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Palascak v. Colvin

United States District Court, W.D. New York

May 14, 2014

SUSAN JANE PALASCAK, Plaintiff,
v.
CAROLYN COLVIN, Commissioner of Social Security, Defendant.

DECISION and ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Susan Jane Palascak ("Plaintiff"), represented by counsel, brings this action pursuant to Title II of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner")[1] denying her application for Disability Insurance Benefits ("DIB"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. ยงยง 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

Plaintiff filed her application for DIB on November 18, 2008, alleging disability beginning February 15, 2006, due to back pain, a torn rotator cuff, and arthritis. T.121.[2] After the application was denied, T.68, 70-74, Plaintiff requested a hearing before an administrative law judge. On September 15, 2010, Plaintiff and her representative appeared before administrative law judge Eric Glazer ("the ALJ") for the hearing. See T.9, 31-67, 78-106. The ALJ issued a decision on October 27, 2010, finding Plaintiff not disabled. T.12-26. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on May 17, 2011. T.1-6. This timely action followed.

III. Background

A. Medical Evidence Prior to the Onset Date

On July 28, 1998, Plaintiff was referred by Naren Kansal, M.D. to physical therapy for lumbar pain with radiculopathy. T.227. Plaintiff reported episodic back pain for several years. One month ago, she developed right foot paresthesias and increased pain on sitting. She was discharged on August 25, 1998, after 11 treatments, and the physical therapist noted that her lumbar pain with radiculopathy was resolved. T.228.

Plaintiff returned to the physical therapist on August 15, 2000, with severe left lower extremity pain with numbness into the left lateral foot, along with severe leg cramping and shooting pains into the posterior thigh with increased intensity in the posterior knee. T.229. Plaintiff had difficulty sitting, standing, and lying down. She was "unable to do functional activities without severe pain." T.229. Plaintiff stopped attending therapy several weeks into the program because she was doing well and did not feel she needed further therapy. She was discharged on December 8, 2000. T.232.

On December 21, 2000, Plaintiff saw Drs. Frederick McAdam and Paul Olizarowicz at Buffalo Spine & Sports Medicine, P.C., in follow-up after receiving an epidural injection for her low back and lower extremity pain secondary to a disc herniation at L5-S1. The epidural resulted in "[i]mproved symptomatology" but she still was taking hydrocodone 7.5 mg, as needed. She was performing a home exercise program after completing a course of physical therapy and chiropractic care. Drs. Olizarowicz and McAdam noted that her past medical history was significant for an anxiety disorder. T.247. She was to follow up with them as needed. Id.

On January 28, 2002, Plaintiff saw Dr. Michael Parentis for evaluation of her left knee. She explained that she had been trying out some cheerleading moves with her daughter and her friends, and when she landed, her knee buckled. She felt a "pop" and was unable to stand. T.254. Dr. Parentis noted there was a very mild effusion of the knee, medial joint line tenderness, and significant pain medially upon meniscal grind testing. T.254. Plaintiff elected to have an arthroscopy rather than continue with conservative management (anti-inflammatories and a steroid injection). T.255. On February 8, 2002, Plaintiff underwent a successful left knee arthroscopy and partial medial, performed by Dr. Parentis. T.256-57. Subsequent treatment notes from Dr. Parentis indicate that Plaintiff developed a deep vein thrombosis ("DVT") following the arthroscopy, T.259, but there are no records related to the DVT in the administrative record.

In May of 2003, Plaintiff saw her primary care physician Shawn E. Cotton, M.D. with complaints of recurrent depression, anxiety, panic attacks, and attention deficit disorder. T.522, 525.

On January 27, 2005, Plaintiff returned to see Dr. Parentis after she slipped while knocking down icicles from her roof. She had significant pain and swelling in her right knee. T.259. X-rays revealed a small knee joint effusion along with minimal patellar spurring and minimal distal femoral and proximal tibial spurring. The impression was "mild degenerative changes." T.253. Dr. Parentis opined that the injury was just a strain and advised conservative treatment. T.259.

B. Medical Evidence from February 16, 2006, to June 30, 2006 (The Date Last Insured)

On February 17, 2006, physician's assistant Robin Massing ("PA Massing") at Dr. Cotton's office evaluated Plaintiff, who had been having right shoulder pain for the past 3 weeks. The pain was exacerbated by reaching and putting on clothes, but there was no weakness, numbness, swelling, or tingling. T.311-12. Examination revealed tenderness in the right bicep region and increasing pain with internal and external rotation and resisted elevation. Motor and grip strengths were more than full at 5. Deep tendon reflexes were equal bilaterally in the upper extremities, and there were no focal deficits. T.311. An x-ray of the right shoulder was unremarkable. T.252. PA Massing assessed right shoulder pain caused by a rotator cuff tear and tendinitis, and prescribed lortab and diclofenac. T.311-12.

At a follow-up visit on February 27, 2006, Plaintiff reported that her shoulder was still very painful, with increasing pain when she lifted, pushed, and pulled. T.308-09. She stated that prednisone had provided slight improvement. Upon examination, PA Massing observed some palpable tenderness. PA Massing assessed right rotator cuff tendinitis, referred Plaintiff to physical therapy, and continued prednisone for one week, to be followed by Daypro. T.308. If there was no improvement, an MRI or orthopedic referral was indicated. Id.

At a March 3, 2006 examination at East Aurora Family Practice, Plaintiff complained of right shoulder pain for the past 3 months unrelieved by prednisone. T.306-07. On examination, Plaintiff had decreased movement in her right shoulder and pain during movement. T.307. The "probable" cause of the pain was right shoulder impingement. Id . Plaintiff received an injection of Kenalog and Depomedrol in her right shoulder. Id.

On April 10, 2006, Physician's Assistant Matthew Mazurczak ("PA Mazurczak") at Dr. Parentis' office evaluated Plaintiff for complaints of right shoulder pain, which flared up at work. T.260. On examination, Plaintiff's had full strength and range of motion in her right shoulder; she had no pain on cross-arm conduction, Speed's testing, or over the biceps; but there was an exquisitely positive Hawkins' sign. PA Mazurczak diagnosed right-sided subacromial impingement, and injected the space with a mixture of Marcaine, Lidocaine, and Kenalog. T.260. Dr. Parentis reviewed and agreed with this course of treatment. Id.

On May 12, 2006, Dr. Parentis performed right shoulder diagnostic arthroscopy, arthroscopic subacromial decompression, and mini-open rotator cuff repair fixed with 2 arthrex corkscrew metal anchors. T.261-62. Plaintiff tolerated the procedure well. T.262.

Plaintiff attended a PT appointment on May 16, 2006, complaining of constant right shoulder and upper arm pain, causing her to be unable to sleep. Plaintiff reported aggravation of symptoms on reaching overhead/behind, personal care activities, donning/doffing clothing, sleeping 1 to 2 hours, lifting 2 pounds, driving, writing, and opening doors and jars. At that time, Plaintiff was waiting to be admitted to an alcohol rehabilitation program. T.364. Physical therapy with various modalities was recommended biweekly for 4 weeks. T.365.

On May 23, 2006, Plaintiff returned to see Dr. Parentis for follow-up and reported that she was quite sore. T.263. Dr. Parentis commented, "[o]f note, she had her x-ray done and when she was moving her body she had increasing discomfort. I think this is just some scar." T.263. X-rays were normal, showing good positioning of the anchors and a "Type I" acromion. Dr. Parentis noted that Plaintiff was "having a lot pain" but he thought it was "just standard with some lysis of adhesions." Id . continue with passive motion exercises at therapy for the time being. Id.

At a June 13, 2006 physical therapy session, Plaintiff reported that her right shoulder soreness had improved with antibiotics. T.362-63. Plaintiff reported aggravation of symptoms with reaching overhead and behind, personal care activities, donning/doffing clothing, sleeping 3 hours and lifting 2 pounds. T.363.. Plaintiff was "progressing slowly" and would benefit from continued treatment, including cold therapy, electrical stimulation, functional training, self-care/home management, home exercise, isotonic strengthening, and posterior shoulder stabilization exercises. T.363. Active range of right ...


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