The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff Edward Hunga ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Dennis L. Beck, United States Magistrate Judge.
FACTS AND PRIOR PROCEEDINGS*fn1
In August 2001, Plaintiff filed applications for DIB and SSI, alleging disability due to hepatitis C, chronic obstructive pulmonary disease ("COPD"), extreme nervousness, depression and fatigue. AR 65-67, 77, 294-96. After an Administrative Law Judge ("ALJ") issued an unfavorable decision, Plaintiff requested review by the Appeals Council. AR 9, 10-17. The Appeals Council denied review on October 13, 2004. AR 4-6.
While awaiting a response from the Appeals Council, Plaintiff filed applications for DIB and SSI in March 2003. AR 703-05, 1030-33. After being denied initially and on reconsideration, Plaintiff requested a hearing before an ALJ. AR 682-83, 684, 685-89, 691-96, 697-98. The ALJ issued an unfavorable decision on June 23, 2005. AR 336-46. Plaintiff again requested review by the Appeals Council. AR 334-35.
In July 2005, the District Court remanded the original action for additional proceedings pursuant to a stipulation executed by the parties. AR 380-82. The Appeals Council remanded both cases on September 21, 2005. AR 383-88.
Following remand, ALJ Daniel G. Heely held a supplemental hearing. AR 1041-81. On November 8, 2006, the ALJ issued a partially favorable decision. AR 312-32. On August 26, 2009, the Appeals Council declined jurisdiction. AR 305-08.
ALJ Heely held a supplemental hearing on July 10, 2006, in Stockton, California. Plaintiff appeared with his attorney, Charles Oren. AR 1043. Vocational expert ("VE") Stephen Schmidt and medical expert ("ME") David John Anderson, M.D., also appeared and testified. AR 1043.
Plaintiff testified that he last worked in 2001. He has problems breathing and has COPD. He is trying to quit smoking, but averages about four or five cigarettes a day. He also has hepatitis C. AR 1046-47.
While he denied illegal drug use, he admitted to cocaine use once about five or six years ago. He last drank alcohol about 14 or 15 months ago, when he was drinking about a 12-pack of beer a day. He stopped drinking and entered the Rock of Recovery program, which is a discipleship program. 1047-48.
He has been living in the Rock of Recovery for 14 months. He does chores around the home. On a normal day, he might do the dishes, vacuum or run the garbage out. He sometimes supervises or monitors other program clients, but does not get involved in hiring or firing. AR 1048-50.
Although Plaintiff is taking prescription medications, he is not taking any mental health medicines or getting any mental health treatment. He believed that he last had mental health treatment in 2004 for paranoia, depression and a psychotic episode. Plaintiff explained that he was not getting mental health treatment because he had missed appointments while living on the street and was dropped from the regional clinic in Ceres. While he still has depression and episodes of paranoia, he has not reestablished treatment. AR 1050-52.
In response to questions from his attorney, Plaintiff testified that he has problems with fatigue. He sleeps about four or five hours a night and naps every day. He also has had leg cramping for six or seven years, but doesn't know the cause. AR 1052-53.
Plaintiff affirmed that he had been to the doctor recently for an irregular heartbeat. He wore a Holter monitor and they determined he had an irregular heartbeat. They cut down his high blood pressure medicine. They also told him to avoid caffeine and stress and to quit smoking. When he is under a lot of pressure, the problem becomes more prevalent. After reducing his caffeine and blood pressure medication, his condition is a little better. AR 1053-55.
Plaintiff also testified that he has COPD. He can walk about 20 or 30 minutes before he has to sit down and rest for 15 or 20 minutes. AR 1055-56.
In the Rock of Recovery program, Plaintiff is monitored to make sure that he is not taking any drugs or alcohol, but he is not tested. AR 1056.
Plaintiff is still depressed. He has thoughts of taking his own life every couple months. He wants to get out on his own and be able to take care of himself, but gets depressed because he can't work like he used to. AR 1056-58. He also has paranoid thoughts every day. It causes him anxiety and stress. AR 1058-59.
Dr. Anderson, a board certified psychiatrist, also testified as a medical expert. AR 1059-60. In response to questions from the ALJ, Dr. Anderson reported that there was evidence of a recurrent mood disorder of varying intensity sometimes attributed to a second diagnosis of poly-substance dependency with a focus on alcohol which had been very substantial and more than likely related to Plaintiff's psychiatric hospitalizations in 2003 and in 2004. AR 1063. Plaintiff had treatment for an affective disorder with antidepressants with unclear results. There also was evidence of hypertension, some cardiac irritability leading to symptoms of palpitations, and a mild to moderate level of COPD. AR 1063-64.
Dr. Anderson testified that none of the psychiatric diagnoses meet the listing of impairments. He opined that since February 27, 2004, Plaintiff's affective disorder in combination with a number of the physical disorders equaled listing 12.04. On the Psychiatric Review Technique form, Plaintiff has disturbance of mood, with sleep disturbance, and psychomotor agitation or retardation. AR 1065-68.
Dr. Anderson opined that as of February 27, 2004, Plaintiff had moderate limitations in ADLs, marked limitations in social functioning, concentration, persistence and pace and two episodes of decompensation. AR 1068. Before February 27, 2004, the ongoing substance abuse would have been material to any disability. AR 1069. Dr. Anderson explained that if one looks at the history and instability prior to sobriety, it would be very difficult to evaluate the degree of his depressive symptomatology independently of his alcoholism. The degrees of limitation with the ongoing substance abuse would be marked, marked, marked and four episodes. Prior to February 27, 2004, the substance abuse was driving Plaintiff's mental disorder. Dr. Anderson testified that there were withdrawal symptoms and some psychiatric disturbance and difficulties, but the real fuel of it was his substance abuse, predominately alcohol. AR 1068-70.
In response to questions from the ALJ, the VE also testified and agreed to identify if his testimony differed from the "DOT." AR 1072. The VE classified Plaintiff's past relevant work and expected transferable skills from the positions of forklift operator, janitor, pallet maker, maintenance worker, carpenter and farm machine operator. AR 1073-74.
For the hypothetical questions, the ALJ identified a person with the same age, education and past relevant work history as Plaintiff. This person would have 11 years of education with no GED. He was able to communicate in simple, everyday types of English, but not in complex, technical, scientific types of communication. AR 1074-75.
For the first hypothetical, the ALJ asked the VE to assume a person who would be limited to sitting, standing, and walking less than two hours each in a normal workday, lifting and/or carrying less than 10 pounds even occasionally, and who could not deal with any amount of work stress. The VE testified that there are no past relevant or other jobs. AR 1075.
For the second hypothetical, the ALJ asked the VE to assume an individual that would be limited to jobs with occasional public contact and limited to simple, repetitive, routine types of tasks. This individual also could sit, stand, and walk six out of eight hours in a normal workday with normal breaks and lift and/or carry a maximum of 35 pounds occasionally, 20 pounds frequently. This individual could never climb ropes or scaffolds, but occasionally could climb ramps, stairs, or ladders and could frequently balance, stoop, kneel, crouch, or crawl. This person could not work around any concentrated exposure to fumes, odors, dust, gases, or poor ventilation.
The VE testified that such a person could not do Plaintiff's past jobs, but could do other jobs. These jobs included an assembly position, 813.684-022, light, SVP 2, with 47,000 positions in the State; vehicle washers, 915.667-010, light, SVP 2, with 15,000 jobs in the State; and dishwashers, 318.650-010, medium, SVP 2, with 100,000 jobs in the State. The VE affirmed that his testimony did not differ from the DOT. AR 1075-76.
In July and August 2001, Plaintiff reported fatigue and dizziness. AR 247-48, 252, 254. Chest x-rays taken on July 12, 2001, showed hyperaeration and possible old TB. AR 253.
On September 21, 2001, Ralph H. Wood, M.D., completed a consultative examination. Plaintiff denied the use of alcohol or drugs, but continued to smoke a pack of cigarettes a day. Following physical examination, Dr. Wood diagnosed Plaintiff with a lifelong history of drug and alcohol abuse, currently clean and sober, a history of mild bronchial asthma with no evidence of COPD, a history of being positive for hepatitis C, and a history of amputation of the right fifth finger. Dr. Wood opined that Plaintiff would be capable "for at least sedentary activity with customary breaks for six-eight hours." He could lift, push or pull up to 20 pounds and had fine finger movement limitations with an essentially absent right fifth finger. AR 159-61.
On October 11, 2001, Philip M. Cushman, Ph.D., a clinical psychologist, conducted a consultative psychological examination. Following assessments, Dr. Cushman diagnosed Plaintiff with polysubstance dependence in partial remission, alcohol induced mood disorder with anxiety, mathematics disorder, antisocial personality disorder and a Global Assessment of Functioning ("GAF') of 55. Dr. Cushman opined that Plaintiff was not currently capable of performing any detailed or complex tasks in a vocational setting, but was capable of performing simple and repetitive tasks of a visual-motor nature. He was not capable of regularly attending or consistently participating due to his dysphoria and anxiety. Dr. Cushman further opined that Plaintiff might benefit from ongoing psychotherapy once he reached sobriety and attained work, as a way of maintaining work. He was not capable of working a normal workday or workweek and most likely could work up to 4 hours per day. He was capable of accepting instructions from supervisors, but he indicated problems getting along with co-workers and the public. He was not able to deal with the usual stressors encountered in a competitive work environment. Dr. Cushman had serious reservations about Plaintiff's emotional stability in light of his significant substance abuse history and antisocial ways. AR 163-68.
On November 8, 2001, Dr. Charlotte Bible, a state agency physician, completed a Mental Residual Functional Capacity Assessment form. Dr. Bible noted that the categories were "predictive" if clean and sober. She opined that Plaintiff was moderately limited in the ability to understand and remember detailed instructions, in the ability to carry out detailed instructions, in the ability to maintain attention and concentration for extended periods and in the ability to work in coordination with or proximity to others without being distracted by them. He also was moderately limited in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. He was moderately limited in the ability to interact appropriately with the general public, in the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes, and in the ability to respond appropriately to changes in the work setting. AR 169-72.
Dr. Bible also completed a Psychiatric Review Technique form. Dr. Bible opined that Plaintiff met Listing 12.09. He had an organic mental disorder, personality disorder and substance addiction disorder. With drug and alcohol abuse, Plaintiff had marked restriction of activities of daily living, marked difficulties in maintaining social functioning, marked difficulties in maintaining concentration, persistence, or pace. After twelve months of sobriety and abstinence, Plaintiff would have moderate restrictions in these areas. AR 173-86.
On February 1, 2002, a state agency medical consultant completed a Psychiatric Review Technique. The consultant opined that Plaintiff had an alcohol induced anxiety-related disorder that did not precisely satisfy the diagnostic criteria. AR 192. Plaintiff also met the Listing for a substance addiction disorder (12.09). AR 195. Plaintiff had moderate restriction of activities of daily living, marked difficulties in maintaining social functioning and marked difficulties in maintaining concentration, persistence or pace. There was insufficient evidence of episodes of decompensation. AR 197.
On February 1, 2002, the state agency medical consultant also completed a Mental Residual Functional Capacity Assessment form. The consultant opined that without drugs and alcohol, Plaintiff had moderate limitations in the ability to understand and remember detailed instructions, in the ability to carry out detailed instructions, in the ability to maintain attention and concentration for extended periods, and in the ability to work in coordination with or proximity to others without being distracted by them. AR 201. He also had moderate limitations in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. He had moderate limitations in the ability to interact appropriately with the general public, in the ability to accept instructions and respond appropriately to criticism from supervisors and in the ability to set realistic goals or make plans independently of others. AR 202.
In February and April 2002, Plaintiff complained of leg cramps. He was prescribed Quinine. AR 237, 238. A segmental pressure study of his lower extremities was normal. AR 236.
On May 3, 2002, Plaintiff complained to Dr. Jose Rodriguez of leg cramping. He was taking quinine, Restoril and Zoloft. AR 235.
On July 15, 2002, Plaintiff saw Dr. Debra J. Cheang, a psychiatrist at Stanislaus County Behavioral Health and Recovery Services. Plaintiff reported that his depression had been worsening. Dr. Cheang noted that Plaintiff had a history of good response to Zoloft, but did not give it adequate time or increase the dose. Plaintiff also had a long history of polysubstance abuse, but reportedly had been clean and sober for one year, except for one drink the previous month. Plaintiff also reported some paranoia. Dr. Cheang diagnosed major depressive disorder, ...