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Gray v. Astrue

March 20, 2009

SHARON GRAY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,*FN1 DEFENDANT.



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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

In this action, plaintiff Sharon Gray, moves, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), for a review of a decision by the Commissioner of Social Security denying plaintiff's application 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 5, 1958 and was 46 years old at the time of the administrative hearing on April 7, 2004. (Administrative Transcript at p. 271)*fn2 . Plaintiff resides with her husband and 2 children, ages 14 and 25. (T. 271-272). Plaintiff's 25 year old son is mentally disabled. (T. 272). In 1976, plaintiff graduated from high school. (T. 126). In April 1996, plaintiff was employed for 3 days as a laborer in a factory. (T. 126, 274).

A. Medical Evidence

A review of the record reveals that plaintiff was treated for her alleged disabling conditions by Camille Dillard, M.D., Richard Nocella, M.D., Balazs Selendy, M.D. and Charles Kenny, M.D.

Camille Dillard, M.D.

On November 12, 1999, plaintiff had her first and only examination with Dr. Dillard at Dolgeville Primary Care Center.*fn3 (T. 153). Dr. Dillard noted plaintiff had "no doctor". (T. 153). Plaintiff stated that she "crie[d] a lot", had severe headaches and was concerned about her father's health and her husband's heart problems. (T. 153). Plaintiff advised Dr. Dillard that she recently gained 10 pounds and suffered from left knee pain, numbness, a "fire feeling" in her thighs and tingling in her hands. (T .153). Dr. Dillard noted plaintiff had a history of depression and obesity. (T. 154). Dr. Dillard diagnosed plaintiff with left knee pain, obesity and stress. (T. 153-154).

On November 12, 1999, Dr. Dillard completed a form entitled Medical Examination for Employability Assessment, Disability Screening and Alcoholism/Drug Determination. (T. 253). Dr. Dillard noted plaintiff had a history of depression, a left knee injury and suffered from COPD.*fn4 (T. 253). Dr. Dillard opined that plaintiff was"very limited" in her ability to walk, stand, lift, pull, push, bend and climb. (T. 253). Dr. Dillard noted plaintiff had no limitations in sitting, seeing, hearing or speaking. (T. 253). Dr. Dillard concluded plaintiff had moderate limitations when using her hands and suggested that plaintiff avoid prolonged keyboard activities with 15 minute breaks every 2 hours.*fn5 (T. 253- 254).

Richard Nocella, M.D.

On April 2, 2003, plaintiff had an initial examination with Dr. Nocella, a physician who specialized in family practice at the Primary Care Center. (T. 251). Dr. Nocella diagnosed plaintiff with morbid obesity, left knee pain, occasional shortness of breath and difficulty swallowing. (T. 251). Dr. Nocella recommended that plaintiff monitor her calorie intake and exercise. (T. 251). Dr. Nocella suggested a "swallowing study" prior to plaintiff's next visit. (T. 251).

On April 23, 2003, Dr. Nocella examined plaintiff and noted that a CT of plaintiff's abdomen/pelvis was performed and that the results were pending. (T. 250). Dr. Nocella diagnosed plaintiff with an abdominal/pelvic mass, bilateral wrist pain, left knee pain and morbid obesity. (T. 250). Dr. Nocella also noted that plaintiff may suffer from carpal tunnel and suggested an EMG after plaintiff's further work up for her abdominal mass.*fn6 (T. 250).

On June 10, 2003, Dr. Nocella diagnosed plaintiff with hypertension, bilateral hand pain, left knee pain, a pelvic mass and obesity. (T. 248). Dr. Nocella prescribed Altace for plaintiff's high blood pressure and scheduled plaintiff for an EMG. (T. 248). Dr. Nocella suggested that plaintiff consult with an orthopedist for her chronic left knee pain. (T. 248).

On June 25, 2003, plaintiff underwent an EMG and Electrodiagnostic Study at Central New York Physiatry. (T. 242). Dr. Denny Battista prepared a report and noted plaintiff was referred by Dr. Nocella to rule out bilateral carpal tunnel syndrome. (T. 242). Dr. Battista found evidence of neuropathy at the wrist (carpal tunnel syndrome) severe on the right and "moderate to severe" on the left. (T. 242).

On August 26, 2003, plaintiff returned to Dr Nocella and stated that she did not want to have surgery for her abdominal mass. (T. 247). Dr. Nocella diagnosed plaintiff with hypertension, bilateral carpal tunnel syndrome, left knee pain, pelvic mass and morbid obesity. (T. 247).

On February 12, 2004, Dr. Nocella completed a Medical Source Statement. (T. 234). Dr. Nocella opined that plaintiff suffered from bilateral carpal tunnel syndrome. (T. 233). Dr.

Nocella opined that plaintiff could occasionally and frequently lift/carry less than 10 pounds and was limited to standing and/or walking for less than 2 hours in an 8-hour workday. (T. 231). Dr. Nocella noted plaintiff had no impairment with regard to sitting but that she was limited in pushing and pulling in the upper and lower extremities with no nature or degree described. (T. 232). Dr. Nocella opined that plaintiff could never climb, kneel, crouch, crawl or stoop but could occasionally balance. (T. 232). Dr. Nocella also opined that plaintiff was limited in reaching and fingering but unlimited in handling and feeling. (T. 232).

On March 4, 2004, Dr. Nocella noted that plaintiff presented with "multiple complaints" including bilateral knee, hip and thigh pain. (T. 244). Plaintiff also complained of pain in her throat upon swallowing. (T. 244). Plaintiff advised that she consulted a gynecologist for her abdominal mass who reiterated the need for surgery. (T. 244). However, plaintiff advised Dr. Nocella that she "turned to herbal therapy" and felt that her mass had reduced in size. (T. 244). Plaintiff stated that she no longer had back pain and less frequent menstrual periods. (T. 244).

Upon examination, Dr. Nocella found plaintiff to be obese and noted a positive abdominal mass in the region of the uterus which was less obvious than in previous examinations but difficult to assess due to plaintiff's morbid obesity. (T. 244). Dr. Nocella noted plaintiff exhibited a full range of motion while seated and ambulated with crutches. (T. 244). Dr. Nocella diagnosed plaintiff with chronic bilateral knee and hip pain, morbid obesity and dysphagia.*fn7 Dr. Nocella recommended that plaintiff continue to lose weight and suggested that plaintiff return to Dr. Kenny, as needed. (T. 244). Dr. Nocella prescribed Bextra and scheduled plaintiff for a swallowing visualization.*fn8 (T. 245). Dr. Nocella suggested that plaintiff continue with her herbal treatments for her mass but urged plaintiff to revisit the possibility of surgery. (T. 245). On March 20, 2004, Dr. Nocella noted that plaintiff had difficulty swallowing foods and suggested speech pathology. (T. 241).

On March 30, 2004, Dr. Nocella completed a physical capabilities evaluation. (T. 239). Dr. Nocella opined that plaintiff could sit for 8 hours a day if she had breaks to stretch. (T. 239). Dr. Nocella repeated his prior opinion that plaintiff could lift less than 10 pounds. (T. 239). Dr. Nocella stated the opinion was "a similar version from the original to more appropriately reflect the severity of plaintiff's carpal tunnel syndrome". (T. 240).

Balazs Selendy, M.D.

On May 12, 2003, plaintiff was examined by Dr. Selendy, a gynecologist at Bassett Healthcare. (T. 222). Plaintiff advised Dr. Selendy that she had a disability examination by her local physician which revealed an abdominal mass. (T. 222). Dr. Selendy noted that a CT scan and ultrasound revealed an 18-cm abdominal mass which may be related to the right ovary. (T. 222).

Upon examination, Dr. Selendy found plaintiff to be obese but in no acute distress. (T. 222). Dr. Selendy noted that he was unable to feel an enlarged liver or spleen but found the mass "vaguely palpable underneath the thick abdominal wall". (T. 222). Dr. Selendy reviewed plaintiff's radiological films and noted that the most likely diagnoses was uterine leiomyomata.*fn9 (T. 222). Dr. Selendy advised plaintiff that surgery was necessary. (T. 222).

On May 14, 2003, Dr. Selendy contacted plaintiff and advised that plaintiff's blood work was within normal limits. (T. 224). Dr. Selendy suggested an exploratory laparotomy and a total abdominal hysterectomy with bilateral salpingo-oophorectormies.*fn10 Dr. Selendy further recommended that plaintiff consider having her ovaries removed and suggested hormonal replacement. (T. 224).

Charles Kenny, M.D.

On September 25, 2003, plaintiff had an initial examination with Dr. Kenny, an orthopedic surgeon. (T. 263, Dkt. No. 7, p. 14). Plaintiff stated that she weighed 285 pounds and complained of pain in her knees and numbness/pain in her hands and fingers. (T. 263). Dr.

Kenny noted that plaintiff wore a brace on her leg but complained that it "cut" her circulation. (T. 263). Dr. Kenny noted plaintiff was a "stay at home mom". (T. 263).

Upon examination, Dr. Kenny found plaintiff to be overweight with "a pleasant mood". (T. 264). Dr. Kenny found that plaintiff exhibited a full and painless range of motion in her spine, shoulders, wrists, fingers, hip, ankles and toes. (T. 263-264). Dr. Kenny found no evidence of swelling or tenderness in plaintiff's spine or upper/lower extremities. (T. 263-264). Dr. Kenny noted plaintiff walked with an antalgic gait on the left and that plaintiff exhibited pain with motion in both knees and crepitus.*fn11 (T. 263). Dr. Kenny diagnosed plaintiff with carpal tunnel syndrome and bilateral chondromalacia of the patella.*fn12 (T. 264). Dr. Kenny noted that plaintiff's knee treatment was limited due to her weight and recommended a crutch and deep water exercise. (T. 264). Dr. Kenny suggested vitamins, a night splint and a "work up" for thyroid disease, diabetes and other possible metabolic causes of plaintiff's carpal tunnel syndrome. (T. 264).

On February 17, 2004, plaintiff had a follow up visit with Dr. Kenny and complained of "prickly pain" in both thighs. (T. 262). Dr. Kenny noted plaintiff had no exercise program and was "not inclined" to exercise. (T. 262). Dr. Kenny again found that plaintiff exhibited a full and painless range of motion and that plaintiff's straight leg raising was "strong". (T. 262). Dr. Kenny noted plaintiff's thighs and patellae were "somewhat tender". (T. 262). Dr. Kenny's diagnosis was unchanged. (T. 262).

B. Consultative Examinations

Annette Payne, Ph.D.

On April 10, 2003, plaintiff was evaluated by Annette Payne, Ph.D., at the request of the agency. (T. l 78). Plaintiff advised that she resided with her husband and 2 children, ages 13 and 24. (T. 178). Plaintiff denied any prior psychiatric treatment including outpatient counseling. (T. 178). Plaintiff complained of difficulty sleeping, gasping for air and anxiety. (T. 179). Plaintiff denied experiencing any significant depressive symptoms but stated she was "afraid to go out because of her knees". (T. 179). Plaintiff stated she was capable of caring for herself and that she was able to clean, do laundry, shop and cook. (T. 179). Plaintiff also advised that she home schooled her children. (T. 179).

Upon examination, Dr. Payne noted plaintiff exhibited restless behavior, an anxious mood and affect but that plaintiff was alert and oriented. (T. 180). Dr. Payne diagnosed plaintiff with anxiety disorder, arthritis, left shoulder pain, degenerative joint disease and emphysema. (T. 180). Dr. Payne noted that plaintiff's attention and memory were remotely impaired due to her anxiety. (T. 180). Dr Payne opined that plaintiff could understand simple directions and instructions. (T. 180). Dr. Payne concluded that plaintiff was mildly limited with attention and concentration, learning new tasks, making decisions, relating with others and stress. (T. 180).

Robert Weinberg, M.D.

On April 10, 2003, Dr. Weinberg performed an internal medicine examination of plaintiff at the request of the agency. (T. 182). Plaintiff complained of pain in her knee and leg with swelling and pain/cramping in her hands. (T. 182). Plaintiff stated that she was able to hold a pencil but unable to write or hold other things. (T. 182). Plaintiff stated that she had no "real examination by a primary care doctor in 25 years". (T. 183). Dr. Weinberg noted that plaintiff did not use an ambulatory device. (T. 183). Plaintiff ...


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