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Phillips v. Astrue

February 19, 2010

MARLA R. PHILLIPS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Frazier, Magistrate Judge

MEMORANDUM AND ORDER

This matter has been assigned to United States Magistrate Judge Philip M. Frazier pursuant to 28 U.S.C. 636(c) and Fed.R.Civ.P.73 for a Memorandum and Order. Plaintiff Marla R. Phillips ("Phillips") seeks judicial review of the final decision of the Social Security Administration ("SSA") denying her application for disability and disability insurance benefits filed on or about January 13, 2005. Phillips' application was denied by Administrative Law Judge ("ALJ") George Jacobs when he rendered a decision finding that Pound was not disabled (Tr. 13-27). That decision became final when the Appeals Council declined to review the ALJ's findings (Tr. 3-6). Judicial Review of the Commissioner's final decisions is authorized by 42 U.S.C. § 405(g).

For the reasons set forth below, IT IS ORDERED AND ADJUDGED that the final decision of the Commissioner of Social Security is AFFIRMED.

I. Findings of Fact

A. Procedural History

Phillips filed a concurrent claim for Social Security Disability benefits ("SSD") and Supplemental Security Income benefits ("SSI") on January 13, 2005, alleging disability since December 21, 2004 (Tr. 59-61 and 706-707). Her application was denied originally on July 22, 2005 (Tr. 42-46 and 701-705), and denied again after reconsideration on November 22, 2005 (Tr. 36-39 and 697-700). On January 17, 2006, Phillips requested an administrative hearing (Tr. 34 and 696).

A hearing was held on April 22, 2008 before an ALJ. By decision dated September 2, 2008, the ALJ found Phillips not disabled (Tr. 13-27). Ms. Phillips requested review of the ALJ's decision by the Appeals Council on September 24,2008 (Tr. 12), and counsel submitted comments in support of her claim on December 30, 2008 (Tr. 717-727). On April 1, 2009, the Appeals Council denied the request for review (Tr. 3-6).

B. Substantive History

1. Phillips' Medical History

On November 23, 2002, Phillips was admitted to the hospital with depressive thoughts, death wishes, and suicidal preoccupations (Tr. 330). Her hospital course was noted for continued depressive symptoms and frequent statements of suicidal ideation. Id. She did not start to have decreased symptoms until December 4, 2002. Id. She was discharged the following day. Id. Phillips was diagnosed with major depressive disorder, recurrent, borderline personality disorder, obesity, and chronic pain. Id. Her medications were Paxil, Hydroxyzine, Trazodone, and Vioxx (Tr. 331).

Phillips was readmitted to the hospital 11 days later when she attempted suicide by taking 28 pills of Atarax, 25 pills of Trazodone, and slashing her wrists (Tr. 313). At admission her GAF*fn1 score was 20. Phillips was started on Lexapro and Luvox, and she gradually improved until she was stable for discharge on December 23, 2002. Id. M. Gospodinoff, M.D. diagnosed major depressive disorder recurrent and severe with suicidal attempt, borderline personality disorder, and obesity (Tr. 313-314).

Phillips was again admitted to the hospital on July 7, 2004 for suicidal ideation and severe depression (Tr. 476). She remained an inpatient through July 15, 2004. Id. Dr. Hoyer noted that Phillips displayed almost no symptoms of depression, had chosen not to participate in the treatment opportunities made available, and "appear[ed] to be treating her hospital stay as more of a vacation than a treatment program (Tr. 486). It was noted that she was very reluctant to participate in psychological testing and found to have limited cognitive functioning. Id. She was started on Lexapro and diagnosed with major depressive disorder, recurrent, without psychosis, borderline personality disorder, and diabetes. Id.

In August 2004, state agency psychologist Dr. Schulman noted that Plaintiff had failed to follow through with her applications for benefits, and there was insufficient evidence in the record to find any medically determinable mental impairment (Tr. 632-44).

Phillips again attempted suicide in January, 2005, and was admitted to the hospital (Tr. 302). Dr. Gilbert-Johnson diagnosed her with major depressive disorder, recurrent; social anxiety disorder and borderline personality disorder (Tr. 303). He noted that "she likes to order things in a nice way in her kitchen but doesn't spend a long time doing that. However, she was diagnosed [in the past] because of this behavior with OCD which is questionable" (Tr. 306). He adjusted Plaintiff's medication, and at the time of her discharge three days later, she was "cheerful and not depressed or anxious, [and] had no suicidal ideation or psychotic symptoms"; Dr. Gilbert-Johnson assigned her a GAF score of 70 at that time (Tr. 302).

Phillips went to Egyptian Health in February, 2005 when she reported between mild and moderate distress (Tr. 229). She indicated that she did not need assistance with activities of daily living, but had difficulty with face-to-face interactions (Tr. 235). Social worker Bates diagnosed her with major depressive disorder, recurrent with psychotic features, and borderline personality disorder, and assigned her a GAF of 45; she also found that Phillips had moderate impairment in her social functioning (Tr. 238-39). She recommended therapy and case management, as well as a psychological/psychiatric assessment (Tr. 240-41).

In March, 2005 Phillips was admitted to the hospital with homicidal ideation and auditory hallucinations (Tr. 293). Dr. Gilbert-Johnson adjusted her medication and she was discharged three days later with a GAF of 75 (Tr. 294). Later that month, psychologist Dr. Warshauer examined Plaintiff in connection with her application for benefits (Tr. 448-50). She told him that she had been convicted of welfare fraud and denied substance abuse (Tr. 449). He diagnosed her with depressive disorder and borderline personality disorder, the latter of which he described as quite severe (Tr. 450). He assigned her a GAF of 45 (Tr. 450).

In May, state agency psychologist Dr. Hudspeth found that, based on her depressive disorder and borderline personality disorder, Phillips had mild limitations in her activities of daily living and in maintaining concentration, persistence or pace; moderate limitations in social functioning; and one or two episodes of decompensation (Tr. 411-23). He opined that her cognition, memory and thought processes were intact, and that she would be "best suited in job tasks requiring no contact with the public, and minimal contact with co-workers and supervisors" (Tr. 427).

Dr. Chandra saw Phillips three times from June through December (Tr. 253-54). Plaintiff also saw physician assistant Elsamahi in February, April, June and August (Tr. 393-97). He noted anger, irritability and mood swings, with some reported improvement; he adjusted her medication (Tr. 393-97).

Phillips was admitted to the hospital in March, 2006 after a suicide attempt; she also reported hearing voices telling her to kill others and herself (Tr. 281, 283). Her medication was adjusted, and she "improved rather fast and the depression disappeared quickly" (Tr. 281). Phillips was discharged four days later6, at which time "her functioning... was good" (Tr. 281-82). Dr. Qureshi diagnosed her with major depressive disorder, recurrent; generalized anxiety disorder; and panic disorder with agoraphobia; and assigned her a GAF of 65 on discharge (Tr. 282). He also noted her borderline personality disorder (Tr. 282, 285).

In April, 2006 Elsammahi evaluated Phillips' mental ability to do work-related functions, even though he indicated on the form that he had treated Phillips into 2007 (Tr. 212). He wrote that she had severe anxiety, very frequent panic attacks, frequent depressive episodes, and was chronically tired and irritable; he also assigned her a GAF of 55 and noted her borderline personality disorder (Tr. 212). He found that she had essentially no limitations in the area of memory; a variable range of ability to maintain concentration and pace; mostly moderate to marked limitations in the area of social interaction; and mostly no to mild limitations in the area of adaptation (Tr. 215-17). He felt that Phillips was incapable of low stress work, and that she would be absent at least three times per month (Tr. 218-19). Elsamahi also wrote that Phillips could not function normally in public or around strangers; lacked the energy to attend work regularly; could not receive direction or instruction due to her irritability and anger; and could not tolerate normal workplace stressors (Tr. 259).

There is no record of any treatment at all in 2007.

In August, 2008 psychiatrist Dr. Handwerk completed a form entitled "Psychiatric/Psychological Impairment Questionnaire" (Tr. 174). She acknowledging that she had only treated Phillips over the span of roughly five months in 2007 on an "irregular" basis (Tr. 174). She based her opinions on Phillips' bipolar disorder, PTSD, panic disorder, generalized anxiety disorder and borderline personality disorder (Tr. 174). She assigned Phillips a GAF of 30 (Tr. 174). She noted that Phillips was severely depressed with suicidal ideation, and she opined that Phillips had mostly marked limitations in the area of social interactions and the ability to maintain concentration and pace, as well as mostly mild limitations in the areas of adaptation and understanding and memory (Tr. 177-79). She felt that Phillips could not tolerate even low stress work due to her frequent decompensation (Tr. 180). She also opined that Phillips would miss at least three days of work every month (Tr. 181).

2. SSA Hearing

a. Phillips' Testimony

Phillips testified that she was twenty-eight years old as of the hearing (Tr. 734). She said she was a high school graduate and had experience as a certified nursing assistant and a housekeeper/cleaner in medical services (Tr. 736-37, 753).

Phillips testified that she was had arthritis, asthma, heart problems, difficulty breathing, and difficulty walking and standing (Tr. 738). She reported having pain in her knees, mainly when there were weather changes (Tr. 738-739). She alternated between using heat and ice to treat her pain, which helped "a little" (Tr. 741). Phillips stated that her weight put a lot of stress on her heart, and her asthma made breathing hard (Tr. 739). Phillips estimated that she could sit 2 hours total and stand or walk 3 or 4 hours total in an 8-hour workday (Tr. 747-748). She also reported that she was diagnosed with mental conditions of bi-polar disorder, borderline personality disorder, post-traumatic stress disorder, obsessive-compulsive disorder, generalized anxiety disorder, and agoraphobia, which impacted her ability to work (Tr. 741-742). As a result, she sometimes did not have the desire to get out of bed, did not take directions well or being criticized, and she had racing thoughts (Tr. 742). Phillips stated she was hospitalized 12 times for her emotional problems since 2002. Id. She reported having nightmares every night and flashbacks during the day related to her PTSD which were not precipitated by anything ...


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