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Graciela Salinas v. Michael J. Astrue

December 6, 2011

GRACIELA SALINAS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff GRACIELA SALINAS ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Magistrate Judge for Findings and Recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application on July 10, 2008, alleging disability since August 15, 2006, due to stage III breast cancer, depression, right arm pain and right-sided upper body numbness. AR 95-104, 127-133. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 46, 66-70, 74. ALJ Sharon Madsen held a hearing on April 6, 2010, and issued a decision denying benefits on May 28, 2010. AR 22-30, 496, 518. The Appeals Council denied review on September 10, 2010. AR 6-8.

Hearing Testimony

ALJ Madsen held a hearing on April 6, 2010, in Fresno, California. Plaintiff appeared with her attorney, Gina Fazio. Vocational expert ("VE") Thomas Dachelet also appeared and testified. AR 496.

Plaintiff testified that she was born in 1957. AR 500. She is married and lives with her husband and their 20 year old son. Plaintiff's husband is not working, but is looking for a job. AR 501-502. Plaintiff completed the eighth grade. She has a driver's license and is able to drive. AR 502.

Plaintiff explained that she has problems taking care of her personal needs, such as taking a bath. She can't use her arms for some things and doesn't perform many household chores. She can wash some dishes and microwave food. AR 502-503. Plaintiff sometimes goes shopping and regularly goes to church. She has a two year-old grandchild but does not care for the child. AR 503. During a typical day, Plaintiff spends the day resting. She doesn't always watch television and does not read or listen to music. AR 503.

Plaintiff last worked in 2003 and was laid off after a few months. AR 505.

Plaintiff had breast cancer but has not had a reoccurrence. AR 505. She has numbness and pain in her right arm, as well as numbness in the right side of her upper body. AR 505. Plaintiff wears a stocking on her right arm all the time, though she still has problems with swelling. Plaintiff does home exercises but they do not help with the pain and swelling. AR 506. Plaintiff cannot reach back with her right arm and cannot use it to lift anything. She also has trouble using the right arm for gripping and grasping. AR 507.

Plaintiff also has diabetes, which is under control. She no longer takes medication but checks her blood sugar levels. Plaintiff was no longer taking blood pressure medication. AR 507.

Plaintiff thought that she could lift five pounds, using both hands. She has no problem with sitting or standing. Walking causes pressure on her right side and she estimated that she could try walking for an hour. AR 508.

When questioned by her attorney, Plaintiff testified that she was right-handed. She does not drive very much, maybe 30 minutes a week, and has trouble holding the steering wheel with her right arm. She could hold the wheel for about 30 minutes. Plaintiff has pain in her hands when she puts dishes into the dishwasher. AR 509. Plaintiff mostly uses her left hand to load the dishwasher. She sometimes needs help getting dressed. AR 510.

In addition to reaching back, Plaintiff also has trouble reaching up and forward. Plaintiff does not cook because she's scared of burning herself. She does not vacuum or do yard work, and uses her left hand to fold laundry. AR 511. Plaintiff explained that her left hand began hurting about a month ago. She is also having trouble holding onto things. AR 512.

Plaintiff went to Behavioral Health for depression about a month ago, after an eight to nine month wait because of insurance issues. AR 512-513. She is planning to go back for treatment. Plaintiff takes medication for depression, which helped "kind of, not very much." Plaintiff's medications make her weaker and she takes 15 minute naps everyday. AR 513.

When questioned by the ALJ, Plaintiff explained that she was taking Motrin for her arm pain and that it helps a little bit. AR 514.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift and carry 20 pounds occasionally, 10 pounds frequently, and sit, stand and walk for 6 hours. The VE testified that this person could perform Plaintiff's past work as a file clerk. AR 516.

For the second hypothetical, the ALJ asked the VE to add a limitation to occasional overhead and backwards reaching and a prohibition against forceful gripping and grasping. The VE testified that this person could perform unskilled, light work, with a thirty percent erosion. Possible positions included grader, flat work tier and information clerk. AR 516-517.

For the third hypothetical, the ALJ asked the VE to assume a person who could lift 20 pounds occasionally, 10 pounds frequently, sit, stand and walk for 6 hours and occasionally reach and handle. This person could occasionally perform forceful gripping and grasping and the right arm could be used as a "helper" only. The VE testified that this person could not work. AR 517.

Medical Record

After a diagnosis of stage III right breast carcinoma, Plaintiff underwent a right modified radical mastectomy and axillary node dissection on October 4, 2006. AR 216-217. On October 30, 2006, Robert W. D'Acquisto, M.D., noted that an October 26, 2006, PET scan and CT scan were negative for metastatic disease. He diagnosed her with aggressive, large right breast cancer with two positive lymph nodes. He recommended that Plaintiff start chemotherapy on November 13, 2006. AR 332, 336-337.

Plaintiff returned for follow-up on February 26, 2007. She reported that she was extremely depressed, though she wouldn't explain why. Dr. D'Acquisto recommended that Plaintiff see the social worker to discuss the issue. AR 280.

On March 1, 2007, Dr. D'Acquisto noted that Plaintiff was feeling much better, both physically and psychologically. Plaintiff had completed her chemotherapy and was referred for radiation therapy. AR 275. Her chest port was removed on March 2, 2007, after an infection. AR 276.

Plaintiff saw Li Liu, M.D., for a radiation oncology follow-up on July 5, 2007. She had no specific complaints and denied upper extremity swelling or pain. There were no obvious signs of anxiety, agitation or depression and short and long term memory seemed to be intact. There was no evidence of disease. AR 360.

Plaintiff was seen in follow-up on August 1, 2007. She was doing extremely well and her only complaint was fatigue. AR 255.

On October 5, 2007, Plaintiff began complaining of right arm weakness. She was diagnosed with residual right shoulder/arm weakness. AR 209.

On October 24, 2007, Plaintiff returned to Dr. D'Acquisto, who noted that Plaintiff was doing very well and reported that her recent PET scan and mammogram were negative. Other than toenail fungus, her examination was normal. AR 249-251.

Plaintiff was seen at Alta Family Health Clinic on January 8, 2008. She complained of right arm pain for the prior three weeks and needed paperwork filled out. Plaintiff reported soreness in the right arm since her mastectomy and an inability to rotate her arm as much as she used to. Plaintiff also reported feeling depressed because of her cancer diagnosis and felt she was mentally unable to work or go back to school. Plaintiff was sad and tearful and had limited range of motion in the right arm. The right arm was also weaker than the left at 4/5. She was diagnosed with depression and right arm pain. AR 409.

On January 16, 2008, Plaintiff was seen at Kings River Physical Therapy for an initial evaluation. Plaintiff reported that she began experiencing pain in her right shoulder two weeks ago. She was able to lay on the right side without discomfort and does not wake to pain. Plaintiff had decreased range of motion in the right shoulder, decreased AC joint mobility, mild postural deviations and subjective reports of recent onset of pain. Timothy L. Altomare, P.T., recommended that Plaintiff undergo three therapy sessions per week for eight weeks. AR 398-399.

Plaintiff returned to Dr. Liu on January 17, 2008, for radiation oncology follow-up. She attended physical therapy for her right arm and reported significant improvement in range of motion, though she continued to have numbness in the right arm. On examination, there was no evidence of disease. AR 359.

Plaintiff was seen in follow-up on February 29, 2008. Plaintiff complained of difficulty with range of motion of the right arm, and slight swelling in the upper part of the arm. There were no complaints of pain and no signs of recurrent breast cancer. Plaintiff was doing "very well" and was given a prescription for physical therapy to try and improve range of motion in the right arm. AR 244.

Plaintiff was discharged from physical therapy on April 28, 2008. She reported improvement in her range of motion and stated that she is performing exercises at home as instructed. On examination, range of motion in the shoulder improved and strength was 5/5. Joint mobility was unremarkable. Plaintiff demonstrated excellent tolerance to the home exercise program. Range of motion had improved with decreased reports of pain. AR 400.

Plaintiff returned for follow-up on May 23, 2008, and reported that she was felling well and that physical therapy helped somewhat. Plaintiff complained of some sadness and daytime crying and stated that she and her husband were out of work. Plaintiff was given samples of Effexor. AR 244.

Plaintiff was seen at Alta Family Health Clinic on June 27, 2008, for lab work and completion of Social Security paperwork. Plaintiff was wearing a compression tube/sock on her right arm and was tearful at ...


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