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Higgins v. Colvin

United States District Court, N.D. New York

August 14, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


LAWRENCE E. KAHN, District Judge.


This case has proceeded in accordance with General Order 18, which sets forth the procedures to be followed in appealing a denial of Social Security benefits. Both parties have filed briefs. Dkt. Nos. 13 ("Plaintiff's Brief"); 14 ("Defendant's Brief"). For the following reasons, the judgment of the Social Security Administration ("SSA") is vacated, and the case is remanded for further proceedings consistent with this Memorandum-Decision and Order.


A. Plaintiff's Medical Records

On June 16, 2008, the alleged onset date of Plaintiff Maria Higgins's ("Plaintiff") disability, Plaintiff injured the left side of her neck. Dkt. No. 9 ("Record") at 42, 372.[1] According to medical records, "[s]he was lifting, pushing, and pulling at work... when it happened." Id. at 372. On July 16, 2008, Plaintiff also injured the right side of her neck while "lifting a heavy object at work." Id. at 42. Plaintiff reported that both incidents contributed to her ultimate injury. Id. at 43. Plaintiff did not return to work after July 16, 2008. Id. at 42.

On June 18, 2008, Radiologist Bernard N. Raasch reviewed Plaintiff's x-rays and found "[m]arked degenerative changes at C5-C[6][2] and C6-C7 with mildly decreased disc spaces and large interior spurs." Id. at 375. Dr. Raasch noted the existence of small posterior spurs, mild retrolisthesis, and reversal of normal cervical lordosis. Id . On July 3, 2008, Plaintiff received treatment from Dr. Ethan Flaks at North Medical Center Family Physicians. Id. at 285. After diagnosing Plaintiff with cervical radiculopathy, Dr. Flaks prescribed Flexeril and Ibuprofen. Id.

Plaintiff saw Dr. John Cambareri three times in July 2008 at Syracuse Orthopedic Specialists ("SOS"). Id. at 360, 364, 371. On July 17, 2008, Plaintiff reported experiencing moderate knife-like and burning pain in the posterior and left side of the neck and shoulder that was worsened with activity, lifting, and reaching. Id. at 371. Dr. Cambareri identified moderate global loss of motion in Plaintiff's neck and tenderness to palpation of the left and right paravertebral muscles. Id. at 373. He diagnosed Plaintiff with cervical sprain, cervical radiculopathy, and cervical spasm. Id. at 374. Dr. Cambareri also reviewed Plaintiff's x-rays and found that she had "advanced degenerative disc disease at C5-6 and at C6-7 with decreased disc spaces, spurs and foraminal narrowing at both levels, " along with retrolisthesis. Id . Plaintiff returned on July 24, 2008 with pain in the right shoulder and arm area, cervical spine, and lumbar spine. Id. at 364. Plaintiff's radiographs showed narrowing at C5-6 with anterior spurs, a decrease in cervical lordosis, some narrowing at C6-7, and "fairly significant degenerative facet disease at L5-S1 bilaterally with spurs throughout the LS spine." Id. at 369. On July 31, 2008, Plaintiff again sought treatment from for pain in her bilateral shoulder and arm area, cervical spine, and lumbar spine. Id. at 360. Plaintiff also reported tingling in her left hand and forearm. Id.

Dr. Cambareri recommended physical therapy. Id. at 363, 368, 374. Plaintiff participated in thirty-eight physical therapy sessions for neck and shoulder pain at West Side Physical & Aquatic Therapy, P.C., from July 29, 2008, to December 8, 2008. Id. at 291-312. On December 8, 2008, James A. Gauthier, PTA, advised that Plaintiff continue with therapy. Id.

Dr. Cambareri also referred Plaintiff to radiologist John Van Slyke for an MRI of her cervical spine. Id. at 376. Dr. Van Slyke found "moderately advanced degenerative disc disease [at] C5-6 and C6-7" and "only minimal degenerative disease throughout the remainder of the cervical spine." Id . He also diagnosed Plaintiff with "mild posterior osteophyte/disc complex mildly narrowing the spinal canal but not causing cord or nerve root compression." Id . Dr. Cambareri noted his agreement with Dr. Van Slyke's report on August 12, 2008. Id. at 358.

Dr. Cambareri treated Plaintiff twice more before December 2008. Id. at 345, 350. On September 23, 2008, Plaintiff complained of bilateral pain in her shoulder, arm area, and cervical spine, and numbness of her upper extremities. Id. at 350. Plaintiff categorized the pain level as mild, and Dr. Cambareri noted that Plaintiff's condition seemed to be improving. Id . However, Plaintiff continued to experience moderate global loss of motion in her neck. Id. at 352. Dr. Cambareri assessed Plaintiff as having a cervical sprain, cervical radiculopathy, and paresthesia and numbness in the upper extremities. Id . On November 4, 2008, Plaintiff saw Dr. Cambareri again with additional complaints regarding her shoulder, neck, and wrists. Id. at 345. The pain's severity remained mild, and Plaintiff's progression remained steady.

Plaintiff saw Dr. David R. Reich on December 4, 2008, to determine whether she had carpal tunnel syndrome ("CTS"). Id. at 462. Dr. Reich's tests indicated that Plaintiff had "mild to minimal left-sided CTS, and borderline (perhaps nascent) [CTS] on the right side." Id. at 464. Accordingly, Dr. Reich suggested nocturnal braces and additional testing in three to four months. Id . Plaintiff saw Dr. Cambareri on December 9, 2008, for an evaluation of Dr. Reich's testing and examination. Id. at 341. In addition to cervical sprain and cervical radiculopathy, Dr. Cambareri diagnosed Plaintiff with bilateral CTS. Id. at 344. Dr. Cambareri recommended that Plaintiff discontinue physical therapy, wear wrist braces, and see Dr. Rina Davis for another opinion. Id.

On December 18, 2008, Dr. Rina C. Davis treated Plaintiff at New York Pain Center to evaluate Plaintiff's neck, shoulder, and arm pain. Id. at 381. Plaintiff described burning pain in her shoulders, stabbing pain in her neck, and dull pain in her wrist. Id . Plaintiff stated that the pain was constant and exacerbated by reading, driving, and household activities. Id . The reported severity of pain varied; on a good day, and with use of pain medication, it rated a two on a ten point scale, and six on a bad day. Id . On the day of her appointment with Dr. Davis, Plaintiff rated the pain as a two. Id . Plaintiff reported no change in symptoms after wearing the braces Dr. Cambareri had suggested. Id . Dr. Davis's physical examination revealed a mildly tender "palpable trigger point in her right middle trapezius" and a decreased range for right rotation in Plaintiff's neck. Id. at 382. Dr. Davis diagnosed cervical degenerative disc disease and CTS, and sought authorization for a cervical interlaminer nerve block. Id. at 383. As Dr. Davis recommended, Plaintiff continued physical therapy and attended Fitness Forum Physical Therapy from January 13, 2009, to August 8, 2009. Id. at 470-86.

Between January 2009, and May 2009, Plaintiff had several appointments with Drs. Davis and Cambareri. Id. at 318, 325, 329, 333, 337, 465. Plaintiff underwent the first scheduled nerve block, but declined to continue with further blocks after the first produced headaches and provided no benefit. Id. at 318, 332.

At the request of Dr. Cambareri, Plaintiff then went to SOS to see Dr. Thomas Haher on June 17, 2009. Id. at 435. Plaintiff reported neck and bilateral shoulder pain radiating into the upper extremities, bilateral wrist pain, and paresthesia in her hands and fingers. Id . Dr. Haher diagnosed Plaintiff with neck pain and noted that her MRI showed "discogenic disease at 5-6 and 6-7." Id. at 437.

On July 27, 2009, Dr. Cambareri noted that Plaintiff's pain level had decreased since participating in physical therapy and, generally, "the progression of the problem seems to be getting better." Id. at 431. Plaintiff's neck exam revealed tenderness to palpation of the left and right paravertebral muscles, as well as a mild spasm in the left and right paravertebral muscles. Id. at 433. According to Dr. Cambareri, Plaintiff "can lift very occasionally up to five pounds and carry up to five pounds occasionally. She may occasionally crawl but not climb or reach above shoulder height. She may bend and squat frequently. She can push and pull but not continuously. She may do simple grasping and fine manipulation." Id. at 434.

After Plaintiff completed her application for disability benefits, the SSA's Division of Disability Determination referred Plaintiff to Dr. Kalyani Ganesh for an orthopedic examination. Id. at 385. Dr. Ganesh noted cervical pain and "tenderness in the right trapezius and right paravertebral muscles or paravertebral spine." Id. at 386. Dr. Ganesh concluded that Plaintiff had a history of chronic neck pain, mild carpal tunnel on the left wrist, and a pinched nerve. Id. at 387. According to Dr. Ganesh, Plaintiff had "[n]o gross limitation sitting, standing, or walking. Mild to moderate limitation lifting, carrying, pushing, and pulling." Id.

On September 4, 2009, S. Putcha with the State agency undertook a physical residual functional capacity ("RFC") assessment of Plaintiff. Id. at 388-93. The assessment indicated that Plaintiff could: occasionally lift and/or carry twenty pounds; frequently lift and/or carry ten pounds; stand and/or walk (with normal breaks) for a total of about six hours in an eight hour workday; sit (with normal breaks) for a total of about six hours in an eight hour workday; and push and/or pull with no additional restrictions. Id. at 389. Consultant Putcha stated Plaintiff's "complaints are related to medically determinable impairments, but not to the extent given and they are considered partially credible." Id. at 391-92.

Dr. Cambareri examined Plaintiff again on September 8, 2009, and November 10, 2009, for pain in her cervical spine. Id. at 423, 427. At both appointments, Dr. Cambareri noted Plaintiff's "problem seem[ed] to be getting better." Id. at 423, 427. Still, Dr. Cambareri's neck examinations revealed tenderness to palpation of the left and right paravertebral muscles. Id. at 425, 429. In September 2009, Dr. Cambareri found no spasm in the neck, and Plaintiff did not mention a spasm in November 2009. Id. at 425, 429. On November 10, 2009, Dr. Cambareri described Plaintiff's pain as "consistent with the history of the injury." Id. at 426. In November 2009, Plaintiff began to undergo physical therapy two to three times per week at Community General Hospital, and continued until May 2010. Id. at 495-501.

On December 22, 2009, Dr. Cambareri treated Plaintiff for pain in her cervical spine and her bilateral CTS. Id. at 419, 422. Dr. Cambareri's notes explain that Plaintiff had double-crush syndrome as a result of pinched nerves in the neck and an element of pinched nerves at the carpal canal bilaterally. Id . Dr. Cambareri believed Plaintiff's "bilateral [CTS] is the direct result of the injury to the neck which was a direct result of the injury that occurred at work on [June 16, 2008]." Id.

Michael L. Boucher, Ph.D., performed a psychological evaluation of Plaintiff on January 26, 2010, after a referral by New York State Vocational and Educational Services for Individuals with Disability ("VESID"). Id. at 488. Dr. Boucher's tests showed that Plaintiff suffered from Mathematics Disorder and Attention Deficit Hyperactivity Disorder (ADHD), Predominantly Inattentive Type. Id. at 491. Dr. Boucher believed the Plaintiff could succeed in a technical ...

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