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Lana L. Conley v. Michael J. Astrue

May 9, 2011


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1969, has a high-school education, and previously worked as a cashier and bookkeeper. (Administrative Record ("AR") 61, 138-47, 122.) Plaintiff has attended some college. (AR 374-76.) Plaintiff stopped working in 1995 due to "marital problems" and the fact that she was "distracted." (AR 122.) Plaintiff was injured on August 4, 2001, when a rock was thrown through the windshield of her motor vehicle, striking her and causing a closed head injury and multiple fractures and lacerations to her face. (AR 183-84.)

A. Medical Evidence

On August 4, 2001, Plaintiff was admitted to University Medical Center for treatment of a closed head injury, facial fractures and lacerations resulting from an assault which occurred while Plaintiff was stopped in her motor vehicle. (AR 149.) Plaintiff was in a coma upon admission and underwent surgery while hospitalized. (AR 187, 169-71.) On August 27, 2001, Plaintiff was transferred to Fresno Community Hospital and Medical Center, where she was treated until September 8, 2001. (AR 197-98.) During that stay, Plaintiff successfully had her tracheostomy discontinued. At discharge, her cognition was "markedly improved." (AR 197.) Plaintiff, however, still had "slight problems" with short-term memory but was "intact" for "normal day-to-day functions." (AR 197.)

John B. Edwards, M.D. provided follow-up care upon Plaintiff's hospital discharge. (AR 252-56.) On October 9, 2001, he removed Plaintiff's gastronomy tube based upon the recommendation of the speech language pathologist. (AR 255, 242-43.) On November 27, 2001, Dr. Edwards noted that Plaintiff had completed her outpatient speech therapy and that she had been "ok'd to start school on a limited basis next semester." (AR 253.) Plaintiff reported "intermittent dizziness that comes and goes and some intermittent headaches for which she uses Motrin and gets good relief." (AR 253.) Dr. Edwards refilled Plaintiff's Motrin prescription at that time. On April 5, 2002, Plaintiff reported problems with depression and memory and that she had failed in school and was "upset." (AR 252.) Plaintiff had not refilled her prescription for Motrin "even though it ha[d] helped." (AR 252.) Dr. Edwards refilled her Motrin prescription and prescribed Zoloft. (AR 252.)

Plaintiff was treated by Jose Guerrero, M.D. (AR 314-29.) On May 19, 2003, Dr. Guerrero indicated that Plaintiff suffered from "[d]epression and a history of chronic headaches" and noted that Plaintiff had been taking anticonvulsant medications a few years prior to control the headaches but had "stopped the treatment with no obvious reason." (AR 314.) Dr. Guerrero ordered that Plaintiff continue ibuprofen for a limited time, increased her dosage of Zoloft and further prescribed Neurontin. (AR 314.)

On July 16, 2003, Plaintiff was referred to Rustom F. Damania, M.D., who diagnosed Plaintiff with "[t]raumatic brain injury, facial trauma, multiple facial fractures including mandibular fracture and memory impairments according to the patient" and also diagnosed "depression." (AR 260.) Plaintiff was "able to sit, stand and walk" and did "not require an assistive device for ambulation." There were "no objective findings to indicate exertional limitations . . . However, workplace/environmental limitations [were] multiple, particularly to climbing and balancing." (AR 260.) Dr. Damnia determined that there was "[i]mpairment from functioning because of memory problems" and suggested that Plaintiff "be evaluated in more detail." (AR 260.)

Plaintiff was seen by Madhav Suri, M.D. on July 29, 2003, and complained of "daily headaches and pain that increase[d] with stress, [and] dizziness that occur[red] four to six times a day." (AR 307.) Dr. Suri found that Plaintiff suffered from "depression and difficulty in handling legal/financial situations, etc." (AR 307.) A computerized tomography ("CT") scan of Plaintiff's head was performed, and the results were negative. (AR 306.)

Plaintiff was referred to Richard Engeln, Ph.D. for a psychological evaluation on August 21, 2003, who determined that Plaintiff was "capable of job adjustment in a context where instructions are unidimensional and normal supervision is provided" and that Plaintiff's "[c]oncentration and social skills [we]re adequate for work adjustment." (AR 264.)

On September 17, 2003, Edward Wong, M.D. reviewed Plaintiff's medical records and determined that Plaintiff was unable to climb ladders, ropes and scaffolds and thus advised seizure precautions. (AR 294.) Dr. Wong did not impose any other physical limitations. (AR 292-301.)

Evangeline Murillo, M.D. conducted a functional capacity assessment based on Plaintiff's records on September 18, 2003. (AR 272-91.) Dr. Murillo indicated that a residual functional capacity ("RFC") assessment was necessary but found only a mild degree of limitation for daily living activities, social functioning, and concentration.*fn2 (AR 272, 282.) Plaintiff was capable of simple repetitive tasks ("SRT") for two-hour intervals, finishing a workday and interacting with co-workers and the general public. (AR 290.) Dr. Murillo concluded that Plaintiff "would not have difficulty adapting to normal work situations." (AR 290.)

On June 27, 2005, Plaintiff was referred to Ekram Michiel, M.D. for a psychiatric evaluation. (AR 330-33.) Dr. Michiel diagnosed Plaintiff as having a depressive disorder not otherwise specified and noted a global assessment of functioning ("GAF") rate of 55-57. (AR 332.) Dr. Michiel determined that Plaintiff was "able to maintain attention and concentration and to carry out one[-] or two[-]step simple job instructions." (AR 332.) Plaintiff could "relate and interact with co-workers, supervisors and the general public" but would be "unable to carry out an extensive variety of technical and/or complex instructions." (AR 332.)

On July 16, 2005, Benjamin Chang, M.D. conducted a neurological consultation of Plaintiff and determined that Plaintiff experienced a "post traumatic brain injury and multiple facial reconstructive surgeries resulting in short-term memory loss, dizziness and headaches." (AR 337.) Dr. Chang concluded that, "from a functional standpoint, the patient does not seem to have any exertional limitations. However, due to her limited peripheral vision of the left eye, dizziness and headaches she may experience workplace and environmental limitations." (AR 337.)

B. Lay Testimony

On June 14, 2003, Plaintiff completed a daily activities questionnaire. (AR 73-78.) Plaintiff indicated that she would rise around 7:00 a.m. to prepare her son for school but after that she would "sleep all of the time" and that she was "tired and depressed all of the time." (AR 73.) Plaintiff stated that she was able to vacuum, dust, sweep, and do laundry without assistance, and to go shopping with her sister twice a month. (AR 74.) Plaintiff noted that she would ride a bike to the store without help. (AR 75.) Plaintiff stated that she was raising her son. (AR 76.) Plaintiff would "sometimes" get "headaches and dizziness" and she would "sometimes" have difficulty understanding verbal instructions and would need them to be "explained in different ways." (AR 77.) Plaintiff suffered from "dizzy spells, short term memory loss and bad headaches." (AR 77.) Also on June 14, 2003, Valerie Martinez, a friend of Plaintiff's, completed a third-party function report. (AR 79-87.) Ms. Martinez indicated that she would spend one to four hours every other day talking to Plaintiff. (AR 79.) Plaintiff suffered "a lot" with headaches, dizziness, and memory loss, and she slept "all ...

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