United States District Court, C.D. California
WILLIAM J. ADCOCK, Plaintiff,
NANCY A. BERRYHIL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION AND ORDER
SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE.
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
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.
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).
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).
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).
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).
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).
testified that his driver's license expired a few years
back. (AR 649). He stated that he takes the Sun bus for
Consultative Examiner, Kara Cross, Ph.D., ABFE, ABPS
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).
“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).
“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).
“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
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.
“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
“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.”
“Speech, ” Dr. Cross stated that speech was
“normally and clearly articulated, without stammering,
dysarthria, neologisms, tangentiality, circumstantiality or
loosened, unusual or blocked associations.”
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.
“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.
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.).
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. (Id.). Under
“Prognosis, ” Dr. Cross stated that “[f]rom
a psychiatric standpoint, [Plaintiff's] condition is
deemed fair.” (Id.).
“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.).
State Agency Physician, Gina Rivera-Miya, M.D.
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
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.).
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.
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