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Sharon A. Schreiber v. Michael J. Astrue Commissioner of Social Security.

May 23, 2012


The opinion of the court was delivered by: Hon. P. Michael Mahoney U.S. Magistrate Judge


I. Introduction

Sharon A. Schreiber seeks judicial review of the Social Security Administration Commissioner's decision to deny her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the magistrate judge pursuant to the consent of both parties, filed on July 8, 2010. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed for SSI and DIB on September 13, 2006. (Tr. 112, 115.) She alleges a disability onset date of December 2, 2005. (Tr. 112, 115.) Her claim was denied initially and on reconsideration. (Tr. 49, 57.) The Administrative Law Judge ("ALJ") conducted hearings into Claimant's application for benefits on May 15, 2008. (Tr. 21.) At the hearing, Claimant was represented by counsel and testified. (Tr. 21-46.) Ms. Keer, a Vocational Expert (hereinafter referred to as "VE") was also present and testified. (Tr. 21-46.) The ALJ issued a written decision denying Claimant's application on September 3, 2008, finding that Claimant was able to perform past relevant work as an assembler and machine operator. (Tr. 19-20.) Because the Appeals Council denied Claimant's Request for Review regarding the ALJ's decision, that decision constitutes the final decision of the Commissioner. (Tr. 3.)

III. Hearing

Claimant testified to the following at her hearing with the ALJ: She was 43 years old, married, and lived with her husband and son. (Tr. 26.) She completed high school and took a few college courses, but has no other formal vocational training. (Tr. 27.) She served in the U.S. Navy for one year and was honorably discharged for a medical reason. (Tr. 27.) Claimant last worked in December 2005 when she tried to run her own business. (Tr. 27.) She was in charge of nearly everything at the business, including opening the store, doing all of the work, cleaning everything, and closing down the store around 11 at night. (Tr. 28.) She had "breakdown" shortly after opening the store and could not work. (Tr. 28.) She attempted to work again after going on medications, but was unable to do so and had to sell the business in June 2006. (Tr. 28.)

Claimant takes Effexor, Lamictal, Geodon, Xanax, and naproxen sodium for her symptoms. (Tr. 29.) The medications help her to feel better but do not give her everything she needs to fix her problems. (Tr. 29.) The side effects she experiences include blurred vision, heart palpiltations, weakness, grogginess, headaches, and weight gain. (Tr. 29-30, 39-40.)

A typical day involves waking her son up around seven in the morning and getting him ready for school. (Tr. 30.) On most days, Claimant drives him to school and is home by 8:30 A.M., at which point she will sometimes lay back down until around noon. (Tr. 30-31.) On days where she feels okay, she will sit on the couch or go visit her mom until early afternoon. (Tr. 31.) She sometimes goes online to chat with others who have her condition and waits for her son to come home. (Tr. 31.) She tries to help her son with homework, and waits for her husband to come home. (Tr. 32.) On good days, she will try to get the kitchen ready so her husband can cook when he gets home. (Tr. 32.) In the evenings, she tries to sit and spend time with her family. (Tr. 32.)

Claimant is able to dress and groom herself. (Tr. 32.) She does some grocery shopping, but her husband usually does it. (Tr. 33.) She does a minimal amount of household chores, and will work in the yard about once a week. (Tr. 33.) She sees friends about once every two weeks, and has a friend who she talks to on the phone every day. (Tr. 36.)

She experiences panic and anxiety that make it difficult for her to be around people. (Tr. 34.) Her problems getting along with people are caused by mood swings, getting irritated easily, and a few verbal conflicts with others. (Tr. 37.) Claimant believes her biggest problem is with concentration and losing focus. (Tr. 37-38.) In general, she believes she is only capable of being productive for about two good hours in a day. (Tr. 41.)

Claimant has panic attacks anywhere from zero to three times per day, and believes she experiences an average of about two per day. (Tr. 34, 38.) When she has an attack, her heart pounds and she gets very shaky and confused. (Tr. 34.) Each attack can last for up to a few hours. (Tr. 34.) She takes Xanax to get the panic attacks under control but it makes her very tired. (Tr. 38.) At times she is able to regain control almost immediately, and other times it can take up to a day or two. (Tr. 38.) The prolonged attacks happen two or three times per month. (Tr. 39.) After taking the Xanax, Claimant's fatigue and headache make it so she is not capable of anything for the remainder of the day. (Tr. 40.)

She was treated by a physician, Dr. Belford, since 1995. (Tr. 35.) She used to see him once every three months, but now goes in once every two months. (Tr. 35.) She was in daily group counseling for a few weeks in 2007 while she was seeing a therapist. (Tr. 35-36.) The visits to the therapists were on-and-off for about six months on a weekly basis, but Claimant did not find them helpful and they were discontinued. (Tr. 36.)

The VE described Claimant's past work as a general office clerk as light but having been performed at the sedentary level, low in the semiskilled range, and non-transferable in terms of skills. (Tr. 43.) Claimant's past assembly work was categorized as light and unskilled, and her machine operator work was considered medium and unskilled. (Tr. 43.) The VE testified that a person of the claimant's age, education, and work history who was limited to simple tasks in a setting with limited social or interpersonal demands and with no more than simple changes in the work setting could do Ms. Schreiber's past relevant work as an assembler or machine operator. (Tr. 43.) If the Claimant were found to be credible in her description of all of her impairments, the VE stated that she could not sustain full-time employment because her panic attacks would take her off task for 10 to 15 percent of the workday. (Tr. 44.) The VE explained that a worker needs to sustain pace and productivity 85 percent of the time in an non-manufacturing context and 90 percent of the time in simple manufacturing jobs. (Tr. 45.)

IV. Medical Evidence

The earliest note in Claimant's medical record appears to be from an appointment in January 2005 with her physician, Dr. Mary E. Belford, M.D. (Tr. 313.) Dr. Belford described the appointment as a fifteen minute medical check, and noted that Claimant's health had been fine. (Tr. 313.) She was tolerating her medication without trouble. (Tr. 313.) Her irritability was reported as minimal, her moods more stable, her anxiety under control, her sleep and appetite fine, her affect bright, and her work was going fine. (Tr. 313.) Claimant was reportedly volunteering at a friend's horse stable in order to be able to ride the horses more often. (Tr. 313.) A follow-up medication check on May 2, 2005 revealed similar findings. (Tr. 314.)

On December 19, 2005, Claimant called Dr. Belford's office to report that she was a mess after recently attempting to start her own business, a combination of a coffee shop and video rental store. (Tr. 211, 315.) Claimant had been feeling so well prior to starting the business that she had weaned herself off of Paxil and started taking St. John's Wort, and believed she could successfully start and run the business. (Tr. 211.) She reported that her business ran well for four days, but then she closed it because she was not able to handle the anxiety of running it. (Tr. 315.) She stated that she could not stop crying, that her daughter moved out to stay with Claimant's mom, that she had a poor appetite, poor sleep, mood swings, low confidence, and low self esteem. (Tr. 315.) Claimant was advised to take her proper medication dosage, get enough sleep, and look for help with her business. (Tr. 315.) Claimant had a follow-up appointment on January 19, 2006 with similar reported symptoms. (Tr. 202.) Claimant stated that the store she had opened remained closed, that they had many bills because of the store, and that she believed she made a mess of things. (Tr. 202.) Dr. Belford's findings were that Claimant was well groomed with good hygiene, but showed impaired judgment; demonstrated no understanding of her present illness; demonstrated no understanding of her need for treatment; appeared agitated and anxious; cried during the exam; had increased problems making decisions; had a moderately depressed affect; and had no suicidal plan. (Tr. 202.) A subsequent appointment on January 26, 2006 revealed similar reported symptoms and findings. (Tr. 204.)

Claimant reported feeling better at an appointment on February 8, 2006. (Tr. 205.) She said she began to feel better within days of starting to take Zyprexa for her symptoms. She reported that she was sleeping better, eating better, had stopped losing weight, stopped experiencing diarrhea, and was able to concentrate better. (Tr. 205.) Claimant reportedly had worked through some problems with the business and allowed a neighbor to take it over. (Tr. 205.) Her husband and family remained supportive. (Tr. 205.) Dr. Belford advised that it would take a few weeks for Claimant's prescribed medication of Effexor to kick in, and at that point she could wean down on Zyprexa. (Tr. 205.) Claimant reported continued improvement of nearly all of her symptoms at a February 20, 2006 appointment. (Tr. 207.)

On April 5, 2006, Claimant reported to Dr. Belford that she felt she was sinking back to her old symptoms. (Tr. 209.) Notes indicate that Claimant's appetite had decreased, that she was crying excessively, and that she had feelings of hopelessness and sadness, though she was still sleeping better. (Tr. 209.) Claimant was prescribed Paxil to replace Abilify, and continued on her prescription for Zyprexa. (Tr. 209.)

On April 21, 2006, Claimant was hospitalized after reporting that she woke up every morning disappointed that she was not dead. (Tr. 211-12.) Notes on her history of present illness indicate a history of tremendous anxiety and depression, which were controlled for several years through Paxil. (Tr. 211.) Claimant felt well enough to wean off the Paxil and on to St. John's Wort. (Tr. 211.) After attempting to start her business, she went back on Paxil and felt that it was not working. (Tr. 211.) Claimant reported that she was tremulous, anxious, irritable, and could not concentrate. (Tr. 211.) She had lost a total of 35 pounds due to a loss of appetite. (Tr. 212.) Claimant's husband reported that she wanted to sleep all the time. (Tr. 212.) During her stay, she never admitted to an active plan to harm herself, but Claimant showed passive suicidal ideations and had many crying spells. (Tr. 215-16.) Claimant felt that she had started her business during a hypomanic episode where she took on more than she could handle. (Tr. 216.) Claimant was assessed as having bipolar disorder and an Axis V current level of functioning score of 20.*fn1 (Tr. 236.) On discharge, Claimant was denying any intention of harming herself or anyone else; had no hallucinations; was sleeping and eating better; was crying less; and had stabilized on her medication. (Tr. 249.) Her discharge diagnosis included bipolar disorder and panic disorder, though no GAF score was listed. (Tr. 249-50.)

On May 15, 2006, Claimant was admitted to Riverside Medical Center after complaining that she had thoughts of suicide. (Tr. 229.) Claimant repeated many of her prior symptoms, though she indicated that she recently had become upset and "went after her daughters" before realizing she needed more help. (Tr. 229.) She was diagnosed with major depressive disorder, recurrent, and found to have a GAF score of 45.*fn2 (Tr. 231.) Because Claimant had recently readjusted to new medications, including Depakote, she was encouraged to continue with the medications she was on and to attend group therapy. (Tr. 231.)

Claimant continued to see Dr. Belford in a series of visits through May, June, and July of 2006. (Tr. 218-23.) She was often tearful during the visits, but denied suicidal thoughts. (218-23.) She reported persistent feelings of sadness, hopelessness, and loneliness, and felt she was getting worse again. (Tr. 220.) Claimant did not believe that her medications were working very well, and stated that Klonopin was making her too drowsy. (Tr. 220.) Claimant had been attending psychotherapy, but stopped when she believed her insurance ran out for the year. (Tr. 222.) She was informed that her insurance would cover counseling, and pledged to begin attending sessions again. (Tr. 222.) Claimant was switched from Depakote, which she believed was not working, to Tegretol. (Tr. 222.) Notes from a September 25, 2006 appointment show that Claimant stated that she was miserable and continued to feel stressed about the financial situation her family was in. (Tr. 224.) She was again advised to pursue counseling, and stated that she would actually start going. (Tr. 224.) On November 7, 2006, Claimant reported that she was doing somewhat better, but basically felt numb and did not want to do anything. (Tr. 300.) She explained that she wanted to go back to counseling but her insurance would not allow it again until the next January. (Tr. 300.)

Claimant was examined by Dr. Erwin J. Baukus, Ph.D. on November 16, 2006 at the request of the state agency. (Tr. 274-48.) Claimant reported symptoms of depression and generalized persistent anxiety. (Tr. 275-76.) Claimant's affect was variable with moderate amplitude. (Tr. 277.) She was easily moved to tears and her mood was depressed. (Tr. 277.) Claimant reported being able to take care of her own personal hygiene and that she took care of her children, though she often let chores around the ...

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