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Jonathan Flagg v. Michael J. Astrue

June 28, 2011


The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge


This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded.


Plaintiff Jonathan Flagg ("Plaintiff") filed an application for Disability Insurance Benefits on October 10, 2006. He alleged an onset date of September 28, 2006, and claimed disability due to Asperger's syndrome, sleep apnea, and stress(AR 159, 174). The Social Security Administration ("SSA") denied Plaintiff's application on initial review (AR 89), and he requested a hearing before an Administrative Law Judge ("ALJ") (AR 94). The first two hearings occurred before ALJ Kevin M. McCormick on February 21, 2008 (AR 25-35) and May 7, 2008 (AR 36-48). No testimony was taken (AR 26; 37) and the ALJ continued both hearings in order to give Plaintiff additional time to retain an attorney (See AR 29, 39). The final hearing on record occurred before ALJ John Moreen on September 10, 2008 (AR 49), and was attended by Plaintiff, along with his counsel (AR 51). The ALJ took testimony from a medical expert ("ME"), Dr. Glenn Griffin (AR 67-78; See 128-134), a vocational expert ("VE") (AR 82-86), and Plaintiff testified on his own behalf (AR 52-66; 79-82).

On November 5, 2008, the ALJ issued a decision finding that Plaintiff was not disabled (AR 17-23). On July 16, 2010, the Appeals Council declined Plaintiff's request for administrative review (AR 1-4), and thus the ALJ's decision became the final decision of the Commissioner, subject to this judicial review.

Plaintiff raises the following issues:

1. Whether the ALJ erred in rejecting the mental functional limitations assessed by treating psychiatrist Dr. Feinfeld and examining psychologist Dr. Townsend; and

2. Whether the ALJ erred in purporting to adopt the testimony of the medical expert while actually rejecting significant portions of that testimony without explanation. (JS at 6-7.)

In response, the Commissioner argues that the ALJ in fact properly rejected the opinion of the treating psychiatrist, Dr. Feinfeld, and examining consultant, Dr. Townsend, and, further, argues that substantial evidence supports the ALJ's opinion.

A. History Of Plaintiff's Impairments And Treatment.

Plaintiff was 45years old when he claimed that he became unable to work as a result of his disabling conditions in 2006 (AR 174). Plaintiff graduated from college in 1984 (AR 181). From 1988 to 2006, the SSA employed Plaintiff first as a Benefits Authorizer and then as a Claims Representative ("CR") (AR 221, 237). In 2006, Plaintiff was dismissed from his employment with the SSA (AR 221-44). Since Plaintiff's dismissal, he worked in a grocery store for three weeks (AR 55-56). Plaintiff believes he was dismissed from that position because he violated the personal space of other co-workers (AR 56).

On December 15, 2003, Dr. Feinfeld, a psychiatrist at Kaiser Permanente's Department of Behavioral Health Care, diagnosed Plaintiff with Asperger's syndrome and Acute Stress Disorder as a result of his work related stress (AR 174, 271), and commenced his treatment for these conditions in 2003 (AR 270-71, 274, 275, 280, 283, 285-86, 287, 290, 295, 297, 298, 299, 302, 494, 495, 498, 503). She continued to treat Plaintiff until 2008. Dr. Feinfeld prescribed Fluoxetine (Prozac) as an anti-depressant and to reduce Plaintiff's anxiety (AR 179). She diagnosed Plaintiff with sleep apnea syndrome, hypertension, and chronic edema (AR 271) based on the diagnosis and treatment of Dr. Silverstein (AR 320), an internist at Kaiser Permanente's Department of Internal Medicine in Panorama City, who commenced his treatment for those conditions in 1996 (AR 177; 787).

During the course of Plaintiff's treatment, Dr. Feinfeld assessed various mental functional limitations in her evaluations, progress notes and letters. Dr. Feinfeld's mental status examination in December 2003 revealed that Plaintiff had a "great deal of difficulty expressing himself", stuttered and answered questions slowly despite having "very concrete" thought processes, and that he suffered from work-related anxiety (AR 271). Based on this examination, Dr. Feinfeld diagnosed Plaintiff with Asperger's syndrome, Acute Stress Disorder based on work-related stress, mild Obsessive Compulsive Disorder, "somewhat impaired social skills", and assessed Plaintiff's Global Assessment of Functioning ("GAF") at 65 (AR 271); Dr. Feinfeld re-affirmed her diagnosis of Asperger's syndrome and Acute Stress Disorder in subsequent progress notes after Plaintiff's visits in January, February, and April 2004 while noting in January that "[Plaintiff seemed] more relaxed ... [was] able to smile and joke [] more, and that [Plaintiff felt] that the Prozac [prescription] was definitely helping him [to relax]." (AR 274; 275; 283); Dr. Feinfeld's letter dated September 2004 assessed that Plaintiff could function well in the workplace with "a more rigid work schedule and other accommodations" despite substantial limitations in his daily functioning, such as his "difficulty with transition and making sudden changes to his daily routine", his difficulty with maintaining personal grooming and appearance, and "difficulty [interpreting] social cues." (AR 285-86); Dr. Feinfeld affirmed her diagnosis in progress notes and evaluations after Plaintiff's regular visits from October 2004 through October 2006 (AR 287, 290, 292, 295, 297, 298, 299, 300, 302). However, she did not see Plaintiff again until November 2007 when she opined that Plaintiff could work with "appropriate modifications for Asperger's" in a letter of the same date (AR 494; 498); Dr. Feinfeld noted in a letter dated February 2008 that Plaintiff could not function in situations requiring "face to face interactions" (AR 495); Dr. Feinfeld noted in a letter dated March 2008 that Plaintiff was "unable to work for the next year, if ever" explaining that his Asperger's syndrome and anxiety conditions were deteriorating, which impaired his "[performance of] functions [requiring] mental activity, such as calculations" and impaired his participation in "interpersonal interaction and communication." (AR503)

Dr. Sean To, an internist retained by the Commissioner as an examining consultant, conducted an Independent Internal Medicine Evaluation of Plaintiff in March 2007 and assessed Plaintiff's functional limitations as a result of his sleep apnea, chronic edema, and obesity (AR 462-67). Insofar as Plaintiff's mental impairments are concerned, Dr. To assessed in his mental status examination that Plaintiff "appeared appropriately oriented" explaining that Plaintiff's memory "appeared ... average" on the grounds that Plaintiff was able to describe his medical history "adequately", and noted that Plaintiff "appeared to be in no acute distress." (AR 463)

Dr. Jeannette K. Townsend, a psychologist retained by the Commissioner, assessed Plaintiff's mental limitations in a psychological evaluation in March 2007 (AR 468-72). Dr. Townsend diagnosed Plaintiff with Asperger's syndrome by history, stress resulting from Plaintiff's unemployment, and assessed his GAF at 60 (AR 472). She concluded that Plaintiff could perform "simple repetitive task[s] and complete a full day's work without interruption from psychiatric symptoms" and "[is able to] understand, remember and carry out simple, detailed and complex tasks." (AR 472) She also indicated that Plaintiff's "manner of relating is slightly odd." (AR 472) Based on Plaintiff's performance on five tests administered during the evaluation, she assessed Plaintiff's mood and affect as "appropriate ... [with] no emotional lability or agitation", his thinking as "organized", his immediate memory as "fair", his "intermediate memory for daily activities" and "remote memory for details of his personal history" as "adequate", his insight as "fair", and assessed that his "intellectual functioning was within the average range." (AR 469-70Dr. Frank L. Williams, a State agency consultant (AR 475-88), assessed Plaintiff's mental functional limitations based on Dr. Townsend's evaluation on a scale which correlates well with the levels of impairment utilized in Social Security evaluations (AR 486-88; see, infra at 10-14): none, mild, moderate, marked, and extreme (AR 483; 486-87). In utilizing this scale, Dr. ...

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