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Saesee v. Astrue

February 19, 2010

NAMOR SAESEE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL OF SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

DECISION AND ORDER DENYING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (DOC. 1)

ORDER DIRECTING THE ENTRY JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF NAMOR SAESEE

Plaintiff is proceeding in forma pauperis and with counsel with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) finding that Plaintiff, who had previously been determined to have been disabled as of August 26, 2002, was no longer disabled as of April 1, 2005. (A.R. 14-20.) The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the order of Judge Oliver W. Wanger filed on October 30, 2008, the matter has been assigned to the Magistrate Judge to conduct all further proceedings in this case, including entry of final judgment.

The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) Stephen W. Webster, dated June 8, 2007 (A.R. 14-20), rendered after a hearing held on January 10, 2007, at which Plaintiff appeared and testified with the assistance of a Lahu interpreter and an attorney (A.R. 14). Plaintiff's husband and Jose L. Chaparro, a vocational expert (VE), also testified. (Id.)

The Appeals Council denied Plaintiff's request for review of the ALJ's decision on November 15, 2007 (A.R. 4-6), and thereafter Plaintiff filed the complaint in this Court on January 23, 2008. Plaintiff's brief was filed on July 31, 2009, and Defendant's cross-motion for summary judgment was filed on August 26, 2009. Plaintiff's reply brief was filed on September 28, 2009. The matter has been submitted without oral argument to the Magistrate Judge.

I. Jurisdiction

This Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g), which provide that an applicant suffering an adverse final determination of the Commissioner of Social Security with respect to disability or SSI benefits after a hearing may obtain judicial review by initiating a civil action in the district court within sixty days of the mailing of the notice of decision. Plaintiff timely filed her complaint on January 23, 2008. 42 U.S.C. § 405(g), (h); 20 C.F.R. §§ 422.210(c), 404.981, 404.901; Fed. R. Civ. P. 6(a).

II. Standard and Scope of Review

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).

In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).

III. Continuing Disability

A. Legal Standards

In order initially to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

Here, the applicant was initially found to have been disabled; the Commissioner thereafter determined that the disability ceased.

With respect to determining whether an individual's disability continues, the regulations provide for a seven-step, sequential analysis. 20 C.F.R. § 416.994(b)(5)*fn1 . First, it must be determined if the person has an impairment or combination thereof which meets or equals the severity of an impairment listed in appendix 1 of subpart P of part 404 (the listings). 20 C.F.R. § 416.994(b)(5)(i). Second, if not, the adjudicator will consider whether there has been medical improvement, as defined in § 416.994(b)(1)(i). § 416.994(b)(5)(ii). Third, if there has been medical improvement as shown by a decrease in medical severity, then it must further be determined whether it is related to the person's ability to do work, that is, whether there as been an increase in the person's residual functional capacity (RFC) based on the impairments(s) present at the time of the most recent favorable medical determination. § 416.994(b)(5)(iii). Fourth, if there has been no medical improvement, or if the medical improvement is not related to the person's ability to do work, it must be determined if any of the exceptions set forth in § 416.994(b)(3) or (4) apply; if no exceptions apply, then the person's disability will continue; if an exception from the second group of exceptions to medical improvement applies, then the disability will be found to have ended. § 416.994(b)(5)(iv). Fifth, if medical improvement is related to the person's ability to work or if one of the first group of exceptions to medical improvement applies, then it must be determined if all the person's current impairments, in combination, are severe (i.e., whether they significantly limit the person's physical or mental abilities to do basic work activities); if they are not severe, then the person will be found no longer disabled. 20 C.F.R. § 416.994(b)(5)(v). Sixth, if the person's impairments are severe, then it must be determined whether the person has the RFC to perform any work he or she has done in the past; if the person can perform past work, then the person's disability will be found to have ended. § 416.994(b)(5)(vi). Seventh, if the person does not have the RFC to perform past work, it must be determined if considering the person's RFC, age, education, and past work experience, the person is able to do other work; if so, then the disability will be found to have ended; if not, then the disability will continue. § 416.994(b)(5)(vii).

B. The ALJ's Findings

The ALJ found that the most recent favorable medical decision finding Plaintiff disabled was dated March 3, 2003, when it had been determined that Plaintiff had been disabled as of August 26, 2002; this was the "comparison point decision," or CPD. (A.R. 14-15.) At the time of the CPD, Plaintiff had medically determinable impairments of thrombocytopenia, depression, and post-traumatic stress disorder that resulted in a restriction to light work and inability to perform basic work activities on a sustained basis, difficulty relating appropriately to others, and difficulty adapting appropriately to changes in the work setting. (A.R. 15.) Plaintiff did not develop any additional impairment after the CPD through April 1, 2005; further, Plaintiff's thrombocytopenia was no longer a severe impairment. (A.R. 16.) As of April 1, 2005, medical improvement occurred, and Plaintiff did not have an impairment or combination thereof that met or medically equaled the severity of a listed impairment; further, Plaintiff on that date had the RFC to perform simple, routine, and repetitive work at all exertional levels. (A.R. 17.) Plaintiff's medical improvement was related to the ability to work because it resulted in an increase in her RFC; although her impairments were severe, Plaintiff, who had no past relevant work, was a younger individual aged eighteen through forty-four, and was illiterate and unable to communicate in English, was nevertheless able to perform a significant number of jobs in the national economy. As of April 1, 2005, Plaintiff was able to perform unskilled jobs, including jobs to which the VE specifically testified, including commercial cleaner, poultry offal icer, and brush clearing laborer, which were consistently represented in the Dictionary of Occupational Titles (DOT). (A.R. 19-20.)

C. Plaintiff's Contentions

Plaintiff argues that the ALJ wrongly found that Plaintiff's thrombocytopenia was no longer severe, that no new impairments had arisen, that Plaintiff's impairments did not meet or equal a listed impairment, that Plaintiff had not performed any past relevant work, that there had been medical improvement, and that Plaintiff had the RFC to perform work that existed in significant numbers in the national economy. Plaintiff argues that the ALJ's decision was based on improper legal standards and was not supported by substantial evidence. (Brief. p. 8.)

Plaintiff specifically contends that the ALJ failed to state specific, legitimate reasons for rejecting the assessments of treating physician Dr. Kuo, and that the ALJ's conclusions as to Plaintiff's condition were not supported by the opinions of the consulting examiner and of Plaintiff's surgeon's after Plaintiff's operation. The ALJ failed to state legally sufficient reasons for rejecting Plaintiff's subjective claims and the testimony of Plaintiff's husband and of a third party witness. The ALJ erred by failing to perform a function-by-function RFC assessment and failed to consider Plaintiff's severe anemia; the ALJ failed properly to weigh the opinions of M.F.T. Sharon Meckenstock, Dr. Barnett, and the treating psychiatrists; and the ALJ erred in not recontacting Dr. Kuo and Dr. Lessenger.

IV. Medical Record

Plaintiff was treated at the Tulare Community Health Clinic from May 2001 through the November 2006. (A.R. 174-318, 401-456.) Progress notes from 2001-2002 and 2004-2005 reflect complaints of dizziness, poor sleep, headaches, and neck and back pain; mentally, Plaintiff reported depression and anxiety without being suicidal that was treated initially with Remeron, which helped a little, and later with Nortriptyline. (A.R. 206, 219-20, 225, 240, 255-57, 268, 271, 276-77, 280-81, 297, 303, 308, 310-15, 429.) There were few objective findings noted by Dr. Kuo or the other examiners aside from mild epigastric findings and slight pallor. (A.R. 314, 225.)

In November 2002, non-examining state agency medical consultant Alfred Torre, M.D., opined that as a result of her thrombocytopenia, Plaintiff could lift and carry twenty pounds occasionally, ten pounds frequently, and stand and/or walk and sit about six hours in an eight-hour workday. (A.R. 381-89.)

On January 30, 2003, consulting, examining physician Michael S. Barnett, M.D., L.T.D., a psychiatrist, performed a psychiatric evaluation of Plaintiff with an interpreter after reviewing a previous consulting opinion from 1998. (A.R. 166-68.) Plaintiff did not know her age or the length of her marriage, although she knew she had four daughters at home; she ran away from the Communists in Laos, where her brother was murdered by soldiers, and she saw a lot of people shot and killed. She had never attended school. She complained of crying, not sleeping well, being dizzy and depressed, feeling irritable and withdrawn, and having decreased appetite, low energy, and poor concentration. She heard things, including voices daily telling her that they wanted to kill her and that she was stupid. She felt that people watched her and wanted to hurt and kill her. At night there was an evil force or "demons" who wanted to get her; when attempting to sleep, she saw her dead parents trying to stab her. She would awaken mid-cycle and be unable to go back to sleep. When angry she had thought of killing herself, but she had never attempted suicide. (A.R. 166.) She had begun treatment at Visalia Mental Health in 1993, but she stopped going. She reported that she needed assistance dressing and bathing herself and had been isolated for a long time. She was casually and sloppily dressed, appeared depressed, tearful, flushed, and "chronically mentally ill," exhibited unspecified psychotic symptoms, had no involuntary movements, and had a flat affect and meek demeanor. (A.R. 167.) She did not know the date, month, or year, could not perform serial threes or simple calculations, repeated two digits forward and zero digits backward, recalled zero out of five objects in five minutes, could not describe either the similarity or difference between an apple and an orange, could not interpret proverbs, and did not know what she would do in a fire in a theater or if she found a stamped, addressed envelope on the sidewalk. (A.R. 167.)

Dr. Barnett diagnosed PTSD, chronic, schizo-affective disorder, depressed; no diagnosis on Axis II; and a global assessment of functioning (GAF) of 48. Dr. Barnett opined that Plaintiff was functioning at a very low level and needed adequate doses of antidepressant and neuroleptic medications to control her symptoms; given her lack of education and poor adaptation to living in this country, it was doubtful that she would be able to work even with appropriate treatment. Because of her low level of functioning, depressive and psychotic symptoms, and social isolation, it was unlikely that she would be able to work regularly or perform work activities on a consistent basis; lack of spoken English would cause great difficulty in being able to understand, remember, and carry out simple, one-step or two-step job instructions; she would be unable to engage in work activities without special or additional supervision; her symptoms would interfere with the completion of a normal work day or week; and she would be incapable of interacting with supervisors, co-workers, or the public or of coping with the stressors encountered in a normally competitive workplace. The prognosis was poor, due in part to lack of education and poor acculteration, although treatment would be beneficial. (A.R. 167-68.)

In February 2003, state agency consultant Glenn Ikawa, M.D., concluded that due to schizo-affective disorder, depressed type, and PTSD, Plaintiff had moderate restriction of activities of daily living, and moderate difficulties in maintaining social functioning and maintaining concentration, persistence, or pace; she was moderately limited in the ability to understand, remember, and carry out short and simple instructions, perform activities within a schedule, maintain regular attendance, complete a normal workday and workweek without interruptions from symptoms, be punctual, sustain an ordinary routine without special supervision, work in coordination with or proximity to others without being distracted, make simple, work-related decisions, interact appropriately with the general public, supervisors, co-workers, and peers, adapt to changes in the work setting, travel, and set goals or make plans. Plaintiff was markedly limited in the ability to understand, remember, and carry out detailed instructions. Dr. Ikawa concluded that she was unable to perform basic work activities on a sustained basis. (A.R. 360-79.)

With respect to Plaintiff's physical impairments, Plaintiff's blood platelet count was low in November 2000 (31), and contemporaneous treating records of Dr. Nauman Qureshi noted mild or borderline anemia. (A.R. 316, 302, 300.) Plaintiff was referred to Dr. Kuo. (A.R. 298.) In December 2001, Plaintiff's platelet count (25) and iron (14) were low. (A.R. 294.) Hematopathalogical reports of Dr. Gary A. Walter, M.D., and Leonard R. Miller, M.D., in October 2001 revealed mild to moderate microcytic/hypochromic anemia, an iron deficiency type of the disease, and marked thrombrocytopenia of speculative etiology. (A.R. 293, 287.) In April and July 2002, platelet count (35, 21) and iron (16, 19) were still low. (A.R. 272-74, 279.)

Dr. Samuel Kuo, M.D., performed a bone marrow aspiration and biopsy in August 2002, and Dr. Gary A. Walter, M.D., diagnosed normocellular to mildly hypercellular bone marrow exhibiting mild megaloblastic changes of the erythroid series, increased megakaryocytes with immature forms, adequate stainable iron, and negative for bone marrow fibrosis or metastatic disease. There was adequate bone marrow response to the persistent thrombocytopenia. (A.R. 256-57, 260-62.) In September and October 2002, platelet counts (24, 21) were low. (A.R. 251, 254.)

A gap exists in the Tulare Community Health Clinic notes after October 2002 until February 2004. (A.R. 244-45.) Platelet counts were low in February 2004 (26), April 2004 (17), May 2004 (19), July 2004 (13), August 2004 (20), November 2004 (25), December 2004 (13), February 2005 (17), April 2005 (19, 31, 43), and May 2005 (27, 90, 54, 12). (A.R. 196, 201-03, 207, 209, 212, 217, 223-24, 232, 237, 239, 243- 244). Ferritin was within the normal range in December 2004. (A.R. 230-31.)

Plaintiff had been prescribed Prednisone in May 2004 and had been taking it "off and on"; she had been partially responding. (A.R. 214, 218, 240.) In December 2004, next to an assessment of "ITP," treater's notes reflect a question as to whether or not Plaintiff was non-compliant. (A.R. 228.) While taking Prednisone in January 2005, Plaintiff's legs swelled; the dose was adjusted upward on March 5, 2005, while Plaintiff was awaiting surgery. (A.R. 226, 220.) Treating notes of March 17, 2005, reflect that Plaintiff had stopped taking Prednisone because of "soreness on her legs" and an inability to tolerate it. (A.R. 218-19.) A note from April 7, 2005, clarifies that Plaintiff "generally stopped the medication by herself." (A.R. 214.) It would be necessary for her to have high dose intravenous immungloburin therapy before surgery. (A.R. 214.)

In March 2005, Dr. Kuo diagnosed thrombocytopenia, autoimmune disease, esophageal reflux disease, and depression, and noted that Plaintiff stopped taking Prednisone by herself. A recent lupus panel showed borderline increase of ANA, elevations of SSA antibodies, elevated thyroid antibodies, and slightly low C at 80. A general surgery evaluation was anticipated. (A.R. 218, 214.) In April 2005, Dr. Kuo noted that Plaintiff had elevated SSA, "thyroid parasites oral antibodies," immunothyromobcytopenia (ITP), and possible autoimmune disease.

Consulting, examining psychologist Leslie H. Lessenger, Ph.D., performed a psychological evaluation of Plaintiff on March 24, 2005, with the assistance of a Lahu interpreter. (A.R. 169-71.) Dr. Lessenger reviewed records, took a diagnostic history, performed a mental status exam and interview, and administered the Test of Nonverbal Intelligence-3 (TONI-3), the Rey 15 Item Memory Test, and the Test of Memory Malingering (TOMM). Plaintiff reported that her problems had begun two years earlier; she had back pain, trouble breathing, and abdominal pains. She was frequently depressed, which caused her to take a pill and a nap; she had difficulty sleeping without medication, had frequent nightmares and daytime intrusive thoughts about her dead father, and she ate poorly because of abdominal pain. Sometimes her husband had to bathe her because dizziness caused her to fear falling; her activities were lying in bed or on the sofa. Plaintiff was casually dressed, hygiene was adequate, she avoided eye contact with the evaluator and rarely looked at the interpreter, and mood was depressed and blunted. Plaintiff was unable to give the month or the name of her town. Plaintiff reported having four children but could not give their ages or the name of their schools, although with prompting she identified one child as a teenager and reported that all the children were over five years of age. Motivation was questionable. She reported hearing vague voices that "aren't there," but she could not understand what they said. On the TONI-3, Plaintiff was unable to answer any of the first five items correctly despite two reviews of the sample items. Dr. Lessenger concluded that the Rey memory test might not be an appropriate assessment for Plaintiff, who had never been to school. On the TOMM, Plaintiff was unable correctly to identify the sample items despite two trials, scores were both below chance, and one trial clearly suggested that Plaintiff knew the correct answer and deliberately chose the incorrect answer. Plaintiff's performance was consistent with malingering. The diagnostic impression was malingering, history of PTSD, and depression; diagnosis on Axis II was deferred; the GAF was unknown. Dr. Lessenger concluded that Plaintiff, who was thirty-eight years old, was clearly malingering cognitive deficits; thus, it was not possible to assess her cognitive and psychological functioning with any confidence. (A.R. 170-71.)

On April 8, 2005, consulting, examining physician Vinay K. Buttan, M.D., who was certified in internal medicine, evaluated Plaintiff for complaints of dizziness and weakness, depression, anxiety, and not feeling like working. (A.R. 172-73.) Plaintiff was four feet four inches tall, 119 pounds, and the exam produced normal findings. The impression was pancytopenia, etiology undetermined, depression, and anxiety. He opined that the weakness and dizziness could be secondary to pancytopenia, especially anemia, but he did not have reports of her hemoglobin and hematocrit values. On the basis of history and exam, Dr. Buttan concluded that Plaintiff's main problems were mental rather than physical; there was no restriction of sitting, standing, or walking; she might not be able to do heavy physical exertion because of anemia, but there was no restriction of working with her hands. She needed a psychiatric evaluation and medication adjustment to control depression and anxiety. (A.R. 172-73.)

State agency medical consultant Emanuel H. Rosen, M.D., opined on April 20, 2005, that Plaintiff had no medically determinable mental impairment; she had a prior history of credibility concerns noted and considered in context with the current consulting examiner's opinion (apparently a reference to Dr. Lessenger) and the Plaintiff's lack of treatment. (A.R. 340-53.)

State agency medical consultant George G. Spellman, M.D., opined on April 25, 2005, that Plaintiff's ITP resulted in an ability to lift fifty pounds occasionally and twenty-five pounds frequently, and stand and/or walk and sit about six hours per work day, with no other limitations. (A.R. 330-37.)

Prednisone was reinstated in May 2005. (A.R. 206.) On May 5, 2005, Dr. Kuo stated that Plaintiff had thrombocytopenia, splenomegaly, and elevated ANA with thyroid proxitase auto-antibodies; he would repeat the high dose of IVIG therapy if clinically indicated. (A.R. 205.)

On May 25, 2005, Dr. Cesar Ramos, M.D., evaluated Plaintiff and diagnosed intrahepatic thrombocytopenic purpura. (A.R. 190.) Plaintiff denied dizziness or headaches, but she reported weight loss at 116 pounds. He noted her progressive drop in platelet count "despite oral medication." (A.R. 190.) She would be given Prednisone to improve her platelet count prior to her surgery. (Id.)

In a note regarding treatment on May 26, 2005, treating physician Dr. Kuo referred to Plaintiff's most recent failure to comply with treatment:

The patient has been very non-compliant to her treatment. She was started on Prednisone 40 mg. once a day on 5/5/05. Her platelet count was 27000 (sic) a week after starting 40 mg of Prednisone her platelet count was 90000 on 5/12/05. Because of

[s]ide effects related to Prednisone the patient felt weak and itchy on the skin and cut down her medication. Her platelet count was 54000 on 5/16/05 and 12000 on 5/24/05. Her splenectomy was postponed due to low platelet (sic). (A.R. 188.) Dr. Kuo's assessment was "Immunothrombocytopenia responding to high dose Prednisone." (Id.)

On June 8, 2005, Dr. Ramos performed a splenectomy without complications. (A.R. 181-84.) There were no abnormal findings upon pre-operative examination. The surgical pathology report of Gary A. Walter, M.D., was congestion, mild increase in white pulp regions, and negative for splenic fibrosis; the post-operative diagnosis was ITP (idiopathic thrombocytopenic purpura). (Id.) On June 12, 2005, Plaintiff was discharged with an improved platelet count; she was doing fine, had improved at discharge, and the doctor stated, "Activity ambulatory, but no heavy physical exertion. Disability approximately 4-6 weeks." (A.R. 179.)

On June 16, 2005, Dr. Kuo noted that Plaintiff had tolerated the surgery well, and stitches had been removed; the assessment was immunothrombocytopenia post-splenectomy, and dizziness; the plan was to continue observation and repeat blood tests in two weeks. (A.R. 176.) By July 2005, Plaintiff's platelet count was within the normal range. (A.R. 175.)

On July 14, 2005, the clinic progress note reflected that Plaintiff's ITP post-splenectomy was in remission. (A.R. 429.) Plaintiff continued to suffer mild left upper quadrant pain and nightmares. (Id.) In August, Plaintiff complained of being tired all the time and depressed. The assessment was fatigue, dizziness, and depression. (A.R. 428.)

Two non-examining state agency physicians, psychiatrist Archimedes Garcia and Carmen E. Lopez, M.D., assessed Plaintiff's RFC on July 29, 2005, and August 8, 2005, respectively. They concluded that there had been medical improvement with respect to her thrombocytopenia based on Plaintiff's surgeon's post-surgery assessment of no heavy work for four to six weeks. (A.R. 319-20.) Dr. Garcia completed a psychiatric review technique finding that Plaintiff's affective disorder was not severe (A.R. 329.) Dr. Lopez concluded that Plaintiff could lift and carry one hundred pounds occasionally, twenty-five pounds frequently, and stand and/or walk and sit about six hours in a workday with no limitations. (A.R. 321-28.)

On August 25, 2005, treating physician Dr. Kuo opined on a form that based on a "clinical diagnosis," without mention of any specific findings or test results, Plaintiff had had depression for two to three years, and it was stable on medication (Nortriptyline) with a fair prognosis. (A.R. 390-94, 390.) He did not complete the physical RFC portion of the form. However, with respect to the effect on Plaintiff's mental and emotional capacities of Plaintiff's impairments, she had poor ability (i.e., a seriously limited ability to function, but all functioning was not precluded) to follow work rules, relate to co-workers, deal with the public, interact with supervisors, deal with work stress, function independently, use judgment, maintain attention and concentration, and understand, remember, and carry out complex, detailed but not complex, and even simple job instructions. Further, she had poor ability to maintain personal appearance, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability. (A.R. 390-94.)

In September 2005, Plaintiff's platelet result was high. (A.R. 425.) Dr. Kuo noted the "good response of the platelet count." (A.R. 423.) Plaintiff continued to complain of dizziness, fatigue, and severe depression; she reported that she had been taking medication "according to her previous doctor" at Mental Health, but there was no improvement, and re-evaluation was required. The assessment was severe fatigue, chronic dizziness, and history of depression. Mental health evaluation for adjustment of medication was recommended. (A.R. 423.)

In October 2005, progress notes from a post-operative follow-up at the Tulare Community Health Clinic reflect that Plaintiff was doing fairly well with minimal pain and a platelet count of 240,000. The plan was discharge. (A.R. 178.)

In November 2005, Plaintiff reported nightmares, difficulty sleeping, and inability to see her psychiatrist; the assessment was severe fatigue, chronic dizziness and depression, and insomnia. Medications were adjusted. (A.R. 421-22.) Treating physician Dr. Kuo essentially repeated his opinion of three months earlier, concluding that as a result of Plaintiff's depression, dizziness, and fatigue, and based on clinical findings of fatigue and weakness assessed by the doctor for about two to three years after she had last seen her mental health doctor, Plaintiff had the same poor abilities, and she was unable to do any wage-earning work. (A.R. 395-99.) For two years, Plaintiff had been able to sit less than thirty minutes at a time, stand and/or walk less than ten minutes at a time, and sit or stand less than thirty minutes over an eight-hour period. The clinical findings that supported the assessment ...


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