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Marshall v. Colvin

United States District Court, Second Circuit

October 30, 2013



MICHAEL A. TELESCA, District Judge.


Plaintiff, Jacquelen Marshall ("Marshall" 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 her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSI"). 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 July 9, 2013, the Commissioner 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. On August 4, 2013, Plaintiff cross-moved for summary judgment seeking to reverse the Commissioner's decision.

For the reasons discussed below, Plaintiff's motion is granted in part, Defendant's motion is denied, and the matter is remanded for further administrative proceedings.


On November 19, 2008, Plaintiff filed concurrent applications for DIB and SSI under Title II, § 216(i) and § 223 of the Social Security Act, alleging a disability since December 27, 2006 arising from lower back and left leg pain. T. 118-125, 154. Plaintiff's claim was denied on March 30, 2009. T. 64-68. At Plaintiff's request, an administrative hearing was conducted on June 24, 2010 before an Administrative Law Judge ("ALJ") at which Marshall testified and proceeded pro se. A vocational expert also testified. T. 9-37.

On July 26, 2010, the ALJ issued a Decision finding that Marshall was not disabled. T. 40-50. On June 1, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's Decision the final decision of the Commissioner. T. 1-4. This action followed.


Plaintiff is a 48 year old woman with a ninth grade education. T. 118, 19. She first experienced pain in her back on December 27, 2006. T. 151. Marshall described her pain as stabbing or dull ache in the lower back which radiates down to the outside of her left leg and she has no feeling to the touch from her knee down the shin. T. 151. Marshall claimed that the knee goes out without notice at times. T. 151.

Marshall's work history was in customer service in the retail industry. T. 162. She worked for a variety of employers from 1991 through 2006 in retail which required either no lifting or lifting less than 10 pounds. T. 162.

In her disability application, Marshall noted that she was able to take care of herself including preparing meals but it was taking longer to do so than it used to before her injury. T. 145. Plaintiff shopped for her own groceries and could do light cleaning although at times she relied on the help of her mother or friends. T. 146. Prior to her injury, Plaintiff enjoyed running, playing sports, hiking and sewing. T. 147.

A. Medical History

Plaintiff began treatment for back pain in December, 2006. Lumbar spine x-rays taken showed no spondyloishthesis, no visible fracture and normal bone mineralization. T. 341. No degenerative changes were seen. In the left hip, no cortical irregularity or trabecular disturbance was seen. T. 341. The impression noted in the record was "normal examination of the lumbar spine and left hip." T. 341.

Plaintiff was treated at the neurosurgery clinic at Strong Memorial Hospital of University of Rochester for her left lower extremity pain on May 4, 2007. T. 219. Plaintiff was taking Vicodin on occasion for pain which she reported worked well. T. 219. Her pain episodes were intermittent, occurring approximately once per day. T. 219. The MRI showed L1 and L2 herniated disc. Dr. Robert Bakos indicated that the herniation could be the cause of some of the left leg symptoms, it was not consistent with sciatic and pain distribution. T. 220. He recommended a series of epidural steroid injections with Dr. Markman of the pain clinic. T. 220. He also suggested Plaintiff stop physical therapy as Plaintiff indicated it was making the pain worse. T. 220.

In a letter dated June 29, 2007, Dr. Markman of the University of Rochester Neuromedicine Pain Management Center detailed his treatment of Marshall. T. 191-192. He noted that Plaintiff had left sided leg pain in the posterior hamstring most consistent with radiculitis. T. 192. Dr. Markman pointed out that there was a "poor correlation" between the L1-L2 lesions on Plaintiff's MRI and the location that she has the pain. During his examination, Dr. Marman found Plaintiff to have a full range of motion at the lumbar spine with flexion and extension. There was no significant pain reproducible with direct palpation of the paraspinal muscles or the spinous processes. T. 192. Similarly, there was no reproduction of pain with lumbar extension, rotation and focal tenderness over the S1 joint or greater trochanteric bursa. T. 192. Although his examination of Plaintiff showed no motor or sensory deficits, Plaintiff expressed pain with straight leg testing. He recommended epidural steroid injections for radiculitis. T. 192. He points out that there were no features of lumbrosacral pleopathy and no significant hamstring weakness. T. 192.

Dr. Markman next examined Plaintiff on September 24, 2007. T. 194. He noted that interventional pain management with lumbar epidural steroid injections at L4-L5 and left sacroiliac joint were ineffective in reducing Plaintiff's pain. T. 194. Plaintiff told Dr. Markman that taking Tramadol as needed for pain was helpful. T. 194. She indicated that standing for any length of time provoked left buttock and thigh pain. Dr. Markman found no tenderness with palpation of the thoracic or lumbar spine nor muscle atrophy or wasting in the lower extremities. T. 194. He recommended repeating the lumbar epirdual steroid injection at L1 and requested further MRI studies of the pelvic floor to rule out structural source of the pain. T. 194.

Dr. Markman's medical notes of October 30, 2007 reflect that Plaintiff discontinued all medications except Tramadol since her last appointment of September 24, 2007. T. 196. She was walking for exercise wearing ankle weights and stopped smoking. T. 196. Dr. Markman noted that Plaintiff had no tendernes with palpation of the spinous processes of the thoracic or lumbar spine or of the myofascial structures of the back. T. 197. He observed Plaintiff walk with a steady upright posture. T. 197. Dr. Markman concluded that the examination showed no evidence of focal neurologic deficit, that the MRI of the pelvis showed no structural abnormality and he scheduled a lumbar epidural steroid injection targeting S1 to treat the left buttock and posterior thigh pain. T. 198.

Plaintiff called into Dr. Markman's office on January 16, 2008, one week after receiving the injection, and reported that she had been feeling ill. T. 199. Plaintiff reported taking Tradadol twice within the last three weeks and indicated that she was trying to get off all medications. T. 199. Dr. Markman's office adviced her to come in for evaluation. T. 199.

Plaintiff was examined by Dr. Vythilingam Alagappan on February 29, 2008 for complaints of headaches that were severe and getting worse. T. 239. Marshall reported that she was taking Motrin which helped. T. 239. Plaintiff was advised to quit smoking and given Toradol injection. T. 240. She was advised to use Excedrin migrain medications and given some ...

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