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Shank v. Berryhill

United States District Court, C.D. California

June 9, 2017

NIKOLAS PAUL SHANK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM DECISION AND ORDER

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

         I.

         INTRODUCTION

         Nikolas P. Shank (“Plaintiff”) brings this action seeking to reverse the decision of the Commissioner of the Social Security Administration (“Commissioner” or “Agency”) denying his application for disability benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the Court AFFIRMS the Commissioner's decision.

         II.

         PROCEDURAL HISTORY

         Plaintiff filed an application for Supplemental Security Income (“SSI”) on December 6, 2011. (Administrative Record (“AR”) 235). Plaintiff alleged that he became unable to work as of July 1, 2009, (AR 235), due to bipolar disorder, post-traumatic stress disorder, social phobia, and a history of shoulder surgery. (AR 136). The Agency denied the application initially on March 8, 2012, and on reconsideration on June 12, 2012. (AR 136-40, 146-51). On August 15, 2012, Plaintiff requested a hearing, (AR 152-54), which Administrative Law Judge (“ALJ”) Catherine R. Lazuran conducted on February 11, 2014. (AR 46). The ALJ issued an unfavorable decision on May 29, 2014, finding that Plaintiff was not disabled within the meaning of the Social Security Act. (AR 25-39). Plaintiff requested review of the ALJ's decision on May 29, 2014, which the Appeals Council denied on November 16, 2015. (AR 1-3). The ALJ's determination then became the final decision of the Commissioner. (AR 1). Plaintiff filed this action on January 20, 2016. (Dkt. No. 1).

         III.

         FACTUAL BACKGROUND

         Plaintiff was born on October 4, 1985. (AR 50, 235). Plaintiff is a high school graduate, attended San Francisco Community College from 2007 to 2010, and is fourteen units away from obtaining an associate's degree in sound recording. (AR 51, 55, 84). Prior to the onset date of his alleged disability, Plaintiff worked as a busboy, audio technician, food server, cashier, barista, and salesperson. (AR 52-61). Plaintiff maintains that he suffers from bipolar disorder, depression, anxiety, insomnia, attention deficit disorder (“ADD”), and substance addiction in remission. (AR 33, 62-64, 69).

         A. Plaintiff's Relevant Mental Health History

         1. Donald H. Stanford, M.D.

         Dr. Donald H. Stanford was Plaintiff's treating psychiatrist from March 2009 to May 2010. (AR 305-10). Dr. Stanford met with Plaintiff thirteen times and diagnosed Plaintiff with bipolar disorder, ADD, anxiety, and depressive disorder NOS. (AR 426).

         Dr. Stanford's clinical notes describe Plaintiff's medications and their side effects. (AR 306-07, 309, 310). On initial consultation, Dr. Stanford reported that Plaintiff “just want[ed] anxiety med[ication]s.” (AR 305). On March 16, 2009, Dr. Stanford prescribed Clonazepam to be taken at the dose of one milligram per day. Plaintiff over-consumed the medication, using the entire month's prescription in ten days. (AR 306). On April 15, 2009, Plaintiff requested more anti-anxiety medicine because he “need[ed] something to calm his N[erves]” and “want[ed] immediate relief.” Dr. Stanford noted that Plaintiff “uses” marijuana. On April 29, 2009, Dr. Stanford “again” counseled Plaintiff to limit his Clonazepam intake. (AR 307).

         Dr. Stanford's treatment notes indicate that Plaintiff “does live sound w[or]k, ” “set up for bands” as a freelance audio engineer, and “promo music on line.” (AR 305-07; but see AR 309 (“rare[ly]” earns money freelancing)). Dr. Stanford indicated that Plaintiff was attending community college and served as a volunteer tutor in software and sound recording at the YMCA. (AR 309). Plaintiff had friends, (AR 305), was busy, and reported his “life [wa]s go[ing] well, ” (AR 307). Dr. Stanford opined that Plaintiff “seems . . . stable.” (AR 309).

         2. Cottage Hospital

         Plaintiff was admitted to Cottage Health System on July 9, 2011, for the chief complaint of “detoxing for a few weeks, extreme insomnia, PTSD, and bipolar phase II.” (AR 316-23). In January 2012, Plaintiff was admitted to Cottage Hospital's residential treatment center for “increased mood lability” in a manic state. Doctors diagnosed Plaintiff with bipolar I disorder and assigned a global assessment of functioning (“GAF”) score of 65. (AR 352). While in the facility, Plaintiff “deflected & denied & refused additional medications.” Plaintiff participated in the program for twenty-two days, but was “referred on for additional psychiatric tx [treatment] as [the hospital] felt th[e] facility did not provide sufficient containment.” (AR 354).

         3. Terrance Early, M.D.

         Plaintiff began seeing Dr. Terrance Early, M.D., in July 2011. (AR 316-23). Dr. Early was Plaintiff's treating physician from August 1, 2011, through December 6, 2011, and began treating him again on April 9, 2013. Dr. Early treated Plaintiff once a month until Plaintiff moved to San Francisco in December 2013. (AR 458; AR 428-53).

         On August 1, 2011, Dr. Early diagnosed Plaintiff with major depressive disorder “vs” bipolar disorder mixed type, social phobia, and ADD and assessed a GAF score of 55. (AR 453, 458). Dr. Early noted that “[Plaintiff] will consent only to above meds. Refuses antipsychotics/mood stabilizers.” (AR 453). Plaintiff reported that Hell's Angels had “threatened to kill him” and “hack[ed] into his facebook account.” Plaintiff was “doing fantastic on current meds.” (AR 452). Plaintiff was “talkative, with good hygiene, ” and without hallucinations or delusions. Dr. Early assessed Plaintiff's mood as “[n]o depression whatsoever” and his affect as euthymic. Dr. Early reported that Plaintiff's father, Dr. Paul Shank, stated that Plaintiff is paranoid and “that the Hell's Angels are not against/out to get him, ” and Plaintiff “is lying about current symptoms, and may be manic and paranoid.” (AR 453).

         On August 21, 2011, Dr. Early noted that Plaintiff requested a refill of Klonopin. Dr. Early had prescribed 60 milligrams of Klonopin one week prior and reported that he was concerned about “the potential for over use of Klonopin.” Dr. Early advised Plaintiff that using more medication than prescribed had the risk of inducing seizures upon withdrawal. Dr. Early prescribed 60 one-milligram tablets not to be refilled prior to two weeks. (AR 451).

         On September 26, 2011, Dr. Early's mental status examination assessed Plaintiff as tearful, anxious, and depressed. Dr. Early characterized the symptoms as “mixed.” Dr. Early noted that Plaintiff had consumed a one-month prescription of anxiety medication in two weeks. (AR 450).

         On October 18, 2011, Dr. Early informed Plaintiff that he was escalating his Klonopin dose to a level that would produce a risk of seizures upon withdrawal. Dr. Early assessed Plaintiff as having a “good” mood and “euthymic” affect. (AR 449).

         On November 2, 2011, Dr. Early noted that Plaintiff was “doing better overall.” (AR 448). Dr. Early assessed a low mood and slightly depressed affect. (AR 447).

         On December 6, 2011, Plaintiff reported irritability, periods of good mood and then irritability, and no opiate use for eight months. (AR 446). Dr. Early assessed Plaintiff's general appearance and behavior as mildly irritable and his affect as momentarily tearful. (AR 446).

         Plaintiff stopped seeing Dr. Early in December 2011, and began to see him again in April 2013. (AR 382, 329-30; AR 445). Dr. Early noted during Plaintiff's April 9, 2013, session that Plaintiff “had pretty severe social anxiety, which ha[s] been improved with [K]lonopin.” (AR 445). Dr. Early assessed Plaintiff as tearful and depressed. (AR 445).

         On April 25, 2013, Dr. Early noted that Plaintiff was calm and insightful and had a “good” mood and euthymic affect. (AR 444). On May 22, 2013, Plaintiff had “a bit more anxiety, ” but Dr. Early concluded that Plaintiff was “[d]oing well.” (AR 443). On June 1, 2013, Plaintiff reported, “I'm definitely happy.” Plaintiff also reported irritability upon missing a dose of his subutex and social anxiety that was “less overall.” (AR 442).

         On July 13, 2013, Plaintiff denied depression and mood swings and reported that his social phobia was “not too bad.” Dr. Early assessed Plaintiff's mood also as “[n]ot too bad” and his affect as anxious and dysphoric. Dr. Early opined that Plaintiff's bipolar disorder was in “fair” control. (AR 441). On July 27, 2013, Dr. Early noted a euthymic affect and “good” mood. (AR 440).

         On August 6, 2013, Dr. Early assessed Plaintiff with a “somewhat low” mood and an anxious and depressed affect. He also, however, characterized Plaintiff's general appearance and behavior as motivated and open. (AR 439). On August 31, 2013, Dr. Early noted that Plaintiff had been rationing his Klonopin due to overconsumption and was trying to taper it back in anticipation of a move to San Francisco. Plaintiff had been using medical marijuana for plantar fasciitis and nausea. Dr. Early noted that Plaintiff was “still battl[ing] anxiety and social isolation.” On mental status examination, Dr. Early assessed Plaintiff's general appearance and behavior as “a bit anxious, ” his mood as “[p]retty good, ” and his affect as “anxious but optimistic.” (AR 437).

         On September 10, 2013, Plaintiff was depressed and had been so for about a week. (AR 436). Early noted Plaintiff was anxious and near tears, his mood was low, and his affect was depressed. (AR 436). On September 14, 2013, Plaintiff stated he was irritable and had argued with his father. Dr. Early noted that Plaintiff's mood was “fantastic” and his affect was euthymic. (AR 435). On September 21, 2013, Plaintiff reported waking feeling “horribly depressed” but then noted he “feels better today.” Dr. Early opined that Plaintiff was under stress due to his potential move. Plaintiff reported a mild degree of mania. Dr. Early characterized Plaintiff's mood as “better.” (AR 434).

         On October 5, 2013, Plaintiff reported feeling “happy.” Dr. Early noted a euthymic affect, “[p]retty good” mood, and “improved” bipolar depression. (AR 432). On October 23, 2013, Dr. Early reported that Plaintiff's therapist indicated Plaintiff might be a “little manic.” Plaintiff reported taking too much Valium. Plaintiff had a mild increased rate of speech and elevated mood, which might have been attributable to his new puppy. (AR 430).

         On November 7, 2013, Plaintiff reported that he had been a “little manic.” Dr. Early noted that Plaintiff's mood was “good” and his affect was euthymic. (AR 429).

         On December 6, 2013, Dr. Early indicated Plaintiff was “doing well” and his mood was “good.” Plaintiff reported that his social phobia was “still an issue, but he [wa]s working on it.” (AR 428).

         4. Deborah DiGiaro, Ph.D.

         Examining consultative psychologist Dr. Deborah DiGiaro examined Plaintiff on February 19, 2012. (AR 381-85). Dr. DiGiaro noted that Plaintiff was neatly and casually dressed, showed “some psychomotor slowing, ” but there was “no evidence of delusions, hallucinations, paranoia, ideas of reference, [or] thought broadcasting.” (AR 383-84). Dr. DiGiaro assessed Plaintiff with a GAF score of 55. (AR 385).

         Dr. DiGiaro opined in her functional capacity assessment that Plaintiff is able to perform simple and repetitive tasks; accept instructions from supervisors; and interact with coworkers and the public. Dr. DiGiaro further declared Plaintiff “moderately” impaired in maintaining regular attendance at work, completing a normal workday/work week without interruptions from a psychiatric condition, and performing work activities on a consistent basis. (AR 385).

         5. Dr. Pedro Guimaraes, M.D.

         Plaintiff was treated by Dr. Pedro Guimaraes from February 2012 through January 2013. (AR 66). On February 10, 2012, Plaintiff reported doing well since starting treatment at Cottage Hospital. (AR 404). Dr. Guimaraes noted that Plaintiff was well-groomed and his attention and memory were normal. Dr. Guimaraes further reported, however, that Plaintiff's mood was anxious, his thought process was racing, and his thought content was delusional in a persecutory manner. (AR 405). Dr. Guimaraes assessed a GAF score of 60. (AR 406).

         During subsequent visits, Dr. Guimaraes reported that Plaintiff responded well to treatment and assessed Plaintiff with higher GAF scores between 70 and 80. On March 23, 2012, Dr. Guimaraes noted under “subjective” that Plaintiff was “doing very well on current tx [treatment].” Dr. Guimaraes assessed Plaintiff's attention and memory as “[g]ood” and his mood as euthymic. (AR 401).

         On April 20, 2012, Plaintiff reported his mood was “good aside from anx[iety].” (AR 403). Dr. Guimaraes assessed Plaintiff's attention and memory as “[g]ood, ” noted that Plaintiff was “[r]esponding well to current tx [treatment], ” and assigned a current GAF score of 78 (noting a past GAF score from the last year of 78). (AR 403).

         On May 11, 2012, Plaintiff reported, “‘I just feel good.'” Dr. Guimaraes assessed Plaintiff's attention and memory as “[g]ood, ” assigned a GAF score of 75, and noted that Plaintiff was “[r]esponding well to current tx [treatment].” Dr. Guimaraes, however, indicated that Plaintiff's mood was intermittently depressed. (AR 402).

         On July 20, 2012, Plaintiff reported having “some anxiety, ” and Dr. Guimaraes assessed Plaintiff's attention as fair, his memory as good, and his mood as anxious. Dr. Guimaraes nonetheless assigned a GAF score of 75. (AR 417).

         On August 3, 2012, Plaintiff reported “doing well” and Dr. Guimaraes opined that “this is the best he had been doing in awhile.” Plaintiff had “[g]ood” memory/attention, a euthymic mood, and a GAF score of 80. (AR 416). On August 31, 2012, Plaintiff reported “feeling well.” Dr. Guimaraes assessed Plaintiff's mood as anxious but nonetheless assigned a GAF score of 70. (AR 415).

         On October 16, 2012, Plaintiff reported he was “doing well.” Dr. Guimaraes noted “[g]ood” memory and attention and a GAF score of 70. (AR 414).

         On January 28, 2013, Plaintiff reported “doing well overal[l].” Dr. Guimaraes noted that Plaintiff was neither depressed nor anxious and assigned a GAF score of 75. He also opined that Plaintiff was showing signs of improvement. (AR 412).

         B. Plaintiff's Relevant Testimony

         In 2011, Plaintiff served food as a church volunteer for several weeks. (AR 61). Plaintiff worked as a busboy and server in March 2010 for approximately three weeks prior to being terminated. (AR 52-54). From August 2008 through June 2009, Plaintiff was employed as a museum audiovisual technician for approximately eight to twelve hours per week. (AR 52). For six months in 2008, Plaintiff worked between fifteen to thirty hours per week in the broadcasting electronics department of his community college assisting students with equipment rentals. (AR 56). For several months in 2006, Plaintiff was employed part-time in a temporary position as a server and cashier in a movie theater. (AR 54). Also in 2006, Plaintiff worked at a restaurant for approximately three to four months. (AR 56). For less than three months in 2005, Plaintiff worked approximately thirty hours per week as a barista. (AR 55). In 2003 and 2004, Plaintiff was employed at a ski shop approximately eighteen to twenty-five hours per week and left this position to relocate. (AR 58).

         Plaintiff claims that, since the onset of his disability, he could not hold a simple job like a cashier because he “probably wouldn't have been reliable.” (AR 77). Plaintiff also could not hold a job that involves simple two-step tasks because, due to his bipolar symptoms, he “would not be stable” and “would not be able to handle it. [He] would probably walk out or something [and] would just not comply.” (AR 78).

         Plaintiff, however, also testified that his health improved since the July 2009 alleged onset of his disability. (AR 62). The ALJ asked whether Dr. Guimaraes's opinion that Plaintiff was “doing really well” and improving was true, and Plaintiff testified that this “definitely” was true. (AR 66-67). Plaintiff explained that he was “sticking” to Dr. Guimaraes's prescribed medication regime and he was improving continuously. (AR 67). Plaintiff also testified that while his bipolar disorder is not fully controlled, he is “getting to a point where [he is] able to handle [his] symptoms better.” (AR 69). Plaintiff attributed the improvement in his health to his sobriety and a strict medication regime. (AR 62, 65, 67). Plaintiff conceded that his drug use had impeded his ability to work and “to just function in general.” (AR 73).

         The ALJ challenged Plaintiff's sobriety and his compliance with his physicians' prescribed medication regimens. The ALJ referred Plaintiff to January 2012 emergency room records noting opiate dependence and indicating that Plaintiff was in withdrawal. When the ALJ inquired whether Plaintiff had in fact used opiates, Plaintiff explained that he had had surgery in March 2011 and began taking opiate pain killers. (AR 63-64).

         The ALJ also questioned Plaintiff regarding his admission to Cottage Hospital's drug rehabilitation treatment program in January 2012. Plaintiff conceded that he attended the program only for 22 days, leaving prior to the expiration of the program's 28-day standard stay. (AR 64-65, 71). According to Plaintiff, the program informed him that he was “too [bipolar], ” he was not in treatment for addiction, and he should leave because he “wasn't like the other people” in the program. (AR 71). The ALJ pointed out that treatment records suggested that the facility discharged Plaintiff because he was not taking recommended medications. (AR 72; AR 73). The ALJ further noted that the program's first diagnosis was “polysubstance dependence, ” with secondary diagnoses of “[bipolar] one” and “anxiety NOS.” (AR 72). Plaintiff insisted that it was “no[t] true at all” that the facility discharged him for noncompliance. (AR 72, 65).

         Plaintiff testified that he “tr[ies] to do as many chores as [he] can.” (AR 73). He “tr[ies]” to wash his clothes, do the dishes, keep things organized, and work out. (AR 73, 74). Plaintiff also cooks frozen meals in a pan or the oven, buys groceries independently, and takes his dog on one-hour walks three times a day. (AR 74, 82). Plaintiff attended at least 32 Alcoholics Anonymous meetings between 2009 and January 2012. (AR 75). Plaintiff also worked as a volunteer for a total of sixteen to twenty hours over a two-week period in 2011. (AR 82). Plaintiff has a hard time concentrating and cannot enjoy simple hobbies. While he does watch television, he has difficulty enjoying it because he lacks focus. Plaintiff does not spent time reading because he cannot focus. (AR 76).

         Plaintiff testified that he has friends and they sometimes come over to visit. (AR 75, 81). Plaintiff uses a computer for a couple of hours a day to check e-mail and communicate with friends and family through social media. (AR 76, 81). Although his computer is on for several hours a day, he uses it only periodically to check, respond to, and write messages. (AR 81). Plaintiff uses public transit in San Francisco “almost every day.” (AR 77). Plaintiff also writes lyrical prose approximately three days a week for about five hours total. Plaintiff does not write as much as he would like or up to “par” “with [his] abilities.” (AR 76; AR 80 (would like to be writing “all day every day”)). Plaintiff began writing a screenplay but has not finished it. (AR 76). Plaintiff's day revolves around taking care of his puppy and himself. (AR 84).

         C. Lay Witness Testimony

         Plaintiff's mother, Janice Lloyd, completed a third-party function report, (AR 258-71), conceding that Plaintiff can bathe, shave, eat, and use the restroom, but “never without his medications.” Plaintiff will wash dishes and tidy his room but only when on his medication. Plaintiff independently prepares his own ready-made meals, takes his dog for walks, and sometimes goes to the library. (AR 259-60, 262). Plaintiff does not have a regular social life or own a car, and he is “not very good with money.” He does, however, use public transportation and shops for groceries. (AR 261-62).

         According to Ms. Lloyd, Plaintiff can be manic, which makes it difficult for him to get along with family and friends. He also does not always complete projects, has trouble concentrating and focusing, and can only pay attention for approximately ten minutes (or more if on medication). Plaintiff cannot follow instructions very well and “jump[s] ahead and misinterpret[s] instructions.” (AR 263). Plaintiff is unreliable to work with, not punctual, does not handle stress or changes in routine well, and is unable to “hold down a job.” (AR 264).

         Plaintiff's father, Dr. Paul Shank, submitted a letter stating that Plaintiff has an inability to socialize and retain relationships; does not interact well even with family; has extreme fear - not based in reality - of being followed by Hell's Angels, drug dealers and others; has a phobia about the way he interacts with people; has extreme situational anxiety at the slightest interaction; and barrages strangers inappropriately with expletives. (AR 454).

         Plaintiff's therapist, Eti Valdez-Kaminsky, MFT, completed a psychiatric medical source statement assessing Plaintiff's functioning. Valdez-Kaminsky assessed marked restrictions in Plaintiff's daily and social activities; maintaining concentration, persistence, and pace; dealing with the public; understanding, remembering, following, and carrying out complex instructions; behaving in an emotionally stable manner; and relating predictably in social situations. (AR 455-57). Valdez-Kaminsky assessed a GAF score of 44. (AR 455).

         Plaintiff's brother-in-law, Paul Gerding, Jr., submitted a letter. Mr. Gerding stated that Plaintiff has outbursts, sometimes could not get out of bed, has great trouble organizing and remembering the demands of life on a day-to-day basis. (AR 292-94).

         Plaintiff's family friend, Deborah Heil, opined in a January 14, 2014, e-mail that Plaintiff is forgetful, distractible, and sometimes nervous; is socially withdrawn; suffers from odd thinking; has difficulty making and keeping friends and lacks a solid peer ground; has different moods, anger outbursts, and illogical rants; is intolerant of others; and has poor concentration. (AR 291).

         D. Adult Function and ...


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