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Thao v. Commissioner of Social Security

September 5, 2008


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the consent of the parties, this case is before the undersigned for final decision on plaintiff's motion for summary judgment (Doc. 19) and defendant's cross-motion for summary judgment (Doc. 25).


Plaintiff first applied for social security benefits on April 3, 2000, with a protective filing date of March 22, 2000. This application was denied in a decision dated January 16, 2002, and plaintiff did not seek any further review. Plaintiff filed another application for benefits on May 28, 2003. In both applications, plaintiff claims that disability began on June 1, 1992. In an adult disability report submitted with her first application, plaintiff claimed her disability consists of a combination of "pain, headaches, dizziness, L-arm injured, L-arm, L-shoulder weakness, depress, poor concentration." She also stated that she experiences low back pain, cannot stand, walk, bend, or lift, and that she has poor memory. In a disability adult report submitted on April 29, 2003, in conjunction with the current application, plaintiff stated that her disability consists of a combination of "left arm problem, bad back, and mental health problem." In her motion for summary judgment, plaintiff states: "She suffers from the severe impairments of major depression, recurrent, and degenerative arthritis of the spine, left arm, and left shoulder."

Plaintiff's May 28, 2003, claim was initially denied. Following denial of her request for reconsideration, plaintiff requested an administrative hearing, which was held on February 17, 2005, before Administrative Law Judge ("ALJ") Mark C. Ramsey. In his March 22, 2005, decision, the ALJ made the following findings:

1. The claimant has not engaged in substantial gainful activity since the alleged onset of disability;

2. The claimant's degenerative arthritis of the left arm, left shoulder and spine and depression are considered "severe" based on the requirements in the Regulations. . . .;

3. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No 4;

4. The undersigned finds the claimant's allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision;

5. The claimant has the residual functional capacity to perform simple unskilled medium work tasks which involve occasional overhead reaching with the left arm and occasional fingering with the left hand; she is restricted from the climbing of ropes or scaffolding;

6. The claimant has no past relevant work;

7. The claimant is a "younger individual";

8. The claimant has no formal education and is "unable to communicate in English";

9. Although the claimant's non-exertional limitations do not allow her to perform the full range of medium work, using Medical-Vocational Rule 203.25, Appendix 2, Subpart P, Regulation No. 4 as a framework for decision-making and SSR 85-15, there are a significant number of jobs in the national economy that she could perform;

10. The claimant has not overcome the presumption of continuing non-disability based on the prior Administrative Law Judge decision dated January 16, 2002; and

11. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision. . . .

Plaintiff's request for review by the Appeals Council was granted and, on November 9, 2005, the Appeals Council issued a decision remanding the case to the ALJ. In the remand decision, the Appeals Council stated:

The decision indicates that the claimant has medically determinable impairments resulting in significant exertional and non-exertional limitations in performing no more than simple unskilled medium work not involving more than occasional overhead reaching with the left arm or occasional fingering with the left hand and no climbing of ropes or scaffolding. (citation to record omitted). In making this assessment, the decision assigned significant weight to the assessment by Dr. Borges at Exhibit C-6F and great weight to the assessments by the State agency review physicians. (citation to decision omitted).

However, Dr. Borges considered the claimant limited to frequent use of the left hand. This limitation is less restrictive than the occasional limitation to fingering assessed in the decision, but without further clarification, it may be more restrictive in possibly restricting all use of the hand [gross handling as well as fingering]. Additionally, both Dr. Borges and the State agency limited the claimant to occasional stooping which was not addressed in the decision. Further evaluation of medical source opinion is warranted. The decision relied upon Social Security Ruling [SSR 85-15] to conclude that the non-exertional limitations assessed in the decision would not significantly erode the claimant's occupational base. Otherwise, there is no vocational evidence in the record regarding the extent to which the claimant's limitations erode the occupational base for medium work. However, SSR 85-15 provides that a limitation in gross manipulation, if supported, erodes the job base at all exertional levels and a limitation to occasional stooping substantially affects the job base for medium work because of the weights involved in lifting. Therefore, further assessment of the claimant's maximum sustainable residual functional capacity and the effects of non-exertional limitations on her job base are warranted.

On remand, the Appeal Council directed the ALJ to:

1. Give further consideration to the examining source opinion pursuant to the provisions of 20 C.F.R. 416.927 and Social Security Rulings 96-2p and 96-5p and non-examining source opinions pursuant to the provisions of 20 C.F.R. 416.927(f) and Social Security Ruling 96-6p, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the examining source to provide additional evidence and/or further clarification of the opinion and medical source statements about what the claimant can still do despite the impairments (citation omitted);

2. Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (citations omitted); and

3. Obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (citation omitted). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (citation omitted). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve and conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titled (DOT) and its companion publication. . ..

A second hearing was held before the same ALJ on January 19, 2006. In his April 26, 2006, decision, the ALJ made the following new finding:

Although the claimant's non-exertional limitations do not allow her to perform the full range of medium work, the vocational expert was able to identify multiple jobs which the claimant is able to perform.

In the second decision, the ALJ did not rely on either Medical-Vocational Rule 203.25 or SSR 85-15. The ALJ's conclusion regarding plaintiff's residual functional capacity was unchanged. After the Appeals Council declined review on August 7, 2005, this appeal followed.


A. Mental Impairments

The certified administrative record ("CAR") contains records concerning plaintiff's mental impairments from the following sources:

1. Psychiatric evaluation dated June 21, 2000, by agency examining psychiatrist Stephen M. Greenleaf, M.D. (CAR 173-77; Ex. B-7F);

2. Mental residual functional capacity assessment with psychiatric review technique form dated July 15, 2000, by agency consultative physician (CAR 188-203; Exs. B-9F and B-10F);

3. "Medical Assessment of Ability to do Work-Related Activities (Mental)" dated October 17, 2001, by treating physician Wu-Hsiung Su, M.D. (CAR 217-18; Ex. B-13F);

4. Records covering the periods March 2003 through December 2004 and February 2005 through January 2006 from Sacramento County Mental Health (CAR 328-33, 339-52, 414-23, and 424-40; Exs. C-2F, C-4F, C-12-F, and C-13F);

5. Psychiatric evaluation dated August 30, 2003, by agency examining physician Shohreh Ghaemian, M.D. (CAR 353-58; Ex. C-6F);

6. Mental residual functional capacity assessment with psychiatric review technique form dated October 8, 2003, by agency consultative physician Rosemary Tyl, M.D. (CAR 373-90; Exs. C-8F and C-9F); and

7. Psychiatric/psychological functional capacity questionnaire dated January 27, 2003, by treating psychiatrist David W. Smith, M.D. (CAR 410-13; Ex. C-11F).

Dr. Greenleaf prepared a report on June 21, 2000, following a complete psychiatric examination. He noted in his report that "[t]here are no psychiatric records." Plaintiff reported her chief complaint as depression. Dr. Greenleaf provided the following background:

The patient has been doing poorly since 1995. She has headaches and musculoskeletal aches and pains. She is a single mother and has trouble supporting her family. All of this has led to depression.

She has trouble with memory, attention, concentration, sleep, and appetite. She has felt suicidal but does not feel that way now. She is not seeing a psychiatrist. She is on Elavil 25 mg and it does help some.

The patient believes she is disabled for reasons described above.

Regarding plaintiff's current level of functioning, Dr. Greenleaf noted that plaintiff lives in an apartment with her children, knows how to drive a car, can dress and bathe herself, and gets along fairly well with people. On mental status examination, Dr. Greenleaf observed that plaintiff is "normoproductive, logical, and coherent" and that her affect is "mildly depressed." He assigned plaintiff a global assessment of functioning ("GAF") score of 60 on a 100-point scale. Dr. Greenleaf opined that plaintiff could follow simple commands and safety rules, function in an environment with little peer or public contact, tolerate reasonable constructive criticism, work adequately with others, and get to work promptly.

On July 15, 2000, an agency consultative doctor completed a mental residual functional capacity assessment and psychiatric review technique form. The doctor concluded that plaintiff was not significantly limited with respect to the following: (1) ability to perform activities within a schedule, maintain regular attendance, and be punctual; (2) ability to sustain an ordinary routine; (3) ability to make simple work-related decisions; (4) ability to interact appropriately with the public; (5) ability to ask simple questions or request assistance; (6) ability to get along with co-workers; (7) ability to maintain socially acceptable behavior; (8) ability to respond to changes in the work setting; (9) ability to be aware of hazards; and (10) ability to travel and use public transportation. The doctor concluded that plaintiff was moderately limited with respect to: (1) ability to understand and remember detailed instructions; (2) ability to carry out detailed instructions; (3) ability to maintain attention and concentration for extended periods; (4) ability to work in coordination with others without being distracted; (5) ability to complete normal work-day routines without interruption from psychologically based symptoms; (6) ability to accept instructions and criticism from supervisors; and (7) ability to set realistic goals. The doctor noted that there was no evidence of limitation with respect to: (1) ability to remember locations and work-like procedures; (2) ability to understand and remember very short and simple instructions; and (3) ability to carry out very short and simple instructions. Plaintiff was not assessed with marked or severe limitations in any category of functioning.

The record contains an assessment by Dr. Wu-Hsiung -- plaintiff's treating physician -- of plaintiff's mental capability to do work-related activities. This two-page report, dated October 17, 2001, does not reference any objective findings. Dr. Wu-Hsiung assessed that plaintiff's ability to do the following activities was either "fair" or "poor or none": (1) follow work rules; (2) relate to co-workers; (3) deal with the public; (4) use judgment; (5) interact with supervisors; (6) deal with work stresses; (7) function independently; (8) maintain attention and concentration; (9) carry out detailed instructions; (10) carry out simple instructions; (11) maintain personal appearance; (12) behave in a socially acceptable manner; and (13) demonstrate reliability.

The CAR does not appear to contain any records from 2002 regarding plaintiff's mental impairments.

Dr. Smith -- plaintiff's treating psychiatrist -- completed a functional capacity questionnaire on January 27, 2003. He diagnosed plaintiff with "major depression, recurrent." Dr. Smith described plaintiff's symptoms as: "depressed mood, tearful, limited sleep. . . ."*fn1

Other than referencing this description of plaintiff's subjective symptoms, Dr. Smith's report does not recite any objective clinical findings. He indicated that plaintiff's prognosis was guarded and that plaintiff had not shown significant improvement. Dr. Smith assessed plaintiff's ability to do the following activities as severely impaired: (1) relate to other people; (2) perform daily activities; and (3) perform complex tasks in a full-time work setting. He assessed plaintiff's limitations as moderately severe in the following areas: (1) ability to work with minimal contact with others; (2) ability to perform work requiring frequent contact with others; and (3) ability to concentrate. Dr. Smith assessed a moderate level of deterioration in plaintiff's personal habits. He opined that plaintiff was moderately limited in her ability to comprehend instructions and perform simple tasks in a full-time work setting.

On August 30, 2003, Dr. Ghaemian reported on his comprehensive psychiatric examination of plaintiff. In his report, Dr. Ghaemian provided the following summary of the records:

Our office has received a copy of the claimant's initial psychiatric evaluation from Sacramento County Adult Mental Health Services APSS Clinic, dated March 18, 2003. The report is handwritten, and mostly illegible, and not fully presented. The Axis I diagnosis appears to be major depressive disorder without psychosis, as well as dysthymic disorder. The claimant achieved a GAF of 50 at the time. No treatment plan was indicated during this evaluation. No prior psychiatric or medical reports were following this report.

There is only one adult psychiatric support service clinic medication summary dating mostly through 2003, which is representative of her Wellbutrin increased to 75 mg on one appointment, as well as Seroquel 25 mg at night, Celexa, and Wellbutrin. It also indicated the claimant taking Zyprexa since June 2003, with unknown dosage. Continuation of treatment and more follow-up was not available.

We also have received a copy of the claimant's filed application from Department of Social Services. The claimant reported her disability as bad back, mental health problems, left arm problems, unable to lift or carry weight because of left hand pain, as well as mental problems that make it hard for her to deal with daily life.

Dr. Ghaemian diagnosed plaintiff with mood disorder, not otherwise specified, but added "rule out malingering." He was unable to assign a GAF score due to incomplete information. Dr. Ghaemian described his objective observations as follows:

The claimant presented as mildly dysphoric. She became tearful during the interview. She has a history of depression, per prior psychiatric evaluation during the past few months. The claimant is taking multiple antidepressants as well as antipsychotics. During the interview, the claimant did not present as severely depressed or psychotic. No symptoms of psychomotor retardation or agitation were observed. No indication of overt psychosis was noted. Current complaint, as well as the nature of the claimant's current psychopathology is questionable and unclear. The claimant stated that she is totally confused. She was not able to spell or calculate. She was not able to identify her home address or home phone number. However, she stated that she has a driver's license and drives around. These are contradictory to this writer. Hence, the claimant's true functional state at this time is not clear.

Regarding plaintiff's functional capabilities, Dr. Ghaemian opined:

Based on current mental status exam, the claimant's linguistic and educational level and poor background, as well as possible presence of mild dysthymic disorder, the claimant is capable only of performing a[] simple and repetitive job on a regular basis in a work-like environment.

Her ability to perform detailed and complex job[s] is questionable, and needs long-term training and reassessment.

The claimant appears to be capable of concentrating for an eight-hour simple job; she is able to respond . . . appropriately to minimal stressors in a job setting or basic changes in a work-like environment.

Agency consultative doctor Rosemary Tyl completed a mental residual functional capacity assessment with psychiatric review technique form on October 8, 2003. She assessed plaintiff as moderately limited in the following areas: (1) ability to understand and remember detailed instructions; (2) ability to carry out detailed instructions; (3) ability to maintain attention and concentration for extended periods; (4) ability to complete a normal work day without interruptions from psychological symptoms; and (5) ability to interact appropriately with the general public. In all other areas, Dr. Tyl concluded that plaintiff was not significantly limited.

Records from Sacramento County Mental Health are largely illegible. In her motion for summary judgment, plaintiff offers a summary of those records. However, while the record contains documents dated in 2003, plaintiff states in her summary that she was treated in 2004, 2005, and 2006 only. She does not summarize any records from Sacramento County Mental Health dated in 2003.

2004, 2005, and 2006

The only remaining mental health records are from Sacramento County Mental Health. As noted above, those records are largely illegible. Plaintiff, however, provides the following summary of these records:*fn2

Ms. Thao was treated on April 21, 2004, November 3, 2004, December 22, 2004, April 23, 2005, March 24, 2005, June 29, 2005, January 5, 2005, January 27, 2005, February 2, 2005, February 23, 2005, February 24, 2005, March 25, 2005, May 23, 2005, September 7, 2005, September 27, 2005, June 19, 2005, January 9, 2005, March 24, 2005, April 21, 2005, June 1, 2005, July 18, 2005, September 14, 2005, and January 9, 2006. TR 424-440.

Ms. Thao was consistently treated for major depression recurrent. She was also treated for insomnia on every occasion she was seen by Dr. Smith. For her depression and anxiety, she was treated with Cymbalta, Celexa, Wellbutrin, Effexor, and Abilify. TR 424-440. For her insomnia, Ms. Thao was treated with Trazodone, Lorazepam, Florazepam, Halcion, Restoril, and Seroquel. TR 424-440. She was also treated with Klonopin for her anxiety symptoms.

February 24, 2005, treatment notes indicated that Ms. Thao was taking Effexor, Dalmane, and Klonopin. Notes indicated that she was being treated for depression and had trials of Wellbutrin and Effexor. Notes indicated she continued to have sleeping problems and had not done well on Restoril, Dalmane, or Seroquel, and was sleeping only two hours per night. Notes indicated that a friend reported Ms. Thao spent most of her day lying on the couch and Ms. Thao indicated she had a sensation that someone was touching her, but no one was there. Notes ...

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