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Nimmo v. Astrue

March 25, 2010

SANDRA NIMMO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Plaintiff Sandra Nimmo ("Plaintiff") brings this action seeking to reverse the decision of the Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying her application for Supplemental Security Income ("SSI"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is AFFIRMED.

II. PROCEDURAL HISTORY

On August 28, 2003, Plaintiff filed a prior application for Disability Insurance Benefits ("DIB") claiming that she became disabled on April 1, 1983. (Administrative Record ("AR") 29-31). The Agency denied her application and she submitted a request for reconsideration, which was also denied. (AR 39). Plaintiff then requested a hearing, which was held before Administrative Law Judge ("ALJ") Lauren Mathon on February 1, 2005. (AR 39, 376-405). Plaintiff appeared with counsel and testified. (AR 378, 381-84, 389-400). On April 27, 2005, the ALJ issued a decision denying benefits. (AR 39-46). Plaintiff did not appeal this decision to the district court. Accordingly, the April 27, 2005 agency decision became the final decision of the agency pertaining to the time period from 1983 through the date of the decision, April 27, 2005.

On July 25, 2005, Plaintiff filed a second application for SSI benefits claiming that she became disabled on April 28, 2005. (AR 74-76). The Agency denied her application and she submitted a request for reconsideration on September 27, 2005. (AR 66). The Agency denied her application again on January 19, 2006. (AR 59-63). Plaintiff then requested a hearing, which was held before Administrative Law Judge Thomas J. Gaye on October 11, 2007. (AR 58, 355-75). Plaintiff appeared with counsel and testified. (AR 358-61, 363-73). On December 12, 2007, the ALJ issued a decision denying benefits. (AR 13-21). Plaintiff sought review before the Appeals Council, which denied the request on June 10, 2009. (AR 4-9). On July 24, 2009, Plaintiff filed the instant action. Pursuant to the Court's Case Management Order, the parties filed a Joint Stipulation ("Jt. Stip.") on February 2, 2010.

III. FACTUAL BACKGROUND

Plaintiff was born on April 13, 1964 and was forty-three years old at the time of the hearing. (AR 74, 363). Plaintiff dropped out of school after the ninth grade. (AR 363-64). Plaintiff is single and lives with her two sons, ages fifteen and twenty-two. (AR 74, 364-65). Plaintiff has not worked in the last fifteen years. (AR 365).

A. Plaintiff's Medical History

The medical records show that Plaintiff sought treatment from the Community Hospital of San Bernardino from July 25, 1998 to January 21, 2001. (AR 111-28). On July 25, 1998, Plaintiff was treated by Dr. Miguel Rodriguez, M.D. ("Dr. Rodriguez") for a broken toe. (AR 125-28). On January 1, 2001, Plaintiff was treated by Dr. J.A. Ibanez, M.D. ("Dr. Ibanez") for vaginal bleeding. (AR 114, 118-19). On January 21, 2001, Plaintiff was treated for itchy red blotches all over her body. (AR 112). On June 20, 2000, Plaintiff was treated for a possible broken finger. (AR 120-24).

Plaintiff sought treatment from the St. Bernardine Medical Center from November 12, 1998 to November 19, 2003. (AR 129-40). On November 12, 1998, Dr. Michael G. Nespole, M.D. ("Dr. Nespole") gave Plaintiff a mammogram. (AR 133). On June 16, 1999, Dr. Eugene I. Emembolu, M.D. ("Dr. Emembolu") diagnosed Plaintiff with mild degenerative changes of the lumbar spine and mild desiccation of the L4-5 disc. (AR 134-35). On September 25, 2000, Dr. Joel H. Block, M.D. ("Dr. Block") gave Plaintiff a mammogram. (AR 136). On October 11, 2002, Dr. Nespole gave Plaintiff a mammogram. (AR 137-38). On November 19, 2002, Dr. Nespole performed an ultrasound of Plaintiff's right breast. (AR 139). On February 17, 2003, Dr. Ronald Boyd, M.D. ("Dr. Boyd") performed an ultrasound of Plaintiff's gallbladder. (AR 140). In mid November of 2003, Plaintiff was treated by Dr. K. Balasubramaniam, M.D. ("Dr. Balasubramaniam") for rectal bleeding. (AR 130-32).

Plaintiff sought treatment from Dr. Samuel N. Cherny, M.D., ("Dr. Cherny") from March 29, 1995 to March 28, 2005. (AR 141-260). During this time period, Dr. Cherny treated Plaintiff approximately monthly for a wide range of complaints including depression, stomach pain, the flu, leg pain, body aches, pink eye, lice, sore throat, and knee pain. (See, e.g., AR 142-43, 145-50, 153-57, 159-60, 162-63, 166-68, 171-72, 175-77, 179-84, 193, 195-96, 201-02).

Plaintiff sought treatment from Dr. J. Robert Evans, M.D. ("Dr. Evans") from April 25, 2005 to November 5, 2005. (AR 261-65). On April 25, 2005, Dr. Evans treated Plaintiff for symptoms including blood and discharge in her stool. (AR 265). On August 31, 2005, October 4, 2005, and November 5, 2005, Dr. Evans treated Plaintiff for proctitis. (AR 262-64).

Plaintiff sought treatment from the San Bernardino County Department of Behavioral Health from May 20, 2002 to December 8, 2005.

(AR 274-309). On May 20, 2002, Dr. Patricia J. Prendergast, Ph.D., M.F.T. ("Dr. Prendergast") diagnosed Plaintiff with major depressive disorder. (AR 284-92). From June 4, 2004 to July 7, 2005, Plaintiff sought treatment repeatedly from Dr. Robert Cabugao, M.D. ("Dr. Cabugao") for problems with her mood. (AR 279-83, 297-300, 302-09). During this time period, Dr. Cabugao prescribed Wellbutrin, Effexor, and Seroquel for Plaintiff. (AR 281-83, 294-96). On October 11, 2005, November 8, 2005 and December 8, 2005, Plaintiff sought treatment from Dr. Jesse De Vera, M.D. ("Dr. De Vera") for problems with her mood. (AR 275-77).

B. State Agency Physicians

Dr. A. Lizarraras, M.D. ("Dr. Lizarraras") reviewed Plaintiff's medical records as well as the ALJ's April 27, 2005 finding of non-disability to determine whether Plaintiff could show materially changed circumstances. (AR 310-11). On August 15, 2005, Dr. Lizarraras concluded that Plaintiff had failed to show materially changed circumstances and adopted the ALJ's finding of non-disability. (AR 311).

Dr. Michael Skopec, M.D. ("Dr. Skopec") also reviewed Plaintiff's medical records and the ALJ's April 27, 2005 finding of non-disability to determine whether Plaintiff could show materially changed circumstances. (AR 312-27). On September 8, 2005, Dr. Skopec issued a functional capacity assessment that concluded Petitioner could "sustain simple repetitive tasks with adequate pace and persistence" and could "adapt and relate to co-workers and [supervisors]," but could not "work with [the] public." (AR 326). Dr. Skopec further concluded that Plaintiff had failed to show materially changed circumstances and adopted the ALJ's finding of non-disability. (Id.). Dr. Skopec found that Plaintiff had the medically determinable impairment of depression. (AR 315). Based on this impairment, Dr. Skopec found that Plaintiff had mild limitations in daily living activities, mild limitations in maintaining social functioning, mild limitations in maintaining concentration, persistence, or pace, and has had one or two episodes of decompensation. (AR 322). Dr. Skopec further concluded that Plaintiff had moderate limitations in the ability to carry out detailed instructions, the ability to maintain attention and concentration for extended periods, the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, the ability to sustain an ordinary routine without special supervision, the ability to work in coordination with or proximity to others without being distracted by them, and the ability to interact appropriately with the general public. (AR 324-25).

Clinical psychologist, Dr. David Glassmire ("Dr. Glassmire"), testified at the October 11, 2007 hearing that he had reviewed Plaintiff's medical records and concluded that Plaintiff was not disabled. (AR 359-61). Dr. Glassmire diagnosed Plaintiff with major depressive disorder, recurrent, moderate and opined that Plaintiff was limited to habituated type tasks or repetitive type tasks. (AR 360). Dr. Glassmire explained that these tasks did not necessarily have to be simple, but that Plaintiff should do "the same types of things over and over." (Id.). Dr. Glassmire further explained that Plaintiff was limited from engaging in tasks "requiring hypervigilance, no fast paced work, and only accusal non-intense contact with the public, co-workers or supervisors." (Id.).

C. Plaintiff's Testimony

Plaintiff testified at the October 11, 2007 hearing that she suffers from depression, anxiety, and colitis. (AR 359). Plaintiff explained that her colitis is characterized by rectal bleeding and mucus whenever she is subject to "any type of stress" or if she gets "upset." (Id.). Plaintiff testified that she has trouble focusing, retaining information, and concentrating. (AR 364). Plaintiff testified that "most days it's hard to even get out of bed... let alone take a shower." (AR 365). Plaintiff explained that there are days that she does not get dressed or shower because she does not have the "energy" or "will." (AR 367). Plaintiff further explained that "sometimes four days will go by where "she does not bathe because she "just want[s] to hide away in [her] room." (Id.).

Plaintiff further testified that she suffers from "really bad mood swings" and has difficulty controlling her temper to the point that she gets in physical altercations with people for little or no reason. (AR 366). Plaintiff explained that she is "[e]xtremely sensitive," "easily aggravated," (AR 366), cries for no reason, and suffers from "easy irritability." (AR 367).

Plaintiff further testified about her daily living activities. (AR 369-73). Plaintiff explained that she drives her son to school and otherwise leaves the house to go buy groceries and household products.

(AR 369-70). Plaintiff testified that she does not cook meals and instead mostly snacks throughout the day. (AR 373). Plaintiff testified that she and her older son do the laundry and that she sometimes dusts and picks up around the house. (Id.).

On Plaintiff's Function Report, dated August 26, 2005, she also described her daily living activities. (AR 95-102). Plaintiff wrote that she "take[s] care of [her] 2 sons" and "take[s] them wherever they need to go." (AR 96). Plaintiff explained that she leaves the house "[a] couple of times a week." (AR 98). Plaintiff further wrote that she wash[es] clothes" and "cook[s] sometimes." (AR 96). Plaintiff indicated that she washes her family's clothes, hangs them up, and sometimes dusts. (AR 97). Plaintiff explained that she cleans once every week or two and that her cleaning activities can take her up to an hour on one room. (Id.). Plaintiff wrote that she spends most of her time at home on the internet communicating with her friends. (AR 99). Plaintiff explained that she uses ...


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