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Stokes v. Commissioner of Social Security

United States District Court, N.D. New York

September 2, 2014



LAWRENCE E. KAHN, District Judge.


Before the Court is an action for judicial review of the Commissioner of the Social Security Administration's ("SSA") decision denying Plaintiff Jacquon M. Stokes's ("Plaintiff") application for Supplemental Security Income ("SSI") benefits. Both parties have filed briefs. Dkt. Nos. 14 ("Plaintiff's Brief"); 21 ("Defendant's Brief"). For the reasons discussed below, the Court affirms the Commissioner's decision.


Plaintiff was twenty-seven years old at the time his application was denied on February 10, 2010. Dkt. No. 10-3 at 3. He alleges disability beginning October 1, 2000, due to diabetes, heart murmur, asthma, herniated disc, sciatic nerve conditions, and high blood pressure. Dkt. No. 10-6 at 7. He states that the above-mentioned illnesses and conditions resulted in back pain, lack of mobility, frequent colds, stomach viruses, and lumbosacryl strain-a torn muscle in the lower back. Id . Plaintiff worked up until the date the illnesses and conditions interfered with his ability to work, and he did not engage in work thereafter. Id . He was terminated from his last employment position on September 15, 2009. Id . Plaintiff reports past work as a cook, cleaner, waiter, and loading dock worker. Id. at 8.

A. Medical History

On April 18, 2002, Plaintiff was transported by ambulance to the Upstate Medical University Department of Emergency Medicine due to vomiting. Dkt. No. 10-8 at 72. While there, Plaintiff developed excruciating right upper quadrant pain which he described as a "ten out of ten." Id. at 68. During the examination with George J. Ang, M.D., Plaintiff was asked to stand up to stretch, but when he did, he had a syncopal episode with loss of postural tone followed by a spontaneous recovery. Id . On April 20, 2002, Plaintiff was discharged and started on insulin. Id. at 70. His discharge diagnosis included "new-onset diabetes mellitus type 2." Id. at 68.

On May 14, 2002, Plaintiff visited Roberto E. Izquierdo, M.D., at the Joslin Diabetes Center ("Center"). Id. at 67. Dr. Izquierdo opined that Plaintiff's medical history and physical information were consistent with type 2 diabetes mellitus. Id . The diagnosis also included dyslipidemia. Id.

Four years later, on December 21, 2006, Plaintiff returned to the Center and met with Steven V. Zygmont, M.D. Id. at 60. Dr. Zygmont reported that Plaintiff had not followed up with any doctors for his diabetes since his first visit at the Center in 2002. Id . Plaintiff stated that he had run out of insulin and had not been using it for the past year. Id . Dr. Zygmont asked the Center's social worker to speak to Plaintiff about obtaining his medication and to help him apply for Medicaid. Id. at 61. Plaintiff was prescribed insulin and given supplies, such as insulin syringes, test strips, and a glucometer. Id . He was also instructed to follow up with a diabetes educator in one month, and to return to the clinic in four months. Id.

On October 16, 2009, Plaintiff entered the emergency room of Crouse Hospital, complaining of a possible "diabetic problem." Dkt. No. 10-7 at 108. Plaintiff was seen by Mike Kupiec, N.P., and "Dr. Rachfal." Id . Plaintiff reported that he had not taken insulin for over a year and in the last year had lost over 100 pounds. Id . Plaintiff also reported experiencing lower back pain that radiated from his lumbar area to his hips, but he was able to get up and move around without any obvious difficulty. Id. at 108-09. Nurse Kupiec noted that the low back pain was "somewhat consistent with sciatica." Id . Plaintiff was given Lortab for his pain, and insulin and Glucophage for his diabetes. Id . Plaintiff did not have insurance at the time and was instructed to apply for Medicaid. Id.

On November 25, 2009, Plaintiff was treated by Eric Morley, M.D., at the emergency department of Upstate Medical University. Dkt. No. 10-8 at 54. Plaintiff stated that he was diabetic and had gotten "dizzy at the top of some stairs" and fallen down, injuring himself. Id . Plaintiff complained of pain in his lower back and hips, as well as mild abdominal pain. Id . Upon physical examination, Plaintiff complained of pain with stress to the pelvis and mild hip tenderness bilaterally. Id. at 54-55. CT scans of Plaintiff's neck and lumbar spine revealed mild degenerative changes at the upper thoracic spine level, as well as anterior wedging of the first lumbar vertebra of indeterminate age. Id . Dr. Morley's overall impression of Plaintiff's circumstances was that of a post-fall status with lumbar strain. Id . Plaintiff was treated with Daypro, Lortab, and Flexeril, and referred to Upstate Connect for further care. Id.

On December 30, 2009, Plaintiff visited Community General Hospital, complaining of back pain. Dkt. No. 10-7 at 113. Irene O. Werner, M.D., noted that she reviewed Plaintiff's previous MRI report, which showed normal results. Id . Plaintiff was treated with Valium and Percocet. Id . Dr. Werner reported that Plaintiff was "somewhat laughing and silly, " and that he was in a hurry to leave. Id. at 114.

On January 29, 2010, Plaintiff was referred by the Division of Disability Determination to undergo an internal medicine examination by Richard Weiskopf, M.D. Dkt. No. 10-7 at 128. Plaintiff was referred for complaints of diabetes, heart murmur, sciatic condition, and high blood pressure. Id . During the exam, Plaintiff complained of back pain. Id. at 130. Dr. Weiskopf noted that Plaintiff exhibited no acute distress, was able to walk on heels to some degree but could not walk on toes, and was unable to squat. Id . Plaintiff's stance was normal. Id . He did not need any assistive devices or help changing clothes for the exam or getting on and off the exam table. Id . He was also able to rise from his chair without difficulty. Id . Plaintiff reported being able to do light cooking as well as to shower and dress himself. Id. at 129. He stated that his girlfriend does the cleaning, laundry, and shopping, as he is unable to do the required lifting. Id . Reporting on his activities of daily living ("ADL"), Plaintiff stated that he watches television, listens to the radio, and socializes with friends. Id . Dr. Weiskopf's musculoskeletal examination revealed "definite tenderness" over Plaintiff's right sacroiliac area. Id. at 130. The rest of Plaintiff's exam was normal. Id . Dr. Weiskopf provided a medical source statement indicating that Plaintiff had no limitation sitting, but had a mild limitation on standing and walking. Id. at 131. Further, Plaintiff had a moderate to severe limitation on bending, lifting, climbing, and carrying. Id . He had, however, good use of his hands regarding strength and fine motor activities. Id . Dr. Weiskopf's diagnoses included diabetes mellitus, chronic low back pain with right sciatic pain distribution, upper back pain, asthma, and a history of heart murmur. Id.

On February 4, 2010, Plaintiff was treated at Upstate Medical University by Lauren Pipas, M.D. Dkt. No. 10-8 at 45. Plaintiff complained of lower back pain. Id . Plaintiff was given Zofran, Lortab for pain control, and metformin for diabetes. Id. at 46. Plaintiff remained hypertensive during the examination, and reported that he should be taking a medication for hypertension, but was unsure what it was. Id . Plaintiff was strongly advised to follow up to get his diabetes and high blood pressure under control. Id.

On February 9, 2010, Plaintiff was treated by Karthikeyan Sitaraman, M.D., at Upstate University Hospital. Dkt. No. 10-8 at 47. Plaintiff reported chest pain, syncope, and back pain. Id . The previous morning, Plaintiff had begun experiencing severe back pain; as he could not sleep due to the pain, he began pacing around his room, at which point he experienced sharp chest pain. Id . Afterward, he felt lightheaded and found himself falling to the floor. Id . Plaintiff reported that he had not visited a primary care physician for approximately one year, had not received any regular physician follow up for his diabetes, and was not taking any medication to control his hypertension. Id. at 47-48. Plaintiff was prescribed Lisinopril for his blood pressure and a Lidoderm patch for his back pain. Id. at 49.

On February 11, 2010, Plaintiff was seen by Antonio Culebras, M.D., at Upstate Medical University for an evaluation of Plaintiff's back pain. Id. at 29. Dr. Culebras noted that a recent MRI of the lumbosacral spine without contrast did not demonstrate any cauda equina syndrome, radiculopathy, or myelopathy. Id. at 30. Dr. Culebras noted that there was no objective evidence of any neurological deficit with regards to Plaintiff's back pain. Id . He noted that the intractable back pain was most likely of musculoskeletal etiology or due to neuropathy, but without any objective findings, Dr. Culebras found this very unlikely. Id . Symptomatic management was recommended, with either Lyrica or gabapentin. Id . In addition, Plaintiff's urinalysis test was positive for cocaine, opioids, benzodiazepines, and cannabinoids. Id.

On March 10, 2010, Plaintiff was treated for high blood pressure by Anthony M. DiRubbo, M.D., at Upstate Medical University. Id. at 19. Plaintiff also reported having a severe headache and back pain. Id . Plaintiff reported that gabapentin was not helping his pain, which he described as a "ten out of ten." Id . Plaintiff was admitted to the hospital for observation and management of his hypertension, and was discharged on March 11, 2010. Id. at 16, 20. His discharge diagnoses by Peter J. Conkright, M.D., included hypertensive urgency and diabetes mellitus. Id.

On June 7, 2010, Plaintiff was seen by Dr. Zygmont for a follow-up visit at the Joslin Diabetes Center. Id. at 12. During this visit, Dr. Zygmont noted that Plaintiff's intractable back pain caused him to be unable to sit through the exam. Id. at 13. Dr. Zygmont noted that Plaintiff ran out of Naprosyn, stopped taking Protonix, lost his glucometer, and did not follow up with the department of Neurology at the University Hospital. Id. at 12. Plaintiff also failed to take his hypertension medication the day of the appointment. Id. at 13. Dr. Zygmont refilled Plaintiff's prescriptions of Naprosyn and Protonix, and gave Plaintiff a prescription for thirty tablets of hydrocodone APAP to help relieve some of his pain until it could be investigated further. Id.

On June 12, 2010, Plaintiff visited Jay M. Brenner, M.D., at Upstate Medical University's Emergency Department complaining of back pain. Id. at 7. Plaintiff compared the pain to being poked with hot needles. Id . Dr. Brenner noted that on examination, Plaintiff was tender to palpation of the thoracic and lumbar spinous processes, beginning at the level of T9-T10 and extending all the way down through his lumbar spine. Id. at 8. Dr. Brenner noted that the most likely diagnosis was some form of sciatica that had recently been exacerbated. Id. at 9. Plaintiff was prescribed Lortab and Valium. Id.

On July 13, 2010, Plaintiff was evaluated by Aaron M. Dombeck, M.S.P.T. ("Dombeck"), at Community General Physical Therapy ("CGPT"). Id. at 92. On examination, Plaintiff's posture was noted to be fair, and he had a loss of lumbar range of motion of 85% in flexion, 40% in extension, 75% in rotation to both the left and right side, and 80% in left side bending. Id . Dombeck planned to see Plaintiff two to three times per week for the next four weeks for treatments, including ultrasound, range of motion exercises, traction, McKenzie exercises, postural education, trunk strengthening, electronic stimulation, and ice. Id. at 93.

On July 28, 2010, Plaintiff was treated at CGPT by Vicki Overend, P.T.A. ("Overend"). Id. at 91. Plaintiff's lumbar range of motion was limited to 50% in flexion, and straight leg raise ("SLR") tests were positive bilaterally.[1] Id . According to Overend, Plaintiff's functional limitations prevented him from doing any activities without significant pain. Id . Pain medications and mechanical traction provided minimal, temporary pain reduction. Id.

On August 18, 2010, Plaintiff was treated at Upstate Comprehensive Pain Medicine by P. Sebastian Thomas, M.D., and Jasbir Dahliwal, M.D. Id. at 85. Plaintiff reported a history of chronic middle and lower back pain associated with bilateral lower extremity numbness and tingling. Id . Plaintiff stated that he had started having anterior right thigh pain radiating down to his toes in the past year. Id . He reported that his back pain had started as lower back pain and progressed to the middle back. Id . Plaintiff reported trying physical therapy in the past with no relief. Id . A musculoskeletal examination revealed a limited range of motion of the lumbar spine in all planes and tenderness to palpation of the midline upper and lower lumbar spine and the right sacroiliac ("SI") joint. Id. at 86. Dr. Dhaliwal assessed the lumbar disc degeneration as deteriorated; lumbar/thoracic radiculopathy as deteriorated; facet arthropathy as deteriorated; and diabetic neuropathy as unchanged. Id. at 87. Plaintiff was prescribed Methadone and Amitriptyline. Id.

On August 30, 2010, Plaintiff was treated at CGPT by Overend. Id. at 90. Plaintiff complained of upper and lower back pain and pain in both legs. Id . Plaintiff's functional limitations were described as: ambulation tolerance of about five minutes; some increased activity with pain medication, although its effectiveness had faded over the preceding few days; sitting tolerance of ten to fifteen minutes; and difficulty with stairs (one step at a time). Id . It was noted that, while Plaintiff's sleep had improved with medication, he was still waking up six times per night. Id . Continued physical therapy was recommended. Id.

On October 13, 2010, Plaintiff was again treated at CGTP by Overend. Id. at 89. Plaintiff's lumbar spinal range of motion was noted as 25% in flexion and extension. Id . SLR tests were positive in both legs at 45 degrees and tests for SI instability were also positive. Id . Plaintiff's functional limitations were described as "difficulties with all ADL's (bending, lifting), very antalgic gait pattern, [and] only sleeping with [medication]." Id.

On October 14, 2010, Plaintiff was treated at Upstate Comprehensive Pain Medicine by Phyllis Bazen, NP. Id. at 79. It was noted that Plaintiff's pain had improved slightly with medication and that he was sleeping better with Cymbalta and Amitriptyline. Id . Plaintiff described the pain as, at worse, "an eight on a scale of ten, " and "at least, a two." Id . At the time, he rated his pain at four. Id . It was reported that the pain did not prevent Plaintiff from taking part in social and recreational activities. Id . It was also ...

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