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Elodia Martinez Rojas v. Michael J. Astrue

March 19, 2012


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge



Plaintiff, Elodia Martinez Rojas, filed an application for disability insurance benefits and supplemental security income benefits on August 7, 2008, and August 8, 2008, respectively, alleging a disability onset of March 16, 2008. (Admin. R. Attach. #5, 185-191, ECF No. 13; see id. Attach. #2, 12.) The Social Security Administration ("SSA") denied Plaintiff's claim initially on October 20, 2008, and upon reconsideration on December 26, 2008. (Id. Attach. #4, 48-51, 54-58; see id. Attach. #2, 12.) On February 9, 2009, Rojas submitted a written request for an administrative hearing. (Id. Attach. #4, 60.) A hearing was held before Administrative Law Judge ("ALJ") Edward D. Steinman on April 26, 2010. (Id. Attach. #2, 155-57.) ALJ Steinman issued a written decision on April 30, 2010, finding that Plaintiff was not disabled. (Id. at 12-18.) The denial of benefits became final when the Appeals Council declined to review the decision. (Id. at 1-3.)

On November 30, 2010, Rojas filed a Complaint for Review of Final Decision of the Commissioner of Social Security against Michael J. Astrue, Commissioner of Social Security [ECF No. 1]. There, the Plaintiff challenges the denial of her claim for disability insurance benefits and supplemental security income. (Compl. 2, ECF No. 1.) Defendant filed an Answer on March 28, 2011, and filed the Administrative Record the same day [ECF Nos. 12-13].

Rojas filed a Motion for Summary Judgment on April 28, 2011 [ECF No. 16]. On May 23, 2011, Astrue filed a Cross-Motion for Summary Judgment with a Memorandum of Points and Authorities [ECF No. 17] as well as a Response in Opposition to Plaintiff's Motion for Summary Judgment [ECF No. 18]. Plaintiff's Reply Memorandum was filed on June 7, 2011 [ECF No. 20].

The Motion for Summary Judgment and the Cross-Motion for Summary Judgment were originally referred to United States Magistrate Judge Ruben B. Brooks. This Court withdraws its referral and will rule on both Motions, which it finds suitable for resolution on the papers. See S.D. Cal. Civ. R. 7.1(d)(1). The Court has reviewed the Motion for Summary Judgment, Cross-Motion for Summary Judgment, and Reply. For the reasons set forth below, Plaintiff's Motion is DENIED and Defendant's Cross-Motion is GRANTED.


Rojas is a fifty-two-year-old female with a ninth grade education, which she completed in Mexico; although she has permanent residency status, her primary language is Spanish and she has a limited ability to speak English. (Admin. R. Attach. #5, 196-97, ECF No. 13; id. Attach. #2, 37.) The Plaintiff alleges an on-the-job injury that caused lower back pain. (Id. Attach. #2, 15.) Prior to her claimed disability onset in March 2008, Rojas worked as an assembly line worker for a pharmaceutical company. (Id. at 30.)

A. Examining Physicians

On November 15, 2006, Plaintiff had an MRI of her lumbar spine, which revealed a posterior annular tear in the interverteral disc at L5-SI with an accompanying three-to-four millimeter posterior disc bulge. (Id. Attach. #7, 267-69.) There was no evidence of canal stenosis or neural foraminal narrowing. (Id.)

1. Dr. Chesler, physical medicine and rehabilitation

On March 7, 2007, Bradley Chesler, M.D., examined Rojas to address her complaints of lumbar back pain with radiation, numbness, and tingling. (Id. at 270.) Dr. Chesler administered electromyography and nerve conduction tests on Plaintiff, which did not show any peripheral or proximal abnormalities. (Id.) The doctor examined Rojas again on August 6, 2007, for a follow up. (Id. at 292; see id. Attach. #2, 16.) The Plaintiff told the doctor that she had been using her medications as prescribed and felt they were helping; she stated that she may need to have them refilled. (Id. Attach. #7, 292.) Dr. Chesler noted that Rojas had moderate edema in the pelvic region as well as moderate tenderness in the SI joint and pelvic areas. (Id.)

Plaintiff returned for a diagnostic ultrasound-guided sacroiliac joint injection on September 4, 2007, and again on September 18, 2007. (Id. at 294-99.) After conducting a physical examination, Dr. Chesler observed that Plaintiff had a full and painless range of motion of the thoracic and lumbar spine with normal stability, strength and tone. (Id. at 298.) Her gait was intact, her posture was normal, and she did not use any mobility aids. (Id.)

The doctor examined Rojas on several occasions from 2007 through early 2009. (Id. at 300-31, 352-56, 364-69.) In general, the Plaintiff exhibited pain behaviors and her mobility and range of motion were generally reduced. (See generally id.) Although Rojas had moderate tenderness of the left SI joint, she also exhibited full and painless range of motion of the thoracic and lumbar spine. (See generally id.) As of the October 20, 2008 visit, Rojas was using a cane. (Id. at 352-53, 355, 365, 368.)

The Plaintiff saw Dr. Chesler again on February 12, 2009, and informed the doctor told that Rojas had seen an orthopedic specialist who told her she did not need surgery; Plaintiff did not recall the orthopedist's name. (Id. at 370-72.) Rojas also asked Dr. Chesler for a medication refill and stated that the medications had helped her continue to be functional. (Id.) The doctor saw Plaintiff regularly for the subsequent months. (See id. at 372- 87.) On September 3, 2009, Dr. Chesler conducted a physical examination of Rojas that indicated only mild diffuse edema and mild movement restriction in all directions. (Id. at 388-89.)

2. Dr. Sabourin, consultative orthopedic evaluation

Thomas Sabourin, M.D., examined Rojas on October 7, 2008, to assess her complaints of pain in her lower back, neck, and right hip. (Id. at 334-38.) X-rays and MRIs revealed that she had a disc problem. (Id. at 334.) Dr. Sabourin noted that after Rojas received the two injections in 2007, her condition did not improve. (Id.) The Plaintiff was using a cane and indicated the she used it regularly. (Id.) Rojas described her pain as a burning pain radiating to the left leg and the feet; she told the doctor that the pain was worse with sitting, standing, walking, bending, or lifting. (Id.) Dr. Sabourin physically examined Plaintiff and observed that she had limped heavily when not using her cane, but she did not limp when she moved to the examination table without her cane. (Id. at 335.) In fact, the doctor indicated that Plaintiff was able to get on and off of the examination table without any assistance. (Id.) Although Rojas had her cane, she did not use it. (Id.) Dr. Sabourin also noted that Rojas declined toe and heel walking, stating that she was unable to do it. (Id.)

Moreover, the doctor observed that despite Plaintiff's complaints of pain when testing ranges of motion of the cervical spine and lumbar spine, she moved around during the examination much more freely without apparent pain in the back. (Id. at 336.) Rojas was able to sit on the examination table with her leg straight out in front of her. (Id.) Dr. Sabourin opined that Plaintiff's extremity range of motion testing was grossly normal and painless with no tenderness or swelling. (Id.) The doctor's neurological testing revealed "giving way" in the muscle testing of the upper and lower extremities, a decreased sensation from the toe tips to the iliac crest, and a nonanatomic presentation of numbness. (Id. at 337.) The radiology testing was within normal limits. (Id.)

Dr. Sabourin additionally indicated that Rojas had minimal lumbar spine problems and her complaints were disproportionate to the determinable condition. (Id. at 338.) During the examination, Rojas had negative straight leg raising and she refused spinal motion more than five degrees from the standing position. (Id.) The doctor concluded that there was no medical basis for Plaintiff's cane use. (Id.) He also determined that Rojas could lift and carry fifty pounds occasionally, twenty-five pounds frequently, stand and walk for six hours per day, and could sit for six hours per day, with frequent climbing, stooping, kneeling, and crouching. (Id.)

3. Vista family health clinic

Rojas visited the Vista Family Clinic various times complaining of pain in her back and leg. (Id. at 280-85; 429-42.) Physician's Assistant Jose Luis Suarez examined Plaintiff. (Id.)

On March 26, 2010, Carlos Oliva, M.D., the primary doctor at the clinic, provided opinion evidence for the functional capacity assessment. (Id. at 470-74; Attach. #2, 17, 39; see id. at 41 (indicating that Dr. Oliva was a treating physician).) Dr. Oliva diagnosed Rojas with low back pain with radiculopathy and depression, and indicated that Rojas experiences constant pain and feels depressed. (Id. Attach. #7, 470.) As his objective medical evidence, the doctor referenced "tenderness to palpation" to Plaintiff's lower back, buttocks, and legs. (Id.) He opined that Rojas's impairments were reasonably consistent with the symptoms and functional limitations described in his evaluation. (Id. at 471.) Dr. Oliva stated that Plaintiff was incapable of even "low stress" jobs and that she could only sit for one hour at a time and stand for forty-five minutes at a time. (Id.) According to Dr. Oliva, Rojas could sit and stand or walk for less than two hours total in an eight-hour workday. (Id. at 472.) The doctor concluded that Plaintiff's functional capacity is less than sedentary. (See id. Attach. #2, 17.)


A hearing was held before ALJ Steinman on April 26, 2010. (Id. at 12; see id. at 23-43.) Rojas appeared in person and was represented by counsel. (Id.) An impartial medical expert, Malcolm A. Brahms, was also present. (Id.) An impartial vocational expert, Alan E. Cummings, was present and testified. (Id.)

A. Rojas's Testimony

The ALJ began the hearing by examining Plaintiff about her ability to work, her back pain, and her medications. (See generally id. at 27-28.) Rojas testified that she could not recall the name of her pain medication, but that it does not relieve the pain. (Id. at 27.) She stated that she uses a cane because her left leg gives out when she tries to walk. (Id. at 28.) Judge Steinman then asked her about her living arrangements and daily activities. (Id. at 29.) Rojas indicated that although she cleans the house for twenty minutes per day, she rests approximately four or five times a day for forty-five minutes each time because of the pain. (Id. at 29-30; see id. at 35.) Plaintiff testified that she regularly drives her car to the store and to visit her granddaughter. (Id. at 30-31.) She also testified that she goes to the park and to the beach with her husband. (Id.) Next, the ALJ noted that Rojas had told Dr. Chesler that she was going to see an orthopedist, and asked Plaintiff if she in fact did; Rojas stated that she never saw an orthopedist. (Id. at 32.) The Plaintiff further indicated that she would have to get a job where she could rest every forty minutes. (Id.)

Rojas's attorney then examined her about her prior job. (Id. at 33.) Plaintiff testified that she worked at her job full-time for twelve years, and she tried to work for one year after the injury before she could no loner continue due to pain. (Id.) She was in a sitting position all day at her previous job and was not allowed to stand if she needed to. (Id. at 34-35.) Rojas said that she could do a job now that allowed her to change positions every forty-five minutes throughout the day. (Id. at 35.) She also testified that the two spinal injections did not provide any relief and that no doctor has recommended surgery. (Id. at 33.)

On reexamination, the ALJ asked Rojas about her prior employment as an assembly worker for a pharmaceutical company. (Id. at 36.) At that job, Plaintiff sat for eight hours per day and assembled pregnancy test packages that weighed less than ten pounds; the vocational expert testified that this amounts to sedentary-level work activity. (Id. at 36-37.)

B. Vocational Expert Testimony

The ALJ presented the vocational expert, Alan E. Cummings, with five hypothetical scenarios to assess the Plaintiff's potential for returning to work. (See id. at 37-40.)

For the first hypothetical, Judge Steinman presented Cummings with the DDS analysis, which determined that Plaintiff's impairment was nonsevere and that she was amplifying her symptoms. (Id. at 37.) Cummings testified that based on this evaluation, Rojas could return to her prior work as an assembly worker. (Id.)

The ALJ questioned the vocational expert on the second hypothetical dealing with the orthopedic examination conducted in October 2008, which showed complaints of back, neck, and hip pain, and indicated that the presentation was disproportionate to the findings. (Id. at 37-38.) Cummings maintained that Rojas could return to work as an assembly worker under this hypothetical. (Id. at 38.)

The third hypothetical consisted of Dr. Chesler's assessment that Rojas could not lift more than fifteen pounds and indicated partial temporary disability. (Id.) Again, the vocational expert testified that Plaintiff could return to her prior work. (Id.)

Fourth, ALJ Steinman asked Cummings to consider a scenario in which Rojas could perform a full range of light work, sit six of eight hours per day, and stand and walk two hours per day. (Id.) The vocational expert opined that those limitations would allow Plaintiff to return to her past work as an assembly worker. (Id.)

The fifth hypothetical presented Cummings with Rojas's assessment of her limitations. (Id.) The Plaintiff testified that she would need extensive rest periods to be able to work forty-five minutes at a time, three or four times per day. (Id.) Cummings explained that under this hypothetical, there would not be any full-time work that Rojas could perform. (Id. at 39.)


After considering the record, Judge Steinman concluded that Plaintiff suffered from a severe impairment of low back pain, but her depression did not ...

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