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Johnson v. Colvin

United States District Court, E.D. California

July 8, 2016

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




         Plaintiff Glenn Leroy Johnson ("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 of the Social Security Act. 42 U.S.C. § 405(g). 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 found disabled as of April 1, 2004, in an agency determination on August 17, 2004. (Administrative Record ("AR") 20.) On November 19, 2010, it was determined Plaintiff was no longer disabled as of November 1, 2010. (AR 20.) Plaintiff requested a hearing to dispute the determination, alleging he remained disabled due to paranoid schizophrenia, intermittent explosivity disorder, post-traumatic stress disorder, attention deficit disorder, anti-social personality disorder, and cognitive disorder. (AR 94; 305-09.)

         Plaintiff was born on October 20, 1963. (AR 29.) He was diagnosed with attention deficit hyperactivity disorder (ADHD) when he was 5 years old. (AR 404; 445.) Plaintiff was in special education courses while in school, was observed to be agitated and disruptive, had attention problems, and made "rage attacks" on other students. (AR 404.) Plaintiff eventually graduated from high school and took some college level athletic courses. (AR 62, 404-06.) As an adult, Plaintiff was jailed and incarcerated several times for incidents of assault, including spousal abuse. (AR 405.) He worked as a janitor and an auto mechanic. (AR 405; 512.) In 1996, Plaintiff was prescribed medical marijuana. (AR 445; 489; 519; 552.)

         Plaintiff's was terminated from his last job as an auto mechanic when he assaulted his supervisor. (AR 406.) Plaintiff was incarcerated in the Vacaville Prison Hospital until 2003, when he was released on parole. (AR 437; 446; 512; 519.) In 2007, Plaintiff was injured in an auto accident, and has lived with his grandfather under the care of a caretaker ever since. (AR 445; 519; 524.) In March 2010, Plaintiff assaulted someone who came onto the grandfather's property because he feared he and his grandfather were being attacked. No charges were filed. (AR 445; 524; 533.)

         Plaintiff was found disabled as of April 2004 because his mental impairment met Listing 12.04. (AR 75-76; 412; 415; 422.) After an anonymous complaint in 2010, however, the Cooperative Disability Investigations unit (CDI) investigated allegations that Plaintiff was no longer disabled and his SSI was terminated as of November 2, 2010. (AR 80; 90; 126; 350-54.)

         A.Relevant Medical Background [2]

         On July 24, 2004, board-certified psychiatrist Dr. Bradley Daigle, M.D., examined Plaintiff at the request of the state agency. (AR 404-09.) Plaintiff had not taken psychotropic medication for the previous 15 years because he believed it was "poison, " but was being treated under the care of a counselor at "Angel's Camp." (AR 405.) Plaintiff was prescribed Vistaril for sleep and marijuana for control and relaxation. (AR 405; 408.) Plaintiff reported the most success with medical marijuana, and told Dr. Daigle that he did not go out without smoking marijuana first. (AR 405.) Plaintiff also reported problems with his neck, shoulders, and hips. (AR 405.)

         Dr. Daigle noted Plaintiff was "alert, oriented and superficially compliant, but [also] sat stone-faced and rigidly with very limited responsiveness, and had a rather threatening penetrating gaze throughout the interview." (AR 406.) Dr. Daigle observed that he felt Plaintiff "could be easily provoked." (AR 406.) Plaintiff had "coherent and organized" thought processes with "no tangentiality or loosening of associations, " "relevant and non-delusional" thought content, and "tense and watchful" mood with a "generally passively and pervasively hostile" affect. (AR 407.) Plaintiff denied recent auditory or visual hallucinations. (AR 407.)

         Plaintiff appeared to be of average intelligence, with fair concentration and calculation and limited insight and judgment. (AR 407-08.) Dr. Daigle diagnosed Plaintiff with intermittent explosive disorder and ADHD, and opined Plaintiff was "markedly limited" in his ability to relate and interact with supervisors, co-workers and the public; "moderately to markedly limited" in his ability to associate with day-to-day activity, including attendance and safety, and in his ability to adapt to stresses common in the normal work environment; "moderately limited" in his ability to maintain concentration and attention, persistence and pace; "very slightly" limited in his ability to understand, remember, and carry out simple one or two-step job instructions; and "slightly limited" in his ability to follow detailed and complex instructions. (AR 409.) Dr. Daigle opined that, from a psychiatric standpoint, Plaintiff's prognosis over the next twelve months was "poor." (AR 409.)

         On August 12, 2004, state agency psychiatrist Dr. Evelyn Aquino-Caro, M.D., opined that Plaintiff met Listing 12.08 (Personality Disorders) and Listing 12.04 (Affective Disorders). (AR 411; 422.) Plaintiff reported smoking marijuana every night for his anxiety, and went to the hospital at least once for a panic attack in August 2005. (AR 491; 499.)

         On October 16, 2007, Plaintiff sustained injuries in an automobile accident. (AR 431-34 (aftercare records from Mark Twain St. Joseph's Hospital).) On February 23, 2008, Plaintiff reported ongoing right elbow pain. (Tr. 430.) On August 6, 2008, Plaintiff reported experiencing ongoing neck, back, and left foot pain since his accident, and radiological imaging of his left foot revealed "an acute osseous, joint or soft tissue abnormality." (AR 429; 436.)

         On July 21, 2010, Dr. Brock Kolby, Ed.D, evaluated Plaintiff for mental health services to determine whether Plaintiff would remain out of prison. (AR 524-25.) Dr. Kolby diagnosed Plaintiff with intermittent explosive disorder, cannabis dependence, and antisocial personality disorder. (AR 519-24.) After Plaintiff declined medications and group therapy, Dr. Kolby referred Plaintiff to Angel's Camp for individual therapy. (AR 524.)

         On October 2, 2010, board-certified psychiatrist Dr. Manolito Castillo, M.D., examined Plaintiff at the request of the state agency. (AR 445-48.) Plaintiff's caretaker Tiffany Westfall drove Plaintiff to his appointment and provided Dr. Castillo with historical information. (AR 445.) Dr. Castillo observed Plaintiff's social interaction was poor and that Plaintiff made numerous errors on testing for orientation, attention, memory, abstraction, and judgment. (AR 446-47.) Dr. Castillo opined he was unable to diagnose bipolar disorder or schizophrenia because of Plaintiff's marijuana use; diagnosed Plaintiff with mood disorder, psychotic disorder, and cannabis dependence; and predicted Plaintiff's symptoms would resolve if properly treated. (AR 447.) Dr. Castillo further opined that Plaintiff had marked limitations in his ability to perform detailed and complex tasks; marked limitations in his ability to concentrate in two-hour blocks of time; and was not capable of handling his own funds. (AR 447.)

         On November 18, 2010, state agency reviewing physician Dr. G. Ikawa, M.D., completed a psychiatric review technique form, reporting that there was insufficient evidence to make a medical disposition. (AR 449-59.) Dr. Ikawa affirmed the investigator's notes that it was difficult "to tell fact from fiction" in Plaintiff's file and recommended cessation of benefits because "despite all attempts to get sufficient evidence, we lack sufficient evidence given all of the conflicts in file." (AR 461.)

         On December 20, 2010, Plaintiff sought care for a 10-day exacerbation of back pain. (AR 477.) Radiological imaging of Plaintiff's lumbosacral spine was ordered and physical therapy was recommended depending on the results which are not in the record. (AR 478.) On January 5, 2011, Plaintiff asked Dr. Kolby to evaluate him for treatment with medications. (AR 519.) Dr. Kolby examined Plaintiff and diagnosed Plaintiff with post-traumatic stress disorder, intermittent explosive disorder, antisocial personality disorder, and "cannabis abuse in early partial remission." (AR 517; 526-29.) Dr. Kolby assigned Plaintiff a GAF[3] score of 45, recommended medication services, and advised Plaintiff to continue therapy with Angel's Camp. (AR 520.)

         On February 18, 2011, Dr. Robert Mulert, M.D., saw Plaintiff for an initial psychiatric evaluation. (AR 512.) Plaintiff was accompanied by his caretaker, who reported that Plaintiff had short-term memory deficits that began with his 2007 head injury. (AR 512.) Plaintiff reported ceasing use of marijuana, and Dr. Mulert opined that Plaintiff's risk factors were his psychosis, cognitive impairment, and low standard of living. (AR 513.) Plaintiff scored 17 out of a possible 30 on the "mini mental status examination, " with dysphoric affect, absent eye contact, impaired insight and judgment, and "very weak" cognition. (AR 512-513.) Plaintiff was "essentially noncommunicative, " unable to register and recall information, and was not oriented to time and place. (AR 513.) Plaintiff reported "a fear, a paranoia that the people in prison are going to come back and chain him and take him away, " sleeping in the closet at night "so that they cannot find him and take him back to prison, " endorsed auditory hallucinations, and stated that he communicated with animals, including a chicken he takes care of that "gives him instructions on what he should do." (AR 512.) During the evaluation, Plaintiff stared at the floor and answered most questions with a yes or no and one or two-word answers. (AR 513.) Dr. Mulert diagnosed Plaintiff with paranoid type schizophrenia, intermittent explosive disorder, antisocial personality traits, and traumatic brain injury with marked cognitive impairment, and assigned Plaintiff a GAF score of 40. (AR 513.) Dr. Mulert prescribed Risperidone to address Plaintiff's psychosis. (AR 513.)

         On March 1, 2011, Plaintiff reported improvement with Risperidone, stating that he heard fewer voices and experienced less paranoia. (AR 510.) Plaintiff's caregiver reported Plaintiff was doing better and taking better care of himself, and Dr. Mulert observed Plaintiff's affect was "more animated" and his eye contact had improved. (AR 510.) Dr. Mulert assessed Plaintiff with a GAF score of 40 and opined that medication efficacy was "partial." (AR 510.)

         On May 3, 2011, consultative psychologist Dr. James A. Wakefield, Jr., Ph.D., saw Plaintiff for a "psychodiagnostic evaluation" at the request of the agency to assess Plaintiff's intellectual functioning. (AR 532-37.) Plaintiff reported taking Risperidone and told Dr. Wakefield it "works OK, sometimes." (AR 533.) Testing for intelligence and memory revealed significant deficiencies, including a "deficient" full-scale IQ score of 45, but Dr. Wakefield opined the score "dramatically underestimates [Plaintiff's] actual ability." (AR 534-35.) Plaintiff's verbal comprehension, perceptual reasoning, working memory, and processing speed were all presented as deficient for his age. (AR 535.) Results of perceptual-motor development test were "at least as strong as the borderline range, " and Plaintiff's results for the Test Of Memory Malingering were "far into the range [ ] associated with malingering, " (AR 533; 536.)

         Dr. Wakefield opined Plaintiff's "intellectual ability could not be adequately assessed due to malingering" and that Plaintiff's malingering "may have obscured a genuine disability." (AR 536.) Dr. Wakefield further opined Plaintiff "does not appear to have an organic mental disorder or a psychotic disorder." (AR 536.) Dr. Wakefield opined Plaintiff is unable to handle his own funds and that .

. . he can follow simple repetitive tasks, although his ability to follow more complex procedures could not be assessed due to malingering. [Plaintiff] is able to interact with co-workers, supervisors, and the public acceptably. He is able to sit, stand, walk, move, lift, carry, handle objects, hear, speak, and travel adequately. [Plaintiff]'s ability to reason and make occupational, personal, and social decisions in his best interests is presented as deficient, although stronger ability is suspected. His social and behavioral functioning during the session were appropriate (except for malingering). [Plaintiff]'s concentration and pace are presented as deficient. His persistence is adequate.

(AR 537.) Dr. Wakefield was also unable to assess a GAF score due to malingering. (AR 537.)

         On July 13, 2011, state agency psychiatrist Dr. V. Meenasshi, M.D., completed a psychiatric review technique form. (AR 538-48.) Dr. Meenasshi opined there was "insufficient evidence" for a medical disposition and that, because of the inconsistent record, an "informed adjudication" could not be made. (AR 538; 548.) Dr. Meenasshi further opined Plaintiff had mild restrictions in his activities of daily living, difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence, or pace, and that there was "insufficient evidence" of repeated episodes of decompensation, each of extended duration. (AR 546.)

         Dr. Mulert's office completed client treatment plans on December 12 and 28, 2011, to map out treatment for Plaintiff's history of schizophrenia and trauma. (AR 571-72.) On December 11, 2012, Dr. Mulert observed Plaintiff's affect was flat and restricted; he had poverty of speech and thought; and his cognition, insight, and judgment were impaired. (AR 573.) Plaintiff's caregiver reported that Plaintiff's medication adherence was good with no reported adverse side effects, and that medication efficacy was good. (AR 573.) Dr. Mulert diagnosed Plaintiff with schizophrenia, paranoid type, intermittent explosive disorder, antisocial personality disorder, and traumatic brain injury, and assigned Plaintiff a GAF score of 39. (AR 573.)

         On September 13, 2013, Dr. Mulert completed a psychiatric medical source statement. (AR 575.) The form defined "marked" as causing "considerable impact throughout workday" and "extreme" causing "almost constant impact on work or total limitations." (AR 575.) Dr. Mulert opined Plaintiff had "marked" limitations in his ability to relate and interact with supervisors and co-workers, and had "extreme" limitations in his ability to understand, remember, and carry out simple one-or-two step job instructions; deal with the public; maintain concentration for at least two-hour increments; and withstand the stress and pressures associated with working an eight-hour workday and day-to-day work activity. (AR 575.) Dr. Mulert further opined Plaintiff's ability to handle funds was "poor" and that the expected "duration and prognosis" of his impairments was "long term." (AR 575.)

         B. Plaintiff's Self-Reports and Agency Investigative Interviews

         On March 23, 2010, the agency received an anonymous call reporting Plaintiff had received $1, 000 from his attorney for an October 2007 car accident and would receive another $1, 000, owned property in Belize, and bought and sold things on Craigslist. (AR 368.) The caller also reported that Plaintiff was planning to fly to Equador on April 6, 2010. (AR 368.) When questioned in person on April 28, 2010, Plaintiff admitted he had flown to Equador, but denied receiving an insurance settlement, owning any property in or out of the U.S., and selling things on Ebay or Craigslist. (AR 368.) The interviewer noted Plaintiff was "very evasive during the interview" and did not make eye contact. (AR 369.) On October 2, 2010, a surveilling investigator noted Plaintiff engaged in conversation and was smiling, made normal eye contact, and "offered verbal assistance which appeared to be a normal reaction by a person aware of his surroundings and situation." (AR 352.) On October 14, 2010, an investigator interviewed Plaintiff and noted that while Plaintiff "sometimes speaks slowly and stutters, " he appeared to be alert and aware of his surroundings. (AR 354.) The investigator further observed that Plaintiff "kept his head down and at times mumbled his words and provided vague responses, " was "not friendly, " and avoided eye contact. (AR 354.)

         On July 7, 2010, Plaintiff completed an adult function report form and reported that he lived with his grandfather and spent his days waiting for his caretaker to "make us sum food, " watching TV until dinner, and going to bed. (AR 285.) Plaintiff's mother visited him, and Plaintiff went for walks with his grandfather and his caretaker. (AR 285.) After his dog died, Plaintiff cut off its head and hung the head on his wall to use as a hat holder. (AR 286.) Plaintiff does not cook because his memory problems cause him to burn everything, and does ...

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