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Burton v. Colvin

United States District Court, W.D. New York

June 2, 2014

YOLANDA BURTON, Plaintiff,
v.
CAROLYN COLVIN, Commissioner of Social Security, Defendant.

DECISION and ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Plaintiff Yolanda Burton ("Plaintiff"), represented by counsel, brings this action pursuant to Titles II and XVI 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") and Social Security Insurance ("SSI"). 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

On April 27, 2009, Plaintiff protectively filed applications for DIB and SSI, alleging disability beginning July 14, 2008. After the claims were denied, Plaintiff requested a hearing. She appeared with her attorney via videoconference before Administrative Law Judge Lawrence Levey ("the ALJ") on January 24, 2011. T.22-60.[2] The ALJ issued an unfavorable decision on January 25, 2011. T.5-21. Plaintiff filed a request for review with the Appeals Council, which declined jurisdiction on May 7, 2012. T.1-4.

Plaintiff then timely filed her complaint in this Court. During the pendency of this action, Plaintiff filed a second application and was granted benefits with a disability onset date of January 26, 2011. The relevant time period for purposes of this action, therefore, is July 14, 2008, through January 24, 2011.

III. Summary of the Administrative Record

A. Medical Evidence Prior to the Onset Date

Plaintiff saw orthopedist M. Gordon Whitbeck, Jr., M.D. on March 28, 2005, complaining of lower back pain and left leg pain going down to the foot for the past 2 to 3 months. T.249. The pain was constant, worsening with standing and walking. On examination, straight leg raising ("SLR") was positive on the left, producing pain down to the calf. T.250. Magnetic resonance imaging ("MRI") of the lumbar spine performed on January 27, 2005, showed degenerative changes at L4-5 and L5-S1, and a large left paracentral disc herniation at L5-S1 with significant nerve root impingement. Dr. Whitbeck's assessment was L5-S1 disc herniation and left sciatica. Dr. Whitbeck noted that Plaintiff still was working despite her "obvious impairment." T.249.

Dr. Whitbeck performed a discectomy at L5-S1 on April 20, 2005. T.251-52. On June 1, 2005, Plaintiff still had significant pain in her back and left leg to about knee-level. T.253. The most likely cause was inflammation around the nerve root, and it was expected to improve over time. Dr. Whitbeck prescribed Neurontin, Darvocet, and anti-inflammatories, and stated that she was totally temporarily disabled until June 20, 2005. T.253.

On July 27, 2005, Plaintiff informed Dr. Whitbeck that her leg pain had resolved although she still had a small amount of lower back pain. T.254. She had returned to work and was using an ergonomic chair purchased by her employer. Id.

On August 26, 2005, Plaintiff returned to Dr. Whitbeck with complaints of pain across the lower portion of her back, along with pain and numbness in both legs down to her feet, worse on the left. T.255. The pain was constant, difficult to tolerate, and increased with bending, standing, and walking. Id . After an emergency room visit due to the pain, she was prescribed Hydrocodone and Soma. At her examination with Dr. Whitbeck, she had positive SLR on the left with pain down the left leg, and equivocal SLR on the right. T.255. Dr. Whitbeck opined that the recurrent bilateral sciatica might represent a recurrent disc herniation or a disc herniation at the middle level of the spine. The main finding based on the MRI was a large, recurrent left-sided disc extrusion at L5-S1, where Plaintiff had significant degenerative disc disease. T.256. Dr. Whitbeck ordered an MRI, prescribed Hydrocodone and Flexeril, and stated Plaintiff was temporarily totally disabled. T.255.

On November 1, 2005, Plaintiff underwent re-exploration of L5-S1 with left L5-S1 discectomy; capstone spacer insertion at L5-S1; transforaminal lumbar interbody fusion at L5-S1; bilateral lateral fusion at L5-S1 with autogenous iliac crest graft; and nonsegmental instrumentation at L5-S1. T.257-59.

At a follow-up appointment with Dr. Whitbeck on February 9, 2006, Plaintiff was 75% to 80% improved, although she had some residual lower back pain and left sciatic symptoms. T.262. She remained temporarily totally disabled. Id.

On April 4, 2006, Plaintiff told Dr. Whitbeck that she was having daily back spasms, intermittently throughout the day. However, she wished to return to work, so Dr. Whitbeck released her with a moderate temporary partial disability on April 20, 2006, limiting her to part-time work (6 hours per day) with no lifting of greater than 10 to 15 pounds, no twisting or bending, and the ability to frequently change position. T.263.

On June 12, 2006, Plaintiff was doing well and was in her first trimester of pregnancy. She was to be returned to work without restriction on July 3, 2006. T.264.

In 2007, Plaintiff complained of stress at home and at work to her primary care physician, Louise Richardson, M.D.

On January 22, 2007, Plaintiff saw Dr. Whitbeck and was "doing quite well in terms of back and leg symptoms." T.362. She was able to move around the room without difficulty. Dr. Whitbeck stated that she had made a good recovery and should restart some of her physical therapy exercises. Id.

On March 7, 2008, Plaintiff told Dr. Whitbeck that the nonsteroidal anti-inflammatories ("NSAIDs") he had prescribed had resolved her symptoms. T.360, 363-66. However, she was no longer working. On examination, she had no focal atrophy and no focalized tenderness in the lumbar spine. Strength was full and sensation was intact. T.360.

On April 4, 2008, Plaintiff told Dr. Whitbeck she was not taking any medications and still was not working. At that point, she was 2 years and 5 months out from an L5-S1 discectomy and posterolateral fusion. The exacerbation of some left proximal thigh symptoms had been resolved with prescription NSAIDs. T.360-62.

On June 3, 2008, Dr. Richardson diagnosed Plaintiff with hypertension. She issued a note, on June 5, 2008, that Plaintiff could not return to work until further notice. T.272.

On July 7, 2008, Plaintiff saw Dr. Richardson complaining of a sore throat, fever, and dizziness. Dr. Richardson advised rest and fluids, and to stay out of work until July 9, 2008. T.276.

B. Medical Records After the Onset Date (July 14, 2008)

On July 14, 2008, Plaintiff saw Dr. Richardson in follow-up, reporting a sore throat, swollen glands, dizziness, and aches and pains. T.284. She was treated for strep pharyngitis, and suffered an allergic reaction 2 days later with swelling of the ankles and hands, as well as a rash. On November 11, 2008, Plaintiff told Dr. Richardson that she had been ...


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