Green v. Saul

          ORDER ON PLAINTIFF'S SOCIAL SECURITY COMPLAINT (DOC. 1)

          Sheila K. Oberto. UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On September 20, 2018, Plaintiff Pamela Green (“Plaintiff”) filed a complaint under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). 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]

         II. FACTUAL BACKGROUND

         On April 2, 2014, Plaintiff protectively filed an application for DIB payments, ^[3] alleging she became disabled on January 28, 2013, due to depression, bipolar disorder, arthritis, and cervical injury. (Administrative Record (“AR”) 16, 19-20, 65, 100, 116, 221-22, 241.) Plaintiff was born on August 14, 1959 and was 54 years old as of the alleged onset date. (AR 63-64, 80, 192, 226, 247.) She has a GED and completed some college, has past work experience as an accounting clerk, and last worked full-time in 2013. (AR 64-65.)

         A. Relevant Medical Evidence^[4]

         1. Charles Douglass, LCSW

         On August 1, 2012, Plaintiff established care with social worker Charles Douglass for treatment of her depression. (AR 695-700.) Plaintiff reported that she had suffered from depression for more than thirty years was prescribed Cymbalta and other medications, had seen therapists in the past, and had suicidal thoughts but never acted on them. (AR 695.) Plaintiff completed a depression survey in which he stated she had significant difficulty concentrating, “fears of cracking up or going crazy”, and fears of criticism or disapproval, and had significant feelings of sadness, discouragement, low self-esteem, inferiority, guilt, indecisiveness, irritability, loss of interest in life, loss of motivation, poor self-image, and suicidal impulses. (AR 696-699.)

         Plaintiff returned to Mr. Douglass on August 10, 2012 and August 24, 2012. (AR 693-94.) At those visits, Plaintiff reported she was “feeling better.” (AR 693-94.) On September 7, 2012, Plaintiff reported her boyfriend had been arrested and she expected him to go to prison. (AR 692.) On September 27, 2012, Plaintiff stated she talked on the phone and wrote to her ex-boyfriend and sent him some books on recovery from addiction. (AR 692.) On October 10, 2012, she reported she was applying for new jobs and had been on vacation that week. (AR 692.)

         On October 24, 2012, Plaintiff stated she was “feeling down, ” was prescribed a new depression medication and had increased her dosage of Cymbalta to 60 milligrams. (AR 690.) On November 9, 2012, Plaintiff reported she did not get interviews for the jobs she applied for, and was “disappointed and hurt, ” but that she did not feel ready to return to work anyway because she was “still feeling down and [was] unable to cope with work.” (AR 690.)

         2. Mark Tetz, M.D.

         The record also contains treatment notes from 2012-2013 from Plaintiff's primary care physician Mark Tetz.^[5] (AR 375-409, 503-510.) On June 6, 2012, Dr. Tetz noted that Plaintiff was diagnosed with depression and bipolar disorder and was prescribed Lamotrigine and Cymbalta. (AR 389.) Dr. Tetz noted that Plaintiff was “alert and oriented, cooperative, non-ill appearing, ” and “pleasant.” (AR 390.) On July 26, 2012, Dr. Tetz observed that Plaintiff had no anxiety or sleep disturbances but did have depression and some suicidal ideation. (AR 387.) On October 23, 2012, Dr. Tetz noted that Plaintiff had no anxiety, no sleep disturbances, and no suicidal ideation. (AR 384.) On November 15, 2012, Dr. Tetz noted Plaintiff was “alert and oriented, cooperative, non-ill appearing, ” and “pleasant, ” but was “[t]earful discussing going back to work.” (AR 382.)

         On January 28, 2013, Plaintiff reported that she had a problem “with irritability and anger” and “got into trouble last week at work.” (AR 509.) Plaintiff reported she “thought she was doing better, until last week, ” and felt “like she can't go back . . . to work now.” (AR 509.) Dr. Tetz noted, however, that Plaintiff was “alert and oriented, cooperative, non-ill appearing, pleasant, ” made “good eye contact, normal speech, alert, ” and exhibited “appropriate mood and affect.” (AR 509.) Dr. Tetz refilled Plaintiff's Lamotrigine and Cymbalta. (AR 509.)

         On February 25, 2013, Plaintiff reported she felt “better since off work, less irritable now, ” but was “[n]ot able to go back to work yet” because she was “[w]orried about anger outbursts.” (AR 507.) Dr. Tetz also stated that Plaintiff was “[no]t able to go back to” work and that her “disability” leave should “continue . . . until start of 5/2013.” (AR 507.) However, Dr. Tetz also noted that Plaintiff was “alert and oriented, cooperative, non-ill appearing, pleasant, ” made “good eye contact, normal speech, alert, ” and exhibited “appropriate mood and affect.” (AR 507.) On April 24, 2013, Dr. Tetz noted Plaintiff had normal affect, normal speech, appropriate mood, appropriate affect, and no thought disorder. (AR 376.)

         3. Family Healthcare Network

         In December 2013, Plaintiff established care with the Family Healthcare Network. (See AR 705-803.) On December 19, 2013, Plaintiff saw physician assistant Christian Wigfall, and reported a history of depression and bipolar disorder, and requested prescription refills of Cymbalta and Lamotrigine. (AR 708.) Plaintiff returned on January 8, 2014, to meet with social worker Meredith Casares, MSW, and reported loss of interest in activities, low energy, difficulty concentrating and remembering, feeling hopeless, irritable, guilty, sad, and fatigued, and difficulty maintaining a job. (AR 710.) Ms. Casares assessed Plaintiff as suffering from Bipolar I disorder, depressive disorder, nondependent cannabis abuse, and major depressive disorder. (AR 712.)

         Plaintiff returned to see Ms. Casares on March 19, 2014. (See AR 717.) Plaintiff reported that she was having negative thoughts about how people view her and “has been more paranoid about how people are viewing her and interacting with her.” (AR 717.) On April 18, 2014, Plaintiff stated to Ms. Casares that “overall things have been ‘good'” but she had fears about her ability to concentrate and learn, had very high expectations for herself, and “links things that are out of her control to her worth.” (AR 719.) Plaintiff returned on May 29, 2014, and reported that “she feels suicidal many times” and had “thought about veering off the road.” (AR 723.) Plaintiff reported she had been called back for interviews for jobs she applied for but she decided not to go to the interviews. (AR 723.) Plaintiff stated she took a competency test for a job placement agency but did “so poorly, ” and contacted a lawyer about applying for disability. (AR 723.) Ms. Casares gave Plaintiff the number for the suicide prevention hotline and confirmed that Plaintiff would go to the emergency room if she had suicidal thoughts. (AR 723.)

         Plaintiff saw Mr. Wigfall on June 5, 2014 and reported increased depression and memory loss. (AR 725.) Mr. Wigfall noted that Plaintiff was “pleasant, alert, in no acute distress, well developed, [and] well nourished.” (AR 726.) Mr. Wigfall also noted that Plaintiff was “emotionally upset” and “crying when discussing current situation.” (AR 726.) Plaintiff returned to see physician assistant Dustin Wetmore on December 30, 2014. (AR 730.) Plaintiff reported worsened depression and occasional suicidal thoughts, and said her “lack of money [was] her biggest source of anxiety and depression.” (AR 730.) Plaintiff's depression medications were also re-filled. (AR 731.)

         On April 22, 2015, Plaintiff reported “severe” depression, “mood swings every day, ” and intermittent suicidal ideation. (AR 732.) Plaintiff reported that before she stopped working in January 2013, she “had mood swings at work, had difficulty working with others, ” and had gone on “stress leave” once in 2012 and again in January 2013. (AR 732.) On May 27, 2015, Plaintiff reported she had been sexually assaulted by her boyfriend on February 22, 2015, and did not want to report it because she feared retaliation. (AR 738.) Plaintiff was reluctant to discuss what happened but generally reported “anxiety about the incident.” (AR 739.)

         On July 15, 2015, Plaintiff reported she had been “struggling with her stress and depression, ” and was going to see a rape counselor about her sexual assault. (See AR 742.) On September 2, 2015, Plaintiff reported her depression was “not well-controlled” and she had been on medications for “a long time for bipolar and depression.” (AR 744.) Plaintiff reported “feeling very sad sometimes” and “had some suicidal thoughts recently, but . . . no intention of acting on them.” (AR 744.) Plaintiff stated she also had intermittent “crying episodes” and reported “feeling tired frequently.” (AR 744.) On September 9, 2015, Plaintiff reported she will “stay in bed for a few days and cry” and on those days she is “unable to get out of bed and complete anything.” (AR 747.) On September 24, 2015, Plaintiff reported having bad days that caused her to be depressed, stay in bed all day, and consider suicide, and that she “often becomes overwhelmed and upset when she has her days that are difficult.” (AR 751.)

         On November 20, 2015, Plaintiff reported to Ms. Casares that nearly every day, she had little interest or pleasure in doing things; felt down, depressed or hopeless; had trouble falling or staying asleep, or slept too much; felt tired or had little energy; had poor appetite or over-ate; felt bad about herself; had trouble concentrating on things; moved very slowly or too quickly; and had thoughts of suicide. (AR 758.) Ms. Casares assessed that Plaintiff had severe depression. (AR 758.) On December 4, 2015, Ms. Casares again assessed that Plaintiff was severely depressed. (AR 760.)

         On December 30, 2015, Plaintiff reported that only about half the time she had little interest or pleasure in doing things; felt down, depressed or hopeless; had trouble falling or staying asleep, or slept too much; felt tired or had little energy; had poor appetite or over-ate; felt bad about herself; and had trouble concentrating. (AR 762.) Plaintiff reported that only on several days she moved very slowly or too quickly, and never had thoughts of suicide. (AR 762.) Ms. Casares assessed Plaintiff with moderately severe depression. (AR 762.)

         On February 10, 2016, Plaintiff reported only for several days she had little interest or pleasure in doing things; felt down, depressed or hopeless; had trouble falling or staying asleep, or slept too much; felt tired or had little energy; had poor appetite or over-ate; felt bad about herself; and had trouble concentrating. (AR 767.) Ms. Casares assessed Plaintiff with only mild depression. (AR 767.) On March 9, 2016, April 8, 2016, and May 5, 2019, Ms. Casares again assessed Plaintiff with mild depression based on Plaintiff's complaints. (AR 769, 771, 773.) On June 9, 2016, Ms. Casares assessed Plaintiff with moderately severe depression. (AR 775.) On July 12, 2016, her depression was still assessed as moderately severe. (AR 882.) On August 5, 2016, Plaintiff's depression had improved to mild. (AR 884.) Finally, on December 16, 2016, Plaintiff's depression was assessed as moderately severe. (AR 892.)

         4. Family Services of Tulare County

         Plaintiff reported to Family Services of Tulare County for four sessions to discuss her February 2015 sexual assault and her mental impairments. (See AR 866.) On July 31, 2015, the therapist and clinical supervisor diagnosed Plaintiff with adjustment disorder, mixed anxiety and depressed mood, spouse or partner violence, sexual, parent-child related problem, and employment problem. (AR 866.) At the July 15, 2015 session, Plaintiff described the rape by her ex-boyfriend and stated that she felt “emotionally and psychologically troubled” but did not report the rape to police because she feared retaliation from the ex-boyfriend and “she had no evidence about the rape incident.” (AR 868-69.) Plaintiff returned for two more sessions and reported she was “still bothered by the thought of the shame of rape” and was “afraid that people would blame her and reject her because of what had happened.” (AR 871-73.)

         5. Claudia Gonzalez, Psy.D.

         In January 2017, Plaintiff established care with psychologist Claudia Gonzalez. (AR 894.) On January 31, 2017, Plaintiff reported to Dr. Gonzalez difficulties managing her symptoms of anxiety and depression, and stated feeling “overwhelmed” and an increase in stress lately. (AR 894.) Plaintiff reported that she tended to “overthink certain situations” and felt like others did not like her, which caused her to have anxiety around other people. (AR 894.) Plaintiff reported she was still taking multiple medications for her mental impairments, including Cymbalta. (AR 894.) On March 3, 2017, Dr. Gonzalez noted that Plaintiff's symptoms of depression and anxiety had increased, she felt “tense and frustrated, ” had sleep disturbance, frequent racing thoughts, difficulties getting out of bed, and was currently taking Cymbalta, Lamotrigine, and Hydroxyzine. (AR 897.) On March 14, 2017, Dr. Gonzalez noted Plaintiff's symptoms had decreased because she was on a “mood stabilizer, ” but she still had feelings of paranoia, racing thoughts, sleep disturbance, and difficulty getting out of bed. (AR 900.)

         On March 29, 2017, Plaintiff reported “she was feeling very angry” and had the same problems as reported at previous visits-paranoia, racing thoughts, sleep disturbance, and difficulty getting out of bed. (AR 903.) On April 13, 2017, Plaintiff reported similar symptoms and she “spoke extensively about overthinking and feeling nervous about a variety of different things.” (AR 906.) Plaintiff stated she was not ready to return to work because of her symptoms. (AR 906.) On April 26, 2017, Plaintiff stated all her symptoms and stressors had increased, and she reported problems with her children. (AR 909.)

         On April 13, 2017, Dr. Gonzalez completed a Medical Opinion Questionnaire regarding Plaintiff's mental impairments. (AR 860-62.) Dr. Gonzalez diagnosed Plaintiff with mood disorder with mixed features and borderline personality disorder. (AR 860.) Dr. Gonzalez opined that Plaintiff had poor or no ability to accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes, and deal with stress of semiskilled and skilled work. (AR 860-61.) Dr. Gonzalez opined that Plaintiff had fair ability to interact appropriately with the general public, maintain socially appropriate behavior, maintain attention for two hour segment, complete a normal workday, respond appropriately to changes in a work setting, and deal with normal work stress. (AR 860-61.)

         Dr. Gonzalez opined that Plaintiff had good ability to use public transportation, sustain an ordinary routine without special supervision, work in coordination with others, make simple work-related decisions, perform at a consistent pace without an unreasonable number and length of rest periods, ask simple questions, and set realistic goals. (AR 860-61.) Dr. Gonzalez opined that Plaintiff had unlimited or very good ability to adhere to basic standards of neatness and cleanliness, travel in unfamiliar places, remember work-like procedures, understand, remember and carry out very short and simple instructions, maintain attention for two-hour segments, maintain regular attendance and be punctual within customary, usually strict tolerances, be aware of normal hazards and take appropriate precautions, understand and remember detailed instructions, and carry out detailed instructions. (AR 860-61.) Dr. Gonzalez also opined that Plaintiff's mental impairments would cause her to be absent from work about twice per month. (AR 861.)

         6.Mary McDonald, Ph.D.

         On September 16, 2014, and September 23, 2014, Plaintiff underwent a consultative examination with psychologist Mary McDonald. (AR 683-88.) During the interview portion, Plaintiff reported suffering from memory loss and concentration problems. (AR 684.) Plaintiff was “tearful and sad and cried several times during both interviews.” (AR 684.) Dr. McDonald observed Plaintiff was “tearful, irritable, and very slow in responding to the tests.” (AR 685.) Plaintiff reported feeling “overwhelmed, irritable, and sad, ” and reported memory loss. (AR 685.) Dr. McDonald noted Plaintiff was prescribed to take 60 milligrams of Cymbalta and 150 milligrams of Lamotrigine daily. (AR 685.)

         Dr. McDonald opined that Plaintiff had symptoms of “a longstanding, long-term depressive disorder, ” and diagnosed her with unspecified depressive disorder, cannabis related disorder, and alcohol related disorder. (AR 687.) Dr. McDonald stated Plaintiff's “prognosis in terms of her ability to work is fair.” (AR 688.) Dr. McDonald opined that Plaintiff's ability to perform all work-related functions was “unimpaired, ” except for her ability to accept instructions from supervisors and respond appropriately to criticism, which was rated “unknown, ” and her social judgment, which was rated as “mildly unimpaired.” (AR 688.)

         7.State Agency Physicians

         State agency physician Harvey Bilik, Psy.D., reviewed the record and assessed Plaintiff's mental RFC on October 9, 2014. (AR 100-09.) Dr. Bilik opined that Plaintiff had affective disorders and had mild restrictions on activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence or pace. (AR 107.) Upon reconsideration on January 16, 2015, another state agency physician, Elizabeth Covey, Psy.D., reviewed the record and affirmed Dr. Bilik's findings. (AR 111-20.)

         B. ...