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Cruz v. Astrue

September 28, 2010


The opinion of the court was delivered by: Yohn, J.


Plaintiff, Yvette Cruz, appeals the denial of her claim for Social Security Supplemental Security Income ("SSI") by the Commissioner of Social Security ("the Commissioner"). She seeks judicial review under 42 U.S.C. § 1383(c)(3) (2006), which incorporates 42 U.S.C. § 405(g) by reference. I referred the matter to Magistrate Judge David R. Strawbridge , who submitted a Report and Recommendation ("R&R") recommending that I affirm the Commissioner's decision. Plaintiff filed objections to the R&R. Plaintiff argues in her objections that the Administrative Law Judge's ("ALJ's") determination lacked substantial evidence to support it because (1) the ALJ posed an improper hypothetical question to the vocational expert ("VE") by failing to specify how often plaintiff was required to alternate between sitting and standing, and (2) the ALJ lacked substantial evidence to support his rejection of the opinions of plaintiff's mental-health treatment providers with respect to her global level of functioning.

I conclude that the ALJ's hypothetical to the VE was proper because at least some of the jobs the VE identified would permit plaintiff to sit or stand at will. I also conclude that there was substantial evidence to support the ALJ's rejection of the opinions of plaintiff's mental-health treatment providers. I will therefore approve and adopt the R&R and affirm the ALJ's decision.

I. Factual and Procedural History

Plaintiff was forty-two years old at the time of the application giving rise to this appeal. She has a tenth-grade education and a "limited work history comprised of jobs maintained for relatively short periods of time" and has not engaged in any substantial gainful activity since August 31, 2003, her alleged date of disability onset. (ALJ Dec. 3.)

Plaintiff currently lives with her niece, nine years old at the time of plaintiff's first SSI application and thirteen years old at the time of the most recent hearing, whom she has raised since birth. (See R. 698-701, 241 (hearing testimony).)*fn1 Plaintiff's niece currently receives SSI payments as a result of a psychiatric impairment. (ALJ Dec. 6; R. 701 (hearing testimony).)

A. Psychiatric History

Plaintiff has been diagnosed with major depressive disorder ("MDD") with psychotic features, borderline personality disorder ("BPD"), and post-traumatic stress disorder ("PTSD") resulting from multiple experiences of sexual abuse during her childhood. She has received mental-health treatment since 2003 at the Crozer-Chester Medical Center/Community Behavioral Health Services ("Crozer CBHS"), where she sees both a psychotherapist and a psychiatrist.

At intake at Crozer CBHS, plaintiff reported that she was molested by her stepfather from the age of eighteen months to five years. She was also molested by her mother's stepsister at age eight and by the uncle of a friend at age thirteen. (R. 121.) She reported suffering from flashbacks of this abuse (R. 122, 128) and from "blackouts" (R. 129). Plaintiff also reported physical abuse by an ex-husband. (R. 126; see also R. 512 (treatment note).)

During the course of her treatment at Crozer CBHS from 2003 to 2007, plaintiff received individual psychotherapy with a licensed clinical social worker once or twice per week.*fn2 (R. 445-548, 661-82 (treatment notes).) She also has seen a psychiatrist on a monthly basis, who has prescribed a variety of psychotropic medications, including Remeron,*fn3 Seroquel,*fn4 Trazodone,*fn5 Wellbutrin XL,*fn6 Effexor XR,*fn7 Paxil,*fn8 Abilify,*fn9 and Klonopin.*fn10 (Id.; R. 567-73, 686- 87 (medication logs).) As of February 15, 2008, plaintiff was taking a low dose of Remeron, Klonopin, and Abilify, a high dose of Paxil, and a very high dose of Seroquel. (R. 686.) Plaintiff also attended group therapy at some point during her treatment. (R. 476.) Although one treatment note states that plaintiff was considering hospitalization if she could arrange for child care during that time (R. 446), there is no indication in the record that plaintiff was ever hospitalized for her psychiatric condition or that she required a highly structured or supportive residential environment such as a halfway house or group home. (ALJ Dec. 6.)

Plaintiff's treatment providers at Crozer CBHS consistently assigned plaintiff Global Assessment of Functioning ("GAF") scores of 45-50 beginning June 6, 2003, after a psychiatric assessment given to new patients. (R. 121-29)A GAF score of 45-50 reflects "serious" symptoms, such as suicidal ideation or severe obsessional rituals, or "serious" functional impairments, such as inability to maintain friendships or inability to keep a job. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV") 34 (4th ed. 1994).*fn11 After the initial assessment, the same score was listed on periodic treatment update forms, the last of which is dated September 19, 2007. (R. 116-20, 129, 206-09, 420-22, 661-62.) Dr. Sherry Zhang, plaintiff's psychiatrist, also assigned plaintiff a score of 45 in a Mental Impairment Questionnaire ("MIQ") dated April 5, 2006. (R. 158-63) Plaintiff's treatment providers have often described her as "cooperative," "alert," "well-groomed," or "coherent" (see, e.g., R. 456, 480, 491, 513, 681), while her mood was often "depressed," "tearful," or "labile" (R. 420-567, 661-82).*fn12 At times plaintiff has reported "flashbacks" of her experiences of abuse or visual hallucinations in the form of a "shadow." (R. 121, 445, 476, 480, 498, 509, 513, 681.) She has denied any suicidal or homicidal ideation throughout most of the course of her treatment. (See R. 420-567, 661-82; but see R. 476 (June 13, 2005, treatment note describing "off and on" suicidal ideation).)

Plaintiff also has a history of family stressors and interpersonal conflicts. In October 2004, plaintiff's niece, aged eight at the time, was molested by a man who was living with plaintiff's mother. (R. 499-500.) Following this incident, plaintiff reported increased flashbacks of her own molestation and increased stress, depression, anxiety, and insomnia. (R. 211, 201-02); (see also, e.g., R. 193 (describing legal proceedings against stepfather).) Nevertheless, plaintiff responded "appropriately" to the incident by contacting the police. (R. 499-500.) Plaintiff also reported ongoing conflict with her family members, neighbors, and boyfriend. (See, e.g., R. 451-53, 469, 471-72, 477-79, 482, 492, 496, 500, 677.) She has also occasionally been involved in verbal and physical altercations with strangers or secondary acquaintances. (R. 458, 546-47, 668.)

On November 23, 2004, following a review of plaintiff's treatment records, a state agency psychologist, Louis Poloni, Ph.D., completed a psychiatric review technique form and mental residual functional capacity ("RFC") assessment. The psychologist diagnosed plaintiff with MDD and PTSD and found that plaintiff had mild restriction in activities of daily living and moderate restrictions in maintaining social functioning and maintaining concentration, persistence, and pace. (See ALJ Dec. 4; R. 142-57.) The psychologist noted that the record did not document any episodes of decompensation*fn13 and that plaintiff had never been hospitalized because of her mental impairments. (See ALJ Dec. 4; R. 142-57.) As to plaintiff's RFC, the psychologist noted that plaintiff had moderate limitations in maintaining attention and concentration for extended periods, remembering detailed instructions, interacting appropriately with the general public, accepting criticism from supervisors, and responding appropriately to changes in the work setting. (See ALJ Dec. 4; R. 142-57.)

On April 5, 2006, Dr. Zhang completed a medical source statement in which she stated that plaintiff has a moderate restriction in activities of daily living and marked limitations in maintaining social functioning and maintaining concentration, persistence, and pace. She stated that plaintiff had experienced three episodes of decompensation, but failed to provide any information regarding when or how the episodes occurred, and concluded that a minimal increase in mental demands would most likely cause her to decompensate. (See ALJ Dec. 4-5; R. 158-63.) Dr. Zhang completed another medical source statement on March 17, 2008, which made similar findings. (See ALJ Dec. 5.)

On June 11, 2007, another state agency psychologist, Roger Fretz, Ph.D., completed a psychiatric review form and mental RFC assessment after reviewing plaintiff's records. Dr. Fretz found that plaintiff had MDD, an anxiety disorder, and BPD. (See ALJ Dec. 5; R. 590-605.) Though he found that plaintiff had experienced one or two episodes of decompensation, his other findings and conclusions were similar to those of Dr. Poloni. (ALJ. Dec. 5; R. 590-605.) Dr. Fretz concluded that plaintiff had a mild restriction in activities of daily living, moderate difficulties in maintaining social functioning and moderate difficulties in maintaining concentration, persistence, or pace. (ALJ. Dec. 5; R. 590-605.) He also stated that plaintiff had moderately limited ability to maintain attention and concentration for extended periods and to respond appropriately to changes in work setting. (ALJ. Dec. 5; R. 590-605.)

B. Orthopedic History

Plaintiff suffers from lumbar disc disease at L4-5 and L5-S1. (ALJ Dec. 10.) Patrick Murphy, D.O., performed a consultive evaluation of plaintiff on June 22, 2007, in which he stated that plaintiff was not capable of the full range of sedentary work and needed to sit or stand "at [her] option" because of chronic back pain. (Id.; R. 612 (Medical Source Statement by Dr. Murphy).) On June 29, 2007, a state agency consultant completed a physical RFC assessment, in which he stated that plaintiff could perform light work provided that it required only occasional postural activities. The state agency consultant stated that plaintiff's pain was controlled relatively effectively with medication and that plaintiff's statements regarding her daily activities were not consistent. (ALJ Dec. 10; R.616-22.)

On August 24, 2007, plaintiff underwent lumbar laminectomy at L4-5 and L5-S1. (ALJ Dec. 10; R.616-22.) Plaintiff continued to complain of back pain after that surgery and was subsequently diagnosed with epidural fibrosis at L4-5 and L5-S1 in addition to lumbar disc disease. (ALJ Dec. 10; R.616-22.) This diagnosis was confirmed by X-ray, MRI, and EMG imaging. (Id.) On February 15, 2008, plaintiff underwent spinal fusion surgery. (ALJ Dec. 10; R.616-22.) Plaintiff testified that she has used a cane since her August 2007 surgery. (ALJ Dec. 9; R. 698.) She also testified that she can usually sit for only fifteen minutes at a time before having to stand, that she can lift a gallon of milk with both hands by "hug[ging] it," that she needs assistance to unload a washing machine, and that she can walk for about five minutes before needing to rest. (See ALJ Dec. 9; R. 703-04).

C. SSI Claims*fn14

Plaintiff filed the application that gives rise to this appeal on August 4, 2004, alleging disability due to MDD and PTSD beginning on August 31, 2003. Her application was initially denied and a hearing took place before an ALJ on May 18, 2006. On July 5, 2006, the ALJ issued an unfavorable decision. Specifically, the ALJ found that (1) plaintiff had not engaged in substantial gainful activity since August 31, 2004; (2) plaintiff had MDD with psychotic features and PTSD, both of which were "severe" within the meaning of Social Security regulations; (3) plaintiff's impairments did not meet the listed requirements in 20 C.F.R. Part 404, Subpart. P, Appendix 1 ("Appendix 1"); (4) plaintiff was able to perform "work consisting of simple, routine tasks not requiring more than occasional contact with supervisors and co-workers and requiring no contact with the public; and (5) there were jobs that existed in the national economy that plaintiff could perform.

The Appeals Council denied plaintiff's request for review on September 19, 2006, and plaintiff appealed to this court on October 24, 2006. I referred the matter to a magistrate judge, who concluded on August 15, 2007, that the ALJ erred by (1) failing to address GAF scores assigned to plaintiff by her mental-health treatment providers and (2) failing to include all of plaintiff's mental limitations in a hypothetical question to the VE. Neither party objected, and I approved and adopted the R&R and remanded the matter to the Commissioner on ...

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