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Bowles v. Astrue

May 10, 2010

OLGA M. BOWLES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Olga M. Bowles ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application on November 22, 2006, alleging disability since March 31, 2002, due to hepatitis C, high blood pressure, depression, high cholesterol, anxiety, fatigue and auditory and visual hallucinations. AR 90-99, 120-129. After Plaintiff's application was denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge ("ALJ"). AR 54-58, 62-66, 67. On November 12, 2008, ALJ Steven W. Webster held a hearing. AR 21-41. He denied benefits on March 4, 2009. AR 9-20. The Appeals Council denied review on April 29, 2009. AR 1-3.

Hearing Testimony

ALJ Webster held a hearing on November 12, 2008, in Fresno, California. Plaintiff appeared with her attorney, Anthony Gonzalez. Vocational expert ("VE") Judith Nigerian also appeared and testified. AR 21.

Plaintiff testified that she was born in 1950 and lives with her husband. AR 24-25. She does not have a driver's license and relies on the bus for transportation. AR 25. Plaintiff received her GED and has an AA in general studies. AR 26. When she was on welfare, she went to the Chavez Business School to learn typing. AR 27.

Plaintiff can take care of personal grooming needs "for the most part" and can do very little cooking and cleaning. AR 25-26. She does laundry about once a month. AR 26. Plaintiff testified that she does "not understand" television and that when she puts it on, she cannot follow the storyline and turns it off. She sees double when she reads. AR 26.

Plaintiff explained that she gets up about 8:00 a.m., takes her pills and goes back to bed. She spends most of the day in bed. She does not eat and has lost 30 pounds. Plaintiff also talks to her husband during the day and goes to bed about 7:00 p.m. AR 27-28. She wakes up about every two hours. AR 28.

Plaintiff testified that she has hepatitis C, asthma, depression and anxiety. AR 29. She sees a counselor at Fresno County Mental Health every two weeks and sees a doctor once every one to two months. AR 29-30. Plaintiff thought that she could sit for about 15 to 20 minutes because she starts getting anxious and gets up and walks about. AR 30. She could stand for about 10 to 15 minutes and walk a half-block. AR 30. She can lift a "couple" gallons of milk. AR 31.

In describing her depression, Plaintiff testified that she feels like "everything's going wrong in the world." She also began hearing voices, but they have lessened since she started medication. AR 31. Plaintiff tries to ignore the voices by going back to bed. AR 32.

When questioned by her attorney, Plaintiff testified that she checked herself into the hospital for depression in July 2008 and stayed for three or four days. AR 33. She was hearing voices that told her that she was no good and that she should swallow some pills. AR 34. Plaintiff took some pills and had planned to commit suicide. AR 34. Her medications were changed while she was hospitalized. AR 33. She currently takes Prozac, Wellbutrin and Abilify and takes the medications as prescribed. AR 33.

Plaintiff estimated that she stays in bed for 16 to 17 hours a day and only gets out of bed when she has to go somewhere. AR 35.

Plaintiff testified that while her application was pending, she applied for job openings. To help in her job search, she has been attending a program through Fresno County Mental Health for the past seven months where she types and attends a program that helps with her attention. She has problems with attention, though, and is forgetful. She has not been attending for the past four or five weeks. AR 36-37.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work history. This person would be limited to simple, repetitive work. The VE testified that this person could perform Plaintiff's past work in housekeeping and as a "sorter of merchandise or garments." AR 38.

For the second hypothetical, the ALJ asked the VE to assume that this person could not complete an eight hour day or a 40 hour work week. The VE testified that this person could not perform Plaintiff's past work or any other work in the national economy. AR 39.

Medical Record

Plaintiff has a history of hypertension, asthma, hepatitis C, pneumonia, arthritis and hyperlipidemia. She used drugs, but quit in 1995. AR 178, 182, 209, 324.

An October 2003 ultrasound of Plaintiff's abdomen was unremarkable. AR 183.

Plaintiff's treating physician, Ben Rad, M.D., diagnosed her with depression in November 2004. AR 277. He also diagnosed her with depression several times from 2005 through 2007, but did not prescribe any medication. AR 276, 309, 381, 383, 389

Plaintiff received treatment from Fresno County Mental Health for depression in December 2004. She reported "some level" of moderate depression, but spent most of the time discussing her hepatitis C. Plaintiff needed a therapist's approval to begin Interferon treatment. She stated that her depression began after her hepatitis C diagnosis. Plaintiff was currently in the Office Assistant Program at the Chavez School. On mental status examination, Plaintiff was calm and cooperative, though her speech was slowed and underproductive. Her mood was anxious and her affect was blunted. Plaintiff denied hallucinations and current suicidal ideations, but explained that she had attempted suicide twice in the past. Her memory, judgment and insight were fair. Plaintiff's current GAF score was 51. Richard Morgott, Ph.D., LMFT, diagnosed moderate depression with associated anxiety. Plaintiff was taking an anti-anxiety medication prescribed by her treating physician, but was not on an anti-depressant and did not request to see a psychiatrist. Instead, Plaintiff focused on receiving a referral for Interferon. AR 247-252.

On February 15, 2005, Plaintiff saw a counselor at Fresno County Mental Health when she needed a referral to a hepatitis specialist. She reported that she was going to school and getting trained "for business." She was doing well, though she reported getting depressed at times because her husband's health was declining. AR 228. Plaintiff's case was ultimately closed on April 5, 2005, due to non-participation and loss of contact. AR 236.

An August 2006 ultrasound of Plaintiff's abdomen showed fatty infiltration of the liver, but was otherwise normal. AR 190.

On November 2, 2006, Plaintiff saw Sharon L. Silva, LCSW, at Fresno County Mental Health. She reported that she has a lot of anxiety and anger, and that she has lost weight because she doesn't care to eat. On mental status examination, her mood was euthymic and her behavior was calm. Her affect was appropriate, though mildly blunted. Plaintiff denied hallucinations and suicidal ideations. Memory, insight and judgment were good, as was her general fund of knowledge. Plaintiff's GAF score was 60. Plaintiff was diagnosed with depression, not otherwise specified, by history, anxiety disorder, not otherwise specified, by history, and polysubstance dependence in full sustained remission. She was referred to various support groups. AR 241-243.

On November 7, 2006, Plaintiff reported during group therapy that she was very angry about what was going on in her life and wanted to know how to deal with the anger. Her husband was recently diagnosed with hepatitis C and her 19 year old son no longer needed her. AR 224.

On November 28, 2007, Plaintiff reported that she was upset and angry and felt like she was being mistreated by Fresno County Mental Health and by society. Plaintiff was upset with the staff because she was sent to group therapy rather than individual therapy. She was also unhappy with her medication. AR 221.

On January 2, 2007, Richard Eidenschink, LMFT noted that Plaintiff was benefitting a lot from group therapy and was less depressed, less irritable and had "greatly increased" motivation. Plaintiff also had more energy and was learning how to use other community resources. AR 370.

On January 9, 2007, Plaintiff told Mr. Eidenschink that she was pleased with her progress in group therapy and felt happier and more empowered. Her affect was bright. Plaintiff was less depressed and less irritable than when she first began group therapy. AR 369.

Group notes from January 23, 2007, indicate that Plaintiff made good progress in the group and now rated herself as an 8 out of 10. After 10 group sessions, Plaintiff was now "much calmer, more confident, more assertive, more loving with her husband and son." AR 213-222. Plaintiff indicated that she intended to continue receiving support. AR 213.

Plaintiff saw Emmauel J. Fantone, M.D., on January 27, 2007, for a mental health assessment. Plaintiff reported that her depression had worsened recently due to her husband's illness. He noted that Plaintiff had moderate to severe depression for the past 10 years and moderate to severe anxiety for the past year. She had slight to moderate problems with attention/concentration and had a moderate problem with hallucinations for the past 3-6 months. Her symptoms included depression, auditory/visual hallucinations, anxiety and a strained relationship with her husband. Dr. Fantone diagnosed dysthymic disorder, depressive disorder, not otherwise specified and psychotic disorder, not otherwise specified. Her GAF was 55. Dr. Fantone noted ...


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