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Karabinas v. Colvin

United States District Court, W.D. New York

April 21, 2014

CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant

Page 207

For Dimitrios N. Karabinas, Plaintiff: Jaya Ann Shurtliff, LEAD ATTORNEY, Law Offices of Kenneth Hiller, Amherst, NY.

For Michael J. Astrue, Commissioner of Social Security, Defendant: Kathryn L. Smith, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY.

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HONORABLE MICHAEL A. TELESCA, United States District Judge.

I. Introduction

Dimitrios N. Karabinas (" Plaintiff" or " Karabinas" ), represented by counsel, brings this action pursuant to Title 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" ). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § § 405(g), 1383(c). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

II. Procedural History

On January 22, 2009, Plaintiff filed an application for DIB alleging disability beginning November 4, 2008. See T.123-29.[1] After the claim was denied, Plaintiff requested a hearing. Plaintiff appeared with counsel and testified at a hearing held on June 4, 2010 before Administrative Law Judge Brian Kane (" the ALJ" ), T.22-58, who issued an unfavorable decision dated August 26, 2010, T.10-21. Plaintiff requested review by the Appeals Council, which was denied on August 28, 2012. T.1-4. Plaintiff timely commenced suit in district court.

During the pendency of this case, Plaintiff filed a new DIB application. By hearing decision dated January 7, 2013, the ALJ granted benefits to Plaintiff commencing August 27, 2010 (the day after the decision presently on appeal). Thus, the relevant period at issue here is November 4, 2008 (the alleged onset date), through August 26, 2010.

III. Summary of the Administrative Record

A. Plaintiff's Medical History

Plaintiff injured his neck at work on November 4, 2008, after he attempted to right a heavy barrel that was tipping over. T.319. Physical symptoms at the time were left cervical stiffness and pain down his left arm. An MRI of his cervical spine taken November 5, 2008, showed moderate to severe neural foraminal narrowing, and mild left foraminal narrowing at C5-C6. At C6-C7, there was mild to moderate left neural foraminal narrowing, and mild disc protrusion at this level. T.302.

James T. Maxwell, M.D. evaluated Plaintiff on November 8, 2008. Plaintiff sat and walked normally. Palpation of the neck was normal, his cranial nerves were normal, and muscle strength was full in both arms. Neurological examination was normal, and that Plaintiff's MRI was " not very impressive" . Dr. Maxwell noted that simple chiropractic treatment was keeping Plaintiff's pain down, and recommended

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that Plaintiff continue this conservative treatment. T.317.

On November 12, 2008, Plaintiff's primary care physician, Dr. Eman Wahba, noted that Plaintiff was feeling better; he was able to rotate his neck, and had no arm weakness. Hand grip was intact and left-shoulder range of motion was full. On December 1, 2008, Dr. Wahba, released him to work, but limited him to half-days. T.316, 318.

On December 8, 2008, orthopedist Dr. E. Robert Wilson evaluated Plaintiff, who complained of continued pain down his left upper extremity following his November 2008 injury. On physical examination, Plaintiff's gait was normal. He moved around the examining room easily, and got on and off the examining table without difficulty. Plaintiff did not move his neck more than a few degrees in any direction. He flexed his shoulders to 170 degrees, and external rotation was 40 degrees. Dr. Wilson could not elicit biceps or brachioradialis reflexes on the left side; however, Plaintiff's reflexes were normal on the right. Sensation and muscle power were intact in the upper extremities. Plaintiff could walk on his heels and toes, and could squat 1/3 of the normal range. Dr. Wilson diagnosed recurrent left C6-C7 disc herniation, with a moderate to marked partial temporary disability of the neck and left upper extremity. T.294-97.

On December 17, 2008, Dr. Wahba noted that Plaintiff had no weakness, but had numbness in his fingers on the left side. Plaintiff's left shoulder was not swollen, and his range of motion was improving. He had no motor deficit, and his hand grip was intact. T.315.

On January 9, 2009, Dr. Wahba noted that Plaintiff could not return to work, because his job required physical and manual labor. According to Dr. Wahba, he had numbness in the fourth and fifth fingers of his left hand. He walked and sat normally, and got on the examination table without assistance. He had no gait abnormality, his cranial nerves were intact, and there was no atrophy in the left shoulder. Plaintiff's muscle tone was intact. Dr. Wahba opined that Plaintiff would be " disabled" until January 16, 2009. T.309.

On January 16, 2009, Dr. Wahba noted that Plaintiff's neck was mildly to moderately stiff but range of motion was intact. Dr. Wahba found that Plaintiff could not remain in his job, which required lifting, heavy pushing, and bending. Therefore, she found that Plaintiff had a total temporary disability. T.308.

Plaintiff saw consultative physician Dr. Sandra Boehlert on March 6, 2009, and reported continuous headaches. He noted the use of Vicodin for his pain, but commented that Vicodin also seemed to cause his headaches. When Plaintiff's wife had taken their children to Greece for several months, Plaintiff was able to cook, clean, do laundry, and shop on his own. However, his left hand went numb with such chores. Plaintiff showered and dressed daily, watched television, listened to the radio, read books, socialized with friends, called his friends, and talked to his family. He was unable to engage in athletic pursuits. Plaintiff's gait was normal, and he could walk on his heels and toes without difficulty. Plaintiff used no assistive devices, and needed no help getting on and off the examination table. He was able to rise from his chair without difficulty. T.375-76.

Cervical spine extension was limited to 30 degrees, but flexion was full. Rotation was limited to 40 degrees on the left and to 70 degrees on the right. Lateral flexion was limited to 40 degrees bilaterally. Plaintiff moved his neck very slowly. No abnormalities were evidence in the thoracic

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or lumbar spines. Although Plaintiff's left arm had full flexion, it started tingling and caused his hand to go numb. Upon standing, feeling returned to his left hand. Straight leg raising essentially was normal, but while sitting, at 90 degrees, Plaintiff reported left cervical pain. Plaintiff's left shoulder was limited in abduction to 120 degrees, but was normal on the right. His left shoulder had full adduction, as well as internal and external rotation. Range of motion was full in the shoulders, elbows, forearms, and wrists. Muscle strength was full in the upper and lower extremities. However, Plaintiff had tenderness in the left-side shoulder, scapula, cervical spine, and paracervical spinal muscles; in the mid-thoracic spine; and in the paraspinal muscles. Deep tendon reflexes were normal in the upper and lower extremities. Hand and finger dexterity were intact, and grip strength was full bilaterally. Dr. Boehlert assessed a moderate limitation to any use of the left arm for heavy exertion; and a moderate limitation to neck rotation on a repetitive or continuous basis which could resolve in six to nine months. Accordingly, Dr. Boehlert recommended a follow-up examination in one year's time. She did not find that Plaintiff's limitation was chronic, continuous, or permanent. T.377-38.

On April 24, 2009, Dr. Wahba noted that Plaintiff's pain had increased. Although he did not have weakness in the arm, there was pain when he turned his neck to the right side. Plaintiff took Vicodin only as needed, and had no fever, headaches, or neck stiffness. Plaintiff was in mild to moderate distress, and his neck was a little stiff to the left. There was supra-spinatous muscle tenderness, and his left shoulder was non-swollen. There was no muscle atrophy, hand grip was normal, and muscle tone was intact. T.425.

Plaintiff saw Dr. Wahba on June 26, 2009, and reported pain but no weakness. Plaintiff's his neck and shoulder were somewhat on the left side. His left shoulder was non-swollen, there was no muscle atrophy, and range of motion was within normal limits. Plaintiff's grip strength was intact. T.468. Dr. Wahba diagnosed cervicalgia. T.472. Plaintiff was " 100%" temporarily impaired, and his restrictions would last an unknown amount of time. T.473. Plaintiff was precluded from returning to work because, in Dr. Wahba's opinion, he was " totally disabled." T.473.

On July 24, 2009, Plaintiff reported a flare-up of neck and left shoulder pain. T.467. There was mild tenderness of the left paracervical muscles, but his left shoulder was nonswollen, and there was no weakness. Dr. Wahba saw no significant changes. On August 24, 2009, Dr. Wahba noted that Plaintiff had a headache and his physical examination was largely unchanged. T.469. Dr. Wahba assessed that Plaintiff was still " totally disabled." T.476-77.

On October 8, 2009, an x-ray of Plaintiff's lumbrosacal spine revealed L5 spondylolysis with first degree spondylolisthesis, moderate disc space narrowing at L5-S1, and a 4-millimeter pelvic tilt. T.481.

On October 21, 2009, Plaintiff reported increased pain due to cold weather. T.470. Examination showed no significant changes. On December 1, 2009, Plaintiff reported pain and a headache after having chiropractic work. Id. Physical examination was unremarkable. Dr. Wahba assessed that Plaintiff was still " totally disabled." T.483-84. On January 14, 2010, Dr. Wahba issued a finding that Plaintiff remained " totally disabled." T.485-86.

On January 28, 2010, Plaintiff saw Nurse Practitioner Mary Maxwell (" NP Maxwell" ), on behalf of Dr. Maxwell. T.453. Plaintiff ...

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