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Kipp v. Commissioner of Social Security

United States District Court, E.D. California

October 1, 2014



STANLEY A. BOONE, Magistrate Judge.

Plaintiff Michael Burrell Kipp ("Plaintiff") filed this action seeking judicial review of the final decision of Defendant Commissioner of Social Security ("Defendant" or "Commissioner") denying Plaintiff's application for benefits under the Social Security Act. (ECF No. 1.) All parties have consented to the jurisdiction of a United States Magistrate Judge for all purposes. (ECF Nos. 7, 8.)

Plaintiff applied for Social Security benefits due to impairments related to a brain injury, a non-verbal learning disorder, an autistic spectrum disorder, an attention deficient hyperactivity disorder, and Asperger's Syndrome. For the reasons set forth below, Plaintiff's appeal from the final decision of the Commissioner is denied.



Plaintiff applied for Supplemental Security Income benefits on January 20, 2010. (AR 189.) Plaintiff's application was denied on June 15, 2010. (AR 74.) Plaintiff requested reconsideration of the denial on August 21, 2010. (AR 80.)

On November 11, 2010, Plaintiff requested a hearing. (AR 84.) On April 4, 2012, a hearing took place before Administrative Law Judge Robert Lowenstein ("the ALJ"). (AR 27.) On April 17, 2012, the ALJ issued a written decision and found that Plaintiff was not disabled. (AR 7-21.) The Appeals Council denied Plaintiff's request for review on September 10, 2013. (AR 1.)

A. Plaintiff's Hearing Testimony

Plaintiff testified that he was born on April 18, 1991. (AR 32.) Plaintiff has twelve years of schooling. (AR 32.) Plaintiff is 5'11" and weighs about 200 pounds. (AR 32.) Plaintiff lives in a single story house with his parents and brother. (AR 33.) Plaintiff's hobbies include cars, video games, electronics, and reading. (AR 34.)

Plaintiff testified that he sees a doctor and psychiatrist. (AR 34-35.) Plaintiff sees a doctor every three to six months. (AR 35.) Plaintiff has seen a psychiatrist once, with a second visit scheduled the same week as the hearing with the ALJ. (AR 35.) Plaintiff takes Buspirone and Risperidone. (AR 36.)

Plaintiff testified that he is unable to stay focused. (AR 36.) Plaintiff gets tired easily. (AR 36.) Plaintiff testified that he moves and works slower than most people. (AR 36.)

Plaintiff testified that he participated in a work ability program and tried to work at a Dollar Tree for six hours, but he was unable to complete the shift. (AR 37.)

Plaintiff goes to bed at around 10:00 or 11:00 at night. (AR 38.)

Plaintiff is knowledgeable about cars and reads car magazines. (AR 38.) Plaintiff plays video games, such as racing games and real time strategy games. (AR 38.) Plaintiff plays for several hours, but takes breaks every once in a while. (AR 38-39.) Plaintiff likes to tinker with electronics. (AR 39.) Plaintiff took apart a broken video game system to see what was inside it, but could not repair it. (AR 39.) Plaintiff also spends about 30 minutes to an hour reading science fiction, comic books, and magazines. (AR 39.)

Plaintiff testified that he cannot work for long periods of time because he loses focus. (AR 40.) Plaintiff last tried working six hours a few years before the hearing, and tried working for less than a week. (AR 40.) Plaintiff also reported losing focus while reading, playing games, and taking apart electronics. (AR 40.) Plaintiff also reported having difficulty in school. (AR 40-41.)

Plaintiff is able to dress himself, shower, cook, simple things, and shop. (AR 41-42.) Plaintiff stated that he does not do dishes often because it is hard for him to stay focused. (AR 42.) Plaintiff does his own laundry, makes his bed, vacuums, takes out the garbage, and mows the lawn. (AR 42.)

On a school day, Plaintiff gets ready for school, goes to the bus stop, and rides the bus to school for a math class at Fresno City College. (AR 43.) Plaintiff then hangs out with his friends until his second class starts around 5:00 p.m. (AR 43-44.) Plaintiff's second class is training for teaching assistants in special education. (AR 44.) While in the Work Ability program, Plaintiff also helped students for an hour or two by pushing wheelchairs and supervising. (AR 45.)

When Plaintiff was in high school, he received special accommodations, such as an aide, calculator, note taker, and longer time to take tests. (AR 49.) Plaintiff took special education classes in high school. (AR 49.) Plaintiff is no in the disabled students program at Fresno City College. (AR 50.) Plaintiff is late to school about half the week because it is hard to get to bed on time. (AR 50-51.) Plaintiff also is slow to get dressed because he wakes up groggy from tiredness and from side effects from his medication. (AR 52.) Plaintiff takes about 20-30 minutes to get ready for school. (AR 52.)

Plaintiff has recently been treated for depression. (AR 56.) Plaintiff has had depression for 2-4 years. (AR 56.)

B. VE Testimony

Thomas Dachelet testified as a vocational expert ("the VE") at the hearing on April 4, 2012. (AR 57.) The VE testified that Plaintiff has no past relevant work. (AR 58.)

The ALJ provided the VE with the following first set of hypothetical limitations:

• No exertional limitations; and
• Limited to simple, routine and repetitive tasks.

(AR 58.) The VE testified that someone with such limitations could work jobs ranging from sedentary work to heavy work. (AR 58.) Specifically, the VE identified poultry worker (DOT 525.687-010), packager, hand (DOT ...

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