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Ary v. Commissioner of Social Security Administration

United States District Court, S.D. Ohio, Western Division, Dayton

September 3, 2019

STEPHEN ARY, Plaintiff,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          Walter H. Rice District Judge.

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington United States Magistrate Judge.

         I. Introduction

         The Social Security Administration provides Disability Insurance Benefits and Supplemental Security Income to individuals who are under a disability, among other eligibility requirements. A disability in this context refers to “any medically determinable physical or mental impairment” that precludes an applicant from engaging in “substantial gainful activity.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).

         Plaintiff s Steven Ary applied for Disability Insurance Benefits and Supplemental Security Income in September 2013, asserting his disability started on May 1 2008 and continued thereafter. After preliminary denials of his applications, Administrative Law Judge Mark Hockensmith held a hearing and later denied Plaintiff's applications based on his conclusion that he was not under a disability. (Doc. #6, PageID #s 924-37). Upon appeal of that decision to this Court, the parties stipulated to a remand for further administrative proceedings.

         After a second hearing before ALJ Hockensmith, during which Plaintiff testified (for a second time), ALJ Hockensmith again found Plaintiff not disabled and again denied his applications. (Doc. #6, PageID #s 728-40).

         Plaintiff brings the present case contending (in part) that ALJ Hockensmith erred by rejecting the opinions of psychological examiner Giovanni M. Bonds, Ph.D., and by relying on a vocational expert's testimony “to qualify limitations in the residual functional capacity.” (Doc. #7, PageID #7). Rather than a remand for further proceedings, Plaintiff seeks a remand for payment of benefits. The Commissioner finds no error in the ALJ's decision and asks the Court to affirm.

         II. Background

         On his asserted disability onset date, Plaintiff was forty-four years old-a younger person under social security law. In the first half of 2014, he turned age fifty, thus becoming a person “closely approaching advanced age.” He has a high-school education and has worked in the past as a machinist and an assistant press operator.

         Plaintiff testified during an administrative hearing before ALJ Hockensmith that he stopped working because of his mental impairments, especially his difficulty in getting overwhelmed around people and when communicating with people. (Doc. #6, PageID #73). He sometimes had difficulty just being around his grandchildren. Plaintiff further testified that he cannot work due to breathing problems and excruciating nerve pain in his legs and back. Id. at 78. He also has neuropathy in his feet due to diabetes.

         Plaintiff has undergone on-and-off mental-health treatment at TCN Behavioral Health Services. Id. at 337-89, 412-54, 458-97, 626-62, 682-96.

         A psychological assessment of Plaintiff in 2009 resulted to diagnoses of an anxiety disorder, polysubstance dependence and assigned a GAF score of 50. Id. at 348. (The GAF scale was still in vogue at that time.) Plaintiff's treatment at TCN focused on both his diagnoses. Id. at 348, 451. He experienced racing thoughts and difficulty sleeping. Despite receiving treatment for several months, he was ultimately discharged for non-participation. Id. Plaintiff briefly returned to TCN in 2012 for substance-abuse treatment after being arrested for trespassing. Id. at 427.

         Plaintiff received treatment at TCN for a third time in July 2013 which continued through the date of his first administrative hearing in June 2015. Id. at 429. He sought help for increasing problems with depression and anxiety. He reported restlessness, getting inadequate sleep, and problems weathering social interactions. Id. During treatment, Plaintiff described his symptoms as worse when around others. He was forgetful and he felt as though he “can't shut off his brain.” Id. at 484. He felt, “energy-shaky inside.” Id. Abnormalities seen during a mental status examination included an anxious/depressed mood, a restricted affect, poor concentration, and/or limited insight/judgment. Id. at 489-90, 530, 642, 647-58, 694.

         Plaintiff last attended a diagnostic assessment at TCN in January 2018. Id. at 1245-56. During the assessment, he reported that the medications prescribed by his primary care physician were not helping his anxiety and depression. Id. at 1246. He said he felt “depressed a lot of the time” and had little interest in activities. Id. at 1251. “[He] has no energy, often feels worthless, and hopeless, and sad.” Id. Weekly panic attacks afflicted him, and he was diagnosed with depressive and general anxiety disorders. Id. at 1255.

         In November 2013, psychologist Dr. Bonds examined Plaintiff at the request of the Ohio Bureau of Vocational Rehabilitation. By that time, Plaintiff had been homeless for at least three years. He stayed with either of his two sons or his girlfriend or his friend. He told Dr. Bonds that for several years, he had experience problems with anxiety, depression, memory loss, chronic obstructive pulmonary disease, nerve pain in his back and leg, and pain in his feet from diabetes. Id. at 498.

         Dr. Bonds observed that Plaintiff's mood seemed depressed. Plaintiff told Dr. Bonds that he felt very depressed almost every day. Dr. Bonds noted, “He expressed feelings of worthlessness and helplessness…. [He] reported that he is easily angered but he does not lash out at people when he gets angry. Instead he withdraws and stays to himself….” Id. at 501. Dr. Bonds also described Plaintiff as “very nervous during the interview. He sat on the edge of his seat. He frequently bounced his legs. He was squeezing his hands together and he bit his fingernails. He stated that he is nervous and worried all the time. He is worried about where he is going to live and how he is going to eat….” Id.

         Dr. Bonds reported that Plaintiff took the Minnesota Multiphasic Personality Inventory-2 (MMPI-2). “His results indicate that he is experiencing severe distress which he is openly acknowledging and he perceives himself as having limited personal resources. His results are considered valid and interpretable.” Id. at 504. Dr. Bonds described other alarming test results:

[Plaintiff's] MMPI-2 clinical profile is indicative of a person who is chronically worried, tense, and agitated. He is socially uncomfortable and has poor social skills and judgment. He has difficulty forming close personal relationships and usually is withdrawn, isolated and introverted. These characteristics exacerbate his obsessive ruminations. This is a person who is a constant worrier. He is depressed, guilt ridden and obsessively preoccupied with his personal deficiencies. Suicidal ideation is likely and should be assessed and monitored with this individual…. Further evaluation for a thought disorder is suggested by these results.

Id. at 504.

         Dr. Bonds diagnosed Plaintiff with generalized anxiety disorder and dysthymic disorder. Id. at 506. She opined that Plaintiff “is best suited currently for some type of low stress position in which he works with very few people and mostly works alone. His efforts to seek employment however may need to be delayed until his anxiety and depression are brought under better control and decreased.” Id.

         Thirteen months later, Dr. Bonds answered interrogatories. She stated that the combination of Plaintiff's psychological and physical symptoms reduces his ability to concentrate, persist on ...


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