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Connie M. Lopez v. Michael J. Astrue

August 22, 2012


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


Plaintiff Connie Lopez, by her attorneys, Law Offices of Jeffrey Milam, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits (DIB) 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 a review of the complete record and applicable law, the undersigned recommends that the Court affirm the Commissioner's decision denying Plaintiff disability benefits.

I. Administrative Record

A. Procedural History

Plaintiff was insured under the Act through December 31, 2010. On January 29, 2007, Plaintiff applied for disability benefits pursuant to Title II of the Act, alleged disability beginning April 28, 2006. Her claims were initially denied on March 29, 2007, and upon reconsideration, on July 27, 2007. On September 26, 2007, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at a hearing on July 1, 2008. On January 5, 2009, Administrative Law Judge Sandra K. Rogers denied Plaintiff's application. The Appeals Council denied review on April 21, 2010. On June 25, 2010, Plaintiff filed a complaint seeking this Court's review.

B. Factual Record

Plaintiff's testimony. Plaintiff (born June 20, 1948) completed eleventh grade. She worked providing quality control for a glass manufacturer. She testified that she stopped working when she could no longer perform the job, which required her to lift heavy machinery and parts that weighed up to 100 pounds. Upon further questioning, Plaintiff admitted that lifting heavy weights was not part of her quality control job but related to a two-month try-out for a position that she ultimately did not receive.

Plaintiff complained of pain in her upper chest, spine, legs, and wrists, and weakness in her chest, arms, and leg. Diagnosed with carpal tunnel syndrome in 1982, she admitted that her medical records did not address the nerve damage in her wrists, explaining that "they don't bother me unless I use them." After twenty to thirty minutes of using her hands, said Plaintiff, her hands and wrists first became very painful, then became numb. Plaintiff did exercises to maintain motion in her back.

Plaintiff estimated that she could lift about five pounds. She drove for doctors' appointments and shopping, but limited her driving since it was difficult for her to look back or to either side. She could sit for an hour before needing to change position and could stand and walk for one to two hours. After she was on her feet for an hour, her spine and right leg would be painful. Plaintiff needed to lie down and rest for two hours three times a day.

Plaintiff lived with her husband and adult son. On a typical day, she woke and showered, moving "as carefully as I can," before taking her medication. She then rested since her medication made her dizzy and light headed. When she felt better, she washed dishes, swept the floor, and washed clothes. As the day progressed, she alternated rest and activity until she was too tired to do more.

Daily activities questionnaire. On February 23, 2007, Plaintiff reported that her activities were limited by pain, fatigue, weakness, and dizziness. She continued to experience pain and tingling of her right leg, from which doctors harvested a vein for her cardiac bypass surgery. Because she could not lift more than five pounds, her husband helped her shop for groceries. She never drove more than ten minutes; the shoulder belt on the seat belt hurt her chest.

Plaintiff could perform housework, including making the bed, cooking, washing clothes, sweeping, and dusting. She did some yard work, such as sweeping and raking leaves, but could not start the lawn mower. Performing housework tired her, requiring her to rest.

Medical records. On April 26, 2006, Plaintiff saw Tiffany Gee, M.D., for a disability consultation. Dr. Gee observed that Plaintiff looked healthy and alert. Plaintiff was taking her high blood pressure medicine as instructed without experiencing any side effects. Plaintiff, who did not keep her nitroglycerine at hand, complained that she was experiencing random sharp chest pains that abated with rest. She asked Dr. Gee whether, in light of her cardiac symptoms, she could be put on disability until she retired in June. Dr. Gee suggested that Plaintiff discuss the possibility of disability with cardiologist Rajiv H. Punjya, M.D., with whom she had an upcoming appointment.

Plaintiff stopped working on April 28, 2006.

On May 18, 2006, Dr. Punjya performed left heart catheterization and left and right coronary angiography. In consultation with Plaintiff and her husband, Dr. Punjya determined to proceed with elective revascularization surgery. Isam Felahy, M.D., performed a quadruple bypass on June 6, 2006.

On July 17, 2006, Dr. Felahy reported that Plaintiff's wounds were healing well. On September 20, 2006, however, Dr. Felahy debrided and resutured Plaintiff's chest incision, which had become infected.

Although Dr. Felahy released Plaintiff to return to work on December 1, 2006, she did not return to work, telling Dr. Gee that she did not feel "up to par" and that she was easily fatigued, not strong enough to lift the required weight, and still experienced pain in her right leg where the vein was harvested.

On February 2, 2007, Plaintiff saw Dr. Gee for a follow up appointment and completion of California disability forms. Plaintiff reported that she was still experiencing chest pain. Dr. Gee opined that the pain was likely musculo-skeletal and recommended cardiac rehabilitation to recondition Plaintiff's heart and improve the strength and mobility of her upper body.

On February 26, 2007, Plaintiff told family practitioner Portia Munkholm Ma that she had retired from her prior job and wanted to start a new, less strenuous job. Ma also referred Plaintiff to physical therapy, noting that she had become deconditioned following her bypass surgery.

Agency medical consultant C.E. Lopez, M.D., prepared a physical residual functional capacity assessment and a case analysis on March 27, 2007. Dr. Lopez opined that Plaintiff could lift twenty pounds occasionally and ten pounds frequently, and could stand or walk about six hours in an eight-hour work day. She had no postural or other limitations. Dr. Lopez questioned Plaintiff's credibility, noting that her health appeared to have improved following her cardiac bypass and that she appeared able to do more than she claimed. In addition, on an exertional questionnaire, she claimed to experience shortness of breath, although she denied shortness of breath to her cardiologist. On July 27, 2007, following a review of the administrative record, M.E. Bayar, M.D., concurred with Dr. Lopez's opinion that Plaintiff retained the residual functional capacity to perform light work.

At an appointment with Dr. Punjya on June 12, 2007, Plaintiff reported recurrent chest discomfort and reduced functional capacity. To determine whether Plaintiff had been successfully re-vascularized, Dr. Punjya administered an exercise-gated perfusion study on July 31, 2007. He found no evidence of exercise-induced EKG changes suggestive of ischemia. The study "revealed normal [left ventricular] cavity size, ejection fraction of 79%, no wall motion abnormality of concern, no major reversible perfusion defect of concern, and no evidence of transient ischemic dilatation of left ventricular cavity." AR 258.

On August 7, 2007, Plaintiff underwent magnetic resonance imaging to evaluate her lumbar spine for spinal stenosis. Javid Jamshidi, M.D., diagnosed:

1. Narrowing of L4-L5 level with minimal posterior of bulging of disc and ligamentous hypertrophic changes resulting in slight spinal stenosis and compression of thecal sac.

2. Narrowing of L3-L4 level with generalized bulging of disc and ligamentous changes without appreciable spinal stenosis.

AR 321.

On October 3, 2007, neurologist Moris Senegar, M.D., evaluated Plaintiff's back and right leg pain. After examining Plaintiff and reviewing the MRI scans, Senegar diagnosed mild spinal stenosis at L4-L5, which he described as non-surgical. Although the lateral aspect of her leg pain indicated radiculopathy, the medial aspect of the pain and the calf pain related to the harvesting of a blood vessel for Plaintiff's cardiac bypass. Senegar referred Plaintiff for physical therapy, noting that epidural steroid injections were an alternative. On November 16, 2007, physical therapist John Bob, D.P.T., noted that limitations related to Plaintiff's lumbar stenosis responded well to physical therapy. Bob opined that Plaintiff would continue to benefit from strengthening exercises and manual techniques to improve mobility. After examining Plaintiff on December 21, 2007, Dr. Senegar opined that Plaintiff's back condition was fairly stable. He prescribed Vicodin for pain, noting that Plaintiff needed it only occasionally.

On June 23, 2008, Dr. Punjya completed a questionnaire form prepared by Plaintiff's attorney. Dr. Punjya opined that Plaintiff's medical problems precluded her from working even at the sedentary level. She had been disabled since May 2006. The doctor based his opinion on Plaintiff's cardiac bypass surgery, her lack of improvement following the surgery, upper body weakness, and spinal stenosis. In Dr. Punjya's opinion, Plaintiff could sit for two hours, and stand or walk for two hours in an eight-hour work day. She did not need to lie down or elevate her legs. Finally, Dr. Punjya opined that Plaintiff's condition met or equaled the requirements of Listing 4.04 (ischemic heart disease).

On February 9, 2009, clinical psychologist Robert L. Morgan, Ph.D., prepared a psychological evaluation for Plaintiff's attorney. Plaintiff and her husband reported that Plaintiff had become depressed following her second surgery to ...

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