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Savage v. Astrue

March 31, 2010



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. For the reasons discussed below, the court grants defendant's motion and denies plaintiff's motion.


Plaintiff formally applied for SSI on July 15, 2007. Administrative Record ("AR") 50- 56. Plaintiff's application was denied initially and upon reconsideration, and plaintiff requested an administrative hearing. AR 44-48, 35-39. On March 22, 2007, a hearing was held before administrative law judge ("ALJ") Theodore T.N. Slocum. AR 276-318. Plaintiff was represented by counsel at the hearing, and testified at the hearing, along with vocational expert ("VE") Jim Van Eck. Id.

The ALJ issued a decision on June 22, 2007, finding that plaintiff was not disabled.*fn1 AR 11-24. The ALJ made the following specific findings:

1. The claimant has not engaged in substantial gainful activity since July 15, 2005, the application date (20 CFR 416.920(b) and 416.971 et seq.).

2. The claimant has the following severe impairments: a substance abuse disorder, a bipolar disorder, residuals status post left wrist fracture and left ankle fracture.

3. The claimant substance abuse disorder, standing alone, meet the requirements of Sections 12.09 of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d)).

4. If the claimant stopped the substance abuse, her remaining limitations would cause more than a minimal impact on the claimant's ability to perform basic work activities; therefore, the claimant would continue to have a severe impairment or combination of impairments.

5. If the claimant stopped the substance abuse, the claimant would not have an impairment or combination of impairments that meets or medically equals any of the impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d)).

6. If the claimant stopped the substance abuse, the claimant would be unable to perform past relevant work (20 CFR 416.965).

7. The claimant was born on April 3, 1966 and was 39 years old, which is defined as a younger individual 18-44, on the date the application was filed (20 CFR 416.963).

8. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).

9. Per the testimony of the vocational expert, the claimant does not have transferable skills (20 CFR 416.968).

10. If the claimant stopped the substance abuse, considering the claimant's age, education, work experience, and residual functional capacity, there would be a significant number of jobs in the national economy that the claimant could perform (20 CFR 416.960(c) and 416.966).

11. Because the claimant would not be disabled if she stopped the substance use (20 CFR 416.920(g)), the claimant's substance use disorder(s) is a contributing factor material to the determination of disability (20 CFR 416.935). Thus, the claimant has not been disabled within the meaning of the Social Security Act at any time from the date the application was filed through the date of this decision.

AR 11-24.

On October 30, 2007, plaintiff requested review by the Appeals Council, and the Appeals Council declined to review the case, leaving the ALJ's decision as the "final decision of the Commissioner of Social Security." AR 4-6.


Plaintiff contends that the Commissioner erred in sustaining the ALJ's determination that she is "not disabled" because (1) the ALJ failed to credit the treating and examining opinions of Drs. Behniwal, Globus, and Soliman; (2) the ALJ failed to properly credit plaintiff's testimony/statements and the third party statements of her mother regarding the nature and extent of plaintiff's functional limitations; and (3) the ALJ failed to pose a legally adequate hypothetical to the VE and failed to credit the testimony of the VE in response to the hypothetical which accurately reflected plaintiff's functional limitations. Dckt. No. 20 at 4.


A. Consultative Reports

Orthopedic Consultative Examination, Gabriel S. Borges, D.O. - September 16, 2004 On September 16, 2004, Dr. Gabriel S. Borges, D.O., examined plaintiff. AR at 143-47. Plaintiff's main complaints were left ankle pain and wrist pain. Id. at 143. Dr. Borges diagnosed plaintiff with status post left trimalleolar fracture and status post left distal radial fracture, and opined that plaintiff has "some functional limitations due to left ankle findings." Id. at 147. He stated that he would limit any type of prolonged standing or walking, would limit lifting, carrying, pushing, and pulling to 25 pounds frequently, would avoid climbing on ladders, and would limit squatting to only occasionally, but opined that plaintiff could reach overhead without limitations, use her hands frequently, and bend frequently. Id. He states that he would refer plaintiff's history of bipolar disease and suicide attempt to mental health. Id.

Psychiatrist Examination, Mandeep Behniwal, M.D. - March 25, 2005 On March 25, 2005, plaintiff was seen by Dr. Mandeep Behniwal, M.D., for a psychiatric evaluation. Dr. Behniwal noted that he reviewed medical records from Sacramento County Mental Health. Plaintiff reported that most of the time she was depressed. The report reflected that plaintiff "has decreased sleep, does not enjoy things, has hopelessness, decreased energy, and decreased concentration," that she "has some problems with her appetite," that she "has psychomotor retardation," and that she "has made one suicide attempt in the past, when she tried to hang herself in her apartment." AR at 163.

Plaintiff also reported that she felt paranoid and sometimes heard voices. Her medications were Zyprexa, Depakote, Wellbutrin XL, and Hydroxyzine. Id. Dr. Behniwal reported that plaintiff was able to socialize with her family but had a very difficult time relating to Dr. Behniwal or the office staff, and Dr. Behniwal described plaintiff's affect as "irritable at times." Id. at 164. Dr. Behniwal's DSM-IV diagnosis was:

Axis I: Mood disorder, not otherwise specified.

Polysubstance dependence, in remission per the claimant. Axis II: No diagnosis.

Axis III: Sickle Cell Trait.

Axis IV: No major stressors at this time.

Axis V: GAF: 59*fn2

Id. at 165.

Dr. Behniwal opined that plaintiff had the ability: to perform simple and repetitive tasks and can perform detailed and complex tasks also. The claimant can accept instructions from supervisors, but at this time she would find it moderately difficult to interact with co-workers and the public. The claimant is irritable. The claimant will find it mildly difficult [to] perform work activities on a consistent basis. She will not need any special or additional supervision. The claimant might find it mildly difficult[] to maintain regular attendance in the workplace and complete a normal workday/workweek, or deal with the usual stress encountered in competitive work.

Id. at 166.

Internal Medicine Consultative Examination, James Martin, M.D. - August 24, 2005 On August 24, 2005, plaintiff was seen by Dr. James Martin regarding her left wrist and ankle problems. Id. at 229. On examination, Dr. Martin observed that plaintiff's left wrist range of motion for the dorsiflexion and palmar flexion was 30 degrees less than normal, the ulnar deviation was 10 degrees less than normal and the radial deviation was 10 degrees less than normal. Id. at 230. He noted that her left ankle range of motion for the dorsiflexion and plantar flexion was 10 degrees less than normal. Id. Dr. Martin opined that plaintiff would be able to: lift not more than 20 lbs. at a time and frequently lift or carry up to 10 lbs. The claimant can stand and walk, off and on, for at least four hours in an eight-hour day. The claimant can sit for six hours in an eight hour day. Restriction from squatting, walking on grades and stairs would seem not unreasonable. The claimant appears to have the ability to grasp, hold and turn objects. The claimant my have some difficulties with certain fine motor movements which would require full wrist movement involving the affected hand.

Id. at 231.

DDS Physical Residual Functional Capacity Assessment, Sandra Clancey, ...

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