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Thompson v. Commissioner of Social Security

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

July 19, 2019

RICHARD J. THOMPSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          PAMELA A. BARKER, JUDGE

          REPORT AND RECOMMENDATION

          DAVID A. RUIZ UNITED STATES MAGISTRATE JUDGE

         Plaintiff Richard J. Thompson (“Thompson” or “claimant”) has challenged the final decision of Defendant Commissioner of Social Security (“Commissioner”), denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423, et seq. (“Act”). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). The issue before the court is whether the final decision of the Commissioner is supported by substantial evidence and, therefore, conclusive. For the reasons set forth below, the Commissioner's final decision should be remanded for further proceedings.

         I. PROCEDURAL HISTORY

         On November 30, 2016, Thompson filed an application for DIB alleging disability beginning September 30, 2016. (R. 9, Transcript (“tr.”), at 11, 189-190, 226-234, 235-244.) His application was denied initially and upon reconsideration. Id. at 74-89, 90-102. Thereafter, Thompson filed a request for a hearing before an administrative law judge (ALJ). Id. at 123-124.

         The ALJ held a hearing on April 13, 2018. (R. 9, tr., at 26-73.) Thompson appeared at the hearing, was represented by counsel, and testified. Id. at 28, 34-63. A vocational expert (“VE”) attended the hearing by telephone and provided testimony. Id. at 28-29, 63-70. On May 9, 2018, the ALJ issued his decision and concluded claimant was not disabled. Id. at 11-20. The Appeals Council denied Thompson's request for review, thus rendering the ALJ's decision the final decision of the Commissioner. Id. at 1-3.

         On August 23, 2018, Thompson filed a complaint challenging the Commissioner's final decision, pursuant to 42 U.S.C. § 405(g). The parties have completed briefing in this case. Thompson asserts that the ALJ erred when considering the opinions from a treating psychiatrist; and, further argues that the ALJ violated SSR 16-3P. (R. 11, PageID #: 672.)

         II. PERSONAL BACKGROUND INFORMATION

         Thompson was born in 1970, and was 45 years old on the alleged disability onset date. (R. 9, tr., at 18, 189, 235.) He has a high school education, is able to communicate in English, and has past work as caster. Id. at 18, 36, 64, 237, 239.

         III. RELEVANT MEDICAL EVIDENCE[1]

         Disputed issues will be discussed as they arise in Thompson's brief alleging error by the ALJ. As noted earlier, Thompson applied for DIB benefits on November 30, 2016, alleging disability beginning September 30, 2016. (R. 9, tr., at 11, 189-190.) Thompson listed the physical or mental conditions that limit his ability to work as “bi-polar.” Id. at 238.

         On initial review, state agency physician Leslie Green, M.D., completed a physical residual functional capacity assessment on January 25, 2017. (R. 9, tr., at 83-84.) Dr. Green opined that Thompson was limited to lifting and carrying fifty pounds occasionally, and twenty-five pounds frequently. Id. at 83. The claimant was capable of standing, walking, or sitting for about six hours of an eight-hour workday. Id. The doctor opined that Thompson had unlimited ability to push or pull, other than as stated for lifting and carrying. Id. Dr. Green found no need for postural, manipulative, visual, communicative or environment restrictions. Id. at 84. Dr. Green noted that Thompson had been diagnosed with diabetes mellitus; and considered Thompson's pain symptoms. Id.

         On reconsideration, state agency physician Bradley J. Lewis, M.D., completed a medical evaluation on April 29, 2017. (R. 19, tr., at 94-95.) Dr. Lewis indicated that no severe physical impairments were documented, and no changes in physical condition had been alleged, other than treatment for pancreatitis that would not last twelve months. Id.

         State agency reviewing psychologist, Janet Souder, Psy.D., determined on February 21, 2017, that Thompson had mild difficulty in understanding, remembering, or applying information; and moderate difficulties in interacting with others, in maintaining concentration, persistence or pace, and in adapting or managing himself. (R. 9, tr., at 81-82 (psychiatric review technique).) Dr. Souder completed a mental residual functional capacity assessment, in which she found that Thompson did not have understanding or memory limitations, but was moderately limited in his ability to maintain attention and concentration for extended periods, and in his ability to work in coordination with, or in proximity to, others without being distracted by them. Id. at 84-85. The psychologist also assessed that claimant was moderately limited in his ability to 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 periods. Id. 85. Dr. Souder assessed Thompson is capable of tasks that are static and repetitive in nature. Id.

         In addition, the psychologist indicated that Thompson was moderately limited in his ability to interact appropriately with the general public and in his ability to get along with coworkers without distracting them or exhibiting behavioral extremes. (R. 9, tr., at 85.) Dr. Souder assessed he should be limited to superficial interaction with others. Id.

         Dr. Souder also indicated that Thompson was moderately limited in his ability to respond appropriately to changes in the work setting. Id. She opined that, due to depression, he should be limited to tasks that do not require frequent changes in routine. Id. at 86.

         On reconsideration dated April 28, 2017, state agency reviewing psychologist, Vicki Warren, Ph.D., adopted Dr. Souder's psychiatric review technique findings- concluding that Thompson had mild difficulty in understanding, remembering, or applying information; and moderate difficulties in interacting with others, in maintaining concentration, persistence or pace, and in adapting or managing himself. (R. 9, tr., at 95-96.) Dr. Warren's mental RFC assessment was also identical with Dr. Souder's assessment. Id. at 97-99.

         On January 29, 2018, Khoa Tran, M.D., completed four forms: A one-page form, entitled “Off-Task/Absenteeism Questionnaire, ” a one-page form, “Medical Statement Concerning Depression, Bipolar, and Related Disorders, ” another one page form entitled, “Medical Statement Concerning Anxiety and Obsessive Compulsive Disorders, ” and an “Anger Management Statement.” (R. 9, tr., at 579-583.) Dr. Tran indicated, on the off-task questionnaire, that Thompson would be off-task at least 20% of the time at work and his impairments or treatment would cause him to be absent from work about four times per month. Id. at 579. The doctor indicted Thompson's impairment as “bipolar, ” and noted it would frequently cause an inability to concentrate or focus on a sustained basis. Id. Dr. Tran also noted that claimant had pain in his back and neck. Id.

         On the medical statement concerning depression and bipolar, Dr. Tran indicated that Thompson was diagnosed with depressive disorder, with depressed mood, diminished interest, sleep disturbance, decreased energy, feelings of guilt or worthlessness, difficulty concentrating, and thoughts of death or suicide. (R. 9, tr., at 580.) The doctor also indicated that claimant's bipolar disorder was characterized by pressured speech, decreased need for sleep, distractibility, and manic behavior. Id.

         Dr. Tran indicated that Thompson had marked limitations in understanding, remembering, or applying information; in interacting with others; in maintaining concentration, persistence or pace, and in adapting or managing himself. (R. 9, tr., at 580-581.) The doctor marked that Thompson's psychiatric disorders were serious and persistent. Id.

         Dr. Tran noted in the medical statement that claimant's anxiety disorder was characterized by “restlessness, ” “easily fatigued, ” “irritability, ” “muscle tension” or “sleep disturbance.” (R. 9, tr., at 581.) His panic disorder was characterized by panic attacks, followed by a persistent concern about additional panic attacks, and disproportionate fear or anxiety about being in public situations. Id. Additionally, Dr. Tran marked that Thompson's obsessive-compulsive disorder was characterized by involuntary, time-consuming preoccupations with intrusive thoughts, as well as repetitive behaviors aimed at reducing anxiety. Id.

         On the anger management statement, Dr. Tran indicated that the claimant had pervasive and deep issues with anger management. (R. 9, tr., at 582-583.) The anger management document includes twenty “statements” of anger-related issues, and Dr. Tran checked nineteen of those statements as applicable to Thompson. Id. For example, Dr. Tran checked a box on the form noting that Thompson “seems to get angry all the time and flies off the handle easily.” Id. at 582. Although Dr. Tran indicated that claimant “flies off the handle easily, ” he also marked that claimant “tends to try to keep his anger bottled up.” Id. Although claimant keeps his anger bottled up, he also “feels like he is out of control and acts before he thinks.” Id. While Dr. Tran marked that the claimant ...


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