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Tillman v. Commissioner of Social Security

United States District Court, S.D. New York

December 17, 2014

MARYAM TILLMAN, o/b/o M.K., Plaintiff,



Plaintiff Maryam Tillman, proceeding pro se, filed this action on behalf of her minor daughter (referred to as "M.K."), pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. ยง 405(g), seeking review of a decision of the Acting Commissioner of Social Security (the "Commissioner") that denied Plaintiff's application for Supplemental Security Income ("SSI") benefits for M.K. based on a finding that M.K. was not disabled under the Act.[1] Defendant has moved, unopposed, for judgment on the pleadings requesting that the Commissioner's decision be upheld. Because the Commissioner's decision is supported by substantial evidence, Defendant's motion is granted.


A. M.K.'s Medical Evaluations

M.K. was 11 years old when she was injured in a car accident on December 8, 2008. (SSA Rec. 198). After the accident, M.K. was taken to the hospital, where she was diagnosed with left shoulder pain and discharged the same day. ( Id. at 200-03).

M.K. was evaluated by Dr. Marvin Moy four days later, on December 12, 2008. (SSA Rec. 377-86). During the visit, M.K. complained of neck pain that radiated to her left shoulder. ( Id. at 377). She also reported difficulty sleeping due to that pain, for which she took Ibuprofen. ( Id. at 379-80). During a physical examination, the doctor observed a limited range of motion of M.K.'s left shoulder and a mildly restricted range of motion of M.K's cervical spine. ( Id. at 381).[3]

A magnetic resonance imaging test ("MRI") of M.K.'s cervical spine, dated December 16, 2008, showed posterior bulging of the intervertebral discs at C3-C4, C4-C5, and C5-C6, which caused "impingement of the anterior thecal space" and "reversal of the cervical curve." (SSA Rec. 260-61). An MRI of the left shoulder, dated December 29, 2008, was normal. ( Id. at 259).

M.K. returned to Dr. Moy on January 10, 2009, with complaints of lumbar spine pain and cervical spine pain. (SSA Rec. 375). Dr. Moy noted paraspinal tenderness, and a slight improvement in M.K.'s pain since her last visit. ( Id. at 376). M.K. returned to Dr. Moy on February 19, 2009, and Dr. Moy again assessed cervical and lumbar spine pain. ( See id. at 373-74).

Plaintiff was examined at Montefiore Medical Center ("Montefiore") in the Bronx, New York, on February 17, 2009. (SSA Rec. 306). M.K. complained of fatigue, neck pain, left shoulder pain, headaches, and leg pain, but reported that the pain resolved with Tylenol and that she was able to run "well" and sleep "alright." ( See id. ).

M.K. had an initial consultation with Dr. Tong Li for neck and shoulder pain on February 25, 2009. (SSA Rec. 392). M.K.'s range of motion was found to be full in her cervical spine and both shoulders ( id. at 393-94), and limited in her lumbosacral spine ( id. at 395).[4] Dr. Li diagnosed myofascial pain syndrome, [5] cervical spine strain, left shoulder strain, lumbosacral strain; he also made "rule out" notations regarding cervical radiculopathy and lumbar radiculopathy. ( Id. ).[6] Dr. Li noted that M.K.'s neck pain was not responding well to conservative treatment. ( Id. ). Accordingly, he referred her for further neurological and pain evaluation, and recommended that she continue receiving chiropractic treatment and any pain medication prescribed by her referring physician. ( Id. ).

M.K. attended follow-up appointments with Dr. Moy on March 26, 2009, April 20, 2009, and June 16, 2009. (SSA Rec. 367-72). During this time, M.K.'s lower back and neck pain improved, but she still complained of some neck pain. ( See id. at 367, 371).

Plaintiff returned to Montefiore on October 15, 2009. (SSA Rec. 305). M.K. reported doing well in school, but complained of neck, "arm/shoulder, " and lower back pain. ( Id. ). On physical examination, M.K.'s neck, back, and extremities were all found to be within normal limits. ( Id. ).

M.K. also received extensive chiropractic treatment from Dominic J. Rubino following the accident. These chiropractic visits were frequent in late 2008 through 2009, but tapered off during the latter part of 2010. Specifically, M.K. visited Dr. Rubino on 61 occasions (roughly twice a week) during the seven-month period from December 2008 to June 2009; on 23 occasions (roughly twice a month) during the ten-month period from February 2010 to December 2010; and then only four times in 2011, all during the month of December. ( See SSA Rec. 332-36, 340-41, 354-56).

M.K. was seen by Dr. Karen Warman, an Associate Professor of Clinical Pediatrics at Albert Einstein College of Medicine, on October 15, 2010. (SSA Rec. 292, 408). M.K. complained of neck pain, shoulder pain, headaches, low energy, drowsiness, and lumps on the left side of her neck. ( Id. at 292). M.K. reported that she was doing well with her math tutor and had resource room help for reading comprehension, liked going to the park and beach and eating out, and got along well with others. ( Id. at 295). M.K. also stated that she managed her headaches by taking Tylenol. ( Id. ).

On December 28, 2010, Dr. Thomas DePaola performed a consultative pediatric examination of M.K. at the request of the Commissioner. (SSA Rec. 262-67). M.K. again complained of headaches, neck pain, and shoulder pain, but explained that she was able to attend gym classes by sitting out for a few moments whenever she had discomfort. ( Id. at 262-63). She added that her attendance at school had not been affected, and that she had not been hospitalized for her pain. ( Id. ).

During the examination with Dr. DePaola, M.K. also reported having a learning disability. (SSA Rec. 262). Dr. DePaola noted that M.K. was in general and special education classes, and had no behavior problems. ( Id. at 263). M.K. reported daily activities that included watching television, listening to music, playing with her sibling, doing homework and chores, reading, coloring, drawing, using the computer, playing with friends, and using Facebook. ( Id. at 263).

On examination, Dr. DePaola found no range of motion limitations, full motor strength in the upper and lower extremities (despite some pain with left elbow flexion), and a normal spine. (SSA Rec. 265-66). Neurological examination revealed physiologic and symmetrical reflexes in the upper and lower extremities and age-appropriate fine motor activity and grip strength. ( Id. at 265). According to Dr. DePaola, M.K. "has some limitations on physical activity because of her pain, although she only needs to rest for a few seconds when she is taking gym, in the child's own words. She needs to continue following [up] with healthcare providers as needed and getting her special education as needed." ( Id. at 266).

A state agency pediatric medical consultant, Dr. J. Randall, reviewed M.K.'s medical record and completed a Childhood Disability Evaluation on January 5, 2011, which was cosigned by Natalie Tomcho, a speech and language pathology consultant. (SSA Rec. 268-73).[7] The consultants found that M.K. had a less than marked limitation in the functional domain of acquiring and using information. ( Id. at 270). The consultants found no limitation in M.K.'s ability to complete tasks, and a less than marked limitation in her ability to interact and relate with others. ( Id. ). Dr. Randall considered the MRI that revealed bulging disks in the cervical spine and M.K.'s complaints of pain in the neck and shoulder, but found that M.K. had a less than marked limitation in her ability to move about and manipulate objects because she was able to attend gym class at school and because her physical examination findings were consistently normal. ( Id. at 271). Dr. Randall also assessed M.K. as having no limitations in the domain of caring for herself and a less than marked limitation in the domain of health and physical well-being based upon the December 2008 MRIs of the spine and shoulder, as well as the results of Dr. DePaola's examination. ( Id. ). As a result of their review, the consultants concluded that M.K.'s "allegations of pain [were] only partially credible, " and ultimately opined that M.K. did not functionally meet the criteria for disability under the "Listing of Impairments" provided in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"). ( Id. at 271-72).

M.K. was seen by Dr. Kanwal Farooqi (a pediatric cardiology fellow) in November 2010 and on February 9, 2011, for complaints of chest pain on exertion. (SSA Rec. 302-03). Dr. Farooqi noted that the results of her examination, which included an echocardiogram and cardiopulmonary stress test, were normal; she further opined that no restrictions in M.K.'s activities were warranted, including her ability to attend gym at school. ( Id. ).

M.K. returned to Dr. Rubino on January 5, 2012, who noted some range of motion restrictions in M.K.'s cervical and lumbar spine. (SSA Rec. 337-38). Dr. Rubino concluded that M.K.'s limitations were the result of another motor vehicle accident on February 5, 2011. ( Id. at 339). He stated that this "type of trauma to the spine invariably creates muscular and ligamentous instabilities with resultant acute asymmetrical misalignments and nerve irritation." ( Id. at 339). Dr. Rubino opined that M.K. had "reached a permanent and stationary plateau, " but that her condition may result in advanced disc degeneration and spondylosis in the future. ( Id. ).[8]

M.K. returned to Dr. Warman on February 3, 2012. (SSA Rec. 286). Dr. Warman noted that M.K. was in the seventh grade, had an Individualized Education Program ("IEP") at school, and was a good student. ( Id. ).[9] Physical and neurological examinations were normal, including no deformities and full range of motion in all joints. ( Id. at 288). During the psychiatric exam Dr. Warman administered, M.K. was "alert and cooperative, [with a] normal affect, age-appropriate attention span and level of motor activity." ( Id. ...

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