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Schultz v. Astrue

March 18, 2008


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

** On February 12, 2007, Michael J. Astrue was sworn in as Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil Procedure 25(d)(1), he is automatically substituted for former Commissioner Joanne B. Barnhart as the defendant in this action.



Plaintiff Cheryl Schultz brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking review of the Commissioner of Social Security's decision to deny her application for disability insurance benefits ("DIB"). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.


Plaintiff was born on February 12, 1965, and was 39 years old at the time of the administrative hearing on April 29, 2004. (Administrative Transcript at p. 254).*fn2 Plaintiff is married and has 4 children. (T. 145). She resides with her husband, her 2 youngest children (ages 13 and 3) and her brother in law. (T. 255). Plaintiff obtained her GED and completed a word processing course at the Utica School of Commerce. (T. 262). Plaintiff was employed from

November of 1994 until August of 2002 at Bonide Products, Inc. where she worked 5 days a week, 8 1/2 hours a day. (T. 53, 262). She was a registration manager with job duties that included registering insecticides, pesticides and fertilizers; proofreading EPA labels; completing usage reports; and completing label orders. (T. 53, 255-256). Plaintiff worked at computers in a seated position but occasionally lifted 10 pound files. (T. 256). Prior to working at Bonide, plaintiff was employed as a home health care aide. (T. 256). Her responsibilities included bathing, feeding and taking care of residents. (T. 256). Occasionally, she would need to lift the residents. (T. 257). The job required her to be on her feet "quite a bit". (T. 257). Plaintiff claims she is disabled due to chronic pain and fibromyalgia.*fn3 (T. 12). The last day that she worked in any capacity was August 12, 2002.*fn4 (T. 256).

A. Plaintiff's Medical Treatment

A review of the record indicates that plaintiff was treated for her alleged disabling conditions by Dr. David Petrie, Dr. Martin Morrell, Dr. Charles Buscema, Dr. Donald Raddatz, and Dr. Jonathan Block.*fn5

David Petrie, M.D.

The first record of treatment with any doctor for the alleged disabling condition was in August of 2002 with Dr. Petrie.*fn6 Plaintiff complained of pain in her left arm, joints and hands, but stated she would not "take the time to go to physical therapy". (T. 239). Plaintiff exhibited spasms with limited range of motion. (T. 239). Dr. Petrie concluded that her symptoms were musculoskeletal and concluded that she may suffer from arthritic complaints with muscle spasms. (T. 239-240). Dr. Petrie prescribed Soma and Celebrex and also suggested to plaintiff that she may be depressed.*fn7 (T. 240). At her next visit, on August 22, 2002, plaintiff denied that she was depressed. Dr. Petrie noted that her Zung depression scale was negative.*fn8 (T. 238). Although plaintiff "looked like a fibromyalgia diagnosis", she did not have any actual trigger points. (T. 238). Dr. Petrie's report indicated that plaintiff did not want to go on working and wanted to be out on family leave and disability until she obtained answers. (T. 238). All lab work and other objective testing was negative. (T. 238).

Plaintiff had 14 subsequent visits with Dr. Petrie from September of 2002 until December of 2003. During that time, Dr. Petrie continued to diagnose plaintiff with fibromyalgia and depression. (T. 235, 237). On January 23, 2003, Dr. Petrie examined plaintiff and noted that she ambulated without difficulty, walked around the room and was not in acute distress even though she complained of terrible pain. (T. 230). Dr. Petrie further noted that plaintiff was previously injured in a car accident and had the same "exaggerated response" to that injury. (T. 231).

On February 19, 2003, Dr. Petrie concluded that plaintiff's "symptoms are way out of proportion to her real physical examination". (T. 239). Dr. Petrie sent plaintiff for an MRI of her lumbar spine on February 13, 2003. The study revealed minimal degenerative change of the lower dorsal segment with no significant compressive lesion.*fn9 (T. 201). During plaintiff's subsequent physical examinations from March of 2003 until December of 2003, Dr. Petrie indicated that plaintiff walked without difficulty, was able to get on and off the table, and had good range of motion in her neck, shoulders and extremities. (T. 208-227). Dr. Petrie noted that she "really doesn't show much of anything". (T. 208-226).

On June 20, 2003, Dr. Petrie was "reassured" that plaintiff was "seeing Dr. Busima [sic] who told her that a lot of it is caused by depression". (T. 220). Dr. Petrie advised plaintiff that she should continue with psychiatry. (T. 220). Throughout his reports and during the last noted examination, on December 16, 2003, Dr. Petrie repeatedly stated that depression was at the root of plaintiff's problems. (T. 210-216).

Martin Morell, M.D. Dr. Petrie referred plaintiff to Dr. Morell, an arthritis specialist. Plaintiff first treated with Dr. Morell on September 9, 2002. (T. 83-84). Plaintiff complained of pain and stiffness in her hands and feet, fatigue and muscle/joint pain. (T. 83). Upon examination, plaintiff exhibited normal extension and flexion, normal range of motion in her neck, and normal and symmetrical strength. (T. 84). Dr. Morell diagnosed her with chronic pain and fibromyalgia with fatigue. (T. 84). Dr. Morell prescribed medication to help plaintiff sleep. (T. 84).

Plaintiff had 7 subsequent visits with Dr. Morell from September of 2002 until January of 2003. During that time, plaintiff continued to complain of body aches and severe fatigue. (T. 75-84). Dr. Morell prescribed a course of pain management with medications including Zoloft, Ambien, Trazodone and Zanaflex.*fn10 (T. 79-84). Dr. Morell suggested psychotherapy/counseling, acupuncture and aquatic therapy.*fn11 (T. 77, 80, 82).

On January 7, 2003, Dr. Morell referred plaintiff to Raymond A. Alessandrini, an occupational therapist associated with Sports Physical & Occupational Therapy PC of New York, for a comprehensive functional evaluation. (T. 195-200). Alessandrini found that plaintiff could perform "light work" defined as "exerting up to 20 lbs. force occasionally, and/or up to 10 lbs. of force frequently, and/or negligible amount of force constantly to move objects". (T. 195).

Plaintiff's last visit with Dr. Morell was on January 17, 2003. Dr. Morell explained the functional evaluation to plaintiff and noted that the "patient did not have the expected physiological response to reports of severe pain due to some observations of the examiner". (T. 75).

Charles Buscema, M.D.

Plaintiff began treating with Dr. Buscema, a psychiatrist, on February 19, 2003. Plaintiff told Dr. Buscema that she had suicidal thoughts but did not act upon them as "her family needs her". (T. 143). According to Dr. Buscema's notes, plaintiff claimed that she heard people talking to her including her deceased grandmother and complained of insomnia and a poor appetite with nausea. (T. 146). Dr. Buscema concluded that plaintiff suffered from audio and visual hallucinations and diagnosed plaintiff with major depressive disorder with psychotic features. (T. 135, 146). Dr. Buscema completed a form for the New York State Office of Temporary and Disability Assistance. (T. 135). On that form, Dr. Buscema placed an "x" in a box in front of a sentence that reads: "I cannot provide a medical opinion regarding this individual's ability to do work-related activities". (T. 140).

Plaintiff next saw Dr. Buscema on March 21, 2003. (T. 151). Dr. Buscema noted that plaintiff developed a number of somatic symptoms after her car accident in 1998. (T. 151). According to Dr. Buscema, plaintiff did not have a history of psychiatric treatment but her brother committed suicide and she had a history of sexual and physical abuse by her parents. (T. 151, 247). During her examination, Dr. Buscema noted that plaintiff was alert, well groomed and cooperative. (T. 151). Dr. Buscema indicated that she was "uncomfortable acting", but had well organized thoughts and did not exhibit any paranoia or hallucinatory behavior. (T. 151). Dr. Buscema again diagnosed plaintiff with major depressive disorder and prescribed antidepressants.

(T. 151).

The seven reports/notations that follow from Dr. Buscema are entitled "Pharm Manage".

(T. 248). From March of 2003 until March of 2004, plaintiff advised Dr. Buscema that she was having financial problems and that her family was not supportive. (T. 247-248). Dr. Buscema continually opined that plaintiff was depressed and that she "wanted approval for social security disability". (T. 244). The last report from Dr. Buscema is dated March 4, 2004 and is entitled "Psychopharmacological Management". Dr. Buscema indicated that plaintiff was to continue her medication and seek psychotherapy.*fn12 (T. 243).

Donald Raddatz, M.D.

Dr. Petrie referred plaintiff to Dr. Raddatz for a rheumatological evaluation. Plaintiff's initial and only examination was on May 2, 2003. (T. 202). Plaintiff stated that her symptoms dated back to 2001 but the doctor noted that they could date back to 1998 when she had a motor vehicle accident. (T. 203). Dr. Raddatz's report stated that plaintiff advised that she was prescribed Lortab and OxyContin for her pain. (T. 203). Upon examination, Dr. Raddatz noted that plaintiff's gait was normal, she had no weakness on strength testing, no spasms noted and good extension in the lumbar spine. (T. 205). Dr. Raddatz noted that she had a weight gain of 30 pounds since 1999. (T. 205). Dr. Raddatz opined that she "has a significant element of depression contributing to her symptoms as the predominant source of her symptoms with secondary fibromyalgia complaints". (T. 205). Dr. Raddatz stated that if she can manage her depression, some of her musculoskeletal symptoms will relent. (T. 202). According to Dr. Raddatz, the key element to her treatment was "psychiatric follow up/management". (T. 206).

Jonathan Block, M.D.

Dr. Petrie referred plaintiff to Dr. Block for a urological consult which took place on October 7, 2003. (T. 189). Dr. Block diagnosed her with urinary incontinence and suggested a plethora of testing to rule out infection or malignancy. (T. 191). Dr. Block completed a

"Statement of Ability To Do Work-Related Activities (Physical)" for the plaintiff on December 26, 2003. (T. 185). Dr. Block further indicated that plaintiff had no limitations in her ability to lift/carry, stand/walk, sit, push or pull. (T. 185-186). Dr. Block opined that plaintiff had no postural, manipulative, visual/communicative or environmental limitations. (T. 186-188).

B. Consultative ...

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