United States District Court, N.D. Ohio, Eastern Division
ROBERT W. WALP, Plaintiff,
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
A. BARKER JUDGE
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT UNITED STATES MAGISTRATE JUDGE
Robert W. Walp (âPlaintiffâ) requests judicial review of the
final decision of the Commissioner of Social Security
Administration (âDefendantâ) denying his applications for
Disability Insurance Benefits (âDIBâ) and Supplemental
Security Income (âSSIâ). ECF Dkt. #1. In his brief on the
merits, Plaintiff asserts that the administrative law judge
(âALJâ) erred by: (1) determining that he had marked and not
extreme limitations in interacting with others; and (2)
determining that he had the mental residual functional
capacity (âMRFCâ) to occasionally and superficially interact
with co-workers. ECF Dkt. #11. For the following reasons, the
undersigned recommends that the Court AFFIRM the decision of
the ALJ and DISMISS Plaintiff's complaint in its entirety
FACTUAL AND PROCEDURAL HISTORY
filed applications for DIB and SSI on October 7, 2014
alleging disability beginning June 30, 2014 due to bipolar
disorder, depression, mood disorder, explosive disorder, and
chronic headaches. ECF Dkt. #10 (“Tr.”) at 85,
230, 262. The Social Security Administration
(“SSA”) denied his applications initially and
upon reconsideration. Id. at 155-160, 163-175.
Plaintiff requested a hearing before an ALJ, and the ALJ held
a hearing on May 17, 2017, where Plaintiff was represented by
counsel and testified. Id. at 60, 176. A vocational
expert (“VE”) also testified. Id.
16, 2017, the ALJ issued a decision denying Plaintiff's
applications for DIB and SSI. Tr. at 11-21. Plaintiff
appealed that determination to the Appeals Council and the
Appeals Council denied his request for review on February 16,
2018. Id. at 1-4.
April 19, 2018, Plaintiff filed the instant suit seeking
review of the ALJ's decision. ECF Dkt. #1. He filed a
merits brief on August 2, 2018 and Defendant filed a merits
brief on October 18, 2018. ECF Dkt. #s 11, 15. Plaintiff did
not file a reply brief.
RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE
RELEVANT MEDICAL EVIDENCE
Plaintiff's allegations of error concern only findings
and limitations relating to his mental impairments, the
undersigned will discuss the medical evidence relating only
to those impairments.
background, the record medical evidence shows that on June 2,
2009, Plaintiff presented to the emergency room for right
hand pain after he struck a car hood with his fist. Tr. at
364. A puncture wound was noted on his right fifth digit and
he was diagnosed with a hand contusion and hand injury.
Id. at 368.
November 1, 2009, Plaintiff arrived by ambulance to the
emergency room after cutting his left forearm upon learning
that his wife of 10 years was gay and she was leaving him for
a woman. Tr. at 338. When asked why he cut himself, Plaintiff
stated that he was trying to make a point. Id. When
he was told that he had to undergo a psychiatric evaluation
because of the cuts, he stated that he was not trying to kill
himself, but maybe he should have killed his wife.
Id. Plaintiff was described as agitated, anxious,
and angry about his marriage. Id. He was discharged
with a depression diagnosis, prescribed Keflex, and he was
referred to Valley Counseling. Id. at 345.
medical evidence of Plaintiff's mental impairments
relevant to the instant case shows that on September 21,
2014, Plaintiff underwent an initial psychiatric evaluation
with a nurse practitioner. Tr. at 395-398. His mental status
evaluation showed that he had intense eye contact, he was
agitated, had racing thought process, rapid speech, and he
was depressed and angry, but he had fair insight and
judgment. Id. Plaintiff reported that he was
aggressive as a child, but it was never a problem until 2009
when his father, who had raised him when his parents
divorced, died. Id. at 395. He stated that he was
not able to do MMA and boxing since then due to his
aggression and he had been losing jobs due to his anger.
Id. He also indicated that because he was losing
employment, the financial constraints caused arguments with
his girlfriend and he would break things in his home and he
had recently shook his girlfriend. Id. He reported
feeling increased guilt, poor sleep, not being able to sit
still, depression, and anger on a daily basis. Id.
His current medications were Celexa and Depakote.
Id. Plaintiff was diagnosed with mood disorder, not
otherwise specified, obsessive-compulsive personality
disorder traits, and rule-out intermittent explosive
disorder. Id. He was assigned a current global
assessment of functioning rating of 45, indicative of serious
symptoms. Id. He was prescribed Depakote DR and
referred to the Crisis Stabilization Unit for admission.
Id. at 397.
October 17, 2014, Plaintiff was referred by his primary
physician for a diagnostic assessment due to his poor temper
control. Tr. at 375. He reported no problems with depression
or sadness, but he was anxious and shaky, had anger and sleep
problems, and he was oppositional, impulsive and lost
interest quickly. Id. at 378-379. He reported no
psychosis, no substance abuse, and no traumatic stress.
Id. His current medications were Celexa and Prilosec.
Id. at 376. Plaintiff did not report having any
suicidal or homicidal ideations. Id. at 380. The
accompanying mental status examination indicated that
Plaintiff presented as well-groomed, with an average
demeanor, eye contact, and activity, clear speech, no
delusional thought content, no aggressive thought content or
hallucinations, a full affect with an anxious and angry mood,
average attention/concentration, and poor insight and
judgment. Id. at 380-381. He was described as
motivated, but a noted obstacle to his recovery was his
anger. Id. at 382. He was diagnosed with
intermittent explosive disorder, with a rule out of attention
deficient hyperactivity disorder and bipolar disorder.
Id. at 382.
thereafter self-referred and was admitted to Turning Point
Crisis Stabilization Unit on October 20, 2014 for his
increasing anger, poor sleep and numerous stressors. Tr. at
393. On that date, the Licensed Professional Counselor noted
that Plaintiff reported that he destroyed objects, such as
his sink and cell phone, and he had trouble keeping jobs due
to his anger and resulting actions. Id. at 387.
Plaintiff was discharged on October 24, 2014 and reported
feeling better. Id. at 394. He was diagnosed with
mood disorder and intermittent explosive order and his GAF
was assessed at 58, indicative of moderate symptoms.
Id. at 393. He was to continue with his Depakote
prescription. Id. at 392.
January 8, 2015, Dr. Tangeman, Ph.D. reviewed the file and
completed a psychiatric review technique form and mental
residual functional capacity (“MRFC”) assessment
for the agency. Tr. at 96. He reviewed Plaintiff's mental
health impairments under Listing 12.04 for affective
disorders and Listing 12.08 for personality disorders and he
opined that Plaintiff's mental health impairments did not
satisfy either Listing as Plaintiff's impairments mildly
restricted his daily living activities and caused moderate
difficulties in maintaining social functioning and in
maintaining concentration, persistence or pace. Id.
He further opined that Plaintiff was markedly limited in
interacting appropriately with the general public and
Plaintiff was moderately limited in working in coordination
with others or in proximity to them without being distracted
by them and in accepting instructions and responding
appropriately to criticism from supervisors. Id. at
100. Dr. Tangeman opined that Plaintiff could relate
appropriately as needed in everyday circumstances and he
could relate on a superficial level with minimal public
contact. Id. at 101. He further opined that
Plaintiff would have significant difficulty working around
others. Id. at 100.
15, 2015, Dr. Lakhani performed a physical examination of
Plaintiff for the agency. Tr. at 531-533. Plaintiff informed
Dr. Lakhani that he had anger problems and a mood disorder,
and he explained that he exploded in anger once in awhile and
punches a wall, and he had broken a sink. Id. at
532. He reported that he is on medications and Turning Point
wanted him to adjust his medications. Id. Dr.
Lakhani's impression included a finding that Plaintiff
had anger and mood disorder and his medications needed
adjusted. Id. at 533. He indicated in his medical
source statement that based upon his objective findings,
Plaintiff was alert and oriented, and his concentration,
hearing and speech were normal. Id.
September 19, 2015, police brought Plaintiff to the emergency
room where he reported that he had lost his temper, got into
a verbal and almost a physical altercation with his
girlfriend, broke a door and window, and threatened his
girlfriend. Tr. at 540. He reported feeling increasing
depression and anger. Id. Plaintiff was admitted to
the hospital to stabilize him and to rule out organic
factors. Id. His GAF upon admission was a 15,
indicative of either some danger of hurting self or others,
occasionally failing to maintain minimal personal hygiene, or
gross impairment in communication. Id. On September
22, 2015, after he was put on Remeron and Trileptal and
engaged in therapy, Plaintiff's mood improved and he was
discharged from the hospital with a GAF of 40, indicative of
some impairment in reality testing or communication, or major
impairment in several areas. Id. at 540-541.
Plaintiff was diagnosed with recurrent major depression and
intermittent explosive disorder. Id. at 540. He
denied suicidal or homicidal thoughts, he had no
hallucinations, and his memory was intact. Id.
Plaintiff requested to go to Turning Point for step-down
services so that he could clear his head and work through
some medication side effects. Id.
September 30, 2015, Dr. Goldsmith, Ph.D., conducted a
psychiatric review technique and MRFC assessment for the
agency. Tr. at 130-136. He reviewed Plaintiff's mental
impairments under Listing 12.04 for affective disorders and
Listing 12.08 for personality disorders and he concluded that
Plaintiff's mental impairments did not satisfy either
Listing. Id. at 130. He opined that Plaintiff's
mental impairments caused mild restrictions in his daily
living, and moderate difficulties in maintaining social
functioning and maintaining concentration, persistence, or
pace. Id. He further opined that Plaintiff was
moderately limited in dealing with the general public, in
getting along with co-workers and peers without distracting
them or exhibiting behavioral extremes, and in accepting
instructions and responding appropriately to criticism from
supervisors. Id. at 134-135. Dr. Goldsmith opined
that Plaintiff was limited to occasional and superficial
interpersonal contact. Id. at 135. He explained that
Plaintiff could relate appropriately as needed in everyday
circumstances and he could relate on a superficial level with
minimal public contact. Id.
30, 2015 notes from an initial psychiatric evaluation at
Turning Point show that Plaintiff was diagnosed with severe
mixed bipolar disorder, without psychotic features, and
intermittent explosive disorder. Tr. at 785-788. On June 14,
2016, Plaintiff was discharged from treatment because he did
not return after his December 30, 2015 evaluation.
Id. at 783.
August 30, 2016, Plaintiff presented to the emergency room
complaining of head pain after he was bitten on the chest and
hit in the back of the head and on his lower left leg with a
lead pipe. Tr. at 666. A CT of the brain was normal and he
had a hematoma on his head. Id. at 667-668. A CT of
the cervical spine showed no evidence of fracture or
dislocation. Id. at 672. An x-ray of the left tibia
showed no abnormality. Id. Plaintiff was given
medication and his symptoms improved. Id. at 669. He
was diagnosed with contusions of the scalp and left leg.
21, 2016 notes from Licensed Social Worker Marucci at Turning
Point show that Plaintiff presented to her after getting out
of jail on October 31, 2016. Tr. at 766. She indicated that
Plaintiff had been without his psychiatric medications since
getting out of jail for hitting his girlfriend's child
and he reported that he had problems controlling his
impulses. Id. at 766, 769. He indicated that he was
highly anxious and ready to “pop off.”
Id. at 769. Ms. Marucci noted that Plaintiff had a
high degree of motivation and he related openly, but he had
limited impairment in social functioning. Id. Upon
examination, she made normal findings as to Plaintiff's
grooming, and in his levels of hostility, withdrawal, and
agitation. Id. at 776-777. She also noted that
Plaintiff had normal thought content, thought processes, and
perception, but she indicated “yes” as to the
areas of self abuse and aggressiveness, and she indicated
“moderate” as to homicidal intent. Id.
at 777-778. Ms. Marucci found normal mood and affect, normal
behavior, and normal cognition findings. Id. at
779-781. She further noted that Plaintiff was aware of his
impulse control and anger issues and he used good judgment by
seeking psychiatric care. Id. at 781. She concluded
that he was not a risk to himself, but was a moderate risk to
others. Id. at 774. In explaining this conclusion,
Ms. Marucci indicated that Plaintiff reported that he was
never suicidal. Id. She found that he had
intermittent explosive disorder and struggled with his
impulse to harm others. Id. She further indicated
that Plaintiff was a moderate risk to others because he
lacked impulse control and was a former semi-professional
fighter with a long history of arrests for assaulting others
and he was most recently released from jail for hitting his
girlfriend's 8 year-old daughter. Id. She
recommended that Plaintiff receive medication and counseling.
Id. at 768.
ALJ hearing held on May 17, 2017, Plaintiff testified that he
was single and had two children. Tr. at 66. He indicated that
he did not have a current valid driver's license because
it had been suspended for child support reasons. Id.
He related that he had a ninth grade education and had a
girlfriend who drove him to his appointments. Id. at
reported that he had performed little jobs, like cutting
grass, and he had applied for other jobs, but they refer back
to his prior jobs and those employers would say negative
things about him. Tr. at 67. When asked why he could not
work, Plaintiff replied that he cannot work well with others
and he had trouble keeping up with the pace of jobs and would
become frustrated and angry, especially when supervisors
would tell him that he had to pick up his pace. Id.
at 68. He testified that he was taking his medications and he
attended two anger management classes at Turning Point, but
then the person ...