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Brown v. Colvin

United States District Court, S.D. California

July 12, 2017




         This is an action for judicial review of a decision of the Commissioner of Social Security (“the Commissioner”) denying plaintiff Gweynn Brown disability insurance benefits and supplemental security income benefits under Title XVI of the Social Security Act. 42 U.S.C. §§ 301 et seq. The parties have filed cross-motions for summary judgment, and the matter is before the undersigned magistrate judge for preparation of a report and recommendation. For the reasons stated below, the Court recommends that Plaintiff's motion for summary judgment be denied and that the Commissioner's motion be granted.

         I. BACKGROUND

         A. Procedural History

         On November 14, 2012, Plaintiff filed a Title XVI application for supplemental security income disability payments alleging disability beginning on January 1, 2007. (AR 20, 147.) At the hearing and upon the advice of counsel, Plaintiff amended her alleged disability onset date to November 5, 2012. (AR 20, 35-36, 251.) Her alleged disability was due to Post Traumatic Stress Disorder (“PTSD”), major depression, and anti-social traits. (AR 22, 165, 252.)

         Plaintiff's application was initially denied on March 12, 2013, and again upon reconsideration on January 14, 2014. (AR 20, 88, 97.) Plaintiff then sought further review and filed a written request for a hearing regarding her application denial. (AR 20, 103.)

         On February 11, 2015, Plaintiff, represented by her attorney, appeared and testified at a hearing in San Diego, California before Administrative Law Judge (“ALJ”), Robin L. Henrie. (AR 20, 33-61.) On March 23, 2015, the ALJ issued a written decision finding that Plaintiff was not disabled and denied her benefits. (AR 17-32.) The Appeals Council denied Plaintiff's appeal on August 5, 2016. (AR 5.)

         Plaintiff filed this action on November 22, 2016. (Doc. No. 1.) The Commissioner answered the complaint on March 10, 2017. (Doc. No. 13.) Plaintiff filed her motion for summary judgment on April 27, 2017. (Doc. No. 17.) The Commissioner filed her cross-motion on May 23, 2017. (Doc. No. 18.) Plaintiff did not file an opposition to the Commissioner's cross-motion for summary judgment.

         B. Medical Records

         The administrative record before the ALJ contained the following medical records relating to Plaintiff's alleged impairments:[1]

         Plaintiff saw Susan Swartz, MFT, eight times between December 6, 2012 and February 20, 2013. (AR 273.) Plaintiff provided Ms. Swartz a mental health report prepared in 2011 by Dr. Robert N. Page. (Id.) That report stated Plaintiff suffered from PTSD, Major Depressive Disorder, and Polysubstance Dependence. (Id.) Based on the limited interactions between Ms. Swartz and Plaintiff, Ms. Swartz found Dr. Page's diagnosis of Plaintiff's symptoms were accurate. (Id.) Ms. Swartz further opined that Plaintiff “would have little difficulty with . . . work-related physical activities but would have substantial difficulty with . . . work-related mental activities such as understanding, remembering, sustained concentration & persistence, social interaction, and adaptation.” (AR 274.)

         Alan Berkowitz, M.D., evaluated Plaintiff on February 26, 2013. (AR 285.) Dr. Berkowitz diagnosed Plaintiff with a history of depression, alcohol abuse in supposedly interval sustained remission, and polysubstance abuse in supposedly full sustained remission. (AR 287.) Dr. Berkowitz also diagnosed Plaintiff with probable obsessive compulsive disorder. (Id.) Dr. Berkowitz noted that Plaintiff had never been psychiatrically hospitalized and did not regularly see a psychiatrist. (AR 285.) Dr. Berkowitz opined Plaintiff had moderate limits on her ability to socially interact with others at an age appropriate level and on her ability to understand instructions. (Id.) Due to her anxiety, Plaintiff had moderate limits on her ability to complete detailed and complex tasks and on her ability to concentrate for at least two-hour increments. (Id.) Dr. Berkowitz opined it would be difficult for Plaintiff to work independently and without supervision. (Id.) Finally, Dr. Berkowitz opined Plaintiff had no limitations on her ability to handle funds or avoid normal hazards. (AR 288.) Dr. Berkowitz assigned Plaintiff a GAF score of 45-50.[2](AR 287.)

         Consulting psychologist, Colette Valette, Ph.D., evaluated Plaintiff on January 7, 2014. (AR 285.) Dr. Valette diagnosed Plaintiff with adult antisocial behavior and noted that Plaintiff's history indicated polysubstance abuse in full remission. (AR 296.) Dr. Valette ruled out PTSD and noted Plaintiff reported a prior diagnosis of borderline personality disorder. (Id.) She opined Plaintiff had no limits on her ability to understand instructions or on her ability to complete simple tasks when the tasks do not involve being around a lot of people. (Id.) Plaintiff had moderate limits on her ability to complete detailed tasks and on her ability to concentrate for at least two-hour increments. (Id.) Dr. Valette opined Plaintiff had limitations on her ability to complete complex tasks. (Id.) She opined Plaintiff had mild limits on her ability to socially interact with others at an age appropriate level because she became easily overwhelmed. (Id.) Plaintiff also had mild limits on her ability to sustain an ordinary routine without supervision because she was easily overwhelmed. (Id.) Finally, Dr. Valette concluded Plaintiff was fully capable of handling funds and avoiding normal hazards. (AR 297.) Dr. Valette assigned Plaintiff a GAF score of 55.[3] (Id.)

         On August 28, 2013, the Department of Social Services requested Plaintiff's medical history at Montana State Prison. (AR 292.) However, Montana State Prison[4] did not produce any records for Plaintiff after November 8, 2012. (Doc. No. 14-1 at 2.)

         C. Plaintiff's Testimony

         Plaintiff testified at a hearing before the ALJ on February 11, 2015. (AR 33.) She was thirty years old at the time of the hearing. (AR 36.) Plaintiff was single and had a son that was twelve years old at the time of the hearing. (Id.) She had never held a full-time job. (AR 37.) Her previous work experience included part-time work as a stocker for Target and part-time work as a concierge for a ranch in Montana. (Id.)

         Plaintiff testified that a guard at the Montana Women's Prison raped her while she was in custody in 2011. (AR 38.) This incident was the biggest factor contributing to her impairments, (id.), and her worst symptom was anxiety, (AR 52). She had a difficult time with authority figures and functioning amid people without being weary. (Id.)

         The guard who raped her was sentenced to twenty years in prison, but he was eligible for parole prior to her hearing before the ALJ. (Id.) She testified her anxiety heightened in 2014 compared to 2013 as a result of her assailant's parole hearing. (Id.) The guard is from San Diego and his family has gang connections in the San Diego area. (AR 39.)

         Plaintiff testified that on a scale of zero to ten, where a ten signified horrible symptoms requiring institutionalization and zero signified no symptoms, her symptoms ranged from a two to an eight. (AR 54.) At the time of the hearing, her symptoms were at a five or six. (AR 55.) On average over the preceding year, her symptoms were about a six. (Id.)

         Plaintiff testified that she did not leave her residence often. (AR 40.) She lived at home with her parents and son. (AR 36.) Her parents took her son to school and to soccer. (AR 41.) She also testified that she did not go to her son's soccer games due to severe outbreaks of an autoimmune disease.[5] (Id.) She had a California Driver's license and vehicle. (AR 48-49.) Plaintiff did not walk anywhere, and she usually drove herself in the morning to obtain whatever she needed for the day. (AR 42.) She drove one hundred miles per week at most. (AR 49.)

         Plaintiff was “trying to do some online classes with Ashford University.” (AR 40.) She took one class every five weeks, and the classes took about two hours of her day. (Id.) Plaintiff did not have many social activities outside the home every day because she was very sick. (AR 42.) She testified she attended church regularly but stopped when she got the autoimmune disease. (Id.)

         She was capable of cleaning her living space in the apartment, but she was not capable of anything too rigorous “like deep clean[ing] the house.” (AR 43.) She testified that she did not grocery shop, and she usually ate fast food. (AR 50.) She testified she had not been to a movie in several months, and she did not like to go to the theater because the number of people there made her uncomfortable. (Id.) The last time she went to a restaurant was a month prior to the hearing, and she only remained there for about twenty minutes due to her anxiety. (AR 51.) She spent her free time “out in the sun when [she] can and [conducting] a lot of internet research about school.” (AR 52.)

         She had not sought treatment or gone to therapy because she did not have insurance, and any other available treatments were expensive given her economic status. (AR 44.) She testified that she was not eligible for Medi-Cal, and she had not attempted to seek medical treatment under the Affordable Care Act. (AR 45.)

         She testified that she also had chronic migraines. (AR 45.) Plaintiff took Topamax to treat the migraines for several years, but was no longer eligible to receive medication through the Prescription Drug Act. (Id.) She had migraines approximately two to three times a week. (AR 45-46.) She was unable to do anything but lay in a cold, dark room when she had a migraine. (AR 46.)

         D. The Vocational Expert's Testimony

         Harlan Stock, a vocational expert, also testified at the hearing. (AR 58.) The ALJ asked Mr. Stock about two hypotheticals. First, the ALJ asked whether jobs are available for somebody with unskilled work experience at any exertional level with the following limitations:

[W]orking around dangerous unprotected heights, machinery or chemicals or other noisy environments or (less than moderate noise). Working in other than a low stress environment, which means: (1) a low production level (where VE classified all SGA jobs as low, average or high production; (2) no working with the general public and no working with crowds or co-workers; (3) only occasional contact with supervisors and co-workers, but still having the ability to respond appropriately to supervision, co-workers and usual, routine work situations; and (4) the ability to deal with only “occasional” changes in a routine work setting. Work at no more than a low concentration level, which means the ability to be alert and attentive to (and to adequately perform) only unskilled work tasks. Work at no more than a low memory level, which means: (1) the ability to understand, remember and carry out only “simple” work instructions; (2) the ability to remember and deal with only “rare” changes in the work instructions from week to week; and (3) the ability to remember and use good judgment in making only “simple” work related decisions.

(AR 258.) Mr. Stock opined that the person described in the above hypothetical could find work in the national economy. (Id.) As examples, work as a router, a ticketer, or silver wrapper[6] were available. (Id.)

         The ALJ then changed the above hypothetical to the same work capacity, but instead of restricting the individual's ability to work in a low stress environment with “occasional” contact with supervisors, he amended the restriction to “rare” contact. (AR 59.) Mr. ...

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