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Quintero v. Colvin

United States District Court, E.D. California

September 29, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SHEILA K. OBERTO, Magistrate Judge.


Plaintiff Anabel Lopez Quintero ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. ยงยง 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.[1]


Plaintiff was born in 1965, and completed high school in the United States. (Administrative Record ("AR") 40, 54.) In either 2000 or 2007, Plaintiff completed clerical classes. (AR 56, 155.) Plaintiff's past jobs include bag machine operator and cannery worker. (AR 57.) On May 14, 2010, Plaintiff filed applications for DIB and SSI benefits, alleging disability beginning May 29, 2007, due to bilateral total knee replacement, depression, and anxiety. (AR 41, 149, 154.) In a November 2010 disability report, Plaintiff indicated her conditions had changed, including that her legs were swelling more often and her migraines had worsened by degree and frequency. (AR 167.)

A. Relevant Evidence

1. Migraine Headaches

Plaintiff treated with Andres Arellano, M.D., from 2007 until 2011. (AR 287-339, 359-60.) In February 2007, Plaintiff's treatment records indicated she was prescribed Vicodin for migraine headaches and knee pain. (AR 339.) In April 2007, Plaintiff's migraines were noted to be stable with medication, and Plaintiff reported in May 2007 that her migraines were "better." (AR 329, 335.) In August 2007, Plaintiff reported that her migraines were "exacerbated, " but by November, her migraines were again noted to be stable. (AR 314, 325.) In July 2008, Plaintiff's treatment records indicate that she was advised to stop taking medication for her migraines, as it may have been causing rebound headaches. (AR 304.) In December 2008, Plaintiff's treatment records note that Plaintiff had a history of migraines, but she was functioning well. (AR 302.) Treatment notes from September 2009 and November 2009 discussed Plaintiff's "chronic" migraines. (AR 295, 297.)

On August 28, 2010, Plaintiff underwent a psychiatric evaluation administered by Gerardine Gauch, Psy.D. (AR 250-55.) The examination dealt with Plaintiff's depression, but Plaintiff reported that she suffered migraine headaches "that are familial." (AR 251.) Dr. Gauch diagnosed Plaintiff with migraine headaches pursuant to Plaintiff's statements regarding her history with migraines. (AR 254.)

At the time Plaintiff filed her disability claim, she submitted a disability report noting she was prescribed medication for migraines, but she did not list this as a condition that prevented her from working. (AR 154, 157.) In November 2010, Plaintiff completed another disability report noting that her migraines had gotten worse and that she experienced them more frequently. (AR 167.) She indicated she was unable to drive because of the headaches and the medication she takes for her conditions. (AR 170.) On December 3, 2010, Plaintiff completed a function report stating her migraines cause her pain, and she was required to lie down for up to 3 hours every day depending on the level of pain from her leg, her migraines, and her anxiety. (AR 181.)

2. Physical Conditions

In June 2007, Robert M. Cash, M.D., completed a right knee replacement on Plaintiff, followed by a left knee replacement in October 2007. (AR 240-41, 243-44.) In December 2007, Plaintiff was still experiencing pain in her left knee, but noted it was mildly improving. (AR 228.) She continued to have tightness in her knee, which seemed to "wax and wane." Plaintiff was working on strengthening her knee, and continued to ambulate with a cane. (AR 228.) On examination, her left knee had no marked erythemia; Plaintiff was tender to palpation to both the medial and lateral joint lines; Plaintiff's range of motion is from neutral to 100 degrees. (AR 228.) Dr. Cash indicated Plaintiff remained unable to work her usual and customary job. (AR 228.)

In February 2008, Plaintiff returned for a follow up with Dr. Cash, and reported bilateral knee pain and discomfort, but indicated she was otherwise doing quite well, with no significant complaints. (AR 227.) On examination, Dr. Cash indicated slight patellofemoral crepitus with motion of the knees, but it was "minimal." Dr. Cash noted Plaintiff was ambulatory, but had experienced an increase in her weight. (AR 227.) Dr. Cash recommended continued strengthening efforts, weight loss efforts, a transcutaneous electrical nerve stimulation ("TENS") unit as necessary for pain management, and reassessment as necessary. (AR 227.)

In April 2008, Plaintiff returned to Dr. Cash. (AR 226.) Plaintiff reported experiencing some pain in her left knee, but improving greatly over time. The examination was normal and revealed "excellent mobility overall, normal sensation, no instability, and she [was] independently ambulatory." (AR 226.) Dr. Cash recommended continuing strengthening efforts and reassessment in four to six months. She was to undertake "[a]ctivities as tolerated" and was to be "[o]ff work as necessary."

In June 2008, Plaintiff reported "quite a bit of pain" in her left knee, but her right knee was giving her no problems. (AR 225.) Upon examination Plaintiff was still obese, both knees were "moving well, " sensation and capillary refill were within normal limits, no crepitus was noted, and there was no evidence of subluxation, but her left knee had "some pain with motion." (AR 225.) Dr. Cash opined that her pain complaints would resolve, but indicated the need for new radiographs of her knees to rule out any component problems. (AR 225.) A June 12, 2008, x-ray of the left knee revealed near anatomic alignment with no acute radiographic abnormalities. (AR 245.) On June 24, 2008, Dr. Cash reported that Plaintiff's knee radiographs revealed well-seated arthroplasty components, she had excellent flexion-extension overall, good collateral and anterior-posterior stability, and no sign of infection. (AR 224.) He advised that she avoid "provocative activities" which worsened discomfort, but recommended that she continue doing exercises and using her knees. (AR 224.)

In August 2008, Dr. Cash noted some slight laxity (looseness) in the left knee and gave Plaintiff a neoprene sleeve for her knee to improve confidence and function. (AR 223.) Dr. Cash said she should return to activities as tolerated. (AR 223.)

In October 2008, Dr. Cash noted that Plaintiff had some discomfort on motion but fair functional motion and range, good overall stability, and that she was doing well and "going to return to work activities." (AR 222.)

In May 2010, Dr. Cash again saw Plaintiff, who complained of bilateral knee pain. (AR 221.) Examination revealed Plaintiff had some looseness in her knees bilaterally, she had well-healed incisions, fair flexion-extension, good collateral and anterior-posterior stability, and fair patellofemoral alignment. (AR 221.) Dr. Cash noted that Plaintiff's knees were limiting her ability to ambulate, stand, and climb stairs, and he opined that she was unable to work as a cannery worker or factory worker at the time. (AR 221.)

In September 2010, state agency physician, M. Nawar, M.D., reviewed the records and opined that Plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for 2 hours in an 8-hour day; sit for 6 hours in an 8-hour day; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and never climb ladders, ropes or scaffolds. (AR 256-60.) Upon reviewing Plaintiff's medical records on December 23, 2010, Ernest Wong, M.D., affirmed Dr. Nawar's assessment. (AR 341.)

B. Administrative Proceedings

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). On August 3, 2011, the ALJ held a hearing at which Plaintiff and a vocational expert ("VE") testified. (AR 37-62.)

1. Plaintiff's Testimony

Plaintiff testified that she earned a high school diploma, is able to read the newspaper, and can perform simple addition and subtraction. (AR 41.) She was a sanitation worker from 1995 to 1997, and a bag operator for Hershey's chocolate company from 1997 to 2007. (AR 41.) She worked briefly in 2009 at a winery pulling bottles from the line and putting them into a bin, but she only worked for two days. She stopped working because "they didn't call [her] back." (AR 49.) Plaintiff was having problems at the job because she had to stop frequently due to pain, and often asked her employers to let her use the bathroom or drink water because she was fatigued. (AR 50.)

Physically, Plaintiff started having problems with her knees while she was working at Hershey's, and she missed "a lot" of work as a result of her arthroscopy surgery. (AR 50.) The knee replacement alleviated some of her pain, but did not help with flexibility; she cannot kneel or "do things like that." (AR 48.) Plaintiff has pain in both her knees and her right hip because she puts all her weight on the right side. (AR 47.) Plaintiff uses a cane prescribed by the doctor when she leaves the house. (AR 48, 50.) On May 29, 2007, Plaintiff had bilateral knee replacement. (AR 41.) She also suffers from depression and anxiety. (AR 41.) She has problems eating and sleeping; she does not eat during ...

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