United States District Court, E.D. California
ORDER ON PLAINTIFF'S COMPLAINT
SHEILA K. OBERTO, Magistrate Judge.
Plaintiff Wayne Mays ("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.
Plaintiff is 48 years old and lives with his son, brother, and nephew. (Administrative Record ("AR"), 226.) Plaintiff finished 10th grade and has no past relevant work. (AR 247.)
A. Relevant Medical History
On October 22, 2010, Plaintiff was examined by consulting physician Robert M. Sayad, Ph.D. (AR 147-53.) Dr. Sayad noted Plaintiff was 45 years old, appropriately groomed and casually dressed, cooperative, somewhat tense, and a fair historian. (AR 147.) During Plaintiff's mental status examination, Dr. Sayad noted Plaintiff's generally adequate effort, concrete thought process, distractibility, fluent speech, simple and relevant verbal productions, appropriate affect, anxious and dysphoric mood, somewhat limited fund of knowledge, and fair insight and judgment. (AR 148-49.) Plaintiff alleged being anxious and having low frustration tolerance. (AR 148.) Plaintiff reported a history of learning disability and that he stopped attending school in the 11th grade after taking some special education classes. (AR 148.) Plaintiff had been sober for two years. (AR 148.) Plaintiff wakes at 6:00 or 6:30 in the morning, does chores, watches television, rides his bike, and socializes with his family before retiring for the evening. (AR 149.)
Plaintiff's scores on various tests fell in the low and borderline ranges. (AR 149-50.) Despite these scores, Dr. Sayad opined that Plaintiff "does not appear to be developmentally disabled and [his] concurrent deficits in adaptive functioning, necessary for a diagnosis of mental retardation, were not evident on examination." (AR 150.) Dr. Sayad concluded that borderline intellectual functioning was probable. (AR 150.) Dr. Sayad diagnosed Plaintiff with (1) Anxiety Disorder, not otherwise specified ("NOS"); (2) Depressive Disorder, NOS; (3) Learning Disorder, NOS; (4) Polysubstance Abuse, In Remission; and (5) Borderline Intellectual Functioning ("BIF"). (AR 150.)
Dr. Sayad opined Plaintiff could understand, remember, and carry out very short and simple instructions, and had no significant limitation in his ability to interact appropriately with supervisors. (AR 151.) Dr. Sayad found moderate impairments in Plaintiff's ability to interact with the public or co-workers, maintain attention and concentration, and in responding to usual work situations and changes in a routine work setting. (AR 151.)
On November 17, 2010, K.P. Morris, Psy.D., reviewed the record and noted Plaintiff's variable testing scores, opining that Plaintiff could perform simple tasks with moderate limitations in social functioning. Dr. Morris opined Plaintiff's adaptive functioning was sufficient to make him aware of ordinary hazards, make simple decisions, use transportation, and cope with the demands of a routine work-like environment. (AR 155.)
On November 17, 2010, Disability Determination Service analyst C. Robertson reviewed Plaintiff's medical records. Analyst Robertson opined Plaintiff's test scores suggested he had BIF; however, lacking collateral evidence to support such a diagnosis, a diagnosis of cognitive disorder NOS was most accurate. (AR 170.) Analyst Robertson assessed that Plaintiff's impairments were severe, but did not rise to the level needed to meet or equal a listing pursuant to the Social Security Act. (AR 170.)
On April 27, 2011, Disability Determination Service analyst M. Graciano reviewed Plaintiff's medical records and noted no new allegations or changes to Plaintiff's conditions since his initial screening. (AR 210.) Analyst Graciano opined that Plaintiff's conditions were non-severe. (AR 211.)
On May 25, 2012, Linda Bates, PA-C, completed a questionnaire about Plaintiff. (AR 212.) She opined Plaintiff's primary impairments were hypertension and anxiety, but he had no restrictions or work limitations, and his anxiety was controlled with medications. (AR 212.)
B. Administrative Proceedings
On August 4, 2010, Plaintiff filed an application for SSI alleging disability beginning on January 1, 2008. (AR 90-97.) The Commissioner denied the application initially and again on reconsideration. (AR 55-66.) On June 26, 2012, Plaintiff appeared with counsel at a hearing before an administrative law judge ("ALJ"). (AR 222-54.) In a decision dated July 6, 2012, the ALJ analyzed the record and found that Plaintiff had a residual functional capacity ("RFC") to perform simple routine tasks in a non-public setting with only occasional interaction with others. (AR 13-24.) Given Plaintiff's non-exertional limitations, the ALJ called a Vocational Expert ("VE") who testified Plaintiff could perform work as a landscape laborer, night cleaner, and truck driver helper. (AR 13-24.)
The ALJ found Plaintiff was not disabled, because a significant number of jobs existed in the national economy that that he could perform. (AR 13-24.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. (AR 5-8.) Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).
1. Plaintiff's Testimony
On June 6, 2012, Plaintiff testified he lives with his son, his brother, and his nephew. (AR 227.) Plaintiff does not drive, but instead goes out with friends and family. (AR 227-28.) Plaintiff can make microwaved foods, chili dogs, and sandwiches. He has done laundry in the past; however, his brother usually does it now because Plaintiff mixed colors and whites. (AR 245.) Plaintiff's friends and family help remind him to go to appointments. (AR 236.) Plaintiff completed 10th or 11th grade, and has a 3rd or 4th grade reading level. (AR 228-29.) He can write his name and small words. (AR 228.)
Plaintiff testified he cannot work because it is hard for him to be around people and because of his anxiety. (AR 230.) He has anxiety attacks, but has not been hospitalized for anxiety and depression. (AR 237, 243.) He has trouble sleeping and concentrating. (AR 242.) Plaintiff has no vocational training, military experience, or work experience. (AR 229-30.) He has been in and out of prison repeatedly. (AR 230.)
2. Vocational Expert Testimony
David Van Winkle testified at the hearing as the VE. (AR 247-52.) The ALJ stated that Plaintiff had no past relevant work, and posed several hypotheticals to the VE. (AR 247.) The ALJ asked the VE whether a hypothetical person of Plaintiff's age and education, (1) with no past work experience, (2) who is able to perform at all exertional levels, (3) is limited to simple, routine tasks in a non-public setting, and (4) is limited to only occasional interaction with co-workers, could perform any work. (AR 248.) The VE responded that the hypothetical person could perform unskilled work, and gave the examples of truck driver helper, landscape laborer, and hotel mover/night cleaner. (AR 248.)
In a second hypothetical, the ALJ asked the VE whether a hypothetical person of Plaintiff's age and education, (1) with no past work experience, (2) who is able to perform at all exertional levels, (3) is limited to simple, routine tasks, and (4) is limited in peer and public contact, would be able to perform any work. The VE responded that the hypothetical person could perform the work of landscape laborer and office cleaner. (AR 248-49.)
In a third hypothetical, the ALJ added to the first two hypotheticals the constraint that the person would be off task at least 20 percent of the time due to mental symptoms and asked whether the person could perform any work. The VE responded that the hypothetical person could not perform any work. (AR 250.)
Plaintiff's counsel then asked the VE whether, if the hypothetical person from the second hypothetical were off task for 15 to 20 percent of the time due to impairments with concentration, they could perform any work. The VE responded that ...