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Haslam v. Berryhill

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

June 20, 2019

MIKAL HASLAM, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Jonathan D. Greenberg United States Magistrate Judge.

         Plaintiff, Mikal Haslam (“Plaintiff” or “Haslam”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying his applications for Child's Insurance Benefits (“CIB”), Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), [2] and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.


         In October 2015, Haslam filed applications for CIB, POD, DIB, and SSI, alleging a disability onset date of April 11, 1994 and claiming he was disabled due to learning disability, depression, and difficulty sleeping. (Transcript (“Tr.”) at 11, 362.) The applications were denied initially and upon reconsideration, and Haslam requested a hearing before an administrative law judge (“ALJ”). (Tr. 11.)

         On September 14, 2017, an ALJ held a hearing, during which Haslam, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 29-51.) On November 15, 2017, the ALJ issued a written decision finding Plaintiff was not disabled. (Tr. 11-28.) The ALJ's decision became final on May 7, 2018, when the Appeals Council declined further review. (Tr. 1-5.)

         On July 11, 2018, Haslam 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.) Haslam asserts the following assignments of error:

(1) The ALJ erred in failing to find that Plaintiff met/equaled Listing 12.05B. This finding lacks the support of substantial evidence because Plaintiff had significantly subaverage general intellectual functioning evidenced by a full scale IQ score of 70 or below, significant deficits in adaptive functioning currently manifested by marked limitations in two areas of mental functioning, and evidence regarding both Plaintiff's current intellectual and adaptive functioning and history of his disorder demonstrated the conclusion that the disorder began prior to his attainment of age 22.
(2) The ALJ erred in assigning limited weight to the opinion of Dr. Anil Parikh, M.D., Plaintiff's treating psychiatrist. This finding lacks the support of substantial evidence because the record as a whole, including, but not limited to, objective observations from mental status examinations, Plaintiff's ongoing subjective complaints, Plaintiff's testimony, and school records support the opinion of Dr. Parikh.

(Doc. No. 13.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Haslam was twenty-three (23) years-old at the time of his administrative hearing, making him a “younger” person under social security regulations. (Tr. 21.) See 20 C.F.R. §§ 404.1563 & 416.963. He has a high school education and is able to communicate in English. (Id.) He has past relevant work as a janitor. (Id.)

         B. Relevant Evidence[3]

         1. School Records

         The record reflects an Individualized Education Plan (“IEP”) was implemented for Haslam on January 20, 2000, when he was five years old and in kindergarten. (Tr. 598-603.) It was noted Haslam had difficulties with communication skills and basic class work. (Tr. 599.) In particular, Haslam's teachers noted that “the Test of Minimal Articulation Competence showed profound severity, ” explaining Haslam “had difficulty with substitutions and omissions of numerous sounds.” (Id.) Haslam was found to be eligible for speech therapy services. (Tr. 601.)

         An IEP review was conducted on January 11, 2001, when Haslam was in the first grade. (Tr. 590-597.) His teachers noted (in relevant part) as follows:

Mikal has primarily worked on improving speech intelligibility. . . . He is using sounds correctly in short, structured sentences about 50% of the time. Progress has been slow with little carryover into spontaneous conversation. In addition, there appears to be language difficulties as well but standardized testing is difficult due to his intelligibility. Mikal has academic problems in class.

(Tr. 590.) Several months later, in May 2001, an Evaluation Team Report (“ETR”) was completed, as a part of which Haslam underwent a number of assessments. (Tr. 486-504.) Among other things, Haslam was administered the Wechsler Intelligence Scale for Children-Third Edition, in order to assess his cognitive functioning. (Tr. 488-489.) The record reflects Haslam scored a Full Scale IQ of 70, placing him in the 2nd percentile. (Tr. 488.) His level of intellectual functioning was determined to be within the Borderline range. (Id.)

         Haslam also underwent the Woodcock Johnson III Tests of Achievement to evaluate his academic performance. (Tr. 490-491.) The results of this test found Haslam's performance was in the low to very low range. (Id.) The ETR noted Haslam was able to recognize some of his upper and lower case letters, but was unable to read sight words such as “cat” and “on.” (Id.) In terms of his math skills, he was able to do some basic addition problems but had difficulty with simple subtraction. (Id.)

         Lastly, Haslam underwent the Behavior Assessment System for Children (“BASC”). (Tr. 493-494.) This test indicated elevated scores in the area of school problems (i.e., learning problems), as well as “concerns in the areas of somatization, leadership, and study skills” and in “the Adaptive Skills Composite areas of withdrawal and leadership.” (Id.) It was noted that Haslam did “not readily describe inner experiences related to emotion” and was “rather tense” “with considerable hostility arising from his competitive sensitivities towards peers.” (Id.) The examiner, school psychologist Katrina Jordan, Ed.S., concluded that Haslam's “social/emotional status may negatively affect his educational performance.” (Id.)

         As part of this ETR, Haslam's speech pathologists submitted an evaluation, in which they noted Haslam's “articulation skills are . . . significantly below those of his typically developing peers” and found his “speech is unintelligible to most listeners.” (Tr. 496.) It was concluded Haslam would benefit from a “significantly adjusted curriculum with major emphasis on functional living skills.” (Tr. 498.) The school district determined Haslam had a disability, which was identified as “Mental Retardation (Developmental Handicap).” (Tr. 499.)

         On May 14, 2001, an IEP was developed for Haslam for the following school year. (Tr. 610-619.) Therein, Haslam's speech pathologists noted Haslam had shown progress since his last IEP but “continue[d] to have difficulty using and recalling vocabulary words.” (Tr. 611.) Haslam's teachers also noted he had difficulty (1) reading on a kindergarten or first grade level; (2) adding and subtracting grade appropriate math problems; (3) writing 6 or more letters words and writing a simple sentence; and (4) knowing his right from left. (Tr. 613.) It was also observed that Haslam “require[d] much one on one assistance from the teacher.” (Id.) Haslam was found eligible for special services, including extended time for tests and assignments, a reader, selective seating, individualized instruction, and speech therapy. (Tr. 619.)

         An IEP review was thereafter conducted in April 2002, when Haslam was in the second grade. (Tr. 620-636.) Of particular relevance, Haslam's teachers noted as follows:

Mikal's speech at the conversational level is most often unintelligible especially to unfamiliar listeners. . . . Mikal's vocabulary skills are still below age/grade level due to difficulties with recall skills. Mikal has difficulty with many phonological skills that interfere with reading and articulation skills in the classroom. Speech and language intervention is necessary for Mikal to improve the above speech and language areas.

(Tr. 630.) Haslam was found eligible for special services, including individual and small group instruction, as well as intervention specialist assistance. (Tr. 635.) On April 15, 2002, the school district found Haslam had a disability, which was identified as “Mental Retardation (DH).” (Tr. 604-605.) It was determined he would receive education in a regular class room with special education/related services provided outside the regular class at least 21% and no more than 50% of the time. (Id.)

         Another IEP review was conducted on March 26, 2003, when Haslam was in the third grade. (Tr. 656-676.) His teachers found Haslam was “presently functioning at ¶ 1st grade level in reading, written language and mathematics.” (Tr. 656.) They also noted he “tries to do everything and is a joy to have in class.” (Id.) At this time, Haslam's speech was “still difficult to understand due to a severe phonological disorder.” (Tr. 666.) His vocabulary skills were also below age/grade level. (Id.) Haslam continued to be found eligible for special services, including speech therapy. (Tr. 673.) The school district again found Haslam had a disability, which was identified as “Mental Retardation (DH).” (Tr. 643-644.) It was determined he would receive education in a regular class room with special education/related services provided outside the regular class for less than 21% of the time. (Id.)

         An ETR was completed on April 1, 2004, when Haslam was in the fourth grade. (Tr. 542-567.) Haslam's disability condition was identified as “Cognitive Disability.” (Tr. 544.) As part of this ETR, Haslam underwent intelligence testing, which revealed a Full Scale IQ of 71. (Tr. 545.) This score placed him in the borderline range of intelligence. (Id.) Haslam was also administered the Woodcock Johnson III Tests of Achievement, which measured his academic performance. (Tr. 547-548.) The results of this test were summarized as follows:

Results indicate that Mikal's academic performance is currently low in math and math calculation skills[, ] and very low in reading, written language and written expression. Mikal was able to recognize his letters and to also decode many one syllable sight words. In his math skills, Mikal was able to compute addition problems in the horizontal position. He had difficulty subtracting one digit numbers and adding and subtracting numbers in the vertical position. In his writing skills, Mikal was able to correctly write his name and made earnest attempts to write sentences independently. However, he was unable to write a short sentence when given a picture and three words. Mikal has difficulty using correct grammar and correct spelling when writing his sentences.

(Tr. 547-548.) Haslam's teachers also noted that he was below grade level in reading, writing, and mathematics. (Tr. 549-551.)

         With regard to his speech and language skills, the ETR noted that “current language testing revealed that Mikal continues to have deficits in both receptive and expressive language and his skills are well below the skills of his same age/grade peers.” (Tr. 553-555.) It was also noted that Haslam was “extremely difficult to understand, ” and that he had begun to display dysfluencies in his conversational speech. (Tr. 553-554.) Behavioral testing found limitations in several adaptive skill areas, including social skills, leadership, and study skills. (Tr. 555, 557, 564.)

         Another ETR was completed in March 2007, when Haslam was in the sixth grade. (Tr. 512-528.) The Report noted that Haslam received special education services, including math and language arts instruction “within a cross-categorical special education class.” (Tr. 519.) His most recent grades were Bs in math and language arts; a B- in science, and a C- in social studies. (Id.) Performance testing was conducted on March 16, 2007, which showed Haslam was at a below second grade level in reading and math. (Tr. 522-523.) He was exempted from participation in the Fourth Grade Ohio Proficiency Test and Fourth Grade Achievement Test. (Tr. 519.) The school psychologist, Michelle Hathorn, noted Haslam was a “very, very low functioning student.” (Tr. 524.) She stated he “demonstrates very poor intelligibility in his conversations, ” and “has a very difficult time in the area of reading.”[4] (Id.)

         The next ETR was completed in March 2013, when Haslam was in the twelfth grade. (Tr. 442-469.) The Report noted that, on April 5, 2012, Haslam's reading comprehension was assessed and found to be at ¶ 3rd grade level. (Tr. 446.) It further stated that, in October 2012, Haslam again underwent intelligence testing, which revealed a Full Scale IQ of 69. (Tr. 446-447.) At that same time, Haslam's adaptive behavior was assessed and found to be below average in multiple areas, including communication, social functioning, community use, functional academics, health and safety, and use of leisure time. (Tr. 452, 447.) Evaluators noted that Haslam “continues to exhibit significantly below average general intelligence, academic skills and adaptive behavior relative to other individuals of the same age.” (Tr. 448.) The results of the ETR were summarized as follows:

Mikal Haslam is an 18 year old, 12th grade student . . . He was previously identified as a student with a Cognitive Disability when he was 6 years old and has been receiving specially designed instruction throughout his educational career. Mikal's general intelligence, academic skills, and adaptive behavior was most recently formally assessed in October 2012. Results of that evaluation were very consistent with past testing. His general intelligence was measured to be within the borderline, or below average range, as compared to other students of the same age ..... Commensurate with his intellectual functioning, Mikal's academic skills were measured to be significant[ly] below average as compared to other students of the same age. School functioning also indicates that he is performing below age and grade level expectations in the classroom. He requires specially designed math and reading instruction and accommodations in the general education setting. Finally, Mikal's overall adaptive skills were deficit in multiple areas including communication, social functioning, community use, functional academics, health and safety and use of leisure time.
Mikal is currently employed as a custodial assistant at Firestone High School. He likes his job and is described by his supervisors as a great asset to the custodial staff at Firestone. He gets along well with teachers and other staff. He gets along well with other students as well. Mikal is able to perform many daily self-help skills independently including dressing, getting to school, cooking and eating. He [is] uncertain at this time as to where he will live once he has graduated from high school.

(Tr. 452.)

         Haslam's final twelfth grade report card showed that he graduated with a GPA of 3.014. (Tr. 435.) He was excused from the consequences of not passing the Ohio Graduation Test. (Tr. 445.)

         2. Medical Records

         On March 31, 2014, Haslam established treatment with psychiatrist Anil Parikh, M.D. (Tr. 734-738.) He complained of depression, anxiety, insomnia, decreased energy, social isolation, feelings of guilt, irritability, poor memory or concentration, and decreased motivation. (Tr. 734.) On examination, Haslam was cooperative with soft speech; a depressed, anxious, and blunted mood/affect; normal memory, and fair judgment and insight. (Tr. 737.) Dr. Parikh diagnosed major depressive disorder, single episode, moderate; and generalized anxiety disorder. (Id.) He assessed a Global Assessment of Functioning[5] (“GAF”) of 55, and prescribed Celexa. (Tr. 737-738.)

         The record reflects, in 2014, Haslam presented regularly to Dr. Parikh, certified nurse practitioner Julie Berg, C.N.P., and counselors Angela Sipos, M.A., Ed., P.C., and Julie Levine, L.P.C.C. (Tr. 717-723.) He complained of depressed mood, insomnia, fluctuation in weight and appetite, difficulty concentrating, fatigue, anxiety, and decreased motivation. (Id.) Haslam also reported social isolation, mood swings, irritability, and panic attacks. (Tr. 721, 719.) Examination findings generally revealed cooperative behavior, good eye contact, coherent and relevant speech, depressed and anxious mood, blunted affect, intact thought processes, no loose associations, fair concentration and attention, fair memory, and fair judgment and insight. (Tr. 717-723.) In addition, in April 2014, Ms. Levine noted Haslam “appeared to have cognitive deficits/lower intellectual functioning, and therefore difficulties expressing himself in therapy.” (Tr. 723.)

         Haslam's mental health symptoms fluctuated during 2014. Initially, he reported increased depression associated with various stressors, including not having a girlfriend and wanting to attend college. (Tr. 723.) In April and July 2014, he reported his medication was helping with his symptoms. (Tr. 722, 723.) In September, he indicated he had not taken his Celexa “for about a month now” and was “having some difficulty with depression [and] isolating himself.” (Tr. 721.) After he restarted his medication, Haslam denied depressive symptoms and reported he was “feeling better.” (Tr. 720, 718.) He also began to report increased socialization and motivation, noting he had plans to go bowling, to the movies, and on a date. (Tr. 720, 718, 717.) In November 2014, Ms. Levine noted that “medications have helped eliminate symptoms of anxiety/depression, and he appears to be coping and handling life stressors.” (Tr. 718.)

         Haslam continued to treat regularly with Dr. Parikh, Ms. Berg, Ms. Levine, and Ms. Sipos in 2015, and also presented to counselors Jessica Silvestri, M.S.Ed., and Amanda Lorkowski, P.C. (Tr. 703-716.) With some exceptions, examination findings were largely the same as the previous year, including calm and/or cooperative behavior, good eye contact, coherent and relevant speech, depressed and anxious mood, blunted or restricted affect, intact thought processes, no loose associations, fair concentration and attention, fair or intact memory, and fair judgment and insight. (Id.) In April 2015, however, Dr. Parikh noted poor eye contact, poor grooming, and poor concentration and attention. (Tr. 711.) In June 2015, Ms. Berg and Ms. Levine noted Haslam had “difficulties with his speech and comprehension.” (Tr. 709.) In November 2015, Dr. Parikh noted Haslam's mood was “very depressed” and his concentration and attention were poor. (Tr. 704.)

         Treatment records again reveal Haslam's depression and anxiety fluctuated over the course of the year. In January and February 2015, he reported his medication was helping to alleviate his symptoms, and expressed enthusiasm over a new girlfriend. (Tr. 714, 715.) In March, Haslam reported “difficulty with anxiety and worry regarding day to day activities and responsibilities, ” but noted his “concentration has improved.” (Tr. 714.) Later that month, and in April, he discussed how his “lack of friends, hobbies and pleasures in life” exacerbate his depression symptoms, but nonetheless reported his medication was helping to reduce symptoms. (Tr. 713, 712.) In May 2015, Haslam shared that he was bullied frequently while in school, and discussed that “past bullying is why [he] is quiet and will not make an effort to talk to people.” (Tr. 710.) In June and July, he complained of difficulty sleeping and “drama” both at home and at work. (Tr. 708.) Dr. Parikh prescribed Trazodone, and then increased the dosage of that medication in September when Haslam continued to complain of insomnia. (Tr. 708, 707.) In October, Haslam generally reported his medication was helping to reduce his symptoms. (Tr. 706, 705.) However, in November 2015, he described a “low mood” and reported his medications had not eliminated his symptoms. (Tr. 704.) In December, Ms. Levine noted Haslam appeared distressed, had a blunted affect, and was “minimally responsive.” (Tr. 703.)

         In 2016, Haslam presented to Dr. Parikh, Ms. Levine, Ms. Silvestri, counselor Jillian Newland, L.P.C., certified nurse practitioner Sandra Jones, C.N.P., and social worker Manon Paquet, L.I.S.W. (Tr. 724-727, 730-733, 748.) Examination findings were largely the same as the previous two years, including calm and/or cooperative behavior, good or appropriate eye contact, coherent and relevant speech, depressed and anxious mood, blunted or restricted affect, intact thought processes, no loose associations, fair concentration and attention, fair or intact memory, and fair or (sometimes) good judgment and insight. (Id.) In February 2016, Haslam “denied recent issues with anxiety/depression sharing medications have stabilized his symptoms. (Tr. 726.) The following month, however, he reported insomnia, irritability, poor concentration, anticipatory anxiety, feeling overwhelmed with worry, and difficulty with hopefulness and self-worth. (Tr. 725.) Ms. Newland noted Haslam “continues to perseverate on chronic pain difficulties and limitations in abilities.” (Id.)

         In May 2016, Haslam reported his symptoms were worsening. (Tr. 733.) Later that month, he reported some improvement in mood and coping with stress, but stated he continued to experience irritability, low-frustration tolerance, poor concentration, and perseverative worries. (Tr. 732.) In June, Ms. Silvestri noted Haslam “feels treatment has been helping to decrease frequency and severity of symptoms and improve hopefulness, ” but “acknowledge[s] ongoing anxiety and fearfulness of never feeling fully healthy and happy again.” (Id.) In September 2016, Haslam indicated he was “doing well on his medications.”[6] (Tr. 731.) In October, however, he stated he had “no motivation to do anything other than working, eating & sleeping.” (Tr. 730.) The following month, Haslam indicated his medications were “working well” and reported he was trying to get a full time position at his job. (Tr. 748.)

         On April 26, 2017, Haslam had a calm, quiet demeanor; restricted affect; and intact memory. (Tr. 747.) Ms. Levine described him as “minimally responsive.” (Id.) The following month, he returned to Dr. Parikh and reported he only took his medications on weekends. (Id.) Dr. Parikh noted depressed mood, blunted affect, appropriate eye contact, fair attention and concentration, fair memory, and good judgment and insight. (Id.) He advised Haslam to take his medications as prescribed. (Id.) Later that month, Haslam stated he was taking his medication as prescribed, but continued to complain of insomnia and poor motivation. (Id.) On June 21, 2017, Haslam again had a restricted affect and was minimally responsive. (Tr. 746.)

         On June 2, 2017, Dr. Parikh completed a Medical Source Assessment regarding Haslam's mental functioning. (Tr. 740-742.) Therein, he opined Haslam would have “noticeable difficulty (distracted from job activity) more than 20% of the work day or work week (i.e., more than one hour and up to two hours/day or one-half to one day/week)” performing the following activities: (1) remembering locations and work-like procedures; (2) understanding, remembering, and carrying out very short and simple instructions; and (3) interacting appropriately with the general public. (Id.) Dr. Parikh further found Haslam would not be able to perform the following activities on a regular, reliable and sustained schedule:

• Understanding, remembering, and carrying out detailed instructions;
• Maintaining attention and concentration for extended periods of time;
• Performing activities within a schedule, maintaining regular attendance, and/or being punctual within customary tolerances;
• Sustaining ordinary routine without special supervision;
• Working in coordination with or proximity to others without being distracted by them;
• Making simple, work-related decisions;
• Completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods;
• Asking simple questions or requesting assistance;
• Accepting instructions and responding appropriately to criticism from supervisors;
• Getting along with coworkers or peers without distracting them or exhibiting behavioral extremes;
• Maintaining socially appropriate behavior and adhering to basic standards of neatness and cleanliness;
• Responding appropriately to changes in the work setting;
• Being aware of normal hazards and taking appropriate precautions;
• Traveling in unfamiliar places or using public transportation;
• Setting realistic goals or making plans independently ...

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