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Theresa A. Cook v. Commissioner of Social Security

July 27, 2011


The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge


Plaintiff Theresa Cook brings this action pursuant to 42 U.S.C. § 405(g) challenging the final decision of defendant, the Commissioner of Social Security, to deny her application for disability insurance benefits. Plaintiff and defendant have both moved for judgment on the pleadings, including the administrative record, pursuant to Fed. R. Civ. P. 12(c). For the reasons discussed below, defendant's motion is granted.


On August 28, 2008, Cook filed an application for disability insurance benefits with the Social Security Administration. (Transcript of Administrative Record ("Tr.") 124.) In the application, Cook stated that she had been unable to work due to her disability since June 22, 2007. (Id.) On February 19, 2009, defendant sent a "Notice of Disapproved Claim" to Cook, denying her claim for benefits. (Tr. 62.) On April 15, 2009, Cook requested a hearing before an Administrative Law Judge ("ALJ") to review the determination. (Tr. 66.) On August 19, 2009, Cook appeared with counsel at a hearing before ALJ Michael A. Rodriguez. (Tr. 20.) On September 8, 2009, Judge Rodriguez issued a decision finding that Cook was not "under a disability, as defined in the Social Security Act, from June 22, 2007 through the date of this decision." (Tr. 17.) On September 23, 2009, Cook sought review of the ALJ's decision from the Appeals Council of the Office of Disability Adjudication and Review. (Tr. 4.) The Appeals Council denied her request for review on March 23, 2010. (Tr. 1.) Represented by counsel, Cook filed her complaint in this Court on April 8, 2010.


Cook was born on June 12, 1977. (Tr. 61.) She has a Master's Degree in Social Work from Fordham University. (Tr. 25.) Beginning in 2002, she worked at Manufacturers & Traders Bank ("M&T Bank") as a business associate and teller. (Tr. 27.) In June of 2007, she began experiencing problems using her hands which made it difficult to do her job. (Tr. 28.) On June 22, 2007, she took a medical leave of absence and her employment was subsequently terminated. (Tr. 29.) Prior to working at the bank, Cook had worked as a camp counselor during the summers from 1997 to 2000, and as a babysitter from 2000 to 2001. (Tr. 48-50.) She had also worked as a receptionist for a school in 1999, and as a receptionist for a docking company in 1996. (Tr. 144.)

Cook has multiple sclerosis. (Tr. 228.) At the time of her application for benefits, her treating physician was Dr. Brian Apatoff at the Judith Jaffe Multiple Sclerosis Clinical Care & Research Center, located at Weill Cornell Medical College. (Tr. 196.) A letter from Dr. Apatoff dated January 10, 2008 states:

Theresa Cook is a patient under my care for treatment of multiple sclerosis, a neurologic disorder. Ms. Cook has been on long term disability. (Indefinitely) I have advised Ms. Cook, that it is important for her to avoid physical overexertion and emotional distress, as these factors can exacerbate her condition. If you have any medical questions regarding this patient, please call me at the above listed number. (Tr. 228.)

Dr. Apatoff was never contacted by the Social Security Administration, and thus never completed a residual functional capacity assessment of Cook. He appears to have been contacted by plaintiff's counsel only after the hearing before the ALJ took place. (Pl.'s Ex. A.) An administrator named I. Davis unsuccessfully attempted on three occasions to contact Dr. Apatoff at the Jaffe Center in September and October of 2008. (Tr. 215.) On October 15, 2008, Cook informed Davis that Dr. Apatoff no longer worked at the Jaffe Center. (Tr. 166.) While Davis made no further attempts to contact Dr. Apatoff, the Jaffe center provided Davis with its records of Cook's previous treatment at the center by Dr. Apatoff. (Tr. 196-214.)

On February 11, 2009, Cook was examined by a consulting neurologist, Dr. Kautilya Puri of North Disability Services in Hartsdale, NY. The report prepared by Dr. Puri found Cook to be normal and without limitation in every respect, except for "[m]ild difficulty tandem walking." (Tr. 225-227.)

Judge Rodriguez reviewed both the Jaffe Center records and the Puri report prior to the hearing and heard testimony from Cook and from Victor Alberigi, a vocational expert. (Tr. 20-60.) Cook testified that she had good days and bad days (Tr. 45-46.), that she was unable to stand for long periods (Tr. 30.), that she had trouble with her memory and focus (Tr. 31.), that she had hand tremors and numbness throughout her body (Tr. 35-36.), that she had difficulty writing legibly or performing fine manipulation (Tr. 40.), and that she tended to drag her right leg when walking (Tr. 43.). Cook also testified that she took a prescribed medication called Rebif by injection every other day, and that she experienced side effects including flu-like symptoms, tremors, fatigue, and dizziness. (Tr. 41.) Alberigi testified that, assuming a hypothetical employee could sit for up to six hours a day, stand or walk for up to two hours total with the option to sit or stand at will, lift or carry no more than ten pounds, perform occasional fine manipulation, and could not climb stairs or ladders or crawl, that person could perform a job similar to Cook's prior position as a receptionist. (Tr. 54.)

In his decision, Judge Rodriguez found that "the objective documentary medical evidence demonstrates that the claimant has the residual functional capacity to perform sedentary work." (Tr. 14.) Specifically, Rodriguez cited Dr. Puri's examination report finding that Cook's gait and station were normal, that she needed no help getting on and off the examining table, that her hand and finger dexterity were intact, that her grip strength was 5/5 bilaterally, that strength in her upper and lower extremities was normal, and that only mild limitations to gait were observed. (Tr. 15.) Rodriguez also noted that the Jaffe records showed the following: in December 2006, Cook was doing well, tolerating her prescription well, and reported no new symptoms (Id.); in April 2007, she reported her right hand shaking and right foot dragging, and was found to have right lower extremity strength of 4 and trace distal weakness involving the upper extremity, decreased vibration in the left upper and lower extremity, and some difficulty with heel and toe walking (Id.); in June 2007, Cook reported increased hand tremors and difficulties tolerating heat and humidity (Id.); in October 2007, Cook reported episodic fatigue and faintness when exposed to heat and humidity (Id.); and in June 2008, Cook reported continued sensitivity to heat and episodic fatigue, left upper eyelid jumping and right hand shaking when performing fine motor activities, and examination revealed a right upper extremity strength of 4 and decreased vibration in the left upper and lower extremity. (Tr. 16.)

Judge Rodriguez concluded that "the record fails to document the claimant having any significant exacerbation of her symptoms since her alleged onset date." (Id.) He also considered a functional capacity questionnaire prepared by I. Davis, which found that "the claimant retains the residual functional capacity to perform light work activity and that she possesses some occasional postural limitations and that she must avoid exposure to extreme heat." (Id.) The ALJ found Davis's assessment to be inconsistent with both the objective medical evidence and Cook's testimony, "both of which show that the claimant possesses slightly greater exertional and non-exertional limitations, yet are [sic] not disabling to the extent so as [sic] to preclude her from performing her past relevant work." (Id.) However, the ALJ also found that Cook's statements about "the intensity, persistence, and limiting effects of [her] symptoms are not credible, to the extent they are inconsistent with the above residual functional capacity assessment." (Id.) He accepted Alberigi's testimiony as credible, concluding that Cook met the description in the hypothetical he had offered Alberigi, and thus that she could perform her past relevant work as a receptionist. (Tr. 17.)

On June 14, 2010, more than nine months after the hearing, Dr. Apatoff wrote an "Attending Physician Statement of Disability" stating his opinion that Cook's "condition has left her completely and permanently disabled, and unable to ...

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