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Fox v. Astrue

March 26, 2008

SHEILA B. FOX, PLAINTIFF,
v.
MICHAEL J. ASTRUE*FN1, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Sheila Fox brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking review of the Commissioner of Social Security's decision to deny her application for social security disability benefits. Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

II. FACTUAL BACKGROUND

Plaintiff was born on August 10, 1968, and was 36 years old at the time of the administrative hearing on April 8, 2005. (Administrative Transcript at p. 23).*fn2 Plaintiff is married and lives with her husband and two daughters, ages 14 and 16. (T. 63, 78). Plaintiff attended school through the 10th grade. (T. 253). From 1998 until April 2004, plaintiff was employed at Bethany House Nursing Home as a housekeeper.*fn3 (T.254). Plaintiff's job duties included cleaning resident rooms, mopping floors, dusting, moving furniture and getting supplies. (T. 72). Prior to working at Bethany House, plaintiff was employed as a laundry attendant at a laundry facility and a unit helper at a nursing home. (T. 89).

Plaintiff alleges that she sustained an injury to her back on June 13, 2003 while she was working at Bethany House.*fn4 (T. 254). Plaintiff claims that she injured her back lifting a mop and bucket. (T. 256). Plaintiff had a similar accident and subsequent treatment for low back pain in 2000. (T. 181). Plaintiff was allegedly asymptomatic until 2002 when she again experienced pain after "getting up from a seated position". (T. 181). Plaintiff treated for low back pain until April 2003 and then did not treat again until the incident in June 2003. (T. 181). Plaintiff has not worked since the date of the most recent incident and claims she is disabled due to a back problem. (T. 23).

A. Plaintiff's Medical Treatment Prior to June 2003

On November 11, 2002, plaintiff was examined by FNP Jean Gaetano.*fn5 (T. 113). FNP Gaetano noted that plaintiff complained of back pain which began the week prior to the visit. (T. 113). FNP Gaetano indicated that plaintiff exhibited a full range of motion but had difficulty with her left leg when she attempted to get on the table. (T. 113). FNP Gaetano remarked that the examination was "somewhat inconsistent" because, upon examination, the left leg was stronger.

(T. 113). FNP Gaetano diagnosed plaintiff with low back pain and provided injections of Toradol and Norflex.*fn6 (T. 113). FNP Gaetano excused plaintiff from work until November 18th and prescribed Norflex and Bextra*fn7 . (T. 113). On November 12, 2002, x-rays were taken of plaintiff's lumbar spine which did not reveal any evidence of fracture or subluxation. (T. 112).

FNP Pamela Slagle examined plaintiff on November 26, 2002. (T. 118). Plaintiff advised FNP Slagle that she was back to work as an aide at a "DDSO home". (T. 118). FNP Slagle noted that plaintiff had a full range of motion, no limp, and no tenderness to palpation in her lower back. (T. 118). Plaintiff requested and was given a referral to seek treatment with an orthopedist.

(T. 118).

On December 12, 2002, plaintiff underwent an MRI of her lumbar spine at Mohawk MRI.

(T. 119). The clinical diagnosis from the study is noted as "herniated discs". (T. 119). The films allegedly revealed a small protrusion at L3-L4 without stenosis or impingement; moderate protrusion at L4-L5 with encroachment at L5 bilaterally; and a moderate disc protrusion at L5-S1 without stenosis or impingement. (T. 120).

On February 27, 2003, plaintiff began treating with Ivan Gowan, M.D., an orthopedist. (T. 188). Dr. Gowan noted that plaintiff complained of back pain and bi-lateral knee pain (greater on the right). (T. 189). Plaintiff advised Dr. Gowan that the pain began in November 2002, when she "attempted to get up from a seated position". (T. 188). Plaintiff claimed that she missed a week from work but had since returned. (T. 188). Upon examination, Dr. Gowan noted that plaintiff performed a heel/toe walk without difficulty and touched her toes. (T. 189). Dr. Gowan remarked that plaintiff exhibited a full range of motion in her hips and knees but her back was tender and straight leg raising was positive. (T. 189). Dr. Gowan noted some crepitus in her right knee with a full range of motion in both knees.*fn8 (T. 189). Dr. Gowan diagnosed plaintiff with herniated discs at L4-L5 and L5-S1, spinal stenosis and patellofemoral chondromalacia (right worse than left).*fn9 (T. 189). Dr. Gowan prescribed physical therapy and Naprosyn.*fn10 (T. 189).

On March 4, 2003, plaintiff had an initial consultation with Michael Foster, a physical therapist at Chestnut Commons Physical Therapy. (T. 133). Foster recommended a course of therapy consisting of two or three times a week for four weeks to alleviate her low back pain. (T. 133-134). Foster noted that plaintiff received therapy a total of five times and was discharged on April 11, 2003 exhibiting a "full range of motion in her lumbar spine". (T. 128).

On April 29, 2003, plaintiff returned to Dr. Gowan complaining of bi-lateral knee pain.

(T. 186). Dr. Gowan provided another prescription for physical therapy. (T. 186). On May 26, 2003, plaintiff returned to Michael Foster at Chestnut Commons for therapy for her knee pain. (T. 125). Foster advised plaintiff to treat twice or three times a week for four weeks. Plaintiff had three therapy sessions and was discharged on June 12, 2003. (T. 122 - 125). At that time, Foster noted that she had no episodes of patellar subluxation or pain. (T. 122).

B. Plaintiff's Medical Treatment after June 2003

Plaintiff returned for treatment with Dr. Gowan on July 8, 2003.*fn11 (T. 181). Dr. Gowan reported that plaintiff complained of an onset of low back pain after lifting a mop and bucket at work on June 13, 2003. (T. 181). Upon examination, Dr. Gowan noted plaintiff was not in acute distress but walked with a great deal of pain and had discomfort when performing a heel/toe walk.

(T. 182). Dr. Gowan indicated that plaintiff could only do four toes raises on her left and twenty on her right and that straight leg raising was positive. (T. 182). Dr. Gowan diagnosed plaintiff with recurrent low back pain secondary to herniated discs with left L5 radiating pain. (T. 182). Dr. Gowan prescribed medication including Darvocet, Naprosyn and Flexeril*fn12 and physical therapy.*fn13 (T. 183).

Plaintiff continued to treat with Dr. Gowan every six weeks from September 2003 until March 2004. (T. 169-179). On September 4, 2003, plaintiff advised Dr. Gowan that she could not attend physical therapy because "compensation has not approved" her case. (T. 177). During the September 2003 visit, Dr. Gowan noted that plaintiff's leg pain had improved and that she sat without difficulty. (T. 178). Dr. Gowan assessed her as "somewhat better" but also noted that physical therapy was the best way to alleviate her pain and get her back to work. (T. 178). On October 21, 2003, Dr. Gowan reported that plaintiff ambulated without a limp and was able to heel/toe walk and do 20 toe raises bi-laterally. (T. 175). Dr. Gowan noted that plaintiff still had not received physical therapy and opined that due to "her failure to improve", plaintiff was a candidate for surgery. (T. 175).

On November 10, 2003, plaintiff underwent a second MRI study of her lumbar spine at Cooperative Magnetic Imaging. (T. 135). The report of the films noted herniations of varying sizes at L3-L4, L4-L5 and L5-S1. (T. 135). On November 18, 2003, Dr. Gowan reviewed the results of the MRI with plaintiff and noted that she was still having difficulty sitting for long periods of time and walking more than 25 yards. (T. 172). Plaintiff complained to Dr. Gowan of intense pain radiating to her left leg. (T. 172). Dr. Gowan noted that plaintiff required epidural injections and did not believe she could continue to work as a housekeeper.*fn14 (T. 172-173). Plaintiff had two additional visits with Dr. Gowan in January and March 2004. (T. 143, 168- 170). During those visits, Dr. Gowan noted that plaintiff had positive straight leg raising, low back tenderness and could not touch her toes. (T. 146). Dr. Gowan assessed plaintiff with disk bulges "with constant pain, not improving". (T. 143, 168-170).

On May 3, 2004, plaintiff underwent a laminectomy, hemilaminotomy and excision performed by Dr. Gowan at Community Memorial Hospital.*fn15 (T. 146-165). During her postoperative visit on May 13, 2004, Dr. Gowan noted that plaintiff was having bilateral leg pain but that she was "neurologically intact". (T. 208). In June and July 2004, plaintiff received six therapy treatments at Bouton Physical Therapy for low back pain. (T. 238-245).

Plaintiff treated with Dr. Gowan in June, July, August and November 2004. (T. 211-225). During that time, Dr. Gowan reported that plaintiff continued to complain of pain in her lower back aggravated by prolonged walking or sustained positions. (T. 211). Dr. Gowan also noted that plaintiff complained of left knee pain that began after she fell at a Compensation Hearing in July. (T. 215-225). Dr. Gowan indicated that plaintiff's range of motion was restricted, straight leg raising was positive and her low back was tender. (T. 211). Dr. Gowan stated that plaintiff discontinued physical therapy for her back as "worker's compensation would not pay". (T. 218). Dr. Gowan diagnosed plaintiff with chondromalacia (left greater than right) and opined that plaintiff was "totally disabled" and prescribed Naprosyn. (T. 213, 215-225). At the August 2004 visit, Dr. Gowan injected plaintiff's left knee with Marcaine and Dexamethasone.*fn16 (T. 215).

On October 8, 2004, Dr. Gowan completed a Medical Source Statement. (T. 203-206). Dr. Gowan opined that plaintiff could: occasionally lift/carry less than 10 pounds; stand and/or walk less than 2 hours in an 8 hour workday; and sit less than 6 hours in an 8 hour workday. (T. 203-204). Dr. Gowan noted that plaintiff's ability to push and pull was limited in her lower extremities. (T. 204). Dr. Gowan qualified his statements noting that plaintiff could, on occasion, lift up to 5 pounds. Dr. Gowan also stated that plaintiff would need to alternate between sitting and standing every 30 minutes. (T. 204).

On November 2, 2004, Dr. Gowan noted that plaintiff was unable to touch her toes or bend to her knees and her straight leg raising was positive producing pain in her lower back. (T. 224). Dr. Gowan reported that plaintiff complained of no significant leg pain but that her back was still "quite stiff" and that she was "slowly improving". (T. 224). Plaintiff returned to Dr. Gowan on January 4, 2005 complaining of knee and back pain. (T.226 - 236). Dr. Gowan noted that her back was still giving her problems and that she had not had much improvement with that condition. (T. 226). Plaintiff underwent surgery at Community Memorial Hospital consisting of arthroscopy and chondroplasty to her left knee.*fn17 (T. 232). Plaintiff's last visit with Dr. Gowan was on January 27, 2005. (T. 236). Dr. Gowan noted plaintiff was "doing quite well" and gave her another prescription for physical therapy. (T. 236).

In January 2005, plaintiff returned to Bouton Physical Therapy after surgery to her left knee. (T.248-249). The therapist recommended that plaintiff receive therapy three times a week for four weeks. (T. 245-247). The records indicate that plaintiff attended three sessions in February 2005 for her knee pain. (T. 245-247).

C. Consultative Examinations

On October 20, 2003 and February 6, 2004, Daniel Carr, M.D., an orthopedist, examined plaintiff at the request of the Worker's Compensation insurance carrier.*fn18 (T. 136-142). Plaintiff stated to Dr. Carr that she was injured while lifting a mop and pail at work. (T. 139-142). Plaintiff advised Dr. Carr that she went to the Emergency Room after her accident.*fn19 (T. 139). Upon examination, Dr. Carr noted a decrease in flexion due to pain but normal extension, deviation and rotation. (T. 140). Dr. Carr indicated that plaintiff exhibited no motor deficit in her lower extremities, no spasms and positive straight leg raising with low back pain. (T. 140). Dr. Carr diagnosed plaintiff with multi-level degenerative disc disease with herniations and stenosis.

(T. 141). Dr. Carr opined that plaintiff could work if she did not lift 20 pounds and frequently changed positions.*fn20 (T. 142).

On February 6, 2004, plaintiff was re-examined by Dr. Carr. (T. 136). Dr. Carr noted that she had epidural shots for her low back pain with no improvement. (T. 136). Plaintiff advised Dr. Carr that she did not have any appointments scheduled with any physicians at that time. (T. 136).

Dr. Carr reported that plaintiff's current treatment consisted of Flexeril, limiting her activities and a home exercise program. (T. 136). Dr. Carr diagnosed plaintiff with non-specific low back ...


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