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Danielle Izzo v. Commissioner of Social Security

March 1, 2011

DANIELLE IZZO, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



APPEARANCES OF COUNSEL FINE, OLIN & ANDERMAN, LLP THOMAS P. WELCH, ESQ. 716 7th North Street Liverpool, New York 13088 Attorneys for Plaintiff SOCIAL SECURITY ADMINISTRATION JOHN M. KELLY, ESQ. OFFICE OF REGIONAL GENERAL COUNSEL - REGION II 26 Federal Plaza - Room 3904 New York, New York 10278 Attorneys for Defendant

The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff brought this action pursuant to the Social Security Act ("the Act"), 42 U.S.C. § 405(g) and § 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner"), denying her application for Disability Insurance Benefits ("DIB"). Plaintiff requests that the Court reverse the Administrative Law Judge's ("ALJ") decision or remand the case to the ALJ for further evaluation of the evidence.

Currently before this Court are Plaintiff's and Defendant's cross-motions for judgment on the pleadings or, in the alternative, for summary judgment. See generally Dkt. Nos. 15, 16.

II. BACKGROUND

A. Procedural history

Plaintiff, then twenty-six, filed an application for DIB on June 21, 2005. See Administrative Record ("AR") at 46-48. In her disability report, Plaintiff cited lower back problems as her disabling condition. See id. at 69. Plaintiff asserted that her back problems caused her to experience pain from her back to her toes, as well as in her neck and left arm. See id. at 70. As a result of this pain, Plaintiff had difficulty moving her neck. See id. The Social Security Administration denied Plaintiff's application for DIB on October 3, 2005. See id. at 23-26. Plaintiff filed a timely request for a hearing on November 25, 2005, which was held before ALJ Robert Gale, in Syracuse, New York, on January 31, 2007. See id. at 30, 263. Attorney Thomas Welch represented Plaintiff, who appeared and testified. See id. at 263, 266.

ALJ Gale considered the case de novo and issued a written decision denying Plaintiff's application on May 22, 2007. See AR at 13-21. In his decision, ALJ Gale stated that he carefully considered all medical opinions regarding the severity of Plaintiff's impairments and made the following findings:

1) Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2010.

2) Plaintiff has not engaged in substantial gainful activity since March 4, 2005, the alleged onset date.

3) Plaintiff experiences degenerative disc disease of the cervical and lumbar spine, a severe impairment.

4) Plaintiff's impairment does not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings").

5) Plaintiff retains the residual functional capacity ("RFC") to lift/carry twenty pounds occasionally and ten pounds frequently, to sit for six hours in an eight-hour workday, stand/walk for four hours in an eight-hour workday, and can occasionally engage in postural activities, except those involving ladders and scaffolds. In addition, Plaintiff has no significant limitations on her ability to perform the mental demands of work.

6) Plaintiff is capable of performing past relevant work as a customer service representative for a telephone company since that work does not involve activities that Plaintiff's RFC precludes.

7) Plaintiff has not been under a disability, as defined by the Act from March 4, 2005, through May 22, 2007, the date of the ALJ's decision. See AR at 15-21.

The ALJ's decision became the Commissioner's final decision on September 17, 2007, when the Appeals Council of the Social Security Administration denied Plaintiff's request for review. See AR at 4.

Plaintiff commenced this action on November 15, 2007, see Dkt. No. 1, and filed a supporting brief on August 19, 2008, see Dkt. No. 16. Defendant filed its brief on July 7, 2008. See Dkt. No. 15.

B. Plaintiff's medical history

In 2003, Plaintiff slipped on ice and injured her back; she eventually required an L4-L5 bilateral microdiscectomy, which Dr. Stephen Robinson performed on November 25, 2004. See AR at 96-99. Plaintiff returned to work on January 27, 2005. See id. at 128. On March 4, 2005, while at work for AT&T, Plaintiff sustained an injury to her back and neck. See id. at 103. Plaintiff saw Dr. Robinson, who determined that she was neurologically stable and advised her to return to work for limited duty and to follow up in six weeks. See id. at 127. However, Plaintiff returned to Dr. Robinson nine days later, complaining of severe neck and lower back pain. See id. at 120-21. In May ...


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