Traugh v. Colvin

          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, ...