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Yanich v. Commissioner of Social Security Administration

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

June 6, 2019

MOLLY ANNE YANICH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION & ORDER

          KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Molly Anne Yanich (“Yanich”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying her application for Supplemental Security Income (“SSI”). Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of the parties. Doc. 11.

         For the reasons explained below, the Commissioner's decision is AFFIRMED.

         I. Procedural History

         Yanich filed her application for SSI in July 2013, alleging a disability onset date of January 1, 2013. Tr. 34, 332. She alleged disability based on the following: memory problems, hypoplastic left heart syndrome, migraine headaches, “ADD, ” learning disability, anxiety/depressed mood disorder, asthma, and hypothyroidism. Tr. 362. After denials by the state agency initially (Tr. 195) and on reconsideration (Tr. 209), Yanich requested an administrative hearing (Tr. 174). A hearing was held before an Administrative Law Judge (“ALJ”) and, on August 31, 2015, the ALJ determined that Yanich was not disabled. Tr. 213-220. Yanich appealed, and the Appeals Council remanded her case back to the ALJ based, in part, on new and material evidence Yanich submitted. Tr. 226-228. Upon remand, the ALJ held a second hearing. Tr. 55-106. On June 7, 2017, the ALJ issued a second decision and determined that there are jobs that exist in significant numbers in the national economy that Yanich can perform, i.e. she is not disabled. Tr. 31-48. Yanich requested review of the ALJ's decision by the Appeals Council (Tr. 277) and, on May 25, 2018, the Appeals Council denied review, making the ALJ's June 7, 2017, decision the final decision of the Commissioner. Tr. 1-4.

         II. Evidence

         A. Personal and Vocational Evidence

         Yanich was born in 1994 and was 18 years old on her alleged onset date. Tr. 47. Her vocational history is described in detail below.

         B. Relevant Evidence[1]

         Yanich was born with Hypoplastic Left Heart Syndrome (HLHS), which means that the left ventricle of her heart did not function. She required three corrective surgeries by the time she was four years old, including open heart surgery at birth. Tr. 530, 703. It is believed that her HLHS caused her to have cognitive and behavior disorders. E.g., Tr. 136, 530, 703.

         2010: In January 2010, Yanich and her mother visited the Child and Family Counseling Center of Westlake for family counseling with psychiatrist Dr. Hussein. Tr. 611, 509. Yanich was being treated for attention deficit hyperactivity disorder (“ADHD”) due to her mother's and her school teacher's reports of inattention, forgetfulness, and disorganization. Tr. 611. Her grades had declined. Tr. 611. Her anxiety was under control. Tr. 611. She was diagnosed with anxiety disorder and ADHD and prescribed medication. Tr. 611.

         In February, Dr. Hussein changed Yanich's ADHD medication and in March, her teachers had noticed improved attentiveness. Tr. 613, 615. Her anxiety was mild and she had no depression. Tr. 613.

         Yanich and her mother continued to see Dr. Hussein regularly and medication adjustments were made as needed. E.g., Tr. 614, 616, 618, 652-653. In October she was paying better attention at school. Tr. 628. Upon exam, Dr. Hussein noted that she “smiles spontaneously” and had an appropriate affect. Tr. 628. She was medication compliant and had no side effects. Tr. 628. No. medication changes were made. Tr. 628.

         2011: In January 2011, it was reported that some inattentiveness persisted but Yanich was not as anxious. Tr. 654. She was medication compliant and had no side effects. Tr. 654. Her medication dosage was increased. Tr. 654.

         In February 2011, when Yanich was in eleventh grade, she had cognitive testing using the Wechsler Abbreviated Scale of Intelligence (“WASI”), which resulted in a full scale IQ of 81, in the low average range. Tr. 441. School psychologist K. Suhadolnik, M.A. noted a previous score of 95 in 2002 and concluded that the 2011 score was possibly “a low estimate of [Yanich's] cognitive ability.” Tr. 441-442. Academic achievement testing showed basic reading skills in the low average range; average skills in reading comprehension, reading fluency, and written expression; and mathematics skills “significantly below the average range.” Tr. 462-463. Yanich struggled with regular education content and required comprehension checks throughout the class period. Tr. 462. She did not show initiative, seek help when needed, exhibit interest in subject/vocational areas, or work at appropriate speed. Tr. 453. She had middling stamina. Tr. 453. She did arrive on time, attend regularly, complete her work on time, communicate and cooperate with others appropriately, follow directions and classroom rules, stay on task, show respect for the rights and property of others, and accept responsibility for her own behavior. Tr. 453. She continued to need special accommodations: tests were read to her; she had double time to take tests; she was given preferential seating away from distractions and near instructors; and she was given “modified tests (reduced multiple choice options).” T. 454.

         On February 28, Yanich and her mother saw Dr. Hussein. Yanich had improved focus and organizational skills and was medication compliant with no side effects. Tr. 629.

         In May, Dr. Hussein assessed Yanich as baseline with no complaints. Tr. 630. In November, it was reported to Dr. Hussein that some teachers said Yanich was not paying enough attention in school; Dr. Hussein increased her ADHD medication. Tr. 622. Upon exam, she had a constricted affect. Tr. 622.

         2012: In January 2012, Yanich's mother came alone to the visit with Dr. Hussein and reported that Yanich was not participating in classroom discussions and was hyperactive and distracted at home. Tr. 623. Dr. Hussein added a medication. Tr. 623. The next month, Yanich had improved focus and had started getting better grades. Tr. 624. She was medication compliant, had no side effects, and Dr. Hussein stated that her affect was “smiles.” Tr. 624.

         In an April visit with Dr. Hussein, Yanich was “focusing well with minimal anxiety” and denied any depression or medication side effects. Tr. 625. She had a “full-range” affect. Tr. 625. In August, Dr. Hussein assessed her anxiety and ADHD to be “at baseline.” Tr. 626.

         In December 2012, when Yanich was in twelfth grade, her Individualized Education Program (“IEP”) identified her as qualifying for continued special education services due to ADHD, anxiety disorder, and dysthymic disorder. Tr. 462. She was also enrolled in a one-year administrative assistant program at Polaris Career Center (“Polaris”) secondary to her interest in pursuing a receptionist/secretarial position. Tr. 464. Her teachers at Polaris indicated that Yanich has a hard time following directions. Tr. 462. When given an assignment, she just sat there because she did not understand what she was supposed to do. Tr. 462. Per her IEP, she participated in “a combination of resource room, general education, and inclusion settings for all high school academic requirements due to her need for additional support in mathematics and her weak attention and memory skills.” Tr. 462. She continued to have various modifications and accommodations: tests were read to her, double time for test taking, preferential seating away from distractions and close to the instructor, verbal cues for on task behavior, modified tests with a reduction in objective choices, and modified curriculum to ability level. Tr. 463. The IEP also stipulated that, despite not having passed the math and science portions of the Ohio Graduation Test, Yanich would be “excused from the consequences of not passing” these portions. Tr. 468-471.

         2013: In January 2013, Yanich's mother saw Dr. Hussein and reported that the family had decided to take Yanich off her ADHD medication about two weeks prior because she was “too intense” on it. Tr. 627, 567. Now, Yanich did not want to go to school partly due to anxiety. Tr. 627. Dr. Hussein switched her medication to the antidepressant Zoloft. Tr. 627. The next month, Yanich was happier, less anxious, and more talkative. Tr. 601. Notes from her teachers reflected a positive change in her mood and no problems with inattention. Tr. 601. She had no academic issues. Tr. 601. Upon exam, she was alert and oriented, with “affect smiles more.” Tr. 601.

         In February, Yanich saw neurocardiologist Neil Friedman, MBCHB, for a follow up for her headaches.[2] Tr. 567. Upon exam, she was friendly and cooperative, “but still tends to be quiet and reserved.” Tr. 568. Her “mental status [was] normal and age appropriate, with clear and coherent speech[, ]” although she tended to avoid eye contact. Tr. 568.

         In April, Yanich and her mother saw Dr. Hussein. Yanich was still having some anxiety symptoms. Tr. 602. Her Zoloft dosage was increased. Tr. 602. Dr. Hussein recommended Yanich have “neuro psych” testing, noting that Yanich's last testing was done six years ago. Tr. 602.

         On May 2, 2013, Yanich saw Jennifer Haut, Ph.D., at the Cleveland Clinic for a neuropsychological evaluation. Tr. 509.[3] At the time, Yanich was in 12th grade and participated in vocational education at Polaris to become an administrative assistant. Tr. 510. She received special education services pursuant to an Individualized Education Program (“IEP”) and received a variety of modifications and accommodations. Tr. 510. She had received a failing grade at Polaris for her third quarter. Tr. 510. Yanich stated that the course was too difficult for her; her teachers reported that she was capable of success but lacked motivation. Tr. 510. Yanich's mother stated that Yanich had significant difficulty understanding directions and remembering the required steps to complete a task and that she often became stuck in class because she did not know what steps to take next. Tr. 510. She did not complete her assignments at school. Tr. 509. Her mother reported that Yanich lacked flexibility, had difficulty expressing her feelings, and could be stubborn, which impacted her social interactions. Tr. 510.

         Dr. Haut administered the Wechsler Intelligence Scale test with the following results: full scale IQ of 82 (12th percentile, low average range); verbal comprehension index of 96 (39th percentile, average range); perceptual reasoning index of 75 (5th percentile, borderline range); working memory index of 83 (13th percentile, low average range); and processing speed index of 86 (18th percentile, low average range). Tr. 511. She was given the Wechsler Memory Scale test, which showed an auditory memory index of 70 (2nd percentile) and a visual memory index of 61 (<1st percentile); her nonverbal memory was in the 2nd percentile, her immediate memory index was in the <1st percentile; and her delayed memory index was in the 1st percentile. Tr. 512. Dr. Haut wrote that Yanich demonstrated “intact (average)” performance on a measure of sustained attention, obtained while on her customary medication. Tr. 511, 513. Dr. Haut summarized that Yanich's memory testing showed moderately low overall auditory verbal memory and extremely low overall nonverbal memory. Tr. 512. Dr. Haut observed that, throughout the testing, Yanich was polite, calm, made good eye contact, and had fluent, normal speech. Tr. 510, 512.

         In conclusion, Dr. Haut wrote that Yanich's “performance on measures of auditory attention and working memory was generally average to low average and consistent with her intellectual capabilities.” Tr. 513. Yanich was “able to encode and retain new information under some circumstances but supports are necessary.” Tr. 514. Her longstanding pattern of stronger verbal compared with nonverbal abilities and her particular academic difficulties in math suggested relatively greater right hemisphere dysfunction, not uncommon in children with medical issues such as congenital heart disease that impacts or potentially impacts neurocognitive development. Tr. 513. Dr. Haut opined that Yanich may appear unmotivated as a result of not being certain of what was required of her due to memory issues. T. 514. She would benefit from the following accommodations or supports: more repetition of new material; a monitored pace; shorter learning intervals interspersed with longer breaks; and strategies for adapting to learning new materials (e.g., recognition cues, stories rather than lists). Tr. 514. She “strongly recommended” counseling/psychotherapy; however, due to Yanich's resistance to this treatment, she may be more responsive to intervention from a rehabilitation team. Tr. 514.

         In June 2013, Yanich's mother went alone to the appointment with Dr. Hussein and reported that Yanich has been calmer and less agitated. Tr. 603. She was at home resting; she had been staying up most nights and waking up late. Tr. 603. She had an upcoming training for an appropriate job placement. Tr. 603.

         On September 3, Yanich's mother called Dr. Hussein to say that Yanich's motivation was low, she mostly wanted to stay at home, and her mother asked to taper the Zoloft dosage. Tr. 603. Dr. Hussein agreed and her Zoloft dosage was decreased. Tr. 603. Two weeks later, Yanich reported that her primary care physician had increased the dosage on her hypothyroid medications, which caused her tiredness. Tr. 604. She denied depression. Tr. 604. Her mood was anxious, her affect “smile, ” her thoughts clear and coherent, and her insight and judgment fair. Tr. 604.

         On September 30, Yanich returned to Dr. Friedman; her exam findings were the same as her prior visit, except that her eye contact had improved. Tr. 574.

         In October, after she had completed high school, Yanich was placed at a daycare center for ten days of work training and job coaching.[4] Tr. 545-546, 745. According to Dr. Schaerfl's report, Yanich did not get offered a position after her training period and she recited the daycare center's exit evaluation of Yanich: Yanich “performed well enough on many indices” including attendance, appearance, accepting direction, quality of work for some tasks and playing well with children. Tr. 747. Performance standards were not met for: following directions well enough; showing self-direction (only 25% of the time); working quickly enough; showing initiative when not occupied; asking how she can help others; and being assertive. Tr. 747. The job coach observed that she needed more experience, noting she was “too shy and timid to show the leadership needed” for the job. Tr. 747.

         On November 13, Yanich and her mother saw Dr. Hussein. Yanich was “more awake and alert” on lowered medication dosages, was not depressed, and was “managing her anxiety well.” Tr. 605. Upon exam, she was alert, had a euthymic mood, and intact concentration. Tr. 605.

         On November 20, state agency reviewing psychologist Karla Voyten, Ph.D., opined that Yanich could understand and remember simple instructions, complete simple, routine tasks in a work setting in which she was not required to work at a fast pace or meet high production quotas, and adapt to a few routine changes in the work setting. Tr. 191-192.

         2014: In January 2014, Yanich had a second vocational placement at the same daycare center working with a different job coach. Tr. 748. According to Dr. Schaerfl's report, the job coach observed improvement during the two-week session and concluded that Yanich was “capable of doing the work if she was given time to build her confidence” but recommended counseling to build her confidence and assertiveness. Tr. 755. She accepted direction quickly, understood and followed direction, displayed a “very good” work ethic, and had no problem with frustration tolerance. Tr. 753-754. On the other hand, she worked independently only 60 percent of the time, lacked the ability to be assertive, and she hesitated to take on a task unless told. Tr. 754-755. Her quiet manner was more effective when working with the younger children but a detriment when working with the older children. Tr. 754. The daycare center did not offer her a job at the end of her placement. Tr. 755.

         On February 3, 2014, Yanich and her mother saw Dr. Hussein; there were no significant symptoms reported, Yanich was medication compliant, and she denied any side effects. Tr. 656. Upon exam, she was well engaged, had a euthymic mood, a full range affect, coherent thoughts, and an intact memory. Tr. 656. Dr. Hussein assessed her as baseline and recommended she slowly taper off Zoloft. Tr. 656.

         On February 26, state agency reviewing psychologist Tonnie Hoyle, Psy.D., affirmed Dr. Voyten's opinion. Tr. 205-206.

         In March, Yanich returned to Dr. Friedman. Her exam findings were the same as her prior visit; her eye contact continued to improve. Tr. 689.

         In April, it was reported to Dr. Hussein that Yanich was tolerating the decreased Zoloft dose well and had no anxiety or depression. Tr. 634. Dr. Hussein advised she continue to taper off, then discontinue, her Zoloft. Tr. 634.

         In June 2014, Yanich had a vocational placement at a different daycare center working with a teacher for one month. Tr. 416-418, 755. She received a “satisfactory” rating in 28 of 30 itemized skills, including: performs acceptable amount of work, has the ability to analyze problems/reach acceptable solutions, shows flexibility and adaptability, and works at a consistent pace. Tr. 417. She received a “needs improvement” rating in “asks for clarification” and “follows procedures for calling off work, ” due to the fact that her mother had called in for her the one day she was absent. Tr. 417. The teacher assessed her as ready for “Individual Placement (independent/competitive work in non-supervised setting)” and recommended she continue to gain experience working with children. Tr. 418. She had shown much improvement in working with children since the beginning of the assessment and was taught many different tasks (changing a diaper, feeding, nap time). The teacher recommended she continue to gain experience working with children, by either possibly volunteering at a child care center or babysitting before obtaining a job at a child care center. Tr. 418. Alternatively, Yanich could obtain a job in an environment where children frequented, such as a toy store or children's themed restaurant, to gain work experience and more experience working with children. Tr. 418.

         2015: In January 2015, Yanich had a fourth vocational placement, working at a bank operations center to gain clerical and secretarial skills. Tr. 413, 757. Twenty-five days into the placement, she had “caught on quickly” to all but one of the jobs she experienced and was able to complete 6 of 7 jobs with little or no assistance. Tr. 414. She improved each day. Tr. 414. She completed her one-step mailing tasks at a rate at or below other workers. Tr. 414. She had no difficulty learning the tasks assigned to her, but she found the work boring. Tr. 414, 415. She had no enthusiasm for her work and wanted to do the tasks she liked but not the ones she did not like. Tr. 415. She needed improvement in most areas of motivation and work attitude. Tr. 413. She had decreased interest in working during the final weeks of her placement and she was not offered a job. Tr. 415, 761.

         Over the course of several days in October through December 2015, Yanich underwent an assessment with clinical psychologist Caroline Schaerfl, Ph.D. Dr. Schaerfl interviewed Yanich and her parents; reviewed medical, educational, and vocational records; and administered various assessments, including: the Woodcock-Johnson IV Tests of Cognitive Abilities (“WJ-IV”); selected mathematics subtests from the Wechsler Individual Achievement Test, Third Edition (“WIAT-III”); and an assessment for ...


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