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Ferguson v. Colvin

United States District Court, W.D. New York

August 8, 2014

BONITA ROCHELLE FERGUSON, Plaintiff,
v.
CAROLYN COLVIN, Commissioner of Social Security, Defendant.

DECISION and ORDER

MICHAEL A. TELESCA, District Judge.

Plaintiff Bonita Rochelle Ferguson ("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. §§ 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 protectively filed an application for DIB on April 21, 2009, alleging an onset date of February 2, 2008, which later was amended to March 18, 2009. After the application was denied, Plaintiff appeared with counsel for a hearing before Administrative Law Judge William M. Weir ("the ALJ") on November 9, 2010. T.19-58.[2] The ALJ issued an unfavorable decision on March 25, 2011. T.7-18. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. This timely action filed.

III. Summary of the Administrative Record

A. Vocational and Non-Medical Evidence

Plaintiff was 43-years-old on the amended onset date, and had a high school education. Her past relevant work, beginning July 1993, was as a phlebotomist. This job entailed drawing blood, entering insurance information into the computer, and maintaining stock supplies, which sometimes required lifting objects weighing 50 pounds. T.134-35. On a typical day at work, she would walk for about 6½ hours and sit for about 2 hours. She stopped working as a phlebotomist on March 18, 2009, due to her lower back pain. T.118.

B. Medical Evidence Prior to the Onset Date

On February 5, 2008, Plaintiff presented to Dr. Eugene Gosy of Gosy & Associates Pain Treatment and Neurology for evaluation of lumbar pain due to facet arthropathy, the residuals of a slip-andfall injury sustained at work in April 2003. T.212-13. Plaintiff had been experiencing increasing spasms across her low back and was managing her pain with hydrocodone and Baclofen, which caused dysphoria and drowsiness. T.212. Facet blocks had been effective, but were wearing off. Plaintiff was still working full-time. T.212. Lumbar retroflexion deficit was present, but no frank spasm or trigger points were noted. T.212-13. Dr. Gosy diagnosed her with Pain Low Back/Lumbago (724.4)[3] and Backache, Unspecified (724.5). T.213. He assessed her disability level, for purposes of her Workers Compensation claim, at 33%. T.213.

Plaintiff was seen at Lifetime Health on February 21, 2008, by Nurse Practitioner Stacy Dean for exacerbated back pain. T.293. She was unable to perform a single squat and had tenderness over her lower lumbar region and right paraspinal region. She was to follow up with Pain Management and use compress applications and medications as prescribed.

Plaintiff was treated at Lifetime Health on April 1, 2003, for ongoing discomfort in her lower lumbar region with radiating pain into the hips. T.241. She reported that medication was providing moderate relief. Tenderness was noted in the lower lumbar region. T.241. Plaintiff was told to remain out of work for another week; the plan was to return on part-time status with limitations. T.242.

Plaintiff returned to see Dr. Gosy on May 29, 2008, with residual aching pain in the right buttock. T.214. She was continued on Hydrocodone and Skelaxin. Her disability remained 33%. T.215.

Dr. Gosy saw Plaintiff in follow-up on August 28, 2008 (T.216-17); November 20, 2008 (T.218-19); and December 29, 2008 (T.221-22). Diagnoses continued to be Pain Low Back/Lumbago and Backache, Unspecified. At the last appointment, straight leg raising ("SLR") and Patrick's test were positive on the right; SLR on the left resulted in pulling in low back and mild pain. T.222. Dr. Gosy requested authorization for aquatic therapy as an adjunct to her current regimen.

C. Medical Evidence After the Onset Date

On March 19, 2009, Plaintiff returned to Lifetime Health for mild to moderate back pain, radiating into the pelvis and hips. T.309. Plaintiff's chronic problems were listed as lumbago, major depressive disorder, hypertension, and joint pain (shoulder). T.309. Her primary care physician, Dr. Bhaskara Reddy, ordered an x-ray of her lower back.

When she returned to Lifetime Health on March 24, 2009, Plaintiff continued to have persistent, worsening back pain, at a greater severity than at her previous appointment. T.311. She had spasms, tenderness, and decreased mobility, and was taking Lortab and Flexeril. T.311.

Plaintiff saw Dr. Gosy on March 30, 2009, complaining of "significant escalation" in her pain (muscle spasms in her lumbar region) over the past 2 weeks. T.234. This had "significant[ly] decreas[ed]" her functional status, and she had been taken out of work for the past 2 weeks. Her primary care physician had prescribed Flexeril, but it was "virtually ineffective." T.234. An x-ray taken on March 19, 2009, revealed degenerative disc disease at L5-S1. T.234, 269 (x-ray report). Straightening of the lordotic curve was noted and thought to be due to muscle spasms. T.235. There was exquisite tenderness of the lower lumbar segments bilaterally, with positive SLR bilaterally and positive Patrick's test ...


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