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Parhan v. Astrue

September 10, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's applications under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. and 1381 et seq. (the "Act").*fn1 In her motion for summary judgment, plaintiff contends that the Administrative Law Judge ("ALJ") erred by:

(1) rejecting the opinions of plaintiff's treating psychiatrist and the Social Security consultative examiner without a legitimate basis for doing so; (2) failing to properly evaluate and credit plaintiff's third party witness statements; (3) failing to properly evaluate the severity of plaintiff's headaches and vertigo; and (4) failing to properly assess plaintiff's residual functional capacity ("RFC") and thus posing a legally inadequate hypothetical to the vocational expert. (Dkt. No. 19 at 4.) The Commissioner filed a cross-motion for summary judgment. (Dkt. No. 23.)

After careful consideration of the entire record, the arguments presented, and for the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.


A. Procedural Background

On February 17, 2005, plaintiff filed an application for social security disability and supplemental security income, alleging disability beginning on March 31, 2003 (Administrative Transcript ("AT") 14, 192-98.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 174-79, 182-86.) Plaintiff filed a timely request for a hearing, and the ALJ conducted a hearing on April 20, 2007 (AT 14.) Plaintiff, who was represented by counsel, testified at the hearing. (AT 60-95.) Additionally, an impartial medial expert and impartial vocational expert testified at the hearing. (AT 14.)

In a decision dated June 29, 2007, the ALJ denied plaintiff's application. (AT 45-59.) Plaintiff filed an appeal with the Appeals Council for the Social Security Administration. The Appeals Council, by order dated October 5, 2007, vacated the ALJ's hearing decision and remanded the case. In its remand order, the Appeals Council directed the ALJ to: (1) give further consideration to the treating source opinion and nonexamining source opinion and explain the weight given to such opinions; (2) make a finding regarding the severity of the claimant's alleged headaches and vertigo; (3) obtain additional evidence concerning the claimant's alleged mental impairments; (4) address a certain third party statement; and (5) obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base. (AT 14.)

The hearing on remand was held on May 2, 2008. (AT 14-29.) Plaintiff, who was represented by an attorney, testified at the hearing. (AT 96-159.) The ALJ issued a decision on July 21, 2008, denying plaintiff benefits because she was not under a disability within the meaning of the Social Security Act.*fn2 (AT 11-29.) Plaintiff filed a second appeal. However, the Appeals Council denied review, rendering the ALJ's July 21, 2008 decision the final decision of the Commissioner of Social Security. (AT 6-8.) Plaintiff herein seeks judicial review pursuant to 42 U.S.C. § 405(g).

B. Summary of Relevant Medical History and Evidence

The facts of the case are set forth in detail in the transcript of proceedings and are briefly summarized here.

Plaintiff claims disability on the basis of dizziness, headaches, anxiety, depression, panic attacks, nerve damage in elbows, and neck and back pain. Plaintiff frequently visited emergency rooms for treatment of her symptoms. A November 8, 2006 emergency room report summarized several of plaintiff's emergency room visits as follows:

This is a 32-year old African-American female seen for the third time in three days for a different complaint each day. She was seen on 11/05/2006, at that time for an altered level of consciousness. Seen again on 11/07/2006 for headache and on today's date, 11/08/2006 is seen for abdominal pain and shortness of breath. The patient was actually seen in conjunction with the resident on entering through the emergency department family practice resident. Her MPI was evaluated and actually she has a cluster of being seen in the past on multiple occasions. For instance, she was seen for three days in November of 2006, seen within three days of December 30, 2005. A similar presentation in October, 2003. The cluster of emergency room visits seems to run in 2-3's, but nevertheless she currently presents for a four day history of abdominal pain, headache which she was seen for on the day prior to presentation has resolved. On exam she is quite tremulous, has difficulty swallowing and "feels as though something" is in her throat.

(AT 770.)

On June 20, 2005, subsequent to her application for disability benefits, plaintiff underwent a consultative psychological examination administered by Dr. Janice Nakagawa, Ph.D. (AT 487-90.) At that time, plaintiff was a 31 year old female. She was living with her two children, ages 3 and 7. (AT 488.) Plaintiff told Dr. Nakagawa that she had difficulty being around people because of bad anxiety and vertigo. (AT 487.) She also complained of headaches and sleep problems. (Id.)

Dr. Nakagawa found plaintiff to be unreliable, tending to emphasize her limitations and difficulties. (Id.) Dr. Nakagawa stated that plaintiff "put forth very inconsistent effort on all testing. Impression was she was attempting to present in the worst possible light for secondary gain, i.e. malinger." (AT 489.) Because malingering*fn3 was suspected, Dr. Nakagawa administered the Rey 15-Item Memory Test, the results of which "clearly indicated malingering." (Id.) In sum, Dr. Nakagawa stated: "She lives alone with her two young children and is able to care for them. She may have some mental health issues, but given the test data in the present assessment, the only diagnosis that could be presently offered is malingering for secondary gain." (AT 490.)

Plaintiff also underwent a comprehensive orthopedic examination on July 29, 2005. (AT 491.) Plaintiff complained of neck pain, low back pain, headaches, anxiety and depression. (Id.) Dr. Ethelynda Jaojoco opined that plaintiff seemed to be suffering debilitating headaches and vertigo. Dr. Jaojoco also stated that plaintiff was able to stand and walk less than two hours and sit for less than six hours, and that plaintiff may require an assistive device such as a cane. (AT 495.) Dr. Jaojoco further opined that "[h]opefully the etiology of her problem will be determined and proper treatment initiated. With resolution of the vertigo and headaches she will likely have no restrictions." (Id.) Dr. Jaojoco concluded that plaintiff was able to lift and/or carry less than 10 pounds, and has postural limitations of no bending, stooping, crouching, climbing, kneeling, balancing, crawling and squatting. (Id.)

Records also state that plaintiff had been seen by Dr. Henry Ton, M.D., a psychiatrist, for weekly visits since December 2003. (AT 868.) Plaintiff was prescribed a variety of medications for her claimed mental health problems at different times, including Lexapro, Atavan, Cymbalta, Elavil and Prozac. (See AT 510.) Plaintiff sometimes attended a mental health group focused on panic attacks. Plaintiff's Sacramento County Mental Health treatment notes report that plaintiff "remains significantly impaired," and that although her medications were somewhat helpful, her treatment records stated that she would benefit from more involvement in the panic attack group. (AT 628.)

In February 2007, Dr. Ton issued a treating physician's RFC report which stated that plaintiff suffers from depressed mood, hopelessness, anxiety including fears of leaving her home, and obsessive compulsive hand washing and cleaning. (AT 868.) He diagnosed plaintiff with panic disorder, obsessive compulsive disorder and major depressive disorder. (Id.) He stated that the plaintiff was not capable of traveling alone, and that her prognosis was fair to guarded. (AT 869.) He opined that plaintiff's daily activities were severely restricted because of her condition. (AT 870.)

During her May 2, 2008, social security disability hearing, plaintiff testified that she had previously worked in a daycare and as a cashier at Kmart and Big Lots. She stated that she left the Big Lots job because of her anxiety and had not worked since that date. (AT 102.) Plaintiff testified that she did not vacuum, mop, clean the bathroom and rarely did laundry at home. (AT 104.) She stated that her son's father cooked meals and went grocery shopping. (Id.) She testified that her children's godmother helped to get the kids ready for school and took them to and from school. (AT 110.) Plaintiff testified that the children's godmother also sometimes prepared their meals, cleaned the house and helped plaintiff to shower. (Id.) Plaintiff testified that she did not leave the house to go to the movies, church, her children's school events, ...

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