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Arroyo v. Astrue

October 28, 2010

GEORGE ARROYO, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER REVERSING AGENCY DETERMINATION AND REMANDING FOR PAYMENT OF BENEFITS

Plaintiff George Arroyo, proceeding in forma pauperis, by his attorneys, Christenson Law Firm, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits pursuant to Title II, and supplemental security income ("SSI") pursuant to Title XVI, of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following a review of the complete record and applicable law, this Court concludes that the agency erred in determining that Plaintiff did not qualify for disability benefits and remands this case for payment of benefits.

I. Administrative Record

A. Procedural History

On July 10, 2006, Plaintiff protectively filed a Title II application for a period of disability as well as applying for SSI. AR 7. His claims were initially denied on March 5, 2007, and upon reconsideration, on June 8, 2007. AR 7. On July 5, 2007, Plaintiff filed a timely request for a hearing. AR 7. Plaintiff appeared and testified at a hearing on September 18, 2008. AR 34-78. On January 28, 2009, Administrative Law Judge Bert C. Hoffman, Jr., denied Plaintiff's application. AR 7-15. The Appeals Council denied review on May 1, 2009. AR 1-3. On June 16, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

B. Factual Record

Plaintiff's father's report. On October 4, 2006, Plaintiff's father, Gilbert Arroyo ("Arroyo"), completed a third-party adult function report. AR 132-139. Arroyo saw Plaintiff every other month for lunch and a visit to Plaintiff's grandmother, who is in a "rest home." AR 132.

Arroyo reported that Plaintiff experienced insomnia from stress and from the bad things said by the voices in his head, especially at night. AR 133, 138. Plaintiff had very low self-esteem, which Arroyo attributed to Plaintiff's bad experiences as a special education student. AR 133, 139. He handled stress poorly. AR 138.

Plaintiff isolated himself. AR 137. He went outside "only when he ha[d] to," since he was afraid of the outside world. AR 135. Plaintiff was afraid of people that he did not know and was hostile to authority. AR 137. He shopped early in the morning when less people were in the store. AR 135. Plaintiff needs someone to accompany him "but he will not admit it." AR 136. His mental illness affects his memory and ability to hear and speak, and to get along with others. AR 137.

Plaintiff has a bad knee that was "eaten away" by infection. AR 133. He wears a knee brace to prevent the joint from bending to the side or back. AR 138. Plaintiff has difficulty lifting, walking, squatting, bending, kneeling, and climbing stairs. AR 137. Plaintiff can walk only about two blocks before needing to rest. AR 137.

Plaintiff's personal care is erratic. AR 133. Although he sometimes remains in his bed clothes all day, he will shower multiple times if he is going out. AR 133. He does a fair job of feeding himself, but, according to his father, eats too much meat. AR 133, 134. His hair care and shaving is inconsistent. AR 133.

Brain-injured at birth, Plaintiff has a low IQ that inhibits understanding, following instructions, and concentrating. AR 137, 139. He manages his own finances but frequently has problems with his checking account and debit card. AR 135. His father has frequently "bail[ed] him out." AR 135. Since his mental condition has worsened, Plaintiff has asked his parents for money more frequently. AR 136.

Plaintiff keeps his bathroom very clean. AR 133. He washes his clothes at an aunt's house because he is afraid to use the laundry in the apartment complex. AR 133.

Adult function report. In an adult function report dated October 10, 2006, Plaintiff reported that he lived alone and tried to stay in his apartment all day.*fn2 AR 140. He watched television and cared for his cats. AR 140, 141, 144. He did not drive at night since that triggered panic attacks. AR 141, 146. If Plaintiff could, he would never leave the house. AR 143. He disliked changes in routine. AR 146. Plaintiff heard voices and had hallucinations. AR 146

Plaintiff spoke with his parents on the telephone twice a week. AR 144. He did not socialize because the presence of too many people made him anxious. AR 141, 144. He saw one person, named Charlie, every day.*fn3 AR 146.

Plaintiff got along well with authority figures. AR 146. He had been fired from a job for problems getting along with others but could not remember the employer's name. AR 146.

Plaintiff slept poorly for four or five hours a night. AR 141. He did not sleep soundly and had nightmares. AR 141.

Plaintiff bought a family pack of meat and cooked it for the week. AR 142. He then microwaved his meals each day. AR 142. Plaintiff cleaned his own apartment and did his own laundry. AR 142. Because he became confused with math, he had overdrawn his checking account. AR 143.

Plaintiff used a pill box to help him remember to take his medication.*fn4 AR 142. He sometimes missed his doctor's appointments because he forgot to keep his calendar. AR 144.

Plaintiff had a bad left knee. AR 145. He could walk about thirty minutes before needing to rest for fifteen minutes or so. AR 145.

Plaintiff had difficulty following written instructions but could do better with verbal instructions. AR 145. He did better if the verbal instructions were repeated many times. AR 145. His mind wandered, and he could not concentrate. AR 145.

Tulare County Mental Health. Plaintiff's TCMH records for the time period from June 2006 through August 2008 appear at AR 244-353. These generally consist of notes tracking Plaintiff's progress with medications, therapy, and participation in Alcoholics Anonymous (AA). Throughout much of this period, Plaintiff picked up his medications each week as a result of a suicide attempt in which he purposely overdosed his medications. AR 336.

Plaintiff had suicidal and homicidal thoughts. See, e.g., AR 333, 335. These included urges to run over pedestrians (AR 304, 307, 335, 349), stab people (AR 304), pour gasoline over himself (AR 335), step in front of cars (AR 336), put his head in the garbage disposal (AR 336), hit himself (AR 336), and put his arm down the garbage disposal (AR 347, 349, 350). On March 27, 2008, Plaintiff told psychiatrist Carmen Lopez, M.D., that he did not really intend to die but felt good when he put himself in danger. AR 336. Throughout the TCMH reports, Plaintiff consistently denied to his therapists that he intended to act on his suicidal and homicidal urges. Nonetheless, Plaintiff attempted suicide on multiple occasions, including by overdosing on Tylenol PM in June 2001. AR 304. Just prior to his appointment on October 6, 2006, Plaintiff overdosed his sleeping pills and was purged at the emergency room. AR 302. A suicide attempt in May 2007 nearly succeeded (see infra).

In his initial assessment of Plaintiff on June 1, 2006, therapist William Seegel noted that Plaintiff "wasn't able to define Charlie as a[n] auditory and visual hallucination." AR 307. Plaintiff told Seegel, "Because Charlie is back in my life I need help because I don't have the ability to kick him out." AR 307.

On June 20, 2007, Plaintiff complained to Seegel that Charlie was not doing his share of housework. AR 269. After confirming that Plaintiff called Charlie an "imaginary playmate," Seegel asked how Charlie could help if he were imaginary. AR 269. Plaintiff was unable to provide an explanation. AR 269.

On June 26, 2007, Seegel noted that Plaintiff's social security disability application had been denied. AR 267. Plaintiff asked Seegel to provide a letter confirming his disability, but Seegel declined, citing TCMH policy to not do so. AR 267.

On June 29, 2006, psychiatrist Maximo Parayno, M.D., noted that his initial impression of Charlie was that Plaintiff had an actual roommate named Charlie. AR 305. Parayno suggested that Plaintiff might have multiple personalities. AR 305.

On July 25, 2007, Plaintiff told Seegel that his sister had invited him to go to Disneyland but that it would be overwhelming and too scary. AR 265. Plaintiff did not attend afternoon AA sessions since more people attended that session than the morning session. AR 265. Seegel suggested using the proposed visit as a long-term goal. AR 265. Plaintiff did not respond. AR 265.

Plaintiff's stepfather died in July 2007. AR 259, 261, 263. Although Plaintiff initially wanted to go to comfort his mother, he ultimately declined to travel by bus to the San Francisco area. AR 261, 263. Plaintiff also feared attending the mid-August funeral because of the many people that would be present. AR 259. (The record does not disclose whether Plaintiff ultimately attended the funeral.)

Psychiatric evaluation. Following a January 19, 2007, examination of Plaintiff, psychologist Greg Hirokawa, Ph.D., provided a psychiatric evaluation for the agency, based on Plaintiff's self-reports and an unidentified report from a "marriage and family therapist." AR 180-185. Plaintiff told Hirokawa that he felt depressed and anxious, had panic attacks, heard voices, and saw an imaginary person named Charlie. AR 180. He reported paranoia, difficulty being around others, reading problems, and being withdrawn. AR 180.

Plaintiff reported a long history of anxiety and depression. AR 180. His current medication was Lexapro(r).*fn5 AR 181. He had heard voices since he was a child and had begun seeing Charlie about three years earlier. AR 180. He admitted five suicide attempts, the most recent of which occurred a year earlier. AR 180, 181. Plaintiff denied ever having had a head injury. AR 181. He denied ever having been in a psychiatric hospital. AR 181. Plaintiff had used alcohol from the time he was fifteen years old until a few months earlier. AR 181. He had twice been arrested for driving while intoxicated. AR 182.

Hirokawa found Plaintiff's appearance appropriate; his stream of mental activity and speech within normal limits; his thought content appropriate; his mood and affect depressed; his intellectual functioning and sensorium to be average; his memory intact (he remembered what he had eaten for breakfast and recalled various life events*fn6 ); fund of knowledge and information intact; calculations accurate; able to articulate similarities and differences of common objects. AR 183. Concentration was adequate for conversation, but Plaintiff could not spell "world" backwards and could not perform a simple three-step command. AR 183. Plaintiff "reported having one friend and described their relationship as good." AR 184. Hirokawa diagnosed:

Axis I: 1. Depressive disorder, NOS.

2. Rule out learning disability.

3. Panic disorder without agoraphobia.

4. Alcohol dependence in recent remission

Axis II: Personality Disorder, NOS.

Axis III: None.

Axis IV: Stressors: Economic, social environment problems.

Axis V: Current GAF 63, within last year, 63.

AR 184.*fn7 Based on his examination of Plaintiff, Hirokawa opined: The claimant's reported auditory and visual hallucinations appear to be atypical and not reflective of a formal thought disorder. His symptoms of depression and anxiety appear to be within the mild range. Communications skills were fair.

The claimant is currently receiving treatment for this disorder. Response to treatment has been fair. The likelihood of the Plaintiff's mental condition improving within the next 12 months is fair.

The claimant has had a positive work history consisting of maintaining a steady job for an extended period of time. He also appears to have a personality disorder which consists of poor interpersonal skills.

AR 184.

Accordingly, Hirokawa provided the following functional assessment of Plaintiff's psychiatric condition:

The claimant is capable of managing his funds.

The claimant's ability to remember locations and work-like procedures is mildly limited. The claimant's ability to understand and remember very short and simple instructions is mildly limited. The claimant's ability to understand and remember detailed instructions is mildly limited.

The claimant's ability to carry out very short and simple instructions is mildly limited. The claimant's ability to maintain attention and concentration for extended periods is mildly limited.

The claimant's ability to accept instructions from supervisors and respond appropriately to criticism is mildly limited. The claimant's social judgment and awareness of socially appropriate behavior is mildly limited.

The claimant's ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances is mildly limited. The claimant's ability to function independently and sustain an ordinary routine without special supervision is mildly limited.

The claimant's ability to complete a normal workday/workweek without interruptions from psychologically based symptoms and perform at a consistent pace is mildly limited.

The claimant's ability to interact with co-workers and the general public is mildly limited. The claimant's ability to withstand the stress of a routine workday and deal with various changes in the work setting is mildly limited.

The likelihood of the claimant emotionally deteriorating in a work environment is minimal.

AR 184-185.

Agency psychiatric review. On February 21, 2007, Raffi Tashjian, M.D., determined that an RFC assessment was needed based on Plaintiff's affective disorders, anxiety-related disorders, and substance addiction disorders. AR 186. Tashjian documented (1) 12.04 an affective disorder: disturbance of mood, accompanied by full or partial manic or depressive syndrome, as evidenced by depressive syndrome; (2) 12.06 an anxiety-related disorder evidenced by recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror, and sense of impending doom occurring on average of at least once a week; and (3) substance addiction in remission. AR 188, 189-190, 192.

Tashjian concluded that Plaintiff had a mild restriction of activities of daily living; moderate difficulties in maintaining social functioning; and moderate difficulties in maintaining concentration, persistence, or pace. AR 194. Tashjian concluded that Plaintiff was not significantly limited in all areas but that he was moderately limited in the ability to understand and remember detailed instructions; moderately limited in the ability to carry out detailed instructions; and moderately limited in the ability to interact appropriately with the general public. AR 196-197. Tashjian incorporated the MRFC completed by Monica McGuirt: "Able to sustain simple repetitive tasks with adequate pace and persistence. Can adapt and relate to co-workers and supervisors with limited public contact."*fn8 AR 198.

May 2007 Suicide Attempt. On May 16, 2007, following an argument with his father about finances, Plaintiff attempted suicide by taking all of his medications (Ambien(r),*fn9 Lexapro(r), Remeron(r),*fn10 and Abilify(r)*fn11 ) with a pint of vodka. AR 235-236. His blood alcohol level at admission was 0.29. AR 219, 238. In the course of the suicide attempt, Plaintiff was speaking on the telephone with his mother. After his mother called the Visalia Police Department, Plaintiff was transported to the emergency room by Emergency Medical Services, accompanied by his aunt. AR 213, 220, 236.

Upon arrival, Plaintiff was critically ill and maintained on a ventilator. AR 217-218. He was admitted to Kaweah Delta hospital, and later transferred to Kaweah Delta Mental Health Hospital as an inpatient (under a California Welfare and Institutions Code § 5150 involuntary civil commitment). AR 215-216, 220, 236. He was given Haldol(r),*fn12 Ativan(r),*fn13 and Benadryl(r)*fn14 for agitation, aggression, and severe anxiety. AR 220.

A psychosocial evaluation completed by Sandra Shadley, LMFT, on May 17. 2007, reported that Plaintiff was an existing patient of Tulare County Mental Health (TCMH), participating in group therapy twice a week and individual therapy biweekly. AR 222. His diagnosis was major depression with psychotic disorder; social phobia; reading disorder; borderline features. AR 222. Although some documentation indicated mental retardation, TCMH reported that Plaintiff had never been formally diagnosed as mentally retarded. AR 219, 222.

G. Segrue, R.N., prepared a behavioral health assessment of Plaintiff for Kaweah Delta Mental Health Hospital on May 18, 2007. AR 235-240. Plaintiff expressed as his chief complaint: "I hear the voice of Charlie. I know he isn't real but he talks to me all the time." AR 235. Plaintiff had been depressed for twenty years and had attempted suicide approximately twenty times. AR 235. He had initiated treatment with Dr. Parayno at Tulare County Mental Health about one year earlier because of depression and suicidal thoughts, and saw therapist Bill Seegal in alternate weeks. AR 235. Segrue noted, "Client continues to have poor insight regarding his self care. Client remains [at] risk for suicide and has no viable plan for self care. [Patient's] father pays all [patient's] bills and currently is refusing to give [patient] any more money." AR 236.

Segrue reported that Plaintiff was at risk for further suicide attempts since (1) he remained depressed and had the means to attempt suicide using his medication; (2) he had a history of twenty suicide attempts; and (3) he perceived his response to his existing medication as minimal. AR 236. See also AR 219 (despite medication, Plaintiff continued to hallucinate). On a "mini-mental status exam," Plaintiff demonstrated poor concentration and minimal problem solving abilities. AR 237. Although polite and cooperative, Plaintiff was untidy and sad, with moderately impaired judgment and hallucinations. AR 237.

Jaffe's evaluation. Psychologist David E. Jaffe, Ph.D., a member of the managed care division of the TCMH special case investigation unit, evaluated Plaintiff for TCMH on May 29, 2007, and submitted a psychological evaluation on June 6, 2007. AR 277-286, 292. The purpose of the evaluation was "to clarify [Plaintiff's] psychiatric diagnosis and to make recommendations regarding treatment." AR 277. Jaffe met with Plaintiff and consulted Plaintiff's TCMH clinical chart and his therapist, Bill Seegel. AR 277.

TCMH had treated Plaintiff since approximately 2001.*fn15 AR 277, 279. Plaintiff's compliance with treatment and medication had varied over the years. AR 278. In the months leading up to the evaluation, Plaintiff had been compliant with treatment yet had continued to experience psychotic symptoms including auditory and visual hallucinations. AR 278.

According to TCMH records, Plaintiff had a history of depression and anxiety as well as "ruminations involving 'what it would be like to run' someone over in his car." AR 277. Uncomfortable with these thoughts, Plaintiff stopped driving and became increasingly isolated. AR 278.

Plaintiff was born prematurely and was delivered using forceps that injured his brain. AR 278. When he was six, he was accidentally hit with a baseball bat, losing consciousness and experiencing a head injury. AR 278. Plaintiff had knee surgery while in the seventh grade. AR 278. As a child, he had testicular surgery and now experiences odd groin sensations when anxious. AR 278.

Plaintiff's father physically and emotionally abused Plaintiff as a child. AR 278. His father had "uncontrollable rage" and beat Plaintiff, his sister, and his mother. AR 278. Plaintiff denied sexual abuse but had recounted at least one incident with sexual overtones. AR 278. As a child, Plaintiff had avoided going home to avoid his father. AR 278.

Plaintiff had close childhood friends until he moved in with his mother and stepfather in the eighth grade. AR 278. Thereafter, his peers rejected him. AR 278. His social support system was limited. AR 278. Although he had a serious relationship with a girlfriend for four years beginning when he was 24, Plaintiff lost interest in relationships and sexual intimacy beginning at about age 30. AR 278. Plaintiff explained to Jaffe, "I do not feel I can be there for others because my crap [emotional problems]...being alone is second nature...I do less harm by myself." AR 279.

Plaintiff attended special education classes and graduated from high school.*fn16 AR 279. Although he never repeated a grade, he is unable to read or write. AR 279. He had no significant behavior problems in school. AR 279.

As an adult, Plaintiff had worked as a custodian, "bar back" (bar helper), and bartender. AR 279. He had last worked as a custodian two years earlier, but was fired for excessive absenteeism. AR 279. Plaintiff explained to Jaffe that he had poor attendance because of his increasing anxiety about driving at night. AR 279. Since then, Plaintiff relied on his father for financial support. AR 279.

Plaintiff has had a variety of diagnoses, including major depression with psychotic features, alcohol abuse, alcohol dependence, borderline personality disorder, social phobia, reading disorder NOS, and psychiatric disorder NOS. AR 279. He has made multiple attempts at suicide. AR 279. Plaintiff has a history of low self-esteem, self-deprecating thoughts, fear of abandonment, and thoughts of stabbing someone. AR 280. He has both cut and punched himself. AR 280.

Writing of Plaintiff's most recent intake assessment on May 30, 2006, Jaffe wrote: Presenting symptoms included: isolation and fear of leaving the house, anxiety when driving secondary to thoughts of what it would be like to run over a pedestrian, "tingling sensations in my private area," fear that he will be in an automobile accident, avoidance of crowds and malls and depressed mood. The client also reported his "friend" named Charlie, an adult male companion who is always present and can be seen and heard by the client. This examiner asked the client to describe Charlie and he provided the following vague characterization: "He's a lot smarter than I, he's tall, clean cut, clean clothes you know." With regard to Charlie's voice, the client indicated "It's my voice," ...


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