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Mario Lopez v. Commissioner of Social Security

September 10, 2012

MARIO LOPEZ, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Townes, United States District Judge:

MEMORANDUM & ORDER

Plaintiff Mario Lopez ("Plaintiff" or "Lopez") brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act seeking reversal of the final decision of the Commissioner of Social Security denying Social Security benefits. Defendant, the Commissioner of Social Security ("Defendant" or "Commissioner"), moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Plaintiff cross-moves for judgment on the pleadings or, alternatively, remand. For the reasons detailed below, the Commissioner's motion for judgment on the pleadings is granted and Plaintiff's motion is denied. The final decision of the Commissioner is affirmed and Plaintiff's Complaint is dismissed.

I. BACKGROUND

A. Procedural History

On May 21, 2007, Plaintiff filed an application for supplemental security income and disability insurance benefits. (Tr. 55, 93.)*fn1 He alleged disability beginning November 1, 2006 due to "kidney problems, tumors, cancer, diabet[e]s, [and] high blood pressure." (Tr. 110.) After his applications were denied, Plaintiff requested a hearing. (Tr. 57-62, 63.) On June 24, 2008, Plaintiff appeared before Administrative Law Judge ("ALJ") Harold Rosenbaum with a non-attorney representative and a Spanish interpreter. (Tr. 24-54.) On July 11, 2008, ALJ Rosenbaum issued a decision denying benefits. (Tr. 10-23.) Plaintiff requested review by the Appeals Council and submitted additional evidence. (Tr. 4, 5, 630-33.) The Appeals Council made this additional evidence part of the record. (Tr. 4.) However, they found no reason to review the ALJ's decision. (Tr. 1-2.) After the Appeals Council denied Plaintiff's request for review on August 31, 2010, the ALJ's decision became final and Plaintiff filed suit in this Court.

B. Factual & Medical Background

Plaintiff was born on May 26, 1954 and is a naturalized citizen of the United States. (Tr. 87.) The record indicates that Plaintiff either completed ninth grade or four years of high school in Ecuador. (Compare Tr. 30 with Tr. 115.) Plaintiff can speak and read some English, but understands better in Spanish. (Tr. 27-28.) From 1970 to 2006 he worked as a carpenter making cabinets. (Tr. 30, 111.) According to Plaintiff, the position required him to walk or stand 7 hours out of the day and sit one hour. (Tr. 111.) He had to handle, grab, or grasp big objects, reach, write, and type or handle small objects for 7 hours a day. (Id.) He further stated that he frequently lifted 200 pounds, and that 200 pounds was the heaviest weight he would lift. (Tr. 112.)

In the course of applying for benefits, Plaintiff was interviewed by a field office employee for the Commissioner. In the interview, which was compiled into an adult disability report, Plaintiff conveyed that he was five feet, six inches tall and weighed 270 pounds. (Tr. 109.) He further indicated that he stopped working on November 1, 2006 due "kidney problems, tumors, cancer, diabet[e]s, [and] high blood pressure." (Tr. 110.) These issues caused "[s]evere pain in [his] right side and extreme nausea [which] prevented job performance." (Id.) However, he later testified at the hearing that he stopped working because there "was no more work" and he was laid off. (Tr. 32.) He collected unemployment benefits for six months. (Tr. 32-33.) His union was unable to find him new work and the company he worked for eventually closed. (Tr. 34.) Plaintiff testified that he stopped looking for work when he began having pain in his right flank. (Tr. 35.) He further testified that the pain "started about April" of 2007 and "[f]rom there, [he] went to the [emergency room] of the hospital." (Id.) As discussed below, the record indicates that he actually went to the emergency room in March of 2007.

On March 23, 2007, Plaintiff went to the emergency room because of pain in the right upper quadrant of his abdomen. (See Tr. 139 (reporting the visit the following week).) Plaintiff was told the he had kidney cancer. (Tr. 35.) He was diagnosed with a renal mass, mild renal insufficiency, and diabetes mellitus. (Tr. 140.) On April 10, 2007 Plaintiff saw Dr. Guido Dalbagni at Memorial Hospital for an initial consultation and to discuss treatment options. (Tr. 380-82.) Dr. Dalbagni informed Plaintiff that, due to the position of the tumor, a radical nephrectomy -- removing the entire cancerous kidney -- would be necessary. (Tr. 382.) Plaintiff saw Dr. Ilya Glezerman for a preoperative evaluation on April 27, 2007 and Dr. Shellie Gumbs for a perioperative risk assessment on May 3, 2007. (Tr. 365-67, 359-61.) He reported to Dr. Gumbs that he could walk one mile on level ground without shortness of breath or chest pain, but he did have shortness of breath with inclines or climbing a flight of stairs. (Tr. 359.) The doctor found that despite his high cholesterol, diabetes, hypertension, and exercise limitations, "he ha[d] no absolute contraindications to surgery and [was] in his optimal medical condition to undergo the procedure." (Tr. 360.) On May 9, 2007, Dr. Joel Sheinfeld at Memorial Hospital performed a radical nephrectomy and freed all abnormal adhesions. (Tr. 164-73, 495-96.) The tumor was a renal cell carcinoma with no involvement of the lymph nodes. (Tr. 164.)

The day after the surgery, Plaintiff again complained of pain on the right side of the abdomen. (Tr. 158, 160.) He rated the pain at eight to ten on a ten-point scale, but did not have chest pain, shortness of breath, cough or chills. (Tr. 160.) In the days following the surgery, Plaintiff was "resistant" to physical therapy and "require[d] a lot of encouraging/ motivation." (Tr. 152-53.) After complaints of dizziness and unsteadiness, Plaintiff was issued a cane. (Tr. 157.) He was released from the hospital on May 18, 2007. (Tr. 164.) His discharge summary indicated that he was in stable condition and his physical examination was within normal limits. (Id.) The discharge diagnosis was renal cell carcinoma right kidney, acute rental failure (resolved), type II diabetes, hypercholesterolemia, and hypertension. (Tr. 164-65.) On June 4, 2007, Plaintiff called Dr. Sheinfeld's office to request additional Vicodin. (Tr. 315.) He reported that he had been taking aspirin for pain for a few days, but was instructed to stop taking aspirin and to take Extra Strength Tylenol instead. (Id.) On June 7, 2007, Plaintiff saw Dr. Sheinfeld for a postoperative evaluation. (Tr. 310-13.) He noted that Plaintiff's pain was "slowly improving" and that his incision was "well healed." (Tr. 310, 312.)

On June 26, 2007, Dr. P. Seitzman, a state agency oncologist, reviewed Plaintiff's medical record. (Tr. 174.) The doctor noted that Plaintiff alleged kidney disease, cancer, and diabetes and that he had not been able to work since November 2006 due to nausea and pain on his right side. (Id.) The doctor further noted that the medical evidence showed a nephrectomy with no evidence that the cancer cells had spread to the lymph nodes. (Id.) Based on this, the state agency oncologist opined that the condition would not last twelve months. (Id.) On July 6, 2007, Plaintiff alleged that he had a "lotta lotta pain" at the surgery site and went to a pharmacy to attempt to obtain more Vicodin. (Tr. 306.) He stated that he had been taking one Vicodin a day for pain, but had no other symptoms. (Id.) The pharmacy attempted to contact Dr. Sheinfeld, but the doctor refused to order additional Vicodin and directed Plaintiff to take Extra Strength Tylenol instead. (Id.)

On July 13, 2007, Plaintiff was evaluated by Dr. Jerome Caiati, a consultative examiner. (Tr. 176-79.) Dr. Caiati noted that Plaintiff had been obese for ten years and had been diagnosed with hypertension, diabetes, and high cholesterol. (Tr. 176.) Plaintiff conveyed that he had cancer of the right kidney which was treated with a radical nephrectomy and was experiencing "postoperative site pain." (Id.) Plaintiff said he was unable to cook and clean because of the pain at the surgery site. (Tr. 177.) He could do some laundry but could not go shopping. (Id.) He was, however, able to shower, bathe, and dress himself. (Id.) He reported that he spent his time watching television, listening to the radio, reading and socializing with friends. (Id.) Dr. Caiati noted that the claimant appeared to be in "no acute distress" with a normal gait. (Id.) He walked on his heels and toes "with minimal difficulty" and, though he held on to the table, was able to do a full squat. (Id.) His stance was normal, and Plaintiff used a cane for "pain and balance" but Dr. Caiati observed that Plaintiff's "gait with and without the device [was] normal." (Id.) Plaintiff did not need help getting on or off the exam table. (Id.) He was also able to rise from a chair without trouble and changed for the exam without assistance. (Id.) Plaintiff had the full range of motion in his cervical spine, shoulders, elbows, forearms, and wrists and no abnormality in his thoracic spine. (Tr. 178.) He had lumbar spine flexion to ninety degrees, extension and lateral flexion to thirty degrees, and rotation to seventy degrees. (Id.) His hip flexion was to one-hundred degrees, with internal rotation to forty --five degrees and external rotation to ninety degrees bilaterally. (Id.) The straight leg raising test was negative bilaterally, his joints were stable and non-tender, and he had strength of five out of five in his upper and lower extremities. (Id.) His hand and finger dexterity were intact and his grip strength was five out of five bilaterally. (Id.) Dr. Caiati reported that there was some tenderness in the right flank at the operative site. (Id.) The doctor's prognosis on the postoperative pain at the operative site was "fair with recuperation." (Tr. 179.) Dr. Caiati's overall opinion was that Plaintiff could sit, stand, and walk without restriction. (Id.) Additionally, he could reach, push, and pull unrestricted. (Id.) Dr. Caiati opined that Plaintiff could climb and bend with minimal limitations and had a "mild" lifting limitation due to the operative site pain. (Id.)

On September 6, 2007, Plaintiff saw Dr. Sheinfeld for a follow-up visit. (Tr. 304.) Dr. Sheinfeld wrote that Plaintiff had "recovered well" and was "tolerating a regular diet." (Id.) The doctor noted that Plaintiff did not have any nausea, vomiting, diarrhea or constipation. (Id.) Plaintiff continued to complain of pain at the incision site, but an ultrasound revealed no abnormalities. (Id.) On November 5, 2007, Plaintiff had a computerized tomography ("CT") scan. (Tr. 294-95.) The findings were that Plaintiff was "status post interval right nephrectomy" with "no evidence of local recurrence." (Tr. 294.) Additionally, the liver, spleen, pancreas, left adrenal gland and left kidney were unremarkable. (Id.) No abdominal pelvic lymphadenopathy or ascites were present. (Id.) There were also no destructive bone lesions. (Id.)

After a "no-show[]" for a follow-up appointment with Dr. Sheinfeld, Plaintiff "showed up" the following week on November 14, 2007 "stating [that] he needed to see a doctor because he was in so much pain." (Tr. 285.) The exam was normal, but they arranged a consultation with a pain specialist, and were able to find Plaintiff an appointment for later the same day. (Id.) Plaintiff had already left the facility before the pain specialist appointment was obtained and was, therefore, "resistant" to returning, but agreed when he was advised that the next available appointment would not be for a week. (Id.) When he returned, he saw Dr. Amitabh Gulati for an initial consultation. (Tr. 287-89.) Plaintiff stated that he had "deep," "constant" pain above and below the incision site that worsened with eating. (Tr. 287.) He denied any diarrhea, constipation, nausea or vomiting. (Id.) He expressed that he had a good appetite and was able to sleep "okay," except when he slept on his right side. (Id.) He denied any pain when passing stool or urine. (Id.) He conveyed that he was "able to walk okay," and denied any shortness of breath, chest pain, weakness, or pain with movement. (Id.) "In fact, [Plaintiff reported] movement actually helps his pain[,] especially after he eats." (Id.) Plaintiff stated that he had "a little bit of pain when touching his right side abdominal scar." (Id.) He could bend forward and backward and to his left and right with a mild increase in his pain. (Id.) Dr. Gulati noted that the patient was alert and in "no acute distress." (Tr. 288.) He had "full range of motion of his thoracolumbar spine with good flexion and extension of his back" with "no facet joint tenderness." (Id.) There was no paraspinal or muscular tenderness of the thoracolumbar spine, but there was "mild tenderness to palpation of his right upper quadrant and right lower quadrant." (Id.) The doctor noted that Plaintiff's incision was "well healed." (Id.) Dr. Gulati's impression was that Plaintiff's abdominal pain was likely secondary to adhesions, but noted that the recent CT scan had not shown any lesions. (Id.) The doctor prescribed Nortriptyline and Ultracet. (Id.)

On November 19, 2007, Dr. Marcia Kalin conducted an initial diabetes assessment. (Tr. 267-75.) Plaintiff was asymptomatic and had never taken insulin. (Tr. 267.) Plaintiff stated that he had a sharp pain at the incision site that "comes and goes," and lying on his right side was the precipitating factor. (Tr. 269.) He said that he required extra rest and "sometimes fe[lt] depressed." (Id.) He had a steady gait and a full range of motion. (Tr. 270.)

On December 12, 2007, Plaintiff saw Dr. Gulati for a follow-up appointment. (Tr. 256-59.) Plaintiff's abdominal pain had "minimally improved" with the prescribed medication. (Tr. 256.) Plaintiff conveyed that his pain was "bearable" except for when he ate. (Id.) After eating, Plaintiff "has pain [for] approximately 15-20 minutes." (Id.) "Upon deep palpation, [Plaintiff] ha[d] some sensitivity and tenderness in the right upper and right lower quadrants." (Id.) He had no tenderness in the thoracic or lumbar vertebral facet joints or sacroiliac joints. (Id.) He had full range of motion of all four extremities, good range of motion in his back, and was in no acute distress. (Id.) Dr. Gulati again expressed that the pain was likely due to adhesions, but he noted that the CT scan conducted in November of 2007 did not reveal any adhesions. (256-57.) He also noted that the CT scan showed "interval scarring" which might explain the "colicky nature" of Plaintiff's pain. (Id.)

On December 27, 2007, Plaintiff returned to Dr. Sheinfeld's office with disability paperwork and requested that the office fill out the forms and say that Plaintiff had been "unable to work for the past 12 months." (Tr. 250.) Registered Nurse Andrien Schwartz "[a]dvised [Plaintiff] that from an oncology surgery standpoint we cannot say that [he] has been unable to work." The nurse's notes continued:

Right nephrectomy performed 5/2007. Since then, patient has been cleared to return to work -- incision is healed, physical exam is negative, CT scans, renal ultrasounds, and labs have been [within normal limits]. We have referred [Plaintiff] to pain management for continued complaints of pain and they are following up with [him] on this issue. There are no functional limitations from a surgical standpoint. Advised [Plaintiff] that if he feels he is unable to work from a pain standpoint he needs the pain management office to verify this as we do not manage what their plan of care is. (Id.) On the same day, Plaintiff also underwent a thyroid ultrasound which revealed a small heterogeneous nodule in the right lobe of the thyroid, without any thyroid enlargement. (Tr. 247.) He also was seen for a nutritional assessment. (Tr. 251.) Over the eight months prior to the assessment, his weight had decreased by three percent to a weight of 122.7 kg (or approximately 270 pounds). (Tr. 252.) He reportedly ate all of his meals at a local Spanish restaurant. (Id.) He said that the owners would be willing to prepare food for him in ways he requested in order to "help with his weight." (Id.) Plaintiff conveyed that he was "frustrated by his continued pain since his surgery" and that the pain had "made it impossible for him to work as well as walk." (Id.)

On January 14, 2008, Plaintiff returned to Dr. Gulati for a follow-up appointment. (Tr. 242-45.) Plaintiff continued to report that he had right upper quadrant pain that worsened with eating. (Tr. 244.) He said that he "noticed an improvement of his pain" with medication, but it was not "significant." (Id.) Plaintiff stated that his pain prevented him from working. (Id.) Dr. Gulati noted that Plaintiff was in no acute distress but appeared "somewhat frustrated." (Id.) Plaintiff wanted Dr. Gulati to complete a disability evaluation, but the doctor said that the pain management service did not complete disability ...


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