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McGill v. Commissioner of Social Security Administration

United States District Court, S.D. Ohio, Western Division, Dayton

July 25, 2018

ROSE A. MCGILL, Plaintiff,

          Thomas M. Rose, District Judge



         I. Introduction

         The Social Security Administration denied Plaintiff Rose McGill's October 11, 2103 application for Supplemental Security Income. She brings the present case challenging that denial. At issue is the decision by Administrative Law Judge (ALJ) Gregory G. Kenyon. He concluded that Plaintiff is not under a disability and, consequently, not eligible to receive Supplemental Security Income.

         Plaintiff seeks an Order reversing ALJ Kenyon's decision and remanding for an award of benefits. The Commissioner seeks an Order affirming ALJ Kenyon's decision.

         II. Background

         A. Plaintiff's Vocational Profile and Testimony

         Plaintiff was 47 years old on her asserted disability onset date. She was therefore considered a younger person under Social Security Regulations. 20 C.F.R. § 416.963(c). She has an eleventh-grade education and no past relevant work. She does not read or write very well. She can read a newspaper but does not understand what she reads. (Doc. #6, PageID #75).

         During an administrative hearing held by ALJ Kenyon, Plaintiff testified that she is 5 feet 6 inches tall and weighs 261 pounds. She lives alone in an apartment. She has a driver's license but does “not really” drive-she just doesn't want to. Id. at 75.

         She began having back problems after her first child was born. Her back pain had worsened in the last couple of years before the ALJ's hearing (in September 2015). Id. It is a sharp pain in her lower back that radiates into her hip. She estimated her pain severity at 4 on a 0-10 scale (10 equaling the most pain). Low-back pain causes her trouble bending at the waist. Id. at 78.

         Plaintiff was using a wheelchair at the time of the ALJ's hearing due to recent surgery. She had previously used a walker starting in approximately 2012 due to weakness in her legs due to blood loss from bleeding, which had been surgically corrected. Id. at 79.

         Plaintiff also testified to suffering from breathing problems, noting “it's hard for me to walk anywhere… I can't breathe, I get really weak, lightheaded, I want to fall down.” Id. at 82. This occurs whenever she walks. She does not use inhalers and does not smoke. She is limited to walking 40 to 50 feet because she gets out of breath. Id. at 86. She can sit for 60 to 90 minutes.

         Plaintiff has a history of anxiety and depression. She said she isolates herself in her room 15 hours per day and rarely leaves her home because she gets nervous and anxious around others. Id. at 83-84. When she watches television, she has a hard time paying attention. She explained, “My mind drifts off on everything I do….” Id. at 85.

         Plaintiff estimated that that she is cannot lift more than 5 pounds or walk more than 50 feet. Id. at 87. She can stand in one spot for 3 or 4 minutes.

         As to daily activities, Plaintiff testified that she spends most of her time in her room laying down and playing solitaire on her phone. Id. at 86. She can dress herself, take a shower and bath but has a hard time doing her hair. Id. at 87. She doesn't perform household chores; her daughter visits and helps. She likes to sit at her desk and read her Bible for 30-minutes. Id. She stops because she gets tired and gets frustrated with her inability to understand it. She also forgets what she's read. Id. at 91. There was a time when she went to Bible study on Friday nights but this lasted only 2 months because she “just wanted to go back into [her] corner….” Id. at 92.

         B. Mental Impairments

         TCN Behavioral Health

         Plaintiff sought mental health treatment at TCN in October 2012. (Doc. #6, PageID #s 293-312). She presented feeling depressed and having difficulty leaving her home because of limited motivation and an inability to safely walk. Id. at 293, 311. Plaintiff was diagnosed with recurrent depressive psychosis. Id. at 403.

         When seen by her therapist in December 2012, Plaintiff reported that she has gotten a walker, an eye exam, new glasses and her driver's license. Her medications were working very well. She indicated that her mood was very good and she had been able to come out of her room and help with fixing meals. She was also able to visit with visitors and not feel overwhelmed. 341. On mental-status examination, Plaintiff was well groomed, exhibited slow speech, was cooperative, thought process was within normal limits, her mood was euthymic, full range effect, but she appeared confused with limited insight and judgment. Id. at 339-40.

         Plaintiff saw Bobbie Fussichen, APRN, BC, a nurse specialist, for a psychiatric evaluation on December 2, 2012. Id. at 386-90. Plaintiff reported a history of depression for at least 1 year, low energy, interest, and motivation. She isolated herself in her room, slept poorly, and had decreased concentration. Id. at 386. During a mental-status examination, Plaintiff exhibited slow speech, depressed mood, restricted affect, impaired cognition, and poor insight/judgment. Id. at 388-89. She had no previous mental health treatment. Id. at 390.

         In February 2013, Plaintiff's daughter called TCN and reported that Plaintiff will not get out of bed to take her medication. She received medical news about having tumors and denied social-security benefits. Id. at 361.

         In April 2013, Plaintiff reported to Nurse Fussichen that she was moving a little better, had been going to physical therapy, sleeping ok, sleeping during the day but was awake at night. Her appetite was good and she had no new problems. Her medications were helping and she felt less depressed. Id. at 394. On mental-status examination, her thought content was normal, she was cooperative, her mood was improved but she remained depressed, and she had a full affect. Id. at 394-95.

         On August 14, 2013, Plaintiff met with a CSS (Community Support Services) staff member, a support program provided by TCN Behavioral. Plaintiff reported that on a bad day, she has depression with symptoms including self-isolation, loneliness, and tearfulness. Id. 314. On August 27, 2013, Plaintiff met again with a CSS staff member who noted Plaintiff's “mood was good with cooperative behavior and disorganized thought process….” Id. at 318. She was sleeping well and taking medications as prescribed. Id. at 317-18.

         During a home visit in September 2013, the same CSS staff member informed Plaintiff that he would assist her in applying for SSI. He also informed her “that due to her diagnosis and ability to work that she may not qualify for SSI.” Id. at 320. When seen by Nurse Fussichen on October 2, 2013, Plaintiff's mood was a little depressed, she was cooperative and had normal thought processes. She reported to Nurse Fussichen that she was getting 7 hours of broken sleep and her medication was helpful expect for sleep. Id. at 400.

         The CSS staff member visited Plaintiff's home in November 2013 to help her with a phone interview she had with the Social Security Administration. Id. at 331. He noted that Plaintiff had to be redirected multiple times throughout the meeting due to depression and anxiety, which caused her to become anxious and lose focus on the task at hand. Id. In December 2013, the CSS staff member visited Plaintiff to assist her with symptom self-monitoring due to disorganization, depression, and anxiety. He reviewed Plaintiff's daily activities with her due to isolation, reviewed the importance of increasing daily activity, and encouraged her to be more active. He noted Plaintiff's mood was good, her behavior was cooperative, and her thought process was disorganized. Id. at 449.

         Nurse Fussichen completed a mental impairment questionnaire in late January 2014. Id. at 418-21. She diagnosed Plaintiff with major depression, recurrent. Id. at 418. Plaintiff's symptoms include sleep and mood disturbances; psychomotor agitation or retardation; social withdrawal or isolation; blunt, flat, or inappropriate affect; and decreased energy. Id. Nurse Fussichen found that Plaintiff's symptoms had improved with medication, but she continued to struggle and her prognosis was guarded. Id. at 419.

         Nurse Fussichen opined that Plaintiff was markedly restricted in her ability to maintain concentration, persistence, or pace; maintain attention for extended periods; make simple work-related decisions; comprehend detailed instructions; ask simple questions or requests assistance; and, respond appropriately to criticism from supervisors. Id. at 420. According the Nurse Fussichen, Plaintiff would be moderately limited in her activities of daily living and in her ability to maintain social functioning; understand and remember instructions; maintain a schedule; sustain an ordinary routine; complete a normal work day and work week; interact with the general public; and ...

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