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McNiff v. Berryhill

United States District Court, E.D. Virginia, Alexandria Division

June 4, 2019

NANCY A, BERRYHILL, Acting Commissioner of Social Security, Defendant,



         This matter is before the undersigned magistrate judge for a report and recommendation pursuant to 28 U, S, C, § 636(b)(1)(B) on cross-motions for summary judgment. (Docket nos. 11, 15). Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the final decision the Acting Commissioner of the Social Security Administration ("Commissioner"), denying plaintiffs claim for disability insurance benefits ("DIB") under Title II of the Social Security Act. The Commissioner's final decision is based on a finding by the Administrative Law Judge ("ALJ") and Appeals Council for the Office of Disability Adjudication and Review ("Appeals Council") that as of November 27, 2017, plaintiff was not disabled as defined by the Social Security Act and applicable regulations.[1]

         On March 29, 2019, plaintiff filed a motion for summary judgment (Docket no. 11) and brief in support (Docket no, 12), and he waived oral argument (Docket no. 13). On April 23, 2019. the Commissioner filed a memorandum in opposition to plaintiffs motion for summary judgment (Docket no. 14) as well as a cross-motion for summary judgment (Docket no. 15) and a memorandum in support that is identical to the Commissioner's opposition to plaintiffs motion for summary judgment (Docket no. 16). The Commissioner also waived oral argument. (Docket no. 17). Plaintiff filed a reply in opposition to the Commissioner's motion for summary judgment on May 13, 2019. (Docket no. 18). For the reasons set forth below, the undersigned recommends that plaintiffs motion for summary judgment be denied, the Commissioner's motion for summary judgment be granted, and the Commissioner's final decision be affirmed.


         On October 3, 2014, nineteen days before applying for DIB, plaintiff signed an "Appointment of Representative" form authorizing Andrew Mathis to represent him on plaintiffs behalf with respect to "claim(s) or asserted right(s) under: Title II (RSDI) [and] Title XVI (SSI)." (AR 107). Plaintiff applied for DIB on October 22, 2014 with an alleged onset date of August 19, 2013. (AR 191-92). On February 18, 2015, as part of the disability determination at the initial level, Howard S. Leizer, Ph.D., a state agency psychologist, found that, in addition to a severe spine disorder, plaintiff had non-severe ADD/ADHD and a non-severe anxiety disorder. (AR 84-85). He opined that plaintiff had a mild restriction in activities of daily living and mild difficulties in maintaining concentration, persistence, or pace. (Id.). Overall, the disability determination indicated that, while one or more of those impairments could be expected to produce plaintiffs pain or symptoms, the objective medical evidence alone did not support plaintiffs statements about the intensity, persistence, and functionally limiting effects of the symptoms, and deemed plaintiffs statements partially credible. (AR 85). Ultimately, the report concluded that plaintiff was not disabled. (AR 88). It explained that his condition was not severe enough to keep him from working, and that he could adjust to other work. (AR 88-89). The Social Security Administration then denied plaintiffs DIB application, stating that plaintiff was "not disabled under our rules." (AR 108, 114).

         On March 5, 2015, plaintiff filed a request for reconsideration for Social Security benefits because he was unable to engage in substantial gainful activity. (AR 119). Plaintiff did not submit additional evidence. (Id.). On July 13, 2015, in response to plaintiffs request for reconsideration, Julie Jennings, Ph.D., a state agency psychologist, found that plaintiff had a severe spine disorder, severe ADD/ADHD, and a severe anxiety disorder. (AR 97-98). Dr. Jennings opined that plaintiff had mild restrictions in activities of daily living and moderate difficulties in maintaining concentration, persistence, and pace. (AR 98, 101). Like the initial report, the report on reconsideration concluded that, while one or more of plaintiff s medically determinable impairments could reasonably be expected to produce plaintiffs pain or other symptoms, his statements about the intensity, persistence, and functionally limiting effects of the symptoms were not substantiated by the objective medical evidence alone, and plaintiffs statements were deemed partially credible. (AR 99). The credibility assessment as to plaintiffs mental allegations noted that despite significant complaints to providers, the evidence shows plaintiff quit work on his own terms to start his own business running a website selling ice hockey memorabilia, that his cognitive screens have been within normal limits, and ADLs are not severely limited. (Id.).

         Regarding sustained concentration and persistence limitations, Dr. Jennings found moderate limitations in plaintiffs ability to carry out detailed instructions and to maintain attention and concentration for extended periods. (AR 101-02). She also found him moderately limited in his ability to complete a normal workday and work week without interruptions from his psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods based on plaintiffs reported attention/concentration difficulties, indecisiveness, and restlessness. (AR 102). However, she noted that plaintiff "demonstrated superior performance on working memory tasks and intact performance on executive functioning tasks" and found that plaintiff "would be limited to simple, unskilled, non-stressful work as a result of his ADHD symptoms and anxiety." (AR 102). The report concluded that plaintiff was not disabled because his "condition is not severe enough to keep [him] from working" and that he could adjust to other work. (AR 103-04). The Social Security Administration denied plaintiffs DIB application because the initial determination "was proper under the law." (AR 120, 124).

         On August 10, 2015, plaintiff requested a hearing before an ALJ. (AR 127-28). Plaintiff indicated that he was submitting additional evidence with the request. (AR 127). On September 2, 2015, the Office of Disability and Adjudication Review ("ODAR") acknowledged plaintiffs request for a hearing (AR 129-142), which it later scheduled for May 8, 2017 (AR 143-87). The ALJ held the hearing as scheduled. (AR 39-78). During the hearing, plaintiff provided testimony and answered questions posed by the ALJ and plaintiffs representative. (AR 41-73). A vocational expert also answered questions posed by the ALJ and plaintiffs representative. (AR 73-78). On August 31, 2017, more than three months after the hearing before the ALJ, plaintiff submitted twenty-five pages of medical records from Integrated Neurology Services covering the period of May 26, 2016 through November 19, 2016. (AR 23).

         On November 27, 2017, the ALJ issued a decision denying plaintiffs claim and finding that plaintiff had not been under a disability within the meaning of the Social Security Act from the alleged onset date of August 19, 2013 through the date of the decision. (AR 20-34). The ALJ did not accept the twenty-five pages of medical records from Integrated Neurology Services into the record because it was not filed timely, and plaintiff did not demonstrate an exception to the rules regarding the submission of evidence before the hearing. (AR 23). Nevertheless, the ALJ did review those records indicating that they concerned issues with intermittent neuropathy, chronic left L-5 radiculopathy, and sleep apnea, and stated that the information in those records was consistent with the other medical records and the disposition of the case. (Id.).

         On January 3, 2018, plaintiff filed a request to review the ALJ's decision with the Appeals Council, arguing that the ALJ's decision was not supported by substantial evidence and "[t]he ALJ failed to give appropriate consideration and to perform the evaluations mandated by the regulations, rulings, and circuit case law with regard to the issues of credibility of subjective complaints and opinion of treating physicians." (AR 188-90). Plaintiff also submitted a neuropsychological evaluation, completed on March 19, 2018, "as new and material evidence." (AR 7-16). On April 16, 2018, plaintiff submitted a brief in support of his request for Appeals Council review. (AR 284-89). The Appeals Council denied plaintiffs request for review on September 19, 2018 finding no reason under it rules to review the ALJ decision. (AR 1-5). In its decision, the Appeals Council specifically found that the neuropsychological evaluation submitted as additional evidence did not show a reasonable probability that it would change the outcome of the decision. (AR 2). As a result, die ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981. As stated in the "Notice of Appeals Council Action," plaintiff was given sixty days to file a civil action challenging the decision. (AR 2).

         On November 14, 2018, plaintiff timely filed this civil action seeking judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). (Docket no. 1). On February 26, 2019, the District Judge entered an order granting defendant's consent motion to set the summary judgment briefing schedule. (Docket nos. 5, 6). This case is now before the undersigned for a report and recommendation on the parties' cross-motions for summary judgment. (Docket nos. 11, 15).


         Under the Social Security Act, the court will affirm the Commissioner's final decision "when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence." Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (quoting Bird v. Comm `r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is "more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). In determining whether a decision is supported by substantial evidence, the court does not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary." Mastro, 270 F.3d at 176 (alteration in original) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). The duty to resolve conflicts in the evidence rests with the ALJ, not the reviewing court, and the ALJ's decision must be sustained if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).


         A. Plaintiffs Age, Education, and Employment History

         Plaintiff was born in 1973 and was forty-four years old at the time of the hearing on May 8, 2017. (AR 42-43). Plaintiff completed high school and one year of college. (AR 43, 215). Plaintiff worked as a mechanic at Midas from January 1995 through March 2000, as an assistant manager at Aerolink from 2000 through 2003, and as a salesman and manager at Fairfax Auto Parts from August 2003 through August 2013. (AR 44, 204-205, 216, 232-235). At the hearing, plaintiff stated that he has not worked since 2013 but helps his son sell trading cards online.[2] (AR 46-48).

         B. Summary of Plaintiff s Medical History Prior to Alleged Disability Date[3]

         Prior to his alleged disability date, plaintiff had a history of gastroesophageal reflux disease (GERD), hypercholesterolemia, alcoholism, spondylolisthesis, and tobacco dependence. (AR 398). He reported quitting using tobacco in 2008 or 2009, and alcohol in 2010. (AR 400, 556). Plaintiff was involved in two motor vehicle accidents between 1996 and 2002, both of which he states resulted in concussions. (AR 555). A brain MRI taken in April 2007 showed normal findings. (AR 400). Plaintiff underwent a fusion of the posterior lumbar spine (L4-S1) on November 26, 2008. (AR 455).

         Plaintiff first visited Humaira Siddiqi, MD., a psychiatrist with Kaiser Permanente, on October 8, 2012 due to concerns about his mood and anxiety. (AR 325). He reported that his medication, Atomoxetine, was "really great" but that he had become moody, and that he had "terminal insomnia and frequent wakings at night," an inability to fall fully back asleep, and irritability. (Id.). He denied any suicidal ideations. (Id.). Dr. Siddiqi observed that plaintiff was awake and alert at that visit with an intact attention span and concentration, and that his memory was grossly intact. (AR 326). His thinking process was goal directed, linear, and organized; he had intact reality; and he was intellectually average with good insight and judgment (Id). His depression screening questionnaire indicated that plaintiffs depression symptoms made it somewhat difficult to "work, tend to things at home, or get along with others." (AR 327), Dr. Siddiqi advised plaintiff against using cannabis because it could exacerbate mood symptoms and spoke with plaintiff about sleep hygiene, reducing photo stimulation, and engaging in stress-reducing activities. (AR 326). She also prescribed Mirtazapine to be taken at bedtime. (AR 327). Following this 20-minute session, Dr. Siddiq's primary diagnosis was generalized anxiety disorder and ADHD. (AR 325-26). They scheduled a follow-up appointment for December 10, 2012. (AR 326).

         During plaintiffs visit with Dr. Siddiqi on December 10, 2012, he reported that his sleep had improved and that he awoke rested, but that he felt disconnected due to his current Mirtazapine dosage. (AR 331). He had stopped all medication except Strattera and Lovastatin, and he stated that the Strattera was working well. (Id.). He had an intact memory and attention span, he was awake and alert, and he was intellectually average with good insight and judgment. (AR 332). The results of the depression screening questionnaire revealed no severe depression. (AR 332-33). The diagnosis following this 20-minute session was ADHD, generalized anxiety disorder, and insomnia. (AR 331-32). Plaintiff was again advised to discontinue using cannabis and plaintiff was instructed to see her again in three months and to message her in two weeks. (AR 333).[4]

         C. Summary of Plaintiffs Medical History Following Alleged Disability Date

         Plaintiff was involved in a car accident on August 19, 2013. (AR 532). On August 21, 2013, plaintiff saw Marie Hyunh, M.D., a doctor with Kaiser Permanente's Internal Medicine Department, and stated that he was not experiencing head trauma or a loss of consciousness as a result of that accident. (AR532). The reason listed for this visit was back pain and the diagnoses following the examination included strain of lumbar region and a shoulder strain, trapezius muscle.[5] (Id.). On September 6 and 9, 2013, during visits at Kaiser Permanente regarding back pain flare ups, the records reflect plaintiff was not having headaches or visual complaints, he was not experiencing any change in his neurological function, and that he was alert and oriented with clear speech. (AR 419, 421, 523-24).[6]

         On January 31, 2014, plaintiff visited an urgent care facility due to "feeling worthless and spontaneous episodes of crying" but denied any suicidal or homicidal ideations. (AR 412). Angeline Haung, M.D., recorded that plaintiff had mentioned to his wife that he was suicidal but refused to go the emergency room. (AR413). Plaintiff's wife reported that he had been blacking out and experiencing memory loss since July 2013, and plaintiff reported hearing ringing and having occasional hot flashes, chest pains, and tingling sensations. (Id.). Plaintiff was transferred to the Virginia Hospital Center Emergency Room, where he was seen by James Cogbill, M.D., and Jeffrey Kin, M.D. (AR 300, 414). Plaintiff complained to Dr. Cogbill of one to two months of moderate, intermittent generalized confusion, causing him to feel "depressed and 'not normal.'" (AR 300, 413-14). He was not found to be suicidal and was treated for confusion and difficulty remembering. (AR 414). His wife reported that plaintiff sometimes had difficulty remembering things, which plaintiff attributed to his recent increased dosage of Strattera. (AR 300). He also complained of headaches and tinnitus over the last six to seven months resulting from a motor vehicle accident. (Id.). He received a head CT scan that revealed "[f]ocal low attenuation in the right occipital region." (AR 543-44). Dr. Cogbill discussed plaintiffs complaints and examination with neurology and determined that the questionable CT finding could be addressed through an outpatient MRI and EEC (AR 300, 414). Dr. Kin secured the first available appointment for plaintiff to see Harman Bajwa, M.D., a doctor with Kaiser Permanente's Neurology Department, which was scheduled for February 3, 2014. (AR 301, 310, 414). During plaintiffs visit, Dr. Cogbill called Shweta Verma, M.D., a psychiatrist with Kaiser Permanente, regarding plaintiffs complaints and the results of the head CT. (AR 386). Dr. Verma recommended decreasing plaintiffs dose of Straterra and that plaintiff follow-up with Dr. Siddiqi. (Id.). Dr. Cogbill decreased that dosage, diagnosed plaintiff with post-concussion syndrome, and discharged him in stable condition. (AR 300, 301, 310).

         Plaintiff met with Dr. Bajwa on February 3, 2014 pursuant to Dr. Kin's referral. (AR 410). In a letter to Dr. Kin, Dr. Bajwa reviewed plaintiffs memory complaints and noted that plaintiff had not had any further episodes since being off Strattera and remained independent in his activities of daily living. (AR 410-12, 494-95). Plaintiffs mental status was intact, no associated headaches or loss of vision, and his neurological examination was non-lateralizing. (AR 410-12, 496-97). Dr. Bajwa requested a brain MRI, serologies, and a baseline EEG. (AR 412, 497). On February 6, 2014, Roderick Starkie, D.O., also a doctor with Kaiser Permanente's Neurology Department, informed plaintiff that his EEG was normal. (AR 409-10, 492-93). Plaintiff received an MRI on February 11, 2014 but had difficulty lying still, so the resolution of the images were degraded. (AR 408-09, 429, 540-41). Other than "a few T2 hyperintensities in the supratentorial brain, likely of no clinical significance," the results of the MRI were normal. (AR 429-30, 541).

         Plaintiff saw Dr. Siddiqi again on February 28, 2014. (AR 336). He reported that he had stopped taking Strattera and Mirtazapine after experiencing irritability and blackouts, in part because he believed he may have doubled the dosage due to these blackouts. (Id.). He also reported having memory problems and poor focus for several years following two motor vehicle accidents, both of which he states resulted in a concussion. (Id.). He complained of "ringing in his ears" as well as "severe anxiety, worry, catastrophic thinking, [and] muscle tension." (Id.). Plaintiff complained of vertebral damage and pain and was unsure whether this damage was affecting his cognition and memory. (Id.). They discussed neuropsychological testing. (Id.). Plaintiff denied mood cycling or psychotic symptoms and was alert and cooperative, but he had "[s]omewhat impaired attention" with frequent zoning out, though Dr. Siddiqi did not formally test his cognition. (AR 336-37). Dr. Siddiqi advised plaintiff to stop taking Strattera and Remeron. (AR 336). The depression screening questionnaire revealed severe depression. (AR 338). They discussed starting new medications for sleep, and plaintiff was instructed to see an ENT and to follow-up with Dr. Siddiqi on March 24, 2014. (AR 336-37).

         During his March 24, 2014 visit with Dr. Siddiqi, plaintiff reported diminished anxiety, fewer angry outbursts, and improved frustration tolerance, though he felt "transient panic from situational stressor[s]." (AR 392). Dr. Siddiqi advised plaintiff to increase his Lexapro prescription and to use Xanax in the short term for his anxiety. (Id.). Plaintiff was alert, logical, and calm, and Dr. Siddiqi observed that plaintiff had "adequate appearing cognition," but she did not perform formal testing. (Id.). Dr. Siddiqi instructed plaintiff to follow-up with her in two months. (AR 393). Plaintiffs depression screening questionnaire indicated that his depression had improved from severe on February 28, 2014 to moderate. (AR 394).

         On April 7, 2014, Dr. Siddiqi completed a disability determination services questionnaire. (AR 321-24). Dr. Siddiqi reported that she had seen plaintiff once annually beginning on October 8, 2012, and that plaintiff had "chronic insomnia, poor cognition, slowed processing, anger, depression and ... panic episodes" for several years.[7] (AR 321). She also stated that plaintiff complained of memory and hearing problems, as well as headaches. (Id.). She reported that plaintiff had been hospitalized on January 31, 2014 for suicidal ideation, episodes of confusion, and memory problems, [8] and that he had received outpatient services in urgent care. (Id.). According to Dr. Siddiqi, plaintiff had been alert, calm, and cooperative at his most recent visit, though in the previous visit he was "dysphoric, tearful, [had] impaired cognition, [and was] frequently zoning out." (AR 322). She noted that she had not formally tested his cognition. (Id.). She also reported plaintiff complained of issues with black outs and anxiety and stated that plaintiffs panicking emotionally paralyzed him and impaired, among other things, his ability to interact with his peers and perform daily activities. (AR 322-23). She did note that when stable he had good ADL. (AR 323). She diagnosed him with generalized anxiety disorder, a cognitive disorder, insomnia, and ADHD. (AR 324). She determined that, while his cognitive defects would likely not get better, his anxiety would improve. (Id.).

         On June 9, 2014, plaintiff saw Nagui Saleh, M.D., a doctor with Kaiser Permanente's Family Practice, following a motor vehicle accident. (AR 405, 484). Plaintiff denied losing consciousness, injuring his head, severe headaches or experiencing any symptoms of neurological impairment. (AR 406, 485). His neurological exam was normal. (AR 406, 486).

         Plaintiff underwent a lumbar spine fusion revision on August 13, 2014. (AR 345). During his treatment for that surgery, he had intact cognition. (AR 358-59). Dr. Ergener discharged plaintiff on August 15, 2014, instructing him to return for a follow-up appointment in two weeks. (AR 346).

         On September 2, 2014, Dr. Ergener recorded that plaintiffs wife reported concerns about memory issues, and he recommended following up with neurology. (AR 401-02, 482-83). On September 11, 2014, during a visit with Dr. Bajwa, plaintiff reported having more memory problems and continuing issues with insomnia, but his anxiety was better. (AR 399, 477). He also stated that he remained independent in his activities of daily living and was driving without any limitations. (Id.). Upon examination, plaintiffs mental status appeared intact to all spheres, his language and speech were intact and while he seemed distracted at times, he was redirectable. (AR 400, 479). Plaintiffs EEG was normal, and his mental status examination was relatively intact, but Dr. Bajwa planned to repeat a brain MRI to evaluate for any changes. (AR 401, 480). Dr. Bajwa also raised the possibility of formal neuropsychological testing. (Id.). An October 12, 2014 MRI examination of plaintiff s head was stable without any change in size or appearance of the hyperintensity previously noted. (AR 427, 538-39, 882-83).

         On February 5, 2015, plaintiff saw Hilary Newgen, M.D., a doctor with Kaiser Permanente's Neurology Department, for a second opinion regarding his cognitive impairments. (AR 466, 732). Plaintiff reported a history of possible concussions following two motor vehicle accidents, causing him to "blank[] out for awhile." (AR 466-67, 732-33). His wife indicated that she did not think he had had a full recovery. (AR 467, 733). His family also reported concerns such as personality changes, disruptions in his sleep, and socially inappropriate behaviors. (Id.). Plaintiff indicated that his cognitive issues affected his speech, and that he was unable to balance his checkbook or go grocery shopping by himself, but his blacking out episodes had resolved within the last year. (Id.). He was following up with psychiatry for his anxiety issues and reported a family history of early onset Alzheimer's dementia. (Id.). Plaintiff reported that the men in his family were diagnosed with dementia as early as 45 and rapidly declined following their diagnosis. (Id.). His neurological functioning was intact, and his MOCA score was 27 out of 30. (AR 469, 736). Plaintiff indicated that he wanted to pursue neuropsychological testing and then consider a trial of Aricept or Namenda. (Id.). Dr. Newgen referred plaintiff to Laura Weinberg, Ph.D., a clinical neuropsychologist with the National Rehabilitation Hospital, for that testing. (AR 552).

         On March 11, 2015, before going for neuropsychological testing, plaintiff visited Todd Rankin, M.D., a psychiatrist with Kaiser Permanente, because he was having difficulty sleeping due to anxiety caused by his memory problems. (AR 740-41). Plaintiff appeared "[a]lert, logical, calm, cooperative, [and] neatly dressed, [with] good eye contact, normal speech, ... [and] adequate appearing cognition." (AR 741). Dr. Rankin did not formally test plaintiffs cognition. (Id.). The depression screening questionnaire revealed that plaintiff had mild depression. (AR 743). Dr. Rankin prescribed Seroquel to assist with anxiety and sleep induction. (AR 741-42).

         On either April 15 or 16, 2015, Dr. Weinberg examined and tested plaintiff "to characterize current neurocognitive functioning and help identify any underlying organic cognitive impairment." (AR 552, 719, 892). Dr. Weinberg noted that plaintiff was alert and attentive, and although his speech was slightly dysarthric at times, it was "normal in volume, rate, prosody, and articulation" and no word finding difficulties or paraphasias were noted. (AR 556, 723, 896). Plaintiff stated that his mood was typical, and Dr. Weinberg found him to be cooperative, so she determined that the test results accurately represented plaintiffs neurocognitive functioning. (AR 556-57, 723, 896). Dr. Weinberg performed a broad range of tests including a Test of Memory Malingering, Test of Premorbid Functioning, Wechsler Adult Intelligence Scale - Fourth Edition, California Verbal Learning Test, Wechsler Memory Scale, Trial Taking Test, Verbal Fluency Test, Boston Naming Test, Grooved Pegboard Test, Rey Complex Figure Test, Wisconsin Card Sorting Test, Personality Assessment Inventory, Beck Depression Inventory, and Beck Anxiety Inventory. (AR 558-61, 724-27).

         Dr. Weinberg reported that plaintiff had an estimated average premorbid level of intelligence, and that he performed in the expected range of functioning overall. (AR 552, 719, 892). Plaintiff performed in the average range for verbal comprehension and perceptual reasoning tasks, in the superior range for working memory tasks, and in the average range for executive functioning. (Id.). He had a well-organized approach to visuospatial tasks and "planned with an appreciation for the gestalt of the image," and he had a well-intact fluency regarding semantic and phonemic tasks. (Id.). However, Dr. Weinberg reported that plaintiffs verbal memory was variable, with average initial learning but a delayed recall of an auditory story, and that he benefitted from a recognition format. (Id.). He was within the impaired range on immediate and delayed list-learning tests, and had difficulty distinguishing list words from distractors. (Id.). She noted that this suggested that plaintiff benefitted from verbal information being presented in a structured format. (Id.). On the visual memory tests, plaintiff had low average results on immediate visual tasks and average results on delayed visual tasks. (Id.). He also showed variable performance on processing speed tasks, ranging from severely impaired to low average, and often sacrificed speed to carefully complete the tasks. (AR 552, 719-20, 892-93). He performed in the impaired range on motor speed tasks as well, sacrificing time for accuracy, and he performed in the low average range on confrontation naming tasks. (AR 552, 720, 893). Dr. Weinberg also indicated that plaintiffs preoccupation with his physical functioning may cause unhappiness and reduced efficiency in daily functioning. (AR 553).

         Other than variable processing speed and verbal memory, and impaired motor speed, Dr. Weinberg determined that plaintiff had "intact skills across the remainder of cognitive domains." (Id.). She indicated that his difficulties with attention, concentration, misplacing common objects, indecisiveness, and restlessness could be explained by chronic ADHD persisting into adulthood. (Id.). She further stated that his anxiety or chronic pain could be contributing to any reported functional deficits and cognitive difficulties. (Id.). She did not rule out the potential impact of concussions on his cognitive symptoms, although she noted that she would have expected those symptoms to ...

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