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Long v. Commissioner of Social Security

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

July 29, 2019

DONNIE A. LONG, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Sarah D. Morrison, Judge

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Donnie A. Long (“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 Social Security Disability Insurance benefits (“SSDI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 11), 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 December 12, 2015. (R. at 170-71.) Plaintiff's claim was denied initially and upon reconsideration. (R. at 19.) Upon request, a hearing was held on May 30, 2017, in which Plaintiff, represented by counsel, appeared and testified. (R. at 47-62.) A vocational expert also appeared and testified at the hearing. (R. at 58-61.) On August 17, 2017, Administrative Law Judge Peter Beekman (“the ALJ”) issued a decision finding that Plaintiff was not disabled at any time after June 3, 2010, the alleged onset date. (R. at 16-29.) On April 17, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-6.) Plaintiff then timely commenced the instant action. (ECF No. 4.)

         II. HEARING TESTIMONY

         A. Plaintiff's Testimony

         Plaintiff stated that he is five feet and ten inches tall and weighs 247 pounds. (R. at 49.) Plaintiff testified that he became disabled on June 3, 2010. (R. at 48.) He stated that he was working as a “tank fitter, welder and after [he] got the power and stuff while [he] was in the tank they told [him] to roll it and . . . it was on two two-by-fours and they rolled it off. Then, when [he] got done, they told [him to] go ahead and try to roll it back up there. When [he] did, it jerked [his] left arm and [his] arm went numb and [he] didn't get to stay there very long that day after because [his] whole left arm, hand and stuff, was going numb afterwards.” (Id.) Besides his left arm, Plaintiff testified that he also has problems with his right arm and shoulder, because when he hurt his left side he “tried to do a lot of the stuff with [his] right one” and “now, it's hurting about as bad as [his] left one is.” (R. at 49.) Plaintiff also testified that he has high blood pressure. (Id.)

         Plaintiff stated he drives “very little” because “steering the car hurts [his] shoulders.” (R. at 50.) Plaintiff described his average day as waking up then drinking “a couple of cups of coffee, ” going out and sitting on the porch, maybe walking around the yard one time, sitting in the house and watching television until his shoulders start “hurting so bad” that he must go to bed. (R. at 51.) Plaintiff testified that he is unable to pull or push anything with his left arm because he gets “definitely sick if [he tries] to pull or push with [his] left arm.” (Id.)

         Plaintiff further testified that he experienced a couple strokes in 2015. (R. at 52.) Plaintiff stated that he has memory problems including being unable to remember to take his medication. (Id.) Plaintiff also stated that he is “about blind” in his left eye “because of the strokes.” (R. at 53.) Plaintiff testified that depression affects him “at least three days a week.” (R. at 54.) Plaintiff further testified that he has received some treatment for his depression at Six County. (Id.)

         B. Vocational Expert Testimony

         Brett Salkin testified as the vocational expert (“VE”) at the May 2017 hearing. (R. at 58- 61.) The VE testified that Plaintiff had past work as a bulldozer operator, skilled, with a heavy exertion demand. (R. at 58.) The VE also testified that Plaintiff had past work of welder-fitter, skilled, classified as medium, and past work in a dry wall installer job, skilled, classified as very heavy exertion. (R. at 58-59.) The VE further testified that there are no transferable skills from any of Plaintiff's past work positions to the light level. (R. at 59.)

         The ALJ asked the VE to assume a hypothetical person with Plaintiff's age, education, and past work; who can lift/carry twenty pounds occasionally and ten pounds frequently; can stand or walk six hours out of an eight-hour workday; can sit six hours out of an eight-hour workday; can push/pull ten pounds occasionally; whose foot pedal is constant; can constantly use a ramp or stairs but never a ladder, rope, or scaffold; can constantly balance, kneel, and crouch; can occasionally stoop and crawl; with right upper extremity overhead and all plains constant; with bilaterally, handling, fingering, and feeling constant; with no visual limitations; with no communication deficient; who should entirely avoid dangerous machinery and unprotected heights; who can do tasks that would take a limit of three months to learn; can do simple routine tasks with no high production quotas or piece-rate work; whose job should not involve arbitration, confrontation, negotiation, supervision, or commercial driving; and who should have only supervised interpersonal interactions with the public and co-workers and the contact that is had should be a short duration of five minutes per person and for a definite purpose. (R. at 59- 60.) Assuming those limitations, the VE testified the individual could not perform Plaintiff's past work but could work as an usher, unskilled, light exertion; a furniture rental clerk, unskilled, light exertion; and school bus monitor, unskilled, light exertion. (R. at 60.) The VE testified that if the individual was off task more than ten percent during the day then that person could not sustain competitive employment. (R. at 61.)

         III. RELEVANT MEDICAL RECORDS

         A. Richard L. Odor, Ph.D.

         On February 12, 2014, Dr. Odor completed an Independent Medical Evaluation of Plaintiff. (R. at 1116-21.) Dr. Odor noted that rapport with Plaintiff was easily developed, his demeanor was friendly, and he utilized appropriate social amenities. (R. at 1118.) Dr. Odor further noted that Plaintiff was oriented in all spheres and fully alert, his stream of thought was logical, coherent, and goal-directed, and his speech was clear. (Id.) Dr. Odor also indicated that Plaintiff's mood was mildly sad, as evidenced by the content of his verbalizations, and his affect was mildly restricted in range. (Id.) Dr. Odor noted that there was no overt evidence of mania, hallucination, or delusion. (Id.)

         At the exam, Plaintiff described his general mood as “I get aggravated pretty easy.” (Id.) Dr. Odor noted that questioning revealed Plaintiff experienced a depressed mood “at least every other night” and showed marked diminished interest/pleasure, had a decreased appetite, a delayed onset of sleep, a low energy level, a diminished ability to concentrate, and suicidal ideation. (Id.) Plaintiff also reported experiencing panic symptoms about once a month and increased irritability with occasional chest discomfort. (Id.) Dr. Odor further noted that the record indicated that Plaintiff began experiencing depression in about 2012. (Id.)

         Plaintiff completed the Beck Depression Inventory II (“BDI-II”) and scored 41, which is in the severe range of depression. (R. at 1119.) The following were indicated at the “highest level” for Plaintiff: pessimism, past failure, punishment feelings, loss of interest, indecisiveness, irritability, and concentration difficulty. (Id.) The following were indicated at the “moderate level” for Plaintiff: loss of pleasure, guilty feelings, suicidal thoughts, agitation, worthlessness, changes in appetite, tiredness/fatigue, and loss of interest in sex. (Id.)

         Plaintiff also completed the Brief Battery for Health Improvement 2 (“BBHI2”). (Id.) Dr. Odor noted that the BBHI2 results raised the possibility that some symptom magnification may be present for Plaintiff. (Id.) He further noted that a high level of depressive thoughts and feelings were reported by Plaintiff, as well as severe anxious thoughts and feelings. (Id.) Dr. Odor indicated that Plaintiff's depressive thoughts and feelings were reported at a higher level than is seen in 88% of patients, and Plaintiff's anxious thoughts and feelings were reported at a higher level than is seen in 96% of patients. (Id.) Dr. Odor further indicated that the reported depression and anxiety may be Plaintiff reacting to his physical condition. (Id.) Dr. Odor also noted the following regarding the BBHI2:

[Plaintiff's] level of somatic complaints is not unusual for a medical patient. A high level of perceived disability was reported at a level higher than that seen in 85% of patients. He reported his maximum tolerable pain which would allow him to perform regular life activities is 2/10. This may explain the possible symptom magnification and high level of perceived functional complaints. Overall, the BBHI2 is consistent with a significant depressive experience.

(Id.)

         Finally, Dr. Odor noted that he has not provided any care for Plaintiff. (R. at 1121.) He further noted that he has seen Plaintiff only one time, and only for the purpose of evaluating psychological impairment. (Id.) He also noted that the opinions in his report “are stated with a reasonable degree of psychological certainty.” (Id.)

         B. Jennifer Stoeckel, Ph.D.

         Dr. Stoeckel saw Plaintiff for a psychological assessment on January 7, 2015. (R. at 1123.) Dr. Stoeckel noted that Plaintiff related in a friendly and cooperative manner, was generally articulate, and had an affect that appeared to be blunted and flat. (R. at 1126.) Plaintiff reported that he is depressed everyday because he cannot do much and was used to working because he worked since he was fourteen-years-old. (Id.) Plaintiff also reported that he gets anxiety attacks, gets aggressive, gets agitated, and gets “real nervous, ” but that it is “not as bad as it was” and that medication is “helping some.” (Id.) Additionally, Plaintiff reported fatigue, feelings of worthlessness, loss of interest, social isolation, irritability, frequent tearful episodes, chronic tension, problems with memory, concentration, and focus, and problems with crowds. (Id.) He denied any history of suicidality. (Id.)

         Dr. Stoeckel noted that Plaintiff's score on the Depression scale “suggests that he is more depressed than the average pain patient.” (R. at 1127.) She also noted that his score on the Somatization scale “suggests that he has more physical problems, pain, and health related concerns than the average pain patient.” (Id.) She further noted that his score on the Anxiety scale “suggests that he is more anxious than the average pain patient.” (Id.) Dr. Stoeckel concluded that Plaintiff was evidencing moderately severe levels of depression, along with mood lability, tension, poor frustration tolerance, agitation, diminished concentration, as well as vegetative symptoms of depression. (R. at 1128.)

         C. Deborah ...


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