The opinion of the court was delivered by: DENISE COTE, District Judge
On October 16, 1997, Jeanne Loturco ("Loturco"), filed this
action pursuant to the Social Security Act, 42 U.S.C. § 405(g),
to obtain review of the final decision of the Commissioner of
Social Security ("Commissioner") denying her application for
disability benefits. Loturco asserts that she was totally
disabled for two years as a result of a car accident in which she
suffered whiplash. The Commissioner and plaintiff cross-moved for
a judgment on the pleadings. The motions principally address
whether the appropriate weight was given to the opinions of
treating physicians. For the reasons that follow, Loturco's motion is
denied, and the Government's cross-motion is granted.
The following facts are taken from the administrative record.
On September 27, 1996, Loturco got into a car accident and was
subsequently taken to the Nyack Hospital emergency room for
medical assistance.*fn1 Loturco was examined by Dr. Neal
Kane ("Dr. Kane"). She complained of back pain, shoulder pains, a
mild occipital headache, and some numbness in her arms. The
majority of discomfort came from the left side of her body. Dr.
Kane's impression was that Loturco did not appear to be in great
pain and that the impact of being rear-ended in the accident
caused a cervical, thoracic and lumbar strain, but not a
fracture. Dr. Kane was confident Loturco's minor pain would be
temporary. She was discharged the same day with instructions to
take Tylenol and to go for further testing.
The following day Loturco went to Arden Hospital, as
recommended, to have more tests done to examine her neck. The
x-rays revealed that there was no fracture of the cervical
vertebrae. The attending physician also diagnosed a cervical strain and told Loturco to rest, wear a cervical collar for
support, use warm soaks, and take Tylenol #3 and Motrin. A follow
up with an oral surgeon was also suggested.
On September 30, Loturco went to her primary care physician,
Dr. John Carey ("Dr. Carey"), complaining of neck and shoulder
pain and a tingling sensation in her fingers. Dr. Carey conducted
an examination and determined she suffered from a cervical strain
and spasm, and whiplash syndrome resulting from the car accident.
Dr. Carey prescribed Flexeril and Vicodin, and told Loturco to
undergo an MRI. At this time, Dr. Carey also referred her to
As instructed by Dr. Carey, Loturco had an MRI taken on October
1, which revealed "a right of midline disc herniation at C6/7
encroaching on the anterior subarachnoid space but not touching
the ventral border of the cord." A slight disc bulge at C5/6
appeared in the MRI, but no other problems were detected.
In addition to the MRI, Loturco underwent an electrodiagnostic
study on November 19. The electromyography ("EMG") revealed she
had normal motor and sensory capabilities. The test also showed
an irritability of the C5 muscular which "may be suggestive of a
The first recommended specialist Loturco visited was Dr.
Jeffery Schnapper ("Dr. Schnapper"), a chiropractor. Dr.
Schnapper agreed to treat Loturco two to three times per week for
her symptoms of headaches and pains in her neck, lower back, jaw,
arm, and leg.
On February 19, 1997, Loturco met with Dr. Ira Neustadt ("Dr. Neustadt"), the recommended neurologist. The examination revealed
that Loturco had a "primarily residual myofascial type pain with
residual cervical and shoulder girdle strain." The conclusion was
based on the fact that Loturco's motor strength was rated a five
plus on a scale of zero to five, with five being the capacity of
normal movement. She reacted well to a pinprick test, and she
retained the ability to sit, walk, and move around with minimal
pain. Dr. Neustadt emphasized the importance of reassuring the
patient that "she will get better," and that conservative
measures of treatment such as ice, moist heat, massage, and
gentle physical therapy were the most appropriate to remedy her
slight decreased range of neck motion. Occasional use of
non-steroidal anti-inflammatory agents such as Relafen, combined
with Zantac or Cytotec was also recommended. Dr. Neustadt
believed Loturco could gradually return to work if she continued
to apply the above conservative measures each night when she got
On February 25, Loturco visited her primary dentist, Dr.
Stanko. Loturco complained of tightness in her jaw and frequent
headaches. Upon conclusion of the examination, Dr. Stanko
diagnosed her with capsulitis of the right and left
temporomandibular joint ("TMJ"), retrodiscal synovitis of the
right TMJ, myalgia of masticatory and cervical muscles, cervical
dysfunction, and tension-type headache. Treatment for this
condition ranged from seven to twelve months.
On March 5, 1997, Loturco was referred by Dr. Schnapper to Dr.
Richard Semble ("Dr. Semble"), an orthopedist. Loturco again
explained her medical history and symptoms of neck and lower back pain, and numbness in her fingers. Dr. Semble examined her
cervical spine and found that her extension was slightly limited,
but that the more prevalent problem was the restriction on her
right rotation. Her rotation of the shoulders was limited to one
hundred-sixty degrees, which appeared to Dr. Semble to be caused
by the pain coming from the cervical area. Loturco was diagnosed
with chronic cervical strain and recommended ...