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Harris v. Berryhill

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

February 1, 2018

DUPONT HARRIS, Plaintiff,
v.
NANCY A. BERRYHILL[1], ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          BENITA Y. PEARSON, MAGISTRATE JUDGE.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Dupont Harris (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying his application for Supplemental Security Income (“SSI”). ECF Dkt. #1. In his brief on the merits, filed on March 7, 2017, Plaintiff asserts that the administrative law judge (“ALJ”) erred in the weight assigned to the opinion evidence. ECF Dkt. #12. Defendant filed a response brief on May 8, 2017. ECF Dkt. #14. 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.

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for SSI on June 14, 2013. ECF Dkt. #10 (“Tr.”) at 163.[2]The application was denied initially and upon reconsideration. Id. at 77, 90. Plaintiff then requested a hearing, which was held on June 23, 2015. Id. at 31. On January 28, 2016, the ALJ issued a decision denying Plaintiff's claim. Id. at 10. Subsequently, the Appeals Council denied Plaintiff's request for review. Id. at 1. Accordingly, the January 28, 2016, decision issued by the ALJ stands as the final decision.

         The instant suit was filed by Plaintiff on November 1, 2016. ECF Dkt. #1. On March 7, 2017, Plaintiff filed a brief on the merits. ECF Dkt. #12. Defendant filed a response brief on May 8, 2017. ECF Dkt. #14. Plaintiff did not file a reply brief.

         II. RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE

         A. Medical Evidence

         On March 22, 2012, Plaintiff sought treatment for auditory hallucinations and reported hearing voices instructing him to kill his mother, others around him, and himself.[3] Tr. at 271, 289. Plaintiff also reported a history of drug and alcohol abuse. Id. at 289. At the time of this treatment, Plaintiff was receiving housing and recovery services, and indicated that he was experiencing withdrawal symptoms. Id. at 274, 289.

         Plaintiff sought emergency medical treatment on January 1, 2013, stating that he had been drinking alcohol and smoking marijuana. Tr. at 436. Treatment notes indicated that Plaintiff was too intoxicated to provide a coherent history of his medical condition(s) and that the care provider was unable to understand most of what Plaintiff was saying due to severe slurring of his words. Id.

         On March 8, 2013, Plaintiff underwent a mental health assessment and complained of feeling anxious around “a lot of people, ” feeling depressed daily, anhedonia, and feelings of guilt. Tr. at 278. Plaintiff denied excessive anger and indicated that he was unsure if he experienced panic attacks. Id. Additionally, Plaintiff reported seeing monsters, paranoia, and that he stayed in his house due to fear. Id. Plaintiff reported that in the past year he had not had five or more alcoholic drinks on a single day and that he had not used illegal drugs in the past five years, however, Plaintiff also reported that he was in an inpatient treatment program in June 2012 for polysubstance abuse, including heroin and alcohol. Id. at 279-80. It was noted that Plaintiff displayed poor hygiene, clear speech, logical thought processes, fair judgment and insight, good recent and remote memory, sustained attention span and concentration, and a dysphoric and overwhelmed mood. Id. at 281. The licensed social worker interviewing Plaintiff issued a diagnostic impression of schizophrenia, paranoid type, rule-out polysubstance dependence, and a global assessment of functioning (“GAF”) score of fifty-one to sixty. Id. at 282.

         Plaintiff reported experiencing panic attacks on a nearly daily basis, feeling scared, and hearing voices on March 21, 2013. Tr. at 233. According to Plaintiff, he began having panic attacks when he was nine years old and started hearing voices when he was nineteen years old. Id. Plaintiff reported that his symptoms increased since he stopped using drugs the prior summer. Id. at 234. On examination, Plaintiff displayed: some signs of neglect and appeared older than his stated age; guarded behavior; orientation to time, person, and place; slow speech; a disorganized thought process; paranoid ideation; auditory hallucinations; visual hallucinations; poor judgment and insight; distractible attention span and concentration; euthymic mood; poor energy and motivation; fair concentration; and blunted affect. Id. at 236. Mary Lieder, the certified nurse practitioner (“CNP”) that performed the examination, diagnosed schizophrenia, paranoid type, and assigned a GAF score of thirty-one to forty. Id. at 237.

         On April 24, 2013, Plaintiff reported that he “felt a lot better, ” was sleeping better, and felt more at ease. Tr. at 231. Upon examination, Plaintiff displayed: adequate grooming; cooperative behavior; orientation to time, person, and place; spontaneous speech with normal rate and flow; logical and organized thought processes; euthymic mood; good appetite; good energy; constricted affect; sustained concentration and attention; recent and remote memory within normal limits; and fair judgment and insight. Id. Plaintiff reported that his paranoid thoughts were “going down” and that he was experiencing just a “little bit of hallucinating.” Id.

         Plaintiff reported to the emergency room on May 19, 2013, reporting that he had tripped and hit his head while walking up concrete steps. Tr. at 391. Plaintiff stated that he had been drinking alcohol that morning, prior to his fall. Id.

         In June 2013, Plaintiff reported that he continued to feel better and that his family noticed improvement. Tr. at 228. CNP Lieder examined Plaintiff and noted that he displayed: adequate grooming; cooperative behavior; orientation to time, person, and place; spontaneous speech with normal rate and flow; logical and organized thought processes; eurythmic mood; “fine” appetite; better energy and motivation; sustained attention and concentration; recent and remote memory within normal limits; and fair judgment and insight. Id. It was also noted that Plaintiff reported that his paranoid thoughts were “much decreased, ” and that his visual and auditory hallucinations were very infrequent. Id. CNP Lieder continued Plaintiff's medications at the same dose. Id. at 229.

         On August 23, 2013, Plaintiff underwent a psychological consultative evaluation with an examining psychologist, Mitchell Wax, Ph.D. Tr. at 462. Dr. Wax noted that Plaintiff could not provide clear information about why he could not work, instead simply stating “I can't work.” Id. Continuing, Dr. Wax noted memory problems when Plaintiff could not remember much of his lengthy history of arrests and incarcerations. Id. at 463. Dr. Wax noted that Plaintiff indicated that he was a recent alcoholic and drug abuser, and stated, “I was drinking daily, and I've been drinking off and on for many years.” Id. Plaintiff reported that he last used crack cocaine and phencyclidine (“PCP”) in 2012, and stated, “I was using drugs off and on for many years too.” Id. Next, Plaintiff stated that he had been drug free for the past year.

         As for daily activity, Plaintiff reported that went to bed at 11:00 P.M. and woke at 8:00 A.M. Tr. at 464. Plaintiff stated that he knew how to cook, but did not cook. Id. Continuing, Plaintiff indicated that his female friend cooked for him, washed his laundry, and cleaned his apartment. Id. Plaintiff stated that on a typical day he watched television by himself until noon, then took a two-hour walk to exercise his leg. Id. Following his walk, Plaintiff would watch television until 5:00 P.M. Id. Plaintiff stated that his mother and brother came to his apartment four to five times a week to visit, and sometimes they would stay for dinner. Id. Regarding the female friend, Plaintiff stated that she was not a girlfriend, but that she came over daily. Id. Plaintiff denied contact with any other friends and stated that he attended church twice per month. Id.

         Dr. Wax indicated that Plaintiff presented as a pleasant man who had intermittent memory problems. Tr. at 464. Continuing, Dr. Wax noted that Plaintiff appeared confused and distant initially, but that he was able to focus and become more alert as the session progressed. Id. Dr. Wax remarked that Plaintiff displayed intermittent mumbling to himself and that at times Plaintiff appeared to withdraw into his own thoughts. Id. Next, Dr. Wax indicated that Plaintiff stated that he hallucinated and heard voices. Id. Plaintiff's speech was initially vague and circumstantial, and Dr. Wax noted that Plaintiff was able to focus for five to ten minutes before drifting off. Id. at 465. When Plaintiff drifted off, he had difficulty providing information about himself and appeared to be listening to auditory hallucinations. Id. Plaintiff reported having panic attacks twice per week and described his mood as depressed. Id. Dr. Wax was unable to estimate Plaintiff's IQ due to his psychosis, and indicated that he appeared to be hallucinating during the evaluation. Id. Following the examination, Dr. Wax diagnosed Plaintiff with: schizoaffective disorder, bipolar type, and polysubstance dependence in remission for one year, and assigned a GAF score of thirty-one. Id. at 466. Dr. Wax opined that Plaintiff would have difficulty: understanding, remembering, and carrying out instructions for a job; maintaining attention and concentration; performing simple tasks during psychotic episodes; responding appropriately to coworkers, supervisors, and work pressures in a work setting; and attending and focusing regularly on a job. Id. at 466-67.

         On September 9, 2013, a state agency psychologist, Robelyn Marlow, Ph.D., reviewed Plaintiff's medical file and opined that he: would be able to maintain concentration, attention, persistence, and pace for simple tasks; and retained the ability to interact superficially with others and perform routine tasks when sober. Tr. at 85-87. Dr. Marlow noted that Dr. Wax's opinion appeared to be an overestimate of Plaintiff's limitations that was based on a snapshot of his functioning. Id. at 87. On December 16, 2013, state agency psychologist Karl Voyten, Ph.D., concurred with Dr. Marlow's assessment. Id. at 102-103.

         Plaintiff was examined by CNP Lieder on September 26, 2013. Tr. at 225. On examination, Plaintiff reported that he was still feeling better, but that the “sometimes wakes up feeling he is dead.” Id. at 225. Plaintiff also stated that he believed he was “getting along ok with people” and that he was worried about his mother's declining health. Id. CNP Lieder noted that Plaintiff displayed: adequate grooming; cooperative behavior; orientation to time, person, and place; spontaneous speech with normal rate and flow; logical and organized thought processes; a “more depressed” mood; “fine” appetite; fair energy and motivation; constricted affect; recent and remote memory within normal limits; and fair judgment and insight. Id. at 226. Continuing, CNP Lieder indicated that Plaintiff reported that his paranoid thoughts had worsened, visual hallucinations were occurring occasionally, and auditory hallucinations were “calming down.” Id.

         On October 9, 2013, CNP Lieder completed a medical source statement concerning Plaintiff's mental capacity. Tr. at 479. CNP Lieder opined that Plaintiff would have the rare ability, meaning the activity could not be performed for any appreciable time, in fifteen of the twenty-two categories surveyed in the medical source statement, including the ability to: follow work rules; maintain attention and concentration for extended periods of two-hour segments; maintain regular attendance and being punctual with customary tolerance; deal with work stress; behave in an emotionally stable manner; and complete a normal workday and workweek without interruption from psychologically-based symptoms and perform at a consistent pace without an unreasonable number ...


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