United States District Court, E.D. California
ORDER RE PLAINTIFF’S APPEAL
SHEILA
K. OBERTO. UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
Plaintiff,
Michael Phillip Esparza (“Plaintiff”), seeks
judicial review of a final decision of the Commissioner of
Social Security (the “Commissioner”) denying his
application for Disability Insurance Benefits
(“DIB”) and Supplement Security Income
(“SSI”) Benefits pursuant to Titles II and XVI of
the Social Security Act. 42 U.S.C. §§ 405(g),
1381-83. 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 July 20, 1976, and alleges disability beginning
on June 1, 2010. (Administrative Record (“AR”)
30; 225.) Plaintiff claims he is disabled due to mental
retardation, high blood pressure, and obesity. (See
AR 229.)
Plaintiff
received grades in his middle school through high school
courses ranging from a single “A” (Exceptionally
Good) in seventh grade language arts to “F”
(Fail). (AR 286-87; 290 (Plaintiff’s cumulative grade
point average was 2.087 in middle school, and 1.444 in high
school).) Plaintiff passed state proficiency testing in Math,
Reading, and Writing. (AR 286-88.) It is unclear whether
Plaintiff was enrolled in any special education courses.
(See AR 287 (noting “RSP” denotes
“SP-ED” courses; Plaintiff’s coursework
generally marked “SDC” denotes “SP DAY
CLASS”).)
A.
Relevant Medical Evidence[2]
On
September 24, 2011, Dr. Ekram Michiel, M.D., performed a
consultative psychiatric evaluation. (AR 313-15.) Plaintiff
told Dr. Michiel that he could not remember the last grade he
completed in high school, and that he was fired from his last
job as a “security person” in June 2010 due to
“gossip against him.” (AR 313-14.) Plaintiff
reported that he was able to attend to his personal hygiene,
shop, cook, and perform household chores “a little
bit” and plays video games. (AR 314.) Plaintiff
complained of depression and did not report any intellectual
impairment.
Dr.
Michiel observed that Plaintiff’s attention,
concentration, fund of knowledge, and ability to perform
simple math calculations were all intact; Plaintiff was
slightly impaired in his short-term memory and had
“unremarkable” immediate recall and long-term
memory. (AR 315-16.) Dr. Michiel diagnosed Plaintiff with
“adjustment disorder with depressed mood.” (AR
315.) Dr. Michiel did not note an intellectual impairment
under diagnoses. (AR 315.) Dr. Michiel concluded Plaintiff
could maintain attention and concentration to carry out
simple job instructions; could relate to and interact with
coworkers, supervisors, and the general public; and would be
unable to carry out “an extensive variety of technical
and/or complex instructions.” (AR 315.)
On
November 4, 2011, Dr. Lance Portnoff, Ph.D., performed a
consultative psychological evaluation. (AR 332-39.) Plaintiff
reported mental retardation and stated that he took special
education classes in elementary school and high school for
learning disabilities. (AR 332.) Plaintiff denied any
deficits in his activities of daily living, and reported that
he was able to attend to his personal care, prepare his own
meals, shop and travel independently, and handle money. (AR
333.)
Dr.
Portnoff observed Plaintiff exhibited
“suboptimal/non-credible effort on all the tests given
to him.” (AR 333.) Dr. Portnoff described
Plaintiff’s behavior as alternatively
“defiant/uncooperative” and
“passive-aggressive, ” noting Plaintiff used his
middle finger to point at test items. (AR 333-34.) Dr.
Portnoff found that Plaintiff had a Full Scale IQ of 50 and
had Verbal, Perceptual Reasoning, Working Memory, and
Processing Speed scores ranging between 50 and 63 per the
Wechsler Adult Intelligence Scale-IV test. (AR 335-36.) Dr.
Portnoff, however, described Plaintiff’s test
performance as “invalid due to poor effort.” (AR
339.) Dr. Portnoff additionally found that, because of
Plaintiff’s “noncredible manner, ” he could
not determine whether Plaintiff “truly has any
significant cognitive or emotional disorder underneath his
presentation.” (AR 339.)
On
December 1, 2011, Dr. H. Thomas Unger, M.D., reviewed
Plaintiff’s records and evaluated Plaintiff’s
impairments for the State agency. (AR 340-57.) Dr. Unger
found Plaintiff had medically determinable impairments of
“learning disorder” and “adjustment
disorder, ” but concluded Plaintiff did not meet or
medically equal the criteria of a presumptively disabling
listed impairment. (AR 340.) Dr. Unger opined Plaintiff did
not have significant limitations in social interaction or
adaptation; was able to understand and remember simple
instructions; and was able to perform simple, routine, and
repetitive tasks for at least two-hour periods on a sustained
basis. (AR 357.)
On
November 21, 2011, during an emergency room visit,
Plaintiff’s treating emergency physician Dr. Joshua
Dubansky, M.D., observed Plaintiff as having the
“impression of mild developmental delay, ” but
did not note any difficulties in counseling Plaintiff
regarding his diagnosis of chronic lower back pain. (AR 397.)
Dr. Dubansky also observed that Plaintiff engaged in
“suspected symptom [exaggeration]” during this
emergency room visit. (AR 395.) At other treatment visits
during this period, Plaintiff’s treating physicians
counseled him about his diagnoses and treatment program,
which included discussions about exercise, smoking cessation,
and diet and lifestyle modifications. (See AR 392;
410; 427; 450.) None of Plaintiff’s physician’s
reported Plaintiff as experiencing any difficulties in
understanding this information. (Id.)
B.
Testimony
1.
Plaintiff’s Self-Assessments
Plaintiff
denied experiencing limitations in his memory, concentration,
understanding, ability to follow instructions, and ability to
complete tasks in an adult function report submitted to the
agency. (AR 259.) Plaintiff reported that he was able to
attend to his personal care, prepare simple meals, drive,
shop, manage his finances, and watch television. (AR 255-58.)
2.
Third-Party Assessments
On
February 16, 2011, Plaintiff’s mother completed an
adult function report and stated that Plaintiff had
difficulties with his memory and ability to follow written
instructions, was able to follow spoken instructions, and did
not have any limitations with his concentration or ability to
complete tasks. (AR 241.) Plaintiff’s mother reported
he was able to attend to his personal care, prepare simple
meals, perform laundry, clean his bedroom, use public
transportation, drive a car, shop, manage his finances, and
play video games on his cell phone and computer. (AR 237-40.)
3.
Hearing Testimony
a.
Plaintiff’s Testimony at Hearing[3]
Plaintiff
testified he was in special education classes through high
school and “most” of his schooling history. (AR
45-46 (testifying he took “RSBP” courses).)
Plaintiff testified he left high school after the eleventh
grade but had earned a GED. (AR 45.) Plaintiff explained that
he was expelled because: “I was, well, I go got -- I
take things wrong and I get a little bit violent. I guess I
was in special ed so sometimes I get, I have anger issues.
Sometimes I take things wrong and I get a little bit
violent.” (AR 46.)
Plaintiff
testified he stopped working on June 1, 2010, because he
“started getting physically ill because [he]
wasn’t able to walk as much as [he] used to because
[he] was diagnosed with plantar fasciitis” so it was
“getting a lot more harder for [him] to walk and stand
like [he] used to.” (AR 47.) He cannot work due to
problems walking, standing, and sitting for long periods of
time. (AR 48-49.) Not being able to work and feeling like he
is unable to do “anything” like he used to makes
Plaintiff feel depressed. (AR 56.) Plaintiff testified he
worked as a security guard for ten to fifteen years and that
while were “a lot of different job duties”
associated with his security guard positions, he was able to
learn how to “do all of the job duties fluently without
additional instructions” after “at least about a
day or two.” (AR 59.) The longest training he had was
about two or three weeks to “do safety for our bomb
threats and stuff, safety procedures.” (AR 60.)
Plaintiff
testified that during a typical day, he played video games on
his tablet or on the internet. (AR 54-55.) Plaintiff
testified he was able to wash dishes, shop for groceries,
perform “light” cooking, and watch television and
movies. (AR 50; 54-55.) Plaintiff has a ...