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Talip v. Colvin

United States District Court, E.D. New York

September 12, 2014

CINDAMANNIE TALIP, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant.

OPINION AND ORDER

DORA L. IRIZARRY, District Judge.

On March 30, 2009, Plaintiff Cindamannie Talip ("Plaintiff") filed an application for Social Security disability insurance benefits ("DIB") and for Supplemental Security Income ("SSI") under the Social Security Act (the "Act"), alleging disability due to bulging discs in her spine, arising out of a March 31, 2008 work-related injury. ( See Certified Administrative Record ("R."), Dkt. Entry No. 26 at 104-08, 116.) On June 11, 2009, these applications were denied and Plaintiff requested a hearing. (R. 45-52.) On March 16, 2011, Plaintiff appeared with counsel and testified at a hearing before Administrative Law Judge David Nisnewitz (the "ALJ"). (R. 29-44.) At the hearing, Plaintiff's counsel indicated that Plaintiff sought benefits for a closed period of disability from March 31, 2008 to September 28, 2009, as Plaintiff returned to work on September 29, 2009. (R. 32-33.) By a decision dated April 5, 2011, the ALJ concluded Plaintiff was not disabled within the meaning of the Act. (R. 12-28.) On August 22, 2012, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (R. 1-5.)

Plaintiff filed the instant appeal seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. ยง 405(g). ( See Complaint ("Compl."), Dkt. Entry No. 1.) The Commissioner moved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking affirmance of the denial of benefits. ( See Mem. of Law in Supp. of Def.'s Mot. for J. on the Pleadings ("Def. Mem."), Dkt. Entry No. 21.) Plaintiff cross-moved for judgment on the pleadings, seeking reversal of the Commissioner's decision, or alternatively, remand. ( See Mem. of Law in Supp. of Pl.'s Mot. for J. on the Pleadings ("Pl. Mem."), Dkt. Entry No. 23.) For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is granted. Plaintiff's motion for judgment on the pleadings is denied and this appeal is dismissed.

BACKGROUND

A. Non-Medical and Self-Reported Evidence

Plaintiff was born in 1969[2] in Guyana, where she attended school through twelfth grade, but did not graduate from high school. (R. 31, 33-35, 104, 112, 121.) She can read, speak, and write English. (R. 115.) From 2006 to March 31, 2008, Plaintiff worked at a nursing home as a nursing assistant. (R. 33, 117, 167.) The physical demands of this position required lifting in excess of 100 pounds. (R. 117.) On March 31, 2008, Plaintiff injured her back while attempting to lift a patient, after which she temporarily ceased working. (R. 32.) She returned to work in March 2009, but was terminated as she was unable to perform the physical demands of her position. (R. 32, 37, 116, 227.)

In her application for DIB and SSI benefits, Plaintiff claimed that she had been unable to work since March 31, 2008, due to bulging discs in her back, which in turn caused a number of complications, including numbness in her legs and toes, back pain, and stiffness. (R. 116.) In a questionnaire dated May 15, 2009, Plaintiff indicated that she suffered from pain when lifting, standing, walking, sitting, and kneeling. (R. 143, 147.) To reduce these symptoms, she wore a corset and used a heating pad. (R. 148.) She had difficulty getting dressed and washing her back and lower body. (R. 139-40.) She prepared simple meals such as sandwiches, but required assistance from family members if she was in too much pain. (R. 140.) Plaintiff was unable to perform household chores. (R. 141.) Plaintiff shopped by telephone or mail order catalogues. (R. 142.) Plaintiff was able to pay bills and handle her finances. ( Id. ) Plaintiff traveled to Virginia by car to visit her sister during her closed period of disability. (R. 40.)

At the hearing, Plaintiff testified that she lived with her husband and two children, ages twelve years and three months. (R. 31-32.) On September 29, 2009, Plaintiff began working as a companion to an elderly patient. (R. 32-33.) This position was primarily sedentary work as her patient was bedridden and fed through a feeding tube. (R. 39.)

B. Medical Evidence

On April 1, 2008, Jatinder S. Bakshi, M.D., a neurologist, examined Plaintiff regarding her complaints of low back pain. (R. 178-80.) Dr. Bakshi noted "[s]evere paraspinal multiple areas of tenderness along the lumbar spine, especially at the lumbar L2-L5 level more so on both sides with paraspinal muscle spasm with restricted range of motion." (R. 179.) The range of motion for her lumbar spine was "severely restricted in all planes." ( Id. ) The straight leg raise test was negative. ( Id. ) Her deep tendon reflexes were at "2" for biceps, triceps, brachioradialis, patella, and Achilles. ( Id. ) Her gait was normal. ( Id. ) He diagnosed her with lumbago and muscle spasm. (R. 180.) He recommended physical therapy, trigger point injection therapy, and refraining from strenuous physical activities. ( Id. ) He prescribed Flexiril. ( Id. ) Her prognosis was guarded and Dr. Bakshi opined that Plaintiff was temporarily partially disabled. ( Id. )

On May 2, 2008, Dr. Bakshi examined Plaintiff and noted "moderate improvement." (R. 174-75.) He opined that Plaintiff was totally disabled and recommended an MRI to rule out disc herniation and bulging. (R. 175.) On June 4, 2008, Plaintiff underwent an MRI which revealed a posterior bulge at the L4-L5 level into the epidural fat abutting the anterior sac margin. (R. 203.) On June 6, 2008, Dr. Bakshi examined Plaintiff, finding normal muscle tone and bulk, with no evidence of atrophy. (R. 207.) The range of motion for her lumbar spine was moderately to severely restricted on all planes and the straight leg test was positive at 30 degrees bilaterally. ( Id. ) Dr. Bakshi noted diminished sensation to light touch of the bilateral L5-S1 root distrubtion. (R. 208.) Dr. Bakshi diagnosed Plaintiff with lumbar disc bulge at L4-L5, myofascial pain syndrome, and muscle spasm. ( Id. )

On July 8, 2008, Daniel Shapiro, M.D., a physiatrist, examined Plaintiff. (R. 176-77.) On examination, he noted moderate paraspinal tenderness along the lumbar spine, with muscle spasm, restricted range of motion on forward flexion, extension, and side-to-side bending. (R. 176.) The straight leg test was positive at 50 degrees on the right. ( Id. ) Her deep tendon reflexes were normal for all extremities and her gait was normal. (R. 177.) He noted that her prognosis was guarded and he opined that she was temporarily totally disabled. ( Id. )

On July 10, 2008, Sanford R. Wert, M.D., submitted a report regarding his July 9, 2008 examination of Plaintiff, which was requested by her employer's workers' compensation insurance carrier. (R. 186-89.) At that examination, Plaintiff complained of severe lumbosacral spinal pain with radiating and cramping of the legs. (R. 187.) Plaintiff walked independently with normal gait. ( Id. ) On examination, he found no tenderness or muscle spasm of the lumbosacral spine, and normal or slightly restricted ranges of motion. (R. 188.) He diagnosed Plaintiff with lumbosacral spine sprain and opined that Plaintiff was "capable of resuming full time normal employment with no restrictions or limitations." ( Id. )

On September 18, 2008, Nadlini Paddu, M.D., a physiatrist associated with Dr. Shapiro, examined Plaintiff. (R. 196-97.) Plaintiff complained of lower back pain radiating to her lower extremities, but noted that she was improving with physical therapy. (R. 196.) On examination, Dr. Paddu found tenderness and muscle spasm of the lumbosacral spine, as well as moderate restriction of the range of motion. ( Id. ) Straight leg raising was positive at 20 degrees on the right and 30 degrees on the left. ( Id. ) Dr. Paddu also found diminished motor strength of her bilateral ankle dorsi flexors and toe extensors musculature. ( Id. ) Dr. Paddu opined that she was temporarily totally disabled. (R. 197.) Dr. Shapiro reported essentially the same findings and opinions after his October 7, November 20, and December 16, 2008 examinations of Plaintiff. (R. 194-95, 215-18.)

On October 22, 2008, Panagiotis Zenetos, M.D., examined Plaintiff. (R. 242-44.) Plaintiff complained of pain in her back, right buttock, right thigh, and right leg, as well as numbness and weakness. (R. 242.) She told him that she was unable to lift or carry anything, walk more than one-quarter of a mile, and sit or stand for more than 30 minutes. ( Id. ) Motor power was 4/5 in the triceps, triceps and shoulder adductors and abductors bilaterally, and the left foot inverters, everters, and dorsiflexors. (R. 243.) Her patellar reflexes were 2, with all other reflexes at 1. ( Id. ) Her lumbar ranges of motion were decreased. ( Id. ) Her straight leg test was abnormal with radiating pain at 50 degrees. ( Id. ) He diagnosed her with lumbosacral spondylosis without myelopathy, and cervical and lumbar radiculopathy. ( Id. ) Dr. Zenetos scheduled Plaintiff for epidural steroid injections ( id. ), which he administered on November 19, 2008. (R. 244.)

On January 6, 2009, Dr. Shapiro examined Plaintiff, noted that she was "improving with physical therapy, " and opined that she had a "permanent partial moderate disability." (R. 219-20.) On examination, he found tenderness and muscle spasm of the lumbosacral spine, moderate restriction of the range of motion for the lumbar spine, and diminished sensation to light touch in the right toe. (R. 219.) Dr. Shapiro reported essentially the same findings and opinions after his February 6, 2009 examination of Plaintiff. (R. 221-22.) Notably, he indicated that Plaintiff was a "good candidate for vocational rehabilitation. (R. 221.)

On February 26, 2009, A. Sohal, M.D., conducted an independent medical examination of Plaintiff in connection with her application for workers' compensation benefits. (R. 182-85.) On examination, Dr. Sohal found no tenderness or spasm in Plaintiff's cervical spine, normal range of motion, and full range of motion with normal sensory, motor and reflexes in Plaintiff's upper extremities. (R. 184.) He found that Plaintiff's lumbosacral spinal region showed tenderness with some spasm. ( Id. ) Straight leg raising in the supine position was barely 25 degrees bilaterally, and in the sitting position, 70 degrees. ( Id. ) Lumbar flexion was 30 degrees and extension was 10 degrees. ( Id. ) Her knee and ankle reflexes were 2/4. ( Id. ) Her gait was normal but slow. ( Id. ) He diagnosed her with lumbosacral sprain and strain, L4-L5 disc bulge, resolving. ( Id. ) On March 12, 2009, Dr. Sohal submitted an addendum to his February 26 report opining that Plaintiff suffered from a mild partial disability of the lumbar spine. (R. 181.)

On March 10, 2009, Dr. Shapiro examined Plaintiff. (R. 190-91.) Plaintiff complained of lower back pain radiating to her lower extremities, and numbness in her right toes, as well as mid-thoracic pain. (R. 190.) On examination, he found tenderness and muscle spasm of the lumbosacral spine, as well as moderate restriction of the range of motion. ( Id. ) He also found tenderness to the thoracic lumbar spine with associated muscle weakness. ( Id ) He diagnosed her with lumbar disc bulge L4-L5 and muscle spasm. (R. 191.) He opined that Plaintiff had a partial moderate disability and recommended vocational rehabilitation. (R. 190.) On April 10, 2009, Dr. Shapiro examined Plaintiff and reported similar findings. (R. 198-99.) Notably, Dr. Shapiro opined that Plaintiff could return to light duty work on a part time basis. (R. 199.) Specifically, he noted that she could work four hours per day, two to three days per week, and was limited to lifting and carrying no more than four pounds. (R. 113.)

On May 4, 2009, Dr. Sohol conducted an independent re-examination of Plaintiff in connection with her application for workers' compensation benefits. (R. 248-50.) On examination, Dr. Sohol reported that Plaintiff's cervical spine was not tender and that both upper extremities had functional ranges of motion. (R. 249.) Her lumbar spine was tender, with spasm. (R. 250.) Straight leg raising in the supine position was 30 degrees. ( Id. ) Lumbar flexion was approximately 30 degrees and extension was 5 degrees. ( Id. ) She could not stand on her heels or toes. ( Id. ) Her knee and ankle reflexes were 1-. ( Id. ) He diagnosed her with low back pain with right-side radiculopathy. ( Id. ) He noted that she "seems like she is subjectively and objectively worse than the last visit, " recommended physical therapy, and opined that she was unable to work as a nursing assistant. ( Id. )

Dr. Shapiro submitted a partial report for his May 14, 2009 examination of Plaintiff, which indicated that she had moderate lumbar paraspinal tenderness and moderate restricted motion. (R. 206.) Reflexes were 2 on the left and sluggish on the right side. ( Id. ) Plaintiff had ...


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