United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR
A. HOUSTON UNITED STATES DISTRICT JUDGE
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.
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.
April 9, 2012 Plaintiff filed an application for Supplemental
Security Income (SSI) alleging disability beginning on
September 30, 2005. See AR 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).
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].
Relevant Factual Background
Psychologist Ted Shore, Ph.D.
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.
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.
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.
Psychologist Richard Kaspar Ph.D.
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.”
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.
Psychologist Brady Dalton, Psy.D.
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 ...