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Lidia Mata Hernandez v. Carolyn W.Colvin

March 11, 2013


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


Plaintiff Lidia M. Hernandez, by her attorney, Lars A. Christenson, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act

(42 U.S.C. § 301 et seq.). 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.*fn1 Following a review of the complete record and applicable law, this Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based upon proper legal standards. Accordingly, this Court affirms the Commissioner's determination.

I. Procedural History

On August 26, 2008, Plaintiff applied for SSI income, alleging disability beginning April 10, 2008. Her claim was denied initially on November 6, 2008. It was denied upon reconsideration on March 13, 2009. Plaintiff requested a hearing on April 10, 2009. The hearing occurred on August 13, 2010 before ALJ Regina L. Sleater. Plaintiff appeared and testified. Also testifying were Harvey L. Alpern, M.D., an impartial medical expert, and Jose L. Chaparro, an impartial vocational expert ("VE").

On November 19, 2010, the ALJ denied Plaintiff's application. The Appeals Council denied review on September 22, 2011. Plaintiff filed a complaint seeking this Court's review on November 3, 2011. Doc. 1.

II. Factual Record

A. Background

At the time of the hearing, Plaintiff was 47 years old (born September 13, 1963) with a tenth grade education and past relevant work experience as an agricultural product packer, a fruit harvest worker and a machine packer. She lived with her mother and brother in Strathmore, California. She told the ALJ that she had used methamphetamine for ten years and also used marijuana. (She told her neurologist that she used both drugs for twenty years. AR 334.) After finishing a two-month drug related jail term in April 2008, she lived in a recovery home for four months through August 2008. She states that she has not used drugs since October 2008. AR 52.

Plaintiff said she was disabled by reason of three strokes, right side weakness, and swelling in her right arm. Her disability began on April 10, 2008, when she was a prisoner at the Bob Wiley Detention Facility in Visalia, California. She believes that on that date she had a stroke. She blacked out, without hitting her head, and woke up in the infirmary, with her face turning to the side. She was discharged from the infirmary the same night. Several days later she noticed numbness and weakness in her right side which continues to this day.

B. Medical Record

On March 9, 2008, Plaintiff was taken from the jail to the Emergency Department of Kaweah Delta Health Care Center for a sharp chest pain with nausea. She also had swelling in her upper right arm. Within several hours the pain had gone away. Several diagnostics were performed: a chest x-ray and CT scan, an ECG, lab tests, and ultrasound of the right upper extremity veins. All were normal. The arm swelling was found not to be thrombotic. She was discharged on the same date. The record noted that she had been non-compliant with medications since a previous visit.

April 10, 2008 is when Plaintiff believes she had a stroke. There are no medical records from this time. After finishing her jail sentence, Plaintiff visited the Hillman Family Practice on April 29, 2008, complaining of a sore throat and possible ear infection. She claimed to have had a possible stroke while in jail. AR 227. (This was Plaintiff's first visit to the Hillman practice. At each visit, her progress notes would be written by her treating physician, Truc Nguyen, M.D., or occasionally by Christina Erwin, N.P.)

On May 27, 2008 she returned to Hillman. The doctor's impression was hypertension and headaches. He suggested sleep apnea as the suggested source of her headaches. He recommended Ibuprofen and suggested she get a sleep apnea study.

On June 9, 2008, Plaintiff returned to the Kaweah Care Center, complaining of intermittent right-sided headaches for the past three weeks. A head CT scan was normal. The diagnosis was tension headaches. The doctor recommended Tylenol or Ibuprofen for her pain.

On August 15, 2008, a head CT scan again was normal.

On August 19, 2008, she met with an eye doctor at Eye Surgical and Medical Associates, Inc. She complained of right-sided weakness and a sharp pain behind her head when looking right or left. The doctor referred her for a brain MRI.

On September 2, 2008, the brain MRI showed a small old lacunar infarct in the basal ganglia on the right side. The study also showed mild chronic ischemic changes of white matter due to small vessel disease, as well as sinusitis.

On September 9, 2008, Plaintiff again saw the eye doctor from Eye Surgical. She complained of right-side weakness and headaches and tingling on the right side of her head. The doctor noted the MRI results and suggested she be observed.

On September 24, 2008 and again on October 8, 2008, Plaintiff sought treatment at the Hillman Health Clinic for right side pain and weakness. Dr. Nguyen suggested she see a neurologist.

On November 6, 2008, Plaintiff began seeing neurologist Ramu Thiagarajan, M.D. The notes from this initial visit do not appear in the record. However, according to a progress note from Hillman dated November 7, 2008, Plaintiff stated that she saw the neurologist the day before and was told that the cause of her facial numbness was anxiety attacks. AR 225. According to this note from Hillman on November 7, 2008, Plaintiff described numbness on the right side of her face. Progress notes from January and February 2009 show that Plaintiff presented with complaints of pain in her right arm and leg and in the right side of her neck, as well as sleeping problems.

On November 4, 2008 and on March 13, 2009, the state agency medical consultants reviewed Plaintiff's medical records and concluded she had no severe impairments. (See discussion of consultants below.)

In March 23, 2009, Dr. Nguyen ordered a cervical spine x-ray due to the pain in Plaintiff's right shoulder and neck. The x-ray showed some degenerative spurring, as well as disk space and neural foraminal narrowing. The right shoulder x-ray test performed on the same date was normal.

A brain MRI study dated June 1, 2009 (also ordered by Dr. Nguyen) demonstrated essentially the same results as the September 2008 MRI study--scattered, nonspecific deep white matter lesions, of unknown significance, and chronic small lacunar infarct.

On July 7, 2009, Plaintiff again saw Dr. Thiagarajan. (This was either her second or third of her seven visits with her neurologist, but only the first that is documented in the record.)

On August 15, Plaintiff's head CT scan showed no remarkable findings.

On August 21, 2009, Dr. Thiagarajan concluded that Plaintiff's MRI did not explain the symptoms that were purportedly associated with Plaintiff's cerebrovascular accident. Regarding her paresthesia, he reserved judgment and referred her to a cerebrospinal fluid (CSF) analysis. AR 339-41.

On September 2, 2008, Plaintiff had another brain MRI. AR 296-97. At the hearing, the medical expert discussed this MRI and explained that it was not indicative of a major stroke, but could be consistent with MS, generalized arteriosclerosis, or some other condition. (AR 47; see discussion of expert below.)

On September 11, 2009, Dr. Thiagarajan conducted the CSF analysis. His records for September 22, 2009 show that the CSF was negative for multiple sclerosis. There was still no explanation for the persistent paresthesia. He referred her to needle electromyography (EMG) and nerve conduction studies (NCS) to explain her alleged persistent loss of sensation.

On October 28, 2009, the EMG and NCS showed mild carpal tunnel syndrome in both hands without any axonal loss, and mild ulnar neuropathy at the left elbow. Other studies were normal in both right and upper and lower extremities. The needle EMG findings were normal.

Progress reports from Hillman Clinic show that Plaintiff continued complaining of right-sided numbness, pain, or swelling in November 26, 2008, December 4, 2008, January 7, 2009, January 15, 2009, and February 4, 2009.

A year later, on March 2, 2010, Plaintiff saw Dr. Thiagarajan for pain in her right arm. The doctor ordered a venous ultrasound to rule out deep vein thrombosis. Dr. Thiagarajan's records end here.

C. RFC Questionnaires of Dr. Thiagarajan and Dr. Nguyen Dr. Thiagarajan. On February 26, 2010, Dr. Thiagarajan completed an RFC questionnaire for Plaintiff and provided the following information. Her diagnoses were paresthesias (numbness) and syncope (fainting). Her symptoms were dizziness, fatigue, and pain and paresthesias (generalized, on her right side). He based his assessment of her impairments on the MRI, which showed scattered white matter changes suspicious for demyelination, and her CSF analysis, which was negative for multiple sclerosis. The drugs she took were minimally effective: these ...

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