United States District Court, S.D. Ohio, Eastern Division
JOSEPH L. MCDONNELL, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Algenon L. Marbley Judge.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
Joseph L. McDonnell, filed this action seeking review of a
decision of the Commissioner of Social Security
(“Commissioner”) denying both his Title II
Disability Insurance Benefits and Title XVI Supplemental
Security Income Disability applications. For the reasons that
follow, it is RECOMMENDED that
Plaintiff's Statement of Errors be
OVERRULED, and that judgment be entered in
favor of Defendant.
filed for disability benefits on January 18, 2011, alleging a
disability onset date of August 15, 2008. (Doc. 12-5, Tr.
152, 158 PAGEID #: 191, 197). His claims were denied
initially on August 11, 2011. (Doc. 12-4, Tr. 95-104, PAGEID
#: 133-42). On August 15, 2012, Administrative Law Judge
Daniel Cusick held an administrative hearing (Doc. 13-1, Tr.
551, PAGEID #: 594), after which he issued a written decision
denying disability benefits on August 24, 2012 (Doc. 12-2,
Tr. 6, PAGEID #: 42). Plaintiff sought review of ALJ
Cusick's decision, but the decision became final when the
Appeals Council denied review on October 29, 2013.
(Id., Tr. 1, PAGEID #: 37).
exhausted all administrative remedies, Plaintiff filed a
Complaint in this Court arguing that the denial of his claims
was not supported by substantial evidence. The parties then
filed a Joint Motion for Remand, which the Court granted on
June 25, 2014, and ordered the case to be remanded with
specific instruction to 1) further assess Plaintiff's
mental impairments, taking into consideration the mental
functional assessment by the consultative psychological
examiner, 2) reevaluate Plaintiff's mental residual
functional capacity, and 3) obtain supplemental vocational
expert testimony if warranted. (Doc. 13-2, Tr. 615, PAGEID #:
a second administrative hearing was held on August 6, 2015,
before Administrative Law Judge Jeffrey P. La Vicka
(“the ALJ”). (Doc. 13-1, Tr. 519, PAGEID #: 562).
The ALJ issued a written decision on August 24, 2015, denying
disability benefits. (Id., Tr. 489, PAGEID #: 532).
Plaintiff again requested review of the administrative
decision to the Appeals Council, which denied his request on
July 12, 2016. (Id., Tr. 482, PAGEID #: 525).
filed this case on September 14, 2016 (Doc. 1), and the
Commissioner filed the administrative records on November 21,
2016 (Docs. 12, 13). Plaintiff filed a Statement of Specific
Errors on January 9, 2016 (Doc. 16), the Commissioner
responded on February 23, 2017, (Doc. 18), and no Reply was
Relevant Testimony at the Administrative Hearings
beginning of the August 6, 2015 Administrative Hearing,
Plaintiff's non-attorney representative stated that
Plaintiff's severe impairments included his bipolar
disorder, obsessive compulsive disorder, and intermittent
explosive disorder. (Doc. 13-1, Tr. 523, PAGEID #: 566).
During the hearing, Plaintiff testified that he completed the
eighth grade but then quit school to work for the carnival.
(Id., Tr. 533, PAGEID #: 576). At the time of the
2015 hearing, Plaintiff stated he had lived alone for the
past five years. (Id., Tr. 526, PAGEID #: 569).
testified that he became disabled in 2008 because that's
when a psychiatrist and therapist told him to “try to
get disability because [he] was not able to deal with
society.” (Id., Tr. 535, PAGEID #: 578). In
his 2012 hearing, Plaintiff explained his alleged impairment:
“I can't deal with being around more than one or
two people at a time and more than one or two people talking
at once, I just get really irritated real easy when I'm
around people.” (Doc. 13-2, Tr. 577, PAGEID #: 620). In
2013, Plaintiff returned to work for the carnival and his job
responsibilities included setting up, tearing down, and
running rides, as well as collecting money. (Doc. 13-1, Tr.
536, PAGEID #: 579). However, Plaintiff stated “all
[he] could really do is stand there and put a harness on or
terms of daily activities, Plaintiff stated he used to smoke
marijuana often with friends, (id., Tr. 542-43,
PAGEID #: 585-86); he prepares meals once a day
(id., Tr. 543, PAGEID #: 586); goes shopping monthly
(id., Tr. 544, PAGEID #: 587); washes the dishes,
does his laundry, takes out the trash, and vacuums when
necessary (id.); takes his daughter swimming or to
the playground (id., Tr. 525, PAGEID #: 568); hangs
out and plays videogames with friends, whom he sees almost
daily (id., Tr. 531, PAGEID #: 574); and sees his
niece two to three times a week and spends time with her and
her kids (id., Tr. 528-29, PAGEID #: 571-72).
also testified that he applied for and received unemployment
benefits, and, at that time, he certified that he was ready,
willing, and able to work. (Id., Tr. 533-34, PAGEID
#: 577-78). Plaintiff also stated that he put job
applications in at grocery stores, fast food restaurants, gas
stations, construction, and “anything I could do”
but “nobody want[ed] to hire me.” (Id.,
Tr. 534, PAGEID #: 577).
Relevant Medical Background
December 28, 2010, Plaintiff presented to the Belmont
Community Hospital Emergency Room complaining of depression,
anxiety, and “trouble coping with everyday problems of
life, ” and was subsequently admitted to the
psychiatric floor for evaluation and treatment. (Doc. 12-7,
Tr. 369, PAGEID #: 410). Treatment notes state Plaintiff was
admitted because he was afraid that he would lose control and
“end up hurting someone.” (Id., Tr. 373,
PAGEID #: 414). Upon physical examination, it was noted that
Plaintiff was not in distress, he was alert and oriented, had
no flight of ideas, and had a normal attention span.
(Id., Tr. 369, PAGEID #: 410). While hospitalized,
Plaintiff's “behavior was completely appropriate as
he related to staff and the other patients, ” but he
did become upset when he found out that his
ex-girlfriend's new 19 year-old boyfriend had moved into
the house he had shared with her. (Id., Tr. 373,
PAGEID #: 414). At discharge, Plaintiff was in a good mood
and did not exhibit any mood swings or temper outbursts.
(Id.). Plaintiff stated he was going to stay with
his nephew in Pennsylvania for two to three months until he
found another job or returned to the carnival.
4, 2011, Plaintiff saw Dr. Thomas E. Andrews, Ph.D., for an
evaluation. (Id., Tr. 399, PAGEID #: 440). In the
treatment notes, Dr. Andrews states that Plaintiff stopped
working as a carnival worker in 2009, because his girlfriend
had a baby and he decided that he could not travel any more.
(See id.). At that time, Plaintiff reported he was
living with his nephew, his nephew's wife, and their four
children. (Id., Tr. 400, PAGEID #: 441). When asked
about daily activities, Plaintiff stated that he had been
“scrapping a lot lately” and taking junk to the
recycling center; he put a lawnmower motor into a dirt bike;
completed some welding and other mechanical work, as he
described himself as “a very smart person with [his]
hands;” and reported talking to his 4-year-old daughter
daily. (Id., Tr. 400-01, PAGEID #: 441-42). Dr.
Andrews noted that Plaintiff was “very talkative,
” especially about his aggressive tendencies, and