United States District Court, N.D. Ohio, Western Division
LEWIS A. GOLDEN, Plaintiff,
NANCY A. BERRYHILL, Acting COMMISSIONER OF Social Security ADMINISTRATION, Defendant.
JEFFREY J. HELMICK JUDGE
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT UNITED STATES MAGISTRATE JUDGE
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.
FACTUAL AND PROCEDURAL HISTORY
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. 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,
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.
RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE
Relevant Medical Evidence
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.
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.
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.
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.
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.
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.
Relevant Testimonial Evidence
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