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Abbatello v. Colvin

United States District Court, E.D. California

June 25, 2014

JASPER RAY ABBATELLO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

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

SANDRA M. SNYDER, Magistrate Judge.

Plaintiff Jasper Ray Abbatello, by his attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI") pursuant to Title XVI of the Social Security Act (the "Act"). See 42 U.S.C. § 301 et seq. The matter is before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, U.S. Magistrate Judge. 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.

I. Procedural History

On July 14, 2000, Abbatello applied for supplemental security income. In his application, Abbatello alleged disability beginning in his childhood, on June 13, 1991. The Commissioner initially approved the claim. Abbatello has since attained age 18. As required under the Act, Abbatello's eligibility for disability benefits was redetermined under the rules for determining disability in adults when he attained age 18. See 42 U.S.C. § 1614(a)(3)(H).

On May 4, 2010, the Commissioner determined that Abbatello was no longer disabled as of May 1, 2010. His claims were thus denied on August 31, 2010. On May 18, 2010, Abbatello requested reconsideration. After a disability hearing, the State agency Disability Hearing officer upheld the decision. On September 29, 2010, Abbatello filed a timely written request for a hearing.

Abbatello appeared with representation and testified at a hearing on November 9, 2011. At that same hearing, Abbatello testified that he had obsessive compulsive disorder ("OCD"), attention deficit hyperactivity disorder ("ADHD"), and anxiety disorder. Abbatello was represented by Diana Wade, a non-attorney. No other individuals testified on behalf of Abbatello. An impartial vocational expert, Randi A. Langford-Hetrick, also appeared and testified.

On December 1, 2011, Administrative Law Judge Jeffrey A. Hatfield denied Abbatello's application. On October 10, 2012, the Appeals Council denied review. On December 3, 2012, Abbatello filed a complaint seeking this Court's review.

II. Administrative Record

Plaintiff's testimony (November 9, 2011).

Plaintiff Jasper Ray Abbatello, born June 13, 1991, lived with his parents. Abbatello completed high school equivalency or a GED. He has no prior work experience.

Abbatello testified that he can bathe and dress himself and prepare simple meals. As to his daily habits, he reported that he spent considerable time on the computer, online, and communicating with friends over the computer. Abbatello indicated that he plays video games daily, watches videos, and plays online and video games without difficulty. In prehearing reports, Abbatello stated that his daily activities include the following: taking a shower, getting cleaned up, and getting ready for the day, which consists of "gaming online." Abbatello reported that he "sometimes" goes on short trips. The record shows that Abbatello is able to drive a car and go shopping for food, clothes and electronics. Abbatello stated that he cleans his room and does laundry "sometimes."

Abbatello reported previously receiving mental health treatment, but no current use of psychotropic medication. He testified that he suffers from anxiety and cannot "be around people." In pre-hearing reports, he stated that he does not do house or yard work because he has OCD and does not want to get dirty. Abbatello also stated that he does not like being touched by other people or touching anything "not clean." He testified he is five feet six inches tall and weighs 241 pounds. Abbatello reported that he is not currently working and has no work experience.

Disability Appeal Report.

In a disability appeal report dated September 12, 2010, Abbatello complained of not sleeping well and experiencing "more stress." He also reported that "at night my gout hurts my arms, hands, legs, hips, [and] feet." Noting a change to his physical or mental limitations since his last completed disability report, he stated that "I have been depressed and wanted to kill myself, " since May 3, 2010. Abbatello wrote that his "bones hurt." He described his daily activities such that he will not "shower for a week... don't clean my room or cook for myself my mom or dad does." He reported that "I stay online most of the time or watch movies." In the remarks, Abbatello wrote "my problems have been the same since I was a young child. I still have the same mental and phy[sical] problems I have always had... I do not feel I can be in a work situation because of my OCD, stress and panic attacks... I have a lot of pain my joints." Finally, Abbatello wrote, "Without my SSI, I will not be able to live and pay my bills."

In an earlier disability report dated May 17, 2010, Abbatello wrote that he was "worse" and had gone to the emergency room due to a "mental breakdown." He reported trouble adjusting to his medications. He noted that after that visit to the hospital, he had started seeing Dr. Shapiro. Describing his daily activities, he wrote that "I get withdrawn and stay in my room."

Third Party Adult Function Report.

In his January 14, 2010 and June 2, 2010 third-party adult function reports, Abbatello's step-father, Donald Dean Hoffman, wrote that Abbatello had some physical problems that prevented most ordinary tasks, and that Abbatello could only walk three blocks. Mr. Hoffman noted that Abbatello did not perform house and yard work because of his OCD. Mr. Hoffman reported that Abbatello, when not sleeping, is on the internet, but has no problems with personal care. Mr. Hoffman stated that Abbatello finishes what he starts and can follow written instructions. Mr. Hoffman indicated that apart from SSI, he and Abbatello's mother are Abbatello's sole support.

Teacher Questionnaire

The ALJ considered a January 12, 2010 report by Theresa Blue, a resource specialist. Her report indicates that Abbatello began seeing her once a week for one hour per week, which at some point reduced to approximately once every four to six weeks. She wrote that Abbatello's attendance was "very sporadic, " and that he "seldom would attend [his scheduled meetings with her]." She noted that Abbatello has an obvious problem understanding school and content vocabulary, as well as with recalling and applying previously learned material. Ms. Blue opined that Abbatello has a very serious problem with the following: reading and comprehending written material; comprehending and performing math problems; providing organized oral explanations and adequate descriptions; expressing ideas ...


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