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Menard v. Astrue

August 3, 2009


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of the defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff filed an application for SSI benefits on January 14, 2005, alleging that she had been disabled since November 1, 2004 due to blindness in her right eye, brain damage, problems with her right cavity eye socket, and hepatitis "C" infection. [JS 2; Administrative Record ("AR") 11, 94, 136]. Plaintiff's application was denied initially and upon reconsideration. [JS 2; AR 11]. Plaintiff requested an administrative hearing, which was conducted before an Administrative Law Judge (the "ALJ") on March 12, 2008. [AR 11, 773-789]. Plaintiff, who was represented by an attorney, testified on her own behalf. [AR 11, 773-789]. Testimony also was received from two medical experts, Arnold Ostrow, M.D., and Stephen Wells, Ph.D., and a vocational expert, Kelly Winn-Boaitey. [AR 11, 773-789].

On May 12, 2008, the ALJ issued a written decision denying plaintiff's application for benefits. [AR 8-21]. The ALJ found that plaintiff had the following severe impairments: status post self- inflicted gunshot wound to the right orbit with a residual prosthetic right eye; alcoholism; hepatitis "C"; and cervical degenerative disk disease at the C3-4 and C5-6 levels. [AR 13]. The ALJ determined that plaintiff's alcoholism met section 12.09 of the Listing of Impairments (the "Listing"). See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ further found, however, that absent alcohol or drug abuse, plaintiff's impairments did not meet or equal a listed impairment. [AR 13-14].

The ALJ determined that absent alcohol or drug abuse, plaintiff retained the residual functional capacity ("RFC") to perform light work with the following non-exertional limitations: no raising of her arms above shoulder height; no turning of her head to the extreme lateral right and left or back and forth; no more than occasional bending, stooping, and stair climbing; no climbing of ropes, ladders, or scaffolds; and no work requiring binocular vision or unprotected exposure to heights. [AR 14]. The ALJ found that plaintiff's RFC precluded her from performing her past relevant work as a home care worker, but that her RFC did not preclude her from performing alternative jobs that exist in significant numbers in the national economy. [AR 20]. The ALJ therefore concluded that plaintiff was not disabled at any time through the date of his decision. The Appeals Council denied plaintiff's request for review. [AR 4-6].


Plaintiff was born in September 16, 1955, and she was 53 years old when the ALJ issued his decision. [AR 19]. Plaintiff had a high school education and past relevant work as a home care worker. [AR 19].

On November 11, 2004, plaintiff was admitted to the emergency room at John Muir Medical Center with a self-inflicted gunshot wound to the head, ruptured globe on the right eye, and cerebral contusion. [AR 160-219, 566-772]. She also presented with alcohol intoxication; her blood alcohol level was 0.38. [AR 179, 182]. Plaintiff underwent surgical repair of the right globe, followed by right eye enucleation with orbital implant. [AR 160-161].

During her hospital stay, plaintiff underwent a psychiatric evaluation and was diagnosed with major depression and suicide attempt. [AR 161]. On November 23, 2004, plaintiff was transferred to an inpatient psychiatry unit, where she remained until discharged on December 9, 2004 with diagnoses of major depression without psychosis, alcohol abuse, post self-inflicted gunshot wound to the head with enucleated right eye and right orbital fracture, hepatitis C, and gastroenteritis. [AR 210-219]. On discharge, plaintiff was prescribed medication for depression, sleep, itching, and nausea, and she also was prescribed Antabuse, a medication used to treat alcoholism. [AR 214].

Plaintiff received follow-up ophthalmic, medical, and psychiatric treatment from Contra Costa Health Services ("CCHS").*fn1 [AR 278-349, 360-376]. On May 25, 2006, Dr. Puell, a CCHS family practice doctor [AR 368-369], completed a physical functional capacity assessment form rating plaintiff's ability to do work-related activities on a day-to-day basis in a regular work setting. [AR 365]. Dr. Puell opined that plaintiff could occasionally lift and/or carry no more than ten pounds, stand and/or walk for two hours without interruption in an eight-hour workday, and sit for four hours without interruption in an eight-hour workday. [AR 365-366]. Dr. Puell opined that plaintiff could never climb, balance, stoop, crouch, kneel and crawl, and that while her reaching, handling, feeling, hearing and speaking were all "affected by" her impairments, her ability to push, pull, and see were not. [AR 366]. Additionally, Dr. Puell stated that heights, moving machinery, temperature extremes, chemicals, dust, noise, fumes, humidity and vibration were environmental restrictions that were "affected by" her impairment. [AR 367]. Dr. Puell said that plaintiff's low back pain, asthma, allergies, and blindness in her right eye supported his assessment. [AR 365-367]. Dr. Puell stated that plaintiff had a history of the following impairments: chronic hepatitis C, hypertension, low back pain and degenerative joint disease, asthma, allergies, and irritable bowel. He said that her history of those disorders caused fatigue, body aches, depression, pain, range of motion limitations, shortness of breath, and coughing. [AR 368].

A few months later, on October 18, 2006, Dr. Puell completed a medical assessment of plaintiff's mental ability to do work-related activities. [AR 262-264]. The assessment form consisted of a checklist asking Dr. Puell to rate plaintiff's abilities as unlimited, very good, good, fair, poor, or none. [AR 362-364]. Dr. Puell indicated that plaintiff had poor or no ability to: relate to co-workers; deal with the public; interact with supervisors; deal with work stresses; maintain attention and concentration; understand, remember and carry out complex job instructions; understand, remember and carry out detailed, but not complex instructions; understand, remember and carry out simple job instructions; behave in an emotionally stable manner; relate predictably in social situations; and demonstrate reliability. [AR 17, 362-364]. Dr. Puell also determined that plaintiff had fair ability to follow work rules, use judgment, function independently, and maintain personal appearance. [AR 362, 364]. Asked to describe her limitations and the medical or clinical findings that supported his assessment, Dr. Puell responded that plaintiff had "chronic health/mental issues," poor concentration and motivation, insomnia, depression, had up and down days, took medications that caused sedation, had a history of chronic hepatitis C causing symptoms of fatigue, liver problems, and body aches, and a history of asthma causing shortness of breath, coughing, and wheezing. [AR 363]. Dr. Puell observed that plaintiff was unable to take charge, follow directions, get organized, and get motivated to seek or keep employment. [AR 363]. He said that plaintiff had poor vision and was "unable to relate to societal demands." [AR 364]. Dr. Puell stated that weather, moisture, temperature changes, air conditioning or a furnace could cause wheezing. [AR 364]. Dr. Puell opined that plaintiff was permanently disabled. [AR 364].

During the hearing, the medical expert, Dr. Ostrow, testified that plaintiff had medically determinable impairments consisting of status post-gunshot wound to the right orbit, alcoholism, major depression, hepatitis C, and cervical degenerative disease at C3/4 and C5/6. [AR 776]. Dr. Ostrow testified that plaintiff's impairments, singly or in combination, did not meet or equal a listed impairment. [AR 777]. Asked by the ALJ to describe plaintiff's RFC, Dr. Ostrow testified as follows. Plaintiff could sit for four hours at a time and six hours total in an eight-hour day. She could stand for two hours at a time and four hours total in an eight-hour day. She could walk for three hours at a time and four hours total in an eight-hour day. Plaintiff could lift twenty pounds occasionally and fifteen pounds repetitively. She could carry fifteen pounds occasionally and ten pounds continuously. Plaintiff was totally precluded from working at unprotected heights and from performing any work requiring binocular vision. [AR 777-778]. Dr. Ostrow opined that plaintiff's alcoholism was not material to her hepatitis, that is, her hepatitis diagnosis would persist even if she stopped abusing alcohol. [AR 778].

The psychological expert, Dr. Wells, testified that plaintiff had major depressive disorder, recurring, severe, with psychotic features, and mixed personality disorder with borderline, histrionic, and narcissistic features. [AR 78-781]. Dr. Wells opined that plaintiff's affective and personality disorders, in combination with her alcoholism and physical impairments, equaled a listing-level ...

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