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Kreze v. Berryhill

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

June 7, 2018

FRANC KREZE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Comm'r of Soc. Sec., Defendant.

          DAN AARON POLSTER MAGISTRATE JUDGE

          REPORT AND RECOMMENDATION

          DAVID A. RUIZ JUDGE

         Plaintiff, Franc Kreze (hereinafter “Plaintiff”), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter “Commissioner”), denying his applications for a 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 that the Commissioner's final decision be REVERSED and REMANDED for proceedings consistent with this opinion.

         I. Procedural History

         On July 22, 2014, Plaintiff filed his applications for POD, DIB, and SSI, alleging a disability onset date of February 5, 2014. (Transcript (“Tr.”) 271-279). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 133-216). Plaintiff participated in the hearing on April 26, 2014, was represented by counsel, and testified. (Tr. 98-132). A vocational expert (“VE”) also participated and testified. Id. On May 16, 2016, the ALJ found Plaintiff not disabled. (Tr. 93). On May 16, 2017, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-3). On June 15, 2017, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 11 & 12).

         Plaintiff asserts the following assignment of error: the residual functional capacity (“RFC”) determination does not accurately account for his mental limitations. (R. 11).

         II. Evidence

         A. Relevant Medical Evidence[1]

1. Treatment Records

         On February 13, 2015, Plaintiff was seen by Kelly Wadeson, Ph.D., for a neuro-psychological evaluation. (Tr. 1651-1653). She noted that Plaintiff had a brain aneurysm on February 5, 2014. (Tr. 1652). Dr. Wadeson discontinued the examination after 2.5 hours noting as follows:

Based on objective testing, the patient's performance was below recommended cutoffs on stand alone and embedded measures of response bias. This suggests unreliable effort on cognitive measures. *** Due to unreliable effort during the current evaluation, the obtained low cognitive test scores cannot be validly interpreted. As such, the vast majority of his test performance across measures of basic attention, processing speed, memory, and fine motor dexterity are unable to be interpreted. In contrast, his performance on measures of single word reading and cognitive set-shifting suggest at least low average to average range skills.

(Tr. 1651).

         On April 17, 2015, Plaintiff was seen by psychologist Taylor Rush, Ph.D., as part of an interdisciplinary program for headache treatment (Tr. 1680-1683). Dr. Rush approved the psychotherapy recommendation (Tr. 1680). She diagnosed generalized anxiety disorder and depressive disorder. Id. She observed that, “Mr. Kreze's sister appears to foster a moderately enabling dynamic with her brother, ” and also that “Mr. Kreze's family appear moderately enabling of pain related disability.” (Tr. 1680-1681).

         On July 22, 2015, Plaintiff was seen by psychiatrist, Syed Rizvi, M.D., for complaints of anxiety. (Tr. 1691). Plaintiff reported developing “severe, persistent headaches refractory to treatment, ” increased depression and anxiety, social withdrawal, and crying spells. (Tr. 1691). Dr. Rizvi assessed a primary diagnosis of mood disorder, post-traumatic stress disorder (PTSD), and a provisional diagnosis of generalized anxiety disorder.[2] (Tr. 1695).

         On July 24, 2015, Dr. Rush noted that Plaintiff was “beginning to make plans for his life” after his discharge from the Interdisciplinary Method for the Assessment and Treatment of C hronic Headache (IMATCH), “resuming his normal custody schedule with his children, ” “doing projects around the house, and will be making phone calls to associates about possible job openings that he could consider.” (Tr. 1971). She raised the idea of psychotherapy, but he wanted “to see if he is able to self-manage his anxiety and depression symptoms over the next few weeks first.” Id.

         On November 3, 2015, Plaintiff reported to Steven Krause, Ph.D., that he had difficulty returning to work as a painter, and had difficulties with increased anxiety and headaches after working for three hours. (Tr. 1709).

         On December 24, 2015, Dr. Rizvi found Plaintiff had clear and distinct speech; intact associations; logical, coherent, and rational thought process; no evidence of disturbance in thought perception or progression; and, an appropriate and adequate fund of knowledge. (Tr. 1731). On mental status examination, Plaintiff was oriented x 4, had intact memory (recent, remote, as well as immediate), normal concentration, somewhat dysphoric mood, full and appropriate affect, and no suicidal/homicidal ideation. (Tr. 1731). Dr. Rizvi increased Plaintiff's prescription for Effexor, discussed the importance of psychiatric follow-up, and considered adding psychotherapy depending on patient's response to medication and patient's motivation. (Tr. 1732).

         On January 22, 2016, Dr. Rizvi talked to Plaintiff over the phone and Plaintiff reported he was “doing better on Effexor, with better mood.” (Tr. 1768).

         On February 12, 2016, Plaintiff was seen by Dr. Krause, who noted that Plaintiff realized “he can return to work, albeit in a modified fashion” and he “reported significantly improved mood throughout the session.” (Tr. 1737).

         2. Medical Opinions Concerning Plaintiff's Functional Limitations

         On September 4, 2014, Plaintiff was seen by Richard Halas, M.A., at the request of the state agency for a psychological report. (Tr. 1512). Plaintiff denied having a psychiatric history, and does not see a psychologist or psychiatrist. (Tr. 1513). On mental status examination, Plaintiff had a depressed mood and flat affect; his speech pattern was slow and did not exhibit any specific problems with fragmentation of thought, poverty of speech, perseveration of response or flight of idea; had high levels of anxiety but denied panic/anxiety attacks; his overall presentation was within normal limits; his memory for past events was limited; and, his insight and judgment were good. (Tr. 1515). Mr. Halas diagnosed depressive disorder, anxiety disorder, and cognitive disorder. (Tr. 1517). He assigned a Global Assessment of Functioning (“GAF”) score of 45.[3] Id. Mr. Halas opined that Plaintiff “is able to understand information, assimilate knowledge and problem solve;” has severe problems in the area of maintaining attention and concentration, and maintaining persistence and pace to perform simple or multi-step tasks; has significant problems responding appropriately to supervision and to coworkers in a work setting; and, due to issues with memory, has significant problems responding appropriately to work pressures in a work setting.” (Tr. 1517). Mr. Halas stated that Plaintiff would not be able to remember job re sponsibilities, procedures, or safety precautions. (Tr. 1518).

         On September 30, 2014, state agency psychologist Joseph Edwards, Ph.D., reviewed Plaintiff's records and found evidence of an organic mental disorder, an affective disorder, and an anxiety related disorder. (Tr. 154). He found that Plaintiff had mild restriction of activities of daily living; mild difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence and pace; and, no episodes of decompensation. (Tr. 154). In the category of understanding and memory, Dr. Edwards opined that Plaintiff was moderately limited in his ability to understand and remember detailed instructions, but could “complete one or two step instructions.” (Tr. 158). In the category of sustained concentration and persistence, Plaintiff was found to have no significant limitations, except that he was moderately impaired in his ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 159). As a result, Dr. Edwards opined that Plaintiff “[c]an work in settings with occasional flexibility for shifts and breaks [and can] sustain concentration for brief episodes of focus.” Id. Due to adaptation limitations, Dr. Edwards opined that Plaintiff “[c]an work in settings in which major changes are easily explained and graduated.” Id.

         On January 10, 2015, state agency psychologist Deryck Richardson, Ph.D., reviewed the records on file and largely agreed with Dr. Edwards's prior opinions, except that he believed Plaintiff had moderate rather than mild difficulties in maintaining social functioning. (Tr. 154, 183). Although Dr. Richardson found that Plaintiff had greater abilities in understanding and memory by finding he could complete two to three step instructions, Dr. Richardson agreed with Dr. Edwards that Plaintiff could work in settings with occasional flexibility for shifts and breaks, and could sustain concentration for brief episodes of focus. (Tr. 188).

         B . Relevant ...


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