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Kevin C. Mckevitt v. Michael J. Astrue

September 26, 2012


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Kevin McKevitt ("Plaintiff") brought this suit under the Social Security Act ("Act"), 42 U.S.C. § § 405(g), 1383(c)(3) to review a final determination of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") denying his applications for benefits was not supported by substantial evidence and was contrary to the applicable legal standards. The Commissioner argues that the decision was supported by substantial evidence and made in accordance with the correct legal standards. Pursuant to Northern District of New York General Order No. 8, the Court proceeds as if both parties had accompanied their briefs with a motion for judgment on the pleadings.


A. Procedural History

Plaintiff protectively filed applications for DIB and SSI on May 13, 2009, which were denied. Tr. 99-102, 103-06. Plaintiff and his attorney appeared at an administrative hearing held on December 23, 2010, before Administrative Law Judge (ALJ) Robert Gonzalez, who denied Plaintiff's claim on January 31, 2011. Tr. 7-19. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on June 24, 2011. Tr. 1-4. This action followed.

B. Medical Evidence

On September 16, 2008, Plaintiff was involved in a motor vehicle accident. T 117,189. He was taken to the emergency room at Benedictine Hospital where he complained of low back pain. T 189, 192. X-rays showed degenerative disc disease and osteoarthritis at lower thoracic and lumbar levels. T 194. On examination, he was mildly tender to midline at approximately the L4 vertebra. T 193. Alexis Cordiano, M.D. stated that the differential diagnosis included compression fracture, as well as musculoskeletal strain and spasm secondary to motor vehicle crash. T 193. Dr. Cordiano noted: "However, given that the patient is overweight and obese, a small slight compression fracture can cause pain later on as inflammation starts to accumulate." T 193. Plaintiff was discharged with "Tylenol, Motrin, ice, taking it easy, no heavy exertion, lifting or exercise." T 191.

On the following day, September 17, 2008, Plaintiff returned to the emergency room with complaints of upper back and neck discomfort. T 189. On examination, he exhibited tenderness in the region of the left trapezius region, slightly exacerbating pain. T 189. He was diagnosed as suffering from upper back strain. T 189. He was prescribed Flexeril and advised to continue taking Ibuprofen as needed for pain. T 189.

On October 1, 2008, Plaintiff began treating with Luis A. Mendoza, Jr., M.D. T 285-87. His chief complaint was of moderate to severe pain in the lower back as a result of his accident. T 285. On thoracic lumbar examination, he showed a restricted range-of-motion to the thoracic/lumbar spine with flexion at 71 degrees (normal 90 degrees), extension 21 degrees (normal 30 degrees), right and left rotation 23 degrees (normal 30 degrees), and right and left lateral flexion 22 degrees (normal 30 degrees). T 286. There were spasms on palpation and inspection to the thoracic/lumbar para-vertebral muscles from T10 to S1. T 286. Dr. Mendoza diagnosed him as suffering from a lumbar sprain/strain and lumbar muscle spasms. T 286. Dr. Mendoza recommended that Plaintiff undergo physical therapy and continue taking oral medications. T 287. Dr. Mendoza also recommended that Plaintiff avoid all activities that may exacerbate his condition and opined that he was temporarily totally disabled. T 287.

On October 7, 2008, Plaintiff underwent an MRI without contrast of his lumbar spine. T 235-36. The MRI showed multiple Schmorl's Nodes. T 236. The largest Schmorl's Node was at L5-S1 and was associated with some marrow edema, suggesting it may be acute or subacute. T 236. There was a relatively narrow spinal canal on a congenital basis. T 236. There was a two centimeter lesion in the S3 segment that most likely was a hemangioma. T 236. There were minor disc bulges at L3-4 and L4-5 with "some compromise of the ventral cerebrospinal fluid shadow." T 384; see T 235. At L5-S1, there was some bulging of the disc more to the right. T 235. Right foraminal stenosis "and some compression of the right S1 root more than the left." T 235.

From October 10, 2008 to December 5, 2008, Plaintiff underwent nineteen physical therapy sessions at Kingston Hospital Sports and Physical Medicine Center. T 225-42.

On November 10, 2008, Plaintiff began treating with Steven K. Jacobs, M.D., Ph.D., a neurosurgeon at New York Neurosurgical. T 306-07, 376-77. On examination, Plaintiff showed weakness of the plantar and dorsiflexors. T 306, 378. An MRI demonstrated bulging discs at L4-5 and L5-S1 with neuroforaminal stenosis. T 306, 378. Dr. Jacobs referred Plaintiff for a series of lumbar epidural injections. T 306, 378. In addition, Dr. Jacobs "stressed . . . the importance of trying to lose some weight as he presently is 5'9" and weighs 270 lbs." T 378; see Exhibit 1 (Body Mass Index Calculation).

On December 9, 2008 and February 3, 2009, Plaintiff underwent a left lumbar facet joint injection at L4-L5 and L5-S1, which was performed by Dr. David Gamburg, an anesthesiologist, at the Pain Treatment Center at The Kingston Hospital. T 360, 362, 364.

From February 24, 2009 to May 6, 2009, Plaintiff returned to physical therapy and underwent sixteen physical therapy sessions due to his low back sprain at Kingston Hospital Sports and Physical Medicine Center. T 210-42. His diagnosis was low back pain, status post facet. T 210.

On July 1, 2009, Plaintiff was examined by Alan Ng, M.D. T 243-44. Plaintiff complained of experiencing low back pain radiating to the right hip and knee. T 243. On neurological examination, the sensation in the right L5-S1 dermatone was decreased to light touch and proprioception. T 244. The lumbar spine examination showed that palpation showed tenderness in the paraspinals L5-S1. T 244. Range-of-motion was restricted to 50 degrees flexion and 15 degrees extension. T 244. He showed muscle weakness in the right knee with muscle strength 4/5. T 244. Straight leg raising was positive on the right lower extremity. T 244. Dr. Ng opined that Plaintiff was "partially disabled and should avoid heavy lifting." T 244. Dr. Ng performed EMG nerve conduction testing, which revealed evidence of right L5-S1 lumbar radiculopathy. T 248. Decreased response of left peroneal nerve may suggest a left peroneal neuropathy. T 248. Dr. Ng diagnosed him as suffering from lumbar strain, lumbar radiculopathy v. localized peripheral neuropathy of the lower extremities, and limb pain. T 244.

On July 16, 2009, Plaintiff underwent an orthopedic examination by Suraj Malhotra, M.D. T 196. His chief complaint was low back pain since the automobile accident. T 196. On examination, his height was 5'7" and weight was 291 pounds. T 197. His Body Mass Index ("BMI") was 45.4. He could squat only 3/4 of the distance due to back pain. T 197. He was limited in flexion and extension to 75 degrees. T 197. The straight leg raise test was positive slightly supine at 85 degrees on the right and left side. T 197. Dr. Malhotra diagnosed him as suffering from obesity and lumbosacral intervertebral disk disease with pain. T 198. Dr. Malhotra opined that he had a mild limitation in bending and carrying heavy objects. T 198.

On September 28, 2009, an MRI of Plaintiff's lumbar spine without contrast was performed. T 252. The MRI showed multiple Schmorl's nodes and a sacral hemangioma, which were stable. T 252. The spinal canal was narrow on a congenital basis. T 252. Very mild bulging of the L3-4 and L4-5 discs contributed to central spinal stenosis. T 252.

On October 22, 2009, Plaintiff underwent an L4, L5, and S1 lumbar laminectomy with foraminotomies over the L5 and S1 nerve roots. T 253, 306. He also underwent an arthrodesia and fusion at L4-5 and L5-S1 bilaterally. T 253, 306. The preoperative and postoperative diagnoses were spinal and neuroforaminal stenosis at L4-L5, L5-S1, and degenerative disc disease at L4-L5, and L5-S1. T 253.

On November 6, 2009, Plaintiff underwent an orthopaedic independent medical examination by Paul Jones, M.D., an orthopeadic surgeon. T 342-44. Plaintiff presented with a lumbar support. T 343. On examination, Plaintiff reported absent sensation to pinprick in "his entire right lower extremity." T 343. Straight leg raising was positive on the left side when supine at about 60 degrees. T 343. Dr. Jones' diagnosis was status post recent low back surgery. T 344. He advised Plaintiff that he should use his lumbar support until the area has started to fuse. T 344. Dr. Jones opined that Plaintiff has a temporary total disability. T 344.

On December 1, 2009, Plaintiff underwent an independent neurological evaluation by Patrick J. Hughes, M.D. T 345. Plaintiff complained of experiencing low back pain that is constantly present and is moderate to severe. T 346. Plaintiff complained that he experiences "pins and needles" and numbness in the anterior aspect of the right thigh, which occurs most of the time. T 346. He was wearing a back brace. T 347. It was observed that Plaintiff was able to walk unaided, and had no problems getting on and off the examining table. On examination, Plaintiff's height was 5'10" and weight was 295 pounds. T 346. Reflexes were one plus and symmetrical. T 347. Ankle jerks were absent. T 347. Dr. Hughes opined that Plaintiff was status post spinal fusion at L4-5 and L5-S1 with continuing complaints of pain. T 352. He opined that Plaintiff had a temporary total disability. T 352.

On March 9, 2010, Plaintiff treated with Dr. Jacobs. T 312-13. Plaintiff "continues to complain of some back pain. Numbness is the same." T 312. His condition was about the same as the last visit. T 312. He was taking his medication as prescribed. T 312. Dr. Jacobs' assessment was lumbar sprain and strain. T 313. Dr. Jacobs referred Plaintiff for pain management and possible injections with Dr. Rosenblatt. T 313.

On March 11, 2010, Plaintiff began treating with Marc J. Rosenblatt, D.O. T 303-05. Evaluation of the thoracolumbar spine revealed bilateral paraspinal spasm with multiple trigger points, as well as limitations of range-of-motion seen in multiple planes. T 304. Plaintiff reported undergoing facet blocks, which were performed by Dr. Gamberg, but the benefits lasted only two weeks. T 305. Dr. Rosenblatt found that Plaintiff was a candidate for interventional pain procedures, including, but not limited to, epidural steroid injections and selective nerve root blocks. T 305.

On March 25, 2010, Plaintiff began physical therapy with Mark Garcia, P.T. T 327. He subsequently underwent 34 treatments, through October 6, 2010, that consisted of an initial examination, moist heat, ultrasound, lower abdominal strengthening exercises, bicycle, upper body ergonomics, and a home exercise program. T 327. Physical therapist Garcia opined that Plaintiff's low back pain remained with continued persistent pins and needles in the right anterior thigh region. T 327.

On April 13, 2010 and May 11, 2010, Dr. Rosenblatt performed a caudal epidural block, as well as a bilateral L5-S1 selective paraspinal nerve root blocks. T 294, 298, 301. Plaintiff's diagnoses were lumbosacral radiculopathy and post-laminectomy syndrome. T 299, 301.

On May 24, 2010, Plaintiff treated with Dr. Jacobs. T 310-11. Plaintiff reported falling during the previous week "and has had some increased back pain." T 310. He stated that his leg gave out. T 310. Dr. Jacobs' assessment was lumbar sprains and strains. T 311. ...

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