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Fatheree v. Colvin

United States District Court, E.D. California

March 16, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SHEILA K. OBERTO, Magistrate Judge.


Plaintiff Randolph Franklin Fatheree ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 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.[1]


Plaintiff was born in 1962, attended school through second grade and was home schooled until fifth grade, and is illiterate. (Administrative Record ("AR"), 31.) Plaintiff lives with his brother. (AR 35.) Plaintiff previously worked as a roofer and construction worker. (AR 44.)

A. Relevant Medical History

Plaintiff was admitted to the emergency room in February 2011 with upper abdominal pain. (AR 205-08, 209-15.) His physical examination was normal, but his computerized tomography ("CT") scan showed cholelithiasis and diverticulosis of the colon, with active inflammatory change. Id.

In March 2011, Plaintiff was diagnosed with gallbladder disease and chronic obstructive pulmonary disease ("COPD") at Doctors Medical Center of Modesto. (AR 262.) Gallbladder surgery was postponed in late March 2011 because Plaintiff developed bronchitis. (AR 247.) Plaintiff reported a history of tobacco use, but indicated he no longer smoked, as well as a history of cocaine and methamphetamine use. (AR 247.)

In April 2011, state agency reviewing doctor, Laura Lochner, Ph.D., completed a Psychiatric Review Technique form and noted Plaintiff's lay statement suggested a "possible mental impairment, " but there was no evidence of a discrete mental impairment in the medical records; further analysis of Plaintiff's possible mental impairment was curtailed due to a lack of treatment for mental impairments. (AR 232.) Nevertheless, even if Plaintiff did suffer from a mental impairment, Dr. Lochner opined it did not result in any work-related functional limitations. (AR 232.) Dr. Lochner's opinion was affirmed in July 2011 by state agency reviewing psychologist P.Y. Klein, PsyD, who determined Plaintiff did not have a medically determinable mental impairment. (AR 272-84.)

In April 2011, another state reviewing physician, Walter Bell, M.D., completed a Physical Residual Functional Capacity Assessment. (AR 234-41.) Dr. Bell assessed that Plaintiff's physical limitation included avoiding concentrated exposure to fumes, odors, dusts, gasses, and areas with poor ventilation. (AR 238.) Dr. Bell noted Plaintiff used a cane, crutches, and walker, none of which were prescribed by a doctor. (AR 239.) He concluded that Plaintiff had no medically determinable condition. State agency reviewing physician, J. Linder, M.D., affirmed Dr. Bell's opinion that Plaintiff lacked medically determinable impairments except for the environmental precautions against fumes, odors, gasses, and poor ventilation, in August 2011. (AR 286-87.)

On May 2, 2011, Plaintiff underwent surgery to have his gallbladder removed and traverse colon repaired. (AR 245, 247-60, 261-65.) Plaintiff's concurrent physical examination was normal. (AR 247.)

In May 2011, during examination at Stanislaus County Health Service Agency, Plaintiff's straight leg raising ("SLR") test was negative, and his motor strength was 5/5 on the right and 4/5 on the left. (AR 268, 318.) In May and July 2011, Plaintiff reported chronic low back pain. (AR 267-68.) In July 2011, Plaintiff reported multiple aches and pains, his SLR test was positive on the right and negative on the left, and he was prescribed ibuprofen and Vicodin. (AR 267, 319.)

In September 2011, an X-ray of Plaintiff's spine showed marked degenerative changes and some congenital deformities. (AR 294.) Plaintiff was diagnosed with COPD, low back pain, and depression. (AR 317.) In October, Plaintiff requested a refill of Vicodin for his back pain, and reported his symptoms were unchanged. (AR 313-14.) A sleep study showed Plaintiff had a very mild breathing disorder during sleep. (AR 324.) From December 2011 to February 2012, Stanislaus County Health Service Agency treated Plaintiff's low back pain and depression. (AR 312-13.)

In September 2011, Robert L. Morgan, Ph.D., administered a series of intelligence tests using the Wechsler Adult Intelligence Scale IV ("WAIS-IV"). (AR 295-302.) Plaintiff's scores were 68 for Verbal Comprehension, 86 for Perceptual Reasoning, 80 for Working Memory, and 68 for Processing Speed, with a Full Scale IQ score of 71. (AR 295-97.) Dr. Morgan noted that Plaintiff possessed a "unique set of thinking and reasoning abilities" that made his overall intellectual functioning difficult to summarize with a single score on the WAIS-IV. (AR 295.) Dr. Morgan noted that while Plaintiff's verbal reasoning abilities were extremely low with a score of 68, his nonverbal reasoning abilities were much better developed as reflected by his significantly higher score of 86. (AR 295-97.)

Dr. Morgan subsequently saw Plaintiff three times, in January, February, and March of 2012. (AR 303.) Plaintiff's older brother, Wayne Fatheree, with whom Plaintiff lived, accompanied Plaintiff and participated in the meetings with Dr. Morgan. (AR 303.) In a Comprehensive Psychological Evaluation dated March 23, 2012, Dr. Morgan reported Plaintiff was last employed in 2007, and had not worked since he was laid off. (AR 303.) Dr. Morgan reported that Plaintiff worked with sheet metal and air-conditioning, acting primarily as a "helper, " with his brother and colleagues supervising his activities and providing instruction. (AR 303-04). Plaintiff did not make independent decisions or work by himself. (AR 304.) Previously, Plaintiff worked on an as-needed basis as a roofer from 1997-2006, primarily with his brother or brother-in-law, for different companies. (AR 305.)

Dr. Morgan reported that Plaintiff attended school until the second or third grade, then was home schooled until fifth grade. (AR 304.) Plaintiff could read simple things, but was functionally illiterate, and had difficulty concentrating and remembering. Plaintiff was arrested for petty theft as a young adult and for driving under the influence of alcohol in 1994. (AR 305.) Plaintiff lived with his brother, did not drive and could not pass the 18-question driver's license examination, and was unable to handle his finances. (AR 304.) He showered perhaps every three days. (AR 306.) Plaintiff had no friends, no children, was single, and had never married. (AR 304.) Plaintiff reported to Dr. Morgan that he did nothing all day and had no hobbies. (AR 304.)

Plaintiff suffered from depression and anxiety, and his memory was poor. (AR 304.) Plaintiff had thoughts of killing himself, but no plans to do so. (AR 304.) He felt he had failed as a person and his future was hopeless. (AR 304.)

Dr. Morgan reported that Plaintiff's back was injured in 1984 and he was subsequently diagnosed with degenerative disc disease. (AR 305.) Plaintiff had gained almost 100 pounds over the previous 18 months. (AR 306.) He previously used methamphetamines, but last used them three years prior in 2009. (AR 305.)

Dr. Morgan reported that Plaintiff's mental status examination showed him to be cooperative, with coherent, organized, and logical thought processes, and oriented to person, place and time. (AR 306.) He estimated Plaintiff's IQ was "average." (AR 306.) Plaintiff knew the month and year, but not the day of the week; could remember 3 digits forward and 2 digits backwards; and could recall 1 of 3 items after five minutes. (AR 307.) He knew his date of birth, could name a number of past presidents, but was unaware of current events. He could do simple adding and subtracting, but not multiplication. (AR 306-07.) He could perform abstract thinking, knew similarities and differences, and had good insight and judgment. (AR 307.)

Dr. Morgan concluded that although Plaintiff had a Full Scale IQ score of 71, his Verbal Comprehension Index score of 68 suggested mild mental retardation. (AR 307.) In addition, Plaintiff's Perceptual Reasoning Index score of 86 suggested a learning disability, because his nonverbal abilities were so much better than his verbal abilities. (AR 307.) Dr. Morgan diagnosed Plaintiff with major depressive disorder and learning disability. (AR 308.)

Dr. Morgan opined Plaintiff met Listing 12.05 for mental retardation and 12.04 for affective disorder. (AR 308.) He opined Plaintiff was moderately impaired in his ability to understand, remember, and perform simple one- to two-step tasks. (AR 309.) Plaintiff was markedly impaired in his abilities to deal with the public, maintain activities of daily living, maintain social functioning, and maintain concentration, persistence, and pace. (AR 308-10.) Plaintiff had a Global Assessment Function ("GAF") score of 50.[2]

In April 2012, Mr. Pete Thompson, LCSW, wrote a letter on Plaintiff's behalf. (AR 311.) Mr. Thompson reported Plaintiff received treatment for depression and childhood trauma at his office at Ceres Medical Office (part of Stanislaus County Health Services Agency), over thirteen sessions from April 2011 to April 2012. (AR 311.) Mr. Thompson reported that while Plaintiff's short term memory impairment had increased in the previous year, Plaintiff had also suffered from memory problems for 17 years. Plaintiff could not perform simple math, and could read with an early elementary school level proficiency. (AR 311.) Plaintiff did not attend school past third grade because he did not feel safe. Mr. Thompson did not think Plaintiff was capable of functioning adequately in any job, and diagnosed Plaintiff with post-traumatic stress disorder ("PTSD"), and mild mental retardation. (AR 311.) Mr. Thompson assigned Plaintiff a GAF of 44.

B. Administrative Proceedings

The Commissioner denied Plaintiff's application for benefits initially on April 7, 2011, and again on reconsideration on August 24, 2011. (AR 68-71, 78-82.) On April 10, 2012, Plaintiff appeared with counsel and testified before an administrative law judge ("ALJ"). Plaintiff's brother and a vocational expert ("VE") testified as well. (AR 27-48.)

1. Plaintiff's Testimony

Represented by counsel, Plaintiff testified at a hearing held on April 10, 2012. (AR 27-48.) Plaintiff's last job was at Modesto Air and Sheet Metal. (AR 32.) While working, Plaintiff's friend would show him how to take a "couple" of screws off of the metal to take the air conditioning unit apart and "help haul it away." (AR 32.)

Plaintiff testified that he could not work anymore because of his back pain. (AR 33.) Medications helped "a little bit" for his back. (AR 34.) Side effects of Plaintiff's medications included an upset stomach and excess sweating. (AR 34.) Plaintiff also had asthma and depression. (AR 34-35.) He quit smoking three years ago, and stopped drinking four years ago. (AR 34-35.)

Due to his depression, Plaintiff did not want to function or "do anything." (AR 35.) Plaintiff had trouble concentrating - he would forget what people asked him to do within about a half hour. (AR 40.) Plaintiff had trouble sleeping at night and took prescription sleeping pills, but only got four hours of broken sleep per night. (AR 40.) Plaintiff's doctor had told him to lose weight; he was 5'11" and weighed 264 pounds. (AR 33-34.)

Plaintiff lived with his oldest brother. (AR 35.) He microwaved his own food and made his own bed, but did not wash dishes or vacuum. (AR 36-37.) Plaintiff watched television about six hours a day. (AR 37.) He had tried to use a computer, but just pushed a couple buttons. (AR 37-38.) Plaintiff had never been on the Internet. (AR 38.) He did not have a driver's license - although he used to have one, he could not pass the eighteen-question test to renew the license. (AR 32.) Plaintiff did not leave the house unless his brother was with him. (AR 38.) He had no hobbies and had not taken any long trips away from home. (AR 39.)

2. Testimony of Plaintiff's Brother Wayne Fatheree

Wayne Fatheree, Plaintiff's brother, testified that Plaintiff had lived with him off and on since 1989. (AR 41-42.) He assisted Plaintiff with finances. He took Plaintiff to see Dr. Morgan and Mr. Thompson, and Plaintiff was diagnosed with PTSD and mental retardation. (AR 42-43.) He reminded Plaintiff daily to take medications. Plaintiff could not work full time because of his back pain, and also due to his mental functioning - Plaintiff could easily be taken advantage of and coerced into things he "should not be doing." (AR 44.)

3. Vocational Expert Testimony

Steven Schmidt testified as the VE at the hearing. (AR 44-48.) The VE testified that Plaintiff's past work included roofer and construction worker and that Plaintiff had some transferrable skills. (AR 44-45.)

The ALJ asked the VE several hypothetical questions. The ALJ asked the VE whether an individual of Plaintiff's age, education, work experience, and transferable skills; who could sit for six hours in an eight-hour workday; stand and walk for less than two hours in an eight-hour day; lift and carry less than ten pounds even occasionally; never climb, balance, stoop, kneel, crouch, crawl or work around hazards; and would require numerous unscheduled breaks, could perform any of Plaintiff's past work. (AR 45.) The VE responded that such an individual would not be able to perform any of Plaintiff's past work. (AR 45.)

The ALJ then asked the VE whether an individual of Plaintiff's age, education, work experience, and transferable skills could perform Plaintiff's past work, assuming this person had no exertional limitations with lifting or carrying; could sit, stand or walk for six hours in an eight-hour workday with normal breaks; and could never work around concentrated fumes, odors, dusts, gasses, or poor ventilation. (AR 45.) The VE responded that such an individual would not be able to perform any of Plaintiff's past work. (AR 45.) However, the hypothetical person could perform other jobs in the California economy such as laborer, dishwasher, or hand packer. (AR 46.)

In a third hypothetical, the ALJ asked whether, if the person in the second hypothetical were illiterate, that person would be able to perform the alternate work identified in the second hypothetical. (AR 46.) The VE responded that the person would still be able to perform the jobs of laborer, dishwasher, and hand packer even if illiterate. (AR 46.)

Plaintiff's counsel then asked the VE whether, if the same hypothetical person proposed in the ALJ's second hypothetical could find or sustain any work, assuming this person could stand for 20 to 25 minutes or work for about 45 minutes at a time; required breaks every three to four hours to lie down; had trouble concentrating; could maintain concentration only in two-hour increments; had trouble withstanding stress; and had trouble following even step by step instructions. (AR 46-47.) The VE replied that the hypothetical person could not perform any work. (AR 47.)

4. The ALJ's Decision

In a decision dated April 27, 2012, the ALJ found that Plaintiff was not disabled. (AR 13-22.) The ALJ conducted the five-step sequential analysis set forth in 20 C.F.R. §§ 404.1520; 416.920. (AR 15-22.) At Step One, the ALJ found that Plaintiff had not worked since January 1, 2010, Plaintiff's alleged disability onset date. (AR 15.) At Step Two, the ALJ found Plaintiff had the severe impairments of degenerative disc disease, obesity, asthma, mental retardation, and depression. (AR 15.) At Step Three, the ALJ found that Plaintiff's impairments, singly or combined, did not meet or equal any Listing in 20 C.F.R., Part 404, Subpt. P., App. 1 ("Listings"). (AR 15.) The ALJ found Plaintiff's subjective complaints were not credible, and that Plaintiff had the residual functional capacity ("RFC")[3] to perform a wide range of medium work, but was limited to simple routine tasks, and must avoid exposure to pulmonary irritants such as dust and fumes. (AR 17.) At Step Four, the ALJ found Plaintiff could not perform his past relevant work. (AR 20.) At Step Five, the ALJ found Plaintiff could perform other work that existed in significant numbers in the local and national economies, and therefore was not disabled. (AR 21.)

The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for ...

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