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Florence v. Berryhill

United States District Court, N.D. California

March 30, 2018



          ELIZABETH D. LAPORTE United States Magistrate Judge.

         On March 3, 2017, Plaintiff Edward Florence filed this lawsuit pursuant to 42 U.S.C. Section 405(g), seeking judicial review of the Commissioner of Social Security's decision to deny his application for Disability Insurance Benefits under Title II of the Social Security Act. Defendant Nancy A. Berryhill filed a cross motion for summary judgment on October 6, 2017. For the following reasons, the Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendant's cross motion for summary judgment.

         I. BACKGROUND

         Plaintiff was fifty three years old at the time of his alleged disability onset. AR 233. He completed high school and has a college degree in liberal studies. AR 67-68. At the time of his application for disability benefits, Plaintiff claimed a disability based on neurological problems and arthritis. AR 143. Plaintiff has worked in a variety of settings and his most recent job was in customer relations in a wine brokerage. AR 68.

         A. Procedural History

         On February 12, 2013, Plaintiff applied for disability benefits, alleging a disability onset date of September 15, 2012. AR 233-39. His application was initially denied on May 21, 2013, and upon reconsideration on September 25, 2013. AR 143-45, 151-56. Plaintiff requested a hearing on October 10, 2013. AR 157-58. Administrative law judge (“ALJ”) Judson Scott held hearings on September 4, 2014 and July 8, 2015, and rendered an unfavorable decision on September 24, 2015. AR 9-23. On January 30, 2017, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. AR 1-3. On that date, the ALJ's decision became final. Plaintiff then filed this lawsuit on March 3, 2017.

         On September 10, 2017, Plaintiff moved for summary judgment, asking the Court to reverse the final decision of the Commissioner and order the payment of benefits, or alternatively to remand for a new hearing before an ALJ. Dkt. No. 15. On October 6, 2017, the Commissioner filed a combined opposition and cross motion for summary judgment, asking the Court to affirm the Commissioner's decision. Dkt. No. 16. Plaintiff did not file a reply brief.

         B. Plaintiff's Medical History

         1. Cosette Jeanine Taillac-Vendo, L.C.S.W. (examining social worker)

         On October 29, 2012, Plaintiff met with Cosette Jeanine Taillac-Vendo, L.C.S.W., for a cognitive assessment. AR 679-84. According to her notes from the visit, Plaintiff was seeking services to address adjustment problems he was experiencing, especially in his work environment. AR 680. She stated that his symptoms were problems with his performance and personal interactions at work, as well as difficulty staying asleep. AR 680. Plaintiff said that he has a history of problems maintaining employment because of his learning disabilities, and he brought in copies of his testing results from 1970 from a child neurologist and testing from 1989 from the Department of Rehabilitation. AR 680. Because of his concerns about his ability to keep a job, Plaintiff specifically asked Taillac-Vendo if he qualified for disability. AR 680.

         Taillac-Vendo performed a mental status examination and reported that he appeared well-groomed and appropriately dressed. AR 681. His behavior was normal and his demeanor was pleasant and cooperative. AR 681. His thought content was normal, although his thought process was disorganized. AR 681. His attention and concentration were within normal limits and his recent and remote memory was intact. AR 681. His speech was normal, mood was euthymic and congruent. AR 681. His fund of knowledge was normal. AR 681. His impulse control was fair, and Taillac-Vendo noted that he recently quit his job impulsively. AR 681. His insight and judgment were good. AR 682.

         His diagnosis was hearing loss, occupational problems, and GAF of 41-50 indicating serious symptoms, unable to keep a job. AR 682. Plaintiff was referred for neuropsychological testing. AR 682.

         2. Alice L. Yee-Jeong, L.C.S.W. (treating therapist)

         On July 26, 2013, Plaintiff saw Alice L. Yee-Jeong, L.C.S.W., for psychiatric outpatient triage screening. AR 685-92. She performed a mental status examination. AR 689. Plaintiff was dressed casually and his demeanor was pleasant and cooperative. AR 689. His behavior, speech, and language were normal. AR 689. He reported being tired due to waking early that morning, and he was fully oriented and his attention was normal. AR 689. His affect was appropriate and full range. AR 689. His thought processes were logical and his content was normal and goal directed. AR 689. Yee-Jeong's impression was that he was isolated and felt unsupported by his family while he was caring for mother who had Alzheimer's. AR 689. She assigned him a GAF of 61-70 indicating mild symptoms, and diagnosed him with cognitive disorder. AR 690. AR 689. She referred him to two different doctors and for a return visit with her. AR 690.

         After his initial visit, Plaintiff continued to see Yee-Jeong several more times through 2013 and into 2014. AR 692-719. Throughout this time, Yee-Jeong generally noted her impression that Plaintiff's condition improved or was stable. AR 692-93, 697, 700, 704, 713. His mental status examinations yielded normal results, according to Yee-Jeong's notes. AR 693, 698, 701, 705, 713. She maintained her diagnosis that Plaintiff had cognitive disorder with a GAF of 61-70, although she changed the GAF to 81-90 indicating minimal symptoms in May 2014. AR 693, 698, 701-02, 705-06, 709-10.

         In February 2014, Yee-Jeong noted for the first time that Plaintiff reported difficulties with memory and accessing his fund of knowledge on the mental status examination. AR 709. At that time she described Plaintiff as having “mild cognitive deficiencies and needing some support.” AR 709. In May 2014, she noted that he continued to have memory problems that interfered with his work, but also noted that his recent and remote memory were intact during the mental status examination. AR 713. She also noted that his depression and anxiety had improved, although he continued to experience some irritability. AR 713. In July 2014, Yee-Jeong updated the diagnosis to include adjustment disorder with mixed anxiety and depressed mood. AR 716.

         Yee-Jeong completed a Mental Disorder Assessment on November 12, 2013, after seeing Plaintiff on three different visits. AR 515-17. She noted that Plaintiff reported to her that he has cognitive disorder, but that she has not seen the cognitive neuropsychological testing. AR 515. She stated that she is seeing Plaintiff to treat his stress. AR 515. As to the functional assessment, she noted that she could not address most of the issues, but opined that Plaintiff was markedly limited as to his ability to get along with co-workers and his ability to tolerate usual stresses encountered in a competitive workplace. AR 516. Her Mental Disorder Assessment was not countersigned by a doctor. AR 517.

         Yee-Jeong completed a second Mental Disorder Assessment of Plaintiff on July 31, 2014. AR 653-55. His diagnoses were cognitive disorder NOS, depressive disorder NOS, and adjustment reaction to diagnosis. AR 653. His symptoms included feeling overwhelmed, trouble focusing, and depression. AR 653. For the clinical observations that supported the diagnoses, she noted that he was given psychological testing by Dr. Priscilla Marquis that substantiated the cognitive disorder diagnosis. AR 653. He was receiving treatment through supportive individual therapy to adjust to his cognitive disorder and attending weekly group therapy. AR 653. On his functional assessment, she stated that he was not significantly limited on his ability to perform activities with a schedule, maintain regular attendance, and be punctual within customary tolerances; was moderately limited in his ability to understand and remember very short and simple instructions, the ability to sustain an ordinary routine without special supervision, the ability to make simple work-related decisions, and the ability to get along with co-workers; and he was markedly limited in the ability to carry out very short and simple instructions, ability to perform at a consistent pace without an unreasonable number and length of rest periods, ability to accept instructions and respond appropriately to criticism from supervisors, and the ability to tolerate usual stresses encountered in a competitive workplace. AR 654. She noted that Plaintiff had minor neurocognitive disorder with deficits in overall cognitive functioning, verbal abilities, attention, executive functioning, visual spatial skills, motor skills, and memory. AR 654. This second Mental Disorder Assessment was countersigned by Dr. Priscilla Marquis. AR 655.

         3. Priscilla Marquis, Ph.D. (examining psychologist)

         On February 13, 2013, Priscilla Marquis, Ph.D. completed a neuropsychological report about Plaintiff, with assistance from testing technician Rhea Oliveros, B.S. AR 657-75. Plaintiff was referred for this testing by Taillac-Vendo. The report noted that Plaintiff complained of memory problems, eye-hand difficulties, and “figuring out how things fit together.” AR 657. It also noted his reports of life-long cognitive, visual, and motor difficulties. AR 658.

         Plaintiff was given a mental status examination. He was cooperative, although showed a somewhat irritable manner at times and a gregarious manner at other times. AR 662. His mood was irritable and his affect was flat. AR 62. He was oriented as to person, place, date, and time. AR 662. He showed no obvious distractibility during the examination. AR 662. His fund of knowledge was appropriate for having a college education. AR 662. His thought process was linear and there was no evidence of disordered thought. AR 662. Some impulsivity was noted, but his judgment was good. AR 662. His insight into his level of difficulties was limited. AR 662.

         Based on his WAIS testing, Dr. Marquis concluded that the results suggest a significant decline in cognitive functioning of one standard deviation. AR 664-65. She further noted that his cognitive performance is much lower compared to his level of education and previous functioning. AR 665. His results for attention and concentration measured mild attentional impairment, which was worse for visual stimuli. AR 665. His memory testing showed severe executive functioning difficulties, as well as mildly impaired memory performance. AR 665-66. His results indicated an overall impairment in the area of executive functioning. AR 667. Although he had severe difficulties with reading comprehension, which would indicate a decline, the results showed that his verbal language skills were a strength for him. AR 666. He showed bilateral motor impairment. AR 666. He did not have difficulties with his activities of daily living. AR 667. He would, however, have difficulty with more complex activities of daily living. AR 667.

         Based on these results, Dr. Marquis opined that Plaintiff demonstrated cognitive functioning in the borderline to average range, indicating a significant decline in cognitive functioning for Plaintiff. AR 667. She also opined that he has mild depression, which is attributable in part to his concern about his inability to make a living. AR 668. She explained that he may appear to be higher functioning than he really is, primarily due to his verbal abilities, but he is actually severely impaired. AR 668. Dr. Marquis concluded that he meets the criteria for cognitive disorder NOS and is disabled. AR 668.

         Dr. Marquis also prepared a one-page summary letter, dated September 8, 2014, which was addressed to Plaintiff's attorney. AR 721. In this letter, she reiterated the results of her February 2013 neuropsychological report. AR 721. After summarizing her earlier report, she again concluded that Plaintiff meets the criteria for cognitive disorder NOS and is disabled. AR 721.

         4. Kenneth Fox, M.D. (examining physician)

         On March 1, 2013, Plaintiff saw Kenneth Fox, M.D., for a neurology evaluation. AR 434-39. Dr. Fox's notes state that Plaintiff reported a recent decline in his cognitive function, including in his ability to stay on task and focused, particularly when faced with sequential or multi-step tasks. AR 434. Plaintiff also reported that he remained independent in all activities of daily living and cared for his mother. AR 434. Dr. Fox's mental status examination found that Plaintiff was alert and oriented to person, place, and time. AR 436. His affect was normal and his remote, recent, and immediate memory were normal. AR 436. His language was fluent with normal repetition, comprehension, and naming, and his fund of knowledge was appropriate. AR 436. An MRI of Plaintiff's brain showed mild nonspecific white matter signal changes. AR 437.

         Dr. Fox concluded that Plaintiff had cognitive impairment, as evidenced by Plaintiff's reported symptoms and neuropsychological testing results. AR 437. Dr. Fox noted the possibility that his developmental disorder was becoming more pronounced with age, rather than as a result of neurodegenerative disease. AR 437. Although Dr. Fox mentioned the availability of medication as cognitive enhancers, Plaintiff declined to take medication. AR 437. Dr. Fox recommended that Plaintiff try cognitive rehabilitation exercise programs, such as Luminosity. AR 437.

         5. Randy Kolin, Psy.D. (examining psychologist)

         On September 12, 2013, Randy Kolin, Psy.D., performed a consultative mental evaluation with cognitive testing for the California Department of Social Services. AR 484-92. Dr. Kolin's report noted that Plaintiff complained of a learning disability and an inability to recall. AR 484. Plaintiff also reported a recent cognitive decline, forgetfulness, and poor memory, among other things. AR 484.

         On a mental status exam, Dr. Kolin found that Plaintiff's results were normal, except for attention and memory, which were both impaired. AR 486-87. On the WAIS tests, Plaintiff's full scale composite score was 84, which is in the low average range. AR 488.

         Dr. Kolin gave a diagnosis of cognitive disorder NOS and learning disorder NOS. AR 490. For the functional assessment, Dr. Kolin opined that Plaintiff is mildly limited as to the ability to accept instructions from supervisors and interact with co-workers and the public and the ability to adequately perform one or two step simple repetitive tasks; he is moderately limited in his ability to adequately perform complex tasks, the ability to maintain regular attendance in the work place, and the ability to complete a normal workday or workweek without interruptions from a psychiatric condition; and he is markedly limited in his ability to handle normal work related stress from a competitive work environment and his ability to perform basic work activities and to be safety conscious on a consistent basis without special or additional instructions. AR 490. He concluded that Plaintiff's overall prognosis is poor, his mental health symptoms may be chronic in nature, and his mental health symptoms are likely to hinder social or occupational functioning. AR 490.

         C. ALJ Hearings

         1. ...

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