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Brown v. Berryhill

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

January 11, 2018

AMBER BROWN, Plaintiff,

          SARA LIOI JUDGE.



         Plaintiff Amber Brown (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying her application for Disability Insurance Benefits (“DIB”). ECF Dkt. #1. In her brief on the merits, filed on March 9, 2017, Plaintiff asserts that the administrative law judge's (“ALJ”) decision: (1) violates the treating physician rule; and (2) is not supported by substantial evidence. ECF Dkt. #14. Defendant filed a response brief on May 10, 2017. ECF Dkt. #16. Plaintiff did not file a reply brief.

         For the following reasons, the undersigned RECOMMENDS that the Court AFFIRM the ALJ's decision and dismiss Plaintiff's case in its entirety with prejudice.


         On December 16, 2013, Plaintiff protectively filed an application for DIB. ECF Dkt. #12 (“Tr.”) at 28, 160-66.[2] The application was denied initially and upon reconsideration. Id. Plaintiff then requested a hearing, which was held on August 5, 2015. Id. at 46. On August 27, 2015, the ALJ issued a decision denying Plaintiff's claim. Id. at 25. Subsequently, the Appeals Council denied Plaintiff's request for review. Id. at 1. Accordingly, the August 27, 2015, decision issued by the ALJ stands as the final decision.

         Plaintiff filed the instant suit seeking review of the ALJ's August 27, 2015, decision on October 31, 2016. ECF Dkt. #1. On March 9, 2017, Plaintiff filed a brief on the merits. ECF Dkt. #14. Defendant filed a response brief on May 10, 2017. ECF Dkt. #16. Plaintiff did not file a reply brief.


         In January 2013, Plaintiff sought psychiatric care at Neighborhood Family Practice. Tr. at 358-59. Plaintiff reported a history of depression.[3] Id. Over the course of approximately twenty primary care visits from January 2013 through July 2015, Plaintiff consistently displayed normal mood, affect, behavior, judgment, and thought content on examination. Id. at 287, 293, 299, 312, 317, 324, 329, 336, 341, 348, 361, 489, 500, 792, 918, 923, 926, 981, 991, 1006. Plaintiff underwent a mental health examination on February 11, 2013, during which it was noted that she was twenty-four years old and reported that the onset of her symptoms occurred two years prior. Id. at 384. At the examination, Plaintiff reported that she was the caretaker for her ailing parents, had a two-year old daughter, and that her husband was a heroin addict who was serving time in prison for involuntary manslaughter. Id. at 385. Regarding her work history, Plaintiff stated that she worked at Giant Eagle for six years, but was let go due to missing too much work once her parents became ill. Id. It was noted that the illnesses of her parents and relationship stress with her husband were contributing factors to Plaintiff's mental state. Id.

         On May 10, 2013, Richard Hill, M.D., stated that Plaintiff reported significant depression, but added that her medications had “worked wonders” and helped “even out” her mood. Tr. at 380. Dr. Hill noted that Plaintiff stated that she was diagnosed as “schizoaffective with bipolar tendencies” in her early teenage years, and that she had experienced auditory and visual hallucinations in the past, but was not experiencing hallucinations at the time of the examination. Id. Dr. Hill further noted that Plaintiff: was morbidly obese; dressed in casual clothes that fit; had makeup that was applied carefully; spoke rapidly and in a pressured manner; had thoughts that were “a bit tangential at times, ” but most often circumstantial; responded well to refocusing; denied auditory and/or visual hallucinations; denied paranoia or suspiciousness; and conducted herself in a “somewhat ‘overly familiar' manner.” Id. at 382. Plaintiff was diagnosed with depression and vertigo, and Dr. Hill issued a rule-out diagnosis of schizoaffective disorder. Id. at 382.

         At a second appointment with Dr. Hill, on May 28, 2013, Plaintiff reported that she had not heard voices or experienced paranoia since high school, and that she had been doing “quite well” during her time working at Giant Eagle. Tr. at 377. Plaintiff denied auditory or visual hallucinations. Id. Continuing, Plaintiff stated that she had an individualized education program in school because she “couldn't sit still and couldn't pay attention, ” but that she was never diagnosed with attention deficit hyperactivity disorder (“ADHD”). Id. Dr. Hill assessed that bipolar disorder was unlikely and that it was “much more likely” that Plaintiff had ADHD, and prescribed medication accordingly. Id. at 378.

         In June 2013, Plaintiff told Dr. Hill that she: finished tasks before moving on to another; was better able to focus without being distracted by other things, citing a movie as an example; and felt a bit more calm and “less driven by a motor.” Tr. at 374. Dr. Hill indicated that Plaintiff was casually dressed and groomed, and had her “younger daughter and cousin” with her for the appointment. Id. Plaintiff again denied auditory or visual hallucinations. Id. at 375. Continuing, Plaintiff stated that she slept four to five hours per night, her appetite was stable, and that she did not experience dangerous thoughts or intentions. Id. In August 2013, Plaintiff reported that her ability to focus had improved greatly, and that she was less “scattered” and more organized and calm. Id. at 371. Plaintiff also reported increased periods of insomnia and that she had been awake for seventy-two hours straight twice in the last month. Id. Dr. Hill noted that Plaintiff: was neatly dressed and groomed, with her hair neatly styled; spoke at a normal rate/rhythm and at a normal volume; was not agitated or irritable; and denied psychosis, paranoia, and dangerous thoughts/intentions. Id. Additionally, Dr. Hill revised his assessment and plan to omit any indication of bipolar disorder, instead only listing depressive disorder. Id.

         On September 6, 2013, Dr. Hill indicated that Plaintiff reported increased rage and anger, and that she was lashing out at her parents and daughter. Tr. at 368. Dr. Hill reported that Plaintiff's mood and demeanor were “markedly different” from her previous appointment, and that she appeared to be “on edge.” Id. On September 23, 2013, Plaintiff reported to a nurse practitioner that she had an argument with her father and was staying with a friend for the day. Id. at 292. In November 2013, Plaintiff reported that she was working on finding a job. Id. at 510.

         Plaintiff returned to Dr. Hill on December 11, 2013, and reported that she had been out of her ADHD medication for several weeks and was “fidgeting, moving all around, and talking fast, ” and that she was feeling “overwhelmed and then driving everyone at my house crazy because [she] became angry.” Tr. at 364. Plaintiff stated that she “used to be a cutter.” Id. Continuing, Plaintiff told Dr. Hill that she had recently seen bugs coming out of her couch and that she had not had any other visual hallucinations in the prior seven years. Id. Plaintiff indicated that she had tried to work many times, but that stress usually led to irritability and her termination. Id. at 365. Dr. Hill noted that Plaintiff: was dressed neatly; had very good hygiene and grooming, however, Dr. Hill also stated that her hygiene was poor and she was somewhat malodorous; was able to attend well and maintain eye contact; had logical and goal-oriented thoughts; appeared to be “on edge”; spoke loudly and with pressure; denied dangerous thoughts/intentions; and was sleeping very well with the addition of a new medication. Id. at 365. Additionally, Dr. Hill noted that Plaintiff wondered if she should pursue disability benefits. Id. Dr. Hill diagnosed Plaintiff with ADHD and insomnia. Id.

         Plaintiff completed a function report on December 28, 2013. Tr. at 191. In the report, Plaintiff indicated that she stayed at home with her two-year old daughter and that she helped care for her disabled parents. Id. at 193. Continuing, Plaintiff noted that she cleaned, drove her parents to doctor's appointments, and shopped for food. Id. at 193, 195. Plaintiff stated that she prepared one meal a day and that she was able to keep up with the house work when she took her medications. Id. at 196. When asked if she had problems with family, friends, neighbors, or others, Plaintiff stated that she had problems with her sisters and parents due to anger and anxiety, and that she found it “hard to get along with anyone most of the time.” Id. at 197. Plaintiff indicated that her hobbies and interests consisted of watching television, playing with her daughter, and playing games on the computer or television. Id. at 198.

         State agency psychological consultant, Cynthia Waggoner, Ph.D., evaluated Plaintiff's mental impairments on January 10, 2014. Tr. at 80. Dr. Waggoner found that Plaintiff medically supported mental impairments of ADD/ADHD and affective disorder did not satisfy the criteria of 20 C.F.R. Part 404, Subpart P, Appendix 1 §§ 12.02 and 12.04. Id. Continuing, Dr. Waggoner assessed that Plaintiff had: mild restriction in activities of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation of extended duration. Id. at 83-85. Dr. Waggoner found that Plaintiff was capable of: understanding and remembering simple one- to three-step instructions; sustaining concentration and persistence on simple one- to three-step tasks in a setting devoid of fast-paced demands; interacting superficially; and adapting to infrequent changes in a static work setting. Id. Further, Dr. Waggoner stated that Plaintiff had a history of hallucinations as a teenager, but had not experienced any episodes in several years, and reported that she had been able to sustain employment. Id. at 85. Dr. Waggoner also noted that Plaintiff helped her parents. Id. Carl Tishler, Ph.D., affirmed Dr. Waggoner's findings on reconsideration. Id. at 94-95, 97-99.

         In February 2014, Plaintiff reported increased anxiety and worsening depression, and that she did not think her medications were working any longer. Tr. at 497. Plaintiff was diagnosed with diabetes, neuropathy, and dermatitis. Id. at 498. In March 2014, Plaintiff visited Dr. Hill with her mother. Id. at 492. Dr. Hill indicated that Plaintiff's mother stated that her behavior had improved significantly since her teenage years, and that she had been diagnosed with schizoaffective disorder bipolar subtype and oppositional defiant disorder as a teenager. Id. Dr. Hill noted that Plaintiff still appeared to be “on edge, ” but that she had vastly improved since her previous appointment. Id. Plaintiff denied dangerous thoughts/intentions, as well as any psychosis or paranoia. Id. The following day, Plaintiff reported to the Parma Community General Hospital complaining of a headache and anxiety. Id. at 610. Joseph Cooper, D.O., noted a flat affect and that he believed Plaintiff was baseline. Id. Dr. Cooper indicated that Plaintiff did not appear to be a threat to herself or others, and was not acting psychotic. Id. at 610-11. Plaintiff was diagnosed with a headache and anxiety/depression, and Dr. Cooper recommended a change to her medication before discharging her without further testing. Id. at 611.

         Plaintiff reported hypertension, weight management problems, and depression in May 2014. Tr. at 790. In July 2014, Melanie Golembiewski, M.D., examined Plaintiff. Tr. at 929. Dr. Golembiewski stated the Plaintiff's back pain seemed to subside over the course of the visit and that the location of the pain was not consistent with Plaintiff's large ovarian cyst. Id. Continuing, Dr. Golembiewski indicated that she was “worried [Plaintiff] will seek ER services again, though they do not seem warranted at this time.” Id.

         Plaintiff returned to Dr. Hill in November 2014, and reported that she saw the “snow moving like sand, a car distorting itself back and forth, a ‘monster like thing' that she saw under a blanket, and ‘people' that she talked to on one occasion.” Tr. at 1001. Additionally, Plaintiff told Dr. Hill that her ex-husband was released from prison and had been harassing her with phone calls. Id. Dr. Hill noted that Plaintiff: was neatly dressed and groomed; well nourished; and reported insomnia, decreased energy, tearfulness, and limited hallucinations. Id. After the examination, Dr. Hill diagnosed adjustment disorder with mixed emotional features and schizoaffective disorder bipolar subtype. Id. at 1002. Dr. Hill recommended psychotherapy, encouraged Plaintiff to become involved in an activity to improve her self-esteem, and adjusted her medications by reducing her antidepressant and eliminating her ADHD and sleep-aid medications. Id.

         Three days later, on November 24, 2014, Plaintiff was admitted to Southwest General Hospital complaining of weakness, fatigue, and memory loss. Tr. at 942. Plaintiff was diagnosed with anxiety and schizoaffective disorder, but was noted to be in stable condition. Id. at 945. After the diagnosis, Plaintiff was transferred to Oakview Behavioral Health Center. Id. at 949. Upon transfer, Plaintiff stated that she was not taking care of herself mentally or physically, and that she had been experiencing psychotic episodes. Id. at 494. Plaintiff reported seeing “bugs coming out of the couch” and people that did not exist. Id. As for stressors, Plaintiff cited her mentally abusive ex-husband. Id. Plaintiff denied current visual hallucinations and other psychiatric symptoms, and stated that she “really need[ed] outpatient help.” Id. at 956. The nurse practitioner examining Plaintiff stated that “[i]t is also important to note patient stated that she recently filed for disability.” Id. After the examination, Plaintiff was diagnosed with schizoaffective disorder by history, ADHD by history, rule-out post-traumatic stress disorder, rule-out “factitious disorder vs. malingering, ” traits or borderline personality disorder, and assigned a global assessment of functioning (“GAF”) score of thirty. Id. at 962. Plaintiff was discharged on November 26, 2014, with the same diagnosis other than an increased GAF score of forty-five to fifty and medication adjustments. Id. at 970-71.

         In December 2014, Plaintiff visited a licensed professional clinical counselor who noted that Plaintiff: arrived on time; dressed appropriately for the weather; was well-groomed; had normal thought process and content; was cordial and cooperative; displayed limited eye contact; was somewhat anxious; had normal speech; and displayed logical and thoughtful judgment, good insight, and the ability to verbalize feelings and thoughts. Tr. at 999. Plaintiff also reported that she is responsible for keeping her house clean. Id. In January 2015, Plaintiff indicated that her friend's family was staying with her and her parents while they saved money for their own place to live. Id. at 994. Additionally, Plaintiff reported that she spent four days at her cousin's home at the end of the year and that it was like a “little vacation.” Id. at 995. Plaintiff also stated that she changed her phone number so her ex-husband could not contact her and that she was throwing away his possessions that were still in her home. Id. It was noted that Plaintiff recognized that she had “a lot going on around her and has a lot she [could] get overwhelmed with, ” and that she agreed with the recommendation that she focus on herself and her self-care. Id.

         In February 2015, Plaintiff visited Dr. Hill and reported that: she was seeing people and formed images prior to her admission to the hospital in November 2014; her ex-husband found a way to reach her despite the changed phone number; and she was feeling much better on her medication regimen. Tr. at 987. On examination, Plaintiff: appeared well nourished; was neatly dressed and groomed; had good hygiene; had dyed hair and carefully applied makeup; was somewhat “dressed up”; and somewhat historic/dramatic. Id. at 987-88. Dr. Hill noted that a fictitious/malingering diagnosis was entertained in the hospital, but that Plaintiff's borderline personality disorder, which was also noted, “may influence sense [Plaintiff] is malingering.” Id. at 988. Additionally, Dr. Hill indicated that Plaintiff may have been “splitting” and remarked that her report that she became ill after a change in her medications may have actually had to do with her ex-husband being released from prison. Id. In March 2015, Dr. Hill indicated that Plaintiff reported increased anxiety and stress due to a possible pregnancy. Id. at 985. Dr. Hill explained to Plaintiff that given the complexity of her medical/psychiatric status and strong psychosocial component, he was no longer comfortable treating her if she did not make arrangements to get concurrent psychotherapy, as repeatedly recommended. Id. at 985-86. Plaintiff stated that transportation to the counseling session was an issue and she was offered bus tickets by Dr. Hill. Id. Plaintiff indicated that the bus tickets would help. Id. at 986.

         On April 8, 2016, Dr. Hill completed a check-the-box style Medical Source Statement regarding Plaintiff's mental capacity. Tr. at 940-41. Dr. Hill opined rated Plaintiff's capabilities to perform basic mental activities of work on a sustained basis as follows: frequently follow work rules; frequently use judgment; occasionally maintain attention and concentration for extended periods of two-hour segments; frequently respond appropriately to changes in the work setting; rarely maintain regular attendance and be punctual with customary tolerance; rarely deal with the public; rarely relate to co-workers; rarely interact with supervisors; occasionally function without redirection; occasionally working in coordination with or proximity to others without being distracted; occasionally working in coordination with or proximity to others without being distracting; rarely deal with work stress; rarely complete a normal workday and workweek without interruption from psychologically based symptoms and perform at a consistent pace without an unreasonable number of rest periods; occasionally understand, remember, and carry out complex job instructions; occasionally understand, remember, and carry out detailed, but not complex, job instructions; occasionally understand, remember, and carry out simple job instructions; frequently maintain appearance; frequently socialize; rarely behave in an emotionally stable manner; rarely relate predictably in social situations; occasionally manage funds and scheduling; and occasionally leave home on her own. Id. After completing the check-the-box portion of the form, Dr. Hill listed Plaintiff's diagnosis and symptoms that support the assessment as schizoaffective disorder, bipolar personality disorder, hallucinations, self injurious behavior, and chaotic relationships. Id. at 941.

         B. ...

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