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Ballesteros v. Astrue

August 30, 2010


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge



Plaintiff Josefina V. Ballesteros ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying her application for Disability Insurance Benefits ("DIB"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Agency is REVERSED and REMANDED for further proceedings.


Plaintiff filed an application for DIB on August 2, 2004. (Administrative Record ("AR") 27). Plaintiff originally alleged that she is disabled due to pain and weakness as a result of chemotherapy to treat her breast cancer. (AR 52, 62). Plaintiff subsequently alleged that she is also disabled due to neck pain from a bulging disc between her C4-5 annulus, shoulder pain from a tear in her biceps and stress. (AR 72, 76). Plaintiff noted that her disability onset date was July 8, 2003. (AR 52).

The Agency denied Plaintiff's claims for benefits initially and upon reconsideration. (See AR 29-33, 36-40). On February 21, 2006, Administrative Law Judge ("ALJ") Sherwin Biesman conducted a hearing to review Plaintiff's claims. (AR 280-96). Plaintiff, who was represented by counsel, testified. (AR 282-96). The ALJ denied benefits on July 6, 2006. (AR 12-16). Plaintiff sought review of the ALJ's decision before the Appeals Council. (AR 7). On October 12, 2006, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 4-6). Plaintiff commenced an action in this Court, Case Number CV 06-07943 VAP (SS), on December 14, 2006.

The undersigned recommended that the matter be remanded for further administrative proceedings on March 3, 2008, directing the ALJ to reevaluate the opinions of the treating physician and offer specific and legitimate reasons if he intended to reject them, re-evaluate Plaintiff's credibility and offer clear and convincing reasons if rejecting it and to re-evaluate Plaintiff's RFC and support his determination with substantial evidence in the record. (AR 349). On March 25, 2008, Judge Virginia A. Phillips adopted this recommendation and the case was remanded. (AR 375).

On October 30, 2008, a second administrative hearing was held with new evidence. (AR 414-440). On May 15, 2009, the ALJ issued a decision finding Plaintiff not disabled. (AR 303-309). Plaintiff filed the instant action on September 1, 2009.


A. Plaintiff's Medical History

Plaintiff has the following impairments: history of breast cancer currently in remission, lumbar disc disease, neck pain secondary to a cervical disc bulge and left shoulder pain secondary to a rotator cuff tear. (AR 305-306). Plaintiff also has a history of chronic anxiety disorder and depression. (AR 316).

Dr. Robert Finkelstein, Plaintiff's primary doctor for thirty-one years, (AR 286), wrote the Agency a letter on February 10, 2006, stating that he believed Plaintiff's severe anxiety disorder and depression rendered her "fully incapacitated and unable to perform any type of employment, part time or full time." (AR 256). Dr. Finkelstein stated that he had treated Plaintiff for these symptoms. (Id.). Plaintiff received prescriptions for Ativan, Lorazepam, Paxil and Wellbutrin, which she took to treat her anxiety and depression. (AR 257-66).

B. New Evidence

The District Court directed the ALJ to further develop the record by retaining the services of a consultative examiner to offer her opinions after an examination of Plaintiff. (AR 373). Plaintiff underwent a state agency consultative psychological examination. Additionally, after the remand, Facey Medical Group submitted updated evidence through July 2008. Two medical experts and Plaintiff testified at the hearing. Lastly, Plaintiff submitted a letter from Judy Sturman, her licensed clinical social worker. Ms. Sturman is a board certified diplomate in clinical social work and a master of social work. (AR 311).

1. Consultative Examination

On December 29, 2008, Dr. Evelyn Garcia performed a psychological evaluation at the request of the Department of Social Services. (AR 403). Plaintiff reported to Dr. Garcia that she needed help with shopping, making meals and doing household chores due to her pain, anxiety and depression, though she could dress, bathe and walk on her own. (AR 406). Her husband drove for long trips and managed Plaintiff's money. (Id.). Dr. Garcia noted that Plaintiff's mood was anxious and that Plaintiff became teary-eyed during certain tasks. (Id.). Dr. Garcia opined that Plaintiff's concentration and attention span were mildly impaired but she was able to do various tasks. Based on test results and clinical data, Dr. Garcia opined that Plaintiff's overall cognitive ability fell within the borderline range and that diagnoses included major depressive disorder and anxiety disorder. (AR 408). Dr. Garcia noted difficulty with daily tasks due to chronic pain, anxiety and depression. (Id.). Dr. Garcia opined that Plaintiff would be able to understand, remember and carry out short and simplistic instructions and that Plaintiff has a mild inability to understand, remember and carry out detailed instructions but could make simplistic work-related decisions. (Id.). Dr. Garcia recommended that Plaintiff continue psychological treatment in order to help her overcome her depression and anxiety. (AR 409).

2. Updated Records From Treating Physician

Updated records from Dr. Finkelstein's medical group, Facey Medical Group, revealed that Plaintiff still experienced recurring problems with depression and anxiety disorder. In April 2008, Plaintiff's depression was under very good control and she asked to discontinue her medication. (AR 327). The doctor lowered her dosage. (AR 327). At her June 27, 2008 appointment, her doctor reported that her depression with anxiety disorder was still under excellent control but Plaintiff remained on Ativan and Wellbutrin. (AR 317). However, Plaintiff was then advised at her July 17, 2008 appointment to increase her Wellbutrin dosage again for her anxiety. (AR 313-315). She was reportedly seeing a therapist in July 2008. (AR 313-315). The most recent report from Facey Medical Group reports that Plaintiff still suffered from depression and anxiety and was on medication (Wellbutrin and Ativan) as of July 2008. (Id.).

3. Testimony of Medical Experts

Glenn Griffin, M.D., an impartial medical expert, testified at trial. He stated that he did not review the Facey Medical Group records. (AR 419). He believed Plaintiff had a severe condition and required further psychological assessment to determine how severe. (Id.).

Reuben Beezy, the second medical expert, did not comment on Plaintiff's psychiatric manifestations. (AR 422). He testified that Plaintiff had glaucoma, neck pain with radiation into the arms, shoulder pain secondary to a rotator cuff tear, which was confirmed by an MRI, back pain and benign postural vertigo. (AR 422-423). Dr. Beezy opined without explanation that none of Plaintiff's conditions met a ...

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