United States District Court, N.D. Ohio, Eastern Division
AARON POLSTER MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
A. RUIZ JUDGE
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.
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).
asserts the following assignment of error: the residual
functional capacity (“RFC”) determination does
not accurately account for his mental limitations. (R.
Relevant Medical Evidence
1. Treatment Records
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.
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.”
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. (Tr. 1695).
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.
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).
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).
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).
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.”
Medical Opinions Concerning Plaintiff's Functional
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
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.
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.”
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).
. Relevant ...