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Emily Rector v. Michael J. Astrue

September 8, 2011

EMILY RECTOR,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Emily Rector ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying in part her application for supplemental security income and disability insurance benefits pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Magistrate Judge for Findings and Recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her applications in July 2001 and May 2002, alleging disability since August 1, 2000, due to physical and mental problems. AR 84-86, 547-554, 717. The applications were denied and Plaintiff filed an action with this Court. AR 715. On July 15, 2005, the Court granted the parties' stipulation to remand the action. On remand, the Administrative Law Judge ("ALJ") was directed to give further consideration to Plaintiff's mental limitations, obtain medical expert evidence, give specific reasons for rejecting or accepting the medical opinions and ask a Vocational Expert ("VE") to clarify the issue of transferable skills. AR 760-763.

On May 23, 2007, the ALJ issued a decision finding Plaintiff not disabled. AR 769-779. On September 24, 2007, the Appeals Council again remanded the action to the ALJ to obtain medical expert testimony regarding Plaintiff's mental limitations. AR 715, 830-831.

ALJ William C. Thompson held a hearing on April 1, 2009, and issued a partially favorable decision on June 23, 2009. AR 715-725. Specifically, ALJ Thompson found Plaintiff disabled as of June 1, 2007. AR The Appeals Council denied review on September 9, 2010. AR 700-702.

Hearing Testimony

ALJ Thompson held a hearing on April 1, 2009, in Stockton, California. Plaintiff appeared with her attorney, Jeffrey Milam. Medical Expert Charles Agler, M.D., and VE Susan Moranda also appeared and testified. AR 1516.

Dr. Agler testified that he was a Medical Expert in psychiatry. AR 1520. He reviewed Plaintiff's medical records and opined that she had the medically determinable mental impairments of personality disorder, which over time has resulted in depression. AR 1520-1521. Dr. Agler believed that Plaintiff's affective disorder "equals the listing from some time prior to June 2007." AR 1521. He explained that it was very difficult to find an exact date because the records were inconsistent and mainly written by social workers. AR 1522. Dr. Agler noted that Plaintiff was hospitalized four times and on the first three, she was admitted with a very low GAF and discharged with significant improvement. On the fourth hospitalization, from June 2 to June 4, 2007, she was admitted with a GAF of 40 and discharged with a GAF of 40. Plaintiff did not show any improvement, which was unusual for her, so Dr. Agler used this hospitalization as a "marker of time when a combination of problems did equal a listing." AR 1522-1523. Based on the most recent records, Dr. Agler believed that the impairment continued to meet the listing. AR 1523. There were times in 2008 when Plaintiff did a bit better, but she was unable to maintain that improvement. AR 1523.

The ALJ asked if there was evidence upon which Dr. Agler could conclude that Plaintiff's mental impairment met or equaled a listing prior to June 30, 2007. He responded that he could not find anything in the record that clearly convinced him that Plaintiff's impairment met or equaled the listing prior to June 2007. AR 1523-1524.

Plaintiff's attorney questioned Dr. Agler and asked him if her first three hospitalizations demonstrated a continuing drop in her capacity despite treatment. Dr. Agler testified that these were acute situations and that her GAF promptly rose to something above 50. AR 1524. He testified that upon hospitalization, Plaintiff's GAF was at a "marginal level" but that this GAF "would not prevent some kind of simple SGA." AR 1525. Dr. Agler explained that for periods in between her hospitalizations, she was "functioning in a marginal manner that would not preclude SGA." AR 1525. Prior to June 2007, Dr. Agler believed that Plaintiff had at least a moderate limitation in her ability to maintain attention and concentration for extended periods. Although such a mental impairment is ordinarily consistent with "some form of SGA with limitations," Dr. Agler admitted that it might lead to a VE finding that no jobs exist. AR 1539.

Plaintiff testified that in March 2008, she began seeing Dr. Voqui every three months for mental health treatment. AR 1543.

For the first hypothetical, the ALJ asked the VE to assume an ability to lift 20 pounds occasionally, 10 pounds frequently, stand and/or walk for six hours and sit without restriction. This person was moderately limited in her ability to respond appropriately to supervisors, co-workers and the public and should not work in a work team or cooperative work process. The VE testified that this person could not perform Plaintiff's past work. AR 1546.

For the second hypothetical, the ALJ added an inability to perform more than simple, repetitive tasks. The VE testified that this person could not perform Plaintiff's past work. AR 1547.

For the third hypothetical, the ALJ asked the VE to assume the same physical limitations, with moderate limitations in the ability to (1) maintain attention and concentration for extended periods, (2) perform activities within a schedule and be punctual with work breaks, (3) complete a normal workday and workweek without interruption from psychologically based symptoms and to perform work at a consistent pace without an unreasonable number and length of rest periods, and (4) sustain an ordinary routine without special supervision and to interact appropriately with co-workers and employees. This person would also have a significant (more than moderate) ...


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