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Tillmon v. Berryhill

United States District Court, C.D. California

June 16, 2017

FRED TILLMON, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM DECISION AND ORDER

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Fred Tillmon (“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 Supplemental Security Income benefits (“SSI”). On August 17, 2016, Plaintiff filed a Complaint commencing the instant action. On January 4, 2017, Defendant filed an Answer along with the Administrative Record (“AR”). On February 13, 2017, Plaintiff filed a memorandum in support of the Complaint (“P. Mem.”). On March 20, 2017, Defendant filed a memorandum in support of the Answer (“D. Mem.”). 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

         In 2010, Plaintiff filed a prior application for SSI. (AR 12, 100). The Agency denied Plaintiff's application initially on July 21, 2010, and on reconsideration on October 26, 2010. (AR 100). Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and, on July 26, 2011, ALJ Teresa Hoskins Hart held a hearing to review Plaintiff's application. (AR 24-63). Plaintiff proceeded without counsel before ALJ Hart. (AR 24-35, 100). Vocational expert (“VE”) Troy Scott also testified at the hearing, as did Michael Bliss, Plaintiff's friend. (AR 24, 42). On March 26, 2012, ALJ Hart found that Plaintiff was not disabled under the Social Security Act (the “Act”). (AR 100-07). Plaintiff sought review of ALJ Hart's decision before the Appeals Council, which denied Plaintiff's request. (AR 111). The decision became the final decision of the Commissioner, (AR 111), and Plaintiff did not challenge the decision further. (See AR 93-94).

         Plaintiff filed the instant application for SSI on July 29, 2013. (AR 12, 126). Plaintiff alleged a disability onset date of December 31, 2009. (AR 12, 114, 127). The Agency denied Plaintiff's application initially on October 31, 2013, and on reconsideration on January 16, 2014. (AR 141-45, 149-53). Plaintiff requested a hearing before an ALJ. (AR 155). On January 5, 2015, ALJ Michael Radensky conducted a hearing to review Plaintiff's application. (AR 12, 64-96). Plaintiff, represented by Brandon Sanchez, testified before ALJ Radensky. (AR 12, 64). VE Corinne J. Porter also testified at the hearing. (AR 12, 64). On February 24, 2015, ALJ Radensky found that Plaintiff was not disabled under the Act. (AR 12-19). Plaintiff sought review of ALJ Radensky's decision before the Appeals Council, which denied review on July 25, 2016. (AR 1-3, 6). The ALJ's decision therefore became the final decision of the Commissioner. (AR 1). Plaintiff commenced the instant action on August 17, 2016. (Dkt. No. 1).

         III. FACTUAL BACKGROUND

         A. Background and ALJ Hearing Testimony

         Plaintiff was born on August 7, 1960. (AR 244). He was 54 years old when he appeared before ALJ Radensky. (AR 70). Plaintiff did not complete high school and does not have a GED, but he is able to read and write “basic stuff.” (AR 70-71). Plaintiff had last worked “six [or] seven years” earlier, helping a neighbor maintain yards as a “cleaner.” (AR 67, 91). Plaintiff had not applied for any work more recently. (AR 68-69).

         There is some evidence in the record of a psychiatric commitment in 2012. (AR 360). The records indicate possible substance abuse and mental health issues. (AR 360-361). In addition, it appears that Plaintiff reported two episodes of custody, one in 2004 and one in 2008, and that he received mental health treatment in custody. (AR 360, 408). In later medical records, Plaintiff denied drug or alcohol use, but Plaintiff's treating physician mentioned in her notes that “[Plaintiff] smelled of ETOH [alcohol].” (AR 386).

         Plaintiff claimed that he had been diagnosed with paranoia, schizophrenia, bipolar disorder, and “mental depression.” (AR 72). He claimed that he could not “see [him]self” around “too many” people because when his “mind goes bad” he believes that people are “out to get” him. (AR 72). Plaintiff claimed that he took medication for his impairments, although it made him nauseated and caused “shakes” over his whole body for ninety minutes at a time twice a week. (AR 74-75). Plaintiff also claimed that his medications made him tired and made it difficult to get out of bed. (AR 76). Plaintiff maintained that he also experienced suicidal thoughts and hallucinations. (AR 77, 79). Plaintiff testified that he was “fine” when he took his medication, provided he was “by [him]self.” (AR 81).

         At the time of the 2015 hearing, Plaintiff lived with his sister, niece, and great nephew. (AR 82). Plaintiff claimed that he cooks TV dinners and does laundry “every now and then.” (AR 83). Plaintiff claimed that he does not shop or drive and socializes only with his friend “Mike.” (AR 84). Plaintiff takes the bus to appointments. (AR 84-85).

         Plaintiff's attorney asked VE Porter whether an individual with Plaintiff's “difficulties with maintaining social functions, pace and persistence and his inability to act appropriately with the public” could perform Plaintiff's past relevant work. (AR 94). VE Porter testified that Plaintiff could return to his past work as a cleaner, noting that public interaction “wouldn't be a factor.” (AR 94). Plaintiff's attorney asked whether Plaintiff would be required to “interact[] with the public in the sense of whoever's house he's cleaning.” (AR 94). VE Porter testified that she “got the impression [Plaintiff] was doing lawn work.” (AR 94). Plaintiff stated, however, that he never performed any work inside the house while he worked as a cleaner. (AR 95).

         During the prior 2011 hearing before ALJ Hart, VE Scott testified that an individual with Plaintiff's vocational profile who was limited to the performance of “simple, repetitive tasks” with “limited social contact” would be able to perform Plaintiff's past work as a cleaner. (AR 58-60). VE Scott confirmed that the same individual could also return to Plaintiff's past relevant work if the individual also could not come into contact with the general public. (AR 60).

         B. Treating Psychiatrist Denise Persichino, D.O.

         In July 2013, Plaintiff visited Dr. Denise Persichino, D.O., complaining of a “real short” temper and depression and that his medication made him “very tired.” (AR 384). Dr. Persichino observed that Plaintiff was “very talkative [and] energetic [and] hyperverbal” and continued his prescriptions. (AR 384).

         In August 2013, Plaintiff visited Dr. Persichino, complaining of depression with “5-6 good days” per month, anger, panic attacks, and visual and auditory hallucinations. (AR 382). Dr. Persichino recommended supportive psychotherapy and continued Plaintiff's prescriptions. (AR 382).

         On September 24, 2013, Dr. Persichino completed a Mental Disorder Questionnaire Form regarding Plaintiff's impairments. (AR 408-12). Dr. Persichino observed that Plaintiff suffered from mood swings, depression, homicidal thoughts, suicidal thoughts, visual and auditory hallucinations, and anxiety. (AR 408, 410). Dr. Persichino also stated that Plaintiff would sometimes “lose time” and spend up to half an hour in an “almost catatonic” state. (AR 410). Dr. Persichino stated that Plaintiff's mood swings and “racing thoughts” would affect his ability to concentrate and complete tasks in a “time efficient manner” and that he had “significant difficulty” with authority figures. (AR 411).

         In December 2013, Plaintiff visited Dr. Persichino, reporting anxiety, visual and auditory hallucinations, and depression. (AR 433). Dr. Persichino modified Plaintiff's medication regimen and prescribed supportive therapy. (AR 433).

         In January 2014, Plaintiff visited Dr. Persichino, reporting “improved” depression and that his hallucinations had been “good”; Dr. Persichino noted that Plaintiff was “more talkative [and] upbeat [and] happy” and continued his medication regimen. (AR 431).

         C. State Agency ...


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