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Gorham v. Astrue

August 25, 2008




A. Procedural History

Plaintiff Allison F. Gorham ("Plaintiff") filed an application for Disability Insurance Benefits ("DIB") on April 20, 2004. Administrative Transcript ("AT") 53-55. The application was denied initially. AT 33. A request was made for a hearing. AT 39. A hearing was held before an Administrative Law Judge on November 8, 2005. AT 175-205. In a decision dated December 27, 2005, the ALJ found that Plaintiff is not disabled. AT 13-22. The Appeals Council denied Plaintiff's request for review on May 30, 2006. AT 4-7. Plaintiff commenced this action on June 20, 2006 pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision. Dkt. No. 1.

B. Contentions

Plaintiff makes the following claims:

(1) The Commissioner erroneously failed to find that Plaintiff's neck impairment meets Listing 1.04A. Dkt. No. 7 at 11-14.

(2) The Commissioner failed to lend proper weight to the opinion of Plaintiff's treating physician. Dkt. No. 7 at 14-19.

(3) The Commissioner failed to properly calculate Plaintiff's residual functional capacity ("RFC"). Dkt. No. 7 at 19-21.

(4) There is no substantial evidence to support the Commissioner's conclusion that there is significant work in the national economy that Plaintiff could perform. Dkt. No. 7 at 21-23.

(5) The Commissioner failed to properly assess Plaintiff's subjective allegations of pain and disabling symptoms. Dkt. No. 7 at 23-24.

Defendant argues that the Commissioner's determination is supported by substantial evidence in the record, and must be affirmed. Dkt. No. 9.

C. Facts

Plaintiff was forty-four years old at the time of the hearing. AT 179. Plaintiff has a bachelors degree in communications, as well as a degree from the Culinary Institute of America. AT 75, 179. Plaintiff's past work experience includes working as a cake decorator, fund-raising director, landscaper, restaurant manager/chef, and substitute teacher. AT 71. Plaintiff alleges that she became unable to work on January 1, 2002. Id. Plaintiff alleges disability due to back problems and herniated cervical discs. AT 70.

1. D. Peter Van Eenenaam, M.D.

From January of 2002 to June 5, 2002, Plaintiff received treatment for her right shoulder and later her cervical spine from D. Peter Van Eenenaam, M.D., an orthopedist. AT 100-13. Plaintiff had injured her shoulder and neck while cross-country skiing. AT 108, 111. X-rays of Plaintiff's right shoulder showed "some degenerative changes of her neck with some foraminal encrouchment, [and] some auto fusion." AT 101. An MRI of Plaintiff's cervical spine showed "significant spinal cord compression, especially at [C]5-6." Id. Dr. Van Eenenaam diagnosed Plaintiff as suffering from a cervical sprain, bursitis, tendonitis, and right shoulder impingement. AT 104. She was educated in a home exercise program and advised to consult with a surgeon. AT 100-01, 108.

2. Hansen Yuan, M.D.

From September 9, 2002 to October 25, 2005, Plaintiff treated with Hansen Yuan, M.D., a Professor of Orthopedics and Neurological Surgery at Upstate Medical University. AT 117-36, 153-60. Dr. Yuan initially diagnosed Plaintiff as suffering from a two-level cervical disc degeneration and found that Plaintiff would be a good candidate for a certain surgical procedure, which had not been approved by the Food & Drug Administration at that time. AT 53-54.

On November 17, 2003, Dr. Yuan prescribed Hydrocodone and "cervical therapy." AT 119, 126. He noted that Plaintiff should use Hydrocodone minimally, noting that he "would much rather do something to make sure the cord is safe, rather than taking a lot of pain med[ications] which would block the symptoms and then maybe [cause] potential harm." AT 119. He opined that Plaintiff "remains totally disabled." AT 120.

On December 8, 2003, Dr. Yuan reiterated that Plaintiff is "totally disabled from going back to work as a cake decorator." AT 118. Dr. Yuan noted that it was important for Plaintiff to keep mobile and flexible. Id.

On July 27, 2004, Dr. Yuan again opined that Plaintiff is totally disabled due to Plaintiff's "arm symptoms" and because "keeping her head down at any degree cause[s] her difficulty." AT 153.

On November 16, 2004, Dr. Yuan noted that Plaintiff's condition "obviously" was deteriorating. AT 154. He noted that Plaintiff was unable to "know where her hands are, or feet are, [and she has] to look to see where they are." Id. He opined that Plaintiff remained totally disabled. AT 155.

On October 25, 2005, Dr. Yuan found that a recent MRI showed three levels of degenerating discs, specifically at C4-5, C5-6, and C6-7. AT 156-57. He opined that Plaintiff remains totally disabled and should lift no more than twenty-five pounds, and perform no significant pulling, pushing, bending over, and "looking up." AT 157. He also stated that sitting and holding up the head for "long periods of time could be detrimental." Id. Dr. Yuan recommended holding off on pursuing surgical intervention. Id.

3. Kalyani Ganesh, M.D.

On June 1, 2004, Plaintiff was examined at the request of the agency by Kalyani Ganesh, M.D. AT 140-42. Dr. Ganesh diagnosed Plaintiff as suffering from a history of a herniated disc at C4-5 and C5-6. AT 142. Dr. Ganesh opined that Plaintiff has no gross limitation in regard to sitting, standing, walking, climbing, and bending. Id. However, she has a "mild to moderate" limitation with regard to lifting, carrying, pushing, and pulling. Id.


A. Disability Standard

To be considered disabled, a plaintiff seeking DIB or SSI benefits must establish that he is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. ยงยง 404.1520 and ...

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