United States District Court, N.D. New York
MICHAEL P. DESANTIS, ESQ., DESANTIS & DESANTIS LAW FIRM, Utica, New York, Attorneys for the Plaintiff.
REBECCA H. ESTELLE, ESQ., SOCIAL SECURITY ADMINISTRATION, Office of Regional General Counsel, Region II, New York, New York, Attorneys for Defendant.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
On June 17, 2010, Plaintiff protectively filed a Title II application for disability insurance benefits ("DIB"), alleging a period of disability beginning on March 15, 2007. See Administrative Record ("R") at 12. On October 4, 2010, Plaintiff's application was initially denied and upon Plaintiff's request, a hearing was held on November 8, 2010. See id. Thereafter, the ALJ issued an unfavorable decision on December 16, 2011, finding that Plaintiff was not disabled within the meaning of the Social Security Act (the "Act"). See id. at 9-18.
On January 3, 2012, Plaintiff timely filed a request for a review of the ALJ's unfavorable hearing decision. See id. at 7. The Appeals Council denied review by letter dated November 27, 2012. See id. at 1-3.
On December 27, 2012, Plaintiff filed a summons and complaint in this Court seeking judicial review of the Commissioner's unfavorable decision. See Dkt. No. 1. The Commissioner filed an answer to the complaint on April 17, 2013. See Dkt. No. 8.
Currently pending before the Court are the parties' cross-motions for judgment on the pleadings. See Dkt. Nos. 11, 14.
Plaintiff seeks DIB benefits alleging that she was suffering from a "disability" within the meaning of the Act since March 15, 2007, at age 54, due to multiple impairments including diverticulitis, irritable bowel syndrome, anxiety and knee and back pain resulting from an ACL tear and arthritis. See R. at 56-60. Plaintiff has not engaged in substantial gainful activity since her alleged onset date, but continued part-time employment as a cashier for Walmart until August 28, 2011. See id. at 48.
Plaintiff has a high school education with no vocational training, and a history of work as a cashier, a receptionist, customer service representative and a bank loan officer. See id. at 18, 50-55. Plaintiff testified that she last worked in 2011. See id. at 50.
A. Physical conditions
After a procedure that was performed on July 24, 2003, by Steven Z. Kussin, M.D., it was revealed that Plaintiff was suffering from pandiverticulosis. Plaintiff continues to experience the symptoms associated with this medical condition, which include lower abdominal pain and reoccurring episodes of severe pain. See id. at 358. In a colonoscopy that was later performed in November 2008, Plaintiff was again shown to have pandiverticulosis and moderate to severe diverticulosis on the left side, as well as some internal hemorrhoids. See id. at 314. Based on the advisement of Gary Neale, M.D., on November 11, 2009, Plaintiff underwent a laparoscopic sigmoidectomy in order to remove the sigmoid colon, in an attempt to correct or minimize the symptoms that she was experiencing such as anxiety, and in order to "[a]ssist her in reducing her episodes of abdominal pain." See id. at 314-15, 321. Since the operation, Plaintiff has continued to experience lower quadrant pains and difficulty with her bowel movements. See id. at 327.
On February 18. 2010, Plaintiff underwent a total vaginal hysterectomy, an anterior and posterior repair, sacrospinous ligament fixation, colpopexy and a cystoscopy, which were conducted by Prabhat Ahluwalia, M.D., in order to treat her mild uterine prolapse and the associated discomfort. See id. at 326. In August of the same year, Plaintiff underwent bladder surgery at St. Elizabeth's hospital. See id. at 373.
Afer expressing that she was experiencing pain in her left knee, that moved down to her left foot, Plaintiff was seen by consulting physician Dr. Kalyani Ganesh, referred by the Division of Disability Determination. In his report dated September 3, 2010, Dr. Ganesh concluded that Plaintiff did not suffer from any limitations in sitting, standing, walking or use of upper extremities. See id. at 376. Dr. Ganesh noted the pain that Plaintiff was experiencing in her left knee was possibly the result of an anterior cruciate ligament tear. See id. at 373. Dr. Ganesh also noted the tenderness Plaintiff was experiencing in her lower abdomen resulting from her recent surgeries and the pain that Plaintiff experienced in her hands. See id. at 373, 376. Even so, Dr. Ganesh did not find Plaintiff to have any severe bodily limitations that would hinder her ability to perform sedentary work. See id. at 376.
Just over a year later, on September 13, 2011, Plaintiff was examined by Dr. Thyra Johnson, where it was noted in a report that an x-ray of Plaintiff's left knee revealed moderate-to-severe arthritic changes, particularly in the medial compartment with medial joint space narrowing. See id. at 415, 417. Dr. Johnson indicated, however, that Plaintiff was not a candidate for knee arthroscopy and, because her ...