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Howard v. Astrue

February 9, 2010


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



Plaintiff Melissa L. Howard ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI") 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 for SSI on January 29, 2003, alleging disability since March 1, 1994, due to "Mental disorder dyslexic." AR 108-11, 145, 188. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 68-72, 74-79, 80-81. On December 7, 2005, ALJ Stephen Webster held a hearing. AR 489-521. ALJ Webster denied benefits on February 15, 2006. AR 54-63. After Plaintiff requested Appeals Council review, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings. AR 90-91.

On April 23, 2008, ALJ Webster held another hearing. AR 522-49. ALJ Webster denied benefits on May 24, 2008.*fn3 AR 11-21. The Appeals Council denied Plaintiff's request for review on August 15, 2008. AR 7-10.

Hearing Testimony

Following remand by the Appeals Council, ALJ Webster held a hearing on April 23, 2008, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian. AR 524. Vocational expert ("VE") Cheryl Chandler also appeared and testified. AR 524, 545-47.

Plaintiff was born in 1967. Her alleged onset date is March 1, 1993. AR 526. She is 5'4" and weighs 185. She is right handed. She is not married and does not have children. She lives in an apartment with a friend. She does not have a driver's license and has never had one. If she needs to go somewhere, she takes the bus or Handy Ride. AR 527. She can take care of her personal grooming needs without help. She sometimes keeps up with the work around her place, like laundry, cleaning and cooking. She watches television for about an hour or two a day. She cannot read, does not visit with friends or family and does not go to movies. AR 527-28. She goes to the church "down the road." AR 529.

Plaintiff testified that she went to fifth grade. She went to continuation school for a year. She did not get a GED. AR 529. She does not have any trade or vocational training. AR 529. She goes to mental health classes. AR 530. She has never been in the military service. As a teenager, she went to jail for a couple of days. AR 530.

Plaintiff has not worked since October 27, 2003. AR 530. She gets general relief and food stamps. AR 530-31.

Plaintiff testified that she had a head injury. She has emphysema and depression. She also hears voices and is paranoid. AR 531. She does not like to get on a bus or be with people. She goes to County Mental Health every couple of months and to mental health class every Monday. AR 532. She sees a doctor every two months and goes to classes once a week. AR 532-33.

Plaintiff has physical pain in her back, head and jaw. Medication helps relieve the pain a little bit and she gets shots once a week. AR 533. She has problems sitting. She lies down and does not sit "very long." AR 533-34. She can walk to the corner. It takes about five minutes. AR 534. The heaviest thing she can lift is her backpack. AR 534.

At the hearing, Plaintiff wore a brace for her back on the outside of her clothes. AR 534-35. "Dr. Orem" prescribed it for her. AR 535. When she went to the hospital, the doctor said she sprained her neck and told her to wear the brace again. AR 535. Plaintiff also had a brace on her right hand for her carpal tunnel and her arthritis. AR 535.

Plaintiff testified that she was depressed. When she is depressed, she feels sad and scared. She does not feel good and it confuses her. AR 535. She hears voices every day. They tell her to kill herself. She has been given medication, but it has not been helping her. AR 535-36.

Plaintiff testified that she has had problems with the use of drugs or alcohol. She had a relapse about four years before the hearing. AR 536. She was drinking because her mom died. Then she got in trouble. She has not had any problems since then. AR 536.

When Plaintiff hears voices, it affects her ability to function. They talk all at once in different languages. AR 536-37. It lasts all the time, but "mostly when" she is around a lot of people. AR 537. She tries to block the voices out. It helps. She takes medicine that helps her a little bit, but the voices come back. The voices make her feel "[s]ick, like demons." AR 537. They scare her. She does not like to be around other people. She intentionally isolates herself during the day. She just goes to her class or to the store and stays home the rest of the time. She is by herself. She has a friend who lives with her. He stays in his own room. He helps her get around. AR 537. She is by herself a minimum of 12 hours a day. AR 538. It does not help her to talk to the doctor. She takes anxiety medication and medication for hearing voices. It helps a little bit, but she gets immune to it and has to have it changed. AR 538.

Plaintiff testified that she does not focus her attention or concentrate. She "can't stay with nothing." AR 538. She cannot follow a 30-minute television program. AR 538. She will concentrate on a program for five minutes and then take a five-minute break. AR 538-39.

When Plaintiff is feeling sad, she cries. She cries every day, but does not know why. AR 539. The crying spells last 15-20 minutes. She cries about twice a day. AR 539-540.

At home, she cleans her dishes and cooks her breakfast. She does not have anything that she likes to do for fun. She does not have any pets. She has a neighbor that she talks to "[o]nce in a while." AR 540. She does not get together with her neighbors. She rests and lies down most of the day. AR 541.

When she feels depressed, she has suicidal thoughts every couple of days. She tells her doctor about it. Her doctor does not give her advice. She has tried to kill herself. AR 541. She jumped off a roof years ago. She went to the hospital and they kept her overnight. She had a pitchfork in her leg and in her side. About four years ago, she was kept overnight in a psychiatric unit in Texas. She also was kept overnight in Sacramento. AR 542.

She does not have any other symptoms associated with her depression except thinking she is going crazy. AR 542-43. When she gets paranoid, she is scared to be around people. They look at her a lot. She is able to ride a bus with her friend. She does not ride it alone. She does not have any other areas where she is afraid to be around people. She goes shopping on the 8th of every month. AR 543. She goes to the grocery store, but has difficulty being in it. She is in and out because she does not like it. She hears lots of people. She has a difficult time thinking about her sister and older brothers. She has difficulty being in church and goes outside a lot. She has not been going because it is getting too hard. AR 544.

VE Cheryl Chandler testified in response to hypothetical questions. AR 545. For the first hypothetical, the ALJ asked the VE to assume a person of the claimant's age, education and work history with no established exertional or postural limits, but limited to simple routine and repetitive work. The VE testified that there would be jobs in the regional or national economy that such a person could perform. The hypothetical was consistent with an unskilled RFC across all exertional levels. AR 545. The VE testified that at the light level of exertion, there are 26,000 custodial jobs in the state of California. There are roughly nine to ten times that number nationally. AR 546. In the classification of cleaners, specifically laundry worker, there are 57,500 jobs. AR 546. At the light level, there are 13,000 ground maintenance worker jobs. AR 546.

For the second hypothetical, the ALJ asked the VE to assume the same factors as in the first hypothetical, but also to assume the person had occasional problems maintaining attention, concentration or pace. AR 546-47. The VE testified that with an understanding of occasional as affecting one-third of the day, there would be no jobs in the regional or national economy that this person could perform. AR 547.

For the third hypothetical, Plaintiff's attorney asked the VE to assume the same elements of the first hypothetical, but to add an additional limitation of moderate problems with concentration, attention and pace. AR 547. The VE testified that there are no jobs at the occasional level, so going up a level would not improve her odds. AR 457.

Medical Record

On March 23, 2003, David C. Richwerger, Ed.D., a licensed psychologist, completed a consultative psychological evaluation. AR 233-39. Plaintiff reported that she had a diagnostic organic mental disorder, did not trust people and sometimes heard voices. AR 233. She stated that she was hospitalized at Sacramento County Mental Health Treatment Center, but did not remember the reason. She was using a significant amount of crank during that period. AR 234. Plaintiff also indicated that she had difficulty concentrating and difficulty with her memory. She continued to use crank whenever she could get it. She felt depressed, but denied suicidal or homicidal ideation. She drank about 40 ounces of beer daily and smoked one pack of cigarettes per day. AR 234. Plaintiff reported living with her family. She did some household chores and would go walking or running. She took care of her own personal needs and handled her own financial affairs. AR 235.

On mental status examination, Plaintiff appeared agitated and antsy. She was oriented to person and place, but not time. AR 235. Her thought processes were rational, but she was vague and dismissive of questions. AR 236. Dr. Richwerger opined that Plaintiff's performance "was consistent with a low level of effort throughout much of the evaluation." AR 236. Her reality contact was within normal limits. There was no evidence of hallucinations, delusions, bizarre behavior or response to internal stimuli. AR 236.

Dr. Richwerger administered the Bender-Gestalt, Trails A and B, the Wechsler Adult Intelligence Scale, III (WAIS-III) and the Wechsler Memory Scales, III (WSM-III). He opined that Plaintiff's scores on the WAIS-III and WSM-III were not valid because Plaintiff's performance was consistent with a low level of effort. AR 237-38. Dr. Richwerger diagnosed Plaintiff with malingering, rule out amphetamine intoxication (denied by patient), active amphetamine dependence and learning disorder by given history. AR 238. Dr. Richwerger also noted antisocial personality traits. He opined that Plaintiff was not capable of managing her own funds and appeared to have significant drug-related problems. AR 238.

On April 7, 2003, a state agency consultant completed a Psychiatric Review Technique form. AR 242-55. The consultant opined that Plaintiff had medically determinable impairments that did not precisely satisfy the diagnostic criteria of an affective disorder and a personality disorder. AR 245, 249. She also had a substance addiction disorder. AR 250. The consultant further opined that Plaintiff had moderate restriction of her activities of daily living and marked difficulties in maintaining social functioning, concentration, persistence or pace. There was insufficient evidence of episodes of decompensation. AR 252.

On April 7, 2003, a state agency medical consultant also completed a Mental Residual Functional Capacity Assessment form. AR 256-59. The consultant opined that Plaintiff was moderately limited in the ability to understand and remember detailed instructions, in the ability to carry out detailed instructions, in the ability to interact appropriately with the general public, in the ability to accept instructions and respond appropriately to criticism from supervisors and in the ability to set realistic goals or make plans independently of others. AR 256-57.

On January 27, 2004, Plaintiff sought emergency room treatment at Sutter General Hospital for complaints of a severe headache. AR 262-70. She was diagnosed with a headache and drug seeking behavior. AR 263.

On March 26, 2004, Michael Joyce, M.D., completed a consultative psychiatric examination of Plaintiff. AR 282-86. Plaintiff's chief complaint was "[n]ot having a place." AR 282. Plaintiff reported that she began using intravenous methamphetamine at the age of 8. She began using alcohol as a preteen and has been hooked on prescription narcotics. AR 282. Plaintiff denied any manic episodes or psychotic symptoms off drugs. AR 283. On mental status examination, Plaintiff was slightly psychomotor accelerated and restless. Her mood was euthymic and her affect was reactive. The possibility of intoxication with stimulants could not be completely excluded. Plaintiff maintained her focus and concentration "for the most part" and there was nothing "to suggest imminent suicidality or homicidality." AR 284.

Dr. Joyce diagnosed methamphetamine addiction (still active), alcohol abuse with rule out dependence, history of prescription narcotic dependence and remote history of cocaine abuse. Plaintiff had no evidence for a primary mood, thought, or anxiety disorder. AR 285. Dr. Joyce assigned Plaintiff a Global Assessment of Functioning ("GAF") of 65. She was unable to identify coins, make simple change, or manage simple funds. She could follow simple and complex instructions. She maintained her concentration and attention throughout the 27-minute interview. She appeared capable of maintaining attendance and performing within a schedule with punctuality and tolerance. She was able to work in coordination with Dr. Joyce without distractability, anxiety or somatic behavior. Dr. Joyce opined that with sobriety, Plaintiff appeared capable of completing a workday and workweek without interruption from a definitive AXIS I condition. She was able to interact with others appropriately, ask simple questions, request assistance when needed and adhere to socially appropriate behavior that did not distract others. She was capable of identifying hazards and taking appropriate precautions. AR 286. Dr. Joyce summarized that other than her drug abuse, Plaintiff appeared generally capable of responding appropriately to supervision, co-workers, or the usual work situation including changes in a routine setting. AR 286. Plaintiff's prognosis was very guarded given her recent methamphetamine and alcohol abuse. AR 286.

On April 14, 2004, Ray Willey, Adult Ed Teacher from the San Juan Unified School District, administered Plaintiff the RAVEN and the ABLE-Level I assessments. On the RAVEN, which measures abstract and analytical reasoning and orderly thinking, Plaintiff ranked at less than the 3rd percentile (below average) when compared to a 36-year-old age group. On the ABLE, which measures basic academic skills, Plaintiff scored at the seventh grade level in vocabulary, third grade-fifth month in reading comprehension, kindergarten in spelling, kindergarten-ninth month in number operations, fifth grade in problem solving and third grade-fourth month in total mathematics. Mr. Willey noted that Plaintiff was very nervous during the assessments. She could not do any of the spelling and he read the reading comprehension statements to her. AR 170.

On April 16, 2004, Charlotte Bible, M.D., a state agency physician, completed a Psychiatric Review Technique form. AR 287-300. Dr. Bible assessed Plaintiff with a substance addiction disorder. AR 295. Dr. Bible opined that Plaintiff had mild restriction of her activities of daily living and mild difficulties in maintaining social functioning. Plaintiff also had moderate difficulties in maintaining concentration, persistence or pace. AR 207. The assessment was affirmed as written on August 7, 2004. AR 287.

On April 16, 2004, Dr. Bible also completed a Mental Residual Functional Capacity Assessment form. AR 301-03. Dr. Bible opined that Plaintiff was moderately limited in the ability to understand, remember and carry out detailed instructions. AR 301.

On May 13, 2004, Plaintiff sought treatment from Sacramento County Mental Health. AR 308. She had a diagnosis of Psychosis NOS, cocaine dependence and amphetamine dependence. She reportedly had been clean six weeks and was depressed and ...

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