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Partee v. Commissioner of Social Security

March 24, 2010


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 17) and defendant's cross-motion for summary judgment (Doc. 20).


Plaintiff received social security benefits based on disability as a child. In an October 30, 2000, application for benefits filed while plaintiff was a minor, plaintiff claimed disability began on September 1, 1999. In her motion for summary judgment, plaintiff asserts that her disability results from borderline intellectual functioning and "an anxiety condition brought on by gunshot wounds in September 2000." Eligibility was automatically redetermined upon plaintiff turning 18 and, on August 17, 2005, it was determined that plaintiff was no longer disabled as of April 23, 2005. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on April 16, 2007, before Administrative Law Judge ("ALJ") Mark C. Ramsey. In a June 13, 2007, decision the ALJ concluded that plaintiff was no longer disabled as of April 23, 2005, based on the following relevant findings:

1. As of April 23, 2005, the claimant has had the following severe impairments: borderline intellectual functioning and anxiety disorder;

2. These impairments do not meet or medically equal an impairment listed in the regulations;

3. As of April 23, 2005, the claimant has had the residual functional capacity for unlimited exertional activity with the ability to perform simple unskilled work without frequent public or fellow employee contact; and

4. Considering the claimant's age, education, work experience, and residual functional capacity, as of April 23, 2005, the regulations establish that the claimant was able to perform a significant number of jobs in the national economy.

Plaintiff appealed and, on December 21, 2007, the Appeals Council issued a decision remanding for further proceedings before the ALJ. In its decision, the Appeals Council stated:

The Administrative Law Judge found that, as of April 23, 2005, the claimant was no longer disabled. In reaching this conclusion, the Administrative Law Judge found that the claimant has the residual functional capacity to perform work at all exertional limits. The Administrative Law Judge also found that the claimant was limited to unskilled work without frequent public contract or frequent contact with fellow employees (Decision, page 5, Finding 5). Vocational expert testimony was not obtained. However, given these significant non-exertional limitations, vocational expert evidence should have been obtained. Therefore, a remand is necessary to obtain vocational expert evidence and determine whether jobs are available based on the limitations found.

A second hearing was held before the ALJ on March 14, 2008, at which time a vocational expert offered testimony. In a June 24, 2008, decision, the ALJ again concluded that plaintiff was not disabled as of April 23, 2005. After the Appeals Council declined further review on September 5, 2008, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized chronologically below. Because plaintiff's motion for summary judgment only raises issues with respect to the ALJ's consideration of the various medical conclusions concerning plaintiff's mental health issues, the court need not summarize records relating to any other impairments.

November 2, 1999 -- An "Assessment/Client Plan" form from Sacramento County Mental Health indicates that plaintiff had "off & on suicidal ideation." The assessor indicated that one of plaintiff's strengths was that she "likes to help others, friendly."

March 29, 2001 -- Stewart Teal, M.D., a child staff psychologist, completed an initial psychiatric evaluation. Dr. Teal provided the following assessment:

On psychiatric interview Kuwana appeared as an attractive, slender fifteen-year-old African-American girl looking rather grim and with set facial expression. She was able to relax as the interview proceeded and she was able to smile and engage with the interviewer in the assessment. Kuwana's logical associations of thought were intact and there was no indication of disorganization of logical thinking processes. Her affect was appropriate to the content of her thought and her mood seemed mildly to moderately depressed through much of the interview. Kuwana described a great deal of difficulty sleeping at night. She has nightmares, which are repetitious of the shooting incident. She also has associated nightmares in which other members of her family are shot who were not involved in that at all. According to Kuwana she felt the problems with the anxiety particularly at night were getting better, but in the last month or two months have again worsened and she continues to have difficulty. Kuwana described anxiety symptoms of long standing when she is in crowds. She denied other kinds of anxiety except for fear of noises at night in the dark, which have gotten much worse since the shooting.

Cognitively Kuwana seemed of average to low average intelligence. She was able to read at about sixth or seventh grade level, but had more difficulty with understanding abstractions. Some of her cognitive difficulties may be secondary to her preoccupation with the shooting. It was hard for her to focus on things like memory test very well. Her recent memory was fairly good, remembering eight out of nine items after several minutes. Her interpretation of proverbs was clear and very concrete, but there was no indication of any distortion of intrusive thoughts. Kuwana does some magical thinking believing in ghosts. She also reports occasionally hearing voices, which frighten her. This is only rarely and usually happens at night when she is trying to fall asleep. Kuwana seems to have a reasonably good conscience development with concerns for her friends and for her family.

Dr. Teal offered the following conclusion and recommendation:

I see Kuwana as an anxious traumatized youngster struggling to deal with her life following a major trauma. She seems to have had difficulties both with anxiety and behavior problems. I would speculate that the shooting exacerbated these problems and probably have resulted in the more severe Post Traumatic Stress Disorder than otherwise would have occurred. Kuwana was open and able to make a relationship with the interviewer. I would speculate that she could profit from individual psychotherapy as well as family therapy. In addition I feel her anxiety is such that a trial on psychotropic medication is indicated. She has been prescribed Paxil 20 mgs daily and Clonidine 0.1 mg at bedtime to help with agitation and sleep.

April 2, 2001 -- Barry N. Finkel, Ph.D., submitted a disability evaluation. Dr. Finkel reported the following on mental status observation:

Kuwana was seen individually for interview and testing. She is alert and is able to identify the year, month, and day of the week. Speech is normal in rate and flow. She evidenced no difficulty understanding interview questions or test instructions. Thinking is logical and goal oriented. She denied delusions, hallucinations, or ideas of reference. There is no indication of psychotic symptoms. Mood is dysphoric with appropriate range of affect. She looks sad but smiles often and seems to have reasonable energy.

She is able to recall five digits forward. Social judgment is fair. Asked about smoke and fire, she said "run out." If she saw an envelope in the street that was sealed, addressed, and stamped? "Put it in a mailbox." She put forth careful, deliberate effort on all test tasks and results are considered to be a valid measure of present functioning. She was able to persist on all items without difficulty.

Dr. Finkel diagnosed post-traumatic stress disorder traits and borderline intellectual functioning. He ...

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