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Nikki Russell v. Michael Astrue

April 26, 2011


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


Plaintiff Nikki Russell seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for 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 finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based on proper legal standards. Accordingly, this Court denies Plaintiff's appeal.

I. Administrative Record

A. Procedural History

On June 19, 2002, Plaintiff filed an application for a period of disability, disability insurance benefits, and supplemental security income (SSI) for a disability beginning April 3, 2001.

Plaintiff appeared and testified at a hearing on October 29, 2003. Following the hearing, the ALJ requested, and received reports of, two consultative examinations, including a psychological examination by Kimball Hawkins, Ph.D. In his decision dated June 2, 2004, Administrative Law Judge Rocklin D. Lyons denied Plaintiff's application, electing not to rely on Hawkins' opinion since it was "shown to be incorrect by the evidence."

While the appeals for her initial application proceeded, Plaintiff filed an application for SSI benefits only on June 17, 2004.

On July 16, 2004, the Appeals Council vacated the ALJ's decision and remanded the 2002 application for further proceedings, directing the ALJ (1) to evaluate Plaintiff's mental impairment according to the special psychiatric technique, (2) to give consideration to the consultative psychological evaluation performed by Kimball Hawkins, Ph.D., on November 17, 2003; and (3) to obtain evidence from a vocational expert, if needed. ALJ James E. Ross held a video hearing on April 14, 2005, which included testimony by vocational expert Cheryl Chandler. Although ALJ Ross held the record open until May 27, 2005, for 48 additional pages of medical evidence which Plaintiff was to have submitted, nothing additional was filed.

ALJ Ross denied the remanded 2002 application on June 27, 2005. On August 19, 2005, the Appeals Council denied Plaintiff's request for review. Plaintiff appealed the agency decision to this Court on October 20, 2005.

Plaintiff again applied for disability benefits on January 25, 2006.

On October 23, 2007, the District Court reversed the decision in the 2002 case, finding that the ALJ's decision was not supported by substantial evidence, and remanded the case to the Commissioner for further proceedings. On December 17, 2007, the Appeals Council remanded the case to an Administrative Law Judge for further proceedings consistent with the District Court's order.

On May 2, 2008, ALJ Stephen W. Webster conducted a hearing to address the remand orders of the U.S. District Court and the Administrative Council as well as Plaintiff's appeal of the agency's denial of her 2006 application. Adjudicating all pending appeals, ALJ Webster denied Plaintiff's applications for benefits in a written decision dated May 24, 2008.

The Administrative Council denied review on August 31, 2009. On October 30, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1). Plaintiff says her appeal "rel[ies] almost exclusively on her mental impairments, which are borderline intellectual functioning, depression, and anxiety." Doc. 14 at 3. She does not challenge ALJ Webster's findings that her cardiac arrhythmia, GERD, and asthma are "non-severe," and that no medical evidence supported Plaintiff's claims of Bell's palsy and carpal tunnel syndrome. Nor does she challenge ALJ Webster's findings that, despite intermittent lower back pain and obesity, Plaintiff retained the residual functional capacity to perform light work. In fact, she does not address her alleged physical impairments at all.

B. Factual Record

Because Plaintiff (born October 8, 1972) focuses this appeal on her alleged psychological disabilities, this decision will not address matters in the record relating to her physical disabilities except to the extent that they relate to Plaintiff's psychological condition. Plaintiff's medical records reflect a diagnosis of "generalized anxiety" throughout the administrative record. She also has a history of drug and alcohol abuse, now reportedly in remission.

Plaintiff is five feet, five inches tall. In the approximately ten years that her disability claims were pending, her weight averaged about two hundred pounds.

Plaintiff has a twelfth-grade education. *fn2 She has worked a variety of jobs, primarily in fast food and retail establishments including Walmart, Carls, Jr., Target, Rally's, and Sparkle Cleaners, as a cook and a cashier. Plaintiff has also worked as a child care provider and a file clerk. She worked longest as a cook and food preparer, where she was a lead worker. She was a supervisor at Rally's.

Her family and living situation has changed several times in the nearly ten-year course of her efforts to secure disability benefits. She was married to Darien Fears, the father of several of her children, from January 1994 through January 1997. During the course of her disability applications, she divorced Fears and remarried. She has six children. Plaintiff has a history of criminal convictions, imprisonment, and probation.

Plaintiff's disability report (June 20, 2002). In a disability report dated June 20, 2002, Plaintiff reported that she suffered from "social and generalized anxiety." Working around many people gave her panic attacks. Her anxiety caused her to avoid work until she quit or was terminated. She had last worked April 3, 2001, when she quit her job at Walmart due to her "other health problems and high-risk pregnancy."

Kern County Mental Health assessment (July 5, 2002). Plaintiff was assessed at Kern County Mental Heath (KCMH) on July 5, 2002. Her presenting problems were "'Constant nervousness/worry; panic attacks approx. 5 months." In 1997, Plaintiff, a former alcohol abuser, attended two sessions of a rehabilitation program for "major de[pression] recurrent severe without psychotic features," then stopped participating. Although Plaintiff claimed to have been sober since 1997, she disclosed eight episodes of binge drinking in the past two and a half years. Plaintiff told the counselor that, when she was alcoholic, she was able to relax and speak her mind, and the alcohol helped her sleep. Plaintiff had no history of suicidal or homicidal ideation.

Although school had sometimes been "OK," Plaintiff had begun partying and drinking alcohol at an early age and became pregnant for the first time when she was fifteen years old. She had abused alcohol for twelve years, beginning at age 14, and marijuana for six years, beginning at age 17. Her former husband was currently imprisoned for convictions arising from his drug dealing and gang activity.

Plaintiff's current living situation was stable. Her current boyfriend was a good man and a good father. She was no longer around people who abused drugs or alcohol. All of her friends and family members would be supportive of her abstaining from alcohol and drugs. Plaintiff reported that she was a good money manager and could always find an odd job to keep her family fed.

Nonetheless, Plaintiff had several sources of stress. Plaintiff had five natural childbirths with one child born prematurely. In the past four years, she had three miscarriages and a caesarian section birth. She also had surgery to remove an "ovarian tube" which had a cyst, Bell's palsy, and asthma. Plaintiff lived in a violent neighborhood known for drive-by shootings.

Interviewer May Kent, MFT, commented that Plaintiff was fully oriented and soft spoken, demonstrating normal mood, appropriate affect, below normal intelligence, and fair insight and judgment. Kent diagnosed:

Axis I Generalized Anxiety Disorder (300.02)

R/O Alcohol Abuse

Axis II: 799.9 Axis III: None stated Axis IV: Axis V: Current GAF: 55 Highest GAF: UK AR 168. *fn3 Kent assessed Plaintiff as having mild financial impairment; moderate impairment of community living, community contribution, relationships with others, and educations and learning; and severe impairment of community participation, and physical and emotional health. She considered Plaintiff to be severely impaired in community participation since Plaintiff reported being "extra nervous" when many people were around. She considered Plaintiff to be severely impaired in physical and emotional health because of the many health problems Plaintiff reported to the interviewer. Treatment would include therapy to reduce anxiety and participation in a 12-step AA group, and was expected to continue for six months.

Daily activities questionnaire (July 17, 2002). In a daily activities questionnaire dated July 17, 2002, Plaintiff claimed that she "toss[ed] and turn[ed] all night." She spent the majority of her days in her bedroom and "just [didn't] feel the need or want to dress or groom [her]self." She had trouble concentrating since she could get "real irritated." Because her condition made her become "violent or distant," she would either decrease her hours at work or get fired. For her last three jobs, she "just couldn't make [her]self go back."

Her cousin, daughter, or efiance did the cooking and shopping. She read the newspaper daily and watched music programs, the Discovery channel, and scary movies on the television. She "hardly ever" went out, but when she did, she needed someone with her "to keep [her] nerves calm." She cared for her six children to the best of her ability. She talked to her mother and two sisters daily.

Third-party daily activities report (July 17, 2002). In a daily activities questionnaire dated July 17, 2002, Plaintiff's cousin Tyana Larry, who lived with Plaintiff and her children, confirmed that, although she couldn't keep a schedule of Plaintiff's sleeping hours, Plaintiff woke frequently during the night. Since Plaintiff didn't go anywhere for which she needed to dress up, she usually wore her pajamas or a T-shirt and cut-offs. Larry did the cooking, although Plaintiff sometimes microwaved food for herself or got fast food. Plaintiff helped "make the plates for the children just not to feel left out." Plaintiff also made her bed, folded clothes, picked things up from the floor, and wiped counters and tables. Because Plaintiff's efiance worked at Walmart, he brought whatever the household needed home from work. Plaintiff enjoyed working crossword puzzles, and loved scary movies and music. She had stopped driving and did not like to go out alone. On her good days, she was "the best mom."

Psychiatric review technique (September 9, 2002). In a psychiatric review technique completed on September 9, 2002, by Clair Steggall, M.D., and reviewed by psychiatrist Marina C. Vea, M.D., Plaintiff was reported to have generalized anxiety disorder. The impairment was severe but not expected to last more than twelve months. The report noted no restriction of activities of daily living and insufficient evidence of episodes of decompensation. Plaintiff had mild impairments in maintaining social functioning and in maintaining concentration, persistence, or pace.

Plaintiff's disability report (September 19, 2002). In a reconsideration disability report dated September 19, 2002, Plaintiff described her illness and symptoms as "worse." She was "hardly able to care for [her]self," "going from doctor to doctor being tested for all different kinds of things to try and find out what's wrong with me." Her condition "always" affected her ability to care for her personal needs. Since she filed her claim, she had "distan[ced] herself from the outside, avoid[ed] doing social activities and stay[ed] very depressed."

Plaintiff's medications (September 2003). In September 2003, Plaintiff reported that she was taking Flexeril (a muscle relaxant), Flecainide (heart), Lopressor (heart), Paroxetine (anxiety), Lorazepam (depression), Paxil (depression, mental), Naproxen (pain), Tagamet (stomach), Vioxx (chest pain), Darvocet (pain), and Propoxyphene APAP (heart and pain). *fn4

Three different doctors had each prescribed some of these medications.

Testimony (October 29, 2003). Plaintiff reported that, although she once had a driver's license, she no longer had one but could not remember why. She denied that her license revocation related to alcohol or drug use.

Plaintiff testified that she had anxiety:

I start sweating. I can't breath, or I'm just like real, real nervous, I stay anxious a lot anyways. And it's just hard to function a lot. I mean a lot, lot of people.

AR 289.

Asked whether she was seeing a psychiatrist, psychologist, or other mental health professional, Plaintiff replied:

No, my doctor, Dr. DeBarlios (Phonetic) was going to give me a referral to mental health. He's the person that['s] been prescribing my medication, but other than mental health about - - I don't even remember when, I saw them briefly, and they wanted me to do all these different classes, and I told them it's hard for me to get out and catch the bus. I don't have the adequate transportation, so I just didn't go. I had an evaluation done through the Human Services Department, and they are the ones who referred me to mental health.

Q Do you or your husband own a car?

A Yes. He does, yeah. But at the time of the appointments we didn't.

AR 287.

Plaintiff testified that she left her job at Walmart in April 2001 due to "anxiety attacks and the high risk pregnancy." (Her youngest child was born in September 2001.) She experienced three or four anxiety attacks a month depending on her mood, location, or activity. Riding on the freeway gave her anxiety attacks. Her medication relieved the anxiety within thirty minutes but left her "almost in a zombie type of mode." Plaintiff repeatedly asserted that because the medication that relieved her anxiety left her nauseated, dizzy, and sleepy, she was unable to work. She also quit her job because her panic attacks gave her diarrhea, which was overwhelming in view of her limited breaks on the job.

Plaintiff also had difficulty concentrating, had crying spells, and felt people around her were out to get her. She had been suicidal and had auditory hallucinations. When Plaintiff first went to KCMH, she was told she would be better in six months, but seven years had elapsed. Her memory was poor.

Q Do you go to -- have you been up to Mary Kay Shell or Current medical for mental health?

A Uh-uh. I went (INAUDIBLE) and they had me go to mental health, but they require me to go all these different places all through the week. I didn't have the transportation. I don't catch the bus.

Q Okay.

A I don't get out, and I don't -- that would cause more of a panic attack to be out and about. You know, if I (INAUDIBLE) realize I don't have some kind of medication then all of a sudden I feel that whatever I needed that medication for, that's no longer. If I don't have my pump, I can't breath. If I don't have my pain pills, it's hurting me. And I'm just so uncomfortable around people, I just choose not to be around them. My children, I've been around them all their life, so they wouldn't cause me to have an anxiety attack. They know what mood I'm in, they know when I have whatever attitude I have to basically go in a different direction or leave me alone in my room.

AR 300.

Hawkins' report. On November 17, 2003, psychologist Kimball Hawkins, Ph.D., performed a psychological consultation on behalf of the agency. Plaintiff drove herself to the appointment although her drivers' license was suspended. Hawkins characterized Plaintiff as evasive, explaining that she claimed not to remember why she no longer had a driver's license and poorly reported the medications she was taking. She told Hawkins that she normally lived with her husband and six children, but that her husband was currently in prison.

Plaintiff told Hawkins that her medications made her sluggish and that people irritated her, making her avoidant. She reported a history of alcohol abuse but not drug abuse, and said that she had been alcohol free for a year. She had a history of arrests for such crimes as petty theft and assault and was once jailed for sixteen days. Hawkins described:

[Plaintiff] is an adult female who is roughly dressed and groomed. She speaks in sentences. She is oriented to person, place, and time. There are no hallucinations reported but there are some depressive symptoms noted. She is easily agitated.

She demonstrates a labile mood and sad affect. She cried easily. She has a history of suicidal thoughts. She is defensive, angry, and appears unhappy throughout the assessment. She sometimes acted bored or disinterested. She frequently appeared agitated.

AR 238.

Hawkins reported that Plaintiff was irritable and had poor impulse control. She was slightly distracted, and her immediate memory was impaired. Her intelligence was borderline. Her judgment was intact, and her associations were goal-directed. Noting her history of anxiety disorder and alcohol abuse, ...

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