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Toth v. Berryhill

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

July 12, 2019

DONALD J. TOTH, II Plaintiff,
v.
NANCY A. BERRYHILL, Acting Comm'r of Soc. Sec., Defendant.

          DAN AARON POLSTER JUDGE

          REPORT AND RECOMMENDATION

          DAVID A. RUIZ MAGISTRATE JUDGE

         Plaintiff, Donald J. Toth (hereinafter “Plaintiff”), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter “Commissioner”), denying his applications for a Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.

         I. Procedural History

         On June 8, 2015, Plaintiff filed his applications for POD, DIB, and SSI, alleging a disability onset date of July 4, 2010.[1] (Transcript (“Tr.”) 231-243). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 163-181). Plaintiff participated in the hearing on June 26, 2017, was represented by counsel, and testified. (Tr. 59-94). A vocational expert (“VE”) also participated and testified. Id. On November 22, 2017, the ALJ found Plaintiff not disabled. (Tr. 11-21). On April 26, 2018, the Appeals Council denied Plaintiff's request to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-7). On June 26, 2018, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 12, 14 & 15).

         Plaintiff asserts the following assignments of error: (1) the RFC is not supported by substantial evidence because it does not account for all of his mental limitations, and (2) the ALJ erred by failing to consider the statements of Plaintiff's father. (R. 12).

         II. Evidence

         A. Relevant Medical Evidence [2]

         1. Treatment Records

         On May 27, 2015, physician assistant Michell McDiffett noted that care was established with Plaintiff, with the goal of having Plaintiff decrease/abstain from substance abuse while stabilizing his behavioral health. (Tr. 1322). Plaintiff stated that his goal was “[t]o be my old self again. I would like to get a place of my own and apply for disability.” Id. On mental status examination, Plaintiff was oriented x 4 but appeared drowsy, his attention and concentration were intact, he appeared nervous but was cooperative, his mood and affect were dysthymic and restricted, his thought process was logical and coherent, his fund of knowledge was intact, his recent and remote memory was fair, and his judgment and insight were fair. (Tr. 1323-1324). Plaintiff had anxious thoughts, panic attacks, possible agoraphobia, depressed thoughts, and ruminations, but no suicidal/homicidal ideation, no psychosis, and no mania. (Tr. 1324).

         On June 7, 2016, Plaintiff reported problems with depression and severe anxiety, but reported improvement of the former with medications. (Tr. 2544). On mental status examination, Plaintiff had normal speech, anxious mood and affect, linear and goal-directed thought processes, no delusional thoughts, and partial insight/judgment. (Tr. 2545). Plaintiff was not open to treatment suggestions and decided to discontinue services. Id. Premal Patwa diagnosed generalized anxiety disorder, severe major depressive disorder, severe opioid use disorder, severe stimulant use disorder (amphetamine/crack cocaine), and cannabis use disorder. Id.

         On July 26, 2016, Plaintiff was seen by Kimberly Goats for therapeutic services at the referral of Carington Park. (Tr. 2821-2822). Plaintiff reported struggling with depression and severe anxiety for most of his life. (Tr. 2821). He reported abusing alcohol as well as heroin, cannabis, and methamphetamines. Id. Plaintiff reported a history of long-term recovery when he was prescribed Klonopin by his former doctor, and noted that his substance abuse relapses have coincided with lapses in insurance coverage and the ability to maintain medication use. Id. Plaintiff reported that being at Carington Park and being prescribed valium has “made a world of difference” regarding his mental health concerns. (Tr. 2821-2822). He reported being able to function “normally, ” and not being triggered to abuse substances as in the past. (Tr. 2822).

         On August 15, 2016, treating physician Pazhaniaandi Tirounilacandin, M.D., indicated that Plaintiff's depression and anxiety were “very well controlled” and that Plaintiff “denies sadness, heaviness, irritability, mood swings, denies loss of interest or pleasure in their [sic] usual activities, denies difficulty concentration, denies lack of energy or motivation. Also denies feelings of worthlessness and hopelessness or helplessness.” (Tr. 2798). Treatment notes also indicated that Plaintiff “denies any anxiety attacks. Denies symptoms like palpitations, pounding heart, sweating, trembling or shaking. Patient also denies shortness of breath, choking sensation or chest discomfort. No. nausea or vomiting dizziness or lightheadedness. No. fear of losing control.” Id.

         2. Medical Opinions Concerning Plaintiff's Functional Limitations

         On June 24, 2015, Stacey B. Foerstner, Ph.D. performed a consultative examination of Plaintiff. (Tr. 631-635). On mental status examination, Toth's appearance and behavior were unremarkable; his speech rate and rhythm were responsive and within normal limits though understandability was compromised by Plaintiff's lack of teeth; flow of conversation and thought was unremarkable save for strained facial expressions; his thought content was negative for delusions, obsessions, and no tangential or circumstantial thinking; he reported suicidal ideation as recently as yesterday; he reported fear of people and events; in the area of insight/judgment he had adequate ability to formulate and articulate thoughts and displayed emotional reasoning and sufficient focus; his mood was distressed; and his affect was anxious and depressed. (Tr. 634). (Tr. 634) Dr. Foerstner completed a checklist questionnaire mental RFC assessment, indicating marked limitations in the following areas: the ability to understand, remember, and carry out detailed instructions; the ability to maintain attention and concentration for extended periods; the ability to work in coordination with or proximity to others without being distracted; the ability to complete a normal workday without interference from psychiatric symptoms; the ability to accept instructions and respond appropriately to criticism from supervisors; the ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; the ability to use public transportation; and the ability to set realistic goals. (Tr. 630). Dr. Foerstner opined that Plaintiff's mental limitations as set forth in the questionnaire were expected to last between 9 and eleven months. Id.

         On September 24, 2015, state agency psychologist Juliette Savitscus, Ph.D., reviewed Plaintiff's file and completed a mental RFC assessment. (Tr. 106-108). She opined Plaintiff was moderately limited in his ability to understand and remember detailed instructions, explaining that Plaintiff is able to carry out simple, routine, repetitive tasks of 1-3 steps for at least two-hour intervals. (Tr. 106). In the area of concentration and persistence, Dr. Savitscus assessed moderate limitations in Plaintiff's ability to do the following: carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with or in proximity to others without being distracted; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest. (Tr. 107). She explained that Plaintiff is “able to complete routine tasks over normal 8 hour -workday w/customary breaks in an environment with no high pace or production requirements.” Id. In the area of social interaction, Dr. Savitscus assessed moderate limitations in Plaintiff's ability to do the following: interact appropriately with the general public; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Id. She explained that while Plaintiff asserts increased anxiety due to public interaction, he has been shown to be cooperative and participatory. (Tr. 108). Therefore, she concluded Plaintiff can “interact for brief periods w/ coworkers and general public.” Id. Finally, in the area of adaptation, Dr. Savitscus assessed moderate limitations in Plaintiff's ability to do the following: respond appropriately to changes in the work setting. Id. She explained that Plaintiff “retains the ability to work in an environment that has infrequent changes that can be explained.” Id.

         On February 9, 2016, state agency psychologist Vicki Warren, Ph. D., reviewed Plaintiff's file and completed a mental RFC assessment. (Tr. 140-142). Dr. Warren's findings mirrored those of Dr. Savitscus. Id.

         B. Non-Medical Third-Party Statements

         On June 6, 2017, Plaintiff's father completed a questionnaire stating that his son's “biggest problem is his depression, anxiety, [and] panic attacks.” (Tr. 327, Exh. 15E). He noted Plaintiff's persistent symptoms include dizziness, shortness of breath, swelling of the feet, vision problems, sweats, depression/panic/anxiety, fatigue, weakness, and nausea. Id. He indicated Plaintiff stays up late into the night and sleeps most of the day. Id. He further indicated the Plaintiff avoids people when he can, stays in the apartment all day, has trouble concentrating, and becomes nervous before having to meet someone. (Tr. 328). He noted past suicide attempt(s). Id. He assessed extreme limitations in Plaintiff's activities of daily living and marked limitation in maintaining social functioning. (Tr. 330).

         III. Disability Standard

         A claimant is entitled to receive benefits under the Social Security Act when he establishes disability within the meaning of the Act. 20 C.F.R. § 404.1505 & 416.905; Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered disabled when he cannot perform “substantial gainful activity by reason of any medically determinable physical or m ental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a) and 416.905(a); 404.1509 and 416.909(a).

         The Commissioner determines whether a claimant is disabled by way of a five-stage process. 20 C.F.R. § 404.1520(a)(4); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate that he is not currently engaged in “substantial gainful activity” at the time he seeks disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant must show that he suffers from a medically determinable “severe impairment” or combination of impairments in order to warrant a finding of disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that “significantly limits ... physical or mental ability to do basic work activities.” Abbott, 905 F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a severe impairment (or combination of impairments) that is expected to last for at least twelve months, and the impairment(s) meets a listed impairment, the claimant is presumed to be disabled regardless of age, education or work experience. 20 C.F.R. ยงยง 404.1520(d) and 416.920(d). Fourth, if the claimant's impairment(s) does not prevent him from doing past relevant work, the claimant is not disabled. 20 ...


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