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Karissa Colon v. Commissioner of Social Security

January 19, 2012


The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge


Plaintiff Karissa Colon ("plaintiff") brings this action pursuant 42 U.S.C. § 405(g) and 42 U.S.C. §1383(c)(3) of the Social Security Act, appealing a final decision of the Commissioner of Social Security ("defendant") denying plaintiff's claim for Social Security disability benefits ("SSDI")and Supplemental Security Income ("SSI") benefits. For the reasons stated below, the defendant's motion for judgment on the pleadings (Doc. No. 11) is granted.

I. Procedural History and Facts

A. Facts

The following facts and procedural history are set forth in plaintiff's brief in support of plaintiff's complaint and motion for judgment on the pleadings (Doc. No. 10), and in the administrative transcript*fn1 (Doc. No. 7). After a thorough review of the transcript, the court has corrected errors in plaintiff's brief and added relevant material as needed. The defendant incorporates the testimony, evidence and procedural history into his own brief (Doc. No. 11) with some additions which will be considered and included below, if deemed relevant, by the court.

Plaintiff's date of birth is April 21, 1980. She was 27 years old on the alleged onset date of July 31, 2007. Her alleged impairments are anxiety, depression, gastrointestinal problems and severe back pain. She has an employment history as, inter alia, a cashier, customer service representative, bill collector and sales associate. See Tr. 110. Her date last insured was March 31, 2010. Plaintiff has two sons, whose ages were three and nine at the time of the defendant's unfavorable decision. Tr. 22.

Plaintiff alleges that she has been under psychiatric care since an incident that happened at age five, and also saw a psychologist or counselor for depression and anger when she was fifteen. Tr. 174. On January 7, 2005, plaintiff underwent a psychiatric consultation, performed by Suresh Rayanchia, M.D., for evaluation prior to gastric bypass surgery. She reported back*fn2 and knee problems*fn3 and a diagnosis of gestational diabetes, as well as a suicide attempt, a week-long inpatient psychiatric hospitalization, and therapy at an outpatient location. Plaintiff was diagnosed with adjustment disorder NOS, major depression, recurrent, moderate without psychosis, and morbid obesity. Plaintiff was cleared psychiatrically for the surgery (id.) which was performed on February 4, 2005 by William Graber, M.D. Tr. 178.

Post-gastric bypass surgery, plaintiff was seen again by Dr. Rayanchia, and reported that she was depressed, had no job, was bored, tired and having problems with her boyfriend. Wellbutrin and Paxil were prescribed. Tr. 173. On April 13, 2005, plaintiff reported that she couldn't sleep and Trazadone was prescribed in addition to the Wellbutrin and Paxil. Tr. 172. On April 19, 2005, plaintiff was treated by Gordon Fung, M.D. for tension headaches, insomnia and lightheadedness when standing up. Tr. 247. On April 26, 2005, plaintiff underwent surgery for videoscopic repair of a ventral hernia, lysis of adhesions, and gastrostomy. She was discharged with Paxil, Tylenol 3 and an Albuterol nebulizer. Tr. 178.

On October 14, 2005, an x-ray of the lumbar spine revealed that the "disc spaces, facet joints and sacroiliac joints are well maintained." An x-ray of the bilateral knees revealed "well defined sclerotic osseous foci are demonstrated above and this may reflect osteopoikilosis. There is narrowing of the lateral joint compartment of the left knee." Tr. 244.

On March 14, 2006, plaintiff was admitted to the hospital for abdominal pain.*fn4 An ultrasound revealed gallstones, and plaintiff's gallbladder was removed on March 16. The next day she was experiencing pain and was taken back to the operating room for exploratory surgery, where Dr. Graber found blood in the abdomen and a clot in the gallbladder fossa. Tr. 180. On March 30, 2006, plaintiff was treated by Dr. Fung, claiming that her liver had been knicked during the gall bladder removal. She complained of right upper quadrant tenderness, right rib pain and depression. She was released on Paxil. Tr. 247. Dr. Fung treated plaintiff again on April 6, 2006 for headaches with blurred vision. On April 27, 2006, plaintiff's headaches were improved and she was "doing quite well on the Lexapro" for depression. Dr. Fung gave plaintiff a slip to get her blood checked for anemia, and stated that plaintiff's asthma was stable on the Albuterol. Tr. 242. On August 7, 2006, Dr, Fung treated plaintiff for complaints of abdominal pain and insomnia. Dr. Fung prescribed Ambien for the insomnia. Tr. 242.

On March 15, 2007, plaintiff presented to Dr. Fung complaining of insomnia. Dr. Fung refilled her prescription for Ambien. On July 10, 2007, plaintiff presented with complaints of asthma, anxiety/depression and panic. Dr. Fung prescribed Albuterol and Advair for the asthma, and Lexapro for the anxiety/depression and panic. Tr. 237.

On July 18, 2007, Colon was treated at the emergency room at Faxton-St. Luke Healthcare for complaints of shortness of breath, hands itching, tightness in throat, shakiness, tingling in fingers, left chest and abdominal pain, nausea and diarrhea. Records show that plaintiff smokes cigarettes and "[w]e have asked her to quit many times but she is considering it." It was determined that plaintiff had a mild cough and shortness of breath, some abdominal pain, some nausea, some loose bowel movements. A CT scan of the abdomen and pelvis showed nonspecific findings, a completely normal post gastric bypass CT scan. Dr. Graber opined that plaintiff might be suffering from a viral syndrome, viral costochondritis, or possibly even peptic ulcer disease. She was released on high dose Protonix and Carafate. Tr. 188. Plaintiff again presented at the Faxton-St Luke's emergency room on July 27, 2007, complaining of abdominal pain, and stating that she had been in the emergency room at least twenty times since her gastric bypass surgery two years earlier. Dr. Timothy Mathis, M.D., diagnosed chronic abdominal pain, most likely secondary to chronic adhesion, and stated that patient wants discharge and no testing, and "wants to go home now with a prescription for Lortab." Tr. 196-97.

On July 31, 2007, Dr. Graber performed an esophagogastrojejunoscopy to rule out peptic ulcer disease. Dr. Graber found "expected anatomy after gastric bypass. No anastomotic stricture or ulcer." At that time, plaintiff had lost a total of 108 pounds since the gastric bypass surgery. Tr. 199. Plaintiff saw Dr. Graber again on August 20, 2007, complaining of intermittent crampy abdominal pain. Dr. Graber recommended videoscopic exploration to look for internal hernias or unusual twists from adhesions. Tr. 210. That exploratory laparoscopy procedure was performed on August 21, 2007 by Dr. Graber, who found cystic ovaries, no internal hernias, no adhesive disease, normal appendix, normal uterus, and that plaintiff's entire colon was slightly dilated consistent with chronic narcotic use. Dr. Graber could find no reason for plaintiff's pain. Plaintiff discharged on August 23, 2007, with instructions for no heavy lifting. Plaintiff was also instructed to quit smoking, and was given a prescription of Chantix to facilitate the process, with instructions for its use. Tr. 211-12.

On September 6, 2007, Dr. Fung saw plaintiff for anemia, asthma and abdominal pain. Tr. 237. On September 13, 2007, plaintiff once again presented to the emergency room with a complaint of abdominal pain, and a pain assessment of eight out of ten, with quivering chin, clenched jaw, uneasy, restless and tense legs, and was squirming and shifting back and forth. For "history of present illness," the record indicates "history of ovarian cysts." Tr. 219. A nursing note asserts that plaintiff stated, "this has nothing to do with Dr. Graber[,] it's my ovaries." Tr. 224. A real-time trans-abdominal ultrasound examination of the pelvis was performed on September 14, 2007, which revealed a "normal sonographic appearance of the female pelvis." Ovaries were normal in size and vascularity. After the ultrasound, plaintiff reported a pain level of ten out of ten. Plaintiff was discharged that day. Tr. 226, 230.

On November 6, 2007, Dr. Fung treated plaintiff for left side abdominal pain, insomnia, anxiety, depression and dyspepsia. Plaintiff complained that the Lexapro was not holding her, and Dr. Fung changed her prescription to Cymbalta, with a reference to a counselor. Dr. Fung continued the Ambien for insomnia and stated that plaintiff was taking Prevacid for dyspepsia. Tr. 231.

A psychiatric evaluation was performed at Community Health and Behavioral Services on November 28, 2007 by Jeanne A. Shapiro, Ph.D. Her diagnosis was bipolar disorder, panic disorder, and adjustment disorder with anxious mood; borderline intellectual functioning; and abdominal problems, knee problems, and back pain. In her medical source statement, Dr. Shapiro opined that "[v]ocationally, the claimant may have difficulty at times adequately understanding and following some instructions and directions well as completing some tasks due to attention and concentration deficits secondary to bipolar disorder and anxiety." Tr. 315-16. "She may have difficulty interacting appropriately with others due to emotional liability. Attending work or maintaining schedule may be difficult given the severity of her psychiatric symptoms. She does not appropriately manage stress." Tr. 315.

Kalyani Ganesh, M.D., completed an internal medicine examination of plaintiff on December 4, 2007 at the request of the Division of Disability Determination. Dr. Ganesh diagnosed status post gastric bypass surgery; status post cholecystectomy [gall bladder surgery]; status post exploratory laparoscopy; persistent abdominal pain; asthma; and status post left knee surgery. Dr. Ganesh's medical source statement stated that plaintiff has no gross limitation to sitting, standing or walking, and has a mild to moderate limitation for lifting, carrying, pushing, and pulling. Tr. 320.

A psychiatric review was performed on January 7, 2008 by non-examining psychiatrist Z. Mata, who opined that plaintiff had mild restriction of daily living activities, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence or pace. Tr. 331. Mata's functional capacity assessment stated that "[e]vidence in file does not support any marked limitations in any of the four basic areas needed for unskilled, entry level work where she would not have to work closely with others." Tr. 337. Plaintiff was treated by psychiatrist Firooz Tabrizi, M.D. from September 8, 2008 through January 29, 2009 for complaints of, inter alia, anxiety and panic attacks, poor sleep, depression, anger, sadness, lack of appetite and frequent crying. Dr. Tabrizi diagnosed generalized anxiety disorder and recommended individual psychotherapy and drug therapy. Tr. 370-78.

Plaintiff had x-rays taken of her spine on January 27, 2009, which revealed "17 degrees of dextroscoliosis ... at the thoracolumbar junction. There is associated asymmetrical disc space narrowing near the apex of the curvature. This study is otherwise normal." Tr. 357. Plaintiff underwent physical therapy from February 11, 2009 through March 2, 2009 with physical therapist Roger W. Herbowy, PT. On February 11, Herbowy noted that plaintiff had received previous physical therapy from his facility in October through December of 2008, was sporadic in keeping her physical therapy appointments, and he noted that plaintiff's condition had worsened. Herbowy wrote that "[a]s she presents herself today, she is much more disabled secondary to lumbarsacral neuropathy." He assessed plaintiff's condition by saying, "I think at this point she certainly shows some neurological deficit which was not the same as when I saw her on 12/16/08." Tr. 360. On March 2, 2009, Herbowy opined that plaintiff has no significant change in status, and that she has severe muscle spasms and is in obvious discomfort. Tr. 359.

Plaintiff underwent an MRI on March 2, 2009, and the impression arrived at by the radiologist was (1) "Broad based disc herniations are noted at L3-5, L4-5 and L5-S1 ... While the disc bulges and disc herniations abut [sic] the descending nerve root sheaths bilaterally at L4-5 and L5-S1 and on the left at L3-4, no direct nerve root compression is visualized," and (2) "there is mild degenerative disc and bony change throughout the lumbar spine and moderate degenerative bony change throughout the lower ...

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