McDonnell v. Commissioner of Social Security

          Algenon L. Marbley Judge.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         I. BACKGROUND

         A. Prior Proceedings

         Plaintiff 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).

         Having 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 #: 650).

         Accordingly, 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).

         Plaintiff 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 filed.

         B. Relevant Testimony at the Administrative Hearings

         At the 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).

         Plaintiff 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 whatever.” (Id.).

         In 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).

         Plaintiff 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).

         C. Relevant Medical Background

         On 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. (Id.).

         On May 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 “[i]t ...