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Kirk v. Colvin

United States District Court, W.D. New York

May 28, 2014



FRANK P. GERACI, Jr., District Judge.

Plaintiff Michael S. Kirk brings this action pursuant to the Social Security Act ("SSA") seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), which denied his application for Disability Insurance Benefits ("Disability"). The parties have filed competing motions for judgment on the pleadings (Dkt. ##4, 6), and because I find that substantial evidence supports the Commissioner's decision, Defendant's Motion for Judgment on the Pleadings is granted, Plaintiff's Motion for Judgment on the Pleadings is denied, and the Complaint is dismissed.


A. The Plaintiff's Injury and Medical Records

Plaintiff worked in the Coudersport, NY area as an assistant produce manager and assistant grocery store manager, and held these positions continuously for a period of over 15 years prior to 2008. R. at 19, 31[2]. On July 29, 2008, Plaintiff was visiting relatives in Kentucky, and was ejected from a motor vehicle after his relative who was driving fell asleep at the wheel. R. at 233. Plaintiff sustained injuries, and has not worked since the accident. R. at 15.

Plaintiff was airlifted from the scene of the July 29, 2008 accident and admitted to the University of Kentucky Medical Hospital. R. at 233. An x-ray of his chest revealed multiple rib fractures. R. at 246. CT scans of the cervical and lumbar spines revealed no acute fractures, but showed "mild, degenerative changes." R. at 240. After reviewing the CT scans and the x-ray images, Dr. Brian Sonka, the attending doctor, diagnosed Plaintiff with mild traumatic brain injury, a sternal fracture, a T3 superior endplate fracture and a scalp laceration. R. at 451. Dr. Sonka discharged the Plaintiff on July 30, 2008. He prescribed painkillers and wrote Plaintiff a "work excuse for light duty work for up to a week" due to pain. R. at 454-55.

Plaintiff returned home from Kentucky, and was seen by his treating physician, Dr. Lisa Robertson. On August 5, 2008, Dr. Robertson ordered an MRI of the Plaintiff's thoratic and cervical spine. R. at 543-45. The images revealed "no acute fractures, " but did show several compression fractures, multilevel spondylosis, disc protrusions, mild central-canal stenosis, and several other degenerative changes. Id. Dr. Robertson also ordered an ultrasound of the Plaintiff's lower extremities, which was negative. R. at 546.

Dr. Robertson continued to see Plaintiff over a series of appointments, and recorded the Plaintiff's evolving condition. On September 22, 2008, Dr. Robertson noted that Plaintiff's neck was "immobile" due to his brace, his range of motion was "severely limited with pain, " and his spine and musculature were tender. R. at 337.

At his October 2008 examination, Plaintiff complained of continued pain. R. at 498. However, he denied fatigue and numbness. Id. Dr. Robertson's objective examination noted that Plaintiff "walk[ed] with a normal gait, " the strength in both his upper and lower extremities was 5/5, his range of motion improved in both his neck and spine and the associated pain and tenderness subsided. R. at 499.

Plaintiff had another follow-up appointment in December 2008. R. at 501. There, he denied musculoskeletal pain, fatigue, and numbness altogether. Id. The objective examination was virtually normal. Dr. Robertson noted that Plaintiff walked with a normal gait, his neck had full range of motion with no pain, his spine had no tenderness and no joint restrictions, and his lower and upper extremities had full strength. R. at 502. An EMG suggested radiculopathy or possible diabetic neuropathy. R. at 266. An MRI of the cervical spine revealed some degenerative changes including bulging discs, but also noted edema had resolved. R. at 254. An MRI of the lumbar spine also revealed minor to moderate wedging and disc protrusions, but noted the decrease in edema was indicative of "healing compression fractures." R. at 255.

Plaintiff presented again in April 2009 complaining of back pain. R. at 504. Dr. Robertson's objective examination remained virtually unchanged from her previous one. R. at 505. Nonetheless, she noted that Plaintiff's neck and back pain may be "chronic." Id. She commented that Plaintiff had "severe pain with sitting or standing in both the neck and back" and "could not maintain any position for any length of time." Id. Furthermore, she stated that Plaintiff was unable to lift more than three pounds in physical therapy. Id. Plaintiff was prescribed Oxycodone and Metformim. Id.

Dr. Robertson examined the Plaintiff again in May 2009, July 2009, October 2009, July 2010, and November 2010, where the primary focus during these appointments was Plaintiff's diabetes. R. at 507-24. Dr. Robertson's examinations revealed the following: no pain (R. at 508, 510, 516, 519, 521); "full R[ange] O[f] M[otion]" in the spine and neck (R. at 508, 510, 513, 516, 519, 523); "full strength" in his arms and legs (R. at 508, 510, 513, 516, 519, 523); no numbness/neuropathy (R. at 507, 509, 512, 515, 518, 521); no fatigue (R. at 507, 515, 518, 521); no problems sleeping (R. at 521); reflexes and mobility in all extremities intact (R. at 508, 510, 513, 516, 519, 523); no fatigue (R. at 507, 515, 518, 521); and normal gait (R. at 508, 510, 513, 516, 519, 523).

However, Dr. Robertson composed a narrative on August 11, 2010, in which she stated that Plaintiff's motor vehicle injuries were not improving with treatment. R. at 418. Dr. Robertson also indicated that Plaintiff had consistent pain in his neck and back since the accident, preventing Plaintiff from sitting for more than 30 minutes at a time before needing to lie down. Id. On February 9, 2011, she concluded Plaintiff was "totally disabled" based upon her "clinical findings" including cervical pain, back pain, arm weakness and numbness, uncontrolled sugars, and retinal hemorrhages; MRI findings; and lab studies. R. at 551-52. In a letter written to Plaintiff's attorney dated May 11, 2011, Dr. Robertson explained that by "totally disabled, " she meant Plaintiff was "unable to stand for more than 15 minutes at a time, and could not sit for more than 15-20 minutes at a time before needing to get up and move around or lay down." R. at 561.

Dr. Alan Gillick, an Orthopedist who treated Plaintiff during this same time period, also noted Plaintiff's evolving condition in his treatment notes from August 20, 2008, through May 4, 2009. R. at 259-65.

Plaintiff's first examination with Dr. Gillick was on August 20, 2008, where Plaintiff presented with pain and numbness. R. at 265. Dr. Gillick reviewed x-ray imaging studies and diagnosed Plaintiff with compression fractures and localized kyphosis. Id. The physical examination revealed tenderness across the cervical thoracic junction and Dr. Gillick noted that flexion caused increased pain. Id. Dr. Gillick recommended a brace for the Plaintiff. Id.

A follow-up examination occurred on September 15, 2008. R. at 264. During the exam, Plaintiff stated that wearing the brace resulted in a "significant improvement in pain." Id. However, Plaintiff did state that the pain was lingering. Id. Upon physical examination, Dr. Gillick noted tenderness in the spine and kyphosis, but found that Plaintiff's sensation was normal. Id. A follow-up x-ray deemed the condition "slightly improved." Id.

In October 2008, Plaintiff presented to Dr. Gillick with "some increased low back discomfort." R. at 263. The results from Dr. Gillick's physical examination remained unchanged from the September 2008 visit. Id. Dr. Gillick recommended weaning the Plaintiff out of the brace and into a Philadelphia collar. Id.

Dr. Gillick treated the Plaintiff again in November 2008. R. at 262. Plaintiff stated that his pain did not improve since his last visit. Id. Dr. Gillick noted that Plaintiff's walking/standing tolerance was only about 1.5 hours. Id. Dr. Gillick's physical examination revealed spinal tenderness as well as "discomfort" with range of motion. Id.

Dr. Gillick began noting significant improvements in December 2008. Dr. Gillick opined that Plaintiff's pain "lessened significantly." R. at 256. While the physical exam revealed some kyphosis, Plaintiff's range of motion was "much improved, " his discomfort had decreased, and his upper extremity and motor sensation was normal. Id. Dr. Gillick mentioned that Plaintiff's lingering left arm pain could be caused by a herniated disc. Id.

Improvements were also noted again during the next exam in February 2009. R. at 261. Dr. Gillick noted that Plaintiff was making "very gradual strides" in physical therapy. Id. However, Dr. Gillick also noted that Plaintiff's neck "fatigues" forcing Plaintiff to lie down about 2-3 hours apart during "periods of time." Id. The physical examination revealed improved range of motion and decreased tenderness. Id. Dr. Gillick recommended Plaintiff receive epidural steroid injections and continue with physical therapy. Id.

Further improvements were noted in March 2009. R. at 260. Plaintiff presented to Dr. Gillick with some low back pain, but with "much improved" pain and mobility in his neck and upper back. Id. Imaging studies of the spine were "unremarkable, ...

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