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Thomas Rebis, Ii v. Michael J. Astrue

January 3, 2012

THOMAS REBIS, II,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Thomas Rebis, II ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying his applications for Social Security Income benefits ("SSI"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the Agency's decision is AFFIRMED.

II. PROCEDURAL HISTORY

Plaintiff applied for SSI on December 8, 2008 alleging a disability onset date of September 1, 2007. (Administrative Record ("AR") 116-122). The Agency denied Plaintiff's initial application for SSI on March 4, 2009, (AR 53-57), and denied reconsideration on July 9, 2010. (AR 61-65). Plaintiff then requested a hearing, (AR 67-69), which was held on May 26, 2010 before an Administrative Law Judge ("ALJ"), (AR 17-50), where Plaintiff appeared with counsel and testified. (AR 20-37). Plaintiff's step-father Bill Martin and a vocational expert also testified at this hearing. (AR 37-49). On July 9, 2010, the ALJ denied benefits. (AR 9-16). The Appeals Council denied Plaintiff's request for review of the ALJ's decision on March 14, 2011, (AR 1-4), making the ALJ's decision the final decision of the Agency. Plaintiff then filed the instant action.

III. FACTUAL BACKGROUND

Plaintiff was 19 years old at the time of his alleged disability onset date. (AR 116). He can speak, understand, and write in English. (AR 127). Plaintiff has held one job for a short period of time as a laborer. (AR 129). Plaintiff's claimed disability stems from "psychiatric, panic attacks, depression, anger outbursts [,] high blood pressure" and headaches. (AR 128).

A. Plaintiff's Medical History*fn1

The majority of Plaintiff's medical records regarding his mental health derive from visits to Charlee Family Care between October 2007 and May 2010. (AR 255-66, 326-39). On October 25, 2007, Plaintiff presented with problems of depression and anger. (AR 264). He stated that he was raised in an abusive household and was sexually abused. (Id.). Plaintiff was diagnosed with major depression that was recurrent and moderate, post-traumatic stress disorder ("PTSD") and high blood pressure. (AR 264). It was also noted that Plaintiff "smoked pot, quit recently, would do it again." (AR 265).

On May 2008, Plaintiff's dysfunction rating was mild/moderate but his anger outbursts were reduced from daily to once a week. (AR 262). His symptoms of depression including lack of sleep, irritability, and anxiety were also reduced. (Id.). Between May and September 2008, Plaintiff was reported as "doing good," "sleep and appetite okay," "depression okay," and "stable on meds." (AR 333-34). In October 2008, Plaintiff was still "doing good," but had increased depression and anxiety attacks. (AR 333). In March 2009, Plaintiff reported that he recently had a seizure and was smoking marijuana but otherwise he was doing okay, depression was fair and his anxiety fluctuated. (AR 332). In May 2009, Plaintiff reported that he smoked pot and takes "6 hits/day," his depression was okay and had no anger outbursts. (Id.).

Also, no seizures were noted. (Id.). Between June and September 2009, Plaintiff was doing okay but he had increased depression. (AR 330). In October 2009, Plaintiff reported that he is "unable to work," "gets depressed," "can't hold a job," but his depression is better with his medication. (AR 329). On May 15, 2010, Plaintiff was less depressed, goes for walks with the dog, looks and feels better. (AR 326). It was also noted that Paxil was working. (Id.).

B. State Agency Psychiatrists' Opinions

On February 21, 2009, after reviewing Plaintiff's mental health history, Dr. Preston Davis, completed a Psychiatric Review Technique and Mental Residual Functional Capacity Assessment. (AR 183-97). Dr. Davis determined that Plaintiff suffered from anxiety evidenced by "recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress." (AR 187).

With respect to Plaintiff's "B" Criteria functional limitations, Dr. Davis found that Plaintiff had mild limitations in activities of daily living and in maintaining concentration, persistence, or pace, and moderate limitations in maintaining social functioning. (AR 191). He noted that there was insufficient evidence to determine whether Plaintiff experienced repeated episodes of decompensation. (Id.).

Dr. Davis also opined on Plaintiff's mental RFC. (AR 195-97). He found that Plaintiff was moderately limited in the ability to work in coordination with proximity to others without being distracted by them, the ability to interact appropriately with the general public, and the ability to respond appropriately to changes in the work setting. (Id.). Plaintiff was not significantly limited in any other mental activity. (See id.). Finally, Dr. Davis assessed Plaintiff's mental RFC as being able to understand, remember and carry-out simple and more complex work instructions. (AR 197). He can sustain his concentration, pace and his persistence with his work tasks for two hour blocks of time with customary breaks over the course of a regular work-day week. (Id.). Plaintiff would have difficulty coping with the stress of having to consistently interact with the general public or with co-workers. (Id.). He can perform his work tasks with little general public/co-worker contact. (Id.). Plaintiff can adapt to a work setting that is simple and routine. (Id.).

On May 14, 2009, after reviewing Plaintiff's case, state agency psychiatrist Dr. G. Johnson concurred with Dr. Davis' mental RFC of Plaintiff. (AR 242).

C. Plaintiff's Testimony

At the hearing, Plaintiff testified that he has never had a driver's license, and his father drives him. (AR 20-21). Plaintiff testified that he smokes almost a pack of cigarettes a day. (AR 21). He does not drink alcohol, but he does smoke marijuana which he asserted that he quit "about a week and a half" before the hearing. (Id.). He testified that he quit because it makes him tired and his psychiatrist thought it was a good idea if he quit. (Id.). Prior to quitting, Plaintiff testified that he smoked marijuana "twice a week or so." (Id.).

Plaintiff testified that he had a seizure in February 2009, and was diagnosed with epilepsy. (AR 23). Plaintiff reported that he last had a seizure when he was in the fourth grade. (Id.). He takes Tegretol for the seizures, and it controls his symptoms. (Id.).

Plaintiff began twelfth grade, did not finish high school. Plaintiff stated that he was molested from when he was nine and one and ...


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