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Greene v. Colvin

United States District Court, N.D. New York

April 5, 2013

TAWANNA A. GREENE, Plaintiff,
v.
CAROLYN W. COLVIN [1] Commissioner, Social Security Administration, Defendant

Page 217

For Tawanna Greene, Plaintiff: Peter A. Gorton, LEAD ATTORNEY, Lachman, Gorton Law Firm, Endicott, NY.

For Michael Astrue, Commissioner of Social Security, Defendant: Thomas C. Gray, LEAD ATTORNEY, Social Security Administration, Office of Regional General Counsel, Region II, New York, NY.

OPINION

Page 218

WILLIAM G. YOUNG, United States District Judge.[2].

DECISION and ORDER

I. INTRODUCTION

Tawanna Alicia Greene (" Greene" ) brings this action pursuant to section 205(g) of the Social Security Act (the " Act" ), 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (the " Commissioner" ). Greene challenges the decision of the Administrative Law Judge (the " hearing officer" ) denying her application for Social Security Disability Insurance (" SSDI" ) benefits and Supplemental Security Income (" SSI" ) benefits. Greene requests this Court grant her motion for judgment on the pleadings and grant her application for both SSDI and SSI benefits, or remand this case to the Commissioner for further proceedings. Compl., ECF No. 1; Pl.'s Br. (" Greene's Mem." ), ECF No. 13. The Commissioner requests that this Court affirm the hearing officer's decision and grant its motion for judgment on the pleadings. Def.'s Br. Pursuant Gen. Order No. 18 (" Def.'s Mem." ), ECF No. 14.

A. Procedural Posture

On May 2, 2007, Greene filed a Title II application for SSDI benefits, as well as a Title XVI application for SSI benefits, alleging disability for a period beginning November 10, 2006. Admin. R. at 95. Greene's application was initially denied on

Page 219

July 23, 2007, id. at 51, and Greene filed a timely written request for hearing on August 29, 2007, id. at 57. Greene testified at a hearing held on August 13, 2009, and was represented by an attorney. Id. at 21. The hearing officer issued an unfavorable decision on September 24, 2009. Id. at 8. Greene subsequently filed a timely request for review, id. at 1, which was denied by the Appeals Council on November 25, 2009, id. at 1-5. On December 7, 2009, Greene filed the present action with this Court to review the decision of the Commissioner pursuant to 42 U.S.C. section 405(g). Compl. 1.

B. Factual Background

Greene was born in 1971. Admin. R. at 89. Greene attended school regularly through eighth grade and has not received any formal education since that time. Id. at 26. Her prior employment includes positions in customer service, laundry service, and a six-year period of employment as a document preparation clerk. Id. at 27-28. Greene has a history of psychological and emotional problems, as well as mild physical problems. Id. at 30-31, 34-35. In 2006, she was involved in a motor vehicle accident, id. at 181, that subsequently caused more acute physical problems, id. at 30.

1. Physical Impairments

Greene was involved in a motor vehicle accident on April 1, 2006. Id. at 181. After the accident, Greene was transported on a back-board to Wilson Memorial Medical Regional Center (" Wilson Memorial" ) and presented to Dr. Safa Naman (" Dr. Naman" ). Id. at 181-82. Greene reported only moderate pain but specifically complained of pain in her lower back. Id. Dr. Naman ordered a C-spine series X-ray, an LS-spine series X-ray, and an X-ray of her pelvis, all of which returned no signs of bone damage. Id. at 181. Dr. Naman prescribed Vicodin for the pain and released Greene from the hospital the same day. Id. at 182.

Three days after her accident and discharge from Wilson Memorial, Greene presented to Our Lady of Lourdes Memorial Hospital (" Lourdes Memorial" ), still complaining of back pain. Id. at 212. Thomas Burkert (" Burkert" ), the attending physician's assistant, saw Greene and advised her to limit her physical activity at work. Id. Burkert restricted her to lifting under five pounds for a two-week duration, suggesting she follow up as needed. Id. On April 12, 2006, Greene followed up with Burkert, who observed significant improvements in Greene's prognosis. Id. at 211. Observing no tenderness on the impacted regions of her spine and determining Greene was " much improved," Burkert subsequently cleared her to return to work on April 17, 2006, with no limitations. Id.

Greene returned to Lourdes Memorial only a few months later, again complaining of back pain. Id. at 209. Dr. Darlene Denzien (" Dr. Denzien" ), Greene's primary care physician, examined Greene and suggested she make an appointment with a chiropractor. Id. Dr. Denzien also prescribed hydrocodone and Flexeril, and advised Greene to stop working for three weeks. Id. Greene did not follow Dr. Denzien's suggestion to see a chiropractor. Id. at 203, 205.

Greene continued to see Dr. Denzien at Lourdes Memorial for several months and agreed to have an MRI on her lower back on December 4, 2006. Id. at 213. On January 19, 2007, Dr. Denzien conferred with Greene about the results of her MRI. Id. at 205. Dr. Denzien saw bulging discs in her spine but was unable to determine whether these were caused by the motor vehicle accident or were the natural shape of her spine. Id. Dr. Denzien again requested that Greene seek the care of a

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chiropractor and advised Greene that if she did not seek chiropractic treatment soon, she would " pass a window where no treatment will help." Id.

On April 5, 2007, Greene presented to Dr. Denzien for continued treatment on her back pain. Id. at 203. Dr. Denzien concluded that Greene's physical condition remained " [u]nchanged" since her previous visit. Id. During the January 19, 2007, examination, Dr. Denzien found a full range of motion, although Greene had difficulty getting up from a flexed position. See id. at 203-05. Dr. Denzien also found that Greene was unable to bend sideways. Id. Dr. Denzien informed Greene that she was not a candidate for surgery but urged Greene to see a chiropractor, advice that Greene had yet to follow. Id. at 203. Dr. Denzien continued Greene " off work." Id.

On June 14, 2007, Greene underwent an orthopedic examination after a referral by the Division of Disability Determination. Id. at 218. Greene was examined by Dr. Joseph Kohn (" Dr. Kohn" ), who observed that Greene's chief complaint was of back pain, but her gait and station were normal, and she possessed the ability to walk on her heels and toes " without difficulty." Id. at 219; see id. at 218-19. Dr. Kohn observed the x-Rays of Greene's lumbar sacral spine, and he found no specific disc deformities. Id. at 220. Dr. Kohn found only slight limitation on Greene's lumbosacral ranges of motion and observed no spinal tenderness or spasm. Id. Dr. Kohn concluded that although Greene " ha[d] mild restrictions for heavy lifting," her prognosis was " fair." Id.

On October 7, 2008, Greene again consulted with Dr. Denzien regarding her back pain. Id. at 271. Greene had recently received custody of her granddaughter and was lifting the child more frequently. Id. Dr. Denzien's physical exam found little tenderness in Greene's cervical spine and " some spasm" in her lower back. Id. Dr. Denzien's note reflects that she attempted to prescribe Duragesic patches for the pain in the past, but Greene preferred to stay with a prescription for hydrocodone since she was afraid of the patches. Id. Dr. Denzien indicated that Greene could return if she wished to " step up her pain management program." Id.

In addition to her continued treatment of lumbar disc pain, Dr. Denzien also diagnosed Greene with carpal tunnel syndrome and fibromyalgia. Id. at 266-67. On April 17, 2009, Greene presented to Dr. Denzien complaining of discomfort in her right wrist. Id. at 267. Dr. Denzien found positive Tinel's and Phalen's in her right wrist, consistent with a finding of carpal tunnel syndrome. Id. On May 18, 2009, Greene had a routine appointment with Dr. Denzien, who noticed more severe symptoms caused by Greene's lumbar disc deformity, including feet swelling and trigger points in her anterior and posterior lumbar. Id. at 266. Dr. Denzien concluded that Greene had developed fibromyalgia. Id. Dr. Denzien advised Greene to maintain her current dosage of medication and informed Greene that they would discuss further treatment plans as the fibromyalgia progressed. Id.[3]

2. Mental Impairments

Greene also reported a history of mental impairments. On July 27, 2006, Greene presented at Lourdes Memorial complaining of depression (along with her simultaneous complaint of back pain, as discussed above).

Page 221

Id. at 210. Dr. Denzien prescribed Cymbalta to treat the symptoms of Greene's depression. Id.

On June 14, 2007, Greene met with Dr. Dennis M. Noia (" Dr. Noia" ) for a psychiatric examination. Id. at 214-17. Greene was attentive and cooperative, but Dr. Noia found Greene exhibited mildly to moderately impaired routine memory function. Id. at 216. After observing her demeanor and asking her simple questions regarding her psychiatric history, Dr. Noia concluded that Greene's intellectual ability was in the low to average range but found that Greene " appear[ed] to be capable of performing simple and some complex tasks with supervision" and " capable of learning new tasks." Id. at 217. Dr. Noia observed, however, that Greene " appear[ed] to be having some ...


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