United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION & ORDER
KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE
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.
reasons explained below, the Commissioner's decision is
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.
Personal and Vocational Evidence
was born in 1994 and was 18 years old on her alleged onset
date. Tr. 47. Her vocational history is described in detail
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
February, Yanich saw neurocardiologist Neil Friedman, MBCHB,
for a follow up for her headaches. 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.
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.
2, 2013, Yanich saw Jennifer Haut, Ph.D., at the Cleveland
Clinic for a neuropsychological evaluation. Tr.
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.
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.
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.
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.
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.
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.
October, after she had completed high school, Yanich was
placed at a daycare center for ten days of work training and
job coaching. 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.
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.
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.
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.
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.
February 26, state agency reviewing psychologist Tonnie
Hoyle, Psy.D., affirmed Dr. Voyten's opinion. Tr.
March, Yanich returned to Dr. Friedman. Her exam findings
were the same as her prior visit; her eye contact continued
to improve. Tr. 689.
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.
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.
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.
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 ...