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Lena M. Baker v. Michael J. Astrue

October 19, 2011

LENA M. BAKER,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER

Plaintiff Lena M. Baker, by her attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II 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. Following review of the record as a whole and applicable law, this Court affirms the agency's determination to deny benefits to Plaintiff.

I. Administrative Record

A. Procedural History

Plaintiff was insured under Social Security through December 31, 2006. On February 22 and November 6, 2002, Plaintiff filed for disability insurance benefits, alleging disability beginning November 12, 2001, attributable to non-Hodgkin's lymphoma. Her claims, which were consolidated for evaluation, were denied initially and upon reconsideration. Plaintiff appeared and testified at a hearing on November 9, 2004. On January 25, 2005, Administrative Law Judge Patricia Leary Flierl denied Plaintiff's application. Plaintiff appealed this determination to this Court (No. 1:07-cv-00754-AWI-DLB). On April 22, 2008, Plaintiff stipulated to dismissal of the appeal, agreeing with the Commissioner that her claim lacked merit.

On May 3, 2007, Plaintiff again filed for disability insurance benefits, alleging disability beginning January 28, 2004, attributable to non-Hodgkin's lymphoma. Her claim was denied initially on September 7, 2007, and upon reconsideration on January 17, 2008. On February 26, 2008, Plaintiff timely requested an administrative hearing. Plaintiff appeared and testified at a hearing on May 8, 2009. On September 8, 2009, Administrative Law Judge Stephen W. Webster denied Plaintiff's application. The Appeals Council denied review on June 11, 2010. On July 30, 2010, Plaintiff filed a complaint seeking this Court's review.

B. Agency Record

Plaintiff (born September 15, 1959) was trained in cosmetology but is no longer licensed to perform that work. She was last employed as a food service worker. She has given up her drivers' license; her husband and adult daughter drive her where she needs to go. She receives financial support from Calworks.

Plaintiff testified that she was able to perform her own personal grooming. She cooked, did laundry, and did "a little bit" of housework. She watered the garden. Plaintiff watched two or three hours of television daily and read. She visited with relatives and was able to attend church. When questioned by her own attorney, Plaintiff stated that she no longer socialized.

Plaintiff testified that she suffered from chronic pain that her medication could not eliminate. She could sit for 20 to 30 minutes; stand for an hour; walk for ten or fifteen minutes; and lift about five pounds. Plaintiff disclosed that she had abused cocaine from 1993 to 2000. Plaintiff testified that she suffered from nightmares and depression related to her having been raped in her twenties; the nightmares and depression had worsened since her prior application for disability benefits.

Plaintiff's husband, Paul Ruiz, was also unemployed, although he sometimes had jobs doing gardening or similar work. Ruiz testified that Plaintiff had been suffering nightmares and hot flashes since before 2005; these symptoms were worsening. Plaintiff woke up screaming, which frightened their ten-year-old daughter. Plaintiff no longer socializes.

Dr. Koster. Dr. Koster treated Plaintiff at the Hematology Oncology Medical Group in Fresno. Koster reported that Plaintiff's lymphoma was in remission in 2004, 2005, 2006, and 2007. He noted that Plaintiff had been in remission since 2001. On May 16, 2007, Koster noted that Plaintiff's diagnosis of fibromyalgia pre-dated her lymphoma treatment and that another physician prescribed medication for that illness. Koster ordered annual body scans and lab work, which were performed at St. Agnes Hospital. The results of the scans and lab work were normal except for elevated glucose and triglycerides.

Dr. Castro. I. Yolanda Castro, M.D., was reportedly Plaintiff's primary care physician. The record includes no treatment notes, reports, or opinions prepared by Castro.

Dr. Kecskes. As indicated on her treatment notes, Diane W. Kecskes, M.D., was a consultant, who was a board-certified physician in psychiatry and family practice. Plaintiff only saw Kecskes annually but contacted her monthly by telephone to renew prescriptions. The record includes Kecskes' "service notes" from September 29, 2003 to June 23, 2007.

Before the decision in Plaintiff's prior application for benefits, Kecskes diagnosed Plaintiff with major depression, recurrent, and post traumatic stress disorder resulting from rape. She prescribed antidepressant medications and recommended that Plaintiff receive therapy. On October 13, 2003, Kecskes noted that Plaintiff had entered perimenopause and was experiencing irritability, hot flashes, and fatigue. Plaintiff complained of recurrent dreams of a thin man assaulting her and threatening to cut her throat. She reported crying spells and paranoia.

When the first hearing decision issued in January 2005, Kecskes was still trying to determine the appropriate medication and dosage to relieve Plaintiff's symptoms, but Plaintiff continued to complain of depression, fatigue, and muscle aches and pains. Plaintiff declined group therapy. Kecskes' inability to identify the proper drugs at effective dosages is repeated throughout her notes. The notes throughout this period also reflect Plaintiff's difficult relationships with her husband and with her adult daughter, who did not like Plaintiff's husband.

The notes reported that Plaintiff's appointments were primarily for medication management and "supportive listening."

On March 14, 2005, Kecskes referred Plaintiff to a rheumatologist, Dr. Bertken, for evaluation of her fibromyalgia. Bertken was to perform laboratory testing necessary to diagnose fibromyalgia.*fn1

On April 11, 2005, Plaintiff reported hearing voices and complained of chronic pain. On May 9, 2005, Kecskes reported that she had completed SSI forms for Plaintiff's attorney. Kecskes noted that Plaintiff appeared overwhelmed by somatic problems and had multiple cold sores on her face.

On August 8, 2005, Kecskes recommended a trial of gabapentin and neurontin to address Plaintiff's fibromyalgia and chronic pain syndrome. Plaintiff requested that Kecskes agree to become her primary care physician since Dr. Castro, her current primary care physician, would only see her once or twice annually. Kecskes' note regarding her response to this is unclear, but she did not become Plaintiff's primary care physician.

In a letter to the Administrative Law Judge, dated October 5, 2005, Kecskes wrote: Lena Baker has been under my psychiatric care since 2002 for severe enduring PTSD symptoms that interfere with her day to day functioning. The extent of her problems include psychotic symptoms for which she is prescribed 2 antipsychotics to control auditory voices of her trauma, disorganized and delusional thinking that affect her doing her ADL's. She is also on several antianxiety and antidepressant medications. She is unable to work due to her chronic mental illness. She is being seen every 2-4 weeks and sometimes sooner as symptoms emerge.

AR 349.

On October 17, 2005, Plaintiff reported that the neurontin seemed to help her pain, but only if she "doubled up on them." Kecskes increased the dosage.

On October 16, 2006, two months after Plaintiff reported that her SSI application had been appealed, Kecskes noted:

Lena was seen today. Her mental health is such that she is unemployable. She is depressed and unable to do the things that she used to do because of chronic pain related to fibromyalgia. She is chronically fatigued. Her fatigue has her bed bound [indecipherable]. She has deteriorated. Her stressors are compound[ed] by financial stress as she is unable to work a 4 or 8 hour [indecipherable].

AR 287.

Kecskes' plans and recommendations included "notify attorney of gravity." AR 287. Plaintiff was less depressed on November 13, 2006. On December 11, 2006, Plaintiff told Kecskes that she had thoughts of hanging herself in the garage. On both December 11, 2006, and February 12, 2007, Kecskes noted that SNRI medications (antidepressants) had no effect on Plaintiff's depression. In February, Kecskes noted that Plaintiff was not psychotic but was stressed out by her bills. Plaintiff told Kecskes that her family was destitute. On March 12, 2007, Kecskes noted that Plaintiff's chronic pain was being helped by antidepressants and pain medications.

The April 16, 2007 notes reported that Plaintiff's family including her parents-in-law, her older daughter, and her grandsons had gathered together for Easter, reducing Plaintiff's stress over family relationships. Plaintiff "continue[d] to stress, worry, & become anxious over finances, debt, and [reduced] resources." AR 281.

On June 23, 2007, Kecskes' plans and recommendations included social rhythm therapy and Plaintiff's reapplying for SSI based on her depression and post traumatic stress disorder.

In a medical verification of physical and mental incapacity for CalWorks, dated December 30, 2008, Kecskes reported that Plaintiff had a permanent ...


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