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Lipayne v. Commissioner of Social Security

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

January 29, 2019


          Judge Solomon Oliver, Jr.




         Plaintiff Louis John Lipayne, Jr. (“Plaintiff”) filed a Complaint against the Commissioner of Social Security (“Commissioner”) seeking judicial review of the Commissioner's decision to deny disability insurance benefits (“DIB”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). This matter has been referred to the undersigned for preparation of a report and recommendation pursuant to Local Rule 72.2. (Non-document entry dated February 2, 2018). Following review, and for the reasons stated below, the undersigned recommends the decision of the Commissioner be affirmed.

         Procedural Background

         Plaintiff filed for DIB in May 2015, alleging a disability onset date of October 3, 2014. (Tr. 142-43). His claims were denied initially and upon reconsideration. (Tr. 68, 81). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 89). Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on February 8, 2017. (Tr. 22-54). On April 4, 2017, the ALJ found Plaintiff not disabled in a written decision. (Tr. 11-18). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-5); see 20 C.F.R. §§ 404.955, 404.981. Plaintiff timely filed the instant action on February 2, 2018. (Doc. 1).

         Factual Background

         Personal Background and Testimony

         Plaintiff was born in June 1954, making him 61 years old on his alleged onset date. See Tr. 142.

         In a May 2015 contact with the state agency, Plaintiff reported he lived with his parents; he was able to cook microwave meals, pay his own bills, vacuum, and care for his lawn, but his mother did the laundry. (Tr. 167). He had an associate's degree in applied business, “but it took him 4 1/2 years.” Id.

         At the time of the hearing, Plaintiff lived with his father. (Tr. 25). He graduated from college. (Tr. 26). He had past work as a machine operator (medium exertion and semi-skilled, performed at the light exertional level) (Tr. 29), and as an accounting clerk (sedentary, skilled) (Tr. 31). As an accounting clerk, Plaintiff performed mostly data entry and accounting; he also helped with tasks such as mowing the lawn. (Tr. 30).

         Relevant Medical Evidence[1]

         There are no mental health treatment records in this case. Thus, the medical evidence of record consists of a consultative psychological examination (Tr. 232-41), and two state agency reviewing psychologist opinions (Tr. 64-65, 77-78).

         Consultative Psychological Examiner

         In July 2015, Plaintiff underwent a psychological examination with Herschel Pickholtz, Ed.D. (Tr. 232-41). Plaintiff reported that he lived with his parents. (Tr. 233). He stated that he graduated from high school with average grades, but was in special education classes from first through ninth grade. (Tr. 234). He obtained an associate's degree in applied business after attending Lakeland Community College for five and one-half years part-time. Id. He also received training at work and school for factory work, data entry, retail sales, and operating machinery. Id. Plaintiff had a valid driver's license, passing the written test at age 17. ID.

         Plaintiff told Dr. Pickholtz he was unable to work because he could not “see as well” and could not “type fast.” (Tr. 233). He saw a psychologist when he was in school, and was placed in “adjusted classes for slow learners”. (Tr. 233). Dr. Pickholtz noted Plaintiff's pace during the evaluation was below average, and his persistence was average. (Tr. 234). He had no indications of anxiety. Id. Plaintiff reported he repeatedly checked whether the toilets were flushed, writing checks, and his letters and numbers. Id. He did this for an hour per day. Id.

         Plaintiff reported past work at “Am Tech” for 10 years as a full time accountant, and that he left due to lack of work. (Tr. 235). Prior to that he worked for Sentinel Consumer Products for seven years as an operator extruder. Id. He was also laid off from that job due to lack of work. Id. “[O]nce in a while”, he received complaints about the pace of his work. Id.

         On examination, Dr. Pickholtz noted Plaintiff was “a little bit slow in responding”, but he was compliant and “had very little difficulties in terms of understanding and responding to the questions and directives presented to him”. (Tr. 235). His speech was easily understood, logical, coherent, relevant, and goal-directed, but his rate of speech was “somewhat slow”. Id. His overall cognitive functioning was in “the low average range, at the upper end.” (Tr. 235-36). His affect was appropriate, and mood was euthymic. Id. Plaintiff reported symptoms consistent with an obsessive/compulsive disorder (“OCD”), such as “checking things all the time”, and “spend[ing] an hour a day at least checking numbers and letters.” (Tr. 236). This interfered with work in his past. Id.

         Dr. Pickholtz noted Plaintiff's ability to recall long-term history and recall five objects after twenty minutes were within the low average range. (Tr. 236). He estimated Plaintiff's intelligence fell within the low average range. Id. Plaintiff's full-scale IQ was 89, within the low average range of functioning. (Tr. 238). His pace and persistence during testing were average. (Tr. 239). Dr. Pickholtz noted Plaintiff reported symptoms “consistent with an obsessive/compulsive disorder” and observed:

The impact of his current psychiatric complaints and symptoms relative to work functioning comparable to the type of work he did in the past appears to be somewhat impaired but not preclusive of work and I think would improve with medications and treatment for OCD.

(Tr. 239). Dr. Pickholtz assessed OCD, an unspecified personality disorder related to perfectionistic and avoidant features, and an unspecified neurocognitive disorder, mild, related to meningitis. (Tr. 239-40).

         For his functional assessment, Dr. Pickholtz opined Plaintiff's overall capacities to understand, remember, and carry out instructions “for work comparable to the type of work he did in the past appear[ed] to be slightly impaired at worst.” (Tr. 240). Regarding attention, concentration, persistence, and pace, Dr. Pickholtz opined Plaintiff's “to perform 1 to 3 step tasks for work comparable to the type of work he did in the past appears to be somewhat impaired at worst primarily as a result of his slowness in terms of visual motor coordination and manual dexterity which may improve with treatment for OCD.” Id. His abilities to relate to coworkers and supervisors “appear[ed] to be slightly impaired at worst”. Id. His ability to respond to work pressures comparable to past work were “somewhat impaired at worst and may improve with future treatment for his OCD.” Id.

         State Agency Reviewing Psychologists

         In August 2015, state agency reviewing physician Cynthia Kampschaefer, Psy.D., reviewed Plaintiff's records and offered a mental residual functional capacity assessment. (Tr. 64-65). She opined Plaintiff was not significantly limited in the ability to: carry out short and simple instructions, maintain attention and concentration for extended periods, perform activities within a schedule, sustain an ordinary routine without special supervision, work in coordination with others without being distracted or distracting, make simple work-related decisions, and complete a normal workday and workweek without interruptions from psychologically based symptoms. (Tr. 64). He was moderately limited in the ability to carry out detailed instructions. Id. Dr. Kampschaefer explained Plaintiff could “complete simple and more complex tasks that do not require much speed.” (Tr. 65). Dr. Kampschaefer opined Plaintiff was not significantly limited in his ability to: interact appropriately with the general public, ask questions, accept instructions, respond appropriately to criticism, and maintain socially appropriate behavior. Id. She noted Plaintiff was moderately limited in his ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, explaining: “Clmt is slow to respond. Has [history] of checking things all the time and this did interfere with work in the past.” Id. Finally, she opined Plaintiff was not significantly limited in his ability to be aware of normal hazards and take normal precautions, travel in unfamiliar places, or use public transportation, and the ability to set realistic goals and make plans independently of others. Id. She explained: “[Claimant] speaks and moves slowly. His ability to perform 1 to 3 step tasks for work appears somewhat impaired.” Id. She answered “No” to a question regarding whether there were other more restrictive opinions about Plaintiff's limitations or restrictions. (Tr. 65-66). In a separate section of the state agency Disability Determination Explanation, ...

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