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Davis v. Berryhill

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

March 1, 2018

KURT DAVIS, Plaintiff,
v.
NANCY A. BERRYHILL[1], ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          JUDGE SOLOMON OLIVER, JR. JUDGE.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT UNITED STATES MAGISTRATE JUDGE

         Plaintiff Kurt Davis (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). ECF Dkt. #1. In his brief on the merits, filed on April 17, 2017, Plaintiff asserts that the administrative law judge's (“ALJ”) analysis of his mental impairments and residual functional capacity (“RFC”) lacked the support of substantial evidence. ECF Dkt. #10. Defendant filed a response brief on June 28, 2017. ECF Dkt. #13. Plaintiff filed a reply brief on July 10, 2017. ECF Dkt. #14.

         For the following reasons, the undersigned RECOMMENDS that the Court AFFIRM the ALJ's decision and dismiss Plaintiff's case in its entirety with prejudice.

         I. PROCEDURAL HISTORY

         Plaintiff filed applications for DIB and SSI in November 2013 alleging that he had been disabled since birth. ECF Dkt. #9 at 226-27.[2] The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an ALJ. Id. at 106, 176. Prior to the hearing, Plaintiff amended the alleged disability onset date to December 19, 2012. Id. at 322. The hearing in this matter was held on September 15, 2015. Id. at 61. On December 7, 2015, the ALJ issued a decision denying Plaintiff's claims. Id. at 39. Subsequently, the Appeals Council denied Plaintiff's request for review. Id. at 1. Accordingly, the December 7, 2015, decision issued by the ALJ stands as the final decision.

         The instant suit was filed by Plaintiff on January 10, 2017. ECF Dkt. #1. On April 17, 2017, Plaintiff filed a brief on the merits. ECF Dkt. #10. Defendant filed a response brief on June 28, 2017. ECF Dkt. #13. Plaintiff filed a reply brief on July 10, 2017. ECF Dkt. #14.

         II. RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE

         A. Medical Evidence

         Plaintiff suffered a skull fracture as an infant and underwent a craniectomy with evacuation of epidural hematoma at seven weeks of age. Tr. at 373. At age six, Plaintiff was placed in special education classes. Id. at 480-94. While in the tenth grade, Plaintiff was re-evaluated for special education placement and found eligible for “Specific Learning Disabilities Program Services.” Id. at 461. During the re-evaluation, it was noted that Plaintiff had average cognitive ability, but difficulty paying attention to information presented verbally for sustained time periods, and that he required additional time to master concepts and complete assignments. Id.

         In January 2014, Plaintiff was evaluated by state consultative psychologist James M. Lyall, Ph.D.[3] Tr. at 382-87. Dr. Lyall stated the Plaintiff: displayed some mild difficulty understanding complicated questions; indicated that he was generally calm but became confused in new social situations; stated that handling money was a little bit confusing and that his parents helped manage his finances; may have had some judgment difficulties based on his less-than-average intelligence; and seemed to have some insight into his cognitive difficulties. Id. at 384. Continuing, Dr. Lyall assessed that Plaintiff scored within the extremely low range on tests of working memory and may have had difficulty handling work pressures at his various jobs over the years, “most probably due to his less than average intelligence.” Id. at 386. Dr. Lyall also stated that Plaintiff had some behavioral problems when younger, but it appeared that he was able to relate to others adequately at the time of the evaluation, especially when others “treat[ed] him properly.” Id.

         On January 31, 2014, state agency reviewing physician Irma Johnston, Psy.D., opined that Plaintiff would be limited to jobs involving simple, one- to two-step instructions without a fast pace or high production quotas, and a work environment with infrequent changes in routine that could be easily explained. Tr. at 112-14, 123-25. Paul Tangeman, Ph.D., reviewed Plaintiff's updated record and affirmed Dr. Johnston's opinion on April 16, 2014. Id. at 137-38, 148-49.

         Plaintiff reported left-sided motor and cognitive problems to Frank Lazzerini, M.D., on July 14, 2014. Tr. at 401. On examination, Dr. Lazzerini found left-sided weakness with strength of 2/5 and abnormal gait. Id. at 401. On July 29, 2014, Dr. Lazzerini noted normal examination findings, but stated that “patient is medically disabled.” Id. at 398-400. Plaintiff underwent physical and occupational therapy at the order of Dr. Lazzerini for his left hand, gait, balance, ataxia, sensory processing, and learning disability compensation from October 2014 through July 2015. Id. at 427-28, 508-26, 551-831.

         On November 10, 2014, Plaintiff reported to Andrew Stalker, M.D., that he had difficulty maintaining employment and had been fired twelve times for reasons such as being slow and sleeping on the job. Tr. at 418. Plaintiff also stated that he had issues interacting with others. Id. Continuing, Plaintiff explained that he lived in an apartment owned by a friend of his family and that his family had to help him with all of his activities of daily living. Id. Dr. Stalked noted largely normal findings, but also indicated that Plaintiff had abnormal memory, abnormal fund of knowledge, mild motor weakness of the left hand, and decreased alternating movement speed on his left. Id. at 420. At the order of Dr. Stalker, Plaintiff underwent an electroencephalogram on November 18, 2014, that resulted in normal findings, although it was noted that epilepsy could not be ruled out. Id. at 417. On December 3, 2014, Plaintiff underwent a computerized tomography scan that showed encephalomalacia and post-surgical changes of the right partial lobe. Id. at 416, 440. Plaintiff returned to Dr. Stalker on December 8, 2014, and it was noted that Plaintiff was having problems with his prior traumatic brain injury, including cognitive and emotional problems, and that there was little that could be done beyond psychiatry to help his mood. Id. at 415.

         On December 17, 2014, Plaintiff reported to his therapist that he “blam[ed] his brain” for his problems and it was noted that he “[a]ttributes problems to brain injury that are coping or denial.” Tr. at 789. The therapist indicated that Plaintiff needed to focus on his learning disability instead of his general brain injury problems that could not be corrected. Id. at 777. In early January 2015, Plaintiff reported that he was trying to better himself, but it was noted by the therapist that he had missed job appointments and blamed his job coach. Id. at 683.

         On January 21, 2015, Robert Devies, Ph.D., performed a neuropsychological evaluation of Plaintiff. Tr. at 424-25, 442-43. Plaintiff indicated that he had graduated high school, during which he took part in a vocational program focused on agriculture. Id. at 424, 442. Continuing, Plaintiff reported that he had a difficulty maintaining employment and a history of attention deficit disorder. Id. Plaintiff told Dr. Davies that he was “slow learning to do new stuff” and that he could “follow a task after watching it completed but [could not] learn to do something on his own.” Id. Dr. Davies noted that Plaintiff had little insight and understanding of his own dynamics, and that otherwise the only observed behavior that was atypical was a fairly significant dyscalculia. Id.

         Plaintiff saw Rajnikant Kothari, M.D., on January 27, 2015, for a psychiatric consultation. Tr. at 445. At the consultation Plaintiff reported that he was prescribed Zoloft, Zyprexa, and phenobarbital, but that he “didn't really take them” because he did not like the side effects. Id. at 447. Plaintiff reported that his hobbies included working on cars, fishing and hunting, and singing karaoke with friends. Id. at 450. Dr. Kothari noted that Plaintiff: was unkempt; displayed a temperamental mood and affect; had antisocial attitudes and blamed others; had a below average intellect; displayed an inability to concentrate; and showed poor insight and judgment. Id. at 451-52. Plaintiff was diagnosed with bipolar disorder and Dr. Kothari noted that he refused to be treated. Id. at 453.

         On February 17, 2015, Plaintiff reported to Dr. Lazzerini that he had been to a psychiatric consultation, but that the psychiatrist wanted to prescribe medicine. Tr. at 429. Plaintiff stated that he refused the medicine and would not be returning for a follow-up visit. Id. Dr. Lazzerini completed a medical-source statement regarding Plaintiff's physical and mental abilities. Id. at 496, 503. With respect to Plaintiff's mental abilities, Dr. Lazzerini opined that Plaintiff was: moderately limited in his ability to understand and remember simple instructions; markedly limited in his ability to carry out simple instructions, make judgments on simple work-related decisions, and understand and remember complex instructions; and extremely limited in his ability to carry out complex instructions and to make judgments on complex work-related decisions. Id. at 503. Continuing, Dr. Lazzerini opined that Plaintiff: was moderately limited in his ability to interact appropriately with the public and supervisors, and to respond appropriately to usual work situations and changes in a routine work setting; was markedly limited in his ability to interact appropriately with supervisors; and would miss more than four days per month due to mental impairments. Id. at 504-505.

         Plaintiff reported to his therapist in May 2015 that he had not followed up on resumes submitted in an effort to find employment and did not have a plan, but that he had found a job mowing lawns for a small trailer park. Tr. at 736. The therapist counseled Plaintiff on realistic job expectations and his continued dependency on others, and indicated that he was too passive and disorganized for long-term work and needed to determine a specific goal. Id. In July 2015, it was noted that Plaintiff was developing organizational skills for thinking and life, and that he had made good progress towards establishing a long-term work plan. Id. at 770.

         B. Hearing Evidence

         On September 15, 2015, the ALJ held a hearing with Plaintiff, his attorney, and a vocational expert (“VE”) present. Tr. at 61. The ALJ examined Plaintiff, who testified that he had been mowing lawns once a week for a month during that summer. Id. at 70. Plaintiff testified that he had previously worked as a milker on a farm for almost four years and that prior to that job he had worked as a sandblaster for “maybe a year, maybe ...


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