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Theresa Frances Veite v. Michael J. Astrue

December 27, 2011


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



Theresa Frances Veite ("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 May 27, 2009 alleging disability since May 3, 2009 due to lung cancer (AR 101-107; 132).*fn1 Her application was denied, and following a hearing before an administrative law judge ("ALJ") held on March 31, 2010 (AR 22-56), the ALJ found that Plaintiff was not entitled to a period of disability or DIB under the Act (AR 10-17). Plaintiff's request for review by the Appeals Council was denied (AR 1-3), 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, the Plaintiff's motion will be denied and the Commissioner's motion will be granted.


Plaintiff was 53 years old on the date of the ALJ's decision and has an eighth grade education (AR 17; 101; 137). She has past relevant work experience as a housekeeper and machine operator (AR 133).

Prior to Plaintiff's alleged disability onset date of May 3, 2009, an MRI of the Plaintiff's lumbar spine dated April 12, 2005 revealed a small central disc herniation at the L5-S1 level causing very minimal impingement (AR 280). An x-ray of Plaintiff's cervical spine dated April 18, 2007 showed fusion of the C5 through C6 with excellent alignment and no evidence of fracture (AR 278). An x-ray of Plaintiff's shoulder dated April 18, 2007 was unremarkable (AR 279), and a left shoulder MRI dated May 31, 2007 revealed tendinopathy, but was otherwise unremarkable (AR 277).

The medical evidence following Plaintiff's alleged disability onset date reveals that on May 4, 2009, Plaintiff presented to the emergency room at the Bradford Regional Medical Center complaining of a persistent cough since January 2009 (AR 198-200). It was determined that Plaintiff had lung cancer (AR 169-176; 183; 198-200). Plaintiff denied suffering from any neck, back or joint pain, and denied any difficulty walking (AR 201). When seen by Eyad AlHattab M.D., an oncologist, on May 5, 2009 for evaluation of her lung cancer, Plaintiff denied suffering from any bony aches or pains, and her physical examination was unremarkable except for tenderness of the left chest wall suggestive of a rib fracture (AR 198-199). On May 12, 2009, Dr. Al-Hattab completed an Employability Assessment Form for the Department of Public Welfare and stated that Plaintiff was permanently disabled due to advanced lung cancer (AR 215-216).

On May 21, 2009, Plaintiff was seen by Sai Yendamuri, M.D. at the Roswell Park Cancer Institute for a surgical consultation (AR 223). Plaintiff reported suffering from headaches and complained of joint pain, especially in her knees (AR 223). Physical examination of her lower extremities revealed no edema and she was neurologically intact (AR 224).

On June 8, 2009, Dr. Yendamuri performed surgery for Plaintiff's lung cancer (AR 231-234). Upon discharge from the hospital, Dr. Yendamuri restricted Plaintiff from lifting any weight greater than 20 pounds, and she was to avoid strenuous activity (AR 230). At her postoperative check up on June 25, 2009, Plaintiff reported that she felt better and that her energy level continued to improve (AR 226). She noted some shortness of breath, chills, a cough and occasional hoarseness since surgery (AR 226). She further reported suffering from an occasional headache and denied any numbness or tingling in her hands or feet (AR 227). On physical examination, Dr. Yendamuri noted that Plaintiff was alert, oriented, "very pleasant," cooperative and in no apparent distress (AR 227). Her lungs were clear and her surgical scar well healed, and her remaining physical examination was unremarkable (AR 227). Dr. Yendamuri reported that Plaintiff continued to do well and intended to undergo chemotherapy (AR 227).

On June 24, 2009, Plaintiff was psychiatrically evaluated by Kimberly Ann Ditz, C.R.N.P. at The Guidance Center upon referral by the Visiting Nurses Association (AR 336-339). Plaintiff reported no past mental health treatment or medication (AR 336). She indicated that she had experienced depressive symptoms since she was a teenager, including a sad mood and tearfulness, and had tried to commit suicide on four or five occasions (AR 336). Plaintiff claimed an increase in her depressive symptoms over the years, including decreased interest and energy, as well as poor concentration (AR 336). Plaintiff relayed her past physical history, noting that she was healing from cancer surgery without complications and was preparing to undergo chemotherapy (AR 336-337).

Plaintiff complained of trouble falling asleep, anhedonia, decreased energy, poor concentration, suicidal ideations, and racing thoughts with increased irritability and anxiety (AR 337). She reported feelings of hopelessness and worthlessness, and stated that she suffered panic attacks twice a week (AR 337). Plaintiff claimed she stayed secluded in her home (AR 336). She denied any obsessive compulsive disorder symptoms, and reported no cognitive deficits or learning difficulties (AR 338).

On mental status examination, Ms. Ditz reported that Plaintiff was pleasant, cooperative, responsive and maintained good eye contact (AR 338). She was fully oriented, and her speech was clear, productive, non-pressured and spontaneous, and her thoughts were clear (AR 338). Plaintiff reported her mood as "sad" and she was tearful, but she denied suffering from any suicidal thoughts (AR 338). Ms. Ditz found Plaintiff had no difficulty focusing or concentrating, and her memory and cognition were intact (AR 338). She further found Plaintiff had average intelligence, and her judgment was fair and reliable (AR 338). Ms. Ditz started her on Prozac and Trazodone, and recommended she begin outpatient therapy (AR 338). She diagnosed Plaintiff with depressive disorder, not otherwise specified; panic attacks with agoraphobia; rule out dysthymic disorder; and rule out generalized anxiety disorder (AR 338). Plaintiff was assigned a global assessment of functioning*fn2 ("GAF") score of 60 (AR 338).

Plaintiff returned to Dr. Al-Hattab on June 26, 2009 and reported that she had been "very active," cleaning and scrubbing the sides of her house (AR 235). Although she stated she became more exhausted, she was fully ambulatory, independent in her daily activities and was eating well (AR 235). She denied any changes in her energy level, had reportedly quit smoking, and took only Motrin for post-operative pain (AR 235). On physical examination, Dr. Al-Hattab noted that Plaintiff appeared healthy and well-nourished, was in no acute distress, and was pleasant and cooperative (AR 236). Her physical examination was unremarkable, and Dr. AlHattab recommended Plaintiff undergo chemotherapy and she agreed to begin treatment (AR 236).

When seen by Ms. Ditz on July 9, 2009, Plaintiff reported that she had not started taking the Prozac because she was deciding whether to undergo chemotherapy (AR 334). Plaintiff stated that she would start psychotherapy upon completion of the Visiting Nurses services (AR 334). On mental status examination, Ms. Ditz reported that Plaintiff was alert, fully oriented, pleasant, cooperative, and maintained good eye contact (AR 334). Plaintiff reported her mood as depressed, but she denied any suicidal thoughts and there was no evidence of psychosis (AR 334). Ms. Ditz found Plaintiff's insight into her mental health was "fair" and her judgment was "fair and reliable" (AR 334). Her diagnosis remained the same, and Ms. Ditz assigned her a GAF score of 60 (AR 335).

Plaintiff was seen by Dr. Al-Hattab on September 21, 2009 and he reported that Plaintiff had recovered completely from her surgery (AR 283). Plaintiff informed Dr. Al-Hattab that her husband had recently died within a short period of time after being diagnosed with an advanced thoracic malignancy, and she was depressed and anxious despite taking Xanax (AR 283). Her physical examination was unremarkable (AR 283). Dr. Al-Hattab noted that while the Plaintiff appeared depressed and tearful, he found her to be both "pleasant and cooperative" (AR 283). Dr. Al-Hattab provided Plaintiff with "extensive time in counseling and emotional support" (AR 284). A CT scan of Plaintiff's chest revealed "overall significant improvement" and the mass in the right upper lobe was no longer seen (AR 301). Plaintiff was to return in three months (AR 284).

On September 23, 2009, Edmund P. Papielarski, M.D., a state agency reviewing physician, reviewed the medical evidence of record and concluded that Plaintiff could perform heavy work (AR 285-290).*fn3 Dr. Papielarski noted that Plaintiff had completely recovered from surgery, refused chemotherapy, had no new complaints, and denied any changes in her appetite, weight or energy level (AR 290). Dr. Papielarski gave consideration to Dr. Al-Hattab's opinion dated May 12, 2009 that Plaintiff was disabled, but noted that disability was an issue reserved to the Commissioner (AR 290).

On October 19, 2009, Plaintiff presented as "very anxious" at her therapy intake evaluation with Wendi Bator, L.C.S.W. (AR 333). Plaintiff reported that her husband had recently died and she was angry, depressed and "very overwhelmed" (AR 331). Plaintiff further reported that she had no energy or motivation, but denied suffering from any suicidal thoughts (AR 332). Plaintiff stated that she had not taken the medications prescribed by Ms. Ditz (AR 331). On mental status examination, Ms. Bator found Plaintiff's mood and affect were "very depressed," and she was extremely tearful during the interview (AR 332). Her thought processes were logical and no hallucinations or delusions were reported (AR 332). Ms. Bator found Plaintiff was fully oriented, her memory was intact, she was of average intelligence, her judgment and attention span were adequate, and her insight was "fair" (AR 332). She diagnosed Plaintiff with adjustment disorder ...

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