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Marshall v. Berryhill

United States District Court, N.D. California

May 17, 2017




         Plaintiff Prentice Marshall seeks social security benefits for a combination of physical and mental impairments, including: borderline intellectual functioning, language disorder, cognitive disorder, mood disorder, and post-traumatic stress disorder. Plaintiff brings this action pursuant to 42 U.S.C. Section 405(g), seeking judicial review of a final decision by Defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration, denying Plaintiff's application for disability benefits.[1] Now pending before the Court is Plaintiff's motion for summary judgment and Defendant's cross-motion for summary judgment.[2] (Dkt. Nos. 15, 17.) For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion for Summary Judgment and DENIES Defendant's Cross-Motion for Summary Judgment.


         A claimant is considered “disabled” under the Social Security Act if he meets two requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be severe enough that she is unable to do her previous work and cannot, based on his age, education, and work experience “engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, examining:

(1) whether the claimant is “doing substantial gainful activity”; (2) whether the claimant has a “severe medically determinable physical or mental impairment” or combination of impairments that has lasted for more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the regulations; (4) whether, given the claimant's “residual functional capacity, ” the claimant can still do his or her “past relevant work”; and (5) whether the claimant “can make an adjustment to other work.”

Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see 20 C.F.R. §§ 404.1520(a), 416.920(a).


         On January 28, 2004, Plaintiff filed an application for children's Supplemental Security Income. (Administrative Record (“AR”) 72.) The Social Security Administration (“SSA”) approved the request, and Plaintiff received benefits on the basis of his borderline intellectual functioning. (AR 121.) Near Plaintiff's eighteenth birthday, the SSA conducted an eligibility redetermination, and classified Plaintiff as no longer disabled as of February 1, 2011. (AR 90.) Plaintiff filed a request for reconsideration, and members of his family submitted an adult function report. (AR 451.) The SSA determined Plaintiff was no longer eligible for benefits on January 8, 2013. (AR 98.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was originally scheduled for January 22, 2014. (AR 11.) However, Plaintiff obtained counsel and the hearing was continued until June 18, 2014. (Id.) A supplemental hearing was held approximately one month later, during which Plaintiff and vocational expert (“VE”) Christopher Salvo testified. (AR 47.) On July 30, 2014, the ALJ issued a written decision denying Plaintiff's application and finding that Plaintiff was “not disabled under the framework of section 204.00 in the Medical-Vocational Guidelines.” (AR 20.) Plaintiff filed a request for review, which the Appeals Council denied on February 17, 2016. (AR 1.) Plaintiff initiated this action approximately three months later, seeking judicial review of the SSA's disability determination under 42 U.S.C. Section 405(g). (Dkt. No. 1.) The parties' cross-motions for summary judgment are now pending before the Court. (Dkt. Nos. 15 & 17.)


         Plaintiff was born on February 21, 1993. (AR 71.) He has no employment history and lacks stable living conditions. (AR 40.) In addition to his borderline intellectual functioning, Plaintiff has been diagnosed with post-traumatic stress disorder and major depressive disorder. (AR 13.)


         As a result of Plaintiff's medical conditions, he obtained medical care through Contra Costa County Mental Health Services. In addition, as part of his application for disability benefits, he participated in SSA directed examinations to determine whether his impairments are disabling. A discussion of the relevant medical evidence follows.

         A. Medical History

         1) Initial Disability Diagnosis

         When Plaintiff was approximately eight years old, he underwent a comprehensive assessment to determine the underlying cause for his delayed progress in school. (AR 517.) As part of this assessment, Plaintiff's underwent a series of exams to determine his language, physical, and emotional functioning, as well as his intellectual and adaptive behavior. (AR 517-522.) Plaintiff's verbal IQ was measured at 79, his performance IQ at 73, and his full scale IQ at 74. (AR 519.) Plaintiff was diagnosed with borderline intellectual functioning and a language disorder which “functionally equals the listings” contained in 20 C.F.R. § 416.926(a). (AR 524, 531.)

         2) Adult Medical Care

         Following the termination of his childhood benefits, on April 5, 2012, Plaintiff was underwent a clinical assessment at the Contra Costa County Health Services (“CCHS”) clinic in Concord. (AR 623.) Plaintiff presented complaining that he was having frequent nightmares and reported hearing his stepfather's voice as he beat his mother, five brothers, and two sisters. (Id.) Additionally, Plaintiff indicated he was depressed, irritable, suffered from poor sleep, and possessed a history of attempted suicide after he overdosed on his mother's medication four years prior. (Id.) Plaintiff was diagnosed with post-traumatic stress disorder, major depressive disorder with psychotic features, cannabis abuse, and an Axis II disorder. (AR 626.[3]) An assessment of Plaintiff's functional impairment indicated that he possessed moderate impairment in self-care, social relations, substance abuse, and daily activities. He was deemed to have no impairment in family relations or physical health. (Id.)

         One week later, Plaintiff returned to CCHS for an initial psychiatric assessment with Dr. Wang. Plaintiff stated that he was having “bad thoughts” and felt as though he needed help. (AR 629.) Dr. Wang diagnosed Plaintiff with post-traumatic stress disorder and major depressive disorder with psychotic features. (AR 631.) Further, Dr. Wang rated Plaintiff's Global Assessment of Functioning Scale (“GAF”) score at 50.[4] At this time, Dr. Wang prescribed his first round of medication (Zoloft) to Plaintiff. (AR 632.) Dr. Wang conducted a functional impairment assessment, concluding that Plaintiff possessed moderate to severe family relations, and fair to moderate work/school performance impairment. (AR 631.) Dr. Wang indicated Plaintiff's self-care, peer relations, and substance use impairments were mild. (Id.) Dr. Wang concluded Plaintiff did not possess physical health impairments. (Id.)

         During the next six months, Plaintiff met with Dr. Wang a total of four additional times and cancelled two appointments. (AR 641-650.) During Plaintiff's September 12, 2012 visit with Dr. Wang he stated: “I don't feel much better, and am mad all the time.” (AR 620.) Plaintiff also reported that the medication made him nauseous. (Id.) As a result, Dr. Wang prescribed Zyprexa. (AR 621.)

         Nine months later, CCHS contacted Plaintiff to determine whether a discharge of services was necessary because he had failed to make follow-up appointments. (AR 668.) Plaintiff stated he was conflicted about whether he was able to return for services due to inadequate transportation. (Id.) Plaintiff made a follow-up appointment with Dr. Wang for two months later. (Id.) At that visit, Dr. Wang conducted a psychiatric assessment update, concluding that there was no change in Plaintiff's diagnosis. (AR 660.) Plaintiff continued to complain of nausea with the Zoloft, so Dr. Wang prescribed Remeron. (Id.)

         Dr. Wang contacted Plaintiff on February 7, 2014 when he failed to show up for his appointment. (AR 759-60.) Plaintiff stated that he was “stranded in Sacramento.” (AR 759.) Plaintiff reported that he was taking the Remeron sporadically because it was causing GI problems. (Id.) He also indicated that he did not think Remeron was helping as he was still getting angry and having nightmares, and he was still “a little depressed.” (Id.)

         Two months later, Plaintiff saw Dr. Wang and indicated that there had been no change in how he was feeling and stated “I feel like I need something stronger.” (AR 748.) Dr. Wang switched Plaintiff's prescription to Seroqeul, an antipsychotic drug. (Id.) Two months later, Plaintiff showed no improvement on the new medication. (AR 763.) Plaintiff indicated that Seroquel was “strong, but it doesn't necessarily knock him out.” (Id.) He stated that his mood was unchanged, and he continues to hear voices. (Id.) Plaintiff reported he generally kept to himself and did not go out in public much. (Id.) Dr. Wang suggested cutting Plaintiff's Seroquel dose in half and added a prescription for Prozac. (AR 764.)

         B.Medical Evaluations

         Plaintiff underwent three examinations at the direction of the SSA to determine whether his impairments were disabling. Below is a summary of these evaluations.

         1) Medical Evaluations Regarding Plaintiff's Mental Impairments

         a) Examining Physician Dr. Chen[[5]]

         Dr. Frank Chen performed an evaluation of Plaintiff at the request of the Agency in December 2011. (AR 536.) Before talking to Plaintiff, Dr. Chen reviewed the Adult Disability Report and the Adult Function Report. Plaintiff told Dr. Chen that he did not have any specific physical complaints and stated that he can cook, do housework, wash dishes, do laundry, buy groceries, and go for walks. (Id.) Plaintiff did not report being on any medication. (Id.) Dr. Chen concluded that Plaintiff's physical examination was within normal limits, and he did not conduct any psychological exams. (AR 537.)

         b) Examining Physician Dr. Meek

         During an examination with Dr. Meek approximately one month later, Plaintiff indicated he “is awake until the sun comes up five days a week.” (AR 539.) He required reminders to take his medication, and to bathe and dress according to the weather. Plaintiff indicated he was afraid of shaving and of darkness. Plaintiff reported he suffered from anxiety attacks, possessed the ability to pay attention for approximately twenty-thirty minutes, and has become violent. (Id.) Dr. Meek concluded that Plaintiff should be able to do routine work without public contact. (AR 540.)

         c) Examining Psychologist Dr. Sokley Khoi

         One month later, Dr. Sokley Khoi conducted a psychological disability evaluation on Plaintiff. (AR 544.) Plaintiff told Dr. Khoi he had problems with learning and anger control. (Id.) Plaintiff indicated that he had been hospitalized in 2008 because he had homicidal and suicidal thoughts. (Id.) Plaintiff also indicated that he had difficulty with eating and sleeping. (Id.) As part of his psychiatric history, Plaintiff reported he was prescribed medication for his anger issues, but he refused to take the medication. (AR 545.) He indicated that he was not currently taking any medication. (Id.) Plaintiff stated that he occasionally used marijuana for his appetite and to calm down. He noted he last smoked “a joint” a week prior. (Id.) As to his activities of daily living, Plaintiff stated that he possessed the ability to do all activities of daily living, with restrictions because he is easily frustrated. (Id.) Usual activities include socializing with family and friends and going on walks. (Id.)

         During his mental status examination, Dr. Khoi noted Plaintiff was unable to correctly complete “serial sevens, ” an exam where an individual is tasked to count down from one hundred by sevens. However, Plaintiff was able to recall 3/3 words after short delay and was able to spell “WORLD” backwards. (Id.) Plaintiff's speech “sometimes showed hesitation” and he had some difficulties following a simple 3-step command. (Id.) Dr. Khoi also administered the Wechsler Adult Intelligence Scale exam to the Plaintiff-the adult version of the exam Plaintiff took as a child. (AR 545-56.[6]) Plaintiff's full scale IQ of 74 dropped from borderline intellectual functioning to a score of 52, which placed Plaintiff in the extremely low intellectual functioning category. (AR 546.) However, Dr. Khoi remarked that although the test results indicated extremely low intellectual functioning, Plaintiff's cognitive functioning is “more commensurate with borderline functioning.” (AR 547.)

         Finally, Dr. Khoi rated Plaintiff's GAF score at 50, and recommended that Plaintiff may benefit from individual psychotherapy and psychotropic medications. (Id.) Dr. Khoi concluded that Plaintiff was not cognitively able to manage his own funds, and had marked levels of impairment in his ability to follow and remember complex/detailed instructions and maintain adequate pace or persistence to perform complex tasks. (Id.)

         d) Residual Functional Capacity Assessment by Dr. Meenakshi

         Two weeks later, Dr. Meenakshi reviewed all the evidence in Plaintiff's file and conducted a mental residual functional capacity assessment of Plaintiff's impairments using the standard checkbox form. (AR 549-51.) The assessment is divided into four sections, including: 1) Understanding and Memory; 2) Sustained Concentration and Persistence; 3) Social Interaction; and 4) Adaptation. (Id.) A total of 20 different “abilities” are analyzed on a sliding scale, starting with “not significantly limited, ” followed by “moderately limited, ” and finally, “markedly limited.” (Id.) There are also two other options on the scale: no evidence of limitation, and not ratable on available evidence. Dr. Meenakshi did not find Plaintiff markedly limited in any area, but found Plaintiff as moderately limited in 7 of 20 abilities, with the remaining 13 abilities classified as “not significantly limited.” (Id.) The moderately limited abilities include: 1) the ability to understand and remember detailed instructions; 2) the ability to carry out detailed instructions; 3) the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; 4) the ability to work in coordination with or proximity to others without being distracted by them; 5) the ability to interact appropriately with the general public; 6) the ability to accept instructions and respond appropriately to criticism from supervisors; and 7) the ability to respond appropriately to changes in the work setting. (AR 549-50.) Dr. Meenakshi concluded Plaintiff possessed the ability to perform simple tasks with limited public contact. (AR 551.)

         Finally, Dr. Meenakshi conducted an assessment to determine whether Plaintiff's impairments met disability classifications under 20 C.F.R. §§ 416.920(d)[7], 416.926. (AR 553-63.) For an impairment to meet disability classifications, impairment must be severe enough to preclude gainful activity. 20 C.F.R. § 416.925. To determine whether Plaintiff's impairment met this standard, Dr. Meenakshi reviewed all evidence and analyzed Plaintiff against a four-tier rating system. (AR 561.) This rating system is composed of four degrees, ranging from mild, moderate, marked, and extreme. Of the four values, only “marked” or “extreme” satisfy the functional criterion for disability under listings 12.02 (organic mental disorder) and 12.04 (affective mental disorder). 20 C.F.R. § 416.925(b)(ii).

         Dr. Meenakshi concluded that Plaintiff's organic and affective disorders present mild limitations to activities of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and found Plaintiff did not experience repeated episodes of decompensation. (AR 561.) Accordingly, Dr. Meenakshi did not determine Plaintiff presented marked or severe impairments, and therefore concluded that Plaintiff could ...

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