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Herbert v. Berryhill

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

May 1, 2018

KIM A. HERBERT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          SARA LIOI, JUDGE



         Plaintiff, Kim Herbert, (“Plaintiff” or “Herbert”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying her applications for Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends the Commissioner's final decision be AFFIRMED.


         In February 2013, Herbert filed applications for POD, DIB, and SSI, alleging a disability onset date of April 2, 2012 and claiming she was disabled due to status post brain aneurysm. (Transcript (“Tr.”) 19, 158, 199.) The applications were denied initially and upon reconsideration, and Herbert requested a hearing before an administrative law judge (“ALJ”). (Tr. 19, 127-133, 136-142.)

         On February 11, 2015, an ALJ held a hearing, during which Herbert, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 34-72.) On March 31, 2015, the ALJ issued a written decision finding Herbert was not disabled. (Tr. 19-30.) The ALJ's decision became final on May 18, 2017, when the Appeals Council declined further review. (Tr. 1-7.)

         On July 12, 2017, Herbert filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 16, 17.) Herbert asserts the following assignments of error:

(1) In evaluating whether Plaintiff met Listing 12.04 for affective disorder, the ALJ downplayed, if not ignored, the evidence in Plaintiff's medical records and hearing testimony regarding the Part B criteria. With Part A deemed satisfied by the ALJ, Plaintiff needed to satisfy Part B in showing marked restriction in any of the two criteria. However, the ALJ determined that her restrictions and difficulties were “mild” and “moderate” when the evidence in the records and hearing testimony indicates her restrictions and difficulties being much more severe to the level of marked limitation. Thus, there is no substantial evidence to support the ALJ's determination. By finding that Plaintiff's restrictions were less than marked, the ALJ found that Plaintiff did not meet Listing 12.04. When the evidence is properly weighed and found to mean that Plaintiff has marked limitations in three of the Part B criteria, Plaintiff then meets Listing 12.04, making her automatically disabled.
(2) The ALJ attacked the credibility of Plaintiff based on her not fully following treatment recommendations. An ALJ cannot impeach a claimant's credibility just because the claimant did not fully follow or cooperate with treatment.

(Doc. No. 16.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Herbert was born in June 1966 and was forty-eight (48) years-old at the time of her administrative hearing, making her a “younger” person under social security regulations. (Tr. 29.) See 20 C.F.R. §§ 404.1563(c) & 416.963(c). She has at least a high school education and is able to communicate in English. (Id.) She has past relevant work as an light electrical assembler, licensed practice nurse/home health aide, light assembler- supervisor, machine tender-plastics, and quality control supervisor- plastics. (Tr. 29.)

         B. Relevant Medical Evidence[2]

         On April 15, 2012, Herbert was rushed to the emergency room after she was found on the ground behind her vehicle, unresponsive, confused, and “amnestic to the event.” (Tr. 244, 256.) A CT scan of her head showed a subarachnoid hemorrhage (“SAH”). (Tr. 245, 259.) The following day, Herbert underwent a “left pterional craniotomy and clipping of an anterior communicating artery aneurysm.” (Tr. 245.) Herbert's hospital stay was further complicated by blood loss anemia, increased EVD pressure, staph bacteremia, and ventriculitis. (Id.) Upon discharge, she was advised to attend physical therapy, occupational therapy, and speech language therapy.[3] (Tr. 238, 245.)

         On May 23, 2012, Herbert underwent a follow-up CT scan of her head, which revealed “increasing communicating hydrocephalus . . . with aneurysm clip projecting in the anterior communicating artery region.” (Tr. 292.) It also indicated Herbert's subarachnoid hemorrhage had resolved. (Id.)

         On June 20, 2012, Herbert presented to infectious disease specialist Michelle Hecker, M.D., for follow-up regarding her bacteremia. (Tr. 238-240.) She reported no problems with speech or activities of daily living, but did complain of chronic back pain. (Tr. 238.) Examination findings were normal. (Id.) Dr. Hecker found Herbert was “doing very well” but noted she had not yet scheduled her speech, occupational, or physical therapy. (Id.)

         That same day, Herbert presented to neurosurgeon Matt Likavec, M.D., for follow up regarding her SAH. (Tr. 241-243.) She denied nausea, vomiting, vertigo or tinnitus, and stated her gait was normal. (Tr. 241.) Herbert indicated she “still has some trouble with memory but that is improving every day.” (Id.) Dr. Likavec noted the May 23, 2012 CT scan showed resolution of the SAH and no sign of stroke but “still with ventriculomegaly.” (Id.) His impression was that Herbert was “doing well.” (Id.) Dr. Likavec noted he was “still concerned about her ventriculomegaly but with no symptoms I am loathe to jump in and do something.” (Id.) He advised her she could drive short distances, increase her activity and “do a little lifting.” (Id.)

         On June 21, 2012, Herbert underwent another CT scan of her head. (Tr. 289.) This imaging revealed “moderate communicating hydrocephalus, unchanged from the prior study, ” as well as “encephalomalacia in the right frontal lobe, unchanged.” (Id.)

         The following day, Herbert presented to vascular surgeon Jeffrey Alexander, M.D., for follow-up regarding her left wrist pseudoaneurysm. (Tr. 235-237.) Herbert reported no complaints and denied any pain, numbness, or coldness of the hand. (Id.) Examination of Herbert's left hand and wrist was normal. (Id.) Dr. Alexander noted “no active issues or concerns.” (Id.)

         On July 9, 2012, Herbert presented to physical medicine and rehabilitation specialist Jill Schleifer-Schneggenburger, M.D. (Tr. 227-234.) She complained of memory impairment, stating she “can't remember stuff” and has to write things down as a reminder. (Tr. 227.) Her husband felt it was not safe for her to drive and took her car keys away. (Tr. 227-228.) Herbert's parents, who were present at the visit, stated Herbert now had a harder time holding a conversation on the telephone, was slow to respond to questions, and often went “off topic.” (Tr. 228.) Herbert's family also indicated she was not participating in therapy as directed. (Id.)

         On examination, Dr. Schleifer-Schneggenburger noted Herbert seemed “impulsive, callous but cooperative with interview.” (Id.) She was alert and oriented, with normal facial symmetry and intact extremity strength. (Tr. 229.) Dr. Schleifer-Schneggenburger found Herbert had a stable, nonatalgic gait but walked with her hand on her hip and was distractable. (Id.) She concluded Herbert “continues with impairments in reasoning, problem solving, memory as well as complaints of generalized back pain and concerns for cognitive and physical function[ing] keeping her from being able to drive safely.” (Id.) Dr. Schleifer-Schneggenburger advised Herbert to schedule appointments for physical, occupational and speech/language therapy, and to follow up with Dr. Likavec for any signs and symptoms of hydrocephalus. (Id.) She also prescribed Trazodone for Herbert's reported sleep problems. (Id.)

         The record reflects Herbert presented for an occupational therapy brain injury evaluation on August 16, 2012. (Tr. 306-316.) The therapist (whose signature is illegible) noted Herbert was cooperative but lethargic. (Tr. 306.) Herbert complained of aching pain “throughout her body, ” as well as “a lot of fatigue with” her activities of daily living. (Tr. 307.) She indicated she did the dishes and dusting and took care of simple meals, but her husband “takes care of the rest.” (Tr. 308.) Herbert also indicated she was not able to shop independently due to fatigue. (Id.)

         With regard to her attention and concentration, the therapist found Herbert was able to attend to a task for five to fifteen minutes in a quiet environment but needed monitoring in a “distractable environment.” (Tr. 310.) She also found Herbert was able to recognize and correct mistakes and accept supervision, but characterized as “fair” her attention to quality of work, speed of performance, adherence to safety, and attention to visual detail. (Id.)

         In particular, the therapist noted Herbert “began to have decreased attention mildly as [she] worked through test and began answering at a quicker pace causing min[or] errors.” (Tr. 311.) The therapist also noted Herbert was mildly lethargic and mildly distractable with fair eye contact. (Tr. 312.) With regard to her memory, the therapist indicated Herbert was able to recall three words accurately after 15 minutes. (Tr. 313.) She was unable, however, to verbally state her daily routine without prompting and assistance. (Tr. 314.)

         After completing the evaluation, the therapist assessed the following problems: (1) complaints of “decreased overall body strength to safely complete” activities of daily living; (2) decreased memory and problem solving interfering with functional performance; (3) impaired endurance for activities of daily living; (4) disruption of past roles; and (5) architectural barriers and lack of medical equipment for activities of daily living. (Tr. 316.) The therapist recommended twice weekly sessions for four to six weeks for strengthening and cognitive retraining. (Id.)

         Herbert returned for occupational therapy sessions on August 16 and 20, 2012. (Tr. 317-318.) On August 16, 2012, Herbert was able to independently create a shopping list for three meals. (Tr. 317.) On August 20, 2012, she complained of neck and shoulder pain, as well as fatigue. (Tr. 318.) The therapist noted Herbert “tolerated all tasks but tired easily with exercises.” (Id.) The record reflects Herbert missed her next three scheduled sessions and failed to respond to messages from her therapist. (Tr. 319-321.) She was discharged from occupational therapy on August 30, 2012. (Tr. 321.)

         Herbert also presented for speech/language therapy in August 2012. (Tr. 322-325.) The therapist (whose signature is also illegible) found Herbert was “within functional limits” in the following categories: (1) orientation; (2) basic problem solving/activities of daily living; (3) auditory comprehension (i.e., pointing to pictures/objects, answering yes/no questions, following directions, and comprehending conversation); (4) visual scanning; (5) comprehending written directions and paragraphs; (6) automatic speech; (7) naming/word retrieval; (8) answering questions; (9) conversational discourse; and (10) speech production. (Tr. 322-323.) The therapist found Herbert was impaired in the following categories: (1) attention; (2) complex problem solving; (3) memory; and (4) visual spatial organization. (Id.) The therapist concluded Herbert “presents with mild cognitive communication impairment characterized by decreased attention, executive functions, short term recall, and visuospatial skills.” (Tr. 323.) She recommended one to two sessions per week, and characterized Herbert's rehabilitation potential as good. (Id.)

         Herbert returned for speech and language therapy on August 20, 2012. (Tr. 324.) She reported having good days and bad. (Id.) Herbert complained of neck and shoulder pain which she rated a 6 on a scale of 10. (Id.) The therapist noted Herbert presented with a flat affect and wearing a “very dirty shirt.” (Id.) The therapist indicated Herbert “may benefit from consult with psychology or counseling.” (Id.) The record reflects Herbert failed to return to speech/language therapy and was discharged on September 11, 2012. (Tr. 325.)

         Herbert also presented for a neurological physical therapy evaluation in August 2012. (Tr. 326-328.) She complained of “constant pain everywhere, ” which she rated a 9.5 on a scale of 10. (Tr. 326-327.) Herbert also indicated she had loss of interest in her previous activities. (Tr. 328.) On examination, Herbert was alert and oriented with a good ability to follow commands but “difficulty processing auditory information.” (Tr. 327.) Her right upper and lower extremity strength was 4 to 5/5, while her left lower and upper extremity strength was 4/5. (Id.) Range of motion in Herbert's bilateral upper and lower extremities, cervical spine, and trunk was within functional limits. (Id.) She could walk unlimited distances but the therapist noted “decreased arm swing and trunk rotation as well as decreased right foot clearance with occasional catch.” (Tr. 328.) Herbert had rounded shoulders and “exaggerated lordosis.” (Id.) The therapist recommended one to two sessions per week for four to six weeks. (Tr. 329.)

         Herbert returned for physical therapy on August 16, 20, and 23, 2012. (Tr. 330-331.) On August 16, 2012, Herbert stated she was “always tired and in pain.” (Tr. 330.) On August 20, 2012, she complained of increased pain when sitting upright, rating her pain a 6 on a scale of 10. (Id.) On August 23, 2012, Herbert increased pain and stress. (Tr. 331.) The therapist noted Herbert was “poorly motivated” and that she “politely complained with all activities.” (Id.) The record reflects Herbert failed to appear for her next two physical therapy sessions and was discharged on September 20, 2012. (Tr. 332.)

         On February 5, 2013, Herbert presented to Bradley Barker, M.D., for evaluation of her hypertension. (Tr. 343-346.) She complained of cough, shortness of breath, urinary frequency/urgency, and body aches. (Tr. 345.) On examination, Dr. Barker noted Herbert was alert; oriented to person, place and time; well appearing; and in no distress. (Id.) Her neurological examination was normal; however, Dr. Barker noted Herbert was depressed and confused with an inappropriate affect. (Id.) He assessed hypertension, cerebral aneursym, and tinnitus of the right ear. (Id.) Dr. Barker ordered blood work and prescribed Lozol. (Tr. 345-346.)

         Herbert returned to Dr. Barker on March 5, 2013. (Tr. 337-342.) She reported she was not exercising, adhering to a low salt diet, or checking her blood pressure at home. (Tr. 337.) Herbert complained of chest pressure and palpitations when having an anxiety attack. (Id.) She denied claudication, dyspnea, fatigue, irregular heart beat, lower extremity edema, near-syncope, orthopnea, syncope, and tachypnea. (Id.) Examination findings were normal, including normal mood, behavior, speech, dress, motor activity, and thought processes. (Tr. 339.) Dr. Barker advised Herbert to adhere to a low sodium diet and exercise daily. (Id.) He discontinued her Lozol and prescribed Lotensin. (Tr. 339-340.)

         On September 5, 2013, Herbert began treatment with neurologist Mark Bej, M.D. (Tr. 380-381.) She complained of daily headaches, as well as neck, back and arm pain. (Id.) Herbert was alert and oriented to person, place and time. (Id.) Examination revealed normal muscle tone and bulk, intact sensation, normal reflexes, and negative Romberg's. (Id.) Herbert had normal station and gait and performed toe, heel, and tandem walking without difficulty. (Id.) Dr. Bej found no evidence of scoliosis, lordosis, muscle spasm, or trigger point tenderness on palpation. (Id.) He assessed (1) migraine without aura, markedly exacerbated into effective status; (2) history of SAH and left temporal surgery; (3) cervical through lumbar myofasciitis; and (4) bilateral medial forearm/hand pain, rule out radiculopathy. (Id.) Dr. Bej ordered an MRI of Herbert's brain and an EMG of her upper extremities; and prescribed medication. (Id.)

         Herbert underwent an EMG of her bilateral upper extremities on September 30, 2013. (Tr. 378-379.) It revealed “evidence of a neuropathic, primarily axonal, process affecting the left ulnar nerve at the elbow, most consistent with a compressive lesion in this location.” (Id.) There was no suggestion of cervical radiculopathy. (Id.)

         On October 31, 2013, Herbert returned to Dr. Bej. (Tr. 377.) She reported continued daily headaches, although she indicated they were less severe. (Id.) Herbert also complained of sleep problems. (Id.) Dr. Bej indicated the MRI of Herbert's brain showed “aneurysm clip LICA supraclinoid and mild ventriculomegaly.” (Id.) Physical examination findings were normal, including appearance, mentation, extraocular movements, facial strength or movement, hearing, upper and lower extremity strength and tone, sensation to gross testing, coordination, and gait. (Id.) Dr. Bej ordered a Polysomnogram and advised Herbert to continue taking her medication. (Id.)

         Herbert underwent the Polysomnogram on November 18, 2013. (Tr. 376.) This study supported the clinical diagnosis of moderate positional and mild REM related obstructive sleep apnea, and periodic limb movement disorder. (Id.) Dr. Bej also noted Herbert's Beck Depression Inventory score was “extremely elevated” and stated “the effect of possible depression on sleep (including perception of one's own sleep) should be considered.” (Id.)

         Herbert returned to Dr. Bej on December 5, 2013. (Tr. 375.) Physical examination findings were again normal. (Id.) Dr. Bej added diagnoses of obstructive sleep apnea, mostly supine, and possibly neurogenic pain. (Id.) He advised Herbert to continue her medication and “strongly recommended treating panic attacks.” (Id.)

         The next medical record cited by the parties is dated January 9, 2015. (Tr. 382-387.) On that date, Herbert presented to the emergency room (“ER”) with complaints of head, neck, and left shoulder pain. (Tr. 382.) She stated that, two days prior, she was babysitting her grandson and suddenly woke up at home “unsure of anything that has happened.” (Tr. 383.) Treatment records indicate Herbert had “lumps on her head and bruised puffy eyes.” (Id.) On examination, Herbert was awake, alert and oriented with a normal mood and affect. (Tr. 385.) She had normal gait and station, normal strength and muscle tone, normal speech, normal sensation, and normal motor function. (Id.) The ER doctor ordered blood work, as well as CT scans of Herbert's brain, maxillofacial bones, and cervical spine, a chest x-ray, and an EKG. (Tr. 385-386.)

         Herbert's chest x-ray was normal. (Tr. 422.) The CT of her cervical spine showed mild degenerative disc disease and no sign of acute traumatic injury. (Tr. 423.) The Maxillofacial CT showed no acute process other than soft tissue swelling. (Tr. 424.) The CT of Herbert's brain revealed as follows:

Atrophy is present with compensatory ventricular and subarachnoid space prominence. There is a region of encephalomalacia in the right frontal lobe, compatible with remote infarct. There are postoperative changes of the left frontal craniotomy defect as well as suprasellar aneurysm clip. There is small dystrophic calcification in the right frontal cortex region. No acute intracranial bleed. No midline shift or mass effect. Gray-white differentiation is maintained. No extra-axial fluid collection or hydrocephalus. There is a small scalp hematoma of the right frontal region. No definite acute fracture. Visualized portions of the paranasal sinuses and mastoid air cells are clear.

(Tr. 425.)

         The ER doctor concluded Herbert should be admitted for observation. (Tr. 387.) Herbert, however, elected to leave against medical advice “stating she had to meet her husband for lunch.” (Tr. 400.) Her diagnoses on discharge were amnesia, closed head injury, and “left against medical advice.” (Tr. 382.)

         C. State Agency Reports

         1. Mental Impairments

         A. Consultative Examinations

         On May 28, 2013, Herbert underwent a psychological consultative examination with Thomas F. Zeck, Ph.D. (Tr. 362-367.) She reported suffering two cerebral aneurysms in 2012 and stated “as a result of this she has . . . decreased both long term and short term memory, she has very little if any patience, she has lost interest in her activities, she has a very high anxiety level, she cannot sit or stand for any particular length of time, and she has continuous headaches.” (Tr. 362.) Herbert also reported diminished strength and stamina. (Id.) She indicated she is a recovering alcoholic, went to daily AA meetings for a year and a half “at the request of the court, ” and had her drivers license suspended indefinitely. (Tr. 363.) Herbert stated she was in outpatient therapy for anxiety “about twenty years ago.” (Id.)

         On examination, Dr. Zeck noted Herbert “answered questions directed to her but exhibited a flat affect without any significant animation.” (Tr. 363.) She had “little emotional expression” and showed a “tendency to be curt at times.” (Tr. 364.) Herbert's speech was relevant and coherent and Dr. Zeck noted no expressive or receptive language problems. (Id.) She reported feeling depressed over “everything” with poor sleep and “minimal” energy level. (Id.) Herbert denied crying spells but reported feeling both hopeless and worthless. (Id.) Dr. Zeck noted no motor or autonomic signs of anxiety. (Id.)

         With regard to Herbert's cognitive functioning, Dr. Zeck found as follows:

She was oriented in all spheres. She could count backwards from 20 - 1 and do serial 3's as well as serial 7's. She could recall two out of three items after five minutes and could interpret two of the three proverbs administered to her. Her concentration, rote memory, and immediate recall were above average based upon her responses to digits forward and backwards. She was within the average range in her mental arithmetic reasoning abilities and was low average in her abstract thinking and logical thinking abilities. She knew the current President of the United States as well as the former President. She could spell world both forwards and backwards.

(Id.) In addition, Dr. Zeck administered the Wechsler Adult Intelligence Scale IV and found Herbert had a full-scale IQ of 95, which placed her within the average range of intelligence classification. (Tr. 365.) He noted the results “show no significant weaknesses in her memory” and found “the only area that is low average is in delayed memory where she had difficulty with this throughout the evaluation.” (Tr. 366.)

         With regard to Herbert's activities, Dr. Zeck found the following:

She generally can do her [activities of daily living] on a day to day basis and does meal planning and meal preparation. She needs to take clothes to the laundromat as she does not have a washer or dryer. She states that she is careful regarding cooking because of her forgetfulness. She does take and pick up her husband from work. She can do shopping when necessary. She has lost interest in most of her hobbies. She used to like to draw and do art. She does enjoy reading and football. She does not belong to any clubs nor does she attend church. She has friends but they do not do very much together.

(Tr. 365.)

         Dr. Zeck diagnosed depressive disorder, not otherwise specified; and assessed a Global Assessment of Functioning[4] of 60, indicating moderate symptoms. (Tr. 366-367.) In terms of the four broad functional areas, he opined as follows:

Describe the claimant's abilities and limitations in understanding, remembering, and carrying out instructions.
This claimant does have the ability to understand, remember, and carry out instructions. She did exceedingly well on items involving her memory and her comprehension was quite good with no deficits, thus she does have the ability to function in a useful manner to an employer.
Describe the claimant's abilities and limitations in maintaining attention and concentration and in maintaining persistence and pace to perform simple tasks and to perform multi-step tasks.
There were no difficulties with her attention and concentration during this evaluation. She worked very diligently, was persistent, and her pace was rather quick. She can perform simple tasks and multi-step tasks. Evidently she cannot go back to her previous job working in factories because she is limited in her strength and she has not yet been released to go back to do physical work. She is considering educational training to find a job that she would be able to do with her disabilities.
Describe the claimant's abilities and limitations in responding appropriately to supervisors and to co-workers in a work setting.
She states that she was fired once for evidently using alcohol. She has not indicated any significant problems with supervisors and co-workers, however, she does admit that she can become easily upset and aggravated and this could create problems for her in a work setting with supervisors and co-workers.
Describe the claimant's abilities and limitations in responding appropriately to work pressures in a work setting.
She does have the abilities to deal appropriately with the pressures in a work setting.

(Tr. 367.)

         On August 22, 2013, Herbert underwent another psychological examination with Dr. Zeck. (Tr. 369-374.) She continued to report memory problems as a result of her 2012 aneurysms, noting she forgot her mother's birthday. (Tr. 369.) Herbert also complained of constant headaches and pain “throughout her body, ” and stated “sometimes she does go into a rage.” (Id.) She indicated she becomes confused easily and has “fears of everything.” (Id.) On examination, Dr. Zeck noted Herbert “appeared to be quite sad and depressed as well as resentful.” (Tr. 371.) She had a flat affect and spoke in a “very soft monotone type of voice.” (Id.) Dr. Zeck found Herbert's speech was relevant and coherent; however, Herbert “did not volunteer much information and was rather ‘stand off-ish' and only briefly answered questions.” (Id.) She reported difficulty sleeping, reduced energy, and feelings of worthlessness. (Id.) Herbert denied crying spells. (Id.)

         With regard to her cognitive functioning, Dr. Zeck found Herbert was oriented in all spheres, noting she could count backwards from 20 to 1 and do serial 3's as well as serial 7's. (Id.) He found her “concentration, rote memory, and immediate recall were . . . within the high average to superior range.” (Id.) Dr. Zeck further concluded Herbert “was within the average range in her mental arithmetic reasoning abilities and low average in her abstract thinking and logical thinking abilities.” (Tr. 372.)

         With regard to her activities of daily living, Dr. Zeck found Herbert can “generally take care of her own” activities, noting she “does prepare meals and does meal planning, ” has taken her clothes to the laundromat, provides transportation for her husband to and from work, and shops when necessary. (Id.) He also noted Herbert does not belong ...

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