Botta v. Colvin
| Decision Date | 05 February 2014 |
| Docket Number | 12-CV-3403 (SJF) |
| Parties | GUILIA BOTTA, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the following reasons, the Commissioner's motion is GRANTED and plaintiff's motion is DENIED.
On April 26, 2001, plaintiff Guilia Botta ("plaintiff") filed an application, pursuant to Title II of the Social Security Act, for social security disability benefits, claiming a back injury and bursitis in both of her shoulders. Tr. 66-68, 72-75.2 Plaintiff contends she became disabled as of December 28, 1998, the date she stopped working, because her condition limited her ability to sit, stand, walk and bend. Id. at 77.
On September 6, 2001, the Commissioner of Social Security ("Commissioner" or "Secretary") denied plaintiff's claim on the ground she was not disabled under Social Security'srules. Id. at 42. On or about November 9, 2001, plaintiff requested a hearing by an Administrative Law Judge ("ALJ"), claiming the denial was contrary to the evidence and applicable laws. Id. at 46-47.
On October 21, 2003, plaintiff and her attorney appeared before ALJ Seymour Fier. Id. at 202. On February 19, 2004, ALJ Fier issued an unfavorable decision finding that plaintiff was not disabled within the meaning of the Social Security Act and therefore not entitled to benefits. Id. at 18-23. Plaintiff requested review of the ALJ's decision by the Appeals Council, which denied plaintiff's request by notice dated July 29, 2005. Id at 6, 12-13. Plaintiff appealed to the district court in the Eastern District of New York. By Amended Memorandum of Decision and Order dated March, 5, 2007, the Honorable Arthur D. Spatt remanded plaintiff's case to the Commissioner for further administrative proceedings. Id. at 384-413.
On January 29, 2008, ALJ Fier held a second hearing at which plaintiff appeared with her attorney. Id. at 651. On May 19, 2008, ALJ Fier issued a second unfavorable decision finding that plaintiff was not disabled. Id. at 361-77. Plaintiff filed written exceptions with the Appeals Council by letter dated June 5, 2008. Id. at 453-76. The Appeals Council remanded the case to the ALJ and directed that the case be assigned to another judge. Id. at 484-88.
On July 9, 2009, a hearing was held before ALJ Hazel C. Strauss, who issued an unfavorable decision on November 2, 2009. Id. at 318-39, 760-89. Plaintiff filed written exceptions to ALJ Strauss' decision. Id. at 271-317. By letter dated June 2, 2012, the Appeals Council advised plaintiff's attorney that it "found no reason under our rules to assume jurisdiction." Id. at 230. Accordingly, ALJ Stauss' decision is the Commissioner's final administrative determination. Plaintiff filed the instant action pursuant to the Social SecurityAct, 42 U.S.C. § 405(g) on July 10, 2012.
Plaintiff was born in 1947. Tr. 67. At the January 2008 hearing, plaintiff testified that she had completed kindergarten (id. at 661), but at the October 2003 and July 2009 hearings, plaintiff testified that she completed three (3) years of school as a child in Italy. Id. at 205, 778. In addition, plaintiff checked off the third grade as the highest level of education completed on her March 2001 adult disability application. Id. at 83.
Plaintiff was employed as a sewing machine operator in a bridal shop. Id. at 78, 86. In plaintiff's disability application, she claimed that the heaviest weight she had to lift was twenty (20) pounds and that she frequently, i.e., between one (1) to two (2) thirds of the workday, lifted ten (10) pounds. She also claimed that her job required her to sit for seven (7) hours per day; to walk and stand for one (1) half-hour each per day and that she spent one (1) hour per day writing, typing or handling small objects. Id. at 78, 87. At her October 2003 hearing, however, plaintiff testified that the heaviest weight she had to lift was thirty (30) pounds. Id at 213.
In her adult disability application and work history report dated March 7, 2001, plaintiff claimed that a back injury and bursitis in both shoulders limited her ability to sit, stand, walk and bend. Id at 77. She claimed that her injuries began bothering her on December 28, 1998, the date she became disabled and stopped working. Id.
As stated in the application, plaintiff had an "aching" and "stabbing" pain in her lower back and both shoulders which also radiated down both legs, but more so down the left. Id. at 97. She reported experiencing pain "all the time" that was brought on by sitting, standing andbending. Id. at 98. In April 1999, plaintiff began taking medications, including Celebrex, Vicodan and Norflex for pain relief; she also rested and used a hot pack. Id. Plaintiff also claimed that her pain affected her daily activities to the extent that she has to rest all day and avoid physical activities and extended sitting. Id. at 99. Plaintiff reported that her husband and daughter took care of all the household chores. Id. at 94. Thus, her daily activities were limited to reading and watching television. Id. at 94, 98.
At the October 21, 2003 hearing before ALJ Fier, plaintiff testified that she had collected unemployment insurance benefits for four (4) months after her last day worked and then began receiving worker's compensation benefits in the sum of $250 per month. Id. at 206-07. When asked how she spent her day, plaintiff responded that she watches television and crochets, but in a limited manner because it hurts her right hand. Id. at 210. She testified that she can sit for approximately one (1) half an hour, but cannot stand for a long time because her legs hurt; she can walk a block and a half at a time. Id. at 213. While plaintiff was employed sewing bridal dresses, the heaviest weight she had to lift was thirty (30) pounds, but as of the time of the hearing, plaintiff testified she could not lift more than a couple of pounds. Id.
When questioned by ALJ Fier, plaintiff testified that she watched television for an hour at a time, or longer if it was a movie, cooked occasionally and sometimes played with her dog in her backyard. Id. at 216.
Vocational expert Dr. Fred Siegel testified at the October 2003 hearing. Id. at 222. He testified that plaintiff's vocation as a sewing machine operator was classified as "light" pursuantto Dictionary of Occupational Titles ("DOT") 786.682-170 based on the fact that it involved the operation of a machine. Id. Dr. Siegel also testified that plaintiff would be able to return to such work in the event the ALJ found she was able to perform light work. Id. at 222-23.
Vocational expert Andrew Pastomak testified at plaintiff's January 2008 hearing before ALJ Fier. Id. at 747. He stated that plaintiff's job as a sewing machine operator in a bridal shop is considered DOT 786.685-030, an unskilled job rated at the light level of physical exertion. Id. Pastomak further stated that a sewing machine operator is so rated because of the repetitive use of the arms, hands and feet in operating and running material through the machine. Id. He testified that plaintiff would be qualified to continue performing this type of work if the ALJ found she was able to continue doing light work. Id. at 748.
On November 30, 1998, plaintiff saw Dr. Richard Nottingham who reported that plaintiff's chief complaint was "pain in the low back region with radiation into the left leg." Id at 123. The report also states that plaintiff "has had this problem for many years" and was seen by the doctor in 1992, at which time he diagnosed plaintiff with sciatica. Id. He noted that she had experienced intermittent pains since then, but no numbness in her leg. Id.
Dr. Nottingham's physical examination of plaintiff revealed that she was somewhat overweight and that her "[r]ange of motion of the back is markedly limited with pain," Id. A straight leg raise to seventy (70) degrees caused pain, but plaintiff's deep tendon reflexes, sensation and muscle power were intact. Id An X-ray of plaintiff's lumbosacral spine revealed mild degenerative changes and "left sciatica" for which Dr. Nottingham prescribed Naprosyn. Id.
An MRI of plaintiff's lumbar spine showed that the "[h]eight of the lumbar vertebralbodies are well maintained" and no evidence of fracture, marrow replacement process or spondylolisthesis. Id. at 124. The MRI also revealed a minimum central herniated disc at L4-L5, with minimum compression of the anterior thecal sac and L5-S1 discal level revealed circumferential discal bulging and discal degeneration without significant spinal stenosis. Id. at 125.
In December 1998, Dr. Peter Hollis saw plaintiff for a neurological evaluation. Id. at 164. He noted that plaintiff had no "complaint of weakness" or bowel or bladder dysfunction. Id. After reviewing the MRI films of her lumbar spine, Dr. Hollis noted "mild disc herniations in the two lower lumbar areas, but . . . no clear nerve compression." Id. Dr. Hollis noted, however, the suggestion of bilateral foraminal encroachment at L5-S1. Id. Straight leg raising was positive on the left at 60 degrees, but negative on the right; there was no spine tenderness; and plaintiff's sensation, gait and coordination were intact. Id. Dr. Hollis diagnosed lumbar radiculopathy with possible peripheral neuropathy and recommended further testing. Id.
By letter dated February 1, 1999, Dr. Hollis advised Dr. Nottingham that plaintiff had bilateral lumbar radiculopathy and that her options were either weight loss with aggressive exercise or surgical...
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