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McNichols v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

August 17, 2017


          James L. Graham Chief Judge.



         Plaintiff, Jennifer McNichols, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for social security disability insurance benefits and supplemental security income. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 13), the Commissioner's Memorandum in Opposition (ECF No. 18), Plaintiff's Reply (ECF No. 21), and the administrative record (ECF Nos. 9, 10). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff maintains that she became disabled on January 1, 2009, [1] as a result of degenerative disc disease, depression, and carpal tunnel syndrome. (R. at 178.) In April 2009, Plaintiff filed applications for both supplemental security income and disability insurance benefits. (R. at 139-49.) Plaintiff's applications were denied initially and upon reconsideration. Plaintiff then sought a de novo hearing before an administrative law judge (“ALJ”). (R. at 104-05.)

         On May 27, 2011, Plaintiff, represented by counsel, appeared and testified at the video hearing. (R. at 36-58.) On June 22, 2011, ALJ Ken B. Terry (“ALJ Terry”) issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 16- 25.) On August 29, 2011, Plaintiff filed a Request for Review of Hearing Decision Order. (R. at 11-12.)

         Following the Appeals Council denial of Plaintiff's request for review, she filed an action in United States District Court under McNichols v. Commissioner of Social Security, Case No. 2:12-cv-1068. This Court remanded Plaintiff's claim for a new hearing and decision. (R. at 935-54.) Specifically, this Court held ALJ Terry failed to consider the medical evidence supporting mental limitations and failed to properly assess Dr. Miller's opinion.

         The Appeals Council subsequently vacated and remanded ALJ Terry's decision. (R. at 955-58.) On December 17, 2014, ALJ Edmund E. Giorgione (“ALJ” or “ALJ Giorgione”) held a supplemental hearing, at which Plaintiff, represented by counsel, appeared and testified. (R. at 909-26.) A vocational expert also appeared and testified at the hearing. (R. at 926-33.) On June 18, 2015, the ALJ found that Plaintiff was not disabled. (R. at 846-58.) On April 5, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 835-42.) Plaintiff then timely commenced the instant action.


         A. Plaintiff's Testimony

         Plaintiff testified at the December 17, 2014, administrative hearing that she last worked in January 2009, as a school substitute janitor. (R. at 910.)

         Plaintiff testified that her physical complaints stem from fibromyalgia and back problems. (R. at 913.) She testified that she experiences pain from her beltline up to neck, her pain radiates down her right leg. (Id.) She also testified that she experiences problems with wrists and hands and her fingers lock up. (Id.) She was 5'2” and at the time of the hearing weighed 260 lbs. (R. at 917.)

         As to her mental health issues, Plaintiff testified that she has problems with friends and family, “[o]ne minute I can be fine and happy . . . and the next minute I am the worst person around . . . I go off, I am hateful.” (R. at 915.) She testified that she does not like to be in crowds, she gets very irritable and argues with strangers. (Id.) Plaintiff testified that she likes to be around her dogs. (Id.) Plaintiff also testified that she gets easily agitated and does not want to be around people. (R. at 921.) She continued that she would rather be off by herself which she does so daily for about half of the day. (R. at 921-22.) Plaintiff further testified that she cries on a daily basis. (R. at 922.)

         As to daily activities, Plaintiff testified that she can sweep for five minutes, but then needs to sit or lay to try to stretch her back out. (R. at 913.) If that does not ease her pain, Plaintiff testified that she “ends up on the floor trying to get it to ease up.” (Id.) Plaintiff estimated that she may lay down from three out of eight hours. (R. at 914.) She usually falls asleep watching TV, and noted she does not read. (Id.) She can dress herself but sometimes needs help with socks and shoes. (R. at 916.) She is able to shower and bathe herself. (Id.) She has a driver's license and drove the day prior to the hearing. (Id.) She tries to help with chores but feels she is “not a whole lot of help.”[2] (Id.) She also testified that she mows with a push mower, but that she can only do so for “maybe 5 minutes” before her back starts to hurt. (R. at 917.) She talks with a couple of friends on the phone. (Id.) She tries to see an aunt once a week during the summer and goes to the beach but doesn't go in the water. (R. at 925-26.)

         Plaintiff testified that she can lift a gallon of milk. (R. at 914.) She has difficulty with stairs describing that when she climbs stairs she does not have enough strength so she holds onto the handrails to get her up the stairs. When coming down stairs she has leg cramps which cause her “legs just want to give out.” (Id.)

         She can walk about half a block, then her back and knees start to hurt. (R. at 923.) She believes she can stand in place maybe 15 minutes. (R. at 924.) She sleeps 5 to 6 hours per night tossing and turning and naps two to three hours a day. (R. at 924-25.)

         B. Vocational Expert Testimony

         The vocational expert (“VE”) testified at the administrative hearing that Plaintiff's past jobs include a school janitor, a medium exertion, unskilled job, but performed at the light level; a machine operator, light to medium exertion as Plaintiff performed it; and a fast food worker, a light, unskilled position. (R. at 927-28.)

         The ALJ proposed a hypothetical regarding Plaintiff's residual functional capacity (“RFC”) to the VE. (R. at 928-29.) Based on Plaintiff's age, education, work experience, and her RFC, ultimately determined by the ALJ, the VE testified that Plaintiff could perform her past relevant work, along with approximately 735, 000 unskilled, medium exertional jobs in the national economy such as a dishwasher, sandwich maker, or prep cook. (R. at 929-30.)


         This review of medical evidence incorporates the review contained this Court's March 18, 2014, Opinion and Order. (See, R. at 935-54.)

         A. Mental Impairments

         1. Scioto Paint Valley Mental Health Center (Scioto)

         Plaintiff received treatment at Scioto Paint Valley Mental Health Center (“SPVMHC”) from March 2010 until at least April 2011. (R. at 315-18, 739-51, 825-34.) Plaintiff reported that her depression started six or seven years prior when her grandmother died and that she had struggled since. She indicated that she felt discouraged by her physical condition as she had injured her back. She further indicated that she was able to function and complete her daily activities but that she did not have the energy to do these activities. She also reported that she did not sleep well at night. The intake clinician diagnosed Plaintiff with major depressive disorder and assigned her a Global Assessment of Functioning (“GAF”) score of 54. (R. at 733-38.) Clinical notes reflect ongoing problems with anxiety, depression, lack of energy to do things, and interpersonal problems. (R. at 315-18, 739-51, 825-34.) In July 2010, Plaintiff reported that Cymbalta helped relieve her depressive symptoms. (R. at 745.) On November 22, 2010, Plaintiff reported her medications were helping somewhat, but she still struggled day-to-day with her mood. Her main complaint was elbow pain, not mental symptoms. (R. at 318.) On December 13, 2010, Plaintiff reported that an increase in her medications helped her mood, resulting in her becoming more talkative. (R. at 316.)

         On April 19, 2011, Plaintiff's counselor noted that Plaintiff “continues to have the ability to be employed but lacks motivation.” (R. at 825.) She questioned Plaintiff's diminished ability to work due to her health problems and encouraged her to get out of the house, visit family and friends, stop procrastinating, and stop feeling sorry for herself. (R. at 825.) Treatment intervention included encouraging Plaintiff to take responsibility for her choices and remain open to considering change. (Id.)

         Plaintiff was discharged from Scioto in October 2012, with a last contact date of July 17, 2012, due to non-compliance with treatment. (R. at 1041-45.) The discharging social worker and counselor noted that Plaintiff had been “coming for more than 2 years hoping to obtain Social Security benefits so she would have an income [without] working, ” that Plaintiff “continued to hope for Social Security benefits and had no interest in earning a paycheck, ” that she complained mostly about her physical health problems. (R. at 1041.) They further reported that Plaintiff “was not invested in attending to groups to learn coping skills, decision making, etc.” (R. at 1042.)

         Plaintiff was referred back to Scioto on referral from her attorney on June 3, 2014. (R. at 1141.) Plaintiff stated that she was willing to do whatever was “suggested to show social security evidence of her disability.” (Id.) Plaintiff preferred outpatient treatment, she was not invested in attending groups. (R. at 1140.) On mental status examination, Plaintiff appeared to be anxious and depressed with a flat affect and pressured speech, she had an average demeanor, was cooperative, and appeared to have average intelligence, and she reported no impairment of memory, attention, or concentration. (R. at 1146-47.)

         In September 2014, Plaintiff's treating social worker, Barbara Sharp, noted Plaintiff continued to be noncompliant with treatment recommendations. (R. at 1164.) She missed a number of appointments and it was noted that Plaintiff did not have any motivation to pursue mental health treatment. (Id.) Treatment notes through September 2014, show that Plaintiff was observed to be verbal and attentive despite her sad mood, and even calm and relaxed at several appointments. (R. at 1048, 1052, 1055, 1058, 1060, 1064, 1146-47.)

         2. Trisha Campbell, L.I.S.W.

         Plaintiff's counselor, Trisha Campbell, L.I.S.W., completed a Mental Medical Source Statement on January 4, 2011. (R. at 309-14.) Ms. Campbell reported that Plaintiff was “severely depressed, ” struggling with daily functioning, and that her medications had been only “minimally effective.” (R. at 309.) Ms. Campbell listed Plaintiff's symptoms as anhedonia, appetite disturbance, decreased energy, feelings of guilt or worthlessness, difficulty thinking or concentrating, emotional withdrawal or isolation, memory impairment, sleep disturbance, and a history of multiple physical symptoms. (R. at 310.) She found that Plaintiff was “seriously limited, but not precluded, ” in the following areas: ability to remember work-like procedures, ability to understand and remember very short and simple instructions, ability to carry out short and simple instructions, ability to maintain regular attendance and be punctual within customary tolerances, ability to sustain a daily routine without special supervision, ability to work in coordination with or proximity to others without being unduly distracted, ability to make simple work related decisions, ability to ask simple questions or request assistance, ability to accept instructions and respond appropriately to criticism from supervisors, ability to get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes, and ability to interact appropriately with the general public. (R. at 311-12.)

         Ms. Campbell further concluded that Plaintiff was “unable to meet competitive standards” in the following areas: ability to maintain attention for two-hour segment, ability to complete a normal workday and workweek without interruptions from psychologically based symptoms, ability to perform at a consistent pace without an unreasonable number and length of rest periods, ability to respond appropriately to changes in a routine work setting, ability to deal with normal work stress, and ability to be aware of normal hazards and take appropriate precautions. (Id.)

         With regard to stress tolerance, Ms. Campbell identified the following work demands that Plaintiff would find stressful: speed, precision, complexity, exercising independent judgment, getting to work regularly, and remaining at work for a full work day. (R. at 313.) Ms. Campbell anticipated that Plaintiff ...

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