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Denise Cortes v. Michael J. Astrue

February 4, 2013

DENISE CORTES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stanley A. Boone United States Magistrate Judge

RECOMMENDING THAT PLAINTIFF'S SOCIAL SECURITY APPEAL BE DENIED OBJECTIONS DUE WITHIN 14 DAYS FINDINGS AND RECOMMENDATIONS

Plaintiff Denise Cortes ("Plaintiff") filed this action seeking judicial review of the final decision of Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant") denying Plaintiff's claims for Social Security Disability Insurance and Supplemental Security Income benefits. (ECF No. 1.) The matter was submitted to the undersigned magistrate judge for findings and recommendations to the District Court. For the reasons set forth below, the undersigned recommends that the final decision of Defendant be affirmed and that Plaintiff's appeal be denied.

I.

FACTUAL AND PROCEDURAL BACKGROUND*fn1

Plaintiff applied for Social Security benefits on March 13, 2009. (AR 77.) Plaintiff's application was initially denied on October 14, 2009 and then denied upon reconsideration on March

4, 2010. (AR 93-97, 88-92.) Plaintiff requested and received a hearing before Administrative Law Judge Laura Speck Havens ("the ALJ"), which took place on December 1, 2010. (AR 41-59.) On March 2, 2011, the ALJ found that Plaintiff was not disabled. (AR 13-38.) The Appeals Council declined Plaintiff's request for review on December 15, 2011. (AR 1-6.)

A. Plaintiff's Hearing Testimony

Plaintiff was born on March 17, 1968. (AR 44.) Plaintiff suffers from diabetes, carpal tunnel syndrome, hearing loss, asthma, lumbar disc disease, and depression. (AR 45.) Plaintiff claimed a disability onset date of March 13, 2009. (AR 45.) When asked if anything happened around that time that triggered her inability to work, Plaintiff cited chronic back pain. (AR 45.)

Plaintiff has a high school diploma and completed approximately a year of college. (AR 44-45.) Plaintiff can read and perform simple adding and subtracting. (AR 45.)

Plaintiff previously worked as a tax preparer in 2008 and 2009. (AR 45.) Plaintiff worked as a care giver from 1997 to 2007. (AR 45.) Plaintiff stopped working as a care giver due to her lower back pain and reported that her "[d]octor had me stop." (AR 50.) After Plaintiff's doctor told her to stop in 2005, Plaintiff worked fewer hours providing home health care for her mother. (AR 50.)

Plaintiff lives in a house with her husband and three children (ages 15, 18 and 21). (AR 45-46.) Plaintiff is able to dress and bathe herself without help. (AR 46.) Plaintiff does not do chores around the house. (AR 46.) Plaintiff goes grocery shopping. (AR 46.) Plaintiff also crochets for fifteen minutes at a time. (AR 46-47.) After fifteen minutes, Plaintiff has to rest her hands. (AR 51.) Plaintiff finds it progressively harder to use her hands as the day goes on. (AR 51.) Plaintiff watches television for approximately six hours a day. (AR 47.) Plaintiff drove herself to the hearing, which was a 40 minute drive. (AR 47.) Plaintiff can stand for five minutes at a time, or walk for ten minutes. (AR 49.) Plaintiff uses a walker, which was prescribed by a doctor. (AR 49.) Plaintiff can sit for ten minute at a time. (AR 49.) When questioned by her attorney, who noted that Plaintiff had been sitting for ten minutes at the hearing, Plaintiff stated that after ten minutes she starts to feel pain, but that she could continue to sit for five more minutes before the pain would force her to get up. (AR 51.) Plaintiff can lift five pounds. (AR 49.)

Plaintiff suffers from stabbing, numbing pain in her lower back. (AR 49.) Plaintiff reported that the pain occurs "[a]ll the time" and reported that the pain, without medication, is "a ten" on a scale of one to ten. (AR 49.) The pain is "an eight" with medication. (AR 50.) Plaintiff was told by her doctor that the pain was associated with her weight. (AR 51-52.) Plaintiff was also told that she would need lumbar surgery for the pain, but that she could not receive the surgery until after she lost weight. (AR 52.) Plaintiff has difficulty exercising because it requires bending, she feels pain in her back and her knees feel like they are going to give out. (AR 53.)

Plaintiff also reported that her depression prevents her from working. (AR 50.) Plaintiff is "depressed all day" and she does not want to get out of bed and "don't want to do nothing." (AR 50.)

Plaintiff also reported having trouble sleeping. (AR 47-48.) Plaintiff reported sleeping an average of four hours per day. (AR 48.) However, when asked by her attorney, Plaintiff later stated that she sleeps "okay" with the medicine she takes to sleep. (AR 53.)

Plaintiff's asthma gets worse when she is exposed to fumes and dust. (AR 53.) Plaintiff's medications include Abilify, Norvasc, Aspirin, Baclofen, Bupropion, Wellbutrin, Colace, Lasix, Gabapentin, Isosorbide, Lamotrigine, Synthroid, Ativan, Glucophage, Nitrostate, Prilosec, Plavix, Pravastatin sodium, and an inhaler. (AR 48.) Plaintiff was recently taken off Plavix. (AR 53.) Plaintiff sees a doctor every two weeks and sees a counselor every week. (AR 48-49.)

B. Plaintiff's Medical Record

Plaintiff's relevant medical history is summarized below.*fn2 Plaintiff received elective gastric bypass surgery in October 2005 from Dr. Antonio K. Coirin, M.D. (AR 292-294.) Plaintiff's postoperative diagnoses included diabetes mellitus, gastroesophageal reflux disease, hyperlipidemia, dyspnea on exertion and morbid obesity. (AR 293.)

On April 15, 2009, Plaintiff was seen by Dr. Lin Ma, M.D. for a consultation regarding a herniated disc. (AR 334-338.) At the consult, Plaintiff reported that, on July 29, 2004, she bent over at work and heard a popping sound. (AR 334.) When she got up, she had severe back pain radiating down the left leg. (AR 334.) Plaintiff was diagnosed with a lumbar strain. (AR 334.) She stated that standing after five minutes makes the pain worse "and after she sits down for 20 minutes, the pain is better." (AR 334.) Plaintiff also reported depression (after her 17 year old son died in a car accident five years prior), headache, fever, shortness of breath, poor appetite, weakness, lack of taste, hearing loss, skin rash, double vision, tremors, ringing in ears, chest pain, neck pain, lack of coordination, blurred vision, forgetfulness, difficulty swallowing and dizziness. (AR 335.) Dr. Ma performed a fluroscopically-guided L4-L5 lumbar epidural steroid injection on May 13, 2009. (AR 414.)

On August 6, 2009, Plaintiff was seen by Dr. Prithvi Shankar, M.D. for a consultative internal medicine disability examination. (AR 415-417.) Plaintiff reported that lower back pain and carpal tunnel syndrome were the biggest problems limiting her ability to work. (AR 415.) Plaintiff told Dr. Shankar that she has not seen significant improvement in her lower back pain, despite being seen by doctors and receiving multiple injections and epidurals. (AR 415.) Dr. Shankar noted that Plaintiff appeared to be in discomfort after sitting for long periods of time and Plaintiff told Dr. Shankar that she would stand during the examination. (AR 415.) Plaintiff was constantly moving to minimize her lower back discomfort. (AR 415.) With respect to her carpal tunnel syndrome, Dr. Shankar noted that Plaintiff "has had release of same bilaterally and does not seem to have any significant limitation in her overall functional capacity." (AR 416.) Dr. Shankar's functional capacity assessment found that Plaintiff could sit for 2-3 hours per day with routine breaks, stand or walk for 2-3 hours a day with routine breaks, lift and carry 20 pounds frequently and 25 pounds occasionally, has no limitations in the use of her arms or hands, is unable to perform postural activities of stooping, kneeling, crawling or squatting due to lower back pain, and ambulates with the assistance of a cane or walker. (AR 416-417.)

On August 9, 2009, Plaintiff received a psychiatric evaluation from Dr. Manolito Castillo, M.D. (AR 418-420.) Plaintiff's chief complaint was lower back pain. (AR 418.) Plaintiff stated that she could not pick up more than five pounds and could only walk a few feet. (AR 418.) She had been suffering from depression due to the death of her son, the death of her mother in 2007, and problems with her children. (AR 418.) Plaintiff's 17 year old daughter was pregnant, 13 year old son had a heart condition, and oldest son was incarcerated and recently released. (AR 418.) Plaintiff also reported trouble sleeping (3 hours per day), poor appetite, and trouble with concentration and memory. (AR 418.) Plaintiff was not currently receiving mental health services, but did see a counselor for about a year after her son died in 2002. (AR 418.) Dr. Castillo concluded that Plaintiff "did well on assessment" and Dr. Castillo was "unable to identify any significant mental limitations at present." (AR 420.)

On September 10, 2009, Dr. R. Fast, M.D. authored a physical residual functional capacity assessment for Plaintiff. (AR 446-451.) Dr. Fast concluded that Plaintiff could occasionally lift/carry 20 pounds, frequently lift/carry 10 pounds, stand/walk 2 hours a day with an assistive device, sit 6 hours a day, and push or pull without limitation. (AR 447.) Dr. Fast recommended a sedentary RFC with a cane for pain relief. (AR 448.) Dr. Fast further concluded that Plaintiff could climb, balance, stoop, kneel, crouch, or crawl occasionally, but never climb ladders, ropes or scaffolds. (AR 449.) Dr. Fast determined that Plaintiff had no manipulative limitations in terms of reaching, handling, fingering or feeling. (AR 449.) Dr. Fast concluded that Plaintiff should avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, etc. (AR 450.)

On September 23, 2009, Dr. Robert Liss, PhD authored a psychiatric review which concluded that Plaintiff's schizophrenia, paranoia and other psychotic disorders were not severe and her affective disorders were not severe. (AR 452.) Dr. Liss reported no limitations in activities of daily living, maintaining social functioning, maintaining concentration, persistence or pace, or episodes of decompensation. (AR 460.)

On October 25, 2009, Plaintiff went to the emergency room at the Emanuel Medical Center in Turlock, California due to recurrent left-sided weakness and tingling. (AR 631.) Plaintiff reported tingling and numbness in the left hand, which had resolved on its own by the time Plaintiff was admitted. (AR 631.)

On November 3, 2009, Plaintiff was seen by Dr. Jeffrey R. Levin, M.D. (AR 618-619.) Dr. Levin noted that Plaintiff's "Tinel sign and Phalen sign are positive at both wrists and both elbows. Thenar and hypothenar weakness are seen bilaterally. There is atrophy seen bilaterally." (AR 618.) Dr. Levin also noted a history of mild cognitive problems, but "[t]hese were not evaluated in detail today." (AR 619.) Dr. Levin's "impressions" noted "[c]arpal and cubital tunnel syndrome bilaterally." (AR 620.)

On February 24, 2010, Dr. R. Paxton, M.D. authored a psychiatric review which concluded that Plaintiff's limitations included mild restrictions in activities of daily living and mild restrictions in maintaining concentration, persistence and pace. (AR 703-713.) Dr. Paxton also authored a Mental Residual Functional Capacity Assessment that concluded that Plaintiff was moderately limited in the ability to understand and remember detailed instructions and moderately limited in the ability to carry out detailed instructions. (AR 714-716.) Dr. Paxton further concluded that Plaintiff:

* is able to understand and remember work locations and procedures of a simple, routine nature involving 1-2 step job tasks and instructions;

* is able to maintain concentration and attention in two hour increments;

* is be able to sustain eight hour work schedules;

* is able to accept direction from supervisors;

* is able to remain socially appropriate with co-workers and the public; and

* is able to travel, avoid workplace hazards, respond to change and set ...


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