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Mendoza v. Colvin

United States District Court, E.D. California

August 1, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.




         Plaintiff, Irene Mendoza (“Plaintiff”), seeks judicial review of a final decision of the Commissioner of Social Security (the “Commissioner”) denying her application for Supplemental Security Income Benefits pursuant to Title XVI of the Social Security Act. 42 U.S.C. § 1381-83. 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.[1]


         Plaintiff was born on February 8, 1967, and was 39 years old when she was initially found disabled as of January 9, 2006. (Administrative Record (“AR”) 12; 95 (agency determination dated April 20, 2006).) On January 11, 2012, the agency found Plaintiff had medically improved as of January 1, 2012. (AR 76.) Plaintiff requested a hearing to dispute the determination, alleging she remained disabled due to depression, carpal tunnel syndrome, panic attacks, and sleeping problems. (AR 80.) On September 24, 2013, Plaintiff appeared with counsel and testified in a hearing before an ALJ. (AR 38-69.) In a decision dated November 20, 2013, the ALJ affirmed the cessation of benefits and found Plaintiff’s “disability ended on January 1, 2012, and that [she] has not become disabled again since that date. (AR 12.)

         A. Relevant Medical Evidence[2]

         On December 12, 2011, consultative examining psychiatrist Dr. Gil Schmidt, Psy. D., conducted a psychiatric examination at the request of the agency. (AR 328-35.) Dr. Schmidt noted Plaintiff was living with her boyfriend of more than two decades and her five children. (AR 328.) Plaintiff reporting attending school through the 10th grade, and dropping out because her family moved and she lacked parental support to finish school. (AR 329.) The longest she worked for an employer was three years, and she stopped working in 2001 “after having quit because she did not have transportation anymore and has not sought work since.” (AR 329.)

         Plaintiff was on time for her appointment, “observed to be socially interacting with other clients while waiting for their respective interviews, ” and her “behavior, mood and gait all appeared to be within normal limits.” (AR 328.) Plaintiff reported suffering depression for the past two decades “because of marital discord, ” and that significant other was currently dating a younger woman. (AR 328.) Plaintiff reported that she had not found counseling beneficial, though Dr. Schmidt observed Plaintiff “has been in and out of counseling for crisis intervention only and has not appeared to work on any root issues that have been promoting the marital discord.” (AR 329.) Dr. Schmidt opined that Plaintiff’s “concerns appear to be situational depression.” (AR 328.)

         Plaintiff reported showering 2-3 times per week, preparing and cooking her own meals, and taking care of her own hygiene without prompting or assistance. (AR 331.) She reported sleeping between 8 and 12 hours at a time as well as a disturbed sleep pattern of repeated awakening to use the restroom. (AR 331.) Dr. Schmidt noted Plaintiff “is capable of both light and heavy duty domestic chores without any noted limitations.” (AR 331.) Though Plaintiff reported suffering from obsessive-compulsive disorder, Dr. Schmidt found “no evidence suggested during her presentation that would be supportive of this diagnosis” and opined that Plaintiff “appeared to be over endorsing mental health symptoms.” (AR 331-32 (observing Plaintiff to be “often times over endorsing symptoms both typical and atypical”).)

         Dr. Schmidt diagnosed Plaintiff as malingering, and assigned Plaintiff with a GAF[3] scale score of 71-80, reflecting “no significant impairment.” (AR 332.) Dr. Schmidt opined Plaintiff’s “functional level appears to be adequate with no significant mental health impairment” and found her prognosis “good, ” and concluded that Plaintiff’s “mental health condition will probably abate within the next 12 months given the stable condition of her mental health condition, her high level of functioning, and the available mental health resources that she is presently accessing within her community.” (AR 332-33.) Dr. Schmidt found Plaintiff had no mental health functional impairments. (AR 333-34.)

         On January 10, 2012, reviewing agency psychiatrist Dr. Ida Hilliard, M.D., completed a psychiatric review technique form. (AR 350-63.) Dr. Hilliard concluded that Plaintiff’s medically determinable personality disorder was not severe, and found Plaintiff was mildly impaired in her activities of daily living, ability to maintain social functioning, and ability to maintain concentration, persistence, and pace. (AR 358.) Dr. Hilliard concluded there was evidence of significant medical improvement in Plaintiff’s depressive symptoms. (AR 360-62.)

         Plaintiff saw Dr. Franco Song Seo, M.D., twice in 2013 at Kern County Mental Health. (AR 527-41.) On April 25, 2013, Plaintiff complained of pain in her knees and back, headaches, and carpal tunnel syndrome, and reported that she was unable to work due to her medical issues. (AR 533.) Plaintiff reported good response and compliance with her mental health medications, and requested to be continued on the same medications. (AR 533.) On examination, Plaintiff was appropriately dressed, made good eye contact, was cooperative, and her behavior was unremarkable. (AR 535.) Plaintiff’s mood was sad, with affect congruent to mood and appropriate to situation and content. (AR 535-36.) Plaintiff’s intensity, range and stability were normal, and though her speech was slow with low tone, the amount, clarity, and fluency of her speech was normal. (AR 536.) Though Plaintiff’s concentration was “impaired, ” her intelligence was “below average, ” and her immediate and recent memory and insight were “poor” (AR 537), Dr. Seo observed that Plaintiff’s thought process was logical, with unremarkable thought content, and she was oriented to person, place, date and time (AR 536-37). Dr. Seo diagnosed Plaintiff with mood disorder, opioid dependence, and personality disorder and assessed Plaintiff with a GAF scale score of 50, reflecting serious symptoms or a serious impairment in social, occupation, or school functioning. (AR 538-39.)

         On July 22, 2013, Plaintiff was observed to be “much improved” and “hopeful about her future and recovery.” (AR 531.) On examination, Plaintiff was observed to be anxious and euthymic and oriented to person, time and place, with unremarkable thought process, appropriate affect and cooperative behavior, good eye contact, normal speech, fair insight, judgment, and memory, intact concentration, and below average intelligence. (AR 528-29.) Despite these observations, Dr. Seo checked boxes indicating Plaintiff’s “current disability” was “moderate, ” she was unable to work, her prognosis was “fair, ” and the expected length of treatment would be six months. (AR 532.) Dr. Seo recommended Plaintiff continue with her current medications and transferred her treatment back to her primary care physician. (AR 532.)

         B. Testimony

         1. Plaintiff’s Testimony at Hearing

         Plaintiff testified that she cannot mop and sweep because of her hands and back, but that she can fold clothes and can microwave food. (AR 46-47.) Plaintiff can use her fingers to pick up small things from the table, perform her own personal care, and tie her shoes. (AR 47.) She spends most of her day sleeping, lying down, or watching television. (AR 49.) Plaintiff takes Vicodin for the pain in her hands, but not for the pain in her back. (AR 50.) Plaintiff testified that she can sit of approximately 30 minutes at a time and that while her medications help with her depression, she experiences anxiety when “something comes up.” (AR 52; 56.)

         2. Vocational Expert Testimony at Hearing[4]

         The ALJ asked the Vocational Expert (“VE”) whether a hypothetical individual of Plaintiff’s age and educational background who can lift and carry 10 pounds frequently and 20 pounds occasionally; sit, stand, and walk for six hours in an eight-hour day; frequently climb ladders, ropes, scaffolds, ramps, and stairs; frequently stoop, kneel, crouch, and crawl; frequently reach, handle, finger, and feel with her bilateral upper extremities; should avoid extreme cold and wetness; and is limited to simple, routine, and repetitive unskilled work would be able to perform the requirements of any work in the national economy. (AR 64-65.) The VE testified such an individual could work as an assembler of small products, DOT 706.684-022, and inspector, DOT 559.687-074, both light, unskilled work with an SVP[5] of 2. (AR 65-66.)

         The ALJ then asked the VE whether an individual who additionally would need to alternate sitting and standing at will and could not sit or stand more than 30 minutes at a time could work. (AR 66.) The VE testified, based on his experience, that such an individual could perform the requirements of small products assembler and inspector “as sit, stand stools are furnished” without erosion in the number of available jobs. (AR 66.)

         The ALJ then asked whether an individual with the same total limitations, except that they could only lift a maximum of 10 pounds, could work. (AR 66-67.) The VE testified that such an individual could work as a bench hand assembler, DOT 715.684-026, table worker, DOT 739.687-182, and lens inserter, DOT 713.687-026, all unskilled, sedentary work with an SVP of 2. (AR 67.)

         The ALJ finally asked whether an individual who would also be off task more than 15 percent of the work day would be able to work. (AR 67.) The VE testified such an individual could not work. (AR 67.)

         C. Administrative Proceedings

         On November 20, 2013, the ALJ issued a written decision and found that the April 20, 2006 decision finding Plaintiff disabled was the “comparison point decision” for the purpose of determining whether medical improvement had occurred. (AR 14.) At the time of the comparison point decision, Plaintiff had been unable to ...

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