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Alicia Rodriguez-Pagan v. Michael J. Astrue

September 16, 2011


The opinion of the court was delivered by: Bumb, United States District Court Judge.



Plaintiff Alicia Rodriguez-Pagan ("Plaintiff") seeks review pursuant to 42 U.S.C. § 405(g) of the Commissioner of Social Security's (the "Commissioner's") final decision denying her claim for disability insurance benefits ("DIB"). Plaintiff filed a motion for summary judgment, and the Commissioner opposed that motion. For the following reasons, the Court denies Plaintiff's motion and remands the case to the administrative law judge ("ALJ") for further proceedings.


A. Procedural History

Plaintiff filed an application for DIB on April 17, 2006, alleging disability beginning January 21, 2006, due to a back injury, herniated spine problem, and dizziness. (Administrative Record ("R.") 140-44, 155-63.) The claim was initially denied and again denied on reconsideration. (R. 69-73, 76-78.) On January 7, 2008, Plaintiff requested a hearing. (R. 79.) As part of her appeal, she submitted a disability report on October 30, 2008, which listed new disabilities, including problems associated with her hands, her right knee, and right shoulder. (R. 219-26.) She stated that she had had surgery on both hands for carpal tunnel syndrome and that she had also had surgery on her shoulder and planned to have surgery on her knee. (R. 219.) Despite the surgeries, she reported still having pain and "lack of feeling" in her hands and shoulder, which caused her to need help washing her hair and getting dressed. (R. 223.)

The administrative hearing was held on August 19, 2009, before ALJ Daniel N. Shellhamer. (R. 40-63.) Plaintiff, who was represented by counsel, appeared and testified at the hearing, as well as Mitchell A. Schmidt, an impartial vocational expert. (R. 22.)

The ALJ issued a decision denying Plaintiff's claim on September 30, 2009. (R. 16-35.) The ALJ first determined that Plaintiff's earnings record shows that she had acquired sufficient quarters of coverage to remain insured through March 31, 2011, well after the disability onset date, so she met the insured status requirements of the Social Security Act. (R. 24.)

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her disability onset date of January 21, 2006. (R. 24.) At step two, he determined that she suffered from a back disorder, which was her only "severe", or medically determinable, impairment. (R. 24.) At step three, he found that she did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Pt. 404, Subpart P, App. 1. (R. 27.) Before considering step four, the ALJ determined that despite her impairments, Plaintiff had the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. 404.1567(b), with some non-exertional limitations. (R. 27.) At step four, the ALJ found that in light of Plaintiff's RFC, she was unable to perform any of her past relevant work as a secretary, packer, teacher's aide, housekeeper, or home health aide. (R. 33.) At step five, the ALJ concluded that Plaintiff could perform jobs that exist in significant numbers in the national economy, including sedentary unskilled positions like nut sorter or assembler. (R. 34.) He based his opinion upon Plaintiff's RFC, age, education, work experience, and in conjunction with the Medical-Vocational Guidelines, 20 C.F.R. § 404, Subpt. P, App. 2, and the vocational expert's testimony. (R. 34-35.) Thus, the ALJ concluded that Plaintiff was not under a disability as defined in the Social Security Act. (R. 35.)

Plaintiff sought review of the ALJ's decision on October 21, 2009. (R. 13.) The Appeals Council denied Plaintiff's request on July 13, 2010. (R. 1-7.) Accordingly, the ALJ's decision became the final decision of the Commissioner for purposes of judicial review. See 20 C.F.R. § 404.981. On August 20, 2010, Plaintiff filed the above-captioned action in this Court. [Dkt. Ent. 1.] Plaintiff filed a brief pursuant to Local Rule 9.1 on February 11, 2011, in which she moved for summary judgment. [Dkt. Ent. 11.] The Commissioner filed a brief in opposition on March 14, 2011 [Dkt. Ent. 12], and Plaintiff never filed a reply.

B. Evidence in the Record

1. The Hearing

At the time of the administrative hearing on August 19, 2009, Plaintiff was 41 years old, five feet, six inches tall, and weighed 310 pounds. (R. 44.) She testified that she attended three years of college and received an x-ray technician degree in Puerto Rico. (R. 46.) She also stated that she went to medical secretarial school for three and a half years and that she understood some English but could not write any. (R. 46-47.) She testified that she has been living in the United States since 1995, and lives with her husband and children, ages two and four. (R. 45.) Plaintiff testified that she previously worked at Loving Care, where she gave direct patient care to people in their homes, at Bishop McCarthy Nursing Home, where she performed housekeeping, and at Cherry Hot, where she stuffed hot peppers while standing or sitting at an assembly line. (R. 47-49.) She also testified that she worked as a teachers' aide and as a municipal clerk in Puerto Rico. (R. 47-48.)

Plaintiff testified that she had surgery on her hands for carpal tunnel syndrome, but that she still has numbness and charley horses. (R. 49.) She testified that as a result, she has difficulty driving and will only drive to the church or post office, and when she has to drive a distance, she will have someone drive her. (R. 45.) She also reported difficulty picking up items like milk or a pot because she does not feel the objects due to numbness. (R. 50.) She said that due to the discomfort in her wrists, she does not think she could pack or stuff peppers because her fingers remain stiff. (Id.) She also stated that she has been diagnosed with arthritis. (Id.)

Plaintiff testified that she recently had surgery on her right shoulder, but it is now worse than before, and she has been told it is due to arthritis. (R. 50-51.) She stated that it is now difficult for her to lift things and perform tasks such as dressing, putting on underwear, and doing her hair. (R. 51.)

Plaintiff also testified that she can only walk two blocks and stand for ten minutes or less. (R. 52.) She stated that she constantly wears a brace. (Id.) She also reported that she can only sit for ten minutes, and then she must get up and move around to relieve the pain, which radiates to her right leg. (R. 52-53.) She testified that she was sitting at the edge of her seat because it is more comfortable. (R. 53.)

Plaintiff also testified that she has neck problems and that Dr. Soloway diagnosed her with fibromyalgia. (Id.) She stated that she spends her days at home, and her mother is always at her house to help with her children. (R. 55.) She testified that during the day, she sits and lies down. (Id.)

Plaintiff testified that her problems began while working for the county in 2003, when a child pulled a chair out from behind her, and she fell to the floor. (R. 56.) She stated that she filed a worker's compensation case, which settled. (R. 56-57.) Her back pain caused her to file for Social Security Benefits in April 2006.

Mitchell Schmidt, the vocational expert ("VE"), testified that Plaintiff's past work ranged between the categories of "sedentary" and "medium" and "skilled" and "unskilled." (R. 59-60.)

The ALJ asked the VE to consider a hypothetical individual of similar age, education and past work experience as the claimant, with limited use of English, who was restricted to sedentary work and only "occasional fine fingering and handling", where the work involved simple routine instructions, repetitive tasks, simple work-related decisions, some common sense, but only minor or few work changes in a routine work setting. (R. 60-61.) The VE testified that there would be no jobs that fit that profile, because the jobs at the sedentary unskilled level that would have only occasional handling and fingering would require communication. (R. 61.) The ALJ noted that he had to consider Plaintiff's problem with her hands given the time at which it arose. (R. 61.) However, he then told the VE to reconsider the hypothetical without the limitation of only occasional handling and fingering. (Id.) The VE then responded that Plaintiff could perform the occupation of nut sorter or final assembler of eyeglasses. (Id.)

2. Relevant Medical Records

On April 19, 2006, Plaintiff saw Dr. Stephen Soloway for the first time in eighteen months, with complaints of pain in her back, knees, and hands. (R. 354.) Examination revealed presacral trigger point pain and tenderness, but neurovascular status was intact. (R. 354.) Plaintiff was morbidly obese. (R. 354.) Dr. Soloway injected Plaintiff's trigger points with Depo-Medrol, prescribed Darvocet and Naprosyn, and recommended physical therapy.

(R. 354.) Lumbar spine x-rays revealed dextroscoliosis and straightening of lordosis; knee x-rays indicated bilateral mild osteoarthritis; and elbow x-rays revealed no abnormality. (R. 355.)

On April 26, 2006, Plaintiff complained of left elbow pain. (R. 353.) Her examination was otherwise unremarkable; she "appear[ed] well," and her back pain had improved. (R. 353.) Dr. Soloway diagnosed lateral epicondylitis, commonly known as tennis elbow.

(R. 353.) He injected her elbow, and prescribed Darvocet and physical therapy for her lower back. (R. 353.) On June 5, 2006, Plaintiff complained of neck pain and an injury to her left elbow.

(R. 352.) She had decreased range of motion in her elbow and neck muscle spasm and tenderness for which she received an injection. (R. 352.) She again "appear[ed] well". (R. 352.) Magnetic resonance imaging (MRI) of the cervical spine revealed mild narrowing of the right neuroforamen at the C3-C5 levels, with a central disc protrusion at C5-C6. (R. 350.) A left elbow MRI revealed minimal joint effusion but no bone or soft tissue abnormality. (R. 351.)

On June 19, 2006, Plaintiff complained only of left elbow pain, for which she received an injection. (R. 349.) Dr. Soloway noted that Plaintiff's elbow MRI was normal and cervical spine was "adequate". (R. 349.)

Plaintiff's left elbow pain was "much better" by July 13, 2006. (R. 348.) She complained of right elbow pain, but had full range of motion bilaterally. (R. 348.) Dr. Soloway again injected her elbow, and again recommended physical therapy. (R. 348.)

On September 21, 2006, Plaintiff reported "pain all over" but had no fever, constitutional symptoms, Raynaud's, sicca, muscle weakness, dysphagia, or shortness of breath, and her elbows were better following the earlier injections. (R. 329.) Dr. Soloway noted "fibromyalgic pain" and ordered a follow up in one month. (R. 329.) He prescribed Ambien, Elavil and tramadol, and again suggested physical therapy. (R. 329.)

Despite Plaintiff's complaints, Dr. Soloway completed an assessment the same day in which he stated that she could walk at a reasonable pace and had nearly full (4/5) strength bilaterally. (R. 331.) She had normal grip strength, could extend her hand, make a fist and oppose her fingers bilaterally; she also was able to separate papers and fasten buttons. (R. 331.) She had full range of motion in her shoulders, elbows, wrists, knees, hips, ankles and cervical spine. (R. 330-331.) She could squat, walk on heels and toes, and had no sensory or reflex loss. (R. 331.)

Cervical spine x-rays on October 3, 2006 revealed "minimal" degenerative changes, with a "tiny" spur at C5. (R. 408.) Right shoulder x-ray revealed no abnormality. (R. 409.)

Plaintiff was consultatively examined by orthopedist Dr. Nithyashuba Khona on October 17, 2006. (R. 286-88.) Plaintiff said her main problem was severe neck and back pain, but was unable to describe this further. (R. 286.) She also alleged a history of depression and anxiety following a back injury in 2003. (R. 286.) Medications included Celebrex, amitriptyline, etodolac, naproxen, Cymbalta, tramadol, dicyclomine, and propoxyphene napsylate with acetaminophen (propoxy-N/APAP). (R. 286-87.)

Plaintiff lived with her husband and one-year-old child. (R. 287.) She cooked twice a week, showered and dressed daily, and cared for her child with help from her mother. (R. 287.) She listened to the radio and went to church, but claimed she had no friends. (R. 287.)

Plaintiff was five feet, six inches tall and 210 pounds. (R. 287.) Her gait was slow, but normal. (R. 287.) She needed no help changing or getting on and off the examination table, and was able to rise from a chair without difficulty. (R. 287.) She refused to squat or walk on heels and toes, saying both would cause her pain.

(R. 287.) Her hand and finger dexterity were intact, and grip strength was full (5/5) bilaterally. (R. 287.) However, she refused to lie down or move her shoulders, spine, or legs as she said this would cause her pain. (R. 287-88.) Dr. Khona did examine Plaintiff's back for tenderness, and noted no sacroiliac joint or sciatic notch tenderness, no spasm, and no obvious scoliosis or kyphosis. (R. 288.) Dr. Khona assessed that Plaintiff's reported pain was out of proportion when he touched her back for palpation.

(R. 288.) He could not offer a prognosis because of the limited examination. (R. 288.)

Plaintiff saw Dr. Timothy Rhyme on October 16, 2006, with complaints of wrist, neck, and shoulder pain. (R. 407.) Dr. Rhyme continued her Ultram (tramadol) prescription and added Celebrex. (R. 407.)

Plaintiff saw Dr. Soloway on October 19, 2006, with complaints of neck and back pain. (R. 327.) Upon examination, she "appear[ed] well" despite splenius capitis tender points (at the back of her neck) that were worse with range of motion and for which she received an injection. (R. 327.) The examination was otherwise unremarkable.

(R. 327.) Dr. Soloway again recommended physical therapy, and medications including Ambien, Elavil and tramadol, which Plaintiff appeared not to have started. (R. 327.) Cervical spine x-ray revealed reversal of cervical lordosis, spondylitic changes, and narrowing at C6-C7. (R. 328; but see R. 408.)

On November 2, 2006, Plaintiff complained only of low back pain.

(R. 326.) She had pain with lumbar spine motion and some paravertebral spasm, but "appear[ed] well". (R. 326)

State agency physician Dr. Jose Acuna completed a Physical Residual Functional Capacity Assessment form on December 12, 2006, which was later affirmed by Dr. Martin Sheehy. (R. 207, 289-96.) Dr. Acuna noted that Plaintiff alleged a history of back injury with herniated nucleus pulposus (herniated disc), and that medical evidence of record included a history of a small right paracentral disc herniation at L4-L5, impinging on the nerve root, as well as lumbar spine facet osteoarthritis. (R. 290; see R. 251, 255, 458, 459.) He also considered that Plaintiff alleged depression, anxiety, low back pain, neck pain, right hip pain, headaches, dizziness, inability to lift, ...

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