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Sylvester I. Payne v. Michael J. Astrue

January 9, 2012


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural facts, which included a prior order remanding this case to the Commissioner for further administrative proceedings. [See JS 2-3]. In a March 17, 2010 written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of a hypertension, depression, history of collapsed left lung, diabetes mellitus, and history of gunshot wound. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform medium work that was "limited to simple 2-3 repetitive steps with no public contact and only occasional peer contact." The ALJ concluded that plaintiff was not disabled because his RFC did not preclude him from performing work that exists in significant numbers in the national economy. [See JS 2-4; Administrative Record ("AR") 294-304].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Mental impairment

Plaintiff contends that the ALJ improperly evaluated the severity of plaintiff's mental impairment. [JS 4-14].

Treatment records from the Los Angeles County Department of Mental Health indicate that plaintiff, who was then 44 years old, was brought to the West Central Mental Health Clinic ("West Central MHC") by his parents in February 2005 for reported symptoms of hearing voices and bells ringing, problems with anger, crying spells, and difficulty sleeping. [AR 25, 156-157]. The "crisis contact" evaluation states that plaintiff is "very suspicious, even of family members." [AR 156]. Plaintiff lived with his mother and "is supported by family members." [AR 156]. Plaintiff was reported to have been shot in the head in 1997, and the "[b]ullets were not removed because the particles were too close to the brain." [AR 156]. The diagnoses were dementia secondary to head trauma with behavioral problems and bipolar disorder with psychotic features. Plaintiff was prescribed Abilify (aripiprazole), an antipsychotic that also can be used to treat depression*fn1 , Topamax (topiramate), an anticonvulsant*fn2 , and the antidepressants trazadone*fn3 and Lexapro*fn4 . The examining physician assigned plaintiff a Global Assessment of Function ("GAF") score of 40, denoting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.*fn5

Plaintiff attended medication follow-up visits at West Central MHC through June 2005, when plaintiff's prognosis was described as "poor." [AR 148]. Plaintiff and his mother initially reported that he felt "calm" on medications, had less ringing in the ears, and was sleeping well. Subsequently, however, plaintiff reported that he had problems obtaining medication refills and had noticed an increase in mood swings, irritability, and sleep problems when he was off his medication. [AR 149-153].

In October 2005, plaintiff underwent a consultative psychological evaluation with Dr. Rosa Colonna at the Commissioner's request. Dr. Colonna took a history, administered psychological tests, and conducted a mental status examination. She did not review any treatment records. [AR 162-167]. Dr. Colonna described plaintiff as "generally non-cooperative with psychometric testing in a passive aggressive manner. He refuses two portions of the examination stating that he cannot do them. Most of his responses are 'I don't know' or 'I don't remember.'. . . His overall demeanor and presentation is inconsistent with his history and psychometric testing processes." [AR 162]. Plaintiff gave a history of a gunshot wound to the head in 1995, which resulted in gunshot pellets being permanently lodged in his head. Plaintiff described having auditory hallucinations and headaches. He said his medications were helpful. He reported living with his mother and eight-month old son, whose mother had died. Plaintiff said that he was placed in special education classes and last worked about 13 years earlier, as a cook. [AR 163].

In addition to noting plaintiff's poor effort and "gross exaggeration" on mental status examination, Dr. Colonna observed that plaintiff exhibited mild psychomotor slowing; "borderline to low average" intellectual functioning; mildly dysthymic mood; slightly constricted affect; no hallucinations or other "obvious psychotic indicators" at the time of the examination; mildly diminished memory, attention, and concentration; low fund of knowledge; and poor insight and judgment. [AR 164-166]. On the Wechsler Adult Intelligence Scale-III ("WAIS-III"), plaintiff achieved a verbal IQ score of 61, a performance IQ score of 60, and a full scale IQ score of 58. [AR 165]. Plaintiff refused to undertake the Bender-Gestalt Test-II and the Trails Making Test, Parts A and B, telling Dr. Colonna "I cannot do this." [AR 165].

Dr. Colonna's "probable" diagnoses were "mood disorder not otherwise specified," "consider malingering per effort on psychometric testing which is inconsistent with overall activities of daily living and presentation, rule out borderline intellectual functioning," and "consider personality disorder not otherwise specified with dependent and narcissistic traits." [AR 166]. Dr. Colonna concluded that plaintiff's "overall cognitive ability" was no more than borderline to low average range. [AR 166]. She opined that plaintiff would be able to understand, remember and carry out "short, simplistic instructions without difficulty" and make "simplistic work-related decisions without special supervision." [AR 166]. He had a "mild inability" to understand, remember, and carry out and make detailed instructions. He was "generally socially appropriate with the examiner" but "in the competitive job market, he presents with a mild inability to interact appropriately with supervisors, co-workers and peers. [AR 166]. Dr. Colonna concluded that ...

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