United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
JONATHAN D. GREENBERG UNITED STATES MAGISTRATE JUDGE.
Devonte Dees (“Plaintiff or “Dees”)
challenges the final decision of Defendant Andrew Saul,
Commissioner of Social Security (“Commissioner”),
denying his application for Supplemental Security Income
(“SSI”) under Title 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 VACATED AND REMANDED for further consideration
consistent with this opinion.
September 2013, Dees filed an application for SSI alleging a
disability onset date of September 1, 2000 and claiming he
was disabled due to a learning disability, inability to
comprehend things, difficulty reading, and bipolar disorder.
(Transcript (“Tr.”) at 111-16, 132.) The
application was denied initially and upon reconsideration,
and on February 21, 2014 he requested a hearing before an
administrative law judge (“ALJ”). (Id.
22, 2015, an ALJ held a hearing, during which Dees,
represented by counsel, and an impartial vocational expert
(“VE”) testified. (Id. at 23-45.) On
July 28, 2015, the ALJ issued a written decision finding
Plaintiff was not disabled. (Id. at 11-19.) The
ALJ's decision became final on August 1, 2016, when the
Appeals Council declined further review. (Id. at
September 27, 2016, Dees filed a complaint challenging the
Commissioner's final decision. (Id. at 266.) On
April 17, 2017, the Court granted the parties' Joint
Motion for Remand. (Id. at 284-88.) On August 28,
2017, the Appeals Council issued a Notice of Order remanding
the case back to the ALJ. (Id. at 292-96.)
held a supplemental hearing on March 20, 2018, during which
Dees, represented by counsel, and a VE testified.
(Id. at 233-45.) On June 11, 2018, the ALJ issued a
written decision finding Dees was not disabled. (Id.
at 216-28.) The ALJ's decision became final on April 5,
2019, when the Appeals Council denied review. (Id.at
17, 2019, Dees filed his Complaint to challenge the
Commissioner's final decision. (Doc. No. 1.) The parties
have completed briefing in this case. (Doc. Nos. 14, 16, 17.)
Dees asserts the following assignment of error:
(1) Whether the ALJ's decision is supported by
substantial evidence when the residual functional capacity
finding does not include specific limitations assessed by the
consultative examiner, Dr. Faust.
(Doc. No. 14 at 1.)
Personal and Vocational Evidence
was born in August 1993 and was 24 years old at the time of
his most recent administrative hearing (Tr. 226, 233), making
him a “younger” person under Social Security
regulations. See 20 C.F.R. § 416.963(c). He has
a limited education and is able to communicate in English.
(Tr. 226.) He has no past relevant work. (Id.)
Relevant Medical Evidence
February 20, 2013, Michael Faust, Ph.D., conducted a
consultative psychological evaluation of Dees. (Id.
at 188-96.) Dees reported he was living with his mother and
siblings in his mother's house and had always resided
with her. (Id. at 189.) Dees stated despite being
placed in specialized education classes in school because he
had difficulty with learning and comprehension, he continued
to receive poor grades. (Id.) He dropped out of high
school after completing the tenth grade. (Id.)
Faust noted Dees put forth “consistently good
effort” on all tasks during testing. (Id. at
190.) Dees was polite and cooperative, exhibited good
attention throughout the examination with no evidence of any
attention deficits, and demonstrated an adequate memory.
(Id.) Dees did not exhibit any significant speech
articulation problems. (Id. at 191.) Dr. Faust found
Dees' thinking was rather concrete and simplistic but
remained logical and linear. (Id.) He understood
simple questions and instructions but struggled to follow
multistep or complex instructions. (Id.) Dees
appeared happy, with no outward signs of depression, and was
not anxious. (Id.) But he appeared unsure of himself
and was overwhelmed by difficult tests. (Id.) Dr.
Faust found Dees' ability to abstract was significantly
below the mean. (Id. at 191-92.) Dees was unable to
complete serial sevens or threes because he did not fully
understand the nature of the task - he counted forward.
(Id. at 192.) Dr. Faust noted Dees appeared
dependent on others for guidance and was not seen as
possessing sufficient judgment to seek medical care if needed
without assistance from his mother. (Id.) Dees'
mother helped him handle money as he had difficulty counting
money. (Id.) Dees showed limited social judgment,
which Dr. Faust found consistent with low IQ. (Id.)
achieved a full-scale IQ of 72 on the WAIS-IV, and Dr. Faust
determined his score appeared valid. (Id. at
192-93.) Dees' score placed him in the borderline range
of intellectual functioning. (Id. at 193.) Dr. Faust
diagnosed Dees with Borderline Intellectual Functioning.
discussing Dees' ability to perform work-related
activities, Dr. Faust opined Dees “would experience
difficulty understanding how to perform and carry out complex
tasks, and would require a great deal of supervision and
structure to complete job duties accurately due to limited
intellectual capacity.” (Id. at 194.) While
his work pace was slow, his persistence fell within normal
limits. (Id.) Dr. Faust determined Dees would be
capable of responding appropriately to coworkers and
supervisors as long as instructions and job demands were
presented to him in simple terms. (Id.) Dr. Faust
further opined Dees' “limited cognitive capacity
causes him limited insight and judgment such that he would
likely have difficulty fully processing work pressure and he
may become confused and overwhelmed when under
pressure.” (Id. at 194- 95.)
October 24, 2013, J. Joseph Konieczny, Ph.D., conducted a
consultative psychological evaluation of Dees. (Id.
at 180-84.) Dees reported he had dropped out of school in his
second year of ninth grade; although he was in “special
ed slowing learning” classes, he still found it too
difficult. (Id. at 181.) Dees also told Dr.
Konieczny he had difficulty controlling his temper and
experienced episodes of mood swings. (Id.) Dees'
daily activities included watching television, taking care of
his daughter, playing video games, going to church, cleaning,
household chores, and spending time with his girlfriend.
(Id. at 182.) Dees also shopped and managed his own
Konieczny found Dees' ability to concentrate and attend
to tasks were not impaired. (Id. at 182.) Dees
completed serial threes without error, although his responses
were slow. (Id.) He showed moderate deficits in his
ability to perform logical abstract reasoning and did not
provide interpretations for two sayings. (Id.) Dr.
Konieczny determined Dees showed mild deficits in his
awareness of rules of social judgment and conformity and his
overall level of judgment. (Id.) Dr. Konieczny
opined Dees appeared to require a slight degree of
supervision and monitoring in the management of his daily
activities and handling financial affairs. (Id.)
achieved a full-scale IQ of 63 on the WAIS-IV, which is the
extremely low range of intellectual functioning for
individuals Dees' age. (Id. at 182-83.) Dr.
Konieczny noted Dees' performance on all of the subtests
were “quite uniform.” (Id. at 183.)
While this intellectual testing placed Dees in the
“mild mental retardation range, ” Dr. Konieczny
opined Dees' capabilities in some areas of intellectual
functioning and presentation would suggest an individual with
a higher level of functioning, making a diagnosis of
Borderline Intellectual Functioning more appropriate.
(Id.) Dr. Konieczny also diagnosed Dees with
Adjustment Disorder with Disturbance of Conduct, Chronic.
discussing Dees' ability to perform work-related
activities, Dr. Konieczny opined Dees would have mild to
moderate limitations in his ability to understand, remember,
and carry out instructions. (Id.) Dr. Konieczny
further opined Dees would have diminished tolerance for
frustration and diminished coping skills, which would impact
his ability to respond to typical supervision and
interpersonal work situations, as well as his ability to
respond to typical pressure situations in a work setting.
24, 2015, Dees attended an initial session with Valerie
Coats, M.D., regarding his complaints of depression.
(Id. at 197.) Dees presented with anxious/fearful
thoughts, depressed mood, difficulties with sleep, diminished
interest or pleasure, excessive worry, loss of appetite,
racing thoughts, restlessness, and thoughts of death or
suicide. (Id.) Dr. Coats diagnosed Dees with
depression and prescribed amitriptyline and Zoloft.
(Id. at 199.)
November 3, 2017, Dees saw Dr. Coats for a follow-up visit
regarding his depression. (Id. at 385.) Dees
presented with anxious/fearful thoughts, depressed mood,
difficulty staying asleep, fatigue, loss of appetite, racing
thoughts, and restlessness, but denied difficulty falling
asleep and thoughts of death or suicide. (Id.)
Social interaction aggravated Dees' depression, while
isolation relieved it. (Id.) On examination, Dr.
Coats found Dees exhibited inappropriate mood and affect,
constricted affect, poor insight, and poor judgment.
(Id. at 388.) Dr. Coats determined Dees was
suffering from Major Depressive Disorder, single episode,
unspecified. (Id. at 389.)
State Agency Reports
November 8, 2013, state agency consultant Irma Johnston,
Psy.D., reviewed Dr. Konieczny's report and found
Dees' borderline intellectual functioning and affective
disorder to be severe impairments. (Id. at 49-50,
52-53.) Dr. Johnston opined Dees had mild restriction of
activities of daily living and moderate difficulties in
maintaining social functioning and maintaining concentration,
persistence, or pace. (Id. at 52-53.) Dr. Johnston
further opined Dees was capable of understanding and
recalling simple, repetitive tasks and would work best in a
static work setting where there were no demands for a fast
pace and where interaction with others was superficial and
infrequent. (Id. at 54-55.) Further, changes in work
duties should be infrequent and easily explained.
(Id. at 56.)
January 28, 2014, state agency consultant Katherine
Fernandez, Psy.D., affirmed Dr. Johnson's findings on
reconsideration. (Id. at 64, 66-68.)