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Brown v. Astrue

June 22, 2010


The opinion of the court was delivered by: Trager, J.


Plaintiff Taryn Brown ("plaintiff" or "Brown") brings this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), to review the determination of the Commissioner of Social Security ("Commissioner") denying plaintiff's request for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff is seeking DIB and SSI for numerous disabilities including, inter alia: lower back pain, sciatica, dizziness, chronic headaches, HIV, hemorrhoids, osteoarthrosis, an ulcer and hypertension. Plaintiff also seeks attorney's fees and lost benefits dating back to her original application. The Commissioner moves pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings affirming his decision denying benefits. For the following reasons, the Commissioner's motion is granted.


(1) Procedural History

Plaintiff filed an application for SSI and DIB on October 11, 2005, alleging disability beginning September 12, 2005. Administrative Record ("A.R.") 51. On March 22, 2006, the Social Security Administration ("SSA") denied plaintiff's claim for DIB and SSI. Id. at 14. After her claim was denied, plaintiff obtained a hearing before Administrative Law Judge Michael Gewirtz ("ALJ"), which was held on August 16, 2007. Id. at 207. On September 18, 2007, the ALJ found that plaintiff was not disabled within the meaning of the Social Security Act ("the Act") and thus not entitled to the requested benefits. Id. at 22. Specifically, the ALJ found that plaintiff was "capable of sedentary work and could perform the clerical associate job as it is performed in the national economy." Id.

On September 26, 2007, plaintiff requested review of the ALJ's decision by the SSA Appeals Council, which was denied on July 18, 2008. Id. at 3, 10. In response, plaintiff filed the present appeal in the Eastern District of New York on September 9, 2008.

(2) Plaintiff's Personal History and Self-Reported Symptoms

Plaintiff is a 53-year-old woman with a high school diploma. Id. at 44, 49. From approximately October 17, 1980 to September 12, 2005, plaintiff was employed as a clerical associate for the Department of Corrections ("DOC"). Id. at 44-51. While employed at the DOC, plaintiff performed various clerical work, including filing, typing, answering phones, counting and scanning cash bail payments and moving file boxes weighing up to twenty pounds. Id. at 45, 215-16. Plaintiff was terminated on September 12, 2005 and has not worked since then.*fn1 Transcript of Hearing Before Judge Trager, Dec. 16, 2009 ("Trager Hearing") at 2:25, 3:10-15; A.R. 162, 218.

In her initial disability report to the SSA, plaintiff claimed that she stopped working due to arthritis in her spine and left arm, lower back pain, head injury, dizziness, nerve problems, chronic headache, sciatica in her left leg and difficulty walking.*fn2 A.R. 43-44. At her hearing before the ALJ, she testified that she suffers from, inter alia, asthma, back spasms, sciatica, HIV,*fn3 palpitations, depression, sleeplessness, weight loss, an ulcer, high blood pressure, constipation, osteoarthritis and general joint pain. Id. at 223-230. Plaintiff testified that as a result of these conditions, she is confined to her bed for most of the day and is unable to lift heavy objects or sit for more than thirty minutes at a time. Id. at 237-38, 242.

(3) Medical Evidence Before the ALJ

The medical evidence in the record dates from August 2002 to August 2007 and includes medical reports from various hospitals including East New York Diagnostic and Treatment Center ("East New York"), Central Brooklyn Medical Group ("CBMG"), Brookdale University Hospital and Medical Center ("Brookdale") and Kings County Hospital Center ("Kings County").

a. Medical Evidence Prior to September 12, 2005

On August 26, 2002, plaintiff was treated by Dr. Emanuel Gelin at East New York for dizziness and inflamation of her hemorrhoids and back pain. Id. at 111-12. Dr. Gelin prescribed Vioxx for plaintiff. Id. On August 3, 2004, plaintiff went to CBMG, complaining of pain in her back and left leg. Id. at 91-92. Dr. Mark Grand diagnosed plaintiff with hypertension, a peptic ulcer and sciatica in her left leg and prescribed Vicodin, Norvasc and Prevacid. Id. On the same day, a radiographic exam of plaintiff's lumbosacral spine ordered by Dr. Grand indicated that her spinal curvature and alignment were within normal limits and that there was no evidence of degenerative changes. Id. at 101.

On December 22, 2004, plaintiff returned to CBMG complaining of hip and leg pain, stiffness, diarrhea and abdominal pain. Id. at 92. A December 29, 2004 radiographic exam of plaintiff's cervical spine ordered by Dr. Grand indicated that her spinal curvature and alignment were within normal limits. Id. at 100. A January 4, 2005 radiographic exam of plaintiff's left hip ordered by Dr. Grand showed no evidence of degenerative joint disease. Id. at 83.

b. Medical Evidence On or After September 12, 2005

i. Plaintiff's Hospital Visits

On September 19, 2005, plaintiff visited CBMG after "bumping" her knee in her home. Id. at 86. Dr. Grand diagnosed plaintiff with a contusion but noted that she maintained full range of motion of her knee. Id. On November 9, 2005, plaintiff was treated in the emergency room at Brookdale by Dr. Mikhail Charny for a laceration on her forehead and other neck pains.*fn4

Id. at 69. A CT scan of plaintiff's head was negative and revealed no intercranial injury. Id. at 69, 178. Her toxicology report indicated the presence of cocaine.*fn5 Id. at 177.

On November 16, 2005, plaintiff went to East New York for pain in her left arm. Id. at 107-08. Dr. Mohammed Q. Khan prescribed a low to moderate pain management routine and noted that plaintiff suffered from asthma.*fn6 Id. On November 28, 2005, plaintiff returned to East New York with cold symptoms, nasal congestion and dizziness. Id. at 105. Dr. Khan conducted a physical examination and found that with the exception of a slightly elevated blood pressure, post nasal drip and nasal edema, plaintiff's overall condition was within normal limits. Id. Plaintiff was diagnosed with hypertension and allergic rhinitis and prescribed Albuterol, an asthma medication. Id. at 106.

On March 22, 2006, plaintiff was treated by Dr. Sikiru Gbadamosi at Brookdale for lower back pain and instructed to rest for a few days and apply a heating pad to her back. Id. at 150. A July 24, 2006 x-ray of plaintiff's left shoulder ordered by Dr. Gelin at East New York showed a bone island in the proximal humerus but was otherwise negative. ...

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