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Adela M. Rodriguez v. Michael J. Astrue

April 7, 2011


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


Plaintiff Adela M. Rodriguez, by her attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits (DIB) under Title II of the Social Security Act and for supplemental security income ("SSI"), pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). Plaintiff's appeal addresses solely psychiatric limitations, not the physical limitations that also were part of her application for benefits. 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, this Court concludes that the ALJ's determination was not supported by substantial evidence. Accordingly, the Court reverses and remands for payment of benefits.

I. Administrative Record

A. Procedural History

On November 21, 2006, Plaintiff applied for disability benefits pursuant to Title II of the Social Security Act and for supplemental security income ("SSI"), alleging disability beginning July 15, 2003. Her claims were initially denied on April 12, 2007, and upon reconsideration, on August 9, 2007. On September 10, 2007, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at a hearing on November 18, 2008. May 18, 2009, Administrative Law Judge Michael J. Kopicki denied Plaintiff's application. The Appeals Council denied review on August 22, 2009. On October 8, 2009, Plaintiff filed a complaint seeking this Court's review.

B. Factual Record

Plaintiff (born May 12, 1959) was formerly an assistant administrator of a group home for disturbed adolescent boys. As assistant administrator, Plaintiff prepared paperwork; hired, fired, and supervised the staff of 22 people on weekends; and administered medication. Plaintiff was on her feet, standing or walking, about twelve hours a day. She was also required to lift and carry the residents when restraint was necessary. She lifted 100 pounds occasionally and 50 pounds frequently, carrying the boys from five to twenty-five feet on a daily basis. Prior to her administrative position, she was a group home counselor and a school social worker.

Plaintiff completed her bachelor's degree at Fresno State University. She also completed one year of studies in the master's program but suspended her studies following her first cancer diagnosis and did not complete her dissertation.

Plaintiff was attacked on the job on June 1, 2003--stabbed by a resident using a shard of glass. (One source described the glass as having been thrust deep into the tendon.) Threatening to kill her, the resident seriously cut Plaintiff's right knee (when she tried to kick the glass away), then attempted to cut her throat. After other staff subdued him, the resident said that he wanted to kill Plaintiff and had laughed at her during the attack. Plaintiff recalled his laughter and an "intense psychotic expression."

Plaintiff was treated in the emergency room, where she required thirteen stitches to close the leg wound. Two days later, she developed an infection, requiring further treatment. Within a few days, she began to experience frequent overwhelming flashbacks, nightmares, and intrusive thoughts that left her weeping. The psychological symptoms were accompanied by chest pain, shortness of breath, trembling, and dissociation. As time passed, the scar on Plaintiff's knee became a trigger for flashbacks, intrusive thoughts, and panic attacks.

When Plaintiff returned to work within a few days of the attack, Plaintiff's supervisor demoted her (although her salary remained the same), claiming that she was reorganizing the organization. Later in June, Plaintiff was placed on temporary disability (workers' compensation) because of her psychiatric problems. In August, Plaintiff was reclassified as a child care worker, ostensibly to eliminate the stress of supervising staff and residents. Plaintiff interpreted these actions as retaliation for having been injured.

She was "scared all the time" that someone was after her and hid in her apartment with the blinds closed. Psychiatrist John D. Harbison, M.D., who evaluated Plaintiff in October 2004 in conjunction with her workers' compensation claim, reported that Plaintiff became hypervigilant and easily startled. She manifested avoidant behavior, including not driving anywhere near the group home. More gradually she became depressed, crying for no reason, with decreased energy, decreased motivation, impaired concentration, feelings of hopelessness and helplessness, and loss of interest in activities that she previously enjoyed. She experienced insomnia, decreased libido, and loss of appetite (losing 38 pounds). She had frequent suicidal ideation.

Plaintiff requested counseling, but received no response for several weeks. Because of delays attributed to worker's compensation regulations, Plaintiff did not receive psychiatric care until September 2003 when she began treatment with psychiatrist Richard E. Land, D.O. Land prescribed Serzone*fn2 and Zonegran,*fn3 which began to decrease Plaintiff's insomnia and depressive symptoms. ///

On February 5, 2004, Land prepared a letter to the State Compensation Insurance Fund, outlining Plaintiff's psychiatric history. Plaintiff's family of origin was troubled and abusive. Several close family members have histories of mental illness or suicide. Although Plaintiff was well-oriented and not delusional, she demonstrated memory problems. Plaintiff reported sleeping problems, flashbacks, and nightmares. She was increasingly irritable and depressed. She perceived that people around her laughed at her and talked about her. Her score on the Zung Self-Rating Depression Scale (SDS) was 68, severely depressed.

Land diagnosed Plaintiff:*fn4

Axis I (Clinical Syndrome) Major depressive disorder, single episode (296.22)

Generalized Anxiety Disorder (300.04) Axis II: Personality Disorder: Paranoid Axis III: Physical Disorder and Condition:

Deferred to Appropriate Specialist

Axis IV: Psychosocial Stressor is 4--Severe Axis V: Global Assessment = 55 AR 233.

In April 2004, Plaintiff threatened suicide, getting as far as putting a rope around her neck and standing on a chair before calling a suicide hotline.

In June 2004, Plaintiff suffered a recurrence of breast cancer in her right breast, with metastases to multiple lymph nodes. She previously had breast cancer in 1993 in her left breast.

According to psychiatrist Ana Mendoza, M.D., who treated Plaintiff at Fresno County Mental Health, the second cancer diagnosis provoked another suicide attempt. It exacerbated her depression and PTSD, and triggered flashbacks of physical and sexual abuse in her childhood. Mendoza noted Plaintiff's history of repeated suicide attempts. Overwhelmed, Plaintiff attempted to slash her wrists.

Plaintiff was required to discontinue certain medications for depression and anxiety during her radiation and chemotherapy treatment. Because Plaintiff's psychological problems would have been "permanent and stationary"*fn5 had she not suffered a recurrence of breast cancer, on July 27, 2004, the State Compensation Insurance Fund withdrew financing for Plaintiff's psychological care, including her prescriptions for Effexor XR and Serzone. Land protested that, in light of the advanced stage of Plaintiff's cancer, it was "not a good time for [Plaintiff] to be bogged down in bureaucratic nonsense." AR 237. He suggested that, as a MediCal provider, Plaintiff's oncologist might be able to prescribe her medications. In a subsequent note, he explained that Plaintiff was experiencing post-surgical pain and serious emotional problems that constituted a psychiatric crisis.

Ultimately, Land arranged for Plaintiff's care to be transferred to Fresno County Mental Health ("FCMH"). In his final report, Land opined, "This woman will require ongoing psychiatric care because of her current medical condition. She is facing a very grim future without proper psychiatric support and medication." Land added, "When I read the monthly reports written by her treating physician, Mr. Andre, they do not sound like the patient I know. He reports that she is responding well to medication and is improving. However, I have seen a patient who is extremely depressed and considering suicide." AR 243.

FCMH provided individual counseling with a psychiatric social worker every other week and adult group therapy.

On September 29, 2004, Ana Mendoza, M.D., who treated Plaintiff at FCMH, diagnosed: Axis I Major depressive disorder, superimposed on dysthymia

PTSD chronic recurrent

Rule out mood disorder due to General Med. Cond.: Chemotherapy Axis II: Deferred

Axis III: Diagnosis of left breast cancer; current treatment for right breast cancer; history of knee surgery Axis IV: Current illness, economic, social support, termination of PCP access due to termination of workers' comp Axis V: Global Assessment = 50 AR 317.*fn6 When Harbison prepared the report to workers' compensation in October 2004, Plaintiff was receiving permanent disability payments from workers' compensation while she underwent chemotherapy. Her depression was eight or nine on a scale of ten; about three times per week she continued to experience nightmares, flashbacks, and intrusive thoughts with associated "full blown panic attacks." Although less severe than immediately after the stabbing, Plaintiff continued to experience avoidant behavior, isolative behavior, and hypervigilance with an exaggerated startle response. She had continued suicidal ideation. Although she was still anxious and uncomfortable in crowds, she was now able to attend church services.

Harbison noted that Plaintiff reported a history of childhood abuse. She described lifelong low grade depression (dysthymia) and occasional thoughts of suicide. She had attempted to stab herself at age ten. Other family members were also diagnosed, or exhibited symptoms of, mental illness. A brother committed suicide by hanging in 1998. Plaintiff's twin was diagnosed with bipolar disorder.

Harbison administered the Minnesota Multiphasic Personality Inventory (MMPI-2), which indicated that Plaintiff was either extremely disturbed or exaggerating her symptoms to secure attention or services. Harbison suggested further investigation to resolve the issue.

According to Harbison, if Plaintiff's MMPI score was accurate, she would be chronically psychologically maladjusted, overwhelmed with anxiety, tension, and depression. She would feel helpless, alone, inadequate and insecure, and believe that life was hopeless. Her life would be disorganized and unhappy, and she would have difficulty concentrating and making decisions. She would have problematic personal relationships, lack basic social skills, and be withdrawn, without fully trusting or loving anyone. Such a person would have a severe psychological disorder, such as anxiety disorder or dysthymic disorder with a schizoid personality. Schizophrenia or other severe mental illness would be a possible diagnosis.

Harbison also administered the Millon Clinical Multiaxial Inventory III (MCMI-III). Harbison summarized:

The MCMI-III profile suggests Axis I diagnoses of major depression recurrent severe without psychotic features, Posttraumatic Stress Disorder, and Adjustment Disorder with anxiety. The profile suggest personality configuration composed of Depressive Personality Disorder and Self-Defeating Personality Disorder with schizoid and avoidant personality traits.

AR 433.

Finally, the Symptom Checklist-90-R (SCL-90-R) revealed symptoms in the clinical range. Plaintiff demonstrated an extremely high intensity of distress, consistent with multiple clinical diagnoses.

Harbison diagnosed:

Axis I Posttraumatic Stress Disorder chronic (309.81)

Major Depressive Disorder single episode moderate (296.22) History of Dysthymic Disorder pre-existing non-industrial Axis II: Probable schizoid and avoidant traits Axis III: Status post knee laceration in assault on 6/1/03

History of cancer of the left breast status post lumpectomy, chemotherapy and radiation therapy in 1993 Right breast cancer stage 3A status post lumpectomy and lymph node resection on chemotherapy with radiation planned History of left knee arthritis status post arthroscopic surgery Axis IV: Level of Psychosocial Stress--Severe. History of childhood trauma, traumatic assault at work on 6/1/03, breast cancer.

Axis V: Global Assessment of Functioning - 60 AR 433-34.*fn7 Harbison opined that Plaintiff could not be considered permanent and stationary from a psychiatric viewpoint and suggested that, for workers' compensation purposes, she be considered temporarily totally disabled. Because Plaintiff's psychiatric condition was not then permanent and stationary, Harbison could not render an opinion on Plaintiff's permanent condition.

Suicide Attempt (June 2005). In June 2005 Plaintiff was hospitalized for two days with depressive symptoms following a suicidal plan to jump in the canal. She was distraught over financial problems.

Tonsillectomy. In June 2006, Plaintiff experienced a tonsillectomy to address chronic sore throat.

Plaintiff's Adult Function Report. In an adult function report prepared January 19, 2007, Plaintiff reported that she lived alone, and cared for herself and her cat. She cooked for herself and reported no problems with personal care. She kept her own house. She went outside daily and did her own shopping. Plaintiff managed her own financial affairs, used money orders, but had no savings account.

She was no longer able to maintain employment, lacked concentration, had memory loss, and could not get along with others. Because she experienced insomnia and nightmares, she took medication to sleep.

Following her injuries, Plaintiff limited her social activities, especially large gatherings. She shared meals with her adult daughter, and attended group therapy and doctors' appointments. Because of her "extreme stress," relations with the rest of her family were poor, marked by arguments and little contact. She was argumentative and irritable. Continually stressed and anxious, Plaintiff was depressed and experienced panic attacks. She had developed fear of the dark, fear of large groups of people, and fear of being physically assaulted.

Third-Party Adult Function Report. In a third-party adult function report, Plaintiff's daughter, Christina Salinas, reported that Plaintiff was no longer able to work and had a phobia of large groups of people. She was sometime unable to sleep at night and had nightmares. Plaintiff was able to perform personal care, cook, and clean her own home. She shopped, was able to manage her own finances, but was limited by lack of income. She was easily bored and had trouble concentrating. Her condition affected her memory, concentration, ability to complete tasks, and ability to get along with others. Plaintiff was argumentative, irritable, anxious, and did not listen to others. She could not handle stress.

Plaintiff's medications included Ambien CR,*fn8 Lamictal,*fn9 Effexor XR,*fn10 Lithium,*fn11 Tramadol,*fn12 and aspirin.*fn13

Agency interview. Following a telephone interview with Plaintiff in December 2006, agency interviewer A. Ohanian noted, "[Plaintiff] had a hard time remembering information and she had a hard time concentrating during the interview. [Plaintiff] sounded depressed during the interview."

Agency Psychiatric Review. On March 29, 2007, psychologist Charles Lawrence, Ph.D., performed the agency's psychiatric review technique for the time period from February 7, 2006 to March 29, 2007. Lawrence opined that Plaintiff had affective disorders and personality disorders that were not severe. She had medically determinable impairments of major depression and borderline features. Lawrence opined that Plaintiff had no restrictions of daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence and pace, and no episodes of decompensation of extended duration. Lawrence noted:

The claimant has been in mental health treatment for several years, continuing through the recent past. She receives treatment at Fresno Metro Services.

Psychotropic medication is managed by a nurse practitioner, and counseling services are provided by a psychologist and a social worker. The claimant had ceased participation in treatment for a number of months in 2005, returning in Dec. 2005. Soon thereafter, in Feb 2006, there was a crisis and the claimant was sent to the hospital on a 5150, but there is no record of admission at that time. The progress notes by the treating sources since then show favorable response to treatment, with occasional exacerbation of emotional distress associated with family issues, medical issues, and financial issues. The nurse practitioner notes show consistent [within normal limits] mental status ratings from Sept to Dec 2006. In Aug she enjoyed a trip to Disneyland with her niece. In Sep she told the LCSW she was "feeling great." In Oct 06 she was feeling good in spite of some health concerns.

In her function report the claimant alleges she becomes depressed and anxious when under extreme stress, and that tends to be consistent with the progress notes.

But her ADL functioning is generally of good range and full independence, AR 383.

Lawrence concluded that Plaintiff's mental impairment was not severe.

Group Therapy. On March 20, 2007, social worker M. Heffron noted that Plaintiff had not required emergency services for suicidal intent in several months. On April 17, 2007, Heffron noted Plaintiff's "passive suicidal intent" in the face of stress related to losing her apartment and having to move in with her daughter, and to her son's imminent departure for boot camp.

In June 2007, Plaintiff reported continuing chaos with her daughter and son-in-law, on whom she was reluctantly financially dependent. Her son-in-law was alcoholic, abusive, unpredictable, and threatening. Plaintiff felt great sorrow to see her daughter submitting to marital abuse just as Plaintiff had done. She expressed helplessness, while the group encouraged her to take precautions and make a safety plan. She was deeply hurt that her son, who had been medically discharged from the armed forces, had not contacted her since his return to the Valley.

In early July 2007, Plaintiff underwent ultrasound treatment to break up kidney stones with good results. Heffron observed that Plaintiff seemed to be coping better with her extended family, learning to stand up for herself without losing her temper. Nonetheless, Plaintiff was anxious about her daughter, who had separated from her alcoholic and abusive husband, but relieved that the husband was out of the house. Plaintiff reported that support from the group was helping to reduce her thoughts of suicide.

In early August 2007, Plaintiff experienced a mild stroke. Heffron noted that Plaintiff was displaying memory problems during group therapy on August 28, 2007.

Throughout the course of group therapy in 2007, Plaintiff continued to work toward reducing feelings of depression and crying spells. She continued to experience flashbacks and nightmares of childhood trauma.

December 2007. At her December 14, 2007 appointment with Bogost, Plaintiff was crying, complaining of feeling anxious and irritable. She felt no pleasure and was hopeless and apathetic. Bogost characterized her as suicidal. Her memory was impaired.

January 2008. In notes from an appointment on January 4, 2008, Bogost noted that Plaintiff stated that she was feeling much better. But she was not compliant with medication, having forgotten to pick up her prescriptions. She was disheveled and suspicious, demonstrating motor retardation and impaired memory. Her intelligence seemed below average: ...

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