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Murray v. Commissioner of Social Security

United States District Court, E.D. New York

August 21, 2014



MARGO K. BRODIE, District Judge.

Plaintiff Bridget Murray filed the above-captioned action seeking review pursuant to 42 U.S.C. ยง 405(g) of a final decision of Defendant Commissioner of Social Security denying her application for disability insurance benefits. Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, claiming that the Commissioner's decision is supported by substantial evidence. Plaintiff cross-moves for judgment on the pleadings, arguing that Administrative Law Judge Gal Lahat ("ALJ") failed to satisfy his duties in two aspects: (1) the ALJ improperly weighed evidence from Plaintiff's treating physicians; and (2) the ALJ did not properly assess Plaintiff's credibility. The Court heard oral argument on August 4, 2014. For the reasons set forth below, the Court grants Defendant's motion for judgment on the pleadings and denies Plaintiff's motion for judgment on the pleadings.

I. Background

Plaintiff was born in 1962. (R. at 37.) Plaintiff filed an application for disability insurance benefits on March 6, 2009, based on severe and persistent pain in her right shoulder and the inability to use her right upper extremity as a result of a workplace accident. ( Id. at 9, 150-51, 165.) Plaintiff's application for disability benefits was denied. ( Id. at 83.) Thereafter, Plaintiff requested a hearing before the ALJ, which was initially scheduled for December 22, 2010, but adjourned and later held on March 7, 2011. ( Id. at 9.) At the hearing, Plaintiff and Jay Steinbrenner, a vocational expert, testified. ( Id. ) By decision dated June 16, 2011, the ALJ found that Plaintiff was not disabled. ( Id. at 24.) On February 5, 2013, the Appeals Council denied review of the ALJ's decision. ( Id. at 1-4.)

a. Plaintiff's testimony

Plaintiff is a widow and mother of three children. ( Id. at 34, 37-38.) Since graduating college, Plaintiff has maintained uninterrupted employment as a nurse. ( Id. at 39.) Plaintiff holds a bachelor's degree and a master's degree in nursing administration. ( Id. at 39.) On November 26, 2007, Plaintiff was making her rounds at work when a patient wanted to be lifted upright in bed. ( Id. at 40-41.) Plaintiff called a nursing assistant for help and Plaintiff and the nursing assistant lifted the patient. ( Id. at 41.) Plaintiff felt a "twinge" of pain in her right shoulder. ( Id. ) This twinge subsided, but later that evening Plaintiff felt "achy." ( Id. ) After continuing pain, Plaintiff went to see her doctor and received an MRI which showed a tear in Plaintiff's right rotator cuff. ( Id. )

On November 30, 2007, Plaintiff saw Dr. Altchek, an orthopedic attending surgeon at the Hospital of Special Surgery, where Plaintiff then worked. ( Id. ) Under the care of Dr. Altchek, Plaintiff received physical therapy throughout the month of December, underwent surgery in January 2008, and received further physical therapy post-surgery. ( Id. at 41-42.) Since the accident, Plaintiff has gained weight due to her inability to exercise, has trouble sleeping due to pain on her right side, can lift "about five pounds" for only up to 10 or 15 minutes, and can type on a computer for no longer than 10 minutes. ( Id. at 42-45.)

Plaintiff testified that she has trouble performing ordinary tasks such as grocery shopping, showering and getting dressed. ( Id. at 45-46.) In a typical week, Plaintiff will go shopping, take her children to school by train or bus, visit her mother and go to the library. ( Id. at 56-57.) Plaintiff's pain does not interfere with these activities because walking "takes [her] mind off" the pain and if not, she will take a Motrin. ( Id. at 58.)

At the time of her testimony, Plaintiff was taking Actonel once a week, a calcium supplement twice daily, a daily multivitamin and over-the-counter Motrin as necessary. ( Id. at 49.) Plaintiff ceased taking prescription pain relievers in May or April of 2010. ( Id. at 50.) Rating her pain on a scale of one to ten, Plaintiff testified that her average pain was between 6 to 10, but with Motrin her pain decreases to 4.5 to 5. ( Id. ) Plaintiff is not receiving physical therapy nor seeing a specialist for her shoulder on the advice of Dr. Schwartz and her worker's compensation lawyer. ( Id. at 50-51.) Dr. Schwartz informed her that she was at a "status quo with [her] range of motion, and whatever limitation - whatever range I got, that's where I am." ( Id. at 55.) Plaintiff did not seek a second opinion. ( Id. ) Plaintiff continues to perform exercises at home, including "therabands" and a "ball" which her therapist showed her how to perform. ( Id. at 51.)

b. Plaintiff's work history

Plaintiff worked as a registered nurse from January 1985 to November 2007. ( Id. at 170.) Plaintiff has not engaged in any substantial gainful activity since November 26, 2007. ( Id. at 40.)

c. Vocational expert's testimony

Jay Steinbrenner, vocational expert, testified that Plaintiff's past work as a nurse was skilled work with an SVP-7 rating.[1] ( Id. at 61.) The ALJ then presented the following hypothetical to Steinbrenner:

A hypothetical individual of the claimant's age, education and work background. Further assume the individual can lift and carry, as well as push-pull up to ten pounds occasionally with the right dominant upper extremity. Further assume the individual would be limited to no overhead reaching or above shoulder reaching with the right dominant upper extremity; occasional reaching at waist or desk level; and again, no reaching below waist level with the right dominant upper extremity. Further assume that the right hand could not be used for handling, which would include gross motor functions such as gripping, holding, and grasping; and could occasionally be used for fingering, with no limitation as to feeling.

( Id. at 61-62.) Steinbrenner stated that this hypothetical worker could not perform Plaintiff's past work. ( Id. at 62.) Before commenting that the hypothetical worker was "pretty limit[ed], " Steinbrenner stated that a job as a registration or intake clerk would "probably be viable." ( Id. ) This job is classified as sedentary-level, semi-skilled work with an SVP-3 rating. ( Id. ) With respect to unskilled work, Steinbrenner stated that two jobs involving computer "mousemanipulat[ion]" would be viable: telemarking or telephone solicitation and telephone survey work. ( Id. at 63.) Steinbrenner also stated that it would not take more than a day to adapt to using a computer mouse with one's non-dominant hand. ( Id. at 66.)

d. Medical evidence

i. Doctor Alain D. Hyman

On November 28, 2007, Dr. Hyman examined Plaintiff's rotator cuff tear. ( Id. at 237.) Dr. Hyman noted an "[a]bnormal supraspinatus tendon with inhomogeneous signal, representing tendinosis[2] or contusion, " "a partial thickness tear of the inferior surface, " and "subacromial and subdeltoid bursitis."[3] ( Id. )

ii. Doctor David W. Altchek

Dr. Altchek performed an initial examination on December 6, 2007. ( Id. at 238.) He noted that Plaintiff had limited active range of motion due to pain, had mild limitation of passive range due to pain, and had severely positive impingement signs and cuff signs particularly in abduction. ( Id. ) Dr. Atlchek discussed conservative treatment as well as surgical treatment options with Plaintiff. ( Id. ) On December 7, 2007, Dr. Altchek noted that Plaintiff would undergo arthroscopy and should not be working until she has regained her full range of motion and strength. ( Id. at 247.)

An "operative record, " dated January 16, 2008, indicates that Plaintiff underwent right shoulder arthroscopy, rotator cuff repair, subacromial decompression and an acromioplasty performed by Dr. Altchek. ( Id. at 223.) Plaintiff's rotator cuff showed a "significant amount of fraying a [sic] full thickness rotator cuff tear." ( Id. at 224.) A "significant amount of bursa was removed." ( Id. ) The rotator cuff was debrided and after a subacromial decompression was completed, the rotator cuff repair was complete. ( Id. at 225.)

On January 24, 2008, Dr. Altchek noted that Plaintiff was "coming along pain wise and is starting to do better." ( Id. at 243.) Dr. Altchek planned to keep Plaintiff on her "protected rehab program" and to start physical therapy. ( Id. ) On March 10, 2008, Dr. Altchek noted that Plaintiff was doing well, had good passive motion, would stay on a protected rehabilitation program and would be seen again in eight weeks. ( Id. at 244.) On April 14, 2008, Dr. Altchek noted that Plaintiff is "shrugging, but otherwise doing well." ( Id. at 245.) On June 9, 2008, Dr. Altchek found that Plaintiff was "slowly getting better, " "mildly tight, " had improved motion and less pain. ( Id. at 246.)

On October 2, 2008, Dr. Altchek found that Plaintiff had excellent motion and good strength. ( Id. at 311.) On November 20, 2008, Dr. Altchek noted that Plaintiff is "starting to turn the corner and get all her motion back." ( Id. at 310.) He advised Plaintiff that she was not ready to go back to work due to weakness and lack of endurance. ( Id. )

On January 19, 2009, Dr. Alchek noted that Plaintiff is doing much better, her capsule is much looser and her strength is better. ( Id. at 309.) He noted that Plaintiff was concerned about returning to heavy duty work, a concern which he shared. ( Id. ) He advised Plaintiff that she should switch over to an "ambulatory function" and planned on seeing Plaintiff "on an as needed basis." ( Id. )

iii. Rehabilitation therapy

On February 12, 2008, Plaintiff received an upper extremity evaluation by the Hospital for Special Surgery Rehabilitation Department. ( Id. at 278.) The physical therapist noted that Plaintiff reported constant pain between 3 to 8 on a scale of 10 and that the pain was localized. ( Id. ) On May 9, 2008, Plaintiff's physical therapist noted on a "progress update" form that Plaintiff was still unable to reach overheard for brushing her hair or reaching into cabinets. On June 6, 2008, Plaintiff's physical therapist noted that she was able to use her arm for activities "below horizontal, " and was able to use her arm overhead but with pain. ( Id. at 252.) The therapist also noted that Plaintiff had made "excellent" progress and would benefit from continued therapy to address pain, limitations and decreased activity. ( Id. ) On September 15, 2008, Plaintiff's physical therapist noted that her function was not equal to pre-operative levels. ( Id. at 313.)

iv. Doctor Robert L. Hecht

On December 12, 2008, Dr. Hecht saw Plaintiff to offer a second opinion regarding treatment. ( Id. at 297.) Dr. Hecht noted that Plaintiff underwent surgery on January 16, 2008, and reviewed the operative report from that surgery. ( Id. ) Upon a physical examination, Dr. Hecht found that Plaintiff had healed arthroscopic portals, tenderness in the shoulder, mild atrophy of the deltoid, mild weakness with abduction, and a restricted range of motion. ( Id. ) He advised Plaintiff to continue physical therapy and noted that she "remains disabled." ( Id. )

On January 9, 2009, Dr. Hecht saw Plaintiff for a follow-up visit. ( Id. at 296.) Dr. Hecht noted that Plaintiff had persistent pain, and limited range of motion in the right shoulder and that she had stopped doing physical therapy in December 2008. ( Id. ) Upon a physical examination, Dr. Hecht found that Plaintiff had tenderness in the shoulder, mild atrophy of the deltoid, mild weakness with abduction, and restricted range of motion. ( Id. ) He advised additional physical therapy. ( Id. )

On February 27, 2009, Dr. Hecht physically examined Plaintiff and found that she had mild atrophy of the deltoid, mild weakness with abduction, and a loss of ...

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