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Steven J. Campbell v. Michael J. Astrue

February 8, 2011

STEVEN J. CAMPBELL,
GSA PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Steven Campbell ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability benefits 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 Gary S. Austin, United States Magistrate Judge.*fn1

/

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff protectively filed an application for disability insurance benefits on November 24, 2003, alleging disability beginning October 15, 2003, involving diabetes, back pain, and mental problems. AR 278-280, 722-723. Plaintiff's application was denied initially, upon reconsideration, and by an Administrative Law Judge ("ALJ") following a hearing. AR 174-175, 722-723, 729-739. Subsequently, the Appeals Council granted Plaintiff's request to review the ALJ's decision pursuant to the substantial evidence provision of Title 20 of the Code of Federal Regulations sections 404.977 and 416.1477. AR 746.

On February April 27, 2007, the Appeals Council issued its decision finding that the ALJ's disability determination was not supported by substantial evidence. The Appeals Council held:

The claimant's severe impairments were found to include back pain, obesity, diabetes mellitus, and a schizoaffective disorder. The claimant's mental limitations were found to be: limited to simple repetitive tasks, limited public and co-worker contact, no team work. Although concluding that the claimant has a severe mental impairment, there was no rating of the severity of that impairment pursuant to 20 CFR 404.1520a and 416.920a.

Exhibit 3F includes a diagnosis of borderline intellectual functioning, with a VIQ of 69, PIQ [of] 78, and FSIQ [of] 71. The decision contains no discussion of the borderline IQ finding, or of whether or not the record establishes deficits in adaptive behavior prior to age 22, as required by Listing 12.05C. Consideration of the findings in Exhibit 3F, and Listing 12.05C is required for the decision to be supported by substantial evidence.

The [ALJ] found that claimant's impairments are not as limiting as he alleges. Exhibit 16E and 11E contain lay statements which were not considered. Further evaluation of credibility is required.

AR 746. On remand, the Appeals Council directed the ALJ to: (1) further evaluate the claimant's mental impairment in accordance with Title 20 of the Code of Federal Regulations sections 404.1520a and 416.920a, and to document the application by providing specific findings and appropriate rationale for the functional areas described in Title 20 of the Code of Federal Regulations sections 404.1520a(c) and 416.920a(c); (2) specifically address claimant's borderline intellectual functioning in relation to the Listing of Impairments contained in Appendix 1 of Subpart P of Part 404; and (3) further evaluate claimant's subjective complaints pursuant to the Code of Federal Regulations sections 404.1529 and 416.929, as well as Social Security Regulation ("SSR") 96-7p. Additionally, the Appeals Council specifically called for the ALJ to address all lay witness statements, and if said testimony was discounted, to provide reasons germane to each witness. AR 747.

In accordance with the Appeals Council's remand instruction, ALJ William C. Thompson, Jr. held a hearing on July 8, 2008. On August 15, 2008, the ALJ issued an order denying benefits. AR 19-31. On January 30, 3009, the Appeals Council denied review of the July 2008 determination. AR 11-13.

Hearing Testimony of July 8, 2008

On July 8, 2008, in Stockton, California, ALJ Thompson held a second hearing in accordance with the directive from the Appeals Council. AR 130-171. Plaintiff and his representative Frederick Yucht*fn3 were in attendance. AR 132. Vocational Expert ("VE") Susan Moranda appeared telephonically. Id. During the hearing, the ALJ elicited testimony from Plaintiff and VE Moranda. Id. The entire hearing testimony of July 8, 2008, was reviewed by the Court. Only those portions relevant to the issues on appeal are summarized below. Otherwise, the testimonial evidence will be referenced as necessary in this Court's decision.

VE Susan Moranda

During the course of the hearing, the ALJ and Plaintiff's representative elicited testimony from VE Moranda. AR 164-170.

After obtaining a stipulation as to the VE's competency, the ALJ asked the VE to characterize Plaintiff's past work as a laborer on a turkey farm, a landscape gardener, and a painter, pursuant to the Dictionary of Occupational Titles ("DOT"). AR 165. The VE classified Plaintiff's work as a laborer on a turkey farm as "a general laborer has a DOT code of 869.664-014. It's typically unskilled, SVP 2, and it's typically medium as it's performed in the national economy." Id. As to Plaintiff's past work as a landscape gardener, the VE classified it as "DOT code of 408.161-010 . . .. It's a skilled job and it's heavy, but I, I don't know that he worked at that high of a skill level." Id. Finally, the VE classified the painter position as "DOT code of 749.684-038. It's semi-skilled, SVP 4, and it's typically medium exertion as it's performed in the national economy." AR 166. Having classified Plaintiff's past relevant work, the ALJ proceeded to pose several hypothetical questions to the VE. AR 166-168.

First, the VE was asked to assume a hypothetical worker that is "[thirty-one] year-old individual, educated to the eighth grade, who is literate and has that past work." AR 166. The VE was asked to further assume the individual was capable of lifting fifty pounds occasionally and twenty-five pounds frequently, as well as standing and walking in combination for at least six hours in the workday, but limited to work involving simple instructions and limited contact with the public. Finally, the VE was also asked to assume the hypothetical worker should not work at heights or around hazardous moving machinery, or be exposed to excessive amounts of respiratory irritants (i.e., dust, fumes, smoke, etc.). Id. The ALJ asked the VE for any jobs that would be available to a person with the above limitations. AR 166-167. In response to these limitations, the VE identified three positions: (1) hand packager, DOT 920.587-018, a unskilled and medium exertional level position with an SVP 2 score, and with approximately 200,000 persons employed in that position throughout California; (2) fast food worker, DOT 311.472-010, also a unskilled and medium exertional level position with an SVP 2 score, and approximately 11,000 persons employed in that occupation, presumably throughout California*fn4 ; and (3) small parts assembler, a unskilled and light exertional level position with an SVP 2 score, and approximately 97,000 persons employed in that position throughout California. AR 167. The ALJ ensured the jobs referenced by the VE were consistent with the DOT. AR 168. Thereafter, the ALJ invited the Plaintiff's representative to pose any additional hypothetical questions of the VE. Id.

Plaintiff's representative posed three additional hypothetical questions, each building upon the former. AR 168-170. First, the VE was asked to further assume the hypothetical worker's ability to "relate with co-workers is poor, to deal with the public is poor, to deal with work stress is poor, to functions independently is poor, [and] to maintain attention and concentration is poor." AR 168. Plaintiff's representative then proposed to define the use of "poor" in this hypothetical as "less than satisfactory,"*fn5 and asked the VE if the job base she identified earlier would erode given these additional limitations. AR 168-169. "With all those poor impairments, it would severely erode the job base . . . because those are primary functions. You have to exhibit acceptable behavior . . . and interaction in those areas, even for, for very unskilled work," replied the VE. AR 169.

A second hypothetical was posed within which the worker was also limited by "a poor ability to accept criticism from a supervisor." AR 169. "Yes, you have to have . . . a social ability . . . to be able to accept criticism and instruction from a supervisor at all times. And you would have to have appropriate response and behavior," the VE answered. Id.

In a third hypothetical, Plaintiff's representative asked the VE to assume the hypothetical worker was illiterate and whether illiteracy would have an effect. AR 169-170. "Well, it, it always does have an effect. The particular jobs that I did cite, literacy isn't a huge factor. Particularly the small parts assembler. And after training, I don't think that's a huge factor. But of course it can be an impairment," the VE responded. AR 170.

Medical Record

The entire medical record was reviewed by the Court. Only those portions relevant to the issues on appeal are summarized below. Otherwise, the medical record evidence will be referenced as necessary in this Court's decision.

Baha Abu-Esheh, M.D.

On December 14, 2002, Plaintiff was examined by Dr. Abu-Esheh in accordance with Plaintiff's claim for disability in the State of Oklahoma. AR 390-397. At the time, Plaintiff's chief complaints involved morbid obesity, difficulty standing for long periods, trouble breathing, pain in the chest and back, as well as swelling in the legs and feet. AR 390. The examination also included Plaintiff's social and psychological history, as conveyed to the doctor by Plaintiff. It notes he "[d]enies any smoking, alcohol use, or illicit drug use" and "[d]enies any mood swings, depressive moods or anxiety disorder. No delusions or hallucinations." AR 390-391.

Upon examination, the doctor noted that: Plaintiff was 450 pounds; his chest expansion was symmetrical bilaterally; his lungs were clear to auscultation bilaterally, without rales or wheezes; his heart sounds one and two were heard, without S3 or S4 gallops, and his heart rhythm was regular, with no murmurs or ventricular friction rub noted; both his ankles were swelling, but there was no cyanosis, clubbing, varicosities or point tenderness; his muscle strength, including grip, was equal bilaterally at 5/5 in both upper and lower extremities, and he was able to do both fine and gross manipulation with his fingers; he had a full range of motion noted in all extremities, without pain; pain was present in his lower back, but no muscle spasms were appreciable, and there was no limitation in his back's range of motion, although pain was present through all ranges of motion; his mental status was awake, alert, and oriented "x3," no overt pathology was noted and his recent and remote memories were noted to be intact, and finally, while his gait was slow, there was no muscle atrophy. Dr. Abu-Esheh did not provide a diagnosis or recommendation. AR 391-392.

On January 9, 2003, psychologist M. Gerald Ball conducted a psychological evaluation. AR 400-402. Dr. Ball's evaluation noted that Plaintiff "was cooperative" and did not exhibit "extraneous movements." AR 400. He also noted that Plaintiff was "a large obese man . . . just over 500 pounds." Id. Plaintiff reported to Dr. Ball that: he had never been hospitalized for psychiatric problems; he started hearing voices when he was five years old and that at that time he was frequently sexually molested by an older sister; he has had past problems with drugs and alcohol, but has been clean and sober for four months; and that his only health problem was obesity. Id.

M. Gerald Ball, Ph.D.

Dr. Ball observed that Plaintiff "was not well oriented to time but did seem oriented to place and person. His vision appears to be adequate. His articulation is good. He responded appropriately to conversational level speech and does not appear to have a hearing problem. He did not walk with a limp or use a cane but did complain of periodic dizziness." AR 400.

Dr. Ball then administered an IQ test. AR 401. Plaintiff was assessed a verbal IQ of 69, performance IQ of 78, and a Full Scale IQ of 71, thus placing him in the lower level of the Borderline range of intellectual functioning. Id. Dr. Ball concluded that "[b]ecause of his limited intellectual capacity, his considerable difficulty with arithmetic, and his inability to deal with people outside the home, it is my opinion that at the present time [Plaintiff] is not capable of handling benefits without assistance." Id.

Burnard L. Pearce, Ph.D.

On February 13, 2003, Dr. Pearce completed a Psychiatric Review Technique Form and explicitly considered the opinions of Dr. Ball and Dr. Abu-Esheh. AR 412- 425. Dr. Pearce opined that Plaintiff had "[p]ossible Borderline intellectual functioning." AR 413. With respect to substance addiction disorders, Dr. Pearce also indicated "[b]ehavioral changes or physical changes associated with the regular use of substances that affect the central nervous system." AR 420. The doctor also rated Plaintiff's functional limitations, indicating that Plaintiff's daily living activities were subject to mild limitation, his social function was moderately limited; maintaining concentration, persistence, or pace was mildly limited; and he experienced no episodes of decompensation. AR 422. Finally, Dr. Pearce opined in the Consultant Notes section that:

The history [Plaintiff] reported with respect to his mental health is less than completely persuasive. He indicated to [Dr. Ball] that he is currently taking Zyprexa at bedtime. It is surmised from his other statements that he is ostensibly taking the medication by reason of his report that he hears voices. The other medical evidence, however, is not supportive of either his statement that he is taking Zyprexa or that he hears voices. When seen [by Dr. Abu-Esheh] on 12-14-02 he reported to [Dr. Abu-Esheh] that he was not taking any medications and specifically denied experiencing any "mood swings, depressive moods, or anxiety disorder. No delusions or hallucinations." He also denied to [Dr. Abu-Esheh] that he had experienced any problems with drugs or alcohol. Some weeks later, however, he reported initially to consulting psychologist that he did not have any problems with either drugs or alcohol but later indicated that he has such problems. . . . He was administered the Wechsler Adult Intelligence Scale-III and obtained a VIQ-69, PIQ-78 and a Full Scale IQ-71. These scores, if a valid representation of his abilities, would place his overall level of intellectual functioning within the lower limits of the Borderline range. There is, however, reason to question the validity of these test results. He obtained a scale score of 10 on the Picture Arrangement subtest which suggests that the claimant has some well-developed social skills and that he is able to anticipate and predict the actions of others. This is not a skill that one normally sees in Borderline intellectual functioning or mildly retarded individuals. The currently obtained test scores thus probably are not representative of the claimant's functioning and are an underestimate of his actual level of functioning. AR 424.

In a mental residual functional capacity ("RFC") assessment dated February 13, 2003, Dr. Pearce opined that Plaintiff was not significantly limited in his ability to: remember locations and work-like procedures; understand and remember very short and simple instructions; carry out very short and simple instructions, maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; sustain an ordinary routine without special supervision; work in coordination with or proximity to other without being distracted by them; make simple work-related decisions; complete a normal workday and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; be aware of normal hazards and take appropriate precautions; travel in unfamiliar places or use public transportation; and set realistic goals or make plans independently of others. AR 426-427.

Dr. Pearce found Plaintiff moderately limited in a few areas: the ability to understand and remember detailed instructions; the ability to carry out detailed instructions; and the ability to interact appropriately with the public. Id. In conclusion, Dr. Pearce opined that Plaintiff "can understand, remember and carry out simple and some, but not all, detailed instructions under routine supervision. He might have some difficulty relating to the general public in an in-depth ongoing fashion but can relate to supervisors and co-workers in an incidental manner." AR 428.

2003 Physical RFC Assessment

On January 17, 2003, a physical RFC assessment pertaining to Plaintiff was completed. AR 429-436. The consulting physician*fn6 identified the following exertional limitations: lift and/or carry twenty pounds occasionally, ten pounds frequently; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; and an unlimited ability to push and/or pull. To support this determination, the consulting physician stated "[t]his is a patient who alleges limitations secondary to obesity, back pain, chest pain, and asthma. He states he can prepare meals, do most all of the household maintenance, clean the house, do the laundry, do the dishes, and take out the trash. There are no current physical findings from a ...


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