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Hatfield v. Berryhill

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

January 22, 2018

ROBIN HATFIELD, Plaintiff,
v.
NANCY BERRYHILL, Defendant.

          Chief Judge Edmund A. Sargus, Jr.

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Robin Hatfield, who is proceeding without the assistance of counsel, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for supplemental security income (“SSI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 15) (“SOE”), the Commissioner's Memorandum in Opposition (ECF No. 21) (“Opposition”), and the administrative record (ECF No. 9). No reply has been filed. For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff filed her application for benefits on June 14, 2013, alleging that she has been disabled since January 1, 2001, due to mental problems, neuropathy, and weight problems. (R. at 81-92, 167-72.) Plaintiff's application was denied initially and upon reconsideration. (R. at 81-108.) Plaintiff sought a de novo hearing before an administrative law judge. Administrative Law Judge Rita S. Eppler (“ALJ”) held a hearing on May 21, 2015, at which Plaintiff, represented by counsel (Gregory Klima), appeared and testified. (R. at 2-35.)[1] Carl Hartung, a vocational expert, also appeared and testified at the hearing. (R. at 29-35.) On September 14, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 60-76.) On January 7, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 51-54.) Plaintiff then timely commenced the instant action.

         II. HEARING TESTIMONY[2]

         A. Plaintiff's Testimony

         Plaintiff testified at the administrative hearing that she was born on June 10, 1974. (R. at 9.) She is 5'7” tall and weighs 360 pounds. (R. at 11.) Plaintiff is not married, but has a boyfriend. (Id.) She has one child who is twenty-three or twenty-four years old. (R. at 9-10.)

         Plaintiff completed ninth grade and took special education classes in school. (R. at 9, 13.) Plaintiff testified that her reading skills are “[n]ot good.” (R. at 12.) However, she is able to follow instructions on a package to cook an item. (Id.)

         Plaintiff does not currently have a driver's license, but had one in the past. (R. at 11.) She has two friends who take her places and one of them brought her to the administrative hearing. (R. at 11-12.)

         Plaintiff testified that she started drinking at age seventeen until approximately age twenty-six or twenty-seven. (R. at 14-15.) Plaintiff admitted that she “used to be a bad alcoholic” and would drink between five and eight forty-ounce drinks a day. (R. at 13-14.) She was convicted three times for drinking and driving. (R. at 15-16.) She also acquired an extensive misdemeanor record while drinking, including domestic violence, drug abuse, and attempted theft. (R. at 27.) She last drank a wine cooler about three months ago. (R. at 13.)

         Plaintiff receives food stamps and has a medical card. (R. at 16.) Plaintiff takes prescribed medication and testified that she becomes depressed if she does not take her medicine. (R. at 17.)

         Plaintiff testified that she can stand and walk for five or ten minutes before she needs to sit down and take a break. (R. at 18.) Plaintiff can sit all day without a problem as long as she can sometimes stand up and rub her legs in grain alcohol. (R. at 18-19.) Plaintiff can lift between ten and fifteen pounds. (R. at 19.)

         Plaintiff could not recall when she last worked, but remembered that her last job was as a janitor with Goodwill Industries. (Id.) She worked there for six months or less. (R. at 19-20.)

         Plaintiff currently receives mental health treatment. (R. at 20.) She has been receiving such treatment for the last four or five years since she had a nervous breakdown. (Id.) She testified that she has been hospitalized two or three times for mental health issues. (Id.)

         Plaintiff described a typical day. (R. at 21-22.) She would get out of bed no later than 11:00 a.m., get her medicine, and walk with her cane into the kitchen. (R. at 21.) She would prepare breakfast, such as an egg and fried bologna. (Id.) After she eats, she goes to her lazy boy chair and elevates her legs, and watches a little bit of television. (Id.) She also colors. (R. at 21-22.) Usually, a friend visits her in the afternoon. (R. at 22.) Sometimes she becomes hungry and eats a cold-cut sandwich and then takes her medicine. (Id.) Sometimes she takes a bath and sometimes her friend assists her into the bath tub. (Id.) After her bath, Plaintiff returns to her chair. (Id.) A friend usually makes a dinner for her, which she reheats later. (Id.) Plaintiff is learning to sew. (Id.) Her friends from church take her to church services once or twice a month. (R. at 23.) She goes to the park twice a week if it is nice outside. (R. at 24.) She goes to bed around 9:00 or 10:00 p.m. (Id.)

         Plaintiff does perform household chores, including cleaning her bathroom, grocery shopping, and sometimes doing the dishes. (R. at 22-23.) A friend does her laundry. (R. at 23.) A person from church assists with sweeping, dusting, mopping, and vacuuming. (Id.)

         Plaintiff uses a cane. (R. at 24.) She believed that “Hathaway” prescribed the four-poster cane approximately one and a half to two years ago. (R. at 24-25, 27.) She has consistently used a cane since a total right knee replacement in May of 2014. (R. at 25.) Plaintiff complains of numbness and pain in her knees. (R. at 26-28.) Her left knee presently bothers her the most and there is constant pain. (R. at 28-29.) Plaintiff sees Dr. Hatheway once a month to receive steroid shots in her knees. (R. at 29.)

         B. Vocational Expert Testimony

         Carl Hartung testified as a vocational expert (“VE”) at the May 21, 2015, administrative hearing. (R. at 29-35.) The VE testified that Plaintiff had not engaged in any work that reaches the level of substantial gainful activity. (R. at 31-32.) The ALJ proposed a hypothetical that presumed an individual with Plaintiff's age, education, and no work experience, having the ability to lift twenty pounds occasionally, ten pounds frequently, can sit approximately six or more hours in an eight-hour day, can stand and walk combined for a total of four hours in an eight-hour day, can occasionally climb stairs, stoop, kneel, crouch and crawl, and can frequently balance and is precluded from performing work that requires ladders, ropes or scaffoldings, and can understand, remember and follow simple, routine type of tasks, is limited to only superficial interaction with supervisors, coworkers and occasional interaction with the public, and is limited to low stress work defined as no strict production quotas or time pressures. (R. at 31.) The VE testified that the hypothetical individual could perform work as an eyeglass frame polisher, document preparer, inspector, pari-mutuel ticket checker, all of which were unskilled, sedentary positions and all of which were available nationally and regionally. (R. at 31-34.)

         The ALJ next asked the VE to presume the same individual as before with mental limitations to permit understanding, remembering, and following simple, routine tasks, concentration, persistence and pace is not limited for those same type of simple, repetitive tasks and interaction is limited superficial for both supervisors, coworkers, as well as the public, and the same limitations for stress in the workplace, no strict production quotas or time pressures. (R. at 34.) The VE testified that these limitations would not impact the hypothetical individual's ability to perform the sedentary work previously identified. (Id.) The ALJ asked the VE whether this individual can perform past work or any other work if the ALJ finds Plaintiff's testimony to be credible and supported by the medical evidence. (Id.) The VE testified that with the restrictions and limitations Plaintiff identified, specifically elevating her lower extremities, pain in her lower extremities, as well as anxiety and depression, he would not be able to identify jobs that would tolerate such limitations and restrictions in the workplace. (R. at 34-35.)

         III. MEDICAL RECORDS[3]

         A. J. Mark Hatheway, M.D.

         Plaintiff presented to J. Mark Hatheway, M.D. for evaluation of knee problems on March 25, 2014. (R. at 617-18, 932-33.) Dr. Hatheway opined that Plaintiff “is severely disabled because of the pain, stiffness and crepitation in the knees” and that she “is severely disabled and has severe osteoarthritis of both knees.” (R. at 617, 932.) He discussed the risks of a total right knee replacement, but Plaintiff wanted to proceed with the procedure. (R. at 617-18, 932-33.)

         On May 7, 2014, Dr. Hatheway performed a total right knee replacement. (R. at 625- 27.) Following the surgery, Dr. Hatheway reported that the right knee “excellent overall alignment” and “excellent stability throughout a complete range of motion of the knee[.]” (R. at 626.) Plaintiff tolerated the procedure well. (Id.)

         On February 26, 2015, Plaintiff presented to Dr. Hatheway for follow up of her knee problems. (R. at 624.) Plaintiff reported that “she is pleased with the results” of replacement surgery on her right knee and Dr. Hatheway noted that the right knee healed nicely and that she had full extension and flexion to 135 degrees. (Id.) He also noted that her right knee continues to do well. (Id.) Dr. Hatheway reported that x-rays of Plaintiff's left knee were taken and that she has medial and patellofemoral arthritic changes in her left knee. (Id.) Dr. Hatheway reported that he was scheduling Plaintiff for left total knee replacement in the near future. (Id.)

         B. James C. Tanley, PhD.

         On January 5, 2014, [4] Plaintiff presented to consultative examiner James C. Tanley, PhD. upon referral by the Ohio Division of Disability Determination for psychological evaluation relating to her claim for mental disability benefits. (R. at 608-13.) Plaintiff reported that she is seeing a psychiatrist and that she has gone to North Central Mental Health for two years. (R. at 608.) Plaintiff reported that she is bipolar, does not like to be around people, and likes to stay inside in the dark. (Id.) Plaintiff stated that she was voluntarily psychiatrically hospitalized for about a week before her mother was murdered. (R. at 609.) She takes psychoactive medication, which helps her. (Id.)

         Plaintiff stated that her childhood was not that good because her mother was physically abusive; her parents divorced when she was thirteen or fourteen years old; and she watched her father die. (Id.) Plaintiff reported that she is divorced and lives alone and does not know where her daughter and half-brother are. (Id.) Plaintiff went as far as the ninth or tenth grade in SLD (special learning disability) classes. (Id.) Her grades were “bad” and she left school when she became pregnant. (Id.)

         Dr. Tanley noted that Plaintiff is morbidly obese (5'7” tall, weighing 350 pounds), generally cooperative and demonstrating no eccentricities of manner, impulsivity, or compulsivity. (R. at 610.) Her grooming, posture, and general motor behavior were unremarkable. (Id.) Dr. Tanley noted that Plaintiff's velocity and volume of speech were adequate and that her thoughts were coherent, relevant, and goal-oriented. (Id.) He observed no articulation errors, reduced intelligibility, or other notable speech anomalies. (Id.) Although the records he reviewed indicated a diagnosis of Psychotic Depressive Disorder, Dr. Tanley reported that Plaintiff did not endorse any psychotic symptomology during the appointment. (Id.) Upon questioning, Plaintiff gave no evidence of preoccupations, religiosity, misinterpretations, suspiciousness, hostility, aggressivity, ideas of reference, delusions, paranoid ideation, hallucinations, thoughts of alien control, grandiosity, omnipotence, or any unusual thought content. (Id.) Dr. Tanley reported that her affect was appropriate to thought content, but her eye contact was variable. (Id.) While she cried during the examination, Plaintiff did not report any suicidal/homicidal ideation. (Id.) Her psychomotor activity was unremarkable and there were no allegations of guilty, hopelessness, helplessness, or worthlessness. (Id.) Dr. Tanley reported that Plaintiff alleged anhedonia with mood problems, but without inflated self-esteem or grandiosity. (Id.) Dr. Tanley also reported no motor or autonomic manifestations and that she did not evidence apprehension, vigilance, scanning, fear, or sense of impending doom. (Id.) Plaintiff was alert and oriented times four during the examination. (Id.) Dr. Tanley opined that her recent and remote memory were superficial to poor. (Id.) He estimated that her current level of intellectual functioning to be in the extremely low range and that is what would be expected in the work setting. (R. at 610, 612.) However, Dr. Tanley opined that her ability to maintain attention and concentration, persistence and pace was unimpaired during the interview portion of the consultative examination. (R. at 612.) Plaintiff had no difficulty understanding the task requirement of the examination and responded appropriately and in a timely fashion to his questions. (Id.) Dr. Tanley opined that she would be expected to show increasing and significant difficulties with tasks of increasing complexity and multistep tasks. (Id.) He further opined that if her psychological problems were to worsen, they would negatively impact this area. (Id.) According to Dr. Tanley, Plaintiff would be at serious risk for trying to deal with the social aspects of work and to deal with workplace pressure. (Id.)

         C. Elizabeth Martinelli, PA-C

         On March 3, 2015, Elizabeth Martinelli, PA-C, reported that Plaintiff has “severe osteoarthritis of her knees which renders her disabled.” (R. at 629, 917.)

         IV. ADMINISTRATIVE DECISION

         On September 14, 2015, the ALJ issued her decision. (R. at 60-76.) At step one of the sequential evaluation process, [5] the ALJ found that Plaintiff had not engaged in substantially gainful activity since her application date of June 14, 2013. (R. at 62.) The ALJ concluded that Plaintiff had the severe impairments of morbid obesity, status post right knee replacement in May 2014 secondary to osteoarthritis of the knee, neuropathy, degenerative disc disease, and depressive disorder. (Id.) He found that the consultative examiner, Dr. Tanley, estimated Plaintiff's current level of intellectual functioning to be in the ...


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