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Ford v. Astrue

November 3, 2010


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied plaintiff Sheryl Ford's ("Plaintiff") application for disability insurance benefits ("SSDI"). Now before the Court is Defendant's motion [#6] for judgment on the pleadings, and Plaintiff's cross-motion [#9] for the same relief. For the reasons that follow, Defendant's motion is granted and Plaintiff's motion is denied.


On or about May 17, 2005, Plaintiff applied for SSDI benefits, claiming to be disabled since August 28, 2003. Plaintiff alleged that she was disabled due to "back pain," emphysema ("COPD"), carpal tunnel syndrome ("CTS"), "heart problem," and arthritis. (136)*fn1 When asked to state how these problems limited her ability to work, Plaintiff responded: "Trouble breathing, walking, standing for long periods, hand swells when I use it." (137) On October 4, 2005, Defendant denied the application. (109) On March 6, 2008, a hearing was held before Administrative Law Judge ("ALJ") Kenneth G. Levin. The issue before the ALJ was whether Plaintiff was disabled from working at any time since her alleged onset date, August 28, 2003.*fn2 At the hearing, Plaintiff's attorney maintained that Plaintiff had a combination of physical and mental impairments that prevented her from working. (32-34) With regard to physical limitations, Plaintiff's counsel emphasized that Plaintiff experienced chronic pain, shortness of breath with exertion, and general difficulty performing activities of daily living. (33) As for mental impairments, Plaintiff's attorney indicated that Plaintiff met or equaled the listed impairment for a depressive syndrome, and had low global assessment functioning ("GAF") scores at times. (34) Plaintiff's attorney further cited a report by Plaintiff's mental health therapist, which indicated that Plaintiff could not work "in any capacity." (34) On March 18, 2008, the ALJ issued his decision, finding that Plaintiff was not disabled. (14-30) Plaintiff appealed, and on March 30, 2009, the Appeals Council denied Plaintiff's request for review.

On May 29, 2009, Plaintiff commenced this action.*fn3 Plaintiff has now abandoned her claim for benefits prior to February 1, 2006. Consequently, the issue is whether the Commissioner correctly denied benefits for the period February 1, 2006, through the date of the ALJ's decision, March 18, 2008. Plaintiff contends that the ALJ's decision must be reversed, because the ALJ failed to properly apply the treating physician rule, and failed to properly assess Plaintiff's credibility.

On September 16, 2010, counsel for the parties appeared before the undersigned for oral argument.


Plaintiff was forty-seven years of age at the time of the hearing, and had completed high school. (51, 143) Plaintiff was last employed in 2003, as a book binder, a job which she performed for approximately ten years. (53) Plaintiff stated that she was laid off from this job in 2003, a few months after she had CTS surgery on her right wrist. (55) Specifically, Plaintiff had surgery in November, returned to work in January, and was laid off almost immediately, in January or February. (55) Prior to working as a book binder, Plaintiff worked a few years wrapping meat in a grocery store. (70) At the administrative hearing, held on March 6, 2008, the ALJ asked Plaintiff to describe the symptoms that prevented her from working, and she responded: "My back, my breathing and my hands." (55) As for her back, Plaintiff stated that she has "shooting" pain in her lower back, which radiates into her legs, particularly on the right side. (56) Plaintiff said that she experiences such pain every day. (57) Plaintiff stated that she took Darvocet and Neurontin for pain, but that the medications provided only slight relief. (58) As for her breathing, Plaintiff stated that she experienced shortness of breath when walking and "doing things around the house." (58) Plaintiff stated that she smoked less than a pack of cigarettes per day, and that she had previously smoked one-and-a-half packs per day. (59) As for her hands, Plaintiff stated that she experienced pain, swelling, and numbness in both hands, while doing things like washing dishes. (60) Plaintiff also stated that she had shoulder pain, "depending [on] what [she] lift[ed]." (63)

With regard to walking and standing, Plaintiff stated that she could walk less than a quarter mile on bad days, and slightly more on good days, and that she could stand for fifteen minutes at most. (67) Plaintiff indicated that she could sit for "maybe five minutes, ten minutes tops," before needing to switch position, either by standing up or lying down. (68) Plaintiff stated that she was in pain during the hearing, but that it was "not so bad," because she had taken Darvocet. (68) Plaintiff also stated that she could not stoop, bend, or crouch, because of back pain. (73) She further stated that she could not grasp or grip well with her hands. (78) Plaintiff additionally stated that she could lift and carry only five pounds. (68)

Plaintiff also indicated that she experienced psychiatric symptoms, consisting of depression, anxiety, irritability, racing thoughts, and trouble sleeping. (64) Plaintiff stated that she had been having such psychiatric symptoms for "at least ten years." (66) Plaintiff indicated that her psychiatric symptoms worsened when she drank alcohol, and that she had not used alcohol to excess in a year. (66) Plaintiff also stated that she had used cocaine fifteen years ago. (67) Plaintiff stated that she sometimes had suicidal thoughts, due to stress in her life, and that she had made five or six suicide attempts. (75)

Plaintiff indicated that she took Darvocet up to six times per day for pain (68), and that she also took Trazodone at night. (71) Plaintiff also took medications for her mental symptoms, including Celexa and Vistaril. (87-88) Plaintiff stated that she experienced "a lot" of side effects from her medications. (71) However, when asked to describe them, she mentioned only that Trazodone, which she took at night, caused her to experience congestion, dry mouth, and agitation. (71)

Plaintiff indicated that she was able to perform household chores, including cooking, cleaning, and shopping. (68) Plaintiff stated, though, that she was "tired all the time," and needed to sleep a couple of times during the day. (68-69). She stated that she spends her days watching television, reading, and socializing occasionally. (69) Plaintiff indicated that she had "maybe one" good day per week, when she was "able at least to get through and do things." (73)


Plaintiff's medical history was summarized in Defendant's brief, and need not be repeated here in its entirety. It is sufficient for purposes of this Decision and Order to note the following facts.

In February 2003, Clifford Everett, M.D. ("Everett"), noted that Plaintiff was complaining of low back pain, radiating into her leg, with prolonged standing. (210) Everett noted that Plaintiff's MRI showed degenerative changes at L3-L4, but "no significant neural encroachment." (210). Consequently, Everett was "not sure what is causing the right leg symptoms." (Id.). Everett ordered a nerve conduction study, which was normal. (211) Eventually, Everett treated Plaintiff with a steroid injection, but Plaintiff claimed that it was not helpful. (214) In May 2005, Plaintiff returned to see Everett, complaining of continued back pain. Everett prescribed Flexeril, and advised Plaintiff to continue walking, standing, and performing other activities, and to try physical therapy. (215) On January 12, 2007, Everett reported that Plaintiff's pain had become "much more diffuse," and that her "disability does fit in to a mild to moderate partial range." (329) Everett added that, "By definition, this indicates that she can work. I think she can work in a light-duty capacity full time." (329).

Plaintiff has had numerous visits to the emergency room, on occasions when she has been intoxicated and/or taken too much medication. On July 30, 2003, Plaintiff was admitted to Lakeside Memorial Hospital after having consumed alcohol and Darvocet. (334) Plaintiff indicated that she took the Darvocet because "I just don't care." (334) Plaintiff also tested positive for cocaine. (339) In July 2005, Plaintiff was admitted to the hospital after overdosing on Valium and alcohol, which she reportedly took to help her sleep. (774-775) Plaintiff also tested positive for amphetamines and cannabis. (782) In February 2006, Plaintiff was admitted to the hospital for a week, after she overdosed on Klonopin and alcohol, in an apparent suicide attempt. (837) Plaintiff indicated that she was stressed and overwhelmed because of issues relating to custody of her granddaughter. (837) On July 24, 2006, Plaintiff was seen at Strong Memorial Hospital after she overdosed on Norvasc, Effexor, and alcohol, and called 911 for help. (398-399) Plaintiff indicated that she took the pills because she was menstruating and just wanted to be left alone, although she also allegedly stated that she "wanted to end it all. (399, 404) Plaintiff complained of agitation and racing thoughts. (402) Subsequently, Plaintiff indicated that she really did not know what happened, and that "every once in a while she gets overwhelmed and can't handle things well." (681) On February 5, 2007, Plaintiff was taken to Park Ridge Hospital after overdosing on alcohol, Trazodone and Percocet. (623) This overdose was treated as a suicide attempt. (623) A psychiatrist evaluated Plaintiff "for the suicide attempt and her degree of depression," and concluded that she did not require hospitalization, but needed outpatient treatment. (623) On June 27, 2007, Plaintiff was hospitalized after overdosing on alcohol and Neurontin. (659) Plaintiff denied that she was suicidal, and said that she just wanted to sleep. (659) Plaintiff indicated that she was stressed by the fact that her daughter, the daughter's boyfriend, and the couple's children, were living with her, and refusing to move out. (659) Apparently, Plaintiff was intoxicated and called the police to have them remove her daughter's boyfriend from the home, but the police took her into custody instead. (664) Upon admission, Plaintiff indicated that she was in constant pain from her back, which is a common thread running through most of Plaintiff's medical records. On August 4, 2007, Plaintiff was again hospitalized after she overdosed on alcohol, Neurontin, Darvocet, and Trazodone. (672) On August 18, 2007, Plaintiff was seen at Strong Memorial Hospital for "acute [alcohol] intoxication," and was placed in restraints after she became combative. (427). Plaintiff apparently was upset concerning an argument with her family. (420-421)

In January 2004, David Mitten, M.D. ("Mitten"), who performed CTS surgery on Plaintiff's right wrist, indicated that Plaintiff was "temporarily partially disabled until [her] next appointment [on] 3/10/04." (185) Subsequently, in January or February 2004, Plaintiff planned to return to work, but was laid off. In July 2004, Mitten indicated that Plaintiff was physically able to return to her usual work, as book binder, four days per week, 4-5 hours per day. (186) On July 6, 2004, Mitten noted that Plaintiff had a "normal mood and affect." (208) Mitten opined that Plaintiff had a 20% loss of use of her right hand, following the CTS surgery. (209) On September 7, 2004, an independent medical examiner, who examined Plaintiff in connection with a worker's compensation claim, indicated that Plaintiff's wrist had reached maximum medical improvement, and that she had a 10% loss of use of her right hand. (196)

In June 2005, Patrick Wilmot, M.D. ("Wilmot"), Plaintiff's primary care physician, completed a report for the New York State Office of Disability Assistance. (220-232). Wilmot noted that Plaintiff's diagnoses included chronic low back pain, coronary artery disease, and chest pain, and that her primary symptoms were pain and decreased range of movement. (220) Wilmot reported that Plaintiff had "prob[able] mild depression." (221) Wilmot indicated that all laboratory testing was negative. (222) Wilmot indicated that Plaintiff could occasionally lift up to ten pounds, could stand and/or walk for up to six hours, and could sit without any limitation. (229). Wilmot further indicated that Plaintiff had no limitations with regard to understanding and memory, concentration, persistence, and social interaction. (230)

On August 22, 2005, Plaintiff was examined by Harbinder Toor, M.D. ("Toor"), a non-treating consultative examiner. Plaintiff complained to Toor of lower back pain, radiating into both legs, which was worse with bending, lifting, and vacuuming. (266) Plaintiff also complained of shortness of breath, and occasional numbness in her right hand. Toor's examination findings were essentially normal. (267-268) Toor observed "mild abnormal breath sounds on auscultation," and Plaintiff complained of "mild pain" in her back with flexion. (268) Straight Leg Raising test was positive bilaterally, with mild back pain. Toor's prognosis was "fair." (269) Toor indicated that Plaintiff should avoid "heavy exertion" and "irritants causing asthma," and that she had "mild limitation" with regard to bending, lifting, picking, and twisting of the lumbar spine. (269)

On August 22, 2005, Plaintiff was examined by Melvin Zax, Ph.D. ("Zax"), a non-treating consultative psychiatric examiner. Plaintiff reported having trouble falling asleep, and complained of being depressed and crying for no reason. (286) She stated that she did not answer the phone and did not want to do anything, and that part of her problem was that "there is a great deal going on that involves her father who is sick with cancer." (286) Upon examination, Zax observed the following: Plaintiff's thinking was coherent; affect was full and appropriate; mood was neutral; attention and concentration were somewhat impaired; recent and remote memory were impaired; intellectual functioning was low average to borderline; and insight and judgment were fair. Plaintiff reported being able to bathe and dress herself, cook, clean, do laundry, shop, drive, and manage her money. As for daily activities, Zax noted that Plaintiff reportedly "gets up and has coffee, cleans house, showers, and baby-sits her granddaughter." (287) Zax concluded that Plaintiff could follow and understand simple directions. Zax indicated that Plaintiff did "not appear to be terribly depressed at this time," and that she probably had a drinking problem. Zax indicated that it would be helpful for Plaintiff to return to work, but added, "I do not see much motivation on her part to do that so I suspect her prognosis is poor." (288)

In March 2006, Plaintiff sought mental health treatment from Unity Health Systems, complaining of depression, anxiety, medical problems, and family problems. (581). Prior to that, Plaintiff's mental health treatment was primarily through Wilmot, her primary care physician. (587) Plaintiff indicated that her mood had considerably worsened in the last two months, with increased crying and irritability. (582) Plaintiff appeared to be moderately depressed, with a poor to fair range of affect. (585) Plaintiff was referred for treatment, but it appears that within a few months she stopped attending appointments, and in July 2006 she was discharged from treatment. (622)

In or about August 2006, Plaintiff resumed mental health treatment with Unity Health Systems, consisting primarily of therapy with Lynne Wheeler, MS Ed CAS*fn4 ("Wheeler"), under the supervision of psychiatrist Dinesh Nanavati, M.D. ("Nanavati"). (696) Initially, the primary diagnosis was "major depression, recurrent, moderate" (696), but later that diagnosis was changed to "mood disorder, not otherwise specified." (710, 712) In November 2006, Wheeler and Nanavati reported that Plaintiff had made good progress and attended all of her sessions, and that she reported "a big improvement in her behavior and attitude." (699) In February 2007, Wheeler and Nanavati reported that Plaintiff had "ups and downs during this assessment period." (712) Plaintiff stated that she was frustrated because she was having more pain, which her doctors were not able to alleviate. (712) In May 2007, Wheeler and Nanavati reported that Plaintiff had attended most of her appointments, and that her medications were having good results. (716) Plaintiff complained, though, of sleep disturbances due to pain. (716) In August 2007, Wheeler and Nanavati reported that Plaintiff had "not done well" during the past three months. (720) Plaintiff had been to the emergency room twice for overdoses. (720) It was noted that Plaintiff had "responded best to mood stabili[zing]" medication, specifically Trazodone, which prompted Wheeler and Nanavati to consider bipolar disorder as a diagnosis. (721) In November 2007, Wheeler and Nanavati reported that Plaintiff was taking her medication with good results, and seemed to have a renewed commitment to getting well. (725)

On June 5, 2006, Plaintiff had an MRI of her lumbar spine. The MRI report stated, in pertinent part:

There is degenerative disc disease with disc narrowing and ventral osteophytes at T10-11 and T11-12. There are Schmorl's nodes in the lower thoracic spine and at multiple lumbar levels. There is facet and ligamental hypertrophy at L2-3 with impression on the underlying thecal sac. There is mild narrowing of the AP sac dimension at this level. At L3-4, there is mild facet and ligamental hypertrophy with minimal impression on the underlying subarachnoid space. At L4-5, there is mild facet and ligamental hypertrophy with very mild impression on the underlying subarachnoid space. At L5-S1, there is no significant posterior disc herniation stenosis. . . . IMPRESSION: Mild degenerative changes at several lumbar levels with mild stenosis*fn5 at L2-3. (326) On June 12, 2006, Everett reviewed the MRI report, and reported that it showed "mild lumbar spondylosis."*fn6 (328)

In October 2006, Wilmot's nurse practitioner, Phyllis Ruetz, NP ("Ruetz") noted that Plaintiff "definitely has stenosis symptoms." (495) In January 2007, Plaintiff complained to Ruetz that her back pain had not improved, and that she was experiencing "bilateral posterior leg pain." (514) Also in January 2007, Ruetz, under the supervision of Glenn Rechtine, M.D. ("Rechtine"), examined Plaintiff and noted that she was complaining of increased back pain and weakness in both legs. (516) Ruetz noted that Plaintiff was alert, with normal affect, had a normal gait, and negative straight leg test bilaterally. (517) Ruetz stated, "she has no deficits on exam." (518)

On February 27, 2007, Michael Stanton, M.D. ("Stanton") performed a neurological exam at Wilmot's request. (525-527). In his notes, Stanton ...

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