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Prather v. Astrue

May 21, 2010

DONNA PRATHER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying plaintiff's application for Disability Insurance Benefits under Titles II and XVI of the Social Security Act ("Act"). In her motion for summary judgment, plaintiff principally contends that the Administrative Law Judge ("ALJ") erred by: (1) rejecting the opinion of plaintiff's treating physician without a legitimate basis for doing so; (2) failing to credit plaintiff's testimony and third party statements regarding the nature and extent of plaintiff's functional limitations; and (3) failing to secure the testimony of a vocational expert. (Dkt. No. 19.) The Commissioner filed a cross-motion for summary judgment. (Dkt. No. 20.)

For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.*fn1

I. BACKGROUND

A. Procedural Background

On September 6, 2005, plaintiff filed a Title II and Title XVI application for a period of disability and disability insurance, alleging a disability onset date of March 31, 2003. (Administrative Transcript ("AT") 14, 69-76.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 14, 43-48, 50-54.) Plaintiff filed a timely request for a hearing, and the ALJ conducted a hearing on May 8, 2006. (AT 542-65.) Plaintiff, who was represented by counsel, was the only person to testify at the hearing. (AT 14.)

In a decision dated January 23, 2008, the ALJ denied plaintiff's application. (AT 11-23.) The ALJ found that plaintiff had the residual functional capacity to perform certain simple, unskilled medium work and therefore was not under a disability within the meaning of the Social Security Act.*fn2 (See AT 14, 18-23.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 6-8.)

B. Summary of Relevant Medical History and Evidence At the time of her hearing before the ALJ, plaintiff was 43 years old. (AT 544.)

She had worked as a CNA*fn3 at a hospital, as a sales associate at a clothing store, and as an assistant manager at a home decorations store. (See AT 546.) Plaintiff stopped working on March 31, 2003, because of her kidney stones. (AT 546.)

Plaintiff experienced several severe kidney stones in the 1990s, although her kidney stone issues appear to have lessened significantly since the alleged date of onset. (AT 186.) Plaintiff sought medical care at emergency rooms at least five times between August 2002 and April 2004 for complaints about kidney stones and pain. (AT 354-77.) In October 2004, plaintiff visited her physician, Dr. Nirpal Mehton, for pain related to the kidney stones. (AT 316-22.) Dr. Mehton prescribed plaintiff morphine and ibuprofen and stated that plaintiff's pain was "well controlled." (AT 316.)

On February 2, 2005, Dr. Mehton decided to take plaintiff off of her narcotic medications after she exhibited withdrawal symptoms. (AT 308.) Plaintiff began shaking uncontrollably at this doctor's visit. (Id.). Upon questioning by Dr. Mehton's office, plaintiff explained that she "ran out of" her narcotic pain medication five days prior to her visit. (AT 308.) At a follow up visit two days later for her medication issues, plaintiff's medical records reveal that she claimed that her "roommate" had taken some of her medications. (AT 306.) Dr. Mehton's office concluded that plaintiff was experiencing narcotic withdrawal and chronic pain syndrome. (AT 306-09, 312.) Plaintiff informed Dr. Mehton's office that she had been using narcotics for over two years, and the physician's office explained that they would taper her off of narcotics and would not be refilling her narcotic medications. (AT 306-09.)

Two days later, on February 6, 2005, plaintiff visited the Shasta Regional Medical Center Emergency Department for "withdrawal symptoms, tremor and seizure." (AT 351.) The emergency room treating physician's report states that plaintiff had no prior history of seizures, but that she "was shaking so violently at home that she wet her pants," and that she was "anxious, actively vomiting in moderate to severe distress." (Id.) The emergency room report also states that plaintiff was taking a high dose of narcotics, but was taken off of those narcotics by Dr. Mehton. (AT 351.) The emergency room attempted to find a "detox" location for plaintiff but was unsuccessful. (AT 352.) Plaintiff was discharged and given instructions on her withdrawal symptoms, including the fact that she would continue to have shaking episodes.*fn4 (AT 353.)

On February 10, 2005, plaintiff visited Dr. Mehton's office and discussed her "seizures" and shaking. (AT 304.) Dr. Mehton's office found that plaintiff was suffering from narcotic withdrawal. (Id.) On February 25, 2005, plaintiff went to the Shasta Regional Medical Center Emergency Department for "shaking and tremors." (AT 347.) Dr. Andrew Knapp, the physician who treated plaintiff at that time, diagnosed plaintiff with "acute opiate withdrawal."

(AT 349.)

On March 1, 2005, plaintiff experienced stroke-like symptoms, including falling to the right and inability to walk, and was admitted to Mercy Medical Center for nine days to "rule out basal ganglia stroke." (AT 206-09.) An EEG was performed and was insignificant for seizure, and according to hospital records the reviewing physician, Dr. Gary Rowe, ruled out seizure disorder. (AT 206-07.) Plaintiff's treating physician, Dr. Akua Agyeman, stated that plaintiff "continued to have these tremors only when she was being observed," and that the psychiatric department should be involved in the evaluation and management of plaintiff. (AT 207.) The hospital found no clinical evidence of seizure. (AT 207.)

On March 2, 2005, Dr. Rowe examined the plaintiff and concluded that her movement disorder with continuous jerking and shaking of the right side was "probably factitious or hysterical," and that plaintiff would need a "psychiatry consult." (AT 194.) He also stated that he did not "think her prognosis [was] very good." (AT 194.)

On March 3, 2005, Dr. Thomas Andrews examined plaintiff and diagnosed her with dysthymia*fn5 , dependent personality traits, seizure disorder (but added the notation "rule out drug withdrawal") and gave plaintiff a global assessment of functioning (GAF) score of 35.*fn6 (AT 189.) During this hospital stay, one of the nurses treating plaintiff stated that plaintiff exhibited no tremors when the nurse walked in the room, but that she subsequently started shaking uncontrollably. (AT 466.) This nurse suggested that hypnosis might help. (AT 466.) Plaintiff's hospitalization ruled out basal ganglia stroke, and plaintiff was eventually diagnosed with convulsive disorder. (AT 297.) Plaintiff attended a follow up visit on March 14, 2005, and Dr. Akua Agyeman stated that plaintiff "seems to be responding to redirection about the fact that this is self-inflicted." (AT 297.)

On May 8, 2005, plaintiff presented to the emergency room with seizure-like symptoms. (AT 340.) The emergency room nurses "noted the atypical nature of her seizure activity and [were] concerned that this might be a pseudoseizure." (AT 340.) At one point, plaintiff stopped convulsing to scratch her nose. (AT 345.) Plaintiff became more alert at times during discussions, and at times, when distracted, her shaking diminished. (AT 345.) Two physicians examined plaintiff and concluded that she was experiencing pseudoseizures. (AT 343.) As defined by both parties, pseudoseizures are "paroxysmal episodes that resemble and are often misdiagnosed as epileptic seizures; however, [they] are psychological (i.e. emotional, stress-related) in origin."*fn7

On May 26, 2005, plaintiff again went to the Shasta Regional Medical Center Emergency Department. (AT 335.) The treating physician, Dr. Joanna Weinberg, diagnosed plaintiff with pseudoseizures, mild dehydration, and anemia. (AT 337.) Dr. Weinberg also stated that if plaintiff continued to have such frequent emergency room admissions which required a "large workup for pseudoseizures, it may be helpful if a social worker would become involved to help channel this patient's activity into a less costly venue." (AT 338.)

On July 31, 2005, plaintiff again went to the Shasta Regional Medical Center Emergency Department for seizure activity. (AT 330.) The treating physician noted that plaintiff would stop seizing to engage in purposeful movement. (AT 330.) She was again diagnosed with nonepileptic pseudoseizures, and was instructed that she should seek mental health treatment. (AT 332.) Dr. Lloyd Pena, her treating physician during this visit, stated that there were "medications there that would help cure her problem," but that plaintiff "stated that she had no interest in going there." (AT 332.)

On September 6, 2005, plaintiff filed her disability application alleging, inter alia, that her kidney stones and seizures limited her ability to work. (AT 69-75.) Plaintiff continued to attend visits at Dr. Mehton's office. On September 26, 2005, Dr. Mehton's office notes state that plaintiff is still having tremors and seizure activity, but that plaintiff has not sought mental health treatment. (AT 272.) Dr. Mehton's office notes also state that when ...


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