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Rivas v. Astrue

May 19, 2008


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff, Kathryn Rivas ("Rivas") filed this action pursuant to the Social Security Act, codified at 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her application for Disability Insurance Benefits ("Disability"), and Supplemental Security Insurance ("SSI"). On January 11, 2008, plaintiff moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and on January 15, 2008, the Commissioner cross-moved for judgment on the pleadings. For the reasons that follow, I find that substantial evidence supports the decision of the ALJ. Accordingly, plaintiff's motion for judgment on the pleadings is denied and defendant's motion for judgment on the pleadings is granted.


Plaintiff is a 54 year old woman with an eighth grade education. (Tr. 323) She alleges that she has been disabled since August 31, 2001 because of emphysema, injury to her right wrist and depression. (Tr. 68) On April 28, 2004, Rivas filed an application for Disability and SSI. (Tr. 38-44, 299-304) Her application was denied on July 29, 2004. (Tr. 26-29) Plaintiff requested a hearing which was held on June 21, 2006 at which plaintiff appeared by video conference before an Administrative Law Judge ("ALJ") and was represented by counsel. (Tr. 316-351) By decision dated September 12, 2006, the ALJ found Rivas was not disabled. (Tr. 9-24) Plaintiff requested review by the Appeals Council. The decision of the ALJ became final when the Appeals Council denied review on April 23, 2007. (Tr. 5-7) Plaintiff commenced this action on June 11, 2007.

A. Medical Background

Rivas is an overweight woman who smokes half of a pack of cigarettes a day and is borderline diabetic. (Tr. 129) She was diagnosed Chronic Obstructive Pulmonary Disease, asthma and mild depression. (Tr. 129)

Rivas was first treated for respiratory distress on July 1, 2002 when she presented to the emergency room at F.F. Thompson Hospital with difficulty breathing and for way history of a dry cough. (Tr. 99) She was treated with a Ventolin inhaler and prednisone and directed to follow up with Dr. Kokx in two days. (Tr. 99)

On November 1, 2002, Dr. Matther Tomaino, an orthopaedist at Strong Health Clinic, treated Rivas for right wrist pain stemming from an injury on August 3, 2001 at the winery where she worked. (Tr. 109) Rivas felt a pop in the ulnar side of her wrist when she tried to pull a wine bottle out. Dr. Tomaino diagnosed plaintiff with an ECU tendonitis and a sheath injury. (Tr. 109) He injected her with cortisone and recommended wearing a wrist brace. (Tr. 109)

On December 13, 2002, Dr. Tomaino examined plaintiff who was seeking right ECU tenosynovectomy, debridement and retinaovacular sheath reconstruction. (Tr. 108) Dr. Tomaino noted that plaintiff had no pain when supine. He diagnosed her with ECU tenosynovitis. (Tr. 107) Dr. Tomaino performed the right ECU tenosynovectomy and sheath repair on March 13, 2002. (Tr. 106) Ten months following the procedure, Dr. Tomaino noted that plaintiff had no intrinsic weakness, full supination and pronation and no ECU instability. (Tr. 100) Examination found that Rivas has cubital tunnel Tinel's with no atrophy nor sensory deficits. (Tr. 101) He noted that Rivas had achieved maximal medical improvement finding that she had a permanent restriction of lifting no greater than 20 pounds which placed her at "partial disability". (Tr. 100)

On April 20, 2004, Dr. Kristen Bissell completed a Medical Examination for Employability Assessment, Disability Screening and Alcoholism/Drug Addiction Determination in which she indicated that Rivas had moderate limitations in standing, walking, climbing stairs, maintaining attention, and concentration and determined that plaintiff could lift no more than 20 pounds. (Tr. 142-143)

Plaintiff was admitted to F.F. Thompson Hospital on May 4, 2003 after presenting to the Emergency Department with shortness of breath, cough, and chills. (Tr. 111) She was diagnosed with asthma and Chronic Obstructive Pulmonary Disorder, given antibiotics and Albuterol and discharged on May 9, 2003 with directions to take Nicoderm to stop smoking, prednisone, Advair and Albuterol to control breathing problems. (Tr. 110)

Rivas was evaluated by clinical psychologist, Dr. Vince Ragonese, for depression on June 3, 2004. (Tr. 145) She was prescribed Wellbutrin. (Tr. 144)

An independent medical examination was conducted on June 15, 2004. (Tr. 149-153) During the examination, plaintiff claimed that she still experienced pain on the ulnar side of the right wrist, especially with repetitive use of the right hand. (Tr. 150) Rivas was taking Singulair, Wellbrutrin and Combivent at that time. (Tr. 150) Plaintiff was able to walk without difficulty, had full flexion and extension of the cervical spine, had full grip strength but was diagnosed with bronchial asthma, history of chronic obstructive pulmonary disease, hypercholesterolemia, cartilage injury of the right wrist joint and a history of depression. (Tr. 152) The examining ...

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