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Johnson v. Commissioner of Social Security

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

June 11, 2019

STEPHANIE R. JOHNSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          George C. Smith Judge

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Stephanie R. Johnson (“Plaintiff”), brings this action under 42 U.S.C. §§ 405(g) and 1383(c) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Social Security Disability Insurance benefits (“SSDI”) and Supplemental Security Income benefits (“SSI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 10), the Commissioner's Memorandum in Opposition (ECF No. 15), Plaintiff's Reply (ECF No. 17), and the administrative record (ECF No. 7). For the following reasons, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff applied for disability benefits on October 17, 2014 and supplemental security income on October 7, 2014.[1] (R. at 11.) Plaintiff's claim was denied initially and upon reconsideration. (R. at 1-4, 8.) Upon request, a hearing was held on May 11, 2017, in which Plaintiff, represented by counsel, appeared and testified. (R. at 11.) A vocational expert also appeared and testified at the hearing. (Id.) On August 9, 2017, Administrative Law Judge Noceeba Southern (“the ALJ”) issued a decision finding that Plaintiff was not disabled at any time after October 18, 2013, the alleged onset date. (R. at 11-27.) On January 24, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-4.) Plaintiff then timely commenced the instant action on March 26, 2013. (ECF No. 3.)

         II. HEARING TESTIMONY

         A. Plaintiff's Testimony

         Plaintiff testified that she lives in Ohio with her boyfriend of five years and six-year-old son. (R. at 64, 71.) Plaintiff testified that she does not attend her son's parent/teacher conferences. (R. at 68.) Plaintiff also testified that her boyfriend does not work and is on disability for “seizures and stuff like that.” (R. at 71-72.) She also testified that her only source of income has been from child support. (R. at 71.) She further testified that she went through to the twelfth grade but did not graduate and has not obtained a GED. (R. at 64.) Plaintiff stated that she has had a driver's license since she was nineteen-years-old but that she cannot drive by herself because of her anxiety. (R. at 64-65, 70.) Plaintiff also stated that because she does not drive by herself she “really can't make some of [her doctor's appointments].” (R. at 71.) Plaintiff testified that regarding chores she does “very little of that.” (R. at 73.) Plaintiff further testified that she has not had any drug or alcohol problems in the past. (Id.)

         Plaintiff indicated that the last place she worked was Anchor Hocking where she did “packing, sealing boxes, and blowing - making fish bowls.” (R. at 65.) She further testified that she worked on a conveyor belt at Anchor Hocking. (Id.) Plaintiff stated that she did the work while standing and that she stood for eight to twelve hours a day. (Id.) Plaintiff also stated that the heaviest weight she typically had to lift and carry was “about thirty or forty pounds or more maybe.” (Id.) Plaintiff testified that the job ended because her “anxiety got to the point where [she] couldn't leave the house” and she was fired for not going to work. (Id.) Plaintiff further testified that her anxiety “got to the point where if [she] left [her] house [she] felt sick” and that she “can't be around people” or go to the grocery store. (R. at 66-67.) Plaintiff also testified that in 2012 she worked for North Services for approximately six months. (R. at 66.)

         Plaintiff explained that she has been seeing Dr. Roger Balogh for “probably about two or three years” every three months. (R. at 67.) Plaintiff stated that he has put her on a couple medications, but they are still working on something to “balance [her] out.” (Id.) Plaintiff stated that she has experienced side effects from some of the medications including that her tongue would go numb or she would experience “itching, like hives.” (Id.) Plaintiff also represented that she had been prescribed Xanax specifically for the trip to Columbus for the hearing. (Id.) Plaintiff further testified that she is currently taking Xanax and Promethazine. (R. at 73.)

         B. Vocational Expert Testimony

         John R. Finch, Ph.D. testified as the vocational expert (“VE”) at the May 2017 hearing. (R. at 11.) The VE testified that Plaintiff's past work would be described as factory laborer, which is an unskilled position classified as heavy strength. (R. at 79.) The VE further testified that based on Plaintiff's testimony, she performed the job “closer to medium strength.” (Id.)

         Assuming a hypothetical individual of the same age, education, work experience as Plaintiff, with a residual functional capacity (“RFC”) to perform at all exertional levels, except that the individual would be able to complete simple, routine tasks and simple to moderately complex tasks, and that the individual would interact with the public occasionally but on a superficial basis, as well as with co-workers and supervisors, and that the individual should be able to sustain goal-based work but not at a production rate pace, and the individual would need a position with low-stress such that there are only occasional decisionmaking and changes required, and the individual would need no tandem work, the VE testified that this individual would be able to perform Plaintiff's past work and other work as well. (Id.) The VE further testified that the other work included dish washer, hand packager, and cleaner. (R. at 79-80.)

         Assuming a hypothetical individual of the same age, education, and work experience as Plaintiff, with the same RFC as above except that this individual has no interaction with the public and the individual would also be off task 7% of the day, the VE testified that this individual would be able to perform the same work as the first-described individual, including Plaintiff's past work. (R. at 80.) If the time spent off task was increased above 8%, the VE testified that this would be work preclusive. (R. at 81.) Assuming a hypothetical individual of the same age, education, and work experience as Plaintiff, with the RFC as stated previously except that this individual would be absent from work two or more days per month, the VE testified the amount of absenteeism would exceed what employers will tolerate. (R. at 80-81.)

         III. MEDICAL RECORDS

         A. Dr. Roger Balogh

         Dr. Roger Balogh provided an opinion via a “Medical Assessment of [Plaintiff's] Ability to do Work-Related Activities (Mental)” on April 8, 2015.[2] (R. at 488-90.) At that time, Dr. Balogh had been treating Plaintiff for approximately two months. (R. at 490.) The assessment provided definitions for the following terms regarding the severity of limitations:

• Extreme: “The individual has major limitations in this area with no useful ability to function.”
• Marked: “The individual has serious limitations in this area. Ability to function is severely limited but not precluded.”
• Moderate: “The individual can function satisfactorily despite moderate limitations in this area.”
• Mild: “The individual can generally function well despite mild limitations in this area.”
• None: “The individual has no or minimal limitations in this area. Any limitations are transient and/or are expected reactions to psychological stress.”

(R. at 488.) Dr. Balogh left blank the question of “[i]n your medical opinion, how many hours can your patient regularly work in a day? (0 - 8).” (Id.)

         Dr. Balogh opined that Plaintiff had moderate limitations in using judgment. (Id.) He opined that Plaintiff had marked limitations in following work rules, relating to co-workers, interacting with supervisor(s), dealing with work stresses, and maintaining attention/concentration. (Id.) Dr. Balogh further opined that Plaintiff had extreme limitations in dealing with the public and functioning independently. (Id.) When directed to “describe any limitations and related medical/clinical findings that support this assessment[, ]” Dr. Balogh left that portion blank. (Id.)

         Furthermore, Dr. Balogh opined Plaintiff had mild limitations in her ability to understand and carry out simple job instructions, moderate limitations in her ability to understand and carry out detailed, but not complex, job instructions, and marked limitations in her ability to understand and carry out complex job instructions. (R. at 489.) When directed to “describe any limitations and related medical/clinical findings that support this assessment[, ]” Dr. Balogh wrote that Plaintiff “has severe anxiety and panic” and that “she remains housebound.” (Id.)

         Finally, Dr. Balogh opined that Plaintiff had mild limitations in maintaining personal appearance and marked limitations in behaving in an emotionally stable manner and relating predictably in social situations. (Id.) Dr. Balogh left blank the limitation for whether Plaintiff demonstrated reliability. (Id.) When directed to “describe any limitations and related medical/clinical findings that support this assessment[, ]” Dr. Balogh wrote that Plaintiff has not gone to stores or restaurants in two years. (Id.) He also wrote that Plaintiff “recently started seeking [psychiatric] help the last [six] months and made it to appointments.” (Id.)

         Plaintiff also visited Six County, Inc. numerous times between 2013 and 2017 where Dr. Balogh sometimes saw her. (R. at 352-99, 417-28, 504-98.) On February 18, 2015, Dr. Balogh saw Plaintiff and indicated her speech was pressured, thought processes were clear and linear, that she had no overt delusions, that her judgment and insight were intact, and that her attention span and concentration were within normal limits. (R. at 419-26.) On September 16, 2015, Dr. Balogh saw Plaintiff and indicated her speech was rapid, her thought processes were a “flight of ideas” because her “mind does appear to be going fast, ” that Plaintiff had no overt delusions, that her judgment and insight were intact, and that she had impaired attention span/distractibility “due to anxiety and rapid thoughts.” (R. at 504-13.)

         On December 16, 2015, Dr. Balogh noted that Plaintiff “still struggles with panic and irritability.” (R. at 515.) He indicated that Plaintiff's speech was rapid, her thought processes were clear and linear, that she had no overt delusions, that she had limited insight into problem(s), and that she had impaired attention span/distractibility. (R. at 514-23.) On February 3, 2016, Dr. Balogh noted that Plaintiff “continues to struggle with high levels of anxiety and panic symptoms.” (R. at 525.) He indicated her speech was of regular rate/rhythm/volume, that her thought processes were clear and linear but she had a “flight of ideas” because of her report that her “thoughts race, ” that she had no overt delusions, and that her judgment and insight were intact. (R. at 524-33.) On March 16, 2016, Dr. Balogh noted that Plaintiff was “still anxious and still irritable.” (R. at 535.) He indicated her speech was of regular rate/rhythm/volume, her thought processes were clear and linear, she had no overt delusions, and that she had limited insight into problem(s). (R. at 534-43.)

         On May 11, 2016, Dr. Balogh noted that Plaintiff “continues to struggle with her anxiety.” (R. at 545.) He indicated her speech was of regular rate/rhythm/volume, her thought processes were clear and linear, she had no overt delusions, and her judgment and insight were intact. (R. at 544-53.) On July 13, 2016, Dr. Balogh noted that Plaintiff stated she “is functioning better with her current medications” but “still deals with anxiety and panic symptoms.” (R. at 555.) He indicated her speech was of regular rate/rhythm/volume, her thought processes were clear and linear, she had no overt delusions, and her judgment and insight were intact. (R. at 554-63.) On October 12, 2016, Dr. Balogh noted that Plaintiff was complaining of increased anxiety but that she was compliant with her medications and had no hallucinations or paranoia. (R. at 565.) He indicated her speech was of regular rate/rhythm/volume, her thought processes were clear and linear, she had no overt delusions, her judgment and insight were intact, and she had impaired attention span/distractibility. (R. at 564- 73.)

         On November 16, 2016, Dr. Balogh noted that Plaintiff was “about the same as last visit” and that she continued “to have significant anxiety and panic.” (R. at 575.) He indicated her speech was of regular rate/rhythm/volume, she had no overt delusions, and her judgment and insight were intact, but she had limited insight into problem(s). (R. at 574-83.) On January 4, 2017, Dr. Balogh noted that Plaintiff reported she was “doing adequately with medications at this time” and that she “still has anxiety, but able to go to grocery store at night.” (R. at 590.) He indicated her speech was of regular rate/rhythm/volume, her thought processes were clear and linear, she had no overt delusions, and her judgment and insight were intact. (R. at 589-98.)

         On April 5, 2017, Dr. Balogh saw Plaintiff and opined that “she is compliant with her medications with control of anxiety to point that she can function within her home, but remains unable to go out socially without experiencing anxiety and panic.” (R. at 39.) He further opined that she was not a risk to herself or others. (Id.) Furthermore, he noted that she would need medication “to help her overcome anxiety” so that she could make it to the hearing on her application for disability benefits and supplemental security income. (Id.) Additionally, Dr. Balogh indicated that on average he expected Plaintiff's impairments or treatment would cause her to ...


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