Lopez v. Astrue

• Citation: 807 F.Supp.2d 750,174 Soc.Sec.Rep.Serv. 356
• Decision Date: 06 September 2011
• Docket Number: No. 10 C 6516.,10 C 6516.
• Parties: Amada Emilia LOPEZ, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Illinois

174 Soc.Sec.Rep.Serv. 356

807 F.Supp.2d 750

Amada Emilia LOPEZ, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 10 C 6516.

United States District Court,N.D. Illinois,Eastern Division.

Sept. 6, 2011.

Agustin Glaze Garcia, Agustin G. Garcia, P.C., Chicago, IL, for Plaintiff.

Donald R. Lorenzen, United States Attorney's Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge.

Amada Emilia Lopez seeks review of the final decision of the Commissioner (“Commissioner”) of the Social Security Administration denying her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Title II and Title XVI of the Social Security Act (“Act”). 42 U.S.C. §§ 423(d)(2); 1314(a)(3)(A), 216(I) and 223(d)(2). Ms. Lopez asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

Ms. Lopez applied for SSI and DIB on June 12, 2008, alleging that she had been disabled since April 10, 2005. (Administrative Record (“R.”) 13). Her claims were denied initially on September 16, 2008, and upon reconsideration on November 7, 2008. Ms. Lopez filed a timely request for rehearing on December 2, 2008. (R. 86). An administrative law judge (“ALJ”) convened a hearing on November 13, 2009. (R. 13), at which Ms. Lopez, represented by counsel, appeared and testified. (R. 13). Cheryl Hoiseth testified as an impartial vocational expert (“VE”). On December 23, 2009, the ALJ issued a decision denying Ms. Lopez's applications because he found that Ms. Lopez would be able to perform past relevant work as a clinical counselor. (R. 15–21). This became the final decision of the Commissioner when the Appeals Council denied Ms. Lopez's request for review of the decision on August 23, 2010. (R. 1–3). See 20 C.F.R. §§ 404.955; 404.981. Ms. Lopez has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

I.THE EVIDENCE

A.The Vocational Evidence

Ms. Lopez was born on September 26, 1955, making her fifty four years old at the time of the ALJ's decision. (R. 158). She has a college degree in professional counseling. (R. 33). She last worked as a clinical counselor, a job that involved sitting for the majority of the day meeting with clients and occasionally lifting 10 pounds or less. (R. 33). That job ended when Ms. Lopez elected to stop working after she says she began developing pain and had difficulty concentrating. (R. 34–35). Before that, she worked as a Second Language Tutor, also sitting for the majority of the day and lifting less than ten pounds. (R. 170). Prior to her tutoring job, Ms. Lopez worked as a punch press machine operator in a factory. (R. 170).

B.The Medical Evidence

The medical record discloses that prior to the alleged onset date of April 10, 2005, Ms. Lopez had cervical spine surgery in 2004 and bilateral carpal tunnel surgeries in early 2005. (R. 295–96, 363–64, 372–74, 376–78, 385, 398). On April 14, 2005, Alfred Akkeron, M.D., performed an initial orthopedic evaluation regarding Ms. Lopez's complaints of right shoulder and neck pain, as well as a neck mass. (R. 379–80, 393–94). Dr. Akkeron observed essentially full range of motion of the right shoulder and neck. (R. 379, 393). An x- ray revealed a possible dislocation of the right clavicle joint. (R. 379, 393). An MRI revealed a rotator cuff tear; x-rays showed mild arthritis in her wrists. (R. 292, 395–97). Dr. Akkeron performed primary rotator cuff repair surgery and a neer acromioplasty the following month. (R 366–67).

Richard Shin, M.D., saw Ms. Lopez in consultation on June 28, 2005 and stated that she had “progressed satisfactorily” following surgery on both wrists. Following her second appointment on July 1, 2005, Dr. Shin observed adequate wrist range of motion and discharged her. (R. 372–74, 398). In his report he indicated that Tinel's sign over cubital tunnel was negative on the right, notable because they would generally be positive in an individual with carpal tunnel syndrome. (R. 373); http:// orthopedics. about. com/ cs/ carpaltunnel/ a/ carpaltunnel_ 2. htm.

Following this evaluation, the administrative record contains no treatment accounts for three years. Mrs. Lopez admitted that she did not seek any medical care from 2005 to 2008. Then, on July 2, 2008, Dr. Otto Garcia Montenegro (“Dr. Garcia”), the plaintiff's family doctor, (R. 354, 357), again saw Ms. Lopez. There is no treatment note for this visit. On July 10, 2008, Dr. Garcia completed an Arthritic Report and a Spinal Disorders Report in support of Ms. Lopez's application for disability benefits. In the Spinal Disorders Report, he diagnosed Ms. Lopez with osteoporosis of the lumbar spine. (R. 357–58). Dr. Garcia stated that Ms. Lopez's ambulation was normal; her spinal range of motion was nearly normal; she could sit, stand, or walk for two hours at a stretch, but then said she needed to alternate positions every hour. (R. 357–58). Dr. Garcia said that Ms. Lopez could perform normal lifting and carrying of ten pounds. (R. 358).

Dr. Garcia's Arthritic Report noted next to the heading “Diagnosis(es)”: neck pain and s/p [status post] C5–C6 laminectomy and decompression. (R. 354). On that form, Dr. Garcia noted that Ms. Lopez's ambulation was normal, that she could sit or stand for three hours—not two as he said in the Spinal Disorders Report—at a stretch and added that she needed to alternate positions hourly. (R. 355–56). Dr. Garcia said that Ms. Lopez had decreased range of motion of the upper extremities secondary to pain; decreased grip strength in both hands; significant limitations doing repetitive reaching, handling, fingering, grasping, turning, and twisting; and difficulties holding utensils and performing shoulder level and overhead reaching. (R. 354–55). Finally, he noted that Ms. Lopez said that she felt that all her symptoms got worse after having her earlier surgeries.

On August 11, 2008, C.J. Wonais, M.D., performed a consultative evaluation for the Bureau of Disability Determination Services. (R. 310–12). Dr. Wonais observed that Ms. Lopez's gait was normal; she could ambulate without aid; the range of motion of all joints was normal except for the lumbar spine and right shoulder; straight leg raises resulted in pain in both knees; and a neurological examination was normal, including fist and grip strength. (Ms. Lopez claimed she could not make a fist, and her wrists felt like they were breaking)(R. 48, 212). She complained of constant pain in her hands and difficulty in opening jars and gripping, and inability to button her clothes. (R. 311). Regarding her “mental status,” Dr. Wonais noted that Ms. Lopez wept during most of the examination; any type of activity seemed to cause her a significant amount of pain, and she claimed not to know the difference between a tree and a bush. Dr. Wonais' impression was status post cervical laminectomy , repair of right rotator cuff tear, and bilateral carpal tunnel release; pain in multiple joints; osteoporosis of the wrists; and depression. (R. 311–12). But Dr. Wonais expressed doubt that Ms. Lopez was genuinely cooperating in the examination process, noting: “cooperation was questionable.” (R. 311).

On August 21, 2008, Francis Vincent, M.D., completed a Physical Residual Functional Capacity Assessment form, indicating the following limitations: occasionally and frequently lifting and carrying ten pounds; standing, walking, and sitting each for about six hours; limited pushing and pulling in the upper extremities; occasionally climbing, stooping, kneeling, and crouching; limited reaching, handling, and fingering; and avoiding concentrated exposure to extreme cold, and vibration. (R. 302–09).

On September 15, 2008, Kirk Boyenga, Ph.D., completed a Psychiatric Review Technique Form, indicating these limitations: mild restriction of activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. (R. 313–26). Dr. Boyenga noted that all of the medical records related to physical illness, with the exception of a pre-alleged onset notation in 2004 of a prescription for Xanax. (R. 323).

On September 30, 2008, Dr. Garcia saw Ms. Lopez. His “Progress Notes” reflect complaints of right shoulder pain, right clavicle pain, right elbow pain, bilateral wrist pain, bilateral knee pain, bilateral ankle pain, and he noted osteoporosis of the lumbar spine. (R. 327). He noted another physician prescribed Tylenol with codeine for pain associated with her hysterectomy; it was apparently not intended to treat her back and neck pain. (R. 327).

On October 31, 2008, Richard Bilinsky, M.D., completed a Physical Residual Functional Capacity Assessment Form, indicating the following limitations: occasionally lifting and carrying twenty pounds; frequently lifting and carrying ten pounds; sitting, standing, and walking each for about six hours; occasionally climbing ramps and stairs; never climbing ladders, ropes, and scaffolds; occasionally stooping; and limited reaching above shoulder level with the right arm. (R. 331–38).

C.The Administrative Hearing Testimony

1.Ms. Lopez's Testimony

Ms. Lopez testified that she was a “professional counselor” with a Master's degree from Concordia University. (R. 56). As a mental health therapist, she worked with groups, families and individuals and helped those who could not afford medical care to enroll in programs that paid for that care. (R. 31–33). She said that she found that she could not prepare progress notes in her cases because her back and shoulders hurt and her fingers were numb. She also claimed to have pain in her legs. In 2004, she had a cervical laminectomy, and in 2005, she underwent...