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Dunker v. Astrue

United States District Court, Second Circuit

January 6, 2014

KATHY J. DUNKER, Plaintiff,


JEREMIAH J. MCCARTHY, Magistrate Judge.


This case was referred to me by Hon. Richard J. Arcara to hear and report in accordance with 28 U.S.C. ยง636(b)(1)(B) [5]. Before me is defendant's unopposed motion for judgment on the pleadings [7].[1] On July 6, 2011, I issued a scheduling order that required plaintiff to file a motion for dispositive relief by October 4, 2011 and to file her opposition to defendant's cross-motion by February 1, 2012 [6]. Plaintiff has neither filed a dispositive motion nor filed any opposition to defendant's motion, and has not sought an extension of these deadlines.

Nevertheless, I cannot grant the motion by default. "Although... failure to respond may allow the district court to accept the movant's factual assertions as true, the moving party must still establish that the undisputed facts entitle him to a judgment as a matter of law.'" McDowell v. Commissioner, 2010 WL 5026745, *1 (E.D.N.Y. 2010) citing Vt. Teddy Bear Co. v. 1-800 Beargram Co. , 373 F.3d 241, 246 (2d Cir. 2004); see also Martell v. Astrue , 2010 WL 4159383, *2 n.4 (S.D.N.Y. 2010).[2] Accordingly, I will analyze the merits of defendant's Fed.R.Civ.P. ("Rule") 12(c) motion.


On April 12, 2007, plaintiff filed an application for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") alleging that she had been unable to work since April 16, 2001 (T145).[3] She claimed to suffer from bipolar disorder, panic attacks, and lower back arthritis (id.). Her initial claim was denied on November 7, 2007 (T68-71). A hearing was conducted on September 18, 2009 before administrative law judge ("ALJ") Timothy M. McGuan (T12, 21-65). Plaintiff was represented at the hearing by Felice A. Brodsky, Esq. (T23). A vocational expert, Dr. Timothy P. Janikowski, also appeared and testified (T21, 58-63). At the hearing, plaintiff's attorney amended the alleged disability onset date to August 31, 2006 (T25). On September 30, 2009, ALJ McGuan issued a decision finding that plaintiff was not disabled within the meaning of the Social Security Act (T12-19). This became the final decision of the Social Security Commissioner on March 8, 2011, when the Appeals Council denied plaintiff's request for review (T1-3). This action followed [1].


Plaintiff sought SSI and DIB benefits due to "[b]ipolar disorder, panic attacks and arthritis in [her] lower back" (T145).

A. Medical Evidence during the Relevant Period of Review[4]

Plaintiff has an extensive medical history of treatment for various physical and mental ailments as well as a history of polysubstance abuse. The record begins with plaintiff's admission to Niagara Falls Memorial Medical Center ("NFMMC") on October 19, 2006 (T262). At the time of her admission, she stated that "[she] wanted to kill [herself]....[and] take an overdose" (id.). The medical report indicated that plaintiff used marijuana, crack cocaine, and powder cocaine on a daily basis, and that she used heroin once a month (id.). Kalaselvi Rajendran, M.D., filed a report stating that plaintiff "seems to be underestimating her drug dependence" (id.). Dr. Rajendran also performed a mental status examination and noted that she "strongly believe[s] some of the [plaintiff's] problems are very much exaggerated due to her drug problem" (T263). Plaintiff requested to be released, and was discharged on October 30, 2006 with referrals to mental health counseling and substance abuse interventional counseling (T264-65).

1. Plaintiff's Alleged Physical Impairments

On October 9, 2007, Manjushree Dey, M.D. treated the plaintiff for chronic peptic ulcer disease and inflammatory bowel disease (T319-22). In an October 23, 2007 report, Dr. Dey wrote that plaintiff had no limitations in any physical activity, no behavior suggestive of a significant psychiatric disorder, and "no alcohol or drug history" (T319-23).

From November 19, 2007 to March 6, 2009, plaintiff received medication and refills from her primary care physician, David Stahl, M.D. On one occasion, plaintiff contacted Dr. Stahl's office requesting pain medication, but was not given any because she had missed her previous appointment and had admitted that she "has been buying Hydro's [ sic ] off the street" (T405).

On August 4, August 18, and September 8, 2008, and May 5 and June 1, 2009, plaintiff was given epidural injections of 1% Lidocaine at the L5-S1 interspace of her spine (T439-452). January 20, 2009 x-rays revealed that her pelvis and bilateral hips were "unremarkable", there was no evidence of an acute fracture or dislocation of the lumbar spine, there was minimal degenerative disc disease at the L3-4 and L5-S1 levels, and there were minimal facet joint degenerative changes at the L4-5 and L5-S1 levels (T412-14). A single bone densitometry report dated November 11, 2008, indicated that plaintiff was considered "osteoporotic" according to World Health Organization guidelines (T415), but no other indication of osteoporosis appears in the record.

a. Consultative Physical Examinations

On August 21, 2007, Kathleen Kelley, M.D., performed a physical examination of plaintiff (T299). Dr. Kelley indicated that plaintiff complained of "nonspecific low back discomfort", but had "no obvious limitation" at the exam (id.). A lumbosacral spine x-ray showed small anterior osteophytes (bone spurs) in the lumbar spine (T304). Although plaintiff denied the use of alcohol or drugs, she admitted that she used "not very much" marijuana from the age of 16 until 1992, and "not much" crack cocaine from the age of 20 through 1992 (T300). Dr. Kelley concluded that plaintiff would have marked limitations in environments with heights or heavy machinery because of her "history of ataxia" and balance problems (T303).

On November 6, 2007, state agency review physician V. Yu, M.D., reviewed the record and determined that plaintiff retained the ability to lift twenty pounds "occasionally" and ten pounds "frequently", could walk six hours in an eight-hour period, and had an environmental hazard restriction (T344).

2. Plaintiff's Alleged Mental Impairments

From January 25, 2008 to June 3, 2008, plaintiff was treated at the Niagara County Department of Mental Health ("NCDMH") (T364-75). Four mental status examinations conducted by Cynthia McPhaden, M.S., L.M.H.C., C.R.C. during this period show unremarkable psychomotor behavior, good hygiene, good eye contact, and an appropriate appearance (T370, 372, 374-75). Plaintiff's verbal production was good-to-fair, and she was interactive (id.). These status examinations show that plaintiff was focused at times (T370, 372, 375) and "defocused" on at least one instance (T374). Her thought content was relevant and coherent, and she was oriented in terms of person, place, and time (T370, 372, 374-75). Her mood/affect was at times depressed, anxious, and flat/blunted (T372, 374-75). On one occasion, her mood was euthymic and appropriate (T370). Plaintiff ...

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