United States District Court, N.D. Ohio, Eastern Division
ROY M. CARROLL, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
R. Knepp II United States Magistrate Judge
Roy M. Carroll (“Plaintiff”) filed a Complaint
against the Commissioner of Social Security
(“Commissioner”) seeking judicial review of the
Commissioner's decision to deny disability insurance
benefits (“DIB”) and supplemental security income
(“SSI”). (Doc. 1). The district court has
jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g).
This matter has been referred to the undersigned for
preparation of a report and recommendation pursuant to Local
Rule 72.2. (Non-document entry dated November 28, 2016).
Following review, and for the reasons stated below, the
undersigned recommends the decision of the Commissioner be
filed for DIB and SSI in January 2014, alleging a disability
onset date of May 15, 2013. (Tr. 197-98, 204-07). His claims
were denied initially and upon reconsideration. (Tr. 138-40,
145-51, 153-55, 157-61). Plaintiff then requested a hearing
before an administrative law judge (“ALJ”). (Tr.
165-66). Plaintiff (represented by counsel), and a vocational
expert (“VE”) testified at a hearing before the
ALJ in December 2015. (Tr. 42-93). On January 13, 2016, the
ALJ found Plaintiff not disabled in a written decision. (Tr.
18-32). The Appeals Council denied Plaintiff's request
for review, making the hearing decision the final decision of
the Commissioner. (Tr. 1-6); see 20 C.F.R.
§§ 404.955, 404.981, 416.1455, 416.1481. Plaintiff
timely filed the instant action on November 28, 2016. (Doc.
and Vocational History
was born in December 1968. (Tr. 197). He earned his GED in
2013 (Tr. 265, 388), attended one year of technical college,
and then obtained a real estate license (Tr. 53). He has past
relevant work experience as a real estate agent, automotive
salesman, customer service representative, and truck driver.
(Tr. 30, 56-59, 84-85). Relevant Medical Evidence At
an appointment in December 2013, Plaintiff reported that
since a May 2013 physical attack, he experienced depression,
difficulty sleeping, becoming easily fatigued, and lack of
motivation. (Tr. 321, 323). He agreed to a psychiatry
referral. (Tr. 323).
underwent a mental health assessment with a social worker in
January 2014. (Tr. 325-30). He complained of anger,
depression, anxiety, low energy, exhaustion, crying spells,
and poor concentration. (Tr. 325). He stated his depression
and anxiety were “mainly dependent on stressors”,
including financial concerns, legal issues, loss of a parent,
and difficulty with interpersonal relationships. (Tr. 326). A
mental status examination showed Plaintiff was well- groomed,
cooperative, and oriented to time and place, but was
dysphoric, and anxious. (Tr. 328). He displayed clear speech,
logical thought process, good judgment and insight, no
abnormal or psychotic thoughts, adequate recent and remote
memory, sustained attention span and concentration,
“[o]kay” fund of knowledge, and appropriate
language. Id. The social worker's diagnostic
impression was major depressive disorder, single episode, and
anxiety disorder, unspecified. (Tr. 329). Plaintiff received
a global assessment of functioning (“GAF”) score
of 65-75. Id.
had a pharmacological management appointment in March 2014.
(Tr. 345-47). He reported no adverse effects from his
medication, and was “very calm and reasonable”.
(Tr. 345-46). A mental status examination revealed Plaintiff
demonstrated: a well-groomed appearance, good hygiene;
cooperation, restlessness, and anxious behavior; pressured
speech; a circumstantial and rambling thought process; no
evidence of paranoia, delusions, or perceptual disturbance;
an anxious and irritable mood; a blunt affect; sustained
attention and concentration; normal recent and remote memory;
and good judgment and insight. (Tr. 346). He was oriented to
time, person, and place; and talkative. Id. The
physician's impression was that Plaintiff was:
“anxious and in the midst of legal proceedings
involving his brother who is mentally slow and his brother
who he has conflict with for his entire life”.
Id. His diagnosis was listed as an adjustment
disorder with anxiety, and he was advised to follow up in two
months. (Tr. 346-47).
2014, Plaintiff underwent a psychological evaluation with
Anita B. Gantner, Ph.D. (Tr. 388-90). Plaintiff reported he
had signed a contract to start a sales position the following
week. (Tr. 388). He also stated he had recently received
shared custody of his two children. Id. Plaintiff
listed “fitness” as a hobby. Id. A
mental status examination showed: a well-groomed appearance;
cooperative and restless behavior; he was
“hyperaroused”; orientation to person, place,
date, situation, and recent events; pressured speech;
appropriate, logical, and coherent language; organized
thought process; tight association; no abnormal or psychotic
thoughts; fair judgment and insight; good recent and remote
memory; “reported to be difficult” attention span
and concentration; adequate fund of knowledge; irritable
mood; and appropriately reactive affect. (Tr. 389). Plaintiff
“readily acknowledged” his depressive symptoms
peaked around the time he was assaulted and persisted
“until March of this year when he had a confrontation
with his brother”. (Tr. 390). Plaintiff reported that
there was a “significant change” in his mood
“for the better” after the confrontation with his
brother Id. Dr. Gantner concluded Plaintiff had
“gotten his pain and emotional state under control in
recent history.” Id. She noted she did
“not think he is suffering from depression at this
time”, but may benefit from “a low dose of a
stimulant” to help with attention and focus.
February 2016 to April 2016, Plaintiff underwent psychiatric
treatment with Neera Gupta, M.D. (Tr. 584-89, 581-82,
578-79). Dr. Gupta assessed Plaintiff's symptoms as
“severe”. (Tr. 587). She diagnosed Plaintiff with
bipolar disorder and post-traumatic stress disorder (acute).
(Tr. 588, 582, 579).
2014, state agency reviewer Karla Voyten, Ph.D., reviewed the
record. (Tr. 117). Dr. Voyten noted Plaintiff did not allege
psychological impairments in his initial claim, but endorsed
mood and anxiety problems after he filed for benefits.
Id. She concluded Plaintiff had mild restriction of
activities of daily living; no difficulties in maintaining
social functioning; mild difficulties in maintaining
concentration, persistence, or pace; and no episodes of
decompensation Id. Dr. Voyten determined
Plaintiff's mental impairments were not severe. Id.
Hearing Testimony Plaintiff's Testimony
Plaintiff testified he lived alone and his children visited
up to five times a week, but no longer spent the night
because he was “too . . . sedated and I have severe
sleep apnea and insomnia and I can't stay awake for long
durations.” (Tr. 51). Plaintiff lived with, and cared
for, his brother with disabilities from 2013 until March
2014, but he was unable to continue to do so because
“he requires too much help from me”. (Tr. 51-52);
see also Tr. 53 (“I was caring for him, buying
him stuff, cooking for him, doing stuff like that.”)
Plaintiff stated he was 6'2'' and approximately
305 pounds. (Tr. 52). He stated he used to be a weight
lifter, but had gained 50 to 60 pounds since he was injured,
and the medication he took for sleep apnea made him gain
stated he had a valid commercial drivers' license (Tr.
53), but later stated it was “in escrow”. (Tr.
59). He stated he last attempted to work in July 2014 in a
sales position (which ended up being a field position), but
had to leave because “it was too much for [him].”
(Tr. 54). Plaintiff also took his children to the playground
and pushed his daughter on the swings, but it caused him
stated he was unable to work due to back pain, neck problems,
shoulder problems, fatigue, memory problems, inability to
focus, and sleep apnea. (Tr. 59-60). He attributed his
difficulty sleeping to use of his CPAP machine, which he had
to “constantly adjust ”. (Tr. 63-64). Plaintiff
stated he took “about 15 pills a day” including,
“something for acid reflux . . . something for high
cholesterol . . . a muscle relaxer . . . an anti-inflammatory
. . . a slow release narcotic for pain . . . and . . .
Percocet.” (Tr. 68). He was not sure if the medication
caused him side effects, but possibly attributed his fatigue,
concentration and memory problems to the medication.
Id. Plaintiff admitted he “smoke[d] lightly
” and had “a beer every once in a while”,
but denied consuming illegal drugs. (Tr. 69-70).
lived alone and performed the cooking, cleaning, vacuuming,
and sweeping-but had difficulty performing some those tasks,
and added that his ex helps him sometimes. (Tr. 75). He
stated that on an average day he slept, watched television,
and ate, and that he “[didn't] go anywhere much
anymore.” (Tr. 77).
testified he was not undergoing any mental health treatment
at the time of the hearing. (Tr. 82). He stated: “well,
when it first happened, I was having some problems with
anxiety and . . . depression. I was overwhelmed at what was
going on . . .” Id. Plaintiff stated he once
saw a sleep psychologist to try and “get past the
insomnia”, and that one of his doctors recommend he see
a psychiatrist “for some of the pain issues that
I'm having right now”. Id.
first hypothetical the ALJ posed to the VE consisted of an
individual of Plaintiff's age, education, and past work
experience, limited to: “medium [work] with frequent
right hand controls. The manipulative limitations, frequent
reaching overhead with the right. The postural limitations to
include frequent climbing of ramps and stairs, never to climb
ladders and scaffolds.
balance, stoop, kneel, crouch, and crawl.” (Tr. 85-86).
The VE determined such an individual could perform
Plaintiff's past work of real estate agent, automotive
sale representative, customer service representative, and
truck driver, as they are normally performed and as Plaintiff
performed them. (Tr. 86-87). The VE also determined the
individual could perform other work of packager (82, 000
positions available in the national economy), laundry worker
(88, 000 positions available in the national economy), and
industrial cleaner (75, 000 positions available in the
national economy). (Tr. 87).
second hypothetical included all the limitations of the
first, with the following modifications: limited to light
exertional level; frequent left hand controls; occasional
reaching overhead with the left and the right; frequent
reaching in all other directions with the left and right;
occasional climbing of ramps and stairs, balancing, stooping,
kneeling, crouching, and crawling; and no exposure to
unprotected heights and moving mechanical parts, or operating
any motor vehicle. (Tr. 87-88). The VE stated such an
individual could perform Plaintiff's past work of real
estate agent and customer service representative, both as
normally performed and as Plaintiff actually performed them.
(Tr. 88). He added that the individual could also perform
other work of packager in the light category, bench
assembler, and mail clerk. (Tr. 88-89).
third hypothetical consisted of an individual with the same
limitations as in the second, but modified the exertional
category to sedentary. (Tr. 89). The VE determined the
individual could perform Plaintiff's past work of real
estate agent (as he performed it, but not as generally
performed according to the DOT); and customer service
representative (both as generally performed and as Plaintiff
actually performed it). Id. The VE added that such
an individual could also perform other work of telephone
solicitor, receptionist, and call out operator. (Tr. 89-90).
fourth hypothetical consisted of an individual with the same
limitations as the third but with the following added
limitations: off task twenty percent of an eight-hour workday
in addition to normal work breaks, and/or absent from work
two days per month. (Tr. 90). The VE determined, based on his