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Vivian M. Salvatera v. Michael J. Astrue

February 22, 2012

VIVIAN M. SALVATERA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

(Doc. 1)

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Vivian M. Salvatera ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

FACTUAL BACKGROUND

Plaintiff was born in 1957, attended college for two years but did not attain a degree, and previously worked as an accounting clerk for over 25 years. (Administrative Record ("AR") 25, 101, 109, 117-20.) On March 18, 2008, Plaintiff filed applications for DIB and SSI, alleging disability beginning on April 14, 2007, due to severe headaches, dizziness, lack of concentration, diabetes, hypertension, fibromyalgia, irregular heartbeat, anxiety, back pain, and muscle spasms. (AR 101-05, 109-14, 146.) She amended her disability onset date to October 9, 2007, her 50th birthday. (AR 24.)

A. Relevant Medical Evidence *fn2

From January 17, 2008, through October 23, 2008, Plaintiff was treated by Virgilio C. Ereso, M.D. (AR 336-43.) Plaintiff was seen for complaints of back pain, body aches, fibromyalgia, fever and cold symptoms, headaches, muscle spasms, anxiety, nausea, dizziness, and hypertension. (AR 336-43.)

Plaintiff was seen at Health Haven Medical Clinic ("Health Haven") from March 14, 2008, through April 17, 2008, for a variety of medical symptoms, including migraines, insomnia, neck pain and spasm, hypertension, arrhythmia, anxiety, dizziness, and generalized body pain. (AR 239-43.) A physical exam of Plaintiff indicated "negative/normal" findings as to her elbows, wrists, and fingers. (AR 239.)

On May 14, 2008, Miguel Hernandez, M.D., performed a comprehensive medical evaluation of Plaintiff. (AR 248-51.) Plaintiff's chief complaints were migraine headaches, fibromyalgia, and major depression, which Plaintiff stated impacted her ability to work. (AR 248.) Dr. Hernandez examined Plaintiff's range of motion, testing her spine, hips, knees, ankles, shoulders, elbows, wrists, and fingers/thumbs. (AR 250.) The general finding regarding Plaintiff's motor strength was that it was "5/5 throughout. Grip strength testing using the Jamar dynamoter is achieved to about 30 pounds of pressure bilaterally." (AR 250.) Dr. Hernandez' functional assessment and medical source statements indicated that Plaintiff could stand, sit, and/or walk six hours in an eight-hour day, required no assistive devices, could lift and carry 20 pounds occasionally and 10 pounds frequently, had no postural or manipulative limitations, and environmental limitations were attributable to her major depression. (AR 251.)

On June 10, 2008, Sadda V. Reddy, M.D., performed a physical residual functional capacity assessment ("RFC") and case analysis.*fn3 (AR 252-60.) Dr. Reddy opined that Plaintiff could frequently lift 10 pounds and occasionally lift 20 pounds, could sit, stand, and/or walk six hours in an eight-hour day, and had unlimited push/pull capacity. (AR 253.) Plaintiff had no manipulative, visual, or communicative limitations. (AR 255-56.) Dr. Reddy concluded that Plaintiff should be limited to a light RFC after considering Plaintiff's myofascial pains and poorly controlled hypertension. (AR 253-54.) An environmental limitation to avoid concentrated exposure to hazards was recommended "in view of [Plaintiff's] history of migraines and prior pathway ablation for arrhythmias." (AR 254, 256.) Dr. Reddy noted that the medical records indicated "generalized body pains" but "no established diagnosis of fibromyalgia" and "[n]o documentation of required tender points." (AR 254.) Plaintiff had "normal gait, ROM [range of motion] and strength." (AR 254.)

On July 9, 2008, Plaintiff was seen at Health Haven and indicated that she had a "new onset [of] hand/wrist pain." (AR 284). Plaintiff indicated that her "pain score" was three out of a scale of ten. (AR 284.)

On August 5, 2008, an electromyography ("EMG") and nerve conduction studies were performed based on Plaintiff's complaints of numbness and pain in her hands. (AR 348-49.) Gurpreet S. Dhaliwal, M.D., evaluated the testing and concluded that Plaintiff had "an abnormal study, which is suggestive of median nerve neuropathy at the wrist bilaterally." (AR 349.) Dr. Dhaliwal found that the results were "consistent with mild carpal tunnel syndrome bilaterally. There was no electrodiagnostic evidence of cubital tunnel syndrome, myopathy or cervical radiculopathy bilaterally. [Plaintiff] was advised to try [a] wrist brace." (AR 349.)

On September 11, 2008, B. Ginsburg, M.D. "affirm[ed the] initial light RFC w[ith] hazard environmental precautions." (AR 292-94.)

From January 5, 2009, through December 14, 2009, Plaintiff was treated by Dr. Ereso, (AR 330-35, see also AR 307-12.) During her visits, Plaintiff complained of headaches, neck pain, back pain, coughing, sore throat, tiredness, foot pain, and flu symptoms. (AR 307-12.)

On July 10, 2009, Dr. Dhaliwal provided an electrodiagnostic report indicating that Plaintiff was "further evaluated with EMG and nerve conduction studies to check for possibility of focal entrapment neuropathy, polyneuropathy, myopathy, or cervical radiculopathy." (AR 344.) After evaluating the test results, Dr. Dhaliwal concluded that they were "consistent with mild carpal tunnel syndrome" and that "[t]here ha[d] been no significant change as compared to [Plaintiff's] previous study of 8/5/2008." (AR 345.)

On November 23, 2009, Edda Q. Calaustro, M.D., provided a complete physical medical report. (AR 302-06, see also AR 325-29.) Dr. Calaustro indicated that she treated Plaintiff from March 14, 2008, through November 12, 2009; however, medical records were not provided. (AR 302.) Dr. Calaustro provided an RFC assessment and indicated that Plaintiff was diagnosed with anxiety, hypertension, degenerative joint disease, dizziness, headaches/migraine, and fibromyalgia. (AR 302.) Dr. Calaustro opined that Plaintiff could occasionally lift and carry up to 10 pounds but never anything heavier, occasionally perform simple grasping with both hands but could only perform occasional fine manipulation with her left hand and never with her right, and occasionally reach, handle, and push/pull. (AR 303-05.)

B. Lay Testimony

On March 26, 2007, Plaintiff completed an adult function report. (AR 125-32.) Plaintiff indicated that she lived with her family and that her daily activities consisted of making her bed, preparing and eating breakfast, taking medicines, watching television, and doing "a little household chores if feeling okay, otherwise just sitting down if feeling dizzy." (AR 125.) Plaintiff noted that she had no problem with her personal care but would need reminders to take her medicine. (AR 126-27.) Plaintiff stated that she would "prepare food sometimes . . . maybe twice a week" and would clean her bathroom and do laundry "once a week for 2 hours." (AR 127.) Plaintiff indicated that she would walk "five times a week," go to the store, and "visit family," although she "usually" would not go out alone because she would "feel dizzy." (AR 128.) Plaintiff would shop to "buy groceries and household stuff" "twice a week for 2 hours." (AR 128.) Plaintiff stated that her hobbies were "watching TV, praying, going to church, reading, [and] computer stuffs," which she would do "every day," although she noted that the "reading and computer stuffs" would give her a "severe headache." (AR 129) She would spend time with other people in person and would go to church, prayer meetings, and the park, although she could no longer "lead [the] prayer group and socialize." (AR 129-30.)

On March 26, 2008, Plaintiff's husband, Alexander Salvatera, completed a third-party function report. (AR 133-40.) Mr. Salvatera stated that Plaintiff's daily activities consisted of making the bed, eating breakfast, taking her medication, watching television, walking around, and doing "a little household chores." (AR 133.) Plaintiff was able to do cleaning and laundry once a week for two hours. (AR 135.) Her husband indicated that she would walk five times a week and would ride in the car, but would not go out alone because she would "usually feel dizzy." (AR 136.) Plaintiff would shop for groceries and household goods and could handle money. (AR 136.) Mr. Salvatera stated that Plaintiff "cannot stay in one place doing the same task, especially reading and computer work." (AR 137.) Plaintiff would need help lifting items and would feel dizzy when bending, squatting, and standing. (AR 138.) Mr. Salvatera noted that Plaintiff was "not comfortable and confident of herself to get a job because of her illness." (AR 139.)

C. Administrative Hearing

The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 40-43, 45, 46-50.) On December 16, 2009, ALJ Sandra K. Rogers held a hearing in which Plaintiff and vocational expert ("VE") George A. Meyers testified. (AR 22-34.)

1. Plaintiff's Testimony

Plaintiff testified that she was 52 years old on the date of the hearing and lived with her husband. (AR 25). Plaintiff completed two years of college but did not attain a degree or certificate, and had worked as an accounting clerk for over 25 years. (AR 25.) Plaintiff indicated that she had pain in her lower and upper back, wrist, heels, and head, including "really bad, severe . . . and migraine headaches." (AR 26.) Plaintiff testified that she had been diagnosed with fibromyalgia, migraines, depression, and anxiety disorder. (AR 26-27.) Plaintiff stated that she stopped working because she would have a "severe headache," was unable to concentrate, and would "make mistakes." (AR 27.) She was unable to do data entry because it would hurt her wrists. (AR 27.) As such, she was unable to stay at her job because she was "useless" to her employer. (AR 27.)

Plaintiff stated that she would wake up with "headache and all the pains," and would then take her medication or else she could not "function at all." (AR 27.) Plaintiff testified that she could not do her "daily task like even wash the plates," and that she could not "focus [her] attention, even to watch TV." (AR 27.) Plaintiff stated that even after her medication would take effect, she could not "watch TV for 30 minutes" because she was unable to concentrate and was "constantly" in pain. (AR 28.) Plaintiff said she was no longer able to read, write, or "explore in the computer" because the computer would hurt her wrists and her headache would worsen. (AR 28.) She was unable to walk or "stand straight" due to anxiety and fibromyalgia and due to pain in her ankle, heels, back, shoulder, and head. (AR 29.) Plaintiff said she had difficulties in sitting and lifting, and was unable "even to hold a glass of water." (AR 30.) Plaintiff stated ...


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