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Norma Salinas v. Michael Astrue

January 6, 2012

NORMA SALINAS,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE DISTRICT COURT AFFIRM AGENCY'S DENIAL OF BENEFITS

Plaintiff Norma Salinas, proceeding in forma pauperis, by her attorneys, Law Offices of Jeffrey Milam, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI") 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. 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 recommends that the District Court deny Plaintiff's appeal.

I. Administrative Record

A. Procedural History

On November 29, 2006, Plaintiff filed a SSI application, alleging disability beginning May 1, 2003. Her claims were denied initially on June 12, 2007, and upon reconsideration on November 1, 2007. On December 31, 2007, Plaintiff filed a timely request for a hearing.

Plaintiff appeared and testified at the hearing on May 29, 2009. On September 1, 2009, Administrative Law Judge Michael J. Haubner denied Plaintiff's application. The Appeals Council denied review on July 8, 2010. On September 6, 2010, Plaintiff filed a complaint seeking this Court's review.

B. Factual Record

Plaintiff (born November 23, 1956) has never worked other than occasional baby-sitting or house cleaning. Thus, although Plaintiff reported that she last worked May 1, 2003, she has no history of work for which social security (FICA) taxes were paid. She dropped out of school in the ninth grade, but completed a GED while imprisoned in 1998.

Plaintiff's main difficulties were depression and anxiety. She reported experiencing anxiety attacks three times monthly. Plaintiff heard voices, although her medications reduced the frequency with which she heard them. She had high blood pressure and arthritis, which caused her feet and ankles to swell. Her body was stiff, and she had trouble bending.

Plaintiff, who was five feet, five inches tall, weighed 260 pounds. Although she tried to follow her doctors' direction that she reduce her weight, Plaintiff complied with her diet only about 75 percent of the time and got no exercise other than walking her dog in the front yard. Plaintiff could grip or grasp a coffee cup or pencil for about two minutes before needing to rest for 20 minutes.

Plaintiff testified that she has a history of convictions for drug-related offenses. She last used street drugs five years before the May 29, 2009 hearing. After her doctors advised that she stop smoking cigarettes, she reduced her use from two packs a day in 2004 to three cigarettes a day by the hearing date. On November 29, 2006, the agency interviewer noted that Plaintiff was "hyper" and talkative, and smelled of alcohol. She testified that she stopped drinking alcohol in mid-2007.

Plaintiff used inhalers to treat her asthma. She did not use home oxygen or a nebulizer but claimed to have been hospitalized for treatment of her asthma for two weeks in September 19, 2008.*fn1

She testified that she could lift about three pounds without injuring herself, stand for ten minutes, and sit for about 20 minutes. She could walk half a block at a time. She needed to rest and elevate her feet for about 20 minutes twice a day. She could concentrate for about one-half hour before needing to rest for one hour.

Plaintiff lived in her mother's apartment. She was able to care for her personal needs, including dressing and hygiene. She was able to perform household chores, including laundry, cooking, and trash removal. She made her bed and changed the bedding. Mopping was difficult as it caused her hands to stiffen. She rarely shopped, although she went to the neighborhood store daily. Plaintiff cared for a dog and walked it in the front yard. She watched television all day, for a total of about twelve hours. She did not socialize but talked on the phone about once a day. Although Plaintiff's 89-year-old mother was generally able to care for herself, Plaintiff helped her put on her shoes.

Adult Disability Report. Plaintiff reported poor concentration and memory. She primarily remained in her home. She was troubled by her emotions and guilt, was sad, and heard voices. She was easily upset and awoke during the night. Although she had never worked, Plaintiff became unable to work on May 1, 2003.

Community Medical Center. When Plaintiff was arrested on May 5, 2005, she was taken to the emergency room of Community Medical Center for treatment of an abscess on her thigh. From May 5 through 7, 2005, she was treated for the abscess and a urinary tract infection before being transferred to jail. Dr. Maria Vazquez-Campos prescribed Bactrim-DS (antibiotic), Vicodin (as needed for pain), Serax (anti-anxiety), folic acid, thiamine, and multivitamin supplements. Records noted Plaintiff's history of abusing alcohol and intravenous drugs.

Valley State Prison. The agency record includes physicians' notes during Plaintiff's incarceration at Valley State Prison for Women.*fn2 Prison physicians diagnosed Plaintiff with hepatitis C and treated her for seasonal allergies and recurrent allergic rashes and hives. They continued her prior prescription for Trazadone*fn3 and prescribed Motrin and Benadryl for her joint pain and allergies. A trial of Celebrex did not relieve Plaintiff's joint pain. On June 9, 2005, R.O. Cannon, M.D., noted that Plaintiff was not adequately treating her asthma because she did not use her inhaler properly.

Drs. Bruny and Spencer. Madera radiologists Todd Spencer, M.D., and Stephen Bruny, M.D., F.A.C.R., also treated Plaintiff while she was incarcerated at Valley State Prison. On November 25, 2003, Spencer evaluated x-rays of Plaintiff's hip, pelvis, and lumbar spine after she fell. He identified mild degenerative joint disease but found no fracture or dislocation. On June 13, 2005, Bruny found Plaintiff's chest x-ray normal and noted that, despite degenerative changes in the right sacroiliac region, x-rays of her pelvis and hip were also normal.

Parole Outpatient Clinic. In early November 2005, Nathan Nenadov, LCSW, prepared Plaintiff's initial mental health evaluation for the Parole Outpatient Clinic. Plaintiff had a long history of polysubstance abuse and had completed at least four treatment programs. She also reported a suicide attempt in 2003 while in prison: she cut her wrists because she was angry. Prison physicians prescribed Trazodone and Seroquel.

Plaintiff reported poor sleep and decreased appetite. Nenadov observed that she was alert and oriented with average intellect, intact memory, and "an adequate fund of information." She had poor insight into her problems or symptoms. Nenadov diagnosed:

Axis I: 296.90 Mood Disorder NOS

304.00 Opoid dependence 304.20 Cocaine dependency in full remission Axis II: 799.90 Diagnosis deferred Axis III: Medical concerns: Hepatitis C and asthma by report Axis IV: Psychosocial stressors: Parole and legal problems; chronic unemployment; financial problems Axis V: GAF=60 AR 241.*fn4

When Plaintiff next saw Nenadov, she reported that she had halved her Seroquel dose, which ameliorated its side effect of causing her legs to shake, and questioned whether the Seroquel was necessary. Nenadov directed her to discuss Seroquel with Dr. Green. Nenadov reported that Plaintiff was stable and functioning well with no problem or concerns.

Psychiatrist Henry Green, M.D., supervised mental health prescriptions. He continued Plaintiff's trazadone prescription and briefly discontinued Seroquel. On July 19, 2006, he noted, "There is no psychosis at this time. Affect is appropriate." AR 238. On July 28, 2006, Plaintiff was doing well and expressed a desire to also get off Trazadone soon.

On September 18, 2006, Nenadov reported that Plaintiff continued to do well, with her biggest problem being her diet and weight management. Plaintiff acknowledged that snacking on junk food was her problem, but felt good and was not stressed out about her weight. Green's brief notes on October 11, 2006, indicated that Plaintiff continued to do well, with no sleep or appetite disturbance.

On April 12, 2007, Nenadov prepared a status report indicating that Plaintiff was then prescribed Trazodone and Seroquel. She was compliant with treatment and medications. Plaintiff was frequently depressed, but not on a daily basis. She lacked energy and motivation and frequently isolated herself. She slept well as long as she took her medications. Plaintiff showed no psychotic symptoms. She reported no hallucinations, delusions, or suicidal ideation.

In a "Medical Source Statement, Psychiatric,"*fn5 dated July 20, 2007, Green opined that

Case 1:10-cv-01615-LJO -SMS Document 17 Filed 01/06/12 Page 6 of 26

Plaintiff had shown marked improvement in her ability to relate and interact with supervisors and co-workers; to understand, remember, and carry out an extensive variety of technical or complex job instructions; to understand, remember, and carry out simple one- or two-step job instructions; to deal with the public; to maintain concentration and attention for at least two-hour increments; and to withstand the pressure and stress associated with an eight-hour workday and day-to-day work activity. She was able to handle funds. Green stated that Plaintiff "[c]ould be functional in 6-9 months." He opined that Plaintiff had mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, and marked difficulties in maintaining concentration, persistence or pace. Green also indicated that plaintiff had experienced one or two episodes of decompensation, but the phrase, "[e]ach of [e]xtende [d]uration" had been stricken from the form. AR 291.

Dr. Hirokawa. On December 28, 2006, Greg Hirokawa, Ph.D., prepared a consultative psychiatric evaluation for the agency. Plaintiff told Hirokawa that she experienced depression, anxiety, hearing voices, short-term memory problems, mood swings, sleeping difficulty, withdrawal, poor concentration, and being stressed out. Her primary issues were finances and not returning to prison. Her current medications were Trazodone and Seroquel. Although she had attempted suicide twice, most recently in 2003, she had never been hospitalized for mental health issues. Recent outpatient treatment had been helpful.

Although speech and thought contact were normal, Plaintiff was depressed. She appeared of average intelligence with adequate memory. Nonetheless, her responses to Hirokawa's mental status questions were inadequate or reflected errors.

Plaintiff had a few friends who were not close. She cooked, vacuumed, swept, mopped, and did yard work and laundry. She generally stayed at home and watched television. Hirokawa diagnosed:

Axis I: Adjustment disorder with mixed emotional features.

Polysubstance dependence, in reported remission.

Axis II: Antisocial personality disorder

Axis III: Hepatitis C Axis IV: Stressors: economic, social environment and health problems Axis V: Current GAF=62; within the last year: 62 AR 245.*fn6 He opined: The claimant's participation effort appeared to be marginal. She was not able to answer some basic questions. Her symptoms of depression and anxiety appear to be within the mild range. Her reported auditory hallucinations do not appear to be consistent with a formal thought disorder. Her communication skills were fair. The claimant is currently receiving treatment for this disorder. The claimant has a long history of antisocial behavior, including heavy drug and alcohol usage and numerous arrests. The claimant has had a negative work history consisting of minimal work experience. The likelihood of the claimant's mental condition improving within the next 12 months is fair. The claimant appears to have a personality disorder which consists of poor interpersonal skills and anger problems.

AR 245-46.

Hirokawa assessed Plaintiff's residual functional capacity based only on her psychiatric condition:

The claimant's ability to understand and to remember very short and simple instructions is slightly limited. The claimant's ability to understand and remember detailed instructions is slightly limited. The claimant's ability to maintain attention and concentration is slightly limited. The claimant's ability to accept instructions from a supervisor and respond appropriately is slightly limited.

The claimant's ability to sustain an ordinary routine without special supervision is slightly limited. The claimant's ability to complete a normal workday and workweek without interruptions at a consistent pace is slightly limited. The claimant's ability to interact with co-workers is slightly limited. The claimant's ability to deal with various changes in the work setting is slightly limited. The likelihood of the claimant emotionally deteriorating in a work environment is minimal.

AR 246.

Dr. Klein. On January 3, 2007, agency consultant Adi Klein, M.D., physically examined Plaintiff. Her chief complaints were "psychiatric" and hepatitis C. Although her hepatitis C had been diagnosed while she was ...


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