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Lilley v. Commissioner of Social Security

June 9, 2010


The opinion of the court was delivered by: Conti, District Judge


Pending before this court is an appeal from the final decision of the Commissioner of Social Security (the "Commissioner" or "defendant") denying the claim of Tina Marie Lilley ("plaintiff") for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1381-83f. Plaintiff contends that the decision of the administrative law judge (the "ALJ") that she is not disabled, and therefore not entitled to benefits, should be reversed, or in the alternative remanded, because the decision is not supported by substantial evidence. Defendant asserts that the decision of the ALJ is supported by substantial evidence. The parties filed cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The court will deny plaintiff's motion for summary judgment and will grant defendant's motion for summary judgment because the ALJ's decision is supported by substantial evidence.

Procedural History

On January 25, 2007, an application for SSI was filed on plaintiff's behalf alleging disability due to depression and bipolar disorder.*fn1 (R. at 124-30, 154). Plaintiff's claims were denied on October 5, 2007. (R. at 80-84). Plaintiff's case then was randomly selected to test modifications to the disability determination process, and the reconsideration step of the administrative review process was eliminated and the case escalated to the hearing level. (R. at 82). Plaintiff requested a hearing, which was held before the ALJ on December 16, 2008. (R. at 34-78). Plaintiff, who was represented by counsel, testified at the hearing. (R. at 46-72). A vocational expert ("VE") also testified. (R. at 72-76). On March 4, 2009, the ALJ issued an unfavorable decision (R. at 16-33) and plaintiff filed a timely request for review with the appeals council. (R. at 4). After a denial of that request on July 30, 2009, and having exhausted all administrative remedies, plaintiff filed this appeal. (R. at 1-3).

Plaintiff's Background and Medical History

At the time of the hearing, plaintiff was nineteen years old. (R. at 46). Plaintiff discontinued her education in ninth grade. (R. at 48). In the past, plaintiff had performed minimal work as a babysitter. (R. at 48-49). Plaintiff asserts that she cannot work due to pain in her right leg secondary to a prior break, bipolar disorder, and depression. (R. at 50, 52).

Medical Evidence

On May 19, 2005, plaintiff was admitted to Mercy Hospital for treatment of a broken right femur stemming from a car accident. (R. at 336-56). A retrograde femoral nailing and rodding was performed on the same date. (Id.) Plaintiff was in stable condition after the operations. (Id.)

Plaintiff had a follow-up for her leg fracture on September 14, 2005. (R. at 277). Dr. Owen Nelson reported that plaintiff had resumed all her normal activities. (Id.) Plaintiff reported a little bit of pain in the knee with some catching impingement symptoms. (Id.) Dr. Nelson noted some soft tissue impingement over the screw heads, but no palpable tenderness to the fracture site. (Id.) He also noted that she was ambulatory without a limp. (Id.) Dr. Nelson suggested that he would wait a little longer to remove the hardware. (Id.) On November 25, 2005, plaintiff underwent x-rays of the right leg and knee due to complaints of pain and swelling. (R. at 275). The x-rays revealed the rod and screw fixation device from the prior fracture along with cortical thickening in the mid-femur compatible with old trauma. (Id.) No acute dislocation or fracture was noted. (Id.)

On March 23, 2007, plaintiff was seen in the emergency room at Highlands Hospital for complaints of severe pain in her knee after feeling a "pop." (R. at 298). Plaintiff underwent an xray, which revealed no evidence of fracture and intact hardware. (R. at 267). Ice and morphine were administered as well as a knee imobilizer and crutches. (R. at 300). Plaintiff was again examined at Highlands Hospital on September 19, 2007 for what she described as a "pop" in her leg when she went to get into a car. (R. at 259). An x-ray revealed an intermedullary rod and screw fixation device from her prior fracture with no additional fracture or dislocation and no abnormal soft tissue densities. (Id.)

Psychological Evidence

On November 4, 1999, plaintiff was given testing by her school psychologist, Dr. Joseph Alexander. (R. at 234). At the time, plaintiff was ten and had a verbal IQ score of 80, performance IQ score of 82, and full scale IQ score of 79, indicating intellectual efficacy within the borderline deficient to low average ranges. (R at 234, 236). Dr. Alexander noted that plaintiff had put forth average to failing grades throughout elementary school and had poor school attendance in past years. (R. at 235). Plaintiff's math, reading, and spelling were all associated with kindergarten to first grade levels. (R. at 236). Dr. Alexander suggested an individualized program and a personalized rate of progression in the learning support program. (Id.) He asserted that plaintiff "[would] most likely experience continued academic difficulty if required to progress at a rate commensurate with her grade mates without significant adaptation and intervention." (Id.)

On November 24, 2003, plaintiff was re-evaluated by the school psychologist. (R. at 237). Dr. Jay Steffy noted that plaintiff had been absent fourteen days of the school year to that point and had a history of absenteeism. (Id.) He noted that she followed directions, completed assignments, and accepted adult authority when in school. (R. at 237-38). Plaintiff's testing revealed a full-scale IQ of 90, a verbal comprehension index score of 91, a perceptual organization index score of 86, a working memory index score of 104, and a processing speed index score of 94. (R. at 238). These scores indicated the average range of overall/general cognitive ability. (Id.). Dr. Steffy opined that plaintiff needed to improve school attendance, reading comprehension, and basic division and multiplication. (R. at 241). Dr. Steffy noted that plaintiff got along well with teachers and peers, participated, and had friends in school. (Id.) Plaintiff was working at the fifth grade level in spelling and at the fourth grade level in other subjects. (Id.) Plaintiff met the requirements for a specific learning disability and was continued in the special education program. (R. at 241-45).

Plaintiff was psychiatrically hospitalized from December 19, 2006 to December 22, 2006, due to increasing depression with suicidal ideation. (R. at 213-18). Upon admission, plaintiff tested positive for and admitted using marijuana. (R. at 214-15). Plaintiff's sister reported that plaintiff had been depressed, feeling hopeless, and crying and had attempted to overdose on Trazadone. (R. at 215). Plaintiff reported that she had broken up with her boyfriend recently and had possibly suffered a miscarriage in the previous month. (Id.) Upon mental status examination, plaintiff presented as pleasant, tearful, and depressed. (Id.) She self-rated her depression as a six out of ten. (Id.) She contracted for safety at the examination, but did not deny that she had previously tried to kill herself. (Id.) Plaintiff denied homicidal ideation, hallucinations, and delusions. (Id.) She was ...

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