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D'Agostino v. Astrue

December 29, 2008


The opinion of the court was delivered by: John Gleeson, United States District Judge


On October 22, 2004, plaintiff Angela D'Agostino filed an application for a Period of Disability and Disability Insurance Benefits. She alleged an inability to work, beginning in June 30, 2004, due to the effects of what was diagnosed in October 2004 as a brain tumor. D'Agostino's application was denied on April 11, 2005, and she requested a hearing before an administrative law judge ("ALJ"). D'Agostino was represented by counsel at the July 24, 2006 hearing before ALJ Harold Rosenbaum. On October 27, 2006, the ALJ concluded that D'Agostino was not disabled within the meaning of the Social Security Act ("the Act") because she remained able to perform her past work as a high-school guidance counselor and there had been no 12-month period in which she could not perform such work. The Appeals Council denied D'Agostino's request for review on April 9, 2008. The adverse decision thus became the decision of the Commissioner of Social Security ("Commissioner").

D'Agostino seeks review of that decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Based upon the record before the Commissioner, the parties have cross-moved for judgment on the pleadings. I heard oral argument on December 19, 2008.

Because the ALJ's decision is supported by substantial evidence in the record, I grant the defendant's motion for judgment on the pleadings and deny plaintiff's cross-motion.


A. D'Agostino's Medical History

D'Agostino was born on August 31, 1950. She worked as a guidance counselor for the New York City Public Schools from September 1983 through June 30, 2004. She began weekly counseling with therapist Walter Blau in December 2003, and claimed that she was behaving inappropriately at work, having marital problems at home, and suffering from headaches and fatigue. Based on similar symptoms, she began to see a psychiatrist, Dr. Lawrence Rubin, in March 2004. Rubin diagnosed moderate major depression, single episode, and a dysthymic disorder. He prescribed various anti-depressants and anti-anxiety drugs in increasing doses during the spring and summer of 2004. In April 2004, D'Agostino was relieved of her caseload at her school, but she stayed on at her job until the school year ended on June 30.

On October 11, 2004, D'Agostino visited Dr. Esther Baldinger, a neurologist, who ordered an MRI of D'Agostino's brain. The October 19, 2004 MRI revealed a large tumor, and D'Agostino consulted with Dr. Paul Huang, a neurosurgeon. Huang surgically removed the tumor on November 16, 2004. On November 24, he noted that D'Agostino was recovering well from her surgery, and that her personality had improved markedly. He also observed that D'Agostino "complains of feeling tired in the afternoon, but this should improve over time." Tr. 216. Huang also directed D'Agostino to take Keppra for six months to prevent seizures

Dr. Huang completed two reports on D'Agostino's condition for the Social Security Administration ("SSA"). On December 4, 2004, he reported that D'Agostino still suffered from fatigue, and stated his opinion that D'Agostino could lift and carry 10 pounds occasionally, stand or walk for less than two hours and sit for less than six hours per day. Tr. 152-53. He also indicated that her ability to "Push and/or Pull" was limited, but did not specify how. He noted no other limitations on D'Agostino's "ability to do work-related physical activities." Tr. 153. In his March 7, 2005 report, Huang noted that D'Agostino experienced "extreme fatigue around noon-time." Tr. 179. Huang opined that D'Agostino could now lift and carry 20 pounds occasionally, stand or walk for up to two hours, and sit for up to six hour per day. He noted no other limitations. Id. at 179-80.

D'Agostino also received consultative evaluations from two doctors. On March 21, 2005, Dr. Andrew Ivanson, a neurologist, reported his view that, regarding D'Agostino's "ability to do work related activities[,] . . . there is no limitation for sitting, speaking, hearing, standing, walking, traveling, pushing, pulling, lifting. If there is any restriction of job-related activities because of personality changes, it should be provided by the psychiatrist." Tr. 191. On March 16, 2005, Dr. Herbert Meadow, a psychiatrist, examined D'Agostino and concluded that she "does not have a psychiatric disorder that would interfere with her ability to function." Tr. 183.

B. D'Agostino's Application for Benefits

As mentioned above, on October 22, 2004, D'Agostino applied for Social Security Disability Benefits, and the application was denied initially and on reconsideration after a hearing. The Appeals Counsel denied review of D'Agostino's appeal on April 9, 2008, making ALJ Rosenbaum's decision the final administrative decision in this case.


A. Standard of ...

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