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Smith v. Astrue

June 15, 2010

MICHELLE SMITH, 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 Michelle Smith ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income pursuant to Title XVI 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 August 2, 2007, alleging disability since March 8, 2001, due to depression and post-traumatic stress disorder ("PTSD"). AR 138-143, 147-153. After Plaintiff's application was denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge ("ALJ"). AR 92-92, 101-105, 106-107. On November 21, 2008, ALJ Stephen Webster held a hearing. AR 21-52. He denied benefits on March 9, 2009. AR 7-20. The Appeals Council denied review on May 20, 2009. AR 1-3.

Hearing Testimony ALJ Webster held a hearing on November 21, 2008, in Fresno, California. Plaintiff appeared with her attorney, Melissa Proudian. Vocational expert ("VE") Jose Chaparro also appeared and testified. AR 21.

Plaintiff testified that she was born in 1988. She was 5 feet, 4 inches tall and weighed 149 pounds. AR 24. Plaintiff has a one year old son and lives with him in an apartment. AR 25. She is not married. AR 24. She has never had a driver's license and either walks or relies on her grandmother for transportation. Plaintiff is able to take care of all her personal needs. AR 25. She is also able to cook, clean, do laundry and shop. Plaintiff takes care of her son most of the time, but sometimes needs help. AR 26.

Plaintiff watches televison "most of the time" when she isn't taking care of her responsibilities. She also spends about an hour every two weeks reading and at least two hours a day on the computer. AR 26-27. Plaintiff has no friends and visits with family occasionally. She is not able to attend church. AR 27.

Plaintiff finished 11 years of school and has not received her GED. AR 27. During high school, she took both regular classes and special education classes. AR 29. She previously received benefits from March 2001 through June 2006. Since then, she worked from May 2007 through August 2007 cleaning houses. She has not had any other job. AR 28, 32.

Plaintiff testified that she has problems with her kidneys and suffers from depression and PTSD. She receives treatment for her kidneys once every three months. Plaintiff also sees a mental health counselor once a week and a psychiatrist once a month. AR 30. The medication she receives from the psychiatrist does not help. When she feels depressed, she wants to kill herself and doesn't care what anyone thinks. AR 30. She also feels sad and worthless. AR 31. The PTSD causes her to always be tired and not want to be "bothered with anybody." When she is anxious, sometimes her heart hurts so bad that she can't breathe. AR 31.

Plaintiff did not have a problem sitting, but thought she could stand for about 20 to 30 minutes because of her kidneys. AR 31. She thought that she could walk a mile and lift 20 to 30 pounds. AR 32. Plaintiff can be in small crowds but doesn't want to be in large crowds. AR 39.

When questioned by her attorney, Plaintiff testified that when she is depressed, she stays in her room and cries. This goes on for days. AR 32. She also doesn't eat and doesn't get up to brush her hair or teeth when she is depressed. Plaintiff explained that she is like this for two weeks out of the month. AR 33. Her grandmother checks on her every day and helps her take care of her son. When she is depressed, her ex-boyfriend takes care of her son because she cannot function enough to care for him. AR 32-33.

Plaintiff last tried to kill herself in August 2008 when she slit her wrist and tried to stab herself. AR 34. She was transported to the hospital by ambulance and stayed overnight at PACT. AR 34. Plaintiff was also hospitalized in April 2008 after she tried to kill herself. AR 35. She has been hospitalized at least three times over the last year and a half. AR 35. Plaintiff cuts herself about every other month because of depression. Hospitalization doesn't make her feel better, but just "contains" her until she can get out and do it again. AR 38-39.

Plaintiff explained that she cannot make herself feel better when she is depressed. She does not have any friends because her mother killed her boyfriend when she was younger and her friends turned on her. Plaintiff witnessed the killing and it now causes her anxiety. She still feels that she could have helped her mother. AR 36.

Plaintiff testified that she cannot concentrate because she's always thinking that she doesn't want to be here anymore and that life isn't worth living. She estimated that she can pay attention for two hours before having suicidal thoughts and becoming depressed. AR 36-37. She feels anxious or nervous all the time, but when it gets severe, it will last a day, or at least a couple of hours. Breathing sometimes works to relieve the anxiety. AR 37.

Plaintiff takes two medications for depression. The medications do not cause side effects but make her feel worse. She has told her doctor that the medication doesn't work and he tries a higher dose or a different medication. AR 38.

Plaintiff's grandmother, Jo Ann Williams, also testified. She last lived with Plaintiff about a year ago, but also lived with her for four months this year. AR 40. She sees Plaintiff almost every day, and she talks to her on the days she doesn't see her. AR 41. Ms. Williams usually spends all day with Plaintiff when she sees her. AR 41.

When questioned by Plaintiff's attorney, Ms. Williams testified that Plaintiff has depression and PTSD. She has also had anxiety most of her life. AR 41. Ms. Williams believes that these diagnoses affect Plaintiff's ability to function because when her depression and anxiety are "real bad," she doesn't do anything except cry and stay in a dark room. AR 42. She also gets moody and will try to harm herself. AR 43. When Plaintiff was living with her, this happened just about every day. Plaintiff had problems going to school because the depression caused her to not want to talk to people or see anyone. AR 42. Since August 2007, she estimated that Plaintiff has been depressed for about three weeks per month. AR 42.

Ms. Williams last saw Plaintiff try and hurt herself about a month and a half ago. Plaintiff was depressed and said she was tired of living. She got a kitchen knife and cut herself on the patio. Ms. Williams called police and Plaintiff was taken to the PACT unit, where she stayed overnight. AR 43.

Ms. Williams further testified that Plaintiff does not eat and does not feed her son when she is depressed. AR 43. When Plaintiff has her son, Ms. Williams calls her every day to see if she needs help. She usually goes over two or three times a week. AR 44. Ms. Williams thought that Plaintiff could not take care of her son alone, though she noted that otherwise, Plaintiff was "doing pretty good." AR 44-45.

Ms. Williams noted that therapy seems to help when Plaintiff is talking to her counselor, but she becomes depressed again when she comes home. AR 45. Not having money or a job, and not being able to care for herself and her son, triggers mood changes and depression. Plaintiff gets sad and just wants to give up because she fails at everything she tries to do. AR 45. Ms. Williams did not think Plaintiff could work eight hours a day, for five days a week, because she has difficulty concentrating and does not "process things the way normal people" do. For example, she may take constructive criticism as a reprimand and ends up in a "messed up mood." AR 46.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work history. This person had no exertional or postural limitations, but was limited to simple, repetitive tasks. The VE testified that this person could perform medium jobs such as meat trimmer, floor waxer and kitchen helper. AR 48.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift 20 pounds occasionally, 10 pounds frequently, and could sit, stand and/or walk for six out of eight hours. This person is limited to simple, repetitive tasks. The ALJ testified that this person could perform the light ...


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