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Perez v. Astrue

September 16, 2009


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge



Plaintiff Theresa J. Perez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Dennis L. Beck, United States Magistrate Judge.*fn1


Plaintiff filed her application on January 31, 2005, alleging disability since May 1, 2002, due to depression and medication. AR 119-126. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). On September 10, 2007, ALJ James Berry held a hearing. AR 30-58. He denied benefits on October 15, 2007. AR 13-22. The Appeals Council denied review on February 11, 2008. AR 6-9.

Hearing Testimony

ALJ Berry held a hearing on September 10, 2008, in Bakersfield, California. Plaintiff appeared with her attorney, Geoffrey Hayden. Vocational expert ("VE") Kenneth Ferra and witness Kristen Wheelan also appeared and testified. AR 30.

Plaintiff testified that she was 46 years old at the time of the hearing. She completed the tenth grade and can read and write. Plaintiff was five feet tall and weighed 282 pounds. She does not have a driver's license and does not drive a car. AR 34.

Plaintiff explained that she last worked in 2001 at a supermarket deli, but had to stop working because her medication was making her "work slow." Prior to that job, Plaintiff worked in housekeeping. AR 35. She could not work now because of her medication. AR 36.

When questioned by her attorney, Plaintiff testified that she was receiving mental health treatment through Kern County for major depression, which started after her two brothers passed away in 1998 and 2004. AR 37.

Plaintiff testified that she used to hear voices, and now has trouble sleeping, socializing and taking care of her personal hygiene. AR 38, 40. She also has crying spells about once a week and did not think she could keep her mind on something for two hours at a time. AR 39, 41. Plaintiff has attempted suicide six times, all of which were prior to her beginning treatment with Kern County seven years ago. AR 40-41. She does not have a social life and lives with her parents, who support her. AR 39. During the day, Plaintiff stays home and lays down a lot. AR 41. She cooks once a week and does not do housework. AR 42.

Plaintiff also explained that she has trouble standing up because of her weight. AR 41. As for her mental health, she believed she was getting better because group therapy and her medication were helping. AR 42, 48. She was taking Depakote, Abilify, and Prozac. AR 42.

Plaintiff believed that if she had to work eight hours a day, she could not stay awake for the whole time. AR 42. Because of her weight, which has increased as a result of her medication, Plaintiff thought she could stand for about three hours in an eight hour day, walk for about 20 minutes and sit for about four hours. She thought she could lift and carry five to ten pounds. AR 47.

Plaintiff was currently attending group therapy twice a week for one group, and twice a month for another group. She sees the doctor once a month. AR 43.

When questioned by the ALJ, Plaintiff testified that she had a boyfriend and he sometimes picks her up and takes her to lunch "or something." She went on a trip to Orlando with her mother a year ago. AR 44.

Plaintiff's case manager, Kristen Wheelan, also testified. When questioned by the ALJ, she explained that she was an unlicensed mental health counselor who worked under the supervision of a Board Certified psychiatrist. AR 49.

Ms. Wheelan testified that she has known Plaintiff since 2001, and has seen her monthly for the past few years. AR 50. Ms. Wheelan believed that Plaintiff has difficulty remembering instructions and following through, and would have significant problems if she had a job. She would also have problems with stress and interpersonal relationships with employers, co-workers and the public. AR 51. Ms. Wheelan believed that Plaintiff has reached the limit of what she's able to do and explore given her resources. She has achieved many treatment goals, but it would be unrealistic to believe that she could be employed. AR 53. Plaintiff was incapable of managing her own funds because she is very suggestible. AR 53. Ms. Wheelan believed that Plaintiff could live independently with financial support. AR 54-55.

The ALJ next questioned the VE, and asked him to assume a person of Plaintiff's age, education and work experience. This person could lift and carry 20 pounds occasionally, 10 pounds frequently, stand, walk and sit for six hours each, perform simple, repetitive tasks and maintain attention, concentration, persistence and pace. This person could also relate to and interact with others, adapt to usual changes in work settings and adhere to safety rules. The VE testified that this person could perform Plaintiff's past work as a housekeeper. AR 57.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry five to ten pounds, sit for four hours maximum, stand for three hours maximum, and walk for approximately 20 minutes. This person could not maintain attention, concentration, persistence or pace for two hours increments, and would have difficulty relating to and interacting with others, adapting to usual changes in work settings and adhering to safety rules. The VE testified that this person could not perform any work. AR 57.

For the third hypothetical, Plaintiff's attorney asked the VE to assume the same physical parameters in the first hypothetical. However, this person would have difficulty accepting instructions from supervisors and interacting with co-workers based on emotional instability, poor impulse control and poor frustration tolerance. This person would also have difficulty in maintaining regular attendance due to depression, emotional instability and poor coping skills. The VE testified that this person could not perform any work. AR 57-58.

Medical Evidence

The medical records show that Plaintiff received treatment from Kern County Mental Health from 2001 through at least August 2007. She participated in group therapy throughout the time period at issue one to two times a week and also met numerous times with counselors. AR 215-276, 355-386, 429-461.

On April 5, 2005, Plaintiff underwent a psychiatric evaluation by Richard Feldman, M.D., at Kern County Mental Health. Plaintiff complained that she had a lot of anger. Plaintiff's mood was subdued but with occasional lightening. She described some mild auditory and possible visual hallucinations that were not problematic. Her intelligence appeared below average. Dr. Feldman described Plaintiff as "maintained on several medications with some apparent benefit." He diagnosed major depressive disorder, single episode, moderate, some possible psychotic features improved with current treatment; polysubstance dependence disorder in sustained remission; possible intermittent explosive disorder and borderline personality disorder with possible antisocial features. He provided Plaintiff with her current medications and added Depakote. AR 380-382.

On June 23, 2005, Plaintiff saw Greg Hirokawa, PhD., for a comprehensive psychiatric evaluation. Plaintiff complained of depression and having difficulty being around other people. In fact, she stated that she was willing to work if she did not have to work with a lot of people. Dr. Hirokawa noted that she last worked in 2001 but stopped "due to not passing probation." AR 321-322. Plaintiff reported using drugs heavily from age 17 to 24, and last using drugs six years ago. Dr. Hirokawa noted that her ability to sustain attention was poor based upon her inability to repeat numbers and her request to have questions repeated. AR 323.

On mental status examination, Plaintiff's hygiene was fair and her facial expressions appeared sad. Her mood was depressed, and she complained of poor sleep and varied appetite. Anhedonia was present and her affect was tearful. Plaintiff's intellectual functioning appeared below average and Dr. Hirokawa thought she may have a learning disability. Plaintiff's memory appeared intact and her judgment was fair. Dr. Hirokawa did not believe there were any signs of exaggeration of symptoms. AR 323-325.

Dr. Hirokawa diagnosed major depressive disorder with psychotic features and polysubstance dependence. Her reported symptoms appeared consistent with the history and mental status examination. Her prognosis was fair. Dr. Hirokawa believed that Plaintiff could perform simple, repetitive tasks, but would have difficulty with more detailed, complex tasks. She would have difficulty accepting instructions from supervisors and interacting with co-workers based on her emotional instability, poor impulse control and poor frustration tolerance. Plaintiff would likely have problems dealing with change in the work setting and would have difficulty maintaining regular attendance. Dr. Hirokawa believed that Plaintiff was not capable of handling her own funds and recommended ongoing counseling and a psychiatric medication evaluation. AR 325-326.

X-rays of her lumbar spine taken on June 24, 2005, revealed mild facet joint arthritis at L4-L5 and L5-S1. AR 331.

On June 24, 2005, Plaintiff saw Juliane Tran, M.D., for a comprehensive orthopedic evaluation. Plaintiff complained mainly of back pain for approximately 10 years. She reported that she could occasionally perform house chores and cook, but is limited because of back pain. On examination, Plaintiff was mildly obese and was able to walk without assistance, tolerate sitting and get on and off the examination table. Her mobility was good. Dr. Tran described her effort as fair. On palpation, she was slightly tender over the right L5, S1 lumbar level and mild to moderately tender over the right lateral epicondyle of the right elbow and proximal radius of the right arm. Sensation was decreased in the right thumb and somewhat decreased in the left L5 dermatone. Muscle strength was normal, except in the right hand, though it was unclear if this was from pain, decreased effort or true weakness. AR 327-329.

Dr. Tran diagnosed back pain, probably lumbosacral sprain/strain, with mild pain on lumbar range of motion. He noted that the examination findings did not correspond to decreased sensation in her left leg. Dr. Tran also diagnosed status-post right proximal radius fracture with possible decreased sensation over the right medial nerve or right suprafascial radial nerve. Dr. Tran believed that Plaintiff could not lift more than 25 pounds occasionally or more than 10 pounds frequently, temporarily for three months. She may be restricted with activities involving frequent grasping or frequent fingering, also temporarily for three months. Plaintiff had no further restrictions. AR 330.

On July 21, 2005, State Agency physician John T. Bonner completed a Physical Residual Functional Capacity Assessment. He opined that Plaintiff could lift 25 pounds occasionally, 10 pounds frequently, stand and/or walk for a total of six hours in a day and sit for about six hours. She could occasionally stoop and crawl and could frequently climb, balance, kneel and crouch. AR 475-482.

Progress notes from Plaintiff's first group therapy session on July 26, 2005, indicate that Plaintiff seemed to get along with the other new group members and stopped with side-conversation when asked. ...

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