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Melton v. Colvin

United States District Court, W.D. New York

April 29, 2014

MARLENE OLIVIA MELTON, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

INTRODUCTION

Plaintiff, Marlene Olivia Melton ("Plaintiff" or "Melton"), brings this action pursuant to the Social Security Act, codified at 42 U.S.C. ยงยง 405(g) and 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security denying her application Social Security Income ("SSI") benefits.

Currently 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 ("Rule 12(c)"). For the reasons set forth below, the Court grants the Commissioner's motion, denies the Plaintiff's cross-motion, and dismisses the Complaint.

PROCEDURAL HISTORY

On April 19, 2010, Plaintiff filed an application for SSI alleging disability as of March 25, 2010, which was denied on July 28, 2010. Administrative Transcript [T.] 124. On August 4, 2011, at Plaintiff's request, an administrative hearing was conducted via video-conference before administrative law judge ("ALJ") MaryJoan McNamara, at which Plaintiff, who was represented by counsel, testified. T. 69-71, 74-107. Vocational Expert ("VE") Dothel W. Edwards, Jr. also testified. T. 107-121. On September 21, 2011, the ALJ issued a decision finding that Plaintiff was not disabled since April 19, 2010, the date the application was filed. T. 27-40.

The Appeals Council denied Plaintiff's request for review on February 15, 2013, making the ALJ's Decision the final decision of the Commissioner. T. 1-7. This action followed.

FACTUAL BACKGROUND

Plaintiff's Hearing Testimony

Plaintiff, who was born in 1962, testified that she obtained a two-year college degree in information processing and had previously done "office work." T. 83. Plaintiff testified that she last worked in March 2010 and that she had stopped working because of back pain. T. 82-83. She testified that she typically watches television, sometimes cooks, and sleeps during the day. T. 94. Plaintiff testified that she did not drive and did not have a car, took medical transportation to get around to her appointments, but had taken public transportation to get to the hearing. T. 94. She did not use an assistive device to walk. T. 95.

She testified that she was currently being treated by her primary care physician for her back pain, and that she received injections and took Naprosyn for her pain. Sometimes, she also took a muscle relaxant. T. 85.

Plaintiff testified further that she experiences difficulty getting in and out chairs and sometimes needs assistance because of her back pain. T. 100. She testified that she cannot sit or stand too long, and needs to switch positions about every 20/30 minutes. T. 101. She also testified that she experiences leg pain in both legs. T. 103.

Plaintiff testified that she has "GI" problems with her stomach and also has "some emphysema." T. 104. As a result of her stomach pain, Plaintiff claims that she has lost weight, "can't hold anything down, " and frequently experiences vomiting and nausea. T. 105. Plaintiff testified that she uses an albuterol inhaler, as needed. She also testified that she smokes. T. 106.

Plaintiff testified that she had a history of depression and was currently taking Zoloft and Wellbutrin. Her depression symptoms included crying, frustration, and a lack of interest in doing things. T. 88. Plaintiff was never hospitalized for depression, never went to the emergency room for it, and had never been committed any time. She was last treated by a mental health provider in or around 2009 because she had felt herself "not wanting to do anything." T. 88. According to her, she stopped attending her mental health treatment in 2010 because "she felt that it wasn't necessary" and that "[she] could handle it on [her] own." T. 90.

Plaintiff also testified that she underwent inpatient and outpatient treatment in 2007 for alcohol use. According to her, she left in 2008 and remained sober up until early 2010. T. 92. Plaintiff testified that she currently drinks two or three times a week twenty to forty ounces of beer at a sitting. T. 92.

The Medical Evidence

In November 2009, Plaintiff began pain management treatment with Beatrice Deshommes, M.D. T. 336-338. Dr. Deshommes noted that Plaintiff reported having lower back pain for years, which had worsened to the point it was interfering with her daily activities. T. 336. Plaintiff reported to Dr. Deshommes that the pain was a constant, shooting pain that went down into her left leg. Plaintiff reported that the pain was between a six and ten on a scale from one to ten, and that it was accompanied by cramping and was worse when sitting in place. Dr. Deshommes noted that an MRI of Plaintiff's lumbar spine showed mild left-sided neural foraminal stenosis at L3-4 and L4-5. During her examination, Dr. Deshommes observed that Plaintiff walked with a normal gait and was able to perform heel and toe walking, had limited range of motion in her back and difficulty with facet-loading maneuvers on her rights side, and no motor or sensory deficits. T. 336-337. Dr. Deshommes prescribed Lyrica for Plaintiff's pain and Amitriptyline for Plaintiff's sleep and depression issues. Dr. Deshommes recommended that Plaintiff start epidural injections. T. 338.

In a note dated February 17, 2010, Dr. Deshommes indicated that Plaintiff was not allowed to return to work until March 24, 2010. Dr. Deshommes also completed a physical assessment of employability for the Monroe County Department of Human Services, in which she reported that Plaintiff had abnormal function in her lumbar spine that caused her to be "moderately limited" in walking, standing, sitting, pushing, pulling, bending, lifting, and carrying. T. 376-381.

At a follow-up appointment with Dr. Deshommes in April 2010, Plaintiff reported that her medications were not helping to relieve her back pain, that she had not taken the Lyrica for more than a couple days, and that she declined to take the Amitriptyline. Dr. Deshommes observed that Plaintiff was able to change from sitting to standing without assistance and walked with a slow, but normal gait. Plaintiff continued to demonstrate limited range of motion in her lower back and normal sensation. T. 332-334.

On May 4, 2010, Plaintiff underwent a consultation with David Speach, M.D. for her back pain. Dr. Speach noted that Plaintiff reported that the pain was made worse with turning, twisting, lifting, standing, and bending. Plaintiff reported to Dr. Speach that the epidural injection she received in February 2010 did not help relieve her pain. During the examination, Plaintiff reported that Plaintiff had pain with light touch to her spine. Dr. Speach noted that Plaintiff demonstrated limited range of motion in her spine, but normal strength in her lower extremities and no signs of motor or sensory deficits. T. 405-407.

Dr. Speach noted that a June 2009 MRI showed degenerative changes at L3-4 and L4-5 with an annular tear at L4-5. T. 406. Based on his examination, Dr. Speach diagnosed Plaintiff with mechanical lower back pain with degenerative disc disease at L4-5 and L5-S1. Dr. Speach noted that surgery was not recommended, and referred Plaintiff for physical therapy. T. 406.

In July 2010, Plaintiff met with Dr. Speach, who reported that Plaintiff had some mild improvements in her pain using Tramadol. Plaintiff reported that she had not started physical therapy. Dr. Speach noted that Plaintiff was able to walk with a slow gait and continued to show no signs of motor or sensory deficits. T. 403.

In September 2010, Plaintiff met with Dr. Deshommes again, at which time she noted that Plaintiff reported that she still had back pain but that her medication helped "somewhat." T. 460. Dr. Deshommes reported that Plaintiff's nausea had improved and Plaintiff denied vomiting, sedation, pruritus or diarrhea. T. 460. Dr. Deshommes reported that Plaintiff's upper extremity strength was equal bilaterally, her lower extremity strength was full on the right for quad and calf dorsiflexion, and her left lower extremity strength was 4 for all. Dr. Deshommes noted that Plaintiff was able to rise from a chair independently, her posture was erect, she had a slight left-favored gait, her range of motion was restricted with flexion, extension, and left/right rotation. Dr. Deshommes recommended a median branch block and advised Plaintiff to continue with her medication and physical therapy. T. 461.

On January 14, 2011, Plaintiff underwent a right-sided medial branch injection with Abdul Shahid, M.D. T. 451-459. At a follow-up appointment, Plaintiff reported worsening of her symptoms soon thereafter, although she had a "transient benefit" from the medial branch injection. Plaintiff also reported that pain medication given to her by Dr. Shahid's office did not provide her relief. Upon examination, Dr. Shahid noted that Plaintiff did not appear in any acute distress and was able to rise from a chair without difficulty. Dr. Shahid noted that Plaintiff walked with an antalgic gait on the left side, demonstrated limited range of motion in her lumbar region and full strength in her lower extremities. Dr. Shahid also noted that Plaintiff's facet loading was positive on the right side and she had no motor or sensory deficits. Dr. Shahid recommended another round of epidural injections, which Plaintiff underwent on June 13, 2011. T. 452.

In a medical source statement dated June 23, 2011, Dr. Deshommes assessed that Plaintiff was "very limited" in pushing, pulling, bending, lifting, and carrying in an eight hour workday. She opined that Plaintiff was "moderately limited" in walking and standing, and noted that there was no evidence of limitations in sitting, seeing, hearing or speaking. Dr. Deshommes indicated that Plaintiff was capable of participating in activities, but for no more than 20 hours per week. She noted that the expected duration of these limitations was for six months. Dr. Deshommes assessed further no lifting, pushing, or pulling greater than 10 pounds and no repetitive stooping or bending. Dr. Deshommes also opined in a statement dated August 8, 2011 that Plaintiff's back issues would persist despite her alcohol use. 470-473. In October 2011, Dr. Deshommes reported similar findings. T. 480-483.

Consultative Examinations

On July 19, 2010, K. Finnity, Ph.D. performed a consultative mental examination at the request of the Agency. T. 409-412. Dr. Finnity reported that Plaintiff had limited mental health treatment in the past as she had received therapy for "about one year" in 2007. Dr. Finnity noted that Plaintiff reported that she woke up frequently in the night and had frustration with her current physical limitations. Dr. Finnity noted that Plaintiff reported that she abused alcohol and cocaine ...


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