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Rosa Lopez Delgado, A/K/A Rosa Frutos v. Michael J. Astrue

June 21, 2011


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox


Plaintiff Rosa Lopez Delgado ("Delgado"), also known as Rosa Frutos, seeks judicial review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act.*fn1 Delgado has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking a judgment reversing or remanding the Commissioner's final decision. The Commissioner has filed a cross motion for summary judgment, requesting that we affirm his final decision. For the reasons set forth below, Delgado's motion for summary judgment is denied [dkt. 19] and the Commissioner's motion for summary judgment is granted [dkt. 22].

I. Procedural History

On March 28, 2005, Delgado filed an application for DIB, alleging that she had been disabled since August 1, 2004.*fn2 Delgado sought DIB on the basis of chronic neck and back pain and "intestine problems."*fn3 That claim was denied on May 27, 2005.*fn4 Delgado then filed a Request for Reconsideration and the claim was again denied by notice dated November 9, 2005.*fn5 Thereafter, Delgado filed a request for a hearing before an Administrative Law Judge ("ALJ").*fn6

On October 3, 2007, an administrative hearing was held before ALJ Beverly Susler Parkhurst in Chicago, Illinois.*fn7 At that hearing, ALJ Parkhurst ordered that a consultative examination was needed before a disability determination could be reached.*fn8 On March 10, 2008, after the consultative examination was conducted, a second hearing was held before ALJ Parkhurst.*fn9 At the second hearing, Delgado amended her disability onset date to January 1, 2005 because of reported income from 2004.*fn10 Following the hearing, the ALJ issued an unfavorable opinion on June 27, 2008, finding that Delgado was not disabled under the Social Security Act.*fn11 Delgado then filed a request for review of the ALJ's determination with the Social Security Administration's Appeals Council on July 29, 2008.*fn12 On April 26, 2010, the Appeals Council denied the request for review, making the ALJ's June 27, 2008 decision the final administrative determination of the Commissioner.*fn13 On June 25, 2010, Delgado filed this action.*fn14

II. Factual Background

Delgado was forty-eight years old at the time of the administrative hearing and resided with her adult daughter and twelve year old granddaughter.*fn15 She attended fourteen years of school (including two years of college) and worked various jobs prior to filing for DIB.*fn16 Her most recent job was at an automotive assembly plant.*fn17 Other jobs included working as a machine operator at a card printing company and as a cashier at a Spanish speaking grocery store.*fn18 She also spent time working as a teacher's assistant, grading math papers.*fn19

On December 30, 2002, after punching-in at the automotive assembly plant, Delgado walked outside to get a cup of coffee from a food vendor.*fn20 While walking through the parking lot, she slipped on some ice and fell on her back, striking her head.*fn21 She missed about three months of work due to the fall but was eventually cleared by doctors and physical therapists to return to work.*fn22

However, upon returning to the automotive assemble plant she was soon fired because, according to Delgado, her injuries prevented her from completing her duties.*fn23 The injuries, Delgado said, also prevented her from finding another job.*fn24 Delgado then filed for DIB. In her application, she alleged that she could not work primarily because of neck and back pain that resulted from the slip and fall, but she also alleged that she suffered from "intestine problems," which doctors later diagnosed as stomach ulcers.*fn25 The record consists of a variety of medical documents and testimony from a medical expert, a vocational expert, and Delgado. We will discuss each of these pieces of evidence in turn.

A. Medical Evidence Following Delgado's Accident

Following her accident on December 30, 2002, Delgado attended a number of medical examinations. Each of her treaters are outlined below.

1. Dr. Perez

Delgado was examined at Centros Medicos Hispano-Americano ("Centros Medicos") by Chiropractor Fernando Perez, D.C. initially on January 15, 2003.*fn26 Dr. Perez noted that Deglado began physical therapy twice a week but was experiencing serious pain.*fn27 On one day, the pain was so intense that she went to St. Anthony Hospital, where she was prescribed pain medication and told not to work.*fn28 Dr. Perez noted that Delgado complained of pain extending from her neck "into the bilateral buttock area and posterior thighs up to the knees."*fn29 Delgado described the neck pain to Dr. Perez as an intermittent dull achy pain and rated the intensity as a seven out of ten.*fn30 The pain in her neck was aggravated by bending backward and the pain radiated to her right should.*fn31

She described her mid back pain similarly, with an intensity rating at six of ten.*fn32 Lateral bending intensified the mid back pain.*fn33 Her low back pain was also an intermittent dull pain, with an intensity of four out of ten.*fn34 When she bent forward, her lower back pain was further aggravated.*fn35 Dr. Perez made a number of treatment recommendations and placed Delgado on "Temporary Disability for approximately 1 week."*fn36
On January 22, 2003 Delgado returned to Centros Medicos and was again examined by Dr. Perez.*fn37 Total temporary disability was continued based on Dr. Perez's examination.*fn38 Similarly, Delgado met with Dr. Perez on January 30, 2003 and February 26, 2003, and Dr. Perez extended temporary disability on both occasions.*fn39 On March 26, 2003, Delgado met with Dr. Perez once again.*fn40 Dr. Perez noted that Delgado had full range of motion and was pain free.*fn41 He further stated that Delgado had returned to work with restrictions.*fn42 On May 7, 2003, Dr. Perez wrote that Delgado was "to continue on light duty restrictions."*fn43 Dr. Perez indicated that Delgado could return to "full work duty" on June 30, 2003.*fn44

2. Dr. Segura

In addition to seeing Dr. Perez, Delgado saw Roberto Segura, M.D.of Centro Medicos for a neurological consultation on January 20, 2003.*fn45 He indicated that Delgado complained of intermittent lower back pain.*fn46 Delgado complained that the pain became "noted" after prolonged standing or sitting.*fn47 Dr. Segura found tenderness over the lumbosacral spine and that range of motion was limited to twenty-five degrees in extension.*fn48 Nevertheless, Dr. Segura noted that Delgado had a normal stance and gait.*fn49 In his impressions, Dr. Segura wrote that Delgado had post-traumatic lumbar syndrome and potentially right lumbar radiculopathy.*fn50 On February 17, 2003, Dr. Segura reexamined Delgado and noted that she was "much better."*fn51 He also wrote that Delgado had full lumbosacral range of motion and that Delgado "should be able to return to work in the near future."*fn52

3. Physical Therapy

Prior to filing for disability, Delgado also attended physical therapy sessions to treat her injuries.*fn53 On May 21, 2003, a "Physical Therapy Reevaluation Report" completed by Luis Maldonado, P.T. stated that Delgado had attended thirty-five physical therapy sessions.*fn54 He noted, "[a]ctive range of motion of the lumbar spine is within normal limits for all planes of movement."*fn55

Therapist Maldonado concluded that, "[a]t this time, patient has achieved all goals that were set forth in initial evaluation and will be discharged from physical therapy. Patient has returned to full work duties."*fn56

As a result of missing work from December 30, 2002 to March 23, 2003, Delgado received a workers compensation settlement of $10,000.*fn57

B. Medical Evidence After Filing for DIB

Despite the several assessments that she could return to full work duty, Delgado filed for DIB on March 28, 2005.*fn58 On May 11, 2005, Sonya Chen, M.D. completed an Internal Medicine Consultative Examination for the Bureau of Disability Determination Services.*fn59 Dr. Chen spent forty minutes with Delgado, obtained her medical history, and performed an examination.*fn60

Delgado's primary complaint was, "[b]ack and neck pain and history of stomach ulcers."*fn61 She told Dr. Chen that the neck pain radiated to her left arm.*fn62 Delgado also explained to Dr. Chen that she had problems lifting her left arm and had difficulty with fine motor activities, like opening and closing jars.*fn63 Further, Delgado stated that her left arm was weak and that she experienced numbness in her left hand.*fn64 She also told Dr. Chen that she is unable to sit for more than thirty minutes, stand for more than thirty minutes, and she cannot walk more than half of a block.*fn65 To

alleviate her pain, Delgado stated that she took Methocarbamol.*fn66

Dr. Chen observed that Delgado was stout and obese and that she had mild discomfort due to her left arm pain.*fn67 Dr. Chen reported that Delgado was able to walk with a normal gait for a distance of fifty feet.*fn68 Delgado also successfully squatted and rose.*fn69 Delgado "could perform heel toe walking and tandem walking without any difficulty."*fn70 Dr. Chen also noted that Delgado had no trouble getting on and off the examination table.*fn71
Dr. Chen further observed "diffuse tenderness over palpation of the upper trapezius as well as paraspinal neck muscles."*fn72 The trapezius refers to "[a] large muscle of the upper part of the back."*fn73 Additional diffuse tenderness was observed at the left shoulder.*fn74 Delgado's cranial nerves were intact and normal, and cerebellar testing was normal.*fn75 Strength was decreased in Delgado's upper left extremity, but strength in the upper right and lower extremities was normal.*fn76 Delgado was able to make a fist with her left hand, but grip strength was diminished due to pain.*fn77 Delgado also had decreased sensation to light touch and temperature on parts of her left hand.*fn78 Further, when asked to use her left hand take a piece of paper from Dr. Chen's hand, Delgado "slowly picked up" the piece of paper.*fn79 Examination of her right hand was normal.*fn80
Dr. Chen listed three problems in her clinical impression.*fn81 First, Dr. Chen found chronic neck pain, which likely resulted from muscle spasms and "possible cervical nerve root impingement."*fn82 However, Dr. Chen's examination did not reveal the "classic distribution" of symptoms.*fn83 To develop this further, a magnetic resonance imaging ("MRI") test was completed, but it yielded normal results.*fn84 Second, Dr. Chen diagnosed dyspepsia, another term for indigestion,*fn85 and a history of peptic ulcer disease.*fn86 Third, Dr. Chen concluded that Delgado suffered from obesity.*fn87

Following Dr. Chen's examination, medical consultant Jimenez Frank, M.D. completed a Physical Residual Functional Capacity Assessment on May 26, 2005.*fn88 Dr. Frank did not examine Delgado but drew conclusions about her physical capabilities based on the available medical records.*fn89 Dr. Frank concluded that Delgado could occasionally lift and/or carry no more than twenty pounds, that she could frequently lift and/or carry ten pounds, that she could stand and/or walk for a total of about six hours in an eight hour workday, that she could sit for a total of about six hours in an eight hour workday, and that her ability to push and or pull was otherwise unlimited.*fn90 Dr. Frank also concluded that Delgado would not be able to climb a ladder, rope, or scaffold and that Delgado would be occasionally limited reaching to the left.*fn91 In all other categories of the assessment, Dr. Frank found no limitations.*fn92

After D r. Frank's assessment, on May 27, 2005, disability examiner David Yonan completed a disability determination and transmittal form on behalf of the Social Security Administration.*fn93

According to that document, Delgado's primary diagnosis was chronic neck pain and her secondary diagnosis was obesity.*fn94 However, Mr. Yonan determined that Delgado was not disabled.*fn95 That initial disability determination was then affirmed on November 9, 2005 by disability examiner Richard Horner.*fn96
In addition to the medical examinations noted above, a number of diagnostic studies were done as well. On April 25, 2005, Delgado underwent an x-ray exam of her cervical spine and left shoulder.*fn97 The x-rays showed decreased cervical lordosis.*fn98 Lordosis is "[a]n abnormal bending or curving of the spine in which the bulge or convexity is forward."*fn99 The x-ray exam also showed a potential fracture of the C5 spinal process.*fn100 The x-ray report did not yield any other abnormal results.*fn101 On September 19, 2005 a second MRI was performed and showed a deformity of the C5 spinal process, which is consistent with an old fracture.*fn102 However, there was no evidence of central canal stenosis, which is a narrowing of the spinal canal,*fn103 or cord compression.*fn104 On March 7, 2006 an electromyography ("EMG") was conducted in an attempt to resolve Delgado's left arm pain.*fn105 An EMG is "[t]he recording of electrical activity generated in muscle for diagnostic purposes."*fn106 Delgado's EMG was unremarkable.*fn107
On March 28, 2006, Ghanism Kassir, M.D. completed a "Report of Incapacity" for the Department of Human Services.*fn108 Dr. Kassir performed a personal examination and drew conclusions regarding Delgado's physical capabilities. During the examination, Dr. Kassir noted that Delgado's left shoulder joint was limited to seventy degrees.*fn109 He diagnosed Delgado with musculoskeletal left shoulder pain with left cervical radiculopathy, a left shoulder rotator cuff tear, and a history of fracture of the sixth and seventh cervical vertebrae.*fn110 Delgado's walking, standing, sitting, turning, speaking, traveling, finger dexterity, gross manipulation, and fine manipulation abilities were all rated as "full capacity" by Dr. Kassir.*fn111 Bending, stooping, climbing, pushing, and pulling abilities were rated as "up to 20% reduced capacity."*fn112 Dr. Kassir determined that Delgado had a "full capacity" ability to perform physical activities of daily living. *fn113 In an eight hour work day, 5 days per week, Dr. Kassir opined that Delgado could repeatedly lift up to ten pounds.*fn114
In August and September 2006, Delgado attended physical therapy at Stroger Hospital because she had recurring cervical pain.*fn115 In a physical therapy questionnaire that Delgado filled out, Delgado stated that she could not stand more than an hour.*fn116 In addition, she rated her pain as an eight out of ten, adding that it occurs everyday.*fn117 Delgado also stated that her pain was made worse with movement, but marked on the form that it was relieved by sitting or lying down.*fn118 On the questionnaire, Delgado indicated that she was unemployed. Delgado then responded to the question, "[i]s your current work situation related to this medical problem," by marking "[n]o."*fn119

The form also asked Delgado whether she had any difficulty completing the following nine activities: job activities; housework; grooming; bathing; dressing; walking; stairs; lifting; and sleeping.*fn120 Delgado indicated that she had no trouble completing any of these activities and in the line labeled "other" she wrote, "no problems."*fn121 Upon evaluation, the physical therapist noted that Delgado had limited range of motion in her shoulders and upper extremities.*fn122

C. First Administrative Hearing

On October 3, 2007, Delgado appeared before ALJ Parkhurst for the administrative hearing. Delgado had obtained representation from the Chicago Legal Clinic.*fn123 While the representative from the Chicago Legal Clinic was not a licensed attorney, she was permitted to represent Delgado pursuant to Illinois Supreme Court Rule 711.*fn ...

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