SUZANNE H. SEGAL, Magistrate Judge.
Fred Tillmon ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (the "Commissioner" or "Agency") denying his application for Supplemental Security Income benefits ("SSI"). On August 17, 2016, Plaintiff filed a Complaint commencing the instant action. On January 4, 2017, Defendant filed an Answer along with the Administrative Record ("AR"). On February 13, 2017, Plaintiff filed a memorandum in support of the Complaint ("P. Mem."). On March 20, 2017, Defendant filed a memorandum in support of the Answer ("D. Mem."). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the Court AFFIRMS the Commissioner's decision.
In 2010, Plaintiff filed a prior application for SSI. (AR 12, 100). The Agency denied Plaintiff's application initially on July 21, 2010, and on reconsideration on October 26, 2010. (AR 100). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and, on July 26, 2011, ALJ Teresa Hoskins Hart held a hearing to review Plaintiff's application. (AR 24-63). Plaintiff proceeded without counsel before ALJ Hart. (AR 24-35, 100). Vocational expert ("VE") Troy Scott also testified at the hearing, as did Michael Bliss, Plaintiff's friend. (AR 24, 42). On March 26, 2012, ALJ Hart found that Plaintiff was not disabled under the Social Security Act (the "Act"). (AR 100-07). Plaintiff sought review of ALJ Hart's decision before the Appeals Council, which denied Plaintiff's request. (AR 111). The decision became the final decision of the Commissioner, (AR 111), and Plaintiff did not challenge the decision further. (
Plaintiff filed the instant application for SSI on July 29, 2013. (AR 12, 126). Plaintiff alleged a disability onset date of December 31, 2009. (AR 12, 114, 127). The Agency denied Plaintiff's application initially on October 31, 2013, and on reconsideration on January 16, 2014. (AR 141-45, 149-53). Plaintiff requested a hearing before an ALJ. (AR 155). On January 5, 2015, ALJ Michael Radensky conducted a hearing to review Plaintiff's application. (AR 12, 64-96). Plaintiff, represented by Brandon Sanchez, testified before ALJ Radensky. (AR 12, 64). VE Corinne J. Porter also testified at the hearing. (AR 12, 64). On February 24, 2015, ALJ Radensky found that Plaintiff was not disabled under the Act. (AR 12-19). Plaintiff sought review of ALJ Radensky's decision before the Appeals Council, which denied review on July 25, 2016. (AR 1-3, 6). The ALJ's decision therefore became the final decision of the Commissioner. (AR 1). Plaintiff commenced the instant action on August 17, 2016. (Dkt. No. 1).
Plaintiff was born on August 7, 1960. (AR 244). He was 54 years old when he appeared before ALJ Radensky. (AR 70). Plaintiff did not complete high school and does not have a GED, but he is able to read and write "basic stuff." (AR 70-71). Plaintiff had last worked "six [or] seven years" earlier, helping a neighbor maintain yards as a "cleaner." (AR 67, 91). Plaintiff had not applied for any work more recently. (AR 68-69).
There is some evidence in the record of a psychiatric commitment in 2012. (AR 360). The records indicate possible substance abuse and mental health issues. (AR 360-361). In addition, it appears that Plaintiff reported two episodes of custody, one in 2004 and one in 2008, and that he received mental health treatment in custody. (AR 360, 408). In later medical records, Plaintiff denied drug or alcohol use, but Plaintiff's treating physician mentioned in her notes that "[Plaintiff] smelled of ETOH [alcohol]." (AR 386).
Plaintiff claimed that he had been diagnosed with paranoia, schizophrenia, bipolar disorder, and "mental depression." (AR 72). He claimed that he could not "see [him]self" around "too many" people because when his "mind goes bad" he believes that people are "out to get" him. (AR 72). Plaintiff claimed that he took medication for his impairments, although it made him nauseated and caused "shakes" over his whole body for ninety minutes at a time twice a week. (AR 74-75). Plaintiff also claimed that his medications made him tired and made it difficult to get out of bed. (AR 76). Plaintiff maintained that he also experienced suicidal thoughts and hallucinations. (AR 77, 79). Plaintiff testified that he was "fine" when he took his medication, provided he was "by [him]self." (AR 81).
At the time of the 2015 hearing, Plaintiff lived with his sister, niece, and great nephew. (AR 82). Plaintiff claimed that he cooks TV dinners and does laundry "every now and then." (AR 83). Plaintiff claimed that he does not shop or drive and socializes only with his friend "Mike." (AR 84). Plaintiff takes the bus to appointments. (AR 84-85).
Plaintiff's attorney asked VE Porter whether an individual with Plaintiff's "difficulties with maintaining social functions, pace and persistence and his inability to act appropriately with the public" could perform Plaintiff's past relevant work. (AR 94). VE Porter testified that Plaintiff could return to his past work as a cleaner, noting that public interaction "wouldn't be a factor." (AR 94). Plaintiff's attorney asked whether Plaintiff would be required to "interact[] with the public in the sense of whoever's house he's cleaning." (AR 94). VE Porter testified that she "got the impression [Plaintiff] was doing lawn work." (AR 94). Plaintiff stated, however, that he never performed any work inside the house while he worked as a cleaner. (AR 95).
During the prior 2011 hearing before ALJ Hart, VE Scott testified that an individual with Plaintiff's vocational profile who was limited to the performance of "simple, repetitive tasks" with "limited social contact" would be able to perform Plaintiff's past work as a cleaner. (AR 58-60). VE Scott confirmed that the same individual could also return to Plaintiff's past relevant work if the individual also could not come into contact with the general public. (AR 60).
In July 2013, Plaintiff visited Dr. Denise Persichino, D.O., complaining of a "real short" temper and depression and that his medication made him "very tired." (AR 384). Dr. Persichino observed that Plaintiff was "very talkative [and] energetic [and] hyperverbal" and continued his prescriptions. (AR 384).
In August 2013, Plaintiff visited Dr. Persichino, complaining of depression with "5-6 good days" per month, anger, panic attacks, and visual and auditory hallucinations. (AR 382). Dr. Persichino recommended supportive psychotherapy and continued Plaintiff's prescriptions. (AR 382).
On September 24, 2013, Dr. Persichino completed a Mental Disorder Questionnaire Form regarding Plaintiff's impairments. (AR 408-12). Dr. Persichino observed that Plaintiff suffered from mood swings, depression, homicidal thoughts, suicidal thoughts, visual and auditory hallucinations, and anxiety. (AR 408, 410). Dr. Persichino also stated that Plaintiff would sometimes "lose time" and spend up to half an hour in an "almost catatonic" state. (AR 410). Dr. Persichino stated that Plaintiff's mood swings and "racing thoughts" would affect his ability to concentrate and complete tasks in a "time efficient manner" and that he had "significant difficulty" with authority figures. (AR 411).
In December 2013, Plaintiff visited Dr. Persichino, reporting anxiety, visual and auditory hallucinations, and depression. (AR 433). Dr. Persichino modified Plaintiff's medication regimen and prescribed supportive therapy. (AR 433).
In January 2014, Plaintiff visited Dr. Persichino, reporting "improved" depression and that his hallucinations had been "good"; Dr. Persichino noted that Plaintiff was "more talkative [and] upbeat [and] happy" and continued his medication regimen. (AR 431).
On October 29, 2013, State Agency reviewing physician Dr. P. Ryan, M.D., reviewed Plaintiff's medical records and provided a medical assessment. (AR 117-22). Dr. Ryan stated that there had been "no material change" since ALJ Hart had found Plaintiff not disabled one year earlier. (AR 118). Dr. Ryan also stated that Plaintiff's allegations regarding the severity of his mental impairments were not supported by his treatment history, further noting that Plaintiff's condition "appear[ed] to get better during periods of compliance w/treatment." (AR 120).
On January 15, 2014, State Agency reviewing physician Dr. Joshua D. Schwartz, Ph.D., reviewed Plaintiff's medical records and provided a medical assessment. (AR 132-37). Dr. Schwartz opined that Plaintiff could carry out "simple one and two step tasks with adequate concentration, persistence and pace," but also stated that Plaintiff should have "no contact w/the general public." (AR 137).
In a September 2013 Work History Report, Plaintiff reported that he worked as a "laborer" in 2002 and in providing "assistance to [a] landscaper" in 2009. (AR 272). Plaintiff's duties as a "laborer" included cleaning garden tools and removing them from a truck. (AR 273). Plaintiff's duties in providing "assistance to [a] landscaper" involved "clean[ing] and stack[ing] tools" and using rakes, trimmers, and hedgers. (AR 274).
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
The claimant has the burden of proof at steps one through four and the Commissioner has the burden of proof at step five.
Preliminarily, ALJ Radensky observed that ALJ Hart previously found Plaintiff not disabled. (AR 12). As a result, ALJ Radensky ruled that there was a "rebuttable presumption of continuing nondisability" with respect to the unadjudicated period. (AR 12). ALJ Radensky found that Plaintiff had not shown "changed circumstances" and therefore adopted the findings of ALJ Hart's decision. (AR 12).
ALJ Radensky then applied the five-step process in Plaintiff's case. At step one, ALJ Radensky observed that Plaintiff had not engaged in substantial gainful activity since July 29, 2013, the application date. (AR 14). At step two, ALJ Radensky found that Plaintiff's severe impairments included psychotic disorder, not otherwise specified, and history of polysubstance abuse with physiological dependence. (AR 14). At step three, ALJ Radensky found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). (AR 15).
ALJ Radensky then found that Plaintiff possessed the RFC to perform a full range of work at all exertional levels, with the nonexertional limitations that Plaintiff could perform "simple, repetitive tasks with limited social interactions" and was precluded from contact with the public. (AR 16). In evaluating Plaintiff's RFC, ALJ Radensky assigned "some weight" to Dr. Persichino's opinion and "great weight" to the opinions of State agency medical consultants. (AR 18).
At step four, ALJ Radensky determined that Plaintiff was capable of performing his past relevant work as a cleaner as actually and generally performed. (AR 18-19). ALJ Radensky therefore determined that Plaintiff was not disabled within the meaning of the Act. (AR 19).
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by "substantial evidence" in the record as a whole.
"Substantial evidence is more than a scintilla, but less than a preponderance."
Plaintiff challenges ALJ Radensky's decision on two grounds. First, Plaintiff contends that ALJ Radensky failed to properly consider Dr. Persichino's opinion. (P. Mem. at 3-6). Second, Plaintiff contends that ALJ Radensky erred at step four by finding that he could perform his past relevant work as a cleaner. (P. Mem. at 6-9).
The Court disagrees. ALJ Radensky afforded proper weight to Dr. Persichino's opinion and did not err by determining that Plaintiff could return to his past relevant work.
Plaintiff contends that the ALJ failed to properly consider Dr. Persichino's opinion. (P. Mem. at 3-6). The Court disagrees and finds that the ALJ provided specific and legitimate reasons for assigning Dr. Persichino's opinion "some weight."
Social Security regulations require the ALJ to consider all relevant medical evidence when determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520(e), 404.1527(c), 416.927(c). Where the Agency finds that the treating physician's opinion about the nature and severity of the claimant's impairments is well-supported by accepted medical techniques and is not inconsistent with the other substantive evidence in the record, that opinion is ordinarily controlling. 20 C.F.R. § 404.1527(c)(2);
Nevertheless, the ALJ is also "responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities."
Furthermore, "[t]he treating physician's opinion is not . . . necessarily conclusive as to either a physical condition or the ultimate issue of disability."
ALJ Radensky cited specific and legitimate reasons supported by the record for giving "some weight" to Dr. Persichino's opinion. As ALJ Radensky noted, Plaintiff was able to complete various household tasks and answer questions during the hearing without difficulty. (AR 18). In affording "great weight" to the opinions of the State agency medical consultants, ALJ Radensky found that the consultants' opinions were "consistent with the objective medical evidence" and similarly noted that Plaintiff was able to cook, use public transportation, and handle money. (AR 18). Although Plaintiff is correct that he need not be "incapacitated" to be disabled, (P. Mem. at 5), ALJ Radensky was permitted to consider whether any restrictions assessed by Dr. Persichino were inconsistent with Plaintiff's demonstrated abilities.
Moreover, the Court observes that ALJ Radensky afforded Dr. Persichino's opinion "some weight," not "no weight" or "little weight." Dr. Persichino's opinion stated that Plaintiff's limitations would sometimes cause him to "lose time," affect his ability to concentrate and complete tasks in a "time efficient manner," and cause "significant difficulty" with authority figures. (AR 410-11). ALJ Radensky's RFC specifically limited Plaintiff to "simple repetitive tasks with limited social interactions" and no "contact with the general public." (AR 16). The RFC assessed by ALJ Radensky therefore appears to account for many of the limitations observed by Dr. Persichino, consistent with ALJ Radensky assigning that opinion "some weight." (
The Court therefore disagrees with Plaintiff's contention that ALJ Radensky improperly evaluated Dr. Persichino's opinion and finds that ALJ Radensky provided specific and legitimate reasons for assigning it "some weight."
Plaintiff contends that ALJ Radensky erred at step four by finding that he could perform his past relevant work as a cleaner. (P. Mem. at 6-9). The Court disagrees.
Once the ALJ determines a claimant's RFC, he then compares these limitations with the job duties of the claimant's previous work. At step four, the question is whether the claimant can perform "[t]he actual functional demands and job duties of a particular past relevant job" or "[t]he functional demands and job duties of the occupation as generally required by employers throughout the national economy."
The best source for information regarding how an occupation is "generally performed" is usually the Dictionary of Occupational Titles ("DOT").
Plaintiff claims that, because some of the tasks listed in the DOT definition of "cleaner" appear to involve contact with the public and social interactions, Plaintiff is precluded from performing work as a cleaner. (P. Mem. at 7-8). Specifically, Plaintiff claims that a cleaner must "keep premises of office building, apartment house, or other commercial or institutional buildings in clean and orderly condition and also set up table and chairs in auditoriums or halls. This would consist of keeping common areas and places open to the public clean where [Plaintiff] may have to deal or come into contact with the public. The RFC also noted having limited social interactions. However, it does not address with who, for example with supervisors or co-workers. As this job would also require [Plaintiff] to deliver messages or transport small equipment or tools between departments, which would lead to social interactions between co-workers and supervisors and possibly with the general public [sic]. Based on the above-mentioned, [Plaintiff] would not be able to perform his past relevant work as a cleaner." (
Plaintiff is incorrect. The mere fact that some of the tasks in the DOT definition of "cleaner" may result in contact with the public or social interactions does not mean that the ALJ incorrectly relied on VE testimony that Plaintiff could return to his past relevant work. The Ninth Circuit's analysis of the DOT in
The Ninth Circuit affirmed the ALJ's opinion, observing that the DOT definition specified several duties required of only some cashiers.
Here, in the 2011 hearing before the ALJ, VE Scott confirmed that that an individual with Plaintiff's vocational profile who was limited to the performance of "simple, repetitive tasks" with "limited social contact" and no contact with the general public would be able to perform Plaintiff's past work as a cleaner. (AR 58-60). VE Scott reported that his testimony was consistent with the DOT. (AR 57). In the second hearing, on January 5, 2015, VE Corine Porter specifically considered whether Plaintiff's work would require contact with the public and determined that it would not, particularly because Plaintiff's work as a "cleaner" principally involved "doing lawn work." (AR 94). Defendant is correct that Plaintiff has made no showing that his "speculative, lay interpretation of the DOT" should overcome expert VE testimony. (D. Mem. at 11-12 (citing
The Court therefore disagrees with Plaintiff's contention that ALJ Radensky erred at step four by finding that Plaintiff could perform his past relevant work as a cleaner.
Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties.
