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Grisier v. Commissioner of Social Security

United States District Court, N.D. Ohio, Western Division

March 29, 2017

Melinda Grisier, Plaintiff
v.
Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          Jeffrey J. Helmick, United States District Judge

         This matter is before me on Plaintiff's objections (Doc. No. 19) to the September 26, 2016 Report and Recommendation of the Magistrate Judge (Doc. No. 17). Also before me is the Defendant's response to Plaintiff's objections. (Doc. No. 20).

         As there are no objections to the procedural history, evidence, medical evidence, plaintiff's testimony and the vocational expert's testimony of the Report, I adopt it in its entirety.

         I. Procedural History

         Grisier protectively filed an application for DIB on September 19, 2012.[1] Tr. 93, 184-187, 201-202. Grisier alleged a disability onset date of December 31, 2007 (Tr. 51, 93, 184, 201, and alleged disability due to depression, post-traumatic stress disorder, anxiety, seizures, dislocated discs, back pain, and bi-polar disorder (Tr. 51, 65, 106, 112, 206). After initial denial by the state agency (Tr. 106-108) and denial upon reconsideration (Tr. 112-118), Grisier requested a hearing (Tr. 119). A hearing was held before Administrative Law Judge Yvette N. Diamond (“ALJ”) on July 11, 2014. Tr. 7-50.

         In her August 14, 2014, decision (Tr. 90-105), the ALJ determined that Grisier was not under a disability from December 31, 2007, through June 30, 2010, her date last insured (Tr. 93, 99-100). Grisier requested review of the ALJ's decision by the Appeals Council. Tr. 1-2. On August 11, 2015, the Appeals Council denied Grisier's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 3-6.

         II. Evidence

         A. Personal, educational, and vocational evidence

         Grisier was born in 1970 and was 43 years old at the time of the hearing. Tr. 13, 184, 201. Grisier attended school up until the tenth grade. Tr. 15. She is able to read and write. Tr. 15.

         At the time of the hearing, Grisier was married and living with her husband. Tr. 13-14. Her two stepdaughters lived with them on occasion. Tr. 14. She has two adult children, ages 25 and 22 at the time of the hearing. Tr. 14. She also has grandchildren. Tr. 14. She was previously married. Tr. 14, 385. During the period of time between December 31, 2007, and June 30, 2010, Grisier was married to a previous husband and living with him. Tr. 14-15.

         Grisier last worked in 2011 at a Domino's in Georgia. Tr. 16. She worked there for two weeks delivering pizzas. Tr. 16. Her job at Domino's ended because she moved from Georgia to Ohio. Tr. 38. Grisier does not think that she would have been able to sustain that job even if she had not moved to Ohio because it was hard for her to stand on her feet. Tr. 38-39. She also worked at a Marco's making and delivering pizzas[2] (Tr. 16-17) and had other past work, including working as a cashier in a store, a cashier in a drive through, and a gas station attendant (Tr. 17-20).

         B. Medical evidence[3]

         In April 2005, Grisier was injured while working at a drive-through store. Tr. 289. She was stacking some beverages and 12-packs fell on her back. Tr. 289. Grisier sought and received treatment for the injury to her back, including physical therapy. Tr. 289-290, 307-309. During a consult with Dr. Larry Kennedy, M.D., on July 8, 2005, for her back injury, Dr. Kennedy noted that Grisier indicated she was “currently seeking disability and, in fact, she does not have a goal for returning to any work place.” Tr. 289. Dr. Kennedy concluded that Grisier's prognosis was “poor for improvement, particularly when apparently it is in her best interest to remain disabled in order to obtain disability, which apparently is her goal.” Tr. 290. Dr. Kennedy advised that, if disability was Grisier's goal, he did not think physical therapy or other treatment would help her but, if she wanted to get better, he thought she could. Tr. 290. On July 26, 2005, physical therapy was discontinued due to Grisier's lack of attendance. Tr. 307. In March 2006, Grisier returned to see her primary care physician Dr. Diane Conrad, M.D., due to a flare up in her acute lumbar strain. Tr. 287. She reported that she had started to feel better with the physical therapy sessions and time but had recently been doing some light pizza delivery work and was experiencing bilateral lower back pain. Tr. 287. Grisier planned to return to physical therapy and was provided prescriptions for Naprosyn and Flexeril. Tr. 287. Dr. Conrad also suggested that Grisier follow up with Dr. Kennedy. Tr. 287. During the visit, Grisier complained of headaches. Tr. 287. Dr. Conrad agreed to work with Grisier regarding her headaches, noting they would have to plan an evaluation outside of her workers compensation claim. Tr. 287.

         After her date last insured, [4] following a family dispute at home, on January 10, 2012, Grisier sought emergency room treatment. Tr. 392-422. She reported having been going through a lot of stress due to various issues but mainly she was having a difficult time managing her 19-year old child. Tr. 396. Grisier complained of chest pain, she was shaking all over, and having problems sleeping. Tr. 396. Grisier also reported that she had previously sprained her left ankle. Tr. 396. Her medical history was documented as “[h]istory of syncope with stress, seizures, cervical cancer.” Tr. 396. The emergency room physician diagnosed anxiety, hyperventilation, and sprained left ankle. Tr. 397. Grisier was treated for her sprained ankle, given Ativan, and advised to follow up with her family physician and take some time off from work and rest.[5] Tr. 397.

         On April 10, 2012, following a March 22, 2012, sexual assault by a male whom Grisier met online, Grisier sought outpatient therapy at the Maumee Valley Guidance Center to reduce symptoms of depressive disorder, NOS, and PTSD. Tr. 328-329. She relayed that she was also sexually assaulted at age 15. Tr. 328. She reported a history of intermittent depression and was interested in counseling to overcome her issues. Tr. 328. Anne Mallett, MSW, LISW, the therapist conducting the initial session with Grisier diagnosed depressive disorder, NOS, and PTSD. Tr. 329. She assessed a GAF score of 50.[6] Tr. 329.

         During an April 28, 2012, emergency room visit, Grisier complained of anxiety, a seizure and chest pain. Tr. 447-473. Grisier reported that she had gotten into an argument with her daughter. Tr. 450. Grisier indicated that she had become anxious and when she gets anxious she has seizures. Tr. 450, 452. The emergency room notes reflect a history of syncope with stress and anxiety, a hole in her heart, cancer and pseudoseizures. Tr. 452. Grisier was diagnosed with having an anxiety attack and was advised to follow up with her family doctor. Tr. 453.

         On September 10, 2012, Grisier's therapy at Maumee Valley Guidance Center was terminated because Grisier had not returned and attempts to contact her were not successful.[7] Tr. 381-382. The discharge summary shows that Grisier had made some progress and it was noted that if Grisier felt that she would benefit from treatment in the future she was welcome to return. Tr. 381.

         On December 12, 2012, Dr. Neil S. Shamberg, Ph.D., conducted a consultative psychological evaluation. Tr. 384-390. Most of the information provided to Dr. Shamberg was based on Grisier's self-reports during the interview that Dr. Shamberg conducted. Tr. 384. Dr. Shamberg found Grisier's reliability to be very good based on there being good internal consistency and a close correspondence between collateral data and Grisier's own self-reports. Tr. 389. Grisier relayed that she had been married and divorced twice, with both ex-husbands being abusive. Tr. 389. Dr. Shamberg diagnosed Grisier with major depressive disorder, recurrent, currently severe, with some psychotic features; post-traumatic stress disorder; panic disorder with agoraphobia; social phobia; and anxiety disorder, NOS. Tr. 388. Dr. Shamberg indicated that Grisier also suffered from psychosocial and environmental problems, noting that she was still haunted by her abusive ex-husbands and two rapes; she had problems with her daughter-in-law; and she was worried that her doctors had not come up with a cause for her panic attacks and seizures. Tr. 389. Dr. Shamberg assigned a GAF score of 45. Tr. 389. He assessed Grisier's functional abilities, opining that:

When you combine her sub-average intelligence, lack of a high school diploma, reading comprehension problems, untreated major depression, and a host of anxiety issues in this young woman, you see that [Grisier] would have very, very significant limitations in understanding, as well as remembering and carrying out most job instructions, as she is right now.
During the Adult Clinical Interview yesterday . . . [Grisier], in spite of some hearing problems in her right ear, showed few limitations with regard to maintaining attention and concentration; however if she were to try a simple job now, let alone a more complex job, her depression and host of anxiety disorders would interfere significantly with her ability to attend, to concentrate, to keep up the work pace, and to persist and finish most job tasks now.
She is reporting fear of other people, and merits a diagnosis of Social Phobia. She hides all day every day in her small apartment in Bryan, Ohio. She hasn't worked for five years; in this psychologist's opinion [Grisier] would have huge problems now, based on her various fears and phobias, with regard to responding appropriately to all supervisors and to most coworkers, in all work settings. She also has a history with two abusive ex-husbands, and left her job at Marco's Pizza five years ago because of “sexual harassment by my manager; that sticks with me.” Given her slowness and lack of motivation, due to an untreated current major depression, and given her wide variety of anxiety disorders, also untreated at the present time, it is this psychologist's opinion that this claimant would have very, very significant limitations right now on all jobs with regard to her ability to respond appropriately to most work pressures.

Tr. 390.

         On January 16, 2013, state agency reviewing psychologist Tonnie Hoyle, Psy.D., completed two psychiatric review techniques (a PRT and PRT2) (Tr. 58-60) and mental RFC (Tr. 60-61). The PRT was for the date last insured of June 30, 2010, and the PRT2 was a “current evaluation.” Tr. 58. For the PRT, Dr. Hoyle concluded that there was no medically determinable mental impairment established, noting there was no medical evidence available from December 31, 2007, through June 30, 2010. Tr. 58. For the PRT2, Dr. Hoyle concluded that Grisier had moderate restrictions in activities of daily living and in maintaining social functioning and marked difficulties in maintaining concentration, persistence or pace. Tr. 59. Dr. Hoyle gave great weight to Dr. Shamberg's December 21, 2012, opinion which provided “current clinical findings and observations.” Tr. 60. Dr. Hoyle also completed a mental RFC which was a “current evaluation.” Tr. 60-61. In that mental RFC, Dr. Hoyle concluded that Grisier was markedly limited in her ability to complete a normal workday and workweek without interruptions from psychologically based ...


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