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Roller v. Colvin

United States District Court, N.D. New York

March 27, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


THOMAS J. McAVOY, Sr., District Judge.

Plaintiff Karmen Roller, representing herself pro se, brought this suit under § 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for a period of disability insurance benefits. Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") denying the application for benefits is not supported by substantial evidence and contrary to the applicable legal standards. The Commissioner argues that the decision is supported by substantial evidence and made in accordance with the correct legal standards. Pursuant to Northern District of New York General Order No. 8, the Court proceeds as if both parties had accompanied their briefs with a motion for judgment on the pleadings.


On January 20, 2009, Karmen Roller ("Plaintiff") filed an application for a period of disability insurance benefits through March 31, 2005. Administrative Transcript ("T") at 178-181. Plaintiff alleged that she was disabled by a neck/spinal injury, COPD and gerd. Id . at 200. Plaintiff indicated that her disability began on December 24, 1999 and continued to the present day. Id . at 178. The claim was initially denied on November 4, 2009. Id . at 84. After a hearing, (Id. at 27-83), Administrative Law Judge ("ALJ") Barry Peffley denied the application. Id . at 14-22.

In his decision, the ALJ followed the five-step sequential evaluation process for determining whether a claimant is disabled pursuant to 20 C.F.R. § 404.1520(a). Id . at 14-16. First, the ALJ found that Plaintiff's earnings record demonstrated that she had acquired sufficient quarters of coverage to maintain insurance only through March 31, 2005, and that Plaintiff needed to establish a disability on or before that date in order to qualify for disability benefits. Id . at 14, 16. At step two, the ALJ found that Plaintiff had not engaged in substantial gainful activity between the alleged onset date of December 24, 1999 through her last insured date of March 31, 2005. Id . at 16. Third, the ALJ assessed the claimant's impairments or combination of impairments, finding, that Plaintiff suffered from the severe impairments of cervical herniated nucleus puposus, mild carpal tunnel syndrome, chronic low back pain, headaches and gastroesophageal reflux disease. Id . at 16. He further found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. Id . at 16.

Before moving on to the fourth step, the ALJ addressed Plaintiff's residual functional capacity ("RFC"). The ALJ concluded that Plaintiff could:

perform light work as defined in 20 CFR 404.1567(b) except the claimant is limited to work that permits the claimant to sit or stand alternatively, but would not have to leave the workstation. The claimant can only frequently push or pull with her right upper extremity; frequently operate foot control with her right lower extremity; frequently rotate, flex or extend her neck; occasionally climb ramps or stairs; never climb ladders, ropes or scaffolds; occasionally balance, stoop, kneel, crouch, bend, and crawl; frequently reach with her right upper extremity; occasionally reach overhead with her bilateral upper extremities; and frequently handle with her right upper extremity. The claimant should avoid concentrated exposure to moving machinery and unprotected heights and irritants such as fumes, odors, dusts, gases, poorly ventilated areas, etc. Further, work is also limited to simple, routine, repetitive tasks in a work environment free of fast paced production requirements; involving only simple work related to decisions with few, if any, workplace changes.

Id. at 17.

The ALJ then moved to step four and found Plaintiff could not perform any past relevant work. Id . at 20. Finally, at step five, the ALJ determined that there are "jobs that exist in significant numbers in the national economy that [Plaintiff] can perform." Id . at 21. This finding led the ALJ to conclude that Plaintiff is not disabled within the meaning of the Social Security Act. Id . at 22.

On February 2, 2011, Plaintiff filed a Request for Review of Hearing Decision/Order. Id . at 9-10. On August 24, 2011, the Appeals Council granted the request for review, which noted that Plaintiff could ask for an appearance and send more information within 30 days. Id . at 6-8. On March 7, 2012, Plaintiff's representative submitted a brief. Id . at 268-270.

On September 11, 2012, the Appeals Council issued an unfavorable decision. Id . at 1-5. The Appeals Council stated that it "found no reason under our rules to review the Administrative Law Judge's decision." Id . at 1. The Appeals Council found that "the Administrative Law Judge's decision is the final decision of the Commissioner of Social Security in your case." Id . at 1. This action followed, with Plaintiff proceeding pro se.


On the alleged onset date of December 24, 1999, Plaintiff was 37 years old. Id . at 253. Plaintiff does not dispute that her last date of coverage was March 31, 2005.[1] Plaintiff was born April 9, 1962, and was 46 years old at the date of her initial filing. Id . at 35. She had a high school education, as well as a number of years of college attendance. Id . at 36. Her reported past work includes pre-loading for a package delivery service and home health care aide. Id . at 36-38.

a. Medical Records[2]

Plaintiff injured herself at work on December 24, 1999. Id . at 296. Dr. Ivan L. Wolf performed an independent medical evaluation of Plaintiff on December 27, 1999. Id . Dr. Wolf reported that Plaintiff had injured herself while repetitively lifting parcels which were jammed in a cage. Id . While Plaintiff did not experience an accident or direct trauma, this motion caused Plaintiff to develop pain in her upper back and lower neck. Id . Plaintiff complained of pain and soreness that was only slightly relieved with Tylenol. Id . Examination revealed no tenderness on the spine or paraspinal muscles in the thoracic or cervical region, and normal cervical spine motion and strength. Upper extremity motion, strength, reflexes and sensation were normal, as was flexion of the lumbosacral spine and twisting of the torso. Id . Dr. Wolf diagnosed a cervical and thoracic strain. Id . Dr. Wolf prescribed aetaminophen for Plaintiff, who was nursing a child. Id . He also directed Plaintiff to use ice or heat for relief as needed. Id . Dr. Wolf also found that Plaintiff could perform light duty with lifting, pushing, and pulling of no more than 10 pounds. Id . She was to avoid overhead work with her arms. Id.

Plaintiff began treating with Stephen C. Robinson, MD, for her various injuries in March 2000. On March 14, 2000, Dr. Robinson reported that Plaintiff had complained of thoracic spine pain since her workplace injury of December 24, 1999. Id . at 482. Her pain was localized to the mid thigh and upper thoracic spine, and she had some difficulty sleeping when turning over. Id . Additionally, Plaintiff had begun to suffer pain down her right arm. Id . Dr. Robinson's examination revealed some tenderness and pain in the thoracic area. Id . He diagnosed Plaintiff with a chronic upper thoracic strain. Id . On June 9, 2000, Plaintiff reported continued severe upper thoracic spine pain, which had not improved much at all over the past few months. Id . at 313. Plaintiff reported tenderness in the upper thoracic spine, but full range of motion on the cervical spine and shoulders with no pain. Id . Pain did not radiate around either rib. Id . An MRI had reported no evidence of stenosis or herniated disc, and x-rays of the thoracic spine were unremarkable. Id . Plaintiff reported continued back pain in the right midthoracic region on July 11, 2000. Id . at 484. Dr. Robinson diagnosed a chronic medial parascapular strain. Id . A note on patient's chart indicates that she phoned Dr. Robinson on August 8, 2000 to complain of increased back pain and gastrointenstinal difficulties. Id . at 485.

Plaintiff treated with Dr. Mahender R. Goriganti, MD, beginning on August 21, 2000. Id . at 486-8. She complained of back pain as a result of a work injury, and reported she had been "miserable" until encountering improvement in the previous two or three weeks. Id . at 486. None of the treatment she underwent, including physical therapy and medication, had helped her. Id . She had difficulty sleeping, though the situation had improved within the past two weeks. Id . Dr. Goriganti examined Plaintiff and concluded she had suffered a thoracic spine sprain. Id . at 487. He determined that she could return to work on a light-duty basis. Id . Dr. Goriganti also determined that, since Plaintiff was six weeks pregnant, she could not be placed on a pain-management program. Id . at 488.

The same conditions prevailed when Dr. Goriganti saw Plaintiff on September 19, 2000. Id . at 489. On October 12, 2000, however, Plaintiff reported "progressively increasing pain" to her upper back and mid thoracic area posteriorly. Id . at 490. Dr. Goriganti determined to treat Plaintiff "conservatively" because of her pregnancy, but permitted a hot pack massage without ultrasound or electronic stimulation. Id . On November 15, 2000, Dr. Goriganti diagnosed Plaintiff with chronic myofascial pain syndrome after she returned to him with continued pain in her neck, interscapular area and low back. Id . at 491. Physical therapy was not helping Plaintiff. Id . Dr. Goriganti also noted that Plaintiff had some "emotional" issues, and that she "does have some component of symptom magnification." Id . On March 26, 2001, Plaintiff complained of pain in her back and mid thoracic region, but said the pain had decreased from previously. Id . at 495. Since Plaintiff was pregnant, Dr. Goriganti determined that a better evaluation could be made after she delivered her child. Id . Dr. Goriganti repeated his diagnosis of myofascial pain syndrome on May 25, 2001, when Plaintiff returned complaining of continued back pain. Id . at 498.

Plaintiff returned to Dr. Robinson on December 19, 2000. T at 493. Plaintiff reported feeling better, with less upper back pain. Id . Still, she remained tender in the right upper thoracic region. Id . Dr. Robinson, like Dr. Goriganti, diagnosed Plaintiff with myofascial pain syndrome. Id . On February 6, 2001, Plaintiff's upper thoracic pain had become "quite bothersome at times[.]" Id . at 494. Robinson diagnosed her with a chronic scapular strain and myofascial pain syndrome. Id . When Plaintiff returned on March 27, 2001, she was still bothered by medial and parascapular pain, at times on the left and at times on the right, and was tender along the medial borders of both scapulae. Id . at 496. Any surgical treatment would have to wait until after the birth of Plaintiff's child. Id . Plaintiff's complaints continued on May 25, 2001, after she had her baby. Id . at 497. Given the severity and duration of Plaintiff's symptoms, Dr. Robinson could not rule out cervical disc disease as a possible source of Plaintiff's medial parascapular pain. Id . On August 24, 2001, Plaintiff reported that she continued to have "good days and bad days with her interscapular pain." Id . at 499. She presented similar complaints on September 18, 2001. Id . at 500. Plaintiff added increased sensation in the dorsal radial forearm to her list of symptoms when she saw Dr. Robinson on October 2, 2001. Id . at 501. The pain had extended at times into her right hand by October 30, 2001. Id . at 503. When Plaintiff saw Dr. Robinson on December 4, 2001, his examination showed decreased sensation of the left C5 and C6 dermatones. Id . at 504. Electrodiagnostic studies suggested C5 radiculopathy, and an MRI scan had shown a small right central disc osteophyte compleex and broad based disc bulge at C5-6. Id . Dr. Robinson suggested treatment at the New York Pain Clinic for nerve root block procedures. Id.

Plaintiff's neck, shoulder and bilateral arm pain, right more than left, persisted on February 2, 2002. Id . at 505. Dr. Robinson noted that diagnostic examinations were suggested of right C5-6 pathology. Id . Neck pain and right arm pain, as well as right arm weakness and upper thoracic pain, continued on April 9, 2002. Id . at 506. Dr. Robinson diagnosed chronic cervical radiculopathy secondary to C5-6 herniated disc. Id . On May 28, 2002, Plaintiff reported to Dr. Robinson that she continued to suffer right-sided neck, shoulder and arm pain that she found disabling. Id . at 312. Plaintiff's pregnancy prevented her from taking any medications or undergoing any invasive treatment. Id . Plaintiff continued to complain of these problems on July 23, 2002, but also found increased pain in her wrist. Id . at 508. Dr. Robinson diagnosed chronic cervical radiculopathy, secondary to C5-6 herniated disc and progressive carpal tunnel syndrome on the right side. Id . On September 20, 2002, Plaintiff reported that her pain was increasing in her neck and shoulder, and that she had continued right-arm pain and pain over the scapular area. Id . at 311. Plaintiff had difficulty sleeping. Id . She was seven months pregnant. Id . Dr. Robinson diagnosed chronic cervical radiculopathy secondary to C5-6 isues. Id . The same pain continued on November 29, 2002. Id.

Plaintiff treated with Dr. Robert L. Tiso at the New York Pain Center on December 4, 2002. Id . at 742-743. Plaintiff complained of an intermittent burning, sharp pain. Id . at 742. She rated her pain at between 5 and 9 on a 10 point scale, depending on the day. Id . Her pain was unpredictable, and got worse with both rest and movement. Id . When pain got worse, she needed to rest for several minutes for the pain to resolve. Id . The pain often kept her from sleeping. Id . Physical therapy did not help the pain, but made it worse. Id . After examination, Dr. Tiso diagnosed Plaintiff with a cervical herniated nucleus pulposus. Id . at 743. Dr. Tiso prescribed nerve blocks and a TENS unit to help Plaintiff deal with her pain. Id.

Right arm pain and posterior neck and upper back pain continued, as did Dr. Robinson's diagnosis of chronic cervical radiculopathy, C5-6 herniated disc, on January 10, 2003. Id . He also found that Plaintiff continued to be totally disabled from work. Id . On February 21, 2003, Dr. Robinson reported that Plaintiff's back pain continued, and that her two nerve blocks had not provided much relief. Id . at 516. Robinson diagnosed Plaintiff with cervical radiculitis, neck pain, herniated disc cervical-no myleopathy, and a herniated disc at C5-6. Id . at 517. Nothing had changed in Plaintiff's symptoms on April 16, 2003. Id . at 518-519. Dr. Robinson's diagnosis included cervical radiculitis, neck pain, herniated disc thoracic-no myelopahty, and a T5-6 herniated disc. Id . at 519. Similar complaints and diagnoses, including a finding that Plaintiff was temporarily totally disabled, continued on June 20, August 26, October 20, and December 18, 2003. Id . at 520-531.

Plaintiff's treatment with Dr. Robinson continued into 2004. When she saw Dr. Robinson on February 23, 2004, Plaintiff reported continuing pain in her neck and right shoulder. Id . at 752. Her nerve blocks provided about a day of improvement, but the neck pain and right-sided shoulder and arm pain continued at the usual level. Id . at 753. The pain also radiated down the dorsal radial forearm and dorsum of the hand on the right. Id . Dr. Robinson's diagnosis was herniated disc cervical-no myelopathy, and he found Plaintiff temporarily totally disabled. Id . at 754. Plaintiff reported continued pain in the cervical spine and right shoulder and arm on April 6, 2004. Id . at 770-771. Dr. Robinson diagnosed her with a herniated disc cervical-no myelopathy, finding her temporarily totally disabled. Id . at 771. Nerve blocks reportedly did more to relieve Plaintiff's pain on her next visit to Dr. Robinson, on May 24, 2004. Id . at 755-757. She still used the TENS unit, and still suffered from discomfort in her right shoulder and arm, as well as her right wrist. Id . at 755. Dr. Robinson's diagnosis and restrictions were the same. Id . at 756. Similar complaints and diagnoses continued on July 13, September 7, and November 1, 2004. Id . at 758-766.

Plaintiff continued to complain of the same symptoms of neck pain and upper back pain and Dr. Robinson offered the diagnosis of a herniated cervical disk with no myelopathy on January 3, 2005. Id . at 322. She also complained of chest pain. Id . He continued to find that she was totally disabled from working. Id . at 323. When she saw Dr. Robinson on March 8, 2005, her condition was unchanged, complaining of pain in the neck and bilateral shoulders, as well as occasional numbness and tingling in the arms. Id . at 320. Dr. Robinson diagnosed her with cervical radiculitis, herniated disk cervical-no myleopathy, and neck pain. Id . Plaintiff offered similar complaints and Dr. Robinson a similar diagnosis on April 19, 2005. Id . at 773-775.

Various physicians performed independent medical examinations on the Plaintiff during the relevant period. Plaintiff was evaluated by Philip T. Dontino, DC, on April 25, 2000. Id . at 314-318. Dr. Dontino related that Plaintiff had undergone various treatments since her injury. Id . at 314-15. Ice and heat, osteopathic manipulative treatment, and chiropractic adjustment had brought her no relief. Id . Plaintiff complained of constant right-sided thoracic pain extending to the lower part of her thoracic spine. Id . at 315. She found that bending forward, elevating her legs, and pushing and pulling caused her pain. Id . The pain was an average of 8 on a ten-point scale, but did not radiate into the extremities or around her torso. Id . After an examination, Dr. Dontino diagnosed Plaintiff will a cervical and thoracic strain and myofascial pain of the cervical/thoracic musculature (right). Id . at 317. Dr. Dontino found that Plaintiff's symptoms prevented her from returning to work in her previous position. Id.

Dr. Edward D. Sugarman performed an independent medical evaluation of Plaintiff on June 13, 2001. Id . at 307-308. He reported that Plaintiff's pain began as she was handling packages at work. Id . at 307. After working out a package that had jammed, Plaintiff began to have pain in the right scapular area towards the middle of her back. Id . Plaintiff had discomfort in that area, but no arm pain. Id . Most of Plaintiff's pain came in the upper back area; this pain was persistent and severe. Id . She also reported periodic neck pain. Id . Dr. Sugarman's examination revealed that Plaintiff's cervical spine had a full range of motion, with a small amount of discomfort at the base of the neck on the right. Id . He found no significant arm pain, though she had scapular pain on the right when she pushed and pulled with her arms in the flexed position. Id . She also had some tenderness upon palpation of the T1-T4 area of her back. Id . Dr. Sugarman diagnosed a thoracic strain. Id . Dr. Sugarman opined that Plaintiff had a "very mild degree of disability, " and could return to work in a sedentary capacity. Id.

Dr. Daniel Carr, M.D., a board-certified orthopedic surgeon, performed an independent medical evaluation of Plaintiff on October 29, 2001. Id . at 304-306. Plaintiff reported to Dr. Carr that she had injured herself while working at UPS. Id . at 304. She suffered an "acute pain" while picking up a package. Id . Physical therapy and chiropractic treatment offered her no relief, and Plaintiff was forced to stop working in January 2000. Id . Plaintiff complained of upper back pain between her shoulder blades and in the base of her neck immediately after her workplace incident. Id . The neck pain was mild, but would become worse when she leaned forward for a prolonged period of time. Id . The Plaintiff also experienced constant dull, throbbing pain in her upper back. Id . After she underwent a nerve conduction test, Plaintiff experienced right-hand and wrist pain, numbness, and tingling, particularly in the thumb and radial-sided digits. Id . Plaintiff did not have any radicular symptoms in her neck and down her arm. Id . She treated her injuries with ibuprofen. Id . Examination revealed tenderness in Plaintiff's rhomboid muscles bilaterally, with no palpable spasm. Id . at 305. Plaintiff also suffered from tenderness in her lower trapezius muscles. Id . Dr. Carr found no tenderness in the cervical spine itself, however. Id . Plaintiff's range of motion in her shoulder was full and pain-free. Id . Range of motion in the cervical spine was similarly full and pain-free. Id . Dr. Carr diagnosed Plaintiff with upper thoracic back pain of non-specific origin, myofascial pain. Id . Given the nature of her pain, Dr. Carr found that additional orthopedic treatment would provide no relief. Id . at 306. Dr. Carr recommended that Plaintiff could return to work without restrictions. Id.

Dr. Carr performed another independent medical examination on January 20, 2003. Id . at 301-303. Plaintiff continued to complain of constant back pain, whether using her back or not. Id . at 301. The pain continued even when Plaintiff was sleeping or lying down, but varied in intensity and moved around from her mid back to her neck and from one side of her back to the other. Id . at 301. The back pain got worse with prolonged sitting, standing, leaning forward and back or turning sideways. Id . at 302. Plaintiff's neck pain came and went. Id . at 301. The pain was sharp sometimes, dull sometimes, and sometimes non-existent. Id . at 302. The pain was sometimes confined to the neck and sometimes radiated into her shoulders. Id . The neck pain sometimes radiated up and down the spine. Id . Plaintiff had begun a course of epidural injections, and these injections had not provided her with relief and may have made things worse. Id . at 301. Plaintiff had also recently developed pain in her right wrist and right elbow. Id . at 302. She used a TENS unit for her pain, underwent nerve blocks, took ibuprofen, and limited activity to deal with her pain. Id . at 302. Dr. Carr diagnosed Plaintiff with non-specific neck and upper thoracic pain consistent with myofascial pain, as well as degenerative disc disease at C4-5 ...

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