United States District Court, N.D. Ohio, Eastern Division
Judge, Patricia A. Gaughan
REPORT AND RECOMMENDATION
R. KNEPP, II UNITED STATES MAGISTRATE JUDGE
Bert Anthony Veal (“Plaintiff”) filed a Complaint
against the Commissioner of Social Security
(“Commissioner”) seeking judicial review of the
Commissioner's decision to deny supplemental security
income (“SSI”). (Doc. 1). The district court has
jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g).
This matter has been referred to the undersigned for
preparation of a report and recommendation pursuant to Local
Rule 72.2. (Non-document entry dated March 6, 2017).
Following review, and for the reasons stated below, the
undersigned recommends the decision of the Commissioner be
filed for SSI in December 2013, alleging a disability onset
date of March 1, 2008. (Tr. 393-98). His claims were denied
initially and upon reconsideration. (Tr. 339-42, 348-52).
Plaintiff then requested a hearing before an administrative
law judge (“ALJ”). (Tr. 353-54). Plaintiff
(represented by counsel), and a vocational expert
(“VE”) testified at a hearing before the ALJ on
September 22, 2015. (Tr. 274-306). On November 24, 2015, the
ALJ found Plaintiff not disabled in a written decision. (Tr.
251-68). The Appeals Council denied Plaintiff's request
for review, making the hearing decision the final decision of
the Commissioner. (Tr. 1-7); see 20 C.F.R.
§§ 416.1455, 416.1481. Plaintiff timely filed the
instant action on March 6, 2017. (Doc. 1).
and Vocational Background
was born in 1966 and was 49 years old on the alleged date of
disability. (Tr. 281, 393). He has a high school education
and attended technical school, where he studied electronic
repair. (Tr. 281). At the time of the hearing, he lived with
his girlfriend. (Tr. 284).
testified he performed some housework, including sweeping the
floor and porch, and washing the dishes. (Tr. 285). He stated
he was unable to mow the yard because “my legs [are]
not strong [sic] as they used to be and my back gives me a
lot of problems now.” (Tr. 285-86). He did not shop
often due to “panic attacks when I get in a place
that's like a lot of people.” (Tr. 288).
Plaintiff's girlfriend would drive him to visit with his
mother once a week (Tr. 290), and his nine-year-old
granddaughter visited him “all the time” (Tr.
stated he had COPD, “bronchitis flare up[s] every now
and then”, neck and back pain, and a liver lesion. (Tr.
286). He could sit or stand for approximately a half hour
before he would need to change positions. (Tr. 292).
Plaintiff estimated he was able to walk one block. (Tr. 293).
He stated he could lift a gallon of milk and a 10-pound bag
of potatoes, but could not lift a 10-pound bag in each hand
simultaneously. Id. He had trouble breathing when
walking and when exposed to “chemicals and
stuff”, including oven cleaner. (Tr. 293-94).
the inhaler Symbicort twice a day due to his breathing
difficulty. (Tr. 286-87). Plaintiff stated his doctor advised
him to quit smoking, but at that time he was smoking half a
pack of cigarettes a day. (Tr. 287). He also admitted to
smoking marijuana, but added that he “[didn't] puff
on them hard.” (Tr. 295). He testified he suffered from
vision problems in his right eye and could not see out of his
right eye without glasses. (Tr. 291). With his glasses on, he
was able to see to his right side. Id. He was able
to hear with the assistance of hearing aids. Id.
testified he saw therapist Ms. Sloane at Portage Path at
least once a month for “some mental things that I go to
them and talk to them about like sometimes - - sometimes I
hear stuff.” (Tr. 287-88). He added that he experience
auditory hallucinations every day and visual, hallucinations
for which he was prescribed medication. (Tr. 288).
an average day, Plaintiff stayed at home and watched
television. (Tr. 290). He watched movies, but could not
remember the endings because his concentration was “not
all that good.” (Tr. 290-91).
April 2013, Plaintiff underwent an auditory evaluation with
Steven L. Kutnick, M.D., for the Ohio Rehabilitation Services
Commission. (Tr. 477). Dr. Kutnick noted Plaintiff had normal
hearing in his left ear and moderately severe hearing loss in
the right due to an injury sustained when he was a child.
Id. Dr. Kutnick recommended a hearing aid for his
right ear. Id.
October 2013, Plaintiff complained of worsening neck and back
pain for a few months. (Tr. 498-501). Ekaete Jackson, M.D.
noted: “Wants me to fill form stating that he cant
[sic] work. He's been evaluated for possible work
training to enable him gain [sic] employment, by his social
agency. States he does not want to do this, [sic] because if
he starts working he may loose [sic] his opportunity to get
disability and SSI for back pain.” (Tr. 498). Following
an examination, Dr. Jackson assessed Plaintiff with a muscle
spasm in his neck and lower back pain. (Tr. 499-500). Dr.
Jackson noted Plaintiff had a normal ability to climb on the
examination table and a normal ability to change positions
smoothly. (Tr. 499). Dr. Jackson recommended physical
therapy, but noted: “[patient] stating he does not want
to do [physical therapy], [sic] because he does not want to
work.” (Tr. 500). He therefore notified Plaintiff that
he would complete the form, but his assessment would be based
on his examination and diagnosis, which indicated Plaintiff
had no injuries or medical conditions precluding him from
January 10, 2014, Plaintiff saw Eric Panzner, D.O., for,
among other things, low back and neck pain. (Tr. 493).
Plaintiff told Dr. Panzner he had tried physical therapy for
his chronic neck and back pain, but it “didn't
help.” Id. Under “Functional
Status”, Dr. Panzner noted: “Able to feed self,
Able to bathe self, Able to use the toilet independently,
Able to dress self, Able to get up from bed or chair without
assistance”. Id. A back examination revealed:
an ability to climb on exam table normally, ability to change
positions smoothly, normal range of motion, with the
exception of pain when bending laterally and rotating, and a
normal straight leg raise test. (Tr. 495). Dr. Panzner
assessed Plaintiff with back pain with radiation and neck
pain. (Tr. 496). He advised Plaintiff to resume normal
activities, continue stretching, and “use of cooling to
painful areas”. Id.
had a follow-up appointment for neck and back pain in
February 2014. (Tr. 580). He had a normal gait, decreased
range of motion in the neck and lower back, good muscle
strength in all extremities, no spinous process tenderness in
the back or neck, and negative straight leg raise tests. (Tr.
582). The clinician recommended regular home exercises,
stretching, use of cooling, and prescribed gabapentin.
March 2014, at another follow-up appointment, Plaintiff again
complained of back pain. (Tr. 591). He had a normal posture,
normal gait, climbed onto the examination table normally, and
had a normal ability to change positions smoothly. (Tr. 592).
He also had neck and lumbar spine tenderness, normal neck and
lumbar spine range of motion, and normal straight leg raises.
Id. Raul Raudales, M.D., recommended medication,
stretching exercises, and use of cooling. (Tr. 593).
appointment on April 29, 2014, in addition to complaints of
neck and back pain, Plaintiff reported numbness and tingling
in his legs at night. (Tr. 648). He had a normal gait and
posture. (Tr. 649). Aside from cervical muscle tenderness, a
neck examination revealed no abnormalities and a negative
Spurling's sign test. Id. He was able to climb
on the exam table normally and change positions normally.
(Tr. 649-50). A back examination revealed Plaintiff low back
tenderness, and a normal straight leg raising test. (Tr.
2014, Dr. Panzner reviewed an MRI of Plaintiff's back.
(Tr. 645-46). The impression was: “[n]o evidence of
disc herniation or spinal stenosis”, “[m]ild
bilateral foraminal stenosis L5-S1 level”, and a mass
in the right lobe of the liver. (Tr. 646). Dr. Panzner
advised Plaintiff to follow up on the liver mass, and to quit
returned to Dr. Panzner in June 2014, because he
“need[ed] disability paperwork filled out”. (Tr.
642). He reported medication helped his pain. Id. He
“[a]ppear[ed] comfortable” on examination. (Tr.
643). Dr. Panzner prescribed a TENs unit and recommended pain
management. (Tr. 644). Plaintiff requested switching
providers to Dr. Franz because he wanted a “DO”
physician. Id. A few weeks later, Plaintiff reported
to Dr. Panzner that the TENs unit helped his back pain, but
he had not yet established care with pain management. (Tr.
637). An MRI of Plaintiff's cervical spine revealed
minimal degenerative changes. Id.
August 2014, Plaintiff saw James Franz, D.O. (Tr. 634).
Plaintiff stated his pain had been stable, with moderate
improvement, on ibuprofen. Id. Plaintiff had a
normal gait, neck tenderness with normal range of motion, and
thoracic and lumbar spine tenderness with normal range of
motion. (Tr. 635). He also had diffuse paraspinal tenderness
and pain with neck range of motion and bending forward.
Id. Dr. Franz recommended regular physical and
aerobic activity, and flexibility exercises. (Tr. 636).
October 2014, Plaintiff established care with Andrea A.
Jopperi, D.O. (Tr. 724). Plaintiff reported no anxiety or
depression (Tr. 725). A physical examination showed Plaintiff
was: in no acute distress, pleasant, well developed, well
nourished, and well groomed. Id. He had a normal
gait, normal deep tendon reflexes, and no swelling in his
extremities. (Tr. 726). Dr. Jopperi assessed Plaintiff with,
among other things, chronic neck and back pain. Id.
She prescribed pain medication and told Plaintiff if he
required something stronger, she would refer him to pain
had a follow-up appointment with Dr. Jopperi on February 2,
2015. (Tr. 720). He complained of a sharp pain under his
right rib cage, as well as sinus congestion and drainage.
Id. Dr. Jopperi continued Plaintiff's pain
medication for chronic neck and back pain, and advised him to
follow up in three months. (Tr. 722).
2015, Plaintiff had a follow-up appointment with Dr. Jopperi,
and complained of depression; a depression screening resulted
in a finding of “mild depression”. (Tr. 713).
Plaintiff reported no change in his neck and back pain, and
stated he took tramadol and Flexeril regularly, but took
ibuprofen only when his pain got “really bad”.
Id. Plaintiff stated he did not want to quit
smoking, and he indicated his cough and shortness of breath
improved with medication. Id. Dr. Jopperi assessed
Plaintiff with: GERD, chronic neck and back pain, and chronic
obstructive pulmonary disease (“COPD”). (Tr.
appointment with counselor September Sloane at Portage Path
Behavioral Health in September 2012 to “resume
treatment” Plaintiff stated: “I need you [Portage
Path] to fill out a paper that says why I can't
work.” (Tr. 574-75). Ms. Sloane explained the paperwork
could not be completed until Plaintiff had been seen on a
regular and consistent basis for at least four to six months.
(Tr. 574). She noted Plaintiff was alert and oriented, with
fair insight and judgment, and logical thoughts. Id.
He was cooperative, with a constricted blunted affect, and an
anxious and depressed mood. Id. Plaintiff had
average mental activity, was adequately groomed, maintained
average eye contact, and spoke clearly. Id. He
reported anxiety, panic attacks, poor sleep, and
“seeing shadows”, and Ms. Sloane noted he had no
cognitive impairment, no delusions, and no hallucinations.
therapy session at Portage Path in November 2012 with Ms.
Sloane, she noted Plaintiff had “still not come in for
a psych[ological] eval[uation]” because he had not
“felt like being bothered” and had transportation
problems. (Tr. 571). Ms. Sloane informed Plaintiff that if he
did not follow treatment recommendations, his symptoms would
not improve. Id. Plaintiff complained of continued
depression and anxiety, and poor focus and concentration.
Id. He had financial and physical health stressors.
January 2013, Plaintiff saw Ms. Sloane at Portage Path for an
unscheduled therapy session to “update [the] clinician
on what he has been doing”. (Tr. 569). A mental status
examination showed Plaintiff was adequately groomed with
average eye contact, and clear speech. Id. He
reported no cognitive impairments, delusions, or
hallucinations. Id. Plaintiff demonstrated an
appropriate affect, cooperative behavior, and euthymic mood.
Id. He was alert and oriented, with fair judgment
and logical thoughts. Id. Later in January 2013,
Plaintiff had an appointment with Ms. Sloane, who noted he
“worked cooperatively with [the] clinician to complete
Treatment Plan.” (Tr. 567).
February 2013, Plaintiff saw Ms. Sloane at an unscheduled
walk-in appointment. (Tr. 566). He demonstrated a depressed
mood, constricted/blunted affect, and cooperative behavior.
Id. He reported significant housing issues.
Id. The progress note stated he was scheduled for a
psychological evaluation later that day. Id.
underwent a psychiatric evaluation with practitioner Judith
K. Stanovic on February 19, 2013, at Portage Path. (Tr.
544-47). A mental status examination revealed he had average
activity, average eye contact, and clear speech. (Tr. 545).
Plaintiff reported auditory hallucinations, but no delusions;
and demonstrated a full affect, cooperative behavior,
depressed mood. Id. He was alert and oriented, with
poor insight, fair judgment, and logical thoughts.
Id. He was given a principal diagnosis of major
depressive disorder (recurrent moderate). (Tr. 546). She
prescribed Remeron and advised him to follow up with therapy
and “advised of medication walk in clinic as needed
between [appointments] if experience adverse effects from his
medication”. (Tr. 545).
saw Ms. Sloane again a few days later. (Tr. 565). He stated
the medication helped his symptoms and improved his sleep.
Id. At a medication management appointment on March
19, 2013, Plaintiff reported sleeping “much
better”, but feeling “depressed sometimes”.
had another medication management appointment in May 2013.
(Tr. 559-60). He stated he was “doing well” and
had “no concerns with [his] mental health”. (Tr.
559). He had a “bright affect” and “no
issues impacting [his] mental health”. Id. His
mood was stable, and he was sleeping well. Id. A
mental status examination revealed Plaintiff was alert and
oriented, with good insight, good judgment, and logical
saw Ms. Sloane again on September 30, 2013. (Tr. 553). He was
adequately groomed, with average eye contact and clear
speech. Id. He reported he missed his last
medication management appointment, and was experiencing
visual and auditory hallucinations. Id.
medication management appointment in November 2013, Plaintiff
had average activity, average eye contact, and spoke clearly.
(Tr. 550). He had a full affect, cooperative behavior, fair
insight, good judgment, logical thoughts, and was alert and
properly oriented. Id. The clinician
“[e]ncouraged increased exercise”. Id.
January 22, 2014, Plaintiff had a therapy session with Ms.
Sloane. (Tr. 548). He demonstrated average mental activity,
was adequately groomed, made average eye contact, and spoke
clearly. Id. He reported no cognitive impairments,
delusions, or hallucinations. Id. Plaintiff was
alert and oriented with fair judgment and insight, and
logical thoughts. Id. He demonstrated a
constricted/blunted affect, cooperative behavior, and a
depressed mood. Id.
therapy session with Ms. Sloane on March 5, 2014, Plaintiff
had average mental activity, was adequately groomed, made
average eye contact, and spoke clearly. (Tr. 622). He
reported no cognitive impairment, delusions, or
hallucinations. Id. Plaintiff was alert and
oriented, with fair insight, fair judgment, and logical
thoughts. Id. He demonstrated a constricted/blunted
affect, cooperative behavior, and an anxious and depressed
following month, Plaintiff saw Ms. Sloane again; the mental
status examination results were unchanged. (Tr. 672).
2014, Plaintiff saw a new therapist at Portage Path, Ramone
Ford. (Tr. 667). He showed average mental activity, average
eye contact, and spoke clearly. Id. Plaintiff
reported no cognitive impairment, and demonstrated an
appropriate affect, depressed mood, and cooperative behavior.
Id. He was alert and oriented with fair insight and
logical thoughts. Id.
medication management appointment in July 2014, Plaintiff
reported he was “doing well in terms of his depression,
which is under control.” (Tr. 665). He stated his
medication Remeron was “working fine”.
did not show up for an individual therapy appointment on
September 4, 2014 (Tr. 662), and cancelled a therapy
appointment on October 20, 2014 (Tr. 658). At a therapy
session with Ms. Sloane on December 16, 2014, Plaintiff
reported feeling stressed and depressed. (Tr. 711). He had
financial issues, his mother was ill, and he had recently had
hernia surgery. Id.
first asked the VE to consider a hypothetical individual
“with no past jobs” ...