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Adcock v. Berryhil

United States District Court, C.D. California

June 6, 2017

WILLIAM J. ADCOCK, Plaintiff,
v.
NANCY A. BERRYHIL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM DECISION AND ORDER

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE.

         I.

         INTRODUCTION

         William J. Adcock (“Plaintiff”) brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (the “Commissioner” or “Agency”) denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. (Dkt. Nos. 12-13). For the reasons stated below, the Court AFFIRMS the Commissioner's decision.

         II.

         PROCEDURAL HISTORY

         On April 16, 2012, Plaintiff filed an application for Disability Insurance Benefits (“DIB”) and for Supplemental Security Income (“SSI”). (Administrative Record (“AR”) 828-40). Plaintiff alleged that he became unable to work on December 7, 2011 due to emphysema, chronic obstructive pulmonary disease (“COPD”), blood clots in the lungs, pneumonia, and a fungal infection. (AR 834, 853). The Agency denied Plaintiff's application on August 7, 2012. (AR 706-710). On May 8, 2013, the Agency denied Plaintiff's application upon reconsideration. (AR 712-717). On July 2, 2013, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 720-21). On June 30, 2014, ALJ Alan Markiewicz conducted a hearing to review Plaintiff's claim. (AR 628-61). On September 25, 2014, the ALJ found that Plaintiff was not disabled under the Social Security Act. (AR 609-26). Plaintiff sought review of the ALJ's decision before the Appeals Council. The Appeals Council denied Plaintiff's application on April 8, 2016. (AR 1-7). The ALJ's decision then became the final decision of the Commissioner. Plaintiff commenced the instant action on June 9, 2016. (Dkt. No. 1).

         III.

         FACTUAL BACKGROUND

         Plaintiff was born on September 2, 1955. (AR 864). He was 56 years old as of the alleged disability onset date of December 7, 2011. He was 58 years old when he appeared before the ALJ. (AR 632). Plaintiff graduated from high school and completed one year of junior college. (AR 632). He previously worked as a sales clerk, hotel clerk, and security guard. (AR 880).

         A. Plaintiff's Testimony

         Plaintiff testified that he lives by himself at the Desert Lodge hotel. (AR 648). He stays there “for free” in exchange for doing “as much work to work off” the room as he can. (Id.). He stated that he mainly works at the front desk. (Id.). Specifically, Plaintiff checks people in and out of the hotel. (AR 650). He stands while working at the front desk. (Id.). Plaintiff also sits down to do paperwork. (Id.). He also cleans a “little bit”, including wiping down the counter and sweeping the floor. (Id.). When he sweeps the floors, it usually takes about ten minutes. (Id.). He is short of breath once he is done sweeping. (Id.). Plaintiff testified that he typically tries to work from 8:30 to 10:30 in the morning. (AR 655). He then goes back to his room to rest. (Id.). He returns to the office if he is needed. (Id.). After he does what is needed, he will return to his room to rest. (Id.). Plaintiff stated that the longest amount of time that he can work is “maybe two hours” at a time. (Id.). He testified that he tries to do this work as much as he can. (AR 648).

         Plaintiff testified that his last full-time job consisted of light maintenance, cleaning, and front desk work at the Palm Grove hotel. (AR 633). He stopped working in February of 2012 when he came down with pneumonia and blood clots. (Id.). Plaintiff testified that he worked at the Palm Grove hotel for approximately four years. (AR 633). Before that, he worked in retail at an adult bookstore called Perez Images for almost nine years. (AR 634).

         Plaintiff testified that the main reason he stopped working was because of his COPD. (AR 637-638). He stated that when he tries to do work he has to take breaks due to his breathing. (Id.). Plaintiff testified that he can only walk about 50 or 60 feet without stopping to rest. (AR 644-645). He testified that he can do “minimal standing.” (AR 645). He can stand for about five minutes without moving if he has to. (AR 649-650). He further testified that he can sit for “maybe two hours” at a time. (AR 646-646). Plaintiff testified that he began using a walker the month before the hearing. (AR 647).

         Plaintiff stated that he has had issues with depression since his health began to decline. (AR 647). He testified that he has not recently taken any medicines to help with his depression. (Id.). He testified that in the past he was seeing a psychiatrist and was on a “depression pill.” (Id.). He stated that he started feeling better but stopped taking the medicine after about six months because he did not like it. (AR 647-648).

         Plaintiff testified that his driver's license expired a few years back. (AR 649). He stated that he takes the Sun bus for transportation. (Id.).

         B. Consultative Examiner, Kara Cross, Ph.D., ABFE, ABPS

         On April 6, 2013, consultative examiner Dr. Kara Cross, Ph.D. in Clinical Psychology, performed a Complete Mental Evaluation of Plaintiff. (AR 993-98). Dr. Cross noted that there were no psychiatric records for review. (AR 993).

         Under “Chief Complaints, ” Dr. Cross commented that Plaintiff stated that he “has COPD and trouble concentrating. He state[d] that he feels anxious about his health. He spends a lot of time thinking ‘oh what if.'” (AR 993).

         Under “History of Present Illness, ” Dr. Cross noted that Plaintiff “had outpatient counseling services back in 1989. He went for two weeks and stopped. He states that he was hospitalized in 1989 for wanting to kill himself. He was in the hospital for two solid weeks. [Plaintiff] reports that he no longer feels suicidal and does not feel homicidal.” (AR 994).

         Under “Habits, ” Dr. Cross noted that Plaintiff “used to smoke pot back in 1970s. He used to drink alcohol at parties but does not use either anymore.” (AR 994). Under “Legal History, ” Dr. Cross commented that Plaintiff “was arrested once for shoplifting and spent one and a half days in jail.” (Id.). Under “Employment History, ” Dr. Cross noted that Plaintiff worked in retail for nine years and “last worked in 2009. He stated that he was laid off.” (Id.).

         Dr. Cross noted that Plaintiff is able to pay bills and can handle cash appropriately. (AR 995). He is able to go out alone. (Id.). Plaintiff's relationships with family and friends are good. (Id.). Plaintiff can focus attention. (Id.). Plaintiff has no difficulty completing household tasks. (Id.). Plaintiff has no difficulty making his decisions. (Id.). Dr. Cross noted that, on a daily basis, Plaintiff

can dress and bathe, cook, clean, run errands, and go shopping. He maintains his own residence as far as cleanliness is concerned. He cleans rooms for his room and board. He states that he is living in a hotel and is cleaning rooms in exchange for a place to live and food to eat. He states that he can do light cleaning in these rooms but cannot do the heavy cleaning. He feels very sad and depressed over his deteriorating health and stamina.

(AR 995).

         Under “Thought Processes, ” Dr. Cross noted that Plaintiff was coherent and organized. (AR 996). Under “Thought Content, ” Dr. Cross stated that Plaintiff was relevant and non-delusional. (Id.). Dr. Cross further commented that there “is no bizarre or psychotic thought content. There is no suicidal, homicidal or paranoid ideation during the interview. [Plaintiff] denies recent auditory or visual hallucinations. [Plaintiff] does not appear to be responding to internal stimuli during the interview.” (Id.).

         Under “Mood and Affect, ” Dr. Cross commented that “[m]ood is somewhat sad and affect is a little tearful and congruent with thought content. [Plaintiff] is tearful. [Plaintiff] is anxious. [Plaintiff] denies any feeling of hopelessness, helplessness or worthlessness.” (Id.).

         Under “Speech, ” Dr. Cross stated that speech was “normally and clearly articulated, without stammering, dysarthria, neologisms, tangentiality, circumstantiality or loosened, unusual or blocked associations.” (Id.).

         Dr. Cross further noted that Plaintiff was alert and oriented to time, place, person, and purpose. (Id.). Dr. Cross stated that Plaintiff was able to repeat four digits forward and backward. (Id.). Plaintiff was able to recall three items immediately and after five minutes. (Id.). Plaintiff was able to recall who George Washington was and a school day attended as a child. (Id.).

         Under “Concentration and Calculation, ” Dr. Cross stated that Plaintiff “could not perform serial threes. [Plaintiff] knew that 4 dollars plus 5 dollars is 9 dollars. [Plaintiff] was not able to do alpha numeric reasoning. [Plaintiff] was able to follow [] conversation [with Dr. Cross] well.” (Id.). Later, she commented that Plaintiff could do serial threes but not serial sevens. (AR 997). Plaintiff could say the months of the year. (Id.).

         Dr. Cross noted that she asked Plaintiff how an airplane and helicopter are the same. (Id.). He responded, “[t]hey are up in the sky and they fly around.” (Id.). However, he did not know how “up” and “south” are the same. (Id.).

         Dr. Cross commented that Plaintiff's insight and judgement appeared to be intact regarding his current situation. (Id.). Dr. Cross diagnosed Plaintiff with Dysthymia and a general anxiety disorder. (Id.). Dr. Cross gave Plaintiff a Global Assessment Functioning (“GAF”) score of 60.[2] (Id.). Under “Prognosis, ” Dr. Cross stated that “[f]rom a psychiatric standpoint, [Plaintiff's] condition is deemed fair.” (Id.).

         Under “Functional Assessment, ” Dr. Cross stated that, based on her examination, Plaintiff is able “to understand, remember, and carry out simple one or two-step job instructions … [u]nable to do detailed and complex instructions.” (Id.). She noted that he has mild impairments relating and interacting with co-workers and the public. (AR 998). She further noted that he has mild impairments maintaining concentration and attention, persistence and pace. (Id.). She also stated that he has mild impairments maintaining regular attendance in the work place and performing work activities on a consistent basis. (Id.). She noted that he is unimpaired in his ability to associate with day-to-day work, to accept instructions from supervisors, and to perform work activities without special or additional supervision. (Id.).

         C. State Agency Physician, Gina Rivera-Miya, M.D.

         On March 8, 2013, Dr. G. Rivera-Miya, M.D., reviewed Plaintiff's record at the reconsideration stage. (AR 697-703). Dr. Rivera-Miya listed Plaintiff's diagnoses as chronic pulmonary insufficiency, COPD, affective disorder, and anxiety disorder. (AR 697). Dr. Rivera-Miya agreed with a recommendation by disability adjudicator/examiner V. Casison. (Id.). Casison stated that Plaintiff did not assert psychological impairments at the initial application level. (Id.). However, Casison noted that Plaintiff later alleged anxiety and depression regarding his health and stamina. (Id.).

         Casison noted that Plaintiff had mild limitations from his mental health conditions. (Id.). Casison noted that Plaintiff's activities of daily living were adequate with no limitations in social functioning. (Id.) Casison commented that Plaintiff is not taking any psychological medications. (Id.). Casison concluded that these findings suggest Plaintiff's mental health conditions are not severe. (Id.).

         Dr. Rivera-Miya commented that the “evidence does not support ongoing severe psych limitations. Benign findings on exam and [activities of daily living] are functional. No recent psych tx. Psych is nonsevere.” (Id.) (emphasis in original). Dr. Rivera-Miya determined that Plaintiff had no restriction in activities of daily living and maintaining social functioning, but he had mild difficulties in maintaining concentration, persistence or pace and one or two episodes of decompensation. (Id.).

         Dr. Rivera-Miya determined that Dr. Cross's opinion about Plaintiff's limitations was more restrictive than her own. (AR 701) Dr. Rivera-Miya noted that Dr. Cross's opinion “contains inconsistencies, rendering it less persuasive.” (Id.). She stated that “[t]he opinion is without substantial support from other evidence of record, which renders it less persuasive.” (Id.). She also commented that Dr. Cross's opinion “is an overestimate of the ...


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