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Valerie Kimbrough v. Michael J. Astrue

January 22, 2013


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 disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Title II and Title XVI, respectively, of the Social Security Act. 42 U.S.C. §§ 401 et seq. 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 received DIB and SSI benefits since January 13, 1993, based on the impairment of drug and alcohol addiction, but her eligibility ended in December 2006 under the provisions of Public Law 104-121, section 105, which barred payment of benefits when drug or alcohol addiction was material to the finding of disability. (Administrative Record ("AR") 14, 62.)

Plaintiff was born in 1964, has completed a high school education, and previously worked as a drumstick packer at Foster Farms and as a pants presser at Master Craft Cleaners. (AR 26-27, 44-45, 138.) Plaintiff filed applications for DIB and SSI on April 9, 2007, and contends that her ability to work is precluded by facial pain, headaches, and migraines. (AR 28-29,166.)

A. Medical Evidence

In April 2007, Plaintiff was treated at the Sierra Adult Health Care and Regional Medical Center for headaches and athlete's foot. (AR 211-12.) On June 18, 2007, Plaintiff underwent a "computed tomography [("CT")] maxillofacial, without contrast"; it was noted that she had a history of trauma. (AR 224.) The findings of the radiologist included the following:

The orbits and maxillary sinuses appear unremarkable. Coronal reconstructions demonstrate a small out pouching of the anterior surface of the left orbit which appears to be chronic and there is some body remodeling here indicating that this is not related to the two month old trauma. This may be related to old trauma. This orbital floor pouching is approximately 4 mm in depth. The nasal turbinates, nasal bones and clivus appear unremarkable. The mandible appears intact. Pterygoid plates appear intact. The mastoid air cells appear intact. Views of the nasal bones show some minimally depressed nasal bone fracture.

(AR 224.) The radiologist concluded that there were minimally displaced nasal bone fractures, no acute orbital wall fractures, and an abnormality of the inferior portion of the left orbital floor which the radiologist opined "may be from a remote traumatic event or congenital." (AR 224.)

In July 2007, Plaintiff underwent corrective facial surgery, and was seen for follow-up care for ongoing complaints of facial pain. (AR 17, 46, 237-39, 244.)

On July 13, 2007, Plaintiff was examined by agency physician Abbas Mehdi, M.D., a neurologist. (AR 226-28.) Plaintiff complained of headaches that are caused by pain in the left side of her face. (AR 226.) She stated that she experienced a facial trauma with multiple lacerations 15 years prior, for which she received medical repair. (AR 226.) This trauma caused left facial weakness or "focal paralysis on the left side of the face, probably secondary to the injury of the facial nerve." (AR 226.) She reported that she initially experienced symptoms of pain, numbness and headaches, which resolved. (AR 226.) Then, two months prior to the examination with Dr. Mehdi, she experienced a head trauma, which produced worsening symptoms, primarily headaches. (AR 226.) Plaintiff indicated that she experienced pain on the left side of her face and head, which occurred "on and off," but was not a daily occurrence. (AR 226.) She stated that she takes medication for migraine headaches, but the medication does not help. (AR 226.) She reported she had been seen by doctors at University Medical Center, and they have advised her of a procedure to repair the facial nerve. (AR 226.) Dr. Mehdi remarked that Plaintiff "clearly indicates that the surgery is regarding a cosmetic procedure where her left facial nerve is being replaced or regenerated to improve the effects on the face which is weak on the left side but dates 15 years back." (AR 226.)

Dr. Mehdi observed that Plaintiff appeared to be a reliable historian, had no obvious pain, and had no difficulty walking, standing, or removing her socks and shoes. (AR 227.) Examination of Plaintiff's cranial nerves revealed a "[p]ositive finding of the left lower face weakness and a small scar which was remote and did not show any significant features except for facial weakness." (AR 228.) Plaintiff had dysesthesias*fn2 on the cheek area. Further, because of the facial weakness, Plaintiff had difficulty "blowing out her cheek." (AR 228.) Her eyelid muscles were not weak, and Plaintiff's upper face was not weak. (AR 228.) Dr. Mehdi indicates that the "rest of the cranial nerve examination from II-XII were normal." (AR 228.)

Dr. Mehdi provided diagnoses of left partial facial nerve injury and headaches. (AR 228.) He opined that

[b]ased on the claimant's history and examination, she has no limitations with lifting, carrying, standing, walking or sitting. No exertional imitations. No limitations regarding her use of her hands. She has no limitations with vision, speech or hearing. She has partial weakness of the left facial nerve which is producing asymmetry of her face and perhaps could be suffering from headaches which may or may not be secondary to the facial nerve injury which is old and chronic. (AR 228.)

On July 26, 2007, state agency physician Ernest Wong, M.D., reviewed Plaintiff's medical records and opined that Plaintiff had no exertional limitations; Plaintiff could frequently climb stairs, balance, stoop, kneel, crouch and crawl. (AR 231.) Dr. Wong also opined that Plaintiff had no manipulative, visual, communicative, or environmental limitations other than avoiding concentrated exposure to hazardous machinery and heights. (AR 231-32.)

On October 26, 2007, state agency physician James V. Glaser, M.D., reviewed Plaintiff's medical records and affirmed Dr. Wong's assessment. (AR 245.)

In December 2007, a treating clinician at Sierra opined that Plaintiff was not disabled (AR 252), but in June 2008, Plaintiff was given a temporary three-month disability certification because of facial neuralgia (AR 249).

B. Administrative Proceedings

The Commissioner denied Plaintiff's application initially and again on reconsideration. (AR 65-86, 87-95.) Consequently, on November 8, 2007, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 110.) A hearing was held February 5, 2009, before ALJ Michael J. Kopicki. (AR 22-57.)

1. Plaintiff's Testimony

At the hearing, Plaintiff testified that her disability onset date was March 1, 2007. (AR 28.) Plaintiff testified that she currently lives in a Christian group home. (AR 26.) Plaintiff explained that she feels she is disabled because she is not able to do anything without migraine pain, and the left side of her face causes such severe pain that she cannot sit up or walk straight. (AR 28.) The pain on the left side of her face is always present, but when it is "activated" it is really severe. (AR

29.) She can "pretty much deal with [the pain]" if she can hold her head, lie down, and take her medicine. (AR 29.) She experiences severe pain five out of seven days, which is often precipitated by movement, hot or cold weather, someone talking too loudly, or the television. (AR 29.) When the pain becomes especially severe, the only way to alleviate it is to lie very still and take her medication. (AR 29.)

Plaintiff takes Vicodin three to five times per day, but it causes side effects such as dizziness and dry mouth. (AR 30-31, 44.)She also testified that the medication makes walking and standing difficult and that it does not help at all other than providing relaxation. (AR 37, 42.) She does not drive, cook, or perform any cleaning tasks at her group home because her doctor excused her from such activities. (AR 34-35.) Her family does her shopping for her, and she spends her day watching television and lying down. (AR 35.) Her migraines cause her to experience blurry vision, which precludes driving a car. (AR 43.) She rated her pain level at a seven to an eight generally on a scale of one to ten, with ten being the worst, but when it is severe she rates the pain as a ...

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