United States District Court, S.D. New York
Irwin M. Portnoy, Esq., IRWIN M. PORTNOY AND ASSOCIATES, P.C., New Windsor, NY, Attorneys for Plaintiff.
Graham Morrison, Esq., Stephen P. Conte, Esq., PREET BHARARA, United States Attorney for the Southern District of New York, New York, NY, Attorneys for Defendant.
ROBERT W. SWEET, District Judge.
Plaintiff Kimberly Margotta ("Margotta" or "Plaintiff") has moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the proceedings and review of an adverse decision of the defendant Carolyn Colvin ("Commissioner" or "Defendant"), Acting Commissioner of the Social Security Administration ("SSA"), denying disability benefits under the Social Security Act (the "Act"). The Commissioner subsequently cross-moved for judgment on the pleadings. Based on the conclusions set forth below, the Commissioner's motion is granted, and Plaintiff's motion is denied.
Plaintiff filed for Disability Insurance Benefits ("DIB") on October 24, 2008 and Social Security Income ("SSI") on November 19, 2008. T199-20, 201-203. On February 13, 2009, the SSA denied Plaintiff's application. T116-28. Plaintiff requested a hearing and subsequently appeared before Administrative Law Judge Katherine Edgell (the "ALJ") on October 4, 2011 (the "Hearing"). T67-91. In a Decision on October 28, 2011 (the "ALJ Decision"), the ALJ found that Plaintiff was not disabled. T14-24. Plaintiff requested the Appeals Council to review the ALJ's decision, and the Appeals Council denied review on March 7, 2013. T1-6.
Plaintiff subsequently filed the Complaint in the instant action on May 14, 2013 (the "Complaint"). Plaintiff made the instant motion on January 31, 2014. The Commissioner cross-moved for judgment on the pleadings on April 7, 2014. The matter was marked fully submitted on April 17, 2014.
Statement of Facts
Testimony On Behalf Of Plaintiff
The following information was provided as testimony by the Plaintiff at the Hearing or elsewhere on the record:
Plaintiff was born in 1966 and was 44 years old at the time of the Hearing. T45. Margotta lives in a basement downstairs from her father. T43-44, 46, 233. She has completed high school and some college courses, but did not graduate college. T46. Plaintiff has previously worked as an office manager, customer service representative at Kohl's and assistant manager at KB Toys. T46-48. She has also worked in web design and other tasks from 1997 to 2002. T49.
Plaintiff testified that she has been disabled since January 15, 2003. T14; see also Compl. ¶ 5. Since that time, Plaintiff has not been able to work as she suffers from migraines and pain in her neck, back, arms and legs. T48-50. Plaintiff has a driver's license, but does not drive often because she feels discomfort when pushing on the car's pedals. T82. Plaintiff testified that she had symptoms of depression caused by her son's suicide in 2007, T49, and that she has a history of mental illness since she was a child. T50. Plaintiff has trouble with her memory, including her long-term memory. T57-58.
Plaintiff testified that she suffers from chronic obstruction pulmonary disease which causes pain in her chest. T61. Plaintiff sometimes experiences limitations in her ability to walk which is dependent on the weather: during times of muggy weather, Plaintiff cannot walk, but on days with good weather, Plaintiff can walk 10 feet. T61-62. The record does not indicate as to whether this is related to Plaintiff's chronic obstruction pulmonary disease. Plaintiff testified that she cannot pick things up due to pain or use a computer due to stabbing sensations in her fingers. T62.
In activities of daily living worksheet, Plaintiff indicated that she had no problems attending to her own personal care, including dressing, bathing, grooming and feeding herself. T233-34. She also indicated that she does her own laundry. T235. Plaintiff leaves her house between two to three times a week, T235, either by foot or car, T235. Her hobbies included reading, watching TV, playing tennis and swimming. T236. Plaintiff speaks with friends and family one to two times per week. T237.
Mr. Rocco Meola ("Meola") testified at the Hearing as a vocational witness. When inquired by the ALJ as to the sort of work someone with Plaintiff's vocation profile could perform, Meola testified that Plaintiff could perform unskilled medium work. T87. On a national level, these types of jobs in the aggregate exists in numbers of approximately 30, 000; for the Hudson Valley region, 700. T88. The ALJ also posed Meola with a hypothetical person with Plaintiff's vocational profile who can sit for up to eight hours a day, three hours at one time; stand for up to five hours a day, an hour at a time; walk up to three hours a day, an hour at a time; can lift up to 20 pounds continuously and up to 50 pounds occasionally, but only carry up to 20 pounds continuously; can frequently engage in overhead reaching, and continuously reach in all other planes, as well as handle, finger, feel push, pull; occasionally climb ladders or scaffolds; occasionally be exposed to unprotected heights; but cannot be exposed to dusts, odors, fumes, pulmonary irritants and extremes of temperatures and vibrations; and can be exposed only to moderate office noise, and inquired as to any unskilled jobs such hypothetical person could perform. According to Meola, there are such jobs (examples include inspector and hand packager, assembler of molded frames and a tag machine operators): there are approximately 45, 000 such jobs at the national level and 1, 300 such jobs in the Hudson Valley region. T88-89. Upon inquiring as to whether such hypothetical person is hirable if he or she also had marked limitations in concentration such that concentration is variously interfered with, Meola testified that such an individual would not be employable. T89.
The Medical Evidence
Dr. Goddard Lainjo
Plaintiff diagnosed her health troubles for the first time on October 22, 2003, when Dr. Goodard Lainjo diagnosed Plaintiff with fibromyalgia syndrome with moderate to severe disease activity by global assessment. In this diagnosis, Plaintiff's physical examination was negative for muscle weakness or trigger points. T573. Treating notes from Dr. Lainjo indicates additional diagnoses of mild-to-moderate rheumatoid arthritis and mild-to-moderates fibromyalgia syndrome with some tender points on examination. Id. Multiple serological findings were negative. T553, 562, 571-75, 587-603. Dr. Lainjo prescribed Plaintiff with a nonsteroidal anti-inflammatory medication three times a day to treat her symptoms.
Dr. Francis Nardella
On October 6, 2005, Dr. Francis Nardella examined Plaintiff and concluded that she suffered from severe fibromyalgia with chronic fatigue and sleep disorder, chronic headaches, probable irritable bowel, chronic generalized musculoskeletal pain and positive tender points over the left lateral epicondyle, trapezius, supraspinatus muscles, lower lateral cervical regions, suboccipital regions, gluteus muscles, greater trochanteric bursa and medial aspects of knees on examination. T595. Dr. Nardella's notes indicate that Plaintiff developed chronic generalized musculoskeletal pain 15 years from the date of the examination following a motor vehicle accident and that this pain was generalized. T594.
Dr. Neal Dunkelman
In November 2006, Dr. Neal Dunkelman diagnosed Plaintiff with chronic pain syndrome and fibromyalgia. T559-60. At this examination, Plaintiff reported having problems for more than 10 years, trying physical therapy in the past and being on Oxycontin 40 mg every 12 hours for approximately one year. T559. Plaintiff also reported having tried a variety of medications, including Vicodin, Tylenol #3, Lyrica and muscle relaxants. Dr. Dunkelman found no focal, sensory or motor deficits but lumbar flexion was limited to 10 degrees, extension 0 degrees and cervical range of motion was restricted. At this visit, Dr. Dunkelman extended Plaintiff's prescription for Oxycontin.
Pursuant to Dr. Dunkelman's referral, Plaintiff underwent a magnetic resonance imaging ("MRI") scan of her cervical spine in January 2007. The MRI showed no obvious issues except for a small right paracentral herniated disk at C4-05, with a normal spinal cord and neural foramina. T373, 553. A computerized axial tomography ("CAT") scan showed chronic obstructive pulmonary disease with scarring in both lungs, but no evidence of mass, nodules or infiltrates. T368, 372. Records of subsequent treatments showed normal respiratory effort, with no wheezing, rubs, rhonchi or rales. T695. The record indicates that Plaintiff had been a long-time smoker, consuming one pack per day for the past 30 years. T379, 616.
At this time, Plaintiff's pain complaints were primarily treated with narcotic analgesics. T522. On February 23, 2007, Dr. Dunkelman noted that "in view of [minimal] MRI findings, I do not feel [Plaintiff] should be on chronic narcotic medications." Id.
Plaintiff underwent another MRI in April 2009. T534. The MRI found straightening of the normal cervical lordosis consistent with muscle spasm. However, the intervertebral disc spaces were well maintained, and there was no evidence of disc bulging, disc herniation, canal stenosis or foraminal stenosis. Id.
Dr. Martin Grant
Dr. Martin Grant examined Plaintiff on December 11, 2006, and diagnosed Plaintiff with hypertension, depression and fibromyalgia. T368.
Dr. Stanley Giudici
Dr. Stanley Giudici treated Plaintiff on December 12, 2007 and November 24, 2008. T564-70. During Dr. Giudici's examination of Plaintiff, the doctor noted that Plaintiff had suffered from more than three episodes of major depression in the past. T566. In the examination, Plaintiff reported constant, well-localized, aching, numb, tingling, sharp, burning and shooting pain in the lower back. T568. Dr. Giudici diagnosed Plaintiff with major depressive disorder, recurrent; post-traumatic stress disorder; generalized anxiety disorder; social anxiety disorder; obsessive-compulsive personality disorder; restless leg syndrome, primary; hypothyroid; and cervical disk disease in C4-5. T569.
Dr. Steven Rocker
On December 31, 2008, Plaintiff saw Dr. Steven Rocker for a consultative examination with complaints of "pain everywhere" with no localization of the pain. T295. During the examination, Plaintiff reported that she was diagnosed with asthma at age 25, had "three herniated disks in [her] neck" and was diagnosed with bipolar disorder earlier that year. T295. In his examination report, Dr. Rocker noted that Plaintiff "is independent in cooking, cleaning, laundry and shopping" and that she "is able to shower, bath and dress independently." T296. Plaintiff also used no assistive devices, needed no help changing for the exam or getting on and off the exam table and was able to rise from the chair without difficulty. T296. The examination found that she had full strength (5/5) in her upper and lower extremities. T297. Plaintiff had fully intact hand and finger dexterity and full grip strength bilaterally. T298. Dr. Rocker found no limitations for hearing, speaking, sitting and handling and mild ...