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Montalvo v. Astrue

March 22, 2010


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:


Plaintiff Fatima Montalvo filed an application for disability insurance benefits under the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq., on May 8, 2006. Plaintiff's application was denied initially and on reconsideration. After holding a hearing on August 20, 2007 (the "hearing"), an Administrative Law Judge ("ALJ") concluded that plaintiff was not disabled within the meaning of the Act. On April 5, 2008, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review. Plaintiff filed the instant action seeking judicial review of the denial of benefits. The Commissioner now moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking affirmation of the denial of benefits. Plaintiff cross-moves for judgment on the pleadings, seeking reversal of the ALJ's decision and asking the court to grant her application for disability insurance benefits.

For the reasons set forth more fully below, the Commissioner's motion is granted and plaintiff's cross-motion for judgment on the pleadings is denied.


A. Non-medical and Testimonial Evidence

Plaintiff was born on November 24, 1948 in the Dominican Republic, where she attended high school. (Administrative Record ("A.R.") 392.) After receiving her GED in the United States, plaintiff worked from 1973 through 2005 as a purchasing agent of supplies at Elmhurst Hospital in Queens, New York. (A.R. 41--46, 78.) At the hearing, when asked to describe her responsibilities at this job, plaintiff testified that she spent most of the day sitting at the computer, occasionally standing to use the copy or fax machine. (A.R. 394-95.) She further testified that the heaviest weight she had to lift while on the job was "maybe ten pounds." (A.R. 394.) On September 26, 2005, plaintiff injured her back after she tripped over a water hose outside of Elmhurst Hospital. (A.R. 164.) Plaintiff stopped working and applied for and received workers' compensation benefits. (A.R. 32, 392.)

Plaintiff applied for social security disability insurance benefits on May 8, 2006. (A.R. 12.) In her application, plaintiff stated that, due to injuries suffered during her fall, she could no longer sit, stand, lift, carry, or walk for more than a half-hour at a time, respectively. (A.R. 41.) She also indicated that she has difficulty sleeping, standing, showering and putting on pants because of pain in her legs. (A.R. 59, 405--06.) At the hearing, plaintiff testified that she is only able to lift five pounds and, if attempting to lift an object from the floor, must crawl to stand up. (A.R. 402.) Finally, she indicated that she can stand and walk for twenty-minutes, can sit for "maybe an hour" as long as she moves her leg to relieve pressure, and can walk no more than two blocks without experiencing pain and limping. (A.R. 402--404.)

With respect to her daily routine, plaintiff testified that after waking, she generally washes, makes breakfast, prays, straightens her bed, makes lunch, reads, watches television, makes dinner and goes to sleep. (A.R. 58, 61, 67.) She states that she is no longer able to dance or walk for exercise and that she has to be cautious in the shower not to fall due to pain and weakness in her legs. (A.R. 61--62, 405.) Plaintiff is assisted by her husband and son with cleaning, cooking, and shopping and attends church on Sundays. (A.R. 58--62.)

B. Medical Evidence

1. Treating Physicians

Dr. William Gibbs is plaintiff's primary treating physician and has been treating her since before the time of the accident. After plaintiff's injury in 2005, Dr. Gibbs treated her for her back injuries and other ailments, and ordered a number of x-rays showing that she suffered from a degenerative disc disease in the lower back. (A.R. 164--66.) The x-rays showed normal curve in the spine and normal joints at the base of the spine, but no evidence of fracture or dislocation. (Id.) On October 3, 2005, Dr. Gibbs also ordered a magnetic resonance image ("MRI") of plaintiff's lumbar spine, which revealed degeneration of the disc substance, with bulging at the lower back level, a suggestion of a right disc herniation and joint degeneration. (A.R. 168-69.)

After the onset of her alleged disability, plaintiff also was examined and treated by Dr. Syed Jalal, a neurologist at the New York Medical and Diagnostic Center. (A.R. 267.) Plaintiff visited Dr. Jalal on December 30, 2005, complaining of pain from her neck to her legs and feet, as well as aggravated symptoms when sitting for more than 45 minutes, standing for more than 20 minutes, walking for more than 20 minutes, bending down to tie a shoelace, walking up and down the stairs, and doing household chores. (A.R. 268.) Dr. Jalal noted that plaintiff did not appear to be in acute distress. Even so, he found she had a stiff neck as well as tenderness in the shoulder and elbow area, and lower back, upper pelvis, and disc lesions. (A.R. 268-69.) He further noted that plaintiff suffered from cervical lesions, possible back nerve damage, and lower back disc herniation and bulging. (Id.) Dr. Jalal also examined plaintiff on several occasions during 2006. Plaintiff came to each of these visits with similar complaints, although some symptoms improved over time. (A.R. 218-21, 226, 235-36, 244-45, 260-61, 361, 363.) Dr. Jalal's last impression of plaintiff, on June 30, 2006, included possible cervical and lumbosacral radiculopathies as well as disc herniation and bulging. (A.R. 362.)

During the same time period, plaintiff saw numerous other physicians from the New York Medical and Diagnostic Center, including Dr. Neil Morgenstern, Dr. Kautilya Puri, and Dr. Jacob Sadigh. Dr. Morgenstern examined plaintiff on December 14, 2005 and February 10, 2006, at which time he found her to be partially disabled, suffering from lower back tenderness. (A.R. 241--42, 282--84.) Additionally, he found that plaintiff had a positive straight leg test, and diagnosed her with lumbar spine disc herniation and bulge. (A.R. 242.)

Dr. Sadigh, a chiropractor, examined plaintiff on November 5, 2005 and diagnosed her with lumbar disc syndrome, lumbar radiculitis, lumbosacral sprain/strain, segmental dysfunctions and low back pain. (A.R. 301.)

Dr. Puri examined plaintiff on July 5, 2006, and diagnosed her with diabetes mellitus, diabetic neuropathy, glaucoma, diabetic retinopathy, high blood pressure, high cholesterol, low back pain and radiculopathy. (A.R. 320.) Dr. Puri's report stated that plaintiff was able to rise from a chair without difficulty, did not need help changing for the examination, and was able to get on and off the exam table without any difficulty. (A.R. 318.) Furthermore, the report indicates that she did not appear to be in acute distress and did not use any assistive device. (Id.) Plaintiff's cervical spine showed full flexion, and the lumbar spine had decreased normal flexion and extension. (A.R. 319.) Dr. Puri recommended that plaintiff not lift any heavy weight. (A.R. 321.)

On August 11, and September 8, 2006, Dr. Panagiotis Zenetos, an orthopedic surgeon at Wyckoff Heights Medical Center, also examined plaintiff. (A.R. 348-49, 344-45.) Plaintiff complained of pain in her neck, back, right buttock, right knee, and right foot. (A.R. 348.) Dr. Zenetos found that plaintiff had limited range of motion in her lower back, and suffered from tenderness in the neck, left upper and lower back, and right buttock. (A.R. 349.) His overall impression was of spinal nerve damage. (Id.)

Dr. Zenetos performed a discogram of plaintiff's lower spine on November 3, 2006. (A.R. 342-43.) The discogram revealed that plaintiff had multiple disc tears in her lower back. (A.R. 343.) Additionally, he examined plaintiff on December 28, 2006, and July 11, 2007. (A.R. 344-45, 369-70) At both visits, Dr. Zenetos' findings were similar to earlier examinations. (Id.) On August 24, 2007, Dr. Zenetos performed a discoscopic discectomy,*fn1 which plaintiff tolerated well as evidenced by the fact that she was brought into the recovery room in "stable condition without any significant leg pain or weakness." (A.R. 376--77.)

While seeing these other physicians, plaintiff continued to seek treatment from Dr. Gibbs. He examined her on numerous occasions between October 2005 and August 14, 2007, and at all times determined that plaintiff was "disabled for her job description." (A.R. 159--161, 304.) On August 14, 2007, Dr. Gibbs performed a physical capacities evaluation, in which he reported that plaintiff can sit for only one hour and cannot stand or walk for even an hour in one stretch of time. (A.R. 368) However, during an eight-hour workday, he found that plaintiff would be capable of sitting for six hours, standing for two hours and walking for ...

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