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De Lopez v. Astrue

February 3, 2009

MARIA L. ORTIZ DE LOPEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge

OPINION AND ORDER

Plaintiff Maria L. Ortiz de Lopez filed a complaint on September 11, 2007, seeking review of the Commissioner's decision denying her application for disability benefits. The Commissioner answered the complaint on February 11, 2008, and the parties filed a joint stipulation on April 30, 2008.

BACKGROUND

I.

On October 26, 2005 (protective filing date), plaintiff applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since April 12, 2005, due to high blood pressure and arthritis in her hands and knees. Certified Administrative Record ("A.R.") 76-80. The plaintiff's application was initially denied on December 28, 2005, and was denied again on June 6, 2006, following reconsideration. A.R. 32-42. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Joel B. Martinez ("the ALJ") on December 11, 2006. A.R. 43, 254-85. On January 26, 2007, the ALJ issued a decision finding plaintiff is not disabled. A.R. 11-26. The plaintiff appealed this decision to the Appeals Council, which denied review on April 27, 2007. A.R. 7-10, 243-53.

II.

The plaintiff, who was born in Mexico on May 17, 1945, is currently 63 years old. A.R. 77, 83-85, 257-58. She has a second-grade education, and previously worked as a machine operator. A.R. 95-96, 99, 148-55, 258, 260-66.

The sparse medical record shows that between January 12, 2004, and October 31, 2006, plaintiff received treatment from Omar Perez, M.D., who diagnosed her with arthralgia and right knee pain, among other conditions. A.R. 185-205, 231-37. Right knee x-rays taken June 25, 2004, were normal, as was a right leg venous duplex study performed on July 1, 2004. A.R. 197-98.

On April 12, 2005, Thomas Grogan, M.D., an orthopedic surgeon, examined plaintiff and diagnosed her with early right knee osteoarthritis, right shoulder impingement syndrome, osteoporosis, and other non-work-related conditions. A.R. 212, 228-29. Knee x-rays demonstrated early osteoarthritis, especially in the right knee as compared to the left knee. A.R. 229. Dr. Grogan opined plaintiff is physically incapable of working as a machine operator and should be precluded from that employment. Id. On December 8, 2005, Dr. Grogan reexamined plaintiff, and diagnosed her with right knee osteoarthritis, right shoulder impingement syndrome, osteoporosis, and other diseases. A.R. 227. Dr. Grogan reiterated plaintiff was unable to return to work as a machine operator. Id. Dr. Grogan opined plaintiff could perform light work, but should be restricted from working at heights or around moving machinery. A.R. 210-11. Dr. Grogan also opined plaintiff needed to alternate sitting and standing, and her breaks and lunch periods provided sufficient relief. A.R. 211.

On June 15, 2006, Dr. Grogan reexamined plaintiff, reiterated she was physically incapable of working as a machine operator, and opined: plaintiff could sit for 4 hours in an 8-hour day and 3 hours at a time, stand for 3 hours in an 8-hour day and 2 hours at a time, and walk for 2 hours in an 8-hour day and 1 hour at time; can occasionally lift and/or carry up to 5 pounds; could not use her hands for simple grasping, pushing and pulling of arm controls, or fine manipulation; could not use her feet for repetitive movements such as pushing and pulling leg controls; could occasionally bend, squat, crawl, climb, and reach; and was moderately restricted from working at unprotected heights, being around moving machinery, and driving automotive equipment, and mildly restricted from exposure to marked changes in temperature and humidity. A.R. 226, 230. On November 8, 2006, Dr. Grogan refined his opinion, concluding plaintiff: could sit for 5 hours in an 8-hour day and 3 hours at a time, stand for 4 hours in an 8-hour day, and 2 hours at a time, and walk for 3 hours in an 8-hour day and 1 hour at time; could occasionally lift and/or carry up to 5 pounds; could not use her hands for pushing and pulling of arm controls or fine manipulation, but could perform simple grasping; could not use her feet for repetitive movements such as pushing and pulling leg controls; could occasionally bend, climb, and reach, but could not squat or crawl; and was totally restricted from exposure to dusts, fumes and gases, moderately restricted from working at unprotected heights, being around moving machinery, and driving automotive equipment, and mildly restricted from exposure to marked changes in temperature and humidity. A.R. 242.

On December 13, 2005, nonexamining physician R.D. Fast, M.D., opined plaintiff: could occasionally lift and/or carry up to 50 pounds, kneel, crouch, or crawl; could frequently lift and/or carry up to 25 pounds, climb, balance or stoop; was limited in her ability to reach; and should avoid concentrated exposure to extreme cold and fumes, odors, dusts, gases, and poor ventilation. A.R. 214-21. On June 6, 2006, nonexamining physician Leonore Limos, M.D., reaffirmed Dr. Fast's opinions. A.R. 221.

DISCUSSION

III.

The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1172 ...


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