United States District Court, N.D. Ohio, Eastern Division
SOLOMON OLIVER, JR. JUDGE.
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT UNITED STATES MAGISTRATE JUDGE
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.
following reasons, the undersigned RECOMMENDS that the Court
AFFIRM the ALJ's decision and dismiss Plaintiff's
case in its entirety with prejudice.
filed applications for DIB and SSI in November 2013 alleging
that he had been disabled since birth. ECF Dkt. #9 at
226-27. 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.
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.
RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE
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.
January 2014, Plaintiff was evaluated by state consultative
psychologist James M. Lyall, Ph.D. 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.
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
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,
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
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.
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.
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.
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.
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.
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 ...