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Amada Emilia Lopez v. Michael J. Astrue

September 6, 2011


The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole


Amada Emilia Lopez seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Title II and Title XVI of the Social Security Act ("Act"). 42 U.S.C. §§423(d)(2); 1314(a)(3)(A), 216(I) and 223(d)(2). Ms. Lopez asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

Ms. Lopez applied for SSI and DIB on June 12, 2008, alleging that she had been disabled since April 10, 2005. (Administrative Record ("R.") 13). Her claims were denied initially on September 16, 2008, and upon reconsideration on November 7, 2008. Ms. Lopez filed a timely request for rehearing on December 2, 2008. (R. 86). An administrative law judge ("ALJ") convened a hearing on November 13, 2009. (R. 13), at which Ms. Lopez, represented by counsel, appeared and testified. (R. 13). Cheryl Hoiseth testified as an imp rtial vocational expert ("VE"). On December 23, 2009, the ALJ issued a decision denying Ms. Lopez's applications because he found that Ms. Lopez would be able to perform past relevant work as a clinical counselor. (R. 15-21). This became the final decision of the Commissioner when the Appeals Council denied Ms. Lopez's request for review of the decision on August 23, 2010. (R. 1-3). See 20 C.F.R. §§ 404.955; 404.981. Ms. Lopez has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).



The Vocational Evidence Ms. Lopez was born on September 26, 1955, making her fifty four years old at the time of the ALJ's decision. (R. 158). She has a college degree in professional counseling. (R. 33). She last worked as a clinical counselor, a job that involved sitting for the majority of the day meeting with clients and occasionally lifting 10 pounds or less. (R. 33). That job ended when Ms. Lopez elected to stop working after she says she began developing pain and had difficulty concentrating. (R. 34-35). Before that, she worked as a Second Language Tutor, also sitting for the majority of the day and lifting less than ten pounds. (R. 170). Prior to her tutoring job, Ms. Lopez worked as a punch press machine operator in a factory. (R. 170).


The Medical Evidence The medical record discloses that prior to the alleged onset date of April 10, 2005, Ms. Lopez had cervical spine surgery in 2004 and bilateral carpal tunnel surgeries in early 2005. (R. 295-96, 363-64, 372-74, 376-78, 385, 398). On April 14, 2005, Alfred Akkeron, M.D., performed an initial orthopedic evaluation regarding Ms. Lopez's complaints of right shoulder and neck pain, as well as a neck mass. (R. 379-80, 393-94). Dr. Akkeron observed essentially full range of motion of the right shoulder and neck. (R. 379, 393). An x-ray revealed a possible dislocation of the right clavicle joint. (R. 379, 393). An MRI revealed a rotator cuff tear; x-rays showed mild arthritis in her wrists. (R. 292, 395-97). Dr. Akkeron performed primary rotator cuff repair surgery and a neer acromioplasty the following month. (R 366-67).

Richard Shin, M.D., saw Ms. Lopez in consultation on June 28, 2005 and stated that she had "progressed satisfactorily" following surgery on both wrists. Following her second appointment on July 1, 2005, Dr. Shin observed adequate wrist range of motion and discharged her. (R. 372-74, 398). In his report he indicated that Tinel's sign over cubital tunnel was negative on the right, notable because they would generally be positive in an individual with carpel tunnel syndrome. (R. 373);

Following this evaluation, the administrative record contains no treatment accounts for three years. Mrs. Lopez admitted that she did not seek any medical care from 2005 to 2008. Then, on July 2, 2008, Dr. Otto Garcia Montenegro ("Dr. Garcia"), the plaintiff's family doctor, (R. 354, 357), again saw Ms. Lopez. There is no treatment note for this visit. On July 10, 2008, Dr. Garcia completed an Arthritic Report and a Spinal Disorders Report in support of Ms. Lopez's application for disability benefits. In the Spinal Disorders Report, he diagnosed Ms. Lopez with osteoporosis of the lumbar spine. (R. 357-58). Dr. Garcia stated that Ms. Lopez's ambulation was normal; her spinal range of motion was nearly normal; she could sit, stand, or walk for two hours at a stretch, but then said she needed to alternate positions every hour. (R. 357-58). Dr. Garcia said that Ms. Lopez could perform normal lifting and carrying of ten pounds. (R. 358).

Dr. Garcia's Arthritic Report noted next to the heading "Diagnosis(es)": neck pain and s/p [status post] C5-C6 laminectomy and decompression. (R. 354). On that form, Dr. Garcia noted that Ms. Lopez's ambulation was normal, that she could sit or stand for three hours -- not two as he said in the Spinal Disorders Report -- at a stretch and added that she needed to alternate positions hourly. (R. 355-56). Dr. Garcia said that Ms. Lopez had decreased range of motion of the upper extremities secondary to pain; decreased grip strength in both hands; significant limitations doing repetitive reaching, handling, fingering, grasping, turning, and twisting; and difficulties holding utensils and performing shoulder level and overhead reaching. (R. 354-55). Finally, he noted that Ms. Lopez said that she felt that all her symptoms got worse after having her earlier surgeries.

On August 11, 2008, C.J. Wonais, M.D., performed a consultative evaluation for the Bureau of Disability Determination Services. (R. 310-12). Dr. Wonais observed that Ms. Lopez's gait was normal; she could ambulate without aid; the range of motion of all joints was normal except for the lumbar spine and right shoulder; straight leg raises resulted in pain in both knees; and a neurological examination was normal, including fist and grip strength. (Ms. Lopez claimed she could not make a fist, and her wrists felt like they were breaking)(R. 48, 212). She complained of constant pain in her hands and difficulty in opening jars and gripping, and inability to button her clothes. (R. 311). Regarding her "mental status," Dr. Wonais noted that Ms. Lopez wept during most of the examination; any type of activity seemed to cause her a significant amount of pain, and she claimed not to know the difference between a tree and a bush. Dr. Wonais' impression was status post cervical laminectomy, repair of right rotator cuff tear, and bilateral carpal tunnel release; pain in multiple joints; osteoporosis of the wrists; and depression. (R. 311-12). But Dr. Wonais expressed doubt that Ms. Lopez was genuinely cooperating in the examination process, noting: "cooperation was questionable." (R. 311).

On August 21, 2008, Francis Vincent, M.D., completed a Physical Residual Functional Capacity Assessment form, indicating the following limitations: occasionally and frequently lifting and carrying ten pounds; standing, walking, and sitting each for about six hours; limited pushing and pulling in the upper extremities; occasionally climbing, stooping, kneeling, and crouching; limited reaching, handling, and fingering; and avoiding concentrated exposure to extreme cold, and vibration. (R. 302-09).

On September 15, 2008, Kirk Boyenga, Ph.D., completed a Psychiatric Review Technique Form, indicating these limitations: mild restriction of activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. (R. 313-26). Dr. Boyenga noted that all of the medical records related to physical illness, with the exception of a pre-alleged onset notation in 2004 of a prescription for Xanax. (R. 323).

On September 30, 2008, Dr. Garcia saw Ms. Lopez. His "Progress Notes" reflect complaints of right shoulder pain, right clavicle pain, right elbow pain, bilateral wrist pain, bilateral knee pain, bilateral ankle pain, and he noted osteoporosis of the lumbar spine. (R. 327). He noted another physician prescribed Tylenol with codeine for pain associated with her hysterectomy; it was apparently not intended to treat her back and neck pain. (R. 327).

On October 31, 2008, Richard Bilinsky, M.D., completed a Physical Residual Functional Capacity Assessment Form, indicating the following limitations: occasionally lifting and carrying twenty pounds; frequently lifting and carrying ten pounds; sitting, standing, and walking each for about six hours; occasionally climbing ramps and stairs; never climbing ladders, ropes, and scaffolds; occasionally stooping; and limited reaching above shoulder level with the right arm. (R. 331-38).

C. The Administrative Hearing Testimony


Ms. Lopez's Testimony Ms. Lopez testified that she was a "professional counselor" with a Master's degree from Concordia University. (R. 56). As a mental health therapist, she worked with groups, families and individuals and helped those who could not afford medical care to enroll in programs that paid for that care. (R. 31-33). She said that she found that she could not prepare progress notes in her cases because her back and shoulders hurt and her fingers were numb. She also claimed to have pain in her legs. In 2004, she had a cervical laminectomy, and in 2005, she underwent surgery on each hand for carpal tunnel syndrome. (R. 34-35). She stopped working because of pain and numbness in her fingers and hands, pain in her back and legs, and inability to concentrate because of the chronic and severe pain. (R. 34).

While she said the pain worsened after the surgeries (R.35, 212) -- the disability report submitted in support of her claim for benefits stated she was constantly in pain after the surgeries (R. 188) -- she admitted that she did not seek any medical treatment between May 2005 and October 2008, when she went to Cook County (Stroger) Hospital (R. 35-36), which provides care regardless of ability to pay. cchmission.html.

In Ms. Lopez's July 16, 2008 statement in support of her application for benefits, she stated that she could not even get out of the car without assistance because she had no strength in her arms and had constant pain in her back and knees. She could not rise from a chair or sofa because of the pain, and she did not have the strength in her hands to push herself up. (R. 203). She said she needed help from her family even to shower and dress. (R. 204). She could not, she claimed, drive, button anything, pull her shirt up and down, wash her hair, or do dishes. She could not, she said, even trim her nails. (R. 204-206).

She could not stay in any position comfortably for more than one hour, and she had to "constantly" change positions. She could do no household chores or garden. Indeed, she only went outside three to four times per month. (R. 204-208). She was, she said, "always in pain." (R. 208). Her pain was so bad that she couldn't even hold "a book for too long." (R. 209). She felt like her wrists "are going to break." (R. 212). She no longer socializes because she does not have the energy or the motivation. (R. 210). So severe and unremitting was the pain, she claimed, that she was unable to concentrate to the point that if someone gave her some sort of written instruction, she would immediately forget what she was supposed to do. (R. 210). She described her pain as "permanent." (R. 211).

Ms. Lopez repeated all this at the hearing. She testified that she has daily headaches, "constant pain" in her hands, arms and shoulder and that her fingers in both hands are cold and numb. (R. 43-44, 47-50). She has burning sensations and dizziness and electric sensations throughout her body. (R. 48-51). In fact, she said, the discomfort is everywhere in her body and in all her muscles. During the day, she claimed she had to change positions regularly due to her back pain and that she alternates wearing a brace on both hands.

(R. 45-47). Ms. Lopez stated that as a result of her constant pain, she is unable to use her hands to open bottles, grip objects, make a fist, type, use the internet for more than five minutes, sit or stand for more than an hour, drive an automobile due to inflexibility in her neck, or walk more than a block. (R. 48-51). She takes Neurotin for pain in her fingers, hands and shoulder. (R. 50-51). She described the sensation as "like a needle" throughout her entire body. She does not have "peace, not in the day, not in the night." (R. 51).

The pain was so bad she said, that "yesterday" when she was "trying to move [her] soup," she was crying with pain. (R. 52). She cannot do laundry, cook, shop, garden, wash dishes, write, type, sleep, or any of the other routine and normal things that make up the daily activities of everyone else. She said that she was unable to use her hands or to sit or to lie down for any but the briefest period without pain. Ms. Lopez said that she was unable even to button her shirt or to rise from a chair or couch or to grip anything. (R. 50-55). She summed up her condition this way: "I can't do anything." (R. 52).

Her initial explanation for not having seen a doctor between 2005 and 2008 was that she could not afford to get medical care. (R. 25, 36).*fn1 Dr. Garcia did not treat Ms. Lopez in the three-year period between 2005 and 2008, but Ms. Lopez said that Dr. Garcia was her "family doctor" until she began at Cook Count/Stroger Hospital in 2008, and that in the period between 2005 and 2008 she saw him and got "samples" of some unnamed medicine, although she could not remember the dates. (R. 35 -- 36). There are no treatment notes reflecting any of this.

Ms. Lopez conceded that her job entailed finding social service programs that would pay for medical treatment for those who could not afford treatment and enrolling them in those programs. She thus knew not only of the existence of social care programs that provided free medical care, she knew how to go about gaining ...

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