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LOTURCO v. BARNHART

May 5, 2005.

JEANNE LOTURCO, Plaintiff,
v.
JO ANNE BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

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.

  BACKGROUND

  The following facts are taken from the administrative record.

  Medical History

  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 several specialists.

  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 cervical radiculopathy."

  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 home.

  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 ...


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