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Hartsough v. Commissioner of Social Security

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

March 26, 2018

JON HARTSOUGH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          ELIZABETH A. PRESTON DEAVERS, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Jon Hartsough, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his applications for social security disability insurance benefits and supplemental security income. This matter is before the Court for disposition based upon the parties' full consent (ECF Nos. 5, 8), and for consideration of Plaintiff's Statement of Errors (ECF No. 15), the Commissioner's Memorandum in Opposition (ECF No. 18), and the administrative record (ECF No. 10). For the reasons that follow, the Court OVERRULES Plaintiff's Statement of Errors and AFFIRMS the Commissioner's decision.

         I. BACKGROUND

         Plaintiff filed his current applications[1] for benefits in November 2013, alleging that he has been disabled since August 10, 2010, due to depression and neck, back, and shoulder pain. (R. at 499-500, 501-06, 520.) Plaintiff's applications were denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. Administrative Law Judge Paul E. Yerian (the “ALJ”) held a hearing on November 23, 2015, at which Plaintiff, represented by counsel, appeared and testified, along with Michael A. Klein, Ph.D., a vocational expert (the “VE”). (R. at 285-316.) On January 28, 2016, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 254-72.) On December 6, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-7.) Plaintiff then timely commenced the instant action.

         II. HEARING TESTIMONY

         A. Plaintiff's Testimony[2]

         Plaintiff testified at the administrative hearing that he lives in a two story house with a roommate. (R. at 286.) He drives approximately two or three times per week for about ten minutes. (R. at 286-87.) Plaintiff testified that he does not go grocery shopping and that his roommate does the shopping. (R. at 294.) He does not perform any chores and watches television all day. (R. at 297-98.) Every “couple of days” he gets on his laptop computer to log into Facebook. (R. at 298.) Plaintiff stated that he only leaves his home once or twice per week when he drives down the highway to help relieve his stress. (R. at 294.) He does not attend any group, club, or church. (R. at 298.)

         Plaintiff also testified that he becomes agitated easily “if somebody stresses me out.” (R. at 293.) He has a few friends “that help me out.” (R. at 294.) Plaintiff sees his mother a “couple times a week, ” and has no problems with his neighbors, because “they've known me all my life.” (R. at 294-95.) Plaintiff also testified that he has “severe anxiety” for which he takes medication. (R. at 295.)

         Plaintiff next testified that he has problems with his concentration and memory, noting he has been experiencing short term memory loss. (R. at 295.) Plaintiff testified that he takes all his prescribed medications and that his medications cause drowsiness. (R. at 296-97.) According to Plaintiff, his bipolar disorder medication is helpful only for a short time. (R. at 305.)

         B. Vocational Expert Testimony

         Michael A. Klein, Ph.D. testified as the vocational expert at the hearing. (R. at 309-16.) The VE acknowledged that the prior administrative decision listed Plaintiff's past relevant work as a carpenter, a skilled, medium exertion job that Plaintiff performed at the very heavy level; a drywall supervisor, a skilled, very heavy exertion job; an auto detailer, an unskilled, medium exertion job that Plaintiff performed at the very heavy level; and a bagel baker, a semi-skilled, medium exertion job that Plaintiff performed at the light level. (R. at 310, 330.)

         The ALJ proposed a series of hypothetical questions regarding Plaintiff's residual functional capacity to the VE. (R. at 311-12.) Based on Plaintiff's age, education, and work experience and the residual functional capacity (“RFC”) ultimately determined by the ALJ, the VE testified that Plaintiff could perform 7, 300 illustrative unskilled, sedentary jobs in the state economy and 305, 000 sedentary jobs in the national economy such as order clerk, grader/sorter, or surveillance system monitor. (R. at 312.)

         The VE also testified that that typical absenteeism is permitted up to one day a month and that anything above 10% usually precludes competitive employment. (Id.) The VE further testified that, if the individual could only maintain attention and concentration for one hour at a time before needing a break due to pain or other subjective complaints, that frequency of break time would require special accommodation. (R. at 312-13.)

         III. MEDICAL RECORDS

         A. Access Ohio

         The first treatment note in the administrative record from Access Ohio shows that Plaintiff presented for treatment on January 2, 2013, due to depression with isolation, increased appetite, feelings of sadness and hopelessness, and anger outbursts. (R. at 744, 752.) He reported he was previously taking Paxil, Xanax, sleeping pills and valium “been on for years” and the medication was discontinued due to moving to Ohio from Florida. (R. at 747.) He was diagnosed with a mood disorder and assigned a Global Assessment of Functioning (“GAF”) score of 55. (R. at 753.) Plaintiff was recommended for pharmaceutical management, counseling and CPST (Community Psychiatric Support Treatment). (Id.)

         On January 18, 2013, Plaintiff met with CPST and he was found to be anxious and depressed with a flat affect. He discussed his living situation with his father. (R. at 760.)

         APRN Kimberly Harris evaluated Plaintiff on January 21, 2013. (R. at 761-65.) He complained of feeling depressed “all day long” and described self-isolating behavior, decreased energy, and decreased interaction and motivation with feeling worthless, hopeless and guilty. Plaintiff also described struggling and extreme irritability. (Id.) Plaintiff stated that he lives with his elderly father who struggles with chronic alcoholism and dementia, which Plaintiff feels contributes to his mood instability. (R. at 761-62.) Plaintiff also discussed his illicit drug use. (R. at 763.) Ms. Harris found Plaintiff to have a depressed, anxious, and irritable mood. (R. at 764.) He was cooperative, but restless with poor insight and judgment. (Id.) Ms. Harris diagnosed Plaintiff with a mood disorder and cannabis abuse and assigned a GAF of 54. (Id.) Ms Harris prescribed Trileptal for mood instability and Lunesta for insomnia and noted Plaintiff takes Xanax as prescribed by another clinician. (R. at 765.) She recommended psychotherapy and discontinued marijuana use. (Id.)

         Dr. Stephen Bittner first prescribed Metroprolol for Plaintiff on May 14, 2013. (R. at 781.) The same day, Plaintiff reported he has been taking his medications as prescribed without any symptoms. (R. at 782.) Plaintiff reported he was in the hospital for the last couple of days due to chest pain and thought he was having another heart attack. (Id.) He also reported that his fiancee would be coming to Ohio in three weeks and will be moving up not long after that. (Id.) He reported he is happy and is ready to start his life with her. (Id.)

         On June 12, 2013, Dr. Bittner and APRN Kimberly Harris opined that Plaintiff had a “rare” ability, i.e., activity that could not be performed for any appreciable time, in the areas of dealing with the public, socializing, behaving in an emotionally stable manner, completing a normal workday and workweek without interruptions from psychologically based symptoms, and performing at a consistent pace without an unreasonable number and length of rest periods. (R. at 742-43.) Dr. Bittner diagnosed Plaintiff with a mood disorder not otherwise specified with symptoms including ongoing mood fluctuation, extreme agitation, irritability, intolerance, depression, and anxiety with poor ability to cope in various situations. (R. at 743.)

         Indrani Naskar, M.D., evaluated Plaintiff on August 22, 2013. (R. at 923-26.) Dr. Naskar found Plaintiff to have a depressed and anxious mood with a constrictive affect. (R. at 925.) He was cooperative, but restless with fair insight and judgment. (Id.) Dr. Naskar diagnosed Plaintiff with Bipolar I Disorder and assigned a GAF score in the range of 50-55. (Id.) Dr. Naskar also adjusted his medications. (R. at 926.)

         On November 26, 2013, Plaintiff reported he was suffering from increased stress due to his strained relationship with his girlfriend. (R. at 1009.) He also reported poor sleep, increased anxiety and anger, but no physically aggressive episodes. (Id.) On mental status examination, Dr. Naskar found Plaintiff was casually dressed, his thought process was logical; he reported no delusions or hallucinations. (Id.) Plaintiff demonstrated an anxious and depressed mood, normal behavior, and fair insight and judgment. (R. at 1009-10.) Dr. Naskar prescribed Seroquel and increased Plaintiff's Ativan to help with his anxiety. (R. at 1010.) The same day, Dr. Naskar opined that due to Plaintiff's bipolar disorder, he is “unable to perform in a work setting.” (R. at 1008.) In December 2013, Dr. Naskar found a logical thought process, “better” mood and affect, normal behavior, no suicidal or homicidal ideation, intact cognition, and fair insight and judgment. (R. at 1004.)

         On February 11, 2014, Dr. Naskar completed a medical source statement in which she reported that Plaintiff had a rare ability to complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, deal with work stress, maintain regular attendance, and be punctual within customary tolerance. (R. at 1026.) She noted she had been treating Plaintiff since August 22, 2013. (R. at 1027.)

         On February 20, 2014, Dr. Naskar reported logical thought processes, no delusions, depressed mood, restricted affect, no suicidal or homicidal ideation, normal behavior, intact cognition, and fair insight and judgment. (R. at 1236.) On March 14, 2014, Plaintiff reported anxiety and some panic attacks. (R. at 1234.) Dr. Naskar noted that Plaintiff displayed logical thought processes, no delusions, depressed mood, full affect, no suicidal or homicidal ideation, normal behavior, intact cognition, and fair insight and judgment. (R. at 1234.)

         On April 22, 2014, Dr. Naskar opined that, based on his treatment for Bipolar I Disorder, Plaintiff's symptoms render him “unable to perform in a work setting.” (R. at 1064.) She reported logical thought process, no delusions, depressed mood, restricted affect, no suicidal or homicidal ideation, normal behavior, intact cognition, and fair insight and judgment. (R. at 1232.)

         On May 27, 2014, Dr. Naskar reported that Plaintiff was being treated for bipolar disorder and PTSD and that he has symptoms including shifts in mood, flashbacks, and panic attacks. (R. at 1063.) Dr. Naskar reported that Plaintiff's anxiety and frequent panic attacks make it exceedingly difficult for him to function in the community and interact with others and that his depression affects his ability to be motivated to do many day to day tasks. (Id.) Dr. Naskar opined that Plaintiff would be unable to retain direction and perform work related tasks. (Id.) She concluded that Plaintiff would be “unable to function in a work-type setting at this time.” (R. at 1063.) She reported that Plaintiff had logical thought processes, no delusions, depressed mood, anxious and restricted affect, no suicidal or homicidal ideation, normal behavior, intact cognition, and fair insight and judgment. (R. at 1230.)

         In July 2014, Dr. Naskar reported that Plaintiff suffered no side effects from medication, and demonstrated logical thought processes, no delusions, no suicidal or homicidal ideation, normal behavior, intact cognition, and fair insight and judgment. (R. at 1228.) In November 2014, Plaintiff reported that he was “doing better” and that things with his girlfriend were “good.” (R. at 1217.) Dr. Naskar reported logical thought processes, no delusions, less depressed mood, restricted affect, no suicidal or homicidal ideation, normal behavior, intact cognition, and fair insight and judgment. (R. at 1217.)

         In January 2015, Plaintiff reported that he was doing some work for a friend and that Christmas with his mother was good. (R. at 1213.) He had fair sleep and appetite. (Id.) Dr. Naskar found Plaintiff exhibited a stable mood, logical thought processes, no delusions, no suicidal or homicidal ideation, normal behavior, intact cognition, and fair insight and judgment. (R. at 1213-14.) Plaintiff presented in February 2015, with “some depression and anxiety” but otherwise had logical thought processes, no delusions, no suicidal or homicidal ideation, normal behavior, intact cognition, and fair insight and judgment. (R. at 1211-12.) By April 2015, Plaintiff reported to Dr. Naskar that he was busy cleaning his home because his girlfriend was moving in with him. (R. at 1240.) He was also reporting doing some work for friends. (Id.) Plaintiff's overall mood was ok, and Dr. Naskar found him to be stable with an unremarkable mental status examination. (Id.) In May 2015, Plaintiff told Dr. Naskar that he was “[d]oing better somewhat.” (R. at 1261.) Plaintiff reported poor sleep, a good appetite, and weight loss. (Id.) His mental status examination was unchanged. (Id.) Plaintiff also underwent an assessment update in May 2015, in which he reported he owns a home and lives alone and “knows how to survive, reliable, honest and social.” (R. at 1269.) When discussing his ...


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