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Ines Y. Rodriguez Deaguilu v. Michael J. Astrue

March 17, 2011


The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh




This matter comes before the Court upon the appeal of Ines Y. Rodriguez DeAguilu ("Plaintiff") from the final decision of the Commissioner of Social Security ("Commissioner"), denying Plaintiff's claims for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"), and for Supplemental Security Income ("SSI") under Title XVI of the Act. This Court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). No oral argument was heard pursuant to Rule 78 of the Federal Rules of Civil Procedure.

As detailed below, the final decision entered by Administrative Law Judge ("ALJ"), Dennis O'Leary, is reversed.



On January, 24, 2006, Plaintiff filed applications for disability insurance benefits and supplemental social security insurance benefits, alleging disability beginning July 26, 2005. (Tr. 97, 100). Both applications were denied initially on October 3, 2006, and then upon reconsideration, on March 6, 2007. (Tr. 14). Thereafter, Plaintiff filed a timely written request for a hearing. (Tr. 69). Plaintiff appeared and testified at the hearing on May 7, 2008 before ALJ Dennis O'Leary. (Tr. 24). At the close of the hearing, the ALJ held the record open to obtain a vocational interrogatory from Mr. Rocco Meola, an impartial vocational expert, and to allow Plaintiff's attorney to obtain updated medical records from Dr. Peterson and Dr. Nagendra. (Tr. 14). On May 19, 2008, Mr. Meola submitted responses to the interrogatory, which were made part of the record. Dr. Peterson's medical records were also entered into the record. No material was submitted by Dr. Nagendra and the record was closed. The ALJ issued an unfavorable decision on June 25, 2008. (Tr. 14-23), finding that Plaintiff was not disabled in accordance with 20 C.F.R. §§ 404.1520(g) and 416.920(g). (Tr. 23). Plaintiff filed a request for review by the Appeals Council on August 10, 2008 (Tr. 7), which the Appeals Council denied on May 11, 2009, finding no grounds for review (Tr. 1-3). District action was thereafter timely commenced and this matter is now properly before the Court.


1. The findings of the Administrative Law Judge

ALJ O'Leary made the following eleven findings regarding Plaintiff's DIB and SSI applications: (1) Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2010; (2) Plaintiff has not engaged in substantial gainful activity since her alleged onset date, July 26, 2005; (3) Plaintiff has residuals of lumbar disc disease, with radiculopathy, status post L5-61 anterior posterior decompression, instrumentation, and fusion, which is a severe impairment; (4) Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) Plaintiff has the residual functional capacity to perform sedentary work, except that the job must be one where she can alternate standing and sitting at her election, as well as do simple and repetitive tasks; (6) Plaintiff is unable to perform any past relevant work; (7) Plaintiff was born on February 19, 1964, and was 41 years old, which is defined as a younger individual age 18-44, on the alleged onset date of the disability; (8) Plaintiff has a limited education and is able to communicate in English; (9) transferability of job skills is not an issue because Plaintiff's past relevant work is unskilled; (10) considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers that she can perform; and (11) Plaintiff has not been under a disability, as defined in the Social Security Act, since July 26, 2005, the alleged disability onset date. (Tr. 16-23).

2. Plaintiff's Medical History and Evidence

Plaintiff alleges that she has been disabled since July 26, 2005, the date she stopped working, (Tr. 14, 111), as a result of a motor vehicle accident that occurred on May 28, 2005 (Tr. 34). Plaintiff's medical history and the evidence pertaining to her impairment are summarized below.

i. MRI - July 25, 2005

On July 24, 2005, Plaintiff had a MRI Lumbar Spine examination performed. (Tr 193, 277). The examination revealed "small posterior disc herniation centrally and to the right side with indentation of the right S1 nerve root at the L5-S1 level." Id.

ii. EMG - September 9, 2005

On September 9, 2005, Plaintiff underwent a EMG/NCV examination. (Tr. 192, 275-76). The EMG and nerve conduction studies of the lower extremities "demonstrated a right L5-S1 radiculopathy with active denervation." (Tr. 192).

iii. Treatment by Dr. Bello - September through December 2005

Plaintiff was referred to Dr. Bello, who began treating her in September 2005. (Tr. 289-91). In subsequent visits, Dr. Bello administered three epidural injections, on September 30, October 7, and October 14, 2005, to treat Plaintiff's lumbar disc disease with radiculopathy. (Tr. 282-88). In between the first and second epidural injections, Dr. Bello observed that Plaintiff's improvements were "significant in relation to the lower back, buttock, and lower extremities pain." (Tr. 284). Dr. Bello reported a decline in Plaintiff's pain by "about 50%." Id. Between the second and third injections, Dr. Bello, again observed significant improvement with Plaintiff's pain and reported a decline in pain by "about 60%." (Tr. 282).

In a follow-up examination, on November 14, 2005, Dr. Bello stated that Plaintiff's "pain started again and seems to be worsening. The pain is worse in the midline of lumbar area which is aggravated by standing, sitting and lying down." (Tr. 279). Dr. Bello noted "possible discogenic pain from internal disc displacement which is the primary pain generator now." (Tr. 279). Dr. Bello, also recommended that Plaintiff see Dr. Dauhajre. (Tr. 280).

In another follow-up examination, on December 19, 2005, Plaintiff still complained of lower back pain that radiated at the waist, right thigh, and groin. (Tr. 273). Plaintiff voiced that the pain was aggravated when she walked or when she got up. Id. She also complained of severe pain when lying down, which forced her to sleep on her side, but said she experienced less pain when she was sitting down. (Tr. 273). Plaintiff also stated that extending her back triggered discomfort. Id. Dr. Bello observed "lumbar facet antropathy." Id. Additionally, he recommended a lumbar facet joint/medical branch block to localize the cause of Plaintiff's pain. (Tr. 274). If the severe pain continued, Dr. Bello noted that a discogram and possible percutaneous discectomy should be considered. (Tr. 274).

On December 30, 2005, Dr. Bello performed a facet joints/medical branch block at bilateral levels L3, L4, and L5. (Tr. 269-70). After the procedure, Plaintiff had an eighty-percent reduction in pain and Dr. Bello noted that Plaintiff was a good candidate for medical branch radiofrequency ablation. (Tr. 270).

iv. Examinations by Dr. Dauhajre

Plaintiff was examined on multiple occasions by Dr. Dauhajre from June 2005 through November 2005. (Tr. 191-203). The initial examination occurred on June 7, 2005. (Tr. 199). Plaintiff complained of infrequent neck pain, with "intermittent paresthesias down the left upper extremity to the level of the left mid arm." Id. Plaintiff also complained of lower back pain with varying degrees of intensity, with "intermittent paresthesias down the right lower extremity to the level of the right ankle, and the left buttock." (Tr. 200). Plaintiff indicated that walking fast or getting up from a bent position would aggravate her lower back pain but coughing, sneezing, or Valsalva maneuvers would not increase the pain. Id. Plaintiff had additional visits on July 12, 2005, August 9, 2005, and October 31, 2005, in which she stated she still had the same lower back pain. (Tr. 195-98, 202-03).

Plaintiff returned for an evaluation on November 8, 2005, complaining of the "same constant lower back pain" and "intermittent radicular pain and paresthesias down the right lower extremity to the level of the right foot toes." (Tr. 191). A physical examination of the lower back revealed: forward flexion of 80 degrees; Plaintiff was unable to reach her toes with her fingers by four inches; there was interspinous tenderness between L5 and S1; no spinous or sciatic notch tenderness; no muscle spasms; the motor and sensory for L4 through S1 were "grossly within normal limits"; and "negative straight leg raises." Id. Dr. Dauhajre also recommended that Plaintiff obtain a second opinion with an orthopedic spinal surgeon. (Tr. 192).

v. Examinations by Dr. Orlikowski - July 2005 through February 2006

Dr. Jeffrey Orlikowski, a chiropractor, examined Plaintiff on a few occasions. (Tr. 208-17). On November 3, 3005, Dr. Orlikowski indicated that Plaintiff would be able to return to work on December 4. (Tr. 216). After Plaintiff's February 6, 2006 examination, Dr. Orlikowski indicated that Plaintiff could not sit for more than half an hour without discomfort, stand or walk for more than two hours a day or lift more than ten pounds. (Tr. 209). He also stated that Plaintiff was limited and unable to walk for long distances. (Tr. 213). Dr. Orlikowski concluded that Plaintiff could not continue to work in her job as a homemaker, as she is unable to perform activities such as mopping or vacuuming. (Tr. 209).

vi. Disability Determination Services Assessment by Dr. Vasallo On September 19, 2006

Plaintiff was evaluated by Dr. Vassallo, at the request of Disability Determination Services. (Tr. 218). Plaintiff claimed she had constant lower back pain which extended to both of her legs, that she could not stay seated for more than fifteen minutes, remain standing for more than 20 minutes, or walk more than two blocks. (Tr. 219).

During the examination, Dr. Vasallo found that Plaintiff walked and sat stiffly, had difficulty bending her back, used a cane easily, but could walk on her tippy toes and heels, squat, and keep her back straight. Id.

Dr. Vasallo concluded that Plaintiff had a history of "hypertension with chronic lumbar sacral pain with a right sciatic syndrome, due most probably to disc pathology." Id. He also determined that Plaintiff did not need an assistive device to help her walk, and that she was able to use both hands for fine and gross manipulation. (Tr. 219-20).

An x-ray determined that Plaintiff had no evidence of a fracture or malalignment, the disc spaces were intact, and the pedicles were preserved. (Tr. 223). As a result, it was ...

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