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Reyes v. Astrue

September 30, 2009

MARGARITA REYES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly considered the treat psychiatrist's opinion;

2. Whether the ALJ properly developed the record;

3. Whether the ALJ made proper credibility findings; and

4. Whether the ALJ properly considered the type, dosage, effectiveness and side effects of Plaintiff's medications.

(JS at 2.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I. THE ALJ PROPERLY CONSIDERED THE OPINION OF THE TREATING PSYCHOLOGIST, AND DID NOT HAVE DUTY TO FURTHER DEVELOP THE RECORD

Plaintiff's first issue concerns whether the ALJ properly considered the opinion of the treating psychologist, Dr. Robertson, who completed a Mental Disorder Questionnaire Form ("Questionnaire") (AR 191-195).*fn1

Plaintiff's second issue concerns whether or not the ALJ had a duty to develop the record by obtaining the treatment records for 2001 through 2005 of Dr. Robertson.

Plaintiff's work history includes an incident which is the apparent genesis for the development of subsequent mental health issues. Essentially, while working in a store as a teller on September 1, 2001, she was the victim of an armed robbery, which included threats to kill her, being hit on the back of the head with a gun, being pushed to the ground, and then being present while the robbers fired six shots into a door. (AR 229.) Plaintiff received treatment from Dr. Robertson beginning in 2001. (AR 30.) Dr. Robertson continued to treat her, and completed the Questionnaire. Plaintiff has quoted from Dr. Robertson's Questionnaire in the JS (see JS at 3-4), and Dr. Robertson extensively described Plaintiff's descriptions of suicidal ideation, anxiety, fearfulness, pressured speech, depressed affect, some loose associations, hopeless distinct anhedonia, and lack of any pleasure in life. (AR 192.) Plaintiff complained of poor memory and poor concentration, and that she becomes overwhelmed with anxiety, panic attacks and poor concentration such that her vocational rehabilitation had to be put on hold by her attorney. (Id.) Dr. Robertson noted Plaintiff's description of extremely limited activities of daily living ("ADL"), such that she will not leave the house except if her husband comes with her. (AR 193.) Dr. Robertson reported Plaintiff's description of her limited social functioning, and the psychologist noted, regarding Plaintiff's concentration and ability to complete taskss, that Plaintiff found it extremely difficult to understand a vocational test which Dr. Robertson administered. Dr. Robertson noted that Plaintiff could not follow simple written and oral instructions which were part of the test. (AR 194.) Dr. Robertson also reported that Plaintiff was taking dosages of psychotropic medications. (AR 195.) Dr. Robertson reported "very little improvement" during the five years she had seen Plaintiff during treatment, and assessed a very poor to guarded prognosis. (AR 195.)

The record contains additional and significant records of mental health examinations and treatment. Thus, Plaintiff was referred to Dr. Ho for a complete psychiatric evaluation ("CE") at the request of the Department of Social Services, on October 11, 2006. (AR 187-190.) Dr. Ho reported that Plaintiff was a "questionably reliable historian," and that she possibly exaggerated some of her answers on the mental status exam. (AR 190.) He indicated a guarded prognosis, but indicated that Plaintiff was able to make simple social, occupational and personal adjustments. He diagnosed, on Axis I, anxiety disorder, n.o.s., ruling out post-traumatic stress disorder. (AR 189.)

The ALJ also referenced the opinion of Plaintiff's treating physician, Dr. Slomin (AR 11, 228-243).*fn2 Dr. Slomin rendered his impression that Plaintiff should avoid stresses at work and should not work handling cash. (AR 240.) Dr. Slomin also completed a Work Function Impairment Form, in which he made the following assessments:

WORK FUNCTION LEVEL OF IMPAIRMENT

1. Ability to comprehend and follow instructions. Slight

2. Ability to perform simple and repetitive tasks . None

3. Ability to maintain a work pace appropriate to a ...


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