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Pitchford v. Astrue

September 25, 2009


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge



Kenneth Pitchford ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying his applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is AFFIRMED.


Plaintiff protectively filed applications for SSI and DIB on March 18, 2004.*fn1 (Administrative Record ("AR") 48-50, 235, 391). He alleged a disability onset date of November 20, 2003 (AR 48) due to depression and anxiety. (AR 58). The Agency denied Plaintiff's claims for SSI and DIB initially on August 12, 2004. (AR 19-23). This denial was upheld upon reconsideration on November 16, 2004. (AR 26-30).

On February 2, 2006, a hearing was held before Administrative Law Judge ("ALJ") Joseph D. Schloss. (AR 236-52). The ALJ denied benefits in a written decision dated April 27, 2006. (AR 8-16). On May 4, 2006, Plaintiff sought review of the unfavorable decision. (AR 7). The Appeals Council declined review on July 21, 2006. (AR 4-6).

Plaintiff filed a complaint in District Court, seeking review of the Commissioner's decision (Case No. EDCV 06-978 SS). On August 14, 2007, the Court remanded the case for further proceedings, reasoning that the ALJ had failed to properly consider the lay witness testimony of Plaintiff's mother. (AR 293-305). On December 26, 2007, the Appeals Council remanded the matter for further proceedings pursuant to the District Court's August 14, 2007 order. (AR 306-08).

On April 17, 2008, ALJ Jesse J. Pease held a second hearing. (AR 405-46). The ALJ held a supplemental hearing on September 4, 2008. (AR 392-404). The ALJ again denied benefits on November 4, 2008. (AR 253-62). Plaintiff commenced the instant action on February 17, 2009.


A. Generally

Plaintiff was born on December 24, 1946, and was 61 years old at the time of the September 4, 2008 hearing. (AR 48, 392). He has a bachelor's degree in geology and past relevant work experience as a geologist. (AR 59, 64, 261, 397-98).

B. Relevant Medical History

1. Treating Physician

In or about October 1988, Plaintiff was involved in a motorcycle accident that resulted in multiple injuries including a fracture of the right femur and a fracture dislocation of the right forefoot. (AR 116). On March 1, 2000, Plaintiff began receiving treatment from Dr. Richard Gordinier, a family practitioner, for his depression. (AR 189, 191-92). On that date, Dr. Gordinier prescribed Effexor. (AR 191). On August 6, 2001, Dr. Gordinier changed Plaintiff's prescription from Effexor to Prozac after Plaintiff reported that Effexor was not working. (AR 188). On September 10, 2001, he noted that Plaintiff had improved on Prozac (AR 186), and on November 19, 2003, he commented that Plaintiff was doing well on Prozac. (AR 182). However, on December 1, 2003, Plaintiff reported that he was not getting better. (AR 181).

On June 1, 2004, Plaintiff complained of depression and anxiety. (AR 175). On that date, Dr. Goridinier wrote on a prescription pad that Plaintiff had "long standing bipolar disease with panic attacks" and that "medication help[ed] but d[id] not ease this problem." (AR 174). On August 3, 2004, Dr. Gordinier reported that during office visits, Plaintiff was alert and appropriate, cooperated with keeping appointments, was able to follow simple instructions, and got along with others. (AR 208-09). He noted that he saw "some" signs or symptoms of a mental impairment but did not refer Plaintiff to a mental health professional. (AR 209). On November 26, 2007, Dr. Gordinier discontinued Prozac and again prescribed Effexor after Plaintiff reported problems with Prozac. (AR 380).

2. Consultative Examining Physicians

On February 14, 2002, Dr. Ernest Bagner conducted a psychiatric evaluation of Plaintiff. (AR 154-57). Plaintiff complained of mood swings with anger outbursts, anxiety, helplessness, and hopelessness. (AR 154, 157). He stated that he had previously suffered a head trauma that resulted in a coma and right facial surgery. (AR 155). Plaintiff also reported a history of marijuana use and incarcerations for marijuana possession and public nuisance. (Id.). A mental status examination revealed: Plaintiff reported feeling "dysphoric"; his affect was mood congruent; his speech was intact and coherent but decreased in rate, rhythm, and volume; his thought processes were tight with no flight of thought, looseness of association, thought blocking, or distractibility; his fund of knowledge was slightly impaired*fn2 ; he appeared to be of average intelligence; he was alert and oriented to person, place, and time; he denied suicidal or homicidal ideation; he appeared to have normal reality contact; he did not display evidence of auditory or visual hallucinations, or paranoid or grandiose delusions; his memory and concentration were intact; his abstractions were intact; and his insight and judgment were fair. (AR 156). Dr. Bagner assessed a Global Assessment of Functioning ("GAF") score of 73*fn3 and diagnosed Plaintiff with mood disorder, not otherwise specified, and "rule out" marijuana deprendency. (AR 156-57). He found that Plaintiff would have mild limitations interacting with supervisors, peers, and the public; mild limitations handling normal stresses at work; and no limitations maintaining concentration and attention, completing simple and complex tasks, or completing a normal workweek without interruption. (AR 157).

On July 2, 2004, Dr. Louis Fontana administered another psychiatric evaluation of Plaintiff. (AR 203-07). Plaintiff reported that he was involved in a motorcycle accident in 1988 which left him with significant loss of consciousness and delirium for approximately two weeks. (AR 204). He stated that he underwent neurosurgery but did not know the location of the stigmata of his surgery. (Id.). Plaintiff complained of difficulty focusing and poor anger control since the accident. (AR 203-04). Plaintiff noted that he had never seen a psychiatrist. (Id.).

Dr. Fontana performed a mental status examination which revealed the following: Plaintiff had good eye contact; he was cooperative; his mood was "somewhat dysphoric"; his affect was full and appropriate; his speech was of normal tone and meter; his thought processes were logical and goal-directed; he did not display any evidence of hallucinations or delusions; he denied any suicidal or homicidal ideation; he was oriented to person, place, and time; and his memory, fund of knowledge, calculations, abstract thinking, judgment, and insight were intact. (AR 205-06). Dr. Fontana diagnosed Plaintiff with "[d]ementia [d]ue to [h]ead [i]njury[] [w]ith [b]ehavioral [d]isturbance" and assessed a GAF score of 55.*fn4 (AR 206). He opined that Plaintiff should be able to: perform simple and repetitive tasks, as well as more detailed and complex tasks; accept instructions from supervisors; interact appropriately with co-workers and the public; perform work activities on a consistent basis without additional supervision; maintain regular attendance in the workplace; and complete a normal workday/workweek. (Id.).

3. Medical Experts

At the April 17, 2008 hearing, Drs. David Glassmire and William DeBolt testified as medical experts. (AR 417-34). Dr. Glassmire, a psychologist, testified that Plaintiff had a depressive disorder, not otherwise specified, and a provisional cognitive disorder, not otherwise specified. (AR 418-19). He explained that he gave a provisional diagnosis of cognitive disorder because, although Dr. Fontana diagnosed dementia due to head injury with behavioral disturbance, Dr. Fontana's mental status evaluation did not reveal any significant cognitive problems. (AR 421). Dr. Glassmire also noted that the record did not contain any significant treatment records for psychological issues. (AR 422). He concluded that from November 20, ...

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