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Sandra Duran Mendez v. Michael J. Astrue

October 29, 2012


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge



On May 4, 2008, Plaintiff Sandra Duran Mendez filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging disability since April 1, 2008. (Tr. 129.) Plaintiff's application was denied initially and on reconsideration. (Tr. 14.) Plaintiff filed a request for a hearing, and on May 18, 2010, Plaintiff testified at the hearing before Administrative Law Judge Norman R. Buls (the "ALJ"). On June 8, 2010, the ALJ issued a decision denying benefits. Plaintiff filed a request for review with the Appeals Council, which was denied. (Tr. 1-3.) The ALJ's decision then became the Commissioner of Social Security's final decision. On April 21, 2011, Plaintiff filed this action, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g).

Plaintiff and Defendant have filed cross-motions for summary judgment. For the reasons set forth below, Plaintiff's motion is GRANTED and Defendant's motion is DENIED.


Plaintiff was born on March 25, 1964. (Tr. 129.) Between April 1984 and January 1998, Plaintiff served as an Inventory Management Craftsman in the Air Force, a job that required her to physically move objects during the day, sometimes with the use of a machine. (Tr. 120-21.) While on active duty, Plaintiff suffered a back injury from playing racquetball in 1985, and has since complained of pain in her lower back. (Tr. 561-62.) In 1992, Plaintiff first experienced symptoms of fibromyalgia*fn1 and was later diagnosed with fibromyalgia in February 1996. (Tr. 425, 543.) In 1998, Plaintiff was honorably discharged from the Air Force for failing to control her weight. (Tr. 108.)

After her discharge from the Air Force, Plaintiff worked as a car salesman, material coordinator, purchasing superintendent, and substitute teacher. (Tr. 120.) Plaintiff has a high school diploma and a four-year college degree. (Tr. 66.) Plaintiff alleged disability beginning April 1, 2008, due to pain from fibromyalgia, carpal tunnel syndrome, arthritis, degenerative disc disease, an old back injury, hypothyroid, and depression. (Tr. 119.) Subsequent to Plaintiff's alleged disability onset date of April 1, 2008, Plaintiff engaged in substantial gainful activity from April 1, 2008 to June 5, 2008. (Tr. 16.) Plaintiff has not worked since June 5, 2008. (Id.)

A. Plaintiff's Medical Treatment

Plaintiff has been treated at the Veteran Administration Medical Center since 1998. (Tr. 552.)

In 1998, Plaintiff was diagnosed with right-sided carpal tunnel syndrome and had surgery on her right hand in 2002. (Tr. 225.) Although the surgery improved Plaintiff's symptoms significantly, by 2006, Plaintiff's symptoms returned. (Tr. 226.)

On October 1, 2007, Plaintiff was referred to Eileen Apfel, a Registered Occupational Therapist, with complaints of extreme pain in her right hand and difficulty sleeping. (Tr. 290-91.) Ms. Apfel observed swelling in Plaintiff's right wrist and noted that Plaintiff was likely experiencing a fibromyalgic flare that irritated nerves in her right arm. (Tr. 293.)

On January 24, 2008, Plaintiff visited Dr. Sunita C. Baxi with complaints of increased pain and fatigue. (Tr. 287, 289.) Dr. Baxi noted that Plaintiff appeared in pain and demonstrated tenderness in trigger points. (Tr. 288.)

On February 11, 2008, Dr. Terkeltaub, the Section Chief of Rheumatology, noted that upon physical examination, Plaintiff demonstrated trigger points in her right trapezius, lumbar-sacral region, left medial fat pad on the knee, and right elbow . (Tr. 286.) Dr. Terkeltaub also noted that Plaintiff had non-restorative sleep and positive tender points, which are compatible with primary fibromyalgia, and appeared in pain. (Tr. 285-86.)

On February 25, 2008, Plaintiff visited Dr. Spencer Lin for a routine rheumatology follow-up examination. Dr. Lin noted that Plaintiff showed positive trigger points in her back and along her arms. (Tr. 282.)

On March 3, 2008, Dr. Kenneth C. Kalunian, a rheumatology staff physician, examined Plaintiff and noted that Plaintiff had diffuse trigger points but no joint tenderness in her hands or wrists. (Tr. 284.)

On March 17, 2008, Dr. Brian Greenberg, a rheumatology fellow, examined Plaintiff and noted that Plaintiff demonstrated diffuse muscular tender points, which were most pronounced in the right arm. (Tr. 278.)

On April 11, 2008, Plaintiff visited Dr. Baxi with complaints of pain "all over," fatigue, difficulty sleeping, arthritis pain in the joints of both hands, and lower back pain. (Tr. 273-74.)

On April 21, 2008, Plaintiff visited Dr. Nipaporn Pichetshote for a follow-up rheumatology examination. Dr. Pichetshote noted Plaintiff demonstrated "TTP in all tender spots" including chest, bilateral arms, back, hip, and knees and that Plaintiff "recoiled with palpitation." (Tr. 272.) Dr. Pichetshote also noted that Plaintiff appeared depressed and therefore started Plaintiff on Prozac. (Tr. 273.)

On May 27, 2008, Plaintiff visited Michelle R. Amos, a Licensed Clinical Social Worker, complaining of increased fibromyalgia as well as depression symptoms. (Tr. 265.) Plaintiff was referred to Dr. Christine Y. Moutier for a psychiatry consultation. (Tr. 263.)

On June 23, 2008, Dr. Moutier noted that Plaintiff showed cognitive symptoms of depression including poor memory, attention, and ability to focus, as well as low motivation, energy, sleep disruption, and negative self-image. (Tr. 257.) Dr. Moutier observed that Plaintiff was "clearly uncomfortable and in pain at times with apparent ms spasms." (Tr. 258.)

On June 22, 2008, Plaintiff saw Dr. Valette for an extended psychological consultation conducted for the Department of Social Services, Disability Evaluation Department. (Tr. 194.) Dr. Valette observed Plaintiff's mood as being "slightly dysthymic" and noted Plaintiff's difficulties related primarily to physical problems. (Tr. 195.) Dr. Valette also remarked that with proper medical treatment for her dysthymia, Plaintiff may be able to function at a higher level. (Tr. 195.) Dr. Valette concluded that Plaintiff had slight limitations due to dysthymia on her ability to complete complex tasks and her ability to concentrate for at least two-hour increments at a time. (Id.)

On June 29, 2008, Plaintiff visited Dr. Jeannette Del Valle, a Board Certified Internal Medicine and Geriatrics, for a physical evaluation conducted for the Department of Social Services, Disability Evaluation Department. (Tr. 197-99.) Dr. Del Valle found that Plaintiff was reliable (Tr. 197) and observed that Plaintiff moved about the office without help. (Tr. 198.) Dr. Del Valle noted that Plaintiff demonstrated a full range of motion, no tenderness to palpations in her back, shoulders, hands, wrists, or knees, and no spasms in her back. (Id.) Based on physical examination and observation, Dr. Del Valle concluded that Plaintiff had no physical functional limitations. (Tr. 199.)

On July 2, 2008, Dr. H. Skopec conducted a psychiatric review technique. (Tr. 200.) Based on a review of Plaintiff's medical records, Dr. Skopec opined that Plaintiff had a mood disorder (Tr. 203) and that her impairment was not severe. (Tr. 200.)

Beginning on July 2, 2008, Plaintiff attended Acceptance Based Group for Chronic Pain, a six-session group therapy under the direction of Dr. Jill Stoddard, a clinical psychologist. (Tr. 256.) In sessions one and two, Dr. Stoddard noted that Plaintiff's mood was "mildly dysphoric with congruent affect." (Id.) In sessions three, four, five, and six, Dr. Stoddard noted that Plaintiff's mood was "euthymic with congruent affect." (Tr. 250-52, 255.)

On July 21, 2008, Plaintiff visited Dr. Terkeltaub, who noted that Plaintiff had fibromyalgia and clinical depression. (Tr. 253.) In his treatment notes, Dr. Terkeltaub remarked that Plaintiff felt dizzy and drowsy from the drug combination of Prozac, Elavil, and Lyrica. Dr. Terkeltaub also noted that although Plaintiff's fibromyalgia symptoms have improved substantially on this low dose of Lyrica, she still experienced pain in her right arm and that Plaintiff "still has widespread tender points in stereotypic locations for fibromyalgia." (Id.)

On July 29 and 30, 2008, Plaintiff was tested for sleep apnea in the sleep clinic (Tr. 174) and was diagnosed with moderate obstructive sleep apnea syndrome. (Tr. 248.) Plaintiff began a trial of Auto-CPAP, a sleep aid machine. (Id.)

On October 10, 2008, Dr. Kalunian noted that upon physical examination, Plaintiff demonstrated positive tender points. (Tr. 243.) Dr. Kalunian also noted that Plaintiff was sleeping better and tolerating pain better on Lyrica but still woke up multiple times a night. Dr. Kalunian also remarked that Plaintiff felt "foggy" since starting Lyrica, (Tr. 241-43.)

On November 13, 2008, Dr. Moutier noted that Plaintiff still felt foggy, groggy, and was experiencing memory problems. (Tr. 236.) Dr. Moutier also noted that she discussed Plaintiff's medicine ...

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