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Rachel Escutia v. Michael J. Astrue

February 7, 2012

RACHEL ESCUTIA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Rachel Escutia ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income benefits pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

On September 30, 2004, Plaintiff filed her first applications for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI, respectively, of the Social Security Act (the Act), alleging disability beginning November 1, 2003. AR 62. These applications were ultimately denied by an Administrative Law Judge (ALJ), who issued a July 2006 decision finding Plaintiff not disabled. AR 60-67. Plaintiff did not appeal this ALJ decision.

On November 14, 2006, Plaintiff reapplied for disability insurance and supplemental security income benefits, alleging disability beginning November 1, 2003. See AR 166-68, 169-76. Plaintiff's applications were denied initially and on reconsideration, and Plaintiff requested a hearing before an ALJ. AR 60-67. ALJ Michael J. Kopicki held a hearing on May 7, 2009, and issued an order denying benefits on July 28, 2009, finding Plaintiff was not disabled. AR 5-16. This appeal followed.

Medical Record

The record is summarized here in chronological order with particular regard to the reports of J. Luis Bautista, M.D., Adi Klein, M.D, and Greg Hirokawa, M.D. Nonetheless, the record as a whole was reviewed and will be specifically referenced as necessary to this Court's decision. AR 278-517.

Plaintiff began receiving treatment for her Pemphigus Vulgaris in 2004. AR 352-98. In June 2005, Plaintiff went to the hospital for a fever and sore throat. AR 315. She was diagnosed with strep throat, given medication, observed for a few hours, then discharged ambulatory and with a steady gait. AR 317-18.

In February 2006, Plaintiff went to the hospital for having a walnut stuck in her throat. AR 305. A computed tomography (CT) scan was normal and showed no soft tissue mass, no epiglottitis, no displacement, no narrowing of the airway, and no foreign object. AR 320. Plaintiff was given Maalox and lidocaine, observed for a time, and was discharged and directed to follow-up with her primary care doctor. AR 310. Three months later, in May 2006, Plaintiff visited her physician J.

Luis Bautista, M.D., with complaints of back pain. AR 454. She also had a sore on her ring finger; Dr. Bautista lanced her sore and told her to keep the area clean. AR 454. In July 2006, Plaintiff sought treatment for a blister on her arm approximately 1 inch wide and 1 inch tall and an excoriated blister on her underarm. AR 452. Dr. Bautista prescribed medication and directed Plaintiff to keep the area dry and clean. AR 452. At another visit later that same month, Plaintiff complained of back pain due to a fall. AR 451. In September 2006, Plaintiff visited the hospital with complaints of blisters in her arm pit area. AR 301. She was given antibiotics and pain medication and directed to follow-up with her primary care doctor. AR 303.

From November 2006 through May 2007, Plaintiff attended regular medication management appointments for her pemphigus. AR 340-49, 481-90. Plaintiff discontinued the medication on May 11, 2007, at which time she reported having "no" pain. AR 480.

In November 2006, Plaintiff visited Denise E. Greene, M.D., at Bautista Rural Medical Clinic, complaining of a blister on her abdomen. AR 448. Dr. Greene prescribed Levaquin medication for 7 days and directed Plaintiff to return if it did not improve. AR 448. Plaintiff next visited the clinic in April 2007, at which time she had no lesions and her neck was supple with no masses. AR 447. She had an infection in her finger. AR 447.

In March 2007, Plaintiff was examined by psychologist Greg Hirokawa, Ph.D. AR 399-403. Plaintiff gave marginal effort during the exam. AR 399. Plaintiff told Dr. Hirokawa that she had been getting mental health treatment for over two years and had attempted suicide on four occasions. AR 400. Upon examination, Dr. Hirokawa opined that Plaintiff's symptoms of depression were within the "mild" range. AR 402. Thereafter, Social Security staff called to ask Plaintiff about her mental health treatment, and Plaintiff admitted that she did not receive any mental health treatment and had not gone to the hospital or been seen for the alleged "suicide attempts." AR 240, 429.

In April 2007, Plaintiff was examined by state agency physician Adi Klein, M.D. AR 404-08. At the time of the exam, Plaintiff had one sore in the back of her mouth and tongue fissures, with no pharyngeal hyperemia (no accumulated blood flow in the throat). AR 405. Upon examination, Plaintiff checked out as normal with her knees and ankles experiencing "mild effusion" with no deformity, normal range of motion, and no instability. AR 406-07. Dr. Klein took Plaintiff's reported pemphigus into account and opined that "due to autoimmune disease," Plaintiff was limited to lifting and carrying 20 pounds occasionally and 10 pounds frequently, standing and walking for 2 hours, and sitting for 6 hours. AR 407. Dr. Klein opined that Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations. AR 407.

Plaintiff returned to Bautista Clinic in May 2007for bloodwork; she reported feeling "sleepy, lazy, unable to do any kind of work, [and had] body aches." AR 446. The following month, she was diagnosed with Type 2 diabetes mellitus, a B12 vitamin deficiency, and low iron. AR 444. Plaintiff did not complain of blisters at this appointment. AR 444, 446. At follow-up appointments in July 2007, Plaintiff said she felt "much better" and had no lesions and her neck was supple with no masses. AR 442, 443.

In August 2007, Plaintiff had a biopsy of a 4 mm x 4 mm section of her tongue. AR 478-79. The treating pathologist's initial diagnosis was a "condyloma," which is a wartlike growth on the skin or mucous membrane. AR 478. However, although the tissue sample contained an ulcer and inflammation throughout, it had no "cytomorphologic" cell structure changes that would support a diagnosis of condyloma. AR 478. There was no evidence of a papilloma virus. AR 478. There was no fungi/yeast nor other abnormal substances. AR 478. The pathologist suggested that a possible cause was "prolonged physical stimulation/irritation (such as by a dental prosthesis or a malaligned tooth)." AR 478.

In October 2007, Plaintiff visited Erik Strom, M.D. complaining of neck pain. AR 505. X-rays showed that Plaintiff's cervical spine had normal alignment and curvature; intact disc spaces; and no evidence of acute trauma or any other significant pathology. AR 505. Dr. Strom concluded that Plaintiff had a "normal cervical spine." AR 505. X-rays of the thoracic and lumbar spine showed a mild compression fracture (which may be acute), normal disc space height, intact pedicles, and normal paravertebral soft tissues. AR 506-07. Dr. Strom also noted that Plaintiff had a "normal lumbar spine." AR 507.

In November 2007, Plaintiff complained of an oral blister and her physician increased her medication dosage. AR 476. Plaintiff returned three months later and said that her tongue was "better." AR 475. In June 2008, Plaintiff visited her physician but did not complain of any lesions. AR 474.

In October 2008, Plaintiff visited her physician and requested a different treatment for her pemphigus. AR 472. Two months later, she said that the new medication did not help. AR 471. The following month, January 2009, her doctor described the sores as "poorly controlled," prescribed a new medication, and told her to return in one month. AR 470. The physician's assistant also noted a blister. AR 494. In February 2009, her physician observed a "slight improvement" and scheduled her for a follow-up in one month. AR 469. In March 2009, Plaintiff's physician observed another "slight improvement." AR 466. On March 17, 2009, Plaintiff visited the doctor for back pain; she had no lesions at that time. AR 492. A few weeks later, she had a blister in her mouth. AR 491.

In April 2009, Dr. Bautista, provided a medical source statement in preparation for Plaintiff's Social Security Hearing. AR 511-16. He opined that her overall condition was very weak, and limited by fatigue. "Plaintiff tires very easily when her symptoms are active." AR 512.

2009 Hearing Testimony

ALJ Kopicki held a hearing on July 28, 2009, in Fresno, California. Plaintiff appeared and testified. She was represented by attorney Robert Ishikawa. Vocational Expert ("VE") Cheryl R. Chandler also testified. AR 8.

Plaintiff was born on April 8, 1961 and was forty-eight years old at the time of the hearing. She is five feet three inches tall and weighs about 178 pounds.*fn2 AR 8-9. At the time of the hearing, Plaintiff testified that she is a widow and lives with her daughter, her daughter's two children, and her son's child (Plaintiff's grandson), whom she raises with the help of aid and food stamps. AR 12. She has an 11th grade education with no additional formal training or vocational training. AR 12. Plaintiff said that she previously worked as a caregiver, but stopped working because she was "tired" AR 24-25.

When asked about the onset of her disability, Plaintiff replied that it began on November 1, 2003. Plaintiff said that her most significant condition is the sores she gets in her mouth and on her body. Plaintiff stated that the sores cause pain in her mouth and throat as well as difficulty eating. AR 26-27. Plaintiff said that she had a biopsy of her mouth when she first became sick, which the ALJ noted was in August 31, 2007. AR 35. Plaintiff said that she had not had a biopsy since that time and that her physicians had not followed up on it. AR 35. With respect to the frequency of sores, Plaintiff stated that she got them "off and on" in her mouth and "once in a while" on her body. AR 36. Plaintiff offered as an example that she had one the past week and currently had one on her lip. AR 36. According to Plaintiff, prednisone medication controlled the sores somewhat and had no side effects; she later stated that the medication made her ankles swell. AR 28, 29.

Asked to describe a typical day, Plaintiff said she could no longer play baseball with her grandson and the other children. She gets up around 7:00am to get the kids to school on time. AR 37. She said that hard foods hurt her mouth, such as when she goes to a movie or to have pizza, she cannot eat certain things because it burns her mouth. AR 40. When asked if there was any difference between her condition now and at time she saw the prior ALJ, Plaintiff said that she feels "more tired" now. AR 43. She has difficulty doing activities because she gets tired. AR 44. Activities such as doing the laundry can take up to a week, because she must stop and take breaks. AR 38. She can also no longer go to Table Mountain Casino or Bingo Halls because the smoke irritates her throat. AR 40.

Thereafter, the ALJ elicited the testimony of vocational expert Cheryl Chandler. AR 50. VE Chandler indicated that Plaintiff's past relevant work includes: a dietary aide, medium and unskilled; and a caregiver, medium and unskilled. AR 54-55. VE Chandler opined that Plaintiff could not perform her past relevant work as a caregiver or dietary aide. ...


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