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Messerli v. Berryhill

United States District Court, E.D. California

August 30, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security,[1] Defendant.




         On June 9, 2016, Plaintiff Mary Colleen Messerli (“Plaintiff) filed a complaint under 42 U.S.C. §§405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for Supplemental Security Income (SSI). (Doc. 1.) 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.[2]


         On January 31, 2013, Plaintiff filed a claim for SSI payments, alleging she became disabled on January 3, 2013, due to “heart disease, 89% aorta, 60% left anterior arteries, ” “copd, ” “depression, ” “obes[ity], ” “h[igh] b[lood] p[ressure], ” and “cholesterol.” (Administrative Record (“AR”) 19, 23, 69, 161-66, 174.) Plaintiff was born on November 13, 1961, and was 51 years old on the date the application was filed. (AR 27, 45, 161.) From 2007 to January 2013, Plaintiff worked in a rehabilitation facility. (AR 23, 46, 195.) Prior to that, Plaintiff worked at a fast food restaurant and performed janitorial services. (AR 23, 46, 195.)

         A. Relevant Medical Evidence[3]

         In January 2013, Plaintiff was noted as having appropriate affect and demeanor, a normal speech pattern, and grossly normal memory. (AR 322.) Clinical psychologist James McNairn, Psy.D., performed a psychological evaluation of Plaintiff on May 16, 2013, at the request of the Department of Social Services. (AR 371-77.) Plaintiff reported depression, anxiety, poor memory, impaired sleep and appetite, and social withdrawal. (AR 372.) She relayed that she completes household chores including cooking and cleaning, dependent on her energy level. (AR 374.) Plaintiff described her typical day as sleeping from 10:00 pm to 6:00 am. (AR 374.) She eats two meals a day and bathes three times a week. (AR 374.) Plaintiff reported that she did not require assistance with bathing, dressing, or personal hygiene, and that she is able to do shopping and run errands independently. (AR 374.) She stated that she visits with family and friends, and her leisurely activities include television and music. (AR 374.)

         Dr. McNairn observed that Plaintiffs psychomotor activity was slowed, her movements were awkward, and her eye contact was fair to good. (AR 374.) She was alert and oriented. (AR 375.) Plaintiff was slow in responding to questions but displayed no significant impairments in concentration, persistence, or pace. (AR 374.) Plaintiffs thought processes were “slowed” but “organized and logical.” (AR 375.) She reported “auditory hallucinations of ‘voices, ' derogatory type” and claimed “visual hallucinations of ‘Spirits' and objects.” (AR 375.) Plaintiff reported she was paranoid, suspicious, and distrustful of people. (AR 375.) She described her mood as depressed. (AR 375.) Dr. McNairn noted that Plaintiff “was generally cooperative and pleasant throughout the evaluation but she seemed eager to claim mental illness and functioning difficulties” and that she “appeared to be exaggerating symptoms at times.” (AR 374.)

         Dr. McNairn diagnosed Plaintiff with major depressive disorder, moderate with psychotic features; polysubstance dependence, in sustained remission; and rule out substance-induced mood/psychotic disorder, and assigned Plaintiff a Global Assessment of Functioning Score of 55. (AR 376.) He noted that Plaintiff reported symptoms were “consistent with a mood disorder, ” and that the severity of her disorder was “in the moderate range, ” with a “fair” likelihood of her mental condition improving in the next 12 months, given her receipt of psychiatric mediations. (AR 376.) Dr. McNairn opined that Plaintiff is not capable of managing her own funds based on her history of substance abuse and antisocial behavior; that her ability to perform simple and repetitive tasks is “mildly impaired” and to perform complex and detailed tasks is “moderately impaired”; that her ability to accept instructions from supervisors and interact appropriately with coworkers and the public is “moderately impaired”; that her ability to perform work activities on a consistent basis without special or additional instruction is “mildly-to-moderately impaired”; that her ability to maintain work attendance and to complete a normal workday and workweek without interruptions from psychological problems is “moderately impaired”; and that her ability to deal with the usual stress encountered in a competitive workplace is “moderately to seriously impaired.” (AR 376-77.) Dr. McNairn concluded that Plaintiffs “problems are treatable, ” and that she would benefit from continued psychiatric medication as well as individual and group counseling. (AR 377.)

         Plaintiff sought treatment from the Kern County Mental Health Department in June 2013 for depression and anxiety. (AR 379-99.) Plaintiff reported isolating herself from other people, experiencing insomnia, and that she “feels sad most of the day.” (AR 379.) Plaintiff reported experiencing some stressors in the past couple of years and that she has difficulty concentrating. (AR 379.) She related that she stopped participating in activities that she used to enjoy, and that she had feelings of worthlessness and guilt. (AR 379-80.) Plaintiff reported difficulty going out in public, especially places where there are a lot of people, and that she experiences “periods where her heart will pound and she feels a strong need to flee the area.” (AR 380.) She reported chronic history of panic attacks, depression, psychosis and paranoia. (AR 392.) Plaintiff has a history of methamphetamine use but has been clean since 2006. (AR 392.)

         Rizwana Shaheen, M.D. examined Plaintiff in June 2013, and noted that Plaintiff made good eye contact, was pleasant and cooperative, had an anxious, dysphoric, and frustrated mood, was tearful and “very anxious, ” had normal speech, impaired concentration, was inattentive, and had average intelligence. (AR 393-95.) Dr. Shaheen noted that Plaintiff had paranoid ideation with auditory and visual hallucinations. (AR 395.) Dr. Shaheen assessed Plaintiff with panic disorder with agoraphobia, psychotic disorder NOS, major depression, agoraphobia without history of panic disorder, and amphetamine dependence. (AR 396.) Plaintiff was prescribed medication for depression, psychotic and paranoid symptoms, and insomnia. (AR 398.)

         On June 14, 2013, a Disability Determinations Service non-examining consultant, Uwe Jacobs, Ph.D., reviewed the record and analyzed the case. (AR 75-81.) Dr. Jacobs opined that Plaintiff was “moderately limited” in her ability to: carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (AR 80.) Dr. Jacobs also found that Plaintiffs ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, as well as her ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, were both “moderately limited.” (AR 81.) Dr. Jacobs opined that Plaintiff “may require limited contact with others/public.” (AR 81.)

         Plaintiff presented to Dr. Shaheen on September 24, 2013, for a “[p]rogress [evaluation.” (AR 406-12.) Plaintiff reported feeling “less depressed and fatigued” and “sleeping better” with her medications, from which she reported no side effects. (AR 406.) Plaintiffs grooming was neat, her eye contact was good, her behavior cooperative, and her speech and psychomotor skills were normal. (AR 407.) Her mood was noted as dysphoric, with goal-oriented thought processes and unremarkable thought content. (AR 407.) Plaintiff denied psychotic symptoms. (AR 410.) Dr. Shaheen noted that Plaintiff was “feeling a lot better” with her current medication regimen. (AR 411.)

         On November 21, 2013, a Disability Determinations Service non-examining consultant, Heather Barrons, Psy.D., reviewed the record and analyzed the case on reconsideration. (AR 89-97.) Dr. Barrons adopted the initial decision finding Plaintiff could perform simple, repetitive, tasks with limited public contact. (AR 90, 92.) In addition to the limitations noted by Dr. Jacobs, Dr. Barrons found that Plaintiff was “moderately limited” in her ability to: interact with the general public; accept instructions and respond appropriately to criticism from supervisors; and respond appropriately to changes in the work setting. (AR 96-97.) Dr. Barrons opined that Plaintiff was able to accept supervision and interact with co-workers on a non-collaborative basis, to tolerate brief public contact, and to adapt to a routine work environment, subject to the specified limitations. (AR 97.)

         Dr. Shaheen completed a “Short-Form Evaluation for Mental Disorders” evaluation of Plaintiff on February 24, 2014. (AR 468-71.) Dr. Shaheen observed that Plaintiff was “somewhat stabilized . . . but not able to look for or interview for a job due to panic attacks/depression.” (AR 470.) She found Plaintiffs concentration was moderately impaired and her memory mildly impaired. (AR 469.) Dr. Shaheen opined that Plaintiff had poor ability to: understand, remember, and carry out complex instructions; maintain concentration, attention, and persistence; perform activities within a schedule and maintain regular attendance; complete a normal workday and workweek without interruptions from psychologically based symptoms; and respond appropriately to changes in a work environment. (AR 471.)

         In July and September 2014, Plaintiff complained of headaches, but her psychiatric symptoms were “[unremarkable (normal).” (AR 685, 688.) In October 2014, Plaintiff was seen by psychiatrist Abdolreza Saadabadi, M.D., for a follow-up appointment. (AR 675-81.) Dr. Saadabadi noted that Plaintiff complained of anxiety and insomnia, and “needs to take her clonazepam every day.” (AR 675.) Plaintiff felt her medication was “helpful.” (AR 675.) She reported “hearing voices of people talking as background noise at night when it is dark, ” but said it was “tolerable.” (AR 675.) Plaintiff noted she is “able to use coping skills to stay safe, ” and that “medications are helping [her] to have better mood and sleep better.” (AR 675.) Dr. Saadabadi observed Plaintiff as “pleasant and cooperative with good medication adherence.” (AR 675.) Plaintiffs mood was anxious with auditory hallucinations, but she had neat grooming, good eye contact, normal psychomotor skills, cooperative behavior, appropriate affect, coherent and logical thoughts, and intact attention and concentration. (AR 675-77.)

         B. Plaintiff's Statement

         On April 12, 2013, Plaintiff completed an adult function report. (AR 186-94.) Plaintiff stated that she has “zero tolerance” dealing with people. (AR 186.) When asked to describe what she did from the time she wakes up to the time she goes to bed, Plaintiff reported that she eats breakfast, watches TV, eats dinner, then goes to bed, and takes 3 to 4 naps daily. (AR 187.) She reported that she has no problem with her personal care, but sometimes needs help or reminders taking medication. (AR 187-88.) Plaintiff prepares frozen dinners, sandwiches, and one-course meals, and performs light housework (vacuuming, dusting, dishes), but stated that it takes her “all day” to do so. (AR 188.) She reported that she needs help or encouragement performing these tasks because she “doesn't feel good” and is “sick all the time.” (AR 188.) Plaintiff stated that she goes outside only when visiting the doctor, because it makes her nervous to go outside. (AR 189.) She does not drive or go out alone because she is scared that no one would be there to help her if something were to go wrong with her heart. (AR 189.) Plaintiff testified she shops for food and for clothing in stores, by phone, and by computer. (AR 189.)

         Plaintiff is able to pay bills, count change, handle a savings account, handle a checking account, and use a checkbook. (AR 189.) Plaintiffs interest and hobby is watching television “all the time” because she “has nothing else to do” and “hate[s] people.” (AR 190.) She reported that she does not spend time with others and does not leave her house other than for doctor's appointments. (AR 190.) According to Plaintiff, she has a “long history” of depression and antisocial disorder. (AR 191.) She has to write down spoken instructions. (AR 191.) Plaintiff reported that she has does not get along well with authority figures and was fired from her last job because she did not get along with her boss. (AR 192.) She stated that she does not handle stress well: she cries a lot and hides from people to avoid conflict, including hiding in her room when she sees people approach her door. (AR 192.) Plaintiff reported that changes in routine make her “nervous.” (AR 192.) She takes Celexa and Trazodone, but still does not sleep well and has headaches as a result. (AR 193.)

         C. Administrative Proceedings

         Plaintiff filed an application for SSI on January 31, 2013, alleging she became disabled on January 3, 2015. (AR 19, 23, 69, 161-66, 174.) The agency denied Plaintiffs application for benefits initially on June 24, 2013, and again on reconsideration on December 12, 2013. (AR 102-105, 111-15.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 117-19.) On October 20, 2014, Plaintiff appeared with counsel and testified before an ALJ. (AR 42-68.)

         1.Plaintiff's Testimony

         Plaintiff testified she was 52 years old at the time of the hearing. (AR 45.) She lives with a female friend. (AR 56.) Plaintiff said in a “typical day” she gets up at 4:30 am in the morning, makes coffee, watches television, makes breakfast, watches more television, takes a nap, watches television, makes dinner in the microwaves, watches more television, then goes to bed. (AR 48.) She occasionally cleans and vacuums, and she is able to cook using the microwave, do dishes, and do laundry. (AR 48.) Plaintiff testified she periodically drives and occasionally grocery shops. (AR 45, 48.) She sometimes uses a computer to access Facebook, mainly to communicate with her daughter, for no more than an hour a day. (AR 49, 58.) Plaintiff testified that she cooks, does the dishes, and does some cleaning in exchange for rent. (AR 50.) She testified that her medications are “effective, ” there are no side effects, and that she's “better with them than [she is] without them.” (AR 49.)

         Plaintiff sought mental health treatment in 2013 when she had a “nervous breakdown” as a result of losing her job. (AR 56.) She became “agoraphobic” and it made her “sick to leave the house.” Plaintiff testified that she has trouble sleeping and cannot be in the same room as her siblings because she “freak[s] out.” (AR 56-57.) If anyone visits, she goes to her room to lie down. (AR 48.) Plaintiff testified she has a “problem with socializing with other people.” (AR 58.) She sees her daughter and grandkids every once in a while, but does not attend their school events due to anxiety. (AR 59.) She said she gets anxiety attacks and hides in her room. (AR 59.)

         2.Vocational ...

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