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Maria Herrera v. Michael J. Astrue

September 19, 2012


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


Claimant Maria Herrera ("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 ("Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") by finding Claimant not disabled. Claimant raises the following issues in support of her motion: (1) whether the ALJ met the narrative discussion requirements set forth in SSR 96-8p in determining Claimant's Residual Functional Capacity ("RFC"); (2) whether the ALJ ignored evidence favorable to Claimant when determining her RFC; (3) whether the ALJ improperly determined Claimant's RFC before evaluating her credibility; and (4) whether the ALJ properly evaluated Claimant's allegations of pain. For the following reasons, the Court denies Claimant's motion to reverse the decision of the Commissioner and grants the Commissioner's motion to affirm the Commissioner's decision.


A. Procedural History

Claimant filed applications for DIB and SSI on April 2, 2008. R. 78-86. Claimant alleges a disability onset date of March 1, 2007. Id. The Social Security Administration ("SSA") originally denied Claimant's applications on June 26, 2008 and again upon reconsideration on August 20, 2008. R. 51-54. Shortly thereafter, Claimant requested a hearing before an ALJ. R. 60.

On May 3, 2012, Administrative Law Judge Arthur S. Cahn ("ALJ") presided over a video hearing. R. 28-50. Claimant appeared in Chicago with her attorney Barbara Rodecki, and the ALJ presided over the hearing from Sacramento, CA. R. 28. Claimant testified at the hearing with the assistance of an interpreter. R. 44-50. On July 19, 2010, the ALJ rendered a decision finding Claimant not disabled under the Social Security Act. R. 28-38. Specifically, the ALJ concluded that Claimant was capable of performing the full range of medium work, including her past relevant work. R. 31, 36.

Claimant then filed for review of the ALJ's decision to the Appeals Council on September 9, 2010. R. 19. On September 30, 2011 the Appeals Council denied the request for 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). Oral argument before this Court was held on September 12, 2012. The parties consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636(c). Dkt. 6. B. Hearing Testimony and Claimed Limitations of Claimant Maria Herrera.

At the time of the hearing, Claimant was fifty-one years old. R. 45. Claimant completed the eighth grade. Id. She is able to understand "very little" spoken English. Id. She is married with three children. Id. Claimant's most recent employment as a cook/dishwasher in a nursing home lasted for about five years and ended on February 28, 2007. R. 122. She worked an average of eight hours per day, five days per week. Id. She stopped working because of pain and discomfort. R. 46.

Claimant testified that she is not able to do housework. Id. During the day she frequently has to rest and is unable to remain in one position (either resting or standing) for a long time. Id. Her doctor prescribed physical therapy, and after two sessions the therapist informed her that the therapy would not alleviate her pain. Id. Claimant explained that she is taking medication, but that it hurts her stomach and makes her unable to sleep. R. 47. Claimant also has trouble sleeping because of back pain. Id. The severity of the pain varies; at the time of the hearing, Claimant felt "pretty bad" "pretty much like every day."

Claimant testified that she is only able to walk in reasonable comfort for fifteen minutes before the pain becomes unbearable, and that she is only able to stand in reasonable comfort for twenty minutes. R. 47-48. She can lift and carry six or seven pounds. R. 48. Claimant stated that her doctor mentioned that he may want to perform surgery but later instructed her to wait for an undefined period of time. Id.

In a Social Security Function Report which was completed on April 16, 2008, Claimant indicated that she was able to perform the following chores at home: make simple meals (often frozen food), wash dishes, clean a little, go to the grocery store, feed her pets, do laundry, and clean the table. R. 106-09. She stated that she was able to drive a car, read, watch television, and sit and converse with friends every other day. R. 110. Claimant noted that she only leaves the house two or three times a week for about half an hour each time. R. 109. Claimant stated that she is able to lift only small objects. R. 111. She can stand for a limited time, bend for no longer than two minutes, and walk two blocks without resting; she needs to rest for 15-20 minutes before she resumes walking. Id. In addition, Claimant noted that she gets very strong, painful headaches when she feels stress. R. 112.

In a Physical Impairments Questionnaire that Claimant completed on the same day, she indicated that she is able to sit for two hours without having to stand or walk. R. 116. Claimant described having to lie down three or four times a day for twenty to thirty minutes. Id. In the Disability Report related to her appeal, Claimant indicated that she had difficulty getting up in the morning because of her back pain and that she is unable to stay sitting down or standing up. R. 143.

C. Medical Evidence

1. Dr. Arthur E. Jimenez, M.D. -- Claimant's Treating Physician

Claimant sought treatment from Dr. Arthur E. Jimenez, M.D. ("Dr. A. Jimenez") from February 2007 through September 2007. Claimant complained of low back pain, a "sleeping" leg, general discomfort, and difficulty sleeping. R. 165-72. X-rays in February and March of 2007 revealed some deformity in the curvature of the spine and some degeneration of cartilage, degenerative arthritic changes in the cervical spine, and possible muscle spasms. R. 189, 192-94.

2. Dr. Purnima Thakran, M.D. Ph.D. - Neurologist

Due to Claimant's continuing complaints of lower back pain, numbness, swelling, and difficulty sleeping, Dr. A. Jimenez referred her to Dr. Purnima Thakran, M.D., Ph.D ("Dr. Thakran"). On July 12, 2007, Claimant visited Dr. Thakran, and on August 9, 2007, Dr. Thakran conducted an EMG and nerve study. R. 174-77. Dr. Thakran determined that Claimant had moderate bilateral lumbar paraspinal tenderness, radicular pain in the right lower limb, and a medical history of dyslipidemia. R. 177. Dr. Thakran opined that Claimant might have lumbar radiculopathy. R. 179.

3. Cavero Medical Group -- Examining Physicians

Notes from the Cavero Medical Group ("CMG") begin around October 2007 and continue through January 9, 2009. R. 195-221; R. 242-70. Treatment notes detail Claimant's complaints and symptoms of back pain, leg pain, depression, and high cholesterol. R. 242-57.

MRIs in February 2008 indicate that Claimant had broad based left neural foraminal/lateral protrusion at L3-L4, broad based left lateral disc protrusion at L4-L5, and diffuse osteoarthritic changes and disc disease. R. 270. On May 22, 2008, Claimant returned to CMG for dizziness and back pain and was assessed with benign positional vertigo and upper back pain. R. 250.

On November 10, 2008, Dr. Cavero saw Claimant for her lower back pain and prescribed a course of physical therapy-two sessions a week for three weeks. R. 241. After two visits, the therapist determined that therapy would not help Claimant and instructed her to return to Dr. Cavero. R. 260.

On December 18, 2008, physicians at CMG examined Claimant's spinal x-rays and determined that she had minimal degenerative changes in the lumbar spine and in the thoracic spine with mild degenerative changes in the cervical spine. R. 258-259. On December 27, 2008, Claimant was assessed with straightening of the normal cervical lordotic curve, moderate osteophyte formation at the C6-C7 level, and mild osseous neural foraminal stenosis at the C3-C4 level on the right. R. 258. Dr. Cavero's final ...

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