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Trina Everett v. Michael J. Astrue

May 30, 2012


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



Plaintiff Trina Everett ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income 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 Magistrate Judge Barbara A. McAuliffe, for findings and recommendations to the District Court.


On May 17, 2007, Plaintiff filed her first applications for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI, respectively, of the Social Security Act (the Act), alleging disability beginning March 31, 2004. AR 9.*fn1 Plaintiff's applications were denied initially and on reconsideration. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 55, 62. ALJ Sandra K. Rogers held a hearing and issued an order denying benefits on December 21, 2009, finding Plaintiff was not disabled. AR 9-19. This appeal followed.

Relevant Medical Record

The record is summarized here in chronological order with particular regard to the reports relating 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 192-364.

Plaintiff alleged she became unable to work in March 2004, when she was 31 years old, due to depression, panic attacks, and migraines. AR 136, 131.

In April 2003, Plaintiff began seeking mental health treatment at the Larmier Center for Mental Health with social worker Charles Miller, Licensed Clinical Social Worker ("LCSW"). AR 193, 192-226. Miller noted that Plaintiff did not meet the criteria for mood disorder and scheduled her for a medication evaluation and a therapy session. During this time, in January 2004, Plaintiff stated that she had an anxiety attack after a conflict with her daughter, and her doctor prescribed the medication Xanax. AR 221. A few months later, in June 2004, Plaintiff showed progress saying she was "getting along well [with her] daughter" and was going on vacation in California. AR 216. At that time, Plaintiff asked for more Xanax, and her doctor refused. AR 216. In August 2004, Plaintiff was administratively discharged from Mr. Miller's care due to "frequently fail[ing] to appear or cancel[ing] late" for appointments. AR 193.

No medical records reflect that Plaintiff received treatment between late 2004 and mid-2007. In September 2007, Plaintiff sought treatment from primary care physician Karin Forno, M.D., complaining of pain in her left hand and back. AR 281. Dr. Forno prescribed pain medication and diagnostic tests. AR 281. X-rays of Plaintiff's spine showed normal alignment, without evidence of old or recent trauma, normal osseous structures, no disc narrowing or degenerative changes, intact posterior elements, and normal apophyseal joints. AR 275. A few months later, test results suggested Plaintiff had moderate carpal tunnel syndrome in her left hand, with no evidence of cubital tunnel syndrome or radial nerve neuropathy. AR 273. In September 2007, Plaintiff also sought treatment from psychiatrist Stefan Lampe, M.D. AR 234-36. Plaintiff told Dr. Lampe that she had a history of methamphetamine use and alcoholism, but had not used methamphetamines for eleven years and had been sober for one year. AR 234. With respect to daily activities, Plaintiff reported to Dr. Lampe that she sleeps for half the day and watches television the rest of the time. AR 235. Upon examination, Plaintiff had normal psychomotor functioning, normal speech, depressed mood with slightly irritable affect, no evidence of psychosis, and poor insight and judgment. AR 235. After examination, Dr. Lampe observed that there were "severe inconsistencies" in Plaintiff's description of her symptoms. AR 235. He also noted that she was following a "very unorthodox regimen which in fact has a great potential to worsen her cycling." AR 236. Dr. Lampe found, in relevant part, that Plaintiff could understand, remember, and carry out simple instructions and "probably" would have difficulty dealing with the public. AR 236.

In October 2007, a drug screening ordered by Plaintiff's doctor was positive for opiates and benzodiazepines. AR 271.

In December 2007, examining psychologist Junko McWilliams, Ph.D., reviewed the medical evidence and rendered an opinion. AR 237-54. Dr. McWilliams opined that Plaintiff was mentally able to perform "simple, repetitive and unskilled tasks in a socially less demanding setting." AR 253. Dr. McWilliams also found that Plaintiff suffered from moderate limitations in her ability to: understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; complete a normal work-day and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and respond appropriately to changes in the work setting. Dr. McWilliams did not find Plaintiff to markedly limited in any category.

On December 31, 2007, Plaintiff was detained at the Doctors Behavioral Health Center on a psychiatric hold after stating that she tried to swallow a bottle of Seroquel 300 mg pills, but said that she was stopped by her mother after taking two. AR 284. Plaintiff reported that she becomes depressed during the holiday season, after losing her children to CPS thirteen years ago due to her drug use. AR 284. Plaintiff's treating physician diagnosed her with nonspecific depression. AR 285.

In January 2008, social worker David Sandoval recommended that Plaintiff attend "AA/NA" [Alcoholics Anonymous/Narcotics Anonymous], but Plaintiff refused. AR 279.

In June 2008, physician Miguel Hernandez, M.D., conducted an internal medicine evaluation in connection with Plaintiff's claim for benefits. AR 286-90. After examination, Dr. Hernandez opined that Plaintiff could sit, stand, and walk for 6 hours in an 8-hour day; could lift and carry 10 pounds occasionally or frequently; had no postural limitations; had no environmental limitations; but was limited in reaching, handling, feeling, grasping, or fingering, especially in a repetitive manner, with the left hand. AR 289-90.

Also, in June 2008, psychologist James Scaramozzino, Ph.D., conducted a comprehensive psychological evaluation of Plaintiff. AR 291-96. Among other statements, Plaintiff stated that even when psychotherapy is available, she does not frequently participate. AR 292. Plaintiff also said that she has had difficulty finding a job "primarily because she has a history of not working, writing bad checks, and she has a 'high risk for fraud' statement on her employment record." AR 292. Upon examination, Plaintiff had good hygiene, made good eye contact, had sad facial expressions, was cooperative, and had a hopeful attitude. AR 293. Her stream of mental activity was normal, and her speech was logical, coherent and concise. AR 293. Plaintiff's thought content was appropriate. AR 293. Her mood was mildly depressed. AR 293. Plaintiff's intellectual functioning appeared to be within the average range. AR 294. Her recent and long-term memory was intact. AR 294. She had difficulty with mathematics. AR 294. Plaintiff's concentration ability was within normal limits. AR 294. She was able to perform a simple three-step command successfully. AR 294. Plaintiff's concentration for conversation was adequate. AR 294. Her abstract thinking was within normal limits. AR 294. Her judgment and insight was considered to be marginal. AR 294.

After examination, Dr. Scaramozzino opined, in part, that Plaintiff could understand and remember very short and simple instructions; could sustain an ordinary routine without special supervision; and was capable of managing her own funds. AR 295-96. Dr. Scaramozzino found that Plaintiff was "moderately impaired" in understanding and remembering detailed instructions; maintaining concentration and attention; accepting instructions from a supervisor and responding appropriately; completing a normal workday/workweek without interruptions at a constant pace; interacting with co-workers; dealing with changes in the work setting; and social functioning. AR 296.

Later in June 2008, psychiatrist Archi R. Garcia, M.D., reviewed the mental health evidence and opined that Plaintiff could perform "simple repetitive tasks." AR 298.

In September 2008, Plaintiff had a screening appointment at Stanislaus County Behavioral Health and Recovery Services. AR 315-19. The following month, Plaintiff visited psychiatrist Beatrice Picknell, M.D. AR 313-14. After recording Plaintiff's complaints, Dr. Picknell stated that Plaintiff was "difficult to evaluate," as she was a poor historian and gave conflicting information; Dr. Picknell concluded that there was limited reliable information available. AR 314.

In July 2009, Plaintiff visited the emergency room complaining of fever and chills, productive cough, and left-side chest pain. AR 353. Plaintiff told the attending physician that she smokes a pack of cigarettes per day. AR 353. X-rays showed a small amount of fluid in the left lung. AR 355. The attending physician prescribed antibiotics and an inhaler, and encouraged Plaintiff to quit smoking. AR 354.

In July 2009, primary care physician Dr. Forno filled out a questionnaire for Plaintiff, in which she stated that Plaintiff was "disabled" due to psychiatric diagnosis, and physically she could perform sedentary work. AR 322-23. In August 2009, after consulting with another physician, Dr. Forno stopped prescribing Plaintiff Valium and said she was "reassessing" Plaintiff's medications. AR 324. Upon hearing this, Plaintiff became angry and Dr. Forno asked social worker Darlene Thompson to intervene. AR 324. That same month, Dr. Forno referred Plaintiff for a drug screening, and Plaintiff again tested positive for benzodiazapines. AR 333. 2009 Hearing Testimony

ALJ Rogers held a hearing on August 26, 2009, in Stockton, California. Plaintiff appeared and testified. She was represented by attorney Jeffrey Milam. Vocational Expert ("VE") George A. Meyers also testified. AR 9.

Plaintiff's testimony indicated that she was born on May 31, 1972 and was thirty-seven years old at the time of the hearing. Plaintiff testified that she is separated from her husband and lives with her mother and step-father. AR 27. Plaintiff has three children that were removed from her home thirteen years ago by child protective services. Plaintiff dropped out of high school in the 7th grade, she has no GED and no vocational training. AR 30. Plaintiff testified that her last job was over four years ago, where she worked as a receptionist at a mortgage company before being fired for poor attendance. AR 30. Plaintiff also testified that she has been fired from three to four jobs, and feels she cannot work because of her inability to get along with others. AR 32.

Asked to describe a typical day, Plaintiff said that she usually stayed in her room all day watching TV, with the windows covered, and that her mother would have to come in and make her get up to do her chores. AR 33. Plaintiff stated that she "just . . . [didn't] want to do them" and that she had no ambition to do anything. AR 33. In order to feel better, sometimes Plaintiff goes to the store with her mother, but if the store is crowded she will have a panic attack. AR 34. Plaintiff also testified that she has trouble concentrating and can generally concentrate for and average of 45 minutes at a time.

As for physical functional limitations, Plaintiff said that she suffers from arthritis in her back. With the medications, Percocet and Neurontin, she has nine to twelve hours per day with no pain at all. AR 35-36. Plaintiff also said she had carpal tunnel syndrome in her left hand. AR 38. She experiences tingling and numbness in her left hand approximately three hours a day. Plaintiff is right-handed. AR 38.

Thereafter, the ALJ elicited the testimony of Vocational Expert ("VE") George Meyers. AR 46-53. VE Meyers indicated that Plaintiff performed past relevant work as a cashier, delivery driver, housekeeper, and receptionist. AR 41. VE Meyers opined that Plaintiff could physically perform her past relevant work as a receptionist but could not socially perform her past relevant work. AR 41-42.

The VE was asked to consider several hypothetical questions posed by the ALJ. First, VE Meyers was asked to assume a hypothetical worker of Plaintiff's age, education, and work experience, that person could lift ten pounds frequently, ten pounds occasionally; stand or sit six hours in an eight hour day; could frequently handle and finger with the left hand, but should avoid concentrated exposure to fumes, odors, dust, gases, and poor ventilation. AR 41. VE Meyers indicated such an individual could perform Plaintiff's past relevant work as a receptionist. AR 41.

In a second hypothetical, VE Meyers was asked to consider the same worker, with the following abilities and/or limitations: can understand and remember very short and simple instructions is not significantly impaired; the ability to understand, remember detailed instructions is moderately impaired; ability to maintain concentration and attention is moderately impaired; ability to accept instructions from a supervisor and respond appropriately moderately impaired; ability to stand an ordinary routine without special instructions or supervision is not significantly impaired; ability to complete a normal workday or work week without interruption at a constant pace is moderately impaired; ability to interact with co-workers is moderately impaired. VE Meyers testified that this hypothetical worker could not perform Plaintiff's past work or any work as it exists in the national economy. AR 42.

In a third hypothetical, the VE was asked to assume a hypothetical worker of Plaintiff's age, education, and work history, and can perform simple, repetitive, unskilled tasks, in a socially less demanding environment, where there is no dealing with the public and only minimal interaction with co-workers and supervisors. VE Meyers testified that this hypothetical worker could not perform Plaintiff's past work, but the ...

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