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Campbell v. Astrue

United States District Court, E.D. New York

April 13, 2015

MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant.

Christopher James Bowes, Esq., Of Counsel, The Office of Christopher James Bowes, Shoreham, NY., Attorney for the Plaintiff.

Vincent Lipari, Assistant U.S. Attorney, United States Attorney's Office, Eastern District of New York, Central Islip, NY., Attorneys for the Defendant.


ARTHUR D. SPATT, District Judge.

On October 19, 2012, the Plaintiff Danamarie Campbell (the "Plaintiff") commenced this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. ยง 405(g), seeking review of a determination by the Commissioner of Social Security (the "Commissioner") to deny the Plaintiff's application for disability insurance benefits.

Presently before the Court are the parties' cross motions pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(c) for judgment on the pleadings. For the reasons set forth below, the Court denies the Plaintiff's motion and grants the Defendant's cross-motion.


A. The Plaintiff's Background

The Plaintiff was born in Jamaica on July 18, 1976 and was thirty-three years old at the time of the automobile accident which caused the injuries at issue in this case. (R. 86, 90.) She emigrated to the United States, graduated from high school in the United States, and completed one semester of college. (R. 29.) The parties do not specify the dates when these events occurred. Nor do they specify what high school and college the Plaintiff attended.

In her application for disability benefits under the Act, the Plaintiff stated that from 1992 to 2001, she worked as a cashier at Kentucky Fried Chicken, White Castle, Payless Shoe Store, Sears, and BJ's Wholesale Club. (R. 111, 139.) The Plaintiff stated that these jobs involved tasks, such as, taking orders, preparing food for customers, stocking inventory, organizing items on shelves, and working at the cash register. (R. 113-115.)

She also stated that from 1995 to 2009, she worked as a home care aide at assisted living facilities. (R. 139.) The Court notes that it appears from her application that from 1995 to 2001, she performed worked as a cashier and a home care aide at the same time. However, her application does not state the dates when she was employed by these businesses or what her hours were when she was employed. Thus, it is not clear from the record whether during this period she worked as both a home health care aide and a cashier on a part-time basis.

With respect to her job as a home care aide, she testified that her duties entailed providing personal care to residents at the facilities, assisting transfer of residents in and out of beds, and distributing food to residents. (R. 32.) In connection with these tasks, the Plaintiff estimated she spent "seven and a half hours" standing. (R. 33.)

B. The Medical Evidence

1. The March 17, 2009 Emergency Room Visit

On March 17, 2009, the Plaintiff's car was rear-ended by another car. (Tr. 172.) As a result, she sustained a "whiplash type injury" and jammed her finger but did not lose consciousness. (Id.) She was subsequently taken to an emergency room at New Island Hospital ("New Island") in Bethpage, New York, where X-rays were taken. (Tr. 151.)

At the emergency room, she was seen by Dr. Scott Springer. (R. 154.) In a status report Dr. Springer stated:

Findings: AP, lateral and open-mouth views of cervical spine. There is straightening of the normal curve which could reflect spasm. There is no fracture, subluxation or prevertebral soft tissue swelling. Mild degenerative change greatest at C-7.
Impression: Straightening of the normal lordoctic curve may reflect spasm. No fracture. If symptoms persist recommend further workup.

(R. 154.)

Dr. Springer diagnosed her with a cervical sprain and prescribed 400 mg of ibuprofen and 10mgs of Flexeril. (R. 173.) Nicole Leggio ("Leggio"), a physician's assistant at New Island, later increased her medication to 800 mg of ibuprofen and replaced the 10 mgs of Flexeril with 2 mgs of Valium. (Id.)

2. The Post-Accident Medical Evidence

a. Treatment by Drs. Gentile and Gonya

On March 24, 2009, the Plaintiff was referred by Dr. Cecora and Leggio to Dr. David A. Gentile, an osteopath. (R. 173.) In a report regarding the Plaintiff's visit, Dr. Gentile noted, "Patient has guarded neck spasm, tingling into the right arm, and occasionally, tingling into the right jaw region." (Id.) The report further described Dr. Gentile's observations of the Plaintiff's injuries:

Positive swelling in through the right arm and exacerbation of tingling. Patient has guarded neck spasm, right sided trapezial, cervical paravertebral, levator and rhomboid. Fine motor affected on the right hand with grip strength and negative Tinel's. Patient has vibratory intact and tactile intact.

(R. 174.)

Dr. Gentile diagnosed the Plaintiff with "cervical radiculopathy, muscle spasm, and motor vehicle accident injury." (Id.) He provided the Plaintiff with "trigger point injections" for her pain and noted that following the injections, the Plaintiff's "pain/symptoms reduced with increased range of motion." (Id.)

On April 1, 2009, Dr. Gentile referred the Plaintiff for a Magnetic Resonance Imaging ("MRI") of her cervical spine. (R. 159.) The MRI revealed:

Straightening of the normal cervical lordosis with mild reversal. Small central posterior protruded disc herniation at the C6-7 level coming in contact with the ventral aspect of the cervical spinal cord. Tiny central posterior protruded disc herniation at the C5-6 level. No evidence for edema with the cervical spinal cord. Patent neural foramina bilaterally.


On April 16, 2009, Dr. Gary Gonya, an orthopedic surgeon, performed a physical exam of the Plaintiff. (R. 176.) During the exam, the Plaintiff complained of "significant pain... in the right upper extremities" and stated that she was "having difficulty with fine motor control in the right hand." (Id.) She described the pain in her neck and her arm as a "7/10" in severity. (Id.) She also told Dr. Gonya that she had been "going to physical therapy, but... that every time she goes to a session, [she] feels... more symptomatic." (Id.)

After performing the physical exam, Dr. Gonya described her condition as follows:

Patient is in obvious discomfort. Positive Spurling on the right, negative on the left. There is no signs of shoulder impingement. Tender to palpitation throughout the paraspinal musculature in cervical and thoracic.... No focal or sensory deficit in the lower extremities. Able to stand heel stand. No pain with internal or external rotation of the hip.

(R. 175.) Dr. Gonya diagnosed the Plaintiff with "[c]ervical disk herniation and radiculopathy" and advised the Plaintiff to "continue anti-inflammatories, muscle relaxant..., and physical therapy." (R. 176.)

On May 4, 2009, the Plaintiff had a follow-up appointment with Dr. Gentile, her osteopath. (R. 177.) He noted that the Plaintiff was "still having right-sided cervical pain, radiculopathy, [and] some right ear fullness." (R. 177.) Dr. Gentile continued to diagnose the Plaintiff with "[c]ervical radiculopathy, cervical disc disease." (Id.) He treated her with "gently osteopathic manipulative medicine, " which included a "[t]rigger point injection... in the right trapezial region" and a prescription for Darvocet, Celeza, and Nexium. (Id.) He also referred the Plaintiff for X-Rays of her "T-spine, right shoulder and right elbow." (Id.)

On May 11, 2009, the Plaintiff returned to Dr. Gentile. (R. 178.) At this visit, she complained of "numbness [and] tingling in the right 1st and 2nd digits" of her right hand. (Id.) Dr. Gentile noted that on May 8, 2011, the Plaintiff had X-Rays for her T-Spine, right elbow, and right shoulder. (Id.) These X-Rays were "negative." (Id.) He noted that the Plaintiff had "full range of motion" in her neck but had "[t]ender points and trigger points in the right trapezial and levator region." (Id.)

At a May 18, 2009 follow-up visit, Dr. Gentile again noted that the Plaintiff was "doing well with injections" and "having success with Neurontin." (R. 179.) However, the Plaintiff was "still having cervical radicular pain and spasm." (Id.) Again, Dr. Gentile treated the Plaintiff with trigger point injections in her "trapezial region." (Id.) He increased her prescription for Neurontin from 100 mgs to 200 mgs and advised her to continue with physical therapy. (Id.)

Following a June 8, 2009 visit, Dr. Gentile stated that the Plaintiff "is doing very well with manipulation and injections." (R. 180.)

On June 22, 2009, the Plaintiff attended a follow-up appointment with Dr. Gentile. (R. 181.) Dr. Gentile's assessment was similar to his earlier assessments - he found that the Plaintiff was "doing well with osteopathic treatment and injections." (Id.) He further noted that an "EMG done by a neurologist" showed that the Plaintiff had "no nerve damage." (Id.)

Three days later, on June 25, 2009, the Plaintiff returned to Dr. Gentile's office. (R. 184.) Dr. Gentile noted that the Plaintiff had "right shoulder [and] right cervical pain and spasm" but was otherwise "doing well with manipulation injections." (Id.) He administered additional trigger point injections into her "rhomboid muscle right side." (Id.)

The Plaintiff received a similar prognosis from Dr. Gentile following a July 2, 2009 visit: "Patient is doing very well with manipulation and injections." (R. 185.)

b. Treatment by Dr. Cappellino

On June 23, 2009, the Plaintiff was examined by Dr. Anthony Capellino, an orthopedic surgeon. (R. 205.) In his report of the examination, Dr. Capellino stated that the Plaintiff's "cervical spine shows diffuse midline tenderness from C1 to C7"; "tenderness" in the right paraspinal and parascapular"; and "spasms." (Id.) He further noted that the Plaintiff's "[r]ange of motion is full" but that she had "some discomfort with flexion, extension, rotation, and lateral bending." (Id.) Examinations of her right shoulder, right elbow, and right wrist showed "no tenderness" and full "range of motion." (Id.) He advised the Plaintiff to "proceed with conservative measures and a home exercise regimen." (Id.)

On September 9, 2009, the Plaintiff returned to Dr. Cappellino. (R. 209.) The Plaintiff told him that she continued to experience pain in her neck and hands, as well as headaches. (Id.) In his report of the examination, Dr. Cappellino noted that there was still "diffuse tenderness" in the Plaintiff's spinal region and some "restriction with flexion, extension, rotations, and lateral bending." (Id.) However, his examination of the Plaintiff's right shoulder, elbow, and wrist did not indicate any additional symptoms. (Id.)

The Plaintiff saw Dr. Cappellino for follow-up appointments on October 21, 2009; December 2, 2009; January 13, 2010; March 3, 2010; and April 14, 2010. (R. 211-15.) At these visits, the Plaintiff continued to complain of headaches, as well as cramping and burning sensations in her arms and fingers. (Id.) In his examinations of the Plaintiff, Dr. Cappellino continued to find "diffuse mild tenderness" and muscle spasms in the Plaintiff's cervical spine. (Id.) However, he also generally found that the Plaintiff had full range of motion in the movement of her spine, elbows, and wrists. (Id.)

c. Treatment by Dr. Paticoff

On September 10, 2009, the Plaintiff met with Dr. Joshua Paticoff, a pain management specialist. (R. 234-36.) In his report, Dr. Paticoff notes that examination of the Plaintiff's cervical spine revealed "muscular tension" in her neck with "multiple focal spasms." (R. 235.) However, he noted that the Plaintiff's cervical spine had good range of movement in "all directions." (Id.)

In addition, Dr. Paticoff performed a neurological exam on the Plaintiff and found that she had "4/5 motor strength RUE and 5/5 motor strength LUE" and a mild decrease in sensation to light touch over medial right distal upper extremity." (Id.) Dr. Paticoff concurred with the diagnosis of Drs. Cappellino and Gentile and diagnosed the Plaintiff with "[c]ervical radiculitis" and a "herniated disc." (Id.) He recommended cervical epidual steroid injection treatment. (R. at 235-36.) Finally, Dr. Paticoff described the Plaintiff's "[d]egree of [d]isability" as "[t]emporary totally disabled." (R. 235.)

The Plaintiff saw Dr. Paticoff for follow-up appointments from October 22, 2009 to May 6, 2010. (R. 216-36.) During these visits, Dr. Paticoff provided the Plaintiff with trigger point injections and prescribed Voltaren gel and Flektor patches for mild pain relief. (Id.) During most of these visits, Dr. Paticoff noted that the Plaintiff reported "excellent" or "good" pain relief from the injections. (R. 217, 200, 222, 224, 226, 228.) In addition, on March 4, 2010, ...

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