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Bollas v. Astrue

March 8, 2010


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


Claimant Maritza Bollas ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplement Security Income ("SSI"). The parties raise the following issues: (1) whether Claimant waived her claim that she was disabled by physical impairments; (2) whether the Administrative Law Judge's ("ALJ's") physical Residual Functional Capacity ("RFC") determination is supported by substantial evidence; and, (3) whether the ALJ's mental RFC determination is supported by substantial evidence. For the following reasons, the Court affirms the ALJ's decision denying Claimant's DIB and SSI benefits, denies Claimant's request to reverse or remand the decision of the Commissioner, and grants the Commissioner's motion for summary judgment.


A. Procedural History

Claimant initially filed for DIB on September 2, 2003, and for SSI on August 14, 2003, alleging a disability onset date of December 4, 2002 due to bilateral carpal tunnel syndrome, an elbow impairment, and depression. R. 165-67. The Social Security Administrator ("SSA") denied both claims on December 17, 2003. R. 149. Claimant then filed a request for reconsideration, which the SSA denied on September 22, 2004. R. 155. Shortly thereafter, on November 17, 2004, Claimant requested a hearing before an ALJ. R. 161. Claimant's hearing was postponed on several occasions before going forward in June 2007. R. 37, 879-82.

On June 15, 2007, Administrative Law Judge Helen Cropper presided over a hearing at which Claimant appeared with her attorney, Paul Marcovitch. R. 884-956. Claimant, Dr. William Newman, a medical expert, and Cheryl Hoiseth, a vocational expert, testified at the hearing. R. 884. On August 27, 2007, the ALJ rendered a detailed decision finding Claimant was not disabled under the Social Security Act. R. 31-60. Specifically, the ALJ found that, "considering the claimant's age, education, work experience, and physical and mental RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform." R. 59.

Claimant then filed for a review of the ALJ's decision to the Appeals Council. R. 25. On September 24, 2008, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 10-12. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony - June 15, 2007

1. Maritza Bollas - Claimant

At the time of the hearing, Claimant was forty-eight years old and unmarried. R. 895-96. Claimant completed education through the twelfth grade and has past relevant work experience as a production worker for a frozen food company. R. 898-901. In addition to production work, Claimant's prior work experience included welding and soldering at a manufacturing facility. R. 905. Claimant speaks, reads and writes in Spanish, but speaks very little English and has a rudimentary ability to read or write in English. R. 899. During the hearing, Claimant spoke through a Spanish-speaking interpreter. R. 886. Claimant testified through the interpreter that she resigned from her job as a production worker on December 4, 2002 after experiencing worsening pain in her elbow, hands and neck. R. 901, 903-04. Claimant's pain originated from an accident at work on March 14, 2002, where she banged her left elbow on a metal tray. R. 903-04. Claimant is left-handed. R. 908.

During the hearing, Claimant explained that carpel tunnel syndrome, pain and numbness in her left and right elbows, hands and wrists, as well as pain in her neck, have prevented her from working. R. 909, 927-28. Following her work-related injury in March 2002, Claimant's pain became so severe that she consulted a doctor who recommended that she refrain from returning to work until she had carpal tunnel release surgery. R. 904. Claimant has yet to have the recommended carpal tunnel release surgery, but received surgery on her left elbow on October 31, 2002 and again on February 15, 2005, from which she states she received no benefit. R. 909-11. In addition, Claimant testified that doctors gave her multiple steroid injections in her left elbow, physical therapy, and prescribed pain medications. R. 909-17. Even with pain medications, Claimant asserts she continues to experience pain in her upper extremities and frequently has problems doing everyday tasks such as lifting a gallon of milk, signing her name, and dressing herself. R. 917-18, 926, 928.

Additionally, Claimant states that she currently suffers from depression, sleeplessness, and loneliness as a result of her inability to return to work. R. 913, 918. Claimant began seeing a mental health professional in November 2004. R. 918. Since 2004, Claimant has taken Wellbutrin, Amitriptyline, and Prozac, among other things, to remedy the effects of her depression. R. 919, 923. Claimant asserted that depression has isolated her from others, including her children, and that she no longer has "trust in anybody." R. 920, 924-26, 929. Further, Claimant testified that although she sees her two oldest children, as well as one grandchild, several times a week, she only sees her youngest children on vacations and holidays, maintains only one friendship, and does not engage in any social activities. R. 921, 924-25, 930-32.

2. Dr. William Newman - Medical Expert

After reviewing Claimant's medical record, the Medical Expert ("ME"), Dr. William Newman, an orthopedic specialist, opined that Claimant did not suffer from significant physical impairments and that Claimant had the physical Residual Functional Capacity ("RFC")*fn1 to perform a full range of light work. R. 887, 935-36. Although the medical record indicated a minor slowing of sensory nerve conduction in the nerves on Claimant's left and right side, the ME testified that the medical record failed to show any clinical signs of real carpel tunnel syndrome, cubital tunnel syndrome, or ulnar neuropathy. R. 935. The ME concluded that Claimant's physical impairments did not meet or equal a listed impairment for musculoskeletal or neurological impairments. R. 936.

The ME concluded that Claimant's problems were not physical and stated that he could not find "any anatomical basis for her physical complaints." R. 936, 938. Rather, the ME testified that Claimant's physical injuries were either a direct "confabulation or imagination." R. 938. The ME noted that Claimant appeared to be miserable and depressed, and that he typically sees claims of aches and pains in women around Claimant's age who have social problems. R. 937, 939. However, when asked by Claimant's counsel whether Claimant's pain symptoms were psychosomatic or a result of malingering, the ME stated that he would give Claimant "the benefit of the doubt." R. 938-39.

3. Cheryl R. Hoiseth - Vocational Expert

The Vocational Expert ("VE"), Cheryl R. Hoiseth, described Claimant's past relevant work as a production worker, in which Claimant did hand-packaging on an assembly line, as medium, unskilled work. R. 941. The VE also described Claimant's prior work in welding and soldering as light, unskilled work. Id. The VE opined that Claimant could not perform any of her past work. R. 942-43. However, the VE testified that there were other occupations Claimant could perform, such as light packaging (10,800 jobs), assembler (12,800 jobs) or inspector (4,100 jobs), none of which require skilled labor. Id.

C. Medical Evidence

1. Evidence of Physical Impairment

a. Dr. Barbara Heller - Claimant's Treating Orthopedist

Claimant sought treatment from Dr. Barbara Heller ("Dr. Heller") from March 2002 to August 2002, following her work-related injury. R. 289-90, 698. Dr. Heller initially diagnosed Claimant with severe acute left lateral epicondylitis*fn2 and recommended occupational therapy with a hand specialist and that Claimant wear a tennis elbow splint at all times. R. 698. In a follow-up visit on May 3, 2002, Claimant indicated that physical therapy was working but she continued to experience significant pain. R. 696. Dr. Heller gave her a steroid injection in her left elbow for the pain. Id. Dr. Heller thought Claimant could return to work, but recommended "no work whatsoever with [her] left arm." R. 697.

Dr. Heller saw Claimant again on May 31, 2002 and noted that Claimant's condition was "absolutely improving." R. 694. Claimant had full range of motion in her left elbow and experienced little discomfort in her wrists. Id. Dr. Heller gave Claimant two additional steroid injections in her left elbow. Id. On June 14, 2002, Dr. Heller recommended that Claimant refrain from lifting anything over five pounds and work with both arms for only half of the day. R. 693. Thereafter on June 28, 2002, Dr. Heller downgraded Claimant's work restrictions to allow Claimant to use both hands the entire day, while still refraining from lifting anything over five pounds. R. 691-92. Nevertheless, Claimant continued to experience pain prompting Dr. Heller to refer Claimant to Dr. Leonard Smith, an orthopedic specialist. R. 270.

In August 2002, upon request from Dr. Smith, Dr. Heller conducted electromyographic ("EMG") and nerve conduction ("NCV") studies on Claimant. R. 289-90. Based on the EMG and NVC studies, Dr. Heller concluded that Claimant had moderate demyelinating carpal tunnel syndrome ("CTS") "on her left." Id.

b. Dr. Paul Belich - Independent Medical Examiner

Dr. Paul Belich ("Dr. Belich'), an orthopedic surgeon, conducted an independent medical evaluation ("IME") of Claimant in connection with Claimant's workers' compensation claim ("WC") on June 11, 2002. R. 634-37. After interviewing and examining the Claimant, as well as reviewing her medical records, Dr. Belich diagnosed Claimant with lateral extensor tendinosis*fn3 and contusion*fn4 of the left elbow. R. 636. However, Dr. Belich noted that Claimant should be "well on her way to recovering from this injury." Id. Dr. Belich believed that after four to six weeks of conservative treatment, Claimant should be able to return to work without restrictions. Id.

On September 23, 2002, Dr. Belich provided a supplemental written report upon request from Claimant's employer concerning Dr. Leonard Smith's recommendation that Claimant receive carpal tunnel release surgery. R. 632-33. Without re-examining Claimant, but following a review of Claimant's medical records, Dr. Belich concluded that Claimant's medical records did not support a diagnosis of carpel tunnel syndrome or a need for carpal tunnel surgery. Id. Dr. Belich recommended continuing physical therapy, opining that Claimant should be able to achieve "maximum medical improvement" in four to six weeks.

R. 633.

c. Dr. Leonard Smith - Claimant's Treating Orthopedic Surgeon

Claimant sought treatment from Dr. Leonard Smith ("Dr. Smith") from July 2002 to December 2002. R. 296, 680. After an initial examination, Dr. Smith ordered an MRI to determine whether Claimant was a candidate for surgical release of the extensor muscles in her left elbow. R. 296. At the time, Claimant was still working, but only using her right arm. Id. The results of the MRI indicated minimal prominence of fluid in the left elbow joint, with the remainder of the results within the normal limits. R. 233. Dr. Smith also ordered EMG and NCV studies, which ruled out cervical disc problems. R. 290, 294. Dr. Smith noted that the EMG and NVC studies indicated evidence of carpel tunnel syndrome, but that this may be related to repetitive work over a period of time rather than a single work injury. R. 294. He nevertheless opined that should Claimant's condition not improve, she should receive surgical release of the extensor muscles in her left elbow as well as CTS release surgery. Id.

On October 31, 2002, Dr. Smith performed a synovectomy (surgical removal of the inflamed lining) and tendon release of the left radiohumeral (elbow) joint in an outpatient procedure. R. 236-37, 682. In a follow-up visit on November 22, 2002, Dr. Smith recommended Claimant continue physical therapy but stated she could return to work with limited use of her left arm. R. 681. Claimant last saw Dr. Smith on December 6, 2002, ...

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