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Martinez v. Commissioner of Social Security

March 16, 2009

ELSA E. MARTINEZ, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the consent of the parties, this case is before the undersigned for final decision on plaintiff's motion for summary judgment (Doc. 18) and defendant's cross-motion for summary judgment (Doc. 19).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on July 7, 2005. In the application, plaintiff claims that disability began on February 27, 2004. Plaintiff claims that disability is caused by a combination of grand mal seizures, depression, borderline intellectual functioning, and visual perception disorder. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on December 13, 2006, before Administrative Law Judge ("ALJ") William C. Thompson, Jr. In a February 23, 2007, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has not engaged in substantial gainful activity since February 27, 2004;

2. The claimant has the following severe impairments: a seizure disorder; borderline intellectual functioning; and depression;

3. The claimants impairments do not meet or medically equal an impairment set forth in the Listing of Impairments;

4. The claimant retains the following residual functional capacity: unable to climb ladders, ramps, and scaffolds; unable to work in hazardous settings, such as unprotected heights or near dangerous machinery; able to follow simple instructions; limited to work requiring only restricted contact with the general public and co-workers; unable to perform work as part of a team;

5. The claimant cannot perform past relevant work; and 6. Considering the claimant's age, education, work experience, and residual functional capacity, a significant number of jobs exist in the national economy which claimant can perform.

After the Appeals Council declined review on July 27, 2007, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

August 26, 2003 -- Jinmei Woan, M.D., performed a neurological examination and submitted a report. See CAR 156-57. Dr. Woan reported the following history:

Elsa . . . is a 42-year-old female who was diagnosed with seizures when she was 14 years old. She was treated with Phenobarbital and Dilantin for about 5 years and then it was discontinued. She denies any seizures since she was 19 years old until this July when she had one seizure. Then on August 6 she had the second one this year. Both episodes occurred while she was at work as a new car inspector. . . .

Dr. Woan also reported that, after the August seizure, plaintiff went to the emergency room and was placed on Phenytoin 300 mg a day and "[s]ince then has not had recurrence of seizures." Based on this history and a physical examination, Dr. Woan assessed "[s]eizure disorder, partial with secondary generalization." She did not offer any functional assessment.

September 10, 2003 -- Dr. Woan reported on an EEG performed on plaintiff. See CAR 155. Dr. Woan reported that plaintiff had one seizure in July 2003, and another on August 6, 2003. The doctor offered the following interpretation of the EEG testing data:

The background consisted of 8 to 9 cycles-per-second alpha rhythm bilaterally and symmetrically, maximum in posterior head region. This activity was reactive to eye opening. Occasional 4 to 7 cycles-per-second theta rhythm and low amplitude beta activity was recorded from anterior head region bilaterally and symmetrically. When she went to sleep there were symmetrical vertex sharp waves. [¶] Hyperventilation and photic stimulation induced no abnormality.

September 18, 2003 -- Treatment notes by Dr. Woan indicate "[n]o sz. so far."

See CAR 153.

December 29, 2003 -- Treatment notes by Dr. Woan show that plaintiff reported no recent seizures. See CAR 152.

March 15, 2004 -- Treatment notes by Dr. Woan indicate that plaintiff's last seizure was on December 6, 2003, despite having reported no recent seizures on her previous visit at the end of December 2003. See CAR 150.

November 22, 2004 -- Dr. Woan performed a neurological examination of plaintiff and submitted a report. See CAR 147-48. Plaintiff was referred for uncontrolled seizures. Dr. Woan outlined the following clinical history:

Elsa . . . is a 43-year-old female who is known to have seizures since she was 14 years old. . . . She did not have any seizures until 2003 when she started having seizures again. At that point she was placed back on Dilantin. Until March 2004 she was on Dilantin. Initially it was 300 mg a day and then increased to 400 mg a day but she started having seizures again while on 500 mg Dilantin. Since March she has been out of medication and did not seek refill to continue on medication. The main reason was that she lost her job and had no insurance and no money to buy medication or to see a doctor.

At the present time she states she just got medical insurance, so she is looking for neurological care again. She says she is having 4-5 seizures a month. The last seizure was on 11/15/04 and the one prior to that was 11/5. She has had some injuries to various parts of the body including her teeth. On 11/5 she went to emergency room where she had blood tests. She says she was loaded with anti-convulsant before she went home but she did not take any medication after she was discharged from the emergency room.

The seizures are generalized and preceded with some confusion. She also complains of some memory difficulty. She is currently not driving as she was restricted from doing so. For the last one month she has had headaches that occur once a week and are located in right parietal region pressure sensation.

Plaintiff told Dr. Woan that she lost her job at a car dealership due to the driving restriction. Based on this history and a physical examination, Dr. Woan assessed "[u]ncontrolled seizures secondary to not taking anti-convulsant." Dr. Woan did not offer any opinion as to plaintiff's functional capacity.

November 22, 2004 -- Treatment notes by Dr. Woan reveal that plaintiff ran out of Dilantin in May of that year. See CAR 149. Plaintiff's last seizures occurred on November 15, 2004, and November 5, 2004.

November 23, 2004 -- Treatment notes by Dr. Woan indicate that plaintiff had a seizure that morning. See CAR 146. Medication was continued.

December 28, 2004 -- Treatment notes by Dr. Woan indicate that plaintiff had seizures on November 23, 2004, and December 17, 2004. See CAR 145. Plaintiff's medications were continued.

January 28, 2005 -- Treatment notes by Dr. Woan indicate no seizures "since last seen." See CAR 143. Plaintiff's medications were continued without change.

March 24, 2005 -- Treatment notes by Dr. Woan reference a seizure at the end of February 2005. Plaintiff's medications were continued.

April 29, 2005 -- Treatment notes by Dr. Woan refer to a recent seizure during a trip to Los Angeles.*fn1 See CAR 141. Plaintiff complained of hair loss and her nails turning yellow. Medication was continued.

June 21, 2005 -- Treatment notes by Dr. Woan indicate that an MRI was not approved. See CAR 139. The notes do not reveal any recent seizures.

July 19, 2005 -- Treatment notes by Dr. Woan suggest that plaintiff had a seizure on July 16, 2005. See CAR 138. Dr. Woan assessed uncontrolled seizure disorder.

August 5, 2005 -- Plaintiff's niece, Teresa Rivera, submitted a third-party "Function Report -- Adult" concerning plaintiff's daily activities and abilities. See CAR 91-98. Ms. Rivera stated that plaintiffs daily activities consist of "taking care of children and house." She added that plaintiff has three children living at home. Plaintiff also cares for pets, with the help of her children. Ms. Rivera stated that plaintiff has no difficulty with personal care activities. Regarding house chores, she stated that such activities are an "all day thing" because plaintiff needs to rest between chores. She also stated that plaintiff does grocery shopping twice a month with the assistance of her children and that each outing takes up to two hours.

Regarding mental capabilities, Ms. Rivera stated that plaintiff is able to pay bills, count change, handle bank accounts, and use a checkbook. As to hobbies and interests, she stated that plaintiff reads, watches television, and does crossword puzzles. She stated that plaintiff finishes what she starts. Ms. Rivera stated that plaintiff has to read instructions out loud in order to understand written instructions and that spoken instructions must be repeated. She stated that plaintiff gets along well with authority figures (i.e., bosses, landlords, etc.) and can adapt, albeit slowly, to changes in routine.

As to plaintiff's seizures, Ms. Rivera stated that any interrupted sleep "provokes a seizure." She added that "[a]ny change of light can bring on a seizure." Ms. Rivera stated that plaintiff does not drive because "[s]he is a risk to the community." She stated that "any stress can trigger a seizure." She concluded by stating that the frequency and duration of plaintiff's seizures have increased with age.

August 6, 2005 -- Plaintiff submitted a "Seizure Questionnaire" outlining the history of her seizure disorder. See CAR 80-82. Plaintiff stated that she has had seizures for the past 29 years and that her last four seizures were on August 4, 2005, July 22, 2005, July 15, 2005, and June 10, 2005. She did not state how long the seizures last. She stated that she loses consciousness, has convulsions, bites her tongue, but does not lose bladder control. After the seizures, plaintiff feels worn out, achy, and low on energy "like I'd been hit by a truck." She stated that, after a seizure, it takes her "almost 8 to 10 hrs." to be able to resume normal activity. She stated that medications, which she has been taking for the past two or three years, work "very well" to control her seizure disorder.

August 8, 2005 -- Treatment notes by Dr. Woan indicate that plaintiff's last seizure was on August 4, 2005. See CAR 137. Plaintiff reported that she was not sleeping well due to construction near her house.

August 18, 2005 -- Plaintiff submitted a "Functional Report -- Adult" detailing information about her daily activities and abilities. See CAR 83-90. Plaintiff stated that, on a daily basis, she cleans, reads, prepares dinner, showers, eats, naps, and "go[es] into yard." She added that she does not need any help with household chores. Contrary to Ms. Rivera's statement, plaintiff stated that she does not care for any children or pets. Plaintiff stated that she has no problems with personal care activities.

As to mental capabilities, plaintiff stated that she is able to pay bills, count change, handle bank accounts, and use a checkbook. She also stated that she reads and does puzzles, but that puzzles take her a long time to finish. In order to understand what she is reading, she stated that she reads out loud and re-reads. Plaintiff stated that she has difficulty remembering, although she does not need reminders to take care of personal needs or take medication. She stated that she finishes what she starts. She also stated that she can only pay attention for up to 30 minutes at a time and, as to instructions, she has to read them "over & over again" to understand. She rated her ability to follow spoken instruction as "on a scale from 1 to 10, I would say '6.'" She stated that she ...


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