Tagger v. Astrue

• Decision Date: 24 January 2008
• Docket Number: No. CV 06-5250-RC.,CV 06-5250-RC.
• Citation: 536 F.Supp.2d 1170
• Court: U.S. District Court — Central District of California
• Parties: Jerrett TAGGER, Plaintiff, v. Michael J. ASTRUE,<SMALL><SUP>1</SUP></SMALL> Commissioner of Social Security, Defendant.

536 F.Supp.2d 1170

Jerrett TAGGER, Plaintiff, v. Michael J. ASTRUE,¹ Commissioner of Social Security, Defendant.

No. CV 06-5250-RC.

United States District Court, C.D. California.

January 24, 2008.

COPYRIGHT MATERIAL OMITTED

Suzanne C. Leidner, Leidner & Leidner, Los Angeles, CA, for Plaintiff.

Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA, Cedina M. Kim, Office of U.S. Attorney, Los Angeles, CA, for Defendant.

OPINION AND ORDER

ROSALYN M. CHAPMAN, United States Magistrate Judge.

Plaintiff Jerrett Tagger filed a complaint on August 23, 2006, seeking review of the Commissioner's decision denying his applications for disability benefits. The Commissioner answered the complaint on February 6, 2007, and the parties filed a joint stipulation on March 27, 2007.

BACKGROUND

I

On February 11, 2002, plaintiff applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, and the Supplemental Security Income program ("SSI") of Title XVI of the Act, 42 U.S.C. § 1382(a), claiming an inability, to work since June 1, 1985, due to schizophrenia and headaches. Certified Administrative Record ("A.R.") 78-80, 102, 303-05. The plaintiff's applications were denied on. May 23, 2002. A.R. 37-41. The plaintiff then requested an administrative hearing; however, after plaintiff failed to attend a scheduled, hearing, his request for a hearing was dismissed. A.R. 32-34, 42-44. The plaintiff sought review of the dismissal, and, on March 5, 2004, the Appeals Council remanded the matter to afford plaintiff an administrative hearing. A.R. 49-55. On November 17, 2005, an administrative hearing was held before Administrative Law Judge Alexander Weir III ("the ALP). A.R. 309-23. On February 13, 2006, the ALJ issued a decision finding plaintiff is not disabled. A.R. 12-28. The plaintiff appealed this decision to the Appeals Council, which denied review on June 25, 2006. A.R. 6-11.

II

The plaintiff, who was born on June 23, 1958, is currently 49 years old. A.R. 78 303. He has an eighth-grade education and has not worked in the past years, A.R. 102, 108, 134.

The plaintiff has a well-documented history of mental illness.² On November 26, 1996, plaintiff received mental health treatment at the Los Angeles County Department of Mental Health ("DMH"), where, lie was diagnosed with an unspecified psychotic disorder and an unspecified adjustment disorder and his Global Assessment of Functioning ("GAF") was determined to be 35,³ with highest in the past year of 50.⁴ A.R. 136-44, 193-207. On April 2, 1997, DMH discharged plaintiff from treatment after he missed multiple appointments. A.R. 144. On August 29, 1997, plaintiff was again evaluated at DMH, where M. Giurgius, M.D., diagnosed him as having an unspecified psychotic disorder, rule out persistent substance-induced psychotic order and undifferentiated schizophrenia and malingering, and prescribed Thorazine.⁵ A.R. 142. On January 21, 1998, DMH again discharged plaintiff from treatment due to nonattendance. AIR. 136.

On or about April 1999, plaintiff was incarcerated, and began mental health treatment by various prison psychologists. psychiatrists, and others. A.R. 146-91. On April 14, 1999, Bruce Bogost, M.D., examined plaintiff and diagnosed him with chronic undifferentiated schizophrenia, polysubstance dependence, and borderline intellectual functioning, after determining plaintiff's IQ was between 65 and 70. A.R. 187-88. On April 30, 1999, R. Martell, Ph.D., found plaintiffs GAF was 56.⁶ A.R. 181. That same day, S.K. Stack, Ph.D., diagnosed plaintiff with an anti-social personality disorder, rule out schizoaffective disorder. A.R. 178-80. On May 12, 1999, Stephen Karpman, M.D., examined plaintiff, diagnosed him with chronic schizophrenia, and noted plaintiff had a flat affect and hallucinated voices and visions. A.R. 176. The plaintiff complained his medication was not working and he was experiencing blurred vision and dysuria; therefore, Dr. Karpman' discontinued one of plaintiffs medications and increased plaintiff's prescription of Haldol.⁷ Id.

On February 4, 2000, Walter J. Wilcox, M.D., a psychiatrist, diagnosed plaintiff with probable paranoid schizophrenia and determined plaintiff's GAF was 65.⁸ A.R. 168. On July 14, 2000, Dr. Reichardt diagnosed plaintiff with chronic paranoid schizophrenia, and noted plaintiff was stable. A.R. 166. On November 3, 2000, Bruce Bakeman, Ph.D., diagnosed plaintiff with paranoid schizophrenia, opined plaintiff "suffers from a mental disorder which makes it impossible for him to function in close proximity to others" and his condition precludes learning at school, and requested plaintiff be removed from school and placed on the waiting list for a job, such as porter, where he can move around and not be in close, continuous proximity to other inmates. A.R. 164-65. On December 14, 2000, plaintiff was sent to the infirmary because his medications were not controlling his symptoms, he was hearing voices, his legs were shaking, and he was confused. A.R. 164. On December 14, 2000, V. Kamdar, M.D., examined plaintiff, diagnosed him with schizophrenia with prominent negative symptoms and akathisia,⁹ and noted plaintiff was constantly changing legs (based on his observation of noticeable leg movement) and was hearing voices even when he took his medication, although the voices got worse when he stopped taking the medication. A.R. 163.

On June 11 and September 6, 2001, Dr. Kamdar noted plaintiff was doing fine and was medication compliant. A.R. 157-158. On November 28, 2001, J. Howlin, Ed.D, a psychologist, diagnosed plaintiff with schizophrenia, and noted plaintiff was again hearing voices. A.R. 155. On December 10, 2001, Bill Zizka, Ph.D., a psychologist, diagnosed plaintiff with chronic undifferentiated schizophrenia, and noted plaintiff was hearing voices and very stressed about working in the kitchen. A.R. 154. Dr. Zizka opined plaintiff "has a chronic, mental illness and is not stable enough to cope with the demands and stress of culinary work. He should be unassigned from this kind of work on psychiatric grounds...." A.R. 167.

On January 2, 2002, Joe Reed, Ph.D., a psychologist, diagnosed plaintiff with chronic paranoid schizophrenia and borderline intellectual functioning, and opined plaintiff cannot read or write. A.R. 153. On January 7, 2002, Dr. Reed further opined plaintiff was substantially below his peers in academic achievement and needs assistance managing money; however, plaintiff has adequate social and leisure skills. A.R. 146-50. On April 17, 2002, Ernest Bagner, M.D., a psychiatrist, examined plaintiff and diagnosed him with an unspecified depressive disorder, rule out unspecified psychotic disorder, and polysubstance abuse (in remission), and opined plaintiffs GAF was 58. A.R. 208-11. Dr. Bagner found:

Presently, the [plaintiff] is markedly dysphoric and anxious. He looks around the room in a suspicious manner. The [plaintiff] is guarded and he is disheveled with poor grooming. He has marked difficulty interacting with staff and interviewer, due to his depressed mood and suspiciousness. [¶] The [plaintiff] would have moderate limitations completing simple tasks and maintaining concentration and attention. He would have marked limitations interacting with supervisors, peers and the public and handling normal stresses at work. The [plaintiff] would also have marked limitations completing complex tasks and completing a normal work week without interruption.

A.R. 211.

On May 13, 2002, Mark Salib, M.D., a nonexamining psychiatrist, diagnosed plaintiff with depression, an anti-social personality disorder, and polysubstance abuse. A.R. 212-25. Dr. Salib opined plaintiff has "mild" restrictions in his activities of daily living; "moderate" difficulty maintaining social functioning; "mild" difficulties maintaining concentration, persistence or pace; and there is "insufficient evidence" of any episodes of decompensation. A.R. 222. Dr. Salib also opined plaintiff is "moderately" limited in his ability to understand, remember and carry out detailed instructions and interact appropriately with the general public; but is otherwise not significantly limited and is capable of at least simple repetitive tasks. A.R. 226-28.

On May 24, 2005, Roger A. Izzi, Ph.D., a clinical psychologist, examined plaintiff, performed psychological testing, and diagnosed plaintiff with polysubstance dependence (in remission by medical record review only), an unspecified depressive disorder, and an unspecified cognitive disorder manifested by deficits in the level of intellectual functioning. A.R. 239-44. Dr. Izzi administered the Wechsler Adult Intelligence Scale — III ("WAITS-III") test to plaintiff, who scored a verbal IQ of 74, a performance IQ of 67, and a full scale IQ of 68, and Dr. Izzi determined these scores were valid. A.R. 242. Dr. Izzi further opined:

The [plaintiff's] fund of information, and factual knowledge, which reflects long-term memory abilities, as well as his word knowledge and verbal fluency, ranged from the Extremely Low Range to Borderline Range. His ability to think abstractly was within the Borderline Range. Concentration and freedom from distractibility, as required, by the Arithmetic subtest were within the Extremely Low Range. Immediate auditory memory, attention, concentration and auditory sequencing abilities were within the Low Average Range. Social judgment and social reasoning were within the Borderline Range. [¶] On tests of a nonverbal nature, visual memory, attentional focusing and alertness to visual details were within the Borderline Range. Psychomotor speed and visual motor coordination were within the Extremely Low Range. Visual analysis and synthesis skills ranged from the Extremely Low Range to Borderline Range.

Id. Finally, Dr. Izzi opined plaintiff is "markedly" limited in his ability to understand, remember, and carry...