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Garcia v. Commissioner of Social Security

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

February 12, 2018



          James R. Knepp, II Magistrate Judge


          Plaintiff Mary Lou Garcia (“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). The parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 11). For the reasons stated below, the undersigned affirms the decision of the Commissioner.

         Procedural Background

         Plaintiff filed for SSI in August 2013, alleging a disability onset date of August 15, 2013. (Tr. 151). Her claims were denied initially and upon reconsideration. (Tr. 92, 104). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 115). Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on September 2, 2015. (Tr. 26-56). On November 2, 2015, the ALJ found Plaintiff not disabled in a written decision. (Tr. 12-22). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-4); see 20 C.F.R. §§ 416.1455, 416.1481. Plaintiff timely filed the instant action on November 3, 2016. (Doc. 1).

         Factual Background

         Personal Background and Testimony

         Plaintiff was born in September 1963, making her 49 years old as of her alleged onset date, and 52 years old at the time of the ALJ's decision. See Tr. 156. She lived with her husband and fifteen-year-old son. (Tr. 34). Plaintiff had past work as a hotel housekeeper. (Tr. 38-39).

         In September 2013, Plaintiff completed a function report, stating she had “no abilities . . . to work anywhere or with anyone.” (Tr. 182). She claimed her “feet, legs[, and] hands [were not] functional”. Id. In describing her daily activities, Plaintiff reported making coffee, getting her son up for school, “get[ting] mad and yell[ing] [be]cause the trash is not taken out”, “[r]oll[ing] cig[arettes]”, “try[ing] to do dishes” (“I'll start then my back goes out.”), and watching the news. (Tr. 183). Plaintiff said she did not go anywhere, and could not be around people (“People are out to get me”). Id. She checked a box indicating she had “no problem” with personal care, but noted forgetting shower, and needing reminders to take medication. (Tr. 183-84). Plaintiff reported she could prepare her own meals. (Tr. 184) (“Cereal, sandwiches, pizza rolls, peanut butter sandwiches, corn dogs”). She reported that she cooked spaghetti “once in awhile” and that she did not cook “hardly at all”. Id. Plaintiff reported she straightened the living room, and “tr[ied] to clean every day but . . . [could not] finish what [she] started.” Id. Plaintiff stated she could not bend or lift, and reaching up caused her back to “go[] out.” (Tr. 185). She reported her “mind starts going” and she gets so “frustrated that [she] can't do anything.” Id. She indicated she went outside twice per week, and could drive or use public transportation. Id. She checked a box indicating she could go out alone. Id. She grocery shopped twice per month for around two hours. Id. Plaintiff reported watching television and reading as hobbies. (Tr. 186). Plaintiff stated she did not get along with her neighbors and had no friends. (Tr. 187). Plaintiff indicated she had difficulty with squatting, bending, reaching, walking, seeing, memory, completing tasks, concentration, understanding, following directions, using her hands, and getting along with others. Id. Plaintiff reported difficulties with stress and changes in routine, as well as with authority figures. (Tr. 188). She reported using two arm braces, a TENS unit, and a back brace. Id.

         At the September 2015 hearing, Plaintiff testified she stopped working in 2009 because she “got real sick”, had back problems, and her psychologist told her she should not work. (Tr. 39). Plaintiff testified she was able to do housework “[s]ometimes.” (Tr. 34). She testified that “every day is different”, and that her son and husband helped. Id. (“If I can't do it, they'll have to get up and do it.”). Plaintiff stated she did not cook. (Tr. 35). When asked why, she responded: “I just don't cook. I don't feel it. I don't know why. I haven't cooked in over a year probably, maybe even longer.” Id. Plaintiff grocery shopped “[m]aybe once a month”, getting everything the family needed after receiving the monthly food stamps; and she drove, “[s]ometimes” alone. (Tr. 36-37). When asked if she loaded the bags into the car, she said: “Not me, he does. I don't carry nothing.” (Tr. 37). Her son put the groceries away. Id. She did not use a computer, but did watch television. (Tr. 38). Plaintiff only left the house to grocery shop and attend doctors' appointments. (Tr. 44).

         Plaintiff testified she had been seeing Dr. Roheny for about six years. (Tr. 32). Prior to that, Plaintiff had seen a pain management physician, but stopped because she moved. (Tr. 32-33). Plaintiff testified to lower back pain that traveled down her right thigh. (Tr. 40). Plaintiff attributed her back pain to “making all those stupid beds at the hotel”. (Tr. 43). She also testified to a feeling like “a million needles” underneath her feet and in her nose. (Tr. 40-41). She estimated she could sit for “[a]bout two hours” before she would need to get up and move; and stand for about an hour. (Tr. 42). She estimated she could walk for less than an hour, and stated she breaks to sit down while grocery shopping. (Tr. 42-43) (“Yeah, I have to. I'll be out of breath.”). Plaintiff testified the only recent treatment for her back problem was pain medication. (Tr. 47). She had back pain every day, but it fluctuated. Id.

         Regarding her mental health, Plaintiff testified she had been seeing Dr. Bukuts for almost nine years. (Tr. 44).

         Plaintiff had difficulty staying asleep, and typically got five to six hours of sleep per night. (Tr. 45). She got up at 6:30 a.m. to wake her son up. Id. On a good day, Plaintiff could “get up, get [her] son off to school, get [her] cats fed . . . and if [she] can try to get [her] house done, [her] housework done”. (Tr. 46). Her house was small, only two bedrooms, and she had to take breaks to get the housework done. Id. On a bad day, Plaintiff got angry more easily. Id.

         At the time of the hearing, Plaintiff was taking Topamax, methadone, and Percocet; she had recently stopped taking Xanax. (Tr. 41).

         Relevant Medical Evidence

         Prior to Alleged Onset Date

         In March 2010, Plaintiff underwent an initial psychiatric evaluation with Katherine Proehl, N.D., C.N.S., at the Center for Families and Children. (Tr. 214-16). Plaintiff reported diagnoses of bipolar disorder, manic and depressive episodes, and stated she had been “on some medication in prison.” (Tr. 214). Ms. Proehl assessed bipolar I disorder, noted Plaintiff's stressors were “moderate to severe” and assessed a Global Assessment of Functioning score of 49.[1] (Tr. 216).

         In May 2012, Plaintiff saw James Bukuts, M.D., twice. (Tr. 239-40). He noted Plaintiff was “[s]till dealing with ongoing stress” regarding her daughter, who also had mental health problems. (Tr. 240). He noted no psychosis, a diagnosis of bipolar disorder, and continued Plaintiff's medications. (Tr. 239-40). The next month, Plaintiff again reported “ongoing family issues” and a viral infection. (Tr. 238). Dr. Bukuts again continued Plaintiff's medications, and noted Plaintiff should be “follow[ed] closely.” Id. In July, Dr. Bukuts noted Plaintiff had suffered a death in the family, and would be away, and need additional medications. (Tr. 237). He continued Plaintiff's medication. Id.

         Plaintiff did not show for her September 2012 appointment. (Tr. 236). In October, Plaintiff reported she was getting married, and back from California. (Tr. 234). She was compliant with medications, and Dr. Bukuts noted her “[s]tress was up but predictable” and that she had “increased stress but [was] coping”. (Tr. 234-35). He noted Plaintiff made some progress toward goals, and should continue her current treatment plan and medications. (Tr. 235). Plaintiff did not show for her December 2012 appointment. (Tr. 233).

         In November 2012, Plaintiff saw neurologist Deepak Raheja, M.D., reporting difficulty focusing, anxiety, depression, and insomnia. (Tr. 211). On mental status examination, Dr. Raheja noted: “[n]ormal orientation, memory, concentration, language, fund of knowledge.” Id. Plaintiff's motor examination was also normal. Id. Dr. Raheja assessed attention deficit disorder of childhood, without mention of hyperactivity, anxiety, pseudobulbar affect, and insomnia. Id. She prescribed Ambien, Nuedexta, and “neuro stimulants for the symptoms of ADD.” Id. In December 2012, Plaintiff reported “feeling tired and fatigued all the time” and reported “good days and bad days”. (Tr. 210). Dr. Raheja's examination was normal, and she continued Plaintiff's medications. Id. Plaintiff returned in January 2013, reporting “difficulty focusing and staying on task” and anxiety. (Tr. 209). Her mental status was “[a]lert and oriented to time, place and person” and her attention span, concentration, mood, affect, memory, and speech were normal. Id. Her physical examination was also normal. Id. Plaintiff's medications were continued. Id.

         In January 2013, Dr. Bukuts noted Plaintiff was “stable”, “possibly perimenopausal and moody”. (Tr. 231). Plaintiff missed her February 2013 appointment. (Tr. 230). In March, Plaintiff was “stable in spite of a lot of stress in her family”. (Tr. 228). In both January and March, Dr. Bukuts again assessed some progress, and noted under treatment recommendations: “same/follow closely” (Tr. 229, 232), and that Plaintiff was compliant with her medications (Tr. 228, 231). Later in March, Plaintiff had an add-on appointment “because her meds were stolen last week.” (Tr. 225). Dr. Bukuts noted anxiety and depression, and that Plaintiff was “[s]lightly better since being on the ADHD meds” (which had been prescribed by a neurologist at Grace Hospital). Id. Plaintiff had been off Xanax and Ambien for a week, with limited withdrawal symptoms. Id. Her medication compliance was noted to be “[p]artial”, and she had made some progress. (Tr. 225-26). Dr. Bukuts advised Plaintiff to “resume prior meds but Xanax at lower dose since anxiety is better”. (Tr. 226).

         In April 2013, Dr. Bukuts “left a message to call the Centers to review her meds.” (Tr. 224). At an appointment two days later, Plaintiff had a “[h]igh level of stress and used the session to vent.” (Tr. 222). Plaintiff reported she was no longer going to Grace Hospital because of a “bad customer service interaction” and was “off the vyvanase and nudextra”. Id. Plaintiff was adherent to her medications, which Dr. Bukuts instructed her to maintain, and noted he would “follow closely in light of the current stressors”. (Tr. 223).

         In May 2013, Plaintiff again “[d]iscussed various issues . . . primarily related to her [daughter] and her legal issues”. (Tr. 220). Dr. Bukuts noted Plaintiff reported anxiety, depression, and panic attacks, explaining: “steadily increasing over the last 2 months with building process that she has/feels that she has no active support or help outside of teenage son”. Id. Dr. Bukuts noted: “With added stress she has been cutting[, ] which is a behavior she hasn't done in years.” Id. Dr. Bukuts assessed “[g]lobally worsened [symptoms] with depression, anxiety, and self injurious behavior”. (Tr. 221). He also noted Plaintiff had “self discontinued Topamax” due to a “lack of clear benefits”. Id. She “[r]emain[ed] on nudextra from another physician she is no longer seeing” and Dr. Bukuts recommended she “stop since she wasn't taking it for an approved indication.” Id. He noted “[p]artial” compliance with medications. (Tr. 220).

         Later in May 2013, at a nursing visit, Plaintiff reported that she and “her husband ha[d] been working on their problems”. (Tr. 276). She was compliant with medications, and reported Trazadone “has helped her sleep” and “Xanax is also working well.” Id. At the next visit one week later, Plaintiff reported she “still ha[d] anxiety” and was “bothered by her husband's friends calling her cell phone”. (Tr. 277). She requested a counselor, and noted she did not mind “coming in for weekly pill minders.” Id. She noted she “fe[lt] better coming [to the Centers for Families and Children] and feels like she is not crazy”. Id. She was compliant with her medications. Id. In mid-June, Plaintiff was “changed to two week pill minders” and was “looking forward to meeting with her counselor very soon”. (Tr. 279). At the end of June, Plaintiff's mood was “ok but not great” and she was “[a]nxious to meet with her case worker ASAP.” (Tr. 281). Plaintiff returned two weeks later for her routine pill minder appointment. (Tr. 282). In July 2013, Plaintiff arrived early for her appointment with Dr. Bukuts, and then left before the appointment time. (Tr. 219).

         After Alleged Onset Date

         In August 2013, Dr. Bukuts noted Plaintiff had last been seen two months prior, but “has had close follow up with nursing and CPST”, and had remained compliant with medications. (Tr. 217). Plaintiff reported “ongoing stressors and increased anxiety” and wanting “a higher dose of xanax.” Id. Dr. Bukuts recommended counseling to increase coping skills. Id. Plaintiff was compliant with her medications (Tr. 217), and Dr. Bukuts noted “[m]inimal [p]rogress” and assessed “[s]low improvement with understanding her [mental illness]”. (Tr. 218). He also “educated [Plaintiff] further about the long term plan with getting her of[f] her controlled substances”. Id. In September, Plaintiff reported improved sleep, and “mild benefits with depression and anxiety” with Trazodone. (Tr. 287). She was compliant with her medications, making “some” progress, and Dr. Bukuts noted Plaintiff had “added stress with getting her meds over the past 2 months” and she “remain[ed] on board with reducing her controlleds long term” (Tr. 288). He stated he would “hold off reducing the Xanax or ambien for now[, ] but will at the next visit as we increase the trazodone further”. Id.

         In October, Plaintiff reported her stress was “low”. (Tr. 289). She was compliant with her medications, making “some” progress, and Dr. Bukuts continued Plaintiff's medications. (Tr. 290). In November, Plaintiff's “overall stress level ha[d] been better over the past month and [she] notice[d] less issues with depression, anxiety, panic attacks.” (Tr. 291). Dr. Bukuts educated Plaintiff about her medication “with the focus of using the trazodone as her main med so the xanax and the ambien can be phased out.” Id. Plaintiff was medication compliant, and Dr. Bukuts revised her diagnosis from bipolar disorder to chronic adjustment disorder with mixed features of depression and anxiety. (Tr. 292). He noted “slight global improvement of [symptoms] with trazodone”. Id.

         In December, Dr. Bukuts noted Plaintiff was “still handling the stress better with the addition of trazodone to manage her anxiety and mood”, and her “sleep remain[ed] improved”. (Tr. 294). She had “[i]ncreased stress with other family living with her temporarily” but was “handling [it] better than she thought”. Id. Dr. Bukuts assessed no change in Plaintiff's progress, noted medication compliance, instructed Plaintiff to “[m]aintain same meds” and noted he would “look at other helpful ADs on the other side of the holidays so eventually we can get her off the Xanax.” (Tr. 295). He again noted “slight global improvement of symptoms with trazodone”. Id.

         In January 2014, Dr. Bukuts again noted medication compliance, “[m]inimal” progress, and that the “plan [was] eventually to completely eliminate or infrequent use of controlled substances”. (Tr. 297). Plaintiff “misunderstood the directions at her last visit and went off the trazodone”. (Tr. 296). He instructed Plaintiff to “[m]aintain same meds and resume trazodone”. Id. In February, Plaintiff reported “limited issues handling the decrease in the ambien”. (Tr. 300). She again reported increased stress “and issues with the cold weat[h]er” but was “handling it better than she thought.” Id. Dr. Bukuts made similar comments as before: there was no change in Plaintiff's progress, she should continue her medications, and she had a “slight global improvement of symptoms with trazodone”. (Tr. 301).

         In March 2014, Plaintiff reported “no further improvement with sleep or irritability through the day but appears to [be] more related to being perimenopausal.” (Tr. 302). Plaintiff also reported sleep difficulty, but Dr. Bukuts noted this “appear[ed] to be a function of poor sleep hygiene with the culprit being the TV.” Id. Plaintiff's stress was “up” but she was “managing better than the past”. Id. Dr. Bukuts noted medication compliance, minimal progress, and continued Plaintiff's medications. (Tr. 303). In April, Plaintiff reported she was doing well. (Tr. 304). Dr. Bukuts noted medication compliance, and “limited dry mouth that occurred with the higher dose of the trazodone”. (Tr. 305). He instructed Plaintiff to continue the same medications, and noted her primary care physician was slowly weaning her off Percocet. Id. In May, Plaintiff reported: “Things are so-so” and reported stressors regarding “her children and their issues that are focused around their legal issues”. (Tr. 306). Dr. Bukuts assessed some progress, noted medication compliance, and maintained Plaintiff on her medications. Id.

         In June 2014, Dr. Bukuts noted no change, medication compliance, and continued Plaintiff's medications. (Tr. 308-09). In August, Dr. Bukuts noted Plaintiff had “the positive focus of her youngest who is doing well and looking forward to school.” (Tr. 310). He noted medication compliance, some progress, and maintained Plaintiff's medications. (Tr. 311). In September, Plaintiff reported a problem with bedbugs but believed it had been resolved. (Tr. 312). Dr. Bukuts again noted medication compliance, some progress, and maintained Plaintiff's medications. (Tr. 313). Notes from November and December are similar. (Tr. 314-17).

         The next note in the record from Dr. Bukuts is from April 2015. (Tr. 325-26). Dr. Bukuts noted he had last seen Plaintiff “3 months ago because of scheduling issues”. (Tr. 325). Plaintiff reported “some improvement with sleep and irritability through the day” and increased stress “but managing better than in the past.” Id. Dr. Bukuts noted medication compliance, assessed some progress, and maintained medications. Id. He noted he would “again increase the trazodone to make it easier to slowly come off of the xanax and ambien.” (Tr. 326). The following month, Plaintiff had “moderate [symptom] impairment” but she was “tolerating the recent decrease in the xanax 2 weeks ago.” (Tr. 327). Dr. Bukuts assessed minimal progress, and noted medication compliance. (Tr. 327-28). He noted he would “again increase the trazodone” and would “continue the theme in reduction in Xanax by ½ pill per at least every 2 weeks and then with nursing support with in between appointments.” (Tr. 328). He noted that then he would “move forward with elimination of ambien”. Id. Dr. Bukuts also “commended [Plaintiff] on setting better priorities with taking more active responsibility of her daily affairs”. Id.

         In August 2015, Dr. Bukuts found Plaintiff had “moderate to severe” symptoms “with very limited coping skills and impulse control.” (Tr. 339). However, Plaintiff stated she was “remaining positive by keeping herself busy” despite drama in her apartment building. Id. He assessed minimal progress, noted Plaintiff was “now off of xanax and trazodone as she did not see the trazodone as being helpful” and was still taking Ambien. (Tr. 341). Dr. Bukuts noted he would “educate around other possible more appropriate med options” and resumed Topamax, which Plaintiff reported had “some benefits for anxiety and sleep”. Id.

         Pharmacy records from December 2013 through June 2015 show Plaintiff was prescribed, inter alia, methadone and oxycodone by Dr. Nader Roheny. (Tr. 331-36).[2]

         Opinion ...

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