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Pa Dee Thao v. Michael J. Astrue

June 21, 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 Titles XVI of the Social Security Act. 42 U.S.C. § 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 1984, completed the 12th grade, and last worked at a part-time summer job in the park during her junior year of high school. (Administrative Record ("AR") 111, 131, 26.) On December 15, 2006, Plaintiff filed an application for SSI, claiming disability beginning on March 1, 2002, due to seizures. (AR 111-17, 126-32.)

A. Medical Evidence

Plaintiff alleges that she became disabled on March 1, 2002, when she was 17 years old, due to seizures, headaches, and neck pain. (AR 111, 127.) Plaintiff's mother indicated that the seizures may have been related to Plaintiff taking diet pills when she was 15 to 16 years old, as the seizures began shortly thereafter. (AR 160.) Plaintiff also reported that she received a head trauma from an old boyfriend in 2001 or 2002. (AR 187, 222.)

On September 21, 2006, Plaintiff was seen at University Medical Center for treatment of her seizures. (AR 187.) Plaintiff stated that the seizures had been occurring for approximately two years, always at night. (AR 187.) Plaintiff had been taking Dilantin to control the seizures but indicated that the medication had been "no help." (AR 187.) At that visit, Plaintiff was provided with 600 mg of Dilantin, and prescribed 300 mg daily. (AR 187.) Plaintiff returned to the University Medical Center on October 12, 2006, with a "toxic" level of Dilantin, reporting that she had been feeling "dizzy," "very sedated," and "off-balance." (AR 186.) Plaintiff's Dilantin dosage was reduced to 100 mg daily, and she was directed to return to the clinic for follow-up evaluation. (AR 186.) On December 29, 2006, Plaintiff indicated that she was still experiencing seizures and that they were "not controlled" through Dilantin. (AR 199.) However, there was also a question as to whether Plaintiff was taking Dilantin; the notes further indicated that she was a "poor historian" and questioned if she was "learning disabled." (AR 199.)

On February 1, 2007, Plaintiff was seen by Greg Hirokawa, Ph.D. for a comprehensive psychiatric evaluation. (AR 188-96.) Dr. Hirokawa found that Plaintiff's "[s]tream of mental activity was slow" but that "[a]ssociation of thought was within normal limits and well organized." (AR 190.) Plaintiff stated that she was taking Dilantin at the time of the exam but that she needed to be reminded to take her medication. (AR 189, 191.) Dr. Hirokawa indicated that Plaintiff appeared "to have suffered personality and cognitive changes after the onset of her seizure" but that she was "currently not receiving treatment for this disorder." (AR 191.) Dr. Hirokawa opined that Plaintiff had mild to moderate limitations in her ability to remember location and work-like procedure and mild limitations in her ability to accept instructions from a supervisor, to sustain an ordinary routine without special supervision, to complete a normal workday, to interact with co-workers, and to deal with various changes in the work setting. (AR 191-92.) Plaintiff had mild limitations in her ability to understand and remember very short and simple instructions, mild to moderate limitations in her ability to remember detailed instructions, and moderate limitations in her ability to maintain attention and concentration for extended periods. (AR 192.)

On February 3, 2007, Juliane Tran, M.D. provided a comprehensive neurological evaluation. (AR 193-96.) Dr. Tran indicated that Plaintiff was "confused when answering questions" and was a "very poor historian." (AR 193, 194.) Plaintiff did not remember her first seizure episode and she thought that the frequency of the seizures was once every two weeks. (AR 193.) Dr. Tran found that Plaintiff had a "[p]robable generalized seizure and . . . also a cognitive deficit." (AR 196.) Plaintiff had "poor abstract thinking," "poor insight and judgment," "poor short-term recall ability and poor calculation." (AR 196.) Dr. Tran opined that Plaintiff would "need help" handling her finances and should not drive or operate machinery. (AR 196.) Plaintiff should be restricted to lifting not more than 20 pound occasionally and not more than 10 pounds frequently, but there were no restrictions as to sitting, standing, walking, bending, stooping, kneeling, or crouching. (AR 196.) Dr. Tran found that Plaintiff "probably can do multitask sequencing but she should not make decisions regarding public safety." (AR 196.)

On April 6, 2007, Plaintiff returned to University Medical Center and indicated that she had "finished Dilantin" one month prior and that she had a seizure one week prior to the visit. (AR 198.) The notes indicate that she had provided "slow responses" and again questioned if she was "learning disabled." (AR 198.) Plaintiff was prescribed Dilantin and was referred to a neurologist.

On May 9, 2007, Plaintiff was seen at the emergency room of Community Medical Center for treatment following a seizure. (AR 229-30.) Plaintiff had been off her seizure medication for weeks. (AR 229.) According to the medical records, Plaintiff was then "loaded" with Dilantin. (AR 230.)

On May 21, 2007, Calmeze Dudley, M.D. reviewed Plaintiff's medical records and provided a mental residual functional capacity assessment ("RFC").*fn2 (AR 200-15.) Dr. Dudley determined that Plaintiff was moderately limited in her ability to carry out detailed instructions and to maintain attention and concentration for extended periods. (AR 200.) Plaintiff had cognitive and memory problems. (AR 204.) Dr. Dudley noted that Plaintiff had moderate difficulties in maintaining concentration, persistence, and pace. (AR 211.) However, Plaintiff was "capable of performing a full range of simple repetitive tasks without the need for special supervision." (AR 202.) Dr. Dudley further found that the "[s]eizure frequency as stated by claimant [was] not well documented." (AR 215.) Dr. Dudley adopted the findings of Dr. Tran. (AR 215.) On June 4, 2007, K.M. Quint, M.D. conducted a physical RFC assessment and also adopted Dr. Tran's findings. (AR 216-20.)

On May 23, 2007, Plaintiff was seen at University Medical Center. (AR 221-24.) Plaintiff's mother stated that Plaintiff's seizures would occur two to four times per month and would only happen while Plaintiff was sleeping. (AR 222.) The notes indicate that Plaintiff's seizures were "not controlled" with Dilantin. Plaintiff was within normal limits for all cranial nerve and motor functions, but had "bad" math skills. (AR 223.) It was recommended that Plaintiff taper of Dilantin and begin Keppra. (AR 224.)

On July 2, 2007, Plaintiff was again seen in the emergency room of Community Medical Center. (AR 226-27.) The progress notes indicate that Plaintiff had no seizure activity and a mild headache. (AR 227.) Plaintiff was informed that she should take her medication as prescribed. (AR 235.)

Plaintiff was seen for seizure treatment by emergency services of Community Medical Center on October 5, 2007, where she was found to be "non-compliant" for taking the medications Dilantin and Keppra. (AR 267.) She then had a follow-up visit on October 26, 2007, and indicated that she was "not taking" her medication. (AR 253.)

On November 20, 2007, Anne M. Khong, M.D. reviewed Plaintiff's records and provided a physical RFC assessment. (AR 237-45.) Dr. Khong found that Plaintiff should avoid concentrated exposure to hazards such as machinery and heights. (AR 240.) Dr. Khong noted that Plaintiff claimed to "always" take her medication, but found that Plaintiff "[d]oes not appear fully credible regarding med[ication] compliance." (AR 243-44.) Dr. Khong found the following:

[Plaintiff's] alleged med[ication] compliance is not corroborated by the medical evid[ence] which, time after time, shows non-compliance w[ith] [seizure] med[ications]. In this context, it is unlikely that a change in her [seizure] med[ications] will effect any change in the reported [seizure] frequency. Better to keep her on a medication which can be measured to determine whether it is med[ication] compliance or drug efficacy at issue. (AR 244.) Dr. Khong found that the "RFC is unlimited except for [seizure] precautions. There is no basis for exertional restrictions" and agreed with Dr. Dudley and Dr. Quint's prior RFC assessments. (AR 243-44.)

From February 2008 through May 2009, Plaintiff had several additional visits to Community Medical Center. (AR 247-78.) On February 26, 2008, Plaintiff indicated that her seizures were not controlled. (AR 252.) On July 10, 2008, Plaintiff was seen by emergency services for a seizure; the notes state that she had been noncompliant in taking Dilantin for months due to financial reasons. (AR 254, 258.) A computed tomography ("CT") scan was performed on Plaintiff's head, and the results were "normal." (AR 264.) On August 15, 2008, Plaintiff had a follow-up visit regarding her seizure disorder; she was "off" her medications at that time. (AR 251.) On August 27, 2008, Plaintiff indicated that she had lost her insurance and was unable to see a neurologist, but that she was currently on Dilantin. (AR 250.) Plaintiff was informed that she should maintain her current dosage level of Dilantin. (AR 251.) On September 4, 2008, the notes indicate that Plaintiff's Dilantin levels has been "supratherapeutic" the week before, and she had been instructed to stop her Dilantin for two days and to follow up with a lower dosage. (AR 249.) Plaintiff indicated that she had not had a new seizure since July 8, 2008. (AR 249.) On November 5, 2008, Plaintiff indicated that she had a seizure in the previous month. (AR 247.) Plaintiff did not like the medication Keppra because her "face turned blue," and she "restarted Dilantin." (AR 247.) She indicated that she was trying to get pregnant and was informed of the risks of Dilantin during pregnancy. (AR 247.) Plaintiff was instructed to wean off Dilantin and to start Lamictal. (AR 247.) On March 20, 2009, Plaintiff indicated that she had a seizure two days earlier and had run out of her medicine four days earlier. (AR 277.) Plaintiff was four months pregnant. (AR 277.) Plaintiff indicated that she wanted to drive because her seizures had only been at night for the past six months to one year. (AR 277.) On May 13, 2009, Plaintiff was 27 weeks pregnant, had not had a seizure since her last visit, and was "stable on Lamictal." (AR 276.)

B. Administrative Hearing

The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 63-67, 69-73, 74.) On July 22, 2009, ALJ Christopher Larson held a hearing in which Plaintiff and vocational expert ("VE") Cheryl Chandler testified. (AR 20-43.)

1. Plaintiff's Testimony

Plaintiff testified that she was 24 years old at the time, unmarried, had no children, and had completed high school. (AR 25-26.) She did not have a driver's license because her doctor would not approve her to drive due to her seizures. (AR 26.) The last time Plaintiff had worked was at a part-time summer job during her junior year of high school. (AR 26.) Plaintiff testified that she felt she could not work because she has a "headache" and was "dizzy all the time." (AR 27.) Her seizures began in 2002 and "just happened"; there was no injury that precipitated her seizures. (AR 27.) She could not recall if she had any seizures during the day since the date of her application in December 2006. (AR 28.) Plaintiff testified that, after a seizure occurs, she feels "weak" and has "no energy" -- she "can't even get up." (AR 28.) This feeling lasts for two days and her mother and sister have to help her. (AR 28.) She testified that after a seizure her eyes would be "blurry" and that she could not "look at things ...

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