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Dickey v. Colvin

United States District Court, N.D. California

November 19, 2014

KYLE DICKEY, Plaintiff,
v.
CAROLINE COLVIN, Acting Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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For Kyle Dickey, Plaintiff: Steven F. Bruce , PWDF, People With Disabilities Foundation, San Francisco, CA.

For Caroline Colvin, Acting Commissioner of Social Security, Defendant: Alex Gene Tse, U.S. Attorneys Office, San Francisco, CA; Theophous H Reagans , Jr., Social Security Administration, San Francisco, CA.

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ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT Re: Dkt. Nos. 19, 22

WILLIAM H. ORRICK, United States District Judge.

INTRODUCTION

Plaintiff Kyle Dickey seeks disability insurance benefits and supplemental security income because he suffers from astrocytoma, cognitive disorder, depression, and emotional lability. In denying Dickey's claims for benefits, an Administrative Law Judge (" ALJ" ) relied on a medical opinion from 2003 to improperly discount more recent medical opinions from 2010 and 2011 and effectively ignored the lay testimony of Dickey's step-father, a psychologist. Failing to credit the more recent evidence led the ALJ to disregard the vocational expert's answer to a hypothetical that established Dickey's inability to engage in substantial gainful activity. Because of these errors, I GRANT Dickey's motion for summary judgment, DENY the Commissioner's, and REMAND this matter for an award of benefits.

BACKGROUND

I. PROCEDURAL HISTORY.

On February 25, 2010, Dickey filed an application for DIB under Title II of the Social Security Act, alleging disability since January 1, 2006. Administrative Record (" AR" ) 149-152. The following day, on February 26, 2010, Dickey filed an application for SSI under Title XVI of the Social Security Act. AR 153-56. In his disability application, Dickey listed " [a]strocytona [g]rade 1, depression, brain damage, and emotional liability coordination" as physical or mental conditions that limited his ability to work. AR 180. Both applications were denied initially on July 30, 2010 and upon reconsideration on March 22, 2011. AR 89-92, 93-97, 98-102. Dickey filed a request for hearing on May 5, 2011. AR 105-06.

On April 19, 2012, the ALJ conducted a hearing where Dickey, Dr. Russell Chapman (Dickey's stepfather), and Kelly Bartlett (an impartial vocational expert) testified as to Dickey's alleged disability. AR 37-66. Following the hearing, Dickey submitted additional evidence regarding his disability including records from emergency room visits and a signed affidavit from Dr. Chapman both in his capacity as Dickey's stepfather and as a licensed counselor and clinical psychologist. AR 253-55. The ALJ rendered a decision on May 23, 2012, finding that Dickey was not disabled and had not been under a disability from January 1, 2006, through the date of the decision. AR 30.

On August 1, 2012, Dickey's attorney submitted a request for review to the Appeals Council. AR 257-264. The Appeals Council declined review and the ALJ's decision became the Commissioner's final decision on January 6, 2014. AR 1-6. Dickey filed this action for judicial review pursuant to 42 U.S.C. § 405(g). Dkt. No. 1.

II. DICKEY'S BACKGROUND AND IMPAIRMENTS.

After experiencing episodic vomiting and headaches, Dickey underwent neurosurgery to remove a cerebral tumor on August 19, 1997. AR 350. He was thirteen years old. After the surgery, Dickey experienced emotional disturbance, difficulty concentrating, aggressive outbursts, and immature behavior, but showed no signs of tumor recurrence. AR 334-349. His doctor at that time, Dr. Boutilier, recommended that Dickey be home-schooled until his behavioral symptoms disappeared.

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AR 344. Dickey completed eighth grade via home school. AR 366.

Dickey went back to school on a full time basis at the beginning of ninth grade and initially showed improvement. He began to experience depression in 2000 and was prescribed medication to control his attention and emotional problems. AR 336, 366, 339. In the second semester of ninth grade, he obtained an individualized education program based on eligibility for " Exceptional Children's Services as Other Health Impaired." AR 366. As a result, he had increased time for completion of assignments, preferential seating, and rest periods as needed. Id. He was still placed in regular academic classes with approximately one hour per day in the curriculum assistance class, and graduated from high school in June 2002. AR 25.

Between 1997 and 2002, medical records and MRIs showed no tumor recurrence. Physical examinations only showed a tiny amount of ataxia on the left finger to nose testing. AR 334-350. In 2002, five years after his surgery, Dr. Boutilier noted that Dickey was doing very well and had no signs of headaches; she recommended a neuro-oncology follow up at Duke before Dickey moved to Greensboro, North Carolina. AR 334. Dickey was referred to Dr. Dunn, a clinical neuropsychologist from the Brain Tumor Center at Duke. She performed a neuropsychological evaluation to assess Dickey's reported behavioral problems, depressed mood, and changes in personality. AR 268. After administering a number of tests, she found, among other things, that Dickey (i) was functioning in the average range with respect to intellectual abilities; (ii) was performing fairly well with respect to visual attention tasks, although on a verbal attention and concentration task, Dickey had significant decreased speed of processing and increased distractibility; and (iii) was well within normal limits on higher level executive task, including abstract reasoning and set-shifting. AR 270. Dr. Dunn noted that the findings argued against any significant organic impairment with respect to frontal lobe abilities. AR 270.

The test results indicated that Dickey did not have significant impairment in functional memory. Expressive and receptive language abilities and visuospatial and visuomotor abilities were within normal limits. Id. Dr. Dunn also found that Dickey was not reporting symptoms suggestive of significant depressive symptomatology. Id. Ultimately, she observed that the evaluation did not suggest significant organic dysfunction with respect to higher level executive or frontal lobe processing and that Dickey's reported episodes of anger and poorly controlled emotional regulation was more likely " functional in nature" than linked to significant signs of organic sequelae from his brain tumor. Id.

The only area of concern that Dr. Dunn noted was Dickey's moderately decreased speed of processing and increased distractibility with respect to verbal attention and concentration testing. AR 271. In that respect, she recommended that Dickey try Ritalin or similar psychostimulant medication to alleviate some of the processing speed deficits in the verbal domain. Id. She also recommended that Dickey engage in psychotherapy to address his emotional and mood disturbances. Id. Dr. Dunn concluded that so long as Dickey's brain tumor remained free from progression and " there [were] no significant changes in his neurological status," repeated neuropsychological testing was warranted at 2-3 year intervals " to track any potential changes in cognitive abilities." Id.

In the fall of 2003, Dickey enrolled in five courses at Guilford Technical Community College in Jamestown, North Carolina. AR 251. He received an F in two

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of the courses, a withdrawal from one course, and no grade for the other two courses. Id. No grade point average (" GPA" ) was reported for the courses. Id. He enrolled in seven other courses, but it does not appear that he completed them. Id. From 2001 through 2006, he worked part-time as an usher and ticket seller at a movie theater, a grocery bagger, and table busser at a restaurant, earning a high of $3,800 (in 2003) and a low of $600 (in 2005). AR 157-164. There are no reported earnings after 2006, when he earned $1,300. AR 157.

In 2006, Dickey moved to California to live with his mother and stepfather. AR 44-45, 275. He claims that his last job was an on-call catering job at the University of California, Berkeley in 2007. AR 44; Plaintiff's Motion for Summary Judgment (" Pl's. Mot." ) at 2. The job was part-time and during the week he worked five or ten hours, although there were some weeks when he did not work at all. AR 44; Pl.'s Mot. at 2.

Between 2009 and 2010, Dickey completed nine courses at Diablo Valley College in Pleasant Hill, California. AR 250, 43. For the fall semester of 2009, he completed a course in golf and another in U.S. history, receiving an A and a C, respectively. Id . In the spring of 2010, he completed four courses: American Cinema (earning an F), Fundamentals of Oceanography (earning a D), Intermediate/Advanced Golf (earning an A), and Flag Football (earning a C). Finally, in the fall of 2010, he completed courses in the Visible Universe (earning a D), Physical Geology (earning a B), and Intermediate/Advanced Golf (earning an A). Id. His cumulative GPA was a 1.842. Id.

There are five medical reports from Dr. Metheney, Dickey's treating physician, between 2004 and 2009. One concerns a repeat MRI of the brain, which showed no recurrence of tumor. Four are family medicine visit reports that Dickey's emotional lability was at issue. Dr. Metheney prescribed medication for Dickey's reported manic depressive, anxiety, and occasional anger outburst symptoms. AR 621-27. She specifically noted that she believed ...


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