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Rogers v. Berryhill

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

May 22, 2019

SCOTT ROGERS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          JUDGE BENITA Y. PEARSON

          REPORT AND RECOMMENDATION

          JONATHAN D. GREENBERG, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Scott Rogers, (“Plaintiff” or “Rogers”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”).[2] 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 VACATED and the case REMANDED for further consideration consistent with this decision.

         I. PROCEDURAL HISTORY

         In January 2016, Rogers filed an application for SSI, alleging a disability onset date of September 30, 2014 and claiming he was disabled due to autism, ADHD, anxiety, and depression. (Transcript (“Tr.”) 10, 155, 191.) The applications were denied initially and upon reconsideration, and Rogers requested a hearing before an administrative law judge (“ALJ”). (Tr. 10, 105-107, 111-112, 115.)

         On August 11, 2017, an ALJ held a hearing, during which Rogers, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 27-74.) On December 6, 2017, the ALJ issued a written decision finding Rogers was not disabled. (Tr. 10-26.) The ALJ's decision became final on May 15, 2018, when the Appeals Council declined further review. (Tr. 1-6.)

         On July 16, 2018, Rogers filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 12, 13, 14.) Rogers asserts the following assignment of error:

(1) The ALJ did not properly consider the medical opinions of treating psychiatrist George Tesar, M.D.

         (Doc. No. 12 at 8.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Rogers was born in February 1980 and was 37 years-old at the time of his administrative hearing, making him a “younger” person under social security regulations. (Tr. 20.) See 20 C.F.R. §§ 404.1563 & 416.963. He has at least a high school education and is able to communicate in English. (Id.) He has past relevant work as a drafter, telephone solicitor, bank teller, and store laborer. (Id.)

         B. Relevant Medical Evidence[3]

         On July 22, 2011, Rogers underwent a neuropsychological evaluation with Darlene Floden, Ph.D., due to suspicion of attention deficit hyperactivity disorder (“ADHD”). (Tr. 238-240.) He described early problems with hyperactivity and inattention, as well as difficulty interpreting social cues. (Tr. 238.) Rogers also reported that, at age 11, he exhibited “major anger issues, ” was diagnosed with depression and/or anxiety, and was treated with Zoloft. (Id.) He graduated high school with a 1.97 GPA and attended community college for two years. (Tr. 239.) While attending college classes, he worked part time as a bank teller where he “made mistakes and forgot procedures.” (Id.) Rogers then transferred to New York Institute of Technology, where it took him another 5 years to obtain his bachelors degree in architecture. (Id.)

         On examination, Dr. Floden noted as follows: “His interpersonal manner was initially withdrawn but he became more interactive as the interview progressed. During testing, he was friendly and cooperative. Mood appeared mildly dysthymic and he demonstrated a normal range of affect. Speech was fluent and without evidence of significant word finding difficulties. Comprehension for general conversation and test instructions appeared to be intact. He was able to provide details of his history in a clear and coherent manner and demonstrated good recall of recent and remote events.” (Tr. 239.) Dr. Floden concluded Rogers' general intellectual abilities were in the average range but noted he showed evidence of poor concentration, problems with concept formation and problem solving, perseverative response tendencies, and “mild retrieval problems with unorganized verbal information and poor memory monitoring.” (Id.) She further indicated that Rogers' responses to standardized questionnaires “suggest a person with significant thinking and concentration problems, marked depressive experiences, social isolation and estrangement, unusual preoccupation with physical functioning, hypervigilance and suspiciousness in his relations with others, and problematic levels of anxiety.” (Tr. 240.)

         Dr. Floden found that “formal neuropsychological evaluation revealed evidence of frontal dysfunction in the context of otherwise intact cognitive and motor skills.” (Id.) She concluded that “while some aspects of his history seem consistent with a diagnosis of ADHD, other elements of his behavior and presence of long-standing psychiatric diagnoses may be indicative of other developmental issues.” (Id.) Dr. Floden recommended Rogers consult with psychiatry and neurology. (Id.)

         On September 16, 2011, Rogers presented to neurologist Sumit Parikh, M.D., for evaluation of “long standing history of sleep problem, anxiety issues, difficulty with memory and concentration, [and] keratoconus.” (Tr. 247-250.) On examination, Dr. Parikh noted poor eye contact and slow speech with an initially “slow” mental status. (Tr. 249.) He found Rogers' problems included, among other things, ADD/ADHD, anxiety/depression, and difficulty with creating friendships. (Id.) He concluded “it is difficult to assess at this point if his symptoms are solely due to his underlying psychiatry illness or has some underlying genetic component contributing as well.” (Tr. 250.) Dr. Parikh also suggested Rogers might have underlying high-functioning autistic spectrum disorder. (Id.) He referred Rogers to psychology and psychiatry. (Id.)

         Several years later, on July 1, 2014, Rogers underwent an initial psychiatric evaluation with George Tesar, M.D. (Tr. 299-304.) He stated he had been employed as a draftsman since January of that year, and was concerned he was slow and making mistakes at work “because of failure to pay attention.” (Tr. 299.) Rogers also reported a history of anxiety, depression, and sleep disturbance. (Tr. 300.) His medications included Adderall and Fluoxetine (i.e., Prozac). (Id.) On mental status examination, Rogers was cooperative and agreeable with good eye contact but an anxious, avoidant/hesitant posture with the appearance of temporal muscle wasting. (Tr. 300-301.) His behavior was calm but awkward, and his movements were stiff, hesitant, and slow. (Id.) Dr. Tesar also found Rogers had an anxious mood; an anxious, constricted and blunted affect; and slow, irregular, halting speech. (Tr. 301.) Rogers' cognition was intact, his judgment was appropriate, and his insight was fair. (Id.) Dr. Tesar diagnosed autism spectrum disorder; executive function disorder contributing to appearance of ADHD; schizoid personality traits; and non-verbal learning disability. (Id.) He assessed a Global Assessment of Functioning[4](“GAF”) of 60, indicating moderate symptoms; and increased Rogers' Adderal dosage. (Tr. 301-302.)

         On September 29, 2014, Rogers returned to Dr. Tesar with continued complaints of memory impairment at work. (Tr. 305-309.) Dr. Tesar noted it was “difficult to understand exactly what compromised his work, in part because of its complexity (or his description of it which was hard to follow) [but] whatever it is, i.e., the deficit, is longstanding and unresponsive, or only partially responsive to typical treatment for ADHD.” (Tr. 305.) Mental status examination findings were the same as Rogers' previous visit. (Tr. 305-306.) Dr. Tesar found Rogers' “problem was not fully explained by ADHD” and concluded “the bottom line is that [the medication] he's taking now may be the best we can do.” (Id.) He assessed a GAF of 58 indicating moderate symptoms, and advised Rogers to continue on his current medication regimen. (Tr. 307.)

         The following month, Rogers underwent a psychological/developmental examination with Leslie Markowitz, Psy.D., at the Cleveland Clinic Center for Autism. (Tr. 253-270.) Rogers' mother also attended and provided some historical context. (Id.) Specifically, Mrs. Rogers reported that Rogers showed difficulty concentrating and communicating from an early age. (Tr. 253-254.) She also noted Rogers experienced difficulties with peer interactions throughout childhood. (Tr. 254.) Rogers himself reported deficits in language, communication, social skills, and following instructions. (Tr. 255.) He also complained of “difficulties with being nervous, self-conscious, worrying, not having friends, preferring to be alone rather than with others, ” decreased energy, and forgetfulness. (Tr. 257.) Dr. Markowitz summarized her conclusions as follows:

Scott presents with a history of difficulties with social communication and social interaction difficulties. He struggles with reciprocal interactions and conversations with others and prefers to be alone. He has a history of difficulties with eye contact, using gestures, and pointing when younger to supplement his speech. Scott continues to struggle with these during adulthood, as well as understanding others' non-verbal behaviors through reading their body language and facial expressions. Scott has a longstanding history of difficulties with developing and maintaining interactions with others as well. He does not have a history of repetitive motor mannerisms or adherence to inflexible routines, or struggles with transitions. Scott displays some intense interests, such as being highly interested in wrestling when younger, and more recently in pets. He also displays some sensory sensitivities and preferences (e.g., over-sensitivity to heat/cold, sounds, touch, and light). These difficulties have been present since he was very young, and are causing significant difficulties across environments (e.g., home and work). Thus, the data obtained for this evaluation combined with reported history and current presentation consistently support a diagnosis of Autism Spectrum Disorder.

         (Tr. 258-259.) Dr. Markowitz diagnosed the following: (1) autism spectrum disorder, without intellectual impairment; with accompanying language impairment (social pragmatic); requiring support for deficits in social communication; requiring support for restricted, repetitive behaviors; (2) ADHD, predominantly inattentive presentation; and (3) anxiety and depression symptoms with a heavy somatic focus and decreased initiation behavior. (Tr. 259.) She concluded Rogers would “benefit from pursuing employment with an agency that understands his strengths and weaknesses (e.g., slower processing, trouble with social engagement/interaction), thus allowing him to be successful.” (Id.) Dr. Markowitz further found Rogers “would benefit from a position where expectations were clear and not abstract; for instance, directing him to pick between a few options when working on an architecture project to ensure that he understands the expectation.” (Tr. 259-260.)

         On November 25, 2014, Rogers returned to Dr. Tesar for follow up. (Tr. 310-314.) Dr. Tesar noted that Rogers' “current [medication] regimen is optimal” and found that “in general, things are stable.” (Tr. 310.) Rogers expressed a desire to return to architecture work but “seem[ed] to have difficulty accepting his limitation- too slow at work.” (Id.) Dr. Tesar encouraged him to “create realistic expectations for himself.” (Id.) On examination, Rogers was cooperative and agreeable with an anxious facial expression, good eye contact, and the appearance of temporal muscle wasting. (Tr. 311.) His behavior was calm but awkward and his movements were “stiff, hesitant to initiate, but once he starts talking it's occasionally difficult to cut in.” (Id.) Dr. Tesar also found Rogers had an “okay” mood; an anxious, constricted and blunted affect; and “normal to fast, ” irregular, halting speech. (Id.) Rogers' cognition was grossly intact, his judgment was appropriate, and his insight was fair. (Tr. 311-312..) Dr. Tesar assessed a GAF of 65, indicating mild symptoms; and advised Rogers to continue on his medications. (Tr. 312.)

         The record reflects Rogers did not return to Dr. Tesar until a year and a half later, on March 9, 2016. (Tr. 315-319.) Rogers reported he had moved to New York City and worked with a one-man architect business, but “was too slow” and “was only there a couple days.” (Tr. 315.) He stated he came back to Cleveland in September 2015 and was applying for disability. (Id.) Mental status examination findings were the same as his previous visit in November 2014. (Tr. 316.) Dr. Tesar diagnosed autism spectrum disorder; ADHD, inattentive type; general anxiety disorder; delayed sleep-phase syndrome; schizoid personality traits; and non-verbal learning disability. (Tr. 316-317.) He assessed a GAF of 58 indicating moderate symptoms, reduced Rogers' Adderall dosage, and referred him for an occupational therapy evaluation. (Id.)

         Rogers returned to Dr. Tesar on August 10, 2016. (Tr. 345-347.) He stated he had “noticed” the reduction in Adderall and requested an increase in dosage. (Tr. 345.) His mother indicated she had “noticed some worsening of [his] organizational skills and follow-through when the dose was lowered.” (Id.) Dr. Tesar declined to increase the dosage, finding “it's best to stay at the current dose and take drug holiday to address putative tolerance rather than compounding the problem by increasing.” (Id.) Mental status examination findings were the same as his previous visits. (Tr. 345-346.) Dr. Tesar assessed a GAF of 56 indicating moderate symptoms, and continued Rogers on his medications. (Tr. 347.)

         On that same date, Dr. Tesar completed a questionnaire regarding Rogers' mental functioning, entitled “Medical Statement Regarding Autism and Related Disorders.” (Tr. 321-322.) He concluded Rogers had qualitative deficits in reciprocal social interactions, verbal and nonverbal communication, and imaginative activity; and marked restrictions in his repertoire of activities and interests, activities of daily living, social functioning, and concentration, persistence, and pace. (Id.) Dr. Tesar further found Rogers was markedly limited in his abilities to: (1) remember locations and work-like procedures; (2) understand and remember short and simple instructions; (3) understand, remember, and carry out detailed instructions; (4) maintain attention and concentration for extended periods; (5) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (6) work in coordination with and proximity to others without being distracted by them; (7) make simple work-related decisions; (8) complete a normal workday and work week without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; (9) ask simple questions or request assistance; (10) accept instructions and respond appropriately to criticism from supervisors; (11) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; (12) maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; and (13) set realistic goals or make plans independently of others. (Id.) In the comments section of the questionnaire, Dr. Tesar stated “patient has made repeated good-faith, but unsuccessful, efforts to work in his chosen field.” (Tr. 322.)

         On September 20, 2016, Rogers presented to Jonathan Klarfeld, M.D., for a preventative health exam. (Tr. 360-370.) He complained of difficulty with memory, particularly “learning new things and includes manual labor practices as well. However, the latter is less problematic.” (Tr. 360.) Rogers also reported difficulty waking in the morning, as well as occasional double vision. (Tr. 362.) Examination findings were normal. (Tr. 362-363.)

         Rogers returned to Dr. Tesar on November 23, 2016. (Tr. 371-377.) He again expressed concern that the current dose of Adderall was not as effective. (Tr. 371.) On examination, Rogers was cooperative and agreeable with an anxious facial expression and good eye contact. (Tr. 372.) His behavior was calm but awkward and his movements were appropriate. (Id.) Dr. Tesar also found Rogers had an “okay” mood; euthymic, constricted and blunted affect; and irregular, halting speech. (Id.) Rogers' cognition was grossly intact, and his judgment and insight were appropriate. (Tr. 373.) Dr. Tesar assessed a GAF of 60 indicating moderate symptoms, and adjusted Rogers' Adderall dosage. (Id.)

         On May 31, 2017, Rogers returned to Dr. Tesar with complaints of decreased energy, which he attributed to the change in his Adderall dosage. (Tr. 383-392.) Dr. Tesar advised “some form of regular aerobic exercise” and recommended a reduction in his Fluoxetine dosage. (Tr. 383.) Examination findings were largely the same as his previous visit, with the exception of an anxious (as opposed to euthymic) affect. (Tr. 385.) Dr. Tesar assessed a GAF of 60, indicating moderate symptoms. (Tr. 386.)

         On August 10, 2017, Dr. Tesar completed an “Off Task/Absenteeism Questionnaire.” (Tr. 403.) He concluded Rogers was likely to be off task at least 20% of the workday due to “frequent difficulty remembering or fully comprehending instructions.” (Id.) Dr. Tesar also opined Rogers would be absent from work about four times per month as a result of impairments or treatment. (Id.)

         On that same date, Dr. Tesar completed a “Medical Statement concerning Depression, Bipolar, and Related Disorders.” (Tr. 404.) He identified diagnoses of autism spectrum disorder, ADHD, and anxiety. (Id.) Dr. Tesar further indicated Rogers suffered from depressive disorder characterized by depressed mood, decreased energy, and difficulty concentrating or thinking. (Id.) He opined Rogers had marked limitations in (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace at tasks; and (4) adapting or managing himself. (Id.) Finally, Dr. Tesar concluded Rogers' disorder was “serious and persistent” and there was evidence of both (1) medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and diminishes the symptoms of his mental disorder; and (2) marginal adjustment, i.e., minimal capacity to adapt to changes in his environment or to demands that are not already part of his daily life. (Id.)

         C. State Agency Reports

         On February 8, 2016, Rogers underwent a consultative examination with psychologist Herschel Pickholtz, Ed.D. (Tr. 289-297.) He stated he was being treated for ADHD, anxiety, and depression, and had been given a diagnosis of autism. (Tr. 290.) Rogers indicated he experienced (1) moderate depression “once a month lasting 2 days per occurrence, ” and (2) mild anxiety symptoms once per month lasting 2 days per occurrence. (Tr. 291.) He also stated that his autism causes communication problems, including “trouble expressing himself and understanding social situations.” (Tr. 292.) On mental status examination, Dr. Pickholtz found Rogers was oriented to time, place and person with appropriate eye contact; constricted affect; “a little bit sluggish and slow” psychomotor activity; logical, coherent, relevant and goal directed thought content; and “low average” capacities for associative thinking and cognitive levels of functioning. (Tr. 293-294.) He noted Rogers did not appear to have difficulty understanding and responding to questions during the evaluation, and found his pace and persistence fell within the average range. (Tr. 293.) Dr. Pickholtz concluded Rogers' estimated level of intelligence fell within the low average range, as did his capacity to recall a sequence of numbers. (Tr. 294.)

         Dr. Pickholtz diagnosed (1) a history of autism-spectrum disorder; (2) unspecified depressive disorder, in partial remission, mild; (3) attention-deficit/hyperactivity disorder, predominantly inattentive, mild to moderate; and (4) unspecified anxiety disorder, mild. (Tr. 295-296.) In terms of the four broad areas of mental functioning, Dr. Pickholtz found Rogers' “capacities to understand, remember, and carryout instructions for unskilled and skilled labor appears to be slightly impaired at worst.” (Tr. 296.) In terms of attention, concentration, persistence, and pace, Dr. Pickholtz found Rogers' “abilities to perform 1 to 3-step tasks comparable to the type of work he did in the past appears to be somewhat impaired at worst but not preclusive of work.” (Id.) He further concluded Rogers' “current levels of social interaction appear to be somewhat impaired at worst as long as he stays on his current medications.” (Id.) Finally, in terms of his ability to respond to work pressures, Dr. Pickholtz found Rogers' “overall abilities to handle his daily demands and expectations . . . is somewhat impaired at worst but not preclusive of work and he needs a position which does not require a lot of detail and high levels of attention and concentration.” (Id.) He further found Rogers “would do better in a position which did not require a significant amount of social interaction with others.” (Id.)

         On February 24, 2016, state agency psychologist Paul Tangeman, Ph.D., reviewed Rogers' records and completed a Psychiatric Review Technique (“PRT”) and Mental Residual Functional Capacity (“RFC”) Assessment. (Tr. 83-87.) In the PRT, Dr. Tangeman found Rogers was moderately limited in his activities of daily living and in maintaining social functioning and concentration, persistence, and pace. (Tr. 83.)

         In the Mental RFC, he concluded Rogers had moderate limitations in his abilities to: (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) work in coordination with or in proximity to others without being distracted by them; (4) complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; (5) interact appropriately with the general public; (6) accept instructions and respond appropriately to criticism from supervisors; (7) respond appropriately to changes in the work setting; and (8) set realistic goals or make plans independently of others. (Tr. 84-86.) In the narrative sections of the form, Dr. Tangeman explained as follows:

[Due to] the claimant's ADHD, he would need detailed instructions written out for him. * * * The claimant is able to complete simple repetitive tasks. He would do best in a work environment that does not require a lot of detail or high levels of attention and concentration. * * * The claimant reported that he has no friends and only interacts with his family he lives with. At past jobs, his relationships with other coworkers was superficial. The claimant would do best with superficial interaction with other coworkers and supervisors. * * * The claimant relies on family for things like grocery ...

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