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Todd White v. Michael J. Astrue

April 19, 2012

TODD WHITE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Neal P. McCURN, Senior District Court Judge

MEMORANDUM - DECISION AND ORDER

This action was filed by the plaintiff Todd White ("plaintiff") pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner"), who denied his application for disability insurance benefits ("DIB") and supplement security income ("SSI"). Currently before the court is plaintiff's motion for judgment on the pleadings (Doc. No. 10) seeking reversal of the Commissioner's decision and an order of remand for a new hearing, and the Commissioner's motion for judgment on the pleadings (Doc. No. 11) seeking affirmation of the Commissioner's findings. The court has undertaken a thorough review of the record and the parties' arguments, and for the reasons set forth below, the Commissioner's motion is granted.

I. Facts and Procedural History

The following procedural history and facts are taken from plaintiff's statement of the case. The plaintiff filed applications for SSI and DIB on March 13, 2009, alleging disability beginning October 15, 2004. Plaintiff alleges impairments of: (1) lumbar radiculopathy; (2) lumbago and discogenic lower back pain; (3) degenerative disc disease, disc bulging, and herniation in the lumbosacral and thoracic spines; (4) left knee and left ankle injuries, status post work related injury; (5) degenerative changes in the left foot; (6) chronic obstructive pulmonary disease (COPD); and (7) hyperlipidemia. T. 143-150, 229-230, 239, 253-254, 263, 270.*fn1 His applications were initially denied on September 22, 2009. T. 54-69. On October 5, 2009, plaintiff timely requested a hearing with an Administrative Law Judge. T. 26-49. Plaintiff appeared and testified at a hearing held on August 17, 2010 in Syracuse, New York in which Administrative Law Judge Augustus C. Martin (the "ALJ") presided by video conference from the Office of Disability Adjudication and Review in Baltimore, Maryland. Plaintiff was represented by attorney Michael J. Ranieri, Esq. Vocational expert ("VE") Jay Steinbrenner, also appeared and testified. The ALJ issued an unfavorable decision dated October 1, 2010. T. 12-25. On October 18, 2010, plaintiff requested review of the ALJ's decision. T. 9-11. On December 23, 2010, the Appeals Council denied Plaintiff's request for review. T. 1-5. This civil action followed.

Plaintiff was born on December 4, 1964 and was 39 years old on the alleged disability onset date of October 15, 2004. He has an employment history as a cleaner, handyman, and laborer. T. 172. Plaintiff has a general education diploma (GED). T. 176. His date last insured is June 30, 2008. T. 181. On November 30, 2000, Steven Fish, M.D. treated plaintiff for left knee and ankle injuries following a work-related injury in 1999. T. 229-30. Dr. Fish noted that physical therapy has not helped with the pain. Dr. Fish observed medial joint line tenderness in the left knee and pain with range of motion testing in the left ankle. Plaintiff had pain with anterior Drawer testing and discomfort with inversion and eversion testing. Dr. Fish diagnosed left knee and ankle pain. T. 229. Dr. Fish noted on January 16, 2001 that there was no progress since the last visit. T. 231. On July 24, 2001, plaintiff complained of persistent knee and foot problems. T. 232. Neurological surgeon John Krawchenko, M.D. treated Plaintiff on November 4, 2002 for constant low back and leg pain, and radiculopathy caused from a 1999 work-related injury. T. 253-54. Plaintiff reported numbness and tingling in the leg and foot and weakness with walking. There was left ankle and foot numbness, and numbness around the left knee. Dr. Krawchenko noted conservative treatment with no improvement. Plaintiff reported difficulty sitting more than 10 minutes and difficulty walking a block. Upon examination, Dr. Krawchenko observed difficulty sitting and getting out of a chair. There was weakness in the left anterior tibialis, peroneus, posterior tibialis, and gastrocs, diffuse tenderness on percussion of the lumbar spine and paraspinal muscles with moderate lumbar spasm, and limited range of motion and positive straight leg raising bilaterally. There was a decrease in bilateral knee reflexes and right ankle reflex, decreased pin and touch sensation in the left leg and foot and L 4-5 and S1 dermatomes. Dr. Krawchenko recommended continued conservative treatment instead of surgical intervention.

Prognosis was guarded for diagnoses of lumbar spine injury and lumbar radiculopathy. Dr. Krawchenko assessed plaintiff as totally disabled. T.253.

On November 17, 2003, Dr. Fish treated plaintiff for worsening left leg, back, and left foot injuries. T. 239-40. Dr. Fish noted persistent weakness in the left foot and ankle with dorsiflexion. Plaintiff had tenderness along the medial aspect of his foot, along the posterior tibial tendon. Plaintiff was prescribed a UCBL orthosis. Radiographs revealed degenerative changes in the mid foot. T. 239. Dr. Fish noted that a magnetic resonance imaging ("MRI") scan of the spine revealed disc herniation at L3-4 off to the left with degenerative changes and a central disc herniation at L5-S1. Plaintiff had persistent left leg radiculopathy and persistent weakness in the left foot. T. 246.

On December 22, 2003, Dr. Krawchenko treated plaintiff for lower back pain radiating down the left leg and foot. T. 251-252. Dr. Krawchenko noted that sitting more than 5 minutes or walking half a block increases plaintiff's pain. Plaintiff had difficulty lifting more than 10 pounds and had difficulty sleeping. Pain medication and muscle relaxants provided no improvement. Injuries resulted from work-related injuries in 1999 and 2001, which caused significant worsening of his symptoms. Dr. Krawchenko assessed plaintiff as totally disabled. Upon examination, Dr. Krawchenko observed moderate back and leg pain, difficulty sitting and getting out of the chair, limp favoring the left leg, and difficulty walking on the left heel and toes. Dr. Krawchenko observed diffuse tenderness on percussion of the lumbar spine and paraspinal muscles with moderate muscle spasm. There was decreased range of motion in the lumbar spine and positive straight leg raise testing bilaterally. Dr. Krawchenko noted weakness in the left thigh, quadriceps, anterior tibialis, gastrocs, and hamstring. Dr. Krawchenko observed areas of decreased pin and touch sensation in the left leg and foot and in the left L4-5 and S1 dermatomes. Dr. Krawchenko noted plaintiff's condition to be worsening. Dr. Krawchenko opined that plaintiff was limited to lifting no more than 5-10 pounds, should avoid prolonged sitting more than 10-15 minutes, and should not stay in one position. T. 251. Prognosis was guarded for diagnosis of lumbar radiculopathy. T. 252.

Dr. Fish treated plaintiff on February 19, 2004 for back and left lower extremity injuries with increasing discomfort. Dr. Fish observed limitation of ankle range of motion and weakness in left ankle dorsiflexion. Plaintiff had irritability to range of motion in internal and external rotation in the left hip. Dr. Fish observe positive straight leg raise tests and muscle atrophy in the left calf and thigh. T. 240. On March 31, 2004 plaintiff was treated for left lower extremity problems. T. 240-241. Dr. Fish noted plaintiff was using ankle and knee braces. Plaintiff reported his leg giving out on him. Dr. Fish noted that an MRI of the knee showed chondromalacia. Dr. Fish observed limited range of motion in the left knee, medial joint line tenderness, and left ankle range of motion limited for plantar flexion. T. 241.

On April 30, 2004, an MRI of the left knee revealed a suspected mid body level, medial meniscus tear. T. 248. Dr. Fish treated plaintiff on May 13, 2004 for medial sided knee pain and lower back pain with radicular type symptoms. Dr. Fish referred plaintiff to the Pain Clinic for an epidural injection. Plaintiff reported occasionally needing help getting dressed. Plaintiff treated on July 14, 2004 for left lower extremity pain. There was medial and lateral joint line tenderness and moderate medial sided tenderness in the region of his navicular. T. 242. On August 18, 2004, Dr. Fish treated plaintiff for his unchanged back and left leg problems. There was medial sided joint tenderness of the left knee, ankle, and foot. Dr. Fish noted that the Swedo ankle brace made pain worse. T. 243. Dr. Fish treated plaintiff on October 11, 2004 for back and leg symptoms and noted plaintiff to be "doing quite poorly at this point." T. 243-44. Plaintiff had persistent low back pain radiating down his left leg, left knee pain, and persistent foot pain, in which he had occasional numbness in his toes. There was weakness in the left lower extremity, medial-sided tenderness of the left knee, and tenderness over the mid portion of the left foot. Dr. Fish opined that plaintiff "could potentially do some sort of work situation where he would have to be sitting, change positions frequently. There would be no lifting involved, etc." On October 21, 2004, Dr. Fish noted that physical therapy was denied by plaintiff's insurance.*fn2 T. 243. On January 13, 2005, Dr. Fish noted that plaintiff had persistent low back pain, left lower extremity symptoms, and chronic pain in the left foot. Dr. Fish noted left-sided central disc herniation at L3-4 and degenerative disc disease with a disc herniation at L5-S1. T. 249.

Plaintiff treated with Patrick J. Carguello, D.O. of Pulaski Medical Center on January 10, 2008 for left leg and back pain at an intensity of 5/10. Plaintiff reported weight loss. Dr. Carguello observed muscles aches, stiffness, and pain localized in the low back and leg. T. 269. Dr. Carguello diagnosed COPD, hyperlipidemia, and bulging intervertebral disc and chronic discogenic pain. T. 270. Medications included Atenolol, Hydrochlorothiazide, and Tramadol. T. 271. On June 12, 2009, plaintiff was treated for chronic lower back pain and left leg and foot pain. T. 265-68. Plaintiff stated that his pain was at an intensity of 7/10. T. 266. Medications of Hydrochlorothiazide and Tramadol were prescribed.

T. 267. Elaine J. Shaben, N.P. of Pulaski Medical Center treated plaintiff on June 29, 2009 for chronic lumbago radiating into the legs bilaterally, ongoing since 1999. T. 263. Plaintiff appeared to be in acute distress. T. 263. Plaintiff reported that medication of Tramadol was ineffective. T. 263. Plaintiff treated with Dr. Carguello on June 30, 2009 for lumbago. T. 261- 62. Medications included Atendolol, Hydrochlorothiazide, Ibuprofen, and Tramadol. T.261. An MRI of the lumbar spine on July 1, 2009 revealed: (1) small disc protrusions at L3-4 and L5-S1; (2) foraminal narrowing at L3-4 through L5-S1; and (3) mild disc bulging at L4-5. T. 275-76. There was mild to moderate degenerative disc disease at L5-S1 and mild degenerative disc disease at L3-4. At L3-4, there was a 2-3 mm broad based left paracentral disc protrusion superimposed on diffuse disc bulge abutting the descending left L4 nerve root. At L4-5, there was mild diffuse disc bulging, mild degenerative facet changes, and mild foraminal narrowing due to disc bulging and facet arthropathy. At L5-S1, there was a small broad based disc protrusion with slight lateralization to the right, mild posterior osteophytic spurring, and mild bilateral foraminal narrowing due to disc bulging and facet arthropathy, right greater than left. T. 275.

State agency consultant Justine Magurno, M.D., completed an internal medicine examination on August 13, 2009. T. 278-82. Upon examination, plaintiff reported back pain with walking, inability to perform heel and toe walk, and squat was limited to 25%. Examination of the lungs revealed wheezing bilaterally, left side more than the right. T. 280. Range of motion in the cervical spine was limited to 20 degrees for lateral flexion on the right and 30 degrees on the left. T. 280-81. Dr. Magurno noted possible dextroscoliosis. Range of motion in the lumbar spine was limited to 40 degrees for flexion, 0 degrees for flexion, and 5 degrees for left rotation. There was tenderness in the lumbar spine, paraspinal muscles, and SI joint. Supine and seated straight leg raise test were positive bilaterally. Range of motion in the shoulders was limited to 30 degrees bilaterally for internal rotation. Wrist range of motion was limited to 30 degrees for dorsiflexion. Hip range of motion was limited to 70 degrees for flexion, 30 degrees for left abduction, and 10 degrees for left adduction. Left knee was limited to 30 degrees for range of motion. Range of motion was limited to 10 degrees for left dorsiflexion, and the left ankle was tender to palpation. There was decreased strength on the distal left lower extremity. Reflexes were limited in the patellar with motor deficits. T. 281. Dr. Magurno diagnosed: (1) discogenic lower back pain; (2) left foot pain, status post fracture; (3) left knee pain, status post injury; and (4) history of COPD. T. 281-82. Dr. Magurno assessed prognosis for pain and COPD as poor. Dr. Magurno opined that plaintiff should avoid dust, fumes, and other known lung irritants due to his history of COPD. Plaintiff had marked limitations for bending, lifting, carrying, and squatting. Plaintiff had moderate limitations for walking, standing, and sitting. T. 282.

On August 28, 2009, Dr. Magurno completed pulmonary function testing. T. 291-97. The forced expiratory volume in one second (FEV1) resulted in 2.65 liters before bronchodilators and 2.94 after bronchodilators. The forced vital capacity (FVC) resulted in 4.54 liters before bronchodilators and 4.99 after bronchodilators. Dr. Magurno assessed that results were ...


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