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Carr v. Astrue

September 22, 2009


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



Plaintiff Brenda Carr ("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 December 7, 2004, alleging disability since December 7, 2004, due to mental illness. AR 88, 161-166. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 45, 51-55, 58-62. On June 12, 2007, ALJ Stephen W. Webster held a hearing. AR 331-353. He denied benefits on July 18, 2007. AR 19-30. The Appeals Council denied review on November 19, 2007. AR 8-10.

Hearing Testimony

ALJ Webster held a hearing on June 12, 2007, in Bakersfield, California. Plaintiff appeared with her attorney, Geoffrey Hayden. Vocational expert ("VE") Cheryl Chandler and witness George Carr also appeared and testified. AR 331.

Plaintiff testified that she was born in 1958. She is married and lives with her husband and two of her four children. She weighed 214 pounds and was 5'3" tall. AR 334-335. Plaintiff did not have a driver's license after she lost it five years ago. AR 336. Plaintiff is able to shower and put her clothes on, but cannot fix her hair. Her family helps her with chores and yard work. AR 336. During the day, Plaintiff alternates between watching cartoons with her children and sleeping. She sometimes goes to church. AR 337.

Plaintiff testified that she graduated high school, though she could not remember if she was in special education classes. AR 338, 345. She has been in jail several times, for about five years total. AR 338. When asked about her physical problems, Plaintiff responded that she had "sugar," (diabetes), high blood pressure and high cholesterol. AR 340. Plaintiff also complained of pain in her chest, hands and ankles. AR 342. She has seen a psychologist who put her on medicine for seeing things and hearing voices. She also gets mad very easily. AR 340. Plaintiff currently sees a psychologist twice a month. AR 342.

Plaintiff believed that she could sit on and off for about two hours, stand for 30 minutes to an hour and walk to the front of her yard. AR 343. Her biggest skillet was the heaviest thing she could lift. AR 343. Plaintiff has trouble with concentration and memory and said she cannot remember anything. AR 347. She sometimes wanders away from home. AR 351.

When asked to explain her psychological problems, Plaintiff testified that she sometimes hears voices and sees things. She said she gets mad at the people that she thinks are talking to her and "cuss[es]" them out, which she said is why she has no friends. AR 343. She sees things like snakes, spiders and fires and feels like people are "messing with" her. AR 347. Plaintiff had a long-time problem with drugs and alcohol, including PCP and crack. AR 344. She has attempted suicide two or three times. AR 348. She was also hit in the head with a brick by "a boyfriend or something." AR 350.

Plaintiff testified that she could not read or write and also had problems with her stomach. AR 345. Her feet, ankles and knees swell and she gets sores on her feet. AR 346. She also suffers from headaches and has a sharp pain in her chest and arm. AR 346. Plaintiff explained that some of her medications make her sick and cause her to gain weight. She lays down everyday. AR 347.

Plaintiff's husband, George Carr, also testified. He explained that Plaintiff sometimes talks to herself and gets angry a lot. When she gets angry, she starts seeing things. AR 352-353. Her medications do not take away her hallucinations. AR 353. He also testified that she is sometimes incontinent and one time, she thought it was funny. When she wanders off, he goes and gets her a few blocks down the street. Plaintiff does not currently use any illegal drugs or drink alcohol. AR 354. The last time she was in jail, she was serving time for driving under the influence of alcohol. AR 354. She does very little housework and has problems with her memory. AR 355.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift 20 pounds occasionally, 10 pounds frequently, and sit, stand or walk for six hours out of an eight hour day. This person would be limited to simple, routine and repetitive work. The VE testified that this person could perform work consistent with a light residual functional capacity ("RFC"), including 800,000 positions in California. Such positions include hand packaging jobs, car wash attendant and production jobs. AR 356-357.

For the second hypothetical, the ALJ asked the VE to assume that this same person would have occasional problems maintaining attention, concentration and pace. The VE testified that this person would not perform any work. AR 357.

Medical Evidence

On March 31, 2003, Plaintiff saw Kimball Hawkins, Ph.D., for a psychological evaluation. Plaintiff reported that she could not read or write. There was "no report of any drug or alcohol use." Plaintiff complained that she was seeing things, having trouble sleeping, having nightmares and crying for no reason. Dr. Hawkins referenced a January 2003 report from the California Department of Corrections that indicated that Plaintiff was diagnosed with a history of amphetamine-induced psychotic disorder, polysubstance dependence and antisocial personality disorder. He also cites a prior assessment he performed in 1999, when he questioned whether Plaintiff performed to the best of her ability. AR 184-185.

On mental status examination, Plaintiff was roughly dressed and groomed and lacked initiative. She demonstrated limited eye contact and behaved in a very incompetent manner (rocking, pulling her shirt up to her chest to expose her stomach, and getting into things unless stopped). Plaintiff was non-responsive to questions and requests, did not follow directions and was inconsistently responsive. She did not know her age, address, phone number or current date and could not identify a pencil or colors. Dr. Hawkins believed that Plaintiff was malingering and noted that she was uncooperative with the malingering tests. AR 185.

Dr. Hawkins concluded that the testing attempts and interview demonstrated that Plaintiff was malingering. He noted that she may be in need of ongoing medical follow up for the medications she takes. Based on her diagnosis of malingering, ...

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