Botta v. Barnhart
| Decision Date | 13 February 2007 |
| Docket Number | No. 05CV4382(ADS)(ARL).,05CV4382(ADS)(ARL). |
| Citation | 475 F.Supp.2d 174 |
| Parties | Guilia BOTTA Plaintiff, v. Jo Anne BARNHART, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Law Offices of Jeffrey Delott, Jericho, By Jeffrey Delott, Esq., of Counsel, for the Plaintiff.
Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, Brooklyn, By Keisha-Ann G. Gray, Assistant United States Attorney.
Guilia Botta (the "plaintiff') commenced this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final determination of the Commissioner of Social Security (the "Commissioner" or the "defendant") denying her April 26, 2001 claim for disability insurance benefits. Presently there are three applications before the Court: (1) the plaintiffs appeal of an order of United States Magistrate Arlene R. Lindsay, dated February 6, 2006, denying the plaintiffs motion for discovery; (2) the plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure ("Fed. R. Civ.P."); and (3) the defendant's cross-motion for judgment on the pleadings.
On April 26, 2001, the plaintiff filed an application for disability insurance benefits. (Tr. 72-75.) The plaintiff claimed that she was unable to work since December 28, 1998 because of a back injury and bursitis of both shoulders. (Tr. 72.)
On September 6, 2001, the Commissioner denied the plaintiff's application. (Tr. 42-52.) On November 5, 2001, the plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 47.) On October 21, 2003, a hearing was conducted before ALJ Seymour Fier. The plaintiff appeared with her attorney and an Italian interpreter. In addition to the plaintiffs testimony, the ALJ also heard testimony from a medical expert, Dr. Theodore Cohen, and a vocational expert, Dr. Fred Siegel.
In a decision dated February 19, 2004, the ALJ determined that the plaintiff was not entitled to disability insurance benefits. (Tr. 18-23.) According to the ALJ, the plaintiff was not disabled within the meaning of the Act because she retained the ability to return to her past relevant work as a sewing machine operator. (Tr. 21.) The plaintiff had worked as a sewing machine operator in a bridal shop from June, 1980 until the time of her alleged disability in December, 1998. (Tr. 86.)
On or about March 1, 2004, the plaintiff filed a request for review of the ALJ's determination with the Appeals Council. (Tr. 12.) On July 29, 2005, the Appeals Council denied the plaintiff's request for review of the ALJ's decision. (Tr. 6-9.) The Appeals Council's denial of review rendered the ALJ's decision the Commissioner's final administrative determination. On September 16, 2005, the plaintiff commenced this action.
The plaintiff was born on June 13, 1947 in Italy, and is now 59 years old. The plaintiff testified that she became a citizen of the United States in 1979. The plaintiff has two children, a 37 year-old daughter and a 33 year-old son. She lives with her husband and her daughter. The plaintiff testified that she has had years of schooling in Italy; can not read or write at all in English; and can not read or write "much" in Italian. For the past eighteen years until the time of the onset of her alleged disability, the plaintiff worked as a sewing machine operator.
The plaintiff claims to have stopped working as a sewing machine operator in December, 1998 because of pain in her shoulder, her back, and her legs. After the plaintiff stopped working, she collected Unemployment Insurance Benefits for approximately four months, and has been collecting Workers' Compensation for approximately the last three years. The plaintiff testified that she spends her days watching television, crocheting, sitting in the yard, or playing with her dog. She watches television for approximately one hour, unless she is watching a movie that she likes, when she will "sit there more." Her husband and daughter shop and do the chores, but occasionally the plaintiff will cook a light meal. The plaintiff has not made any effort to return to work since her injury. She testified that when she sits at the sewing machine her back, leg, and shoulder hurt.
The plaintiff testified that she has not been to an emergency room at any time within the last three years. The remainder of her testimony regarding her medical treatment was somewhat inconsistent. In response to questioning by the ALJ regarding whether the plaintiff is "seeing a doctor on a regular basis," the plaintiff testified that she sees a doctor, who is Chinese and whose name she doesn't remember, once per year for "tests"; that she sees Dr. Peter Berra, her "family doctor," approximately once every two months; and that she is taking a "water pill" and Aspirin. Upon questioning by her attorney, the plaintiff testified first that she saw Dr. Benjamin Yentel for her back, neck, and shoulder injury just once; and later that she saw him "every month." She also testified that she hasn't seen Dr. Yentel for "two or almost three months," but immediately after that stated that she saw him "last week," but that he now refuses to treat her because her insurance will not pay.
The plaintiff also testified about her subjective limitations in response to questions by her attorney. The plaintiff testified that her back, her legs, the back of her neck, and her shoulders hurt. She believes that she can sit for about one half hour at one time without a problem, but then will have to get up. She cannot stand for a long time because her legs hurt. The plaintiff testified that she can only walk "around the block, a block and a half." The plaintiff testified further that when she last worked, she would have to lift "more than 30 pounds," and that now she can only lift "a couple of pounds." The plaintiff is not currently getting treatment, but testified that her doctors told her that she cannot work.
On November 30, 1998, Dr. Richard Nottingham examined the plaintiff. Dr. Nottingham's specialty is not apparent from the administrative record. (Tr. 123.) At that time in 1998, the plaintiff was 51 years old. The plaintiffs chief complaint was of pain in the low back region and the left leg. Dr. Nottingham indicated that the plaintiff had this problem for many years, and that he had seen the plaintiff in 1992 for sciatica. The plaintiff had intermittent pains since 1992, and did not have numbness in her legs.
Upon examination, Dr. Nottingham indicated that the plaintiff was overweight; the range of motion of her back was "markedly limited with pain"; and "straight leg raise to 70 degrees causes back pain." An x-ray of the lumbosacral spine revealed mild degenerative changes. The doctor's impression was "left sciatica" and he noted to "rule out herniated disc left lumbar region." (Tr. 123.)
On a referral from Dr. Nottingham, on December 7, 1998, Dr. Choi reviewed an M.R.I. of the plaintiff lumbar spine that was conducted. (Tr. 124-125.) Dr. Choi's impression was of L4-5 herniated disc, subligamentous type, with minimum compression of the anterior thecal sac; L5-S1 circumferential bulging disc without significant spinal stenosis. (Tr. 125.)
On December 28, 1998, Dr. Peter H. Hollis, a neurological surgeon, examined the plaintiff on a referral from Dr. Nottingham. (Tr. 164.) In a letter to Dr. Nottingham, Dr. Hollis reported that the plaintiff was a fifty-two year old woman "who has had several years of progressive pain in the lower back radiating into the left leg with numbness and tingling." The plaintiff provided her M.R.I. to Dr. Hollis, who reported that the M.R.I. showed mild disc herniations in the two lower lumbar areas, but no clear nerve compression. Dr. Hollis also stated that he saw a suggestion of bilateral foraminal encroachment at L5-S1.
The plaintiffs main symptoms at that time were involved pain radiating from the back to the left buttock and thigh. The plaintiff had no spine tenderness; her straight leg raising test was positive on the left at 60 degrees, and negative on the right; she was able to heel and toe walk; and a motor examination revealed normal strength. Dr. Hollis' impression was lumbar radiculopathy with and/or possible peripheral neuropathy. Dr. Hollis noted that he would arrange for the plaintiff to have a lumbar myclogram and post myelo-CT scan to better document and delineate the exact nature and extent of any neural impingement and to better evaluate the plaintiff for foraminal stenosis. Dr. Hollis indicated that he would also arrange for the plaintiff to have an EMG to rule out peripheral neuropathy.
On February 1, 1999, Dr. Hollis saw the plaintiff for a follow-up examination. (Tr. 163.) Dr. Hollis indicated that the plaintiff had a lumbar myelogram and post myelo-CT scan. The plaintiff's left radiculopathy was causally related to the L4-5 disc herniation. Dr. Hollis made similar findings on the right side at L5-S1. Dr. Hollis opined that these findings explained the plaintiffs bilateral lumbar radiculopathy. Dr. Hollis provided treatment options to the plaintiff, which included weight loss and aggressive exercise, or surgical decompression. Dr. Hollis stated that the plaintiff was "choosing the conservative route," but did not elaborate further.
On March 1, 1999, Dr. Hollis saw the plaintiff for a second neurological follow-up examination. Dr. Hollis reported that the plaintiff's lumbar myelogram and post myelo-CT scan showed multiple disc herniations causing neural impingement. Dr. Hollis recommended that the plaintiff undergo surgical intervention, but the plaintiff was not interested in...
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