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Kristina Rae Dean v. Michael Astrue

June 24, 2011


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


Plaintiff Kristina Rae Dean seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II, and for supplemental security income 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 December 5, 2005, Plaintiff protectively filed an application under both Title II and Title XVI for a period of disability, disability insurance benefits, and supplemental security income (SSI) for a disability beginning December 29, 2005. The claims were denied initially on August 25, 2006, and upon reconsideration on May 17, 2007. Plaintiff requested a hearing on May 29, 2007.

Plaintiff appeared and testified at a hearing on January 3, 2008. In a decision dated April 17, 2008, Administrative Law Judge Laura Speck Havens denied Plaintiff's application. On January 22, 2010, the Appeals Council affirmed the ALJ's decision. On March 24, 2010, Plaintiff filed her complaint in this Court.

B. Factual Record

Plaintiff (born June 10, 1977) graduated from high school and completed about three years of college through part-time attendance. She worked at a series of entry-level positions including retail clerk, waitress, restaurant hostess, customer service clerk, deli clerk, and receptionist. Although she applied for disability benefits in December 2005, she continued working at least through November 2006, earning $10,366.45 in 2006.

In a work activity report of employment since December 29, 2005, completed by Plaintiff on May 18, 2006, Plaintiff reported that she worked an average of 30 hours per week at Bed, Bath & Beyond in Salt Lake City, Utah, from March through May 2006, earning $8.50 per hour, before returning to California for an unspecified family emergency. Before that, she worked 35 to 40 hours a week at WalMart in Sonora, California, earning $8.80 per hour. Plaintiff reported that she left both these jobs for reasons other than her medical condition. (Plaintiff appears to have left WalMart to move to Utah and then to have left Bed Bath & Beyond to return to California due to the "family emergency.") Following her return to California, Plaintiff returned to Walmart. From January through May 2006, Plaintiff reported earning $4,000. At that point, the agency permitted Plaintiff's application to proceed for earnings below the limit for substantial gainful employment.

In an undated adult disability report (completed after December 2005 and before a psychiatric appointment scheduled in March 2006), Plaintiff reported that she quit work on December 29, 2005, because she "had a breakdown." AR 99. Nothing in the agency record documents treatment of any type for a "breakdown" at that time.

In her hearing testimony, Plaintiff had no explanation for initially selecting December 29, 2005, as her disability date. She testified that she had worked at Walmart for three months and left in August 2006. Thereafter, she had only "sporadic jobs," such as working at Mervyns for three days. She testified that she never worked anywhere other than Walmart for more than a month. According to Plaintiff, she was unable to stay on the job due to panic attacks, her learning disability and her "need to leave." She had always had the same impairments but never knew that Social Security was an alternative to her working. When the ALJ questioned Plaintiff with her earnings in prior years, Plaintiff was unable to explain how her condition had changed so that she was now unable to work. When the ALJ asked her about the two years in which she worked at a casino, Plaintiff responded that she performed three different jobs while working there, switching from one job to another because she was bored and had to deal with too many people, She reported difficulty making correct change.

Plaintiff testified that she had been affected since childhood by a variety of personality and anxiety disorders, including learning disabilities, attention deficit disorder, obsessive-compulsive disorder and depression. According to Plaintiff, her obsessive-compulsive disorder focused on dirt and germs. She repeatedly cleaned her house and repeatedly washed herself, without regard to actual dirtiness. Plaintiff had a history of alcohol abuse, which was in remission before she applied for disability benefits. As of December 2007, her medications included Celexa (depression), Klonopin (anxiety), Topomax (obsessive-complusive disorder and post traumatic stress syndrome), and Melatonin (insomnia).

Plaintiff liked swimming "the most" and swam at the gym three or four times weekly. She swam more frequently when she was unhappy. According to her disability report, she did not need to be reminded to go places: "I take part in most activities." Nor did she need anyone to accompany her: "I can do most things on my own."

According to Plaintiff's father, who completed a third-party disability report in February 2006, Plaintiff spent her days doing household activities, swimming for exercise, and working part-time at Walmart. She did cleaning, laundry and ironing, but not repairs or yard work, and performed all tasks at normal times and on as-needed basis. She shopped as needed in a normal amount of time for her groceries and personal needs. She visited with others, went to movies, and ate in restaurants. She attended church.

Plaintiff's psychiatrist. Psychiatrist Alan Peters, M.D., treated Plaintiff's depression and obsessive-compulsive disorder from December 6, 2004, to January 5, 2006, seeing her for twenty or thirty minutes about every few months.*fn2 Peters monitored Plaintiff's medications, and referred her for one-to-one therapy.*fn3 On December 6, 2004, Peters noted that Plaintiff was not adapting well to the disruption of her sleep cycle attendant with a casino job on the overnight shift. Nonetheless he observed that, with recent changes in medication, Plaintiff felt better, her mood had stabilized, and her obsessive-compulsive thoughts were less intense. She was more convivial and less morose.

By her follow-up appointment on January 20, 2005, however, Plaintiff had been briefly hospitalized after a disagreement with her aging father, quit her casino job, and precipitously married her boyfriend because it was "a good idea."*fn4 By quitting her casino job, Plaintiff lost her medical insurance. Peters noted that Plaintiff was not compliant with her medications. Peters commented that Plaintiff, who had received Social Security disability payments until her earnings disqualified her, contemplated again seeking benefits.

In the interval before the next follow-up appointment on March 3, 2005, Plaintiff became pregnant, went off her medications, and miscarried. Plaintiff told Peters that she wanted to wait a year before becoming pregnant again. Her mental status was more positive: she was "not particularly depressed."

Plaintiff did not see Peters again until an overdue follow-up on June 3, 2005. Peters noted that Plaintiff was "not really presenting with any kind of objective evidence to underscore her complaints of depression, nor anxiety." He wrote:

She notes that she has not been doing well lately. She has become anxious, is depressed. Part of her agenda is to try and seek some disability, although in discussing it with her, I make clear that: 1) Social Security Disability, in particular, takes an extensive period of time to acquire, which she is aware of, as she has been on it in the past; 2) She may well be suffering an impairment but she does well when she is on appropriate medication, namely fluvoxamine 300 mg. at bedtime, which she has not been taking. Rather, she has been taking 200 mg. and then also her use of lorazepam 1 mg., which she should be taking one twice daily on a p.r.n. basis. She is only taking one and not even that often.

Overall, her anxiety has to do with finances, as her husband is on disability. She is evasive with regards to her alcohol use, which has been problematic. AR 179.

Although Plaintiff later attributed her noncompliance with medication to financial problems, Peters noted that Plaintiff had prescription coverage through CMSP and would receive coverage for her medications if Peters arranged prior authorization.

On September 21, 2005, Plaintiff reported experiencing anxiety and panic attacks in her new job at Walmart. Plaintiff feared that she might be bipolar. She wanted to move to Texas to live near her father. Peters noted, "[W]e discussed her ongoing dismay of her jobs and how she really wants little to do with the responsibility of working, or certainly of having expectations placed on her." AR 177.

In November 2005, just prior to Plaintiff's applying for disability benefits, Peters noted that Plaintiff's recent marriage had become a source of stress because of her husband's alcohol and drug use, which the husband attributed to stress associated with Plaintiff's emotional and mental problems. Plaintiff's inclination was to leave and go live with her father in Texas. Of Plaintiff's job, Peters wrote:

The patient continues to work at Walmart, which she finds dismal. She continues working in the men's department, having to lift heavy things, and is alone. She is not able to multitask and feeling overwhelmed [sic] much of the time. She asks for a note wherein she might be able to get a transfer into something like cashiering, which she has been told will be done but she has perceived it as foot dragging.AR 175.

Describing Plaintiff as "forlorn," Peters diagnosed her problem as marital problems superimposed on her obsessive compulsive disorder. Despite Plaintiff's claim of being clean and sober, Peters directed her to resume treatment with Doris Jensen.*fn5

On January 5, 2006, Peters documented Plaintiff's problems with lithium, which made her vomit, and stomach problems that the hospital emergency room attributed to stress. Plaintiff's marital problems continued. Despite the reported digestive problems, Plaintiff was eating excessively and had gained weight. Peters referred Plaintiff for one-on-one therapy at the women's center.*fn6

Psychological consultant. Psychologist Joe M. Azevedo, Ph.D., evaluated Plaintiff for the agency on June 24, 2006. Plaintiff told Acevedo that she was working 32 hours per week at Walmart. He opined:

The patient has the general cognitive abilities to understand, remember, and carry out one- and two-step instructions of mild to moderate levels of complexity. Her abilities in maintaining concentration, persistence, and pace seem to be variably impaired, increasingly so during times of increased anxiety. She maintains the ability to make judgments on simple work-related decisions. Her anxiety is likely to result in periodic disruptions in her attempts to manage work pressures and respond to changes in a typical work environment. There also appear to be at least mild limitations in her ability to interact appropriately with supervisors, co-workers, and the general public on a consistent basis.

She appears to have only mild psychological restrictions in managing activities of daily living, associated with her obsessive-compulsive behaviors and the associated time-consuming elements. AR 190.

In a psychiatric review technique performed August 21, 2006, agency psychiatrist Archimedes Garcia identified that Plaintiff had affective and personality disorders that resulted in mild functional limitations, but had no restriction of activities of daily living, difficulties in maintaining social functioning, or difficulties in maintaining concentration, persistence and pace.

In September 2006, two weeks after a change in her medications, Plaintiff felt "weird" and was treated in the emergency room of Tuolomne General Hospital. The hospital found nothing wrong.

On February 15, 2007, Peters completed an assessment of Plaintiff's ability to do work-related activities. He opined that Plaintiff had fair ability to follow work rules, relate to co-workers, deal with the public, use judgment, and understand, remember and carry out job instructions. She had poor or no ability to interact with supervisors; deal with work stress; function independently; maintain attention or concentration; understand, remember and carry out complex job instructions; or understand, remember, and carry out detailed, but not complex, job instructions. Peters explained that the intrusive nature of Plaintiff's obsessive-compulsive thoughts interfered with her ability to pay attention and to process instructions. Peters also completed a psychiatric review technique, concluding that Plaintiff had marked limitations in activities of daily living and maintaining social functioning, and frequent deficiencies of concentration, persistence or pace. Peters reported that Plaintiff had three or more instances of deterioration or decompensation, but did not explain what those instances were.

On October 9, 2007, Lorrin M. Koran, M.D., evaluated Plaintiff on Peters' referral. Koran opined that, in addition to her other impairments, Plaintiff displayed symptoms supporting a diagnosis of Tourette disorder. Koran described Plaintiff's obsessive-compulsive disorder as severe and treatment-resistant. Plaintiff's obsessive-compulsive disorder and anxiety had the capacity to inappropriately influence her judgment.

Koran suggested that Plaintiff would benefit from a complex regimen of medications as well as cognitive behavioral therapy focused on her obsessive-compulsive disorder and skin-picking.*fn7 Plaintiff should be evaluated to identify the most beneficial medications for her impairments. Koran offered no opinion on Plaintiff's ability to work.

George Meyers, a vocational expert, testified that Plaintiff could perform several of her prior jobs, including cafeteria attendant, retail sales clerk, and deli clerk.

II. Discussion

A. Scope of Review

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, a court must determine whether substantial evidence supports the Commissioner's decision. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla" (Richardson v. Perales, 402 U.S. 389, 402 (1971)), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's decision. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. See, e.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the ALJ's determination that the claimant is not disabled if the ALJ applied the proper legal standards, and if the ALJ's findings are supported by substantial evidence. See Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987).

B. Legal Standards

To qualify for benefits, a claimant must establish that he or she is unable to engage in substantial gainful activity because of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months.

42 U.S.C. § 1382c (a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that he or she is not only unable to do his or her previous work, but cannot, considering age, education, and work experience, engage in any other substantial gainful work existing in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989).

To encourage uniformity in decision making, the Commissioner has promulgated regulations prescribing a five-step sequential process for evaluating an alleged disability. 20 C.F.R. §§ 404.1520 (a)-(f); 416.920 (a)-(f). The process requires consideration of the following questions:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995).

ALJ Havens found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of December 29, 2005. Her severe impairments included depression, anxiety, obsessive-compulsive disorder, and attention deficit disorder. The ALJ concluded, however, that none of Plaintiff's impairments met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Plaintiff remained capable of performing her past work as a retail sales clerk, cafeteria attendant, and delicatessen clerk. Accordingly, the ALJ concluded that Plaintiff was not disabled.

C. Step One: Is the Claimant Engaging in Substantial Gainful Activity?

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of December 29, 2005. In making this determination, the ALJ erred since Plaintiff clearly engaged in substantial gainful activity after the December 29, 2005 onset date.

Substantial gainful activity. The hearing decision stated, "In order to reach a conclusion as to whether the claimant engaged in substantial gainful activity at any time after the alleged onset date, further evidence must be obtained and additional evaluation must be made." AR 10. The ALJ skipped step one, reasoning that, since Plaintiff's claim could be denied at step four, she need not determine whether Plaintiff engaged in substantial gainful activity. Substantial evidence ...

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