United States District Court, E.D. Virginia, Alexandria Division
REPORT AND RECOMMENDATION
F. ANDERSON, UNITED STATES MAGISTRATE JUDGE
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
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.
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).
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.
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).
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).
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.).
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).
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).
STANDARD OF REVIEW
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).
Plaintiffs Age, Education, and Employment History
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. (AR 46-48).
Summary of Plaintiff s Medical History Prior to Alleged
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).
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
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).
Summary of Plaintiffs Medical History Following Alleged
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. (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).
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).
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
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).
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
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. (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,  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.
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).
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).
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).
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).
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).
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,
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
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 ...