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Vanbuskirk v. Astrue

November 20, 2009


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff Sheila E. Vanbuskirk ("Plaintiff") brings this action pursuant to the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of the final decision of the Commissioner of Social Security ("Commissioner"), denying her application for Disability Insurance Benefits.*fn1 Specifically, Plaintiff alleges that the decision of Administrative Law Judge ("ALJ") Robert T. Harvey, as affirmed by the Social Security Appeals Council ("Council"), denying her application for benefits was against the weight of substantial evidence contained in the record and was contrary to applicable legal standards.

Plaintiff moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) ("Rule 12(c)"), seeking reversal of the Commissioner's ruling or, in the alternative, remand of the matter for a new hearing. The Commissioner cross-moves for judgment on the pleadings pursuant to Rule 12(c), on grounds that the ALJ's decision was supported by substantial evidence contained in the record and was based on the correct application of appropriate legal standards. For the reasons set forth below, I find that the decision of the Commissioner is supported by substantial evidence, and is in accordance with applicable law. I therefore grant the Commissioner's cross-motion for judgment on the pleadings, and deny Plaintiff's motion for judgment on the pleadings.


I. Procedural History

On August 29, 2003, Plaintiff, who was then 38 years old, filed an application for Disability Insurance Benefits under Title II, §§ 216(i) and 223 of the Social Security Act ("the Act"). Plaintiff claimed to be disabled since January 13, 2001, due to a neck injury. (Transcript of the Administrative Proceedings at pages 48, 68) (hereinafter "Tr."). Plaintiff's onset of disability date was subsequently amended to May 1, 2002. (Tr. at 724). Plaintiff's application was denied by the Social Security Administration ("the Administration") initially on November 5, 2003. (Tr. at 25). Plaintiff filed a timely request for hearing on January 9, 2004. (Tr. at 29).

Thereafter, Plaintiff appeared with counsel at an administrative hearing before ALJ Robert T. Harvey, on August 17, 2005. (Tr. at 722). In a decision dated October 25, 2005, the ALJ determined that Plaintiff was not entitled to disability benefits. (Tr. at 17). Plaintiff filed a timely request for a review of the hearing decision on December 22, 2005. (Tr. at 8). The ALJ's decision became the final decision of the Commissioner when the Social Security Appeals Council denied Plaintiff's request for review on June 8, 2007. (Tr. at 5). On August 10, 2007, Plaintiff filed this action.

II. Medical History

A. Plaintiff's injury, MRI and CT scan

On January 13, 2001, while at work, Plaintiff bent over a bench and felt a sharp pull in her neck and back. (Tr. at 705). Dr. Norsky initially examined Plaintiff on January 16, placed her on total disability from work, and ordered an MRI. Id. The MRI revealed mild bulging at the C5-6 and C6-7 disc spaces, straightening of the upper cervical spine, mild degenerative changes and possible muscle spasm, but no spinal cord compression, nerve root compression or disc herniation. (Tr. at 241). On January 31, 2001, a CT scan of Plaintiff's brain was negative for hemorraging and lesions. (Tr. at 123, 240). Plaintiff briefly returned to work for about one week in February 2001. (Tr. at 127).

B. Chiropractor Dr. Nicastro's Reports

On February 13, 2001, chiropractor Dr. Nicastro began treating Plaintiff due to head and neck pain, and diagnosed cervical and thoracic subluxations (dislocations), and cervical and thoracic sprain/strain. (Tr. at 696). Chiropractor Nicastro stated Plaintiff was "totally disabled" on April 29, June 26, August 23, and October 2, 2003. (Tr. at 308-310, 341). On October 2, 2003, she diagnosed chronic cervical sprain strain, narrow disc space at C4-5, degenerative disc disease, degenerative joint disease, C5-6 for chronic occipital neuralgia. (Tr. at 341).

C. Evaluation for Worker's Compensation Board by Dr. Reina

Dr. Reina examined Plaintiff on April 6, 2001 and reported that Plaintiff suffered from "postural, chronic cervical neuritis and shoulder girdle/paraspinal cervical muscle strain" related to the on-the-job neck injury suffered by Plaintiff on January 13, 2001. (Tr. at 126). Dr. Reina also stated Plaintiff suffered from mild C5-C6 disc bulging, unrelated to the neck injury. Id. Dr. Reina found Plaintiff in no acute distress, walked with a normal gait, and suffered neck pain and burning during the range of motion testing. (Tr. at 126, 128). Dr. Reina opined that Plaintiff's disability was temporary, moderate, and partial with a good prognosis. Id. Dr. Reina reported that Plaintiff stated her pain was at 8 1/2 to 9 out of 10 and that doing light housework or prolonged sitting increased her pain. (Tr. at 127).

C. Consultative Neurological Examinations by Dr. Bhat

Dr. Bhat examined Plaintiff on April 18, 2001, and stated that Plaintiff suffered from a constant headache at a pain level of 6 out of 10, and light headedness. (Tr. at 131). He reported that Plaintiff was in moderate distress, appeared to be in pain, with minimally restricted neck motion and tenderness over the left greater occipital nerve. (Tr. at 132). Dr. Bhat reported Plaintiff suffered from left greater occipital neuralgia triggering mild migraines, recommended a change in pain medication, referred Plaintiff to a pain management clinic, and expected Plaintiff to make a good recovery. (Tr. at 133).

Dr. Bhat re-evaluated Plaintiff on May 7, 2002 and stated that Plaintiff had been doing "very well without any discomfort and pain until a month ago when the symptoms recurred." (Tr. at 130). Plaintiff again suffered from neck pain radiating to the left side of the head, left side of the parietal area, left shoulder, and left eye. Id. Plaintiff's pain was at a 4 out of 10 and she was in no distress. Id. Plaintiff had tenderness over the left greater occipital nerve and slightly restricted neck movements and recommended Plaintiff seek help from Dr. Mevorach, a pain management specialist. Id.

D. Accupuncture and Left Occipital Nerve Block Reports by Dr. Hong

On June 8, 2001, treating pain management specialist Dr. Hong reported that Plaintiff suffered from a burning, sharp, shooting chronic headache pain along the left side of her neck and head radiating down into her trapezius and numbness in the extremities. (Tr. at 194). Plaintiff reported some relief from laying down and medications but no relief from chiropractic treatment. Id. Plaintiff reported her pain ranged from 5 to 10 throughout the course of a day. Dr. Hong found moderate to severe left occipital tenderness and bilateral trigger point tenderness with mild spasm in the trapezius muscle. (Tr. at 196). Dr. Hong recommended Plaintiff receive a nerve block and begin taking Neurontin. Id.

On June 15, 2001, Dr. Hong reported the nerve block did not decrease Plaintiff's pain and Plaintiff suffered "significant tenderness in the left occipital area with pain shooting down to the vertex." (Tr. at 177). Dr. Hong found Plaintiff had normal neck range of motion, mild trapezius tenderness, normal reflexes, and normal sensory and motor function of the extremities. (Tr. at 177).

On Oct. 31, 2001, Dr. Hong performed a radio frequency ablation of the left occipital nerve on Plaintiff due to chronic left-sided occipital headache. (Tr. at 140). Plaintiff reported complete pain relief in the left occipital area and mild tenderness in the left lower trapezius area to Dr. Hong on Nov. 8, 2001. (Tr. at 155). Dr. Hong released Plaintiff back for a work trial due to her good response to the treatment. (Tr. at 155).

E. Evaluation for Worker's Compensation Board by Dr. Graham

On June 4, 2002, Plaintiff reported to consultative physician Dr. Graham that following gastric surgery, she returned to work on Jan. 2, 2002 at Corning without restrictions, full duty, until March 2002 when her headaches, neck pain and stiffness returned. (Tr. at 182). Plaintiff reported her headaches had stopped but she had experienced numbness and tingling in the left arm. (Tr. at 182). Chiropractic massage and manipulation relieved her symptoms to some degree. (Tr. at 182). Dr. Graham reported that Plaintiff appeared to be in no great distress, suffered tenderness in the left occipital area, had good range of motion of the cervical spine, and normal findings upon neurological examination of the upper extremities. (Tr. at 182). Dr. Graham recommended another radio frequency ablation of the left greater occipital nerve based on the Plaintiff's excellent response to the previous treatment. (Tr. at 183). Dr. Graham opined that Plaintiff suffered a "moderate degree of disability" and that a light duty job would be appropriate once she was treated by a pain management specialist. Id.

F. Pain Management Specialist Dr. Mevorach's Reports

On June 25, 2002, Plaintiff saw pain management specialist Dr. Mevorach and complained of her constant pain in the left side of her neck which radiated through her head to above her left eye, intermittent numbness in her left arm and increased pain throughout the day. (Tr. at 185). Dr. Mevorach reported that Plaintiff was in no acute distress, suffered sensory deficits to pinprick in the upper extremities, had normal range of motion, no muscle spasm, mild tenderness at midline and moderate tenderness at the left paramedian area, mild tenderness at the right paramedian area, and left occipital nerve tenderness. (Tr. at 187). Dr. Mevorach stated that Plaintiff suffered from left occipital neuralgia with cervicogenic headaches and recommended a pulse radiofrequency procedure. (Tr. at 187). On July 1, 2002, Dr. Mevorach performed the pulse radiofrequency procedure which he reported stopped the headache pain. (Tr. at 207). However, on September 6, 2002, Plaintiff reported "not much relief" from this procedure when consulting Dr. Lockard. (Tr. at 572).

G. Examining Chiropractor Dr. Kuhn's Report

Dr. Kuhn examined Plaintiff on Nov. 14, 2002 and reported that Plaintiff complained of cervical pain, arm pain, left leg numbness, left hip pain, and occipital headaches. (Tr. at 258, 260). Dr. Kuhn diagnosed cervical sprain/strain associated with occipital neuralgia triggering headaches. (Tr. at 260). Dr. Kuhn concluded Plaintiff suffered a moderate partial disability caused by her injury of Jan. 13, 2001. Dr. Kuhn stated that Plaintiff would be seeking a job in the ...

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