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Ausman v. Colvin

United States District Court, N.D. New York

October 9, 2014

JACK L. AUSMAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

HOWARD D. OLINKSY, ESQ., OLINSKY LAW GROUP, Syracuse, New York, Attorneys for Plaintiff.

EMILY M. FISHMAN, ESQ., SOCIAL SECURITY ADMINISTRATION, Office of General Counsel, New York, New York, Attorneys for Defendant.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

On April 28, 2009, Plaintiff filed an application for supplemental security income ("SSI"). See Administrative Record ("R.") at 120, 245. On June 20, 2009, Plaintiff's claim was initially denied and, after a hearing, the claim was denied by an Administrative Law Judge ("ALJ") on August 23, 2010. See id. at 54, 138-45. On August 19, 2011, the Appeals Council remanded the matter back to an ALJ. See id. at 150-54. After another hearing, the ALJ denied Plaintiff's application. See id. at 16-29.

Currently before the Court are the parties' cross-motions for judgment on the pleadings. See Dkt. Nos. 11, 13.

II. BACKGROUND

On the application date of April 28, 2009, Plaintiff was thirty-nine years old. See R. at 245. Plaintiff reported an eleventh grade education and past work as a food preparer/cook, farm laborer, gas station attendant, and groundskeeper. See id. at 84, 297.

On July 1, 2008, Plaintiff treated with Brian J. Berry, RPA ("P.A. Berry"), and Rudolph A. Buckley, M.D., at Slocum-Dickson Medical Group for an orthopedic consultation related to his left lower lumbar pain. See id. at 372. They noted an MRI of the lumbar spine revealed "decreased T2 signal L4 to S1, significant narrowing L5-S1 interspace. Mild central disk bulge L5-S1. Mild facet disease L4 to S1." Id. at 373. Their impression was "long-standing repetitive low back pain left-sided. Discogenic changes as probable cause for pain L4 to S1. SI joint dysfunction with tenderness. Motor weakness appears to be secondary to poor effort from pain." Id. Dr. Buckley and P.A. Berry planned for Plaintiff to undergo physical therapy and continue on hydrocodone, Flexeril, Cymbalta, Prilosec, and Lunesta. See id. at 372-73. If Plaintiff's symptoms were unrelieved, they stated that he would be a candidate for surgical intervention. See id. at 373.

On November 14, 2008, a discharge summary from Physical Therapist Shannon Sullivan, MSPT, indicated Plaintiff had undergone eight sessions of physical therapy between July 18, 2008 and September 22, 2008. See id. at 392-93. Physical Therapist Sullivan noted Plaintiff's progress as "unresolved L4-S1 [degenerative disc disease]." Id.

On December 2, 2008, Plaintiff treated with Sajid A. Khan, M.D., at Slocum-Dickson Medical Group per the referral of Dr. Buckley for severe low back pain. See id. at 369. Plaintiff reported his pain radiated to his left leg, caused numbness and weakness in both legs, and worsened with all movements including bending, twisting, and walking. See id. at 369. Plaintiff reported that he could comfortably sit for thirty minutes at a time, comfortably stand for fifteen minutes at a time, and that he could not bend or twist. See id. On examination, Dr. Khan found that Plaintiff ambulated with an obvious limp favoring the left leg because of back pain. See id. at 370. Patrick's test[1] revealed pain at the lower lumbar spine area. See id. The lumbar facet loading test was positive bilaterally. See id. Dr. Khan diagnosed Plaintiff with lumbar radiculopathy, lumbar spondylosis, lumbar facet arthropathy, and left SI joint arthropathy. See id. Dr. Khan scheduled Plaintiff for lumbar epidural steroid injections for low back pain. See id. Plaintiff underwent injections on December 15, 2008, December 29, 2008, February 17, 2009 and April 9, 2009. See id. at 376, 381, 384, 388.

On December 23, 2008, Plaintiff treated with Shafi Raza, M.D., Plaintiff's primary care physician at Family Medicine for follow-up on his chronic back pain, insomnia, and depression. See id. at 364, 532. On examination, Dr. Raza found Plaintiff sitting on the bed with mild distress. See id. at 532. There was tenderness of the left side of the lumbar side, and paraspinous was positive on the left side. See id. at 533. The straight leg raise test was positive on both sides. See id. Dr. Raza diagnosed Plaintiff with chronic back pain for which he prescribed Vicodin, Flexeril, and Lyrica. See id. at 553. Dr. Raza also prescribed Plaintiff Lunesta for insomnia. See id.

On February 13, 2009, Plaintiff treated with Dr. Khan for severe low back pain that he described as constant, sharp, grinding, stabbing and an eight out of ten on the pain scale with radiation to the left leg. See id. at 364. Plaintiff reported the epidural steroid injections had worked for a few days but the pain would come back. See id. Dr. Khan noted that Plaintiff had been walking with a cane and antalgic gait. See id. Dr. Khan's examination findings were the same as Plaintiff's treatment from December 2, 2008, except Dr. Khan additionally found that Plaintiff had "moderate to severe tenderness of lumbar paraspinal muscles and left SI joint. See id. at 365. Dr. Khan diagnosed Plaintiff with lumbar radiculopathy, lumbar spondylosis, lumbar facet arthropathy, and possible left SI joint arthropathy. See id. Dr. Khan noted that he would try another series of epidural steroid injections for pain in the back and leg, and referred him to Dr. Buckley for surgical options. See id.

On March 13, 2009, Plaintiff treated with Dr. Khan for severe low back pain. See id. at 361. Plaintiff reported difficulty walking and standing due to lumbosacral junction pain. See id. Dr. Khan noted that Plaintiff's primary care physician Dr. Raza had prescribed Plaintiff Cymbalta for depression and pain medications (hydrocodone and Flexeril) which Plaintiff claimed did not provide satisfactory relief of his back pain. See id. at 362. Dr. Khan diagnosed Plaintiff with lumbar facet arthropathy, lumbar radiculopathy, lumbar spondylosis, and left SI joint arthropathy. See id. Dr. Khan recommended Plaintiff undergo diagnostic lumbar medial branch blocks to see if the pain was caused by lumbar facet arthropathy. See id.

On May 6, 2009, Plaintiff treated with Dr. Khan for low back pain that radiated to his left leg. See id. at 503. Plaintiff reported that neither the diagnostic medial branch blocks nor the lumbar epidural steroid injections provided him satisfactory relief of back and leg pain. See id. Plaintiff further reported that his pain medications were not helping him. See id. Dr. Khan noted that Plaintiff continued to walk with a cane and noted a limp. See id. at 503-04. On examination, Dr. Khan found that Plaintiff was unable to heel and toe walk due to pain. See id. at 504. There was moderate to severe superficial tenderness of the lumbar paraspinal muscles and gluteal muscles. See id. Range of motion in the lumbar spine was limited in flexion, extension, lateral bending and rotation due to pain. See id. The Patrick's test revealed pain at the lower lumbar spine area and the lumbar facet loading test was positive bilaterally. See id. Dr. Khan noted an MRI revealed "decreased T2 signal L5 to S1 with associated facet disease. Small disk herniation L5-S1 minimally touching the left S1 nerve root." Id. Dr. Khan diagnosed Plaintiff with lumbar facet arthropathy, lumbar radiculopathy, and lumbar spondylosis. Id. Dr. Khan noted that Plaintiff was not responding to interventional pain procedures, so he recommended a follow up with Dr. Buckley for possible surgery. See id. Dr. Khan started Plaintiff on Ultram for his back and leg pain. See id.

On May 21, 2009, Plaintiff treated with Uma Mannava, M.D., for an updated psychiatric evaluation related to Plaintiff's diagnoses of "mood disorder secondary to medical problems, PTSD, [and] [r]ule out major depression recurrent." Id. at 467-68. Plaintiff reported his history of growing up in foster care and his struggles resulting from being molested by his uncle. See id. Plaintiff reported having severe problems with getting frustrated, being angry all of the time, and losing control easily. See id. On examination, Dr. Mannava noted that Plaintiff loses control easily, is impulsive and that he "has no insight and lacks judgment." Id. at 468. Dr. Mannava diagnosed Plaintiff with, among other things, mood disorder secondary to medical problems, PTSD, a learning disability and could not rule out major recurrent depression. See id. Dr. Mannava noted that Plaintiff was being prescribed Cymbalta and Lunesta from his primary care physician and advised Plaintiff that he should engage in counseling and that he "needs to be consistent in coming for counseling." Id. Dr. Mannava had no other suggestions for Plaintiff at that time. See id.

On June 4, 2009, Plaintiff was again seen by Dr. Khan. Plaintiff complained of severe low back pain (9/10) that radiated to his lower extremities, causing him to have difficulty getting out of bed, numbness in his left leg, weakness in both of his legs, and difficulty walking. See id. at 500. Dr. Khan again diagnosed Plaintiff with lumbar facet arthropathy, lumbar radiculopathy, and lumbar spondylosis. See id. at 501. Dr. Khan referred Plaintiff to Lev Goldnier, M.D., for evaluation and EMG of the legs to rule out active denervation or central nervous system pathology due to Plaintiff's difficulty with walking. See id.

On June 5, 2009, Plaintiff presented to Kristen Barry, Ph.D., for a consultative psychiatric evaluation. See id. at 433. On examination, Dr. Barry found Plaintiff cooperative, and that his mood "appeared somewhat helpless, easily frustrated, and dysthymic." Id. at 435. Dr. Barry estimated that Plaintiff's intellectual functioning was in the borderline to low average range, and found Plaintiff's insight and judgment to be poor. See id. Dr. Barry diagnosed Plaintiff with, among other things, depressive disorder not otherwise specified, PTSD, and personality disorder not otherwise specified. See id. at 436. Dr. Barry indicated that Plaintiff's prognosis was guarded, that he would need assistance in managing his funds, and that he could follow and understand simple directions and instructions and was "able to maintain his attention and concentration fair." Id.

Also on June 5, 2009, Plaintiff presented to Kalyani Ganesh, M.D. for an internal medicine consultative examination per the referral of the Division of Disability Determination. See id. at 438. On examination, Dr. Ganesh found that Plaintiff had a limp favoring the left, could not walk on his heels or toes, could not squat, and used a cane. See id. at 439. Dr. Ganesh further found that Plaintiff had a limited range of motion in the lumbar spine, hip, and knee, and that Plaintiff had tenderness in the lumbar spine. See id. at 440. She diagnosed Plaintiff with chronic lower back pain, degenerative disk disease (L4-S1), and herniation (L5-S1). See id. Dr. Ganesh indicated that Plaintiff's prognosis was guarded, and that Plaintiff had "no gross limitation to sitting or the use of upper extremities. Moderate degree of limitation to standing, walking, climbing, lifting, carrying, pushing, pulling, and bending." Id. at 441.

On June 15, 2009, Plaintiff treated with Dr. Raza for chronic back pain, insomnia, and depression. See id. at 528. On examination, Dr. Raza found Plaintiff had neck pain and tenderness in the lumbar region with decreased range of motion. See id. Plaintiff's straight leg test was positive "with giving him pain on the lumbar area." Id. Dr. Raza prescribed Vicodin, Lunesta, and Cymbalta. See id.

On June 18, 2009, Plaintiff treated with Licensed Clinical Social Worker Annette Edwards for his recurrent major depressive disorder. See id. at 472. Plaintiff reported isolating himself and continued anger issues which included threatening others. See id. Ms. Edwards assessed Plaintiff as continuing to struggle with pain and anger. See id.

On August 11, 2009, Plaintiff treated with Dr. Khan for severe low back pain that was constant and radiated to the left leg. See id. at 497. Plaintiff reported weakness in both legs and numbness in his left, and further reported difficulty getting out of bed. See id. Plaintiff continued to use a cane. See id. On examination, Dr. Khan found Plaintiff unable to heel and toe walk, and that he had moderate to severe superficial tenderness of the lumbar paraspinal muscles and gluteal muscles. See id. at 498. He found Plaintiff's range of motion of the spine was limited in flexion, extension, lateral bending, and rotation. Plaintiff's Patrick's test and lumbar facet loading tests were positive, and Plaintiff's diagnoses continued to be lumbar facet arthropathy, lumbar radiculopathy, and lumbar spondylosis. See id. Dr. Khan increase Plaintiff's Cymbalta and prescribed etodolac for pain. See id.

On September 8, 2009, Plaintiff treated with Dr. Goldiner at Slocum-Dickson medical group per the referral of Dr. Khan for severe back pain. See id. at 495. On examination, Dr. Goldiner found Plaintiff had decreased muscle strength in his lower left extremity, and the EMG conducted during the treatment revealed evidence of L5-S1 radiculopathy. See id. at 496. Dr. Goldiner prescribed Flexeril and referred Plaintiff to Dr. Buckley for surgical intervention and told Plaintiff to continue with Dr. Khan for pain management. See id.

On January 18, 2010, Plaintiff treated with Dr. Buckley and reported worsening back pain. T 476. Dr. Buckley noted pain management told Plaintiff not much more can be done. See id. at 476. Dr. Buckley noted that an MRI was positive for L5-S1 degeneration and spinal stenosis. See id. There was also "L4-L5 internal disk disruption, foraminal stenosis only, with L4 through S1 internal disk disruption." Id. Dr. Buckley drafted a letter to Dr. Khan indicating that he was sending Plaintiff back to Dr. Khan for evaluation for L3 to S1 discograms to find out which level was causing pain. See id. at 522.

On February 2, 2010, Dr. Khan performed a lumbar provocative discography with post-discography multiplanar computerized tomography ("CT"). See id. at 488. The findings included the following: at the L3-L4 level the pain response was "partial concordant pain right side low back, 8/10 on the visual analog scale... the postdiscogram CT scan [was] suggestive of a grade 1 tear;" at the L4-L5 level the pain response was "partial concordant pain center and right lower back, 9/10 on the visual analog scale.... [The] post-discogram CT scan showed suspicion of a grade 4 tear at the L4/5 level;" at the L5-S1 level the pain response was "concordant pain center and right lower back and left leg, 10/10 on the visual analog scale.... [The] post-discogram CT scan showed suspicion of a grade 5 tear at the L5/S1 level with associated suspected disc herniation in the left paracentral region with posterior displacement and impingement on the left-sided L5 nerve root." Id. at 490. Dr. Khan assessed at L5-S1 there was "severe internal disc derangement." Id. at 490-91.

On March 16, 2010, Plaintiff treated with Dr. Buckley who noted Plaintiff was prescribed a TENS unit and his discogram showed "concordant pain at L5-S1 with 10/10 pain." Id. at 475. Dr. Buckley planned to conduct another MRI. See id. at 475. On March 18, 2010, P.A. Berry (who worked with Dr. Buckley) prescribed Plaintiff a cane for L5-S1 degeneration and spinal stenosis. See id. at 541. On March 26, 2010, and MRI revealed a "small to moderately sized central and left paracentral L5-S1 disc herniation producing posterior displacement of the left S1 nerve root." Id. at 521. There was also a lateral T11-T12 disc herniation and mild L4-L5 disc bulging "with mild degenerative facet changes at multiple levels." Id.

On March 25, 2010 and May 7, 2010, Plaintiff treated with Dr. Khan for pain management of his low back pain that radiated into his left leg. See id. at 477, 479. Dr. Khan noted that Dr. Buckley had given Plaintiff a prescription for a cane. See id. at 479. On May 7, 2010, Dr. Khan diagnosed Plaintiff with lumbar radiculopathy, lumbar spondylosis, and "lumbar IDD." See id. at 478. Dr. Khan planned to perform an epidural steroid injections for severe left leg and calf pain. See id.

On June 14, 2010, Dr. Khan completed a medical source statement outlining Plaintiff's impairments resulting from lumbar radiculopathy. See id. at 512. Dr. Khan opined Plaintiff was incapable of performing low stress jobs due to difficulty he would have sitting in one position. See id. He opined that Plaintiff could walk three-to-four city blocks without rest or severe pain. See id. Dr. Khan further opined that Plaintiff had the following limitations: he could sit at one time for forty-five minutes and a total of four hours in an eight-hour workday; he could stand at most for fifteen minutes total and could not stand a total of two hours in an eight-hour workday; he would need a job permitting shifting positions at will from sitting, standing or walking; he would need unscheduled breaks every thirty minutes lasting fifteen minutes in duration during the eight-hour workday; he would need the use of an assistive device like a cane; he could occasionally lift/carry less than ten pounds and rarely lift ten pounds; he could never look down, turn his head, look up, hold his head in a static position, twist, stoop (bend), crouch/squat, climb ladders or stairs; he could frequently use his fingers for fine manipulation and ...


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