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Dees v. Social Security Administration

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

January 6, 2020

DEVONTE DEES, Plaintiff,



         Plaintiff Devonte Dees (“Plaintiff or “Dees”) challenges the final decision of Defendant Andrew Saul, [1] 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.


         In September 2013, Dees filed an application for SSI alleging a disability onset date of September 1, 2000[2] 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. at 88.)

         On July 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 1-5.)

         On 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.)

         The ALJ 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. ( 200-07.)

         On May 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.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Dees 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.)

         B. Relevant Medical Evidence[3]

         On 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.)

         Dr. 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.)

         Dees 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. (Id.)

         When 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.)

         On 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 finances. (Id.)

         Dr. 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.)

         Dees 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. (Id.)

         When 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. (Id.)

         On June 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.)

         On 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.)

         C. State Agency Reports[4]

         On November 8, 2013, state agency consultant Irma Johnston, Psy.D., reviewed Dr. Konieczny's report[5] 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.)

         On January 28, 2014, state agency consultant Katherine Fernandez, Psy.D., affirmed Dr. Johnson's findings on reconsideration. (Id. at 64, 66-68.)

         D. ...

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