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Trumpower v. Colvin

United States District Court, W.D. New York

January 13, 2015

CAROLYN COLVIN, Commissioner of Social Security, Defendant.


MICHAEL A. TELESCA, Sr., District Judge.

I. Introduction

Christina Marie Trumpower ("Plaintiff"), represented by counsel, commenced the instant action challenging the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"). The Court has jurisdiction over this matter pursuant to 42 U.S.C. ยง 405(g).

II. Procedural History

On October 5, 2010, Plaintiff protectively filed an application for Title II benefits, alleging disability beginning September 17, 2010. The claim was initially denied on March 3, 2011. Plaintiff requested a hearing, which was held on May 30, 2012, in Rochester, New York, before Administrative Law Judge Connor O'Brien ("the ALJ"). Plaintiff appeared with her attorney and testified at the hearing, as did impartial vocational expert Peter A. Manzi. The ALJ issued an unfavorable decision on September 25, 2012. T. 7-20.[1] Plaintiff sought review from the Appeals Council, which was denied on November 5, 2013, making the ALJ's decision the final decision of the Commissioner. This timely action followed.

III. Summary of the Administrative Transcript

A. Medical Records Considered by the ALJ

On February 5, 2006, Plaintiff began treating with her primary care physician, Valerie Newman, M.D., following a motor vehicle accident five days previously in which her car had been "t-boned" on the driver's side. T. 444-45. The diagnosis was cervical strain and probable rib contusion.

Plaintiff treated on October 4, 2007, and November 30, 2007, with Dr. Richard Lewis at the University of Rochester Medical Center Department of Orthopaedics ("URMC"). T. 278-80. Plaintiff had constant aching pain in buttocks region, pain pulling from the low back to the back of the heel upon range of motion, and occasional numbness in the base of the foot. T. 280. Plaintiff's hip flexion and abduction was weakened secondary to pain. T. 278.Straight leg raise was positive at 40 degrees. Dr. Lewis assessed probable sciatica and radiculitis. T. 280. He prescribed Vicodin and ibuprofen for pain management.

On November 16, 2007, Plaintiff was treated by Dr. Newman for asthma, anxiety, and right leg sciatica with knee buckling. T. 332-33. Examination revealed reproducible tenderness in the right SI joint region, exquisite tenderness to palpation, and positive straight leg raise. Dr. Newman prescribed Vicodin for pain. T. 332.

Plaintiff was treated by Clifford Everett, M.D. on December 20, 2007, at URMC for low back and right leg pain. T. 284-85. Plaintiff could only touch halfway between her ankles and knees. Her range of motion of the lumbar spine was abnormal with pain on extension and flexion. She had an active trigger point in the right side on palpation, and palpation over the sacral sulcus was pain provoking on the right. The diagnosis was lumbosacral neuritis. Dr. Everett recommended an MRI of the lumbar spine and referred Plaintiff to the rehabilitation division for further evaluation of her mild traumatic brain injury sustained during the motor vehicle accident.

On January 10, 2008, Plaintiff saw Dr. Everett regarding her continued lower back, right leg and buttock pain. T. 289-90. Dr. Everett noted that she had tried and failed at least six weeks of conservative care for her back injury. Diagnoses were backache and myalgia/myositis.

On January 21, 2008, and February 29, 2008, Plaintiff saw Dr. Newman for right sciatica with knee buckling and chronic back pain. T. 336-37, 338-39. Plaintiff was taking Cymbalta and Vicodin and using Lidoderm patches, but was still suffering from severe pain. T. 336. Plaintiff had full flexion, but painful spasm was induced upon standing. Dr. Newman noted that Plaintiff still was working as a nursing assistant but was avoiding "floor duty" with its heavier lifting requirements. On February 29, 2008, Dr. Newman stated that Plaintiff cannot work at her normal job, which Dr. Newman characterized as light work, because Plaintiff cannot perform the lifting requirements. T. 338.

Plaintiff was treated by pain management specialist Nithyanandi Namassivaya, M.D. on March 15, 2008, for back and right hip pain. T. 311. She had been off work and was using a TENS unit which provided temporary relief. Physical therapy had worsened her symptoms. Plaintiff had an antalgic gait, her pain was at a level 8 out of 10, her back range of motion was restricted, and she had tenderness in the right hip and right sacroiliac ("SI") joint regions. Dr. Namassivaya indicated Plaintiff had chronic low back pain, status post-motor vehicle accident, as well as right hip trochanteric bursitis. Plaintiff was able to return to her job as a certified nursing assistant but was precluded from prolonged standing and lifting greater than 20 pounds.

On April 21, 2008, and May 12, 2008, Plaintiff was treated by Dr. Newman for chronic back pain, with severe pain radiating in her right leg, and some soreness in her foot. T. 342-43, 340-41. Plaintiff's back was positive for posterior tenderness and positive for reproducible tenderness along her outer right buttock with radiation to her leg with palpation. Dr. Newman increased Plaintiff's dose of Cymbalta, and reinstated Vicodin for better pain control. Dr. Newman indicated Plaintiff was precluded from lifting greater than 20 pounds or standing for prolonged periods. She "remains partially disabled, released for return to four hours per day... may require additional limits." T. 340.

Plaintiff saw Dr. Namassivaya on June 9, 2008, for back pain and right hip pain, localized to her right buttock and radiating down to her right knee and right leg. T. 309. The pain was interfering with her sleep. Her range of motion in her back was restricted; and she had tenderness in the right hip region and right SI joint; and her pain was at a 10 out of 10. Straight leg raising was negative bilaterally. Dr. Namassivaya prescribed Ultram for pain control.

On June 10, 2008, July 8, 2008, August 7, 2008, and September 5, 2008, Plaintiff continued treatment with Dr. Newman for her chronic back pain. T. 348-49; 354-55; 346-47; 358-59. Examination on July 8, 2008, revealed pain with palpation of the right SI joint region and surrounding area with some spasm, and Plaintiff reported limping at times with increased pain. T. 354. On August 7, 2008, and September 5, 2008, Plaintiff reported persistent tenderness along the right SI region, and mild parasacral spasm worse with bending. T. 346; 358. Standing for extended periods of time caused pain in her lower back to travel into her leg. T. 358.

Plaintiff was treated by Dr. Namassivaya on September 8, 2008, for right hip and low back pain and associated right hip weakness. T. 308. She was taking a high dose of Cymbalta, Vicodin as needed, and Ultram, as well as using a TENS unit. However, these provided incomplete relief.

On October 10, 2008, and December 12, 2008, Plaintiff returned to see her primary care physician, Dr. Newman, for a mild flare of her lower back pain with increased radicular symptoms. T. 352-53; 356-57. She reported continued back pain traveling into her right leg. Examination was positive for posterior tenderness, soreness in the right SI joint, and positive straight leg raise. T. 352, 356. Plaintiff reported her activity tolerance was limited. Dr. Newman indicated she agreed with Plaintiff's SSI application "given [Plaintiff's] inability to resume [the] level [of work] she has training for with retraining efforts recommended". T. 357.

Plaintiff saw Dr. Namassivaya on January 7, 2009, for low back and right hip pain for which she was taking Cymbalta, Tramadol and Vicodin. T. 307. Examination revealed pain upon spinal extension and side-bending bilaterally and tenderness to palpation at the right iliac joint and the right hip.

On January 20, 2009, T. 379-80; March 13, 2009, T. 362-63; May 19, 2009, T. 373-74; and June 29, 2009, T. 384-85, Plaintiff saw Dr. Newman with regard to her chronic back pain. During this six-month period, Plaintiff consistently presented with low back tenderness along the right SI region and parasacral area, pain upon flexion and extension, and diffuse parasacral pain after prolonged positioning. T. 371, 373, 384. Plaintiff was having good days and bad days; on bad days, she had difficulty getting up without severe spasms and pain. As a result, she had limited her activities in her home. T. 362. Dr. Newman indicated Plaintiff may require disability if she is "unable to resume work with severe back pain flares limiting function". T. 363. Plaintiff consistently needed Vicodin for pain control up to every four hours. T. 374. Plaintiff indicated her back continued to intermittently flare on the left side with variable triggers, and she had flares even with modest bending. T. 384.

On August 24, 2009, Plaintiff underwent a preventative medicine physical examination with Dr. Newman. T. 375-78. Plaintiff had a new onset of borderline diabetes mellitus in addition to her chronic lower back pain, asthma, and anxiety. T. 377.

On August 25, 2009, Plaintiff saw Dr. Newman for continued, flaring back pain which extended to the top of back and neck. T. 386-89. Examination revealed continued tenderness along the right side with spasm. At that time, Plaintiff's anxiety was controlled with Cymbalta, and her chronic back pain was "stable" and under "reasonable control". T. 386.

Plaintiff was treated by Dr. Namassivaya on October 12, 2009, for chronic low back pain and right leg pain. T. 306. She was taking Cymbalta and Tramadol for pain. Plaintiff had diminished strength in her right hip flexor secondary to pain and localized lower back tenderness. According to Dr. Namassivaya, Plaintiff had no work restrictions.

On October 20, 2009, November 17, 2009, November 23, 2009, January 12, 2010, and March 16, 2010, Plaintiff saw Dr. Newman for chronic back pain, diabetes mellitus, and hyperlipidemia. T. 379-80; 390-91; 382-83; 395-96; 388-89. She mentioned the possibility of vocational retraining with VESID, possibly to become a phlebotomist. Dr. Newman's examinations in that period revealed right lateral parasacral area tenderness. Plaintiff reported flares of back pain with activities of daily living. Her pain was easily triggered by any lifting.

On April 5, 2010, Plaintiff saw Dr. Namassivaya for her chronic lower back pain. T. 305. Plaintiff reported pain radiating to her hip, for which she was taking Tramadol, Vicodin, Ultram, and Neurontin. She also was taking Cymbalta for depression. Plaintiff's motor strength was diminished in her right hip and right hip flexor, secondary to chronic pain.

On April 29, 2010, Plaintiff saw Dr. Newman in follow-up for her chronic back pain. T. 392-94. Examination revealed focal tenderness in right parasacral region but normal distal leg strength and sensation. Plaintiff was to continue with Neurontin, Vicodin, and Ultram, and possible epidural injections from Dr. Namassivaya.

On May 17, 2010, Plaintiff saw Dr. Newman and reported continued lower back pain. T. 407-09. She had paraspinal spasm of the right lower back. Flexion was intact but Plaintiff had spasms after repeated bending. T. 408. Dr. Newman opined that Plaintiff was "fully disabled as [she is] unable to perform the work [for] which she has training. She was unable to fulfill the physical demands of a sedentary' job in 2008 at the Highlands and on this basis would be considered fully disabled...." T. 407. Dr. Newman stated, "She continues to be limited in ability to sit for prolonged periods of time at times of flare and with certain seated positions" and "also [has] some pain on prolonged sitting and walking." T. 407. Further, Plaintiff was "very limited in her ability to repeatedly lift with variable triggering movement." Id . Plaintiff on some days had "severe limits" in activities of daily living. Id . Dr. Newman "agree[d] with her plan for additional schooling for light duty work, [and] disability if not approved for this retraining." Id.

On June 24, 2010, Plaintiff had an appointment with Dr. Newman regarding her chronic back pain, diabetes, and chronic anxiety. T. 404-07. The pain was described as "an ache, burning and shooting" and was aggravated by bending, changing positions, and getting in and out of the car. Examination revealed that her spine was positive for posterior tenderness but there were no neural deficits.

On August 12, 2010, Plaintiff was treated by Dr. Newman for a severe stress reaction. T. 413-16. It had been triggered by Plaintiff's learning that her husband had been diagnosed with advanced stage cancer, closely following upon the death of her mother. Plaintiff presented as overwhelmed, very tearful, and distraught. She was having severe sleep disruption and an exacerbation of her lower back pain. Dr. Newman prescribed Xanax for Plaintiff's anxiety. Plaintiff declined a referral to counseling at that time.

On September 27, 2010, Plaintiff was treated by Dr. Newman for depression. T. 418-21. Plaintiff reported anxious, fearful thoughts and a depressed mood. She was coping better with the Xanax, however. Dr. Newman stated that Plaintiff was "temporarily fully disabled, unable to take classes or work due to reactive depression [and] anxiety." T. 420.

Plaintiff saw Dr. Namassivaya on October 4, 2010, for chronic low back pain. T. 304. Plaintiff was taking Cymbalta, Ultram, and Vicodin. She reported she had been suffering from anxiety attacks for which Xanax had been prescribed, and that her primary care physician had placed her on disability.

On November 9, 2010, and December 27, 2010, Plaintiff returned to see Dr. Newman regarding her anxiety, depression, chronic lower back pain, and chronic asthma. T. 421-23; 426-28. Plaintiff was experiencing anxious, fearful thoughts; diminished interest in activities; anhedonia; fatigue/loss of energy; sleep disturbance; and tearfulness. Dr. Newman noted that Plaintiff's anxiety and grief reaction were "uncontrolled" and added Remeron to her drug regimen. Also, Plaintiff had an "incomplete antidepressant response to Cymbalta, " despite using the maximum possible dosage. Dr. Newman prescribed Klonopin, with Xanax to be used as a "rescue" for breakthrough anxiety, and also expedited a referral to counseling. With regard to Plaintiff's back pain, she had posterior tenderness on her spine, with focal tenderness at L4 with supraspinous ligament prominence to posterior facet. She continued to require Vicodin every 4 hours for back pain.

On December 13, 2010, Plaintiff self-reported to the Genesee Mental Health Center, Behavioral Health Network for treatment of depressive symptoms. She met with Licensed Master Social Worker Patricia Wyjad ("LMSW Wyjad") for a pre-admission screen. T. 464-65. Diagnoses were "Adjustment Disorder with Depressed Mood" and "Rule Out Depressive Disorder, Not Otherwise Specified." Plaintiff's GAF score was 55. LMSW Wyjadstated she was safe to remain in the community at current level of care, but she should continue to be monitored for further symptom exacerbation in light of her husband's terminal cancer.

On December 29, 2010, Plaintiff began one-on-one therapy with LMSW Wyjad. T. 472, 542. Plaintiff was experiencing anticipatory grief stemming from her husband's recent cancer diagnosis, poor ...

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