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Lipp v. Astrue

United States District Court, Second Circuit

May 7, 2013

STEPHEN L. LIPP, Plaintiff,


MICHAEL A. TELESCA, District Judge.


Represented by counsel, Stephen L. Lipp ("Plaintiff" or "Lipp"), brings this action pursuant to Title II of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying his application for disability insurance benefits ("DIB"). The Court has jurisdiction over this action pursuant to 42 U.S.C. ยง 405(g).

Presently before the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, this Court finds that the decision of the Commissioner is supported by substantial evidence in the record and is in accordance with the applicable legal standards. Accordingly, this Court hereby grants the Commissioner's motion for judgment on the pleadings.


On January 10, 2006, Plaintiff filed an application for DIB, claiming disability since November 3, 2005, for neck and back problems, and a shoulder injury. Administrative Transcript ("Tr.") 57, 72-74, 117-118. Plaintiff's claim was denied on March 29, 2006. Tr. 21, 54-57. At Plaintiff's request, an administrative hearing was conducted on April 11, 2008 in Buffalo, New York before Administrative Law Judge ("ALJ") Lamar W. Davis. Lipp, who was represented by attorney Lawrence S. Lewis, testified at the hearing, as did impartial vocational expert Timothy P. Janikowski, Ph.D. ("Janikowski" or "VE"). Tr. 218-246.

On June 3, 2008, the ALJ issued a decision finding that Lipp was not disabled during the relevant period. Tr. 10-20, 252-262. Lipp requested review of the ALJ's decision, and the Appeals Council denied Plaintiff's request. Tr. 2-4, 263-265.

Plaintiff then filed a civil action in this Court (09-cv-00319). By Stipulation and Order entered September 28, 2009, the Court (Hon. H. Kenneth Schroeder, Jr.) remanded the case to the Commissioner for further proceedings.

By letter dated December 21, 2009, the Appeals Council sent copies of the exhibits and a duplicate recording of the proceedings to Plaintiff's new attorney. The letter also offered Plaintiff the opportunity to submit additional evidence or a statement about the facts and law in the case. Tr. 250-251. On March 1, 2010, the Appeals Council sent a memorandum to Plaintiff's counsel indicating that to date, no additional information had been received, and requested that Plaintiff submit any additional evidence or information by March 15, 2010. See Def's Mem at Ex. A. The ALJ's decision dated June 3, 2008 became the Commissioner's final decision on April 13, 2010, when the Appeals Council denied Plaintiff's request for review once more. Tr. 247-249. This action followed.


Plaintiff has adopted the summary of the relevant medical evidence set forth in Defendant's Memorandum of Law (Dkt. No. 7). Briefly, Plaintiff was involved in a work-related accident on August 29, 2005. Tr. 176. He immediately underwent a cervical spine x-ray that showed degenerative changes. Tr. 174, 217.

In September 2005, Plaintiff was examined by Alfredo Rodes, M.D. who opined that Plaintiff suffered from neck sprain and strain. Tr. 211. Later that same month, Dr. Rodes examined Plaintiff, at which time Plaintiff reported that his condition had been "mostly well controlled" with medication. Dr. Rodes certified that Plaintiff could return to "regular duty" work on September 26, 2005. Tr. 210.

In November 2005, Usha Raghavan, M.D. conducted an independent medical examination of Plaintiff for his employer's insurance carrier. Tr. 201-03, 206-08, 213-16. Dr. Raghavan's examination revealed that Plaintiff had reduced range of motion in his neck, and tenderness to palpation in his lower cervical vertebrae. Tr. 201, 206, 214. Dr. Raghavan concluded that Plaintiff had cervical strain "which is causally related to" his August 29, 2005 work accident. Tr. 203, 208, 216.

In December 2005, Petitioner began seeing Dr. P. Jeffrey Lewis, who examined Petitioner and assessed that he showed restricted range of motion in all areas of the cervical, thoracic, and lumbar spine, and had some restricted range of motion in the right shoulder in flexion. Tr. 177. Dr. Lewis noted that Plaintiff began taking physiotherapy on November 25, 2005, and was also taking Naprosyn and Oxycodone for his pain. Tr. 176, 204. In January 2006, Dr. Lewis assessed that Plaintiff had a moderate to marked level of disability and released him to return to "light duty" work. Tr. 200. Treatment notes from February 8, 2006 from Dr. Lewis show that Plaintiff had been symptomatic since his work injury, and that Dr. Lewis had placed Plaintiff on "total disability from work." Dr. Lewis recommended an anterior cervical microdiscectomy and fusion with respect to Plaintiff's spine. Tr. 158. On February 28, 2008, Dr. Lewis assessed that Plaintiff was "totally disabled" until further notice. Tr. 130. The following day, Dr. Lewis and Edward Vargi, RPA, co-signed a report in which they noted Plaintiff "does not feel he can work, " and they continued Plaintiff on "total disability." Tr. 129, 134.

In January 2006, Plaintiff underwent MRIs of his cervical spine and right shoulder. The MRI of his cervical spine revealed moderate disc herniation in two locations, and the MRI of his right shoulder revealed acromioclavicular joint atropathy along with a small tendon tear. Tr. 154, 155. Also at this time, x-rays were taken of Plaintiff's cervical spine and right shoulder. The x-rays of Plaintiff's cervical spine revealed cervical spondylosis in two locations, and the x-ray of his right shoulder revealed some changes of the acromioclaviculare joint. Tr. 184.

Plaintiff began seeing registered physician assistant ("PA") Jason D. Fabianksi and Michael T. Grant, M.D. in January 2006. Tr. 182-183, 198-199. Upon initial examination, Plaintiff's cervical spine showed "decrease in tender range" and his right shoulder revealed reduced range of motion, but no deformity. Tr. 182, 198. At a subsequent examination, Plaintiff's right shoulder was "tender and weak to resisted abduction" and impingement sign was positive. PA Fabianksi and Dr. Grant recommended arthroscopy. Tr. 180. PA Fabianski and Dr. Grant cosigned a report, dated November 21, 2007, in which they noted that Plaintiff was status post a second shoulder arthroscopy. Tr. 135-136. After a physical examination, they concluded that Plaintiff was "persistently symptomatic following a work related injury to his cervical spine and right shoulder." Tr. 135. On January 24, 2008, they re-evaluated Plaintiff again, at which time Plaintiff complained of persistent pain and discomfort in his right shoulder and arm. Tr. 137. Upon physical examination, PA Fabianksi and Dr. Grant concluded again that Plaintiff was "persistently symptomatic." Tr. 137. On March 25, 2008, PA Fabianksi and Dr. Grant co-signed a report in which they asserted that Plaintiff remains "totally disabled." Tr. 127-128.

In January 2006, Plaintiff was examined by Paul F. Updike, M.D. for workers' compensation purposes. Tr. 194-195. Plaintiff reported that his pain was "very well-controlled" and manageable with his medication regime. Tr. 194. Plaintiff's physical examination overall and a review of his systems was "fairly unremarkable." Tr. 191-192, 194. Dr. Updike noted that, upon examination, he "really did not see much evidence of significant radicular component to his pain or really significant shoulder pathology." Tr. 194. Dr. Updike also noted that Plaintiff's history and presentation were "unusual, " ...

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