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Golden v. Berryhill

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

February 28, 2019

LEWIS A. GOLDEN, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting COMMISSIONER OF Social Security ADMINISTRATION, Defendant.

          JEFFREY J. HELMICK JUDGE

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT UNITED STATES MAGISTRATE JUDGE

         Plaintiff Lewis A. Golden (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). ECF Dkt. #1. In his brief on the merits, Plaintiff asserts that the administrative law judge (“ALJ”) failed to properly evaluate the mental health opinions and to account for all of their limitations in determining his mental residual functional capacity (“MRFC”). ECF Dkt. #11. For the following reasons, the undersigned recommends that the Court AFFIRM the decision of the ALJ and dismiss the instant case in its entirety with prejudice.

         I. FACTUAL AND PROCEDURAL HISTORY

         Plaintiff protectively filed applications for DIB and SSI on November 22, 2013 alleging disability beginning October 8, 2013 due to a stroke that affected his right side, high blood pressure, problems with speech and memory, insomnia, and sleep apnea. ECF Dkt. #10 (“Tr.”) at 72, 222-245.[2] The Social Security Administration (“SSA”) denied his applications initially and upon reconsideration. Id. at 72-127, 131-140. Plaintiff requested a hearing before an ALJ, and the hearing was held on January 9, 2017. Id. at 32, 145-146.

         On February 8, 2017, the ALJ issued a decision denying Plaintiff's applications for DIB and SSI. Tr. at 15-26. Plaintiff filed a request for review of the ALJ's decision before the Appeals Council, but the Appeals Council denied that request on December 11, 2017. Id. at 1-9. On January 29, 2018, Plaintiff filed the instant suit seeking review of the ALJ's decision. ECF Dkt. #1. On May 7, 2018, Plaintiff filed a brief on the merits, and Defendant filed her merits brief on July 20, 2018. ECF Dkt. #s 11, 14. On August 3, 2018, Plaintiff filed a reply brief. ECF Dkt. #15.

         II. RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE

         A. Relevant Medical Evidence

         The undersigned points out that Plaintiff's claims of ALJ error concern only his mental health conditions. ECF Dkt. #11. Thus, a review of the medical evidence concerning Plaintiff's physical health is not necessary, except to note that Plaintiff suffered a transient ischemic attack (“TIA”) and cerebral vascular accident (“CVA”) on October 8, 2013 and was hospitalized for a month. Tr. at 317. His coordination was abnormal on December 5, 2013 and he had right hemiparesis. Id. Plaintiff was in physical therapy from January 2014 through July 2014 and notes indicate that he had a gait problem, back pain that worsened with ambulation, abnormal muscle tone and coordination, right lower extremity weakness, edema, and tenderness. Id. at 767-1202, 1233, 1241, 1280.

         Concerning his mental health, Plaintiff cites to the psychological evaluation that was conducted by Dr. Wuebker, Ph.D. on Apil 15, 2014 at the request of the agency. Tr. at 690. At the evaluation, Plaintiff informed Dr. Wuebker that he had a high school diploma, but he had attended both regular and special education classes and earned above average grades. Id. at 691. He also had one and one half years of college education. Id. Plaintiff reported that he had prior work as a factory welder and a sheet metal worker, and he last worked in March of 2013. Id. He explained that the job ended due to a lack of work. Id. He also indicated that since his CVA, he could not think well or stay as focused as he had before. Id.

         Dr. Wuebker noted that Plaintiff was 100% understandable in his speech and he found that Plaintiff “did not otherwise display language impairment, receptively or expressively.” Tr. at 692. Plaintiff reported to Dr. Wuebker that he had problems finding words and he was not as fast as he used to be. Id. He also stated that he had no mood or anxiety issues, and Dr. Wuebker found no evidence of a thought disorder. Id. at 693. Dr. Wuebker further found that Plaintiff was oriented to time, place and situation, and testing showed that Plaintiff was in the: 50th percentile on the WAIS-IV information subtest; 37th percentile in the WAIS-IV Digit Span subtest; 16th percentile for Similarities subtest on the WAIS-IV; average range on the WMS-IV Visual Memory Index; low average range in Visual Working, Immediately and Delayed Memory Index scores; and in the borderline range in the Auditory Memory Index. Id. at 692-693. Plaintiff's overall full-scale IQ was 87 on the WAIS-IV, which was indicative of low average intellectual functioning. Id. at 693.

         Dr. Wuebker also found that Plaintiff had adequate insight and judgment and was aware of his cognitive issues. Tr. at 694. Plaintiff scored in the 16th percentile on the WAIS-IV Comprehension subtest. Id. After reconciling the test results, Dr. Wuebker found that Plaintiff's general cognitive ability was within the low average range of intellectual functioning; his verbal and nonverbal reasoning skills, verbal comprehension, ability to sustain attention, concentration and mental control were in the average range; and his ability to process simple or routine visual material without making errors was in the borderline range. Id. at 695-696.

         In conclusion, Dr. Wuebker diagnosed Plaintiff with mild neurocognitive disorder, and he opined that Plaintiff was in the low average range in understanding, remembering and carrying out instructions. Tr. at 699. He found that Plaintiff had “some issues” with pace, concentration and attention, and he opined that, “[i]t would be likely his cognitive issues would likewise impact his abilities in performing multi-step tasks.” Id. Dr. Wuebker further opined that Plaintiff exhibited no attitudes or behaviors that would indicate problems getting along with supervisors and co-workers, and he would be able to “respond mentally and emotionally appropriately to work setting pressures commensurate to his abilities.' Id. at 700.

         The only other record cited by Plaintiff as support for his asserted claim of ALJ error is to the assessment of state reviewing psychologist Dr. Hill, who reviewed the medical evidence at the reconsideration stage on August 23, 2014 and found that Plaintiff had a mild restriction in his daily living activities, no difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence or pace. Tr. at 103. She further opined that Plaintiff was not significantly limited or there was no evidence to support a limitation in: remembering locations and work-like procedures; understanding, remembering, and carrying out very short and simple instructions; sustaining an ordinary routine without special supervision; working near others without being distracted by them; making simple work-related decisions; socially interacting; being aware of hazards; traveling to unfamiliar places or using public transportation; or in setting realistic goals and making plans independently of others. Id. at 107-108. Dr. Hill additionally opined that Plaintiff was moderately limited in: understanding, remembering, and carrying out detailed instructions; maintaining attention and concentration for extended periods of time; in performing activities within a schedule, maintaining regular attendance, or being punctual; in responding appropriately to changes in the work setting; and in completing a normal workday or workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods. Id. at 106-107, In explaining Plaintiff's moderate limitations concerning detailed instructions, Dr. Hill indicated that Plaintiff had borderline range auditory memory and returning to work would likely cause fatigue and lead to slightly increased memory problems. Tr. at 107. She opined that Plaintiff was able to understand, remember and follow 1-4 step tasks. Id. She also opined that Plaintiff may need extra time and repetition in learning new things or may require hands-on demonstrations. Id. In explaining her moderate limitations for Plaintiff in sustaining concentration and persistence, Dr. Hill referred to Plaintiff's WAIS-IV PSI score of 79 and indicated that he would work at a slower than average pace and fatigue would be a factor due to the CVA, which could decrease attention and processing speed. Id. at 108. Dr. Hill opined that Plaintiff would be able to perform 1-4 step tasks with no more than moderate pace or production quotas. Id. She further indicated that “[o]verall, his MH-mental health] condition did not impose more than minimal limitations on his functioning at this time.” Id.

         B. Relevant Testimonial Evidence

         At the ALJ hearing, Plaintiff testified that he was 45 years old, 6'3" tall, 350 pounds, and he lived with his girlfriend. Tr. at 36. When the ALJ asked Plaintiff to describe the problems that kept him from working full-time, he testified that the stroke that he suffered caused right leg and arm problems, impacted his stamina and thought ...


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