The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
David C Martin ("Plaintiff") brought this suit under the Social Security Act ("Act"), 42 U.S.C. § § 405(g), 1383(c)(3) to review a final determination of the Commissioner of Social Security ("Commissioner")denying his application for disability insurance benefits "DIB")and Supplemental Security Income ("SSI"). Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") denying his applications for benefits was not supported by substantial evidence and was contrary to the applicable legal standards. The Commissioner argues that the decision was supported by substantial evidence and made in accordance with the correct legal standards. Pursuant to Northern District of New York General Order No. 8, the Court proceeds as if both parties had accompanied their briefs with a motion for judgment on the pleadings.
Plaintiff, David C. Martin (hereinafter "Plaintiff') was born on November 18, 1967.(Tr. 30). He contends that he suffers from an anxiety disorder manifested by dizziness, cervical radiculopathy, right shoulder pain and headaches. January 8, 2007 is Plaintiff's alleged onset date of disability. Plaintiff was formerly employed doing building maintenance. He left school in the 11th grade, completing a GED sometime thereafter (Tr. 30).
Plaintiff filed an application for Social Security Disability benefits on June 4, 2007.(Tr. 108-119). He alleged a disability due to a pinched nerve in his neck, minimal use of his right arm, panic attacks, anxiety disorder, dizziness and light headedness (Tr. 134). Plaintiff's claim was initially denied on August 29, 2007. (Tr. 66-69). A request for reconsideration was filed on September 9, 2007 and a request for a hearing was filed on September 12, 2007. (Tr. 72-75). Thereafter a hearing was held before Administrative Law Judge Elizabeth W. Koennecke on September 3,2009 via video conference with the Plaintiff appearing in Watertown, New York and ALJ Koennecke appearing in Syracuse, New York. Plaintiff appeared with counsel and testified as to his disabilities and conditions. (Tr. 26-62). ALJ Koennecke issued a decision dated October 19, 2009 finding that Plaintiff is not disabled. (Tr. 4- 20). Plaintiff's counsel made a request for review of the Administrative Law Judge's decision on December 12, 2009. (Tr. 21-25). The Appeals Council affirmed the Administrative Law Judge's decision on September 9, 2010. (Tr. 1-3). This action followed.
The following facts are taken from Plaintiff's brief, to which Defendant consents. See Def. Mem. of Law at 2.
Beginning January 8, 2007, Plaintiff reported serious problems with dizziness and neck spasms. He began treatment at the Mountain Medical Urgent Care Center in Watertown, New York on January 8, 2007, continuing treatment through January 31, 2007. (Tr. 231-245). Plaintiff's symptoms of severe dizziness and nausea were noted, as well as his complaint that these conditions were aggravated by standing. (Tr. 235). The Plaintiff was seen at the Samaritan Medical Center Emergency Department on February 6, 2007 for an allergic reaction to Lexapro. (Tr. 246-250). He was then seen in the emergency room at Carthage Area Hospital on March 13, 2007 for symptoms of nausea which were believed to be attributable to an antidepressant medication he was taking. He was seen again at the Carthage Area Hospital emergency department on April 3, 2007 for complaints of severe pains in the neck radiating up to the base of his skull and dizziness. X-rays revealed degenerative arthritis at C5-C6. It was recommended that an MRI be ordered. (Tr. 257-258).
Plaintiff also underwent an esophagogastroduadenoscopy in an effort to diagnose his nausea. The test results were normal. (Tr. 259-260). Plaintiff reported again to the Carthage Area Hospital emergency department on April 15, 2007 complaining of having headaches and dizziness for three months as well as facial numbness. (Tr. 265-273). A CT scan was taken of his brain which was read as otherwise unremarkable. (Tr. 273). His discharge diagnosis was poorly controlled hypertension with dizziness - chronic, with possible vertigo and rule out intracranial bleed and intracranial mass, possible anxiety with non-compliance. (Tr. 267-268).
Plaintiff reported again to the Carthage Area Hospital emergency department on May 28, 2007 with complaints of backache. An x-ray of his lumbosacral spine revealed no evidence of pathology, fractures, subluxation or dislocation. (Tr. 290-291). Plaintiff was diagnosed with a backache due to possible disarrangement or ligamentous sprain. (Tr. 290-291). X-rays and an MRI were taken of his thoracic and lumbo-sacral spine on May 28,2007 and May 31, 2007. Minimal decreased disc signal was observed at T8-9 and minimal disc bulge observed at L3-4 and L4-5. (Tr. 294-296).
Plaintiff began treating with Dr. Mirza Ashraf on April 16, 2007. Dr. Ashraf noted Plaintiff's complaints of dizziness was "so bad I can't do anything", as well as neck and right shoulder pain. (Tr. 319). Dr. Ashraf ordered an MRI of Plaintiff's cervical spine which revealed: "degenerative disc disease mostly at C5-6 with superimposed mild midline disc herniation, causing moderate crowding of the thecal sac ... moderate right and mild left neural foraminal narrowing in C5-6 ... small or mild narrowing left C3-4 neural foramen ... thecal sac is relatively small in C3-4 and C4-5 [and] there is straightening of the cervical lordosis." (Tr. 288-289).
Dr. Ashraf completed an assessment of Plaintiff's ability to function in June 2007 noting Plaintiff was limited in his ability to lift and carry 10 pounds; can stand and/or walk less than two hours per day; is limited to sitting up to six hours per day; and is limited in his ability to push and/or pull. (Tr. 274-280).
Plaintiff began treating at the Philadelphia Clinic on March 29, 2007 with Dr. Kahn, who ordered the MRIs of Plaintiff's thoracic and lumbar spine referenced above. Dr. Kahn also referred Plaintiff to Dr. Latif, a neurologist in Watertown, and the University Hospital-Orthopedic Surgery Unit in Syracuse. Plaintiff was seen at the Philadelphia Clinic eight (8)times between February 6, 2007 and May 29, 2007 for anxiety, vertigo, abdominal pain, heartburn, and dizziness, in addition to back pain. Plaintiff was prescribed Paxil and Lexapro for his anxiety/panic disorder. (Tr. 325-342). Plaintiff declined to take Lexapro due to a bad reaction following an incident in February. (Tr. 332). The Philadelphia Clinic also prescribed Meclizine to the Plaintiff for dizziness. (Tr. 33l).
Plaintiff was examined and treated by Dr. Kevin Scott, an orthopedist with North Country Orthopedic Group from May 2, 2007 July 9, 2008. (Tr. 483-503). Dr. Scott noted, upon reviewing Plaintiff's MRI of his cervical spine during the examination on May 2, 2007, an osteophytic complex at C5-6, and small midline disc herniation, as well as moderate right and left neuroforaminal narrowing. (Tr. 483). Dr. Scott concluded that Plaintiff was suffering from cervical spine disease with right upper extremity radiculopathy. (Tr. 483). A nerve conduction test was ordered and conducted on May 17,2007, which revealed "electrophysiologic evidence in this study of chronic right C5-6 radiculpathy". (Tr. 485,498-499). The test results also revealed an old left median neuropathy distal in Plaintiff's midpalm. Dr. Scott referred Plaintiff to a neurologist, Dr. Latif, regarding his symptoms of dizziness, and to the Pain Clinic for nerve injections in his cervical spine area. (Tr. 486). Dr. Scott also referred Plaintiff to the Ear, Nose and Throat Clinic in Syracuse for examination and treatment of his long history of vertigo and right ear fullness and pain. (Tr. 487). During his examination on December 12, 2007, Dr. Scott reviewed an MRI of Plaintiff's right shoulder which revealed degenerative changes and a small partial-thickness tear of the distal supraspinatus tendon and degenerative fraying of the anterior labrum. (Tr. 490). Dr. Scott noted these observations in the context of Plaintiff's complaints of pain in his neck radiating down into his right arm and right deltoid region. (Tr. 490). Plaintiff was prescribed physical therapy and treatment through the Pain Clinic. (Tr. 490).
Neurologist Dr. Abdul Latif examined Plaintiff on July 2, 2007 following a referral from Dr. Scott to evaluate his complaints of dizziness. Dr. Latif's examination was inconclusive; he ordered additional tests and prescribed Depakote for treatment of his headaches. (Tr. 224-225).
Plaintiff was examined on July 9, 2007 by Dr. Ivan MontalvoOtano for pain management in his cervical spine. Dr. Montalvo-Otano noted some reduction of sensation in Plaintiff's legs, and he noted the findings of disc herniation and radiculopathy in Plaintiff's MRIs and EMG. (Tr. 344). No pain management treatment was elected at this time. Plaintiff saw Dr. Montalvo again on November 19, 2007 and December 6, 2007. Treatment options were discussed, and it was decided that cervical epidurals would be given if the orthopedic intervention failed and it was determined that the pain was coming from his spine. (Tr. 424-429).
Plaintiff was also seen at the Emergency Department of University Hospital on June 21, 2007 and July 20, 2007 for his symptoms of dizziness with nausea and tinnitus. He was referred to the ENT clinic at University Hospital where he was seen on August 3, 2007. The exam was conducted by Dr. Charles Woods who found no inner ear problem and concluded that Plaintiff does not have true vertigo or room-spinning vertigo. (Tr. 354-355). No specific recommendations could be made at that time.
Plaintiff was also seen by Dr. Huang at the North Country Orthopedic Group on June 23, 2008 concerning the pain in his neck and right upper trapezius region. Dr. Huang noted Plaintiff was experiencing pain in certain range of motion tests of his neck, shoulder and upper back. He diagnosed Plaintiff with cervical spondylosis, with degenerative and herniated disc, pain and radiculpathy. (Tr. 492-493). Dr. Huang discussed with the Plaintiff the possibility that his vertigo was attributable to his spinal problems. (Tr. 540). In his examination of July 9, 2008, a lipoma was found on his upper back. (Tr. 495). Plaintiff was referred to North Country Surgical Specialists for removal of the lipoma. (Tr. 497). Plaintiff's condition continued to be followed by the North Country Orthopedic Group through 2008 and 2009. They put continued treatment on hold, pending a diagnosis of his dizziness. (Tr. 524). An additional MRI of his cervical spine was taken on January 22, 2009 which revealed C5-C6 broad-based disc bulge with subligamentous disc herniation with some spinal stenosis and mild bilateral foraminal encroachment; C4-5 and C3-4 disc disease including a central small sub ligamentous disc herniation and mild central canal stenosis, but no foraminal encroachment. (Tr. 528-529). Plaintiff underwent a needle electromyogram (EMG) on February 24, 2009 which was noted as a mildly abnormal study, raising the possibility of mild, chronic right C5-6 radiculpathy and mild, chronic, left C7 radiculpathy. (Tr. 53 1-535). Treatment plans were discussed with the Plaintiff, including a surgical option; Plaintiff elected a more conservative route including physical therapy and electrical stimulation. (Tr. 537). Plaintiff was also prescribed a cervical traction device. (Tr. 541).
Plaintiff was examined and treated at Mercy Center for Behavioral Health and Wellness from April 26, 2008 through July 29, 2009. He was first seen by Dr. Kimball on April 21, 2008 where he was given a psychological assessment, and then a psychiatric assessment by Dr. Camillo on April 26, 2008. (Tr. 512-520). Therein Dr. Kimball noted Plaintiff's symptoms of dizziness, shaking, feeling off-balance, heavy panic attacks, "fear feeling", anxiety, and fear of going to public places. He diagnosed Plaintiff with panic disorder with agoraphobia, social phobia, generalized anxiety and depressive disorder. (Tr. 519). He gave Plaintiff a Global Assessment of Functioning ("GAF") *fn1 score of 35, concluding:
"The anxiety symptoms are quite severe. He has extreme avoidance behaviors. He is getting a thorough physical exam on April 30, 2008. It is important to totally rule out any medical cause. However, most likely anxiety is causing his difficulties. He is being referred to our staff psychiatrist to confirm this diagnosis and to determine if other medications may be helpful. He also needs anxiety management treatment. He needs intensive counseling for anxiety management." (Tr. 520).
Plaintiff was then seen by Dr. Camillo on April 26, 2008 who assessed him with a severe anxiety disorder, with a GAF score of 37. (Tr. 515). Claimant was prescribed Klonopin and Buspar, and received regular psychotherapy. (Tr. 521). An annual assessment prepared by Nurse Joyce Comes on April 2, 2009 confirmed that Plaintiff was to continue psychotherapy and receive medications. (Tr. 510-511). She gave him a GAF score of 55 on that date. Nurse Comes noted that Plaintiff had benefitted from cognitive behavioral therapy such that it enabled him to go deer hunting in the Fall of 2008, although she noted that he continued to suffer from dizziness which is affected by his prior physical activities from the day before. (Tr. 510). Dr. Camillo on two occasions ...