Tranter v. Astrue

743 F.Supp.2d 292

Nadia T. TRANTER, Plaintiff,

v.Michael J. ASTRUE, Defendants.

Civil No. 09–5133 (GWG).

United States District Court, S.D. New York.

Oct. 20, 2010.

Barry I. Weiss, David M. Wagner, Freedman, Wagner, Tabakman & Weiss, New City, NY, for Plaintiff.John E. Gura, Jr., Assistant United States Attorney, U.S. Attorney's Office, New York, NY, for Defendants.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiff Nadia Tranter brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security denying her claim for Supplemental Security Income (“SSI”) benefits. The parties consented to this matter being decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The Commissioner and Tranter have moved separately for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons stated below, the Commissioner's motion is granted and Tranter's motion is denied.

I. BACKGROUNDA. Administrative Proceedings

Tranter applied for SSI benefits on March 7, 2007, alleging that she has been unable to work since February 23, 2005. See Administrative Record (annexed to Answer, filed Nov. 30, 2009) (Docket # 5) (“R”) at 127. She had previously been employed as a prison outreach representative, a job she retired from in 2004. R. 149. As part of her application, Tranter submitted records from treating physicians and physical therapists who had been treating her for an injury to her left arm and shoulder following a car accident in 2005. See R. 227–681. She also underwent examinations by consultative physicians hired by the agency. See R. 345.

On May 30, 2008, her application was denied. R. 72–77. Tranter requested a hearing before an Administrative Law Judge (“ALJ”). R. 81. The ALJ held an initial hearing on August 12, 2008, see R. 16–55, and a supplemental hearing on December 9, 2008, see R. 56–71. On December 30, 2008, the ALJ denied Tranter's application. R. 6–15. Tranter appealed the decision to the Appeals Council, see R. 5; the council denied her appeal on April 22, 2009, R. 1–4. She filed the instant action on June 2, 2009. See Complaint, filed June 2, 2009 (Docket # 1) (“Compl.”).

1. Medical Records

On February 23, 2005, Tranter was involved in a motor vehicle accident in which her car collided with a school bus. See R. 303. She was treated in the emergency room of Good Samaritan Hospital and then by Dr. Frank Butera, where she presented with “C-spine and upper thoracic spine tenderness and pain.” R. 303–04. Dr. Butera's physical examination showed some tenderness and pain in the “left upper extremity”; while he found her shoulder to be “normal,” she had “limitation at end range secondary to pain and tenderness.” R. 303. Her left arm pain was not diagnosed. See R. 304. He prescribed her pain medication and recommended physical therapy. Id. Tranter began physical therapy in March 2005, which she continued through June 2007. See R. 248–81, 367–73, 393–429, 521–28, 539.

Tranter returned to Dr. Butera for a check up on March 21, 2005, presenting with pain in her neck, left arm, upper thoracic, and anterior chest region. R. 302. She had completed three weeks of physical therapy as of her visit, but reported that it had not improved her condition. Id. The physical exam showed that she had spasms in her trapezius muscle, but “maintain[ed] 5 over 5 strength” bilaterally in her upper extremities and two over four strength for “reflexes bilateral biceps and triceps tendon.” Id. Dr. Butera directed her to continue physical therapy and to “avoid any heavy lifting and rotational/repetitive movements with the upper extremities or back.” Id. An MRI showed “mild degenerative changes at C5–C6 and C6–C7,” R. 301, 306, ¹ but “no evidence of herniated nucleus pulposus,” R. 301.

From March 2005 to December 2005, Tranter had monthly appointments with Dr. Butera. R. 293–302. During those visits Dr. Butera's notes reflect that Tranter continued physical therapy, began acupuncture, and showed some improvement, though she continued to present with muscle spasms and tenderness on her left side and arm. Id. In an examination on May 17, 2005, Dr. Butera found that notwithstanding her continued tenderness, she was neurovascularly intact. See R. 299.

On June 17, 2005, Tranter was examined by Dr. Paul G. Jones, an orthopedic surgeon, who found that her “left trapezius and left cervical areas were very tender to light skin touch. Range of motion ... [was] intact, although grip strength with manual testing was diminished on the left side.” R. 244. His exam showed evidence of “frozen shoulder” and that she had “very diffuse pain to light touch” around “her entire shoulder girdle.” R. 245. He recommended that she have a MRI. Id. He found that “she was unable to return to work at this time although she” could “carry out her activities of daily living using her right upper extremity.” Id.

On June 24, 2005, Dr. Herbert M. Oestreich conducted an “independent medical examination” of Tranter. R. 677. He observed that she “appeared to be a depressed woman who was at times tearful.” Id. She explained that moving her left arm and shoulder caused her pain and restricted her ability to use her arm. See id. During the physical exam she “would not elevate the left arm voluntarily nor would she allow for passive elevation of the left arm/shoulder.” R. 678. “Individual muscle groups of the lower arm were tested and found to be normal.” Id. Dr. Oestreich found “no objective neurological deficit” but did find that she showed “signs of a potential reflex dystrophy [,] or at the very least[,] the beginnings of a frozen shoulder syndrome.” R. 679. Moreover, “[o]n the basis of the pain” he found that “she is presently disabled” and that “physical therapy” would be the proper course of treatment. Id.

Tranter returned to Dr. Butera on August 9, 2005, who found her improved, stating that “she is to resume all normal activities of daily living with restrictions of no heavy lifting or repetitive motions....” R. 297. On August 25, 2005, she returned to Dr. Butera complaining of “cervical neck pain and pain into her left shoulder with radiation type symptoms” which also limited her range of motion. R. 296. A physical exam revealed that she had “limited range of motion in forward elevation, external rotation and internal rotation of the left shoulder” and “[p]ossible early frozen shoulder/rotator cuff pathology.” R. 296. At the next check up, her “early frozen shoulder” showed signs of improvement and her recent MRI showed her shoulder to be normal. R. 295. Medical records in November and December 2005, reflect that Tranter was improving slightly, and she admitted to having “good days and bad days.” R. 293–94.

Starting on December 13, 2005, Tranter began seeing Dr. Louis M. Starace. R. 293. Dr. Starace found that Tranter was responding well to physical therapy and that she was “grossly intact neurovascularly, with a continued impression of left shoulder sprain and strain and cervical spine sprain/strain affecting the left side.” Id.

In the same month, she also began to see Dr. Walter L. Nieves, a neurologist, who in a letter to Tranter's attorney diagnosed her condition as “post traumatic cervical strain with radical features....” R. 462, 584. He reported her strength capacity to be five out of five and that her coordination was “within normal limits on finger/finger and heel/shin/knee. Rapid alternating movements [were] well performed in the upper and lower extremities. Fine finger movements [were] well performed” with “some limitations on finger/finger involving the left arm due to limit[ed] motion at the shoulder.” R. 338–39.

Dr. Nieves examined Tranter three more times in January 2006 and multiple times in September and October 2006. During these visits she continued to complain of shoulder pain. R. 489–95. Dr. Nieves recorded the following in notes dated January 24, 2006: “shoulder pain ? RSD ? [Reflex Sympathetic Dystrophy] frozen shoulder.” R. 493. During the same period, Tranter also saw Dr. Starace about once a month with continued complaints of neck and shoulder pain. See R. 283–92. During a visit on April 27, 2006, she also reported that after prolonged activity “she occasionally has a shooting pain into the region of her left hand and thumb....” R. 289.

In January 2007, Tranter underwent electro-diagnostic testing. R. 325, 497–99, 536–38, 536–38, 586–87. Dr. Rochelle Brief conducted the testing and observed that Tranter did not move her left arm and had restricted movement in her neck but no “trophic changes.” See R. 325. The testing showed “no indication of a cervical radiculopathy, nerve entrapment syndrome, peripheral neuropathy or myopathy,” but Dr. Brief could not “rule out neurological causes of a central origin or RSD.” Id. She also underwent a bone scan of her head and trunk, the result of which was normal. See R. 310. In March 2007, Dr. Nieves switched Tranter from Vicodin to Skelaxin, see R. 478, which helped decrease some of her arm pain, though she continued to complain of left shoulder pain even with passive motion, see R. 464–77.

On April 2, 2007, Dr. Nieves completed a form for the SSA discussing his treatment and assessment of her physical condition. R. 326–33. His diagnosis was “RSD left arm/shoulder” and “cervical damage” based on current symptoms of left shoulder pain and loss of motion in the left shoulder and arm. Id. Her condition appeared permanent, see R. 327, and the pain could be alleviated somewhat with medication, see R. 330. As a result, Tranter was unable to carry, lift, push, or pull with her left arm, but not limited in her ability to stand, walk, or sit. See R. 332. On April 16, 2007, Dr. Nieves provided a letter to an attorney summarizing Tranter's medical history and treatment. R. 459–63. He opined that her coordination and gait were normal and that she appeared “to continue to have...