United States District Court, C.D. California
MEMORANDUM DECISION AND ORDER
SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
Plaintiff's Relevant Mental Health History
Donald H. Stanford, M.D.
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.
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).
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).
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).
Terrance Early, M.D.
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
Deborah DiGiaro, Ph.D.
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).
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).
Dr. Pedro Guimaraes, M.D.
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).
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).
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).
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).
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).
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).
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).
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).
Plaintiff's Relevant Testimony
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).
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).
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
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.
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).
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).
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
Lay Witness Testimony
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).
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).
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).
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
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
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).
Adult Function and ...