United States District Court, N.D. Ohio, Eastern Division
Solomon Oliver, Jr.
REPORT AND RECOMMENDATION
R. KNEPP II UNITED STATES MAGISTRATE JUDGE.
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
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).
Background and Testimony
was born in June 1954, making him 61 years old on his alleged
onset date. See Tr. 142.
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
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).
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).
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.
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.
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.
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
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).
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
Agency Reviewing Psychologists
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, ...