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Margulis v. Colvin

United States District Court, E.D. California

March 9, 2015

MAX SHELDON MARGULIS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER ON PLAINTIFF'S COMPLAINT

SHEILA K. OBERTO, Magistrate Judge.

I. INTRODUCTION

Plaintiff, Max Sheldon Margulis ("Plaintiff"), seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for Disability Insurance Benefits ("DIB") benefits pursuant to Title II and XVI of the Social Security Act. 42 U.S.C. ยง 405(g), 1383 (c). 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.[1]

II. FACTUAL BACKGROUND

Plaintiff was born on March 19, 1992, and alleges disability beginning on March 19, 2010. (AR 9-24; 276-87.) Plaintiff claims he is disabled due to bipolar disorder, anxiety disorder, depression, attention deficit disorder, intermittent explosive disorder, dyslexia, speech and language disorder, learning disorders, digestive disorder, neurological disorder, and "[m]ental disorders and physical conditions." (AR 279.)

A. Relevant Medical Evidence

a. Hospital Records

On December 11, 2004, Plaintiff was seen at the Children Crisis Center ("CCAIR") after he threatened to jump off a ledge in his house because he "was upset with his father because the father did not buy him a Yu Gi Yo card that he wanted." (AR 464-65.) Notes indicate that Plaintiff's paternal uncle and nephew are diagnosed with bipolar disorder. (AR 466.) Clinician Sam Adams noted that Plaintiff "continues to make threats when he [is] angry" and opined that it "appears to be a form of manipulation" and "a way of influencing his father's behavior." (AR 469.)

On January 28, 2009, Plaintiff was seen by Dr. Syed A. Hamid, M.D., FAAP, for a follow-up consultation for his gastroesophageal reflux. (AR 330-31.) An upper endoscopy was completed on December 30, 2008, and biopsies all came back negative, but Dr. Hamid prescribed daily Prilosec and dietary restrictions to help with his ongoing nausea and regurgitation. (AR 331.)

On May 31, 2009, Chameka Howell, CMHS, at Fresno County Children and Family Services noted that Plaintiff had been placed on a 5150 hold for suicidal thoughts, which Plaintiff believed had been caused by one of his medications. (AR 461.) Sharon Glover, MHN II, noted that Plaintiff "presented with a sad affect and poor eye contact" and reported that he was sad six out of seven days a week and had been thinking about suicide for two years. (AR 463.) On June 1, 2009, Myral Pacheco, MS, UMHC, noted Plaintiff "presented as depressed with flat affect. He reported feeling suicidal for two years but with no plan and no intent. [Plaintiff] stated he had not told his psychiatrist he was having [suicidal ideations] because he thought he wouldn't be taken serious." (AR 460.) He reported that his suicidal thoughts were brought on because he was failing math class. (AR 460.)

Plaintiff was seen on August 30, 2009, at Community Regional Medical Center after jumping off a 17 foot staircase with the "intention to injure himself." (AR 332; 339; 455; 458-59; see also AR 448 (police report).) He "climbed up on the stair railing" and jumped off, landing on the floor and hitting his ankles, back, and head. (AR 285.) He lost consciousness for about five minutes, awoke at the scene of the jump, and though he complained of neck and back pain, he sustained no fractures. (AR 332; 334-38; 340-44.) He was put on a 5150 hold as a result of his attempt at "self-injury." (AR 333.) In a progress note from Fresno Community Regional Medical Center, Plaintiff

... appeared anxious and there was a noticeable [tremor] that appears to be a side effect of the medications [Plaintiff] is taking. [Plaintiff]'s speech was sometimes unintelligible and he appeared to be confused and [made] minimal eye contact. [Plaintiff] stated he got upset with his father because his father was upset with him. [Plaintiff] stated he barricaded himself in his bedroom and his father broke into his bedroom and grabbed him. [Plaintiff] stated his memory is foggy and he is not sure at what point he jumped off the top of the stair landing. [Plaintiff] stated he has had suicidal ideations in the past and there is documentation of [Plaintiff] presenting at the CCAIR Unit exhibiting similar suicidal ideations. [Plaintiff] denies any suicidal ideations at this time but appears to continue to be anxious and unstable at this time.

(AR 455.) He was diagnosed with an "adjustment disorder" (AR 361) and discharged home. (AR 363).

Plaintiff was admitted to Vista Del Mar Hospital from August 31 to September 2, 2009, on a 5585 hold as a "danger to self." (AR 347; 350-51; 353; 354-55.) Dr. Robert Carvalho, M.D., noted that during "family therapy, [Plaintiff]'s father minimized [Plaintiff]'s and father's anger and impulse control issues. At the end of the 5585, parents [signed Plaintiff] out of the hospital against medical advice." (AR 347.) Dr. Carvalho noted on discharge that Plaintiff "had tremor of hands, left greater than the right. [Plaintiff] was anxious and depressed with constricted affect. Fair insight. Fair judgment." (AR 348.)

Plaintiff was seen on April 4, 2010, at Clovis Community Medical Center, for self-injury by "abraded wrist, " complaining of "situational problems" with his parents, anxiety, and depression. (AR 356-58.) Imaging of the lumbar spine on October 25, 2010, was normal. (AR 369.)

Plaintiff was seen at Community Medical Centers by Lana Williams, M.D., on October 14, 2011, after "putting a knife to his throat and threatening to cut himself" "because he was depressed." (AR 484.) Diagnoses included bipolar disorder, Asperger's Syndrome, intermittent explosive disorder, and psychosocial mental illness. (AR 484.)

b. Dr. Fox's Records

Plaintiff was seen by David A. Fox, M.D., sporadically twenty-three times from March 4, 2005, through October 24, 2011, for consultations regarding his diagnoses of bipolar disorder, Asperger's Syndrome, Attention-Deficit Disorder, and Intermittent Explosive Disorder. (AR 370-88; 422-24; 488-91.)

On August 17, 2011, Dr. Fox, completed a mental residual functional capacity ("RFC") form, opining that Plaintiff was "limited but satisfactory" in his ability to make simple work-related decisions, get along with co-workers or peers, and respond appropriately to changes in a routine work setting; "seriously limited, but not precluded" in his ability to remember work-like procedures, carry out very short and simple instructions, accept instructions and respond appropriately to criticism from supervisors, and maintain socially appropriate behavior; "unable to meet competitive standards" in his ability to understand and remember very short and simple instructions, maintain attention for a two-hour segment, maintain regular attendance and be punctual within customary tolerances, sustain an ordinary routine without special supervision, work in coordination with or proximity to others without being unduly distracted, perform at a consistent pace without an unreasonable number and length of rest periods, interact appropriately with the public, and ask simple questions or request assistance; and, had "no useful ability to function" in completing a normal workday and workweek without interruptions from his psychologically based problems, use public transportation or travel in an unfamiliar place, or deal with normal work stress. (AR 477-79.)

Dr. Fox opined that Plaintiff "has been unable to sustain himself in school, or work or social environments for [the] past 2 years. Anxiety makes him non-functional." (AR 478.) Further, Plaintiff "rapidly deteriorates under any type of work demand, performance expectation, or pressure to complete tasks." (AR 488.) Dr. Fox also scored Plaintiff at a "current" GAF[2] score of 40, with his "highest" GAF of the past year at a 45 (AR 477), and opined that Plaintiff would be absent more than 4 days a month as a result of his impairments. (AR 479.)

Dr. Fox also completed a Physical Capacities Evaluation, opining that Plaintiff had no physical limitations but would be limited to sitting, standing, or walking only 4 hours within an 8-hour workday and was totally restricted from activities involving hazards. (AR 481-82.)

c. Dr. House's Records

Plaintiff was seen by Matt House, D.O., beginning on December 15, 2011, and again on January 10, March 7, and April 25, 2012, for general care. (AR 506-10.) Plaintiff reported experiencing increased anxiety recently on May 22, 2012, (AR 574), and on June 19, 2012, Dr. House noted Plaintiff was "hypersomnolent, " not depressed or experiencing significant anxiety, but was "very tired" and had been sleeping 15-18 hours a day. (AR 573.)

On April 24, 2012, Dr. House completed a mental RFC form, opining that Plaintiff was "seriously limited, but not precluded" in his ability to understand, remember, and carry out very short and simple instructions and ask simple questions or request assistance; was "unable to meet competitive standards" in his ability to understand and remember detailed instructions or work-like procedures, maintain attention for a two-hour segment, maintain regular attendance and be punctual within customary tolerances, make simple work-related decisions, perform at a consistent pace without an unreasonable number and length of rest periods, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers, maintain socially appropriate behavior, or interact appropriately with the public; and had "no useful ability to function" in his ability to sustain an ordinary routine without special supervision, work in coordination with or proximity to others without being unduly distracted, complete a normal workday and workweek without interruptions from his psychologically based problems, carry out detailed instructions, set realistic goals or make plans independently of others, deal with stress of semiskilled and skilled work, use public transportation or travel in an unfamiliar place. (AR 501-04.)

Dr. House opined that Plaintiff's "mental health condition precludes [him from] functioning in [the] areas indicated." (AR 502.) Dr. House assessed Plaintiff as having a "current" GAF score of 50, assessed Plaintiff's "highest" GAF score of the past year also at 50 (AR 501), and opined that Plaintiff would be absent more than 4 days a month as a result of his impairments. (AR 504.)

d. Dr. Hill's Records

On August 12, 2011, Dr. Mary Hill completed a mental RFC questionnaire, opining that Plaintiff was "limited but satisfactory" in his ability to remember work-like procedures, understand, remember, and carry out very short and simple instructions, ask simple questions or request assistance, and be aware of normal hazards and take appropriate precaution; "seriously limited, but not precluded" in his ability to work in coordination or proximity to others, make simple work-related decisions, and interact with the public; some mix of "seriously limited" and "unable to meet competitive standards" in his ability to perform at a consistent pace without an unreasonable number and length of rest periods, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers, or respond appropriately to changes in a routine work setting; and "unable to meet competitive standards" "at present" in his ability to maintain attention for two-hour segments, maintain regular attendance and be punctual, sustain an ordinary routine without special supervision, complete a normal workday and workweek without interruptions from psychologically based symptoms, set realistic goals or make plans independently of others, deal with stress of semiskilled or skilled work, or deal with normal work stress. (AR 429-31.)

Dr. Hill specifically opined that Plaintiff's "current mental status is highly reactive under pressure" and that he is "physically capable and intellectually capable of more than his emotional ability to cope[.]" (AR 430.) Finally, Dr. Hill opined that Plaintiff would be absent from work more than four days per month due to his impairments, including his "overwhelming anxiety" and "poor social skills development and utilization." (AR 431.)

Dr. Hill also completed a physical capacities evaluation opining that Plaintiff was limited to carrying 25-50 pounds only occasionally, and all lesser weights frequently, had no postural or manipulative limitations, and was totally restricted from activities involving fumes, odors, dust, gases, or poor ventilation by his asthma. (AR 427-28.) She also noted that were Plaintiff "able to participate in a well[-]run structured living facility with possible modification of his medication regimen, [ ] he would improve his prospects for calm semiskilled work. Without this he has very limited employment prospects." (AR 428.)

In an undated letter, Dr. Hill noted that Plaintiff was characterized by his slow responses to questions and poor eye contact, difficulties developing social skills and enduring friendships, and "inability to cope with anticipated stressors" and "any sort of confronting or pressured circumstance[.]" (AR 432.) Dr. Hill observed that Plaintiff "experiences both physical (vomiting) and psychic distress, as well as physical outbursts which endanger him and anyone around him. He remains immature and inappropriately dependent on his parents." (AR 432.)

e. Neurological Evaluation by Dr. Glidden

On April 30, 2012, Howard J. Glidden, PhD, completed a neuropsychological evaluation of Plaintiff. (AR 512-52.) Dr. Glidden administered the Wechsler Adult Intelligence Scale-IV, Wechsler Memory Scale-III (Spatial Span Test), Visual Search and Attention Test, Rey-Osterreith Complex Figure Test, Hopkins Verbal Learning Test-Revised, Behavior Rating Inventory of Executive Function, Interview for Autistic Spectrum Disorder Symptomatology, Social Communication Questionnaire, Beck Depression Inventory-II, Beck Anxiety Inventory, Mental Status Examination, and a pre-test interview. (AR 512.)

Plaintiff presented as

... an alert, fully oriented, well-developed, non-dysmorphic, socially reserved, predominantly right-handed, 20-year-old male who appeared to be his stated age and in no acute distress. Vision and hearing appeared to be within functional limits and were uncorrected. Hygiene and habits of dress were unremarkable. He was well-kempt and neatly groomed. [Plaintiff] consented to the evaluation, attempting all tasks presented. There was no evidence of noncompliance or minimization of effort. Attention and ability to focus concentration for verbal and nonverbal information were variable, but were certainly sufficient to allow completion of this lengthy evaluation without challenge. There did appear to be some erosion of attention secondary to anxiety, which impacted performance on novel learning tasks. There was no evidence of impulsivity or hyperkinesis. Task persistence and tolerance for frustration appeared to be within normal limits. Affectively, his mood appeared anxious, consistent with parental report. There was no unusual posturing, nervous mannerisms, signs of agitation or stereotypies. Cognitive tempo appeared to be intact. Thought processes appeared to be within normal limits, with a spontaneous stream of activity. Thought content was appropriate, cogent and directed, without evidence of associational disturbance. Error recognition and utilization appeared to be intact. Cognitive flexibility was evident. There was no evidence of perseverative interference or difficulty in shifting from one task to another. There was no evidence of a formal thought disorder. Evaluation of speech revealed mild to moderate disarticulation consistent with history of phonological disorder.

(AR 516.)

Plaintiff scored in the Low Average to Average range in verbal digit span and Borderline in verbal arithmetic, and Low Average in the Spatial Span Test, Visual Search and Attention Test, and visuomotor test. (AR 529-30.) Plaintiff scored in the Average range on the Rey-Osterreith copy and recognition tests, Low Average on the Rey-Osterreith immediate recall test, and Impaired to Borderline on the Hopkins Verbal Learning Test-Revised. (AR 530.) Plaintiff scored in the Average range in the Wechsler Adult Intelligence Scale-IV verbal comprehension and perceptual reasoning subtests, and in the Low Average to Borderline range on the working memory and processing speed subtests. (AR 531.) This resulted in a full scale IQ score of 92, in the thirtieth percentile and within the Average range, which Dr. Glidden opined was representative of "statistical averaging" and "should not be viewed as indicative of his overall' level of intellectual ability" due to the significant variability among Plaintiff's subtest scores. (AR 518; 531.) Plaintiff was given a 75 Global Executive Composite score, within the ninety-ninth percentile. (AR 532.) Results of the Beck Depression Inventory-II yielded a total score of 24, within the Moderate range, and results of the Beck Anxiety Inventory yielded a total score of 34, within the Severe range. (AR 520.)

When evaluating Plaintiff's "autistic" behaviors, Dr. Glidden noted that Plaintiff

... does not appear disinterested when spoken to, does not exhibit eye-gaze aversion, would rather be with others than alone, and does not have difficulty expressing emotions. He does not exhibit perseverative behaviors including: hand flapping/waving when excited, spinning objects or himself repetitively, smelling or tasting objects repetitively, liking to stroke different textures, echolalia, or lining up objects. He does not have an unusual memory for past events or places, does not have a developed expertise, does not have a high tolerance for pain, comes to his parents for comforting when hurt, does not insist on maintenance of routines, and has well-developed joint attention.

(AR 515.) Further, results of the "Social Communication Questionnaire, a dimensional measure of Autistic Spectrum Disorder symptomatology... yielded a total score of 6. This is well below the conservative cut-off score of 15 recommended by the test's authors for a more comprehensive evaluation of an Autistic Spectrum Disorder." (AR 520.) Dr. Glidden opined that a diagnosis of Autistic Spectrum Disorder was not "warranted." (AR 521.)

However, Dr. Glidden opined that based on parental report, self-report, review of the medical records, and the evaluation, Plaintiff could be credibly diagnosed as suffering from Generalized Anxiety Disorder and Social Phobia. (AR 522-23.) In his opinion, "[b]ecause of the severe social phobia experienced, [Plaintiff] is at a significantly reduced capacity to function in a work setting[.]" (AR 523.) Various coping skills, memory-aiding skills, and socialization techniques were recommended to aid Plaintiff, and academic accommodations and reading materials were proposed to help Plaintiff. (AR 524-28.)

Dr. Glidden concluded that

Acute neuropsychological sequelae do not appear to be present in [Plaintiff's] profile. There is no evidence of a focal, lateralized or progressive organic impairment. There is no further evidence that [Plaintiff] has experienced a diminution of cognitive skills and abilities over time. Rather the affective challenges noted appear to be of developmental/familial origin, rather than newly acquired, particularly when one takes into account [Plaintiff's] developmental, academic, medical and interpersonal histories.

(AR 521.)

f. Internal Medicine Evaluation by Dr. Damania

On December 16, 2010, Plaintiff was examined by Rustom F. Damania, M.D., at Valley Health Resources at the request of the agency. (AR 389-94.) Noting that Plaintiff's bilateral hand tremors were "coarse" and more pronounced when extended, but "would stop as soon as [Plaintiff] held onto an object[, ]" Dr. Damania concluded that Plaintiff's chronic hand tremors were "probably secondary to chronic anxiety." (AR 393.) Dr. Damania opined that Plaintiff

... should be able to lift and carry 50 pounds occasionally and 25 pounds frequently. [He] can stand and walk without restriction[ ] [and] sit without restriction. No assistive device is necessary for ambulation. No postural limitations to bending, stooping or crouching. No definite manipulative limitations but he may have difficulty with using small tools or anything that requires fingering ...

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