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Carroll v. Commissioner of Social Security

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

April 29, 2018

ROY M. CARROLL, Plaintiff,

          Benita Pearson Judge


          James R. Knepp II United States Magistrate Judge


         Plaintiff 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 affirmed.

         Procedural Background

         Plaintiff 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. 1).

         Factual Background[1]

         Personal and Vocational History

         Plaintiff 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).

         Plaintiff 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.[2]

         Plaintiff 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).

         In June 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. Id.

         From 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).

         State Agency Reviewers

         In July 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 weight. Id.

         Plaintiff 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 pain. Id.

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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.

         VE's Testimony

         The 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.

         Frequently 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).

         The 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).

         The 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).

         The 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 experience, ...

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