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Johncox v. Colvin

United States District Court, Second Circuit

September 9, 2013

MARK JOHNCOX, Plaintiff,


MICHAEL A. TELESCA, District Judge.


Plaintiff, Mark Johncox ("Johncox" or "Plaintiff"), brings this action pursuant to the Social Security Act § 216(i) and § 223, seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB"). Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") is not supported by substantial evidence in the record and is contrary to applicable legal standards.

On March 18, 2013, Plaintiff moved for summary judgment seeking to remand for a new hearing. On June 12, 2013 the Commissioner cross-moved for judgment on the pleadings pursuant to 42 U.S.C. § 405 (g) on the grounds that the findings of the Commissioner are supported by substantial evidence.

For the reasons set forth below, this Court finds that there is substantial evidence to support the Commissioner's decision. Therefore, the Commissioner's motion for judgment on the pleadings is granted and the Plaintiff's motion is denied.


On May 26, 2006, Plaintiff filed an application for DIB under Title II, § 216(i) and § 223 of the Social Security Act, alleging a disability since January 4, 2007 arising from back pain, high cholesterol and acid reflux. T. 207. Plaintiff's claim was denied on October 2, 2009. T. 72-80. At Plaintiff's request, an administrative hearing was conducted on December 14, 2010 before an Administrative Law Judge ("ALJ"). T. 23-52. Johncox testified at the hearing and was represented by counsel. In addition, a vocational expert testified.

On January 12, 2011, the ALJ issued a Decision finding that Johncox was not disabled at any time from the alleged onset date through the date last insured, December 31, 2010. T. 54-65, 192. On June 27, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's Decision the final decision of the Commissioner. T. 4-6. Plaintiff filed this action on October 1, 2012.


Plaintiff is a 44 year old high school graduate and certified welder who worked as a mason and heavy equipment operator. T. 195. He claims that he became disabled from back pain after he was in an automobile accident in January, 2007. T. 207. Johncox claims that he can no longer sit for long periods of time, bend over and lift heavy objects. T. 207.

A. Medical History

Plaintiff was treated by Dr. Nathaniel Sutain at the University of Rochester Medical Center ("URMC") following a motor vehicle accident which occurred on January 4, 2007. T. 238-240. Johncox complained of neck and low back pain since the accident. In addition, he was concerned about a lip laceration and a gap on the inside portion of his lip. Dr. Sutain noted that Plaintiff had a history of depression, anxiety and alcoholism and that he smoked one pack a day as well as drank a 12 pack of beer daily. (T. 239) He had knee arthroscopy twice on the left side and he was taking Vicodin, Wellbutrin and an anti-anxiety medicine. (T. 238)

X-rays of the back taken at URMC showed "mild degenerative changes with no evidence of acute fracture or dislocation." T. 239. Specifically, the x-rays showed mild disc space narrowing at L3-L4 and L4-L5 with endplate changes. Mild disc disease was also observed at L1-L2. T. 242. Dr. Sutain recommended that Johncox be treated for degeneration of the low back and sent him for physical therapy for a flexion based exercise program. T. 240. He was also encouraged to cease smoking. T. 240.

Johncox was treated by his primary care physician, Dr. David Hannan, of Arcadia Family Practice for a follow up from the motor vehicle accident. T. 332. Dr. Hannan noted that Plaintiff suffered from a lip laceration, neck injury and a concussion from the accident. Dr. Hannan noted that Plaintiff's depression was moderate and had worsened since his last visit. Plaintiff was taking Wellbutrin, Lorazepam, Vicodin and was prescribed physical therapy. T. 332. Dr. Hannan examined Plaintiff again on January 29, 2007 at which time he noted that Plaintiff's neck sprain and cervical pain had improved from last visit but it still required Plaintiff to stay out of work. T. 333. The medications were continued.

Johncox presented to Newark Wayne Hospital with chest discomfort and EKG changes suggestive of ischemia in February 13, 2007. T. 337, 304. He was put on Heparin and transferred to Rochester General Hospital where he underwent a coronary angiogram which showed 100% occlusion of the proximal LAD. Three stents were put in successfully. T. 304. The medical reports indicate that Plaintiff had a history of depression, illicit drug use and had used cocaine two days prior to hospital admission. T. 304.

Dr. Hannan examined Plaintiff on February 20, 2007. T. 344. He noted that Plaintiff was treated for myocardial infarction but that Plaintiff now had no chest pain nor edema. Plaintiff acknowledged that he used cocaine infrequently and had cut back on smoking to half a pack per day. T. 344. Dr. Hannan continued Plaintiff on Wellbutrin, Vicodin and also recommended physical therapy and counseling for drug use. T. 344. In addition, Plaintiff was prescribed a nicotine patch and Ambien to aid in sleeping. T. 344.

Dr. Hannan's treatment notes of March 20, 2007 indicate that Plaintiff's sprain of his neck has resolved and no further treatment was necessary. T. 348. However, Plaintiff reported that his back pain had worsened. Dr. Hannan recommended continuation of physical therapy and medications, Wellbutrin and Vicodin. T. 348. The medical notes from May 24, 2007 and June 7, 2007 also note continued lower back pain and continue the medications of Wellbutrin and Vicodin. T. 354, 356. In June, Plaintiff reported that he had returned to work on May 31st but that the pain increased. After two days of work, he left and had not returned. The pain was in the lower back and into the left buttock. T. 356. Dr. Hannan prescribed Skelaxin. Two weeks later on June 21, 2007, Plaintiff reported that his back pain had improved but he was still taking Vicodin four times a day and Dr. Hannan discussed decreasing the use of Vicodin. T. 358.

On July 3, 2007, Dr. Hannan's treatment records report that Plaintiff's back pain worsened causing a loss of sleep for more than 2.5 hours. T. 359. He was continued on Vicodin and Wellbutrin and a lumbar spine MRI was ordered. T. 359. At this same visit, Dr. Hannan noted that the myocardial infarction was controlled. T. 360.

The MRI results from July 9, 2007 showed normal lordosis and normal height and alignment of vertebral bodies. It also showed a small left posterolateral disc protrusion at L4-L5 level that compressed the left L5 nerve root as well as a small left paracentral/posterolateral disc protrusion that abuts the left S1 nerve root. There was also a combination of degenerative changes and congenital short pedicles that result in moderate spinal stenosis at L4-L5, mild to moderate spinal stenosis at L3-L4 and mild spinal stenosis at L2-L3. Finally, there was mild left sided neural forminal stenosis at L4-L5 level. T. 362-363. Dr. Hannan referred Plaintiff to Dr. James Maxwell, a neurosurgeon on August 13, 2007. T. 364.

In September, 2007, Plaintiff fell from the roof and fractured bones in his right foot. T. 441. Dr. Hopson recommended an internal fixation of the second metatarsal base. T. 441, 443.

In October, 2007, Plaintiff was diagnosed with Hyperlipidemia or high cholesterol as well as abnormal liver function. T. 369. The condition had improved by November, 2007 with the adjustment of medications. Plaintiff was continuing to take Wellburtin, Lorazepam, Vicodin as well as Ambien to assist with sleep and Habitrol for nicotine addiction. T. 372.

On October 11, 2007, Plaintiff had an initial consultation with Dr. Webster Pilcher, a neurosurgeon from URMC. T. 575. Dr. Pilcher recommended a conservative management regimen including that Plaintiff be evaluated by Dr. John Markman and enter an aggressive exercise program with a physical therapist. T. 576.

On November 27, 2007, Plaintiff was examined by Dr. Markman at URMC. Johncox indicated that he has low back and buttock pain that was brought on and increased in intensity by physical activity such as vacuuming. There was no associated weakness nor sensory deficit. Plaintiff was taking 3 to 8 hydocodone per day to treat the pain. T. 245.

Dr. Markman concluded that given Plaintiff's increased risk for "aberrant drug taking behavior with his current hydocodone regimen, marked acute limitation and inability to return to work, lack of improvement over the last 6 months" he recommended epidural steroid injections. Johncox was ...

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