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Donnelly v. Commissioner of Social Security

United States District Court, E.D. New York

July 11, 2014


For Plaintiff: Peter Tufo, Esq., Of Counsel, Grey & Grey, L.L.P., Woodlands Office Park, Farmingdale, NY.

For Defendant: Arthur Swerdloff, Assistant United States Attorney, Loretta E. Lynch, United States Attorney Eastern District of New York, Brooklyn, New York.

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ARTHUR D. SPATT, United States District Judge.

On or about October 15, 2013, the Plaintiff Rosemarie Donnelly (the " Plaintiff" ) commenced this action pursuant to the Social Security Act, 42 U.S.C. § 405(g) (the " Act" ), challenging a final determination by the Commissioner of Social Security (the " Commissioner" ), that she was ineligible for Social Security disability benefits. Presently before the Court is the Commissioner's motion for judgment on the pleadings pursuant to

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Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(c). Also before the Court is the Plaintiff's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

For the reasons set forth below, the Commissioner's motion is granted and the Plaintiff's motion is denied.


A. Procedural History

On October 4, 2007, the Plaintiff, who was an employee of the Internal Revenue Service (" IRS" ), filed an application for Social Security disability insurance benefits, alleging a disability and inability to work since February 2, 2005 due to herniated discs; a back injury; borderline diabetes; asthma; sleep apnea; and thyroid problems. (Administrative Record (" AR" ) at 111, 236, 241.) On January 25, 2008, the Social Security Administration (" SSA" ) denied her application and the Plaintiff made a timely request on June 5, 2008 for a hearing before an Administrative Law Judge (" ALJ" ). (AR 127-32.)

On June 18, 2009, a hearing was held before ALJ Seymour Raynor. (AR at 106-10.) The Plaintiff requested an adjournment to obtain counsel, and ALJ Raynor held a second hearing on September 8, 2009. (AR 106-10.) At this second hearing, the Plaintiff was represented by counsel. (AR at 112-22.) Only the Plaintiff testified. (AR at 106-10.)

Following the hearing and a review of the record, in a decision dated September 29, 2009, ALJ Raynor denied the Plaintiff's claim for disability benefits. (AR at 121.) He acknowledged that the Plaintiff was unable to sit for more than two hours and was also unable to perform her past relevant work. (AR at 118.) Nevertheless, he found that the Plaintiff retained the residual functional capacity (" RFC" ) to perform the full range of light work due to her vocational background, as defined in 20 CFR 404.1567(b). (AR at 118).

On May 4, 2011, the Plaintiff, through her attorney, sought review of ALJ Raynor's decision by the Appeals Council. (AR at 161-62.) On May 18, 2011, the Appeals Council vacated ALJ Raynor's decision and remanded the case. (AR at 123-26.) The Appeals Council noted that ALJ Raynor's decision was lacking in that (1) it did not contain an adequate evaluation of the opinion of the Plaintiff's treating physician and (2) it did not contain any evaluation of the Plaintiff's obesity. (AR at 124.)

On January 24, 2012, another hearing was held before ALJ Raynor. (AR 67-103). The Plaintiff and a vocational expert, Dr. David Vandergoot, testified. (AR 67-103.)

About one month later, on February 21, 2012, ALJ Raynor issued a new decision. He held that the Plaintiff had the RFC to perform the full range of light work as defined in 20 CFR 404.1567(b). (AR 67-103). Moreover, he determined that the Plaintiff was now capable of sitting; standing; walking six hours within an eight hour workday; and lifting and carrying twenty pounds. (AR at 9-27.) As such, he found her to be capable of performing her prior relevant work experience. (AR 9-27).

On May 22, 2013, when the Appeals Council denied the Plaintiff's request for review, the Plaintiff commenced the present appeal from ALJ Raynor's February 21, 2012 decision. (AR 1-6).

B. The Administrative Record

1. The Plaintiff's Non-Medical Background

The Plaintiff was born on April 6, 1963 and is fifty-one years of age. (AR at 35.) She attended a two-year college, which the

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Court concludes was completed in 1984, notwithstanding a minor discrepancy in the record. (AR at 35, 70). In 1985, the Plaintiff began her work as a mail clerk for the IRS. (AR at 37, 70.)

For approximately twenty years, from 1985 through 2005, the Plaintiff worked for the IRS. (AR at 36.) During her last four years at the IRS, from 2001 until 2005, the Plaintiff was employed doing customer service duties and then briefly as a tax examiner. (AR at 36, 72.) The Plaintiff worked eight hours a day, five days a week and was required to sit for a total of seven hours a day, with minimal standing or lifting. (AR at 262.) The heaviest weight the Plaintiff lifted was her papers or notebooks. (AR at 262.) Despite another minor discrepancy in the record, it appears to the Court that on or about February 2, 2005, the Plaintiff permanently ceased working at the IRS. (AR 38, 70-71.)

2. The Plaintiff's Medical Background Prior to the Onset Date of February 2, 2005

On June 23, 1999, the Plaintiff was examined by cardiologist Mark G. Borek, M.D. (" Dr. Borek" ). Dr. Borek noted that the Plaintiff had been smoking three packs of cigarettes per day, until two weeks prior to her visit, when she decreased her smoking habit to five cigarettes per day. (AR at 1043). Due to her chronic shortness of breath and obesity, Dr. Borek recommended a stress test and Doppler echocardiogram. (AR at 1043).

On June 29, 1999, cardiologist Dr. Brian S. Geller (" Dr. Geller" ) performed the Doppler echocardiogram, which demonstrated normal ventricular function, with only trace forms of regurgitation. (AR at 1041.) He recommended weight-loss and exercise, along with the cessation of her smoking habit. (AR at 1192.)

3. The Plaintiff's Medical Background After the Onset Date of February 2, 2005

On February 2, 2005, the Plaintiff apparently injured herself when a chair in which she was attempting to sit had broken. (AR at 601-02.) Following this accident, the Plaintiff allegedly began to suffer from headaches, neck pain, and lower back pain. (AR 601-02).

On February 3, 2005, the Plaintiff was seen by chiropractor James H. Lambert, D.C. (" Dr. Lambert" ). (AR at 601-02). Dr. Lambert diagnosed the Plaintiff with (1) cervicalgia or neck pain; (1) cervicocranial syndrome or misalignment of the cervical vertebrae; (3) cervical sprain and strain; (4) lumbosacral sprain and strain; (5) lumbar spine pain; and (6) muscle spasms. (AR at 601.) All of these conditions could cause neck and back pain. (AR 601). The Plaintiff continued to receive chiropractic treatment approximately two to three times per week between July 18, 2005 and February 29, 2008. (AR at 364-65, 369-72, 374-77, 394-95, 399-406, 412-16, 418-20, 440-41, 444-45, 449-51, 453, 473-74, 481-82, 490-95, 504-07, 523-26, 533-36, 540-43, 548-49, 554, 562-76, 578-82, 585-86, 596, 712, 714).

In addition, the Plaintiff visited pulmonologist Jason B. Karp, M.D. (" Dr. Karp" ), of North Shore Pulmonary Associates, P.C., on several occasions between July 25, 2005 and October 21, 2005 and continued to see him on many occasions thereafter. (AR at 350, 738, 759, 760-62.) During her visits with Dr. Karp, the Plaintiff complained of shortness of breath and decreased energy. (AR at 761.) Although the Plaintiff was overweight, Dr. Karp noted that she was not in any apparent distress. (AR at 761.)

The Plaintiff also had a rare end-expiratory wheeze. (AR at 738.) However,

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upon a pulmonary examination on October 21, 2005, Dr. Karp concluded that the Plaintiff's pulmonary function was normal and her CT scan was " clinically unremarkable." (AR at 738.) Also, the Plaintiff underwent a methyl choline challenge study, and the findings were consistent with asthma. (AR at 738.) Dr. Karp recommended that the Plaintiff lose weight and stop smoking. (AR at 738-41.) He prescribed her an inhaler and the medication Singulair for her wheezing. (AR at 738, 762.)

On November 8, 2005, the Plaintiff saw neurologist Richard A. Pearl, M.D. (" Dr. Pearl" ), due to a complaint of lower back pain that radiated down her right leg. (AR at 334-35). The Plaintiff walked with an antalgic gait in order to avoid pain. (AR at 335.) At her examination, the Plaintiff exhibited full 5/5 motor function, except that she did not resist well upon dorsiflexion of the foot, which Dr. Pearl noted could have been the result of pain rather than weakness. (AR at 335.)

Dr. Pearl diagnosed the Plaintiff with lumbosacral radiculopathy, which is radicular pain of the lower back. (AR at 330.) One week later, on November 15, 2002, an MRI of the Plaintiff's lumbosacral spine indicated active left L5 radiculopathy, a disorder of the L5 nerve root. (AR at 326-29, 31, 33.)

On December 8, 2005, the Plaintiff returned to Dr. Pearl, complaining, as she did the month before, of lower back pain that radiated down her right leg. (AR at 588, 673, 696.) Dr. Pearl observed that the Plaintiff was hypothyroid. (AR at 325). He again diagnosed her condition as lumbosacral radiculopathy, with a left-sided herniated disc. (AR at 325.) Continued chiropractic care was recommended. (AR at 325.) On January 25, 2006, the Plaintiff returned to see Dr. Pearl, complaining of the same pain. (AR at 324.) Dr. Pearl diagnosed the Plaintiff with chronic lumbosacral radiculopathy. (AR at 325.)

The Plaintiff visited Dr. Karp again on January 19, 2006 and April 20, 2006, and during both visits, the pulmonary function testing was normal. (AR at 738, 739, 755, 757.)

On February 10, 2006, the Plaintiff saw neurologist Samir Haddad, M.D. (" Dr. Haddad" ), complaining of lower back pain. (AR 423-33.) Dr. Haddad diagnosed cervicalgia and severe lumbar radiculopathy. (AR 432-33.) He prescribed Mobic and Soma and planned to start the Plaintiff on trigger point injections. (AR at 432-33.)

On August 22, 2006, the Plaintiff saw orthopedic surgeon Wayne Kerness, M.D. (" Dr. Kerness" ) for a consultative examination. (AR at 496-503.) Dr. Kerness observed that the Plaintiff was not in acute distress and walked without assistance. (AR at 498.) During moments when the Plaintiff was not directly being observed, she turned her head, walked, performed routine activities, and was able to get on and off the examination table without difficulty. (AR at 498.)

During this visit on August 22, 2006, Dr. Kerness noted that the Plaintiff was 5 foot 4 inches tall and weighed 260 pounds. (AR at 498.) Furthermore, he noted that the cervical and lumbar sprains and strains were resolved because there were no spasms or tenderness of the cervical or thoracic spines, and the lumbar spine did not exhibit tenderness or spasm. (AR at 498-99.) Dr. Kerness observed that the Plaintiff's muscle strength was a full 5/5, and he noted that the Plaintiff did not have any disability. (AR at 499.)

On September 13, 2006, the Plaintiff returned to the neurologist, Dr. Haddad with a new complaint of right shoulder pain. (AR at 427.) Dr. Haddad's examination of

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the Plaintiff revealed one trigger point of tenderness in her shoulder, and Dr. Haddad injected that area. (AR at 485.) One month later, on October 16, 2006, Dr. Haddad wrote that he was treating the Plaintiff for injuries sustained in the February 2, 2005 accident and that the Plaintiff was totally disabled. (AR at 429.)

On October 16, 2006, Dr. Lambert conducted a chiropractic examination of the Plaintiff. (AR at 430.) He concluded that the Plaintiff was disabled and unable to work but did not specify the reasons for this finding of full disability. (AR at 430.)

On November 30, 2006, the pulmonologist, Dr. Karp examined the Plaintiff and the examination was entirely normal, except for her obesity. (AR at 739.)

Between October 18, 2006 and February 7, 2007, the Plaintiff visited Dr. Haddad four times. (AR at 421, 439, 442-43, 448, 452, 475, 452.) Dr. Haddad observed that the Plaintiff had good and bad days with her shoulder, particularly at the trigger point of tenderness, C7. (AR 472.) The Plaintiff also complained of headaches and right-sided neck and shoulder pain, for which Dr. Haddad gave her two trigger point injections on December 1, 2007. (AR at 448.)

On February 7, 2007, the Plaintiff complained to Dr. Haddad of excruciating right shoulder pain, and he prescribed Celebrex and a shoulder sling. (AR at 421). She subsequently visited Dr. Lambert on February 13, 2007, and the chiropractor, once again, asserted that the Plaintiff was disabled and unable to work. (AR at 426).

On May 8, 2007, the Plaintiff visited orthopedic surgeon Michael J. Katz, M.D. (" Dr. Katz" ) for a consultative examination. (AR at 378-82.) She complained of lower back pain when bending. (AR 378-82.) Dr. Katz observed the Plaintiff walk quickly and without assistance into and out of the examination room. (AR 379.) The Plaintiff asked Dr. Katz for assistance to rise from the examination table, but " it was clear [to Dr. Katz] that she was not exerting any effort at all in order to get up on her own." (AR at 381.) Dr. Katz found the Plaintiff's complaints with respect to her injuries to be " quite vague." (AR 381.)

Upon his examination of the Plaintiff, Dr. Katz observed no tenderness or spasm of the Plaintiff's cervical spine (AR at 379.) He further observed that the Plaintiff's motor strength was fully intact. (AR at 379.) The Plaintiff was able to rotate her shoulder forty-five degrees, with no impingement at ninety degrees. (AR at 380.) Dr. Katz concluded that the lumbosacral strain was resolved and that physical therapy and orthopedic care was no longer necessary. (AR at 381.) In addition, on a material issue in this case, he asserted that the Plaintiff could perform her sedentary job as a tax examiner without restriction, and she was not disabled. (AR at 381, 382.)

On June 12, 2007, the Plaintiff returned to Dr. Karp, as she continued to smoke a quarter-pack of cigarettes a day. (AR at 739.) Dr. Karp concluded that her pulmonary function was essentially normal and that she should undergo a sleep study. (AR at 739.)

On September 12, 2007, the Plaintiff visited the neurologist, Dr. Haddad complaining of persistent neck and back pain, which was treated with therapy and chiropractic treatment. (AR at 337.) Dr. Haddad asserted that the Plaintiff was totally disabled. (AR at 373.) In an " Updated Medical Narrative," written that day, September 12, 2007, Dr. Haddad noted that the Plaintiff's symptoms had worsened over time. (AR ...

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