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Maria Quesada v. Michael J. Astrue

September 26, 2011


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge




On May 26, 2010, Plaintiff Maria Quesada filed a complaint pursuant to section 405(g) of the Social Security Act requesting judicial review of the final decision of the Commissioner of the Social Security Administration (hereinafter "Commissioner" or "Defendant") regarding the denial of Plaintiff's claim for disability insurance benefits. (ECF No. 1.)

On November 29, 2010, Defendant filed an answer (ECF No. 8), and lodged the Administrative Record (hereinafter "AR"). (ECF No. 9.) On May 21, 2011, Plaintiff filed a Motion for Summary Judgment. (ECF No. 13.) On July 1, 2011, Defendant filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment. (ECF No. 18.) Plaintiff filed an Opposition on July 16, 2011. (ECF No. 19.)

The Court finds the motions appropriate for submission on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). For the reasons set forth herein, the Court hereby DENIES Plaintiff's Motion for Summary Judgment (ECF No. 13) and GRANTS Defendant's Cross-Motion for summary judgment (ECF No. 18).


On February 20, 2007, Plaintiff filed an initial application for Disability Insurance Benefits. (AR 162-64.) Plaintiff alleged a disability beginning on April 1, 2002. (AR162.) Plaintiff's claim was denied initially on May 25, 2007 (AR 77-80), and upon reconsideration on March 6, 2008 (AR 84-88). Plaintiff filed a timely request for a hearing before an Administrative Law Judge (hereinafter "ALJ") on July 19, 2008. (AR 89-90.) On August 21, 2009, Plaintiff testified at an administrative hearing before an ALJ. (AR 34-74.) She was represented by Stuart Atcheson, Esq. (AR 34.) Dr. Arthur Brovender,*fn1 a medical expert, and Nellie Katsell, a vocational expert, also testified at the hearing. (AR 34; 57-74.) On September 29, 2009, the ALJ denied Plaintiff benefits. (AR 20-32.) The decision of the SSA became final when the Appeals Council adopted the ALJ's findings by a decision dated March 30, 2010. (AR 1-4.) Thereafter, Plaintiff filed the instant action on May 26, 2010. (ECF No. 1.)


Plaintiff was born on July 9, 1959 in Gomez Palacio, Durango, Mexico and moved to the United States at approximately age 28 in 1987. (AR 38; 314.) Plaintiff alleges disability due to multiple back and shoulder injuries. (AR 49-51.) Plaintiff first injured her right arm in a November 2001 work-related accident. (AR 50.) On February 11, 2002, Plaintiff tripped and fell while working as a delivery driver for United Courier Services, further injuring her right shoulder and back. (AR 39, 372-73.) Around the same time, Plaintiff also injured her arm in an automobile accident. (AR 50-51.) As a result of her alleged disability, Plaintiff claims she has been unable to work since February 2002. (AR 50.)

A. Plaintiff's Date Last Insured

As an initial matter, the Court notes the Administrative Record in this case is voluminous and contains medical records dated well after Plaintiff's date last insured of December 31, 2002. At her hearing, Plaintiff argued her date last insured was December 31, 2007. (AR 52.) The ALJ, however, determined Plaintiff was not fully insured after 2002 and therefore found Plaintiff's date last insured was December 31, 2002. (AR 25.) Specifically, the ALJ stated:

The claimant argues that her date last insured is December 31, 2007. She is mistaken. To be eligible for Disability Insurance Benefits one must not only have sufficient quarters of coverage, 20 quarters of coverage in the last 40 quarters, one must also be "fully insured" (20 CFR 404.130). In this case, while the claimant has acquired sufficient quarters of coverage to potentially be insured into 2007 using the 20/40 test, she was not "fully insured" after December 31, 2002.

To be "fully insured" one must have a quarter coverage for each year after 21 (20 CFR 404.110(b)(2)). In this case, the claimant was born on July 9, 1959. As such, she reached age 21 in 1980. Thus, to be insured in 2003 or thereafter, she would require 22 quarters of coverage for 2003 and 23 quarters of coverage for 2004, and so on. In this case, the claimant has only acquired 21 quarters of coverage total. Therefore, she is not "fully insured" after 2002, and thus her date last insured is December 31, 2002 (Exhibit 1D). (Id.) Plaintiff does not dispute the ALJ's determination of her date last insured in her Motion for Summary Judgment. (See ECF No. 13-1.) Accordingly, the Court applies the December 31, 2002 date of last insured to its analysis in this case.

The Court further notes the Administrative Record contains medical records relating to Plaintiff's shoulder and back injuries, as well as various psychiatric disorders, pain disorders, diabetes and bladder dysfunction. In her application for benefits, Plaintiff claimed she had been unable to work because of a "disabling condition on April 1, 2002." (AR 162.) At her hearing, Plaintiff seemed to testify she had been unable to work since 2002 because of her back and shoulder injuries, in combination with incontinence issues. (AR 50-51.)

In his opinion, the ALJ noted Plaintiff was "diagnosed, after her date last insured, with symptoms of anxiety and depression, borderline intellectual functioning, as well as a pain disorder." (AR 26.) He did not consider these conditions in his analysis, however, because he concluded "there is no reliable medical evidence of psychiatric or cognitive impairment on or before the claimant's date last insured." (Id.) He further recognized the record reflects cervical complaints and allegations of bladder dysfunction. (Id.) Again, the ALJ did not address these conditions because he found there was "no medical evidence of these conditions being presen[t] or symptomatic prior to December 31, 2002."*fn2 (Id.)

Plaintiff also does not dispute these findings in her Motion for Summary Judgment. (See ECF No. 13-1.) In fact, Plaintiff does not even mention her psychiatric disorders, pain disorders, diabetes or bladder dysfunction in the briefing before the Court. (Id.; ECF No. 19.) Thus, because Plaintiff appears to challenge the ALJ's findings with regard to her back and shoulder injuries only, the Court limits its discussion to the medical evidence of these conditions.

B. Medical Evidence

1. Treating Physician Evidence

a) Dr. Jeffrey Bernicker

On March 21, 2002, Plaintiff's primary physician referred her to Dr. Bernicker, an orthopedic specialist. (AR 224.) Plaintiff complained of pain in her lower back, leg, and right shoulder. (Id.) She described a constant, sharp pain from her lower back that prevented her from lifting more than 8-10 pounds and claimed she could not sit for more than one hour at a time. (AR 225-26.) She further reported experiencing intermittent pain and numbness in her left leg and right shoulder. (AR 226-27.)

From the history and records provided, Dr. Bernicker stated it was reasonable to assume Plaintiff's pain was the result of her workplace injury on February 11, 2002. (AR 231.) Dr. Bernicker examined her lumbar spine region, reporting tenderness and trace muscle spasm. (AR 229.) Upon reviewing her February 25, 2002 MRI results, Dr. Bernicker found mild spondylosis of the lower lumbar spine, most pronounced at L4-5. (AR 228.) He concluded Plaintiff's back would likely respond well to chiropractic and aquatherapy protocols. (AR 230-31.) As to Plaintiff's shoulders, Dr. Bernicker found her right shoulder showed a slightly lower range of motion than her left. (AR 229-30.) He concluded Plaintiff demonstrated symptoms consistent with an impingement disorder and recommended an MRI of the shoulder to rule out a rotator cuff tear. (AR 231.)

On May 9, 2002, Dr. Bernicker reevaluated Plaintiff's condition. (AR 1026.) Plaintiff reported persistent, constant low back pain extending through both lower extremities into her toes with diffuse numbness and tingling. (Id.) She had not responded to the aquatherapy protocol. Dr. Bernicker noted Plaintiff appeared to be in "significant distress" and indicated her desire to proceed with lumbar surgery. (AR 1027.) Dr. Bernicker recommended a lumbar discography, an injection technique used to evaluate back pain in patients who have not responded to less invasive forms of therapy. (Id.)

Dr. Bernicker evaluated Plaintiff again on July 15, 2002, following her lumbar discography. (AR 212, 1021.) The discography results indicated there was significant morphologic changes of the discs at L4-5 and L5-S1. (AR 1021.) Dr. Bernicker "felt that these disc [sic] were pathologic to a high degree of confidence." (AR 1021-22.) Though Dr. Bernicker explained conservative methods of care could yield a result, Plaintiff reiterated her desire to proceed with surgical lumbar fusion. (AR 1022.) Dr. Bernicker described the procedure in detail and received Plaintiff's informed consent before authorizing surgery. (Id.) However, Plaintiff did not undergo surgery at that time.

b) Dr. Bruce Van Dam

In January 2003, Plaintiff's attorney referred her to Dr. Bruce Van Dam, an orthopedic spine specialist. (AR 956.)Plaintiff complained of lumbosacral pain associated with bilateral lower extremity radicular pain. She also complained of pain in her right shoulder. (AR 957.) She stated she felt most comfortable assuming a fetal position on her right side. She claimed to have difficulty sleeping and was unable to sit or stand in the same position for long periods of time. (Id.)

In Dr. Van Dam's opinion, Plaintiff most likely sustained an aggravation of a pre-existing lumbar condition. (AR 959.) He found Plaintiff suffered from instability and stenosis at L4-5 with discogenic lumbar pain at L5-S1, likely the result of her industrial injury. (Id.) Dr. Van Dam further reported Plaintiff had a partial tear in the supraspinatus tendon of her right shoulder. (AR 960.) Based on her condition, Dr. Van Dam concluded Plaintiff was temporarily totally disabled. (Id.) He found Plaintiff was unlikely to improve absent surgical intervention for the lumbar injury. (Id.)

The record indicates Dr. Van Dam continued to treat Plaintiff for several years and consistently opined that Plaintiff remained temporarily totally disabled. (See AR 379-618; 862-92; 936-60.) He continued to recommend Plaintiff undergo surgery for both her back and shoulder injuries. (Id.) Dr. Van Dam further maintained that she did not present any signs of "psychiatric illness or malingering." (AR 348, 352. ) Instead, he claimed other physicians may have misinterpreted her "cultural response to the injuries" as an exaggeration of symptoms.*fn3 (AR 352.) Ultimately, on February 8, 2007, Dr. Van Dam performed Plaintiff's lumbar spine surgery at L4-5 and L5-S1. (AR 930-31.)

2. Examining Physician Evidence

a) Dr. Vert Mooney

On August 27, 2002, Dr. Vert Mooney evaluated Plaintiff on behalf of the State Compensation Insurance Fund. (AR 233-34.) Dr. Mooney reviewed Plaintiff's medical records and work history and conducted a physical examination. (AR 234-39.) Plaintiff complained of pain throughout her posterior torso up to the neck, along with pain in the right shoulder and legs. (AR 238.) Dr. Mooney diagnosed Plaintiff with an ...

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