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Foutty v. Commissioner of Social Security

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

August 20, 2019

MARIAN FOUTTY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant. Making Occupational Adjustments Intellectual Functioning Making Personal and Social Adjustment Making Occupational Adjustments Intellectual Functioning Making Personal and Social Adjustment

          OPINION AND ORDER

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Marian Foutty (“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 her application for Social Security Disability Insurance benefits (“SSDI”). This matter is before the Court for consideration of Plaintiff's Statement of Errors (ECF No. 17), the Commissioner's Memorandum in Opposition (ECF No. 22), the administrative record (ECF No. 11), and the supplemental administrative record (ECF No. 12.). Plaintiff did not file a Reply. For the following reasons, Plaintiff's Statement of Errors is OVERRULED, and the Commissioner's decision is AFFIRMED.

         I. BACKGROUND

         Plaintiff applied for disability benefits on March 10, 2014. (R. at 301-05.) Plaintiff's claim was denied initially and upon reconsideration. (R. at 14.) Upon request, a hearing was held on December 5, 2016, in which Plaintiff, represented by counsel, appeared and testified. (R. at 646-94.) A vocational expert also appeared and testified at the hearing. (R. at 686-93.) On March 3, 2017, Administrative Law Judge Regina Carpenter (“the ALJ”) issued a decision finding that Plaintiff was not disabled at any time from December 1, 2012, the alleged onset date, through December 31, 2014, the date last insured. (R. at 11-29.) On January 30, 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.)

         II. RELEVANT HEARING TESTIMONY

         A. Plaintiff's Testimony

         Plaintiff testified that she is right-handed, 5 feet six inches tall, and 135 pounds. (R. at 657.) She further testified that she is married and has one son. (Id.) She indicated that she has a driver's license but drives “as little as possible.” (R. at 657-578.) She estimated that she normally drives about six minutes twice a day. (R. at 658.) Plaintiff testified that she went to twelfth grade plus did vocational education as a hairdresser. (Id.) As a hairdresser, she sometimes had to lift more than twenty pounds. (R. at 660.) She testified that she has no difficulty with basic math. (R. at 658.)

         Plaintiff stated that her husband recently retired because she “was having a lot of trouble at home by [herself], taking care of [her] son and the house and doing things.” (R. at 662.) She expressed concern because she had left her car running in the driveway for three or four hours and that she left the gas on the stove on. (Id.) She stated that these types of things started happening not too long after her brain surgery. (Id.) Plaintiff said that she has migraines one to three times a week that usually last all day. (R. at 664.)

         Plaintiff indicated that she uses a cane “only sometimes” and that it was not prescribed to her. (R. at 668.) She said that she uses the cane because “when [she has] to do a lot of stairs or with [her] son's functions it, you know, the football games and stuff like that, to climb bleachers and things like that, [she] just can't do it.” (Id.) She also testified that she has instability being up on her feet and falls “all the time.” (Id.) Plaintiff also stated that she has memory problems “every single day.” (R. at 670.) She testified that she naps for two hours in the afternoon every day. (R. at 680.)

         B. Vocational Expert Testimony

         Linda Devack testified as the vocational expert (“VE”) at the December 2016 hearing. (R. at 686-93.) The VE testified that Plaintiff's past work included work as a hairdresser, low skilled, light exertional level. (R. at 687.) The ALJ asked the VE to assume a hypothetical individual the same age as Plaintiff, with the same education and work background, who is capable of performing light work as defined in the regulations but has the following limitations: should have a sit/stand option which would allow for a brief change of position for one to two minutes every thirty minutes; no balancing, crouching, crawling, or climbing of ladders, ropes, or scaffolds; no more than occasional stooping or climbing of stairs or ramps; no concentrated exposure to extreme heat and cold, wetness and humidity, vibration or respiratory irritants; no exposure to hazards such as dangerous moving machinery or unprotected heights; the work must be limited to simple and routine instructions and tasks, with no assembly line or fast-paced production requirements; only occasional changes in work routine or work setting; little independent decision-making or goal setting; no contact with the public; and no more than occasional interaction with coworkers and supervisors. (R. at 687-88.)

         Assuming those limitations, the VE testified that the hypothetical individual would not be able to perform Plaintiff's past work “as the past work skill level is greater than unskilled mentioned in the hypothetical.” (R. at 688.) The VE further testified that the hypothetical individual would be capable of performing work as a garment sorter, laundry sorter, and garment bagger. (R. at 688-89.) The VE testified that if a limitation was added that the hypothetical individual would need to use a cane while walking up or down stairs that would not affect the ability to perform work as a garment sorter, laundry sorter, and garment bagger. (R. at 689.) The VE also testified that if handling and fingering were limited to frequent in the left non-dominant hand, that would not affect the ability to perform work as a garment sorter, laundry sorter, and garment bagger. (Id.) Additionally, the VE testified that generally ten percent of time off-task is tolerated in this type of work and one to two days a month of absenteeism is tolerated in this type work. (Id.)

         Assuming the first hypothetical but adding limitations of needing instructions to be demonstrated with no written instructions, occasional fingering and handling with the left non-dominant hand, and frequent fingering and handling with the right dominant hand, the VE testified that the individual could perform work as a wear cleaner, pad machine offbearer, and collator operator. (R. at 690-92.) The VE further testified that if the limitation was made to be occasional bilaterally, the three previous jobs would be eliminated and there would not be any work available for the individual at the light level. (R. at 692.) The VE also testified that if a limitation was added that the individual required occasional redirection a third of the day, in unskilled, there would not be any work available for the individual. (Id.)

         III. RELEVANT MEDICAL RECORDS

         A. Regional Medical Group, LLC

         On February 28, 2014, Lynn Miller, NP of Regional Medical Group, LLC saw Plaintiff. (R. at 450-52.) Plaintiff reported that she was on venlafaxine but weaned herself off because it made her worse. (R. at 450.) On physical exam, Ms. Miller noted that Plaintiff had a normal appearance, her skin was warm and dry, her abdomen did not have any masses or hernias, and there was tenderness at the right supraspinatus tendon and muscle. (R. at 451.) On a review of systems, Ms. Miller noted that Plaintiff had left side weakness, extreme sensitivity to heat and cold, and that her head was numb from surgery. (Id.)

         On March 17, 2014, Ramesh Thimmiah, M.D. of Regional Medical Group, LLC saw Plaintiff. (R. at 453-56.) Dr. Thimmiah noted that Plaintiff complained of neck and bilateral shoulder pain. (R. at 453.) On physical exam, Dr. Thimmiah noted that Plaintiff had a normal appearance, her skin was warm and dry, her abdomen had no masses or hernias, and there was tenderness in the left occipital area and left upper shoulder. (R. at 454.) On a review of systems, Dr. Thimmiah noted that Plaintiff indicated severe headaches and migraines, but no ringing in her ears, no loss of appetite, no muscle aches, no leg swelling, no joint pain, and no seizures. (Id.)

         On May 15, 2014, Dr. Thimmiah saw Plaintiff. (R. at 461-64.) Dr. Thimmiah noted that Plaintiff wanted to discuss disability and was there for medication management of her Xanax. (R. at 461.) On physical exam, Dr. Thimmiah noted that Plaintiff had a normal appearance, her skin was warm and dry, her abdomen had no masses or hernias, and there was tenderness in the supraspinatus tendon. (R. at 462.) On a review of systems, Dr. Thimmiah noted that Plaintiff indicated headaches, sinus congestion, stress, and depression, but no fever, no fatigue, no chest pain, no loss of appetite, no muscle aches, no leg swelling, no joint pain, and no seizures. (Id.)

         On June 16, 2014 Dr. Thimmiah saw Plaintiff. (R. at 457-60.) Dr. Thimmiah noted that Plaintiff complained of headaches off and on along with problems with her weight. (R. at 457.) On physical exam, Dr. Thimmiah noted that Plaintiff had a normal appearance, her skin was warm and dry, her abdomen had no masses or hernias, neck stiffness, and tenderness in the supraspinatus tendon. (R. at 458.) On a review of systems, Dr. Thimmiah noted that Plaintiff indicated headaches, sinus congestion, neck pain, stress, and depression, but no fever, no fatigue, no muscle aches, no leg swelling, no joint pain, and no seizures. (Id.)

         On August 11, 2014, Dr. Thimmiah saw Plaintiff.[1] (R. at 465-67.) Plaintiff reported that she recently had to go to the emergency room due to hurting her back. (R. at 465.) She also reported that she was not sleeping. (Id.) On physical exam, Plaintiff was noted as having a normal appearance, warm and dry skin, no masses or hernias in her abdomen, and tenderness in the supraspinatus tendon. (R. at 466.) No review of systems was recorded for this visit. (Id.)

         On October 6, 2014, Dr. Thimmiah saw Plaintiff. (R. at 468-71.) Plaintiff denied shortness of breath, chest pain, nausea, vomiting, diarrhea, fever, and dizziness. (R. at 468.) On physical exam, Dr. Thimmiah noted Plaintiff had a normal appearance, her skin was warm and dry, her abdomen had no masses or hernias, normal judgment and insight, normal recent and remote memory, normal mood, that she seemed able to handle stress, and tenderness in the right shoulder and supraspinatus tendon. (R. at 469.) On a review of systems, Dr. Thimmiah noted that Plaintiff indicated right shoulder pain and poor sleep, but no fever, no fatigue, no ringing in her ears, no numbness in extremities, and no seizures. (Id.)

         On December 8, 2014, Dr. Thimmiah saw Plaintiff. (R. at 478-81.) Plaintiff complained of left arm pain starting at her neck and going down her left arm. (R. at 478.) Dr. Thimmiah noted that Paxil was doubled at Plaintiff's last visit and that she was doing better. (Id.) On physical exam, Dr. Thimmiah noted that Plaintiff had a normal appearance, her left lateral arm had early macular lesions, and tenderness in her neck, left shoulder, and supraspinatus tendon. (R. at 479.) He also noted that Plaintiff had normal judgment and insight, was oriented to person, place, and time, and had normal recent and remote memory. (Id.) On a review of systems, Dr. Thimmiah noted that Plaintiff indicated left neck and shoulder pain and poor sleep, but that she was doing better on Paxil, had no fever, no fatigue, no chest pain, no loss of appetite, no numbness in extremities, and no seizures. (Id.)

         B. David R. Bousquet, M.Ed.

         On April 23, 2014, Mr. Bousquet completed a psychological evaluation of Plaintiff. (R. at 413-20.) Plaintiff stated that she started using drugs and alcohol when she was fifteen-years-old but that she has not used either since before her son was born. (R. at 415.) Plaintiff also stated that she stopped working in 2009 because she was beginning to experience seizures and ultimately discovered that she had aneurysms. (Id.) She denied difficulties relating with coworkers, bosses, or customers. (Id.) Plaintiff reported currently experiencing emotional and psychological problems. (R. at 416.) She reported that sometimes she eats too much but sometimes she can go a couple days without eating. (Id.) She also reported problems falling asleep and experiencing nighttime awakenings with difficulty returning to sleep. (Id.)

         Plaintiff reported being depressed and becoming tearful once or twice a week. (Id.) She denied suicidal and homicidal thoughts. (Id.) She also reported a sense of guilt and worthlessness, varying energy, racing thoughts, rapid heartrate, problems attending and concentrating, feeling irritable and angry, low self-esteem, and forcing herself to care for her son and household chores and duties. (Id.) She further reported that she obtains enjoyment when she spends time in nice weather and rides her bicycle. (Id.) She also reported struggles with memory including forgetting to turn the ignition off in her car, leaving the water running, leaving stove burners on, and forgetting where she puts things and what people say to her. (Id.) She further reported that she must be reminded to go to appointments but denied problems with remembering to take her medicine. (Id.)

         Regarding activities of daily living, Plaintiff reported that she tries to read and will garden and maintains flower gardens. (R. at 417.) She further reported that she will do inside chores when motivated including loading and unloading the dishwasher, cooking, cleaning, and folding laundry. (Id.) She reported her husband does the laundry, though, because it is located in the basement. (Id.) Plaintiff reported watching television, especially forensic crime shows, but also the news. (Id.) She reported using the computer and Facebook. (Id.) She also reported riding her bicycle. (Id.) She reported that she rarely has visitors but sometimes a friend will stop by or she will visit the friend or others. (Id.) Plaintiff reported that she does not attend church or belong to any groups or organizations. (Id.)

         Mr. Bousquet noted that Plaintiff had a neat and clean appearance and was dressed appropriately for the weather. (Id.) He further noted that she was cooperative during the evaluation and did not exhibit any body odors. (Id.) He indicated that her speech “was 100% understandable[, ]” as well as sustainable and goal oriented. (Id.) He did, however, indicate that her speech tended to be pressured and at times she spoke rapidly. (Id.) He noted her affect was appropriate and her mood at times was sad and anxious, but she did not show signs of anger or irritability. (Id.) Mr. Bousquet indicated that Plaintiff was restless and fidgety throughout the evaluation. (Id.) He also indicated that she had difficulties attending and concentrating but was easily refocused. (Id.)

         Mr. Bousquet indicated that Plaintiff was oriented to time, place, person, and situation. (R. at 418.) Plaintiff denied experiencing hallucinations, recurring obsessions, or compulsions. (Id.) Mr. Bousquet noted that there were no indications of a formal thought disorder nor were there indications of delusional thinking. (Id.) Plaintiff responded correctly to five of the five arithmetic problems. (Id.) Mr. Bousquet opined that Plaintiff demonstrated cognitive abilities that would fall in the average range. (Id.) He further opined that her “reasoning and judgment capacities appear to fall at age appropriate levels but at times may be influenced by her psychological difficulties.” (Id.) He indicated that Plaintiff “would be able to participate in decisions affecting the future and to conduct her own living arrangements.” (Id.) He noted that no psychological testing was requested or conducted. (Id.) His prognosis was that at this time Plaintiff “would experience neither significant resolution of the symptoms nor significant deterioration in the mental functioning.” (Id.)

         Mr. Bousquet indicated that Plaintiff's self-report of her emotional and psychological difficulties did not exceed what was observed in the interview process. (R. at 419.) He further indicated that she did not exhibit any significant inconsistencies in her self-report and that her self-reported data appears to be reliable. (Id.) Mr. Bousquet made the following summary and conclusions:

During the evaluation the [Plaintiff] emphasized concerns about her health and medical difficulties and her emotional and psychological functioning. Bipolar Disorder NOS and Poly-substance dependence sustained full remission are supported by the available information. She is being prescribed psychotropic medication by her primary car[e] physician. The [Plaintiff] reports that her current stressors are health and medical and emotional and psychological.

(Id.)

         Mr. Bousquet made the following functional assessment:

The [Plaintiff] reported graduating from high school. The [Plaintiff's] presentation throughout the interview supported intellectual functioning that would fall in the average range. The available information indicates that she would be able to understand, remember and carry out instructions in a work setting consistent with individuals who possess average intellectual capabilities.
Throughout the 49-minute interview the [Plaintiff] did have problems with maintaining attention and concentration. She does describe being distracted by her thoughts and feelings. She also reports fluctuations in her levels of energy and motivation. When depressed she has problems with energy and is not motivated. There are other times when she has a great deal of energy and at times she has some problems channeling the energy adaptively and appropriately. Available information indicates that from an emotional and psychological prospective [sic] there will be times where she will have difficulties with abilities to maintain attention and concentration and also with abilities to maintain appropriate persistence and pace in a work setting. The findings indicate that she has the capabilities of engaging in simple as well as multi-step tasks.
The [Plaintiff] did not have any difficulties with relating with the examiner throughout the evaluation. She denied problems relating with coworkers and supervisors when employed. She reports that generally she does not experience any significant difficulties within her interpersonal relationships. She will occasionally become irritated and angry and may act out these emotions. Available information indicates that from an emotional and psychological perspective she will have some difficulties with abilities to conform to social expectations in a work setting primarily because of her fluctuations in moods.
During the evaluation she did state that in the past she had [sic] had difficulties with managing stress and pressure and would abuse both drugs and alcohol. She reports that currently under the conditions of stress and pressure she finds that she will become tearful and continues to struggle with moodiness particularly frustration and anger. She also reports that under the conditions of stress and pressure she will become anxious, she worries and is fearful. Available information indicates that from an emotional and psychological perspective there will be times when she will have some difficulties with abilities to respond appropriately to work place stresses and pressures.

(R. at 419-20.)

         C. Daily Activities Questionnaires

         On April 30, 2014, Ronald G. Sass, MS LPCC completed a Daily Activities Questionnaire regarding Plaintiff. (R. at 421-22.) Mr. Sass reported that he first saw Plaintiff on April 14, 2014 and had seen her on the day he authored the report, April 30, 2014. (R. at 422.) Regarding “what behaviors or deficits prevent independent living, ” Mr. Sass indicated this was not applicable. (R. at 421.) He noted that Plaintiff said she gets “along great” with friends and gets “along okay” with neighbors. (Id.) He also noted that Plaintiff said her family relationships are strained. (Id.) Mr. Sass indicated that Plaintiff reported she visits with friends once every couple months for four to five hours. (Id.) When asked how she got along with former employers, supervisors, and co-workers, Plaintiff said she gets “along with everybody” and that she had “no problems” during past regular work. (Id.)

         Regarding attempts to return to work, Plaintiff said her balance was “off” and that she has “limited use” of her left hand. (Id.) When asked to describe or give examples of anything that might prevent work activities for a usual work day or work week, Plaintiff said “balance is off, can't use left hand, [her] short-term memory and concentration are not good, [and she has] trouble standing for long periods of time.” (Id.) Plaintiff reported that for food preparation it takes her a while, but she gets it done. (R. at 422.) She further reported that with household chores she cannot keep up without help from her spouse and son. (Id.) Regarding personal hygiene, Plaintiff did not report any problems. (Id.) She reported that shopping is too taxing, and she limits her driving to short distances and only during the day. (Id.) Plaintiff reported that her husband does all the banking and paying bills. (Id.) She also reported that her hobbies are limited but that she does some gardening during which she sits down. (Id.)

         On December 11, 2014, Mr. Sass completed another Daily Activities Questionnaire regarding Plaintiff. (R. at 483-84.) Mr. Sass opined that Plaintiff's memory could impede independent living and that she has difficulty climbing stairs and descending stairs. (R. at 483.) Plaintiff reported she visits with family and friends “some[, ]” for a few hours at a time. (Id.) She described her past regular work “like a big family.” (Id.) For attempts to return to work, Mr. Sass indicated this was not applicable. (Id.) When asked to describe or give examples of anything that might prevent work activities for a usual work day or work week, Mr. Sass noted excessive fatigue, poor concentration, easily confused, and short-term memory problems. (Id.)

         He noted that Plaintiff was able to prepare basic meals and left notes to herself to help her remember to turn off the stove. (R. at 484.) He also noted that Plaintiff's spouse helps a great deal with household chores. (Id.) For personal hygiene, Mr. Sass indicated that Plaintiff was able to care of herself. (Id.) For shopping, Mr. Sass indicated that Plaintiff is unable to spend a great deal of time in public due to distress, lack of tolerance, and poor memory. (Id.) He noted that Plaintiff can drive short distances but that she indicated she would rather have someone else drive. (Id.) He noted that Plaintiff's spouse assumes responsibility for banking and bill paying. (Id.) For hobbies, Mr. Sass indicated that Plaintiff did not regularly engage in any hobbies. (Id.)

         D. May 2014 CT-Angiogram

         On May 23, 2014, Plaintiff had a CT-Angiogram of her head. (R. at 423-24.) The findings were as follows:

Again noted is a moderate sized area of encephalomalacia involving the right temporal and parietal lobes consistent with sequela of prior infarct. This was present on 10/29/2010. There is stable mild ex vacuo dilatation of the occipital horn of the right lateral ventricle. The ventricles are otherwise normal in size, shape, and position. There is no shift of the midline structures. There ...

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