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Rena Faye Perez v. Ichael J. Astrue

March 2, 2011


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



Plaintiff Rena Faye Perez ("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 Magistrate Judge for Findings and Recommendations to the District Court.


Plaintiff filed her application on May 16, 2006, alleging disability since May 14, 2006, due to mental problems and asthma. AR 75-80, 92-98. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 39, 40, 53. ALJ Sandra K. Rogers held a hearing on May 7, 2008, and issued a decision denying benefits on September 28, 2008. AR 11-21, 22-38. The Appeals Council denied review on March 26, 2010. AR 2-4.

Hearing Testimony

ALJ Rogers held a hearing on May 7, 2008, in Stockton, California. Plaintiff appeared with her attorney, Sengthiene Bosavanh. Vocational expert ("VE") Stephen Schmidt also appeared and testified. AR 22.

Plaintiff testified that she was 27 years old at the time of the hearing. She was not married, though her boyfriend was getting ready to move in. Plaintiff was 5 feet, 6 inches tall and weighed 240 pounds. AR 25. She sometimes drives when her car works, no more than 10 miles a week. Plaintiff used to drive more but she hardly goes anywhere now unless she has to. AR 26.

Plaintiff explained that she has panic attacks and can't leave the house, so she tries to have everyone else do things for her. AR 26. When an attack comes on, her breathing gets really fast and she wants to cry. She stated that she was trying not to have an attack "right now." Plaintiff sleeps a lot because a lot of things stress her out and she tries to relax. AR 26-27. She estimated that she sleeps 12 to 15 hours day. As examples of things that stress her out, she explained that her son has ADHD and she can't take it when he fights with her youngest son. She has to have someone come pick up the kids so that she can try and relax. She also couldn't go to a dentist appointment because it was a really bad day and she couldn't get out of bed. AR 27. During the week, Plaintiff estimated that she has one or two good days and on those days, she tries to get stuff done. Her dad will take her out to handle business or things that she couldn't take care of before. She tries to get as much done as possible because she doesn't know when she'll have another good day. AR 27-28.

Plaintiff has to leave the house everyday to pick up her son from school, which is a block away. She also sometimes goes to the store across the street for cigarettes but does not socialize or have any friends. AR 28. Plaintiff tries to schedule her doctor's appointments every other month so that she doesn't "freak out" about events coming up together. AR 28. She was supposed to see the psychiatrist once a month but never went back because she can't keep regular appointments. AR 29.

Plaintiff also has crying attacks at least once day. She had a 30 minute crying attack before coming to the hearing because she knew it was a big deal and she had to go a long way from home without her boyfriend. AR 31. She didn't want to take her medication because she knew it would knock her out. AR 30.

Plaintiff testified that she also has depression, bipolar disorder and generalized anxiety. She takes medication to stabilize her mood swings and thinks her medications help her "as much as any medication could." Despite the medication, she continues to have symptoms. AR 32. Plaintiff has asthma, but since she doesn't do very much, it's okay. AR 33. She has no other physical problems. AR 33.

Plaintiff last worked 8 or 9 years ago as a janitor. She testified that she couldn't do the job and she only lasted 2 weeks because of crying spells. She didn't go back because she couldn't take it anymore. AR 33. Plaintiff has had no other jobs. She has her GED and went to trade school for computer graphics and photography. AR 33. She explained that she could not work because her panic attacks would prevent her from going to work everyday. AR 34.

Plaintiff has two children and takes care of them, though her boyfriend helps her most days. AR 34. Her parents also help her three or four times a week. Her boyfriend cleans up and does the chores. AR 35.

For the first hypothetical question, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience who would need a job involving only simple, repetitive tasks with no public contact and as little interaction with other employees and supervisors as possible. AR 35. The VE testified that this person could perform the positions of hand packer, machine operator and laundry worker. AR 35.

Plaintiff's attorney asked the VE whether someone with a poor ability to cope with daily work pressures could work, and the VE responded that this person could not work. AR 36. If this person could only leave the house two days of the week, there would not be any work available. AR 37.

Medical Record

On May 11, 2006, Plaintiff saw Alfonso Hernandez, LCSW, for a mental health assessment. Plaintiff reported significant childhood issues including physical abuse by her father. She also reported extreme domestic violence in her relationship with her ex-husband. Plaintiff had a history of methamphetamine abuse from age 15 to 23. On a separate questionnaire, Plaintiff indicated that she had every symptom of bipolar disorder. Mr. Hernandez diagnosed a history of bipolar disorder, mixed and post-traumatic stress disorder. He recommended individual therapy and Seroquel. AR 167-168.

Also on May 11, 2006, Plaintiff saw Nurse Practitioner Sheila Hernandez-Lee at Golden Valley Health Centers and complained of a history of bipolar disorder and post-traumatic stress disorder. Plaintiff requested medication and was prescribed Seroquel. AR 139.

After a visit on May 19, 2006, Nurse Practitioner Hernandez-Lee indicated that Plaintiff had bipolar disorder and instructed her to continue her medications. AR 138.

On August 2, 2006, Plaintiff saw S.K. Madireddi, M.D., for a consultive examination. She complained of bipolar disorder and asthma, though she indicated her asthma was under control. She reported that she takes care of her children and has not worked for some time because of past drug problems. She also stated that working was difficult because it makes her very depressed, it makes her cry and she had difficulty standing too long. Plaintiff was 5 feet, 6 inches tall and weighed 244 pounds. Plaintiff was overweight with full range of motion in all extremities. Motor strength was 5 out of 5 in all extremities and there were no sensory deficits. Dr. Madireddi diagnosed morbid obesity, history of bipolar disorder and asthma, in remission. He saw no basis for imposing any restrictions on physical grounds. AR 142-143.

On August 3, 2006, Plaintiff saw J.M. Azevedo, Ph.D., for a psychological evaluation. She complained of bipolar disorder and anxiety. Plaintiff reported that she was diagnosed with bipolar disorder by a psychiatrist about three months ago based on a long history of mood swings, anxiousness, restlessness and high energy levels. Currently, she described her depression as mild and her anxiety as severe. Plaintiff reported that she did her own cleaning, usually cooks and occasionally goes shopping. Plaintiff was not presently attending therapy for emotional problems, but she previously saw a psychiatrist at the Corner of Hope and had some brief battered women's counseling after a spousal assault. She also attended an inpatient drug rehabilitation program for nearly a year in 2004 and was hospitalized for psychiatric treatment for three days in 2003 secondary to a drug overdose. Plaintiff worked for a week or two in 2000 but left the job because she missed her kids and was on drugs at the time. Plaintiff has been incarcerated numerous times. She was taking Carbatrol, Paroxetine, a nasal spray, Albuterol and Advair. AR 144-145.

Plaintiff was somewhat dramatic during the examination but put forth good effort on testing. Plaintiff's mood was mostly anxious, exhibiting some restlessness throughout the examination. Her affect was consistent to thought content with a full range of emotional expression. Plaintiff's speech was rapid but not significantly impaired. There were no signs of any formal thought disturbance and she did not appear to be responding to any internal stimuli. Insight and judgment were somewhat limited and her concentration levels were mildly impaired. AR 146.

Dr. Azevedo concluded that Plaintiff's reported history and symptoms did not support a diagnosis of bipolar disorder. Rather, Plaintiff's symptoms reflected anxiety and chronic characterological patterns. Plaintiff's IQ scores were in the average to low-average range and her score on another test was "suggestive of malingered psychopathy." Dr. Azevedo explained that the hallucinations endorsed on the test were not acknowledged when the symptom domain was addressed during the interview, although hallucinations are mentioned in the medical record. Plaintiff's symptom endorsements were "dramatic in nature, consistent with possible extreme symptomology reporting." "This may reflect a cry for help or an exaggeration of real, but less prominent, pathology." AR 148.

He diagnosed generalized anxiety disorder, depressive disorder, not otherwise specified, methamphetamine dependence, in reported remission, history of alcohol and marijuana abuse, in reported remission, and rule out malingering. He opined that Plaintiff retained the general cognitive abilities to understand, remember and carry out one and two step instructions of mild to moderate levels of complexity and to make judgments on simple work-related decisions. Her history of poor judgments, however, may indicate that this is an area of inconsistency. Plaintiff's anxiety, limited frustration tolerance and poor coping skills may reduce her ability to manage work pressures. She had mild limitations in her abilities to maintain concentration, persistence and pace throughout the course of a typical workday and/or workweek. Plaintiff's anxiety and characterological factors may present barriers against her efficiency in interactions with supervisors, co-workers and the general public. She does not appear to have any psychological restrictions in managing activities of daily living. AR 148-149.

On September 15, 2006, State Agency physician E.B. Aquino-Caro, M.D., completed a Psychiatric Review Technique Form and opined that Plaintiff's mental impairment was not severe. Dr. Aquino-Caro noted that Plaintiff's mental status was intact, she had an average IQ and she was independent with activities of daily living. She also noted that Plaintiff's test score indicated that she was exaggerating her symptoms. AR 150-160.

Plaintiff returned to Golden Valley Health Centers on November 14, 2006, and was assessed by Mr. Hernandez. Her mood and affect were appropriate. Plaintiff reported that she was doing well, and that her energy and sleeping were good. Her moods were stable and she was doing better at home and in public. She reported being a little anxious, but functioning. Plaintiff was able to express her feelings about past issues. Mr. Hernandez diagnosed Plaintiff with bipolar disorder, mixed and post-traumatic stress disorder. He suggested individual therapy. AR 166.

On February 26, 2007, State Agency physician G. Ikawa, M.D., reviewed a case analysis and agreed with the September 15, 2006, finding that Plaintiff's mental impairment was not severe. AR 169-170.

On November 5, 2007, Plaintiff was seen at Golden Valley Health Centers and requested x-ray and laboratory results. She reported that she was feeling well, with no problems, but she appeared nervous and anxious. Her back x-rays were negative, though laboratory tests showed hypertriglyceridmia for which she refused medication. Plaintiff was instructed on her diet. AR 188, 194.

Plaintiff saw Natalie Mattos, P.A., at Golden Valley Health Centers on January 2, 2008, for follow-up after an emergency room visit for an acute panic attack. Plaintiff reported that she felt closed in and agitated. She had no delusions or hallucinations. Plaintiff was instructed to continue Carbatrol and Paxil and was given Benadryl, Haldol and Ativan. She was also referred for a psychiatric consultation. AR 186.

Plaintiff called Golden Valley Health Centers on January 7, 2008, and requested new medication. She was instructed to discontinue ...

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