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Anderson v. Commissioner of Social Security

September 21, 2009


The opinion of the court was delivered by: Gustave J. DI Bianco, Magistrate Judge


This matter has been referred to me for all further proceedings, including the entry of judgment pursuant to 28 U.S.C. § 636(c), the consent of the parties, and the order of the Honorable Norman A. Mordue, Chief United States District Judge, dated August 27, 2009. (Dkt. No. 18).


Plaintiff filed an application for disability benefits on December 27, 2004. (Administrative Transcript ("T.") at 77-81). The application was initially denied. (T. 39, 44-47). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on August 2, 2006. (T. 533-74). Both plaintiff and her fiance testified at the hearing. The ALJ found that plaintiff was disabled after August 16, 2005, but was not disabled between December 11, 2003 and August 16, 2005. (T. 16-33). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on July 30, 2008. (T. 7-10). This case concerns only the onset date of plaintiff's disability and whether the Commissioner's decision that plaintiff's disability began on August 17, 2005, rather than on plaintiff's claimed onset date of December 11, 2003, is supported by substantial evidence. (Plaintiff's Brief, at 1)(Dkt. No. 14).


The plaintiff makes the following claims:

(1) The ALJ should have obtained evidence from a Vocational Expert (VE). (Plaintiff's Brief at 3-4)(Dkt. No. 14).

(2) The ALJ's Residual Functional Capacity (RFC) finding is not supported by substantial evidence. (Plaintiff's Brief at 4-8).

(3) The ALJ erred by failing to consider the testimony of plaintiff's fiance. (Plaintiff's Brief at 8-9).

The defendant argues that the Commissioner's determination is supported by substantial evidence and must be affirmed.


This court adopts the facts contained in the Commissioner's Brief under the heading "Statement of Facts" on pages 2 through 8, but will highlight the following information.

1. Medical Evidence

Plaintiff has a long history of knee problems in both knees and has had several corrective surgeries, all performed by Dr. McClure, an orthopedic surgeon who has been treating plaintiff's knee problems for approximately twenty years. (T. 200, 259). . (T. 188-91). Her first surgery was in 1986, the second in 1998, and the third in 1999. (T. 200, 211, 215). Dr. McClure continued to treat plaintiff for her knee problems in 2002, 2003, and 2004 (T. 221, 226, 255-59). Dr. McClure has diagnosed plaintiff with chondromalacia patella and patellofemoral arthritis in her left knee. (T. 256-57).

Dr. McClure authored a series of reports between January and December of 2004. (T. 256-59). In a report dated January 21, 2004, Dr. McClure stated that plaintiff was suffering from a "sprain" in the right knee, with possible sublaxation of the patella. (T. 255). Dr. McClure stated that he would continue "conservative treatment" because there was no effusion, plaintiff had full motion, and she could fully bear weight. Plaintiff was pregnant at the time and wanted to hold off on getting x-rays. Id. Dr. McClure specifically stated that "work status [was] unchanged." Id.

On April 29, 2004, Dr. McClure stated his diagnosis of chondromalacia patella and recommended that she continue with exercises to strengthen and rehabilitate her knee as much as possible. (T. 256). Dr. McClure stated that plaintiff had reached maximum medical improvement, had a "partial disability," and although she was "disabled from her normal duties," she could do a sedentary job if one were available. Id. Dr. McClure also noted that plaintiff was working at the time. Id. There are three reports dated in December of 2004, one on December 8, and two that are dated December 16. (T. 257-59). The December 16 reports state that they are "revisions" of the dictation from December 8. Id. Although the wording in each report is slightly different,*fn1 all reports conclude that plaintiff has a partial disability and could perform sedentary work. Id.

Plaintiff has a history of mental and emotional problems caused by a combination of depression and anxiety. (T. 342-48, 365-368, 382-93). Plaintiff was hospitalized at United Health Services Hospital ("UHSH") in Binghamton between September 19 and September 27, 2004. (T. 281-99). The discharge summary from that hospitalization states that plaintiff was suffering from depression and anxiety, and was diagnosed with a "recurrent" major depressive disorder. (T. 282). According Dr. Inna Factourovich, a treating psychiatrist at UHSH, the depressive disorder was related to the birth of her son. (T. 292-94).

After treatment with medication, plaintiff's depression improved, plaintiff denied suicidal ideas or thoughts, and she displayed good insight and judgment to her emotional problems. (T. 282). She was completely compliant with her treatment. (T. 282). After discussing the prescribed medications, Dr. Factourovich specifically stated that "no side effects were noted to her treatment". Id. (emphasis added). The doctor stated that plaintiff reported "real plans for her future." Id.

After her release from the September 2004 hospitalization, plaintiff was referred for outpatient treatment through the Broome County Health Department. (T. 300). On October 13, 2004, plaintiff was diagnosed with post-partum depression and anxiety. (T. 300-302). It was recommended that plaintiff be continued on her medication, and that she should get counseling to assist her in changing her ...

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