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Rodriguez v. Astrue

May 26, 2010


The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan


Plaintiff Rosa Rodriguez claims that she is disabled due to a combination of physical and mental impairments. She seeks judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her claims for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and have filed cross-motions for summary judgment. For the reasons explained below, this case is remanded for further proceedings consistent with this opinion.


Ms. Rodriguez applied for DIB and SSI on August 23, 2005, alleging that she became disabled on October 1, 2004 due to disc herniation and dislocation, asthma, arthritis, stomach ulcer, panic attacks and depression. (R. 131, 139-42). The application was denied initially on November 1, 2005, and upon reconsideration on April 19, 2006. (R. 89-91). Ms. Rodriguez appealed the Commissioner's decision and requested a hearing before an Administrative Law Judge ("ALJ"). (R. 92). At the June 27, 2007 hearing, Ms. Rodriguez appeared without counsel, prompting the ALJ to advise her of the benefits of representation. (R. 553-55.) Ms. Rodriguez stated that she wished to proceed on her own, and the ALJ conducted a full hearing. (R. 551-601). Nearly eight months later on February 21, 2008, Ms. Rodriguez appeared for a supplemental hearing, this time with an attorney. (R. 602-35). She amended her alleged disability onset date to January 1, 2006, and provided some additional testimony. (R. 604).

On July 21, 2008, the ALJ denied Ms. Rodriguez's claims for benefits, finding that her multiple severe impairments do not preclude her from performing light jobs that exist in sufficient numbers in the national economy. (R. 17-28). The Appeals Council denied Ms. Rodriguez's request for review on February 26, 2009, and she now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. See 20 C.F.R § 416.1481.


Ms. Rodriguez was born on March 5, 1966, making her 39 years old on her alleged disability onset date. (R. 27). She has an associate's degree and worked most recently as a salesperson for Aronson Furniture. (R. 560, 562).

A. Medical Evidence 1. 2004 - 2005

The first medical report in the record is an April 19, 2004 Comprehensive Psychological Assessment performed by Maritza Cordero, MA, LCPC, LPHA, of Resurrection Health Care. (R. 249-62). Counselor Cordero described Ms. Rodriguez as angry and depressed, with poor insight and judgment, but she also found her to be neat, alert, and cooperative. Counselor Cordero diagnosed Ms. Rodriguez with major depressive disorder and a cocaine related disorder. (R. 258). An Adult History worksheet from the Resurrection Health Care Family Practice Residency Program dated April 23, 2004 lists diagnoses of major depression/anxiety, irritable bowel syndrome, gastroesophageal reflux disease ("GERD"), mild intermittent asthma, and arthritis. (R. 267-69).

Ms. Rodriguez still exhibited a depressed mood and tearful affect when she saw Counselor Cordero again on April 30, 2004. (R. 263). A progress note dated one week later on May 7, 2004, similarly indicated that Ms. Rodriguez was feeling depressed but showed "no acute distress." (R. 270). She reported taking her medications irregularly at that time, explaining that she was not able to pay for them. (Id.) At a September 2, 2004 follow-up visit to Resurrection Health Care, Ms. Rodriguez presented with a throbbing headache lasting three weeks. (R. 271). A few months later, on December 19, 2004, she complained of joint pain in her elbows, knees and wrists, and the doctor diagnosed arthritis and peptic ulcer disease/GERD. (R. 272). By January 20, 2005, Ms. Rodriguez showed "much improvement" on gastrointestinal symptoms and joint pain, but no improvement on right elbow and right shoulder pain. (R. 274). On February 16, 2005, she was treated for asthma exacerbation. (R. 275).

Counselor Cordero examined Ms. Rodriguez on February 9 and 28, 2005, and reiterated her previous diagnoses of major depressive disorder and cocaine abuse. (R. 264-65). At a subsequent visit on April 21, 2005, Counselor Cordero found Ms. Rodriguez to be more depressed than during her previous appointments, with increased cocaine use. (R. 266). As for Ms. Rodriguez's physical symptoms, she presented with lightheadedness during a checkup on May 25, 2005, but the condition had abated by June 2, 2005. She newly reported a gradual onset of right lower back pain at that time. (R. 278-79). Ms. Rodriguez missed her next four scheduled appointments at Resurrection Health Care, but when she returned on August 2, 2005, she reported no improvement in her lower back pain. She also stated that she was experiencing problems with urinary incontinence. (R. 281). The doctor ordered an MRI of her lower back, which revealed "disc dessication and end plate degenerative change" at the L5-S1 level; "disc bulging and degenerative spurring with a superimposed central disc herniation"; and "bilateral facet degenerative change." (R. 282, 299).

Towards the end of August, Ms. Rodriguez fell and fractured her wrist. She went to Resurrection Health Care for follow-up care on September 1, 2005, and was diagnosed with a left scaphoid tear. (R. 300). On October 4, 2005, Esther R. Castro, an occupational therapist, found Ms. Rodriguez to have decreased functional capacity secondary to pain, and decreased range of motion and strength. (R. 306). Ms. Rodriguez had an occupational therapy session with Ms. Castro on October 14, 2005, but she then missed two sessions in a row without prior notification. (R. 317-18).

On October 15, 2005, Jeffrey J. Ryan, M.D., performed an Internal Medicine Consultative Examination of Ms. Rodriguez for the Bureau of Disability Determination Services ("DDS"). (R. 319-22). Ms. Rodriguez told Dr. Ryan that her chief complaint was back pain, which had gotten progressively worse to the point where she found it extremely difficult to bend, and needed assistance putting on her socks and shoes. Ms. Rodriguez stated that she could only walk about a block before having to stop due to pain, and that she could not sit for more than an hour at a time. (R. 319). She told Dr. Ryan that she had not received any benefit from extensive physical therapy, and she complained of incontinence, asthma, peptic ulcer disease, and pain in various joints. (R. 319-20).

Dr. Ryan measured Ms. Rodriguez as 60 inches tall with a weight of 181.5 pounds. He found her to be well developed, well nourished, very pleasant and cooperative, but also in obvious discomfort with great difficulty maneuvering in the examination room. (R. 320). Dr. Ryan observed that Ms. Rodriguez's gait was very antalgic, and opined that she was unlikely to be able to walk more than 50 feet unassisted. (R. 321). Ms. Rodriguez exhibited a limited range of motion in her shoulders and spine; a positive straight leg raise sign; diffuse and severe paravertebral muscle spasms; diminished strength in both lower extremities secondary to pain; and paresthesias of the right side. Dr. Ryan concluded that Ms. Rodriguez had severe radicular back pain, asthma requiring three emergency room visits per year, and peptic ulcer disease. (Id.)

Also on October 15, 2005, Angeles Rodriguez Gonzalez, M.D., conducted a Psychiatric Evaluation of Ms. Rodriguez for DDS. (R. 326-30). Ms. Rodriguez's girlfriend drove her to the appointment, and Dr. Gonzalez observed that she was "very good in assisting the claimant to sit and stand up." (R. 326). Dr. Gonzalez described Ms. Rodriguez as cooperative with good hygiene, but noted that her gait was very slow. Ms. Rodriguez reported that she had been dealing with depression and panic attacks since she was nine years old, and she complained of poor concentration, intrusive sleep and diminished appetite. (R. 326-27). Ms. Rodriguez said that she "[did] not care about anything or anybody," and Dr. Gonzalez noted that she had tried to kill herself on several occasions, as recently as two weeks prior to his examination. Ms. Rodriguez also reported past clear auditory hallucinations and current visual hallucinations of a man who lived in her room but never talked to her. (R. 327). Regarding substance abuse, Ms. Rodriguez denied any history of drug or alcohol abuse, stating that she last experimented when she was in her teenage years. (Id.) Dr. Gonzalez reported that Ms. Rodriguez's mood was depressed and her affect was on the flat side. (R. 328). He found her thought processes to be coherent, logical, and goaloriented, but he also observed her to be preoccupied with not being able to afford all of her medications. (Id.) Dr. Gonzalez opined that Ms. Rodriguez's symptoms had been present for some time and were probably chronic, and he assigned her a Global Assessment of Functioning ("GAF") score of 45 to 50.*fn1 (R. 329).

On October 26, 2005, Tyrone Hollerauer, Psy.D, performed a Psychiatric Review Technique of Ms. Rodriguez for DDS. (R. 331-44.) Dr. Hollerauer determined that Ms. Rodriguez does not have a severe affective disorder meeting Listing 12.04, or a severe substance addiction disorder meeting Listing 12.09. (R. 331). He indicated that she suffers from bipolar disorder complicated by ongoing cocaine use, and stated that she "mis-reports substance abuse and has little insight on how it [a]ffect[s] her mood." In Dr. Hollerauer's opinion, Ms. Rodriguez's mood is "essentially intact when sober but she is depressed and increasingly so when using." (R. 334, 339). Dr. Hollerauer concluded that Ms. Rodriguez is mildly limited in her ability to carry out activities of daily living, and in her ability to maintain social functioning, concentration, persistence, or pace. (R. 341).

Henry S. Bernet, M.D., conducted a Physical Residual Functional Capacity Assessment ("RFC") of Ms. Rodriguez on October 31, 2005. (R. 346-52). Dr. Bernet found that Ms. Rodriguez can occasionally lift and/orcarry twenty pounds; frequently lift and/or carry ten pounds; stand and/or walk for at least 2 hours in an 8-hour workday; sit for about 6 hours in an 8-hour workday; and engage in only limited pushing and/or pulling using her upper extremities. (R. 346). Dr. Bernet determined that Ms. Rodriguez experiences pain in her back and decreased range of motion due to bulging discs at L2-L3 and L5-S1, and he observed that her gait is "very antalgic." (R. 352). Dr. Bernet also noted that Ms. Rodriguez suffers from bronchial asthma and depression. (R. 352). DDS Consultant Marion Panepinto confirmed this assessment on March 24, 2006. (R. 376).

2. 2006 - 2008

Ms. Rodriguez had an MRI of her left wrist on April 21, 2006, due to persistent pain from the August 2005 fracture. The MRI revealed "[b]one contusion and edema involving the medial distal aspect of the ulna" with some effusion at the "distal radial ulnar joint space." There was evidence of "abnormal signal within the ulnar styloid process which may represent non-union of fracture or avacular necrosis of the fracture segment distally." The MRI further showed a partial tear of the lateral triangular fibrocartilage. (R. 383). An MRI of Ms. Rodriguez's cervical spine taken the same day revealed mild disc bulging at the C4-C5 and the C5-C6 levels, with no focal disc herniation or central canal stenosis. (R. 384).

On May 22, 2006, Ms. Rodriguez started seeing Stephan Romm, Psy.D. She told Dr. Romm that she had been depressed off and on her whole life, but that the symptoms had been getting worse recently. Dr. Romm noted Ms. Rodriguez's long history of psychosocial disruptions, past suicide attempts, and long history of cocaine use. (R. 393). On June 15, 2006, Dr. Romm reported that Ms. Rodriguez was experiencing confusion, lack of energy or motivation, mood swings, and fatigue. (R. 395).

Ms. Rodriguez had an MRI of her lumbar spine on October 10, 2006. It revealed "disc desiccation and endplate degenerative change" at the L5-S1 level, as well as diffuse disc bulging with mild bilateral neural foraminal stenoses, but no focal disc herniation. (R. 385). A couple months later on December 7, 2006, Ms. Rodriguez returned to Resurrection Health Care complaining of chest pain. (R. 398). A radiology report from December 19, 2006 showed "[m]ild coronary artery disease characterized by fibrous plaque formation in the distal left main and proximal LAD [left anterior descending artery] resulting in mild stenosis of the proximal LAD." (R. 407). Ms. Rodriguez returned to Resurrection Health Care for a follow-up appointment on January 4, 2007. At that time, Ekaterina Kosinskaya, M.D., reported that Ms. Rodriguez's chest pain had abated, but that she still suffered from fibromyalgia, peptic ulcer disease, GERD, asthma, and borderline diabetes mellitus, as well as muscle aches, a depressed mood and obesity. Ms. Rodriguez admitted to using cocaine a few times a year at parties. (R. 399-400).

On February 1, 2007, Ms. Rodriguez met with Dr. Kosinskaya again regarding her borderline diabetes diagnosis. (R. 401). Dr. Kosinskaya noted that at that time, Ms. Rodriguez had constant, chronic back pain, as well as other ongoing disorders such as GERD and depression. She also was refusing to see a mental health professional or to take any antidepressants because she did not like the way they made her feel. (R. 402). On April 5, 2007, Dr. Kosinskaya formally diagnosed Ms. Rodriguez with diabetes mellitus. She also noted that Ms. Rodriguez was complaining of polyuria and nocturia. (R. 403). Dr. Kosinskaya gave Ms. Rodriguez a note confirming that she had been a patient at the Resurrection Health Care clinic since 2004, and that she has been diagnosed with diabetes mellitus II, coronary artery disease, asthma, hyperlipidemia, GERD, depression, and fibromyalgia. (R. 414). Dr. Kosinskaya next saw Ms. Rodriguez on April 18, 2007, when she was admitted through the emergency room complaining chiefly of chest pain. (R. 416).

Ms. Rodriguez underwent cardiac catheterization, but there was no evidence of coronary artery disease, and she was discharged in stable condition. (R. 417).

Approximately one month later, on May 15, 2007, Ms. Rodriguez saw Dr. Romm again for the first time in nearly a year. At that time, Dr. Romm stated that Ms. Rodriguez's situation remained the same despite the extended passage of time. Ms. Rodriguez felt that she had tried everything to help herself, but nothing had worked. (R. 396). The following month on June 14, 2007, however, Ms. Rodriguez had a more positive appointment with Dr. Romm. She reported that she had taken his advice and started walking for 30 minutes per day and lifting weights at the gym, resulting in a loss of 12 pounds. She stated that she felt good about the weight loss. (R. 397).

On July 20, 2007, Dr. Romm filled out a Medical Source Statement of Ability to do W orkRelated Activities (Mental) for Ms. Rodriguez. (R. 445-48). Dr. Romm opined that Ms. Rodriguez has moderate restrictions with regard to understanding, remembering and carrying out simple instructions, and in her ability to make judgments on simple work-related decisions, but that she has marked restrictions in her ability to understand, remember and carry out complex instructions, and to make judgments on complex work-related decisions. (R. 445). According to Dr. Romm, Ms. Rodriguez has "attention deficits, abrupt mood shifts, depressive symptoms, chronic pain and is generally impulsive. She often misreads what is wanted of her," and has a poor frustration tolerance, getting angry easily when challenged or stressed. (R. 445-46). Dr. Romm further found that Ms. Rodriguez has marked restrictions in her ability to interact appropriately with the public, supervisors, and co-workers, and in her ability to respond appropriately to usual work situations and to changes in a routine work setting. In reaching this conclusion, Dr. Romm expressly stated that drugs and alcohol "are not significant contributors to th[e] limitations as described." (R. 446).

Dr. Kosinskaya filled out a Physical RFC Questionnaire on Ms. Rodriguez on October 11, 2007. (R. 448-50). She stated that she had seen Ms. Rodriguez at least once a month for ten months, and confirmed diagnoses of diabetes mellitus type II, asthma, GERD, hyperlipidemia, chronic back pain, fibromyalgia, depression, and insomnia. Dr. Kosinskaya noted symptoms of lower back pain, frequent musculoskeletal pain, frequent urination, and occasional headaches, and opined that Ms. Rodriguez's depression and anxiety both affect her physical conditions. (R. 448). In Dr. Kosinskaya's view, Ms. Rodriguez's pain or other symptoms would be constantly severe enough to interfere with the attention and concentration needed to perform even simple work tasks. (R. 449). In that regard, Ms. Rodriguez could sit for 20-30 minutes at one time before needing to get up, and could stand for 30 minutes before needing to sit down or walk around, resulting in an overall ability to sit and stand/walk for less than 2 hours in an 8-hour workday. (Id.) In addition, Ms. Rodriguez would have to take unscheduled breaks from work every 90 minutes for 10-15 minutes per episode. (Id.) Dr. Kosinskaya found that Ms. Rodriguez needs to use a cane; can never lift 20 or more pounds; can rarely lift 10 pounds; and can occasionally lift less than 10 pounds. Dr. Kosinskaya concluded that Ms. Rodriguez's impairments are likely to produce "good days" and "bad days," and that she is likely to be absent from work more than four days per month. (R. 450.)

Ms. Rodriguez started seeing José Rodrigo Niño, MA, LCPC, on October 22, 2007, complaining of "eating fingers on hand"; losing her memory; always being sick with arthritis, back pain, diabetes and asthma; and problems gripping items. (R. 464). Ms. Rodriguez told Counselor Niño that she began using cocaine when she was 22, and continued using intermittently until December 2006, when she stopped because of her heart condition. (Id.) She described her leisure activities and interests as including swimming, softball, basketball, bicycle riding, and reading Chicken Soup books, but she said that she was no longer riding her bicycle because of pain in her knees and arthritis. (R. 466). Counselor Niño found Ms. Rodriguez to be anxious, irritable, depressed, and angry, and though she did not present with signs of illusions or hallucinations, she did exhibit tangential thought and delusions in the form of talking with stuffed animals. (R. 467). Counselor Niño marked Ms. Rodriguez's suicide risk as minimal, noting that she had made two attempts within the preceding years, but that she denied any current plan or intent to act on such thoughts. (R. 468). He diagnosed her with depression and borderline personality disorder and assigned her a GAF score of 51. (R. 469). Ms. Rodriguez returned to counselor Niño several times for psychotherapy over the next few months. (R. 470). At her January 1, 2008 appointment, she appeared in a neutral mood, stating that she felt slightly better after being prescribed Zoloft. (Id.)

Counselor Niño completed an RFC and Mental Impairment Questionnaire of Ms. Rodriguez on February 8, 2008. (R. 451-54). He based his assessment on the five appointments he had with her over a span of 16 weeks. (R. 451). Counselor Niño confirmed his diagnoses of depression and borderline personality disorder, and once again assigned Ms. Rodriguez a GAF score of 51. (Id.) Her symptoms included poor memory, appetite disturbance with weight change, sleep disturbance, mood disturbance, emotional lability, delusions or hallucinations, anhedonia or pervasive loss of interests, feelings of guilt/worthlessness, difficulty thinking or concentrating, suicidal ideation or attempts, social withdrawal or isolation, decreased energy, and hostility and irritability. (Id.) Counselor Niño identified numerous medications prescribed to Ms. Rodriguez, and stated that they "have many side effects that have implications for working." (R. 452). He opined that her impairments are chronic, requiring long term treatment, and he stated that she would be absent from work more than 3 times a month. (Id.)

With respect to Ms. Rodriguez's specific mental ability and aptitude to do unskilled work, Counselor NiƱo found that she has either a "good" or "fair" ability in all categories. She is not "unlimited/very good" in any category, but neither is she "poor/none." (R. 453). He found that Ms. Rodriguez is moderately restricted in activities of daily living, with marked difficulties in maintaining social functioning. She also has frequent deficiencies of "concentration, persistence, or pace resulting in failure to complete tasks in a timely manner," and would experience repeated episodes of ...

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