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Walp v. Saul

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

July 23, 2019

ROBERT W. WALP, Plaintiff,
v.
ANDREW M. SAUL[1], COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          PAMELA A. BARKER JUDGE

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT UNITED STATES MAGISTRATE JUDGE

         Plaintiff Robert W. Walp (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). ECF Dkt. #1. In his brief on the merits, Plaintiff asserts that the administrative law judge (“ALJ”) 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 (“MRFC”) 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 WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL HISTORY

         Plaintiff 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.[2] 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.

         On June 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.

         On 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.

         II. RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE

         A. RELEVANT MEDICAL EVIDENCE

         Since 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.

         As 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.

         On 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.

         The 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.

         On 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.

         Plaintiff 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.

         On 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.

         On June 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.

         On 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.

         On 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.

         December 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.

         On 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. Id.

         November 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.

         B. TESTIMONIAL EVIDENCE

         At the 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 66-67.

         Plaintiff 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 ...


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