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McManus v. Commissioner of Social Security

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

April 9, 2018





         I. Introduction

         Plaintiff, Robert Eugene McManus, Jr. (“McManus”), seeks judicial review of the final decision of the Commissioner of Social Security denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”). This matter is before the court pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3) and Local Rule 72.2(b).

         Because the ALJ failed to properly (1) apply the treating source rule, (2) evaluate the opinions of the state agency examining psychiatrist and state agency reviewing psychologists, or (3) address in the RFC the claimant's limitations regarding interactions with supervisors, I recommend that the final decision of the Commissioner be VACATED and this matter be REMANDED pursuant to 42 U.S.C. §405(g).

         II. Procedural History

         McManus applied for DIB on May 8, 2015 alleging a disability onset date of April 4, 2014. (Tr.14, 165-66) McManus alleged disability based on asthma, high blood pressure, depressive disorder, and generalized anxiety disorder. (Tr. 199) McManus's application was denied initially on November 24, 2015, and on reconsideration on April 27, 2016. (Tr. 14, 91, 98) McManus filed a written request for rehearing on May 3, 2016. (Tr. 10) Administrative Law Judge Peter Beekman heard the case on October 24, 2016. (Tr. 34-59) The ALJ denied McManus's claim on December 14, 2016. (Tr. 11) The Appeals Council denied further review on February 21, 2017, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-3)

         III. Evidence

         McManus now raises three arguments: (1) the RFC is legally deficient because it fails to address McManus's inability to interact with supervisors and/or tolerate supervision; (2) the ALJ's evaluation of the medical opinion evidence is legally insufficient, resulting in an RFC that is not supported by substantial evidence; and (3) the RFC does not reflect McManus's need to be off-task due to panic attacks multiple times per week. ECF Doc. 13, Page ID# 579. Because the issues are limited, it is not necessary to summarize the entire record.

         A. Personal, Educational and Vocational Evidence

         McManus was 45-years-old on the date of the hearing. (Tr. 35) McManus has a bachelor's degree in psychology and has worked as a product consultant and as a sales person. (Tr. 35, 167-68.) During the pendency of his claim, McManus also worked as a clerk processor at Goodwill. (Tr. 43)

         B. Medical Records Related to McManus's Mental Conditions

         Although McManus's DIB application contended he was disabled due to hypertension and asthma, he has raised no argument concerning the Commissioner's handling of those issues. The following records bear upon his claim to be disabled because of depression and anxiety.

         On May 16, 2014, Mary Ellen Behmer, M.D., McManus's primary care physician, diagnosed him with anemia, and ordered gastrointestinal testing. (Tr. 268-69) McManus did not complain of anxiety or depression. (Id.)

         On April 25, 2015, Dr. Behmer saw McManus for a follow-up visit. (Tr. 266) McManus told his doctor that he'd had lifelong issues with anxiety and depression, but the doctor noted these had never been mentioned to her. (Id.) She noted that McManus was “much more anxious and more depressed.” (Id.) Dr. Behmer recommended psychiatric counseling and prescribed Paxil. (Id.) Upon examination, Dr. Behmer found McManus's affect was appropriate and congruent, his base emotion was neutral, and his thought content and process exhibited logical connections. (Tr. 267-68) Dr. Behmer diagnosed McManus with depressive disorder and general anxiety disorder. (Id.) This was McManus's first psychological-condition diagnosis.

         On June 5, 2015, Dr. Behmer saw McManus for a follow-up visit. She noted McManus's generalized anxiety disorder had been doing “okay, ” but she noted he had not started Paxil because he was anxious about the side effects. (Tr. 263)

         On November 10, 2015, McManus established a treatment relationship with psychiatrist Lisa Lawrence, M.D. (Tr. 399) McManus reported symptoms including sad mood, crying spells, low energy and motivation, weight loss, lack of trust in other people, worry, and irritability. (Id.) McManus reported that he would wake up feeling exhausted as though he had not slept, and he indicated that he used to wake up at night with anxiety and panic. (Id.) McManus told Dr. Lawrence he had dealt with depression most of his life, at times with vegetative symptoms. (Id.) She also noted that McManus's symptoms included irritability, uncontrollable worry that interfered with his sleep and made him feel irritable, experience panic attacks, sweating, tight chest, fast heart rate, dizziness, and shortness of breath. (Id.) Dr.

         Lawrence noted McManus had not received treatment for his mental health conditions, other than high school psychologists, and had taken no medications other than the Paxil his primary care physician had recently prescribed. (Tr. 399) Dr. Lawrence noted that after taking Paxil for several months, McManus was still anxious and depressed, but was sleeping better through the night and experienced fewer headaches. (Tr. 400) McManus reported he had experienced verbal and emotional abuse as a child. (Id.) Dr. Lawrence noted positive findings for chest pain and shortness of breath. (Tr. 401) Dr. Lawrence prescribed an increased Paxil dosage and continued counselling. (Id.)

         On November 12, 2015, McManus saw Dr. Behmer to obtain an influenza vaccination. (Tr. 431) During her evaluation of McManus, Dr. Behmer found that his generalized anxiety disorder was under “good control.” (Tr. 435)

         On December 10, 2015, Dr. Lawrence evaluated McManus's depression and anxiety. (Tr. 405) McManus reported that the increased Paxil dose had not helped his anxiety or depression and had caused headaches and teeth clenching. (Id.) He reported the same level of sadness, crying spells, anxiety, and worry, that his energy and motivation were still low, that he had panic attacks several times per week, and that his headaches had worsened as he took Paxil. (Id.) He reported passive thoughts of wanting to die in his sleep, but no suicidal thoughts. (Id.) McManus reported he tried to watch TV and used his computer. (Id.) Dr. Lawrence again increased McManus's Paxil dosage. (Id.)

         On December 17, 2015, McManus saw pulmonary specialist Valerie Ross, CNP regarding his broken CPAP machine. (Tr. 384) During her examination, she noted that McManus's general appearance was alert, pleasant, and showed no distress. (Tr. 387)

         On January 7, 2015, Elizabeth Petitt, N.P. evaluated McManus. He reported that he fell asleep “OK, ” but tended to get up in the middle of the night, did not know what caused him to wake, and was apprehensive when he woke. (Tr. 407) McManus reported having anxiety and fatigue and that he ground his teeth. (Id.) McManus reported that he lived on his own and did his own shopping, cooking, laundry, etc. (Id.) Nurse practitioner Petitt prescribed McManus Vistaril and continued use of Paxil. (Tr. 408)

         On January 20, 2016, McManus reported to Dr. Lawrence that he was more depressed and had daily thoughts of wishing he were dead, but no intentions to act on them. (Tr. 409) He reported that he felt tired, had trouble falling asleep, would wake during the night, and looked forward to napping after he woke up in the morning because he didn't feel refreshed. (Id.) They discussed adding Wellbutrin for McManus's depression. (Id.) McManus reported problems with his focus and concentration, including trouble focusing on television programs. (Id.) He also reported difficulty concentrating at work in the past. (Id.) He also reported some general paranoia. (Id.) Dr. Lawrence diagnosed anxiety, depression, insomnia, and occasional night sweats and prescribed Wellbutrin and once again increased his dosage of Paxil. (Tr. 409-10)

         On February 17, 2016, McManus told Dr. Lawrence of his fatigue and grogginess problems. (Tr. 411) He reported Wellbutrin helped initially, but his condition later regressed to his pre-medicated state. (Id.) He reported diminished appetite, no improvement in motivation, depression, or focus, and constant paranoia. (Id.) Dr. Lawrence prescribed increased Wellbutrin and Paxil dosages and Seroquel or Abilify for augmentation. (Id.)

         On March 16, 2016, Dr. Behmer saw McManus for “extreme fatigue” lasting six months despite sleeping for eight hours. (Tr. 374) On examination, Dr. Behmer noted that McManus appeared fatigued but his test results only showed that he had low iron. (Tr. 377)

         On March 17, 2016, McManus reported to Dr. Lawrence that Propranolol stopped the hand tremors that had developed with Abilify, but did not help with his anxiety. (Tr. 413) He reported Vistaril made it hard for him to sleep. (Id.) McManus reported Wellbutrin and Abilify also troubled his sleep and made his panic attacks worse as the dosages were increased. (Id.) McManus reported that his depression was worse; his worrying was the same or worse; that he always felt paranoid, and his energy and motivation were low. (Id.) However, labs that checked for fatigue indicated no problems. (Id.) McManus reported thoughts of not wanting to wake up, but that he had no plans or intentions to harm himself. (Id.) Dr. Lawrence prescribed continued propranolol, a lower dosage of Wellbutrin, increased Vistaril at night for sleep, melatonin, and increased Paxil. (Tr. 414)

         On April 12, 2016, Dr. Lawrence noted that McManus was “[g]etting out a little bit” and had been to coffee shops with a community psychiatric support treatment (“CPST”) individual. (Tr. 423) McManus reported his frequency of panic attacks, worry, paranoia, depression, and anxiety were about the same. (Id.) Dr. Lawrence prescribed immediate release Wellbutrin at a higher dose, a different SSRI than Paxil, and continued use of Vistaril and Abilify. (Id.)

         On May 9, 2016, McManus saw Dr. Lawrence and reported that Wellbutrin IR made him irritable. (Tr. 488) McManus reported that his depression and anxiety were worse and that he had thoughts of wanting to die in his sleep, but no plans or intentions to act. (Id.) McManus reported that he went to coffee shops with his CPST. (Id.) McManus reported that Vistaril was making him groggy, but he thought it was helping his panic attacks to some degree. (Id.)

         On June 9, 2016, McManus told Dr. Lawrence that he was going to be evicted from his apartment due to non-payment and would stay with his father temporarily. (Tr. 490) McManus reported that his irritability was better with a new formulation of Wellbutrin, but his depression and anxiety were worse, possibly due to the eviction. (Tr. 490) Dr. Lawrence prescribed increased Zoloft, and continued use of propranolol, Wellbutrin, and Abilify and recommended that McManus continue with CPST and counselling services. (Tr. 491)

         On July 3, 2016, McManus received his 30-day employment review at Goodwill. (Tr. 495) McManus was found to be “below expectations, ” because he was working at a slow pace. (Tr. 495-497) McManus was told to improve his work speed and smile, greet, and engage himself with customers. (Tr. 498)

         On July 14, 2016, McManus told Dr. Lawrence that he was staying with his father and taking art therapy. (Tr. 503) He reported his insomnia had increased, and his paranoia, low energy, depression, and anxiety were the same. (Id.) McManus told Dr. Lawrence about his Goodwill job and his poor performance because he was too slow, did not follow instructions, and would “freeze up” from anxiety. (Id.) Dr. Lawrence prescribed increased melatonin, continued Vistaril, Wellbutrin, and Zoloft and recommended individual BH counseling and CPST service. (Id.)

         On August 4, 2016, Dr. Lawrence noted that there was no difference in McManus's depression, worry, or panic attacks with increased Zoloft. (Tr. 505) McManus reported that his job was not going well. (Id.) McManus reported that he was working 25-29 hours a week, his anxiety was “pretty bad, ” he had a hard time getting through his shift, would feel exhausted later in the day, and found it hard to stay awake. (Id.) McManus reported feeling some anger toward his bosses, but that he would not hurt them. (Id.)

         On August 23, 2016, McManus requested that Dr. Lawrence provide him with an excuse to get him out of jury duty, indicating that his panic attacks were worse due to his jury summons. (Tr. 507) In a September 2, 2016 visit with Dr. Lawrence, McManus reported that his second work review indicated his work pace was too slow, and he told her he thought he would be fired for lack of enthusiasm and pace. (Tr. 507, 509)

         C. Opinion Evidence

         1. Kandice Dietrick - Counselor

          On April 5, 2016, McManus's counselor, Kandice Dietrick, completed a daily activities questionnaire. (Tr. 418-19) She noted that McManus lived in an apartment alone, had little to no contact with family, friends, or neighbors, and only visited his family occasionally on holidays for one hour. (Tr. 418) She noted that McManus kept to himself and avoided social interaction. (Id.) She noted that McManus had many conflicts with his supervisors and co-workers and had a difficult time following directions. (Id.) She noted McManus had been fired from multiple jobs due to performance and attendance problems, interoffice conflict, and for not following instructions properly and had not recently made an attempt to return to work. (Id.)

         Dietrick opined that McManus did not cook meals for himself or others due to lack of motivation. (Tr. 419) She noted that McManus reported that he avoided all chores on a daily basis, only vacuumed once every four months, only showered once every seven to ten days, drove only when necessary and only at night to avoid traffic, avoided shopping for as long as he could, didn't pay his bills on time or keep up with banking, and had no hobbies. (Id.) Dietrick noted that the Centers for Family and Children assisted McManus with his transportation and community needs. (Id.) She noted that McManus was seen weekly for case management and counseling and monthly by a psychiatrist and was reliable 95% of the time. (Id.) She noted that McManus received community supportive treatment and cognitive behavioral treatment, was medication compliant, did not have behavioral issues, and was mostly cooperative. (Id.) She noted that she first saw McManus in November of 2015 and last saw him on April 5, 2016. (Id.)

         2. Lisa Lawrence, M.D. - Treating Psychiatrist

          On April 12, 2016, Lisa Lawrence, M.D. completed a mental status questionnaire. (Tr. 428) She noted that McManus displayed a casual appearance and decreased eye contact, and spoke with a soft voice. (Tr. 428) She found his mood was depressed and anxious and he had an appropriate affect. (Id.) Dr. Lawrence noted McManus's symptoms included sweating, tightening of his chest, fast heart rate, and shortness of breath. (Id.) She noted that McManus did not trust people and was “always paranoid.” (Id.) Regarding McManus's cognitive functioning, Dr. Lawrence stated McManus had difficulty focusing when he read or watched television, was slow at processing, and had average to above-average intelligence. (Id.) She noted that McManus's insight and judgment were fair. (Id.) Dr. Lawrence diagnosed McManus with major depression, general anxiety disorder, panic disorder, and social anxiety disorder. (Tr. 429) She found McManus had a fair ability to maintain attention and remember, understand, and follow directions, but had poor completion of tasks and difficulty reading and watching television. (Id.) She noted McManus was extremely uncomfortable in and avoided social situations and found it difficult to adjust to change. (Id.) Dr. Lawrence opined that McManus would likely work too slowly and make mistakes. (Id.)

         On July 14, 2016, Dr. Lawrence completed a second mental impairment questionnaire. (Tr. 499-500) Dr. Lawrence diagnosed McManus with major depression, general anxiety disorder, panic disorder, and rule out social anxiety disorder. (Tr. 499) Dr. Lawrence stated that the clinical findings that demonstrated the severity of McManus's mental impairment and symptoms were depressed affect, decreased eye contact, depressed and anxious mood, paranoia, and speaking in a soft voice. (Id.) Dr. Lawrence opined that McManus's prognosis was fair. (Id.) Dr. Lawrence opined that McManus was seriously limited, but not precluded from being able to: carry out very short and simple instructions; maintain attention and concentration for extended periods; perform activities within a schedule; manage regular attendance and be punctual within customary allowances; sustain an ordinary routine without special supervision; work in coordination with or in proximity to others without being distracted by them; and perform at a consistent pace without an unreasonable number and length of rest periods. (Id.) She opined McManus would be unable to meet competitive standards regarding his ability to carry out detailed instructions and complete a normal workday and workweek without interruptions from psychologically based symptoms. (Id.) Dr. Lawrence opined that McManus had a limited but satisfactory ability to remember locations and work-like procedures, but was seriously limited, but not precluded from being able to understand and remember very short and simple instructions or detailed instructions. (Tr. 500) Dr. Lawrence opined McManus was unable to meet competitive standards in his ability to interact appropriately with the general public, but was seriously limited, but not precluded from being able to: ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. (Id.) Dr. Lawrence opined McManus had a limited but satisfactory ability to be aware of normal hazards and take appropriate precautions and was seriously limited, but not precluded from being able to respond appropriately to changes in a work setting and set realistic goals or make plans independently of others. (Id.) Dr. Lawrence opined that, on average, McManus would be absent from work four days each month and be off task at work greater than 50% of an eight-hour workday due to his impairments or treatment. (Id.)

         3. Deborah Koricke, Ph.D. - State Agency Psychological Consultative Examiner

         On November 4, 2015, clinical psychologist Deborah Koricke, Ph.D. prepared a consultative disability assessment report. (Tr. 362) Dr. Koricke noted that McManus was difficult to engage during the interview. (Tr. 362) McManus provided detailed information concerning his work and life history. (Tr. 363-365) Dr. Koricke found that McManus was cooperative and persistent during the interview. (Id.) She found that McManus did not exhibit any significant speech problems, his speech was 100% intelligible, he was fairly articulate, and his thoughts were organized and coherent. (Tr. 366) She found McManus had no difficulty expressing himself and found there were no signs of tangential or loose associations. (Id.)

         Dr. Koricke found McManus made good eye contact but had a blunted affect. (Id.) Dr. Koricke found McManus did not appear anxious during the assessment. (Id.) She found McManus was conscious, alert, and fully oriented during the exam and that his memory for his history was “ok.” (Tr. 366) She found: McManus was functioning within the estimated average range of intelligence functioning; his thinking was ...

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