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Futia v. Astrue

February 18, 2009

MARCELLA FUTIA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,*FN1 DEFENDANT.



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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

In this action, plaintiff Marcella Futia, moves, pursuant to 42 U.S.C. § 405(g), for a review of a decision by the Commissioner of Social Security denying plaintiff's applications for disability benefits. (Dkt. No. 1). 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.

II. FACTUAL BACKGROUND

Plaintiff was born on January 10, 1956 and was 49 years old at the time of the administrative hearing on March 2, 2005. (Administrative Transcript at p. 49, 138)*fn2 . At the time of the hearing, plaintiff testified that she resided with her husband and two children, ages 24 and 25, in the first floor of a two-family home. (T. 36-37). In 1974, plaintiff came to the United States from Italy. (T. 54). Plaintiff does not have a high school diploma or an equivalency degree.

(T. 44). From 1992 until 2001, plaintiff was employed as a seamstress. (T. 34, 161). Plaintiff claims that she became disabled on July 7, 2001 as a result of injuries she allegedly sustained in a motor vehicle accident. (T. 140). Plaintiff allegedly suffered nerve damage in her neck, right arm and hand. (T. 19). The last day plaintiff was employed in any capacity was July 7, 2001. (T. 159).

A. Medical Evidence*fn3

On July 7, 2001, plaintiff appeared at the emergency room of Albany Medical Center after a motor vehicle accident. (T. 240). Plaintiff complained of neck pain, back pain and numbness in her right arm and hand. (T. 240). The attending physician noted that x-rays of plaintiff's cervical spine were negative for a fracture. (T. 243). Plaintiff was diagnosed with a "neck muscle injury".

(T. 242).

On July 9, 2001, plaintiff was examined by Nilofar Q. Mir, M.D., her primary care physician. (T. 325). Plaintiff complained of right shoulder pain. (T. 325). Dr. Mir gave plaintiff a sling for her right shoulder and advised her to return in a few days. (T. 325). On July 19, 2001, Dr. Mir referred plaintiff to an orthopedist as she continued to have pain in her right shoulder and neck. (T. 327).

On August 1, 2001, plaintiff was examined by Suheil M. Khuri, M.D., an orthopedist affiliated with Northeast Orthopaedics. (T. 329). Dr. Khuri requested x-rays of plaintiff's shoulder which were negative. (T. 329). Dr. Khuri diagnosed plaintiff with a cervical and right shoulder sprain and prescribed Flexeril and physical therapy.*fn4 (T. 329). Plaintiff received 9 therapy treatments at the rehabilitation center at Northeast Orthopaedics. (T. 333). On August 22, 2001, plaintiff returned to Dr. Khuri and advised that despite therapy and medications, she still felt pain. (T. 337). Upon examination, Dr. Khuri noted plaintiff's shoulder and neck were still "stiff" but that her neurological exam was "not definite for anything definite with weakness in her arm in general". (T. 337). Dr. Khuri advised plaintiff to continue with medication and therapy.

(T. 337). On September 17, 2001, plaintiff returned to Dr. Khuri complaining of "numbness and tingling" in her hand and continued pain and stiffness in her shoulder and neck. (T. 338). Dr. Khuri ordered an EMG, nerve conduction studies, and an MRI. (T. 338). On September 21, 2001, an MRI of plaintiff's right shoulder was performed at Adirondack Diagnostic Imaging. (T. 343). The MRI of plaintiff's shoulder revealed tendinopathy but no cuff tear. (T. 339). On September 24, 2001, an EMG was performed which revealed "normal" conduction studies. (T. 345). On September 26, 2001, Dr. Khuri injected plaintiff's shoulder with Kenalog and Marcaine.*fn5 (T. 339). On October 1, 2001, Dr. Khuri's partner, Dr. Joseph Fay, referred plaintiff to a physiatrist due to her "severe pain in the right shoulder area". (T. 340).

On October 9, 2001, plaintiff was examined by Joy L. Meyer, M.D. at Physical Medicine and Rehabilitation. (T. 346). Plaintiff complained of pain in the right side of her neck going down to her shoulder with tingling in her hands. (T. 346). Upon examination, Dr. Meyer noted plaintiff had decreased range of motion in her right shoulder but, "with distraction", plaintiff was able to fully abduct her right arm, flex her right arm and shoulder and hold up its full weight. (T. 347). Dr. Meyer diagnosed plaintiff with a whiplash injury with ligamental strain, myofascial pain and complex regional pain syndrome in her hand/shoulder with swelling in her hand. (T. 347). Dr. Meyer found no "true findings of the shoulder" and prescribed Prednisone and Neurontin.*fn6

On October 23, 2001, plaintiff returned to Dr. Meyer. (T. 349). Upon examination, Dr. Meyer noted plaintiff's right hand was swollen and puffy with a decreased range of motion in her wrist. (T. 349). Dr. Meyer advised plaintiff to continue with her medications and prescribed physical therapy 2-3 times a week for 6 weeks. (T. 350). Dr. Meyer also prescribed an anti-depressant. (T. 350).

On November 13, 2001, plaintiff returned for a follow-up with Dr. Meyer. (T. 351).

Plaintiff told Dr. Meyer that she had no improvement with her pain. (T. 351). Plaintiff had stopped taking Neurontin due to side effects but advised that she was taking Ultram.*fn7 (T. 351). Dr. Meyer noted plaintiff did not respond well to medication or therapy and prescribed Klonopin.*fn8

(T. 351). On November 19, 2001, plaintiff returned to Dr. Meyer and stated that she had "good benefits" from Klonopin without headaches. (T. 353). Dr. Meyer diagnosed plaintiff with complex regional pain syndrome in her right upper limb (RSD), inability to use her right arm and hand and whiplash.*fn9

On January 18, 2002, plaintiff was evaluated by Sanjay Chaudhry, M.D. at Pain Management Consultants upon referral from Dr. Meyer. (T. 363). Dr. Chaudhry diagnosed plaintiff with myofascial pain syndrome and possible RSD of the right upper extremity. (T. 364). Dr. Chaudhry scheduled plaintiff for a triple phase bone scan and prescribed a TENS unit.*fn10 (T. 365). On January 30, 2002, plaintiff underwent a bone scan at St. Peter's Hospital. (T. 365). The radiologist concluded "[t]his study does not suggest RSD of the shoulders". (T. 362). The radiologist suggested that the "uptake in the left side" may be due to trauma. (T. 362). On March 29, 2002, plaintiff received her TENS unit. (T. 359).

On April 8, 2002, plaintiff returned to Dr. Meyer. (T. 390). Dr. Meyer noted plaintiff was not taking her medications regularly. (T. 390). Dr. Meyer referred plaintiff to Dr. Edward Apicella. (T. 390). On May 2, 2002, plaintiff was admitted to Albany Memorial Hospital for a Right Stellate Ganglion Block administered by Edward M. Apicella, M.D. (T. 395). On July 22, 2002, plaintiff had a follow up visit with Dr. Apicella and stated that she did not have lasting relief from the block. (T. 306). Upon examination, Dr. Apicella found no signs of RSD. (T. 397). Dr. Apicella diagnosed plaintiff with whiplash injury with cervicogenic pain. (T. 397). Dr. Apicella suggested a cervical medial branch nerve block and advised plaintiff to continue with her medications.

On May 17, 2002, plaintiff returned to Dr. Meyer complaining of significant pain. (T. 422). Dr. Meyer noted plaintiff's arm and right hand were swollen and suggested plaintiff return to Dr. Apicella for a repeat block. (T. 422). Dr. Meyer prescribed physical therapy and advised plaintiff to continue with her medication. (T. 422). On June 18, 2002, Dr. Meyer re-examined plaintiff and prescribed Lortab.*fn11 (T. 392).

On December 10, 2002 and January 24, 2003, plaintiff returned to Dr. Apicella's office and was examined by Pamela Madej, R.N. (T. 501-502). Nurse Madej diagnosed plaintiff with cervical posterior joint syndrome secondary to whiplash and scheduled plaintiff for a cervical block with Dr. Apicella. (T. 501). On January 30, 2003, plaintiff was admitted to Albany Memorial Hospital for a cervical medial branch nerve block performed by Dr. Apicella. (T. 496). Dr. Apicella's post-operative diagnosis was posterior joint syndrome/facet syndrome. (T. 496).

On February 19, 2003, plaintiff returned to Nurse Madej complaining of right shoulder and arm pain. (T. 504). Plaintiff stated that the block provided 3 days of relief. (T. 504). Nurse Madej provided plaintiff with information regarding cervical radiofrequency denervation. (T. 504). On July 8, 2003, plaintiff had her last visit with Dr. Apicella's office and was examined by Dr. Apicella. (T. ...


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