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Araceli V. Arres v. Michael J. Astrue

June 27, 2012


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Araceli V. Arres, by her attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. Following review of the record as a whole and applicable law, this Court affirms the agency's determination to deny benefits to Plaintiff.

I. Administrative Record

A. Procedural History

Plaintiff was insured under the Act through June 30, 2007. On April 27, 2007, Plaintiff filed for disability insurance benefits, alleging disability beginning January 28, 2003. Her claim was initially denied on August 23, 2007, and upon reconsideration on January 17, 2008. Plaintiff appeared and testified at a hearing on May 27, 2009. On September 23, 2009, Administrative Law Judge Michael J. Kopicki denied Plaintiff's application. Plaintiff appealed to the Administrative Council, which denied review.

B. Agency Record

Plaintiff (born January 28, 1957) speaks no English. She came to the United States in about or about 1980. Plaintiff attended school in Mexico through the sixth grade. She has a valid driver's license and is able to drive, although turning her head was difficult and painful.

Plaintiff last worked sorting cherry tomatoes at a packing house. On September 8, 2002, while helping cover a tomato container with a tarp, she fell from a ladder, injuring her stomach, right ankle, left wrist, and knees. On January 28, 2003, she fell on the stairs at the packing house, possibly because her recently injured knee buckled, and injured her neck, back, and knees.

Plaintiff testified that she experiences throbbing back pain and tension from her neck down that affects her hips and causes her to lose her balance. She has declined surgery on her hip, but takes pain medication. Plaintiff also testified that her pain and inability to function caused anger and depression, for which she took Effexor. She had not received counseling or therapy nor had any doctor recommended it.

Although Plaintiff no longer went to physical therapy, she was able to do the exercises at home. Sometimes they helped but sometimes they increased her pain.

On a typical day, Plaintiff rose at 6:30 a.m. If her granddaughter was staying with her, Plaintiff took her to the school bus stop. In the course of a day, Plaintiff would prepare one meal, leaving the others to other family members. She sometimes made sandwiches or cooked a chicken. If she tackled a recipe that took time, Plaintiff would do it little by little. She cleaned house with the help of other family members, sweeping and washing her own clothes. She liked to read and watch television but despite her children's encouragement had not learned to use the computer. She also fed her pet cockatiels and parakeets, which lived in a large cage outdoors. Plaintiff liked to garden, but most of her plants had died. She attended church most Saturdays. She had a few friends. According to her application for benefits, she is able to take care of all her personal needs.

Plaintiff testified that she could walk about 25 minutes, could stand for 30-45 minutes, and could sit no more than an hour. Although she had difficulty lifting things from the floor, Plaintiff thought she could lift about seven pounds from a table. She rested for 15-20 minutes three or four times daily. She could concentrate for an hour before needing to change positions.

Daughter's letter. On April 17, 2009, Plaintiff's daughter, Michelle Hernandez, sent a letter to Plaintiff's attorney setting forth changes in Plaintiff's life following her accident. Because of her pain, Plaintiff was no longer active and, because she could not kneel on the ground, could not garden as she used to. She no longer took long walks. Traveling was painful. Plaintiff is unable to cook as she used to, but must take breaks that greatly increase the time needed to cook big meals. Although she previously made tortillas all the time, following her accident, Plaintiff only made them once or twice a year. Plaintiff drove less and had lost her independence. She had become depressed and reliant on pain medication.

Concentra. Theodore Johnstone, M.D., treated Plaintiff at Concentra Occupational Medical Center following her accident at work. The record includes his notes from September 8, 2002, through March 4, 2003. Following Plaintiff's fall from a ladder, Johnstone diagnosed a mild sprain of the right ankle and mild contusion on the left calf. He prescribed ibuprofen and modified work duties (no climbing ladders, no prolonged standing, and no lifting over ten pounds). He later noted Plaintiff's knee injuries, and diagnosed mild strains of the left wrist, both knees, and the right foot, and switched Plaintiff's prescription from ibuprofen to Celebrex.

Cicely Roberts, M.D., reviewed x-rays and concluded that the alignment of Plaintiff's cervical spine was maintained and there was not evidence of fracture. X-rays of Plaintiff's right and left knees showed no fracture or dislocation and intact soft tissue planes. Steven Schumann, M.D., confirmed that the x-rays appeared normal but directed that Plaintiff be assigned light work with 90% sitting and no kneeling or squatting.

At a follow-up appointment on January 30, 2003, Plaintiff told Dr. Johnstone that she was in so much pain she did not report to work the day before. Johnstone observed a very stiff and painful cervical spine and noted that Plaintiff held her head "very, very still." AR 413. Although flexion and extension were unchanged. she was able to rotate only a few degrees. Johnstone diagnosed cervical spine strain and bilateral knee strains and abrasions. X-rays administered on February 6, 2003, showed no abnormalities of the cervical spine but revealed "old" spondylosis in the para-articularis of L-5, grade I spondylolisthesis of L-5 on S-1, and degenerative disc at L-5, S-1. By February 13, 2003, Plaintiff had experienced a physical therapy session and already felt better. The range of motion of her neck had improved . Although her knees were tender, she had no trouble walking without limping. On March 3, 2003, Dr. Johnstone transferred Plaintiff's care to a physiatrist.

When the pain in Plaintiff's left knee remained at the end of October 2003, Dr. Johnstone referred Plaintiff to orthopedist Cyril W. Rebel, M.D., who also diagnosed left knee strain but referred Plaintiff for an MRI to rule out a meniscal tear.

Dr. Azevedo. The record includes treatment notes of physiatrist Michael Azevedo, M.D., from July 23, 2003, to January 8, 2009.*fn1 Plaintiff saw Azevedo every two to three months. Azevedo described Plaintiff as having chronic intractable mid and low back pain. Although medications usually controlled Plaintiff's upper and lower back pain, she occasionally experienced severe exacerbations of pain that did not respond to medication and kept Plaintiff from sleeping. Several times a week, Plaintiff experienced intractable right-sided gluteal and thigh pain. Azevedo prescribed a variety of pain medications and anti-inflammatory drugs in his attempt to provide reliable pain control. He also recommended a daily routine of exercise and stretching.

Physical therapy. The record includes daily notes regarding Plaintiff's physical therapy at Madera Community Hospital from June 6 through September 30, 2003. Her therapist noted improvement during the course of therapy. Although Plaintiff also noted improvement, she was disappointed that the therapy did not completely relieve her pain and that she still required pain medication. Plaintiff was discharged with a daily exercise routine to be performed at home.

In a discharge report to Dr. Azevedo, physical therapist Ben Brahim characterized Plaintiff as having reached the goals of therapy. Brahim described Plaintiff's subjective response to treatment:

The patient indicated through the interpreter, since she speaks only Spanish, that her condition has improved. That she has practically no back pain but at times she does experience brief recurring pain in the cervical and cervicothoracic spine but the pain does not last for long and patient does not take any pain medication. The right knee condition is stable and the patient has no pain in the right knee. She did stop doing the exercises for quite awhile for the reason that the patient finds herself doing too much exercise ...

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