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Caternolo v. Astrue

United States District Court, Second Circuit

April 29, 2013

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Represented by counsel, Kathryn Caternolo ("Plaintiff" or "Caternolo"), brings this action pursuant to Title II and Title XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying her application for Supplemental Security Income ("SSI") and disability insurance benefits ("DIB"). The Court has jurisdiction over this matter pursuant to 42 U.S.C. ยงยง 405(g), 1383(c).

II. Procedural History

Caternolo filed applications for SSI and DIB on June 27, 2009, due to a severe migraine condition and back pain caused by a disc protrusion, alleging an onset date of June 15, 2009. (T.194, 198).[1] Caternolo stated that she was still in the process of obtaining a diagnosis for her pain, [2] which caused her to fall and prevented her from climbing stairs. Caternolo indicated that the migraines had become so severe and frequent that she was missing two to three days of work almost every week, leading to her termination from her job as an aide for a handicapped student. (T.198).

The applications were denied (T.70-77, 79), and on October 27, 2009, Caternolo filed a request for a hearing (T.84-85), which was held on October 4, 2010, before Administrative Law Judge ("ALJ") Barry Peffley ("the ALJ"). (T.36-69). The ALJ issued a written decision on November 4, 2010, finding that Caternolo was not disabled through the date of the decision. (T.17-26). The Appeals Council denied Caternolo's request for review on August 12, 2011 (T.4-7), making the ALJ's decision the decision of the Commissioner. This timely action followed.

III. Factual Background

A. Medical Evidence

1. Back and Hip Pain

Radiographic studies on March 17, 2009, of Caternolo's lumbosacral spine revealed "[d]isc space narrowing" at all the lumbar discs, with degenerative osteophytes and Schmorl's nodes (protrusions of the cartilage of intervertebral discs). (T.267). Degenerative change was present at the superior endplate of T12. (Id.). The impression was moderate degenerative disc changes. (Id.).

Caternolo underwent a spinal MRI on May 27, 2009, which revealed that her lumbar disc spaces were all mildly to moderately narrowed, with dessication and mild circumferential bulges at all the lumbar discs. (T.269). A focal left paracentral protrusion was impinging upon the dural sac and the emerging left S1 nerve root in the lateral recess. (Id.).

On June 25, 2009, Caternolo sought treatment from orthopedist M. Gordon Whitbeck, Jr., M.D. for pain in her low back, left groin, and thighs which she attributed originally to a motor vehicle accident as a teenager. (T.288). Then, in 2006, while lifting her 6-year-old child, the pain suddenly became worse, extending into her anterior and posterior thighs. Sitting cross-legged on the floor and pivoting on her legs caused the pain to worsen, but none of the symptoms extended past her knees. Chiropractic treatments had not helped.

Dr. Whitbeck found no tenderness in her lumbar spine, although bilateral hip examination revealed pain. Caternolo described pain in her groin radiating down her anterior thigh to her knee as well as discomfort in her buttocks and posterior thigh. (T.289). After reviewing the May 2009 MRI, Dr. Whitbeck opined that Caternolo did not have typical radiculopathy associated with her degenerative disc disease. He diagnosed bilateral atypical sciatica with lower back and hip pain. Dr. Whitbeck referred Caternolo to Frederick Kaempffe, M.D. for further evaluation of her hip pain.

On July 29, 2009, Caternolo consulted with Dr. Kaempffe, whose examination revealed that Caternolo walked with a "waddling" gait with pain at the extremes of hip rotation, worse on the right side. (T.292). Dr. Kaempffe's diagnosis was bilateral hip osteoarthrosis, for which he recommended intra-articular cortisone injections in both hips. (Id.). Caternolo received steroid injections at Dr. Kaempffe's office on August 4, 2009, and August 17, 2009. (T.293, 295).

When Caternolo saw Dr. Kaempffe in follow-up on August 17, 2009, she reported that the cortisone injections had "only minimally helped." (T.295). Dr. Kaempffe noted that Caternolo walked with a limp, her right extension was 5 degrees, abduction was 30 degrees, adduction was 5 degrees, internal rotation was 10 degrees, and external rotation was 30 degrees. (Id.). Dr. Kaempffe found that Caternolo had "pain with extremes of hip motion", a "subjective catching sensation", and, on the right side, "crepitance [crackling] with motion". (Id.). Dr. Kaempffe's diagnosis remained bilateral hip osteoarthrosis. (Id.). Due to Caternolo's ongoing symptoms and pain, Dr. Kaempffe decided to go ahead with blood work to rule out an inflammatory disease process. (Id.).

Caternolo was referred to the allergy/immunology/rheumatology clinical group at Strong Memorial Hospital to rule out rheumatoid arthritis as a cause for her widespread stiffness, neck pain, facial pain, hip pain, and difficulty with ambulation. (T.322). She had had a marginally elevated rheumatoid factor in August 2009, but results of the blood work ordered by Ralf Thiele, M.D. on January 22, 2010, showed a negative rheumatoid factor. (T.322-23). On December 9, 2009, radiologists found no radiographic evidence of osteoarthritis or rheumatoid arthritis in Caternolo's hands. (T.329).

2. Migraines

On March 25, 2009, Caternolo presented at the office of neurologist Darrick J. Alaimo, M.D. for evaluation of her chronic severe headaches, which had begun in her 20s. (T.271, 276-78). Since September of 2008, they had increased in frequency and severity; Caternolo stated that she was experiencing them weekly, and some lasted up to 3 days. The headaches usually occurred in the temple area or around her eyes and nose, and consisted mainly of pounding, sharp, or "hot poker"-type pains. The headaches caused nausea, vomiting, photophobia and phonophobia. Caternolo also described painful tingling in her face following a bout of shingles on her right chin in May of 2006. Dr. Alaimo diagnosed Caternolo as suffering from migraine prodome, common migraine headaches, and post-herpetic neuralgia on her face. He prescribed a regimen of Imitrex (for the migraines), Reglan (for nausea), and gabapentin (for post-herpetic neuralgia).

On April 13, 2009, Caternolo consulted with gastroenterologist Mark Pereira, M.D., complaining of increasing abdominal symptoms over the past four months, coincident with increasing migraines. (T.283). Dr. Pereira diagnosed Caternolo as suffering from irritable bowel syndrome and food allergies, and attributed the nausea and vomiting to her migraines. (Id.).

On June 7, 2010, Caternolo saw neurologist Eugene A. Tolomeo, M.D., and explained that her migraine headaches were occurring once or twice a week and lasting for 24 to 72 hours. (T.333). Dr. Tolomeo diagnosed Caternolo as suffering from "[m]igraine with aura, with intractable migraine... without mention of status migrainosus" and post-herpectic trigeminal neuralgia. (T.334). Dr. Tolomeo prescribed Imitrex and Depakote for the migraines, Promethazine suppositories for the nausea, and gabapentin for the post-herpetic neuralgia. (T.334).

3. Allergies

Caternolo sought treatment in June 24, 2009, for her allergies and recurrent sinus infections. Dr. Krishna Persaud diagnosed Caternolo as suffering from seasonal allergic rhinoconjunctivitis, possible food allergies by history, and possible multiple insect allergies. (T.241). Caternolo was prescribed Zyrtec for the allergy symptoms and Ultram (tramadol) for pain. (T.241).

4. The Consultative Physician's Report

On October 5, 2009, consultative physician Harbinder Toor, M.D., examined Caternolo at the behest of the Commissioner. (T.301-04). Caternolo related pain in her hips, which Dr. Toor described as bursitis, for many years. She stated the pain in her hips was "constant", "sharp", and an "8" on a scale of 1 to 10. (T.301). She had last had a migraine about two weeks prior to the consultative examination. (T.301).

Dr. Toor found that Caternolo was "in moderate pain in the hips and back", had a normal gait but had "difficulty walking on the heels and toes", and could squat halfway. (T.301). She had "difficulty getting on and off [the] examination table because of pain in the hips" but needed no help changing for the exam and was able to rise from the chair without difficulty. (T.301).

Dr. Toor noted that Caternolo's activities of daily living were "[c]ooking every day. Cleaning every day. Laundry every day. Shopping three days a week. Childcare daily.... No outing and no sports, no socializing, no hobby." (T.302). She stated that she watches TV, listens to the radio, and likes reading. (Id.).

Dr. Toor's examination of Caternolo's lumbar spine showed flexion to 30 degrees, rotation to 30 degrees, lateral flexion to 30 degrees, and extension to 0 degrees, accompanied by pain in her back. (T.303). Caternolo declined the supine straight-leg raising test. Although she "ha[d] pain in the hips" and "tenderness in the hips bilaterally, " the movements were "normal and full in the hips." (Id.). Caternol had full range of motion in her shoulders, elbows, forearms, wrists, knees, and ankles bilaterally. (Id.). Her joints were stable with no redness or swelling, and strength was 5/5 in her upper and lower extremities. (Id.). Hand and finger dexterity were intact, and her grip strength was 5/5 bilaterally. (Id.).

Dr. Toor diagnosed Caternolo as having a history of the following ailments: arthritis; severe allergies/anaphylaxis; severe migraines; shingles; pain in her eyes, ears, jaw, and nose (postherpetic neuralgia); lumbar disc disease; and bursitis of the hips. (T.304). Dr. Toor stated that her prognosis was "[f]air." (Id.) In his opinion, she has "moderate limitations standing, walking, sitting, bending, lifting, and lying down because of pain in the back and the hips due to bursitis"; her allergies and migraine headaches "can interfere with her routine"; and she has allergies to multiple substances, which can cause "severe allergy [sic], including hives, ...

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