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McHugh v. Astrue

United States District Court, Second Circuit

August 6, 2013



MICHAEL A. TELESCA, District Judge.


Represented by counsel, Patrick Dennis McHugh ("Plaintiff" or "McHugh"), brings this action pursuant to Titles II and XVI 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") and supplemental security income ("SSI"). The Court has jurisdiction over this action pursuant to 42 U.S.C. ยง 405(g).


On August 27, 2009, Plaintiff filed applications for DIB and SSI, claiming disability as of December 19, 2008, based on conditions afflicting his neck, back, and right shoulder. T.133, 143-149, 169.[1] Plaintiff's applications for benefits were denied on February 24, 2010. T.67-74. Plaintiff was represented by counsel at the administrative hearing on May 18, 2010. On October 1, 2010, Administrative Law Judge Timothy McGuan ("the ALJ") denied Plaintiff's application for benefits. T.13-31. The Appeals Council denied Plaintiff's request for review on May 24, 2011, making the ALJ's decision the final decision of the Commissioner. T.1-6.

This action followed. 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.


I. Relevant Medical Evidence

A. Evidence Before the Onset Date

On April 25, 2007, Plaintiff was involved in a motor vehicle accident ("MVA") and sustained injuries to his neck and right upper extremity. On June 12, 2007, Plaintiff underwent an MRI of the cervical spine, which revealed disc herniations at C6-C7, C5-C6, C4-C5, and C3-C4. An MRI of Plaintiff's right shoulder revealed tenodesis with no identifiable tears, moderate osteoarthritis of the acromioclavicular joint with slight encroaching of the supraspinatus outlet, and degenerative changes of the superior labrum. See T.281-83, 479.

On September 27, 2007, Plaintiff was referred by his primary care physician, Thomas F. Hughes, M.D., to Lee R. Guterman, M.D., who found that Plaintiff had "severe limited range of motion of his cervical spine on flexion, extension, lateral bending, and rotation[.]" Dr. Guterman noted that Plaintiff "ha[d] a weak grip, approximately 4/5, biceps 4/5, triceps 4." Id . He also noted loss of sensation in Plaintiff's right upper extremity, although Plaintiff's reflexes appeared to be normal. Dr. Guterman diagnosed Plaintiff with cervicalgia and joint pain in the shoulder region. See T.489-90.

Following a referral from Dr. Guterman, P. Jeffrey Lewis, M.D., evaluated Plaintiff on November 2, 2007. Plaintiff had a herniated disc at C6-C7 with right C7 radiculopathy and muscle atrophy of the right triceps muscle. Dr. Lewis also noted that Plaintiff had right cubital tunnel syndrome from the ulnar nerve compressing the elbow on the right. Both conditions were caused by Plaintiff's 2007 MVA. See T.317-19.

On November 15, 2007, Plaintiff met with Eugene Gosy, M.D. and Deborah Dzielski, ANP. Plaintiff's neck extension was 10% of normal, and his flexion and right rotation were 50% of normal. Plaintiff's trapezius was tender, there were no trigger points on the spine, and straight-leg raises ("SLRs") were negative. Plaintiff's strength in both his upper and lower extremities was 5/5, his joint pressing maneuvers were normal, his sensation was intact to pinprick, and his cranial nerves were intact. See T.213-15.

On November 21, 2007, Plaintiff had x-rays taken of his cervical spine, which revealed spondylosis at C5-C6 and C6-C7, and mild dextroscoliosis, possibly due to spasm. T.380. On November 30, 2007, Dr. Lewis performed disc replacement surgery on Plaintiff. T.340-42. Post-surgery, Plaintiff underwent physical therapy and pain management treatment with Dr. Gosy. T.216-20, 221-27.

Due to continued pain, Plaintiff began pain management treatment with Gerald L. Peer, M.D. in early August 2008. T.284-86. Dr. Peer assessed that lateral flexion of Plaintiff's right shoulder bilaterally was 50% of normal, his abduction was 90% of normal, his upper extremity strength was 5/5 bilaterally, and his range of motion in his left shoulder was full. T.289. Plaintiff could walk heel to toe, and had right-sided hypoesthesia at C6-C7. Id . Plaintiff's reflexes were symmetrical bilaterally. Dr. Peer's diagnosis was intervertebral disc displacement without myelopathy, for which he prescribed a transcutaneous electrical nerve stimulation ("TENS") unit. Dr. Peer noted that Plaintiff was working part-time on a light duty basis, and his disability was "moderate, partial and temporary." T.289. Plaintiff continued to treat with Dr. Peer on a monthly basis until May 7, 2009. T.353.

On September 17, 2008, Plaintiff was involved in another MVA, which resulted in increased neck pain and injury to his right shoulder. T.327. On November 17, 2008, Plaintiff underwent a magnetic resonance arthrogram of his right shoulder, which revealed a full thickness tear of his posterior supraspinatus tendon. T.241. On December 17, 2008, orthopedist Joseph E. Buran, M.D. performed arthroscopic surgery on Plaintiff's right shoulder to repair the torn rotator cuff. T.238-39. Post-surgery, Dr. Buran noted that Plaintiff was doing "generally" well, his pain had diminished, and he was neurologically intact. Dr. Buran determined that Plaintiff was disabled and referred him to a physical therapist. T.304, 307.

B. Medical Evidence After the Onset Date

Due to his chronic pain, Plaintiff returned to see Dr. Peer on February 11, 2009, at which time Dr. Peer determined that Plaintiff was temporarily totally disabled due to his right shoulder surgery. T.270.

On March 25, 2009, Plaintiff underwent a computed tomography ("CT") scan of his cervical spine, which showed no abnormalities at C2-C3, C3-C4 and T1-T2. T.243.

In April 2009, Dr. Lewis noted that Plaintiff was recovering well from his recent shoulder, and that he appeared to have symptoms associated with ulnar nerve compression syndrome at the elbow. T.329. An MRI of Plaintiff's cervical spine revealed subtle degenerative changes at C5-C6 with the possibility of scoliosis. T.337. Dr. Lewis opined that Plaintiff could return to work on a part-time basis. T.322.

On June 19, 2009, Plaintiff returned to Dr. Buran's office. Vincent E. Lorenz conducted an assessment and determined that Plaintiff was doing well but had some residual loss of range of motion in his shoulder. He also noted that Plaintiff had "excellent strength" and had "good function and can return to work in reference to his shoulder." T.312. Lorenz assessed that Plaintiff "is disabled at this time, not because of the shoulder, but because of the neck." T.312.

On June 23, 2009, Plaintiff underwent an EMG nerve study which revealed mild chronic left C8 radiculopathy and bilateral ...

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