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Bogart v. Colvin

United States District Court, W.D. New York

November 13, 2014

PHOEBE R. BOGART, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Justin M. Goldstein, Esq., Law Offices of Kenneth Hiller, PPLC, Amherst, New York, for the Plaintiff.

Kevin D. Robinson, Esq., Assistant United States Attorney, Buffalo, New York, Sandra M. Grossfeld, Esq., Social Security Administration Office of General Counsel, New York, New York, for the Defendant.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. ยง 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied the application of Phoebe Bogart ("Plaintiff") for Social Security Supplemental Security Income ("SSI") disability benefits. Now before the Court is Plaintiff's motion (Docket No. [#9]) for judgment and Defendant's cross-motion [#15] for judgment on the pleadings. Plaintiff's application is granted and Defendant's crossmotion is denied.

PROCEDURAL HISTORY

On April 27, 2011, Plaintiff applied for SSI benefits, claiming that she became disabled on May 26, 2010. (141-147). Plaintiff claims to be disabled due to the following conditions: "COPD, [1] "dislocated knee caps in both knees, " "lower back pain, " "soft tissue damage in neck, " "disabled in left wrist, " "severe depression" and "anxiety." (174). On May 26, 2011, the Commissioner denied the application. (86-96). The disability examiner who handled Plaintiff's application reported that Plaintiff had the following conditions:

Claimant has [history of] back disorder, knee pain, wrist pain, COPD [chronic obstructive pulmonary disorder]. LS spine ROM as follows: flexion to 80 degrees. Bilateral knee ROM as follows: flexion/extension to 110 to 135 degrees. LS spine MRI (11-03-03) indicated a protrusion at L5-S1 with a[n] annular tear and degenerative changes at L5-S1. Bilateral knee x-rays (03-11-11) indicated lateral maltracking of the patella with associated patella alta.

(79). Nevertheless, the examiner found that Plaintiff had the ability to lift ten pounds, sit for six hours in an 8-hour workday, and stand/walk for six hours in an 8-hour workday. (79). Further, the examiner found that Plaintiff had the residual functional capacity to perform only "sedentary" work. (81).

Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and such hearing was held on May 24, 2012. At the hearing, Plaintiff was represented by her attorney. On August 17, 2012, the ALJ issued a Decision, which, as will be discussed further below, found that Plaintiff is not disabled. The ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform "a range of light work" (23), and he further found, at step four of the five-step sequential analysis, that Plaintiff can perform her past relevant work as a receptionist. Plaintiff appealed, and on September 20, 2013, the Appeals Council declined to review the ALJ's determination. (1-6).

On October 31, 2013, Plaintiff commenced this action. The parties filed their respective motions for judgment on the pleadings, and on October 30, 2014, counsel for the parties appeared before the undersigned for oral argument.

MEDICAL EVIDENCE

As referenced above, the Defendant's disability examiner's notes allude to Plaintiff's various medical conditions, which include lower-back pain due to degenerative changes, knee pain due to "maltracking of the patella, " and COPD secondary to smoking cigarettes. Additionally, Plaintiff sustained a work-related injury to her wrist. Plaintiff also has neck pain, which the medical notes attribute to her having been kicked by a horse. Plaintiff has undergone various surgeries to address those problems, including back decompression, arthroscopic knee surgery, and arm surgery. Plaintiff has also received various treatments, including pain injections and nerve ablation procedures. Plaintiff takes a variety of prescription pain medications on a daily basis. Plaintiff's back and knee problems seem to have the greatest effect on her ability to work, and consequently, the Court will briefly summarize the medical evidence concerning those conditions.

Back Pain

Plaintiff initially began experiencing pain in her lower back in 2004. In or about 2005, Plaintiff was treated by Donovan Holder, M.D. ("Holder"), who administered "multiple injections" and performed "a disc decompression at L4-5." (263). The decompression procedure relieved some of Plaintiff's pain, but also resulted in her experiencing pain in her buttock. Id. On February 27, 2006, Plaintiff was seen by pain management specialist Naseer Tahir, M.D. ("Tahir"), who reported that an MRI of Plaintiff's lumbar spine "show[ed] a very small protrusion at L5-S1 with a small annular tear at the site, " as well as "degenerative changes, " but "no evidence of herniation or central canal or neuroforaminal narrowing." (263). Upon examination, Tahir observed that Plaintiff was "quite distressed" due to pain, preferred to stand rather than sit, and walked favoring her right leg. (263). Tahir reported that Plaintiff was "tender" over the L4-5 joint and the sacroiliac joint. (263). Tahir noted that Plaintiff had pain with lumbar flexion and extension, and that when she attempted to stand just on her right leg, it caused pain and also caused her leg to shake excessively. Id. Tahir further reported that Plaintiff had positive straight-leg testing ("SLR") bilaterally. Id. Tahir's diagnosis was "low back pain more so on the right[, and] leg symptoms consistent with an L5-S1 radiculopathy." Id.

In March 2006 and April 2006, Tahir administered "transforaminal epidural steroid injections" and "sacroiliac joint injections." (255). Tahir also tried a nerve ablation procedure. Id. Tahir reported that the pain radiating into Plaintiff's leg was improved, but she still complained of pain over her "tailbone." Id.

On August 1, 2006, Tahir reported that Plaintiff was taking Percocet and Oxycontin to alleviate her back pain. (255). Tahir examined Plaintiff and reported that she walked slowly, apparently due to pain. Id. Palpation revealed tenderness over Plaintiff's right buttock and sacroiliac joint, and she had a positive Patrick's test on the right side. Id. Tahir concluded, from the positive Patrick's sign, that Plaintiff's pain was originating in the sacroiliac joint. Id. Consequently, Tahir indicated that he would administer injections "targeting L5, S1, S2 and S3, " and that if Plaintiff experienced relief from the injections he would offer to perform a nerve ablation procedure. Id. The nerve ablation procedure was performed, and Plaintiff reported that the procedure relieved her back pain for several years, until 2010. (64). Moreover, the record indicates that Plaintiff worked between 2007 and 2010, after having not worked for several years. (149, 154).

In 2010, the pain in Plaintiff's back began to return. On July 16, 2010, Lisa Walk-Reinard, M.D. ("Walk-Reinard"), Plaintiff's primary care physician, reported that Plaintiff was frequently shifting her position because she could not "get comfortable" due to back pain. (376). Walk-Reinard reported that Plaintiff had "marked pain on palpation of low back S1-5 level, " greater on the right than on the left, and that Plaintiff also had "marked pain" over the right sacroiliac joint. Id. Walk-Reinard ...


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