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Rivera v. Berryhill

United States District Court, E.D. California

February 27, 2018

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




         Plaintiff, Katherine Rivera (“Plaintiff”), seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for Disability Insurance Benefits (“DIB”) pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs (Docs.15 and 16) which were submitted without oral argument to the Honorable Gary S. Austin, United States Magistrate Judge.[2] After reviewing the administrative record, the Court finds the decision is supported by substantial evidence. Accordingly, the Court denies Plaintiff's appeal.


         A. Background

         Plaintiff worked as a home care provider full-time and decreased her hours to part-time (three to four hours per week) due to health concerns. She previously applied for DIB and supplemental security income pursuant to Titles II and XVI of the Social Security Act in 2002 and 2010, and each was denied at the hearing level. AR 18; 79-86; 89-98. She most recently applied for DIB on December 4, 2012, alleging disability beginning August 31, 2012, due to fibromayalgia, lupus, degenerative disc disease, high blood pressure, osteoarthritis, and rheumatoid arthritis. AR 18; 213-220; 237. The parties agree that Plaintiff properly exhausted her administrative remedies and that the Appeals Council denied Plaintiff's appeal. (Doc. 11, pgs. 3-4 and Doc. 16, pg. 2). Therefore, this appeal is a review of Administrative Law Judge Sharon Madson's (“ALJ”) decision issued on July 24, 2015, which is considered the Commissioner's final order. See, 42 U.S.C. §§ 405(g), 1383(c)(3). AR 18-26. Plaintiff is challenging this decision on the basis that the ALJ did not properly assess her mental health impairments.

         B. Summary of the Medical Record[3]

         In August and November 2012, Plaintiff reported being depressed to her primary care physician. AR 374; 378. In March and May 2013, she presented at Adventist Health Central Valley Network (Adventist) complaining of anxiety and “stress depression.” Plaintiff was advised to follow-up with mental health services. AR 370-371; 412; 413 (duplicates at 467-468).

         On September 4, 2013, state agency physician Dr. A. Garcia, M.D., assessed Plaintiff's disability application at the initial level and found Plaintiff was not disabled. AR 104. On January 3, 2014, Dr. Mark Berkowitz, Psy.D., a state agency psychologist, reviewed the medical record in connection with Plaintiff's reconsideration application. AR 105-116. Dr. Berkowitz noted that Plaintiff had not previously alleged a mental impairment. Moreover, in her application for reconsideration, she alleged a worsening of physical conditions, but no additional mental impairments. Dr. Berkowitz performed a psychiatric review technique assessment and concluded that Plaintiff did not have a medically determinable impairment. AR 112.

         In September and December 2014, Plaintiff was diagnosed with minimal and mild depression. AR 15 580; 583. In February 2015, she saw physician's assistant Nora Martin, PA-C, at Family Healthcare for toe pain and a related toe nail infection. AR 576. At this visit, Ms. Martin noted there was a “concern” for depression based on a screening questionnaire Plaintiff completed, and Plaintiff agreed to a behavorial health evaluation. AR 576. On psychiatric examination, Ms. Martin described Plaintiff as “alert [and] oriented, [with] cognitive function intact; cooperative with [the] exam; good eye contact; judgment and insight good; mood/affect full range; no auditory or visual hallucinations; speech clear; thought content without suicidal or homicidal ideation [or] delusions; [and] thought process logical, [and] goal directed” AR 578. Ms. Martin noted that Plaintiff reported a history of depression/depressed mood and diagnosed a depressive disorder not elsewhere classified. AR 578.

         In March 2015, Plaintiff was referred to Meghan Nash, Psy.D., by Ms. Martin. AR 573. Plaintiff claimed that she had been depressed “off and on” for over ten years, and that it reoccurred “a few months ago.” AR 573. It was noted that Plaintiff's husband had passed away in 1995 and she was still grieving this loss. AR 573. On screening, Plaintiff indicated that she had little interest or pleasure in doing things nearly everyday; felt down depressed or hopeless nearly every day; did not have any trouble falling asleep or staying asleep; felt bad about herself and/or felt that she had let her famiy down nearly everyday; had trouble concentrating on things such as reading or watching television nearly everyday; but had no suicidal or homicidal ideation. Plaintiff indicated that she was not interested in a medical consult to explore possible psychotropic medication intervention because she is taking “too many” medications and they upset her stomach. Plaintiff described her coping mechanisms as walking for thirty to sixty minutes per day, talking to her mother and four daughters about her physical condition, and that she would “keep busy by cleaning or taking care of things at home.” AR 573. Dr. Nash described Plaintiff as tearful but cooperative, and diagnosed moderate major depressive disorder, recurrent episode. AR 574. Dr. Nash recommended that Plaintiff pace her physical activities by doing light exercise everyday and engaging in relaxation techniques including “deep breathing” and using imagery to improve her mood. AR 574.

         In April 2015, Plaintiff's reported similar symptoms as in March 2015. AR 570. She told Dr. Nash that she currently was “agitated” because she wanted to move back to Colorado, but her adult children did not want to move. Plaintiff again indicated that she did not want any medication. She reported occasional racing thoughts and that she missed her last medical appointment because she slept all day. AR 570. On examination, Dr. Nash again described Plaintiff as “tearful” but “cooperative, ” “with intact thought process” and no suicidal thoughts or perceptual disorders. AR 571. Dr. Nash gave Plaintiff “supportive feedback, ” and encouraged “healthy coping strategies” including exercise, proper nutrition, making “time for self” and breathing exercises. AR 572.


         To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

. . . his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or ...

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