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Chizoma C. Njoku v. Michael J. Astrue

September 21, 2011

CHIZOMA C. NJOKU,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Chizoma C. Njoku ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income benefits pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff protectively filed an application for supplemental security income benefits in March 2004, alleging disability beginning January 1, 1997. AR 53-56. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 19-27. ALJ Bert C. Hoffman held a hearing on August 10, 2006, and issued an order denying benefits on February 12, 2007, finding Plaintiff was not disabled. AR 11-17, 338-344, 399-440. On October 4, 2007, the Appeals Council denied review. AR 4-6, 352-354.

Following a Stipulation and Order for Remand, issued by Magistrate Judge Dennis L. Beck on August 15, 2008 (AR 346-347, 350) in this Court's case number 1:07-cv-01694-DLB, a second hearing was held on March 12, 2009. AR 637-663. ALJ Hoffman issued a second order denying benefits on May 7, 2009, again finding Plaintiff was not disabled. AR 322-334.

2006 Hearing Testimony

ALJ Hoffman held a hearing on August 10, 2006, in Fresno, California. Plaintiff appeared and testified; she was represented by attorney Melissa Proudian. Plaintiff's counselor Anita Quiroz also testified. AR 266-307.

Plaintiff was born April 13, 1985, and was twenty-one years old on the date of the hearing. AR 269. She was born in Los Angeles to an American mother and a Nigerian father. AR 276. She has traveled to Nigeria and looks forward to visiting Nigeria again this year as it has been about ten years since she last visited with her family. AR 276; see also AR 291-292. Plaintiff is five foot seven inches tall and weighs about 250 pounds. AR 270. She has never learned to drive and does not have a driver's license. She has a seizure disorder and has been advised by her physician that she cannot drive. AR 270-272.

Plaintiff currently resides in a care facility, after having previously lived with various family members, including her aunt, mother, and father. AR 278. She has also lived in the home of one of her father's friends because she had difficulty getting along with her stepmother. AR 278. At the care facility, Plaintiff has a roommate. She wants to live on her own. AR 283. In the past she has enjoyed cooking, but at the care facility all food preparation and laundry is taken care of. AR 283-284; see also AR 293-294. Saturdays provide an opportunity for free time between 8 a.m. and 8 p.m. In the past two or three months, Plaintiff has left the facility to go to the movies or a friend's home. AR 284-286.

The care facility provides a stipend of about $30 a week. AR 285. Plaintiff uses these funds for bus fare or to buy clothes. AR 285, 293. She may also use the money to buy "sodas or cookies." AR 293.

As a member of Central Valley Regional Center (CVRC), Plaintiff receives a variety of services, in addition to having been placed in a care home. CVRC covers the cost of her seizure medication and provides her with the assistance of a counselor. AR 279. She sees her counselor two or three times in a two-week period and can call if needed. AR 279.

While Plaintiff did not graduate from high school, she attended through the eleventh grade. AR 273. She did not earn enough credits to graduate. AR 274. During the course of her education she was enrolled in special education classes for math and English. AR 273. Since leaving high school, Plaintiff has tried to pass the GED test, but has been unsuccessful. AR 274. When she was asked about vocational training, Plaintiff indicated she participated in a program previously through the school and worked for about two weeks at Old Navy. However, she stopped working there after having a seizure in the car as her father drove her to work. AR 277.

Plaintiff can read English. She enjoys romance novels and reads the Sports section of the newspaper to follow Raiders football. AR 275-276. Plaintiff also enjoys watching Lifetime channel movies. AR 294.

When asked about her appearance, and particularly her nails, Plaintiff indicated that she enjoys making herself look nice. AR 282. She gets her nails done about every two weeks and is often driven there by the people at the care facility. AR 282. Grooming is important to her and she makes it a habit to be well groomed. AR 282-283; see also AR 303.

Plaintiff currently takes prescription medications Tegretol and Trileptal as prescribed, and dispensed by the care facility. AR 280-281. One side effect of the medications is drowsiness. AR 281.

Plaintiff indicated she is working at "CIP," putting together "overnight packets" for about an hour, every other day. AR 286. Then the group with whom she works will travel to a bookstore or fast food restaurant for an activity. AR 287. Prior to this position, Plaintiff worked at the "Production Center" for a half-day. The job required placing labels on boxes, counting labels, or putting nails in bags. AR 287-288. Transportation was provided by CVRC and assistance was provided by a job coach. AR 288. She left this position because she had difficulty getting along with some of the other participants. AR 288-289. When she was asked what she would like to do for work, Plaintiff indicated she might like working in a clothing store. AR 290-291.

Although she no longer attends regularly because she lives at the care facility, Plaintiff used to enjoy going to church every Sunday with her maternal grandmother. AR 292-293.

Plaintiff's counselor at CVRC, Anita Quiroz, also testified. AR 295. Ms. Quiroz has been employed by the facility for over six years and has a master's degree in marriage and family therapy. AR 296. She assists about sixty-five to seventy clients; one of her clients is Plaintiff, with whom she has worked for about six months. AR 296.

When Ms. Quiroz initially met her, Plaintiff was living with a family member, about to become homeless. Ms. Quiroz assisted in finding Plaintiff a place to live that would provide adequate supervision and a sheltered workshop. AR 296. Ms. Quiroz estimated that she sees Plaintiff on average about once a week. AR 297. Ms. Quiroz indicated that Plaintiff has had difficulty in workshop placements due to behavioral issues or an inability to follow instructions. AR 297.

In the workshop where Plaintiff is currently placed, there is less emphasis on actual work and more emphasis on socialization. AR 298. CVRC refers to the program as "pre-vocational." AR 298. While Ms. Quiroz has not personally supervised Plaintiff at her work placements, she has been advised by other personnel, including Plaintiff's job coach at the Association for Retarded Citizens, of the difficulties Plaintiff has had. AR 298. In Ms. Quiroz's opinion, Plaintiff is not capable of working in a job outside of the sheltered workshop scenario as a job would typically be performed in the national economy. AR 298; see also AR 300-301. She is of this opinion because Plaintiff has difficulty understanding appropriate behavior and lacks the ability follow directions properly. AR 299.

CVRC's ultimate goals include moving Plaintiff to an apartment. The center would manage her money and pay the rent, and provide supervised visits by facility personnel several times a week to check on her and otherwise ensure Plaintiff was not being taken advantage of. AR 299.

Ms. Quiroz indicated that Plaintiff is dependent upon others, whether it be her counselor, the house manager, or staff at the facility. She requires "quite a bit of assistance just to get through her daily and weekly routines." AR 300. While Plaintiff is higher functioning than some of the other CVRC clients, she was not able to perform the work that the other high functioning clients of CVRC perform. AR 301.

When asked by the ALJ about the percentage of clients who "go on to function totally independently," Ms. Quiroz estimated about five percent of the CVRC clients could do so. AR 303. 2009 Hearing Testimony

ALJ Hoffman held a second hearing on March 12, 2009, in Fresno, California. Plaintiff appeared and testified and was again represented Ms. Proudian. Sergio Bello, M.D., also ...


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