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Yerian v. Commissioner of Social Security

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

June 20, 2018

KEVIN YERIAN, Plaintiff,

          Michael H. Watson Judge



         Plaintiff, Kevin Yerian (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits and supplemental security income. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 16), the Commissioner's Memorandum in Opposition (ECF No. 19), and the administrative record (ECF No. 11). Plaintiff did not file a reply brief. For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff filed his application for disability insurance benefits and supplemental security income on November 22, 2013. (R. at 227, 231.) Plaintiff's applications were denied initially and upon reconsideration. (R. at 132, 136, 141-42, 149.) Plaintiff sought a de novo hearing before an administrative law judge. Administrative Law Judge Susan F. Zapf (the “ALJ”) held a hearing on February 8, 2016, at which Plaintiff, represented by counsel, appeared and testified. (R. at 30-65.)

         On May 4, 2016, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 11-29.) On April 27, 2017, the Appeals Council denied Plaintiff's request for review and affirmed the ALJ's decision. (R. at 1.) Plaintiff timely filed this action for review. (ECF No. 1.)

         Plaintiff advances two errors in his Statement of Errors. First, Plaintiff maintains that remand is required because the ALJ failed to specify what weight she accorded two state agency reviewing psychologists' opinions. Second, Plaintiff contends that the ALJ failed to explain why her residual functional capacity (“RFC”)[1] was less restrictive than the two state agency reviewing psychologists' opinions, which Plaintiff maintains constitutes a second, independent basis for remand. The undersigned limits her discussion to evidence bearing on these contentions of error.


         A. Carolyn Patterson, Ph.D.

         Consultative Examiner Carolyn Patterson, Ph.D. conducted a psychological evaluation of Plaintiff on January 14, 2014. (R. at 369-373.) Dr. Patterson noted that Plaintiff was casually dressed, well groomed, and cooperative. (R. at 371.) She observed Plaintiff's affect and mood to be appropriate. (Id.) Plaintiff reported that his current barriers to employment consist of anxiety and depression, which he indicated interfere with his ability to work because “he becomes argumentative.” (R. at 369.) Plaintiff stated that he was fired from his last job for arguing with and allegedly pushing a woman, though he maintained that he did not actually push her. Plaintiff reported that he walked off of the job he held prior to that because his coworkers were “aggravating him, ” though he acknowledged that he was using cocaine at the time. (R. at 371.) Plaintiff stated that he no longer uses cocaine. Plaintiff stated that he “get[s] mad really easily” and that he “can snap” at any moment. (Id.) Plaintiff reported that he “doesn't think he can work” because of his tendency to anger quickly and become argumentative as a result of his anxiety and depression. (Id.)

         Dr. Patterson assessed Plaintiff's self-reported data as “reliable, ” though she observed that “[s]igns of anxiety were not noted during the examination and interview.” (R. at 372, 373.)Ultimately, Dr. Patterson concluded as follows:

The claimant presented with reports of anxiety and depression as barriers to employment. He also reported taking medication for anxiety and depression. The symptoms he reported are not suggestive of anxiety and depression, perhaps because they are adequately controlled by the medication. He did describe difficulty adjusting to the loss of family members with some reports of depressed mood.

(Id.) In light of her conclusions, Dr. Patterson provided the following functional assessment related to Plaintiff's ability to respond appropriately to supervisors and coworkers in a work setting:

The claimant has reported a past history of problems getting along with coworkers. He reported that he and the coworkers were taking cocaine at the time. He did report another incident when he was not on cocaine, which involve[d] him arguing with a woman. He was accused of pushing her but said he did not.

(R. at 373.) Dr. Patterson did not suggest further limitations in this regard.

         B. State Agency Evaluations

         On February 4, 2014, state agency psychologist Patricia Semmelman, Ph.D. reviewed the record and concluded that “[t]he severity of the information provided [by Plaintiff] to [Dr. Patterson] is somewhat inconsistent with [Plaintiff's primary care physician's treatment] notes and found to be only partially credible.” (R. at 73.) Dr. Semmelman concluded that Plaintiff is moderately limited in both his ability to (1) accept instructions and respond appropriately to criticism from supervisors; and (2) get along with coworkers; and that he is mildly restricted in the area of activities of daily living (“ADLs”). (R. at 71, 72-73.) Dr. Semmelman went on to explain that although Plaintiff reported a history of altercations with coworkers, “he was doing cocaine at the time, ” and noted that Plaintiff “[w]as able to cooperate and get along [with] examiner.” (R. at 73.) Based on her review of the record, Dr. Semmelman assessed Plaintiff's mental RFC as follows:

The claimant retains the ability to perform tasks that are simple/complex in nature. He would work best in environments that require minimal and superficial interaction with others.

(Id.) On April 8, 2014, at the reconsideration level, state agency reviewing psychologist Paul Tangeman, Ph.D agreed with the findings, conclusions, and mental RFC of Dr. Semmelman. (R. at 95, 96, 97.)

         C. The ...

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