Esparza v. Colvin

          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 ...