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Riley v. Astrue

November 2, 2010


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


Plaintiff Josie B. Riley, proceeding in forma pauperis, by her attorney, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her 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 and applicable law, this Court concludes that the ALJ properly found Plaintiff ineligible for benefits.

I. Administrative Record

A. Procedural History

On January 5, 2007, Plaintiff filed protectively for supplementary security income, alleging disability beginning January 5, 2007. AR 15. Her claim was initially denied on April 6, 2007, and upon reconsideration, on July 26, 2007. AR 14. On September 7, 2007, Plaintiff filed a timely request for a hearing. AR 14. Plaintiff appeared and testified at a hearing on July 23, 2008. AR 309-351. On September 29, 2008, Administrative Law Judge Patricia Leary Flierl denied Plaintiff's application. AR 15-22. The Appeals Council denied review on February 9, 2009. AR 4-6. On April 8, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

B. Factual Background

Plaintiff Josie B. Riley (born January 9, 1960) contends that she became disabled in the course of a New Year's eve arrest for drunkenness and public disturbance. AR 79, 128, 185. Plaintiff told doctors at Community Medical Center that an officer slammed her into a wall in the course of her arrest. AR 185. She testified that she could not remember what happened. AR 319. When she was released on New Year's day, she called 911, complaining of neck pain and was taken to Community Medical Center, which diagnosed a fracture of her cervical spine. AR 185, 319.

Adult Disability Report

In an undated adult disability report (Form SSA-3368), Plaintiff claimed that she was unable to work as a result of migraines, blurred vision, stomach pain, and a cracked neck. AR 72. She testified that she was "in too much pain" to work, as a result of her cracked neck, shoulder problems, and leg problems. AR 318-319. Her cervical collar made her hardly able to move. AR 319. Her right leg goes to sleep. AR 319-320. Her left shoulder "has a pulling in it." AR 319-320. Her right hand goes numb and she can hardly move it. AR 320. She has headaches, and depending on how she moves her neck, neck pain. AR 320. Plaintiff testified that she has pain three or four days out of seven. AR 320. When she feels the pain, she takes a pill and goes to sleep. AR 320. Her pain medications include Vicodin, Tramadol, and pink pills called metrosol. AR 321. She took pain pills whenever she needed them, and was uncertain of the exact schedule. AR 321.

In January 2006, Plaintiff incurred a neck injury that left her unable to lift, twist her head, and bend, causing limited movement and shortness of breath. AR 72. She wore a neck brace. AR 81, 89. Her medications included prednisone, metoprolol (heart and blood pressure), loratidine (itching), enalapril (high blood pressure), tramadol (migraine headaches), nexium (heartburn), baclofen (muscle relaxer), vicodin (pain in legs, neck, and back), and amitriptyline (depression). AR 112. Plaintiff has had no physical therapy, pain injections, or other treatment for her neck pain. AR 327.

Plaintiff last worked doing laundry at the Piccadilly Inn. AR 316, 341. She was laid off on December 24, 2003. AR 72. Plaintiff had worked longest as a hotel housekeeper, washing dishes, vacuuming, and performing general housekeeping duties. AR 73, 114. At some point in the distant past, Plaintiff had been a certified nursing assistant (CNA). AR 315. In or about 1998 or 1999, Plaintiff cared for children in her home through social services. AR 316-318.

Initial Hospitalization

On January 1, 2007, Plaintiff was treated for multiple fractures of her C1 vertebra at the emergency room of Community Medical Center. AR 182-184, 186, 194. The radiologist's reports also noted additional spinal abnormalities including degenerative changes of the middle and lower cervical spine and reversal of the normal lordotic curve. AR 194, 195, 196. Plaintiff was admitted to the hospital. AR 185. Copies of lab test results are included at AR 188-193. Doctors prescribed pain killers, forbid Plaintiff to lift or bend, and directed her to wear a cervical collar at all times for three months. AR 182.

University Medical Center

Plaintiff's records from University Medical Center for January 8, 2007, through June 12, 2008, are handwritten and difficult to read. AR 168-181, 275-307. On January 8, 2007, Plaintiff was seen at a University Health Center clinic for a headache and neck pain resulting from an assault during her arrest on New Year's day. AR 180. Her neck was in a collar and was tender to touch. AR 180. Dr. Garcia diagnosed a C1 fracture and spinal stenosis, noting an urgent need for a referral to a neurosurgeon. AR 180. Plaintiff complained that her pain was 10/10 and was referred for a CT scan of her neck at a neurosurgery consultation on January 19, 2007. AR 179. At a clinic appointment on February 16, 2007, Plaintiff complained of neck and overall body pain. AR 178. Plaintiff missed a neurosurgery appointment on February 16, 2007, but saw Stefanescu on March 14, 2007, complaining of neck pain and requesting medication refills. AR 170. At a neurosurgery appointment on March 28, 2007, Plaintiff complained of pain with an intensity of 10/10. AR 175. Plaintiff missed all her appointments the week of April 13, 2007, including a neurosurgery appointment. AR 173. On April 20, 2007, Plaintiff saw a clinic physician, complaining of neck pain and requesting prescription renewals. AR 173. On May 14, 2007, Dr. Stefanescu noted pain from the fractured cervical spine and referred Plaintiff for a neurosurgery consultation. AR 172. A review of the CT results of Plaintiff's cervical spine on June 22, 2007, indicated increased displacement of C2 vertebra compared to an earlier CT scan. AR 169. Her neurosurgeon directed that she wear the cervical collar an additional two months and return for another CT scan. AR 169. On July 2, 2007, Plaintiff was directed to continue wearing her cervical collar and return for follow-up appointments after four and six weeks. AR 168.

Plaintiff stopped wearing her collar in early August 2007 and was "asymptomatic" and "doing quite well" at an August 13, 2007, neurosurgery appointment. AR 306. The alignment of the C1 fracture had not changed since January 17, 2007. AR 306. Plaintiff was directed to continue wearing her collar. AR 306. Plaintiff continued to complain of neck pain until the last examination in the record, which is dated June 13, 2008. AR 275-305.

Although the family health center continued to prescribe vicodin (acetaminophen and hydrocodone) and Tramadol (a synthetic opioid analgesic) for pain (AR 279, 281, 283, 285, 287, 289, 293), the January 7, 2008 neurosurgery report states, "NO NARCOTICS--She was referred to pain clinic." AR 295. On June 13, 2008, Dr. Salazar questioned the possibility of "alcohol/substance/drug abuse." AR 284. Two undated, but apparently later, reports, at least one of which was prepared by the pain center, diagnose alcohol dependence and note, "[Patient] needs to stop drinking and get into recovery program." AR 275-278. After Plaintiff saw pain management specialist, Dr. Gazetta on June 12, 2008, she refused to see him again because he concluded that she was an alcoholic. AR 284, 323, 326.*fn2

Fresno Mental Health Center

In January 2007, Plaintiff contacted Fresno County Mental Health for assistance with depression, insomnia, and helplessness. AR 130-132. Her initial comprehensive assessment noted that she had been injured at the time of her arrest in early January and had been assaulted by her boyfriend in October, who broke Plaintiff's teeth in the attack. AR 123-124, 128. Her social worker diagnosed depression and alcohol dependence, noting her lack of social support, estrangement from her family, medical problems, and lack of income. AR 127. Her GAF was 35.*fn3 AR 127. Plaintiff had recently attempted to overdose using a friend's medications. AR 128. Ultimately, Plaintiff did not keep her appointment to be evaluated for medication and declined to attend an afternoon group therapy sessions. AR 119-120.

On February 20, 2007, Plaintiff's mental health nurse practitioner Wendy Brandon diagnosed depression, head, neck, and shoulder pain, ulcers, and alcoholism, aggravated by financial stressors. AR 269. Plaintiff's GAF was 55-60.*fn4 AR 269. Brandon noted that Plaintiff was "hurried and irritable, repeatedly responding to Brandon's questions with "It's in the chart already isn't it?" AR 270. Brandon described Plaintiff as goal-oriented and organized. AR 270. Plaintiff had taken Elavil (an antidepressant) for ten to fifteen years, ending in January. AR 271. Brandon prescribed Celexa, an antidepressant, noting that she would evaluate efficacy and tolerability at Plaintiff's next appointment. AR 269.

Plaintiff returned to Fresno County Mental Health on May 14, 2007, requesting a renewal of her Celexa prescription. AR 266. Plaintiff reported that she had not had alcohol in three months and had been out of Celexa for two months. AR 266. She was sleeping poorly whether or not she took Celexa. AR 266. She wore a cervical collar and complained that she had been denied general relief, although she was unable to work. AR 266. Plaintiff explained that she had missed a prior appointment due to a death in her family. AR 266. Plaintiff's prescription was renewed, but she was referred to the medication clinic and another provider. AR 266.

Adult Function Reports

In an adult function report dated February 3, 2007, Plaintiff complained primarily of pain, noting that she spent most of her time trying to sleep to avoid pain. AR 83. Nonetheless, her pain often woke her. AR 84. She read the newspaper and walked but avoided television since the sound hurt her head. AR 83. She avoided noise and the presence of other people. AR 86. Plaintiff described herself as having always preferred television, movies, and snacking to social activities. AR 88.

Plaintiff was able to perform her own personal care. AR 84. She was able to cook for herself unless she lacked the strength. AR 85. She shopped once each month for three hours, taking the extra time to compare prices. AR 86. Plaintiff was able to pay bills and make change but did not have a savings or checking account. AR 86.

Plaintiff could walk about a block, then had to sit and rest for twenty minutes when her legs fell asleep. AR 88. She got along well with supervisors if they understood her but ...

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