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Osborne v. Commissioner of Social Security

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

July 24, 2018

MIRANDA S. OSBORNE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Miranda S. Osborne, filed this action seeking review of a decision of the Commissioner of Social Security (“Commissioner”) denying her Title II application for a period of disability and disability insurance benefits. For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors (Doc. 9) be OVERRULED, and that judgment be entered in favor of Defendant.

         I. BACKGROUND

         A. Prior Proceedings

         Plaintiff filed a Title II application for a period of disability and disability insurance benefits on December 5, 2013, alleging disability since June 1, 2008. (Tr. 12, PAGEID #: 51). After Plaintiff's application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge. (Id.).

         Administrative Law Judge Edmund Giorgione held a hearing on February 29, 2016, but passed away before issuing a decision. (Tr. 51-72, PAGEID #: 90-111). Administrative Law Judge Timothy Gates (the “ALJ”) held a supplemental hearing on July 21, 2016. (Tr. 34-50, PAGEID #: 73-89). On August 31, 2016, the ALJ issued a decision finding that Plaintiff was not disabled as defined in the Social Security Act from June 1, 2008 (the alleged onset date) through September 30, 2012 (the last date insured). (Tr. 9-27, PAGEID #: 48-66). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1, PAGEID #: 40).

         Plaintiff filed this case on October 24, 2017 (Doc. 1), and the Commissioner filed the administrative record on February 14, 2018 (Doc. 6). Plaintiff filed a Statement of Specific Errors (Doc. 9), the Commissioner responded (Doc. 12), and Plaintiff filed a Reply (Doc. 13).

         B. Relevant Hearing Testimony

         1. February 29, 2016 Hearing

         Plaintiff testified that she was forty-eight years old at the time of the hearing, had completed high school, and is married. (Tr. 56, PAGEID #: 95). She last worked in 2007 as an assistant manager at a retail store. (Id.). Plaintiff testified that she stopped work when a supervisor mistreated her after returning from leave under the Family and Medical Leave Act. (Tr. 58, 65, PAGEID #: 97, 104).

         Plaintiff explained that her mental impairments prevent her from working. (Tr. 57, PAGEID #: 96). She stated:

Well, sometimes I just can't get up. I'm depressed and I may be crying or, I just can't go anyplace. And if I do go places, sometimes I may be at a grocery store and I would feel like people's looking at me and I become paranoid and I get all, upset stomach and got to leave. So, I have to, you know, go home to where I feel comfortable.

(Id.).

         Plaintiff watches some television but is unable to sit for an extended period of time. (Tr. 58, PAGEID #: 97). Sometimes she can follow a television show, but other times she cannot. (Tr. 59, PAGEID #: 98). Plaintiff plays golf once in a while, and also plays organ and guitar. (Id.). She showers daily, maintains a driver's license, and has no difficulty driving. (Tr. 59-60, PAGEID #: 98-99). She does household chores such as cooking, washing dishes, doing laundry, and vacuuming. (Tr. 60, PAGEID #: 99). Plaintiff's husband also does chores around the house. (Id.).

         Plaintiff drinks approximately three to four 12-ounce cans of beer daily. (Id.). Her prescription medicine causes her to experience side effects, such as dry mouth and weight gain. (Tr. 60-61, PAGEID #: 99-100). She explained that she has to go the bathroom hourly due to the water she consumes for her dry mouth. (Tr. 60, PAGEID #: 99). Plaintiff leaves the house to attend doctor's appointments and to take her mother to the doctor. (Tr. 61-62, PAGEID #: 100- 01).

         Plaintiff testified that she suffers from paranoia once a month and that panic attacks can happen any moment, but typically occur once a week. (Tr. 62, PAGEID #: 101). She stated that she deals with depression weekly and that it can last all day and has the potential to produce crying spells, irritability, and decreased appetite. (Tr. 64-65, PAGEID #: 103-04). Plaintiff also testified that she suffers from memory issues since she stopped working and has trouble concentrating. (Tr. 67, PAGEID #: 106).

         At the hearing, the ALJ asked vocational expert Connie O'Brien Heckler two hypothetical questions. As to the first hypothetical, the ALJ stated:

I would like you to consider a hypothetical individual with the Claimant's age, education, and work experience. This hypothetical individual would not have any physical restrictions but would need to work in relative isolation defined as occasionally interacts with supervisors, infrequent and incidental contact with co-workers and that they need not to listen to or talk to co-workers to perform job tasks. No. contact with the general public.

(Tr. 69, PAGEID #: 108). Ms. Heckler testified that, with these limitations, the hypothetical individual could not have performed Plaintiff's prior work, but the hypothetical individual could work as a floor waxer, store laborer, or dryer attendant. (Id.).

         The ALJ then changed the hypothetical scenario, adding that the individual would not be able to maintain an eight-hour workday or a 40-hour workweek due to the inability to maintain attention and concentration. (Tr. 70, PAGEID #: 109). According to Ms. Heckler, these circumstances would be work preclusive. (Id.).

         2. July 21, 2016 Supplemental Hearing

         During her supplemental hearing, Plaintiff testified that from 1997 to 1999 she worked as a retail store manager prior to her position as an assistant manager at a different retail store. (Tr. 40-41, PAGEID #: 79-80). Plaintiff stated that she attends church, but not weekly, because she has a difficult time getting up due to her sleep medication. (Tr. 44, PAGEID #: 83). Plaintiff plays the organ in her church approximately once per month. (Id.).

         During questioning by her attorney, Plaintiff elaborated on just how late her medication makes her sleep, stating “[s]ometimes I'll get up at 12:30 or 2:00 in the afternoon.” (Tr. 45, PAGEID #: 84). She also testified that she has two to three “bad days” a week in which her symptoms worsen, and she gets out of bed only to use the restroom and eat. (Id.). Plaintiff identified her depression as the reason for her “bad days.” (Tr. 46, PAGEID #: 85). Plaintiff testified that she also experiences panic attacks once a month. (Tr. 44, PAGEID #: 83).

         The ALJ asked vocational expert Eric Pruitt (“the VE”) to:

assume a hypothetical individual [of] the Claimant's age and education and with the past jobs of Retail Store Manager, Retail Assistant Manager. Further assume this individual has the following mental limitations. Occasional interaction with co-workers, occasional interaction with the general public and occasional interaction with supervisors, with no other limitations.

(Tr. 47-48, PAGEID #: 86-87). The VE testified that, with these limitations, the hypothetical individual would not be able to perform Plaintiff's past work, but could work as an industrial cleaner, laundry worker, or machine packager. (Tr.48, PAGEID #: 87).

         The ALJ then limited the individual to simple, routine tasks. (Id.). The VE concluded that the hypothetical individual could still complete the three jobs mentioned previously. (Id.). However, the VE opined that the hypothetical individual would be precluded from work if the individual: would be unable to work an eight-hour day or 40-hour work week; would be off task ten minutes every hour in addition to normal breaks; or would be absent three or more days per month. (Tr. 49, PAGEID #: 88).

         C. Relevant Medical Background

         1. Scioto Paint Valley Mental Health Center

         Plaintiff's medical records begin with Dr. Daniel S. Lettvin about a year and a half prior to the alleged onset date and carry through the date last insured, including treatment by Dr. Lettvin, Dr. Susan E. Wolfe, and Dr. Chris Kovell. Dr. Wolfe's records and assessments are most relevant to Plaintiff's assignments of error.

         Plaintiff's counseling sessions with Dr. Wolfe are documented from February 20, 2008 to September 15, 2010 (Tr. 443-61, PAGEID #: 488-506). On a Psychiatric/Psychological Impairment Questionnaire dated October 8, 2013, Dr. Wolfe indicated that she had been treating Plaintiff for bipolar II disorder and anxiety disorder since January 2007. (Tr. 477, PAGEID #: 522). Dr. Wolfe noted a current GAF of 50, with the lowest GAF of the past year being 47. (Id.) When asked to identify the laboratory and diagnostic test results which demonstrate support for her diagnosis, Dr. Wolfe stated, “see clinical records.” (Tr. 478, PAGEID #: 523). Dr. Wolfe listed Plaintiff's primary symptoms as paranoia, depression, and anxiety. (Tr. 479, PAGEID #: 524). Dr. Wolfe noted prior psychiatric hospitalizations in the early 1980s, 2001, ...


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