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Nicholas Olivas v. Michael J. Astrue

October 11, 2011


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge



Nicholas Olivas ("Plaintiff") brings this action seeking to reverse the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner") denying his application for Supplemental Security Income ("SSI"). The parties consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the decision of the Commissioner is AFFIRMED. The Court issues this Amended Memorandum Decision and Order to correct minor, non-substantive errors in the original Memorandum Decision and Order issued on October 7, 2011.

However, the ultimate findings are not altered in this Amended Memorandum.


Plaintiff applied for Title XVI SSI benefits on November 6, 2007,*fn1 alleging a disability onset of January 1, 2001. (Administrative Record ("AR") 9; see AR 86-88). Plaintiff claimed he is disabled due to past head trauma that caused difficulties in understanding, balance, equilibrium, memory, dizziness, dry mouth, lack of coordination and frequent headaches. (AR 96). Plaintiff also noted that he feels weak and faints if he exerts himself for twenty minutes, that he experiences slurred speech and is unable to function normally due to his medications. (Id.). Plaintiff alleges that he was diagnosed as schizophrenic and bipolar, that he suffers from hallucinations, hears voices, experiences extreme paranoia, and is depressed. (Id.).

The Agency initially denied Plaintiff's SSI claim on May 5, 2008. (AR 49-54). Plaintiff requested reconsideration on May 20, 2008. (AR 57). The Agency denied his claim again on December 24, 2008. (AR 59-63). Thereafter, Plaintiff filed a Request For Hearing By Administrative Law Judge on January 29, 2009. (AR 64).

The Agency scheduled a hearing for June 30, 2009. Plaintiff testified at the hearing before Administrative Law Judge ("ALJ") Jay E. Levine, in San Bernardino, California. (AR 19-44). Sandra Fioretti, a vocational expert also testified at the hearing. (Id.). Denise Valsquez, Plaintiff's sister also appeared, but did not testify at the hearing. (Id.). The ALJ denied Plaintiff's claim on November 18, 2009. (AR 6-14). On January 14, 2010, Plaintiff sought review of the ALJ's unfavorable decision before the Appeals Council. (AR 5). On September 15, 2010, the Agency denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (AR 1-3). Plaintiff commenced this action on October 26, 2010.


Plaintiff was born on June 11, 1964 and was forty-five years old at the time of the hearing. (AR 22-23, 86). Plaintiff received his GED in 1992. (AR 101). Plaintiff has past work experience as a furniture mover, (AR 97, 129, 204), as a porter while in prison, (AR 130, 204), and as a self-employed handyman. (AR 131, 204). Plaintiff claims disability stemming from schizophrenia, bipolar disorder, and trauma from a head injury in 2002. (AR 96).

A. Plaintiff's Records

Plaintiff noted that he has spent "most of [his] life in prison." (AR 135). Plaintiff testified at the June 30, 2009 hearing that he was incarcerated from 1989 to 1992 for "possession and sale of cocaine," and was incarcerated again in 2002 for sixteen months for "receiving stolen property." (AR 26). In 2002, Plaintiff was found guilty of purchasing and receiving a stolen 1991 Honda, and attaching a stolen license plate to the car. (AR 227). After serving the sentence for his 2002 conviction, Plaintiff was released on parole. (See AR 26). Plaintiff testified that after his 2003 release, he violated his parole "like four . . . or five" times by absconding, and was incarcerated for approximately six months or less after each violation. (AR 27).

A substantial portion of the record is comprised of Case Management Notes from the California Department of Corrections ("CDC") regarding Plaintiff's behavior and progress while out on parole. (See AR 219-250, 277-299). The CDC Case Management Notes include evaluations that detail, inter alia, Plaintiff's commitment offense and criminal history reports. (AR 227). Evaluations reflect that on May 19, 2004, June 6, 2006, June 26, 2007, and July 23, 2007, Plaintiff violated parole by absconding, and "not reporting to his agent." (AR 227, 233, 245, 296). These evaluations also note Plaintiff violated his parole by having "access to ammo and a knife." (Id.). Specifically, all evaluations claim Plaintiff's past criminal history:

[I]s violent and includes the use of narcotics. [Plaintiff] was arrested July of '99 for Spousal Battery. [Plaintiff] in fact has been arrested numerous times on Spousal Battery. [Plaintiff] stated that he committed [ten] [b]atteries on just one of his girlfriends. [Plaintiff] has also been either charged or arrested for Possession of a Controlled Substance, Fighting, Resisting Arrest, Forgery.

(Id.). In addition to Plaintiff's parole violations for absconding, Plaintiff has also violated parole on two separate occasions by abusing methamphetamine on June 26, 2006, and August 14, 2006. (AR 252).

In total, Plaintiff has "served four prison terms, spent a total of eleven years incarcerated, and was last paroled in June 2008." (AR 386). Plaintiff was eventually discharged from parole in September 2008. (AR 306).

B. Substance Abuse History

During Plaintiff's June 30, 2009 hearing, Plaintiff testified that he had used methamphetamine, marijuana, and cocaine in the past, but had not used any drugs for about two years prior to the hearing. (AR 25). Plaintiff testified that he participated in a program for six or seven months to "straighten out." (AR 25-26).

The CDC Case Management Notes provide further detail regarding Plaintiff's substance abuse history. The May 19, 2004 evaluation states that Plaintiff reported "both marijuana and methamphetamine would relax him especially when he was upset and he used them both mellow out," and that Plaintiff said "back in 1992 he was really into methamphetamine . . . that he was cooking methamphetamine in a house in Covina when it blew up. The explosion of course brought the police." (AR 229).

The June 6, 2006 evaluation states that at the time of the report, Plaintiff claimed that he used methamphetamine and marijuana regularly to "mellow out." (AR 235). The July 23, 2007 evaluation reports that Plaintiff "stated he has tried every drug out there beginning as a [sic] early teen and into adulthood. [Plaintiff] told me he was reluctant to talk about this because is [sic] he thinks it might hinder his social security claim." (AR 297). The evaluation further states, "[Plaintiff] has used cocaine, meth, and marijuana . . . [and] used it when ever [sic] it was around, which sounded like allot [sic]. [Plaintiff] was adamant that he is not an addict. Clinically [Plaintiff] was minimizing his pattern of use and was reluctant to disclose too much." (AR 297-98).

Plaintiff's methamphetamine abuse resulted in parole violations on June 26, 2006 and August 14, 2006, as reported by Plaintiff's parole agent, C. Reed-Johnson, in his February 4, 2008 Parole Agent Questionnaire. (AR 252-53). In that same questionnaire, Mr. Reed-Johnson further reported that as of the date of the questionnaire, Plaintiff received monthly scheduled and random drug tests as part of his parole. Mr. Reed-Johnson also reported that Plaintiff has not tested positive since his "last release" on May 24, 2007. (AR 252).

C. Plaintiff's Medical History

1. Treating Physicians

On the June 18, 2009 "Claimant's Recent Medical Treatment" form, Plaintiff identified his current treating physicians as High Desert Walk-In Crisis Center's ("HDCWIC") Dr. Bagwal, and the Arrowhead Regional Medical Center ("Arrowhead") staff. (AR 201). Plaintiff stated that he has been a patient of Arrowhead since September 2008 and HDCWIC since January 2009. Plaintiff reported that treating doctors informed him that he has "major problems with balance, . . . suffer[s] from depression, bi polar [sic], schizophrenia, rage[] hallucinations, hear[s] voices, [commits] self-mutilation," observes that he breaks out in sweats, notes that he sustained a head injury, "can't see well, . . . ha[s] been suicidal," and that he is confused and unstable. (Id.). In addition, Plaintiff met regularly with CDC doctors during his parole for medication monitoring. (AR 219-50, 270-99).

On the June 18, 2009 Claimant's Medications form, Plaintiff reported that he was presently taking Seroquil 400mg twice daily and Depacote 500mg three times daily as an anti-psychotic medication, a mood stabilizer, and as treatment for his bipolar disorder. (AR 203). Plaintiff also noted that was taking Celexa 20mg twice daily and Propranolol 20mg three times daily for depression and hypertension, respectively; Benadryl 50mg three times daily to help with the medication interaction of his other prescriptions; and Effexor 75mg twice daily for depression. (Id.). Plaintiff reported that he had been taking Seroquil and Depacote since 2002, Celexa and Effexor since November 2008, Benadryl since February 2009, and Propranolol since March 2009. (Id.). Plaintiff stated that he suffered from hallucinations as a side effect of the Propranolol. (Id.).

a. Arrowhead Regional Medical Center

The records provided by Arrowhead primarily consist of pre-printed handouts that contain information identifying Plaintff's prescribed drugs. The handouts explain the drug's common uses, what Plaintiff should do before taking the medication, how Plaintiff should take the medication, what Plaintiff should do in the event of an overdose, and other information. (AR 208-09, 312-27, 338, 343-47). These informational handouts reflect that Arrowhead prescribed to Plaintiff Seroquel, Depakote, Diphenhydram (an antihistamine), Propranolol, Effexor, Temazepam (used to treat sleep disorders), Citalopram (used to treat depression), Divalproex (used to treat seizures) and Famotidine (a histamine blocker used to treat ulcers). (Id.).

In addition to these prescription informational handouts, the Arrowhead records contain three Notices of Certification, dated December 29, 2007, February 13, 2009 and February 20, 2009, respectively. (AR 210, 340, 341). These notices certified Plaintiff as eligible to "receive intensive treatment for no more than [fourteen] days" in Arrowhead's Behavioral Health intensive treatment facility for being a danger to himself and being "gravely disabled." (Id.). Of the three notices in the record, only the February 20, 2009 notice is legible. It states that the staff at Arrowhead certified Plaintiff for commitment because he was "very depressed . . . [brother with] life sentence mom dying of [cancer], has suicidal thought [sic], unable to work . . . no plan to self care." (AR 340). The proposed treatment plan for the committal was for "medication stabilization and or possible placement." (Id.).

The Arrowhead records also contain an Involuntary Patient Advisement ("Advisement"), dated February 18, 2009, that informed Plaintiff that he would "be held for a period of up to [seventy-two] hours" beginning February 17, 2009 at 9:30PM and ending at February 20, 2009 at 9:30PM. (AR 342). The Advisement indicated the seventy-hour committal was necessary because it was the opinion of the professional staff at Arrowhead that Plaintiff was likely to harm himself because he was "hearing voices telling [him] to harm [himself] with plan [sic] to run into traffic" and because there was a "history of previous suicide attempts." (Id.).

b. High Desert Crisis Walk-In Center

HDCWIC records contain a Psychiatrist Intake Assessment Form, dated January 14, 2009; four Crisis Stabilization Follow Up of Care Forms, dated January 25, 2009, February 6, 2009, February 9, 2009 and April 23, 2009, respectively; a Psychiatric Evaluation Follow Up of Care Form, dated May 26, 2009; and a MD Progress Note from Dr. Adam Opbroek, dated February 6, 2009. (AR 358-364). The record also contains a Medication Refill: Psychiatrist's Assessment, dated October 24, 2007. (AR 391).

In the January 14, 2009 Intake Form, Dr. Opbroek noted Plaintiff complained of auditory hallucinations, paranoia, anger and that he demanded Ativan. (AR 364). Dr. Opbroek stated, "[Plaintiff] [d]enies [suicidal ideations/homicidal ideations] and is clearly capable of creating much risk for himself or others." (Id.). Dr. Opbroek described Plaintiff as an "antisocial character" with a "potential for explosive assaultive behavior," who was "last on meds several months ago." (Id.). Although Plaintiff denied drug abuse, Dr. Opbroek suspected he was still abusing. (Id.). Dr. Opbroek also noted Plaintiff's sensorium, orientation, eye contact and speech were "normal," his motor skills were "restless," his thought content was paranoid, his thought process was "circumstantial," and his insight, judgment, and impulse control was "decreased." (Id.). Dr. Opbroek prescribed Plaintiff Zyprexa on a trial basis to "clarify [treatment] need and [diagnosis] while diminishing risk." (Id.).

In the January 25, 2009 Crisis Stabilization form, Dr. Opbroek reported that Plaintiff came in complaining that the Zyprexa was not working, and complained about "anger, impulse control, aggression." (AR 363). Dr. Opbroek observed that Plaintiff's sensorium, orientation, eye contact, speech, mood, and thought content were "normal," his motor was "restless," his mood was "angry," his affect was "reactive," his thought process was "circumstantial," and his insight and judgment were "impaired." (Id.). Dr. Opbroek also noted that Plaintiff did have some suicidal ideations, but with no plan or intent to execute them. (Id.).

The February 6, 2009 and February 9, 2009 Crisis Stabilization notes show that Plaintiff was not on any medication at the time of the appointment. (AR 360-61). Although the notes reflect Plaintiff had no suicidal or homicidal ideations and was "normal" in the areas of his senses, orientation, eye contact, motor, speech, thought process, insight and judgment, Plaintiff was "labile," "hypomanic," and suffered from "hallucinations, delusions, paranoia and depression." (Id.).

In the February 6, 2009 MD Progress Note, Dr. Opbroek reported Plaintiff was brought to HDCWIC after he called 911 threatening to commit suicide, and after the sheriff determined there was no acute need for a "5150 committal." (AR 362). Dr. Opbroek stated, "[Plaintiff] claims none of his meds are working, resists filling out paperwork or interactions with staff, and states he 'wants to go voluntarily' to the hospital. This presentation [is] identical to prior [HDCWIC] visits and he has also been seeking Benzo [prescription] without success." (Id.). Dr. Opbroek noted that Plaintiff sat calmly in the clinic, exhibited "no mania, mood instability, recurring active signs of depression, or psychotic thought processes. His anger, irritability, and threat of killing himself only [were] verbalized when he [was] advised [his] clinical condition does not warrant 5150, and that he exhibits no indication for acute hospitalization." (Id.). Dr. Opbroek ultimately concluded Plaintiff's "presentation [was] clearly consistent with malingering." (Id.).

The April 23, 2009 Crisis Stabilization reflects that Plaintiff was back on his medication, and that he felt "somewhat stable" as a result. (AR 359). Plaintiff was still "hypomanic," "labile, and suffering from hallucinations, delusions and paranoia." (Id.). Further, the May 26, 2009 Psychiatric Evaluation notes indicate Plaintiff reported that he was "doing well" after going back on his medication. (AR 358).

HDCWIC records also indicate Plaintiff received prescriptions for Propranolol, (AR 368), Diphenhydramine (used to treat symptoms of the common cold and allergic conditions), (AR 371), Venlafaxine and Citalopram (both used to treat depression), (AR 372-73), Seroquel, (AR 377) and Divalproex Sodium ...

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