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Brandenburg v. Berryhill

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

December 15, 2017

AMBER N. BRANDENBURG, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          Walter H. Rice District Judge

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington United States Magistrate Judge

         I. Introduction

         Plaintiff Amber N. Brandenburg applied for period of disability and Disability Insurance Benefits on August 23, 2013 and applied for Supplemental Security Income on October 18, 2013, asserting that as of May 31, 2011, she could no longer work a substantial paid job due to post-traumatic stress disorder (PTSD), bipolar disorder, anxiety, depression, and insomnia. The Social Security Administration denied Plaintiff's claims initially and upon reconsideration. At Plaintiff's request, Administrative Law Judge (ALJ) Benjamin Chaykin conducted a hearing where both Plaintiff and a vocational expert testified. Shortly thereafter, the ALJ concluded that Plaintiff was not eligible for benefits because she is not under a “disability” as defined in the Social Security Act. Plaintiff brings this case challenging the Social Security Administration's denial of her applications for Social Security benefits.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #7), the Commissioner's Memorandum in Opposition (Doc. #9), Plaintiff's Reply (Doc. #10), and the administrative record (Doc. #6).

         Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for further proceedings. The Commissioner asks the Court to affirm ALJ Chaykin's non-disability decision.

         II. Standard of Review

         The Social Security Administration provides Disability Insurance Benefits and Supplemental Security Income to individuals who are under a “disability, ” among other eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. §§ 423(a)(1), 1382(a). The term “disability”-as defined by the Social Security Act-has specialized meaning of limited scope. It encompasses “any medically determinable physical or mental impairment” that precludes an applicant from performing a significant paid job-i.e., “substantial gainful activity, ” in Social Security lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.

         Judicial review of an ALJ's non-disability decision proceeds along two lines: “whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence.” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). Review for substantial evidence is not driven by whether the Court agrees or disagrees with the ALJ's factual findings or by whether the administrative record contains evidence contrary to those factual findings. Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Instead, the ALJ's factual findings are upheld if the substantial-evidence standard is met-that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to support a conclusion.'” Blakley, 581 F.3d at 407 (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241 (citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.

         The other line of judicial inquiry-reviewing the correctness of the ALJ's legal criteria-may result in reversal even when the record contains substantial evidence supporting the ALJ's factual findings. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'” Rabbers, 582 F.3d at 651 (quoting in part Bowen, 478 F.3d at 746, and citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).

         III. Background

         Plaintiff asserts that she has been under a “disability” since May 31, 2011. She was thirty-two years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). She has a high school education. See 20 C.F.R. §§ 404.1564(b)(4), 416.964(b)(4).[2]

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Chaykin that she has struggled with mental health problems for approximately fifteen years on and off. (Doc. #6, PageID #87). She has been diagnosed with bipolar disorder, PTSD, and anxiety disorder. Id. at 91. She also has black-out periods where she cannot remember what she did. Id. In 2013, she began seeing a psychiatrist, Dr. Agarwal, every two to three months. Id. at 87-88. In addition, Plaintiff sees a therapist every week or at least twice per month. Id.

         Plaintiff takes several medications for her mental impairments: Seroquel as a mood stabilizer, Ativan for anxiety and panic attacks, and Doxepin to help her sleep. Id. at 89. Plaintiff explained that the medication helps but “also hinder[s] [her] too because they're very high dose.” Id. at 88. She experiences two primary side effects: “Sometimes I get dizzy. Sometimes I get drowsy.” Id. She feels dizzy approximately four times a week and has to sit down for thirty to forty minutes before she can stand again. Id. She gets drowsy every day. Id. at 89.

         Although Ativan helps reduce the number of panic attacks she has, it does not prevent them completely. Id. Plaintiff estimated that she has three panic attacks per week. Id. When she is having a panic attack, her heart starts racing, she gets hot and shaky, and she feels like she cannot stand. Id. Plaintiff's panic attacks are triggered by flashbacks of times when she was sexually abused. Id. at 97.

         Plaintiff sometimes hears voices. Id. at 90. Seroquel helps but she still hears voices two to three times per week. Id. She explained, “it's like I'm hearing somebody tell me I need to go kill myself. I'm not worth anything.” Id. Plaintiff was admitted to the hospital approximately six years before the hearing because she had tried to kill herself. Id. At the time of the hearing, Plaintiff had not had any suicidal thoughts in a month-since her doctor increased her dosage of Seroquel. Id. at 98. Before the increase, she had suicidal thoughts “a couple times a month.” Id.

         Additionally, Plaintiff has insomnia. Id. at 86. She is able to sleep on some days, but then she may not sleep for three days in a row. Id. She takes Doxepin, but it does not always help. Id. When she cannot sleep, it is usually because her mind is racing. Id. Plaintiff also has nightmares: “I just have nightmares about being killed, something [bad] happening to me [], and then a lot of times in my dreams it's like the abuser in my dream that abused me when I was young telling stuff like I'm not worth anything, you know. I'm just a piece of -- you know what I mean?” Id. at 97.

         In the past, Plaintiff struggled with addiction to prescription medication such as Percocet and Oxycodone. Id. at 94. At the time of the hearing, she had been clean for two years. Id. at 95.

         Plaintiff has had four surgeries in three years because of issues with her stomach/abdomen. Id. at 85. She still has swelling and pain in her stomach that she was planning to see a specialist about. Id. She has pain every day but the intensity and duration varies. Id. at 86. Plaintiff has pain medication but her friend holds onto it for her, and she only takes it when she “absolutely [has] to.” Id. at 94.

         Plaintiff lives in a house with a family friend. Id. at 81. Plaintiff sometimes sweeps, mops, and washes dishes. Id. There are some days-about three days per week-when she does not get out of bed. Id. at 92, 95. As a result, she sometimes does not take care of her hygiene. Id. at 92. She has good days two to three times per week: “I consider a good day getting up, getting in the shower, eating, taking a walk, reading a book.” Id. at 95-96. She has a television but she does not watch it very often. Id. at 92. Although she reads, she does not remember what she read. Id. at 96. She described her memory as “horrible.” Id. She cannot remember things that happened a couple days before. Id. She also has trouble staying focused; she gets distracted easily. Id. She often starts things but then forgets about them and does not complete them. Id. at 97.

         Plaintiff has one friend that she sees once or twice a week. Id. at 93. Her friend takes her to get groceries. Id. Plaintiff only leaves her house to go out in public once a week. Id. at 98. She never leaves by herself. Id. It is “very difficult” for Plaintiff to go out into public: “I'm just scared that somebody is going to try to hurt me or I'm just paranoid that somebody is going to try to hurt me.” Id. at 93.

         Plaintiff has two children. Id. at 82. Both live with their fathers. Id. Plaintiff has visitation rights “but they don't let me see my kids because they think that I'm going to hurt them or something because of my mental disabilities.” Id. Plaintiff does not have a driver's license. Id. at 83.

         Plaintiff last worked as a cashier at a tobacco store at least two years before the hearing. Id. at 84. She was let go because she “made a $500 mistake.” Id. She explained that she “didn't charge the right amount [for] a product because [she] forgot the change ….” Id. Plaintiff testified that she had trouble working because “I was getting paranoid around people coming in because I always worked like in the public, and I don't do good around a lot of people plus my memory is really bad, and I was forgetting things that I should have been doing.” Id. at 85.

         B. Medical Opinions

         i. Sunita Agarwal, M.D.

         On March 18, 2014, Dr. Agarwal, Plaintiff's treating psychiatrist, opined, “She is unable to work indefinitely. She is ...


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