United States District Court, S.D. California
Mary
Elizabeth Rose-Traugh, Plaintiff, represented by Monica
Perales, Law Offices of Lawrence D. Rohlfing.
Carolyn W. Colvin, Defendant, represented by Armand D. Roth,
Social Security Administration, Daniel P. Talbert, Social
Security Administration Office of General Counsel & Thomas C.
Stahl, U S Attorneys Office Southern District of California.
REPORT AND RECOMMENDATION
BERNARD G. SKOMAL, Magistrate Judge.
I.
PROCEDURAL BACKGROUND
Mary
Elizabeth Rose Traugh ("Plaintiff") filed an
application for disability insurance benefits on September
30, 2011, alleging disability commencing on January 14, 2010.
(ECF No. 14, Administrative Record "AR" at 165.)
Her claim was originally denied on April 3, 2012 (
id. at 80) and upon reconsideration on November 21,
2012. ( Id. at 85.) After a hearing on November 5,
2013, ( id. at 34-54) Administrative Law Judge
("ALJ") Jay E. Levine issued a decision denying the
application on February 7, 2014. ( Id. at 13-25.)
On May
30, 2015, the Appeals Council denied Plaintiff's request
for review, making the ALJ's decision the final agency
decision. ( Id. at 1.) This Court has jurisdiction
pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed her
Motion for Summary Judgment on January 1, 2016. (ECF No. 19)
In her motion for summary judgment, Plaintiff argues that the
ALJ erred in finding her less than fully credible and in
rejecting two opinions by the same treating physician. (
Id. ) Defendant filed her cross Motion for Summary
Judgment on February 5, 2015. (ECF No. 20.) Neither party
filed replies.
II.
LEGAL STANDARD FOR DETERMINATION OF A DISABILITY
In
order to qualify for disability benefits, an applicant must
show that: (1) he or she suffers from a medically
determinable physical or mental impairment that can be
expected to result in death, or that has lasted or can be
expected to last for a continuous period of not less than
twelve months; and (2) the impairment renders the applicant
incapable of performing the work that he or she previously
performed or any other substantially gainful employment that
exists in the national economy. See 42 U.S.C. §§
423(d)(1)(A), (2)(A). An applicant must meet both
requirements to be "disabled." Id. The
applicant has the burden to establish disability. Terry
v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
The
Secretary of the Social Security Administration set forth a
five-step sequential evaluation process for determining
whether a person has established his or her eligibility for
disability benefits. See 20 C.F.R. §§ 404.1520,
416.920. The five steps in the process are as follows:
1. Is the claimant presently working in a substantially
gainful activity? If so, then the claimant is not disabled
within the meaning of the Social Security Act. If not,
proceed to step two. See 20 C.F.R. §§ 404.1520(b),
416.920(b).
2. Is the claimant's impairment severe? If so, proceed to
step three. If not, then the claimant is not disabled.
See 20 C.F.R. §§ 404.1520C, 416.920C.
3. Does the impairment "meet or equal" one or more
of the specific impairments described in 20 C.F.R. Pt. 404,
Subpt. P, App. 1? If so, then the claimant is disabled. If
not, proceed to step four. See 20 C.F.R. §§
404.1520(d), 416.920(d).
4. Is the claimant able to do any work that he or she has
done in the past? If so, then the claimant is not disabled.
If not, proceed to step five. See 20 C.F.R. §§
404.1520(e), 416.920(e).
5. Is the claimant able to do any other work? If so, then the
claimant is not disabled. If not, then the claimant is
disabled. See 20 C.F.R. §§ 404.1520(f), 416.920(f).
Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.
2001).
The
claimant bears the burden of proof during steps one through
four. Id. at 953. The Commissioner bears the burden
of proof at step five of the process, where the Commissioner
must show the claimant can perform other work that exists in
significant numbers in the national economy, "taking
into consideration the claimant's residual functional
capacity, age, education, and work experience."
Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999); see also 20 C.F.R. § 404.1566 (describing
"work which exists in the national economy"). If
the Commissioner fails to meet this burden, then the claimant
is disabled. If, however, the Commissioner proves that the
claimant is able to perform other work that exists in
significant numbers in the national economy, then the
claimant is not disabled. Bustamante, 262 F.3d at
953-54.
III.
MEDICAL RECORDS AND EVALUATIONS PRE-HEARING
The
Court has synthesized Plaintiff's medical records for the
purpose of providing context to its analysis of the issues.
This summary, however, does not purport to be exhaustive of
every detail contained in the administrative record.
a.
Treatment Records from 2013
Plaintiff
saw Juliet Schmitt, Marriage and Family Therapist
("MFT") at Psychiatric Centers at San Diego
("PCSD") on October 23, 2013. (AR 548.) Notes from
that visit state that Plaintiff she is enjoying her volunteer
time at the preschool, but is scared about someday having to
find a job. ( Id. )
Plaintiff
saw Michelle Kleiner, Nurse Practitioner ("NP") at
PCSD on October 24, 2013. ( Id. at 510.) During that
visit, Plaintiff reported "doing better, but she still
thinks she could be doing even better." ( Id. )
Ms. Kleiner further notes, "During the day she does well
probably because she has some structure, but by night she
feels sad again without any clear percipient. She has been
taking her other meds as prescribed for at least the past
four weeks. Anxiety has been well managed." (
Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on October 12, 2013. (AR
551.) Notes from that visit state that Plaintiff is
"maintaining her shower schedule and taking her
medication daily." ( Id. ) Plaintiff also
reported that she started crying as she signed in to her
volunteer position. ( Id. ) The next day, she was
"anxious about going to work, but did push herself and
luckily the needs and adoration of the little kids kept her
focus off her anxiety that day." ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on September 27, 2013. (
Id. at 554.) During that visit Plaintiff reported
that she was trying to work on a daily schedule, trying to
brush her teeth once per day and shower every other day. She
also mentioned going on "OK, Cupid" to find a
"good match." ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on September 24, 2013. (
Id. at 514.) Ms. Kleiner's notes from that visit
state the following: Pt [Patient] states she is responding
positively to the Zoloft, and she is tolerating it well.
Patient is still depressed, but she states she is a lot
better and she would like to hold off before increasing the
dose further. She reports taking meds regularly since she has
moved. Patient has used Xanax a few times, and it helps when
she needs it. ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on September 20, 2013. (
Id. at 556.) During that visit Plaintiff reported
starting her internship where she will be working three days
a week. ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on July 30, 2013. (
Id. at 562.) Plaintiff reported that she did not
take her medication for three days because she could not find
them and did not ask if anyone else knew where they were. (
Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on July 19, 2013. (
Id. at 564.) Notes from that visit state that
Plaintiff is crying about things easily, but her parents are
directing her to calm herself down. ( Id. ) She
states she is continuing to take her medication daily. (
Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on July 12, 2013. (
Id. at 566.) Notes from that visit state that
Plaintiff "continues to be more consistent with taking
her medication (but stated that she forgot about taking her
anti-anxiety medication and, therefore, her anxiety had been
high this week." ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on July 5, 2013. (
Id. at 568.) Notes from that visit state that
Plaintiff reported that she took her medication consistently
that week and was feeling better. ( Id. ) "She
now has daily am and evening schedules which involve wake-up
time, taking her meds and teeth brushing." (
Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on June 27, 2013. (
Id. at 518.) Notes from that visit state:
"Patient reports showering daily, working a bit for her
mother, exercising, spending less time on her computer.
Patient states that she is feeling better doing these things
for herself." ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on June 21, 2013. (
Id. at 570.) Plaintiff reported being
"happy." ( Id. ) She admitted to taking
meds daily for a week but now is back to every other day. (
Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on May 30, 2013. (
Id. at 522.) Notes from that visit state that
Plaintiff was not taking her medication as prescribed and
that her mother stated she "has continued to be either
very anxious or very depressed." ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on May 21, 2013. (
Id. at 574.) Notes from that visit state that
Plaintiff enjoys helping with the kids in the preschool,
preparing supplies and teaching small lessons. ( Id.
) She said that she is not doing well remembering to take her
meds but was not open to suggestions to help her remember. (
Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on May 10, 2013. (
Id. at 577.) Plaintiff reported that she is only
compliant with her medication four days a week. (
Id. ) Ms. Schmitt reviewed ways to increase
consistency with taking her medication, like setting a
reminder on her phone. ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on March 23, 2013. (
Id. at 584.) Plaintiff reported that she was
currently depressed and had low energy, despite taking her
medication more regularly, i.e. only forgetting once a week.
( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on March 5, 2013. (
Id. at 588.) Plaintiff reported "doing a little
better on remembering to take her meds daily (only missed 1
night in past week)." ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on February 26, 2013. (
Id. at 590.) Plaintiff reported being depressed most
days and that she has fatigue and low motivation. (
Id. ) Plaintiff reported feeling lonely, even if she
is with people. ( Id. ) Ms. Schmitt's notes also
stated the following: "She [Plaintiff] does not think
that her current depression has a precipitant or trigger, she
thinks it is chemical (and she is still not able to be
completely consistent with her meds.") ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on February 12, 2013. (
Id. at 592.) Plaintiff reported that she is doing
much better with medication consistency. ( Id. ) She
was taking a shower and washing her face every three days and
trying to brush her teeth every morning. ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on February 7, 2013. (
Id. at 526.) Notes from that visit state that
Plaintiff's panic symptoms were still significant. (
Id. ) Ms. Kleiner also states that Plaintiff stopped
Abilify a few weeks ago to see what it would do. (
Id. ) Under the heading "Medication Compliance
as Prescribed, " Ms. Kleiner wrote "patient is
compliant with medication as prescribed." ( Id.
)
Plaintiff
saw Juliet Schmitt, MFT at PCSD on January 28, 2013. (
Id. at 596.) Notes from that visit explain that
Plaintiff is working on more consistency with her medications
and her teeth brushing and face washing. ( Id. ) She
had a mild panic attach due to "pent up nervousness
anticipating the date. She handled it well and it passed
quickly." ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on January 21, 2013. (
Id. at 598.) During that visit, Plaintiff and Ms.
Schmitt discussed how depression holds Plaintiff back
"from daily self-care (teeth brushing, showers, shaving
her legs, taking her meds, etc.)." Notes further state
that Plaintiff "knows that if she took her meds
consistently she would probably have an easier time doing
things she needs to do, but depression holds her back from
that as well." ( Id. )
b.
Treatment Records from 2012
Plaintiff
saw Juliet Schmitt, MFT at PCSD on December 10, 2012. (
Id. at 604.) Notes from that visit state the
following, in part: "She has spent most of her time on
one class but not enough time on the other due to being
easily overwhelmed, depressed and fatalistic... She is
fearful of talking about the future and about having to get a
job. When she thinks about it she starts to feel overwhelmed
and wants to avoid it." ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on December 4, 2012. (
Id. at 532.) Ms. Kleiner's notes from that visit
state: "Pt [Patient] has been taking meds regularly
since 11/28/2012, and she wasn't prior because she was
wallowing in her depression... Mother has also explored
personality disorders, and she wonders if patient is
borderline given her persistent difficulties with relating in
the world which aren't just related to Asperger's.
Discussed treatment options, but there aren't any DBT
groups close by for teens/young adults." ( Id.
at 532.)
Plaintiff
saw Michelle Kleiner, NP at PCSD on November 6, 2012. (
Id. at 534.) Ms. Kleiner's notes from that visit
state the following: "Pt [Patient] states she shut down
and stopped meds regularly for a new weeks. She is now back
on them regularly. Unable to evaluate increased Lexapro as a
result." ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on October 4, 2012. (
Id. at 536.) Notes from that visit indicate that
Plaintiff was taking her medications regularly. (
Id. ) Ms. Kleiner further notes that Plaintiff is
"[d]oing a lot better but still feeling depressed...
Anxiety is going down... Taking Adderall XR on school days
which helps. Patient is taking 2 classes this semester."
(AR 536.)
Plaintiff
saw Juliet Schmitt, MFT at PCSD on September 22, 2012. (
Id. at 609.) She reported a depressed mood, fatigue,
and body aches. ( Id. ) Notes from that visit state
that Plaintiff is only taking her medication half of the time
because she is forgetful. ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on August 14, 2012. (
Id. at 539.) Ms. Kleiner's notes from that visit
state that Plaintiff is having "broken" sleep,
"waking up with a sense of anxiety like I forgot
something.' Mood more anxious now than depressed, not as
tearful. Pt [Patient] hasn't started Lexapro yet... Pt
[Patient] states her current stressor is a work deadline...
she states she shouldn't feel as anxious as she
does." (AR 539.) Under the "treatment plan"
Ms. Kleiner states "increase med. compliance." (
Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on August 4, 2012. (
Id. at 611.) She reported not taking her medication
that day. ( Id. ) Notes from the visit explain hat
Plaintiff was crying and very overwhelmed. ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on July 21, 2012. (
Id. at 612.) She reported that she had been taking
her medication and "feeling a little better." (
Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on July 14, 2012. (
Id. at 613.) Notes from that visit state that
Plaintiff's "functioning has declined due to
noncompliance with meds after Josh broke up with her in June.
She admits that she felt bad, life sucks, etc. and felt there
was no point of the effort to take her meds because life
would suck anyway.'" ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on July 12, 2012. (
Id. at 540.) Ms. Kleiner's notes from that visit
state: "Pt [Patient] reports being compliant about meds
until she was dumped by boyfriend 3 weeks ago. Feeling more
physical sxs [symptoms] of depression again (lethargy,
decreased motivation), increased anxiety, coping
ineffectively." ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on May 1, 2012. (
Id. at 541.) Notes from that visit state that
Plaintiff is still not taking her medication as prescribed,
and never increased her dosage as discussed. ( Id. )
The notes further state that there has been no change in
symptoms and Plaintiff continued to report decreased mood,
irritability and getting easily overwhelmed. ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on March 29, 2012. (
Id. at 542.) Notes from that visit state that
Plaintiff reported taking her medication but her mother had
called prior to the appointment to question whether Plaintiff
is taking her medications because Plaintiff was making
impulsive choices. ( Id. ) Notes further state that
Plaintiff continues to be easily overwhelmed, easily
irritated, low mood. ( Id. ) Plaintiff denied being
impulsive but said she is making up for lost time, socially.
( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on February 3, 2012. (
Id. at 620.) She admitted that she did not take her
medication in January but now realizes that she has to be
consistent. ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on February 2, 2012. (
Id. at 543.) She reported that she
"detoxed" off all medication. ( Id. ) The
notes state that Plaintiff reported the medications were not
effective so she stopped taking them for the past month. (
Id. ) She has been back on medication for two days.
( Id. ) Plaintiff reported "good social support
from school friends." ( Id. )
c.
Treatment Records from 2011
Plaintiff
saw Michelle Kleiner, NP at PCSD on December 6, 2011. (
Id. at 544.) Notes from that visit state that
Plaintiff is inconsistent with her medication. ( Id.
) Notes further state, "Adderall XR definitely helps
when she uses it." ( Id. ) Plaintiff noted a
decrease in anxiety since starting her medication but no
change in mood. ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on October 25, 2011. (
Id. at 625.) She discussed that she had seem Ms.
Kleiner and "knows being consistent w/meds is the best
solution for feeling better-just needs to get back up to
approp. dose and be consistent." ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on October 23, 2011. (
Id. at 545.) Notes from that visit state that
Plaintiff was off "ADD" medication for one year and
felt that she focused ok, but her current classes required
increased focus. ( Id. ) Notes also state that
Plaintiff was off Lexapro for a while but "she is now
ready to commit." ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on August 6, 2011. (
Id. at 369.) She reported that she does not like
taking her medication because she has an over-reactive
gag-reflex, which has led to an increase in anxiety and
insomnia. ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on July 30, 2011. (
Id. at 628.) She reported having an increase in
anxiety that week, "but it was due to inconsistency w/
meds and now she is feeling better." ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on May 23, 2011. (
Id. at 546.) Notes from that visit state that
Plaintiff is "doing really well overall. Socially doing
well. Looking for work for summer but not giving it her
all." ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on April 22, 2011. (
Id. at 634.) Notes from that visit state that
Plaintiff "is less depressed than last session and is
able to have a more positive outlook (taking meds regularly)
but is still very tired every day." ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on April 1, 2011. (
Id. at 635.) Notes from that visit state that
Plaintiff "continues to be very overwhelmed by school
and wants to give up and just relax and not have any
stressors... She admits that she is non-compliant w/her
medication currently b/c [because] it hurts her stomach and
it tastes bad if she does not eat the right amount of food
with it.'" ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on March 21, 2011. (
Id. at 636.) Notes from that visit state that
Plaintiff was "upset about workload, " and
"crying with intensity in session and said no options
for anything positive" until Ms. Schmitt began working
with her on a schedule for school, work and fun. (
Id. ) "By the end of the session she was in
fairly good spirits." ( Id. )
Plaintiff
saw Juliet Schmitt, MFT at PCSD on January 24, 2011. (
Id. at 638.) Notes from that visit state the
following: "Pt [Patient] experiences 3 weeks of nightly
panic due to preoccupation w/thoughts about dying suddenly.
After a medication adjustment she is feeling better and not
panicking, but some residual preoccupation w/not wanting to
have to think about her eventual death. Focused on ways to
redirect her attention." ( Id. )
Plaintiff
saw Michelle Kleiner, NP at PCSD on January 19, 2011. (
Id. at 547.) Notes from that visit state that
Plaintiff stopped all of her medications over Christmas break
because she kept forgetting. ( Id. ) She reported
having panic attacks consistently. ( Id. ) She
started back on her medication two days ago, which has
decreased the panic symptoms. ( Id. )
d.
Consultative Exam with Romualdo R. Rodriguez, M.D.
Plaintiff
saw consultative examiner, Romualdo R. Rodriguez, M.D., a
board eligible psychiatrist on March 21, 2012. ( Id.
at 388.) Dr. Rodriguez had the following diagnostic
impressions of Plaintiff: Axis I: (1) ADHD per private
physician, (2) Depressive disorder, not otherwise specified;
(3) anxiety disorder, not otherwise specified. Axis II: No
diagnosis. Axis III: Per medical reports. Axis IV:
Psychosocial stressors over past year: minimal to moderate.
Axis V: Current GAF: 65[1]. ( Id. at 392.)
Dr.
Rodriguez gave the following prognosis: From a psychiatric
point of view, as long as the claimant is properly treated
for ADHD and anxiety and depression, she could easily recover
from her symptoms in the next twelve months. ( Id.
at 393.) Based on his examination, Dr. Rodriguez had the
following functional assessment of Plaintiff:
1. Able to understand, remember, and carry out simple one or
two-step job instructions.
2. Able to do detailed and complex instructions.
3. Minimally limited in her ability to relate and interact
with supervisors, ...