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Barnett v. Berryhill

United States District Court, S.D. Ohio, Western Division, Dayton

June 12, 2017

KATHY BARNETT, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of the Social Security Administration, Defendant.

          Thomas M. Rose, District Judge

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington, United States Magistrate Judge

         Plaintiff Kathy Barnett brings this case seeking review of the Social Security Administration's denial of her application for Disability Insurance Benefits. The Administration denied Plaintiff's application through a decision by Administrative Law Judge (ALJ) George Michael Gaffaney in which he concluded that Plaintiff was not under a benefits-qualifying disability. This case is presently before the Court for review of ALJ Gaffaney's decision by way of Plaintiff's Statement of Errors (Doc. #7), the Commissioner's Memorandum in Opposition (Doc. #11), Plaintiff's Reply (Doc. #12), and the administrative record (Doc. #5).

         Plaintiff asserted before the Administration that she had been under a disability beginning on June 14, 2003. She was then in her late thirties and was thus considered a “younger” person under social security law. Her health problems include, at a minimum, depression, anxiety, and low-back pain.

         Plaintiff testified during a hearing held by ALJ Gaffaney that she last worked at a pet store in 2011. Her employment was terminated, she explained, for several reasons: she couldn't unload trucks; she signed a deposit slip that another employee had filled out; and she “[c]ouldn't go to work on storm days.” Id. at 87. This final reason was related to the tragic death of her four-year-old son in 2003, when he was struck by lightning. In addition, Plaintiff got stuck at work during a storm in 2011. Since then, she experienced daily anxiety attacks during which she cannot breathe.

         Plaintiff did not leave her house on stormy days. Id. at 96. Indeed, she struggled every day to leave her house. She did not go shopping, to the movies, to concerts, or out to eat. She did not sleep well during the night because she feared not waking up. She had daily headaches. Her husband attempted to help her by blocking light from entering one room (a “black room”) in their home. Id. at 98. She went into the black room because of her headaches and to feel safe. Id. at 99.

         Plaintiff experienced intrusive thoughts such as thoughts of suicide. This occurred “[q]uite often, ” although she had not attempted suicide or formulated a plan. Id. at 99-101. Her long-term family doctor, Dr. Derksen, treated her with Cymbalta, which did not work, and Zoloft, which helped her “a little.” Id. at 95. She took Xanax for anxiety and this too helped “a little.” Id. She had tried counseling at one point but could not afford it. Her side effects from medications included dizziness and headaches. Id. at 106.

         Plaintiff testified that she has memory loss that became worse after she began falling and hitting her head on the ground “like a seizure.” Id. at 103. This occurred several times a day. She explained, “my head would just bounce off the floor, and since that happened I have no memory.” Id. at 103. At this point during the ALJ's hearing, Plaintiff was crying. She testified that she cried “all the time.” Id.

         A vocational expert testified during the ALJ's hearing that there would be no fulltime jobs available for a hypothetical person who would be absent from work three times a month, assuming the hypothetical person was the same age and educational background as Plaintiff and had her limited ability to perform light work. Id. at 115-17.

         The medical evidence consists in part of Dr. Derksen's treatment records. In his June 2014 assessment of Plaintiff's mental-work abilities, id. at 834-40, Dr. Derksen reported that he had treated Plaintiff every three months since about May 2011. He diagnosed Plaintiff with depression, generalized anxiety disorder, and low-back pain. Plaintiff's symptoms consisted of anxiety mixed with depression, panic attacks, anhedonia, lack of motivation, and “compliance issues with medication due to the psychological issues that have occurred since the sudden death of her son from a lightning strike.” Id. at 834. He noted that Plaintiff is chronically depressed and anxious, and “any stressful situation induces panic attacks.” Id. at 835. Plaintiff's symptoms were moderate (between slight and severe). As defined by the form Dr. Derksen completed, moderate symptoms “could be tolerated but would cause a marked handicap of the activity precipitating the symptom.” Id. at 836. Dr. Derksen also indicated that Plaintiff's symptoms would frequently interfere with her attention and concentration. And he opined that her “underlying back pain combined with her psychological problems render her disabled.” Id.

         In May 2013, psychologist Dr. Kramer examined Plaintiff at the request of the state agency. Id. at 407-12. He reported at the outset that he did not have Plaintiff's records or other materials available to him. Id. at 407.

         Dr. Kramer observed that Plaintiff's affect was sad and depressed. She was tearful throughout much of the examination. Dr. Kramer explained that she “was obviously anxious in today's examination. She was fidgety, restless, and shaky. She says that she does not like to leave the house especially if the weather is bad. She has not gone to a public place such as a grocery store since her son passed away in 2003. She reports panic attacks with shortness of breath and tearfulness and says that she gets scared and cannot breathe and feels as if she is going to choke…..” Id. at 409-10.

         Dr. Kramer noted that Plaintiff appeared to be a reliable historian. He explained, “She seems to be open and honest in sharing information and her self-report was consistent with the clinical impression obtained in today's interview.” Id. at 411. Dr. Kramer diagnosed Plaintiff with panic disorder with agoraphobia and depressive disorder.

         Dr. Kramer opined that Plaintiff could perform simple repetitive tasks (noting she appeared to have average intelligence), and her “tearfulness and anxiety would impair her social functioning somewhat.” Id. at 412. He further reported that ...


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