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Ruben Garcia Hinojos v. Michael J. Astrue

December 28, 2012


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for supplemental security income ("SSI") pursuant to XVI of the Social Security Act. 42 U.S.C. §§ 401 et seq. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1967 and previously performed janitorial work. (Administrative Record ("AR") 27, 42.) Plaintiff filed the current application for SSI on May 18, 2007. (AR 27, 188.) Plaintiff asserts his ability to work is precluded by hepatitis C, mental problems including depression, and pain in both knees. (AR 193.)

A. Medical Evidence*fn2

On May 1, 2007, Plaintiff was examined for complaints of depression and social anxiety by Archana Banerjee, M.D. (AR 267-69.) Plaintiff reported that he had experienced feelings of depression over the last few years which was gradually worsening and had motivated him to seek treatment. (AR 267.) He reported feeling sad most of the time, lacking motivation, and isolating himself from family members and friends. (AR 267.) He stated he was lacking energy, experiencing insomnia, lacking concentration, suffering from poor memory, and feeling hopeless, worthless, and anxious. (AR 267.) Plaintiff reported past suicidal ideation, but denied feeling suicidal at the time of the examination. (AR 267.) Plaintiff also stated that he had abused alcohol and heroin in the past, but that he had been sober/clean since 1998. (AR 267.) Plaintiff reported that his brother's wife and three children had been killed in a fire in 1994, and that he had not been working for the three years prior to the examination due to his subsequent depression. (AR 267.) Dr. Banerjee diagnosed Plaintiff with major depressive disorder, moderate with no psychosis, and a social anxiety disorder. Plaintiff was assigned a Global Assessment of Functioning ("GAF") score of 45, and was prescribed Celexa for depression and Hydroxyzene for insomnia.*fn3 (AR 268.)

On October 28, 2007, Plaintiff underwent a comprehensive psychiatric evaluation by an agency compensation examiner, Soad Khalifa, M.D. (AR 277-79.) Dr. Khalifa reviewed Dr. Banerjee's treating records. (AR 277.) Plaintiff reported depressive and anxiety symptoms, low energy, difficulty sleeping, and nervousness. (AR 277.) Plaintiff also indicated that he felt nervous around people. (AR 277.) Plaintiff was living with his parents, but he was isolating himself in his own room. (AR 277.) He reported grief over the death of his sister-in-law and his four nephews who died in a house fire. (AR 277.) Plaintiff denied any suicidal ideation, but noted that he had used heroin. (AR 277.) He last worked in 2002 as a janitor, a position he had held for two years.*fn4

(AR 278.) Plaintiff stated that he had been on methadone since 1997, and had a legal history that included three charges of driving under the influence of heroin and alcohol. (AR 278.)

On examination, Dr. Khalifa noted that Plaintiff's concentration was impaired, but his persistence and pace were good. (AR 278.) Plaintiff's mood was described as dysphoric, and his affect was congruent. (AR 278.) Plaintiff's memory was found to be intact, and his fund of knowledge was "fair." (AR 279.) Dr. Khalifa diagnosed Plaintiff with dysthymic disorder, and assigned Plaintiff a GAF score of 60. (AR 279.) Dr. Khalifa opined that Plaintiff should be able to understand, carry out, and remember simple instructions. (AR 279.) He noted that Plaintiff would have some restrictions with daily activities and social functioning because of his depressive symptoms and nervousness around people. (AR 279.) Dr. Khalifa indicated that Plaintiff has limited social skills, isolative behavior, and low energy. (AR 279.) He noted that Plaintiff might benefit from changing anti-depressants, as well as supportive and grief therapy. (AR 279.)

State agency reviewing physician, Evangeline Murillo, M.D., reviewed Plaintiff's records in November 2007; on November 21, 2007, she completed a Mental Residual Functional Capacity Assessment as well as a Psychiatric Review Technique form. (AR 284-97.) Dr. Murillo opined that Plaintiff was moderately limited in the ability to understand, remember and carry out detailed instructions and in the ability to work in coordination with or in proximity to others without being distracted by them. (AR 284.) Dr. Murillo also checked a box indicating that Plaintiff's ability to interact appropriately with the general public was moderately limited. (AR 285.) In all other areas of functioning, Dr. Murillo checked boxes indicating that Plaintiff was "not significantly limited." (AR 284-85.) Dr. Murillo concluded that Plaintiff was able to perform simple repetitive tasks on a sustained basis and could complete an eight-hour workday. (AR 285.) However, she noted that Plaintiff could not work in close proximity to others, but could adapt to changes in a work setting. (AR 285.)

On July 18, 2008, state-agency physician Archimedes Garcia, M.D., reviewed Plaintiff's records and affirmed Dr. Murillo's opinion, agreeing that Plaintiff was able to perform simple, repetitive or routine tasks, but was to avoid working closely with peers. (AR 336.)

Progress notes between October and November 2008 from Tulare County Health & Human Services Agency ("Tulare County Mental Health") indicate that Plaintiff was seen on a recurring basis for major depressive disorder. (AR 432.) He reported ongoing thoughts of helplessness and isolation from family members, as well as difficulties sleeping due to breathing difficulties, which caused him to feel fatigued throughout the day with increasing impairments in his daily living and family-interpersonal relationships. (AR 432-41.)

A December 17, 2008, Tulare County Mental Health progress note indicates that Plaintiff was medication compliant and that Plaintiff denied any adverse effects from his prescribed medication. (AR 466.) Plaintiff reported sleeping and eating well with no current episodes of depressive thoughts or thoughts of suicide. (AR 466.)

In February 2009, Tulare County Mental Health records show that Plaintiff was seen for continuing mental health issues. (AR 450-51.) A "Strengths/Needs Assessment Annual Update" form indicates that Plaintiff had continued to participate in psychiatric treatment, had remained medication compliant, and had noticed a decrease in auditory hallucinations and rapid thoughts. (AR 451.) However, the form also states that Plaintiff continued to struggle with reducing the intensity and frequency of his depression and he often struggled with concerns about his housing situations and wanting to live with his wife and children after being apart from them for eight years. (AR 451.) In terms of Plaintiff's medical needs, the form indicates that Plaintiff continued to report symptoms of major depression including a depressed mood for more days than not, difficulties sleeping, fatigue, anxiety, and some feelings of hopelessness and self isolation. (AR 451.) The form states that these symptoms impair Plaintiff's interpersonal relationships and his ability to seek and obtain employment, which in turn results in financial barriers. (AR 451.)

On February 18, 2009, Plaintiff was seen at Tulare County Mental Health. (AR 464.) Plaintiff reported that he sometimes felt unfocused, but that he was eating well and sleeping four to six hours per night, with occasional episodes of depressive feelings, but no suicidal or homicidal ideation. (AR 464.) Plaintiff was noted to be medication compliant and that the medication was effective at that time. (AR 464.)

On March 9, 2009, Plaintiff saw Dr. Banerjee for "medication follow up." (AR 460.) Plaintiff reported sleeping difficulties and feeling nervous "from being off Methadone." (AR 460.) Plaintiff stated he was very anxious, with body aches, and that he frequently secluded himself. (AR 460.) Plaintiff was noted to be clean and neat, making good eye contact, and he was dressed appropriately. (AR 460.) He was noted to be medication compliant, and no medication side effects were reported; however, Plaintiff did state that he believed his medication was ineffective. (AR 460.)

On April 15, 2009, Plaintiff was again seen at Tulare County Mental Health. (AR 457.) Plaintiff denied any possible side effects from medication at that time, but reported frequent episodes of insomnia and depression. (AR 457.) Plaintiff denied any active thoughts of suicidal or homicidal ideation. (AR 457.)

On July 16, 2009, Plaintiff underwent a psychiatric evaluation by Pedro Eva, M.D. (AR 528.) Dr. Eva reported that Plaintiff was not forthcoming with information during the examination, and he had to be prompted to answer questions. (AR 528.) Plaintiff reported to Dr. Eva that he was depressed and that he spends time at home doing nothing except sitting in bed, watching television, and sleeping. (AR 528.) He denied any suicidal ideation, but he reported being "off" his medication for about three to four months prior to the exam because he was unable to see Dr. Banarjee. (AR 528.) Plaintiff also reported that he had been unable to afford medication or methadone, and had been using heroin for about three months until three weeks before the exam when he "got back on the program." (AR 528.) Dr. Eva observed that Plaintiff was slow to answer questions and appeared depressed, but maintained good eye contact; Plaintiff's speech was slow and monotonous. (AR 529.) Dr. Eva diagnosed Plaintiff with major depressive disorder, moderate without psychosis. (AR 529.) Dr. Eva assigned Plaintiff a GAF score of 50, but expressly indicated that "[i]t should be noted that he has been off medication for about four months." (AR 529.)

On April 9, 2010, Richard Nunes, M.D., completed a Mental Residual Functional Capacity Assessment form. (AR 638-40.) Dr. Nunes completed the checkbox form by marking the boxes indicating that Plaintiff was moderately limited in his ability to (1) "remember locations and work-like procedures"; (2) understand and remember detailed instructions; (3) carry out detailed instructions; (4) maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; and (5) respond appropriately to changes in the work setting. (AR 638-39.) Dr. Nunes indicated that Plaintiff was "markedly limited" in his ability to (1) maintain attention and concentration for extended periods; (2) perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerances; (3) work in coordination with or proximity to others without being distracted by them; (4) complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a constant pace without unreasonable number and length of rest periods; (5) interact appropriately with the general public; (6) accept instructions and respond appropriately to criticism from supervisors; (7) be aware of normal hazards and take appropriate precautions; (8) travel in unfamiliar places or use public transportation; and (9) set realistic goals or make plans independently of others. (AR 638-39.)

Dr. Nunes reported that Plaintiff "has significant problems interacting with others due to his intense anxiety when in groups of people." (AR 640.) Dr. Nunes assigned Plaintiff a GAF score of 49, and indicated that while Plaintiff's depression had "resolved partially with medication," his anxiety continued to be a significant problem. (AR 643.) Dr. Nunes also opined that Plaintiff had marked restrictions of activities of daily living, maintaining concentration, persistence, or pace, and had extreme limitation in maintaining social functioning. (AR 645.) Dr. Nunes further indicated that Plaintiff had suffered three episodes of decompensation, each of extended duration. (AR 645.)

B. Administrative Proceedings

The Commissioner denied Plaintiff's application initially and again on reconsideration. (AR 61-86; 90-94.) Consequently, on August 18, 2008, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ").*fn5 (AR 96.) A hearing ...

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