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Shaneena W-M v. Berryhill

United States District Court, S.D. California

September 4, 2019

SHANEENA W-M, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This Report and Recommendation is submitted to the Honorable William Q. Hayes, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California.

         On July 20, 2018, plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social Security denying her application for a period of disability and disability insurance benefits. (ECF No. 1.)

         Now pending before the Court and ready for decision are the parties' cross-motions for summary judgment. For the reasons discussed hereafter, the Court RECOMMENDS that plaintiff's motion for summary judgment be GRANTED, that the Commissioner's cross-motion for summary judgment be DENIED, and that Judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).


         On October 8, 2013, plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging disability beginning December 10, 2012. (Certified Administrative Record [“AR”] 198-99; see also AR 72.) After her applications were denied initially and upon reconsideration (AR 89-92, 95-99), plaintiff requested an administrative hearing before an administrative law judge (“ALJ”). (AR 101-02.) An administrative hearing was held on January 19, 2017. Plaintiff was represented by counsel and testimony was taken from her, as well as from a medical expert (“ME”) telephonically and a vocational expert (“VE”). (AR 33-61.)

         As reflected in his May 3, 2017 decision, the ALJ found that plaintiff had not been under a disability, as defined in the Social Security Act, at any time from her alleged onset date through the date of the decision. (AR 15-26.) The ALJ's decision became final on May 22, 2018, when the Appeals Council denied plaintiff's request for review. (AR 1-4.) This timely civil action followed.


         In rendering his decision, the ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. § 404.1520.[1]

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since December 10, 2012, the alleged onset date. (AR 17.)

         At step two, the ALJ found that plaintiff had the following severe impairments: a bipolar disorder; a depressive order; an anxiety disorder; and asthma. (AR 17.)[2]

         At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the Commissioner's Listing of Impairments. (AR 18.)

         Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, but with the following non-exertional limitations:

“[S]he could understand, remember and carry out simple instructions for simple tasks and she could tolerate few workplace changes. Additionally, she could occasionally have superficial interaction with others, but no teamwork, and she would need to avoid pulmonary irritants, such as fumes, odors, dusts, gases, poor ventilation, etc.” (AR 20.)

         For purposes of his step four determination, the ALJ adduced and accepted the VE's testimony that a hypothetical person with plaintiff's vocational profile and RFC would not be able to perform the requirements of plaintiff's past relevant work. Accordingly, the ALJ found that plaintiff was unable to perform any past relevant. (AR 25.)

         The ALJ then proceeded to step five of the sequential evaluation process. Based on the VE's testimony that a hypothetical person with plaintiff's vocational profile and RFC could perform the requirements of occupations that existed in significant numbers in the national economy (i.e., Industrial Cleaner, Mail Clerk, and Marker), the ALJ found that plaintiff had not been under a disability from December 10, 2012 through the date of his decision. (AR 26.)


         On October 12, 2012, plaintiff was evaluated at the Camp Pendleton Mental Health Outpatient Clinic. (AR 279.) She presented “to get help with [her] depression and mood swings.” (AR 280.) It was noted that she had a history of depression and, upon mental status examination, it further was noted that she had a labile mood, continued suicidal ideation, limited judgment, poor impulse control by history, poor concentration, and distractability. (Id.). It also was noted that plaintiff had skill deficits, early trauma abuse, prior suicide attempts, poor self-esteem, major depression, a broken foot, impulsivity/ aggression/manipulation/dependence precipitated by acute disappointments, embarrassments, humiliations or threat and availability of means. (AR 280-81.) Plaintiff was assessed with a moderate risk of suicide and a diagnosis of post-traumatic stress disorder (“PTSD”), possible bipolar disorder, and a borderline personality disorder. (AR 281.) While her Global Assessment of Functioning (“GAF”) was assessed at 65 that day, it was noted that this was plaintiff's last session and that she was feeling better as she was going to have her baby and was trying to be with the father (who was in Pennsylvania). (AR 281-82.) It also was noted that plaintiff planned on seeking psychotherapy treatment. (AR 282.)

         After returning to San Diego, plaintiff was seen at the Vista Veteran's Administration (VA”) facility on January 2, 2014, complaining of abdominal pain. (AR 300.) It was noted that she was crying and tearful at the time, and that she was claiming to have been given the run around in getting help. (AR 405-06.) Plaintiff reported that she had been the victim of a physical assault and attempted rape in September 2012, and that she had left the Marine Corps in December 2012. (AR 406.) Plaintiff was noted to be depressed and suicidal, and she was referred for a mental evaluation. (AR 407.)

         Plaintiff had a mental evaluation on January 30, 2014. (AR 300.) The examination was performed by Natalie Castriotta, PhD, under the supervision of Ann N. Nisenzon, staff psychologist. (AR 400-04.) The examination notes reflect that plaintiff reported a long history of sexual abuse during her childhood and sexual harassment in the military.[4] She also reported many symptoms of PTSD related to these traumas. She also reported avoiding people and places that reminded her of trauma, as well as feeling detached from others. (AR 401.) Plaintiff appeared underweight, severely isolated and “distrustful of psychologist” stating she was fearful of treatment. (Id.) Upon examination, plaintiff was dysthymic and labile, and was dysregulated throughout the session, fluctuating from tearfulness, anger, anxiety, laughter though she was regulated by the end of the session. (AR 402.) She was diagnosed with depressive disorder and possible PTSD, major depression, and substance abuse disorder in full remission. (Id.)

         Plaintiff returned for a psychology consultation on February 25, 2014 and attended the military sexual trauma/interpersonal therapy (MST/IPT) orientation meeting on that date. (AR 299, 367.) The examination notes for that visit reflect that plaintiff met the criteria for PTSD, severe depression, and bipolar disorder. (AR 369-71.) On the Sheehan Disability Scale, plaintiff was assessed as being “very severely impaired” in Work/School, in Social Life/Leisure Activities, and in Family Life/Home Responsibilities. (AR 371-72.)

         On March 3, 2014, a State agency physician found on initial evaluation that there was insufficient medical evidence in the record to determine whether plaintiff had a medically determinable impairment.[5] The report noted that there was no opinion evidence from any source and recommended a consultative examination in ...

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