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Ruben Oros Franco v. Michael J. Astrue

August 23, 2012

RUBEN OROS FRANCO,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Plaintiff Ruben Oros Franco ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") who denied his Title II application for a period of disability and disability insurance benefits. This matter is before the Court after both partie s c o n s ented to proceed before the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is REVERSED and REMANDED for payment of benefits.

II. PROCEDURAL HISTORY

On June 23, 2009, Plaintiff filed a Title II application for a period of disability and disability insurance benefits. (Administrative Record ("AR") 22). The claim was initially denied on August 26, 2009.*fn1

(AR 74-77). On December 24, 2009, the claim was denied upon reconsideration. (AR 79-82). On January 14, 2010, Plaintiff filed a written request for a hearing before an Administrative Law Judge ("ALJ"). (AR 84-85). On November 10, 2010, ALJ Sharilyn Hopson conducted the hearing. (AR 40-71). Troy Scott, a vocational expert, also testified at the hearing. (AR 64-71). On December 21, 2010, the ALJ issued an unfavorable decision. (AR 19-34). Plaintiff requested review of the ALJ's decision by the Appeals Council on January 21, 2011. (AR 17-18). The Appeals Council denied review on July 22, 2011. (AR 1-3). The ALJ's decision became the final decision of the Commissioner. Plaintiff then filed the instant action on September 14, 2011.

III. FACTUAL BACKGROUND

Plaintiff was born in Tijuana, Mexico on February 6, 1959. (AR 125, 548). Plaintiff moved to the United States at age twenty-four. (AR 548). Plaintiff was fifty years old as of December 31, 2009, the date last insured. (AR 125). Plaintiff was fifty-one years old as of the date of the ALJ's decision, December 21, 2010. (AR 19-34). Plaintiff completed school through fourth or fifth grade in Mexico. (AR 48). He speaks some English, but his primary language is Spanish. (AR 48, 128). Plaintiff's past work experience includes work as a machine operator and product assembler. (AR 162, 214). Plaintiff claims he is unable to work due to pain in his back, right arm, shoulders and depression. (AR 46, 129).

A. Relevant Medical History

Plaintiff stated that he originally injured his elbow in 1995. (AR 176). Plaintiff continued to work with the injury until 2000. (AR 124). Since 2000, Plaintiff has had multiple surgeries on his left and right shoulders. (AR 713). In 2004, Plaintiff fell and injured his back. (AR 539). During the time from 2001 to 2005, Plaintiff was not earning an income. (AR 124). However, beginning in 2006 until 2009, Plaintiff resumed work and did earn income. (AR 124, 162). However, Plaintiff alleges that it became increasingly more difficult for him to work because his pain was constant. (AR 62, 129). This caused him to take pain medication while on the job which would negatively effect his productivity and memory. (AR 62). Therefore, on May 27, 2009, Plaintiff stopped working. (AR 63, 129).

1. Plaintiff's Treating Physicians

a. Dr. McSweeney

Dr. McSweeney, an orthopedic specialist, first examined Plaintiff on October 25, 2000. (AR 266-67). Dr. McSweeney has performed multiple surgeries on Plaintiff. On September 19, 2003, Dr. McSweeney performed the following procedures on Plaintiff's right shoulder: a resection of a superior labral tear with repair to the superior labrum SLAP lesion, debridement of the rotator cuff and anthroscopic mumford procedure. (AR 376). On April 9, 2008, Dr. McSweeney performed an arthroscopy of the left shoulder with a partial labrectomy. (AR 532). Further, on July 22, 2009, Dr. McSweeney conducted another arthroscopy of the left shoulder with a repair of the superior labrum and rotator cuff debridement. (AR 580).

Dr. McSweeney completed a Multiple Impairment Questionnaire on October 7, 2010. (AR 738-45). Dr. McSweeney diagnosed Plaintiff's right shoulder with an impingement, rotator cuff tendonosis and labral tear. (AR 738). Dr. McSweeney assessed that Plaintiff's left shoulder suffers from a bicep tendon tear, rotator cuff tear, labral tear, adhesive capsulitis, chronic cervical sls and DPD. (Id.). Further, Dr. McSweeney found that Plaintiff's right elbow has lateral epicondylitis. (Id.). To come to this diagnosis, Dr. McSweeney relied on previous medical tests, such as a right shoulder MRI from June 24, 2010, nerve studies from June 18, 2010, a left shoulder MRI from March 5, 2007 and intra-operative findings from the last surgery he performed on Plaintiff on July 22, 2009. (AR 321-24, 580-82, 665, 739).

Dr. McSweeney opined that with Plaintiff's symptoms and limitations, Plaintiff could sit for three hours in an eight-hour workday and stand or walk for three hours in an eight-hour workday. (AR 740-41). Dr. McSweeney also determined that Plaintiff could lift and carry up to ten pounds occasionally; cannot perform work above shoulder level; is moderately limited in grasping, turning and twisting objects; is moderately limited in using his fingers or hands for fine manipulations; and is markedly limited in using his arms for reaching. (AR 741-42). Dr. McSweeney also found that Plaintiff suffers from depression and is in constant pain. (AR 743). Overall, Plaintiff is unable to do a full time competitive job. (Id.). Dr. McSweeney noted that "patient has a chronic condition and will not improve. To some degree it has worsened." (AR 744).

b. Dr. Madrid

Dr. Madrid, who practices family medicine, first examined Plaintiff in 2005. (AR 459, 465-67). Dr. Madrid completed a Multiple Impairment Questionnaire on March 24, 2010. (AR 632-39). Dr. Madrid diagnosed Plaintiff with severe depression due to chronic pain from work related injuries. (AR 632). He also assessed memory loss associated with depression in reference to a neurology consult which revealed pseudo dementia. (Id.). Dr. Madrid opined that Plaintiff cannot sit or stand for more than thirty minutes at one time during an eight-hour workday due to his low back pain. (AR 634). Dr. Madrid also determined that Plaintiff can occasionally lift and carry up to five pounds; is moderately limited in grasping, turning and twisting with his left side; is moderately limited in using his fingers and hands for fine manipulations; and is markedly limited in using his arms for reaching. (AR 635-36). Ultimately, Plaintiff cannot do a full time competitive job and has constant pain. (AR 637).

c. Dr. Abshire

Dr. Abshire is a doctor at the spine and neurosurgery clinic. (AR 613). Dr. Abshire first saw Plaintiff in March 2009. (AR 614). Dr. Abshire examined Plaintiff's back and reported disk narrowing at L5-S1, partial lumbarization of S1 with spina bifida occulta and a lateral disk herniation at L3-4. (AR 613). Dr. Abshire recommended a foraminal root block in Plaintiff's back, but noted that doing this procedure may prove difficult due to Plaintiff's insurance policy. (Id.). In January 2010, Plaintiff's lateral disc protrusion at L3-4 had decreased in size, but there was a broad-based disc bulge at L4-5. (AR 608). Dr. Abshire ultimately decided not to recommend surgery because "the chance of making [Plaintiff] better and substantially better is low." (Id.).

d. Dr. Alvarez

Dr. Alvarez, a neurologist, first examined Plaintiff on June 18, 2009. (AR 317). Dr. Alvarez diagnosed Plaintiff with progressive cognitive decline, depression and anxiety. (Id.). In July and November 2009, she added pseudo-dementia and multiple orthopedic injuries with chronic pain to her prognosis. (AR 598, 602). In January 2010, Dr. Alvarez reported that Plaintiff had not contacted a psychiatrist for treatment of his depression and was returning to his primary physician for a referral. (AR 604).

e. Dr. Chesler

Dr. Chesler, a specialist in physical medicine and rehabilitation, first saw Plaintiff in January 2010. (AR 713). In his initial examination of Plaintiff, Dr. Chesler diagnosed a shoulder impingement, radiculopathy lumbar and numbness paresthesia of the skin. (AR 716). On October 31, 2010, Dr. Chesler completed a Multiple Impairment Questionnaire. (AR 835-42). Dr. Chesler provided the same diagnosis and offered medical evidence, such as the July 22, 2009 surgery and a diagnostic ultra sound showing a tear from September 2010 to support his findings. (AR 835-36). Dr. Chesler opined that Plaintiff cannot sit or stand for more than one hour at a time during an eight-hour work day. (AR 837). Plaintiff also can lift and carry no more than five pounds and occasionally lift and carry up to ten pounds; is moderately limited in grasping, turning and twisting; has no limitations when using his fingers or hands; and is markedly limited in reaching with his arms. (AR 838-39). Plaintiff suffers from depression "due to job income loss." (AR 840). Dr. Chesler determined that Plaintiff cannot perform a full time competitive job. (Id.).

f. Dr. Maloff

Dr. Maloff, a psychiatrist, first examined Plaintiff on May 5, 2010 after a referral from Dr. McSweeney. (AR 653). In Dr. Maloff's initial report, he described that Plaintiff is depressed and "devastated as a result of his inability to return to work." (AR 654). Dr. Maloff also reported that Plaintiff asks himself, "[i]s it time for me to end my life?" (Id.).

Dr. Maloff completed a Psychiatric/Psychological Impairment Questionnaire on September 7, 2010. (AR 669-76). Dr. Maloff diagnosed Plaintiff with major depressive illness and multiple orthopedic injuries causing him pain. (AR 669). Dr. Maloff reported clinical findings of poor memory, sleep disturbance, mood disturbance, social withdrawal, psychomotor agitation or retardation, feelings of guilt and suicidal ideation among other findings. (AR 670). Dr. Maloff determined that Plaintiff is markedly limited in remembering detailed instructions and being able to carry out those instructions. (AR 672). Dr. Maloff opined that Plaintiff is also markedly limited in being able to complete a work week without interruptions from psychological symptoms. (AR 673). Further, Plaintiff is incapable of handling even low stress in a work environment. (AR 675).

g. Dr. Wachtmann

Dr. Wachtmann, a psychologist, first examined Plaintiff in May 2010. (AR 746). Dr. Wachtmann completed two Psychiatric/Psychological Impairment Questionnaires on October 12, 2010 and January 28, 2011. (AR 746-53, 894-901). In both questionnaires, Dr. Wachtmann diagnosed Plaintiff with a pain disorder, as well as psychological factors and major depression. (AR 746, 894). The clinical findings proffered for support in the October questionnaire included poor memory, sleep disturbance, mood disturbance, social withdrawal, isolation, psychomotor agitation or retardation, feelings of guilt and suicidal ideation, among other findings. (AR 747). Dr. Wachtmann's questionnaire in January listed these findings and more, such as loss of intellectual ability of fifteen IQ points or more, recurrent panic attacks, difficulty thinking or concentrating and generalized persistent anxiety. (AR 895). Dr. Wachtmann opined that Plaintiff is markedly limited in the ability to understand and carry out detailed instructions. (AR 749). Plaintiff is only capable at most of tolerating low stress in a work environment. (AR 900). Dr. Wachtmann explained that Plaintiff has constant pain (AR 753), and that Plaintiff's "psychical inability to work significantly exacerbates his depression." (Id.).

h. Dr. Dhalla

Dr. Dhalla, an orthopedic specialist, on June 28, 2010, performed a medical re-examination of Plaintiff for Plaintiff's worker's compensation claim. (AR 845-52). An interpreter provided translation throughout the examination. (AR 845). Dr. Dhalla diagnosed Plaintiff's right elbow with epicondylectomy and extensor release; Plaintiff's left shoulder with arthroscopy with subacromial decompression, mumford procedure and biceps tenodesis; and Plaintiff's right shoulder with subacromial decompression. (AR 849). Concerning Plaintiff's work restrictions, Dr. Dhalla determined that Plaintiff's disability to his right elbow would preclude him from heavy lifting, firm gripping and firm grasping with his right hand. (AR 850). Dr. Dhalla assessed that Plaintiff's disability to his right shoulder would preclude him from heavy lifting and performing work above shoulder level with the right upper extremity. (Id.). Dr. Dhalla also determined that Plaintiff's ...


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