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Beller v. Colvin

United States District Court, Second Circuit

May 3, 2013

CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.


PAUL E. DAVISON, Magistrate Judge.



Plaintiff Theresa Beller brings this action pursuant to 42 U.S.C. § 405(g) challenging the decision of the Commissioner of Social Security (the "Commissioner") denying her application for benefits on the ground that she is not disabled within the meaning of the Social Security Act (the "Act"). 42 U.S.C. §§ 423 et seq.

Presently before this Court, pursuant to an order of reference, Dkt. No. 2, are the parties' respective motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. Nos. 10 (Plaintiff's Notice of Mot.), 11 (Plaintiff's Memorandum of Law ("Pl.'s Mem.")), 12 (Defendant's Notice of Mot.), 13 (Defendant's Memorandum of Law ("Def.'s Mem."). For the reasons set forth below, I respectfully recommend that Defendant's motion be DENIED and that Plaintiff's motion be GRANTED to the extent that the case be REMANDED for further administrative proceedings.


A. Plaintiff's Application for Social Security Benefits

Plaintiff applied for Social Security disability benefits on or about June 19, 2009. R. 119-20.[2] In her application. Plaintiff, who was born in March 1958 and was fifty-one years old at the time of her application, claimed that she had been disabled and unable to work since January 1, 2009 due to residual effects of bilateral rotator cuff surgeries; side effects of surgical, radiological, and hormonal treatments for breast cancer; and pain in her back and leg that apparently was caused by a pinched nerve.[3] R. 135-71. Plaintiff claimed that these conditions caused her to have trouble walking, sleeping, bending, climbing stairs, and sitting for long periods of time and to have limited use of her arms. R. 135-71. Plaintiff's application indicated that she had worked as a veterinary assistant from 1986 until 2003. R. 137. Beginning in 2004, Plaintiff worked part-time as a real estate agent. R. 137. Plaintiff also indicated in her application that she had completed school through the tenth grade. R. 143. In terms of her current daily activities, Plaintiff noted that she was able to take care of her own personal hygiene; prepare simple meals for herself; care for her five pets; perform basic cleaning and shopping tasks; drive herself; and work in her real estate office two days per week. R. 155-60. Plaintiff also reported that she spent five days per week at radiation therapy and also attended physical therapy sessions twice per week. R. 160.

B. Medical Evidence

1. Treatment History

a. Breast Cancer

On November 17, 2008, Plaintiff visited her primary care physician" Dr. Eunice Hoolihan of Hudson River Healthcare Community Health. R. 297-98. 353-54 (duplicate). Dr. Hoolihan confirmed a mass in Plaintiff's left breast, received results of a "suspicious mammogram, " and referred Plaintiff for a If line needle biopsy R. 298. Plaintiff returned to Dr. Hoolihan on December 16, 2008 at which time Dr. Hoolihan referred Plaintiff for surgery and oncology.[4] R. 299-300, 350-51 (duplicate).

On December 23, 2008, Plaintiff underwent a biopsy that indicated invasive ductal carcinoma in situ in the left breast. R. 211-12, 267-84. On the same day, Dr. Theodora Budnik performed a lumpectomy at St. Francis Hospital. R. 213-17. Plaintiff visited Dr. Budnik on January 8, 2009 for a post-operative check. R. 267-68. Plaintiff followed up with Dr. Budnik again on January 14, 2009, at which time she reported "minimal residual discomfort" from the surgery. R. 265-66. Dr. Budnik referred Plaintiff to Dr. Ramanohana Kancherla, a medical oncologist at Hudson Valley Hematology-Oncology. R. 266.

On February 2, 2009, Plaintiff saw Dr. Kancherla, who prescribed Tamoxifen. R. 311-12. On February 16, 2009, Plaintiff followed up with Dr. Hoolihan and reported that she was taking Tamoxifen. R. 301-02, 348-49 (duplicate). Plaintiff returned to Dr. Kancherla on March 18. 2009, was advised to continue Tamoxifen, and was referred to St. Francis Hospital's Professional Radiation Oncology Services ("PROS"). R. 313.

On April 3, 2009. Plaintiff consulted with Dr. Anne Chiang at New Milford Hospital-Columbia Presbyterian Regional Cancer Center regarding radiation treatment. R. 224-3 Plaintiff reported to Dr. Chiang regarding apparent side effects from the Tamoxifen and also noted that she had "chronic swelling to her left ankle, after 5 fractures." R. 232. Dr. Chiang noted that Plaintiff appeared to be in "no acute distress sitting upright in the chair, " that she was "able to get up on the examination table without difficulties, " that her neck was "supple, " and that she had "no spinal tenderness on palpitation." R. 232-33. Dr. Chiang noted that Plaintiff was to follow up with her in three months. R. 233. Plaintiff, however, did not return to New Milford Hospital for radiation treatment after she learned that she could not use her New York state Medicaid benefits at this Connecticut hospital. R. 244.

Plaintiff followed up with Dr. Budnik on July 7, 2009. R. 258, 260. Dr. Budnik's report notes that Plaintiff had not yet begun radiation treatment because "she did not realize that it was so important" and had been in the process of arranging treatment with New Milford Hospital when she learned that she could not use her New York state Medicaid benefits there. R. 258. Dr. Budnik noted that Plaintiff continued to take Tamoxifen and that a June 9, 2009 MRI showed only "post surgical changes in the left breast and axilla." R. 258, 261-62. Dr. Budnik noted that "breast inspection and palpation in two positions are unremarkable except for a well-healed transverse incision in the lateral left breast, another incision in the left axilla, and a stiff left shoulder." R. 260. Dr. Budnik also noted that Plaintiffs extremities were "[n]ormal with no calf tenderness or swelling." R. 260. Dr. Budnik "strongly advised" Plaintiff to pursue radiation treatment and to continue with Tamoxifen.[5] R. 260.

On July 7, 2009. Plaintiff consulted with Dr. Kathy Lo and Christa Mitchell, RPA-C, at PROS.[6] R. 244-46. Plaintiff reported during the consultation that she had not pursued radiation earlier "because she ha[d] been having back pain and myalgias."[7] R. 244. Plaintiff also reported various side effects from Tamoxifen, including hot flashes and hair loss. R. 245. Plaintiff noted that she had "various myalgias" and a history of "fracture, " and the doctor noted that Plaintiff's breasts had no palpable abnormalities, that her extremities had "[n]o cyanosis, clubbing, or edema, " and that Plaintiff's "gal" and "stance" were "normal." R. 245-46.

Plaintiff began radiation treatment on July 14, 2009. R. 247. Following this initial session, Plaintiff completed five additional radiation treatment sessions on July 20, 2009, July 31, 2009, August 4, 2009, August 13, 2009, and August 18, 2009. R. 248. During this course of treatment, Plaintiff complained of mild breast tenderness, herniated discs in her back, shoulder pain, and erythema and dry desquamation of her breast. R. 248. On August 12, 2009, Plaintiff again followed up with Dr. Kancherla. R. 314, 444 (duplicate).

Plaintiff returned for a one-year follow-up with Dr. Budnik on December 3, 2009, at which time Dr. Budnik noted that Plaintiff had made "[e]xcellent progress one year following diagnosis and treatment of Stage I left breast cancer treated with lumpectomy.... radiation therapy..., and tamoxifen." R. 436-40.

On January 18, 2010, Plaintiff followed up at Hudson Valley Hematology-Oncology. R. 443. Plaintiff reported that her hot flashes and night sweats had stopped and that she had been receiving treatment for back and leg pain. R. 443. Plaintiff also reported that she was "tolerating Tamoxifen well" and was advised to "continue Tamoxifen." R. 443.

On March 18, 2011, [8] Plaintiff returned to Hudson Valley Hematology-Oncology and also apparently underwent related diagnostic testing around this time. R. 589-97. The examining doctor noted that Plaintiff was "[d]oing well" and would continue taking Tamoxifen. R. 597. The physician also noted that Plaintiff was experiencing [black pain" that was "[n]ot getting better." R. 597.

b. Musculoskeletal Complaints

In December 1999 and June 2003, respectively, Plaintiff underwent surgery to repair her right and left rotator cuffs. R. 421-34.

On May 20, 2009, Plaintiff saw Dr. Hoolihan regarding complaints of pain and numbness in her back and leg. R. 303-04, 344-45 (duplicate). Dr. Hoolihan noted that Plaintiff's neck was "supple, " that she had "no edema" in her extremities. and Plaintiff had "normal strength, tone, and reflexes" with "limited [range of motion in her back] secondary to pain." R. 304. Dr. Hoolihan further noted "lumbar tenderness, bilateral, paraspinal muscles" and reported that the straight leg raising test was negative. R. 304. Dr. Hoolihan assessed "Wow back pain" and prescribed two medications-Celebrex and Opana and referred Plaintiff for a CT-scan.[9] R. 304.

On May 26, 2009. Plaintiff underwent a CT-scan of the lumbar spine which showed "right lateral disk protrusion at L4-L5 with mild central canal and right neural foraminal stenosis, " possible impingement of the "exiting nerve root on the right, ' and "broad-based disk bulge at L3-L4 with mild to moderate central canal and bilateral neural foraminal stenosis." R. 365-66 (typeface altered from original), 558-59.

On July 8, 2009, Plaintiff saw Dr. Richard Perkins at St. Francis Hospital's orthopedic clinic regarding her complaints of leg pain. R. 552. Dr. Perkins noted that Plaintiff complained of "pain shooting down" her right leg to her foot. R. 552. Plaintiff told Dr. Perkins that this pain was "severe" and was "not relieved by narcotics." R. 552. Plaintiffs straight leg raising test was negative at this time, and she had "good strength, " but limited "lumbar" range of motion. R. 552. Dr. Perkins advised Plaintiff to seek emergency treatment if her symptoms worsened and referred her for physical therapy. R. 552.

On July 27, 2009, Plaintiff saw Dr. Sharma Mukta of Hudson River Healthcare/Community Health regarding Plaintiff's complaint of shoulder pain. R. 305-06, 338-39 (duplicate). Plaintiff reported that her lower back pain was "[b]etter than before" and that her "Meg pain and other leg symptoms [were] completely resolved." R. 305. Plaintiff also noted that she had seen an orthopedic doctor who had recommended epidural injection and physical therapy. R. 305. Plaintiffs current complaints included bilateral pain, with the pain being worse on the left than on the right, and problems with "overhead abduction" of her right arm. R. 305. Dr. Mukta noted, with regard to Plaintiff's back, that she was "able to [ sic ] all motions but are limited" and, with regard to Plaintiff's lower extremities, that she had "no edema" and had "5/5" motor strength bilaterally. R. 305. Dr. Mukta assessed back pain and shoulder pain, increased Plaintiff's Opana prescription, which apparently improved Plaintiff's hack pain but not her shoulder pain, and discontinued her Celebrex prescription because Plaintiff apparently did not respond to it. R. 306. Dr. Mukta noted that Plaintiff requested an X-ray of her left ankle and that she also should have an X-ray of her shoulders bilaterally. R. 306. Dr. Mukta prescribed Tylenol to address Plaintiff's shoulder pain and also referred Plaintiff back to the orthopedic clinic at St. Francis Hospital. R. 306. X-rays of Plaintiff's left ankle taken on July 28, 2009 showed a "fracture of the medial malleolus of uncertain age, " "lateral soft tissue swelling, " and "hypertrophic changes of the lateral malleolus." R. 174 (typeface altered from original 364 (duplicate), 556-57. X-rays taken of Plaintiff's shoulders on the same day showed "postoperative and chronic changes" but "no acute osseous abnormality" in the right shoulder and "chronic changes" but "no acute osseous abnormality" in the left shoulder. R. 362-63 (typeface altered from original), 555-56.

Following Dr. Perkins's physical therapy referral, Plaintiff commenced physical therapy at the Therapy Connection at St. Francis Hospital. R. 553-54. Although five sessions were scheduled. Plaintiff apparently attended only three sessions, did not return after August 6, 2009, and was discharged from the Therapy Connection as of October 12, 2009. R. 554.

Plaintiff consulted with Dr. Farag Aboelsaad at Albany Medical Center on August 21, 2009 regarding her complaints of "chronic back pain." R. 544-45. Dr. Aboelsaad noted that Plaintiffs "chief complaint" was "[L]ow back pain with right lower extremity pain." R. 544 (typeface altered from original). Plaintiff described her pain to Dr. Aboelsaad as "constant stabbing pain" and as "7-9/10 in numeric scale." R. 544. She noted that the pain went "down to the lateral thigh, posterior calf posterior thigh and down to the top of the foot." R. 544. According to Plaintiff, this pain was "associated with... occasional numbness in the right lower extremity" and "increase[d] with walking, sitting" but "decrease[d] with sitting and legs up." R. 544. Regarding his physical examination of Plaintiff, Dr. Aboelsaad noted that Plaintiff sat "with no apparent distress or discomfort" and "walk[ed] with normal gait." R. 545. He described her motor strength as "5/5" and noted that the straight leg raising test was positive on the "right lower extremity." R. 545. With regard to Plaintiffs back, Dr. Aboelsaad noted "[t]enderness, paraspinal area, range of motion was diminished in all planes." R. 545. He assessed "chronic low back pain radiating to right lower extremity secondary to lumbar degenerative disk disease with radiculopathy, " noted that he would schedule her for "right L4-L5 transforaminal epidural injection, " and would "see her for followup after the injection." R. 545. On August 31, 2009, Plaintiff underwent a right-sided L4-L5 epidural injection at Albany Medical Center. R. 542-43.

On August 26, 2009, Plaintiff again saw Dr. Perkins at the orthopedic clinic at St. Francis Hospital regarding her complaints of shoulder pain. R. 551. Dr. Perkins assessed left shoulder impingement and recommended physical therapy and injection. R. 551. As discussed above, Plaintiff did not return for physical therapy at the Therapy Connection after August 6. 2009.

On November 11, 2009, Plaintiff returned to the orthopedic clinic at St. Francis Hospital regarding her left shoulder impingement. R. 550. Plaintiff reported that she had attended physical therapy but had not completed the course of treatment and complained of back and ankle pain. R. 550. Plaintiff reported that, while her shoulder pain had improved following an injection in August, she was experiencing a recurrence of pain. R. ...

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