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Daniel Tilbe v. Michael J. Astrue

July 17, 2012


The opinion of the court was delivered by: Hon. Norman A. Mordue, U.S. District Judge



Plaintiff Daniel Tilbe brings this action under the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the decision by defendant Michael J. Astrue, Commissioner of Social Security, to deny his application for supplemental security income benefits ("SSI") and disability insurance benefits ("DIB"). Plaintiff alleges that he has been disabled since February 1, 2005, due to bilateral carpal tunnel syndrome, asthma, obesity, borderline intellectual functioning with reading disorder, lumbar radiculopathy, shoulder impingement syndrome, and sleep apnea. Administrative Transcript "T." at 86-95.

On October 23, 2006, plaintiff filed an application benefits under the Social Security Act. Following an initial denial of his application, T. 51-52, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). T. 61-62. On December 15, 2008, ALJ Michael Devlin held

a hearing. T. 20-50. Plaintiff appeared at the hearing with his attorney. T. 20. On February 19, 2009, the ALJ issued a decision denying plaintiff's application. T. 10. On July 16, 2010, the Appeals Council denied plaintiff's request for review making the ALJ's decision the Commissioner's final determination. T. 1-5. Plaintiff filed this action on July 26, 2010.

This matter was referred to United States Magistrate Judge Andrew T. Baxter for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(d). Magistrate

Judge Baxter recommended that this Court enter judgment on the pleadings affirming the Commissioner's decision denying disability benefits and dismissing plaintiff's claims. Presently before the Court are plaintiff's objections to the Report and Recommendation.


Magistrate Judge Baxter included a thorough summary of the medical evidence, non-medical evidence, and hearing testimony. The Court incorporates this summary, to which there is no objection, here:


A. Anna Marie Ward, M.D.

The earliest medical report in this case is from physician Anna Marie Ward, who treated plaintiff from May 11, 2005 until July 3, 2006. (T. 178-91). On May 11, 2005, approximately three months after plaintiff claims that he became disabled, Dr. Ward treated him for wrist pain. (T. 190-91). Dr. Ward stated that plaintiff had always had neck pain from a "prior accident." (T. 190). She found good range of motion and reflexes in the left shoulder, but with some tenderness. Id. She also diagnosed carpal tunnel syndrome on the left side. (T. 191). On January 23, 2006, Dr. Ward stated that plaintiff was having breathing problems at night, and in February, she scheduled a sleep study for March. (T. 184, 186). On May 31, 2006, Dr. Ward noted that plaintiff had pain in his left hand, carpal tunnel syndrome, and trigger fingers. (T. 181).

B. Hospital Records

On February 10, 2006, plaintiff was admitted to Chenango Memorial Hospital, stating that, the day before, he woke up on the floor at the bottom of the cellar stairs. (T. 166). Plaintiff stated that he had no recollection of what happened, and his injuries consisted of a sore lump on his head with a small abrasion, a sore back, and a sore abdomen. (T. 166). His examination showed a contusion and small abrasion in the

parietal area of the scalp, some tenderness in the periumbilical area of the low back, and some tingling in the right leg and foot, on light touch. (T. 166-67). A CT scan of plaintiff's brain was normal, and an x-ray of plaintiff's lumbosacral spine showed no acute changes. (T. 167). His EKG showed sinus bradycardia with questionable left ventricular hypertrophy and questionable anterior infarct of undetermined age. (T. 167). His strength and motion were normal. (T. 169). He was discharged from the hospital the following day on his usual diet and "activity as tolerated." (T. 167). He was given Vicodin for pain, and he resumed his Lisinopril,[FN3: Lisinopril is a medi c a t i on us e d t o t r e a t high blood pressure.] and albuterol inhaler. Id.

Dr. Anthony Chicoria saw plaintiff about his wrist on August 16, 2006. (T. 192-93). An EMG study showed that plaintiff had significant carpal tunnel syndrome, for which plaintiff had surgery on August 24, 2006. (T. 192-96). The operative report showed that there was severe nerve compression on the left side, but the release was successful. (T. 193, 196). In addition to the carpal tunnel release, the doctor performed a release of the A1 pulley of the third and fourth fingers. (T. 193).

C. Dr. Kalyani Ganesh

On December 1, 2006, Dr. Kalyani Ganesh conducted an internal medicine consultative examination. (T. 203-210). Plaintiff's diagnoses were sleep apnea, status post left carpal tunnel surgery, and hypertension. (T. 206). Dr. Ganesh noted that plaintiff had left carpal tunnel surgery and would likely need to have surgery on the right side because he was still experiencing some numbness and pain. (T. 203). Plaintiff was five feet, six inches tall and weighed 326 pounds. (T. 204). Plaintiff was able to walk on his toes, but not his heels and could squat only 50 percent. (T. 204). His gait and stance were normal, and he did not use any assistive devices. Id. He needed no help changing for the examination, getting on and off the examination table, and was able to rise from his chair without difficulty. Id.

A musculoskeletal examination of the cervical spine showed full flexion, full extension, lateral flexion of 25 degrees bilaterally, and full rotary movement bilaterally. (T. 205). There was no scoliosis, kyphosis, or abnormality of the thoracic spine. Id. The lumbar spine showed full flexion, extension, lateral flexion, and full rotary movement bilaterally. Id. Straight leg raising was negative on both sides, and there was full range of motion of the shoulders, elbows, forearms and wrists on both sides. Id. Plaintiff also had full range of motion in his hips, knees, and ankles. Strength was 5/5 in his upper and lower extremities, and there were no evident sublaxations, contractures, ankylosis or thickening. His joints were stable and nontender. Id.

Biceps and triceps reflexes were absent, and his ankle jerks were absent, but patellar reflexes were normal, and no motor or sensory deficit was noted. (T. 205). His hand and finger dexterity were intact, and his grip strength was 5/5 bilaterally. Dr. Ganesh stated that muscle atrophy was not "evident." (T. 205). Spirometry testing was normal, and the doctor noted that plaintiff put forth "little" effort. Id. Dr. Ganesh's conclusion was that plaintiff's prognosis was "fair," and that there were "no gross physical limitation . . . to sitting, standing, walking, or use of upper extremities." (T. 206).

D. Dennis M. Noia, Ph.D.

On the same day as Dr. Ganesh's examination, plaintiff also underwent a consultative "Intelligence Evaluation" by Dennis Noia, Ph.D. (T. 198-202). Dr. Noia conducted various tests. (T. 200). The intelligence test results indicated that plaintiff had a Verbal Scale IQ of 77, a Performance Scale IQ of 72, and a Full Scale IQ of 72.

(T. 200). Overall, plaintiff was functioning in the borderline range of intelligence. Id. Plaintiff's reading tests showed that he read at a second grade equivalent, and that this was significantly lower that his overall level of intellectual functioning, suggesting the presence of a reading disorder. Id.

Dr. Noia concluded that vocationally, the plaintiff appeared to be capable of understanding and following simple instructions and directions. (T. 201). He also concluded that plaintiff would be able to perform simple and some complex tasks with supervision and independently. (T. 201). He was capable of maintaining attention and concentration for tasks as well as being able to regularly attend to a routine and maintain a schedule. Id. He appeared to be capable of learning new tasks and making appropriate decisions. Id. He appeared to be capable of dealing with stress and to be able to interact "moderately well" with others. Id. Dr. Noia concluded that the results of the examination were "consistent with borderline intellectual functioning and a reading disorder." (T. 201).

E. Dr. Steven A. Levine, D.O.

Plaintiff was treated for his sleep apnea by Dr. Levine. On April 14, 2008, plaintiff was admitted to the Mohawk Valley Sleep Disorders Center for a consultation. (T. 241-43). He was tested on May 12, 2008 with a continuous positive airway pressure (CPAP) machine. (T. 244-50). The CPAP machine eliminated the obstructive sleep apnea syndrome with "significant improvement in sleep quality," and plaintiff reporting that his sleep was "'much better than average.'" (T. 245). In June of 2008, Dr. Levine reported that plaintiff's sleep apnea syndrome was eliminated with the CPAP machine and was "currently . . . doing extraordinarily well." (T. 239) (emphasis added). At that time, plaintiff had also stopped smoking and was considering bariatric surgery for his morbid obesity. Id.

F. Michael Walsh, M.D. [FN4: Some of the reports refer to Michael Walsh, M.D., and other reports refer to Michael Walsh, D.O. (Compare T. 264 with T. 301).]

After the ALJ hearing, plaintiff's counsel submitted some additional medical records that became part of the administrative transcript. (T. 260-340). Dr. Walsh began seeing this plaintiff in February of 2008 (T. 335-40), and saw him every three to five months. (T. 261). Plaintiff was examined on June 2, 2008. (T. 305-08). In that report, Dr. Walsh stated that there were "positive impingement signs bilaterally" and straight leg raising was positive on the left. (T. 307). He "added" the diagnosis of left shoulder impingement syndrome and lumbar radiculopathy. (T. 307). In the comments section of his June 2 report, Dr. Walsh stated that plaintiff was morbidly obese, and had degenerative spinal changes with limited functional capacity. He recommended physical therapy for his left shoulder. (T. 307).

In a "functional capacity" evaluation, also dated June 2, 2008, Dr. Walsh found that plaintiff could lift ten pounds occasionally; stand or walk two hours per day; and sit for less than six hours per day. (T. 267). Dr. Walsh checked boxes indicating "abnormal" on various abilities, including repetitive stooping and bending for long periods; remaining seated for long periods; crouching or squatting; and climbing. (T. 267). However, the doctor checked boxes indicating "normal" as to all mental abilities, including understanding, carrying out and remembering instructions; responding to co-workers; meeting quality standards and production norms; and sustaining adequate attendance. Id. Plaintiff's manipulative abilities were also considered "normal." Id.

In a report, dated October 8, 2008, plaintiff's "chief complaint" was listed as "disability paperwork." (T. 298). Dr. Walsh stated that plaintiff reported pain from the lumbar spine radiating to his left lower extremity and the lateral aspect of his lower leg. (T. 298). Plaintiff stated that he felt this pain intermittently to the level of his right knee also. Id. The doctor noted that plaintiff "had an MRI completed several years ago" which showed "herniation at L5-S1." Id. There was no chest pain or shortness of breath, and no sensory loss reported. Id. An examination showed positive straight leg raising bilaterally, but normal gait. (T. 300). The examination also showed diminished sensation to pinprick in his feet, but his strength was symmetric. (T. 300).

In an RFC evaluation, dated October 8, 2008, Dr. Walsh stated that plaintiff could sit, stand, and walk 1-2 hours. (T. 304). The same RFC evaluation stated that plaintiff could not lift, carry, push, pull, bend, or squat "in any capacity." Id. He had

no limitations hearing, speaking, or using his hands. Id. All mental abilities were intact, except for the ability to maintain basic standards of personal grooming, which the doctor found that plaintiff was able to do with some limitations (2-4 hours). Id.

In his December 15, 2008 RFC evaluation, Dr. Walsh listed the following diagnoses: diabetes mellitus; obstructive sleep apnea; morbid obesity; and left lumbar radiculopathy. (T. 261). Due to these impairments, Dr. Walsh stated that plaintiff had a variety of symptoms. (T. 261). These symptoms included fatigue, difficulty walking, excessive thirst, swelling, muscle weakness, extremity pain and numbness, and dizziness or loss of balance. Id. In paragraph 6, entitled "Clinical Findings," Dr. Walsh wrote that plaintiff had decreased strength in his left hand and required an assistive device for "ambulation steadiness." Id.

Dr. Walsh concluded that plaintiff's impairments would frequently interfere with the concentration and attention needed to perform even simple work tasks, but he could tolerate "moderate work stress." (T. 262). Dr. Walsh stated that plaintiff could sit for less than two hours total in an 8-hour work day; could walk less than one block; could only sit ten minutes at a time; could only stand fifteen minutes at a time, and must walk "around" every fifteen minutes for two minutes. (T. 263). Plaintiff would need to shift positions "at will" and would have to take unspecified unscheduled breaks during the day. Id. On his unscheduled breaks, plaintiff would have to sit quietly for fifteen minutes before returning to work.

Dr. Walsh also concluded that plaintiff could lift and carry ten pounds, could rarely twist or stoop, and could never crouch, squat, or climb. (T. 263-64). The doctor did find that plaintiff would have no significant limitations reaching, handling, or fingering. (T. 264). However, the doctor then stated that plaintiff could only use his hands 50% of the time for grasping, turning or twisting objects; 70% of the time for fine manipulations; and could only use his arms 20% of the time for reaching. (T. 264). Finally, Dr. Walsh stated that plaintiff's impairments were likely to produce "good days" and "bad days," and that, based on this estimate, plaintiff would have to be out of work about "three days per month." Id.

G. Kenneth Graniero, M.D.

On June 11, 2008, plaintiff had a bariatric surgery consultation with Dr. Kenneth Graniero, M.D. (T. 276-78). In an examination, plaintiff "denie[d]" back pain, joint pain, joint swelling, muscle cramps, muscle weakness, stiffness or arthritis, paralysis, weakness, paresthesias, syncope, vertigo, and a variety of other symptoms.

(T. 276) (emphasis added). A[] physical examination showed full range of motion, no instability, and no weakness in any part of the body. (T. 277). A neurologic assessment showed no focal deficits, deep tendon reflexes were symmetric, and sensation was grossly intact. (T. 277). Dr. Graniero's psychiatric assessment showed that plaintiff's judgment and insight were "intact," he was properly oriented to time, place and ...

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