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Michelle M. Nozinsky v. Michael J. Astrue

July 8, 2011


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge



This action is brought pursuant to 42 U.S.C. § 405(g), to review the final determination of defendant the Commissioner for Social Security ("Commissioner") that plaintiff Michelle M. Nozinsky is not entitled to disability insurance benefits under Title II of the Social Security Act (the "Act"). Plaintiff filed an application for disability insurance benefits on March 24, 2004, which was denied on July 26, 2004. An administrative hearing was held on July 28, 2005, before Administrative Law Judge ("ALJ") Robert Young, who considered the case de novo and found, in a written decision on February 6, 2006, that plaintiff was not disabled as defined under the Act. Plaintiff appealed, but the denial of benefits became final on May 18, 2006 when the Appeals Council denied plaintiff's request for review.

Plaintiff commenced this action on July 13, 2006. On September 7, 2006, the parties stipulated to close this case and to remand it to the Commissioner under the sixth sentence of 42 U.S.C. § 405(g) due to an inaudible hearing tape. A second hearing was held before ALJ Marilyn Zahm on September 21, 2007, who considered plaintiff's case de novo. On October 23, 2007, ALJ Zahm issued a decision finding that plaintiff was not disabled within the meaning of the Act because she could perform light work in the national economy. The parties subsequently re-opened the case to continue litigation. Presently before the Court are cross-motions for judgment on the pleadings filed on August 20, 2009, by defendant (Dkt. No. 12) and on September 29, 2009, by plaintiff (Dkt. No. 14). The Court has deemed the motions submitted on papers pursuant to FRCP 78(b).

For the reasons below, the Court grants defendant's motion and denies plaintiff's cross-motion.


This case concerns plaintiff's claims that she has been disabled since July 1, 2000 because of lingering back, neck, and shoulder damage from a March 11, 1999 car accident. Plaintiff, who is 39 years old, last worked in October 1999 as a cleaner with her mother's cleaning business.

A. Medical Evidence

1. Evidence Prior to July 1, 2000

After her car accident, plaintiff was taken to the Kenmore Mercy Hospital emergency room, where she complained of right knee and shin pain. An X-ray showed no evidence of a fracture or dislocation of her cervical spine, but plaintiff was diagnosed with a right leg contusion and a cervical strain. On December 2, 1999 plaintiff saw Dr. Swaninath Ramalingam, M.D., complaining of back, shoulder, and arm pain, with pain radiating down her right leg. Dr. Ramalingam found tenderness in plaintiff's right lumbosacral area, discomfort in her shoulders, and a decrease in right arm strength. Plaintiff had limited range of motion at her hips but an asymptomatic gait. Dr. Ramalingam diagnosed plaintiff with lower back pain with radiculopathy, and referred her to Dr. Valerie Vullo, M.D. for further evaluation.

Dr. Vullo examined plaintiff on April 7, 2000. Plaintiff had full active range of motion in her shoulders but did have notable pain in abduction and flexion beyond 90 degrees. Dr. Vullo found a normal gait and no leg strength deficits. An MRI of the cervical spine revealed a mild disc bulge at C5-6. An MRI of the lumbosacral spine showed a tiny disc herniation at L4-5; a bilateral grade I to II spondylolisthesis of L5--S1, an annular tear of L5-S1, and compromise of bilateral L5 neural foramina due to spondylolisthesis. Dr. Vullo diagnosed right shoulder pain, cervical strain, and low back pain and lumbar radiculopathy from the L4-5 disc herniation and spondylolisthesis. In Dr. Vullo's opinion, the plaintiff was temporarily, totally disabled.

Plaintiff was examined by Dr. Michael Hayman, M.D. on May 8, 2000, who ordered an MRI of plaintiff's shoulder. The May 18, 2000, MRI showed symptoms consistent with bursitis and a small partial thickness tear. On June 9, plaintiff returned to Dr. Vullo, who found little more than strength improvements. Dr. Vullo's diagnosis was substantially unchanged, and she maintained that plaintiff remained temporarily, totally disabled.

Plaintiff was examined by Dr. Ignatius Bertola, M.D. on June 27, 2000. Dr. Bertola found that the plaintiff had no muscle weakness and full range of motion of both shoulders, elbows, wrists, and cervical spine. Plaintiff had full flexion in her shoulders and lumbar spine, and had full range of motion of her hips, knees, and ankles. Dr. Bertola found no causally related disability and concluded that plaintiff was capable of performing her usual duties as a commercial cleaner as well as her household duties without limitation or restriction.

2. Evidence After July 1, 2000

Plaintiff visited Dr. Anthony Leone, M.D. on October 5, 2000, complaining of right leg and shoulder pain and back discomfort stemming from the accident. Dr. Leone found a positive impingement sign on plaintiff's right rotator cuff, but no evidence of weakness. Plaintiff was examined on October 19, 2000, by Dr. Jeffrey Lewis, M.D., who found three problems: right shoulder injury, thoracic disc herniation at T11-12 on the right, ...

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