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Golden v. Commissioner of Social Security

United States District Court, N.D. New York

May 29, 2014


Steven R. Dolson, Esq., Amherst, New York, for Plaintiff.

Hon. Richard S. Hartunian, United States Attorney, Karen T. Callahan, Esq., Special Assistant United States Attorney, Social Security Administration, Office of Regional General Counsel, Region II, New York, New York.


NORMAN A. MORDUE, Senior District Judge.


Plaintiff filed this action pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3) and asks the Court to reverse the Commissioner's decision to deny his application for disability insurance benefits and remand this matter for payment of benefits. Presently before the Court are the parties' cross-motions for judgment on the pleadings. Dkt. Nos. 11, 13.


A. Factual and Procedural History

Plaintiff was born on June 2, 1958. He graduated from high school in 1977. After attending tractor trailer driving school in 1990, plaintiff worked as a truck driver from 1991 to March 2009.

Plaintiff filed an application for disability insurance benefits with the Social Security Administration on July 23, 2009, alleging he became disabled on March 27, 2009 and that he suffers: traumatic arthritis in the right hip; degenerative joint disease; obesity; obstructive sleep apnea; stroke; hypertension and vascular disease; intermittent syncope and vertigo; degenerative disc disease of the lumbar spine; and gastroesophageal reflux disease. After obtaining plaintiff's medical records and holding a hearing, Administrative Law Judge Viviane W. Mittleman issued a decision finding that plaintiff was not disabled. On April 14, 2011, the Appeals Council denied plaintiff's request for review and the ALJ's decision became the Commissioner's final decision. This action followed.

B. Medical Evidence

On June 27, 2003, plaintiff went to see Michael Wiese, M.D., an orthopedist, regarding "intermittent right buttock pain radiating into his groin." Dkt. No. 8, Administrative Transcript, p.243 ("T. 243"). Plaintiff told Dr. Wiese that "over the last 10 years" he had "episodes where" his "buttock, low back, and right hip will lock up" rendering him "unable to ambulate and sometimes will have to crawl" but that "[e]ventually, things will loosen up and he will be better." T. 243. Plaintiff told Dr. Wiese that "over the last 6 months" his symptoms have increased "and he has had 9 episodes of this severe pain". T. 243. Plaintiff stated that he did not have any significant injury to his low back but that he had injured his right hip and lower leg in a motorcycle accident "about 25 years ago". T. 243. Plaintiff, who was a truck driver at the time, described the pain "as a gripping, tight pain in his buttock and groin region" but stated that it did not "radiate below the knee." T. 243. He told Dr. Wiese that he believed he was losing motion in his hip and that he had "difficulty after he has been driving the truck for long periods and attempts to get out of the truck" because of stiffness. T. 243.

Dr. Wiese examined plaintiff and found:

He is walking with a stable gait without any significant antalgic elements. Stance alignment is neutral. Back shows excellent flexibility without discomfort. He has no tenderness over either side joint, no pain to pelvic rock. He does have discomfort in his right hip with terminal internal/external rotation, which lacks about 15 [degrees] of abduction when compared to the opposite side. He has no significant pain to the motion arc.... Leg lengths are equal. Negative Faber, negative log roll. Calf is soft. Neurovascular exam is intact. Deep tendon reflexes are 2 and symmetric.

T. 243.

X-rays indicated "LS spine unremarkable" and "early arthritis in the right hip." T. 243. Dr. Wiese observed that "[t]here may be a loose ossicle off the superior lateral aspect of the acetabulum" and "symmetric narrowing" but no "bone-on-bone contact at this time." T. 244.

Dr. Wiese diagnosed "[t]raumatic arthritis right hip, mild to moderate". T. 244. Dr. Wiese recommended physical therapy for plaintiff's "very stiff hip" and that plaintiff "consider changing his job to a more sedentary type job to try to preserve the hip as long as possible" but noted that he "will inevitably need a total hip replacement." T. 244. Dr. Wiese planned to see plaintiff in four weeks "to see how this therapy has helped" and observed that plaintiff might "benefit additional testing to rule out loose body in the hip for consideration of either a cortisone injection or possibly a hip arthroscopy." T. 244.[1]

On August 21, 2006, plaintiff went to the emergency department at Upstate Medical Center in Syracuse, New York after falling. T. 298. Plaintiff reported: "having a fall today preceded by dizziness and room spinning sensation.... getting slowly dizzy, lightheaded... then falling to the floor being unable to stand for a little while, then coming back to baseline." T. 298. Plaintiff also described "similar episodes happening over the last two weeks." T. 298. Plaintiff reported having a history of hypertension and that he was on two hypertensives, one of which he started "about 3 weeks ago". T. 298. Plaintiff denied losing consciousness, having headaches, difficulty swallowing, double vision, or slurred speech but stated that he had "some sort of numbness in the right side of his face." T. 298.

Romer Mosquera, M.D. conducted the emergency department consultation and diagnosed: "Acute vertigo, likely secondary to an inner ear problem. I cannot exclude the possibility for presyncopal, syncopal event secondary to recent adjustment of blood pressure medications." T. 299. A CT scan yielded "no evidence for an acute intracranial process." T. 306. Meclizine was prescribed for plaintiff. T. 301.

Plaintiff went to Marcellus Medical Center on October 5, 2006, and reported that he had been having a "vertigo problem" and that he had been in a motor vehicle accident on September 8 or 9, 2006. Plaintiff explained that he "got a spell of vertigo" while driving I was just driving" and "ended up in the guardrail". T. 290. Plaintiff stated that it "has been a while" since his "last dizzy spell". T. 290-91.

On July 29, 2009, plaintiff went to the emergency department at Upstate Medical Center after passing out. T. 348. According to hospital records, plaintiff reported:

He was standing, cleaning his windows when he felt he was going to fall and fell on the right side, hit the right side of his neck and fell on the ground. As soon as he got up, he had left-sided chest pain. He thought he might have hit his chest. The pain was described as sharp and stabbing and was not associated with diaphoresis or palpitations.

T. 348. During a physical examination at the hospital, Burk Jubelt, M.D., found minimal pedal edema, "5/5 strength in the upper and lower extremities bilaterally except for anterior tibialis on the right which is 5-/5", and "40%-70% decrease in pinprick in the right arm and leg, mild decrease in vibratory sense bilaterally". T. 351. A CT scan of plaintiff's cervical spine showed no "acute spinal traumatic injury, " but showed "degenerative disease resulting in spinal cord neural foraminal narrowing", "severe right facet arthropathic changes at C4-C5 level with erosive changes" and "small disc protrusion at C5/6". T. 351, 353. Plaintiff also had a CT scan of his head, which did "not demonstrate any acute intracranial process". T. 351. Plaintiff's primary diagnoses at the time of discharge were: "[c]hest pain? musculoskeletal. Ruled out for myocardial infarction" and "[l]eft ventricular diastolic dysfunction on echo". T. 348.

On September 15, 2009, Kalyani Ganesh, M.D. examined plaintiff at the Commissioner's request. T. 361. Plaintiff told Dr. Ganesh that he has had pain in his low back and right hip since a motorcycle accident and "several other injuries over a period of time." T. 361. Dr. Ganesh noted that plaintiff's background information indicated that "the right hip is traumatic arthritis, mild to moderate." T. 361. Dr. Ganesh noted that plaintiff's current medications were accupril, metoprolol, norvasc, and aspirin. T. 361.

Plaintiff reported sharp pain and discomfort in his right hip and down his right leg and that he fell down "[s]ometimes". T. 361. Plaintiff also stated that he had pain "all the time" in his right hip and that it hurt to "sit for long, stand for long" and that he had "to get up and walk around." T. 361. Plaintiff complained of having chest pain "quite often" on the right side. T. 361. Plaintiff was using a cane "which he got on his own this year." T. 361.

Regarding his daily activities, plaintiff told Dr. Ganesh: "He can cook three days a week, cleaning two, laundry and shopping one. He showers once, dressing five days a week. Activities; he watches TV, listens to the radio, reads." T. 361.

Dr. Ganesh noted that plaintiff had "a limp favoring the right", and that he could not squat or walk on his heels or toes. T. 362. Dr. Ganesh wrote that plaintiff's "use of the cane did not appear absolutely necessary" and that plaintiff did not need help changing for the exam, was able to rise from a chair ...

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