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Patrick Gallagher v. Michael J. Astrue

August 9, 2011

PATRICK GALLAGHER,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 1)

BACKGROUND

Plaintiff Patrick Gallagher ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act. 42 U.S.C. § 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.

FACTUAL BACKGROUND

Plaintiff was born in 1985, completed the 11th grade while enrolled in special resource classes, and worked for three years in fast food restaurants and briefly in landscaping and telemarketing. (Administrative Record ("AR") 98, 34-35, 183-84, 37, 110, respectively.) On July 12, 2007, Plaintiff filed an application for SSI, alleging disability beginning on April 1, 2004, due to attention deficit hyperactivity disorder ("ADHD"), inability to concentrate, short-term memory problems, and auditory hallucinations. (AR 98-101, 109.)

A. Medical Evidence

Plaintiff was seen between November 24, 1997, and October 26, 1998, as a child/adolescent by the Stanislaus County Department of Mental Health while on probation for burglary. (AR 173, 177-81.) Plaintiff was referred to that facility for "being out of control at home, and for [a] history of fire setting (age 7), vandalism, and having ADD [attention deficit disorder]." (AR 173.) Plaintiff was "angry, anxious, and dysthymic" when he started the program, and the "source of [the] problems was [the] relationship between [his] depressed mother and [his] arrogant, dominating father." (AR 173.) The counselor worked with the family and, although he saw "very little" of Plaintiff, Plaintiff "seemed happier, got in[to] less trouble and stopped fighting with his brother" by the end of the treatment. (AR 173.) The therapy was stopped because Plaintiff was released from probation; his diagnoses at time of discharge included generalized anxiety disorder and ADHD. (AR 173.)

Plaintiff was then referred back to Stanislaus County Department of Mental Health by his parole officer between July 13, 1999, and September 3, 2002, "due to concerns regarding [Plaintiff's] daily use of [m]arijuana, intense family conflict, and depressed mood." (AR 172, 174-75.) The program used both individual and family treatment and "[d]uring the course of treatment [Plaintiff's] anxiety and depression decreased substantially." (AR 172.) Plaintiff "was able to obtain and keep a job, was able to successfully graduate from drug court and was attending school regularly." (AR 172.) Plaintiff was discharged from the program due to his "successful completion of treatment goals and his [discharge] from probation," and his discharge diagnosis was ADHD. (AR 172.)

Plaintiff was seen by California Forensic Medical Group between December 18, 2005, and December 28, 2005, while he was incarcerated. (AR 185-86.) The record indicates that Plaintiff had been convicted of a misdemeanor at the age of 20 for firing a 9-mm gun into an occupied room; he served six months in jail. (See AR 201, 275-76.) While in treatment during that time, Plaintiff was placed in a safety cell and indicated that he was "beginning to hear voices." (AR 185.) Plaintiff was "very dramatic" and acted like he was crying but without real tears. (AR 186.) Plaintiff then reported that he did not hear voices but said instead it was "like ideas" in his head. (AR 186.)

On March 19, 2007, Tom Crain, M.F.T., of Sierra Vista Child & Family Services, wrote a letter indicating that he had been seeing Plaintiff for general counseling as a condition of his probation and that Plaintiff had completed the anger management program at the agency. (AR 188.) Mr. Crain stated that Plaintiff had a "history of being diagnosed as having bipolar disorder for which he receives medication. He also had a diagnosis of ADHD. He also complains of having difficulty concentrating." (AR 188.) Mr. Crane observed that Plaintiff "has some cognitive impairment" and that Plaintiff "seems 'slow' in understanding" conversations. (AR 188.)

Plaintiff was first seen on June 25, 2007, by Daniel Diep, M.D. of Golden Valley Health Centers. (AR 194-98.) The facility's "Master Problem List" indicates that Plaintiff was suffering from major, chronic, or recurring problems of ADHD, bipolar disorder, marijuana use, and a history of learning disabilities. (AR 194.) On June 25, 2007, Dr. Diep stated that Plaintiff was "inattentive in class and at home" and was "[u]nable to hold down [a] job." (AR 198.) Plaintiff was started on the medication Strattera. On July 13, 2007, Dr. Diep stated that Plaintiff had ADHD and "probable bipolar" disorder and the medication Depakote was added. (AR 197.) On July 27, 2007, Plaintiff indicated that he felt that his "mood was more 'even' and not as irritable"; his medications were continued. (AR 196.)

Plaintiff was initially seen by Health Services Agency on August 25, 2007. Plaintiff was required to enroll in a mental health program after being released from his incarceration and while on probation. (AR 275-76.) On August 25, 2007, the treatment notes indicate that Plaintiff had "anger management issues" and a low "tolerance to frustration." (AR 276.) Plaintiff was "currently stable on Strattera." (AR 276.)

On September 10, 2007, Plaintiff returned to Dr. Diep. Plaintiff reported that he wanted to change the medication Depakote because he thought it was making him feel more angry and desperate; however, he felt that the Strattera was "helping" him. (AR 195.) Dr. Diep indicated that Plaintiff had "anger issues" and that he "blew up" at an assessment appointment. (AR 195.) Dr. Diep questioned whether Plaintiff had a diagnosis of bipolar disorder. (AR 195.)

On September 27, 2007, Plaintiff continued his care at Health Services Agency. (AR 275.) The notes indicate that Plaintiff reported a diagnosis of ADHD and stated that in the past he had been on the medications of Cylert, Ritalin, Imipramine, and Clonidin; he had recently been taking Depakote but it was not helpful as it made him feel angry. (AR 275.) Plaintiff reported that he had "sticky fingers" when he was young, that he had been in juvenile hall for petty theft, and that he had "always been impulsive." (AR 275.) Plaintiff indicated that he was depressed. (AR 275.) On October 15, 2007, the medical notes state that Plaintiff was continuing to take Strattera and that he felt that he was "in a good mood with good family dynamics." (AR 274.)

On October 20, 2007, Roxanne Morse, Ph.D. provided a psychological evaluation of Plaintiff to assist in determining his disability status. (AR 200-04.) Dr. Morse indicated that Plaintiff had a diagnosis of ADHD since the age of nine and was currently taking Strattera for that condition. (AR 200.) However, Plaintiff had discontinued Depakote, which is used for mood stabilization, against medical advice. (AR 201.) Plaintiff's test results indicated borderline intellectual functioning and ranged from very low to average. (AR 203.) Dr. Morse determined a diagnostic impression of depressive disorder, ADHD, personality disorder, and communication disorder and found that Plaintiff had a "marked difficulty in the area of with auditory processing making it difficult for him to receive and translate instructions in order to make accurate decisions regarding his behavior." (AR 203-04.) Additionally, Plaintiff "was able to understand, remember, and carry out simple instructions" but had "marked difficulty with detailed and complex instructions." (AR 204.) Dr. Morse found that, based on Plaintiff's behavior, reported history, and his problems with auditory processing, ADHD, and impulsivity, Plaintiff's "ability to interact with the public, supervisors, and co-workers appears to be impaired." (AR 204.)

On October 26, 2007, Plaintiff was seen again by Health Services Agency and reported that the medication Strattera was helping with his depression and insomnia. (AR 273.) On November 2, 2007, the progress notes state that Plaintiff was "stable on Strattera" and that he was waiting for a psychological consultation. (AR 271.) On December 4, 2007, the notes indicate that Plaintiff had a diagnosis of bipolar disorder "per history" and ADHD, that his aggressive behavior had decreased since he had joined a counseling session, and that he felt more "stable [and] functional" since he had been taking Strattera. (AR 270.)

On December 7, 2007, State Agency physician Evelyn B. Aquino-Caro, M.D. reviewed Plaintiff's records. (AR 205-21.) Dr. Aquino-Caro completed a mental residual functional capacity ("RFC") assessment and found moderate limitations in Plaintiff's ability to understand, remember, and carry out detailed instructions and in his ability to interact appropriately with the general public.*fn1

(AR 216-17.) No other limitations were indicated. (AR 216-17.) Dr. Aquino-Caro opined that Plaintiff would be able to relate to and accept direction from supervisors and remain socially appropriate with co-workers without being distracted by them; however, Plaintiff would have difficulty dealing with the public. (AR 218.) Plaintiff would be able to perform simple, routine work involving one- to two-step job tasks and instructions. (AR 218.)

On January 7, 2008, Plaintiff returned to Health Services Agency and stated that he had not attended his "wellness recovery" sessions and that he had stopped taking Strattera. (AR 269.) Plaintiff indicated that he planned to apply for Social Security disability. (AR 269.) When his counselor expressed "concerns" about the application, Plaintiff "became aggressive" and used "the 'f' word several times," claiming his could "get disability from his previous doctor." (AR 269.) Plaintiff became "more aggressive" and rejected his father's attempts to calm him; he "stepped out of the room cursing [and] [l]eft the clinic." (AR 269.) It does not appear that Plaintiff returned to the clinic again for additional treatment.

On July 7, 2008, Robert L. Morgan, Ph.D. conducted a comprehensive psychological evaluation of Plaintiff. (AR 241-68.) Dr. Morgan indicated that "no specific medical records were provided for review prior to the evaluation" and that Plaintiff was the "[s]ource of information" and a "fair historian." (AR 241.) Plaintiff stated that he was not taking medication at the time of the exam because it would make him feel like a "zombie." (AR 243-44.) Plaintiff reported the "occasional use of cannabis." (AR 244.) Plaintiff indicated that he had "auditory hallucinations" and stated that he would hear "'people calling [his] name.'" (AR 245.) Dr. Morgan's testing determined that Plaintiff was "within the borderline range of functioning" and that he was moderately to severely depressed. (AR 246.) Plaintiff reported "severe difficulties with failing to pay close attention" and with making "careless mistakes in his work." (AR 247.) Dr. Morgan indicated a diagnostic impression of bipolar disorder, ADHD, reading disorder, and disorder of written expression, and ruled out cannabis abuse. (AR 248.) Dr. Morgan assessed Plaintiff and opined that he met the "criteria for bipolar disorder" and presented with a diagnosis of ADHD that "has persisted for a number of years and has been largely untreated other than a course of Strattera." (AR 248.) Dr. Morgan stated that Plaintiff was disabled and that he met the requirements for 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.04, the listing for an affective disorder, "specifically a bipolar syndrome with a history of episodic periods." (AR 248, 250.)

B. Lay Testimony

On July 26, 2007, Plaintiff completed an adult function report. (AR 118-25.) Plaintiff indicated that he lived at home with his parents and that his daily activities consisted of "looking for something to do" and "play[ing] video games when [he] can concentrate." (AR 118.) Plaintiff would help to care for the family pets, was able to take care of his personal grooming, would "sometimes" cook and help with house and yard work, but needed reminders to take his medicine. (AR 119-20.) Plaintiff was unable to drive because he took the driver's test "20 times and failed" due to his inability to concentrate. (AR 121.) Plaintiff's hobbies included playing video games, playing guitar, and cooking, but there were times he was unable to concentrate on these activities. (AR 122.) Plaintiff was able to socialize with his friends, but his friends would inform him that he would answer questions that had been posed hours earlier. (AR 123.) Plaintiff indicated that he would have trouble keeping track of his work schedule and would "show up" on days that he was not supposed to work. (AR 124.) Plaintiff stated that he did not handle stress well and that he had a tendency to snap occasionally. He also had difficulties with changes in his routine and indicated that "[t]he thought of everything being changed around is just overwhelming." (AR 124.)

On July 28, 2007, Plaintiff's mother, Susan Gallagher, completed a third party function report. (AR 126-138.) Ms. Gallagher stated that Plaintiff has a "very short attention span," "gets distracted very easily," and has difficulty in concentrating, listening, and following directions or a conversation. (AR 126.) Plaintiff's daily activities included occasional cooking, playing video games, helping with chores, and taking care of the animals; however, Plaintiff would also sit "staring into space swing[ing] a stick around in the yard." (AR 126.) Ms. Gallagher indicated that Plaintiff was able to perform house and yard work but that he "needs supervision. He forgets, he gets distracted, [he] can't focus or concentrate. [He] doesn't finish or pay attention to what he's doing." (AR 129.) Ms. Gallagher stated that Plaintiff would socialize with his friends and play video games "almost every day"; however, his friends would get "frustrated with him because he is slower and doesn't get things." (AR 130-31.) Plaintiff also would become "anxious" and "panicky" and would get "almost enraged at times." (AR 132.) Plaintiff would stop doing tasks in the middle and would forget what he was doing. (AR 133.) Plaintiff told Ms. Gallagher that he hears voices when he wakes up that put "bad ideas" into his head but that he had not acted upon them. (AR 134.) Ms. Gallagher stated that Plaintiff was "impulsive" and referenced his incarceration, noting that he had aimed an unloaded gun at his sister's boyfriend.*fn2 (AR 134.) Plaintiff had no concept of numbers or time, and when he had been working he would arrive at the wrong time or on his days off. (AR 136.) Plaintiff would become "very anxious, stressed and almost out of control" when he thought he was going to miss an appointment, and would have a "panic[] attack" until his mother agreed to "take him hours early" to his appointment. (AR 136.) Ms. Gallagher stated that Plaintiff "was never able to focus, concentrate or pay attention." (AR 127.)

C. Administrative Hearings

The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 44-48, 51-56, 57.) ALJ Sandra Rogers held hearings on May 25, 2009, at which Plaintiff testified, and on June 30, 2009, at which vocational expert ("VE") Stephen B. Schmidt testified. (AR 31-39, 20-30, respectively.)

1. Plaintiff's Testimony

Plaintiff testified that he was 24 years old at the time of the hearing and that he lived at home with his parents, brother, and sister. (AR 33-34.) Plaintiff completed the 11th grade and had been in special resource classes; he had not taken the GED test because he was "unable to pay for it all." (AR 34-35.) Although he was able to read and write, he had problems and needed help with filling out his Social Security forms. (AR 35.) Plaintiff stated that he had done prior work in landscaping and fast food, and that he did chores at home. (AR 37.) Concerning his prior fast food employment, Plaintiff testified that "[o]ne job let [him] go because [he] was too slow and [he] was taking too long in the drive-through." (AR 37.) Plaintiff indicated that he agreed with the assessment that he could not "do things fast enough" but that things were "a little bit better" when he was on medication. (AR 37.) However, Plaintiff said that he was unable to make decisions. (AR 37.) Plaintiff stated that he was taking medication for attention deficit disorder, hyperactivity, and bipolar disorder; he felt the "same" on the medication and it had not made a difference. (AR 37-38.) Plaintiff indicated that he would "get angry" when he was "pressured" to do something that he did not know how to do and that he had trouble dealing with people. (AR 38.) Plaintiff testified that "[o]ne doctor said [he] should at least try to get some help or Social Security." (AR 38.)

2. VE Testimony

The ALJ asked the VE whether someone would be able to perform Plaintiff's prior work as a fast-food crew member or telephone solicitor if the hypothetical person was of Plaintiff's age, background, and work experience and had borderline to low average cognitive functioning, moderate to marked difficulty with auditory processing, marked difficulty with carrying out detailed instructions, difficulty interacting appropriately with other people, and impairments in his ability to interact with the public, supervisors, and co-workers. (AR 23-24.) The VE noted that he could not make a determination based on the purported impairments in Plaintiff's ability to interact with others because "impaired is a ...


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