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Piedad Q. Lopez v. Michael J. Astrue

January 27, 2011


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 applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). 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 was born in 1965 and completed the fifth grade in Mexico. (Administrative Record ("AR") 585.) Plaintiff previously worked as a stock selector, thread drawer, and semiconductor loader. (AR 35.) She stopped working in June or July 2001 because of a work injury. (AR 24.) On October 12, 2004, Plaintiff filed applications for DIB and SSI, alleging disability beginning on July 30, 2001, due to lupus. (AR 5, 171-73, 205.)

A. Medical Evidence

1. Daniel Watrous, M.D.

On May 7, 2002, Plaintiff saw Dr. Watrous, a rheumatologist, and complained of aches and pains in her muscles and joints. (AR 337.) A physical examination revealed no significant tenderness to palpation or stress testing in the peripheral joints. (AR 337.) There was no evidence of vasculitis, tendonitis, bursitis, or fibromyalgia tender points. (AR 337.) Dr. Watrous diagnosed Plaintiff with "probable thyroid disease, which very well may be autoimmune," but doubted that Plaintiff had lupus. (AR 337.)

More than two years later, on August 3, 2004, Plaintiff returned to Dr. Watrous, complaining of increasing pain in her shoulders, knees, and paralumbar muscles, making it very difficult to be active. (AR 336.) Dr. Watrous's diagnoses included arthralgias and hypothyroid. (AR 336.)

On October 5, 2004, Plaintiff complained of weakness on her right side, complaining that her right arm was uncomfortable when she tried to comb her hair and that she occasionally dropped things. (AR 335.) Dr. Watrous recommended a weight loss and exercise program, but did not believe that Plaintiff had an autoimmune disease. (AR 335.)

2. Plaintiff's Function Report

On November 10, 2004, Plaintiff completed as part of her applications a function report, which the ALJ summarized in his decision as follows:

[Plaintiff] stated she lives in a house with her family. In the morning at 7:30 AM she makes breakfast and then drives her children to school. She takes care of her youngest child, who was then 3 years old. She makes dinner and cleans up the kitchen when she feels good. No one else helps her care for her family. She has no problem in personal care, such as bathing, caring for her hair, or feeding herself. She needs no special reminders to take care of personal needs and grooming. She prepares complete meals daily, and it takes her about 1 1/2 hours. She washes dishes, sweeps floors, and washes clothes, but does no yard work. It takes her about 1 1/2 hours to wash dishes and sweep the floor, which she does once a day. She goes outside twice a day. She walks and drives a car. She can follow spoken and written instructions well.

[Plaintiff] says her ability to handle money has changed, but does not say in what way. She gives no details except to say she can pay bills, count change, handle checking and savings accounts and shop by herself. She shops in stores for groceries, clothing, and household items. She spends about 2 hours a week shopping. Her hobbies are reading and watching television. She reads 2 or 3 times a week, and watches television every day. She can only read for a short time, as she gets headaches. She spends time with others on the phone 2 or 3 times a week. She does not need to be reminded to go places, and does not need anyone to accompany her. She gets along well with authority figures. She has never been laid off or fired from a job because of problems getting along with others. She can handle changes in routine fairly well. She stated she has a fear of being alone and a fear of heat. (AR 25, 226-33.)

3. Michael S. Barnett, M.D.

On December 9, 2004, Dr. Barnett, a board-certified psychiatrist, performed a consultative examination of Plaintiff. (AR 255-57.) Plaintiff's chief complaint to Dr. Barnett was that she became forgetful. (AR 255.) Plaintiff also stated to Dr. Barnett that she had "looked for work, but has been unsuccessful at finding any." (AR 255.)

Plaintiff reported to Dr. Barnett that she "will forget what she is doing at times and feels depressed to the point that she does not want to get up or groom herself." (AR 31, 255.) Plaintiff also stated that she had been feeling very withdrawn and had a sleeping problem for eight months. (AR 31, 255.) Her appetite had decreased, but her weight had increased. (AR 31, 255.) Plaintiff's energy was low, her concentration was poor, and she was tearful every day. (AR 31, 255.) According to Plaintiff, she heard a voice calling her about once a week. (AR 31, 255.) "The voices scare her and she looks to see who is there. She said she feels people watch her and that they can put thoughts in her head." (AR 31, 255.)

Dr. Barnett diagnosed Plaintiff with "Major Depressive Disorder, Single Episode, Severe, with Mood-Congruent Psychotic Symptoms." (AR 256.) Dr. Barnett further opined as follows:

[Plaintiff] has an acute psychotic depression. It is possible that her recent head injury may be contributing negatively to her mood status. Treatment with antidepressant and neuroleptic medications should be beneficial in restoring her functioning from a psychiatric point of view. There are educational limitations that would limit the number of jobs open to her in any case. Her [mental status examination] performance is appropriate for her educational level. Her depressive and psychotic symptoms would interfere with her ability to do work-related tasks in an eight-hour work situation. [Plaintiff] would have difficulty being able to understand and remember simple or complex work-related instructions and tasks. [Plaintiff] would not be able to sustain focused attention and concentration long enough to complete routine work-related tasks in a timely and appropriate way. She would need special or additional supervision. [Plaintiff] would not be able to interact independently, appropriately and effectively with co-workers, supervisors and the public. [Plaintiff] would be incapable of adapting to changes, hazards or stressors in the work environment. (AR 256-57.)

4. State Agency Physicians

On January 25, 2005, a state agency medical consultant, Brian Ginsburg, M.D., completed a psychiatric review technique form in which he opined that Plaintiff's major depressive disorder was not severe. (AR 347, 350.) Dr. Ginsburg concluded that Plaintiff's restriction of activities of daily living and difficulties in maintaining concentration, persistence, or pace were none to mild and that Plaintiff exhibited no difficulties in maintaining social functioning. (AR 31, 357.) Another state agency physician, Evangeline Murillo, M.D., affirmed Dr. Ginsburg's findings on August 29, 2005. (AR 347, 361-62.)

5. Joshua Trujillo, M.D.

On January 11, 2007, at Plaintiff's request, Dr. Trujillo completed a residual functional capacity ("RFC")*fn2 questionnaire (AR 410-14), in which he "went over the form page by page" with Plaintiff and "filled out responses based on her history and difficulty." (AR 435.) Dr. Trujillo noted that Plaintiff had a "history of lupus" and referred Plaintiff back to Dr. Watrous "so he can confirm the diagnosis of lupus and help us with any further treatment options." (AR 435.) Dr. Trujillo's diagnoses included systemic lupus erythematosus, hypothyroid, depression, anxiety, and chronic pain. (AR 410.)

Dr. Trujillo opined on the questionnaire as follows:

* Plaintiff's pain, fatigue, or other symptoms were severe enough to "frequently" interfere with attention and concentration needed to perform even simple work tasks. (AR 28, 411.)

* Plaintiff could maintain attention and concentration for 15 to 20 minutes at a time. (AR 28, 411.)

* Plaintiff was incapable of even "low stress" jobs and could walk only a block or two. (AR 28, 412.)

* Plaintiff could sit or stand for only 20 to 30 minutes at a time. (AR 28, 412.)

* In an eight-hour work day, Plaintiff could stand or walk for less than two hours and could sit for about two hours. (AR 28, 412.)

* Plaintiff would need to walk around every 20 minutes for 13 to 15 minutes at a time. (AR 28, 412.)

* Plaintiff would need to shift positions at will from sitting, standing, or walking. (AR 28, 413.)

* Plaintiff would need to take unscheduled breaks every one or two hours for 10 to 15 minutes. (AR 28, 413.)

* Plaintiff would not need to elevate her legs. (AR 28, 413.) * Plaintiff could lift and carry 20 pounds occasionally and 10 ...

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