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Salazar v. Colvin

United States District Court, N.D. California, San Jose Division

July 28, 2014

CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.


RONALD M. WHYTE, District Judge.

Plaintiff Melanie K. Salazar ("Salazar") brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision by the Commissioner of Social Security ("Commissioner") denying her claims for disability insurance benefits under the Social Security Act. Salazar moves the court to remand her case to the Commissioner. Also before the court is the Commissioner's cross-motion for summary judgment. Having considered the papers submitted by the parties and the entire administrative record, and for the reasons set forth below, the court grants the plaintiff's motion to remand and denies the Commissioner's cross-motion for summary judgment.


A. Procedural Background

Salazar filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act on February 21, 2007, alleging that she became unable to work due to a disabling condition on January 1, 2006. Certified Administrative Record ("AR") 60, 97-101, 102-105. The Commissioner denied Salazar's claim on June 22, 2007, and again on reconsideration on October 10, 2007. AR 63-67, 72-78. On December 10, 2007 Salazar filed a written request for a hearing before an ALJ. AR 14, 80-81. Salazar appeared with counsel at a hearing before the ALJ on February 12, 2009. AR 25, 42-58. On May 20, 2009, the ALJ denied Salazar's claim. AR 11-24. Thereafter, the Appeals Council of the Social Security Administration denied Salazar's request for review of the ALJ's decision. AR 7-9. Salazar now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

B. The ALJ's Findings and Analysis

Salazar testified to an alleged severe impairment due to neuropathy, depression, diabetes, sleep apnea, high blood pressure, asthma, gastroesophageal reflux disease, back pain, shoulder pain, hip pain and obesity. She also alleged that she stopped working on January 1, 2006 as a result of four surgeries in two years, an inability to keep up with her job requirements, deteriorating mental acuity, interrupted memory and thought patterns, depression, incontinence, diabetes and an inability to go outside or get out of bed several days each month. The ALJ addressed whether claimant was disabled under sections 216(i), 223(d) and 1614 (a)(3)(A) of the Social Security Act, applying the five-step sequential evaluation process established by the Social Security Administration for determining whether an individual is disabled. See 20 C.F.R. 404.1520(a), 416.920(a).[2] At step one, the ALJ found that claimant had not engaged in substantial gainful activity since January 1, 2006, and thus continued to step two. At step two, the ALJ concluded that Salazar suffers from a severe combination of physical impairments, specifically "obesity; hypertension; hyperlipidemia; calcific tendinitis of the left shoulder; non-insulin-dependent diabetes mellitus; mild asthma; gastroesophageal reflux disease; and mild polyarthritis" but does not suffer from a "severe medically determinable mental impairment." AR 16. With respect to her alleged mental impairment, the ALJ concluded "that claimant's depression was the result of her physical impairments and life stressors and that it caused no more than minimal restriction of her ability to perform essential work activities." AR 16. At step three, the ALJ determined that Salazar does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, so he proceeded to step four. In determining Salazar's residual functional capacity, the ALJ found that she "is limited to lifting and carrying no more than 50 pounds occasionally and no more than 25 pounds frequently"; "limited to standing and/or walking no more than 6 hours total in an 8-hour workday and sitting no more than 6 hours total in an 8-hour workday"; "limited to kneeling, crawling, climbing ramps or stairs, and performing overhead reaching with her left upper extremity no more than occasionally"; "has mild restriction of her ability to understand, remember, and carry out the complex or detailed tasks characteristic of skilled or semiskilled work"; and "mild restriction of her ability to relate appropriately to supervisors, coworkers, and the general public." AR 17. In making this finding, the ALJ stated that he took into account all the symptoms that can be reasonably accepted as consistent with objective medical evidence and considered opinion evidence as required by 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 96-3p. Id.

In evaluating Salazar's symptoms, the ALJ followed a two-step process: he first determined whether there was an underlying medically determinable physical or mental impairment (i.e., an impairment that can be shown by medically acceptable diagnostic techniques to be reasonably expected to produce the claimant's pain or symptoms); and, second, he evaluated the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit her ability to perform basic work activities. See 20 C.F.R. § 404.1529. The ALJ concluded that Salazar's "medically determinable impairments could reasonably be expected to cause the alleged symptoms" but that "[her] statements concerning the intensity, persistence and limiting effects of these symptoms are not generally credible." AR 22. The ALJ noted what he considered to be significant inconsistencies among Salazar's testimony, statements made in her application materials, and objective medical evidence, which he found undermined the credibility of her subjective statements and complaints. Id. [3] At step four, the ALJ compared Salazar's residual functional capacity with the demands of her past relevant work as a domestic violence counselor and, relying on Vocational Expert ("VE") testimony, concluded that Salazar was capable of performing her past relevant work. AR 23. Accordingly, the ALJ concluded that Salazar was not disabled, as defined in the Social Security Act, from January 1, 2006 through the date of the decision. Id.

C. Salazar's Age, Educational, and Vocational History

Salazar was born on September 15, 1948, and received a bachelor's degree in psychology in 1994. AR 125, 159, 223. She received special training in domestic violence in 1995. AR 125. Salazar was employed as a domestic violence specialist at "Next Door, " a domestic violence agency, from December 1994 until June 2002. AR 120, 223. At "Next Door, " she worked 40 hours per week. Id. In this position, Salazar directed a domestic violence shelter by performing client services, undertaking house management, planning and implementing daily activities, and originating forms and procedures. Id. From 2002 to 2005, after undergoing four surgeries, AR 217, Salazar worked as a group facilitator and counselor for another domestic violence agency, "New Beginnings, " where she worked 20 hours per week. AR 120, 223. Salazar was terminated from her position at "New Beginnings" when she breached a client's confidentiality by mailing graduation certificates to incorrect recipients. AR 145, 223.

D. Salazar's Medical History

Salazar alleges disability beginning January 1, 2006 due to: neuropathy, depression, diabetes, sleep apnea, hypertension, asthma, gastroesophageal reflux disease (GERD), back, shoulder, and hip pain, and obesity. AR 16, 18, 119. Because the ALJ found Salazar had a severe combination of medically determinable physical impairments, her appeal is primarily directed to her allegations that the ALJ improperly assessed her alleged mental impairments. For this reason, the court concentrates its discussion of Salazar's medical history on her alleged functional limitations resulting from her mental health impairments separately, and in combination with, her physical impairments.

Salazar asserts that she suffers from disabling depression. Salazar stated to some of her physicians that she has suffered from depression over the course of her entire life. AR 222. In 1968, at age 20, Salazar was hospitalized in Maricopa Psychiatric Hospital for two weeks when she became very depressed. AR 222-23. After being hospitalized, Salazar was prescribed medication, but did not continue taking it for very long. AR 222. In the late 1980s, Salazar was again seen by a therapist and had short-term therapy. Id. In 1996, Salazar visited a psychologist, who provided her with a few counseling sessions. Id. In her applications for benefits, Salazar submitted medical records from several physicians documenting her complaints of, and treatment for, depression. The court discusses each physician's records, along with the ALJ's analysis of those records.

1. Primary Care Physician: Dr. Chang

Salazar received treatment for depression from her primary care physician, Natalie H. Chang, M.D., a board certified internist. The record does not clearly indicate when Dr. Chang's treatment for depression began. A medication list dated June 10, 2005 indicates that Dr. Chang prescribed Prozac for Salazar to treat depression. AR 172. Sometime in 2005, Dr. Chang changed Salazar's Prozac prescription to Cymbalta and added Wellbutrin. AR 222. Dr. Chang's records do not appear to include any psychiatric diagnosis or any findings concerning the extent of any mental impairment. In notes dated February 14, 2006, Dr. Chang wrote that Salazar "was laid off from work" and is "extremely anxious about [her] current situation" and other notes from that date indicate "anxiety" and "depression." AR 194. Those notes also indicate that Dr. Chang prescribed Wellbutrin XL for Salazar. Id. On April 18, 2006, Dr. Chang increased Salazar's dosage of Wellbutrin noting that Salazar reported that she was not able to cope with her depression. AR 192. In notes dated May 24, 2006, Dr. Chang wrote that Salazar was "more calm" and that her depression had improved with medication. AR 190. Then, in medical records dated April 30, 2007, Dr. Chang wrote that Salazar reported that her "[d]epression is getting worse" and that she was "not sleeping." Dr. Chang referred Salazar to pyschotherapy. AR 167. In her testimony, Salazar reported that Dr. Chang advised her to reduce her weekly workload from 32 hours per week down to 20 hours per week because of her depression, incontinence, and diabetes and because she was missing work. AR 48. It does not appear that Salazar followed up on Dr. Chang's referral to psychotherapy, although she saw a marriage and family counselor, Ann McDonald Rice, R.N., M.A.

The ALJ reviewed Dr. Chang's treatment notes covering dates between February 2, 2006 and August 17, 2007. AR 19. The ALJ found that although Salazar "complained of anxiety and depression, she repeatedly presented a completely normal mental status examination and was not referred to a psychiatrist or psychologist, but was instead described as stable on the medications" that Dr. Chang had prescribed for her. AR 19-20. The ALJ apparently overlooked Dr. Chang's referral of Salazar for psychotherapy (Dr. Chang's handwriting is difficult to read). The ALJ also appears to overstate what Dr. Chang's records suggest regarding the stability of Salazar's mental status. Dr. Chang changed the medications and dosages of medications for Salazar's depression and noted a number of complaints she made regarding her depression and its increase in intensity. See AR 167, 170, 172, 175, 190, 192, 194, 195 and 250. At the same time, Dr. Chang's records do not appear to contain any mental health diagnosis. Some entries do include the abbreviation "NAD" which stands for "no appreciable disease; nothing abnormal detected."; see, e.g., AR 167. However, these entries seem to relate to Salazar physical appearance.

2. Consultative Examiner: Dr. Gable

On May 7, 2007, Salazar met with agency consultative examiner ("CE") Clark E. Gable, M.D., a "board eligible"[4] physician in Internal Medicine. Dr. Gable indicated that Salazar appeared "fairly upbeat" on the day of the evaluation, "with no significant depression obvious during the exam." AR 218. In his written report regarding Salazar, Dr. Gable wrote that Salazar had "[s]ignificant depression, with generalized anxiety problem, and possibly panic attacks according to her." AR 219. She reported that she was seeing a psychiatrist. Id. Under the heading "FUNCTIONAL CAPACITY" in his report Dr. Gable stated: "Whether psychiatric problems militate against work is beyond the purview of this examination." Id.

Based on his review of Dr. Gable's written report, the ALJ indicated that Salazar " subjectively reported depression, general anxiety, and panic attacks[.]" AR 20 (emphasis added). The ALJ also noted that "Dr. Gable failed to provide an opinion concerning the claimant's ability to perform work related activities on a sustained basis, stating only [t]hat based on the history and findings of today's examination, an assessment is somewhat difficult.'" AR 20.

The ALJ does not appear to place any weight on Dr. Gable's report in evaluating Salazar's mental disorder. Since Dr. Gable is an internist and not a psychiatrist or psychologist, had no medical records available to him when he performed his evaluation and expressly said that whether Salazar had psychiatric problems that interfered with work was not within the scope of ...

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