at least twice because she was
             confused about that. In addition, she continues to report
             moderate depression and anxiety.

             She is taking a benzodiazepine which can worsen memory. I
             reduced her dose of Klonopin from 1 mg BID to 0.5 mg TID
             today. I plan to further reduce Klonopin on a monthly basis
             until she is off. My plan is to get her off of Klonopin and then
             consider neuropsych testing if warranted at that time.

             I suspect that she has an underlying cognitive disorder that
             caused her to lose her ability to function as a teacher. As she
             became more aware of her difficulty, I believe that her
             anxiety and depression worsened her cognitive function.
             Most adults are able to function well even on high doses of
             Klonopin. Currently, I believe that she is completely unable
             to return to work. I am not confident that she will be able to
             return to teaching full time.

      {¶ 16} 8. By letter dated December 24, 2014, STRS informed relator:
             You have completed the requested delay for treatment. State
             Teachers Retirement System will continue to process your
             disability application. * * *

             Your application included Attending Physician's Reports
             from Laura Davis, N.P. and Deshetler and Reddy.
             Examinations for determining eligibility for disability
             benefits will be assigned by the Medical Review Board only
             for conditions specified by you on your application and
             reported as permanently disabling by your physician(s). Your
             application and attending physician(s) provided support for
             the following conditions, depression and anxiety, to be
             processed.

      {¶ 17} 9. On January 5, 2015, at the request of STRS, relator was examined by
psychiatrist Marjorie C. Gallagher, M.D. In her ten-page narrative report, received by
STRS on January 13, 2015, Dr. Gallagher states:
             MENTAL STATUS EXAMINATION: Ms. Showman is a
             casually and neatly dressed, middle-aged woman, who
No. 16AP-202                                                                  9

           appeared younger than her stated age. She was superficially
           cooperative. Even though she denied that she was irritable or
           angry, she was irritated and defensive at times about the
           questions she was being asked. Her mood was mildly
           anxious. She teared a few times. She indicated that she was
           starting to have a panic attack that only lasted a few seconds.
           It did not prevent her from talking. There was no evidence of
           any incapacitating anxiety or depression.

           Ms. Showman was oriented times three. Her memory,
           recent, remote, and immediate, was intact. There was no
           evidence of any concentration difficulties. She performed
           superiorly on testing for cognitive impairment or dementia.
           She was able to remember three out of three items after five
           minutes and fifteen minutes in a different order, which is
           more difficult to do. She spelled WORLD backwards. She
           was able to repeat five digits forwards and four backwards
           which is within normal limits. She performed serial sevens
           quickly and correctly. She was able to list five out of five
           rivers in addition to the St. Lawrence Seaway and five out of
           the last five presidents with their first names. She was able to
           name Ford and Nixon as additional presidents. She did well
           with similarities and differences and abstractly interpreted
           two proverbs.

           Ms. Showman's thought processes were logical. She denied
           current auditory or visual hallucinations or homicidal
           ideation. She reports that she was hearing voices while on
           citalopram and sertraline. Ms. Showman reports that she
           first had suicidal ideation in 1989. She initially reported that
           she is not currently suicidal. She then claimed that she
           currently has fleeting suicidal thoughts, but not to the extent
           that she had in 2/14 and 3/14. She later claimed that she is
           praying that she does not act on the suicidal ideation. She
           then claimed that she has suicidal ideation with intent and
           then prays. She does not call anyone about the suicidal
           ideation. She then explained that she has the thought only
           for short periods if there is any stress or if there is a tiff
           between her mother and son because she cannot handle it.
           Ms. Showman denies that she has ever made a suicide
           attempt. No delusions were elicited. Reality assessment
           appeared good. Impulse control appeared adequate.

           DIAGNOSTIC IMPRESSION:

           Major Depressive Disorder, Recurrent, In Partial
           Remission
No. 16AP-202                                                               10

           Generalized Anxiety Disorder
           Panic Disorder Without Agoraphobia
           Personality Disorder, NOS
           Hypertension
           Osteoarthritis, Degenerative Knee Joint Disease
           S/P Left Total Knee Arthroscopy

           DISCUSSION: Ms. Showman reports that she has had
           anxiety with panic attacks the last three or four years. She
           had a major depressive episode in early 2014. She had had
           two previous episodes of depression that had responded to
           Paxil, a SSRI. Ms. Showman reports symptoms that suggest
           hypomania. Ms. Showman had had an improvement in her
           symptoms in late spring and throughout the summer so she
           returned to teaching in 8/14. Ms. Showman has only been in
           psychiatric treatment since 9/2014. According to Ms.
           Showman, she was doing worse after the partial
           hospitalization program and IOP at Dublin Springs.

           Ms. Showman has been stressed by the paperwork
           requirements in her job in the last few years. She lacks
           confidence, seeing herself as inadequate. She had had this
           symptom in 2005 that had improved with counseling. In
           addition, Ms. Showman's elderly mother became ill in 4/14
           and has required more care that Ms. Showman has been
           providing since that time. Ms. Showman reports that she was
           being told by two principals and fellow teachers that she was
           doing an excellent job.

           Ms. Showman has been in treatment with a psychiatrist since
           10/14 and has had an improvement in her symptoms. She
           not [sic] longer meets the diagnostic criteria for Major
           Depression Disorder. She has had anxiety and panic attacks
           for years. Her psychiatrist is appropriately tapering her off
           Klonopin. Ms. Showman is motivated to be a writer and is
           currently working toward that goal. She has multiple
           activities that she enjoys. It would be expected that Ms.
           Showman would have further improvement in her
           psychiatric symptoms over the next 9 or 10 months with
           continued treatment.

           Ms. Showman has an extensive list of activities. Any
           psychiatric symptoms she currently has are not severe
           enough to interfere with her ability to function. Given the
           improvement in Ms. Showman' s psychiatric symptoms with
           treatment and medication, her list of activities, superior
           performance on cognitive testing, and her mental status
No. 16AP-202                                                                          11

             during the clinical psychiatric evaluation, it is my opinion
             that Ms. Showman is not permanently or presumed to be
             permanently disabled based on psychiatric evaluation.

             RECOMMENDATION: Ms. Showman is not permanently
             or presumed to be permanently disabled based on
             psychiatric evaluation. Continued psychiatric treatment is
             recommended.

      {¶ 18} 10. On an STRS form captioned "Recommendation of Medical Examiner,"
Dr. Gallagher indicated by her mark that relator "IS NOT considered to be disabled from
his or her most recent job duties for 12 or more continuous months after the date of
application." (Emphasis sic.) Dr. Gallagher further indicated that "reasonable recovery"
can be anticipated within three to six months.
      {¶ 19} 11. Pursuant to Ohio Adm.Code 3307:1-7-01(I) three physicians were
chosen to be the MRB panel in relator's case. The MRB physicians are: (1) psychiatrist
Stephen F. Pariser, M.D., (2) psychiatrist Jeffrey C. Hutzler, M.D., and (3) Barry
Friedman, M.D.
      {¶ 20} 12. On January 19, 2015, Dr. Pariser wrote to Dr. Metz:
             According to Ms. Showman's application, she has struggled
             with Depression and Panic Attacks for the past several years.
             She did not respond well to several antidepressants
             prescribed by her family physician, Dr. Donald DeShetler.
             Ms. Showman reported that her anxiety, panic and
             depression have made it difficult for her to carry out her
             teaching responsibilities.

             ***

             I concur with Dr. Gallagher's professional option [sic] that
             this member is not currently disabled and that her condition
             is not work prohibitive. I also suggest that Ms. Showman's
             psychiatrist, as noted by Dr. Gallagher, investigate concerns
             about possible bipolar disorder.

      {¶ 21} 13. On January 20, 2015, Dr. Hutzler wrote to Dr. Metz:
             After her examination Dr. Gallagher recommended that Ms.
             Showman was not considered to be disabled from her most
             recent job duties for 12 or more continuous months after the
             date of application, anticipating reasonable recovery in 3 to 6
             months.
No. 16AP-202                                                                 12


             After reviewing these documents it is my
             recommendation that Rebecca Ruth Showman is not
             considered to be disabled from her most recent job
             duties for 12 or more continuous months after the
             date of application.

(Emphasis sic.)

      {¶ 22} 14. On January 29, 2015, Dr. Friedman wrote to Dr. Metz:
             Based on Ms. Showman's extensive activities it was Dr.
             Gallagher's opinion that her psychiatric symptoms at this
             time were not severe enough to interfere with her ability to
             function." [sic] She found no evidence of a cognitive
             disorder. It was Dr. Gallagher's opinion that Ms. Showman is
             not disabled on a psychiatric basis.

             Following my review of the available records and Dr.
             Gallagher's evaluation I concur with her opinion that Ms.
             Showman is not permanently disabled on a psychiatric basis
             with the recommendation that her application for a disability
             benefit be denied.

      {¶ 23} 15. On February 3, 2015, Dr. Metz wrote to the STRS board:
             The disability application of the above named member and
             the findings of the appointed examiner have been studied by
             the following Medical Review Board members, Dr. Stephen
             Pariser, Dr. Jeffrey Hutzler, and Dr. Barry Friedman. The
             Medical Review Board concurs with the opinion of the
             appointed examiner and recommends that disability benefits
             be denied.

      {¶ 24} 16. By letter dated February 20, 2015, relator was informed:
             This letter is to notify you that the STRS Ohio Retirement
             Board took official action at its meeting on February 19,
             2015, to deny your application for disability benefits.

             * * * You have the right to appeal the Retirement Board
             action under Section 3307.62 of the Revised Code and Rule
             3307:1-7-05 of the Administrative Code, provided written
             notice of appeal is received by STRS Ohio within 15 calendar
             days from your receipt of this letter. The request must be
             accompanied by a statement from you, your counsel or
             attending physician that an appeal will be based on
No. 16AP-202                                                                              13

              additional medical evidence contrary to the findings of the
              Medical Review Board.

       {¶ 25} 17. By letter dated March 2, 2015, relator's counsel initiated an
administrative appeal of the February 19, 2015 decision of the STRS retirement board.
       {¶ 26} 18. In support of her administrative appeal, relator submitted additional
evidence. Also, relator's counsel submitted a four-page brief in support.
       {¶ 27} 19. Under letter dated May 19, 2015, Dr. Metz submitted additional
material to Dr. Gallagher for her review. Dr. Metz's letter states:
              You examined the above member for STRS Ohio on
              January 5, 2015. Enclosed for your information is additional
              material. Please review the new information and let us have
              your comments.

              If the information is compelling enough to warrant a change
              in your initial evaluation, another certification form is
              enclosed. If a reexamination is needed, please let us know. If
              the enclosed material does not add substantially to the case,
              please advise in writing and your original decision will stand.

       {¶ 28} 20. On May 29, 2015, Dr. Gallagher issued a second report in response to
Dr. Metz's May 19, 2015 letter. In her two-page narrative report, Dr. Gallagher states:
              A letter from Ms. Showman dated 2/22/2015 was reviewed.
              As indicated in the mental status, Ms. Showman was
              defensive and irritated at times about providing information
              especially about her social functioning and activities. She had
              not revealed that she was in the process of receiving TMS
              treatment at Riverside. She had not revealed that she has
              had issues at home with her husband periodically abusing
              alcohol. She reported that she had never been abused. She
              did have intermittent anxiety as she verbalized once that she
              was starting to have a panic attack. She continued to talk in
              spite of being told that she could take a break and continued
              with the remainder of the evaluation without problems. I did
              not discount, "chuckle," make fun of, detract, or say "I do not
              understand why family docs prescribe Klonopin right away."
              I do understand why they do, as do psychiatrists at times.
              The truth is that Ms. Showman herself had indicated that her
              family physician should not have prescribed Klonopin as she
              explained that her present psychiatrist is in the process of
              tapering her off Klonopin.
No. 16AP-202                                                               14

           A letter from Mr. Randy Nielsen, Utica elementary principal,
           dated 5/12/2105 [sic] was reviewed. A letter from Mr. Scott
           Harley, superintendent, dated 5/12/2015 was reviewed. A
           letter from psychiatrist Erin Roylance, D.O. dated 5/7/2015
           was reviewed. A letter from Mary Brett, LISW-S dated
           5/1/2015 was reviewed. Medical records from Dr. Roylance
           dated 10/14/14 to 04/12/15 were reviewed. A letter from
           Douglas Lunsford dated 5/121/5 [sic] was reviewed.

           Ms. Showman has been in psychiatric treatment since
           10/14/14 and has had an improvement in her psychiatric
           symptoms as indicated by Dr. Roylance's progress notes. In a
           progress note on 4/2/2015, Dr. Roylance indicates that Ms.
           Showman is "more calm today than I have ever seen her."
           Ms. Showman was noted to have moderate depression, fair
           judgment and fair attention and concentration. Otherwise,
           no other symptoms of depression were noted. From the
           history Ms. Showman provided during the psychiatric
           evaluation, she is not depressed most of the day nearly every
           day and does not have anhedonia. Thus she did not meet the
           diagnostic criteria for Major Depressive Disorder.
           Psychiatrist Dr. Roylance is appropriately tapering Ms.
           Showman off Klonopin, which in the short run may increase
           symptoms from withdrawal. High dose Klonopin and the
           process of tapering off Klonopin may affect cognition. Dr.
           Roylance notes in his progress note of 3/11/2015 that
           Klonopin may be making Ms. Showman worse. From Dr.
           Roylance's progress note dated 2/10/2015, Ms. Showman
           run [sic] out of Klonopin and had been off Klonopin for 10
           days. She was taking Ativan that she had had [sic] from an
           unknown source in the interim. There was no evidence of
           any cognitive impairment during the psychiatric evaluation.
           Ms. Showman wrote a six page detailed letter that she would
           not have been able to do if she had significant cognitive
           impairment. In addition, as noted in the discussion, Ms.
           Showman has an extensive list of activities.

           After review of the additional information, there is no
           objective information provided that would change my
           original opinion that Ms. Showman is not permanently or
           presumed to be permanently disabled. It is my opinion that
           Ms. Showman's psychiatric symptoms would be expected to
           continue to improve over the next 3 months especially after
           being tapered off high dose Klonopin.
No. 16AP-202                                                                          15

       {¶ 29} 21. On June 11, 2015, Dr. Metz authored an internal memorandum,
stating:
                On February 19, 2015, the STRS Board voted to deny
                disability benefits.

                That decision was followed by receipt of extensive testimony
                from the member, her school principal, and the
                superintendent. Psychiatric testimony came from Dr.
                Roylance and included outpatient notes. In that material was
                reference to treatment of Ms. Showman at the Riverside
                Methodist Hospital using transcranial magnetic stimulation
                and the opinion of the treating physician that the member
                "bordered on psychosis." I can't find any direct reference to
                that treatment in the member's file.

                All of the new material noted above was forwarded to Dr.
                Gallagher for her comments. She responded in a letter to the
                MRB dated May 29, 2015. In that letter I believe that Dr.
                Gallagher answers effectively the rebuttal arguments. The
                recommendation of the MRB to deny disability benefits
                remains the same.

       {¶ 30} 22. On June 17, 2015, an appeal hearing was held before the Disability
Review Panel. Relator personally appeared with her counsel. Also, relator's principal,
Randy Nielsen appeared.
       {¶ 31} 23. On June 18, 2015, the STRS retirement board entered a decision to
affirm its prior decision of February 19, 2015.
       {¶ 32} 24. On August 23, 2015, relator filed a mandamus action in this court
which was assigned case number 15AP-800.
       {¶ 33} 25. On November 19, 2015, relator filed in this court a Civ.R. 41(A) notice
of dismissal.
       {¶ 34} 26. Apparently, relator's notice of dismissal was prompted by a settlement
agreement effective November 20, 2015 between relator and STRS. The settlement
agreement provides in part:
                STRS will reopen the appeal of Showman's disability benefits
                denial to the STRS Board for its consideration. That
                reopening will consist of providing all of the materials
                provided to STRS by Showman's counsel in correspondence
                dated May 12, 2015, to the examining physician Marjorie
                Gallagher, M.D. for review. Dr. Gallagher will have the
No. 16AP-202                                                                       16

             option of offering comments to affirm her initial evaluation,
             to change her initial evaluation, or to recommend
             reevaluation. The Chair of the Medical Review Board will
             review the materials submitted by counsel and any
             information or opinion offered by Dr. Gallagher and make a
             recommendation to the STRS Board. The STRS Board will
             then reopen the record of Showman's appeal hearing to
             accept the information and make a determination regarding
             the appeal of the denial of disability benefits. The Board's
             decision will be based upon the materials submitted by
             counsel, the information or opinion offered by Dr. Gallagher,
             the recommendation of the Medical Review Board, and the
             entirety of the record already before the Board. Showman
             and her counsel will be notified of the Board's decision.

      {¶ 35} 27. Pursuant to the settlement agreement, all of the medical evidence was
submitted to Dr. Gallagher for review.
      {¶ 36} 28. On December 18, 2015, Dr. Gallagher issued a two-page narrative
report addressed to Dr. Metz. This third report from Dr. Gallagher states:
             Records from Mary Brett, LISW-S, dated 11/14/14/ to
             3/27/15, were reviewed. Ms. Brett indicates in a progress
             note on 3/27/15 that Ms. Showman had fractured her hip
             after a fall. She further indicates that Ms. Showman
             continues to be depressed, but has improved. Ms. Showman
             did not have suicidal ideation. Ms. Brett indicates that Ms.
             Showman is struggling with self worth.

             Medical records for Dublin Springs from 09/10/14 to
             10/10/14 were reviewed. Ms. Showman had been admitted to
             the Intensive Outpatient Program where she was diagnosed
             with Major Depressive Disorder, Recurrent, Severe, without
             Psychotic Features, Generalized Anxiety Disorder, and Panic
             Disorder with Agoraphobia. It is noted on 10/3/14 that Ms.
             Showman's depression was improving and that she was less
             anxious.

             Medical records from Donald DeShelter from 2/19/14 to
             3/12/15 were reviewed. Dr. DeShelter indicates that Ms.
             Showman had started having depression on 8/12/14 and
             panic symptoms on 2/19/14. He notes on 10/6/14 that Ms.
             Showman is anxious with a normal mood and affect. He did
             not comment on any psychiatric issues in his note dated
             3/12/15.
No. 16AP-202                                                                    17

            Medical records from Dr. Megan Schabbing dated 7/31/14 to
            2/23/15 were reviewed. In a progress note dated 2/4/15, Dr.
            Schabbing indicates that Ms. Showman had had [sic] an
            improvement in motivation and energy, but had had [sic]
            minimal improvement in her severe recurrent major
            depression with transcranial magnetic stimulation (TMS)
            treatments. She indicates that Ms. Showman has a low
            mood, hopelessness, passive death wishes, anxious and
            tearful affect, and catastrophic thinking. Dr. Schabbing
            indicates that Ms. Showman's nihilistic thinking borders on
            psychosis. She recommended ECT. Dr. Schabbing also
            indicated in a letter dated 2/23/15, that Ms. Showman had
            completed a 36 treatment course of TMS and continued to
            have "severe catastrophic and nihilistic thinking bordering
            on psychosis" impairing her ability to function. Dr.
            Schabbing is not specific about what the thinking is or what
            possible psychotic symptoms Ms. Showman had reported.
            No one else has elicited any psychotic thinking. There is no
            diagnosis of any psychotic thinking in the medical records,
            including Dr. Schabbing's diagnosis of Major Depressive
            Disorder, Recurrent, Severe, 296.33 with no indication of
            psychosis.

            All of the additional medical information reviewed predated
            the medical information that had been reviewed on 5/29/15,
            that included Dr. Roylance's medical progress note dated
            4/2/15. There is no mention of cognitive impairment in the
            records or of psychosis.

            After review of the additional information submitted on
            appeal, there is no objective information provided that would
            change my original opinion regarding Ms. Showman's
            disability determination. It remains my opinion that Ms.
            Showman is not permanently or presumed to be
            permanently disabled.

      {¶ 37} 29. On January 6, 2016, Dr. Metz issued an internal memorandum to the
STRS retirement board. The memorandum states:
            At the June 2015 appeal, STRS Ohio received approximately
            65 pages of supportive appeal information on behalf of Ms.
            Showman's application for disability benefits. The
            information had been reviewed by Dr. Gallagher and
            members of the STRS Medical Review Board (MRB). An
            additional 260+ pages of material was also submitted. This
            information was reviewed by the Chair of the MRB and
            deemed not to include new or compelling, medical
No. 16AP-202                                                                          18

                information or information not available elsewhere in the
                record. Therefore, it was not reviewed by Dr. Gallagher or
                other members of the MRB. Dr. Gallagher was subsequently
                provided access to this information and reported her
                interpretation * * *. I have also reviewed all of this material
                again.

          {¶ 38} 30. On February 18, 2016, the STRS Disability Review Panel met to
reopen the matter to consider the additional documents.
          {¶ 39} 31. On February 18, 2016, based on the conclusions of the Disability
Review Panel, the STRS retirement board voted to affirm its prior decision and to deny
relator's application for disability benefits.
          {¶ 40} 32. On March 18, 2016, relator, Rebecca Showman, filed this mandamus
action.
Conclusions of Law:
          {¶ 41} The main issue is whether the reports of Dr. Gallagher provided the STRS
retirement board with some evidence to support its denial of relator's application for
disability benefits.
          {¶ 42} Finding that the reports of Dr. Gallagher provided the STRS retirement
board with some evidence to support its denial of the disability application, it is the
magistrate's decision that this court deny relator's request for a writ of mandamus, as
more fully explained below.
          {¶ 43} Ohio Adm.Code 3307:1-7-01 currently provides:

                (G) "Independent medical examiner" shall mean a
                competent physician neither involved in a treatment
                relationship with an applicant or recipient nor otherwise
                employed by the retirement system, who shall be designated
                by the chair of the medical review board to conduct an
                impartial examination.

                ***

                (I) "Medical review board" shall mean the group of
                independent physicians designated by the retirement board
                under the direction of a chair appointed by the retirement
                board to assist in the evaluation of medical examinations and
                information. The members of the medical review board may
                be asked in panels of three or more to review any application
No. 16AP-202                                                                              19

              and provide their conclusions as to whether an applicant will
              be mentally or physically incapacitated from the
              performance of duty for at least twelve months.

              (J) A disabling condition shall be "presumed to be
              permanent," if it physically or mentally incapacitates an
              applicant from the performance of regular duty for a period
              of at least twelve months from the date of the retirement
              system's receipt of the completed application.

       {¶ 44} Mandamus is the appropriate remedy when no statutory right of appeal is
available to correct an abuse of discretion by an administrative body such as the STRS
retirement board. State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d
327, 2002-Ohio-2219, ¶ 14.
       {¶ 45} The STRS retirement board abuses its discretion─and a clear right to
mandamus exists─if it enters an order that is not supported by some evidence. State ex
rel. Woodman v. Ohio Public Emps. Retirement Sys., 144 Ohio St.3d 367, 2015-Ohio-
3807, citing State ex rel. Nese v. State Teachers Retirement. Bd. of Ohio, 136 Ohio St.3d
103, 2013-Ohio-1777, ¶ 26.
       {¶ 46} STRS has no clear legal duty cognizable in mandamus to specify what
evidence it relied on and to explain the reasoning for its retirement board's decision.
Pipoly at ¶ 22.
       {¶ 47} In determining whether to grant an application for disability benefits, the
STRS retirement board is not required to give greater weight to the medical reports and
opinions of the applicant's treating physicians. Pipoly at ¶ 23-25. See State ex rel. Bell v.
Indus. Comm., 72 Ohio St.3d 575 (1995) (The Industrial Commission is not required to
give enhanced weight to the attending physician's report in determining whether to
award permanent total disability compensation).
       {¶ 48} Pursuant to Ohio Adm.Code 3307:1-7-01(G), Dr. Gallagher was chosen by
the chair (Dr. Metz) of the MRB to serve as the independent medical examiner for
relator's application.
       {¶ 49} Pursuant to Ohio Adm.Code 3301:1-7-01(I), Drs. Pariser, Hutzler, and
Friedman were chosen by Dr. Metz to serve as a panel of three from the MRB to assist in
the evaluation of medical examinations and information.
No. 16AP-202                                                                           20

      {¶ 50} It can be noted that, as the independent medical examiner, Dr. Gallagher
was required to actually examine relator. However, Drs. Pariser, Hutzler, and Friedman
did not examine relator and were not authorized to do so.
      {¶ 51} Dr. Gallagher issued three reports regarding relator's application.
Following a January 5, 2015 examination, Dr. Gallagher issued her first report in which
she opined that relator "is not permanently or presumed to be permanently disabled
based on psychiatric evaluation."
      {¶ 52} Following the February 19, 2015 denial of her application, relator
administratively appealed the decision and submitted additional evidence in support of
the appeal.
      {¶ 53} Relator's appeal prompted Dr. Metz to ask Dr. Gallagher to review
additional evidence submitted by relator and to issue a second report. On May 29, 2015,
Dr. Gallagher issued her second report in which she indicated that the opinion rendered
in her January 2015 report had not changed after reviewing the additional medical
evidence.
      {¶ 54} Following the June 18, 2015 decision of the STRS retirement board to
affirm its prior decision and, thus, deny the application, relator filed in this court a
mandamus action that was subsequently dismissed because the parties entered into a
settlement agreement.
      {¶ 55} Pursuant to the settlement agreement, all of the medical evidence
submitted by relator in support of her appeal was submitted to Dr. Gallagher for yet
another review. On December 18, 2015, Dr. Gallagher issued her third report in which
she indicated that her disability opinion contained in her first report had not changed
following her full review of all the medical evidence of record. There is no dispute here
that Dr. Gallagher was presented all the medical evidence of record and that she
reviewed that evidence.
      {¶ 56} Here, relator alleges that Dr. Gallagher's first and second reports fail to
provide the some evidence to support the final decision of the STRS retirement board
because Dr. Gallagher did not have all the medical evidence of record before issuing the
first and second report. Be that as it may, it is clear that Dr. Gallagher's reporting was
No. 16AP-202                                                                           21

cured by submission of all medical evidence of record for another review and the
issuance of the third report on December 18, 2015.
       {¶ 57} Here, relator challenges the reports of Dr. Gallagher by asserting "there is
simply no logical way to reconcile Dr. Gallagher's opinions that Relator does not suffer
from major depressive disorder and is not permanently disabled with the numerous
records of all of Relator's treating physicians." (Relator's Brief at 34.)
       {¶ 58} Relator continues her argument: "Relator recognizes that Respondent can
obtain medical opinions from independent physicians, but it is unreasonable, arbitrary,
and unconscionable for respondent to rely upon a medical opinion that is so at odds
with the documented medical findings." (Relator's Brief at 34-35.)
       {¶ 59} Relator's challenge to the reports of Dr. Gallagher fails to recognize that
the treating physicians do not determine whether relator is entitled to disability
retirement benefits. Rather, that determination, pursuant to R.C. 3307.62 is vested
solely in STRS. Pipoly at ¶ 24. Moreover, the reports of relator's treating physicians are
not entitled to greater weight simply because they are the reports of the treating
physicians. Pipoly at ¶ 23-25. Bell.
       {¶ 60} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.


                                           /S/ MAGISTRATE
                                           KENNETH W. MACKE



                              NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically objects
              to that factual finding or legal conclusion as required by Civ.R.
              53(D)(3)(b).
