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Maria Elena Avila v. Michael Astrue

July 1, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Maria Elena Avila seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following a review of the complete record and applicable law, this Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based on proper legal standards. Accordingly, this Court affirms the Commissioner's determination.

I. Administrative Record

A. Procedural History

On June 30, 2005, Plaintiff filed an application under Title II for a period of disability and disability insurance benefits beginning April 30, 2005. The claims were initially denied on March 9, 2007. Plaintiff requested a hearing on May 1, 2007.

Plaintiff appeared and testified at a hearing on July 15, 2008. In a decision dated September 3, 2008, Administrative Law Judge Michael J. Kopicki denied Plaintiff's application. On October 2, 2009, the Appeals Council affirmed the ALJ's decision. On November 24, 2009, Plaintiff filed her complaint in this Court.

B. Factual Record

Plaintiff (born March 20, 1957) was an administrative assistant for Bank of America for over 27 years. She stopped working upon her hospitalization on April 15, 2005. Plaintiff initially alleged that her heart surgery and emotional problems, which caused weakness, shortness of breath, seizures, and her ensuing heart condition prevented her from returning to work.

Since early 2005, Plaintiff has experienced multiple health issues, including seizures, cirrhosis of the liver, diabetes mellitus, intracranial hemorrhage, aortic valve stenosis with valve replacement, pneumonia, congestive heart failure, hypothyroidism, anemia, obesity, recovery from alcoholism, gynecologic difficulties, and depression. She incurred broken ribs and a fractured spleen in a car accident. Because Plaintiff's appeal addresses only her claim of debilitating sleep apnea, however, this opinion considers only the facts relevant to this disorder.

Internist Steven Stoltz, M.D., evaluated Plaintiff for the agency on November 20, 2005. Although Plaintiff still exhibited symptoms of an auto accident two weeks before in which she broke multiple ribs, her chronic medical conditions were well-controlled. Plaintiff herself was unable to drive because of her seizure disorder. She told Stoltz that her single most severe factor at that time was depression. Stoltz recommended that the agency arrange for a psychiatric consultation. Because Plaintiff apparently did not complain of sleep apnea, Stoltz did not address it.

Psychologist William A. Spindell, Ph.D., evaluated Plaintiff for the agency on May 5, 2006. He described a well groomed and well informed, but tearful, woman. Her memory was good. Her affect was flat and she was depressed. Spindell found that Plaintiff tested as having borderline intellectual function but opined that her intellectual functioning was depressed from the residuals of open heart surgery and her seizure disorder. Spindell opined:

[Plaintiff] at age 49 has had a significant medical history. She worked for Bank of America for 30 years. After her car accident and aneurysm she went back to work, but only for a few days. She is confused by the details of her work. She is now the mother of a 17-year-old and finds herself easily accomplishing her [activities of daily living], but very slowly. She does shop, but has the assistance of a friend. She has a difficult time now in the labor market. She could be a risk to herself and others in the workplace. She could handle her own benefit funds if eligible for benefits.

AR 283.

Again, because Plaintiff apparently did not report sleep apnea to Spindell, he did not address it.

On May 15, 2006, Plaintiff's marriage and family therapist, Judith Finer described Plaintiff as "struggling with depressed mood, irritability, daily crying spells, and low self-worth." AR 293. On the same date, Yoshimura noted that Plaintiff had persistent depression. Despite medication, Plaintiff continued to experience break-through seizures. Neither Finer nor Yoshimura addressed sleep apnea.

A diagnosis of sleep apnea is first noted in Plaintiff's medical records on June 30, 2008, when Plamen V. Yosifov, M.D., reported moderate sleep apnea and recommended CPAP titration. Yosifov's diagnosis was based on a single night's use of a home sleep study device. On July 1, 2008, Plaintiff was advised that she met the diagnostic criteria for sleep apnea and directed to make an appointment for a two- to three-night study in the sleep laboratory of The Permanente Medical Group.

At the July 15, 2008 hearing, Plaintiff testified that she suffered from fatigue and an inability to concentrate for more than about fifteen minutes. She described her lack of concentration as losing interest in the task at hand because she was unable to understand it. She slept poorly and had pounding headaches nearly every day. In addition, a side effect of the Dilantin-Keppra prescribed to control her seizures was exhaustion and an inability to focus.

Plaintiff testified that she had maintained the same daily routine for several years. She slept poorly, awakened at 7:00 a.m. to take medication and feed her cats, then returned to sleep until about 9:30 a.m. She then got up and performed light housework. She again needed to rest at about 1:00 or 2:00 p.m., when she took a one-and-a-half- to two-hour nap. She sometimes fell asleep again for about an hour after taking her 5:00 p.m. medication.

She enjoyed sketching and painting, attended AA meetings, and sometimes talked to friends on the phone. Plaintiff watched little television, which put her to sleep, and read at night to go to sleep. She briefly attended an adult school computer class from 10:00 to 12:00 a.m., but stopped attending since she could not concentrate and would "go home and sleep."

Plaintiff's daughter would not permit Plaintiff to watch her infant grandson because of her propensity to doze off unexpectedly. Plaintiff admitted that because she had recently found herself snoring when her daughter allowed her to briefly watch the baby while her daughter ran ...

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