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Bennett v. Astrue

April 17, 2009

EDITH BENNETT, 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 Edith Bennett, 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 June 21, 1963 and was 41 years old at the time of the administrative hearing on June 1, 2005. (Administrative Transcript at p. 95, 265)*fn2 . At the time of the hearing, plaintiff had a daughter (18 years old), a son (20 years old) and 3 young grandchildren. (T. 267). Plaintiff testified that she was not married and resided in a second floor apartment with her daughter and grandson in Troy, New York. (T. 266-268). In 1981, plaintiff graduated from high school. (T. 109). From 1981 through 1982, plaintiff attended classes in general office procedures at the Educational Opportunity Center in Albany. (T. 109). From 1997 until 2002, plaintiff was employed at Price Chopper as a cashier and at the deli counter. (T. 104). Plaintiff's job required her to walk, stand, stoop, handle, grab, grasp, write and handle small objects for 4-7 hours each day. (T. 104). Plaintiff's job required her to lift 25 pounds frequently. (T. 104). Plaintiff claims that she was last employed in April 2002. (T. 103). Plaintiff states that she became disabled on December 2, 2002 due to a "combination of impairments". (T. 17).

A. Medical Evidence

A review of the record reveals that plaintiff was treated for her alleged disabling conditions by Abdul S. Khan, M.D., David Bruce, M.D. and Adetutu Adetona, M.D. Plaintiff also treated at Samaritan Hospital Behavioral Health Services and at Seton Health Sleep Laboratory.*fn3

Abdul S. Khan, M.D.

On October 16, 2002, plaintiff was examined by Dr. Khan, a neurologist at Capital Neurological Associates, at the request of Dr. Ashok Baghel.*fn4 (T. 180). Plaintiff complained of bitemporal headaches associated with photophobia and phonophobia.*fn5 (T. 180). Plaintiff also complained of blurred vision and dizziness. (T. 180). Dr. Khan noted that stress contributed to plaintiff's pain as she was caring for her 2-month old grandson. (T. 180). Plaintiff stated she was a housewife and lived with her son, daughter and grandson. (T. 180). Upon examination, Dr. Khan noted plaintiff was alert and oriented with normal speech and language. (T. 181). Dr. Khan found that plaintiff's muscle strength and muscular examination were normal. (T. 181). Dr. Khan diagnosed plaintiff with headaches and prescribed Depakote.*fn6 (T. 182).

On December 23, 2002, plaintiff returned to Dr. Khan for a follow-up evaluation. (T. 183). Plaintiff stated that her headaches were better and that she had no side-effects from the medication. (T. 183). Plaintiff complained of right elbow pain "shooting to her fingers", dizziness and tinnitus. (T. 183). Plaintiff's examination was normal and Dr. Khan noted plaintiff's migraine headaches were "well controlled on Depakote". (T. 184). Dr. Khan recommended an EMG/nerve conduction study for plaintiff's elbow pain. (T. 184).

On February 10, 2003, Dr. Khan performed an EMG and found an abnormal study which was "suggestive of mild median neuropathy at wrist on right side consistent with carpal tunnel syndrome". (T. 186). Dr. Khan noted that plaintiff could not tolerate the needle examination so "radiculopathy could not be ruled out". (T. 186).

David Bruce, M.D.

On November 20, 2003, plaintiff was examined by Dr. David Bruce at Pulmonary and Critical Care Services, P.C. (T. 206). Dr. Bruce noted that he originally saw plaintiff on November 6, 2003 for complaints of shortness of breath when walking up hills.*fn7 (T. 206). Plaintiff complained of wheezing and coughing episodes that caused respiratory distress during the night. (T. 206). Dr. Bruce noted that plaintiff had asthma and significant problems with esophageal reflux.*fn8 (T. 206). Dr. Bruce stated that plaintiff's chest x-ray revealed possible emphysema.*fn9 (T. 154). Dr. Bruce prescribed Nexium and Reglan.*fn10 (T. 206-207). Dr. Bruce noted that an upper GI series was "done subsequently" and documented position-related esophageal reflux without stricture and normal spirometry.*fn11 (T. 207).

On April 9, 2004, plaintiff returned to Dr. Bruce's office for treatment for a cough. (T. 208). Plaintiff claimed she had no improvement with her shortness of breath and continued to have heartburn despite taking Nexium. (T. 208). Plaintiff was examined by Rita Alowitz, a nurse practitioner. (T. 208). Nurse Alowitz noted plaintiff's examination was "normal". Nurse Alowitz concluded that plaintiff's significant reflux was the cause of the cough. (T. 209). Nurse Alowitz advised plaintiff to complete the course of medication previously prescribed by her primary care physician including steroids, antibiotics, Combivent and Albuterol.*fn12 (T. 209).

From May 2004 until December 2004, plaintiff continued to treat with Dr. Bruce for complaints of shortness of breath and a cough. (T. 147, 150, 210). On December 29, 2004, plaintiff had her last visit with Dr. Bruce. (T. 148). Dr. Bruce's diagnosis was unchanged and plaintiff was advised to return in one year with a pulmonary function test. (T. 149).

Seton Health Sleep Laboratory

On June 8, 2004, plaintiff had an initial sleep consultation at Seton Health Sleep Laboratory. (T. 192). Plaintiff was examined by Dr. Khaula Rehman who noted plaintiff complained of fatigue, sleepiness, restless leg and arm movements and coughing during the night.

(T. 192). Plaintiff stated that her sleepiness interfered with her daily activities and Dr. Rehman noted plaintiff scored an 11 out of 24 on the Epworth Sleepiness Scale.*fn13 (T. 192). Plaintiff advised that she took Trazadone for insomnia but that it did not help her fall asleep.*fn14 (T. 192). Upon examination, Dr. Rehman noted plaintiff's extremities and muscle strength were normal.

(T. 193). Dr. Rehman diagnosed plaintiff with GERD, depression, severe emphysema and restless leg syndrome.*fn15 (T. 193). Dr. Rehman also noted a "high suspicion of sleep apnea". (T. 193). Dr. Rehman advised plaintiff to avoid alcohol, refrain from driving, to sleep on her side.

(T. 193). Dr. Rehman scheduled plaintiff for diagnostic sleep studies and a CPAP study.*fn16 (T. 193). Dr. Rehman noted plaintiff would follow-up and treat with the director of the sleep center, Dr. Zia Shah. (T. 193). On June 8, 2004, Dr. Shah reviewed plaintiff's diagnostic sleep study and found the study consistent with mild to moderate sleep apnea. (T. 189).

On June 26, 2004, Dr. Shah reviewed the CPAP Study and noted that CPAP pressure partially improved plaintiff's RDI.*fn17 (T. 190). Dr. Shah prescribed a CPAP machine with pressure of 10 cm, encouraged plaintiff to lose weight and to sleep on her side. (T. 191). On June 26, 2004, plaintiff also had a follow up with Dr. Rehman. (T. 188). Plaintiff stated she still snored and noted that her boyfriend told her that she stopped breathing during the night. (T. 188). Plaintiff was diagnosed with mild to moderate sleep apnea, allergies and emphysema. (T. 188). Dr. Rehman prescribed Flonase for plaintiff's allergies. (T. 188).

On October 19, 2004, plaintiff had her last visit at the Sleep Laboratory. (T. 187). Plaintiff stated she was "feeling better" with CPAP use and that her average use was almost 6 hours at night. (T. 187). Dr. Shah's diagnosis was unchanged and he advised plaintiff to continue using the CPAP machine and to return in 4 months. (T. 187).

Adetutu Adetona, M.D.

On March 1, 2004, plaintiff had an initial examination with Dr. Adetona at Lansingburgh Family Practice.*fn18 (T. 175). Plaintiff claimed that she suffered from a heart murmur, right wrist tendinitis, GERD, headaches, depression, breathlessness and a sleep disorder. (T. 175). Plaintiff stated that she was prescribed Depakote but stopped taking the medication three weeks earlier due to weight gain. (T. 175). Plaintiff advised that she lived with her children and her fiancé. (T. 175). Dr. Adetona performed a new patient physical and diagnosed plaintiff with COPD, sleep disorder, chronic headaches and GERD. (T. 174).

From April 2004 until March 2005, plaintiff continued to treat at Lansingburgh Family Practice complaining of shortness of breath, coughing, right shoulder pain and headaches. (T. 161-173). On April 14, 2004, an MRI of plaintiff's brain and pituitary gland was performed at Seton Health Medical Imaging at the request of Dr. Adetona. (T. 179). The radiologist found no evidence of intracranial mass. (T. 179). On April 21, 2004, an echocardiogram was performed at Dr. Adetona's request due to plaintiff's complaints of chest pains. (T. 178). The impression was "normal study". (T. 178).

Samaritan Hospital Behavioral Health Services

On April 6, 2005, plaintiff appeared as a "self referral" at the mental health unit of Samaritan Hospital. (T. 156-157). Plaintiff complained of depression, fatigue and stress. (T. 157). A Comprehensive Assessment Update was prepared by Karen Welthy, a social worker. (T. 156). Ms. Welthy noted that plaintiff was a "returning client" who last treated in February 2005 but missed appointments due to child care constraints.*fn19 (T. 156). Plaintiff stated that she returned because she was stressed with family issues including her daughter's recent attempt at suicide and her son's legal troubles. (T. 156). Ms. Welthy also noted that plaintiff had problems with her fiancé who had a personality disorder, drug addiction and history of beating women. (T. 156). Plaintiff admitted to having a history of crack/cocaine abuse which she claimed ended 8 years ago and a history of alcohol abuse. (T. 156).

Upon examination, Ms. Welthy noted plaintiff was alert and oriented with normal concentration, speech and memory. (T. 156). Ms. Welthy noted plaintiff appeared stressed and depressed and that plaintiff did not have much insight into the abuse in her relationship. (T. 156). Plaintiff denied any suicidal or homicidal ideas and contracted with Ms. Welthy for her safety. (T. 156). Ms. Welthy diagnosed plaintiff with major depressive disorder without psychotic features, personality disorder and COPD.*fn20 (T. 156). Ms. Welthy noted plaintiff was overwhelmed by stressors including her abusive relationship and caring for her twin grandchildren due to her daughter's suicide attempt. (T. 156). Ms. Welthy recommended outpatient treatment with medication management and group therapy for domestic violence issues. (T. 156).

A mental status examination was performed by N. Achar, M.D., a psychiatrist. (T. 160). Dr. Achar noted plaintiff had no suicidal ideation and that she was at a "low" risk for suicide. (T. 160). Dr. Achar noted plaintiff's examination was "within normal limits" and prescribed Lexapro.*fn21 (T. 159 - 160).

On June 23, 2005, Catherine Hepp, a social worker, prepared a Treatment Plan. (T. 227). Ms. Hepp noted plaintiff was admitted on May 24, 2005 with a diagnosis of major depression, personality disorder and COPD. (T. 227). Ms. Hepp identified plaintiff's problems as excessive care taking with adult children, difficulty setting limits and past trauma. (T. 227). Ms. Hepp anticipated discharging plaintiff on December 2006 if plaintiff was able to manage her symptoms with an understanding of limits. (T. 227).

On August 19, 2005, Dr. Achar completed a Behavioral Health Comprehensive Treatment Plan. (T. 229). Dr. Achar noted plaintiff's mental status examination to be "within normal limits" with the exception of plaintiff's sleep and mood which he described as "abnormal". (T. 230). Dr. Achar noted plaintiff's depression was "ok" but that she experienced nightmares and PTSD symptoms due to remembering a rape that occurred when she was 13 years old.*fn22 (T. 231). Dr. Achar diagnosed plaintiff with major depression, sleep apnea and some ...


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