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Day v. Commissioner of Social Security

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

December 5, 2017

JOHN ROBERT DAY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          CHRISTOPHER A. BOYKO JUDGE.

          REPORT & RECOMMENDATION

          Thomas M. Parker United States Magistrate Judge.

         I. Introduction

         Plaintiff, John Day, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act. This matter is before the court pursuant to 42 U.S.C. §1383(c)(3), 42 U.S.C. §405(g) and Local Rule 72.2(b).

         Although the ALJ properly evaluated the medical opinion evidence and supported her conclusions concerning Day's functional limitations with substantial evidence, she erred in the framing of her hypothetical question to the vocational expert witness. Because this error was not harmless, I find the ALJ's conclusion that there were jobs Day could perform despite his limitations not to be supported by substantial evidence. I recommend that the final decision of the Commissioner be VACATED and the case be REMANDED for limited further proceedings consistent with this Report & Recommendation.

         II. Procedural History

         Day protectively filed an application for DIB on July 31, 2009. (Tr. 127) Day alleged his disability began on March 7, 2009. (Tr. 127-130) Day's applications were denied initially on February 4, 2010 (Tr. 65-68) and upon reconsideration on July 9, 2010. (Tr. 72-74) Day requested a hearing on September 1, 2010. (Tr. 79) ALJ Ben Barnett heard the case on August 16, 2011. (Tr. 33-62) On October 3, 2011, the ALJ denied Day's claims for benefits. (Tr. 7-25) The Appeals Council denied review of the ALJ's decision on February 1, 2013. (Tr. 1-3)

         Day appealed to this court. On April 16, 2014, the District Court remanded the case for further proceedings. (Tr. 884) A new hearing was held on July 27, 2015 before ALJ Yelanda Collins. (Tr. 909-945). The ALJ issued a decision on October 23, 2015. (Tr. 884-894) On September 24, 2015, the Appeals Council denied review. Day appealed to this court on November 18, 2016. ECF Doc. 1.

         III. Evidence

         A. Personal, Educational, and Vocational Evidence

         Day was born on May 20, 1962 and was 53 years old when the 2015 hearing took place. Day has a law degree and was admitted to the Ohio Bar on November 6, 1989. (Tr. 918) Day has past work experience as a teacher, a lawyer, and as a salesperson for Circuit City. (Tr. 40-43)

         B. Medical Evidence

         Day's impairments are mostly psychological in nature. Day began treating with psychiatrist, Dr. Michael Tran, in 2009. Dr. Tran initially diagnosed depression but later added the diagnoses of Bipolar Disorder. (Tr. 853) Dr. Tran's treatment notes also have a “problem list” which includes obsessive compulsive disorders as one of Day's problems. (Tr. 477-478) In May 2010, Dr. Tran noted that Day's mood was good; he was happy that the medications were working well. (Tr. 588)

         Day also treated with psychiatrist, Dr. Jyoti Aneja. Her records showed some improvement of Day's bipolar disorder. In June 2011 she noted that he was enjoying working but was concerned about gaining 40 pounds over the prior year. At that time, Day “denied having any anxiety or anger related issues.” (Tr. 823) Day reported that counseling had “really helped him a lot.” (Id.) On mental status examination, Dr. Aneja noted that plaintiff's mood was anxious but his attention and concentration were sustained, his recent and remote memory were within normal limits, and his thought process was logical and organized. (Id.)

         While treating with Dr. Aneja, Day received counseling from Therapist Kristen Liviskie. (Tr. 657) Following her first visit with him, Ms. Liviskie noted improvement of Day's bipolar disorder with medication. She also gave him feedback “that he most likely [didn't] have anger issues, but rather needs to work on different ways to approach situation with his mother as she is the only one that he argues with.” (Id. Emphasis added.) Day requested to meet with Liviskie on a weekly basis to manage stress. (Tr. 657-658) Ms. Liviskie was treating Day when he began working as a secret shopper. Her records note that he was having difficulty staying organized; setting boundaries; and taking on more tasks that he could complete. (Tr. 630)

         On April 4, 2012, Dr. Thomas Swales, a psychiatrist and Director of the Psychological Assessment Center, conducted a neuropsychological evaluation of Day. (Tr. 1404) Dr. Toni Johnson of the Psychological Assessment Center administered several tests but found that the results were invalid. (Tr. 1404-1407) Based upon Day's inconsistent effort and cooperation, Dr. Johnson felt that there was an indication of possible malingering. However, she qualified this opinion by stating that she “would not want to call him a malingerer, or interfere with his medical and psychiatric medications . . . . The existence of malingering does not exclude the possibility that bona fide symptoms might exist currently, as they have in the past.” (Tr. 1407) Dr. Johnson recommended outpatient psychiatric and medical follow up. Dr. Swales endorsed Dr. Johnson's opinion. (Tr. 1407)

         The record contains a couple of progress notes from Leanne Hardy, a professional clinical counselor noting that Day had attended two sessions and made no progress toward his treatment plan goal. (Tr. 1804) She later noted that he was transferred to Rebecca Fuller, an advanced practical nurse. Day was working on self-esteem issues and self-acceptance; he struggled with certain family relationships. (Tr. 1872)

         C. Opinion Evidence

         1. Treating Psychiatrist - Dr. Michael Tran - April 2010

         Dr. Tran completed an assessment of Day's ability to do work-related activities on April 6, 2010. (Tr. 851-854) Dr. Tran opined that Day had a moderate impairment in key areas such as attention and concentration as well as the ability to complete a normal day in a workweek without interruption from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Dr. Tran also opined that Day had a moderate impairment in accepting supervision and getting along with coworkers. (Tr. 852) Dr. Tran's assessment included a hand-written note stating that Day was unable to work due to his bipolar illness and that “[h]e would benefit from social security disability.” (Tr. 854)

         2. Treating Psychiatrist - Dr. Jyoti Aneja - June 2011

         In June 2011, Dr. Aneja completed a medical assessment of Day's ability to sustain work-related activities due to his mental impairments. (Tr. 804-805) Dr. Aneja opined that Day could function satisfactorily 60-80% of the time in making occupational adjustments. (Tr. 804- 805) She noted that Day had a long standing history of bipolar disorder that had not been treated until a few years ago. (Tr. 805) She estimated his GAF scores ranged from 60 to 65. (Tr. 807)

         3. Therapist Kristen Liviskie - July 2011

         On July 6, 2011, Ms. Liviskie completed a medical assessment of Day's ability to sustain work-related activities due to his mental impairments. (Tr. 808-811) Ms. Liviskie opined that Day would be able to function satisfactorily in the workplace less than 40% of the time. She stated that Mr. Day's bipolar symptoms would interfere with his ability to maintain a job and that his irritability and impulsivity caused difficulties with interacting with co-workers and customers. (Tr. 809)

         4. APRN - Rebecca Snider Fuller - August 14, 2015

         On August 14, 2015, APRN Rebecca Snider Fuller completed a questionnaire regarding Day's ability to do work-related activities. (Tr. 1874-1876) Ms. Snider Fuller had been treating Day since August 2013. (Tr. 1084) Dr. Ewauld Horvath also signed the questionnaire completed by Ms. Snider Fuller. (Tr. 1876) Ms. Snider Fuller felt that Day's abilities to work were poor in several areas including maintaining regular attendance and being punctual within customary and usual strict tolerances; completing a normal workday and workweek without interruptions from psychologically based symptoms; accepting instructions and responding appropriately to criticisms from supervisors; maintaining socially appropriate behavior; and maintaining attention for two hour segments. (Tr. 1874-1876) This questionnaire also stated that Day would likely miss work twice a month due to his impairments or treatment. (Tr. 1876)

         5. State Agency Consultant - Psychologist David House, Ph.D. - December 2009

         Psychologist David V. House performed a consultative psychological evaluation on December 15, 2009. (Tr. 283) Dr. House diagnosed PTSD and assigned a GAF score of 61. (Tr. 288) He concluded that Day's abilities were only mildly impaired in terms of attention, concentration, persistence and pace; ability to withstand stress and pressures associated with day-to-day work activities; and the abilities to relate to fellow workers and supervisors. (Tr. 287-288)

         D. Testimonial Evidence

         At the July 27, 2015 ALJ hearing, Day testified as follows: (Tr. 909-945)

• He is five feet eight inches. (Tr.916)
• At the time of the hearing he weighed approximately 258 pounds. (Tr. 916)
• He was living alone in an apartment; his mother paid all his bills. (Tr. 917)
• Day had a driver's license and drove to the grocery store and occasionally the movies. (Tr. 917-918)
• Day obtained a law degree in 1987 and became licensed in 1989. (Tr. 918) However he did not practice much as an attorney. His license was inactive. (Tr. 919-920)
• Day also taught classes for paralegals and worked at Circuit City. (Tr. 920-921)
• Day was fired from one job because he almost missed a deadline for filing a pretrial statement. (Tr. 921) He was fired from a teaching position because he said something inappropriate to a student. (Tr. 922)
• Day believed he was unable to work because he had difficulty working with people, being on-time, meeting deadlines, and complying with work-place rules. (Tr. 922)
• Since he stopped working, Day would typically go to bed around 4:00 a.m. and sleep until noon or 1:00 p.m. in the afternoon. He would then drink coffee and watch TV. (Tr. 924)
• Day's weight had fluctuated throughout his adult life. He felt that he might have some physical limitations with standing more than two hours. He estimated that he could walk for 25-30 minutes. (Tr. 925-927)

         Medical Expert (“ME”) Larry Caesar also testified during the hearing. (Tr. 935-939)

• Dr. Caesar reviewed Day's records and found that they substantiated a diagnosis of mood disorder, not otherwise specified, and anxiety disorder, not otherwise specified. (Tr. 935)
• Dr. Caesar opined that Day's impairments did not meet any of the Listings, including Listing 12.04 and 12.06. (Tr. 936)
• Dr. Caesar believed that Day had no restrictions of activities of daily living; he had moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence or pace; and no periods of decompensation. (Tr. 936)
• Dr. Caesar felt that Day had a personality disorder with antisocial features; he did not believe the record supported a diagnosis ...

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