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Bustamonte v. Commissioner of Social Security

March 30, 2010

CORA BUSTAMONTE, ON BEHALF OF SAMANTHA SALAZAR, A MINOR, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

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. 16) and defendant's cross-motion for summary judgment (Doc. 19).

I. PROCEDURAL HISTORY

Plaintiff filed an application for social security on behalf of her minor child, Samantha Salazar (hereinafter "child"). In the application, plaintiff claims that disability began on January 1, 2002. Plaintiff claims that disability is caused by a combination of bipolar disorder and post-traumatic stress disorder ("PTSD"). The claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on February 26, 2008, before Administrative Law Judge ("ALJ") William C. Thompson, Jr. In a June 24, 2008, decision, the ALJ concluded that the child is not disabled based on the following relevant findings:*fn1

1. The claimant has the following severe impairment: opposition defiant disorder;

2. The claimant does not have an impairment or combination of impairments that meets, medically equals, or functionally equals one of the impairments listed in the regulations; and

3. The claimant has not been disabled since the date the application was filed.

After the Appeals Council declined review on August 12, 2008, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

July 3, 2006 -- An initial intake assessment was completed at San Joaquin County Mental Health Children and Youth Services. This form indicates that, at the time, the child had "not been hospitalized or received therapy" and that the child had not taken any medications. The child was diagnosed with mood disorder NOS. Cognitive behavioral therapy was suggested.

August 8, 2006 -- Agency examining psychologist David C. Richwerger, Ed.D., performed a comprehensive psychological evaluation. Dr. Richwerger outlined the following relevant history:

Regarding psychological and emotional problems, the mother states that the child cries a lot.

Regarding behavior problems, the mother states that the child does not calm down. She treats other people mean and teases them. The mother states the child has had behavior problems at school in that she is disrespectful to her teachers and to other students. She was suspended often.

Regarding learning problems, the mother states that the child sometimes has learning problems. . . .

Regarding feeling depressed, anxious, and frightened, the mother states she does not know if the child has these problems.

The mother states the child sometimes says she hears things that are not there. This was discussed. The child did not appear to be suffering from a psychotic process. There was no evidence of response to internal stimuli or bizarre behavior.

Regarding sleep problems, the mother states the child has an unusual sleep pattern and she does not like to sleep at night but sleeps in the day.

There is no history of inpatient psychiatric treatment. The mother states the child has begun outpatient counseling at San Joaquin County Mental Health Treatment Center over the past six weeks. The mother states she goes about every two weeks. She was referred by her mother's counselor for behavior problems, not listening, and multiple school suspensions.

The doctor noted no history for psychiatric medication. As to current level of functioning, the doctor reported the following:

The mother states that the child will watch TV, play with toys, and go to movies. The child's household tasks include taking out the garbage and cleaning the room, but she only cleans the room sometimes. She often does not make her bed. The mother states that the child does not get along very well with family members, and she does not have many friends either. The mother states she is off by herself often. The mother states she had the child when she, herself, was on methadone and drugs and was in prison for six years of her life

The doctor noted that the source of background information was the mother and that the reliability of information ...


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