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Erendira Lucatero De Lopez v. Michael J. Astrue

August 5, 2011


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


Plaintiff Erendira L. De Lopez, by her attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits (DIB) under Title II of the Social Security Act and for supplemental security income ("SSI") pursuant to Title XVI 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, this Court concludes that substantial evidence supported the Commissioner's denial of benefits.

I. Administrative Record

A. Procedural History

On March 7, 2006, Plaintiff applied for disability benefits pursuant to Title II of the Social Security Act and for supplemental security income ("SSI"), alleging disability beginning March 17, 2006. Her claims were initially denied on October 11, 2006, and upon reconsideration, on April 20, 2007. On May 9, 2007, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at a hearing on September 2, 2008. On October 29, 2008, Administrative Law Judge James P. Berry denied Plaintiff's application. The Appeals Council denied review on March 10, 2010. On July 20, 2010, Plaintiff filed a complaint seeking this Court's review.

B. Factual Record

While working as a housekeeper for Merry Maids in December 2000, Plaintiff (born January 18, 1955) fell and injured her hands, arms, shoulders, and back in an on-the-job accident. Thereafter, she underwent unsuccessful surgery on her dominant right hand. She could only write for five to ten minutes before experiencing pain. (The agency interviewer observed that Plaintiff had trouble sitting and winced when she used her hands to write.)

From 2001 to February 2006, Plaintiff worked as a hotel housekeeper in Yosemite, commuting by car from her home in Madera, California. She left her work when her pain and joint inflammation rendered her unable to clean sufficient rooms (twelve rooms per day) to keep her job. Moving heavy furniture and pushing the vacuum cleaner increased the pain and inflammation in her hands, arms, and back. Although she controlled her pain using Tylenol and rest, her body ached, and she slept poorly. Because of bladder reconstructive surgery, she urinated approximately every half hour.*fn2

Plaintiff lived with her husband and mother. She drove herself to shop, to church and to pay bills. She shopped for about two hours once a week. Plaintiff testified that she could lift little more than a grocery bag or a gallon of milk. After preparing and eating her breakfast, her back pain became unbearable and she would lie down. She did small (ten pound) loads of laundry two or three times weekly. She washed dishes although it exacerbated her back pain. Because she frequently dropped and broke dishes, she used disposable dinnerware and utensils. She continued to cook full meals but could no longer lift the pots and pans. Sometimes she watched television but her medication often made her fall asleep. Although she attended church three times weekly, she often left early because she could no longer bear to sit and stand. Because of her hand pain, she had difficulty with shoes and buttons.

At the time of the hearing, Plaintiff's medications included Prednisone, Plaquenil, Imodan, Roxine, and Cymbalta. She could not afford to buy her medications and depended on her physicians to give her samples.*fn3 When samples were not available, she took only Tylenol. When available, prescription pain relievers relieved about 80 percent of her pain but made her dizzy. Cymbalta put her to sleep.

Plaintiff expressed frustration about her inability to do the things she liked to do. She had always been independent and worked. As a result, she suffered depression and anxiety. She had become forgetful and had trouble concentrating.

Plaintiff completed the GED in Spanish. She read and wrote only a little English. Other sources, including her medical records, record that she is completely unable to communicate in English.

Dr. Lewis. Treatment of Plaintiff's injuries following her accident in December 2000 was managed by industrial physicians provided through workers' compensation. On January 3 and 5, 2001, Charles O. Lewis III, M.D., provided follow-up care for injuries described as cervical dorsal lumbar strain, left shoulder strain, and right and left wrist strain. Her condition improved with physical therapy.

Dr. Ahmed. At some point, Plaintiff began treatment with orthopedist Khalid Ahmed, M.D., in Pico Rivera, California. On October 21, 2001, Ahmed performed surgery on Plaintiff's right wrist, discovering that Plaintiff had not only carpal tunnel syndrome, but also flexor tenosynivitis.*fn4 In May 2001, Ahmed referred Plaintiff to neurologist Ronald Cyrulnik, M.D., who conducted tests and determined that Plaintiff had a nerve root compromise at C-7 bilaterally. In May, Ahmed also referred Plaintiff for magnetic resonance imaging of her spine. Imaging of Plaintiff's lumbar revealed straightening of the lumbar lordotic curve, disc dehydration and a mild posterior disc bulge at L5-S1, and a small annular fissure in the central third of the disc bulge. Imaging of her cervical spine revealed a five degree dextrororoscoliosis centered at C7 and dehydration and a small posterior disc bulge at C5-6.

In a workers' compensation report dated June 21, 2002, Ahmed noted that Plaintiff had carpal tunnel syndrome in both hands, with the left hand more seriously affected that the right hand, which had been surgically released. He also noted that Plaintiff's herniated cervical and lumbar discs had been treated with epidural facet injections with good results.

On June 27, 2002, Cyrulnik repeated upper extremity testing, which indicated compromised function of the median nerve in Plaintiff's left wrist (carpal tunnel syndrome) and compromised function of the right ulnar nerve (cubital tunnel syndrome).

Dr. Samrao. Internist Satwant Samrao, M.D., has been Plaintiff's primary care physical since September 12, 2005. Plaintiff's initial complaints included all over aches and pains, morning joint stiffness, menopausal symptoms, sadness, fatigue, dyspepsia, and headaches. She complained to Samrao that her prior doctors were not helping her. Samrao diagnosed, among other things, arthralgias and myalgias of undetermined etiology and depression. Plaintiff continued to see Samrao for regular care, including such issues as bronchitis and viral gastroenteritis.

On February 10, 2006, Plaintiff complained of aches and pains with fever and chills, and told Samrao that while in Mexico, doctors had diagnosed pneumonia and performed many tests that she did not understand.*fn5 Samrao considered the increased body pains to be associated with Plaintiff's illness, which he suspected could be coccidiodomyosis (valley fever). Plaintiff was still ill when she returned on February 14, 2006. Testing revealed that her problem was not coccidiodomyosis, but a CT scan revealed an abnormal chest mass. Samrao order further testing for coccidiodomyosis and hepatitis. When Plaintiff returned on March 2, 2006, she was feeling better except for right arm and upper back pain, all further testing was negative.

On March 24, 2006, Plaintiff returned to Samrao, reporting that she had pain in her right shoulder and could not work. She was unable to sleep. She had applied for social security disability. Samrao granted Plaintiff three more months off of work and noted, "[S]he [h]as requested to continue her process for social security disability, more than likely she will be denied." AR 252.

Samrao certified to her employer that Plaintiff's persistent pain prevented from working and that he was treating Plaintiff for subacromial bursitis and depression. Samrao noted that Plaintiff had poor pain tolerance. Samrao continued to provide periodic medical (disability) excuses for work throughout his treatment of Plaintiff.

On April 24, 2006, Plaintiff told Samrao that she had pain throughout her body, her bones hurt, and she had low back pain and pain in both legs. She requested anti-inflammatory medication. Samrao diagnosed fibromyalgia, injected Plaintiff's right median nerve with Kenalog and Marcaine to provide pain relief, and referred her for lumbosacral spine x-rays. The x-rays revealed a "normal lumbosacral spine." AR 309. Plaintiff returned on May 5, 2006, complaining that her aches and pains continued and advising Samrao that she needed to have her "forms filled." Samrao began slowly increasing Plaintiff's antidepressant, suspecting that her pains were due to depression.

Because of Plaintiff's complaints of bilateral neck pain radiating toward both hands, Samrao referred Plaintiff to Perminder Batia, M.D., of the Neuro-Pain Medical Center, who conducted EMG studies of Plaintiff on June 7, 2006. Batia reported that the results of the studies were normal.

On July 10, 2006, Plaintiff complained to Samrao that she had seen Batia, who had prescribed Naproxen, which made her bloat. Plaintiff further complained that she did not want to take Vicodin or Tylenol with Codeine, which did nothing but make her sleepy. Nor did she want to take morphine, since she hurt all the time. Samrao diagnosed subacute lupus erythematosus and brain syndrome.

Samrao referred Plaintiff to rheumatologist Yasmeen Khalid, M.D. On July 31, 2006, Plaintiff complained to Samrao that the medications were expensive. Samrao's notes are not clear but suggest that Plaintiff may not have filled the prescription.

According to Samrao's notes, at the August 31, 2006 appointment, Plaintiff said: I am here for a recheck. I want my papers filled up. I went to a doctor in Fresno. He told me I have fibromyalgia then I need to lose weight. I need to do exercise, same thing a Hispanic doctor told me. I take Neurontin it is helping me. The medication gave me last time they helped me.

AR 347.

Samrao diagnosed chronic pain syndrome, chronic myalgia and arthralgias, and hypothyroidism.*fn6

Samrao's notes again quote Plaintiff's comments at the October 31, 2006 appointment: I am having aches and pains. My joints hurt. My muscles hurt. I have some medications from Mexico. I do not know what those are. No loss of weight or loss of appetite. I applied for some social security, they denied me.

AR 344.

On November 16, 2006, Plaintiff told Samrao: I am here for lab results. It is getting cold. I am hurting more, my muscles hurt more, my joints hurt more and I am moving to Mexico for two or three months. I would like my disability extended. I will come back at the end of February. I have an appointment with the rheumatologist in May 2007.

AR 340.

Samrao noted that Plaintiff's general physical condition was unchanged.

On February 15, 2007, Plaintiff told Samrao: I need medication refills. I have aches and pains all over the body. I hurt. My joints are stiff in the morning. I went to Mexico. I am taking all these medications, sometimes in the night I have to take ...

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