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Scott Brodie v. Commissioner of Social Security

March 30, 2011

SCOTT BRODIE,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 15) and defendant's cross-motion for summary judgment (Doc. 18).

I. PROCEDURAL HISTORY

Plaintiff first applied for social security benefits on January 10, 2000, claiming that disability began on November 22, 1998. Plaintiff claims that disability is caused by a combination of syncope [fainting], seizure disorder, and sleep apnea. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, and an unfavorable decision was issued on October 24, 2001, by Administrative Law Judge ("ALJ") Nicholas Stucky. The Appeals Council declined review and plaintiff did not appeal.*fn1

Plaintiff filed a second application for benefits on January 20, 2002, again claiming disability since November 22, 1998. This application was also denied initially and on reconsideration. Plaintiff requested an administrative hearing, which was held on May 21, 2003, before ALJ F. Lamont Liggett. In a September 17, 2003, decision, plaintiff was once again found to be not disabled. After the Appeals Council declined review, plaintiff appealed and this court affirmed the agency decision in March 2006, and plaintiff appealed. The Ninth Circuit Court of Appeals affirmed in an unpublished memorandum disposition issued on February 21, 2008.*fn2

While plaintiff's appeal from the September 17, 2003, denial of benefits was pending in the Ninth Circuit, the matter came before the agency again on a third application for benefits filed in September 2004. Another administrative hearing occurred on September 6, 2006, before ALJ Mark C. Ramsey. In a January 22, 2007, decision, plaintiff was again found to be not disabled. The Appeals Council granted review of this decision and, on August 28, 2008, issued an order remanding to the ALJ for further proceedings. The Appeals Council stated that it was vacating and remanding for the following reasons:

1. The record shows that the claimant is mildly obese (Exhibits 2F/11, 7F). However, the decision does not contain an adequate evaluation of the claimant's obesity in accordance with Social Security Ruling 02-01p which requires adjudicators to consider the effect of obesity not only under the Listings but also when assessing a claim at other steps of the sequential evaluation process.

2. The hearing decision finds that the claimant has mild restriction of activities of daily living, mild difficulty in maintaining social functioning, no difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation (see page

5). However, this "B" criteria evaluation is inconsistent with the Administrative Law Judge's finding of a severe depression (Finding 2). The decision does not provide rationale to reconcile the discrepancy about whether the mental impairment is severe or not.

3. The hearing decision does not contain an adequate evaluation of the examining source opinion in Exhibit 7F. The neurological consultative examiner, Dr. Pathak, stated "the recurrent passing out and dizziness spells makes it difficult for him to be gainfully employed." He further stated that the claimant's major disabling factor was passing out episodes once or twice a week and feeling dizzy and having deja vu feeling on a daily basis. The Administrative Law Judge did not adequately explain the weight given to this opinion.

4. The decision does not evaluate the lay statements from claimant's significant other, Kristin Sterling, in Exhibit 8E. Kristin Sterling stated that the claimant often became unconscious and had [a] difficult time focusing after seizures. She further stated that the claimant must always try to be aware of surroundings to prevent injury. The Administrative Law Judge did not explain the weight given to these statements in accordance with Social Security Ruling 06-03p. Social Security Ruling 06-03p states that the adjudicator should explain the weight given to opinions from other sources in the decision to ensure that the decision allows the claimant or a subsequent reviewer to follow the adjudicator's reasoning.

5. The decision does not provide an adequate consideration of steps four and five of the sequential evaluation process. At step four of the sequential evaluation process, the decision does not contain an analysis of claimant's past relevant work or a comparison of the claimant's residual functional capacity with the physical and/or mental demands of past relevant work as the claimant performed it, or as the job is generally performed in the national economy (citations omitted). At step five of the sequential evaluation process, the decision used Rule 204.00 as a framework to find the claimant "not disabled," but did not cite any jobs which the claimant can perform with his assessed limitations.

Among the Appeals Council's instructions to the ALJ on remand was the following: "If warranted, obtain evidence from a neurological medical expert to clarify the nature and severity of the claimant's seizure disorder (citations omitted)."

Plaintiff appeared for another administrative hearing on February 24, 2009. In an April 22, 2009, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant meets the insured status requirements through December 31, 2003;

2. The claimant has the following severe impairments: seizure disorder, vasodepressive [sleep apnea] syndrome, and syncope;

3. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

4. The claimant has the residual functional capacity to perform a full range of work at all exertional levels, but with the following non-exertional limitations: avoid working at heights and around moving machinery;

5. The claimant has no limitations associated with his mental impairment as that impairment is found to be non-severe; and

6. The claimant is capable of performing his past relevant work as a security guard.

After the Appeals Council declined further review on August 7, 2009, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

November 30, 2004 -- Plaintiff submitted a Seizure Questionnaire. He indicated that his last four seizures had occurred on November 18, 2004, November 22, 2004, November 28, 2004, and earlier in the day on November 30, 2004. Plaintiff sated that these seizures result in convulsions and loss of consciousness. He stated the seizures last 1-2 minutes and that, after the seizures, he feels disoriented, nauseous, light headed, and very tired. Plaintiff added that it takes him two or more hours to recover, though he remains tired for the rest of the day. Plaintiff stated that medication is not helpful and causes side effects worse than the seizures.

December 8, 2004 -- Plaintiff submitted a Function Report -- Adult. Plaintiff stated that he is unable to have a normal life due to seizures, syncope, and sleep apnea. As to personal care, plaintiff stated that he is unable to do anything on his own following a seizure. As to cooking, he stated that he cooks microwave meals on his own most days on "good days," that this takes him 2-5 minutes to accomplish, and that he had been advised by his doctors not to cook on the stove. He stated that he could do light cleaning, but not on days when he has a seizure. As to getting about, plaintiff stated that he drives a car, but never by himself. Plaintiff stated that he is able to handle money. He stated that he cannot walk any distance due to fatigue, and that his attention and ability to follow instructions is "fine until [seizure], syncope." He added that he does not handle stress or changes in routine well, and that he cannot get along with authority figures.

On this same date, plaintiff's "significant other" Kristin Sterling submitted a Function Report -- Adult Third Party. Ms. Sterling reported that plaintiff must "be constantly aware of surroundings." She also stated that plaintiff cannot do any house or yard work because it is too dangerous given his seizures. She stated that plaintiff is often unconscious due to his seizures and has a difficult time focusing after a seizure episode. Ms. Sterling added that plaintiff's condition causes him depression, social embarrassment, and isolation.

December 14, 2004 -- Agency examining psychiatrist Pavitar S. Cheema, M.D., performed a comprehensive psychiatric evaluation. Plaintiff reported that his chief complaint was "passing out." Per plaintiff's report, the doctor recited the following history:

The patient gives a history of episodes of loss of consciousness. The patient reports that he passes out, lasting for one minute to 1-1/2 minutes. The patient states that sometimes he gets several episodes of passing out a day. Patient states that he has obtained injuries and feels embarrassed by passing out. He states that he feels depressed and anxious, because he is not able to do what he used to do. The patient states that his activities are limited. The patient states that he cannot do the things that he used to do. Patient reports that he is worried about his health. The patient states that he feels sad, as he feels not productive. The patient states that he has feeling of helplessness and gets irritability of mood.

The patient denies a history of feelings of hopelessness and helplessness. No history of feelings of worthlessness. No history of suicidal thoughts. No history of getting special messages from the TV or radio. No history of elated mood. No history of racing thoughts. No history of any kind of hallucinations. No paranoid or delusional thoughts.

No history of alcohol or drug abuse.

Plaintiff reported that, at the time of the evaluation, he was not taking any medication for anxiety or depression. As to activities of daily living, plaintiff told Dr. Cheema that he is able to take care of his physical hygiene. On mental status examination, Dr. Cheema diagnosed mood disorder secondary to medical problems and assigned a global assessment of functioning ("GAF") score of 65 out of a possible 100. Dr. Cheema offered the following source statement:

The patient presents a history of seizures and passing out. The patient states that he has been on several medications, but the medications have not been able to control his seizures. The patient has depressive symptoms. Based on the history provided by the patient and the current mental status examination, from a psychiatric point of view, patient should be able to relate to the public, co-workers, and supervisors. He should be able to remember, understand, and carry out complex job instructions, as well as simple job instructions. He should be able to deal with changes in routine work settings. Patient's social interactions are fair. He takes care of routine minor chores for himself. Prognosis for this patient is fair. This claimant is able to manage his benefit fund.

January 3, 2005 -- Agency consultative psychiatrist D.R. Walk, M.D., submitted a Psychiatric Review Technique form. The doctor concluded that plaintiff has a non-severe affective disorder evidenced by depressive syndrome with sleep disturbance, decreased energy, and difficulty concentrating. Dr. Walk opined that plaintiff was mildly limited in activities of daily living, social functioning, and ability to maintain concentration, persistence, or pace. No episodes of decompensation were noted.

February 15, 2005 -- Agency examining doctor Steve McIntire, M.D., conducted a neurologic evaluation relative to plaintiff's complaint of seizures and syncope. ...


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