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Hernandez v. Astrue

November 13, 2009


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her applications for Disability Insurance benefits ("DIB") and Supplemental Security Income benefits ("SSI"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred in 1) failing to properly consider the opinions of her treating physicians; 2) determining that her testimony was not credible; and 3) failing to determine whether she could "sustain work activity."*fn1 (Joint Stip. at 8-17, 24-28, 36-38.) For the reasons explained below, the Agency's decision is affirmed.


A. The Proceedings Before the Agency

On November 24, 1998, Plaintiff applied for SSI and DIB, claiming that she had been disabled since September 30, 1998, due to low back pain. (Administrative Record ("AR") 62, 88, 252.) After the Agency denied the applications initially and on reconsideration, Plaintiff appeared with counsel at a hearing before an Administrative Law Judge ("ALJ") on May 17, 2000, and testified. (AR 62, 66, 319-42.) On June 20, 2000, the ALJ issued a decision denying her applications. (AR 22-28.) Following the Appeals Council's denial of her request for review, Plaintiff filed an action in this court. The parties subsequently stipulated to a remand to the Agency for further consideration of Plaintiff's credibility and the treating doctor's opinion. (AR 356-64.)

On remand, the ALJ held another administrative hearing, at which Plaintiff again appeared with counsel and testified. (AR 495-508.) On July 25, 2002, the ALJ issued a decision, again denying Plaintiff's applications. (AR 267-72.) Plaintiff appealed to the Appeals Council, which remanded the case to a different ALJ with instructions to develop the record with respect to Plaintiff's treating doctor's opinion, evaluate Plaintiff's subjective complaints, and further consider Plaintiff's residual functional capacity. (AR 291-93.)

Thereafter, a third administrative hearing was held before a different ALJ. (AR 511-37). This time, the ALJ found that Plaintiff was disabled beginning January 1, 2004, but not before then. (AR 297-313.) Because the ALJ determined that Plaintiff had acquired sufficient quarters of coverage to remain insured through only December 31, 1998, he found that she was not entitled to receive DIB, but that she was eligible to receive SSI beginning January 1, 2004.*fn2

(AR 298-99.) Thereafter, Plaintiff filed the instant action, challenging the ALJ's finding that she was not disabled before January 1, 2004.

B. Summary of the Medical Evidence

Plaintiff developed a hernia in 1985, and underwent a ventral herniorrhaphy in December 1996, to repair it. (AR 206-07.) On September 22, 1998, Plaintiff complained of a sudden onset of abdominal pain and was treated at the emergency room at the Methodist Hospital of Southern California, where she was diagnosed with incarcerated hernia versus strangulated bowel. (AR 190-92.) Against medical advice, Plaintiff went home. (AR 188.) On September 30, 1998, she underwent a hernioplasty and lipectomy in Sonora, Mexico. (AR 161.) On December 12, 1998, Dr. Gustavo Angulo Sanchez in Sonora reported that she "presents spondylolisthesis of the L4, L5 stadium 1" and opined that she was, therefore, "incapacitated for an indefinite period of time, for the purposes of performing physical activities such as lifting, pushing, or abdominal flexion." (AR 164.)

The following month, on January 25, 1999, Dr. Gabriel Fabella, a consultative physician, examined Plaintiff and, despite noting mild limitations in her back, determined that she could lift and carry twenty pounds occasionally and ten pounds frequently, and could stand and walk for about six hours in an eight-hour workday. (AR 145-49.) On March 1, 1999, state agency reviewing physician Dr. Wallace Campbell endorsed these limitations, and added that Plaintiff could sit for six hours in an eight-hour workday and could frequently climb, balance, kneel, crouch, and crawl. (AR 150-57.)

On March 29, 1999, Plaintiff saw Dr. Gary Moscarello for a "second opinion." (AR 233.) He noted her complaints of pain in her lower back and right thigh, but also observed that she "walks around the room [and sat down]... readily." (AR 233.) Dr. Moscarello found that x-rays showed spondylolisthesis at L5, L6, but opined that "she is not having symptoms... that would require surgical intervention or that surgical intervention would help," and stated that she should lose weight and exercise. (AR 234.) Dr. Moscarello also noted that test results indicated that she had carpal tunnel syndrome in her right hand. (AR 234.)

On October 13, 1999, Plaintiff was involved in a car accident and suffered a contusion to her right thigh and an abrasion to her left leg. (AR 181.) She complained of lower back pain. X-rays of her lumbosacral spine showed a transitional lumbar vertebrae and "marked degenerative facet joint changes," but did not show spondylolisthesis. (AR 181, 186.)

On October 18, 1999, Plaintiff was evaluated by Dr. Stephen Roberts in connection with her accident. (AR 581-89.) Dr. Roberts noted multiple areas of spasm in Plaintiff's cervicothoracic and lumbosacral spine, and hematomas in her right and left thighs. (AR 584.) In follow-up visits between November 1999 and February 2000, Plaintiff complained of pain in her neck, trapezius, low back, and knee. Dr. Roberts noted diminished range of motion of the cervical and lumbosacral spine and paracervicothoracic and paralumbar spasm. (AR 587-88.) Plaintiff was referred for physical therapy, which she underwent between November 1999 and February 2000. (AR 167-80, 587, 588.) Her prognosis was said to be "fair." (AR 588.)

Plaintiff was also referred to orthopedic surgeon Frank Sorrentino. (AR 172.) On November 29, 1999, Dr. Sorrentino noted her complaints of cervical, dorsal, low back, left shoulder, and right thigh pain, and tingling and numbness of three fingers of her right hand. (AR 225.) He observed that she walked with a limp. (AR 226.) Plaintiff had a spasm in her trapezius, pain in her left shoulder, and a positive left straight leg raising sign. (AR 227.) Dr. Sorrentino also noted positive right Tinel's and Phalen's signs for carpal tunnel syndrome. (AR 227.) He diagnosed cervical, dorsal, and lumbosacral sprains, left rotator cuff tendinitis, a bulging disc at L5-S1, and a hematoma on the right thigh. (AR 228.) He recommended an MRI of the low back. (AR 228.) He concluded that Plaintiff "will be a ...

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