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Knapp v. Berryhill

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

May 13, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         Plaintiff, Paul Raymond Knapp, (“Plaintiff” or “Knapp”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying his applications for 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 AFFIRMED.


         In June 2015, Knapp filed an application for POD, DIB, and SSI, alleging a disability onset date of June 15, 2013 and claiming he was disabled due to memory problems following a brain surgery, a brain tumor, memory loss, seizures, and a left leg limp. (Transcript (“Tr.”) 206, 210, 234.) The applications were denied initially and upon reconsideration, and Knapp requested a hearing before an administrative law judge (“ALJ”). (Tr. 127, 145, 157.)

         On September 7, 2017, an ALJ held a hearing, during which Knapp, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 36.) On September 21, 2017, the ALJ issued a written decision finding Knapp was not disabled. (Tr. 7.) The ALJ's decision became final on May 30, 2018, when the Appeals Council declined further review. (Tr. 1.)

         On August 1, 2018, Knapp filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 13, 15, 16.)

         Knapp asserts the following assignment of error:

(1) The residual functional capacity determination is unsupported by substantial evidence because the ALJ improperly excluded disabling portions of the favorably weighed opinion from consultative psychologist Dr. Dallara.

(Doc. No. 13.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Knapp was born in March 1963 and was 54 years-old at the time of his administrative hearing, making him a “person closely approaching advanced age” under social security regulations. (Tr. 18.) See 20 C.F.R. §§ 404.1563(d) & 416.963(d). He has a high school education and is able to communicate in English. (Id.) He has past relevant work as a computer technician. (Id.)

         B. Medical Evidence [2]

         On September 14, 2007, Knapp visited primary care physician James Bailey, M.D., requesting a doctor's note to return to work after having a seizure. (Tr. 291.) Knapp indicated he “went out” during the episode and it was unlike his prior seizures. (Id.) He went to the hospital following this seizure and his potassium level was low. (Id.) On examination, Knapp had a normal gait, no tremor, and full strength in his upper and lower extremities. (Id.) Dr. Bailey refilled Knapp's Dilantin and referred him to a neurosurgeon. (Id.) Dr. Bailey and Knapp also “discussed driving limitations” and Dr. Bailey concluded Knapp could return to work if he was able to arrange being in a carpool. (Id.)

         On July 26, 2010, Knapp saw neurologist Selwyn-Lloyd McPherson, M.D. (Tr. 353.) Knapp reported he had been having memory problems since his brain surgery. (Id.) He indicated stress exacerbated his memory problems and described daily short term memory issues. (Id.) On examination, Knapp had normal attention, concentration, judgment, and thought content. (Tr. 355.) His gait was normal, he had no tremor, and full strength in his upper and lower extremities. (Tr. 356.) Dr. McPherson diagnosed Knapp with memory impairment and mild memory disturbance. (Id.) He advised Knapp to continue taking his Dilantin and ordered several tests to evaluate him for dementia. (Id.)

         Knapp underwent several diagnostic tests on August 10, 2010. (Tr. 351.) His EEG and PG 300 testing were normal. (Id.) A Connors' CPT was abnormal and “supportive of inattentiveness.” (Id.) His mini mental status examination was normal except for a low Gama IQ score of 95. (Id.) This score placed him in the 37th percentile. (Id.) Knapp returned to Dr. McPherson on August 31, 2010 to review these results. (Id.) Dr. McPherson observed Knapp had improved cognitive function on Adderall and renewed Knapp's Dilantin and Adderall prescriptions. (Tr. 351-352.)

         Knapp returned to Dr. McPherson on October 5, 2010. (Tr. 349.) Dr. McPherson again noted Knapp had improved cognitive function with medication. (Id.) On November 10, 2010, Knapp reported he found his Adderall helpful and requested an increased dosage. (Tr. 347.) He denied any seizure activity. (Id.)

         On May 20, 2015, Knapp visited Dr. Bailey, reporting he stopped seeing Dr. McPherson due to a change in health insurance. (Tr. 323.) He continued to take Dilatin and reported no seizures for a “long time.” (Id.) Knapp also reported depression. (Id.) Dr. Bailey refilled Knapp's Dilantin and ordered a colonoscopy. (Tr. 324.) Knapp returned to Dr. Bailey on November 18, 2015 and denied any recent seizures. (Tr. 320.) On examination, he had full strength in his upper and lower extremities, normal coordination, and normal gait. (Tr. 321.) Dr. Bailey refilled Knapp's Dilantin. (Id.)

         Knapp saw Dr. McPherson on December 5, 2015. (Tr. 305.) He reported stress exacerbated his memory deficits. (Tr. 307, 308.) He denied any weakness in his legs or joint pain, but endorsed fatigue, low energy, and nervousness. (Tr. 310.) On examination, Knapp had delayed memory for both recent and remote events, delayed attention, but normal concentration, judgment, and thought content. (Tr. 313.) He had a normal gait, no tremor, and normal muscle tone. (Tr. 313, 315.) He also had full strength in his upper and lower extremities. (Tr. 314.) Dr. McPherson renewed Knapp's Dilantin. (Tr. 315.)

         On January 30, 2017, Knapp saw Dr. Bailey, reporting no seizure activity in a “long time.” (Tr. 317.) Dr. Bailey renewed Knapp's Dilantin prescription. (Id.) On examination, Knapp had full strength in his upper and lower extremities, a normal gait, and normal coordination. (Tr. 318.)

         On July 13, 2017, Knapp underwent a diagnostic assessment at Coleman Professional Services with social worker Karla Lang, LISW. (Tr. 358.) Knapp indicated his father and brother had encouraged him to seek counseling due to worsening symptoms since a 2003 brain tumor operation. (Id.) He described significant issues with memory, paranoia, and focus. (Id.) Knapp reported he had withdrawn from his family because he believed they laughed at him, were against him, and did not like him. (Tr. 359.) His father, who was in attendance at the appointment, stated these beliefs were unfounded. (Id.) Knapp relayed he did not think he could work due to his memory impairment and a concern with how others would treat him. (Tr. 361.) He also reported seizures, anxiety, and difficulty adapting to change. (Tr. 364, 366.) On examination, Knapp displayed a logical thought process, unremarkable thought content, but slowed responses and recall. (Tr. 370, 371.) Ms. Lang diagnosed dysthymic disorder, generalized anxiety disorder, and adjustment disorder. (Tr. 374.)

         Knapp returned to Coleman Professional Services for counseling with Lisa Manderino on July 31, 2017. (Tr. 377.) He reported significant stress and anxiety. (Id.) Knapp conveyed skepticism that counseling would improved his symptoms because he believed his issues were physiological in nature. (Tr. 378, 380.) He reported he found social situations stressful and this “social anxiety has prevented him from seeking work just as much as his cognitive impairment.” (Tr. 380.) Upon examination, he appeared anxious but was cooperative. (Tr. 378.) He agreed to see a counselor every two weeks. (Tr. 380.)

         C. State Agency Reports

         1. Mental Impairments

         On November 4, 2015, Knapp underwent a consultative examination with psychologist Robert F. Dallara, Ph.D. (Tr. 295.) Knapp reported “difficulties working due to problems with his memory.” (Id.) He relayed his memory problems began after a 2003 brain tumor operation. (Tr. 296.) Beyond his memory issues, he “denied any history of difficulties completing his work, relating to others, or coping with work demands due to mental or emotional difficulties.” (Id.)

         During the examination, Knapp made adequate eye contact and was cooperative. (Id.) His “thinking was generally logical and clear but he would lose his train of thought at times.” (Id.) Knapp described depression and nervousness. (Tr. 297.) He was unable to count from one to forty by threes, but “did fair at serial subtraction.” (Id.) He could recall one item out of three after a five-minute period. (Id.) Dr. Dallara administered the WAIS-IV and Knapp obtained a verbal comprehension score of 92, perceptual reasoning score of 86, working memory score of 77, processing speed score of 81, and a full scale IQ score of 82. (Id.) His full scale IQ score fell into the low-average range. (Tr. 297-298.) He displayed short-term memory deficits. (Tr. 298.) Dr. Dallara also administered the WMS-IV to assess Knapp's memory function. (Id.) Knapp's “delayed memory index fell in the extremely low range; while the remainder of the indexes fell in the borderline range and nevertheless did suggest the possibility of retention deficits.” (Tr. 298.)

         Based upon this evaluation, Dr. Dallara diagnosed cognitive disorder and depression and assigned Knapp a Global Assessment of Functioning[3] (“GAF “) score of 55. (Id.) He provided the following opinion on Knapp's abilities and limitations:

Describe the claimant's abilities and limitations in understanding, remembering, and carrying out instructions.
The claimant reported average grades in a regular education classroom setting in high school. He also states he obtained an associate degree. His presentation during the examination as well as the WAIS-IV suggests intellectual functioning in the extremely low range. He would be expected to be able to understand instructions in a work setting consistent with low [average] intellectual abilities. However he may have some difficulties remembering or carrying out simple one or two-step instructions.
Describe the claimant's abilities and limitations in maintaining attention and concentration, and in maintaining persistence and pace, to perform simple tasks, and to perform multi-step tasks.
Paul did not report a pattern of leaving work due to emotional or mental difficulties. There was no direct evidence during the examination to suggest impairment to his persistence or pace. At times he did forget the task at hand and required reinstruction. This may prompt performance concerns by others.
Describe the claimant's abilities and limitations in responding appropriately to supervision and to coworkers in a work setting.
The claimant made an essentially unremarkable social presentation during the examination. No. information was provided to indicate inappropriate comportment during his work history. However due to his cognitive issues and depression he may have some difficulties relating to others including fellow workers and supervisors.
Describe the claimant's abilities and limitations in responding appropriately to work pressures in a work setting.
The claimant denied treatment by a psychologist, psychiatrist, or other mental health professional. He did not report a pattern of inability to adjust to workplace demands, nor did he describe a history of mental or emotional deterioration in response to work exposure. However due to his depression and cognitive issues, he may have some difficulties withstanding stress and pressures associated with day-to-day work activity.

(Tr. 299.)

         On November 11, 2015, state agency psychologist Marjorie Kukor, Ph.D., reviewed Knapp's medical records and completed a Psychiatric Review Technique (“PRT”) and Mental Residual Functional Capacity (“RFC”) Assessment. (Tr. 73-74; 77-79.) Dr. Kukor concluded Knapp had (1) mild restrictions in activities of daily living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, and pace; and (4) no episodes of decompensation. (Tr. 73.) As for his mental RFC, Dr. Kukor concluded Knapp was moderately limited in his abilities to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) 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; (4) interact appropriately with the general public; and (5) respond appropriately to changes in the work setting. (Tr. 77-78.) Dr. Kukor found no significant limitations in Knapp's abilities to (1) remember locations and work-like procedures; (2) understand, remember, and carry out very short and simple instructions; (3) perform activities without a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) work in coordination with or in proximity to others without being distracted by them; (5) make simple work-related decisions; (6) ask simple questions or request assistance; (7) accept instructions and respond appropriately to criticism from supervisors; (8) get along with coworkers or peer without distracting them or exhibiting behavioral extremes; (9) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; (10) be aware of normal hazards and take appropriate precautions; (11) travel in unfamiliar places or use public transportation; and (12) set realistic goals or make plans independently of others. (Id.) Dr. Kukor explained the basis of her decision as follows:

[Claimant] could understand and remember 1-3 step tasks which are not detailed. For more extensive instructions, [claimant] will ...

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