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Trail v. Colvin

United States District Court, N.D. New York

January 15, 2015

MARCIA TRAIL, on behalf of MICHAEL TRAIL, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


LAWRENCE E. KAHN, District Judge.


This case has proceeded in accordance with General Order 18, which sets forth the procedures to be followed in appealing a denial of Social Security benefits. Both parties have filed briefs. Dkt. Nos. 16 ("Plaintiff's Brief"); 18 ("Defendant's Brief"). For the following reasons, the judgment of the Social Security Administration ("SSA") is affirmed.


On or about August 6 or 7, 1997, Plaintiff, then thirty years old, was injured while at his job as a food server at the Trump Taj Mahal Hotel/Casino, which caused the initial onset of lower back pain. Dkt. No. 12 ("Record") at 583. The pain was severe and radiated into his lower left leg. Id.

Due to the amount of time that has elapsed from the time of Plaintiff's initial injury to present, an extensive medical, administrative, and court record has accumulated. The following lays out a compressed, comprehensive sequence of events detailing Plaintiff's medical history, hearing before an administrative law judge ("ALJ"), and the ALJ's decision.

A. Plaintiff's Medical Records

Approximately one week after the initial incident, Plaintiff went to the Atlantic City Medical Center emergency department with complaints of severe lower back pain. Id. at 277. Plaintiff was first referred to Dr. Zabinski, an orthopedist, who performed routine examinations, prescribed medication, and ordered an MRI. Id . While under the care of Dr. Zabinski, Plaintiff started physical therapy, which he attended several times weekly but ultimately did not facilitate improvement in his pain. Id. at 277, 583. An MRI of the lumbar spine conducted January 5, 1998, revealed that Plaintiff was suffering from a protrusion of the L5-S1 disc on his left side, which caused a displacement of a traversing nerve root sleeve-in other words, a herniated disk. Id. at 563.

Plaintiff was next evaluated by Dr. Greenwood, a neurosurgeon, whom Plaintiff saw on several occasions the same year. Id. at 278, 583. In August 1998, Dr. Greenwood advised Plaintiff against any type of heavy lifting and discussed surgery to alleviate the persistent pain. Id. at 278, 583.

Plaintiff consulted Dr. Strenger, a neurosurgeon, on or about September 2, 1998, to discuss the best surgical options to alleviate his pain. In Dr. Strenger's opinion, the best option was a microendoscopic discectomy at L5-S1. Id. at 584. Plaintiff understood and wished to proceed with surgery. Id. at 585. Plaintiff was admitted to Atlantic City Medical Center for the procedure on September 8, 1998. Id. at 575-76. After his surgery, Plaintiff returned to Strenger for a reevaluation of his pain. Id. at 586. It was reported that Plaintiff's preoperative leg pain was "almost completely resolved, " and that he experienced only intermittent aches when sitting. Id . A further examination also revealed that all muscle groups moved well and reflexes were symmetrical. Id . Subsequent follow-up appointments indicated a steady improvement, though Plaintiff still experienced some intermittent lower back pain that worsened over the course of a day. Id. at 587. Dr. Strenger put Plaintiff in a physical therapy program that allowed him to resume light work and handle weights of between five to ten pounds. Id . In November of the same year, Plaintiff had no lower back pain at the current time and denied any weakness, even with aching sensations in his calf and foot. Id. at 588. After this evaluation, Dr. Strenger recommended that Plaintiff continue the when he returned to work as a waiter part-time. Id . Plaintiff's return to work resulted in a progressive increase in his lower back pain, despite no accident or injurious incident. Id. at 589.

By December of the same year, Dr. Strenger had prescribed Relafen, before changing to Flexeril, for Plaintiff's pain and ordered a follow-up MRI. Id. at 589-90. An MRI showed no evidence of recurrent disk herniation or new disk herniation at other levels, but showed disk desiccation predominately at the L5-S1 level. Id. at 598. Dr. Strenger ordered a trial period of lumbar epidural steroid injections to help alleviate the pain. Id.

Dr. Braccia, a pain medicine doctor and anesthesiologist, also examined Plaintiff in August of 1999. He stated that Plaintiff's discomfort was "suggestive" of recurrent lumbar radiculopathy, and agreed that epidural steroid injections were the best course of treatment at the time. Id. at 601. At the evaluation following the first injection procedure, Plaintiff reported one day of relief before the pain returned. Id. at 604. Dr. Braccia observed that Plaintiff's lower back pain was "constant, " but most exacerbated by sitting. Id . Moving forward, Dr. Braccia advised a lumbar provocative discography at L3-L4, L4-L5, and L5-S1, to which Plaintiff was amenable. Id . However, workers' compensation would not cover the payment for this surgery or for ongoing medical treatment. Id. at 612. As a result, Plaintiff's surgery was delayed for approximately a year and a half. Id. at 617, 619. Dr. Strenger prescribed a combination of medications to Plaintiff to attempt to alleviate the pain in the absence of the procedure. Id. at 614. It was not until January 9, 2001, that Dr. Braccia was able to schedule the provocative discogram for later that month. Id. at 619. At that point, Plaintiff's last evaluation had been in late July of 2000. Id . Between periods of examination, Plaintiff reported that he continued to experience lower back pain that was exacerbated by prolonged sitting, and that he felt sharp, low pain when leaning forward, but had no peroneal numbness or weakness in his lower extremities. Id . Plaintiff underwent the provocative discogram on January 31, 2001, where injections at the L3-L4, L4-L5, and L5-S1 intervertebral discs were performed. Id. at 622.

In March of the same year, Plaintiff was re-evaluated by Dr. Strenger, who scheduled another high resolution image to follow up on the 1999 MRI before making a decision on whether further surgery was necessary. Id. at 623. Upon study of the MRI, Dr. Strenger found postoperative changes on the left at L5-S1 with an element of facet hypertrophy. Id. at 624. There was, however, no evidence of recurrent disc herniation, and all disc levels above the L5-S1 level had good disc signals. Id . Dr. Strenger recommended surgical intervention by performing a posterior lumbar fusion and instrumented transverse process arthrodesis at L5-S1; Plaintiff agreed. Id. at 624, 626. Surgery was performed on or about May 18, 2001. Id. at 634. Post operative follow-up evaluations with a neurosurgeon, Dr. Glass, showed a diminishment in Plaintiff's lower back pain, but it was still present. Id. at 631-32.

In or around late November and early December, Plaintiff relocated to South Carolina and began care under Dr. Giddens, an orthopedic surgeon who specializes in neurological surgery. Id. at 636, 643, 656. At the initial examination, Dr. Giddens reported that Plaintiff had tense, rigid muscles but ambulated well. Id. at 656. Dr. Giddens advised Plaintiff that he should pursue another career path that would not be as physically demanding. Id . Plaintiff returned for a second visit with continued pain in the lower back. Id. at 657. He described his pain as worse when switching from a sitting to a standing position. Id . Plaintiff also informed Dr. Giddens that the physical therapy was not of "significant" benefit. Id . Dr. Giddens suggested an MRI as a next step, which showed what appeared to be "adequate decompression, [and] good placement of the rods and screws at L5-S1." Id. at 657, 660. It was again reported that Plaintiff's "only real problem" was when he bent over and straightened back up; otherwise, pain was minimal. Id . Additionally, a CT/myelogram performed in October of the same year revealed no significant compressive pathology nor any appearance of a solid bony fusion. Id. at 665.

Dr. Giddens next saw Plaintiff in October 2002. Id. at 665. Dr. Giddens reported that Plaintiff would need continued pain management. Id . In February 2003, Dr. Giddens reported that Plaintiff was receiving "immediate and complete pain relief" from treatments performed by Dr. Sauer, an osteopathic physician, who specializes in pain management. Id. at 666. However, Plaintiff still experienced pain and difficulty when moving from a sitting to standing position. Id . Dr. Giddens believed that "conservative measures" were no longer effective in improving Plaintiff's pain, and that, as a result, it was reasonable to explore an additional surgery. Id. at 670. At the same time, Dr. Giddens felt that Plaintiff was "suited only for sedentary type [of] work." Id . However, Dr. Giddens was skeptical of even this type of work due to Plaintiff's "requirement" of narcotics for medication. Id.

Dr. Giddens referred Plaintiff to Dr. Sauer for pain management, who first examined Plaintiff on January 22, 2002. Id. at 639. Dr. Sauer wrote a report similar to Dr. Giddens as to Plaintiff's medical history, stating that Plaintiff's "pain is intermittent in that it only occurs if he goes from a bent over to a standing position." Id . Dr. Sauer planned to begin Plaintiff on a course of caudal epidural steroid injections, but Plaintiff noticed no improvement from the initial injection. Id. at 639-40. A second injection yielded similar unsuccessful results. Id. at 641-42. A third injection was to be performed, but if it resulted in no relief then Dr. Sauer was to begin injections into the facet joints themselves. Id. at 642. Dr. Sauer noted on Plaintiff's May 16, 2002, reevaluation that the previous visit's injection produced "almost 100% improvement in his pain, which almost lasted one month." Id. at 644. Repeat facet injections were conducted due to the "excellent relief" they produced. Id. at 645. Unfortunately, even with the success of the injections the pain began to slowly return to Plaintiff's back. Id. at 646-47. Dr. Sauer planned on performing radiofrequency neurolysis of the L4-L5 medial branch in addition to the contributing branch from L3-L4 laterally. Id. at 647. This procedure did not relieve Plaintiff's pain. Id. at 648. Throughout most of Plaintiff's course of injections, Dr. Sauer had placed him on Roxicodone, which gave Plaintiff about 75% pain relief. Id . Pain management physician Dr. Wenz felt that Plaintiff should continue on his medications since they produced no side effects and offered relief from pain. Id.

On August 26, 2002, Plaintiff was re-evaluated by Dr. Sauer. Id. at 649. At this appointment, Plaintiff asked to return to facet joint injections since they had helped him with pain in the past. Id . In October, Dr. Sauer noted that the facet joint injections provided relief and Plaintiff's pain was reported as tolerable due to medication. Id. at 650. The following month, Plaintiff requested the injections because they helped him, but was not sure if they were actually helping with his pain. Id. at 651. In December, Dr. Sauer reported that Plaintiff requested the injections before traveling for the holidays since they did provide him with significant relief. Id. at 653. This injection relieved 90% of Plaintiff's pain for at least a two-week period. Id. at 654.

In early January, Dr. Sauer noted that it was unlikely, even though injections and medications made the pain tolerable, that Plaintiff would ever be able to get his pain 100% under control. Id . Dr. Sauer stated that Plaintiff "is going to need continued pain management, conceivably for the rest of his life." Id. at 681. From February 2003 to January 2004, Plaintiff's visits to Dr. Sauer yielded the same results. Id. at 676-80. Plaintiff maintained his medication regime and received facet joint injections as needed. Id. at 676-80. Plaintiff's last visit to Dr. Sauer was in July 2004. Id. at 157. It was again reported that Plaintiff obtained relief from the injections, and reduced his pain to a more manageable state with medication, but he still suffered from chronic lower back pain and lumbar facet joint syndrome. Id . Dr. Sauer halted treatment after learning of Plaintiff's alleged doctor shopping for narcotic medications. Id. at 156.

In December 2003, an independent medical evaluation was conducted by Dr. Delasotta, a neurological surgeon, who believed Plaintiff had reached his maximum medical improvement, and that there was a low likelihood that he would get much better given that his symptoms had showed chronic patterns of improvement and deterioration. Id. at 272-76. A second, independent evaluation was done at the request of Plaintiff's attorney by Dr. Tobias, a general surgeon, in November 2004. Id. at 277. Dr. Tobias reported that there was a restriction of function and lessening to a ...

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