Mary Fuentes v. Michael J. Astrue, No. 2:2009cv04120 - Document 19 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Mary Fuentes (Fuentes) filed this action on June 12, 2009. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on July 10 and 1 3, 2009. On February 11, 2010, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of t he Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. (See Order for details.) (mp)
Download PDF
<![CDATA[
Mary Fuentes v. Michael J. Astrue Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARY FUENTES, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 09-4120 AGR MEMORANDUM OPINION AND ORDER Mary Fuentes (“Fuentes”) filed this action on June 12, 2009. Pursuant to 18 19 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge 20 Rosenberg on July 10 and 13, 2009. (Dkt. Nos. 8-9.) On February 11, 2010, the 21 parties filed a Joint Stipulation (“JS”) that addressed the disputed issues. The 22 Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 /// Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On July 20, 2006, Fuentes filed an application for disability insurance 4 benefits alleging a disability onset date of April 6, 2006. Administrative Record 5 (“AR”) 12. The application was denied initially and upon reconsideration. AR 48- 6 49. Fuentes requested a hearing before an Administrative Law Judge (“ALJ”). 7 AR 62. On March 25, 2008, the ALJ conducted a hearing at which Fuentes and a 8 vocational expert testified. AR 20-47. On September 23, 2008, the ALJ issued a 9 decision denying benefits. AR 10-18. On April 9, 2009, the Appeals Council 10 denied the request for review. AR 1-5. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 14 decision to deny benefits. The decision will be disturbed only if it is not supported 15 by substantial evidence, or if it is based upon the application of improper legal 16 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 17 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion.” Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner’s 22 decision, the Court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the Court must 25 defer to the Commissioner’s decision. Moncada, 60 F.3d at 523. 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, “only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy.” Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that Fuentes met the insured status requirements through 12 The ALJ’s Findings December 31, 2007. AR 14. 13 Fuentes has the following severe combination of impairments: “arachnoid 14 cyst of the posterior fossa with history of headaches and occasional syncopal 15 episodes and mild degenerative changes in the cervical spine.” Id. Through the 16 date last insured, the ALJ found that Fuentes had the residual functional capacity 17 to perform sedentary work “except occasional climbing, balancing, stooping, 18 kneeling, crouching, or crawling, no exposure to hazards such [as] unprotected 19 height and dangerous machinery, no exposure to temperature extremes, no 20 production quota work such as assembly line or piece work, and no exposure to 21 hypernoisy environments.” AR 15. 22 The ALJ found that Fuentes was unable to perform her past relevant work. 23 AR 17. However, “there were jobs that existed in significant numbers in the 24 national economy that the claimant could have performed,” such as information 25 clerk, general office clerk, and credit checker. AR 17. 26 C. 27 “To determine whether a claimant’s testimony regarding subjective pain or 28 Credibility /// 3 1 symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter 2 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 3 First, “the ALJ must determine whether the claimant has presented 4 objective medical evidence of an underlying impairment ‘which could reasonably 5 be expected to produce the pain or other symptoms alleged.’” Id. (quoting 6 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). The ALJ found 7 that Fuentes’ medically determinable impairments could reasonably be expected 8 to cause her symptoms. AR 16. 9 “Second, if the claimant meets this first test, and there is no evidence of 10 malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her 11 symptoms only by offering specific, clear and convincing reasons for doing so.’” 12 Lingenfelter, 504 F.3d at 1036 (citations omitted). “In making a credibility 13 determination, the ALJ ‘must specifically identify what testimony is credible and 14 what testimony undermines the claimant’s complaints.’” Greger v. Barnhart, 464 15 F.3d 968, 972 (9th Cir. 2006) (citation omitted). “[T]o discredit a claimant’s 16 testimony when a medical impairment has been established, the ALJ must 17 provide specific, cogent reasons for the disbelief.” Orn v. Astrue, 495 F.3d 625, 18 635 (9th Cir. 2007) (citations and quotation marks omitted). “The ALJ must cite 19 the reasons why the claimant’s testimony is unpersuasive.” Id. (citation and 20 quotation marks omitted). The ALJ may consider (a) inconsistencies or 21 discrepancies in a claimant’s statements; (b) inconsistencies between a 22 claimant’s statements and activities; (c) exaggerated complaints; and (d) an 23 unexplained failure to seek treatment. Thomas, 278 F.3d at 958-59. 24 At the hearing, Fuentes testified that she takes one or two vicodin per day, 25 depending on her pain tolerance. AR 24-25. She experiences paralysis on her 26 left side at least twice per month, and Dr. Smith observed it. AR 26-27. She had 27 about 14 or more episodes of paralysis over the last two years. AR 28. Her 28 usual daily routine is to take her kids to school, clean a little bit, rest until her kids 4 1 come home so she can cook dinner and help with homework. AR 30. However, 2 she is unable to perform even that routine approximately three days per week. 3 AR 30-31. The pressure in her head makes her feel as though she has been hit 4 with a baseball bat in the back of her head. It makes her vomit and shake, and is 5 a ten on a scale of one to ten. AR 31. The only way to relieve the pressure is to 6 rest and lie down with ice packs. AR 31, 37. 7 The ALJ found that Fuentes’ statements concerning the intensity, 8 persistence and limiting effects of her symptoms were not credible to the extent 9 they were inconsistent with the RFC. AR 16. The ALJ discounted her credibility 10 for three reasons: (1) the medical evidence did not support the intensity and 11 frequency of Fuentes’ headache and seizure-like symptoms of dizziness, tingling, 12 convulsions, shaking, and blurred vision; (2) there was evidence of exaggeration 13 of gastrointestinal symptoms; and (3) Fuentes did not have a good work history 14 prior to the alleged onset date. AR 16. 15 Although lack of objective medical evidence supporting the degree of 16 limitation “cannot form the sole basis for discounting pain testimony,” it is a factor 17 that an ALJ may consider in assessing credibility. Burch v. Barnhart, 400 F.3d 18 676, 681 (9th Cir. 2005). Shortly after breast surgery in March 2006, Fuentes 19 presented with headache, chills, fever, nausea, vomiting, diarrhea, weakness, 20 light intolerance and dizziness. AR 250-51. A CT on April 6, 2006, indicated 21 Fuentes has an arachnoid cyst in the posterior fossa of the brain.1 AR 395. 22 During the period April–June 2006, the medical records indicate Fuentes was 23 seen on six occasions for complaints of headache, facial numbness, tingling in 24 arms, vomiting, and neck pain. AR 250 (4/5/06), 270-71 (4/25-26/06), 339 25 26 27 28 1 In January 2009, a new cyst appeared for the first time. AR 8. The January 2009 date is well after the date last insured of December 31, 2007. 5 1 (5/4/06), AR 278-79 (5/5-6/06),2 289, 298-301 (6/2-3/06), 337-38 (6/2/06). On 2 June 23, 2006, Dr. Boutros indicated Fuentes’ headaches had “resolved” but she 3 still had a feeling of “fluid in her head” and complained of postnasal drip. AR 335. 4 In July 2006, Dr. Spicer at UC San Diego evaluated Fuentes, who told him 5 that the buildup of fluid in her head tends to drain down the back of her throat. 6 AR 304. She had headaches on and off. Id. Dr. Spicer found “absolutely no 7 evidence on the MRI images of structural defect which would allow such a leak to 8 occur, although it would not be impossible for there to be a minute defect which 9 would result in such pathology.” AR 303. It is “extremely unlikely” that the cyst 10 11 was responsible for any postnasal drip of cerebro-spinal fluid. Id. After April–July 2006, the ALJ is correct that Fuentes’ physical 12 examinations do not indicate the same frequency or intensity of symptoms. On 13 January 12, 2007, Dr. Linskey, a neurosurgeon at UC Irvine, noted Fuentes is 14 “currently symptomatic from her cyst with signs and symptoms on exam with 15 cerebellar findings present as well as oscillopsia and upgaze nystagmus.” AR 16 372. He found Fuentes was currently “functioning at Karnofsky Performance 17 Status 80.”3 AR 371. Her muscle tone and strength were normal, her gait was 18 normal, and her facial function was normal. Id. Dr. Linskey felt her cyst “was 19 likely in physiologic pressure and fluid balance until her most recent physiologic 20 21 22 23 24 25 26 27 28 2 The May 5, 2006 visit occurred after Fuentes abruptly stopped taking vicodin and suffered migraine, nausea and tremors. AR 290. 3 “The Karnofsky scale is a widely used performance scale, assigning scores ranging from 0 for a nonfunctional or dead patient to 100 for one with completely normal functioning.” Dorland’s Illustrated Medical Dictionary at 1660 (30th ed. 2003). A Karnofsky score of 70 indicates an inability to carry on normal activity, including work. See Testaverde v. United States, 2009 U.S. Dist. LEXIS 43901, *10 (E.D.N.Y. May 26, 2009). A score of 90 indicates minor symptoms and nearly normal functioning. Johnson v. Astrue, 2009 U.S. Dist. LEXIS 49998, *12 (W.D.N.Y. June 12, 2009). A score of 80 indicates normal activity with some difficulty, and some symptoms or signs of disease. See Robichaud, Considering Innovative Alternatives to Handling Cases of Adults with Special Conditions Under the Social Security Act, 29 Nat’l Ass’n L. Jud. 433, 465 (2009). 6 1 challenge of pelvic symptoms from the surgery.”4 AR 372. There is “no absolute 2 guarantee that her symptoms are all related to her arachnoid cyst or would 3 indeed improve with direct surgical treatment of her cyst.” Id. However, Dr. 4 Linskey favored a fenestration/resection of the cyst “in the hopes of empirically 5 improving her symptoms.” Id. In June 2007, a neurologist, stated Dr. Linskey’s 6 theory “makes sense and can potentially explain the patient’s symptoms.” AR 7 421. 8 9 In May 2007, emergency room medical records indicate Fuentes ate at a Jack in the Box the previous night and later felt increasing nausea and vomiting. 10 She denied headaches. AR 456. The physician felt she may have had some 11 food borne illness or virus. AR 457. She was discharged home in good 12 condition. Id. 13 In June 2007, Fuentes was seen by a cardiologist who found her “very 14 pleasant” and “appears comfortable.” AR 438. In July 2007, Fuentes underwent 15 a treadmill stress test which was negative. She was able to exercise 3 minutes 16 and 12 seconds at a maximum heart rate of 159 without any chest pain. AR 441. 17 In September 2007, Fuentes had a normal neurological examination 18 including mental status, cranial nerves, motor and sensory systems, deep tendon 19 and superficial reflexes, and gait. AR 509. The neurologist, Dr. Smith, found no 20 evidence of nystagmus. Id. Dr. Smith opined that the headaches are a result of 21 “analgesic overuse syndrome” and advised that Fuentes stop taking vicodin 22 (which she reported taking up to six tablets per day) and flexeril. Id. 23 In October 2007, Dr. Linskey stated Fuentes had decided against surgery 24 and opted instead for “surveillance imaging and only intervening for symptom 25 progression and/or lesion enlargement on MR.” AR 423. Her physical and 26 27 28 4 In a later note on October 5, 2007, Dr. Linskey explained that perhaps the cyst had “become decompensated in its fluid dynamics” as a result of her recent surgery. AR 423. 7 1 neurological examinations were unchanged. Dr. Linskey recommended that 2 Fuentes see Dr. Cable, a neurologist at UC Irvine. AR 424. 3 In January 2008, Fuentes reported daily headaches and three syncopal 4 episodes in the past year to Dr. Cable. AR 428-29. Fuentes presented as 5 “physically well-looking” and “in no pain or distress.” AR 430. The physical 6 examination was normal. She had full range of motion, cranial nerves were 7 normal with no nystagmus, motor and sensory examinations were normal, there 8 was no tremor or ataxia in the arms and legs, and her gait was normal. AR 430- 9 31. Dr. Cable ordered an electroencephalogram (EEG) to assess for seizure 10 11 activity. AR 431. The subsequent EEG in February 2008 was normal. AR 434. On June 27, 2008, Fuentes presented with decreased light touch in left 12 lower face area, decreased sensation to vibration and light touch in the left lower 13 extremity and decreased light touch in the left upper extremity. AR 522-23. She 14 had an unstable walk. AR 522. 15 On August 6, 2008, Dr. Cable examined Fuentes at UC Irvine and noted 16 that she is “physically well looking” and “in no pain or distress.” AR 115. She did 17 not appear anxious or depressed. AR 115. She had nystagmus “consistent with 18 a medication effect.” AR 115-16. She had a normal motor exam, with normal 19 strength in the arms, hands, legs and feet. AR 116. “There is no sign of atrophy, 20 fasciculation, or spasticity.” Id. Her gait was normal, with no tremor or ataxia in 21 the arms or legs. Id. She could kneel and squat normally both legs. Id. Dr. 22 Cable was concerned that her chronic use of opiates together with caffeine5 were 23 contributing to her headaches. Id. Dr. Cable advised Fuentes not to drive until 24 cleared by the DMV due to her reported syncopal episodes. Id. 25 26 27 28 Dr. Smith’s DMV medical evaluation form dated September 2008 indicates Fuentes has an arachnoid cyst that causes headaches, impaired vision, 5 Fuentes reported taking up to four tablets of vicodin per day and drinking up to six or seven glasses of iced tea per day. 8 1 moderate loss of motor control in the upper and lower extremities, and multiple 2 blackouts since 2006, with the most recent occurring five months ago. AR 537- 3 40. Dr. Smith listed the onset date as 2006. AR 539. The effects of blackouts 4 include confusion, diminished concentration and memory loss. Id. This opinion 5 does not address the frequency or intensity of symptoms. As the ALJ noted, Dr. 6 Smith did not advise Fuentes not to drive and instead deferred to neurology.6 AR 7 16, 537. Dr. Smith indicates Fuentes is being treated by a neurologist, Dr. Cable, 8 for her arachnoid cyst. AR 537. The neurological medical records after April-July 9 2006 are not consistent with Dr. Smith’s description of Fuentes’ condition. 10 The Court cannot say that the ALJ’s interpretation of the objective medical 11 evidence is unsupported by substantial evidence. After the April–July 2006 time 12 frame, Fuentes’ physical and neurological examinations more often reflect minor 13 symptoms. Whereas Fuentes testified that she has paralysis on her left side at 14 least twice a month, there is no objective medical evidence of paralysis after the 15 April–July 2006 time frame. There is evidence of decreased sensation on the left 16 side and difficulty walking in June 2008 (AR 522-23), but her physical, 17 neurological, motor, sensory and gait examinations on her other visits were 18 normal.7 When the evidence is susceptible to more than one rational 19 interpretation, the Court must defer to the Commissioner’s decision. Moncada, 20 60 F.3d at 523. However, this reason is alone insufficient to discount Fuentes’ 21 credibility. 22 The ALJ found evidence of symptom exaggeration based on Fuentes’ 23 heart evaluation in June/July 2007, her emergency room visit for gastrointestinal 24 distress in May 2007, and medical records indicating Fuentes has been treated 25 26 27 28 6 The medical records of neurologists and neurosurgeons observed motor weakness only once in 2008, and did not observe blackouts, confusion, diminished concentration or memory loss. 7 See the medical expert’s opinion. AR 517-18. 9 1 symptomatically for GERD with no indication of significant functional problems. 2 AR 16. As noted above, in June 2007 Fuentes was seen by a cardiologist who 3 found her “very pleasant” and “appears comfortable.” AR 438. In July 2007, 4 Fuentes underwent a treadmill stress test in which she was able to exercise 3 5 minutes and 12 seconds at a maximum heart rate of 159 without pain. AR 441. 6 This evidence is inconsistent with Fuentes’ subjective symptoms. The ALJ twice 7 asked Fuentes how often she experiences the symptoms she described. AR 37. 8 Although Fuentes did not answer the questions directly, she responded that “[t]he 9 concentration and slurred speech happens every time there’s too much pressure 10 in my brain.” “Pressure builds in it every day. It all depends on if you rest or not, 11 whether you relieve the pressure or not.” Id. 12 At the hearing, Fuentes testified that the pressure she feels in her head 13 makes her “vomit all the time.” AR 31. The ALJ noted that in May 2007, Fuentes 14 went to an emergency room with nausea, vomiting and epigastrium pain after 15 eating at Jack in the Box. AR 16, 456. Fuentes denied headaches, neck or back 16 pain. Id. She was discharged with the symptoms resolved. AR 457. At the 17 hearing, Fuentes testified that she lost 30 pounds when this first happened in 18 2006, but that she is back to her normal weight.8 AR 36. The ALJ’s finding of 19 symptom exaggeration is supported by substantial evidence. 20 The ALJ found that Fuentes had not had a good work history, with low and 21 irregular earnings. AR 16, 133-142. Fuentes testified she was a self-employed 22 daycare provider for children during the period 1999-2006. AR 25. She took care 23 of about eight children on a given day. AR 26. She loved her work, and still has 24 the daycare set up in her home. AR 38-39. Fuentes explained she was off work 25 for six months at the end of 2001 through the middle of 2002 because a cyst on 26 27 28 8 Fuentes states that she loses the weight every summer. AR 36. The medical records indicate minimal fluctuation in weight. AR 424 (151 lbs. in 10/07), AR 430 (151 lbs. in 01/08), AR 522 (146 lbs. in 06/08), 115 (151 lbs. in 08/08). 10 1 her ovary ruptured during pregnancy, which required an emergency caesarean 2 section and surgery to repair the ovary. AR 39-40. When asked about her 3 earnings, Fuentes testified only that her earnings are low “because of [my] 4 deductibles and all of that, on [my] tax records.” AR 40. 5 The ALJ’s credibility finding is supported by substantial evidence. “If the 6 ALJ’s credibility finding is supported by substantial evidence in the record, we 7 may not engage in second-guessing.” Thomas, 278 F.3d at 959. 8 IV. 9 ORDER 10 11 12 13 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 14 15 DATED: February 22, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 11
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
