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Jeffrey H. v. Commissioner, Social Security Administration

United States District Court, N.D. Georgia, Atlanta Division

March 18, 2019

JEFFREY H., Plaintiff,



         Plaintiff in the above-styled case brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration which denied his disability application. For the reasons set forth below, the court ORDERS that the Commissioner's decision be AFFIRMED.

         I. Procedural History

         Plaintiff filed an application for a period of disability and disability insurance benefits on April 23, 2014, alleging that he became disabled on October 1, 2013. [Record (“R.”) at 20, 168-69]. After Plaintiff's application was denied initially and upon reconsideration, a hearing was held by an Administrative Law Judge (“ALJ”) on July 19, 2016. [R. at 20, 35-64]. The ALJ issued a decision denying Plaintiff's claim on September 14, 2016, and the Appeals Council denied Plaintiff's request for review on August 30, 2017. [R. at 1-6, 20-29]. Plaintiff filed a complaint in this court on October 24, 2017, seeking judicial review of the Commissioner's final decision. [Doc. 3]. The parties have consented to proceed before the undersigned Magistrate Judge.

         II. Facts

         The ALJ found that Plaintiff has affective disorder, anxiety disorder, substance abuse (not material), and residuals of right shoulder arthroscopy and decompression. [R. at 22]. Although these impairments are “severe” within the meaning of the Social Security regulations, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. at 23-24]. The ALJ found that Plaintiff is unable to perform any of his past relevant work. [R. at 28]. However, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. [R. at 28-29]. As a result, the ALJ concluded that Plaintiff has not been under a disability from October 1, 2013, the alleged onset date, through the date of the ALJ's decision. [R. at 29].

         The decision of the ALJ [R. at 20-29] states the relevant facts of this case as modified herein as follows:

         The claimant has been diagnosed with major depressive disorder, recurrent, moderate and generalized anxiety disorder. (Exhibit 5F at 4). At the psychological consultative examination on July 30, 2014, the claimant reported difficulties with depressed mood, diminished interests, difficulty sleeping, fatigue, diminished ability to think or concentrate, and forgetfulness. (Id. at 2). At the consultative examination, he appeared depressed and anxious with a restricted affect and a slightly withdrawn interpersonal style. (Id. at 3, 4). The claimant was hospitalized in April 2014 and twice in August 2015 after overdosing on prescription medication. (Exhibit 13F at 4; Exhibit 12F at 8, 39). The claimant has a history of substance abuse, specifically prescription medication abuse. At his hospitalization in April of 2014, the claimant was noted as having a history of abusing prescription medication and had detoxed from his medications prior to his hospitalization. (Exhibit 14F at 4). At his hospitalization on August 14, 2015, the claimant's wife reported that he was missing Amitriptyline and Percocet pills. (Exhibit 12F at 38).

         The claimant has a lengthy history of right shoulder pain with complaints of pain going back to 2011. (Exhibit 1F). On August 18, 2011, the claimant underwent right shoulder arthroscopy and subacromial decompression surgery. (Exhibit 2F at 2). The claimant has continued to allege chronic pain in his right shoulder with pain management visits. In March 2012, the claimant had only 50% rotation with moderate pain in his right shoulder. The claimant was prescribed Lortab for his shoulder pain. (Exhibit 7F at 16, 20). In September 2012, the claimant again continued to report pain in his shoulder despite his surgery the year before. (Id. at 22). In January 2013, the claimant wanted to discuss additional pain medication and was prescribed Percocet. (Exhibit 7F at 25). The claimant has consistently had poor range of motion in the right shoulder in April 2013, July 2013, and October 2013. (Id. at 29, 31, 38). In October 2014, the claimant presented with right shoulder pain and could not move his arm. (Id. at 59).

         The claimant underwent a neurological evaluation with Dr. Yazan Houssami in January 2016 when the claimant was noted as having a mild hand tremor. Spiral drawing testing was consistent with “very mild action tremor.” (Exhibit 16F at 4). Dr. Houssami diagnosed the claimant with a tremor, unspecified, but also noted that it was not interfering with the claimant's activities of daily living.

         The claimant reported that he spends most of his time taking care of his children and is able to complete personal hygiene care such as dressing, bathing, and grooming independently. (Exhibit 5F). The claimant also reported being able to perform household chores such as doing the dishes, laundry, preparing basic meals, shopping for groceries, and managing the household finances. (Id.). The claimant testified at the administrative hearing that he has difficulty engaging socially with others. The claimant's wife testified that, in the last five or six years, the claimant was not engaging in church activities or with their children. She also testified that he will attend family events but will not engage with the people there. However, the claimant reported to the consultative examiner that he socializes with others a few times each week, that he has several close friends, and that his interpersonal style was generally friendly and polite and only slightly withdrawn. (Exhibit 5F at 3).

         In November 2014, the claimant reported frequent panic attacks. (Exhibit 4E). The claimant testified at the hearing that he is unable to work due to his anxiety disorder and severe depression. On average, the claimant has five days a week when he does not feel like getting out of bed. The claimant further testified that, even on medication, he has panic attacks two to three times a day that last from one hour to four or five hours and that he is unable to concentrate to watch television for two hours.

         The record contains four letters from the claimant's treating physician Dr. Thomas Bantly. But these letters do not include specific clinical observations or mental status exam findings. (Exhibits 8F, 9F, and 14F). In June 2014, Dr. Bantly indicated that the claimant restarted treatment in February with depressive symptoms. The physician also stated that the claimant “has had a loss of full psychological functions and appears to be unable to leave the house and deal with work related activities.” (Exhibit 8F at 1). Dr. Bantly stated in a letter dated January 10, 2015, that the claimant has been on a number of medications, including fluoxetine, amitriptyline, olanzapine, mirtapeine, lithium, olanzapine, trazadone, Strattera, Seroquel, and Geodon. However, Dr. Bantly stated that these medications were unsuccessful and that the claimant developed shaking as a result of Geodon. (Id. at 2).

         Dr. Bantly submitted a third letter dated April 16, 2015, which contained information from his prior two letters as well as an indication that the claimant has had only moderate success with a trial of Requip and amitriptyline 75 mg. Dr. Bantly also indicated that the claimant has continued to have tremors and that there was a concern for Parkinson's Syndrome. (Exhibit 9F). In the letter from April 2015, Dr. Bantly stated that the claimant has had a flat affect and poor cognitive abilities in addition to being unable to handle the stresses and pressures of day-to-day work activity. Lastly, Dr. Bantly submitted a letter dated January 22, 2016, in which he stated that the claimant meets the requirements of Listing 12.04 in 20 C.F.R. Part 404, Subpart P, Appendix 1. Dr. Bantly also provided a summary of the claimant's condition. (Exhibit 14F). Dr. Bantly wrote that the claimant complained of increased depressive symptoms, nausea, vomiting, and abdominal pain. According to the physician, the claimant's memory and ability to sustain concentration were impaired and he developed significant cognitive side effects which resulted in his over medicating. Dr. Bantly also stated that the claimant has depression, psychomotor retardation, flat affect, anhedonia, social isolation, and memory deficiencies. (Id. at 2).

         The claimant was hospitalized for overdoses of prescription medication from April 29 through May 5, 2014, for one day on August 9, 2015, and for two days on August 14, 2015. (Exhibit 12F at 3, 10; Exhibit 13F at 4). However, the record is inconsistent regarding whether the claimant had worsening depression leading to an intentional overdose or if he was having cognitive side effects leading to an unintentional overdose. (Exhibit 13F at 6; Exhibit 14F at 2). The record shows that the claimant improved with treatment during his hospitalizations and was discharged with an okay mood and appropriate affect. Thought process and content were within normal limits, and he denied any suicidal or homicidal ideation. (Exhibit 13F at 5).

         Dr. Norman Lee performed a psychological consultative examination of the claimant in July 2014. Dr. Lee stated that the claimant was cooperative, had fair eye contact, had normal speech, had fair concentration, and was alert throughout the evaluation. (Exhibit 5F). Dr. Lee found that the claimant had depressed and anxious mood, restricted affect, and an interpersonal style that was only slightly withdrawn. Montreal Cognitive Assessment testing indicated that the claimant's global cognitive functioning was generally intact. (Id.). Dr. Lee opined that the claimant is capable of understanding, remembering, and carrying out basic and complex directions; has mild to moderate limitations in the ability to concentrate for an extended amount of time, maintain an appropriate pace, and persist on more difficult tasks; and has a satisfactory ability to interact adequately with coworkers and the general public. (Id.).

         Treating physician Dr. Chris Crooker opined that the claimant is a good candidate for disability and should be allowed to apply for it. (Exhibit 15F). Dr. Crooker also stated that the claimant has been unable to use his arm since 2012 and that he has a hand tremor that makes it impossible to perform fine finger movements. Dr. John Shih performed a consultative examination on July 14, 2014, and found that the claimant had normal grip strength, normal fine and gross manipulation, and some loss of range of motion. (Exhibit 4F).

         A State agency medical consultant at the initial determination opined that the claimant is capable of performing work at the medium exertional level with occasional overhead reaching with the right arm and that he should avoid concentrated exposure to hazards. (Exhibit 2A). A State agency medical consultant at the reconsideration determination opined that the claimant is capable of performing work at the light exertional level with frequent climbing of ramps and stairs; never climbing of ladders, ropes, and scaffolds; frequent balancing, stooping, kneeling, crouching, and crawling; and frequent overhead reaching with the right arm. The claimant should avoid concentrated exposure to pulmonary irritants and hazards. (Exhibit 5A). A State agency psychological consultant opined at the initial determination that the claimant's mental impairments result in moderate restrictions in activities of daily living and difficulties in maintaining concentration, persistence, or pace. (Exhibit 2A).

         Additional facts will be set forth as necessary during discussion of Plaintiff's arguments.

         III. Standard of Review

         An individual is considered to be disabled if he is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). The impairment or impairments must result from anatomical, psychological, or physiological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do his previous work but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. See 42 U.S.C. §§ 423(d)(2) and (3).

         “We review the Commissioner's decision to determine if it is supported by substantial evidence and based upon proper legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. at 1440. “Even if the evidence preponderates against the [Commissioner's] factual findings, we must affirm if the decision reached is supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). “‘We may not decide the facts anew, reweigh the evidence, or substitute our ...

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