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Burgess v. Colvin

United States District Court, W.D. New York

May 9, 2014

PAULA A. BURGESS, Plaintiff,


MICHAEL A. TELESCA, District Judge.


Plaintiff, Paula A. Burgess ("Plaintiff" or "Burgess"), brings this action pursuant to 42 U.S.C. ยง 405(g) of the Social Security Act, claiming that the Commissioner of Social Security ("Commissioner" or "Defendant") improperly denied her application for Supplemental Security Income ("SSI").

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. For the reasons set forth below, the Court grants the Commissioner's motion, denies the Plaintiff's cross-motion, and dismisses the Complaint.


On September 15, 2009, Plaintiff filed an application for SSI, alleging disability as of February 1, 2009 due to bone dysfunction in her neck, back and shoulders, high blood pressure, thyroid problems and asthma. Administrative Transcript [T.] 183. On December 16, 2009, the application was denied. T. 71, 72-77, 82-87. At Plaintiff's request, an administrative hearing was conducted before administrative law judge ("ALJ") John P. Costello, at which Plaintiff, who appeared with a representative, testified as did a vocational expert ("VE"). T. 26-70, 88-90. On August 8, 2011, the ALJ issued a decision finding that Plaintiff was not disabled during the relevant period. T. 16-22.

The Appeals Councils denied Plaintiff's request for review, making the ALJ's Decision the final decision of the Commissioner. T. 1-4. This action followed.


Plaintiff's Physical Health History

Prior to the protective filing date of September 15, 2009, Plaintiff was treated in 2008 at Orthopedic Associates of Rochester ("OAR") for right shoulder discomfort and was diagnosed with AC joint athrosis and mild impingement syndrome. She was prescribed ibuprofen and physical therapy ("PT"). T. 221-222.

On September 5, 2008, Plaintiff was seen at East Ridge Family Medicine ("ERFM") for swollen ankles. T. 234. She was diagnosed with peripheral edemea and prescribed Lasix. T. 234-235. Later in September, Plaintiff returned to ERFM and reported that she had attended PT and had taken ibuprofen, which made her shoulder feel better. T. 223-224. Upon examination, Plaintiff's shoulder had excellent range of motion and only mild discomfort with internal rotation. Plaintiff's rotator cuff strength was full and equal, her impingement sign was negative, and she was advised to continue PT and perform home exercises after PT ended. T. 223.

In July 2009, Plaintiff returned to ERFM and complained of increasing pain in her right shoulder, neck and back. T. 229. Upon physical examination, Plaintiff's lower back, right shoulder and trapezius were tender to palpation. Diana Herrmann, M.D. reported that Plaintiff was disabled from her regular duties and was totally disabled since January 2009. Plaintiff was prescribed Flexeril, ibuprofen, given a weight restriction for lifting, and referred to an orthopedist. T. 229.

On September 9, 2009, Plaintiff returned to ERFM to have a form for County Social Services completed. Dr. Herrmann noted that Plaintiff failed to follow-up with an orthopedist and had stopped PT. Plaintiff was again referred to an orthopedist. T. 227-228.

In November 2009, after the protective filing date of September 15, 2009, Sandra Boehlert, M.D. performed a consultative examination of Plaintiff. T. 248-251. Dr. Boehlert noted that Plaintiff did not use an assistive device, had a normal gait and stance, she could walk heel to toe, could fully squat, was able to rise from a chair without a problem, could get on and off the exam table, and could change for the exam without assistance. T. 249. Dr. Boehlert also noted that Plaintiff's cervical spine showed full flexion and extension bilaterally, and that she had no scoliosis, kyphosis, or abnormality in her thoracic spine. Plaintiff's lumbar spine showed limited flexion, full extension, and full rotary movement. Her straight leg raises were negative bilaterally, she had full range of motion in her shoulders, elbows, forearms, and wrists bilaterally. Dr. Boehlert noted that Plaintiff had full range of motion in her hips, knees, and ankles bilaterally, and full strength in her upper and lower extremities. T. 250. Dr. Boehlert reported that Plaintiff's x-rays of her lumbosacral spine showed degenerative changes at L5-S1, normal sacroiliac joints, and no fracture dislocation. T. 252. Dr. Boehlert opined that Plaintiff had "moderate limitations to heavy exertional activity during episodes of athralgias[, ]" but that she had no chronic daily long-term limitations. T. 251.

In December 2009, Plaintiff was seen by Christine Hamblin, RPA at OAR complaining of increased pain and limited movement in her right shoulder. T. 285. Hamblin noted that Plaintiff's active shoulder range of motion was approximately 50% due to pain and her passive range of motion was near full with discomfort. T. 285. She noted that Plaintiff's apprehension test and relocation tests were mildly positive, her drop arm test was negative, and her rotator cuff strength was full with pain on testing. Hamblin administered a steroid injection and told Plaintiff to return in five weeks. T. 283-284.

On January 12, 2010, Hamblin saw Plaintiff again, at which time Plaintiff reported that her shoulder felt 80% better after the December injection. T. 283. Upon examination, Hamblin reported that Plaintiff's range of motion had significantly improved and was nearly 100% in all directions. Hamblin reported that Plaintiff was doing "excellent, " and recommended that Plaintiff do strength exercises and return on an as-needed basis. T. 284.

On March 5, 2010, Plaintiff saw Dr. Herrmann for a follow-up from 2009. T. 359. Dr. Herrmann noted that Plaintiff reported that she broke up with her boyfriend, moved to an apartment with her teenage son, and she was caring for her ailing mother in hospice. T. 359. Upon examination, Dr. Herrmann reported that Plaintiff appeared tired, that she had a wheeze on lung examination, and that Plaintiff was back to smoking again. T. 359, 360.

In April 2010, Plaintiff met with RPA Christina Hatfield at OAR for recurring right shoulder pain. T. 281-282. Upon examination, Hatfield reported that Plaintiff's cervical spine was non-tender and exhibited pain-free range of motion. T. 282. Plaintiff's right shoulder retained full active forward elevation and abduction with mild impingement and was able to reach behind her back and rotate below the T12 level. Hatfield noted that Plaintiff's rotator cuff strength was intact and that Plaintiff was minimally tender to palpation over the AC joint. Hatfield assessed rotator cuff tendonitis, administered a cortisone injection, and recommended follow-up on an as needed basis. T. 282.

On May 26, 2010, Plaintiff saw Dr. Herrmann stating that she was "miserable" and complaining of problems with her peripheral edema. T. 350. Upon examination, Dr. Herrmann reported that Plaintiff had a trace of edema around her lateral malleolus, but that she was "not impressed with any degree of edema." Dr. Herrmann advised Plaintiff to limit her salt intake and elevate her legs in hot weather. Dr. Herrmann also noted that Plaintiff continued to smoke. T. 351.

In August 2010, Plaintiff saw RPA Hamblin again complaining of right shoulder pain and limited movement. Hamblin examined Plaintiff and noted that Plaintiff "overall appeare[d] to be in no acute distress[, ]" her C-spine was supple and pain-free with range of motion, her right shoulder elevation was painful, her internal rotation was limited, and Plaintiff had a "strongly positive" impingement sign. Hamblin noted that Plaintiff was tender along the coracoid ligament, her drop arm test was negative, her rotator cuff strength appeared intact, and no gross neurovascular deficits were present. Plaintiff was given a steroid injection, instructed to rest her shoulder in a sling and perform exercises, and to return in four weeks. T. 280.

In September 2010, Plaintiff saw Hamblin reporting that her pain and range of motion had significantly improved since her steroid injection and she denied any weakness. Hamblin assessed that Plaintiff's shoulders had normal and equal range of motion, impingement signs were negative, her rotator cuff strength was full, and she had no gross neurovascular deficits. Plaintiff declined referral to physical therapy and was instructed to continue home exercise, as well as icing and elevation. T. 278.

Plaintiff returned to Hamblin in October 2010 and her findings were generally unchanged since Plaintiff's last visit. Hamblin noted that Plaintiff was doing "excellent, " advised her to continue with her strengthening exercises and to avoid heavy lifting, pushing, and pulling. T. 276.

In January 2011, Plaintiff returned to Dr. Herrmann complaining of constant back pain for the past three weeks. Dr. Herrmann noted that Plaintiff exhibited tenderness to low back palpation and had pain that radiated from her mid-back. Plaintiff's strength and sensation in her lower extremities was reported as "good." Dr. Herrmann noted that Plaintiff was unable to work and that she was totally disabled. T. 343.

On March 23, 2011, Plaintiff saw Clifford Everett, M.D. of Strong Memorial Hospital's orthopedics departments complaining of neck and low back pain. Plaintiff reported that her pain had started after an auto accident in 2007, that her activities were limited, and that medication gave her little relief. T. 269, 271. Diagnostic imaging of Plaintiff's cervical spine showed degenerative changes. T. 271. Dr. Everett noted that Plaintiff's gait was normal, she could heel to toe walk, her straight leg tests were negative, her sensory and reflex exams were normal, and her strength was full. T. 270-271.

On March 30, 2011, Plaintiff underwent a lumbar spine MRI that showed severe degenerative disease at L5-S1 with disc bulge, intravertebral space and bilateral neuroforminal narrowing, and mild spinal stenosis. T. 272-273.

In April 2011, Plaintiff returned to Dr. Everett complaining of back and neck pain. She reported that pain medications afforded little relief and restricted her activities. T. 267. Dr. Everett advised Plaintiff that there was no surgical option or injection for her condition and recommended pain management. T. 268, 272-273. Dr. Everett opined that Plaintiff was limited from prolonged sitting and standing and that she needed to change positions hourly. He assessed that Plaintiff could lift up to 20 lbs occasionally and 10 lbs frequently. T. 268.

Also in April 2011, Plaintiff saw Dr. Herrmann again, who noted that Plaintiff did not take her thyroid medication and failed to use her inhaler, as directed. T. 336. On May 17, 2011, Dr. Herrmann completed disability paperwork for Plaintiff, and noted that Plaintiff had been referred to a pain clinic but had failed to show up. T. 334-335.

Dr. Herrmann completed a medical assessment form that same day. She assessed that Plaintiff could lift or carry no more than 2 lbs, stand/walk 30 minutes at a time for 1 hour in a workday, and sit 30 minutes at a time for a cumulative total of 4 hours in a workday because of degenerative disc disease. T. 264-265. Dr. Herrmann indicated that Plaintiff could occasionally climb and balance and could never perform other postural activities. T. 256. Dr. Herrmann also indicated that reaching and pushing/pulling were affected by Plaintiff's right shoulder rotator cuff tendonitis. T. 265. Dr. Herrmann also opined that Plaintiff could not climb to heights and could not tolerate environmental irritants such as dust, fumes, and humidity. T. 266. Dr. Herrmann also indicated that Plaintiff had restrictions with respect to heights, machinery, temperature extremes, chemicals, dust, fumes and humidity. T. 256. On May 25, 2011, Dr. Herrmann completed a form for Plaintiff to get a handicapped parking permit, at which time she indicated that Plaintiff had low back pain and degenerative disc disease and that Plaintiff could not walk 200 feet without stopping. T. 211.

In June 2011, Plaintiff saw Hamblin, who conducted a physical examination of Plaintiff and instructed her to avoid lifting, pushing, and pulling heavy items. T. 325. Also in June 2011, Dr. John E. Klibanoff of OAR completed a medical assessment form, in which he indicated that Plaintiff could occasionally lift 5 lbs and could lift an unknown amount once every four hours, she could never climb, was able to frequently balance, and could occasionally kneel, crawl, crouch, and stoop. T. 322. Dr. Klibanoff assessed that Plaintiff had no limitations with respect to her ability to sit, stand, and walk. T. 321-322. Dr. Klibanoff also assessed that, due to Plaintiff's ...

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