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David Ayala v. Carolyn W. Colvin

March 19, 2013

DAVID AYALA,
PLAINTIFF
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER AFFIRMING AGENCY‟S DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER

Plaintiff David Ayala, by his attorney, Lars A. Christenson, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act and for supplemental security income ("SSI") under Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) ("the Act").*fn1 The matter is currently before the Court on the parties‟ cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn2

Following a review of the complete record and applicable law, the Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based upon proper legal standards. Accordingly, this Court affirms the Commissioner‟s determination.

I. Procedural History 2

Plaintiff claims he has been disabled since April 12, 2007. On June 19, 2007, he applied for DIB and SSI income. AR 90, 98. The agency denied benefits, and on September 28, 2009, ALJ 4 James P. Berry found Plaintiff not disabled. On February 25, 2010, the Appeals Council remanded 5 for an internal medicine examination and further evaluation of Plaintiff‟s personality order. On April 6 11, 2011, ALJ Berry conducted the remand hearing. Plaintiff appeared with counsel and testified. 7 Also testifying was Jose L. Chaparro, an impartial vocational expert. In his decision dated May 6, 8 2011, ALJ Berry again denied Plaintiff‟s application. The Appeals Council denied review September 9 30, 2011. Plaintiff filed a complaint seeking this Court‟s review on November 16, 2011.

II. Factual Record

A. Plaintiff's Testimony

Plaintiff was born in 1968 and has a high school education. He lives with his twenty-year-old son in a trailer owned by his parents. He claims disability due to hernia, bipolar disorder, depression and personality disorder. On April 12, 2007, his last day of work, he had a mental breakdown. AR 35. Also, in March 2011, a month before the second ALJ hearing, he was held as a suicide risk under California Welfare and Institutions Code § 5150.

Plaintiff testified that he has arthritis, unrepairable hernias, hypertension, and weakness in his hands. He has suicidal thoughts, and has trouble getting along with people and going anywhere. He fluctuates a lot between manic episodes and depression, gets nervous and dizzy, and has a hard time remembering things at times. He can focus for 30 minutes and has low energy due to depression. He can lift ten pounds two or three hours out of eight, stand for two hours, walk two blocks, and sit for four hours. He has bad days four times a week in which he mostly lies down and sleeps. On manic days he has racing thoughts and paces rapidly. He needs to rest twice a day for an hour, and sleeps at least one of the hours. His medication makes him tired, but he is better for a while after resting. He used street drugs and alcohol, but has only drank once or twice in the last three years.

Regarding activities of daily living, Plaintiff tries to keep his house clean and in order, but needs to rest. He can dress himself, but some days he does not shower or dress. He is on probation for committing assault with a deadly weapon in December 2008. He completed his twice-weekly AA and NA classes and weekly anger management classes in February with no problem. He drives if he 2 needs to. He does no yard work, and cannot push a mower due to weakness in his hands. 3

B. Medical Record

1. Psychiatric Consultative Examination by Dr. Barnett (Sept. 2007)

Plaintiff alleges he has been disabled since April 2007. He began seeking mental health 6 treatment in May 2007. On September 7, 2007, Plaintiff saw Michael Barnett, M.D., a board-7 certified psychiatrist, for a consultative evaluation. AR 338-40. Plaintiff admitted that he has abused 8 alcohol "most of my life." Plaintiff drank a 12-pack of beer a day until he had a DUI in early 2007, 9 then cut back to a six-pack. He also admitted that because of the DUI, he lost his Class A license and lost his truck driver job on April 6, 2007.

Dr. Barnett believed that Plaintiff was probably still abusing alcohol. In general, he did not believe that Plaintiff had mental limitations in performing work-like activities. He gave Plaintiff a current Global Assessment of Functioning ("GAF") rating of 60, reflecting moderate symptoms bordering on mild.*fn3 He diagnosed alcohol abuse (active and chronic), an unspecified depressive disorder, and personality order. However, until Plaintiff achieved sobriety and went through a substance-abuse treatment program, it would be difficult to make a definitive diagnosis.

2. Psychiatric Treatment-Dr. Saul (Nov. 2007 -- April 2008)

On February 14, 2008, Dr. Gilbert Saul performed a psychiatric evaluation. AR 496-500. Plaintiff reported a lifelong history of depression, but no prior psychiatric treatment nor medication until recently. He seemed "unwilling to focus his mind enough to answer basic mental status questions." He answered "in a vague and inconsistent manner" and was "not at all forthcoming." He was finished trying to have his hernia fixed and did not want to look for work. Dr. Saul felt that his poor performance on examinations was "mainly due to lack of motivation." Plaintiff was also an unreliable historian. Plaintiff admitted that he drinks "as much as" a 12-pack of beer each day. He said that "now" he only has an occasional beer. However, Dr. Saul was also aware of Plaintiff‟s DUI, and that Plaintiff told a social worker that he drinks "three times a week." His alcoholism was "much worse than he is willing to admit." Plaintiff stated that he had dry heaves in the morning, 2 which Dr. Saul believed could be caused by alcohol abuse. AR 496-500. Dr. Saul diagnosed alcohol 3 dependence, moderate major depressive disorder, and early onset dysthymic disorder. His 4 intelligence was probably average. He gave a current GAF rating of 50, reflecting serious symptoms. 5

He started Plaintiff on an antidepressant. AR 499-500. 6 By March 19, 2008, Plaintiff responded positively to Prozac. On April 18, 2008, after Plaintiff described suicidal thoughts, Dr. Saul changed Plaintiff‟s diagnosis to recurrent depressive 8 disorder with psychotic features, increased his Prozac, and added Abilify. AR 483. Four days later, 9 Plaintiff was much calmer and more relaxed. He was more reality-oriented and his thought processes were linear and logical, with at least average intelligence. AR 480.

3. Psychiatric Treatment-Dr. Whisenhunt (May 2008 -- March 2009)

Arich Whisenhunt, M.D., saw Plaintiff on May 13, 2008. He increased his Prozac and encouraged psychotherapy. He diagnosed depression with psychosis and personality disorder. AR 477-78. After receiving a disability form from an insurance company in connection with Plaintiff‟s ability to make car payments, Dr. Whisenhunt told Plaintiff he would give him six months of disability, but he expected him to be able to work in the future. AR 470. On October 16, 2008, Dr. Whisenhunt told Plaintiff that he needed to work on getting better rather than feeling sorry for himself, and opined that he was "reluctant to get better, possibly for personal gain." AR 464. On December 11, 2008, Plaintiff was feeling better, helping his son get into college, and taking his medication. AR 453.

On December 31, 2008, Plaintiff was arrested for hitting a man with a bottle at a New Year‟s Eve party; as he acknowledged to the ALJ, he had "some champagne" that night. AR 81. On February 5, 2009, Dr. Whisenhunt noted that Plaintiff had "been doing fairly well" despite this arrest. AR 441. On March 26, 2009, Dr. Whisenhunt declined to fill out disability forms at Plaintiff‟s request, advised Plaintiff that "he is able to work," and encouraged him to find a job and problem solve his financial situation. AR 435. Dr. Whisenhunt further opined that "a lot of [Plaintiff‟s] problems are due to his personality disorder and malingering tendencies." AR 436.

4. Letter by Dr. Rice; RFC Questionnaire by Dr. Shubhakar (April 2009) Shortly before Plaintiff‟s first ALJ hearing on April 29, 2009, he submitted two opinions 2 3 relevant to his RFC. First, in a letter dated April 9, 2009, Dr. Janice Rice wrote that she "personally 4 [has] known Mr. Ayala for many years and [was] aware that his condition only progressively 5 worsens. Not to mention his continuous problems with several hernias which only further hinders his 6 ability to perform even the smallest of jobs, his ongoing mental problems also prevent him from 7 maintaining any type of gainful employment." AR 425. 8 Second, on April 28, 2009, Plaintiff‟s physician, Dr. Somwarpet Shubhakar, completed an RFC questionnaire. AR 508-12. In his opinion, Plaintiff had an RFC that was less-than-sedentary. His symptoms would frequently interfere with the attention and concentration needed to complete simple work tasks. He could not do low-stress jobs. He ...


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