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Paul L. Ceballos v. Michael J. Astrue

August 29, 2011

PAUL L. CEBALLOS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 2)

BACKGROUND

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

FACTUAL BACKGROUND

Plaintiff was born in 1967, completed the 11th grade, and previously worked in construction. (Administrative Record ("AR") 178, 202, 204.) Plaintiff filed an application for SSI on October 21, 2004, and an application for DIB on November 4, 2004, alleging disability due to affective (mood) disorder, osteoarthrosis and allied disorders, and disorders of muscle, ligament, and fascia.*fn2 (AR 16, 70-71, 461, 467).

A. Medical Evidence *fn3

Between April 2004 and July 2005, Plaintiff was treated numerous times at Polyclinic Medical Group, Inc. ("Polyclinic"), and was treated primarily for physical impairments such as vertigo, back pain, chest pain, upper respiratory infection, hypertension, and coronary artery disease. (AR 222-38.) Plaintiff also complained of mental conditions, including anger issues, depression, auditory and visual hallucinations, anxiety, agoraphobia, antisocial behavior, and bipolar disorder. (AR 229, 231, 232, 234-37.) Plaintiff received various medications while being treated at Polyclinic, including Lexapro, Prozac, and Seroquel.*fn4 (AR 229, 230-31, 236-37.)

Plaintiff was seen at Kern County Mental Health System of Care ("KCMH") between January and July 2005. (AR 301-19.) On February 2, 2005, Kris Ricketts, MS, MFT Intern, assessed Plaintiff, who reported that he had been "'hearing voices' and been experiencing depression, anxiety, and panic when he is in a room 'full of people.'" (AR 310.) Plaintiff reported "a seizure disorder and chronic use of PCP, marijuana and most recently alcohol. He has been sober for a few months since his primary doctor began prescribing Seroquel and busp[i]rone for his symptoms."*fn5 (AR 313-14.) Mr. Ricketts stated that "[i]t is not clear [] which came first, the psychosis or drug use because [Plaintiff] was also experiencing seizures until. . . 15/16 [years] of age (according to [Plaintiff])." (AR 314.) However, Mr. Ricketts opined that Plaintiff's "primary motivation" for seeking treatment "at this time appears to be obtaining SSI" and noted that Plaintiff had "just barely started receiving unemployment benefits." (AR 314.) Mr. Ricketts stated that Plaintiff "would benefit from brief treatment to decrease his depressive [and] anxiety symptoms due to unemployment and pending possible heart surgery."*fn6 (AR 314.) The assessment indicated that Plaintiff had a current Global Assessment Functioning ("GAF") score of 51 with a highest GAF of 60.*fn7 Progress notes indicate that Plaintiff was seen at KCMH through May 12, 2005, and he was officially discharged from the program on July 6, 2005, for failing to appear at his counseling sessions. (AR 302, 318-19.)

On May 21, 2005, Plaintiff was seen by John K. Zhang, Psy.D. for a psychological evaluation. (AR 353-55.) Dr. Zhang noted that Plaintiff was applying for disability benefits for alleged psychosis. (AR 353.) In reporting on Plaintiff's mental status, Dr. Zhang noted that Plaintiff "seems to be functioning at slightly below average range with adequate memory and concentration" and that Plaintiff reported "a history of auditory hallucinations related to his substance abuse" that were "treated with medication with positive result." (AR 354-55.) Dr. Zhang indicated a diagnosis of polysubstance dependence, reportedly in current remission; psychotic disorder not otherwise specified ("NOS"); mood disorder NOS, and antisocial personality disorder. (AR 355.) Dr. Zhang opined that "[t]he primary impairment seems to be the claimant's drug-related psychosis and mood disturbances, along with a history of antisocial personality traits. . . His conditions are expected to improve. At present, he may have some difficulty maintaining adequate concentration, persistence, and pace." (AR 355.)

On August 5, 2005, State Agency psychiatrist Luyen T. Luu, M.D. reviewed Plaintiff's records. (AR 367-80.) Dr. Luu opined that Plaintiff has mild limitations in activities of daily living and in maintaining concentration, persistence, or pace and moderate limitations in maintaining social functioning. (AR 377.)

On February 11, 2006, Ina Shalts, M.D. conducted a comprehensive psychiatric evaluation. (AR 391-95.) Dr. Shalts noted that Plaintiff's chief complaints were that he could not work due to back pain and that he was "bipolar" and felt "depressed." (AR 391.) Plaintiff reported mood changes, a belief that people were talking about him, anger, depression, feeling a need to cry, and frequent sleeping. (AR 391.) Plaintiff further indicated that he would hear voices and "sometimes" had suicidal thoughts. (AR 392.) Dr. Shalts noted that Plaintiff was currently on the medications Seoquel, Benazepril, Baclofen, Crestor, and Buspirone, and that Plaintiff stated that he could not take care of his two-year-old daughter because the medication made him "too sleepy."*fn8 (AR 392.) Dr. Shalts diagnosed Plaintiff with a mood disorder NOS, ruled out bipolar disorder, and indicated a history of polysubstance abuse for which Plaintiff had reported that he had been clean for three years. Dr. Shalts assessed a GAF of 50.*fn9 Dr. Shalts noted that Plaintiff "stated that his main problem is his pain because he is not able to work." (AR 394.) Dr. Shalts opined that Plaintiff was "able to understand, remember, and carry out simple instructions," that "[h]e would have some difficulty working with supervisors and the public," and that "[h]e would have some difficulty with the usual work situation." (AR 394.)

On April 22, 2006, State Agency psychiatrist J.A. Collado, M.D. reviewed Plaintiff's record and affirmed the findings of Dr. Luu. (AR 396-400.) The supporting documentation to Dr. Collado's affirmation indicates that records concerning Plaintiff's mental condition were considered, including Dr. Shalt's opinion that Plaintiff would have some difficulty working with supervisors, the public, and in the usual work situation. (AR 403-04.) Dr. Collado found that Plaintiff had sufficient ability to understand and carry out simple instructions, to perform activities with directions, and to maintain attention in two hour increments. (AR 400.) Further, Dr. Collado opined that Plaintiff was able to maintain socially appropriate behavior, to accept instructions and respond appropriately to criticism from supervisors, and to interact appropriately with the general public. (AR 400.) Plaintiff had the "sufficient ability to appropriately respond to changes in work setting." (AR 400.)

On October 17, 2007, Edward Brown, M.D. of Polyclinic jotted a handwritten note on a prescription pad indicating that Plaintiff was "[d]isabled due to schizophrenia [and] bipolar [disorder]." (AR 435.) On October 24, 2007, Dr. Brown performed a mental assessment based on Plaintiff's medical records. Dr. Brown stated that Plaintiff was slightly limited in his ability to understand, remember, and carry out very short and simple instructions, to make simple work related decisions, and to accept instructions and respond appropriately to criticism from supervisors. (AR 438-40.) Dr. Brown found Plaintiff to be moderately limited in his ability to remember locations and work-like procedures, to maintain attention and concentration for extended periods, to work with others without distraction, and to interact appropriately with the general public. (AR 438-40.) Plaintiff was found to have marked limitations in his ability to understand, remember, and carry out detailed instructions, and in his ability to complete a normal work-day and work-week without interruptions from psychologically based symptoms. (AR 438-40.) Dr. Brown's functional capacity assessment indicated that Plaintiff had disorders which included schizophrenia and bipolar. (AR 442.)

B. Administrative Hearing

The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an ALJ. (AR 462-66, 468-73, 474-76.) On October 31, 2007, ALJ Stephen Webster held a hearing in which Plaintiff and vocational expert ("VE") Kenneth Ferra testified. (AR 43-69.)

1. Plaintiff's Testimony

Plaintiff testified that he was married with two children of his own and four stepchildren; he lived with his wife, three-year-old daughter, and twenty-five year old stepson. (AR 47-48.) Plaintiff stated that he had a driver's license but would only drive "[o]nce in a while" due to his back pain and reaction to his medication; usually his wife would drive him to his doctors' appointments or elsewhere. (AR 47-48.) Plaintiff said that he helped take care of his daughter and he would watch television for approximately six to seven hours a day. (AR48-49.) Plaintiff indicated that he would occasionally visit with friends or family, but that it was difficult due to his "back problem" and that his medication made him "always tired." (AR 49.)

Plaintiff stated that he had an 11th grade education, did not have a GED, and that he had not completed a vocational school for automotive training. (AR 50.) Plaintiff testified that he had been in jail "[o]ff and on" until he "got a little older and just stopped going." (AR 50.) Plaintiff believed that he had been out of jail for approximately three or four years, perhaps longer. (AR 50.) Plaintiff said that he had not worked for pay since October 2004, and that he was receiving welfare and food stamps. (AR 50-51.) Plaintiff indicated that he had a back injury and degenerative disc disease; he also had a problem with depression and stated that the recent death of his parents had him "kind of screwed up in the head a little bit." (AR 51.) As for his psychological treatment, Plaintiff said that he was going to a mental health facility in Bakersfield but that he would "get in these little moods" and refuse to leave his room for three days. (AR 53.) Plaintiff reported that the facility was "going to come and get" him but that it had not yet done so. (AR 53.) The facility had referred Plaintiff to a "schizophrenia class," but he was uncertain about attending. (AR 53.) Plaintiff had not been to the mental health facility for "[p]robably about six months" prior to the hearing with the ALJ. (AR 54.) Plaintiff also testified regarding the pain in his lower back, neck, right arm, and right leg. (AR 54-55.)

2. VE Testimony

The ALJ asked whether there were jobs available for a hypothetical person of Plaintiff's age, education, and work history who could lift 50 pounds on occasion and 25 pounds frequently, who could sit, stand, and walk six out of eight hours, and who would be limited to simple, routine, repetitive tasks with occasional contact with the public. (AR 64.) The VE testified that there would be jobs in the regional or national economy such as wall cleaner, window cleaner, and farm worker which would be compatible with that hypothetical; the positions were medium and unskilled. (AR 64-65.) The ALJ posed a second hypothetical where the person could lift 20 pounds on occasion and 10 pounds frequently; the other restrictions remained the same. The VE indicated that such a person could perform light, unskilled work such as assembler, cleaner, and polisher. (AR 65-66.) In the third hypothetical, the ALJ asked the VE to assume the same factors but that the person would have to be able to sit or stand at will; the VE indicated that there would be no positions available if the jobs continued to be restricted to simple, repetitive tasks. (AR 66.)

Plaintiff's counsel posed a hypothetical to the VE in which the person could sit continuously for two hours, walk and stand for 30 minutes, sit for a total of four hours in an eight-hour day, lift a maximum of 10 pounds, required frequent changing of positions and lying down periodically, and had pain restrictions which would restrict the ability to maintain ...


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