Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kretovic v. Colvin

United States District Court, W.D. New York

March 24, 2015

KAREN LEEANN KRETOVIC, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff Karen Leeann Kretovic ("Kretovic") brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying her application for Disability Insurance Benefits ("DIB"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 14).

Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 10, 13). For the reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim for further administrative proceedings consistent with this decision.

BACKGROUND

I. Procedural Background

Kretovic protectively filed for DIB on March 31, 2011, alleging disability beginning on July 9, 2010, due to left hip osteoarthritis, end plate sacral area edema, left and right hip bursitis, anxiety, depression and degenerative disc disease. (Tr. 255, 277, 296).[1] On May 26, 2011, the Social Security Administration denied Kretovic's claim for benefits, finding that she was not disabled. (Tr. 69). Kretovic requested and was granted a hearing before Administrative Law Lawrence Levey (the "ALJ"). (Tr. 20, 83-91, 192-96). The ALJ conducted a hearing on November 5, 2012 in Rochester, New York. (Tr. 30-68). In a decision dated November 20, 2012, the ALJ found that Kretovic was disabled beginning on March 23, 2012, but was not disabled or entitled to benefits prior to that date. (Tr. 13-20).

On March 22, 2013, the Appeals Council denied Kretovic's request for review of the ALJ's decision. (Tr. 1-4). Kretovic commenced this action on May 30, 2013 seeking review of the Commissioner's decision. (Docket # 1).

II. Relevant Medical Evidence[2]

A. Treatment Records

1. Ridgewood Medical Records

Treatment notes indicate that Kretovic received treatment from Michael T. Herbowy ("Herbowy"), MD, beginning in at least October 2008. (Tr. 454). On October 15, 2008, Kretovic attended an appointment with Herbowy for evaluation of her right shoulder. ( Id. ). During the appointment, Kretovic reported that she wanted to postpone evaluation of her right shoulder because she had been in a motor vehicle accident two days earlier. ( Id. ). Kretovic reported neck, back and left hip pain without bruising, bleeding or hematuria. ( Id. ). Upon examination, Herbowy noted that Kretovic's spine was not tender, but that there was marked paraspinous tenderness of the rhomboids and paraspinal muscles of the thoracic spine bilaterally, with the left worse than the right. ( Id. ). Herbowy assessed normal strength and tone in the left upper extremity and assessed that Kretovic's right upper extremity was limited due to known right rotator cuff pathology. ( Id. ). Herbowy noted that a straight leg test was negative and that Kretovic had tenderness upon internal rotation of the left hip and tenderness of the greater trochanter. ( Id. ). Herbowy diagnosed a thoracic and cervical strain and a left hip contusion, and ordered x-rays of those areas. ( Id. ). Herbowy instructed Kretovic to continue taking Naprosyn and prescribed Flexeril and Vicodin. ( Id. ). Herbowy noted that Kretovic might require physical therapy and recommended that she return in ten days. ( Id. ).

On October 30, 2008, Kretovic returned for a follow-up appointment with Jessica M. Ross ("Ross"), a physician's assistant. (Tr. 454-55). Treatment notes indicate that x-rays of the thoracic and cervical spine and left hip were negative. ( Id. ). The notes further indicate that Kretovic reported some decrease in her pain and improvement in her back and neck. ( Id. ). Kretovic complained of bilateral knee pain and indicated that her knees had bruised after her last visit. ( Id. ). Kretovic reported that she planned to start physical therapy and that she continued to take Vicodin and Flexeril, which made her drowsy. ( Id. ). Upon examination, Ross noted paraspinal tenderness, normal strength in the left upper extremity and mild effusion in the knees with tenderness. ( Id. ). Ross recommended that Kretovic continue her current care for her neck, back and hip pain and ordered bilateral x-rays of her knees. ( Id. ).

Undated treatment notes indicate that Herbowy assessed that Kretovic suffered from a shoulder impingement with bilateral trochanteric bursitis. (Tr. 456). Herbowy recommended that she discontinue Naprosyn and continue Vicodin as needed and prescribed a trial of Voltaren. ( Id. ). Herbowy noted that Kretovic was awaiting surgery. ( Id. ).

On February 27, 2009, Kretovic attended another appointment with Herbowy complaining of continued left hip pain despite a negative x-ray and physical therapy. (Tr. 458). Upon examination, Herbowy noted that her spine was not tender and the straight leg test was negative, although internal rotation of the left hip produced discomfort and the greater trochanter was painful upon palpation. ( Id. ). Herbowy assessed traumatic trochanteric bursitis, recommended that Kretovic continue taking her medication, and referred her to Matthew Tomaino ("Tomaino"), MD, for evaluation. ( Id. ). Kretovic also reported that she continued to experience pain in her shoulder and diminished range of motion. ( Id. ). Upon examination, Herbowy noted that Kretovic's left shoulder was tender in the AC joint and she had difficulty with extension and external rotation of the right shoulder. ( Id. ). Herbowy assessed persistent rotator cuff pain, likely secondary to a tear, and referred her to Tomaino for evaluation. ( Id. ).

On May 28, 2009, Kretovic informed Herbowy that she had been approved for shoulder surgery and that her trochanteric bursitis had "flared on and off." ( Id. ). Upon examination, Herbowy noted tenderness in her right shoulder, no tenderness in her spine, a negative straight leg test, full range of motion in her hips with discomfort upon internal rotation. ( Id. ).

Undated treatment notes indicate that Kretovic returned for treatment complaining of pain in her left hip. (Tr. 459). Kretovic reported that her hip "gives out" when she walks, causing a sharp pain. ( Id. ). She reported that her pain improves when she takes her medication and stated that she had never gone to physical therapy. ( Id. ). Kretovic also reported that the pain makes her sit "off to right side" and that she sometimes hears a click or a pop walking up or down stairs. ( Id. ). Upon examination, Kretovic's hip demonstrated tender areas, full range of motion with tenderness upon hip flexion, extension, abduction and internal rotations, but no palpable click or pop. ( Id. ). She was instructed to undergo another x-ray of her left hip, to continue her current medications, and to consider physical therapy or an orthopedic consultation. ( Id. ).

Kretovic had another physical examination in late January 2010.[3] (Tr. 460-63). During the examination, she demonstrated full range of motion in her back with no tenderness upon palpation and five out of five strength in her extremities. ( Id. ). She was assessed to suffer from right shoulder and bilateral hip pain, and the treatment notes indicate that she was being treated by Michael Colucci ("Colucci"), MD, for hip pain and Tomaino for shoulder pain. ( Id. ). The treatment notes also indicate that Tomaino planned to perform arthroscopic surgery on her shoulder in February and that Colucci was considering surgery or pain management to address her hip pain. ( Id. ). The treatment notes suggest that Kretovic had gone to physical therapy and received cortisone shots to address her bilateral hip pain. ( Id. ). The notes also suggest that she had back surgery in 1986. ( Id. ). Upon examination, no numbness, tingling or weakness was noted, and Kretovic demonstrated positive findings for right shoulder, bilateral hip and bilateral knee pain, but no lower back pain. ( Id. ).

Undated treatment notes indicate that Kretovic returned for treatment complaining of increased pain in her left hip. (Tr. 464). Kretovic reported that she had attended an appointment with Colucci on June 12, 2010, after undergoing an MRI on June 8, 2010. ( Id. ). She indicated that Colucci had only discussed her hip bursitis, although the MRI had revealed other abnormalities. ( Id. ). Kretovic reported that cortisone shots were not effective and that Vicodin and Percocet were not offering relief. ( Id. ). Upon examination, she demonstrated no tenderness upon palpation of the bony landmarks in her hip, full range of motion with tenderness upon internal rotation, and strength was assessed to be five out of five. ( Id. ). The treatment plan included contacting Colucci to determine the MRI results and referring Kretovic for pain management. ( Id. ).

Kretovic returned for a follow-up appointment for her continued left hip pain. ( Id. ). She reported that the pain management clinic was unable to provide further relief because she had already received cortisone injections. ( Id. ). Kretovic reported that she had an appointment scheduled with Colucci on August 18, 2010 to attempt to determine whether her lower back pain was contributing to her hip pain. ( Id. ). She also reported that she had returned to work for four hours that day. ( Id. ). Upon examination, Kretovic demonstrated full range of motion in her left hip, except she resisted abduction and internal rotation, and no tenderness was noted upon palpation. ( Id. ).

Kretovic returned for treatment complaining of back pain that radiated to her hips and legs. (Tr. 465). She reported that she had decided against having surgery with Dr. Capicotto. ( Id. ). In addition, she reported that Dr. Gargano at the pain management clinic had recommended epidural steroid injections, but would not be able to administer an injection until February 2011. ( Id. ). Kretovic reported that her current medications did not offer much relief. ( Id. ). Upon examination, she demonstrated no tenderness over her spine with positive paraspinal lumbar tenderness, full range of motion with increased tenderness with extension, strength of five out of five and a negative straight leg raise. ( Id. ). Kretovic was prescribed an increased dose of Neurotonin and advised to follow-up with Dr. Gargano for injections. ( Id. ).

Treatment notes indicate that Kretovic called and complained that the increased dosage of Neurotonin was too sedating and that Tramadol and Vicodin offered no relief. ( Id. ). She reported taking Percocet with some relief and requested a refill of her prescription. ( Id. ). During a subsequent phone call, Kretovic reported that she had received a cortisone injection at the pain management clinic, but that it had provided only four days of relief. ( Id. ).

Treatment notes indicate that Kretovic attended an appointment with Guinevere Hellems ("Hellems"), a physician's assistant. (Tr. 466). During the visit, she continued to complain of left hip and back pain. ( Id. ). Upon examination, Hellems noted no tenderness of the lumbar spine, the paraspinal muscles or the SI joints, and a negative straight leg raise and strength of five out of five, but noted increased pain upon internal rotation of the left hip. ( Id. ). Kretovic reported that Dr. Gargano had suggested a referral to an orthopedic physician for evaluation. ( Id. ).

On May 4, 2011, Kretovic attended an appointment with Herbowy complaining of left hip pain. (Tr. 467). She reported that the injections had failed to relieve her pain and that she was waiting for another opinion from an orthopedist. ( Id. ). Upon examination, Herbowy noted that her lumbar spine and paraspinal muscles were non-tender and that the straight leg test was negative. ( Id. ). Herbowy also noted that she was very tender upon internal rotation of her left hip. ( Id. ). Herbowy felt that Kretovic's left hip had not been fully assessed and determined that she might suffer from a labral tear from the motor vehicle accident. ( Id. ). He referred Kretovic to Dr. Giordano at Strong for evaluation. ( Id. ).

On June 19, 2012, Kretovic attended an appointment with Casey M. Hanaburgh ("Hanaburgh"), a physician's assistant. (Tr. 554-57). She reported that she continued to suffer from severe low back and left hip pain, which interfered with her sleep. ( Id. ). Kretovic reported that she continued to receive regular epidural injections, but that they did not provide lasting relief, and that she managed her pain with Percocet and Mobic. ( Id. ). Kretovic complained that she was lethargic and constantly tired and had been out of work since January. ( Id. ). Kretovic reported that she did not suffer from muscle aches, weakness or swelling in her extremities. ( Id. ). Upon examination, she demonstrated normal tone and motor strengths with no contractures, malalignment or bony abnormalities in her joints, bones or muscles. ( Id. ). Hanaburgh noted tenderness over the lateral hip with increased tenderness upon hip flexion and abduction. ( Id. ). Hanaburgh also noted that her gait and station were normal and her cranial nerves were grossly intact. ( Id. ).

On August 15, 2012, Kretovic attended an appointment with Veronika McGraw ("McGraw"), a physician's assistant. (Tr. 549-54). During the appointment, Kretovic complained of swelling and redness in her right elbow. ( Id. ). Upon examination, McGraw assessed full range of motion and strength of five out of five in her arm. ( Id. ).

2. Darrick J. Alaimo, MD

Treatment records indicate that Kretovic received treatment from Darrick J. Alaimo ("Alaimo"), MD, beginning in April 2008. (Tr. 409-10). The treatment records suggest that Herbowy referred her to Alaimo for a neurological consultation. ( Id. ). According to the records, Kretovic suffered from neck pain that radiated to her right upper extremity, with associated numbness, tingling and weakness since a work injury on March 29, 2007. ( Id. ). She reported experiencing pain and numbness in her neck, right shoulder and right anterolateral arm. ( Id. ). According to Kretovic, cortisone injections provided significant relief and physical therapy provided some relief, although her sessions had been cancelled by the compensation insurance company. ( Id. ). She reported weakness in her right hand. ( Id. ).

Alaimo's notes indicate that Kretovic had previously been evaluated by Dr. Colucci, an orthopedic doctor who had opined that an MRI of her shoulder was negative, but planned to perform an arthroscope for further evaluation. ( Id. ). Upon examination, Alaimo noted tenderness to palpation of the right posterolateral cervical and trapezius muscles and Tinel's sign was positive at both elbows and wrists. ( Id. ). Additionally, Phalen's sign was positive on the right side for symptoms in right digits 4-5, although the Grind and Finklestein's tests were negative. ( Id. ). Alaimo noted no tenderness to palpation of the wrists, epicondyles or CMC joints, but did note tenderness to palpation of the right anterior shoulder. ( Id. ). Alaimo assessed pain with abduction and flexion of the right shoulder greater than 110 degrees and full internal rotation. ( Id. ). According to Alaimo, external rotation and extension of the shoulder did not reproduce any symptoms, and Kretovic had full range of motion in her left shoulder. ( Id. ).

Alaimo assessed normal muscle bulk, tone and strength in all four extremities, except for slight weakness in the right bicep and infraspinatus muscles and four out of five weakness of the right deltoid muscle, with at least some of the weakness related to pain. ( Id. ). Alaimo opined that Kretovic's sensation was normal and the Romberg test was negative. ( Id. ). Alaimo concluded that Kretovic might suffer from right upper brachial plexopathy or cervical radiculopathy, right CTS or ulnar neuropathy. ( Id. ). Alaimo recommended an EMG. ( Id. ).

On June 20, 2008, Kretovic returned for a follow-up appointment with Alaimo. (Tr. 411-12). During the appointment, Alaimo assessed that she suffered from mild right ulnar neuropathy at her elbow, which he hoped would improve with conservative measures. ( Id. ). Alaimo opined that the condition was likely the result of her sleeping position at night and not the result of her 2007 injury. ( Id. ). Alaimo did not recommend surgery. ( Id. ). With respect to Kretovic's reported right arm weakness, Alaimo opined that the EMG findings did not suggest any denervation in any muscles of her right arm. ( Id. ). Accordingly, Alaimo believed that the weakness was more likely due to pain rather than underlying muscle weakness or nerve injury or impingement. ( Id. ). With respect to Kretovic's neck pain, Alaimo indicated that there was no evidence of right cervical radiculopathy based upon the EMG results. ( Id. ). Alaimo opined that Kretovic's impairments likely stemmed from a right shoulder injury and recommended continued treatment with Colucci. ( Id. ).

3. Orthopaedic Associates of Rochester, PC

Treatment notes indicate that in July 2008 Herbowy referred Kretovic to Colucci, an orthopedist practicing at the Orthopaedic Associates of Rochester, PC. (Tr. 415). On July 17, 2008, Colucci evaluated Kretovic's right shoulder. ( Id. ). During the appointment, Kretovic complained of difficulty with overhead use of her arm, but denied numbness or tingling in her extremity. ( Id. ).

Upon examination, Colucci noted no tenderness in the cervical spine and no edema or deformities in the right shoulder. ( Id. ). According to Colucci, Kretovic could actively forward elevate her right arm to 140 degrees and abduct to 120 degrees. ( Id. ). Colucci noted positive impingement with direct abduction. ( Id. ). He also noted slight residual crepitance with internal and external rotation. ( Id. ). According to Colucci, she demonstrated strength resistance of four out of five with external rotation, and her distal motor examination was five out of five. ( Id. ). Kretovic had a strong radial pulse and her sensation was intact. ( Id. ). Colucci also noted that the electrodiagnostic study performed by Alaimo revealed mild right ulnar neuropathy without evidence of denervation or radiculopathy. ( Id. ).

Colucci assessed a persistent right shoulder impingement with moderate AC joint degenerative arthritis causally related to Kretovic's work injury. ( Id. ). Colucci recommended a diagnostic right shoulder arthroscopy, and arthroscopic subacromial decompression and possibly a rotator cuff repair. ( Id. ).

Kretovic returned for a follow-up appointment with Colucci on September 11, 2008. (Tr. 416). During the appointment, Kretovic explained that she had a surgical phobia. ( Id. ). They discussed other treatment options, and Colucci told her to return for treatment if her symptoms worsened. ( Id. ). The treatment notes indicate that Kretovic continued to work, and Colucci recommended that she be restricted from overhead use of her right arm. ( Id. ).

On November 6, 2008, Kretovic attended another appointment with Colucci. (Tr. 417). During the appointment, Colucci attempted to determine the loss of use of her right shoulder. ( Id. ). Colucci assessed limitation in her range of motion in her right shoulder and impingement with direct abductions. ( Id. ). Colucci noted no crepitance with range of motion and distal strength of five out of five. ( Id. ). Again, Kretovic demonstrated a strong radial pulse and intact sensation. ( Id. ). Colucci opined that Kretovic would likely improve with surgery and he assessed that she would qualify for twenty percent schedule loss of use of the right shoulder due to her limited range of motion. ( Id. ). Again, Colucci recommended that she be restricted from overhead use of her right arm. ( Id. ).

In June 2009, Herbowy referred Kretovic to the orthopedic practice group for evaluation of her bilateral hip pain. (Tr. 418-19). Kretovic met with David Paniccia ("Paniccia"), a physician's assistant, and reported experiencing pain in both hips since a 2008 motor vehicle accident. ( Id. ). Kretovic reported that she had been taking anti-inflammatory medications and using Vicodin to manage her pain. ( Id. ). Kretovic reported that she had been informed that she suffered from trochanteric bursitis and that her x-rays were negative. ( Id. ).

Upon examination, Paniccia noted that Kretovic was able to get onto the examination table without assistance and had a normal gait. ( Id. ). Paniccia noted tenderness over both trochanteric bursas, but no groin tenderness. ( Id. ). According to Paniccia, Kretovic's hip flexion was 90 degrees with good internal and external rotation with mild discomfort. ( Id. ). Kretovic had a negative straight leg raise and cross straight leg raise. ( Id. ). Paniccia noted that Kretovic had good range of motion in her knees bilaterally, a negative Homan's sign, good motor strength and that her CMS was grossly intact.

Paniccia reviewed images and noted that they demonstrated no signs of acute fracture, dislocation or other bony abnormalities. ( Id. ). He assessed bilateral trochanteric bursitis and administered cortisone injections for both hips. ( Id. ).

On July 28, 2009, Kretovic returned for a follow-up appointment with Colucci and reported that the cortisone injections had provided relief, although she was experiencing anterior thigh and groin discomfort bilaterally. (Tr. 420). She stated that she attempted to relieve the pain using heat, ice and anti-inflammatory medication. ( Id. ). Kretovic reported that the pain radiated down her legs bilaterally, but denied experiencing back pain, numbness or tingling. ( Id. ).

Upon examination, Colucci noted that Kretovic walked without a limp and demonstrated no tenderness in her lumbosacral spine. ( Id. ). Kretovic was able to flex forward with her fingertips to her ankles. ( Id. ). According to Colucci, Kretovic experienced no groin pain upon internal and external rotation of her hips, but was minimally tender in the greater trochanter region bilaterally. ( Id. ). Strength in Kretovic's lower extremities was five out of five bilaterally, and her sensation was intact. ( Id. ).

Colucci assessed an improved bilateral hip greater trochanteric bursitis and opined that the pain radiating to her thighs could be radiculopathy, but noted that her objective neurological findings were normal. ( Id. ). Colucci determined that Kretovic might need repeat cortisone injections if her symptoms worsened and evaluation by a spine specialist if her radicular symptoms worsened. ( Id. ). Colucci indicated that he did not recommend any restrictions. ( Id. ).

On September 8, 2009, Kretovic returned for an appointment with Colucci complaining of bilateral hip discomfort. (Tr. 422). She denied any groin pain or radicular symptoms. ( Id. ). Upon examination, she demonstrated no groin pain with internal and external rotation and mild tenderness of the greater trochanter region that was more pronounced on the left side. ( Id. ). According to Colucci, Kretovic's strength was five out of five, her sensation was intact, and the straight leg testing was negative. ( Id. ). Colucci assessed mildly symptomatic bilateral hip greater trochanteric bursitis without radiculopathy, recommended that Kretovic continue managing her symptoms with Naproxen, and indicated that she could continue to work without any hip-related restrictions. ( Id. ).

On October 6, 2009, Kretovic returned for an appointment with Paniccia, complaining of pain over the lateral aspects of her hips. (Tr. 423). Upon examination, Paniccia noted that Kretovic demonstrated a normal gait and no acute distress. ( Id. ). Paniccia noted that both hips demonstrated "exquisite tenderness" over the trochanteric bursa without groin tenderness. ( Id. ). Paniccia noted that straight leg raise and cross straight leg raise tests were negative and that her CMS was grossly intact. ( Id. ). Paniccia assessed bilateral trochanteric bursitis and administered cortisone injections. ( Id. ).

On May 18, 2010, Kretovic attended another appointment with Colucci. (Tr. 425-26). She complained of left hip discomfort without groin or calf pain, numbness or tingling. ( Id. ). Kretovic reported that her right hip was not symptomatic and denied back pain. ( Id. ). Upon examination, Colucci noted tenderness at the greater trochanter, a negative straight leg raise test, strength of five out of five, and intact sensation. ( Id. ). Colucci assessed symptomatic left hip greater trochanteric bursitis and administered a cortisone injection. ( Id. ). Colucci recommended an MRI of the left hip if her symptoms persisted. ( Id. ).

Kretovic returned for a follow-up appointment with Colucci on June 11, 2010, reporting only mild relief from the previous cortisone injection. (Tr. 428). She reported ongoing left hip pain without groin pain or radicular symptoms. ( Id. ). Upon examination, Colucci noted that Kretovic appeared comfortable and ambulated without a limp. ( Id. ). Kretovic demonstrated left hip flexion to 120 degrees without groin pain and internal and external rotation of the right hip without groin pain. ( Id. ). Colucci opined that Kretovic remained slightly tender at the greater trochanter and had mild tenderness throughout the buttock musculature without a palpable mass. ( Id. ). According to Colucci, Kretovic demonstrated strength of five out of five and intact sensation. ( Id. ).

Colucci reviewed the results of an MRI, which demonstrated mild thickening of the greater trochanteric bursae bilaterally and mild left gluteus medias tendonopathy. ( Id. ). The MRI also demonstrated slight ossification at the superolateral left acetabulum without significant degenerative change of the joint and a mild chondral wear over the superior aspect of the femoral head. ( Id. ). Colucci noted degenerative disc disease of the lumbosacral spine. ( Id. ). Colucci assessed left hip greater trochanteric bursistis and informed Kretovic that surgery was not recommended. ( Id. ). He recommended that she continue to take Naprosyn daily, which seemed to help, and noted that additional cortisone injections might be appropriate. ( Id. ).

Kretovic returned for an appointment with Colucci on July 15, 2010 complaining of left hip and low back pain. (Tr. 427). Kretovic indicated that she had gone to the Emergency Department at Unity Hospital due to the pain. ( Id. ). Kretovic denied any radicular symptoms. ( Id. ). Upon examination, Colucci assessed positive tenderness of the greater trochanter, a negative straight leg raise test, strength of five out of five and intact sensation. ( Id. ). Colucci ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.