United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S CROSS MOTION FOR
SUMMARY JUDGMENT RE: DKT. NOS. 15, 16
ELIZABETH D. LAPORTE United States Magistrate Judge.
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.
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.
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.
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.
Plaintiff's Medical History
Cosette Jeanine Taillac-Vendo, L.C.S.W. (examining social
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.
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
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.
Alice L. Yee-Jeong, L.C.S.W. (treating therapist)
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.
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.
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.
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.
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.
Priscilla Marquis, Ph.D. (examining psychologist)
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.
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.
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
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.
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.
Kenneth Fox, M.D. (examining physician)
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.
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.
Randy Kolin, Psy.D. (examining psychologist)
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.
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.
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.