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Torlucci v. Astrue

April 7, 2010


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



Ralph J. Torlucci, Jr. ("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 application for Supplemental Security Income ("SSI") and various other benefits administered by the Social Security Administration. 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.


On March 30, 2007, Plaintiff protectively filed an application for SSI and for benefits under other programs administered by the Social Security Administration. (Administrative Record ("AR") 10, 65-68, 100). He alleged disability due to Bipolar Disorder and anxiety. (AR 131). He alleged a disability onset date of March 7, 2006. (AR 100).

The Agency denied Plaintiff's claims initially on June 13, 2007. (AR 69-72). This denial was upheld upon reconsideration. (AR 74-78). On September 16, 2008, the ALJ conducted a hearing to review Plaintiff's claim. (AR 26). The ALJ denied benefits on February 26, 2009. (AR 18). Plaintiff sought review of the ALJ's decision before the Appeals Council, which denied review on May 13, 2009. (AR 1). Plaintiff commenced the instant action on June 23, 2009.


Plaintiff was born on August 30, 1962 and was forty-six years old at the time of the hearing. (AR 27-28, 100). He has some college education. (AR 28). He has past work experience as a store manager, waiter, bartender, and set designer. (AR 28-29).

A. Plaintiff's Medical History

Plaintiff's medical records show that he sought treatment from the San Bernardino Department of Behavioral Health on December 5, 2006 and was diagnosed with Bipolar Disorder, PTSD, and cannibis abuse, as well as chronic pain in his hand. (AR 180). Plaintiff was assigned a GAF score of 50. (Id.) The remainder of his treatment notes reveal complaints of anxiety (AR 181, 183, 243), cannibis abuse, perhaps due to use of medicinal marijuana (AR 183), pain in his right hand (AR 184), and racing thoughts. (AR 189, 231). On January 13, 2007, Dr. Adly Azab examined Plaintiff, noting that Plaintiff complained of anxiety, poor sleep, periods of euphoria alternating with periods of crying, and feelings of vulnerability. (AR 181). Plaintiff was again assessed with Bipolar Disorder and a GAF of 50. (AR 182, 244). The medical records also show treatment for an injury to his right thumb. (AR 204-23).*fn1

B. Consultative Examinations

K.D. Gregg, M.D., performed a consultative examination, including a Mental Residual Functional Capacity ("Mental RFC") assessment, on Plaintiff on May 30, 2007. (AR 161). Dr. Gregg noted previous diagnoses of Bipolar Disorder (AR 164, 180), PTSD (AR 165, 180), and a substance addiction disorder. (AR 167, 180). Addressing Plaintiff's functional limitations, Dr. Gregg found mild limitation restricting daily living activities; moderate limitation in maintaining social functioning and maintaining concentration, persistence or pace; and no evidence of repeated episodes of decompensation of extended duration. (AR 169). Dr. Gregg noted that he found little to support Plaintiff's diagnoses and that Plaintiff's cannibis use could account for the anxiety, depression, and decreased focus and memory. (AR 171). In the "Summary Conclusion" section of the form, Dr. Gregg stated there were "moderate[]" limitations in the following areas: ability to understand and remember detailed instructions; ability to carry out detailed instructions; ability to maintain attention and concentration for extended periods; and ability to interact appropriately with the general public. (AR 172-73). As to the Mental RFC, Dr. Gregg asserted that Plaintiff was capable of nonpublic, simple repetitive tasks. (AR 174).

Psychiatrist Jason Yang, M.D., performed a consultative examination on November 6, 2008. He noted that Plaintiff lived alone and was able to eat, dress, and bathe independently; do some household chores, errands, and cooking; manage his own money; go places alone; visit with family and friends; and get along "adequately" with others. (AR 264). He diagnosed Plaintiff with Depressive Disorder, Not Otherwise Specified, found his psychosocial/environmental stressors moderate, and assessed a GAF score of 66. (AR 265). Dr. Yang noted that, at the time of the examination, Plaintiff would have "some mild difficulty performing complex tasks." (Id.). Dr. Yang found that Plaintiff's impairment did not affect his ability to understand, remember, and carry out instructions; his ability to interact appropriately with supervisors, co-workers, or the public; or any other capabilities. (AR 266-67).

Internist Bryan H. To., M.D., performed a consultative examination on November 13, 2008. (AR 270). Dr. To noted that Plaintiff had been to the emergency room for complaints of right hand injury and pain and that medical records indicated a sleep problem. (AR 270). Plaintiff also reported headaches and back pain. (AR 270-71). Dr. To's functional assessment found that Plaintiff could push, pull, lift, and carry 50 pounds occasionally and 25 pounds frequently; he could stand and walk six hours in an eight-hour workday; he had no restrictions in sitting; he could frequently walk on uneven surfaces, climb ladders, work with heights, bend, kneel, stoop, crawl, and crouch. (AR 274). There were no hearing and seeing restrictions, no environmental limitations, and no need for an ambulatory device. (AR 274-75).

C. Third-Party Report

Scott C. Wilken, Plaintiff's friend, submitted a function report describing how Plaintiff's conditions limit Plaintiff's activities. (AR 122). Mr. Wilkin asserted that, since the onset of Plaintiff's condition, Plaintiff had been unable to leave the house, hold a job, handle confrontations, or sleep well. (AR 123). Plaintiff required reminders to take his medicine and sometimes did not have an appetite. (AR 124). The report reflects that Plaintiff did not go outside often. (AR 125, 126). Regarding Plaintiff's interpersonal relationships, Mr. Wilken reported that Plaintiff was sensitive and easily hurt, got defensive with authority figures, and had ceased most of his social activity. (AR 127-28). Plaintiff was unusually afraid that his house would be broken into. (AR 128). Finally, Mr. Wilkin asserted that Plaintiff had "waves of depression," that "little, insignificant things w[ould] ruin his day," and that he had become a recluse because of his fear and suspicion. (AR 129).

D. Plaintiff's Testimony

Plaintiff testified that his last job, which was as a video store manager, ended in 2006. (AR 28). His prior work experience included work as a waiter, bartender, and a set constructor and designer for a community college theater department. (AR 29). Plaintiff asserted that he could no longer work because his "mind won't stop racing so it's hard to concentrate," and because he was afraid to leave his house. (AR 30, 49). He attributed these symptoms to a home invasion during which both he and his roommate were beaten, and subsequent harassment at his place of work by the perpetrators. (Id.). During this incident, his right thumb, which had previously been broken, was rebroken. (AR 31). He testified that he was also attacked, in a separate incident, by a man with whom he had been intimate. (AR 52-53). This led to a generalized fear. (AR 57-58).

Plaintiff testified he was undergoing psychiatric and psychological treatment, and that his medications---Lexapro, Depakote, and Klonopin---helped him to function. (AR 32-33). He explained his history of non-compliance with his medication as being caused by side-effects of his previous medications. (AR 33, 55-56). Plaintiff admitted to smoking marijuana, for which his prescription had recently run out, about once a week for anxiety. (AR 33-34). He testified that he had trouble concentrating. (AR ...

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