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Tremayne v. Astrue

March 29, 2010



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. For the reasons discussed below, the courtremands the case for further proceedings in accordance with this order.


Plaintiff, born November 8, 1978, formally applied for Disability Insurance Benefits on October 27, 2005, claiming she had been disabled since September 5, 2005. Administrative Record ("AR") 16. On February 17, 2006 a Regional Commissioner denied plaintiff's application on the basis that plaintiff lacked the requisite disability. Id. at 79-83. Plaintiff requested reconsideration of the denial, but the Regional Commissioner denied plaintiff's request on May 31, 2006. Id. at 74-78. Plaintiff then formally requested a hearing on the denial, and a hearing was held before administrative law judge ("ALJ") Sandra K. Rogers on February 12, 2008. Id. at 56-71. Plaintiff was represented by counsel at the hearing, and testified at the hearing, along with Vocational Expert ("VE") David M. Dettmer. Id.

The ALJ issued a decision on April 15, 2008, finding that plaintiff is not disabled.*fn1 Id. at 13-24. The ALJ made the following specific findings:

1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2008.

2. The claimant has not engaged in substantial gainful activity since September 5, 2005, the alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.).


3. The claimant has the following severe impairments: osteoarthritis of the knee, a bipolar disorder, borderline personality traits, and carpal tunnel syndrome (20 CFR 404.1520(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).


5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a limited range of light work as defined in 20 CFR 404.1567(b). The claimant remains able to do simple repetitive tasks with limited public contact. She can occasionally climb and balance but cannot kneel or crawl. She can do no forceful or repetitive gripping, grasping, twisting or torquing with her hands.


6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).


7. The claimant was born on November 8, 1978 and was 26 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).

8. The claimant has at least a high school education and is able to communicate in English (20 CRF 404.1564).

*** 9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CRF 404.1568).

*** 10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c) and 404.1566).


11. The claimant has not been under a disability, as defined in the Social Security Act, from September 5, 2005 through the date of this decision (20 CFR 404.1520(g)).

Id. at 16-24.

Plaintiff requested that the Appeals Council review the ALJ's decision. Id. at 9. However, on September 15, 2008, the Appeals Council denied review, leaving the ALJ's decision as the "final decision of the Commissioner of Social Security." Id. at 5-7.


Beginning August 23, 2005, the record contains a series of notes and recorded

assessments of plaintiff's mental state from Trinity County Behavioral Health Services. On August 23, Trinity County Behavioral Health Services completed a Brief Assessment/Opening Episode form. In it, Dana Hiney, L.C.S.W, states that plaintiff: comes to the clinic feeling she is in a crisis after years of trying to live with an abusive addict who is also a disabled man. She has been having worsening depression with insomnia, suicidal thinking, weight loss and a tendency to distrust relationships and isolate socially. She has times of feeling a sense of panic and under extreme stress she has voices that tell her to harm herself... She is intelligent, she is strong and motivated to get removed from the tendencies of her past.

AR 161. At that time, Ms. Hiney gave plaintiff the following diagnosis:

Axis I: Major Depression, recurrent severe PTSD

Polysubstance Abuse in partial remission Axis II: Borderline Personality Disorder Axis III: Weight loss, seasonal allergies, bronchitis Axis IV: Divorcing husband, economic stress, survivor of [domestic violence] and childhood abuse Axis V: 50*fn2

Id. at 162.

A second assessment by Ms. Hiney, dated August 24, 2005, reflected that plaintiff reported making suicide attempts in the past. Her mental status exam indicated that she was currently anxious with a depressed mood and her judgment was mildly impaired. It also stated that plaintiff was given Zyprexa briefly and felt a "good effect" from it. Id.

Another progress note, dated August 31, 2005, states that plaintiff "is still anxious and fearful of what is coming but has made more steps to meet her goal and feels better this week after attending several 12 step meetings and having had a chance to let some of it go in session last week." Id. at 155. A September 1, 2005, progress report prepared by Ms. Hiney stated: "She is clearly anxious and in great distress. She is overwhelmed, her process is scattered by anxiety and the pressure of her need and fear. She is in a huge transition and feels completely alone in it. The sheer volume of tragedy in her life is overwhelming." Id. at 156.

A September 7, 2005 progress note states that plaintiff "talked a bit about resigning her position at her job to avoid being fired. She was accused of making a rude comment to another employee but she felt she had not." Id. at 153. A progress note dated October 12, 2005 states that plaintiff "still hears and sees things... [a] voice will tell her - 'You're not worth it, you better do this or that,' and the voices tell her to hurt herself." Id. at 147.

On November 8, 2005, Ms. Hiney noted that plaintiff: has not attended her appointments frequently enough for me to create an appropriate service plan for her. She returned to therapy today so now I hope she will continue to come at which point I will better be able to assess her goals for treatment. [Plaintiff] continues to have depression and anxiety. She is avoiding people she says and hates everyone... She has suicidal feelings but won't harm herself because it would harm her kids.

Id. at 143. Progress notes from November 14, 2005 reflected that during a tele-psych appointment with Dr. Weiser, plaintiff reported that she felt anxious, was having night sweats, did not want to go out in public anymore, and had been having dreams that were "just strange with lots of animals." Id. at 142. She stated that she felt extremely anxious; was having a hard time being around people; was still hearing "nasty voices"; was seeing "spec[k]s -- like floating colors"; would sometimes experience a "presence"; and had thoughts of death and dying. Id.

On November 23, 2005, Ms. Hiney again completed a report noting that plaintiff "presents with somewhat a confused picture of someone who is scared to be out in the world, who is mistrusting everyone but who is wanting to trust, to love and be loved." Id. at 139. The report notes that plaintiff was "slightly paranoid about being harmed by others" and was "anxious but a bit less depressed without suicidal ideation." Id.

December 19, 2005 SSA Physical Residual Functional Capacity Assessment - Dr. Miller On December 19, 2005, Dr. W.S. Miller, M.D., completed an assessment of plaintiff's Physical Residual Functional Capacity ("RFC"). The conclusions reached in the assessment were based on the conclusions of all evidence in plaintiff's file. Id. at 227. Dr. Miller assessed plaintiff's exertional limitations, postural limitations, manipulative limitations, visual limitations, communicative limitations, and environmental limitations. Id. at 227-31. Dr. Miller concluded that plaintiff presented with certain exertional limitations. Specifically, plaintiff could only occasionally lift and carry a maximum of twenty pounds, she could frequently lift and carry a maximum of only ten pounds, she could stand/walk for a total of six hours in an eight hour workday, but noted that she could only engage in noncontinuous walk/stand action for two hours at a time, and that she could sit (with normal breaks) for a total of six hours in an eight hour workday. Id. at 228. Finally, Dr. Miller noted that plaintiff had an unlimited ability to push and/or pull (including operation of hand and/or foot controls) subject to her limitations regarding lifting and carrying. Id.

Next, Dr. Miller assessed plaintiff's postural limitations. Dr. Miller determined that plaintiff could never kneel or crawl, she could occasionally climb ramps, stairs, ladders, ropes, or scaffold, and she could frequently balance, stoop, or crouch. Id. at 229. Finally, Dr. Miller concluded that plaintiff had no established manipulative limitations, visual limitations, communicative limitations, or environmental limitations. Id. at 230-231. In the additional comments section, Dr. Miller noted that plaintiff is limited to moderately light activity by bad knees. Id. at 234. Dr. Miller's assessment was reviewed and affirmed by Dr. P. Suster, M.D., another DDS physician, on May 26, 2006.

January 6, 2006 SSA Psychiatric Examination - Dr. Richwerger Dr. David Richwerger, a Psychologist for the Department of Social Services Disability Evaluation Division, began his Psychiatric Evaluation of plaintiff by completing a review of her Medical Records. Id. at 235. Dr. Richwerger indicated that he reviewed the August 23, 2005 "Brief Assessment" by Ms. Hiney at Trinity County Behavioral Health Services, which inter alia, found that plaintiff was in a crisis and had a GAF score of 50; the August 24, 2005 assessment by Ms. Hiney, which inter alia, found that plaintiff had made suicide attempts in the past, is anxious with depressed mood, and had mildly impaired judgment; the November 8, 2005 report from Ms. Hiney that plaintiff had not attended her appointments frequently enough to create an appropriate service plan; a progress note from Ms. Hiney reflecting that plaintiff was feeling alone and isolated; and reports from Dr. Dolci that medications had been refilled and indicating that plaintiff had carpal tunnel, arthritis, and endogenous depression. Id. at 235-36.

Dr. Richwerger's report reflected that plaintiff stated: "I can't go into public without getting outraged. I hear voices telling me to do bad things." AR 236. The report reflected that plaintiff began having problems in 2003, and that her main problem was that she suffered from a bipolar condition and as a result was not able to work. Id. The report further reflected that plaintiff was hospitalized for three days at Shasta County Mental Health in 2002 for a suicide attempt by an overdose of pills. She also reported outpatient psychiatric treatment at Trinity County Behavioral Health since 1996. She stated that currently she had problems caused by hearing voices. The psychological history portion of Dr. Richwerger's report stated:

The claimant states she has difficulty concentrating and difficulty with her memory. The claimant states she has problems hearing voices, which began in 1996. The claimant states they are less often now. The claimant states she has troubling thoughts and often feels anxious and depressed. The claimant states, "I am constantly both anxious and depressed." The claimant states she has suicidal thoughts daily. She states that she had a suicide attempt in 2002 or 2003, and she was hospitalized. The claimant states she has always had suicidal ideation daily for a long time. The claimant denies homicidal ideation, but she stated she has had them in the past. The claimant states she [is treated by] Dr. Wizer and is prescribed Zyprexa, Trazodone, Celebrex, Singular and Naproxen. The claimant states the medication helps somewhat.


Plaintiff reported that she was a counter attendant at Starbucks, and stopped working there because of too much stress. She reported that she sometimes had difficulty dealing with other people besides co-workers. Plaintiff reported that she drank alcohol rarely and denied both past and present use of street drugs. Id. at 237. She stated that she did not sleep well, and had intermittent awakenings. She reported that she does "occasional household chores, driving, dressing, bathing, and cooking" but that her husband did all the shopping. Her outside activities consisted of hiking and riding a bike. Id. at 237, 238. Plaintiff also stated that she takes care of her children on a daily basis. Id. at 238.

Dr. Richwerger reported that plaintiff was 5'2" and weighed 212 pounds. She stated to him that she had "suicidal ideation all the time - everyday" but he reported that she did not present with a flattened affect. Id. at 238. Dr. Richwerger reported that throughout the evaluation plaintiff was "often joking and laughing." Id. He noted that her "interpersonal behaviors appeared somewhat inconsistent with the history given." Id.

Dr. Richwerger's DSM-IV diagnostic impression was:

Axis I: Bipolar II, mixed.

Axis II: Borderline personality traits. Axis III: ...

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