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Hill v. Commissioner of Social Security

June 25, 2010


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Johnny L. Hill seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI"), pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1

Following a review of the complete record, this Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based on proper legal standards. Accordingly, this Court denies Plaintiff's appeal.

I. Administrative Record

A. Procedural History

On April 27, 2006, Plaintiff applied for SSI disability benefits, alleging disability beginning April 1, 1998. AR 9. On August 26, 2008, Administrative Law Judge Bert C. Hoffman, Jr., denied Plaintiff's application. AR 6-14. Plaintiff sought review of the ALJ's decision, contending that it was not based on substantial evidence in the record. AR 4. The Appeals Council denied review on November 24, 2008. AR 1-3. Plaintiff filed a complaint seeking this Court's review on January 12, 2009 (Doc. 1).

B. Factual Record

At the administrative hearing on February 19, 2008, Plaintiff (born March 25, 1988) testified that he experienced petit mal seizures as frequently as four to six times per week and grand mal seizures three to twelve times a month. AR 25-30, and 32. His mother, Shelley Davis, testified that Plaintiff may have up to nine petit mal seizures per day, some lasting just seconds. AR 46. Davis also described what she called the "blank stares," during which Plaintiff is not aware of her speaking and chews as if something were in his empty mouth. AR 47. Plaintiff's seizures may be triggered by stress, flashing lights, and certain odors. AR 51.

When Plaintiff experiences grand mal seizures, he loses consciousness and falls to the floor. AR 27, 48. At other times, he is able to protect himself by sitting on an open floor. AR 27. Plaintiff's longest seizure lasted twenty-five minutes; he estimated the usual duration is fifteen or twenty minutes, but Davis testified the usual seizure was four to ten minutes. AR 31, 48. Plaintiff is usually not aware when he is seizing, although he has had the experience of being conscious but unable to control his bodily movements. AR 31. He may bite his tongue or lose bladder or bowel control. AR 31-32, 139. Plaintiff has experienced seizures during sleep. AR 133, 139. Thereafter, his muscles may be sore from contractions, or he may have a headache or other injuries from falling. AR 31, 52-53.

After a small seizure, Plaintiff may feel lightheaded or nauseous, and may require up to an hour, at most, to recover. AR 28-29. After a grand mal seizure, he may sleep from two to three hours. AR 31. Since his seizures have been uncontrolled, Plaintiff's memory has deteriorated. AR 32, 133. Plaintiff also reported speech problems and fatigue. AR 133.

When Plaintiff experiences petit mal seizures, he throws up his arms and gasps for air, sometimes creating a loud shrieking sound. AR 26. Being aware that others find his seizures frightening, if he senses the onset of a seizure, Plaintiff attempts to go somewhere without many people. AR 28.

Plaintiff's medical records confirm his ongoing seizure disorder. AR 160-177, 179-185, 206. An EEG report dated February 28, 2006, identified abnormal spiking brain waves, recurring on some, but not all, prior EEG reports. AR 173, 182. Prior to February 2005, Plaintiff's seizure activity was well controlled. AR 185.

On September 23, 2005, Plaintiff was taken to Community Medical Center, Clovis, following a seizure. AR 151-158. Blood testing indicated a low valproic acid level (13.0 ug/mL). AR 158. Valproic acid is "a simple eight-carbon branched-chain fatty acid used in the treatment of epileptic seizures, particularly absence seizures,; administered orally." Dorland's Illustrated Medical Dictionary at 1791 (28th ed. 1994). The level of valproic acid generally corresponds to the level of antiseizure medications in a patient's blood. The normal range for valproic acid is 50-150 mcg/mL. AR 158.

Seizure activity increased after Plaintiff was struck by a car in early February 2006. AR 175-177, 182. As a result, Plaintiff was unable to attend school from February 3 through June 30, 2006, and his doctor requested that he be provided with a home school program. AR 181.

Kaiser Permanente records noted reports of more than one seizure per month from February through July 2006. AR 160-162. Valproic acid level was also low on February 10, 2006 (17.3 mcg/mL) and March 17, 2006 (34.8 mcg/mL). AR 171, 172.

Plaintiff testified that he took 800 mg. of Lamictal daily, the maximum dose. AR 32-33. Lamictal sometimes makes him drowsy and causes him to perceive an unpleasant, but nonexistent, smell. AR 33-34. His application also indicated prescription of two other anti-seizure medications: Depakote and Keppra. AR 119. Davis testified that the antiseizure medicines were often more effective when first prescribed and became less effective over time. AR 50.

Plaintiff acknowledged that he sometimes forgot to take his medications. AR 43. Davis testified that she was not aware that Plaintiff had ever gone long periods without medication. AR 55. Although she had previously been unsure about Plaintiff's compliance, by the time of the hearing, she made sure that Plaintiff took his medication, waking him to take medication before she leaves for work. AR 55.

In a July 2008 medical history, Dr. Yoshimura reported that, as a young child, Plaintiff had experienced early learning difficulties with significant speech delays, and was considered to have a cognitive disability. AR 221. Although Plaintiff attended regular school classes, he completed high school but did not receive a diploma. AR 22. Thereafter, he enrolled in a GED program, but because his shrieking seizures disrupted the classes, Plaintiff withdrew without completing the GED. AR 22.

Plaintiff testified that he could work full time if any one were willing to hire him. AR 24. Davis disagreed, citing the frequency of Plaintiff's seizures. AR 55. Except for occasional work raking yards, Plaintiff has been unable to secure a job. AR 23. He testified that employers did not want to hire some one whose seizures might expose them to liability or frighten their customers. AR 23.

Plaintiff lives with Davis. AR 106. He helps with such household chores as vacuuming, taking out trash, and washing dishes. AR 38. His uncontrolled seizures preclude his having a driver's license. AR 20.

Plaintiff does not ride a bike, skateboard, or roller blade, perceiving such activities as too risky. AR 36. He cannot participate in contact sports or swimming. AR 53. He does not bathe or shower when no one is home. AR 38. Similarly, his mother forbid his cooking when she is away because of the risk of a fire. AR 38.

After agency physicians reviewed Plaintiff's medical records, they concluded that Plaintiff had a seizure disorder that did not reach the severity of the listing level. AR 191-92.

Dr. Ocrant noted noting that the agency had "no corroboration of compliance or of frequency" and no report after 3 months ...

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