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Scitney v. Colvin

United States District Court, W.D. New York

August 15, 2014

BARBARA A. SCITNEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Barbara A. Scitney, Plaintiff: Howard D. Olinsky, LEAD ATTORNEY, Olinsky & Shurtliff, LLP, Syracuse, NY.

For Commissioner of Social Security, Defendant: Kathryn L. Smith, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY; Mary C. Kane, LEAD ATTORNEY, U.S. Attorney's Office, Buffalo, NY; Vernon Norwood, LEAD ATTORNEY, Social Security Administration, Office of General Counsel, New York, NY.

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DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge.

I. INTRODUCTION

Plaintiff Barbara A. Scitney (" Plaintiff" ) brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Commissioner of Social Security (" the Commissioner" )[1] denying her application for Social Security Disability (" SSD" ) benefits. (Dkt. 1). Presently before the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 9, 11). Because the Commissioner's decision is supported by substantial evidence and is in accordance with the applicable legal standards, the Plaintiff's motion is denied and the Commissioner's motion is granted.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Overview

On January 30, 2009, Plaintiff filed an application for SSD. (Administrative Transcript (hereinafter " Tr." ) at 95-98). In her application, Plaintiff alleged a disability onset date of May 22, 2006. (Tr. 95). Plaintiff alleged the following disabilities: fibromyalgia, back and neck injuries, and depression. (Tr. 119). On July 17, 2009, the Commissioner denied Plaintiff's application. (Tr. 79-83). Plaintiff timely filed a request for a hearing before an Administrative Law Judge (" ALJ" ) on September 18, 2009. (Tr. 17).

On October 13, 2009, Plaintiff, without counsel, testified at a video hearing before ALJ Edward L. Brady. (Tr. 42-76). Vocational Expert (" VE" ) Fran Terry also testified. (Tr. 40, 69-72). On February 17, 2011, the ALJ issued a finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 17-30).

Plaintiff timely filed a request for review of the ALJ's decision by the Appeals Council on or about April 20, 2011. (Tr. 11-13). On August 31, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 4-6). On November 21, 2012, Plaintiff filed this civil action appealing the final decision of the Commissioner. (Dkt. 1).

B. The Non-Medical Evidence

1. Plaintiff's Testimony

At the time of the hearing, Plaintiff was a 5'4", approximately 320 pound, 38-year old female. (Tr. 67, 70-71). Plaintiff has a high school diploma and attended one year of college. (Tr. 70). Plaintiff was previously employed as a data transcriber, but had not been so employed since 2006.[2] (Tr. 71, 120). Plaintiff testified that she had been diagnosed with trigeminal neuralgia and that although her associated headaches were controlled by medication, she experienced breakthrough pain that

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could last up to a week. (Tr. 58-59). Plaintiff said that she had pain in her neck every day and that it was sometimes an aching pain and sometimes a sharp, shooting pain. (Tr. 59-60). Plaintiff testified that the most comfortable position for her to be in with regard to her neck pain was " [j]ust sitting in [her] recliner." (Tr. 60). She indicated that the pain in her neck sometimes radiated down her arms and caused numbness and tingling, particularly when she was actively using her arms by, for example, sitting at a desk trying to do paperwork. (Tr. 60-61). Plaintiff testified that she had constant mid and low back pain and that her most comfortable position was in a recliner with her legs up. (Tr. 61). She said that she takes Oxycodone and Celebrex for pain and that both drugs help her. (Tr. 62).

Plaintiff testified that she has leg pain and that the degree of the pain " [d]epends on the situation." (Tr. 62-63). Plaintiff said that she could drive, but " not much," and that she did not require a cane or any type of assistive device for walking. (Tr. 63). She indicated that she could sit for less than an hour before she needed to stand up and walk around, that she could stand for roughly 20 minutes, and that she could walk for roughly ten minutes. (Tr. 64-65). Plaintiff testified that she tried to do the cooking and the cleaning around the house. (Tr. 65). She claimed that she could cook, but mostly used the microwave or had food delivered. ( Id. ). She indicated that she would sometimes go food shopping, but would then be unable to move the next day. ( Id. ). Plaintiff said that she would clean when she " [felt] up to it," but that she would get " laid up" as a result. ( Id. ).

Plaintiff testified that she was unable to sleep at night and that she sleeps at most two to three hours before waking up. (Tr. 66). She indicated that she is able to do things like getting dressed, taking a shower, and taking care of her hair, but that she does not do so on a regular basis because she is " too tired." ( Id. ). Plaintiff also testified that she suffers from depression and that the medication she takes for it is sometimes " pretty good," but that at other times she believes she needs a higher dose. (Tr. 66-67).

2. Vocational Expert's Testimony

The ALJ presented VE Fran Terry with a hypothetical question. (Tr. 70-71). The VE was asked to consider someone of Plaintiff's age, education, and experience who had the ability to lift and carry ten pounds occasionally and five pounds frequently, could stand and walk two hours and sit six hours in an eight hour day, but would require a sit/stand option at least every 15 minutes. (Tr. 71). The individual could occasionally handle bend, balance, stop, kneel, crouch, crawl, and climb, but could not use ladders, ropes, or scaffolds. ( Id. ). She would be limited to simple, routine, and repetitive work. ( Id. ).

The VE testified that a hypothetical individual with these abilities and restrictions would not be able to perform any of the past work of Plaintiff because Plaintiff's former positions were semi-skilled. (Tr. 71-72). The VE testified that a hypothetical individual with these abilities and restrictions would be able to perform occupations that existed in significant numbers in the national economy, including a video monitor, a ticket taker, and a telephone receptionist. (Tr. 72). The ALJ asked the VE if a hypothetical individual with these abilities and restrictions who could be off task for up to a third of the day would be able to find work at any skill level and the VE responded that the individual would not be able to find work. ( Id. ).

C. Summary of the Medical Evidence

The Court assumes the parties' familiarity with the medical record, which is summarized below.

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Plaintiff visited the Lehigh Valley Pain Center approximately 80 times between September 26, 2003, and November 19, 2004. (Tr. 441-522). The treatment notes from these visits indicate that Plaintiff consistently complained of radiating neck and back pain and sometimes complained of knee and/or elbow pain. ( Id. ). The treating clinicians at the Lehigh Valley Pain Center consistently noted that Plaintiff suffered from spasm, joint dysfunction, and limited range of motion to the cervical, thoracic, and lumbosacral regions. ( Id. ).

On August 7, 2004, Plaintiff treated with Andrew H. Shaer, M.D., at Open Air MRI of Allentown. (Tr. 151). Dr. Shaer performed an MRI of Plaintiff's lumbar spine and noted there was degenerative disc disease at the L1-2 level with slight disc space narrowing and evidence of a right paracentral disc herniation with mild thecal sac impingement. ( Id. ). The remaining lumbar discs were unremarkable, the conus was normal, and there were no intradural-extramedullary abnormalities. ( Id. ). Dr. Shaer also performed an MRI of Plaintiff's cervical spine. (Tr. 152). There was normal vertebral body alignment and signal intensity, the disc spaces were well maintained, no cervical disc herniations were present, the spinal cord was normal, there were no intradual-extramedullary abnormalities, and the cerebellar tonsils were normally situated. ( Id. ). There was a mild annular bulge at C5-6 with minimal thecal sac impingement. ( Id. ).

In December 2004, Plaintiff treated with John Manzella, D.O. (Tr. 335). Dr. Manzella recorded that Plaintiff complained of fatigue, abdominal pain, headaches, and pain upon rotation of her head and neck. ( Id. ). Dr. Manzella also noted that Plaintiff's knees showed effusion, tenderness, laxity, and crepitance, and that she suffered from fibromyalgia, herniated discs, and asthma. ( Id. ). Dr. Manzella decreased Plaintiff's dose of Zoloft and prescribed her Wellbutrin. ( Id. ).

On or about March 6, 2006, Plaintiff treated with Dr. Manzella. (Tr. 308). Plaintiff complained of muscle aches, joint pain, and swelling. ( Id. ). Dr. Manzella noted that Plaintiff had depression, anxiety, neck and back pain, cellulitis, and depression. ( Id. ). Dr. Manzella prescribed Lidocaine for Plaintiff's neck and back pain. ( Id. ).

On June 29, 2006, Plaintiff treated with Dr. Manzella. (Tr. 297). Plaintiff complained of muscle aches, joint pain, and swelling. ( Id. ). She rated her pain as ten out of ten. ( Id. ). Dr. Manzella increased Plaintiff's Zoloft prescription. ( Id. ). At this visit, Plaintiff's knees were without effusion, tenderness, laxity, or crepitance. ( Id. ).

On July 20, 2006, Plaintiff treated with Dr. Manzella. (Tr. 295). Dr. Manzella noted that Plaintiff's depression had improved with Zoloft and that she should continue taking the medication. ( Id. ). Dr. Manzella prescribed Zyrtec for Plaintiff's allergies. ( Id. ).

On August 30, 2006, Frederick Myers, M.D., a state agency medical consultant, reviewed Plaintiff's medical record. (Tr. 679-83). Dr. Myers opined that Plaintiff could occasionally lift and/or carry 50 pounds; could frequently lift and/or carry 25 pounds; could stand and/or walk for about six hours in an eight hour workday; could sit for about six hours in an eight hour workday; and had no postural limitations ( i.e. limitations on kneeling, crawling, stooping, etc.) or environmental limitations. ( Id. ).

On September 6, 2006, John Chiampi, Ph.D., a state agency psychological consultant, reviewed Plaintiff's medical record. (Tr. 685-97). Dr. Chiampi opined that

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Plaintiff's depression was not a severe impairment and that Plaintiff had mild restrictions in performing the activities of daily living, mild difficulties maintaining social functioning, mild difficulties maintaining concentration, persistence, or pace, and no episodes of decompensation. (R. 685, 688, 695).

On September 8, 2006, Dr. Manzella completed a " Medical Source Statement of Claimant's Ability to Perform Work-Related Physical Activities" for Plaintiff. (Tr. 623-24). Dr. Manzella opined that Plaintiff could frequently lift/carry two to three pounds; occasionally lift/carry ten pounds; stand/walk for one to two hours in an eight hour workday; sit for one to two hours in a workday; was limited in her ability to operate hand or foot controls; could occasionally bend and balance but could never kneel, stoop, ...


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