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McKnight v. Commissioner of Social Security

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

June 4, 2019

DEAN S. MCKNIGHT, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          James L. Graham Judge.

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Dean S. McKnight (“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 a period of disability and disability insurance benefits. This matter is before the undersigned for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 11), Plaintiff's Motion to Remand under Sentence Six of 42 U.S.C. § 405(g) (“Motion to Remand”) (ECF No. 12), the Commissioner's Response in Opposition (ECF No. 17), Plaintiff's Reply (ECF No. 18), and the administrative record (ECF No. 6). For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED (ECF No. 11), that his Motion to Remand be DENIED (ECF No. 12), and that the Commissioner's decision be AFFIRMED.

         I. BACKGROUND

         Plaintiff protectively filed his application for a period of disability and disability insurance benefits on May 7, 2015. In his application, Plaintiff alleged a disability onset of September 1, 2014. Plaintiff's application was denied initially on July 21, 2015, and upon reconsideration on September 15, 2015. Plaintiff sought a hearing before an administrative law judge. Administrative Law Judge Timothy Gates (the “ALJ”) held a hearing on April 14, 2017, at which Plaintiff, represented by counsel, appeared and testified. Vocational expert Teresa L. Trent (the “VE”) also appeared and testified at the hearing. On September 13, 2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act.

         Plaintiff requested that the Appeals Council review the ALJ's decision. He submitted additional evidence to the Appeals Council, including a Compensation and Pension Examination (“C&P Examination”), which was conducted by James Reardon, Ph.D., on August 15, 2016, as part of Plaintiff's Veterans Affairs' claim.[1] (R. at 219-27.) The Appeals Council declined to consider the C&P Examination, finding the “evidence does not show a reasonable probability that it would change the outcome of the decision.” (R. at 2.) On July 11, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. Plaintiff then timely commenced the instant action.

         In his Statement of Specific Errors (ECF No. 11), Plaintiff contends that the ALJ erred in assessing the opinion of his treating psychiatrist, Matthew Stevenson, M.D. Plaintiff also filed a Motion to Remand, asking the Court to remand this matter under Sentence Six of 42 U.S.C. § 405(g). (ECF No. 12.) More specifically, Plaintiff contends that the C&P Examination should have been considered by the Appeals Council because it was new and material evidence. He also asserts that he had good cause for failing to present the C&P Examination before the ALJ rendered his decision.

         II. RELEVANT MEDICAL EVIDENCE[2]

         A. Veterans Affairs Medical Records

         Plaintiff primarily received treatment from the United States Department of Veterans Affairs (the “VA”).

         On May 23, 2016, Matthew Stevenson, M.D., wrote a letter and completed a medical source statement regarding Plaintiff's mental conditions. (R. at 728, 819, 825-28.) In his letter, Dr. Stevenson stated that Plaintiff has been under his care since March 2009 and that he has been diagnosed with Dysthymia and post-traumatic stress disorder (“PTSD”) and prescribed medication. (R. at 819.) Dr. Stevenson further stated:

[Plaintiff] recently started a program of psychotherapy where he was diagnosed with Generalized Anxiety Disorder, panic attack specifier and Major Depressive Disorder, recurrent with anxious distress. He has been engaging in group psychotherapy in addition to medication management with limited benefit at this point. He continues to complain of depressed and irritable mood, poor sleep, and anxiety. He has been service connected and receives VA benefits for his main financial support. He has made multiple attempts at different jobs, but has consistently been unable to sustain employment. It is my opinion that the patient has not had significant improvement with treatment that he would be able to sustain gainful employment.

(R. at 819.)

         Dr. Stevenson also completed a “Medical Source Statement As To Ability To Perform Work Related Activities (Mental)” on Plaintiff's behalf. (R. at 825-28.) Dr. Stevenson opined that Plaintiff is mildly limited in his ability to relate to the general public, maintain socially appropriate behavior, and maintain personal appearance and hygiene. He found that Plaintiff is moderately limited in his ability to remember locations, workday procedures, and instructions, and to be aware of normal hazards and to take necessary precautions. (Id.) Dr. Stevenson further opined that Plaintiff is markedly limited in his ability to accept instruction from or respond appropriately to criticism from supervisors or superiors; to work in coordination with or in proximity to others without distracting them or exhibiting behavioral extremes; to perform and complete work tasks in a normal work day or week at a consistent pace; to work in cooperation with or in proximity to others without being distracted by them; to process subjective information accurately; to use appropriate judgment; to carry through instructions and complete tasks independently; and to respond appropriately to changes in a work setting. (Id.) Dr. Stevenson found that Plaintiff is extremely limited in his ability to respond appropriately to co-workers or peers; to maintain attention and concentration for more than brief periods of time; to perform at production levels expected by most employers; to behave predictably, reliably and in an emotionally stable manner; and to tolerate customary work pressures. (Id.)

         Dr. Stevenson opined that Plaintiff is likely to have unscheduled absences from work occurring 5 or more days per month due to his conditions, and that his condition is likely to deteriorate if he is placed under stress, particularly the stress of full-time employment. (R. at 827.) Dr. Stevenson explained that this opinion is based on Plaintiff's “interpersonal and mood symptoms” and the fact that Plaintiff has “failed multiple work attempts.” (Id.)

         On May 31, 2016, clinical psychologist, Nicole L. Jackson, Ph.D., found that “[t]here is no indication based on [her] clinical judgment at this time that the [Plaintiff] is unemployable.” (R. at 717.)

         On November 17, 2016, the VA issued a decision finding Plaintiff individually unemployable. (R. at 846-50.)

         B. Additional Evidence Submitted to Appeals Council

         After the ALJ's September 13, 2017 decision, Plaintiff submitted additional evidence to the Appeals Council. At issue in this appeal is the C&P Examination that was conducted as part of Plaintiff's VA claim. Plaintiff was examined by James Reardon, Ph.D., on August 15, 2016. Dr. Reardon diagnosed Plaintiff with post traumatic stress disorder, chronic, moderate to severe; persistent depressive disorder (dysthymia); and alcohol use disorder, mild. (R. at 220.) Dr. Reardon noted that Plaintiff “has had significant issues with occupational and educational functioning, ” and that “[h]e has been fired from most of his jobs because of interpersonal issues and explosive/anger management issues.” (R. at 222.) Dr. Reardon noted that Plaintiff suffers from the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and suicidal ideation. (R. at 224-25.)

         Dr. Reardon noted that Plaintiff was “pretty agitated” and extremely anxious when he arrived at the examination. (Id.) Dr. Reardon further noted that Plaintiff calmed down and was “adequately cooperative with the evaluation and, in fact, was somewhat apologetic by the end of the examination.” (Id.) Dr. Reardon further explained Plaintiff's behavior during the examination as follows:

The Vet did become tearful and pretty upset part way through the examination when we were talking about some of the difficulties he has had in job situations and just in general. He also began to hyperventilate at a couple of different points in the examination. He also broke into a pretty profuse state of sweating near the end of the examination and appeared to be laboring significantly with regard to his breathing and significant anxiety symptoms. He was encouraged to just breath nice and deep and slow, and he was able to get himself calmed down, although the perspiration on his face was significant enough that I had to get a paper towel for him.

(R. at 225.)

         Dr. Reardon noted that Plaintiff was currently taking PTSD and Anger Management Classes through the VA, and that he misses those classes sometimes. (R. at 225.) Dr. Reardon found Plaintiff to be a “very credible” informant and noted that “[t]he anxiety symptoms and especially the physiological anxiety symptoms that he manifested were significant.” (R. at 226.) He found that Plaintiff “is struggling significantly and is trying to respond to both the treatment and medication regimen that he is on, ” and that he does “pretty well” on a good day and “struggles significantly” on a bad day. (Id.)

         Dr. Reardon concluded as follows:

I believe, based on this examination, that the Veteran's ability to function is significantly deficient in most areas of functioning, including work, family relations, judgment, thinking, and mood. He manifested significant anxiety and depressive symptoms during this examination and I would agree with Dr. Stevenson's opinions with regard to his ability to function in a substantial, gainful employment environment. He would be able to function reasonably well at times, but at other times he would not only struggle to function himself but he would have significant limitations in terms of his ability to handle the social, emotional, and interpersonal aspects of an employment situation and in order to handle the stress and pressure of the day to day responsibilities of a work environment. These impairments would significantly negatively impact his ability to sustain occupational or employment behaviors.
The opinions stated in this report are based on my review of the Veteran's records (over 2, 000 pages) as well as my examination of the Veteran. They are also based on my education, background, training, and experience as a psychologist who has been in practice for more than 39 years ...

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