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Kevin Helm v. Michael Astrue

May 15, 2012

KEVIN HELM,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Kevin Helm ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance benefits pursuant to Title II of the Social Security Act. Before the Court is Plaintiff's Motion for Summary Judgment (Doc. 17); the Commissioner's Response (Doc. 20); and Plaintiff's Reply Brief (Doc. 24). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed an application for benefits on August 29, 2007, alleging disability beginning July 2, 2001. AR 133. Plaintiff's application was denied initially and on reconsideration, and he requested a hearing before an Administrative Law Judge ("ALJ"). AR 44. ALJ Christopher Larsen held a hearing and subsequently issued an order denying benefits on January 5, 2010, finding Plaintiff was not disabled. AR 20-32. This appeal followed.

Medical Record

Plaintiff alleges that he has been disabled since July 2, 2006, due to bipolar disorder and severe depression anxiety. AR 133. Therefore, the record is summarized here in chronological order with particular regard to Plaintiff's alleged mental impairments. Nonetheless, the record as a whole was reviewed and will be specifically referenced as necessary to this Court's decision. AR 229-345.

Plaintiff began receiving treatment for his alleged mental impairments in 2007. Treatment records from Satnam S. Atwal, M.D., noted Plaintiff's prescribed medication and his mental state. AR 334-341. A mental status examination from 2007 by Dr. Atwal showed that Plaintiff was normal or average in all areas, except for affect/appearance, which was restricted, and his mood was depressed and anxious. AR 338. Plaintiff reported to Dr. Atwal that he smoked one pack of cigarettes a day, had no ambition to do anything, but could also be the life of the party. AR 340. Plaintiff stopped treatment with Dr. Atwal in June 2008. Dr. Atwal was asked to complete a report detailing Plaintiff's mental status for the hearing, but Dr. Atwal's office refused. AR 26.

On February 9, 2008, Greg Hirokawa, Ph.D., performed a psychological evaluation of Plaintiff, reviewed progress notes from Plaintiff's doctor, and reviewed Plaintiff's report to the agency. AR 247-252. During the exam, Plaintiff told Dr. Hirokawa that he used methamphetamine on a heavy basis from 2003-2006. AR 248. Dr. Hirokawa also diagnosed marijuana abuse. AR 250. Plaintiff reported to Dr. Hirokawa feeling depressed, anxious, having poor sleep, mood swings, being withdrawn, being easily frustrated, and having a loss of interest in things. AR 250. Plaintiff reported he was in mental health treatment and was taking Celexa, Wellbutrin, Tegretol and Soma, medications that helped control his mood swings. AR 247-48.

During the examination, Dr. Hirokawa reported that Plaintiff appeared depressed and had a restricted affect. AR 249. After testing, Dr. Hirokawa assessed several rule-out diagnoses: methamphetamine-induced mood disorder; and bipolar disorder Type 2. AR 250. Dr. Hirokawa also assessed a generalized anxiety disorder, marijuana abuse, methamphetamine dependence in reported remission, and a personality disorder. AR 250. He assessed Plaintiff with a Global Assessment of Functioning (GAF) score, both currently and for the past year, of 61. AR 251. Dr. Hirokawa also assessed many mild limitations in Plaintiff's ability to do work: the ability to remember location and work-like procedures; to understand, remember and carry out very short and simple instructions; to understand and remember detailed instructions; to maintain attention and concentration for extended periods; and to accept instruction from supervisors and respond appropriately to criticism. AR 251. He also assessed mild limitations in the ability to perform activities within a schedule, maintain regular attendance and be punctual; to deal with changes in the work setting; and to sustain an ordinary routine without special supervision. AR 251.

Dr. Hirokawa also assessed Plaintiff's limitations. According to Dr. Hirokawa, Plaintiff has "mild to moderate" limitations in the ability to: (1) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace; (2) withstand the stress of an eight-hour workday; and (3) interact with co-workers. AR 251. Dr. Hirokawa concluded: "[t]he likelihood of the claimant emotionally deteriorating in a work environment is minimal to moderate." AR 252.

On March 5, 2008, State agency physician Sadda V. Reddy, M.D., found that Plaintiff had no severe physical impairments and could perform basic work activities. AR 254, 255.

On March 17, 2008, State agency physician Raffi Tashjian, M.D., found that Plaintiff had mild limitations in various mental functional areas. AR 264-270. According to Dr. Tashjian, Plaintiff has moderate limitations in the ability to: (1) "maintain attention and concentration for extended periods;" (2) "perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances;" (3) "interact appropriately with the general public." AR 268-269.

On July 14, 2008, State agency physician V. Sodha, M.D., affirmed Dr. Tashjian's opinion, finding that Plaintiff only had mild to moderate limitations in mental functional areas. AR 274.

In August 2008, Dr. House began treating Plaintiff and prescribing mental health medications. He or someone else in his office treats Plaintiff twice a month to monitor and adjust his medications. AR 275, 300. On November 26, 2008, Dr. House reported to the agency that Plaintiff suffers from major depression versus bipolar disorder, and severe anxiety/panic disorder. AR 275. Dr. House wrote that mental status exams at Plaintiff's monthly visits confirm ongoing symptoms of anxiety and depression, which preclude Plaintiff from being able to perform a full-time job. AR 275.

Dr. House opined that Plaintiff has serious limitations in the following categories: relating to co-workers; dealing with the public; using judgment; interacting with supervisors; dealing with work stress; and maintaining attention/concentration. AR 301. Plaintiff is moderately impaired in doing simple job tasks, and markedly impaired in maintaining attention for two hour increments. AR 302. Plaintiff is extremely impaired in the ability to withstand the stress and pressures associated with an eight-hour work day and day-to-day work. AR 302. Dr. House also opined that Plaintiff has not responded well to treatment, and his prognosis is poor. AR 302.

Hearing Testimony

ALJ Larsen held a hearing on December 7, 2009, in Fresno, California. Plaintiff appeared and testified; he was assisted by attorney Gina Fazio. Vocational Expert ("VE") Jose L. Chaparro also testified. AR 46-63.

At the time of the hearing, Plaintiff was thirty-nine-years old and living in Selma, California, with his wife and his fourteen-year old daughter. AR 24. Plaintiff did not graduate from high school and has no vocational training. AR 24, 48. With regard to previous employment, Plaintiff's past work includes work as an exterminator, retail sales associate, and construction worker. AR 48-50.

With respect to drug use, Plaintiff testified that he was prescribed marijuana for increased appetite. AR 52. Plaintiff also testified that he used methamphetamine for several years, until he was diagnosed with bladder cancer, in late 2005. AR 52. He has not used methamphetamine since then. His depression and anxiety intensified after he was diagnosed with cancer. AR 51. After his cancer went into remission, he attempted to go back to work, in 2006, but he could not handle the stress. Plaintiff stated "the two weeks I worked, I didn't eat. I didn't hardly sleep, I was just a mess." AR 51.

When asked about his typical day, Plaintiff stated he gets up about 11:00am or 12:00pm, with the help of his wife. She generally calls or texts him to make sure he is up and that he has taken his medicine. Plaintiff testified that, due to anxiety, he frequently does not leave the house. AR 53. However, Plaintiff goes to his parents' house to eat once a week, and occasionally goes out to dinner with his wife. Plaintiff watches television for six to eight hours a day and generally does not get to sleep until 2am or 3am. AR 53, 57. Plaintiff sees a psychiatrist every other week and visits with Dr. House once a month or every other month for his medications. With respect to medications, Plaintiff also testified that his medications help his symptoms somewhat, but they do not cure his anxiety. AR 53. Plaintiff describes his overall feeling as "cloudy all the time." AR 54. He has trouble with concentration and he experiences "butterflies throughout [his] body" and he is anxious. AR 54. Plaintiff also testified he experiences severe panic attacks three to five times a week, which can last up to half an hour or half a day.

Thereafter, the ALJ elicited the testimony of vocational expert Jose L. Chaparro. AR 60. VE Chaparro indicated that Plaintiff's past relevant work includes: an exterminator, light and skilled; and parts salesperson, light and skilled. AR 61. VE Chaparro opined that Plaintiff could not perform his past relevant work as an exterminator or parts salesperson. Plaintiff could however complete work at the heavy, unskilled level. AR 61.

VE Chaparro was asked to assume a hypothetical worker of Plaintiff's age, education and experience, with no exertional limitations, but who could only perform simple repetitive tasks with limited contact with the general public. AR 62. The VE indicated such an individual could perform the work of a commercial or institutional cleaner, DOT*fn2 381.687-014. Further, the VE indicated such an individual could also perform the work of: (1) a general farm worker II, DOT 421.687-010; and (2) a lumber handler, DOT 922.687-070. AR 61.

Plaintiff's counsel declined to ask any questions of ...


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