Lugo-gonzalez v. Astrue
| Decision Date | 11 March 2011 |
| Docket Number | CAUSE NO: 2:09-cv-338 |
| Parties | JOSE M. LUGO-GONZALEZ, Plaintiff v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the court on the Petition for Judicial Review of the Decision of the Commissioner of Social Security filed by the plaintiff, Jose M. Lugo-Gonzalez, on February 19, 2010. For the reasons set forth below, the decision of the Commissioner is AFFIRMED IN PART and REVERSED AND REMANDED IN PART.
The plaintiff, Jose M. Lugo-Gonzalez, applied for Supplemental Security Income (SSI) on December 1, 2005, alleging a disability onset date of March 15, 2005. (Tr. 24, 102, 269) His claim initially was denied on February 7, 2006, and again denied upon reconsideration on June 7, 2006. (Tr. 24, 34-35) Lugo-Gonzalez requested a hearing before an Administrative Law Judge ("ALJ") on July 12, 2006. (Tr. 24, 89) Video teleconference hearings were held before ALJ Shirley Moscow Michaelson on April19, 2007, and May 13, 2008. (Tr. 267-353) At the April 2007 hearing, medical expert Dr. Ashok Jilhewar, M.D. and vocational expert Lee Knutson testified. (Tr. 297-303) Plaintiff testified through a Spanish interpreter, Jorge Carbajosa. (Tr. 270) At the May 2008 hearing, medical expert Dr. Larry Kravitz, Ph.D. and vocational expert Edward Pagella testified. (Tr. 336-342, 345349) Plaintiff again testified through a Spanish interpreter, Carina Julian. (Tr. 310-11)
On October 14, 2008, the ALJ issued her decision denying benefits. (Tr. 24-33) The ALJ found that Lugo-Gonzalez was not under a disability as defined in the Social Security Act from March 15, 2005, through October 14, 2008. (Tr. 32-33) Lugo-Gonzalez requested a review of the decision on October 28, 2008. (Tr. 12-17) The Appeals Council denied the request on August 12, 2009. (Tr. 3-5) Lugo-Gonzalez filed his Complaint in this court on October 14, 2009.
Lugo-Gonzalez was born on October 23, 1965, making him 42 years old on the date of the ALJ's decision. (Tr. 102, 107) He is unable to communicate in English. (Tr. 30, 39, 301, 348) He is 5' 7" in height and weighs approximately 267 pounds. (Tr. 111, 192) He completed high school in Puerto Rico and worked there as a security guard and gas station cashier. (Tr. 107, 110, 266) He emigrated to New York in the 1990s and then movedto Indiana to look for work. (Tr. 107) He has not worked since 1982 when he was employed as a security guard in Puerto Rico. (Tr. 266) He has not lived outside the United States since April 1, 1997. (Tr. 102) At the time of the hearings he lived alone in Section 8 housing in East Chicago, Indiana and received food stamps. (Tr. 103, 107)
Lugo-Gonzalez was diagnosed with obesity, hypertension, hyperlipidemia, diabetes, diabetic retinopathy, osteoarthritis, lumbar radiculopathy, spinal stenosis, tendinitis of the right knee, lumbar segmented dysfunction, sacrum ilium segmented dysfunction, back pain with a history of lumbar disc herniation, and major depressive disorder severe, recurrent. (Tr. 112, 134, 139, 163, 164, 179, 193, 197, 198, 201, 203, 207, 218, 237) He had arthroscopic surgery on his left knee before he left Puerto Rico in 1995. (Tr. 111, 194, 199, 214) In May 2001, Lawrence DiRisio, a physician's assistant in Rochester, NY, evaluated Lugo-Gonzalez for lower back pain and left knee pain. (Tr. 217-18) His x-rays from September 1999 revealed some mild osteo-phytic formation but no other obvious bone abnormality. (Tr. 217) His MRI report from October 2000 indicated a L4-5 posterior and right paracentral disc herniation impinging the right L5 nerve root. (Tr. 218) Lugo-Gonzalez was prescribed TENS patches, referred to physical therapy for his knee, and given ahome exercise program. (Tr. 218) DiRisio explained to Lugo-Gonzalez that his obesity was contributing to his back and knee problems and that it was important for him to lose weight. (Tr. 218) Dr. Peter Capicotto agreed with DiRisio's evaluation. (Tr. 218)
On June 11, 2003, Lugo-Gonzalez saw Dr. Capicotto again for low back pain radiating through his right leg. (Tr. 211) A June 17, 2003 MRI showed moderate degeneration of the L4-5 disc and mild degeneration of the L1-2 and T11-12 discs. (Tr. 212) There was a right posterolateral disc herniation at the L4-5 disc with displacement of the right L5 root. (Tr. 212) The disc levels were otherwise unremarkable except from mild bilateral facet arthropathy at the L5-S1 and at L3-4. (Tr. 212) Dr. Capicotto recommended Lugo-Gonzalez for a conservative program which included epidural injections. (Tr. 210) On June 25, 2003, Dr. Capicotto noted Lugo-Gonzalez was totally disabled due to his pain. (Tr. 210)
In October 2003, Lugo-Gonzalez began receiving heat and EMS treatment from Dr. Robert Martin, a chiropractor. (Tr. 2 04) Dr. Martin treated him several times per year through 2005, and again in June 2007. (Tr. 204)
In July 2004, MRIs of Lugo-Gonzalez's lumbar spine ordered by Dr. Arvind Kakodkar showed mild posterior disc herniation atthe L5-S1, a large posterior disc herniation at the L4-L5, marked degree of spinal stenosis at L4-L5 disc level, mild spinal stenosis at L3-L4 and L5-S1 levels, mild universal herniation of L1-L2, and T11-T12 intervertebral discs. (Tr. 163-64) A July 2004 x-ray, also ordered by Dr. Kakodkar, showed degenerative spurring of L1-L2 and L4-L5 with narrowing of disc space between them. (Tr. 165)
Dr. Ramon Llobet wrote a letter dated June 1, 2005, stating that Lugo-Gonzalez was his patient and had malignant hypertension, Diabetes Mellitus, obesity, and spinal stenosis. (Tr. 139) Dr. Llobet stated "because of these multiple medical problems, the patient is unable to engage in any profitable type of activity." (Tr. 139)
On November 16, 2005, Lugo-Gonzalez sought treatment from psychiatrist, Dr. Graciela E. Hernandez. (Tr. 220) He said he felt depressed and anxious, had crying spells, had financial problems, could not sleep, and became irritable. (Tr. 220) Dr. Hernandez determined Lugo-Gonzalez's affect was depressed and anxious, but she noted that he was spontaneous, coherent, relevant, not overly psychotic, and in touch with reality. (Tr. 22 0) She diagnosed him with Major Depressive Disorder, recurrent and severe, and prescribed Lexapro and Buspar. (Tr. 220) Lugo-Gonzalez began therapy sessions with Dr. Hernandez. (Tr. 221) Hesaw her approximately twice a month through April 2 008. (Tr. 221-237) Dr. Hernandez took Lugo-Gonzalez off the Buspar and kept him on the Lexapro through September 2007, until she changed his medication to Cymbalta in April 2008. (Tr. 220-237) On April 11, 2006, Dr. Hernandez determined Lugo-Gonzalez's affect was mildly depressed and assigned him a GAF1 of 40. (Tr. 223) During the course of his treatment, Dr. Hernandez assigned Lugo-Gonzalez GAF scores between 40-452. (Tr. 223-237)
On March 9, 2006 Dr. Llobet evaluated Lugo-Gonzalez for "White Coat Syndrome", a phenomenon in which the patient has an elevated blood pressure in a clinical setting, with a 24-hour blood pressure test. (Tr. 142-151, 181-190) The blood pressure test was consistent with severe hypertension. (Tr. 140, 179) On May 5, 2006, Lugo-Gonzalez underwent a myocardial profusion scan and a cardiac stress test because he was experiencing chest pain for a month. (Tr. 177) The findings included post stress, thinning and mild to moderate decreased perfusion in theinferior wall, and an ejection fraction of 67%. (Tr. 177) He achieved 73% of the target heart rate during the stress test, a multistage treadmill exercise. (Tr. 177)
March 5, 2007, Lugo-Gonzalez was examined by Dr. Joseph Spott, D.O., for low back pain. (Tr. 199) Dr. Spott found that Lugo-Gonzalez's left and right lower extremities were normal, he had no instability with examination of the shoulder bilateral, elbow bilateral, wrist bilateral, hip bilateral, knee bilateral, and ankle bilateral. (Tr. 200-01) He was able to walk on heels and toes with no difficulty, he had a normal bilateral straight-leg raising test, his flip sign was normal bilateral, pelvic rock test was normal bilateral, Patrick test was normal bilateral, and his Cervical, Thoracic, and Lumbar vertebrae demonstrated no evidence of subluxation, dislocation, or laxity. (Tr. 201) He had a normal range of motion exam with no pain or crepitus noted. (Tr. 201) His thoracic range of motion was within normal limits, and his lumbar range of motion was normal, with full flexion/extension and side bending. (Tr. 201) Dr. Spott believed that Lugo-Gonzalez had mechanical low back pain and right knee pain and recommended physical therapy three times a week for four weeks and pain management medication. (Tr. 201) Lugo-Gonzalez refused surgery and injections. (Tr. 201) Dr. Spott ordered x-rays in March 2007 that showed mild to moderate arthritic changesof the lower thoracic, upper and lower lumbar region, narrowing of intervertebral disc spaces of lower thoracic and upper lumbar spine, and narrowing of L4-L5 disk space. (Tr. 197) Right knee X-rays showed mild arthritic changes of the knee joint. (Tr. 198)
On March 19, 2007, Dr. Tarek Shahbandar from the Pain Center, examined Lugo-Gonzalez for lower back pain which he described as a tightening pain with numbness and tingling. (Tr. 194-196) The examination of the lumbar spine revealed negative straight leg raising, but produced left knee pain. (Tr. 195) Bilateral hip flexion, knee flexion, knee extension, ankle dorsiflexion, and plantar flexion were 5/5 bilaterally. (Tr. 195) Dr. Shahbandar's impression was that Lugo-Gonzalez had a large disc herniation at L5-S1 and L4-L5 encroaching on the foramen. (Tr. 195) Dr. Shahbandar prescribed Tramadol and Medrol Dosepak and scheduled a one month follow-up. (Tr. 195-96) Lugo-Gonzalez declined any type of procedure. (Tr. 195)
On March 27, 2007, Dr. Kakodkar filled out a medical source statement of physical ability to do work-related activities form. (...
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