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Diana Hernandez v. Michael Astrue

May 3, 2011


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


Plaintiff Diana Hernandez 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 September 30, 2006, Plaintiff filed an application for supplemental security income (SSI), alleging a disability beginning March 1, 2004. Her claim was denied initially on January 25, 2007, and upon reconsideration, on March 6, 2009. Plaintiff filed a timely request for a hearing at which she appeared and testified at a hearing on October 29, 2003. On April 23, 2009, Administrative Law Judge Patricia Leary Flierl ("ALJ") found that Plaintiff was not disabled under 42 U.S.C. § 1614(a)(3)(A).

On February 2, 2010, Plaintiff filed a complaint seeking this Court's review (Doc. 1). Plaintiff does not dispute the ALJ's findings related to her physical impairments and challenges only the ALJ's determination of her residual functional capacity as a result of her depression. Doc. 12 at 3.

B. Factual Record

Because Plaintiff (born September 24, 1962) 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 depression throughout the administrative record. She also has a history of drug and alcohol abuse, now reportedly in remission.

Plaintiff did not mention depression or list any antidepressant medications in her October 12, 2006 adult disability report or in her adult function report dated December 17, 2006. Nor did Plaintiff mention depression in her undated disability report (appeal) ( see AR 213-219). Although Plaintiff's husband noted that Plaintiff was "moody" and did not handle stress "very well," he did not explicitly report depression in the third-party adult function report dated December 21, 2006.

In a disability report (appeal) dated July 25, 2007, however, Plaintiff complained, "I don't know why your Doctor's [don't] notice my depression." AR 220. She reported that Nurse Practitioner S. Ciccheti had prescribed Zoloft *fn2 for depression and that Dr. D. Hylton had prescribed Amitriptyline *fn3 for anxiety and depression. She remarked, "I am depress[ed] always." AR 225.

In documentation transmitted to the agency on February 13, 2009, Plaintiff reported that APEX Medical Corp. had prescribed Prozac *fn4 for depression and Diazepam *fn5 for pain and depression. She had been hospitalized in November 2008 at Memorial Hospital of Los Banos for an anxiety attack.

Medical records. Plaintiff's primary care physician, Daniel E. Hardy, Sr., M.D., monitored her sleeping problems and depressive disorder and prescribed antidepressants. At various points, his notes reported her history of drug and alcohol dependence and specified that narcotics should not be prescribed. On March 25, 1998, Hardy diagnosed situational anxiety, noting that Plaintiff was distraught regarding physical abuse by her son, who was using drugs and alcohol. He prescribed Buspar *fn6 to be taken as needed for anxiety. On July 22, 1999, after Plaintiff reported great stress from marital problems, he prescribed Serzone *fn7 and recommended marriage counseling.

Hardy prescribed Paxil *fn8 beginning in or about July 2000. At an appointment on February 9, 2001, Plaintiff reported that she stopped taking Paxil after three months and that she still felt depressed, tired, low on energy, lacking motivation, and short-tempered. She sometimes cried.

Hardy again prescribed Paxil and scheduled a follow-up in six weeks to see if further adjustment was needed. In March 2001, Hardy prescribed Remeron. *fn9

Hardy prescribed Effexor *fn10 on November 28, 2001. Plaintiff reported that she was doing well until she briefly discontinued Effexor in January 2002 and found that she was feeling anxious and irritable and not sleeping well. Hardy again prescribed Effexor.

The first indication of his prescribing Wellbutrin *fn11 is in notes from December 11, 2003, in which Hardy noted that Plaintiff was depressed, awakening at night, and having mood swings, fatigue, and no energy since her daughter -in-law moved away with her grandchild, leaving no forwarding address. On various visits in 2004, Hardy noted depression, responding well to Wellbutrin. On July 22, 2005, Hardy noted that Plaintiff returned "after a long hiatus," with a recurrence of depression and irritability attributable to problems with the behavior of her grown daughter. Hardy noted painful tension in Plaintiff's shoulders and neck, which he attributed to stress. On September 6, 2005, Hardy increased Plaintiff's dosage of Wellbutrin, noting Plaintiff was experiencing excessive stress from her husband's verbal abuse but was afraid to report his threats to the police for fear of involving Child Protective Services, with whom she had previously had dealings for other reasons. On October 27, 2005, Hardy noted, "With the higher dose of Wellbutrin, she states her mood, motivation, concentration and energy are good, but she is having problems falling asleep at night." AR 260.

The records of Plaintiff's gynecologist, Stephen Georgiou, M.D., noted that she was taking Wellbutrin in March 2004.

H. Anjum, M.D., of the Apex Medical Group Notes first examined Plaintiff on December 6, 2007, diagnosing depression and anxiety. Examination notes for January 7, and October 23, 2008, did not mention depression, but noted a prescription for Prozac. Examination notes for January 21, February 5, August 26, 2008, did not mention depression or anxiety. In Anjum's notes about Plaintiff's examinations on September 26, and November 21, 2008, the doctor noted depression and anxiety without elaboration of symptoms. On December 22, 2008, and January 7, 15 and 28, 2009, he again noted depression in Plaintiff's examination notes. On February 2, 2009, Anjum noted that Plaintiff had many problems and was living on the street. He noted Plaintiff's depression and requested a psychiatry referral.

On February 2, 2009, Anjum opined that Plaintiff could never perform any of the physical activities listed on the form but responded "N/A" for each question seeking information on mental or emotional limitations.

Psychiatric Evaluation (December 17, 2006). Soad Khalifa, M.D., examined Plaintiff and prepared a psychiatric evaluation for the agency on December 17, 2006. He reviewed some progress notes from around October 2005, in which Plaintiff's doctor diagnosed with depressive disorder and prescribed Wellbutrin. In addition to various physical disorders, Plaintiff complained of depressed mood, difficulty controlling her temper, and sleep disturbances. She denied suicidal or homicidal thoughts. She had never seen a psychiatrist. Plaintiff reported being homeless since the family lost its house when her husband did not make the mortgage payments. She had been living with her aunt for two years.

Khalifa found Plaintiff's psychiatric history unremarkable except that Plaintiff reported having attended anger management groups. She had been ...

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