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Emeno v. Astrue

September 30, 2009

VANESSA EMENO, PLAINTIFF,
v.
MICHAEL J. ASTRUE*FN1, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Vanessa Emeno brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking a review of defendant Commissioner of Social Security's decision to deny her application for disability benefits. Plaintiff alleges that she became disabled on September 18, 2002 due to Crohn's disease, fibromyalgia, arthritis, renal failure, bone marrow suppression, thyroid condition, vitamin deficiency, blood condition, heart condition, vocal cord injury, depression and multiple attempted suicides. Dkt. No. 21. This matter was referred to United States Magistrate Judge George H. Lowe for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(d). Magistrate Judge Lowe recommended that this Court enter judgment on the pleadings affirming the Commissioner's decision denying disability benefits and dismissing plaintiff's claims. Presently before the Court are plaintiff's objections to the Report and Recommendation.*fn2

II. FACTUAL BACKGROUND

Plaintiff was born on December 22, 1957. T. at 107. Plaintiff completed high school in 1975 and became a licensed practical nurse ("LPN") in 1986. T. 136. Plaintiff worked as an LPN from 1986 through 2002. T. 131. Although plaintiff returned to work in May 2003, she was suspended after approximately 80 hours for allegedly "throwing a glass of juice at a patient." T. 144.

Plaintiff's primary care physician was Ahmad Mehdi, M.D. According to the Administrative Transcript, plaintiff first saw Dr. Mehdi on December 14, 1999. T. 321. Dr. Mehdi noted plaintiff's history of Crohn's disease and fibromyalgia. T. 321. On December 28, 1999 plaintiff saw Dr. Mehdi, and, according to his notes, had been working "extended hours lately" and was suffering edema. T. 320. Plaintiff saw Dr. Mehdi on February 22, 2000 for prescription refills and on June 20, 2000, regarding sores on her legs. T. 319.

On January 15, 2001, plaintiff saw Dr. Mehdi for prescription refills and complained of a sore throat. T. 317. Dr. Mehdi noted "migraine". T. 317. On January 27, 2001, plaintiff told Dr. Mehdi that she had headaches. T. 318. On February 2, 2001, Dr. Mehdi noted that plaintiff's headaches had resolved and that she "would like to return to work". T. 318. Dr. Mehdi wrote a "return to work" note for plaintiff. T. 318.

On April 16, 2001, plaintiff was admitted to Cortland Memorial Hospital with chest pain.

T. 170. Plaintiff was diagnosed with acute myocardial infarction. T. 170. Plaintiff was discharged on April 18, 2001. T. 170.

A note from May 25, 2001, indicates that plaintiff suffered a migraine headache. T. 315. On June 1, 2001, plaintiff saw Dr. Mehdi to "go over labs". T. 316.

On July 18, 2001, plaintiff saw Dr. Mehdi regarding "pain and swelling" over her left ankle" for which she "[h]as been self medicating" with an old prescription. T. 316. Dr. Mehdi prescribed antibiotics and questioned whether "anxieties/OCD" were part of the problem. T. 314.

Dr. Mehdi considered a trial of Paxil instead of Elavil. T. 314. On July 24, 2001, plaintiff saw Dr. Mehdi regarding her ankle. T. 314.

Plaintiff returned to Dr. Mehdi's office on August 17, 2001 concerning a flair up of Crohn's disease and complained of "chronic diarrhea". T. 313. Plaintiff saw Dr. Mehdi on September 14, 2001 regarding rectal pain. T. 312. Dr. Mehdi recommended that she have a CT

scan of her pelvis to rule out an abscess, and prescribed an antibiotic. T. 312. When plaintiff returned to see Dr. Mehdi on September 18, 2001, she indicated that the rectal pain had diminished, but that she had stopped the antibiotics because she had an increase in diarrhea and abdominal pain. T. 311. Plaintiff complained that she felt tired and had body aches. T. 311. Dr. Mehdi noted that her rectal pain was "most likely infection abscess or fissure" and prescribed antibiotics and Tylenol #3. T. 311. Dr. Mehdi saw plaintiff again on September 21, 2001 and noted that her rectal pain continued to decline, recommended that she finish antibiotics, and prescribed prednisone. T. 310.

On September 24, 2001, plaintiff was admitted to Cortland Memorial Hospital with exacerbation of Crohn's disease, fibromyalgia, intractable pain of lower extremities, diarrhea, and methicillin-resistant staphylococcus aureus in stool. T. 188. Plaintiff was treated with steroids, pain medication, and antibiotics, and released on October 1, 2001. T. 188. Dr. Mehdi saw plaintiff on October 4, 2001, and noted that she was feeling better. T. 309.

On November 1, 2001, plaintiff complained to Dr. Mehdi that her pain had increased. T. 309. Dr. Mehdi noted that plaintiff had spoken to Dr. Stuart Gillim and he had increased her prednisone dosage and was considering immunosuppression therapy. T. 309.

Plaintiff saw Dr. Gillim regarding her Crohn's disease on November 15, 2001. T. 343.

Dr. Gillim noted that she was on prednisone, depressed, and gaining weight, but that her bowel was "under reasonably good control." T. 343.

Dr. Mehdi's notes regarding plaintiff on December 7, 2001 indicate that plaintiff needed a doctor's note stating that she cannot work "4 days in a row" and "no more than 8 hours a day". T. 308.

On January 11, 2002, Dr. Mehdi again noted plaintiff's Crohn's disease and fibromyalgia and prescribed Tylenol #3. T.308. On January 29, 2002, Dr. Mehdi noted that plaintiff was "doing well" and "starting back to work". T. 307. Dr. Mehdi noted Crohn's disease, gastroesophogeal reflux disease ("GERD"), edema, and prescribed Nexium, Lasix, Elavil, and gave her samples of Vioxx. T. 307.

On April 25, 2002 plaintiff complained to Dr. Gillim of a flare up and diarrhea and was placed on prednisone. T. 340. On June 20, 2002 Dr. Gillim noted that plaintiff had "anthralgias, myalgias, intermittent diarrhea, fatigue[], depress[ion]", and was not sleeping well. T. 341.

On June 28, 2002, Dr. Mehdi indicated that plaintiff was "doing well" and "responding to Rx well" but that she complained of "feeling sad" and "loss of appetite". T. 307. Dr. Mehdi recommended that plaintiff try Zoloft. T. 307.

On July 15, 2002, plaintiff complained of a sore mouth, chest congestion, and swelling in hands and legs. T. 306. Dr. Mehdi discontinued plaintiff's Zoloft prescription because plaintiff reported that since taking it, her dyspepsia and GERD had increased. T. 306.

On July 20, 2002, plaintiff received treatment at Cortland Memorial Hospital for chronic bronchitis. T. 206. Wendy Scinta, M.D., noted plaintiff's history of depression and indicated that she felt plaintiff had "a lot of underlying depression" that should be addressed with her primary doctor. T. 206.

On August 13, 2002, Dr. Gillim noted plaintiff was feeling "good". T. 341.

On September 3, 2002, plaintiff complained of chronic aches and pains. T. 305. Dr. Mehdi recommended that she start Paxil, and gave plaintiff Vioxx and Nexium samples. T. 305. On September 16, 2002, Dr. Mehdi noted that plaintiff still suffered abdominal pain and diarrhea.

T. 304. Dr. Mehdi prescribed oxycontin and Tylenol #4. T. 304.

On September 19, 2002, plaintiff was admitted to Cortland Memorial Hospital with acute renal failure. T. 219. Salil Gupta, M.D., examined plaintiff on September 23, 2002, while she was still in Cortland Memorial Hospital. T. 222. Dr. Gupta noted that plaintiff reported that she has not had a "flare-up of her Crohn's disease" and that she had "not had any diarrhea over the past year." T. 222. Regarding plaintiff's acute renal failure, Dr. Gupta indicated that she "was probably volume depleted and dehydrated from diuretic use and inadequate p.o. intake and [unintelligible] use of Vioxx probably did not help either. The patient's renal function had improved." T. 223. Dr. Gupta therefore did not believe plaintiff needed "any further work up."

T. 223. Dr. Gupta found plaintiff had "B12 deficiency and with Crohn's disease she should be on B12 shots." T. 223. According to Dr. Mehdi's notes, by the time she was discharged on September 25, 2002, plaintiff's acute renal failure "did resolve", her hypothyroidism was "being treated" and her "anemia ha[d] improved". T. 220.

On September 30, 2002, plaintiff complained to Dr. Mehdi of feeling low, sad, and unhappy, and stated that she "thought of hurting herself but she never did [and] has no clear plan". T. 303. Plaintiff also complained of abdominal pain. T. 303. Dr. Mehdi listed hypothyroidism, depression, and Crohn's disease in his notes and increased plaintiff's Paxil prescription. T. 303.

Plaintiff was admitted to Cortland Memorial Hospital from October 12, 2002 through October 18, 2002. T. 232. Plaintiff presented to the emergency room with complaints of "nausea and vomiting and possible hematemesis, dehydration, renal impairment, and hyponatremia." T. 232.

On October 15, 2002, plaintiff underwent a psychiatric examination by Susan Watrous, M.D. T. 237. Dr. Watrous's report indicates that plaintiff stated that, "many years ago", she was hospitalized for post partum depression after her daughter was born. T. 237. Dr. Watrus's report further indicates that plaintiff told her that "she has never been suicidal, but that there was one point in the past where she felt a strong desire to end her life" but did not act on that desire. T. 238. According to Dr. Watrus's report, when she was 23, plaintiff: was hospitalized for almost three months after overdosing on Inderal. She says that she had been started on this medication for migraine headaches. She denies that this was an intentional overdose, and says that everything in her life was going well at the time. She is not able to identify why she might have overdosed, except for a possible inadvertent accumulation of the medication in her system. She says that she was intubated, and sustained a vocal cord injury at that time. She denies any other actions that might be consistent with a suicide attempt.

T. 238. Dr. Watrus found that plaintiff's "multiple medical conditions" were "exacerbated by

depression that is related to multiple stressors in her life" and diagnosed plaintiff with "[m]ajor depressive disorder, recurrent, severe, without psychotic features." T. 239-40. Dr. Watrus recommended that plaintiff discontinue Paxil and start Celexa as well as counseling. T. 239.

On October 11, 2002, plaintiff had a CT scan of her abdomen and pelvis which showed "no gastrointestinal obstruction or focal inflammation such as active Crohn's disease." T. 248.

On December 3, 2002, Dr. Mehdi noted that plaintiff "need[ed] disability note to release for work" and listed fibromyalgia, bodyache, and Crohn's disease, followed by "stable". T. 301. Dr. Mehdi prescribed Tylenol #4 and oxycontin. T. 301. Dr. Mehdi also listed ...


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