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Wanzo v. Commissioner of Social Security

May 2, 2008


The opinion of the court was delivered by: Gustave J. DI Bianco, Magistrate Judge


This matter was referred to me for report and recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18.


Plaintiff filed an application for disability insurance benefits on December 12, 2003, alleging disability beginning October 22, 2003. (Administrative Transcript ("T."), 38-40). The application was denied initially and on reconsideration. (T. 31, 37A-37D). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and a hearing was held on March 8, 2005. (T. 37E, 288-311). At the hearing, testimony was taken from the plaintiff (T. 292-307), and from a vocational expert (T. 307-10).

In a decision dated July 25, 2005, the ALJ found that plaintiff was not disabled.

(T. 19-28). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on October 6, 2005. (T. 4-6).


The plaintiff makes the following claims:

(1) The ALJ violated the treating physician rule. (Plaintiff's Brief, 9-11).

(2) The ALJ's credibility determination is not supported by the record. (Plaintiff's Brief, 11-13).

(3) The ALJ failed to ask the Vocational Expert ("VE") hypothetical questions containing the appropriate limitations in plaintiff's residual functional capacity. (Plaintiff's Brief, 13-14).

The defendant argues that the Commissioner's determination is supported by substantial evidence in the record, and must be affirmed.


A. Non-Medical Evidence and Testimony

Plaintiff, who was 42 years old at the time the ALJ rendered his decision, has a high school education. (T. 292). Plaintiff stated that she previously worked as a typist, waitress, janitor, and stitcher. (T. 55, 72, 292, 302-03, 306-07).

Plaintiff testified that she experienced neck and shoulder pain during September of 2002, a year after she had surgery on her neck. (T. 299-300, 303). She stopped working during September of 2003. After returning to her surgeon, plaintiff was prescribed physical therapy. According to plaintiff, the physical therapy did not provide any relief. Plaintiff also used a TENS unit. (T. 300). Plaintiff testified that she suffered from depression, problems sleeping, and a loss of appetite. (T. 301). She stated that her depression began after the birth of her now seven year old child. (T. 302). Plaintiff also noted that she had a problem with alcohol but that she "voluntarily took care of the problem." (T. 304-05).

Plaintiff testified that on a typical day, she watched television and tried to load and unload the dishwasher over a period of time. (T. 297-98). In regards to household chores, plaintiff stated that she does the dishes, laundry, and vacuuming, although breaks are necessary and she gets help from her daughter. She rarely goes grocery shopping. (T. 294-97). She also testified that she only drives in emergency situations or when she has no other choice because driving irritates her neck and shoulders. (T. 295). Plaintiff stated that she visits friends occasionally when her husband is home but that she never attends church or social activities nor goes out to eat or to the movies. (T. 299). When asked about her physical capabilities, plaintiff responded that she is not able to stand or walk for any prolonged length of time due to the pain in her foot from its partial amputation.*fn1 (T. 298).

B. Vocational Expert Testimony

At the hearing, the ALJ asked the vocational expert to describe plaintiff's past relevant work in terms of exertional and skill level. (T. 305-08). The vocational expert was asked some hypothetical questions by the ALJ. (T. 308-09). The first hypothetical posed related to a person who could lift no more than twenty pounds occasionally and ten pounds frequently with the right dominant hand only and five pounds maximum with the left hand. (T. 308). Furthermore, the individual could sit for up to six hours, stand for no more than two hours, alternate positions between standing and sitting every ten minutes, and perform activities involving no overhead reaching. (Id.) Additionally, the person would be able to remember, understand, and carry out no more than simple instructions and make simple work related decisions. (Id.) The vocational expert testified in response to the hypothetical that plaintiff would be able to perform work as a preparer for jewelry processing or lens inserter, and that there were a sufficient number of these jobs available. (T. 308-09). The vocational expert then responded to the ALJ that if plaintiff needed six or seven unscheduled breaks during the workday, she would not be able to sustain an 8-hour workday. (T. 309).

C. Medical Evidence

1. Dr. Mark J. Corey - Department of Family Practice, Robert Packer Hospital

On August 25, 2002, plaintiff was admitted to the Robert Packer Hospital complaining of severe bilateral lower extremity pain. (T. 91-107). Upon her discharge on August 26, 2002, Dr. Mark J. Corey stated that the pain in plaintiff's right calf was resolved but she still had severe pain in the left calf. (T. 91). He noted that an x-ray of the left lower leg showed no bony defect. (Id.) Physical therapy was performed and she was given crutches. (T. 91-92, 104-05). Dr. Corey prescribed Neurontin, Tylenol, Celexa, and Vioxx and told her not to engage in weight-bearing activities until the symptoms improved. (T. 92).

2. Dr. Thomas A. Yaeger - Department of Family Practice, Guthrie Clinic Ltd.

On October 6, 2002, Dr. Yaeger told plaintiff that a Magnetic Resonance Imaging ("MRI") of her neck showed severe narrowing of the left neural canal at C6-7. (T. 117, 129). He prescribed Vicodin and referred her to Dr. Anton for a neurological consultation. (T. 117). On October 31, 2002, plaintiff presented with chest pain. (T. 111-12). Dr. Yaeger noted that plaintiff smoked one and one-half packs a day and drank four or more alcoholic beverages per day. (T. 111). He found that a chest x-ray looked normal with some hyperinflation. (T. 111, 127).

On April 28, 2003, plaintiff complained of pain and stress at work and home. (T. 223-24). Dr. Yaeger opined that she was in no distress, her neck was normal, that she should decrease her alcohol consumption, although she did not want to go to Alcoholics Anonymous. (Id.)

Subsequently, on October 20, 2003, Dr. Yaeger found that range of motion in plaintiff's neck was decreased, strength in the upper extremities showed mild weakness of the left triceps, and other normal reflexes were intact. (T. 219-20). He stated that there was possible recurrence of her cervical disc disease and ordered an MRI. (T. 219). Naprosyn and Percocet were prescribed. (T. 219-20). On October 23, 2003, another MRI of the cervical spine showed that the cervical vertebral segments were well aligned and there were no definite signal abnormalities of the underlying spinal cord. (T. 119). On October 27, 2003, an MRI of the cervical spine revealed slight forward displacement of the C4 on C5. (T. 118). On December 3, 2003, Dr. Yaeger found that plaintiff's range of motion in her neck and left shoulder was decreased. (T. 217-18). Dr. Yaeger told her to take her medications, including Celexa, Naporxyn, and Vicodin, recommended therapy prescribed by neurosurgery, and stated she was disabled until February 2004. (T. 218).

On January 28, 2004, Dr. Yaeger stated that plaintiff's range of motion in her neck and left shoulder was limited, strength in the upper extremities was diffusely a little weak in the left arm, and there was marked paraspinous muscle spasm. (T. 216). He told plaintiff to continue physical therapy and stated that she was disabled until May 2004. (Id.) He also prescribed Vicodin. (Id.) On March 11, 2004, plaintiff complained of neck and shoulder pain. (T. 214-15). Dr. Yaeger reported that plaintiff had been lifting and pulling objects to clean her house. His office note also makes reference to the fact that plaintiff hired an attorney to "maintain her job with the county." (T. 214). Dr. Yaeger also stated

Since we are trying to get her back to work, I think that's [sic] keeping her in physical therapy if they can help her would be beneficial.

(T. 214).

Upon examination, Dr. Yaeger found the range of motion of plaintiff's neck to be limited but that rotation looked normal apart from titling, there was only slight muscle spasm, strength testing was difficult, reflexes were 2 and symmetrical, the left shoulder had normal range of motion, and palpation of the subacrominal bursa area caused pain. (Id.) Dr. Yaeger stated that claimed tenderness was perplexing because a cortisone shot did not help and x-rays were normal. (T. 215). He noted that her "disability" continued until May 2004 and he renewed a prescription for Vicodin.


Thereafter, on April 6, 2004, Dr. Yaeger noted that consultations from orthopedics and neurology for her physical ailments did not show a causative problem and that another doctor opined that plaintiff's problem could be psychosomatic. (T. 213). He stated that she should attend more physical therapy and exhaust that option before exploring other treatments. (Id.) On April 22, 2004, Dr. Yaeger noted that plaintiff still complained of neck and left shoulder pain and that physical therapy was not helping. (T. 212). He stated that the neck was without lymphadenopathy but that because of the pain, plaintiff should not work until August 2004. (Id.)

On August 4, 2004, Dr. Yaeger examined plaintiff for her neck pain. (T. 210-11). He stated that her neck was unremarkable although there was decreased range of motion on extension and left rotation, no paraspinous muscle spasms were present, strength in the upper extremities was 5 and symmetrical, and reflexes were 2 and symmetrical. (T. 211). Dr. Yaeger opined that because of the neck discomfort, plaintiff could not return to work until January 2005. (Id.) On September 20, 2004, plaintiff inquired of Dr. Yaeger about entering alcohol rehabilitation. (T. 209). On December 6, 2004, Dr. Yaeger noted that plaintiff was admitted to St. Joseph's Hospital for detox. (T. 208). On December 20, 2004, plaintiff stating she was having chest pain and ...

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