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Veal v. Commissioner of Social Security

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

January 9, 2018

BERT ANTHONY VEAL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Chief Judge, Patricia A. Gaughan

          REPORT AND RECOMMENDATION

          JAMES R. KNEPP, II UNITED STATES MAGISTRATE JUDGE

         Introduction

         Plaintiff 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 affirmed.

         Procedural Background

         Plaintiff 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).

         Factual Background

         Personal and Vocational Background

         Plaintiff 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).

         Plaintiff's Testimony

         Plaintiff 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. 297).

         Plaintiff 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).

         He used 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.

         Plaintiff 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).

         During 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).

         Relevant Medical Evidence

         Physical Impairments

         In 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.

         In 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 working. Id.

         On 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.

         Plaintiff 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. Id.

         In 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).

         At an 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. 649-50).

         In May 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 smoking. Id.

         Plaintiff 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.

         In 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).

         In 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 management. Id.

         Plaintiff 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).

         In May 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. 715).

         Mental Impairments

         At an 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. Id.

         At a 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. Id.

         In 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).

         In 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.

         Plaintiff 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).

         Plaintiff 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”. (Tr. 563).

         Plaintiff 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 thoughts. Id.

         Plaintiff 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.

         At a 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.

         On 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.

         At a 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 mood. Id.

         The following month, Plaintiff saw Ms. Sloane again; the mental status examination results were unchanged. (Tr. 672).

         In May 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.

         At a 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”. Id.

         Plaintiff 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.

         Hearing Testimony

         VE's Testimony

         The ALJ first asked the VE to consider a hypothetical individual “with no past jobs” ...


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