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Jones v. Commissioner of Social Security

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

July 31, 2019


          George C. Smith Judge.



         Plaintiff, Christopher S. Jones (“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. 9), the Commissioner's Memorandum in Opposition (ECF No. 14), Plaintiff's Reply (ECF No. 17), and the administrative record (ECF No. 6). 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 30, 2014. (R. at 15.) Plaintiff's claim was denied initially and upon reconsideration. (Id.) Upon request, a hearing was held on April 10, 2017, in which Plaintiff, represented by counsel, appeared and testified. (R. at 109- 53.) A vocational expert and a medical expert also appeared and testified at the hearing. (R. at 136-52.) On July 5, 2017, Administrative Law Judge Jason C. Earnhart (“the ALJ”) issued a decision finding that Plaintiff was not disabled at any time from August 31, 2008, the alleged onset date, through June 30, 2014, the date last insured. (R. at 12-34.) On March 12, 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. 1.)


         A. Plaintiff's Testimony

         Plaintiff testified at the April 2017 hearing that his last job was seasonal pool attendant work for the last three summers, starting on Memorial Day and ending on Labor Day. (R. at 115-16.) Plaintiff further testified that as a pool attendant it was his job to observe the pool and “to make sure nobody trashes it [or] brings in glass or alcohol.” (R. at 116.) Plaintiff stated it was not a lifeguard position. (Id.) Plaintiff further stated that automation was “driving [him] out of that job.” (Id.) Plaintiff testified that he previously worked for Liebert North America as a marketing specialist. (R. at 117-18.) Plaintiff stated that Liebert North America “eliminated the position” and that he “was having a tough time completing the requirements of the position at the time, due to fibromyalgia symptoms.” (R. at 118.) Plaintiff also stated that prior to that position he worked at Rite Rug Company in sales. (R. at 118-19.) Before that, Plaintiff testified he worked at the Gap in the customer relations call center. (R. at 120.) Plaintiff also testified that before the Gap he worked at WorldCom as an integration specialist, and before that he was in international marketing. (R. at 121.)

         Plaintiff testified that he stopped working in 2008 because he was “very depressed” about his fibromyalgia symptoms and he was “hurting a lot because of the fibromyalgia pain and the chronic fatigue that became very symptomatic.” (R. at 122.) He further testified that he “just didn't feel like [he] was able to go back to work.” (Id.) Plaintiff stated he still has problems with fibromyalgia, chronic fatigue, and depression. (Id.) He further stated that the “profound fatigue” is one of his primary problems with fibromyalgia, along with chronic pain and cognitive impairment. (Id.) Plaintiff testified that doctors have told him he has about fifteen of the “tender points” related to fibromyalgia. (R. at 123.) Plaintiff stated he takes Gabapentin daily and that it “helps somewhat with the pain” but that it worsens his “mental fog.” (R. at 124.) He further stated that his fibromyalgia does “a lot better in the summer, when it's warm, and [he is] in the sun.” (R. at 129.)

         B. Medical Expert Testimony

         Mary E. Buban, M.D., [1] a psychologist, testified as the medical expert (“ME”) at the April 2017 hearing. (R. at 136-45.) When discussing the opinion from Gina Sansotta, J.D., Psy.D., Dr. Buban indicated that Dr. Sansotta, who had three appointments with Plaintiff, had filled out a form on July 20, 2016 but “it wasn't clear” to Dr. Buban “because it had marked through - it said, Cannot comment. And then it said, Error. And then it said, This is per patient report.” (R. at 137.) Dr. Buban testified that she “really didn't know what to make of [Dr. Sansotta's] form.” (Id.) Dr. Buban further testified that Dr. Sansotta indicated depression, anxiety, substance abuse, OCD, and sleep problems. (Id.)

         Regarding the record evidence about Plaintiff's concentration, persistence, and pace, Dr. Buban testified that Dr. Johansen had opined that Plaintiff had

extreme limitations for working at a consistent pace; attention, concentration; production levels. And then once again, refers to - described fibromyalgia, creating worse stress and sleep. These extreme limitations don't make any sense, in terms of the entire record. And also, the Claimant's presentation today, which does not support extreme limitations. I did review [Exhibit] 3A, as well, and - and then I'm inclined to agree with the PDF, that there would be a moderate limitation for concentration, persistence, and pace. And that would be the primary difficulty, in - terms of psychological/psychiatric perspectives.

(R. at 139.) Furthermore, Dr. Buban opined that she does “not see” Plaintiff's psychological impairments meeting or equaling a listing. (R. at 139, 142.) She testified that she thinks he has “got what would be described best as a 12.04 . . . depressive disorder.” (R. at 139.) She further testified that in terms of B criteria, Plaintiff's understanding, remembering, and applying information is “probably impaired”; interacting with others is “moderately impaired”; concentration, persistence, and maintaining pace is “moderately impaired”; and adapting and management is “mildly impaired.” (R. at 140.)

         When asked whether the record supported or indicated a diagnosis of personality disorder for Plaintiff, Dr. Buban testified that “[t]here are some [exhibits] that talk about - there's some mention in the record of personality traits, yes.” (R. at 145.) When asked whether there was enough to identify personality disorder as an impairment, Dr. Buban testified that “the main treatment does not -the problem with the record -it's mostly forms. There [are] not a of [sic] statements. And the 2013 is the most comprehensive treatment, and that was not included in those records as a primary diagnosis.” (Id.)

         C. Vocational Expert Testimony

         Michael Klein testified as the vocational expert (“VE”) at the April 2017 hearing. (R. at 146-52.) The ALJ asked the VE to assume a hypothetical individual with the same age, education, and experience as Plaintiff who can work at all exertional levels; who can frequently climb ramps and stairs, balance, stoop, kneel, crouch, crawl, push and pull with the bilateral upper extremities, do handling, and do fingering; who can never climb ladders, ropes, or scaffolds, or be near hazards such as dangerous machinery, unprotected heights, or commercial driving; who is limited to simple, routine tasks with no fast production pace and no tandem tasks; who can have occasional public interaction and occasional changes in the work setting. (R. at 147.)

         Assuming those limitations, the VE testified that the hypothetical individual could not perform any of Plaintiff's past work. (Id.) The VE, however, testified that the hypothetical individual could perform other jobs such as cleaner, laborer, marker, lens inserter, and surveillance system monitor. (R. at 148-49.) The VE further testified that if the hypothetical individual could only occasionally balance, stoop, kneel, crouch, or crawl this would not change his answers. (R. at 149.) The VE also testified that if occasional interaction with co-workers and supervisors was added, this would not change his answers. (R. at 150.)

         When asked if an individual with the same age, education, and background of Plaintiff who would, at least twenty-five percent of the work day or work week, have problems in maintaining attention and concentration for more than brief periods of time, with the same impairment in performing at production levels expected by most employers, the VE testified that hypothetical individual would be precluded from work. (R. at 152.)


         A. Gina A. Sansotta, J.D., Psy.D.

         Plaintiff presented for his initial psychological assessment with Dr. Sansotta on December 20, 2010. (R. at 362-76.) Plaintiff reported that at that time he was self-employed as an “art dealer” and “home rehabber.” (R. at 364.) When discussing his mental health habits, Plaintiff reported that for physical exercise he worked on his house on average three to five times a week and did yoga on average once a week. (R. at 368.) Plaintiff was noted to cancel several appointments after his initial assessment, not returning until March 29, 2011. (R. at 358.) He reported personality testing was performed by another doctor in the interim and that his unemployment was running out soon. (R. at 358-59.) Plaintiff continued seeing Dr. Sansotta through August 20, 2012. (R. at 336-59.) During his treatment, Dr. Sansotta changed her diagnosis from adjustment disorder with depression to major depressive disorder. (Id.)

         Dr. Sansotta completed a Medical Source Statement as to Ability to Perform Work Related Activities (Mental) regarding Plaintiff on July 20, 2016. (R. at 552-54.) Notably, the first two pages of the Medical Source Statement have a line crossed through them and a handwritten note that says “I will comment by history. G.S.” (R at 552-53.) A handwritten note on the final page of the Medical Source Statement under “estimated impairment of ability to tolerate customary work pressures, ” which Dr. Sansotta marked as “extreme, ” reads “per patient report.” (R at 554.)

         Dr. Sansotta also prepared a narrative opinion regarding the “Diagnoses” section on the Medical Source Statement. (R. at 557-59.) She reported she was not currently seeing Plaintiff as a patient but saw him for psychotherapy in 2011 and 2012. (R. at 557.) She further reported “I cannot comment on anything that has transpired with [Plaintiff] since. Nor can I render any opinion about current fitness for work. I am providing this per release of information executed by [Plaintiff] on April 18, 2016. I am using a review of my extensive clinical notes and my own recollections to write this report.” (Id.) Dr. Sansotta indicated that Plaintiff presented with the following diagnoses during the time she saw him:

. History of depression since childhood
. History of Anxiety and Obsessive-Compulsive Disorders since childhood
. History of Substance Abuse, primarily alcohol and cigarettes, beginning in the teenage years
. Several elements of several personality disorders emerging probably in teenage years and becoming much more prominent in adult life

(Id.) She goes on to note that Plaintiffs “compulsive OCD combined with his Personality Disorders made it very difficult for [him] to succeed in the world of work.” (R. at 558.)

         Specifically, regarding her notes about personality disorders, Dr. Sansotta opined:

I want to speak to the personality styles/disorders which [Plaintiff] displayed while working with me. I am not going into detail of every disorder but review salient observations. I observations [sic] of the following: Narcissism, Borderline Personality, Anti-Social. I want to clarify that Anti-social does not mean not liking people. It means doing things against the norms of society. In here I place his use of drugs and alcohol, putting himself and others at risk. [Plaintiff] chinks [sic] primarily of himself of himself [sic] and gets angry and petulant when he does not get his own way. He pouts. He always has an argument why the other person is wrong. He just has to be right. He does this to protect his feelings of self-loathing and low self-esteem. He is married, but every time I asked about his marriage he had very little to say, and would never bring her in. Finally, he shows traits of borderline personality: frantic attempts to avoid abandonment, [o]verindulgence in an activity, severe problems in relations.
In conclusion, all the above combine, making it extremely difficult for [Plaintiff] to work. He simply does not have the capacity to interact with people in a normal or productive way. His mental illness keeps him from this.

(R. at 558-59.)

         B. Concentration, Persistence, and Pace

          On June 10, 2015, Joseph Edwards, Ph.D., a State agency psychologist, opined that Plaintiff had the following limitations in Sustained Concentration and Persistence:

. The ability to carry out very short and simple instructions = not significantly limited
. The ability to carry out detailed instructions = not significantly limited
. The ability to maintain attention and concentration for extended periods = moderately limited
. The ability to perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerances = not significantly limited
. The ability to sustain an ordinary routine without special supervision = not significantly limited
. The ability to work in coordination with or in proximity to others without being distracted by them = not significantly limited
. The ability to make simple work-related decisions = not significantly limited
. The 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 ...

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