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Amanda L. Rubio v. Michael J. Astrue

August 24, 2011


The opinion of the court was delivered by: Jeffrey T. Gilbert Magistrate Judge


Claimant Amanda Rubio ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Respondent Michael J. Astrue, Commissioner of Social Security ("Commissioner"), in which the Commissioner denied Claimant's application for disability insurance benefits. This matter is before the Court on Claimant's motion for summary judgment or remand [Dkt.#14]. Claimant argues that the Administrative Law Judge's ("ALJ") decision denying her application for disability insurance benefits should be reversed and/or that the case should be remanded for further proceedings. Claimant raises the following issues in support of her motion: (1) whether the ALJ gave insufficient weight to the opinion of Claimant's treating physician; (2) whether the ALJ properly analyzed Claimant's credibility; (3) whether the ALJ failed to build an accurate and logical bridge between the evidence and his conclusion and reasonably determined that Claimant could perform her past work; and (4) whether the ALJ's error misstating the vocational expert's opinion was harmless. For the reasons set forth below, Claimant's motion for summary judgment [Dkt.#14] is denied, and the decision of the Commissioner of Social Security is affirmed.


A. Procedural History

Claimant filed an application for disability benefits on November 8, 2007, alleging a disability onset date of August 19, 2004. R.49. Claimant's date last insured was December 31, 2008.*fn1 R.51, 128. The Social Security Administration ("SSA") initially denied her application on May 29, 2008. R.49. Claimant then filed a request for reconsideration on June 19, 2008, which the SSA denied on September 12, 2008. R.67, 49. Shortly thereafter on October 15, 2008, Claimant requested a hearing before an ALJ. R.73.

On March 9, 2010, Claimant appeared with her attorney Agustin G. Garcia and testified at a hearing before the ALJ. R.49. Vocational expert Susan Entenberg also appeared and testified at the hearing. R.49. No medical expert testified at the hearing.

On April 30, 2010, the ALJ rendered a decision finding that Claimant was not disabled under the Social Security Act. R.53-57. Specifically, the ALJ determined that Claimant "had the residual capacity to perform sedentary work defined in 20 C.F.R. § 404.1567(a) except lifting and carrying no more than 10 pounds occasionally; standing and walking no more than 2 hours in an 8 hour workday; sitting no more than 6 hours in an 8 hour workday; no work at unprotected heights or near moving or dangerous machinery; no climbing ladders, and can only occasionally negotiate stairs; occasional stooping, kneeling, crouching, and crawling; and normal rest periods." R.53.

On June 1, 2010, Claimant then filed a request for review of the ALJ's decision to the Appeals Council. R. 7, 209. On September 21, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1-3. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony -- March 9, 2010

1. Claimant Amanda Rubio

At the time of the hearing, Claimant was 56 years old, separated from her husband and living with her son. R.12, 26. Claimant completed school through the 8th grade and had past relevant work experience as a laborer, an accounting clerkand a babysitter. R.12, 14-20. Claimant testified that she was laid off sometime in 2004 when her employer moved to another state. R.24.*fn2

Thereafter, she was scheduled for a job interview but had to cancel because she was scheduled for bilateral knee surgery in 2004. R.20. Ten days after her knee surgery, Claimant testified that her son died, and she became depressed. R.21. Claimant, however, stated that she has not seen a psychologist or therapist for her depression. R.34. After her surgery, Claimant testified she could not find a job, so she started baby-sitting. R.20. Claimant testified that caring for children was hard work, but "fun" and "good for her." R.20-21. She worked as a babysitter until approximately November 2007 when she injured her back after "stepp[ing] down on a big step." R.21. As a result, Claimant's back "went out," and she had difficulty walking. R.21.

After her injury, Claimant testified she experienced tremendous pain and could not take care of the children she had been baby-sitting. R.21-22. Claimant testified that her back pain interfered with her ability to balance while carrying children. R.23. Claimant testified that she saw a doctor at Mt. Sinai Hospital in November 2007 after she hurt her back and that she had an MRI of her back. R.23. Claimant testified that she has not had surgery (R.22) and that she "always ha[s] some pain." R.31.

Claimant testified that she recently changed doctors because she wasn't happy with the care she had been receiving from Dr. Lauderdale and that he "wasn't doing enough for her."

R.33. Claimant testified that she switched to Dr. Park because she thought "there's got to be something wrong with me where they can surgically either fix it or maybe treat it." R.33. Dr. Park recommended that Claimant participate in physical therapy. R.33. Claimant, however, stated that the physical therapy has not been successful. R.22.

Claimant testified that she spends her days doing light cleaning around the house with periodic breaks. R.25-26. She stated that it takes her all day to wash dishes because she has to take a break and sit down because her leg is hurting. R.26. Claimant testified that she doesn't cook that much and when she does cook she prepares simple meals. R.26-27.

Claimant testified that she can walk only a short distance before she starts to experience pain. R.28. She has difficulty doing grocery shopping and either someone else has to finish her shopping or she has to use a motorized cart to go up and down the isles at the grocery store.

R.28. Claimant testified that she could stand for 20 minutes and could sit for 30 minutes. R.29. Claimant also testified that at home she uses a rolling chair to get around the house and that when she is outside she uses a walker. R.34-35. Claimant also stated that she is waiting to have a ramp installed at her home so that she can use a mobile unit. R.35.

Claimant stated that she is taking Cymbalta, Norco and Lyrica for her depression and pain and another medication for her diabetes. R.22. She testified that the medication makes her drowsy and that her "mind will drift off on its own." R.31. Claimant testified that she enjoys knitting and that her knitting will slow down when she takes her medication. R.31.

2. Vocational Expert Susan Entenberg

Susan Entenberg testified at the hearing as a vocational expert ("VE"). She described Claimant's past relevant work as a babysitter, accounts payable clerk and laborer. R.36. She testified that Claimant's past relevant work would be categorized as light and sedentary. R.37. While questioning the VE, the ALJ asked what type of work an individual who was closely approaching advanced age with a limited education and the same past relevant work experience as Claimant (i.e., sedentary or light work) could perform, if any, with the following limitations: lifting and carrying no more than 10 pounds occasionally; standing and walking no more than 2 hours in an 8 hour workday; sitting no more than 6 hours in an 8 hour workday with normal rest periods; inability to work at heights and to climb ladders; occasional ability to negotiate stairs; and occasional stooping, kneeling, crouching, and crawling. R.37-38. The VE testified that based on the hypothetical given by the ALJ, an individual with the limitations described could perform the accounts payable job. R.38.

The ALJ then asked the VE a follow-up question modifying the hypothetical and adding three additional restrictions: walking no more than a quarter block at a time, standing no more than 15 to 20 minutes at a time, and sitting no more than 30 minutes at a time. R.38. The VE responded that based on the revised hypothetical with the additional limitations, an individual's ability would be less than sedentary, and Claimant would not be able to perform her past relevant work. R.38.

C. Medical Evidence

1. Midwest Orthopedics Records

Claimant first visited Midwest Orthopedics in or around July 2004 regarding pain in her knees and was diagnosed with osteoarthritis in both knees. R.250. Dr. Mitchell Sheinkop recommended and performed bilateral total replacement knee surgery on August 19, 2004.

R.248, 250. Claimant returned for a post-surgery follow-up visit on November 12, 2004 in which Dr. Sheinkop examined Claimant and determined that she had "a very satisfactory response to surgery in addition to very well-appearing x-rays." R.246. In the records from Dr. Sheinkop, there is an undated pre-op worksheet relating to Claimant's knee surgery which indicates that Dr. Patricia Russell is Claimant's primary care physician. R.272. However, there are no medical records from Dr. Russell in the administrative record.

Claimant again visited Midwest Orthopedics on April 11, 2008 complaining of bilateral hand pain for one year and joint pain in many areas. R.243. Claimant was examined by Dr. Mark Cohen. R.243. Dr. Cohen's notes dated April 11, 2008 indicated that on exam there was no swelling or deformity of either hand. R.243. Claimant had full and symmetrical digital motion. R.243. Claimant had stenosing tenosynovitis with palpable nodules and mechanical symptoms in the left ring and right middle fingers. R.243. Yet, the report indicated that with some effort Claimant was able to make a fist. R.243. Further, Claimant's motor and sensory exams both were normal, and her grip strength was 20 pounds on the right versus 35 pounds on the left. R.243. Both radiographs of the hands were benign. R.243. Dr. Cohen recommended that Claimant see a rheumatology physician for her joint pain. R.243.

2. Mt. Sinai Hospital Records

There are Mt. Sinai Hospital outpatient records for Claimant dating from October 11, 2007 through November 29, 2007. R.210-220. The records dated October 11, 2007 are routine laboratory reports, including a urinalysis and chemistry and blood work. R.217-220. The remaining records are dated November 29, 2007 when Claimant sought treatment after she hurt her back. R.210-216.

A CT of the lumbar spine dated November 29, 2007 was limited due to Claimant's obesity. R.210. There was no evidence of any large disc herniations, but the CT scan was suggestive of a small central disc protrusion and spondylosis and further MRI testing was recommended. R.210.

There also is a record from the Department of Neurology at Mt. Sinai Hospital in which Claimant was seen by Dr. Maria Elena Gragasin. R.215-216. Claimant complained of pain and numbness in her right hand and intermittent neck pain. R.215. Dr. ...

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