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McIntosh v. Colvin

United States District Court, S.D. California

February 26, 2018

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.




         Stewart McIntosh (“Plaintiff”), filed this action seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“Defendant”) denying Plaintiff's claim for Supplemental Security Income disability benefits pursuant to 42 U.S.C. 405(g). On appeal, Plaintiff's raises the sole issue of whether the ALJ properly incorporated the opinions of psychologist Dr. Ted Shore into Plaintiff's Residual Functional Capacity (“RFC”). Plaintiff contends it was reversible error not to incorporate limitations proffered by Dr. Shore into the hypothetical given to the vocational expert.

         After a thorough review of the parties' submissions, along with the entire record submitted in this matter, and for the reasons set forth below, this Court DENIES Plaintiff's motion for reversal or remand of the Commissioner's administrative decision, and GRANTS Defendant's Cross-Motion for Summary Judgment.


         I. Procedural Background

         On April 9, 2012 Plaintiff filed an application for Supplemental Security Income (SSI) alleging disability beginning on September 30, 2005.[1] See AR[2] at 20. Plaintiff's claim was initially denied on July 9, 2012, and subsequently denied again on reconsideration. Id. Plaintiff requested a hearing before an administrative law judge (“ALJ”), which was held on April 25, 2014. Id. On June 13, 2014, the ALJ issued a decision finding Plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act. See AR 17-36. Plaintiff's request for Appeal Council review was denied, and Plaintiff commenced the present action pursuant to 42 U.S.C. § 405(g).

         Plaintiff filed the instant complaint on April 21, 2016. [Doc. No. 1]. Defendant filed an answer on July 12, 2016. [Doc. No. 11]. Thereafter, Plaintiff filed a Motion for Summary Judgment seeking reversal or remand of Defendant's decision. [Doc. No. 14]. Defendant then filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment. [Doc. No. 15]. Plaintiff subsequently filed a Response in support of his Motion for Summary Judgment, and Defendant filed a reply. [Doc. Nos. 15, 18].

         II. Relevant Factual Background

         a. Psychologist Ted Shore, Ph.D.

         On June 15, 2015, Dr. Ted Shore conducted a complete psychological consultative examination of the Plaintiff and rendered opinions about his functional capabilities. See AR at 454-460. Dr. Shore observed that Plaintiff was cooperative at the time of the examination and put forth adequate effort. Id. Dr. Shore also made the following observations: Plaintiff's speech was mildly slurred, but Dr. Shore was able to understand all of his verbal productions. Id. Plaintiff's intelligence appeared to be about average based on testing and observation, and his abstract, cognitive, and reality contact were all intact. Id. Plaintiff was able to recall many details from his personal history, could recall three items immediately, and recalled one out of three items after three minutes. Id. Plaintiff had minimal difficulty focusing on tasks, although his attention and concentration was generally intact. Id. Dr. Shore found Plaintiff's fund of knowledge was average and his judgment satisfactory. Id.

         Dr. Shore administered the “Trail Making Test” part A and B, which is designed to measure an individual's attention, concentration, fine motor speed and ability to filter out interfering stimuli. Id. Plaintiff performance of Part A indicated no impairment and suggested he could perform simple tasks accurately. Plaintiff's performance in Part B indicated mild impairment suggesting he could perform detailed tasks accurately but somewhat slowly. Id. Next, Dr. Shore administered the “Wechsler Adult Intelligence Scale” which is a standardized intelligence test for adults. Id. Based on his performance on the test, Dr. Shore opined that Plaintiff's overall intellectual ability likely falls within the low-average range. Id. Plaintiff fell within the border line range based on his “Wechsler Memory Scale” test, which is designed to measure an individual's memory. Finally, Plaintiff displayed mildly impaired visual recall while conducting the “Bender” test, which is designed to screen for organic impairment. Id.

         Based on the evaluation, Dr. Shore opined that Plaintiff had various “mild” limitations including “ability to maintain adequate work pace, attention, and concentration.” Id. Additionally, Dr. Shore noted Plaintiff had two “moderate” limitations. First, Plaintiff has moderate difficulty in his “[a]bility to interact appropriately with co-workers, supervisors, and the public, ” which “may be marked at times of stress” because Plaintiff is “prone to explosive outburst and anger.” Id. Second, Plaintiff is moderately limited in his ability “to maintain regular attendance” due to his “difficulty managing stress.” Id. The ALJ found Dr. Shore's opinion consistent with his assessment of Plaintiff and with the overall weight of the evidence. Therefore, the ALJ assigned the opinion great weight. See AR at 28.

         b. Psychologist Richard Kaspar Ph.D.

         Dr. Richard Kaspar is State agency psychologist who reviewed Plaintiff's records, which included Dr. Shore's report and assessment. See AR at 138-152. In his mental RFC assessment, Dr. Kaspar opined that Plaintiff was moderately limited in his ability to “perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances.” Id. at 149. Additionally, Dr. Kaspar found Plaintiff to be moderately limited in his “ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods.” Id. Dr. Kaspar explained that notwithstanding those limitations, Plaintiff retains the “capacity to perform simple and likely at least intermediate level tasks” but “may have some difficulties with work attendance and work effort.” Id.

         Dr. Kaspar acknowledged Plaintiff had moderate limitations in interacting with the general public as well as accepting instructions and responding appropriately to criticism from supervisors. Id. at 149-150. In evaluating Plaintiff's adaptation limitations, Dr. Kaspar opined moderate limitations in several categories including the ability to respond appropriately to changes in work setting. Id. at 150. In his ultimate mental RFC assessment, Dr. Kaspar determined Plaintiff retained the “capacity to perform simple and likely intermediate level tasks with little contact with the public, and stresses and work changes matriculated in transition.” Id. The ALJ found Dr. Kaspar's assessment well supported by the evidence in the record, and assigned it great weight. See AR 34.

         c. Psychologist Brady Dalton, Psy.D.

         On November 16, 2012, upon request of reconsideration, State Agency psychologist Brady Dalton reviewed Plaintiff's file. See AR 153-170. In his mental RFC assessment, Dr. Dalton opined that Plaintiff was moderately limited in his ability to understand and remember detailed instructions, but data suggests Plaintiff is able to remember basic workplace locations and procedures, as well as remember and understand simple instructions. See AR at 166. Dr. Dalton found Plaintiff had several moderate limitations with his ability to sustain concentration and persistence. Id. Dr. Dalton explained that Plaintiff is able to carry out simple instructions, follow simple work like procedures, and make simple work related decisions. Id. at 167. Additionally, Dr. Dalton found Plaintiff to have adequate ability to sustain ...

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