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Barbara Aceto v. Commissioner of Social Security

November 19, 2012


The opinion of the court was delivered by: Scullin, Senior Judge



Plaintiff brought this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner"), denying her applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff requests that the Court reverse the Administrative Law Judge's ("ALJ") decision or remand the case to a new ALJ.

Currently before the Court are Plaintiff's and Defendant's cross-motions for judgment on the pleadings or, in the alternative, for summary judgment. See Dkt. Nos. 18, 22.


A. Procedural history

On February 10, 2005, Plaintiff filed applications for DIB and SSI under the Act, alleging cervical dorsal strain, neck and back sprain, arthritis and bursitis, anxiety/depression, severe headaches, pain, and nerve damage. See Administrative Record ("AR") at 61-65, 76. In both applications, Plaintiff alleged an onset date of August 30, 2004. See id. at 61, 73. The Social Security Administration ("SSA") denied Plaintiff's applications on June 16, 2005. See id. at 38-42, 391-93. Plaintiff thereafter filed a timely request for a hearing before an ALJ. See id. at 43-44. ALJ Robert E. Gale conducted that hearing in Utica, New York on May 1, 2007, at which Plaintiff appeared with a non-attorney representative and testified. See id. at 447.

In a decision dated May 17, 2007, the ALJ found Plaintiff not disabled and thus not entitled to DIB and SSI. See id. at 21-33. ALJ Gale stated that he considered all the evidence in the record and made the following findings:

1. Plaintiff had not engaged in substantial gainful activity since August 30, 2004, the alleged onset date.

2. Plaintiff had the following severe combination of impairments: residuals status post cervical spine fusion at C6-7, status post lumbar discectomy at L5-S1, and depression.

3. Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings").

4. Plaintiff had the residual functional capacity ("RFC") to perform the full range of sedentary work.

5. Plaintiff was unable to perform her past relevant work.

6. Plaintiff was born on December 7, 1962, and was forty-one years old at the alleged onset date, which is defined as a younger individual aged eighteen to forty-four.

7. Plaintiff had at least a high school education and communicated in English.

8. Transferability of job skills was not an issue because Plaintiff's past relevant work was unskilled.

9. In light of Plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform.

10. Plaintiff had not been under a disability as defined by the Act since August 30, 2004, the alleged onset date.

See AR at 23-32.

The ALJ's decision became the Commissioner's final ruling on December 11, 2007, when the Appeals Council denied Plaintiff's request for review. See id. at 7. Notably, Plaintiff submitted additional evidence to the Appeals Council, from the following institutions: (a) St. Joseph's Hospital dated August 30, 2004, see id. at 394-402; (b) St. Mary's Hospital dated February 11, 2005, see id. at 403-11; and (c) Slocum-Dickson Medical Group, P.L.L.C. ("Slocum-Dickson") dated May 3, 2007, to October 20, 2007, see id. at 412-46, all of which were received in the administrative record, see id. at 10. See also Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 2000) (holding that "new evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision").

On February 11, 2008, Plaintiff commenced this action. See Dkt. No. 1. Plaintiff filed a supporting brief on July 20, 2009. See Dkt. No. 18. The Commissioner filed an answer on June 26, 2008, and a brief in opposition on September 25, 2009. See Dkt. Nos. 13, 22.

B. Plaintiff's medical history

Dr. Fadi Joseph Bejjani, a specialist in pain and physical medicine and rehabilitation, began treating Plaintiff on August 20, 2003, for neck and back injuries that she sustained in a motor vehicle accident on February 25, 2001. See ARat 143. After examining Plaintiff, Dr. Bejjani diagnosed her with a cervical herniated disc at C5-6, cervical spondylosis at C5-6-7, and probable lumbar and thoracic disc displacement with radiculitis. See id. at 145. For her pain, Dr. Bejjani prescribed her Bextra and Lidoderm patches and gave her a neckease cervical pneumatic decompression brace and an interferential TENS unit. See id. He also requested magnetic resonance imagings ("MRI") of Plaintiff's lumbar spine and thoracic spine. See id.

On September 16, 2003, Dr. Bejjani noted that the MRI of Plaintiff's lumbar spine showed two bulging discs at L4-5 and L5-S, but the MRI of her thoracic spine was normal. See id. at 142. Dr. Bejjani's impressions were lumbar disc displacement with radiculitis, cervical herniated disc at C5-6, and thoracic spondylosis. See id. To treat Plaintiff, Dr. Bejjani administered a nonsteroidal anti-inflammatory injection and performed acupuncture. See id.

Approximately two months later on November 10, 2003, Dr. Bejjani administered anti-inflammatory injections in Plaintiff's left upper thoracic, left upper cervical, and right lower lumbar. See id. at 141. Despite the injections, Plaintiff complained of pain radiating down her left arm the following day. See id. at 140. Dr. Bejjani thus prescribed Valium to Plaintiff and removed her from work until November 25, 2003. See id. at 141, 152.

Due to Plaintiff's continued complaints of pain, Dr. Bejjani administered a cervical interlaminar epidural injection on November 17, 2003. See id. at 139. At two follow-up appointments in December 2003, Plaintiff reported considerable improvement in her neck due to the epidural injection. See id. at 136, 138. Plaintiff, however, complained of back pain and "popping" in her left acromiclavicular joint. See id. at 136, 138.

On November 20, 2003, Plaintiff told Dr. Cheryl Mattern, her primary care physician at Slocum-Dickson, that she "felt much better" after the epidural injection. See id. at 152. Plaintiff, however, complained about depression, mood swings, and difficulty sleeping. See id. Dr. Mattern's assessment was depression, right sided cervical radiculopathy, tobacco abuse, and degenerative disc disease; and, per Plaintiff's request, Dr. Mattern prescribed Plaintiff Lexapro, an anti-depressant medication. See id.

On December 3, 2003, Dr. Bejjani performed a four-level discogram on Plaintiff's back at L2-3, L3-4, L4-5, and L5-S1. See id. at 137. On December 31, 2003, Dr. Bejjani performed a percutaneous decompression discectomy at L5-S1. See id. at 135-36. Plaintiff, thereafter, had nine appointments with Dr. Bejjani between February 2004 and December 2004. See id. at 126-34. On February 13, 2004, Plaintiff reported being "almost pain-free and feeling much improved in her back and neck." Id. at 134. In fact, Plaintiff had returned to work in January 2004 and started exercising at a gym. See id. at 131, 134. Plaintiff, however, reported, among other things, that she (a) stopped therapy in March 2004 due to working overtime and being busy with her children, see ARat 133; (b) had "good and bad days" on May 21, 2004, see id. at 131; (c) experienced significant pain in her knees, shoulder, and neck on July 8, 2004, see id. at 130; and (d) had been working overtime and had a bout of depression on August 3, 2004, see id. at 129. On November 3, 2004, Plaintiff complained about neck and back spasms and a seven-out-of-ten pain level in her neck and arms, which Dr. Bejjani treated with cervical and caudal epidural injections. See id. at 174.

On July 8, 2004, Dr. Timothy J. DelMedico, a chiropractor, evaluated Plaintiff's health status and treatment effectiveness. See id. at 166. Dr. DelMedico's objective findings included, among other things, (a) positive bilateral nerve root compression; (b) moderate tenderness to spine palpation; (c) full flexion, extension and lateral flexion of the cervical spine; (d) decreased rotation of the cervical spine; and (e) normal range of motion of the lumbosacral spine. See id. at 166-67. Dr. DelMedico's treatment plan included an Activator adjustment at Plaintiff's lumbar region, electronic muscle stimulation of the spine, and hot packs. See id. at 167. Although Dr. DelMedico wanted to see Plaintiff two times per week for six months, Plaintiff inconsistently attended her appointments. See id. at 168-71.

On August 30, 2004, Plaintiff voluntarily went to St. Joseph's Hospital Health Center in Syracuse, New York for her depression. See id. at 394-402. Plaintiff explained that, because of multiple life stressors, including financial uncertainty, a misbehaving teenage daughter, and a brother being deployed to Iraq, she drove approximately sixty-five miles from her home in Frankfort, New York to Syracuse, New York to escape. See id. Dr. Laura Leso, a psychiatrist in the hospital's Comprehensive Psychiatric Emergency Program, examined Plaintiff and diagnosed her with depression and chronic pain. See id. at 304-05. Dr. Leso recommended outpatient therapy and prescribed Plaintiff anti-depressant medication. See id. at 394.

As a result of Plaintiff's behavior on August 30, 2004, Dr. Mattern removed Plaintiff from work. See id. at 128. According to treatment notes dated September 23, 2004, Dr. Mattern continued to keep Plaintiff out of work until she met with her psychiatrist, Dr. Suresh Rayancha, and her counselor, Deborah Royce, LCSW-R. See id. at 128, 160, 348. Dr. Mattern also advised Plaintiff to call 9-1-1 or go to an emergency room if she had suicidal thoughts. See id. at 160.

On October 5, 2004, Dr. Rayancha examined Plaintiff and diagnosed her with non-specified depression and posttraumatic stress disorder ("PTSD"). See id. at 172-73. Dr. Rayancha further opined that Plaintiff's physical pain aggravated her depression and caused flashbacks to her motor vehicle accident. See id. at 173. Consequently, Dr. Rayancha prescribed Plaintiff a new anti-depressant medication and advised her to continue the Valium for her pain and anxiety. See id.

On November 9, 2004, Plaintiff returned to Dr. Rayancha for medication management and psychotherapy. See id. at 178, 265. Plaintiff reported that the anti-depressant medication provided some improvement in her depression and anxiety but that her pain was still causing suicidal thoughts and aggravating her depression. See id.

Dr. Raymond Bepko, a psychologist, began treating Plaintiff on November 11, 2004, for chronic pain, depression, and anxiety. See id. at 179-82. After interviewing Plaintiff, Dr. Bepko diagnosed Plaintiff with major depression and a pain disorder associated with a general medical condition and psychological factors. See id. at 182. Dr. Bepko noted that "[s]tress plays a very significant role in her experience of pain as does her thinking about her situation and her attempts at managing her daily activity." Id. To help reduce and manage Plaintiff's pain, Dr. Bepko's treatment plan included cognitive behavioral therapy, pain and stress management techniques, and psycho-physiological self-regulation training. See id. Dr. Bepko opined that Plaintiff could achieve significant pain relief provided she stayed in treatment and made a good faith effort. See id. at 182. Thereafter, Dr. Bepko noted that Plaintiff showed progress at two of five subsequent cognitive behavioral therapy sessions he held with Plaintiff between November 23, 2004, and January 13, 2005. See id. at 186-90.

Moreover, Plaintiff visited Dr. Rayancha eight times between January 4, 2005, and December 28, 2005, for psychotherapy. See id. at 176-77, 255-61, 263-6. Although Plaintiff generally complained about depression, anxiety, mood swings, and flashbacks to her motor vehicle accident, she often commented that medication lessened these feelings. See id. Plaintiff denied being suicidal but she reported that her pain aggravated her depression and anxiety and that she had irregular appetite and sleep patterns. See id. To treat Plaintiff, Dr. Rayancha prescribed several different anti-depressant medications to find her the greatest relief. See id.

On February 11, 2005, Plaintiff left home because she felt anxious, depressed, and stressed over her finances and losing her job. See id. at 175, 262, 404, 407. She drove aimlessly and contemplated suicide, but she ultimately presented at the New York State Police barracks for help. See id. 175, 185, 206, 262, 404, 407. The police brought her to St. Mary's Hospital's emergency room in Amsterdam, New York, where she was diagnosed with recurrent major depression. See id. 175, 185, 262, 404, 406, 407, 409. Dr. Rayancha was consulted; ...

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