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Debra M. Clemente v. Michael J. Astrue

July 13, 2011


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.



Debra M. Clemente ("Plaintiff"), commenced the instant action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), denying her claims for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff filed her application on April 6, 2006, alleging disability since January 1, 1993 due to "[f]ibromyalgia, post traumatic stress disorder, depression, panic disorder, anxiety attacks, diverticulitis, herniated disc in back, essential tremors and chronic neck injury" (AR 62-64; 72).*fn1 Her application was denied, and she requested an administrative hearing before an administrative law judge ("ALJ") (AR 34-35; 56). Following a hearing held on October 3, 2007, (AR 518-574), the ALJ found that Plaintiff was not entitled to a period of disability or DIB under the Act (AR 15-27). Plaintiff‟s request for review by the Appeals Council was denied (AR 5-8), rendering the Commissioner‟s decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ‟s decision. Presently pending before the Court are the parties‟ cross-motions for summary judgment. For the reasons that follow, Plaintiff‟s motion will be denied and the Commissioner‟s motion will be granted.


Plaintiff was 43 years old on the date of the ALJ‟s decision and has a high school education earned through a G.E.D. (AR 77; 525). She has past relevant work experience as a daycare worker and cashier (AR 73; 527). Plaintiff claims disability on the basis of both physical and mental impairments, and it is undisputed that the relevant time period with respect to that determination is from June 15, 1993, Plaintiff‟s amended onset date (AR 529-530), through September 30, 1997, her date last insured (AR 68).

The medical records reveal that Plaintiff was treated by Robert J. Esper, D.O., from April 19, 1991 until July 12, 1999 for her complaints of pain and anxiety (AR 96-148). With respect to Plaintiff‟s physical impairments during the relevant time period, Dr. Esper‟s treatment notes reveal ongoing complaints of cervical, thoracic and/or low back pain. Her physical examinations revealed some restricted motion in her cervical spine, with some mild spasms noted at her visits in March and December 1993 (AR 116-117). Dr. Esper diagnosed Plaintiff with chronic recurring cervical pain, performed manipulation therapy and prescribed Tylenol 4 for her pain complaints (AR 116).

At her office visit in January 1994, Plaintiff reported an improvement in her symptoms, although she still experienced some cervical pain and recurring cephalgia (AR 115). Her physical examination revealed some restriction on right rotation of her cervical spine with some mild spasm noted (AR 115-116).

On June 30, 1995, Plaintiff presented for a premarital physical examination, and Dr. Esper reported that her entire physical examination was within normal limits (AR 114). Her physical examination was also unremarkable at her October 31, 1995 office visit (AR 112).

In 1996, Plaintiff complained of a recurrence of low back pain after shoveling snow and cervical pain (AR 110-111). Her physical examinations revealed a good range of motion in her lower back with some pain on extreme flexion, extension flexion was within normal limits, and no radicular signs or symptoms were present (AR 111). She was diagnosed with chronic recurring low back pain and somatic dysfunction of the cervical, thoracic and lumbar spine (AR 110-111). Dr. Esper performed manipulative therapy and prescribed muscle relaxants (AR 110-111).

In 1997, Plaintiff continued to complain of neck and back pain (AR 107-109). Physical examinations revealed some dysfunction in the cervical, mid-thoracic and lumbosacral spine, as well as some decreased range of motion of the cervical spine (AR 107-109). Dr. Esper diagnosed Plaintiff with chronic myofacial pain syndrome (AR 107-109). He performed osteopathic manipulation therapy and prescribed muscle relaxants, and recommended that she continue her efforts at weight reduction and exercise (AR 107-109).

Following the relevant time period, Plaintiff was seen by various providers for her musculoskeletal complaints. From January 4, 2001 through July 18, 2003, Plaintiff was seen by Frank Mozdy, M.D., who diagnosed Plaintiff with cervical headaches, fibromyalgia, and cervical degenerative disease (AR 149-174). He recommended increased physical activity and weight loss for her symptoms (AR 154).

Plaintiff was also seen by Eric Christie, D.C., from November 1998 through September 17, 2004, who performed standard chiropractic care (AR 456-493). A cervical spine MRI dated March 27, 2002 showed mild disc degeneration with diffuse bulging at the C5-6 and C6-7 levels (AR 468). No significant spinal stenosis was found (AR 468).

From October 10, 2003 through September 12, 2007, Plaintiff was seen by David Overare, M.D. and Robert Stuart, M.D. (AR 200-444). Treatment notes show that Plaintiff was treated with pain medication, muscle relaxants, aqua therapy, acupuncture, a TENS unit and physical therapy (AR 324). An MRI of Plaintiff‟s cervical spine dated September 22, 2006 was negative (AR 329).

On June 6, 2006, James Darcy, a state agency adjudicator, reviewed the medical evidence of record and opined that Plaintiff could perform heavy work (AR 36-42). Mr. Darcy indicated that with respect to Plaintiff‟s condition at her date last insured, Plaintiff had a history of back pain with muscle spasm, but the evidence failed to establish a loss of range of motion or any neurologic limitations (AR 41). Mr. Darcy noted that Plaintiff‟s treatment had been routine and conservative in nature, she had not attended physical therapy, she was able to care for her young child at home, and her medications had been relatively effective in controlling her symptoms (AR 41). He found no evidence of a condition that would have prevented work activity on or before the date last insured (AR 41).

Plaintiff‟s treatment for her mental impairments during the relevant time period reveal that she was first diagnosed with acute anxiety at her April 6, 1994 office visit with Dr. Esper (AR 115). She reported that she was extremely upset because her child had recently been diagnosed with leukemia and was scheduled for a bone marrow transplant (AR 115). Dr. Esper prescribed Tranxene for her anxiety symptoms (AR 115). When seen on April 22, 1994, Dr. Esper switched her medication to Xanax since the Tranxene had not helped her symptoms (AR 115). Dr. Esper noted that she appeared to also have some mild depression, and diagnosed her with acute anxiety and depression (AR 155).

On May 20, 1994, Plaintiff reported that Xanax had been ineffective in managing her symptoms (AR 115). She reportedly was under a great deal of stress with her child, and Dr. Esper discontinued the Xanax and restarted her on a higher dosage of Tranxene (AR 115). At her June 16, 1994 office visit, Dr. Esper noted that Plaintiff appeared "quite distraught" and reported that she would be in Philadelphia for four months while her child was undergoing the transplant (AR 114). She requested a prescription for ...

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