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Sally Cortez v. Michael J. Astrue

August 1, 2012

SALLY CORTEZ,
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

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT AFFIRM DENIAL OF BENEFITS AND ORDER JUDGMENT FOR COMMISSIONER

Plaintiff Sally Cortez, by her attorneys, Law Offices of Jeffrey Milam, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits (DIB) under Title II of the Social Security Act and 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, the undersigned recommends that the Court affirm the Commissioner's denial of benefits.

I. Administrative Record

A. Procedural History

Plaintiff was insured under the Act through December 31, 2011. On December 12, 2006, Plaintiff applied for disability insurance benefits pursuant to Title II and supplemental security income ("SSI") under Title XVI, claiming chronic liver disease and affective (mood) disorder.

Plaintiff alleged disability beginning June 13, 2006. Her claims were initially denied on May 9, 2007, and upon reconsideration, on January 24, 2008. On December 1, 2007, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at a hearing on March 9, 2008. On September 30, 2009, Administrative Law Judge Sharon L. Madsen denied Plaintiff's applications. The Appeals Council denied review on January 19, 2011. On March 18, 2011, Plaintiff filed a complaint seeking this Court's review.

B. Factual Record

At the time of the hearing, Plaintiff (born November 18, 1967) lived with her long-time boyfriend and two of her five children. She was able to take care of her personal needs. She did some household chores, including washing dishes and making her bed, but did not shop or do laundry. On a typical day, she watched television, read the newspaper, and slept. Plaintiff testified that her medications made her sleepy and that she often dozed off while resting on her bed or sitting in a recliner. Although her doctors attempted to adjust the dosages, they told her that no alternative medications were available that would not make her drowsy.

Plaintiff testified that she completed school through the eleventh grade. Although Plaintiff had a driver's license, she drove infrequently. Plaintiff had a prior felony conviction and was in custody from 1986 to 1996. Plaintiff had a history of drug use but had been clean and sober since 1996.

Plaintiff had previously worked doing dry cleaning, pressing and hanging the clothes. She had also worked for five months in a factory loading tortillas into crates. While doing that work, which required her to lift 30 to 40 pounds, Plaintiff first began to experience back problems, but she did not seek treatment at that time. She testified that she now had constant back pain and neck spasms, which were being treated with medication. The range of motion of her neck was limited.

According to Plaintiff, her diabetes medication had recently been increased because her blood sugar, which she tested daily, was running about 160 to 170. She had developed numbness in her hands and feet, which her doctor had told her was fibromyalgia. On June 8, 2009, Plaintiff's medications included Geodon (bipolar disorder), Klonopin (anxiety), Glyburide (diabetes), Lunesta (insomnia), Neurontin (back pain), Hydrocodone (back pain), Levothyroxine (thyroid hormone), and Citalopram (depression).

Plaintiff testified that her bipolar disorder and depression resulted in irritability, mood swings, low self-esteem, and feelings of worthlessness and hopelessness. She had occasional panic attacks, particularly in groups of people, in which her hands began to sweat and her heart beat rapidly. She was nervous and paranoid. She no longer enjoyed socializing or going out in public. Plaintiff's mental health disorders were treated with medication and individual therapy.

Plaintiff testified that she could lift about two gallons of milk. She could sit for two to three hours at a time and could stand for two to three hours at a time, but did not think she could work for eight hours at a time. Because of her back pain, she now lay down about four or five hours in a day. Plaintiff frequently missed appointments because she forgot them or could not arrange transportation.

Adult function report. Plaintiff completed an adult function report on March 3, 2007, about a month after surgery removing her thyroid. On a typical day, Plaintiff slept in her room while the rest of the family went to work and school. Her depression and thyroid condition made her sleepy yet she was restless and experienced insomnia. When she became very nervous, she shook or rocked. Her attention and energy were low. Her adult son came in to watch her while the rest of the family was away. She was able to perform personal care but only when someone else was at home.

Because she was too nervous and shaky to do household chores, her children cleaned the house. Her boyfriend, John, took care of their finances since she forgot to pay bills on time. Her former employer had fired her for not getting along with other employees. *fn1

Plaintiff did not like to go out among people where she became paranoid and confused. Sometimes she forgot where she was going or what she was doing. She had anxiety attacks. Because her mother and sister had similar mental health problems, she preferred not to see them.

Third-party disability report. On March 3, 2007, Plaintiff's live-in boyfriend, John King, prepared a third-party adult function report. King described Plaintiff's typical day as taking her medications and staying in her room with the television on, although she lacked the interest to actually watch the programs. Although she had previously functioned well, Plaintiff now came out only to use the bathroom or if she was forced to come out. She was not performing personal care without encouragement and help. King and Plaintiff's adult son cared for her children and pets.

Having dozed off while a pan was on the stove and caused a fire, Plaintiff no longer cooked. She started projects but could not finish them. She was nervous and anxious whenever she left her room and left the house only to visit the doctor. She could no longer function socially. Plaintiff had been fired from her dry cleaning job when she became moody and depressed and was unable to get along with her fellow employees.

Although King was present and available to testify at the administrative hearing, Plaintiff's attorney Jeffrey Milam elected not to present his testimony. Instead, Milam stated:

I'm going to submit a brief offer of proof if you'll let me that just is--asking him it--they've been together for a while--or several years, and over the last year or two I asked him if she had days that were really bad and she was shaky around [the] house, and he said, Yeah that happens and that he can't do much about it when she gets like that. That was really all I had to bring him in for.

AR 47.

Physical and mental health progress. March 24, 2006 notes reported that Dr. Chase had diagnosed Plaintiff with hyperthyroidism. *fn2 Notes from Fresno Medical Center dated June 7, 2006, reflected a diagnosis of depression, anxiety, stress, hyperlipedemia, and hyperthyroidism. Lab tests administered June 2006, showed that Plaintiff's blood sample was reactive to a test for Hepatitis C. Plaintiff's blood glucose was elevated.

On July 26, 2006, Plaintiff reported that she was constantly fatigued and her bones ached. Ibuprofen did not relieve the pain, but her mother's Vicodin was effective. Fresno Medical Center notes from August 11, 2006, added a diagnosis of diabetes mellitus, type 2.

On September 13, 2006, Fresno County Mental Health (Turning Point Program) performed an initial mental health assessment of Plaintiff. *fn3 Plaintiff went to FCMH on her own initiative, indicating that she was experiencing "significant impairments in daily living/functioning due to: sadness and hopelessness, anger and irritability, worry and anxiety, isolation and social withdrawal behaviors, sleep disturbances, worry and anxiety, and periodic thoughts of harming others when angry." AR 225. Her hair was uncombed, and she was fidgeting and anxious. Although Plaintiff had experienced many mental health issues since her childhood and teens, in the past year she had developed a violent temper, had been accused of child abuse, and had injured herself. Frederic W. Lee, LMFT, diagnosed:

Axis I 296.32 Major depressive disorder, moderate 300.00 Anxiety Disorder 304.80 Polysubstance abuse, in remission V62.82 Bereavement Axis II V71.09 None Axis III Diabetes, Hepatitis C, Hyperthyroid Axis IV Financial concerns, Family and social stressors Axis V Current GAF = 56; Past Year unknown AR 227. *fn4

An FCMH psychiatric assessment dated October 12, 2006, described Plaintiff as hypervigilant. Harold I. Tarpley, M.D., Plaintiff's assigned psychiatrist, diagnosed depression and prescribed medication.

Reporting on an ultrasound examination on October 27, 2006, Michael Nguyen, M.D., noted thyromegaly and two nodules on Plaintiff's thyroid. He recommended a needle biopsy, which Teresa Chan, M.D., administered on November 27, 2006. Pathologist Wei Fang reported that the biopsy samples revealed only erythrocytes and inflammatory cells. *fn5

Although Plaintiff reported good and bad days in November, she told her Turning Point counselor that she had begun to again be able to prepare meals for her children. Greeting her children after school and interacting with them felt good. She was able to walk outside and had shopped for herself at Target. Plaintiff remained afraid to ride public transportation and missed appointments when family members were not free to drive her.

In December 2006, Dr. Tarpley changed Plaintiff's prescriptions to Ambien and Elavil. In December, Plaintiff reported feeling anxious and stressed, and questioned whether her medications were working.

At the time of a repeat ultra sound examination on January 9, 2007, Spencer Silverbach, M.D., diagnosed goiter and reported the size of both thyroid nodules had substantially increased.

In January 2007, Plaintiff saw her doctors frequently as her thyroid surgery, scheduled for February 2007, approached. She was experiencing fatigue, neck pain and headaches, an inability to get warm, and sleeping problems caused in part by the goiter's blocking her airway when she lay down. By the end of January 2007, Plaintiff's thyroid was approximately five times normal size.

In January, Plaintiff continued to worry that her mental health medications was not working. Late in the month, in preparation for surgery, she was required to discontinue all medications prescribed for her mental health conditions.

Christina Maser, M.D., performed a thyroidectomy on February 14, 2007. Pathologist Robert M. Futoran, M.D., performed microscopic analysis and diagnosed diffuse thyroid hyperplasia consistent with Grave's disease, identified no adenomatous nodules, found no malignancy, and identified no parathyroid tissue.

On February 19, 2007, psychiatrist Norberto M. Tuason, M.D., discontinued Ambien and Elavil, and prescribed Lunesta and Lexapro. He noted that Plaintiff remained depressed following her surgery and was experiencing insomnia.

When Plaintiff met with her Turning Point counselor on February 22, 2007, she was feeling better and her incision was healing well. Plaintiff reported that her psychiatric medications seemed to be helping her. She was experiencing forgetfulness, but her family was helping her. Plaintiff again reported forgetfulness on February 29, 2007.

Psychological Residual Functional Capacity (Engeln). Psychologist Richard Engeln, Ph.D., evaluated Plaintiff as an agency consultant on March 20, 2007. He administered the Wechsler Adult Intelligence Scale III, Wechsler Memory Scale III, Bender-Gestalt Test II, Wide Range Achievement Test III, Trails A and Trails B, and mental status exam. He relied largely on Plaintiff's account of her psychological history, although he received and reviewed Turning Point's October 12, 2006 psychiatric assessment and the December 5, 2006 progress note.

Because Plaintiff did not bring her glasses, she had visual acuity problems. Characterizing Plaintiff as exaggerating her inability, Engeln stated: "She presented with much shaking, rocking, and was very histrionic; but, presentation did not appear to be credible." AR 334. Her Rey 15 memory test was positive for exaggeration. Engeln opined that the intellectual measurements understated Plaintiff's ability and reflected her attitudinal and emotional issues. Verbal intelligence scores fell within the low range of mild mental retardation, and visual intelligence was in the moderate range of retardation. Other scores were within the mid to moderate range of retardation. On the Wide Range Achievement Test, Plaintiff failed to reach the first grade level on reading, spelling, or arithmetic.

Although Engeln attributed Plaintiff's limited intellectual abilities to emotional and attitudinal issues, he opined that she showed no evidence of mental or emotional illness. He found her rocking, shaking, and histrionics not to be credible. *fn6 Engeln summarized:

Because of her exaggeration, I am unable to say what her abilities actually are. She appears mentally competent to manage funds. She reports a history of past substance abuse issues. A limited conservator needs to be appointed to assist in money management issues. Verbally, cognitively, and socially Ms. Cortez appears capable of job adjustment in an entry-level context where instructions are simple, and unidimensional and normal supervision is provided [ sic ]. She would be able to perform one-to-two step simple job instructions, but not able to receive complex or technical job instructions. There do not appear to be any psychological restrictions to job adjustment potential.

AR 335.

Residual Functional Capacity (Ginsburg and Murillo). On April 17, 2007, medical consultant Brian J. Ginsburg, M.D., prepared a physical residual functional capacity assessment. He opined that Plaintiff could lift twenty pounds occasionally and ten pounds frequently; could stand six hours in an eight-hour work day; could sit six hours in an eight-hour work day; and had unlimited ability to push and pull. In the accompanying case analysis, Ginsburg acknowledged that both Hepatitis C and Grave's disease can cause "a great deal of fatigue." AR 349. He predicted that the thyroid would correct itself with surgery and replacement levothyroxine.

In the accompanying case analysis, Ginsburg suggested that Plaintiff's physical residual functional capacity be considered to be light in consideration of the substantial fatigue that can result from both Hepatitis C and a thyroidectomy. Psychiatrist Evangeline Murillo, M.D., noted that Plaintiff had stopped all medications on January 19, 2007, was scheduled for thyroid surgery on February 7, 2007, and exaggerated presentation.

On May 1, 2007, Murillo completed the psychiatric review technique, identifying Plaintiff as having an affective disorder, but indicating that the evidence was insufficient to substantiate an affective disorder. In the accompanying mental residual functional capacity assessment, Murillo opined that Plaintiff had no significant limitations except that she was moderately limited in the ability to understand, remember, and carry out detailed instructions. Murillo remarked: "Can sustain simple and repetitive tasks with adequate pace[,] able to interact with co-workers and supervisors[,] able to adapt to work changes and relate with supervisors and others." AR 362.

Continued Medical and Psychological Treatment. On May 3, 2007, Plaintiff told Turning Point counselor Lorena Carillo of her decreasing nervousness and anxiety. Carillo introduced relaxation and coping techniques and helped Plaintiff prepare an exercise schedule consisting of gardening, watering the grass, and cleaning. On May 10, 2007, Carillo discussed with Plaintiff her recent SSI denial, providing Plaintiff with referrals to AFDC, CalWorks, food stamps, and ...


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