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Nagle v. Colvin

United States District Court, N.D. New York

June 23, 2014

William F. Nagle, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, in place of Michael Astrue, Defendant.

Binder & Binder, P.C., Charles E. Binder, Esq., of counsel, Eddy Pierre Pierre, Esq., of counsel, New York, New York. Hon. Richard S. Hartunian, United States Attorney, Karen G. Fiszer, Esq., Special Assistant United States Attorney, Social Security Administration, Office of Regional General Counsel, Region II, New York, New York, Attorney for Defendant.

MEMORANDUM-DECISION AND ORDER INTRODUCTION

NORMAN A. MORDUE, Senior District Judge.

Plaintiff, born on May 22, 1959, worked as a union painter/drywall finisher for a construction company from January 1987, through December 2008. On December 1, 2008, he applied for Social Security Disability ("SSD") benefits, claiming disability due to back pain, bulging disc injury, compression fracture at L5, and severe muscle spasms. After the initial denial of his application, he requested a hearing.

Administrative Law Judge ("ALJ") Jeffrey M. Jordan held a hearing on October 6, 2010 and heard testimony by plaintiff and a vocational expert called by the Social Security Administration. By decision dated November 9, 2010, the ALJ determined that plaintiff had the severe impairments of "disorders of the back, sciatica, and myofascial pain syndrome, " but that the impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d); 404.1525; 404, 1526. The ALJ further found that plaintiff did not have the residual functional capacity ("RFC") to perform his past work, but that he was able to perform other work. Thus, the ALJ determined that plaintiff was not disabled under the Social Security Act during the period from December 1, 2008 to November 9, 2010. On May 23, 2011, the Appeals Council denied plaintiff's request for review; thus, the ALJ's decision became the final decision of the Commissioner of Social Security ("Commissioner").

Plaintiff seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). He contends that the ALJ erred in holding that, although admittedly he is unable to perform his past work, there is other work that he could perform. Plaintiff asks the Court to reverse the Commissioner's decision denying benefits and to remand the matter for payment of benefits. In the alternative, he asks the Court to remand the matter to the ALJ for a new hearing. As set forth below, the Court finds that plaintiff was disabled for purposes of the Social Security Act from December 1, 2008 until November 9, 2010, grants plaintiff's motion for judgment on the pleadings (Dkt. No. 9), denies defendant's motion for judgment on the pleadings (Dkt. No. 13), and remands for calculation of benefits.

APPLICABLE LAW

To be found eligible for SSD benefits, a claimant must show that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d). The Commissioner uses a five-step process, to evaluate such claims. As the Second Circuit explains:

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Commissioner next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him per se disabled. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Commissioner then determines whether there is other work which the claimant could perform.

Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (alterations omitted)); see 20 C.F.R. §§ 404.1520, 416.920. A claimant's residual functional capacity ("RFC") is defined as follows: "Your impairments(s), and any related symptoms, such as pain, may cause physical and mental limitations that affect what you can do in a work setting. Your residual functional capacity is what you can still do despite your limitations." Tejada v. Apfel, 167 F.3d 770, 774, n.3 (2d Cir. 1999) (citing 20 C.F.R. § 416.945(a)).

The burden is on the claimant to establish disability at the first four steps. The existence of a medically determinable impairment must be established by an acceptable medical source, in this case a physician. See 20 C.F.R. § 416.913(a). In addition to evidence from acceptable medical sources, evidence from other sources, including nurses, educational personnel, and family members, may be used to show the severity of an impairment and how it affects the claimant's ability to work. See 20 C.F.R. § 416.913(d). If the claimant establishes an impairment that prevents him from performing his past work, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (citing 20 C.F.R. § 404.1560(c)(2)) (clarifying that the burden shift to the Commissioner at step five is limited, and the Commissioner "need not provide additional evidence of the claimant's residual functional capacity"); Selian, 708 F.3d at 418 & n.2.

The Court "may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by substantial evidence or if the decision is based on legal error." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (internal quotation marks omitted). The Commissioner's findings as to any fact, "if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Shaw, 221 F.3d at 131 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

THE MOTIONS

The ALJ found, and it is not disputed, that between December 1, 2008 and November 9, 2010, plaintiff had the severe impairments of "disorders of the back, sciatica, and myofascial pain syndrome"; that the impairments were expected to last for a continuous period of not less than 12 months; that the impairments did not meet or medically equal one of the listed impairments; and that plaintiff did not have the RFC to perform his past work. Plaintiff challenges the ALJ's determination of his RFC and his conclusion that plaintiff is able to perform other substantial gainful activity and therefore is not disabled. The Commissioner adopts the ALJ's summary of the testimony and evidence. The Commissioner contends that the ALJ's conclusion is supported by substantial evidence and is legally correct.

THE ALJ'S DECISION

In pertinent part, the ALJ's decision is as follows:

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to: lift and carry 20 pounds occasionally and ten (10) pounds frequently at waist to chest level; stand a total of six (6) hours in an eight (8) hour workday; sit a total of six (6) hours in an eight (8) hour workday; walk a total of 200 yards in an eight (8) hour workday; push or pull less than five (5) pounds occasionally; never climb ladders, ropes, or scaffolds; never crawl or kneel; occasionally balance, stoop, and crouch; and perform simple, routine, and low stress tasks.
In making this finding, the undersigned has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The undersigned has also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-Sp, 96-6p and 06-3p.
In considering the claimant's symptoms, the undersigned must follow a two-step process in which it must first be determined whether there is an underlying medically determinable physical or mental impairment(s)-i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown, the undersigned must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functioning. For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the undersigned must make a finding on the credibility of the statements based on a consideration of the entire case record.
The claimant alleges an inability to work because of back pain, bulging disc injury, compression fracture at LS, and severe muscle spasms. He alleges that as a result, he is unable to stand, sit, bend, or walk for any length of time. At the hearing, the claimant testified that he is unable to lift heavy weight or do any overhead reaching because doing so will trigger muscle spasm. He testified that he experiences sharp, stabbing muscle spasms in his right side on a daily basis. The claimant testified that although he did physical therapy and injection therapy, such treatment provided little relief from his symptoms. He testified that the medications he takes to relieve pain "fog" his brain. He testified that if he were working, he would probably need a break every two (2) hours to lie down and apply ice.
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.
In terms of the claimant's alleged physical impairments, evidence demonstrates that he sustained a compression fracture at LS upon falling in 1980, and he re-injured his back sometime thereafter upon doing some lifting. An MRI of the claimant's lumbar spine completed in August 2006 revealed small disc protrusions at the L3-4, L4-5, and L5-Sl levels. At that time, it was determined that the most prominent protrusion at the L3-4 level may be displacing the L3 nerve root. On June 12, 2008, an MRI of the claimant's lumbar spine only revealed small central disc protrusion at the L5-S 1 level into the ventral epidural adipose tissues. At that time, it was determined that there was no evidence of nerve root compression or compromise. Evidence demonstrates that, in addition to pain associated with the degenerative changes seen with imaging studies, the claimant also experiences significant muscle spasms in his back. Although the claimant alleges that his back impairment is disabling, treatment records dated May 20, 2009 indicate that the claimant believes he is capable of performing light duty work despite experiencing what he described as constant low and mid back pain and frequent muscle spasms along his back. Such restriction prevents the claimant from performing the duties of his then current job as a construction worker, but does not preclude his performance of other work activity requiring a light level of exertion. In fact, a statement from the claimant's treating physician, Maura McCauley, M.D., indicates that merely any physical activity beyond walking worsens the claimant's symptoms. At the hearing, the claimant testified that if he were working, he would require a break every two (2) hours to lie down and apply ice to his back. However, when he requested a note from his treating physician in May 2009 restricting him to light work, he did not mention the need for such requirement secondary to his physical condition.
In terms of treatment, evidence demonstrates that the claimant is currently using a regimen of oral medications which provide fairly good relief of his symptoms in light of it being determined that he is not a candidate for surgery. Treatment records dated September 25, 2009 indicate that the claimant has been prescribed use of a Fentanyl patch which, per his report, has worked well. Additionally, the claimant was prescribed Baclofen which, per his report, really helps the muscle spasms in his back.
On October 1, 2009, the claimant underwent an internal medicine evaluation conducted by State agency consultative examiner Look Persaud, M.D., to determine the degree of his functional limitations. During the evaluation, Dr. Persaud observed that the claimant appeared to be in moderate acute and chronic distress while appearing to experience intermittent spasms in his back, some quite severe with jerking of his upper body. However, at the hearing, the undersigned observed that the claimant exhibited no visible signs of pain; he answered all questions asked of him absent any evident deficits in concentration.[1] Upon physical examination, Dr. Persaud noted that the claimant exhibited limited, painful forward elevation of the shoulders; limited, painful range of motion of the thoracic and lumbar spines; right sacroiliac joint tenderness; moderate paraspinal tenderness; and had difficulty walking on heels and toes. However, Dr. Persaud also observed that the claimant exhibited normal motor strength in both the upper and lower extremities; intact hand and finger dexterity; full range of motion of the cervical spine absent any trigger points; no sensory abnormalities; and full range of motion of the lower extremities. Treatment records indicate that as of December 2009, the claimant reported feeling better overall despite becoming excessively sleepy for approximately three (3) to six (6) hours after reapplying a Fentanyl patch, becoming very tired upon taking Cyclobenzaprine, and heartburn symptoms upon taking Aleve. In an effort to address such side effects, he was instructed to utilize the brand-name Duragesic patch and take Protonix one-half hour before a meal to better tolerate Aleve. He was instructed to continue taking Cyclobenzaprine as prescribed.
Although the claimant alleges significant functional limitations, evidence demonstrates that he engages in a wide range of activities of daily living. During the internal medicine examination, he informed Dr. Persaud that he does no lifting; however, such statement is inconsistent with his testimony regarding his hobby of flying remote controlled helicopters. Additionally, the claimant reports being able to prepare simple meals, do light housecleaning, go shopping once a week, and adequately care for his personal needs. He enjoys watching television, listening to the radio, reading, going for walks, and socializing with friends.
As for the opinion evidence, the record contains conflicting opinions pertaining to the claimant's ability to carry out basic work activities.
I have considered the opinions of Maura McCauley, M.D., the claimant's treating physician, concerning the severity of the claimant's functional limitations. Although Dr. McCauley has an extensive treatment history with the claimant, it is important to note that Dr. McCauley is a family practitioner not likely qualified to assess the claimant's work limitations. Furthermore, Dr. McCauley's opinions concerning the claimant's functional limitations are internally inconsistent. In May 2009, Dr. McCauley determined that the claimant is capable of performing light duty work, while in August 2009, she determined in part that he should be limited to lifting no more than ten (10) pounds, take unscheduled breaks every one (1) hour, and would likely be absent two (2) to three (3) times a month. Dr. McCauley's statement concerning the frequency with which the claimant would need to take an unscheduled break is inconsistent with the claimant's own testimony at the hearing citing a need to take a break every two (2) hours. Finally, in November 2009, Dr. McCauley opined that the she does not think the claimant is able to work at all. However, it must be noted that such conclusions are on an issue specifically reserved under the Regulations to the Commissioner (20 CFR 404.1527(e) and SSR 96-5p). For these reasons, the undersigned affords little weight to the opinions of Dr. McCauley concerning the claimant's inability to work or lift more than ten (10) pounds. However, the undersigned affords greater weight to the opinion of Dr. McCauley concerning the claimant's ability to lift no more than 20 pounds and refrain from doing excessive stretching, especially overhead reaching.
It is noteworthy that nurse practitioner Christine Morse is not an "acceptable medical source" as defined within the meaning of the Regulations. Pursuant to the Regulations, such reports and opinions are considered "other" evidence, of less probative value than information from an "acceptable source, " i.e., licensed physicians (20 CFR 404.1513). However, such reports may be considered to demonstrate the severity of a claimant's impairments. Accordingly, the undersigned affords significant weight to Ms Morse's assessment that, because of physical limitations, the claimant is unable to return to his previous work as a constructions worker. Interestingly enough, Dr. McCauley's act of referring the claimant to Ms. Morse because she is a pain management specialist serves as a greater indication that she does not possess the requisite expertise to assess the claimant's work limitations.
The undersigned has considered the opinion of State agency consultative examiner Look Persaud, M.D., concerning the severity of the claimant's functional limitations. In the opinion of Dr. Persaud, the claimant has mild restriction with prolonged sitting, standing, and walking; moderate restriction with walking on uneven terrain, up inclines, ramps and stairs; moderate to marked restriction with squatting, kneeling, crawling, bending, twisting, and turning; moderate to marked restriction for lifting, carrying, pushing, and pulling; mild to moderate restriction with overhead reaching; and mild restriction with reaching in all other planes. Although the opinion of Dr. Persaud is based upon a one-time examination, he is an orthopedic specialist who is in a better position to assess the claimant's work-related limitations stemming from a back disorder. For this reason, the undersigned affords significant weight to the opinion of Dr. Persaud concerning the claimant's functional limitations.
In sum, the residual functional capacity assessment noted above is supported by the objective medical evidence and other evidence of record which demonstrates the claimant is capable of performing basic work activities at a reduced level of exertion coupled with certain nonexertional limitations. The residual functional capacity noted above is further supported by the opinion evidence of record.
***
7. The claimant was born on May 22, 1959 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
***
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
In determining whether a successful adjustment to other work can be made, the undersigned must consider the claimant's residual functional capacity, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If the claimant can perform all or substantially all of the exertional demands at a given level of exertion, the medical-vocational rules direct a conclusion of either "disabled" or "not disabled" depending upon the claimant's specific vocational profile (SSR 83-11). When the claimant cannot perform substantially all of the exertional demands of work at a given level of exertion and/or has nonexertional limitations, the medical-vocational rules are used as a framework for decisionmaking unless there is a rule that directs a conclusion of "disabled" without considering the additional exertional and/or nonexertional limitations (SSRs 83-12 and 83-14). If the claimant has solely nonexertional limitations, section 204.00 in the Medical-Vocational Guidelines provides a framework for decisionmaking (SSR 85-15).
If the claimant had the residual functional capacity to perform the full range of light work, a finding of "not disabled" would be directed by Medical-Vocational Rule 202.21 and Rule 202.14. However, the claimant's ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled light occupational base, the Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would be able to perform the requirements of representative occupations such as:
ticket seller, DOT code number 211.467-030, of which there are approximately 100, 000 jobs in the national economy and approximately 900 jobs locally;
gate attendant, DOT code number 344.667-014, of which there are approximately 38, 000 jobs in the national economy and approximately 900 job s locally; and office helper, DOT code number 239.567-010, of which there are approximately 100, 000 jobs in the national economy and approximately 3, 000 jobs locally.
Pursuant to SSR 00-4p, the vocational expert's testimony is consistent with the information contained in the DOT. Even assuming the claimant required the additional limitations of lifting and carrying less than 10 pounds occasionally and a sit/stand option, the vocational expert testified that based on his experience and clinical judgment such an individual could perform the jobs cited above.
Based on the testimony of the vocational expert, the undersigned concludes that, considering the claimant's age, education, work experience, and residual functional capacity, the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy. A finding of "not disabled" is therefore appropriate under the framework of the above-cited rules.

(Citations to record omitted.)

THE RECORD

Plaintiff's Evidence

Plaintiff, born May 22, 1959, submitted a "Disability Report - Adult - Form SSA 3368" which included the following[2]:

A What are the illnesses, injuries, or conditions that limit your ability to work? Back pain, bulging disc injury, compression fracture L5, severe muscle spasms
B. How do your illnesses, injuries, or conditions limit your ability to work? I cannot stand, sit, bend, or walk for any length of time. I cannot lift the required weight or stretch.
C. Do your illnesses, injuries, or conditions cause you pain or other symptoms? Yes
D. When did your illnesses, injuries, or conditions first interfere with your ability to work? 12/01/1997
E. When did you become unable to work because of your illnesses, injuries, or conditions?
12/01/2008
F. Have you ever worked? Yes
G. Did you work at any time after the date your illnesses, injuries, or conditions first interfered with your ability to work? Yes
H. If "Yes, " did your illnesses, injuries, or conditions cause you to:
work fewer hours? Yes change your job duties? Yes make any job-related changes such as your attendance, help needed, or employers? Yes
Explain:
Continued to work with great pain and difficulty. Took days off because of pain and doctors appointments. Had to have other employees do my lifting.
I. Are you working now? No
If "NO, " when did you stop working? 12/01/2008
J. Why did you stop working?
My doctor advised me I am no longer able to pursue further employment due to my conditions.

In the report, plaintiff stated he was being treated by Maura McCauley, M.D. for "physicals, annual check up, referrals, " and Andrew Morpurgo, M.D. for "severe back pain, bulging disc injury, compression fracture of L5, severe muscle spasms." He was taking amitriptyline, fentanyl, oxycodone, and tizanidine.

The file also contains a New York State Office of Temporary and Disability Assistance form completed by plaintiff dated September 7, 2009. The form includes a section regarding the claimant's daily activities. Asked to describe what he does from the time he wakes up until he goes to bed, plaintiff wrote:

Take shower, eat breakfast. Take meds. Watch news & hunting shows. Take a short walk. Read on computer & reply to emails. (Sometimes fly r/c helicopter out back. That's my hobby.) Lay down & rest back on floor and watch TV. Make my lunch & eat lunch. Wash my dishes & make the bed. Sometimes play video games or walk over to my mother's house, 75 yards down the road. Sometimes go to Go Kart track and watch my buddies race, at night. Drive 10 miles to store for small items needed. Go out & sit under the tree & read.

The form further includes the following questions and answers:

What were you able to do before your illnesses, injuries, or conditions that you cannot do now?
Lift weight over 12.5 lbs without pain. Stretch over head with my hands. Sit or stand for long periods of time. Carry any weight up stairs or down. Climb ladders to paint. Twist upper body left or right without spasms. Sit and lift 10 lbs or more out in front of me or to my side. Walk on uneven ground, climb hills or hunt deep in the woods. Ride a riding lawn mower. Use a tree climber to hunt deer. Run. Sports. Ride a four wheeler. Draw a high powered bow and arrow.
***
List household chores, both indoors and outdoors, that you are able to do. Dust, dishes. (Sometimes run the vacuum, on a good day only, one room.) Turn on the washing machine, use a walk-behind self-powered mower and only mow 1/3 of ½ acre of yard at most.
***
If you don't do house or yard work, explain why not.
If I don't do the basics it's because I am having a bad day. I can't do too much. The lawn is the hardest. I cannot ride on a mower. It rocks me back and forth too mcuh and hurts my back. I can only walk on the uneven ground for a short time. So I only do 1/3 of my yard when I can.

He wrote that he shops for hobby parts or small groceries for ½ to 1 hour "maybe once a week." In response to a question regarding his hobbies and interests, plaintiff wrote: "Watching TV. Playing video games, Flying R/C helicopters. (Hunting but it is getting very hard to do any more.) Reading & watching NASCAR & going to the Go Kart track to watch my buddies race. I stopped racing 2 years ago." Asked how often he did the activities, he responded: "Every week. Daily on most. Unless I have a bad day. Then I just lay down and rest my back and apply ice." Asked to describe any changes in these activities since your illnesses, injuries, or conditions began, he wrote:

I now can't sit in one spot too long without shifting or getting up for a few minutes. I can no longer walk deep in the woods to hunt. I can no longer drive a Go Kart. I can't use a climbing tree stand to hunt. I need someone to drag my deer if I get one. I may have to give up hunting in the woods.

The section headed "Information About Your Abilities" included the following response:

I cannot lift much weight at all now. I cannot sit too long (no movies other than home). Walking is slow and I can't go a long way any more. Standing makes my back ache if I stand too long. Climbing stairs causes spasm. Kneeling is so-so but it's hard to get up sometimes. Squatting is hard on my back. Reaching is real bad on my back.

The form continued:

How far can you walk before you have to stop and rest? Good day = 100 yards or so. Bad day = approx. 10-25 yards.
How long do you rest before you can continue walking? Resting by standing doesn't help that much. So maybe five min or so. A bad day would be the least amount of walking, period.

Plaintiff continued:

I am very unable to do my job as a Union Painter and drywall finisher. I have been having these problems for at least four years where the pain is just too much. My job requires a lot of physical movement and lifting, stretching, bending, standing, climbing, and using heavy equipment.... I have adjusted my ways of life now to reduce my pain but it has many limitations.

Plaintiff added that the pain developed over ten years ago; that it first began to affect his activities about five years ago; that the ache is constant; that he gets stabbing sharp spasms; and that he feels the pain on the right side of his back, "belt line going up right side near spine." The pain is always in the same area but has increased as the years have passed. He experiences the pain all the time; it is brought on by activity in general, such as lifting, climbing, reaching, bending, sitting too long, standing too long, and any jarring of his back. At the time, he was taking fentanyl, baclofen, and amitriptyline. He stated that he has been on pain medications for over five years, and noted that they were getting stronger as time went on. His doctor has changed the medications "due to pain increase & meds not working enough."

Plaintiff completed another (undated) disability report. He stated that, since the August 19, 2009 disability report, he has "increased back pain and muscle spasms on a daily basis" and that since approximately October 15, 2009 he has had "difficulties sitting, standing or walking for long periods of time." He stated that Dr. McCauley diagnosed him with "Bulging disc injury, Severe back pain, Severe muscle spasms, Compression fracture of L5." He listed his current medications as amitriptyline, cyclobenzaprine, fentanyl, ibuprofen, oxycodone, and tizanidine HCL. Plaintiff wrote that he was able to care for his personal needs, "however, at a slower rate and with great difficulty" and that his "daily activities are limited due to [his] ongoing conditions."

The file contains a SSA form headed "Claimant's Recent Medical Treatment" completed by plaintiff, dated August 5, 2010. Plaintiff reported that he had been seeing Christina Morse at Cayuga Medical Center Pain Clinic (Ithaca Center for Pain Management) ("Pain Center") every two to three months. In response to the question of what he has been told about his condition, plaintiff wrote: "I fractured L-5 in lower back years ago, severely damaged right lower & midback muscles & there is no repair possible, not even surgery. That I have 3 bulging discs and I should not lift heavy objects, no twisting, bending, or stretching. I was told not to return to working as a painter and to work at relieving back pain as much as possible and do not injure myself." His medications were fentanyl patch, amitriptyline, cyclobenzaprine, and aleve. As of October 6, 2010, plaintiff reported that he was taking opana (oxymorphone), amitriptyline, cyclobenzaprine, and naproxen sodium.

At the hearing on October 6, 2010, plaintiff testified under questioning by his attorney as follows:

Q Okay. So tell us about why you're unable to work.
A Well, my back pain has just gotten to the point where it's so bad that I just can't stand or sit for any length of time. By that, I mean like more than an hour or two. I get very severe spasms. I can't reach, pick up any heavy weight.
Q Describe the pain. How does it feel?
A I get a very sharp, stabbing spasm in my right side that if I continue to do any long duration of picking up any items or rotating my upper body, it will create the spasm so bad that it will just pull me down to the floor, because it gets so tight the spasms just keep getting increasingly stronger and just basically wind me up.
Q So tell me what you do when your back starts spasming.
A I usually, well, I always have to lay down on the floor and usually apply an ice pack to it just to calm the spasms down. Basically, the best thing for me to do is to rest on a hard surface or lay down in a very hard bed to relieve the back spasms. Plus, I have to take an awful amount of medication.
Q And this has been ongoing since you stopped working?
A Yes.
Q And was it existing before that?
A For at least two to four years before that.
Q How often do you experience these kinds of spasms?
A Every day.
Q Are you experiencing them now?
A Yes.
Q I believe I did note that. Tell me about your daily routine.
A Daily routine is actually very boring, but I get up, have my coffee, take my morning medicine. Usually I'll go back and lay down in bed for at least an hour, hour and a half to let the medicine kind of kick in because when I get up in the morning I'm usually very sore because the medicine won't last throughout the evening or throughout the night. Sometimes it will wake me up, but, you know, 3:00 or 4:00 in the morning, then I'll get up and take a five milligramer of Opana to get me through until my morning time, which is 8:00, when I take my normal pill of the 40 milligram, and then just try to take it very easy. I do read, watch television and don't do a lot. Maybe walk across the street and go visit my dad. Sit down up in the bar and talk to him for a while.
Q How far is your dad from where you live?
A About 100 yards. I walk across the street.
Q Okay. And what do you find is the longest you can walk for without being ...

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