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Simmons v. Comm'r of Soc. Sec.

United States District Court, S.D. New York

May 8, 2015


For Kathy Jo Simmons, Plaintiff: Howard David Olinsky, Olinsky Law Group, Syracuse, NY.

For Commissioner of Social Security, Defendant: Leslie A. Ramirez-Fisher, United States Attorney's Office, Southern District of New York, New York, NY.


FRANK MAAS, United States Magistrate Judge.

Plaintiff Kathy Jo Simmons (" Simmons" ) brings this action pursuant to Section 205(g) of the Social Security Act (" Act" ), as amended, 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of Social Security (" Commissioner" ) denying her application for disability insurance benefits. The parties have filed cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. This Opinion and Order explains why the Commissioner's motion, (ECF No. 21), has been granted, and Simmons' cross-motion, (ECF No. 23), has been denied.

I. Background and Procedural History

On December 8, 2010, Simmons filed an application for Social Security disability insurance benefits, alleging that she became disabled on June 1, 2007. (Tr. 140-46).[1] On May 6, 2011, after the Social Security Administration (" SSA" ) denied her application initially, Simmons and her counsel requested a de novo hearing before an Administrative Law Judge (" ALJ" ). (Id. at 98-103, 108-09). That hearing was held before ALJ Katherine Edgell on January 18, 2012. (Id. at 36-71). On March 12, 2012, ALJ Edgell issued a written decision in which she determined that Simmons was not disabled within the meaning of the Act. (Id. at 23-35). That decision became the final decision of the Commissioner on May 31, 2013, after the Appeals Council denied Simmons' request for further review. (Id. at 1-5).

On August 7, 2013, represented by different counsel, Simmons filed this action seeking review of the Commissioner's final decision. (ECF No. 2). Both parties subsequently consented to my jurisdiction for all purposes. (ECF No. 16). The Commissioner moved for judgment on the pleadings on July 7, 2014, (see ECF Nos. 21, 22), and Simmons cross-moved for judgment on the pleadings on July 21, 2014, (see ECF Nos. 23, 24). The Commissioner further filed a reply memorandum of law on August 4, 2014. (ECF No. 25). No further briefing having been received since then, both motions are deemed fully submitted.

The Commissioner asserts that the ALJ's decision is legally correct and supported by substantial evidence, while Simmons contends that the ALJ's residual functional capacity determination (" RFC" ), assessment of Simmons' credibility, and conclusion that Simmons can perform past relevant work, are not supported by substantial evidence.

II. Factual Background

A. Non-Medical Evidence

Simmons was born in 1955, and was fifty-six years old at the time of her hearing. (Tr. 41). She completed high school, but has had no further vocational training or education. (Id. at 41-42, 171-72, 185-86). She last worked from 2005 until 2007 as as a housekeeper at a hotel in Middletown, New York. (Id. at 42). Between 2004 and 2006, Simmons also worked as a restaurant hostess at the Monticello Raceway. (Id. at 44). Simmons testified that in the course of that job, she had to take reservations, greet and seat patrons, take orders, set and clear tables, work the cash register, and occasionally work in the kitchen and " get big platters." (Id. at 44). Between approximately 2006 and November 2011, Simmons also sold Avon products, working four hours per day, and, shortly before the hearing before the ALJ, had begun attempting to sell homemade gift baskets on eBay. (Id. at 55-56, 60).

Simmons testified that she was unable to work because of incontinence, neck stiffness, and back pain due to scoliosis. (Id. at 48-49; see also id. at 166). Simmons claimed that her chronic orthopedic pain stemmed from an automobile accident in 2007 and a second one in 2008. (Id. at 43, 50). According to Simmons, her neck would " lock[]" to the point where she could not turn it or bend it forward and back (id. at 48-49); her back pain prevented her from " stand[ing] too long" and from sitting for more than fifteen minutes, and often forced her to sleep in a recliner at night (id. at 49, 65-66); she often could not " hold [her] bladder" (id. at 65); could not lift or hold a gallon of milk with her right hand and occasionally had numbness in her hands (id. at 67); and could reach forward, but not overhead, and squat and crouch, but not bend over to pick things up from the ground (id. at 67-69).

Simmons testified that during the course of a typical day, her medical conditions prevented her from making the bed, reaching for dishes in her kitchen cabinets (id. at 54-55), or shopping and cooking (id. at 61); limited her to only light cleaning (id. at 62); prevented her from lifting a laundry basket (id.); limited to one-half hour the time she could spend on her computer pursuing her gift-basket-making business (id. at 55); and at times prevented her from working at all (id. at 61). Nevertheless, Simmons attended community events, walked twenty to thirty minutes per day when the weather permitted, and did home therapy exercises recommended by her doctor. (Id. at 62-63).

B. Medical Evidence

The medical evidence is set forth in considerable detail in the parties' briefs. (See ECF No. 22 (Comm'r's Mem. of Law) (" Def.'s Mem." ); ECF No. 24 (Pl.'s Mem. of Law) (" Pl.'s Mem." )). That evidence establishes that Simmons received continuing medical treatment after both her 2007 and 2008 automobile accidents.

1. Treatment After the First Accident

Following the first accident, which occurred in Alabama, Simmons declined transportation by ambulance, but went to an emergency room, where she reported having been stopped at a light when her vehicle was rear-ended by another vehicle traveling at a low speed. (Tr. 221, 224). Simmons presented with a mild injury to her neck -- causing muscle spasms and pain upon movement -- and a seat belt abrasion on her left shoulder. (Id. at 221, 223). The radiologist's impressions included " focal arthritic change at [the] C5-6 [level]" and " loss of the normal cervical curve," possibly as " a function of muscle spasm." (Id. at 226). Simmons spent approximately four and one-half hours at the hospital before being discharged. (Id. at 221).

After her return to New York, Simmons underwent a series of imaging studies. An MRI of her cervical spine on June 20, 2007, revealed " [m]ild flexion deformity" and " mild rotatory scoliosis," which " raise[d] the possibilities of facet injury." [2] (Id. at 228). " Diffuse degenerative changes [of] the discs with focal bulges at C4-5 through C6-7" also were detected. (Id.). An MRI of Simmons' lumbar spine on July 12, 2007, revealed " degenerative spondylosis[3] [of the] L4-5 and L5-S1 [vertebrae] with diffuse disc bulges" and " partial sacralization[4] of [the] L5 [vertebra]," but " no acute disc herniations." (Id. at 229). Finally, an MRI of Simmons' thoracic spine on August 13, 2007, revealed " focal dextroscoliosis[5] in the mid-thoracic spine" to which " splinting or spasm may contribute." " No thoracic disc herniation [was] identified." (Id. at 230-31).

While these studies were underway, on June 21, 2007, Simmons visited Dr. Govindlala Bhanusali, an orthopedic surgeon. (Id. at 319-20). Simmons reported significant pain in her neck and lower back, headaches, and numbness and tingling in both hands. (Id. at 319). " Examination of [her] cervical spine revealed mild tenderness," but nearly a full range of motion, as well as the absence of " any excruciating pain." (Id. at 320). Simmons had " tenderness in [her] lower lumbar spine," and her range of movement was " painful and limited," but there was no muscle spasm. (Id.). Examination of Simmons' shoulders, elbows, and wrists revealed a full range of motion and nothing abnormal. (Id.). Straight leg raising was sixty degrees on both sides, and deep tendon reflexes were described as " 2" in all extremities. (Id.). An x-ray revealed degenerative changes in her cervical spine, but no fractures or dislocation. (Id.). Dr. Bhanusali advised Simmons to continue to refrain from working and prescribed Oruvail.[6] (Id.). A follow-up visit with Dr. Bhanusali on July 21, 2008, led to similar findings. (Id. at 321).

Simmons received continuing chiropractic treatment from June 13, 2007, through January 8, 2008. (See id. at 260-94). Simmons also had eight weeks of physical therapy beginning October 1, 2007. (Id. at 244). On or about June 18, 2007, one of her chiropractors, Dr. Deborah Cassidy, opined that Simmons would not be able to return to work until August 1, 2007. (Id. at 274; see also id. at 267 (form dated June 18, 2007, certifying need for FMLA leave)). On January 7, 2008, another chiropractor, Dr. Christine Kmiec, indicated that Simmons was partially disabled and unable to return to work due to, inter alia, disk bulges and a limited and painful range of motion in her cervical and lumbar spine. (Id. at 277).

After the first accident, Simmons also consulted with other physicians. On August 21, 2007, Simmons visited Dr. Steven Jacobs, a neurosurgeon. (Id. at 242). Simmons reported radiating neck pain and back pain, " exacerbated by activity and relieved by rest," as well as " numbness and tingling in both hands." (Id.). Dr. Jacobs observed a " decreased range of motion of the neck laterally to the left." (Id.). Dr. Jacobs also reviewed Simmons' three prior MRI examinations. The doctor noted a " flexion deformity and rotary scoliosis" in Simmons' cervical spine, as well as " bulging discs at C4-5, C5-6 and C6-7," " degenerative spondylosis [in her lumbar spine] at L4-5 and L5-S1 with bulging discs," and the absence of " any herniated disc" in her thoracic spine. (Id. at 242). Dr. Jacobs ordered a CT of Simmons' cervical spine, flexion extension films and a brain CT. (Id.). The cervical spine CT revealed " moderate degenerative disc disease . . . at C4-C5, C5-C6 with reversal of the normal cervical lordosis, but no fracture or facet dislocation or subluxation." (Id. at 245). X-rays of the cervical spine yielded similar results. (Id. at 246). The CT scan of Simmons' brain showed " no abnormal intra or extraaxial collections or hemmorhage[, n]o abnormal masses or mass effect[,] . . . [n]o accute cortical infractions," and ultimately, " no focal or intracranial lesion." (Id. at 247).

At a September 11, 2007 follow-up examination, Dr. Jacobs noted that the cervical spine CT and flexion extension films were " all negative," with " no dislocation and no facet fracture." (Id. at 241). Dr. Jacobs stated that Simmons' " exam continues to be benign" and ordered physical therapy, but did not " see any indication for surgery." (Id.).

On October 31, 2007, Dr. Raymond Hui, Simmons' primary care doctor, diagnosed Simmons with costochondritis and Raynaud's syndrome. (Id. at 51, 378). On January 11, 2008, Dr. Hui diagnosed Simmons as suffering from Raynaud's syndrome, along with high blood pressure. (Id.).[7]

On October 31, 2007, Simmons visited Dr. Valpet Sridaran, a physiatrist, reporting headaches, neck stiffness, neck pain that tended to radiate into her upper extremities, and back pain that had not abated despite therapy and medications. (Id. at 360). Dr. Sridaran noted that Simmons' neck movements were " guarded [and] lacking spontaneous movements," but that she was able to " transfer, sit, stand and move about without assistance." (Id. at 361). He further reported " tenderness in the paracervical muscles as well as the upper torso muscles bilaterally" and " tenderness at the C5-C6 level." (Id.). Dr. Sridaran found that Simmons' " [p]assive range of motion of the neck [was] voluntarily restricted and guarded." (Id.). With respect to Simmons' back, he noted " diffuse paralumbar muscle tenderness on [Simmons'] right side," finding that Simmons could rotate up to twenty degrees to either side without experiencing pain. (Id.). Dr. Sridaran recommended trigger point injections in the areas where Simmons was experiencing pain, but she declined that treatment. (Id. at 362).

Simmons visited Dr. Sridaran again on November 29, 2007. (Id. at 358-59). Dr. Sridaran observed " mild tenderness in [Simmons'] lower spinal region in L3-S1 and in the paralumbar region," and that her " [f]lexion and extension [were] voluntarily restricted." (Id. at 358). There was " mild weakness in the flexors and extensors of the neck," as well as " [m]ild tenderness in the right paracervical region; " additionally, her " [p]assive range of motion of the neck [was] voluntarily guarded and restricted." (Id.). Dr. Sridaran concluded that Simmons had a cervical sprain, carpal tunnel syndrome, lumbosacral radiculopathy, and occipital neuralgia. (Id. at 359).

During a follow-up visit on January 4, 2008, Simmons complained of " generalized body pain, easy fatigability, and sleeplessness." (Id. at 357). Dr. Sridaran reported " diffuse tenderness in the paravertebral muscles including the cervical, thoracic, and paralumbar regions with islands of trigger points." (Id.). He found possible signs of fibromyalgia, and concluded Simmons had a " temporary mild disability" and that she " cannot do any heavy lifting." (Id.).

On January 10, 2008, Simmons consulted Dr. Sunitha Polepalle, a pain management specialist. (Id. at 299-300). Simmons presented complaining of back, neck and bilateral shoulder pain, aggravated by " [b]ending, pushing, pulling, lifting, standing, and sitting," as well as " paraesthesias[8] in her arms." (Id. at 299). Physical examination revealed restrictions in neck movement, positive results for Phalen and Tinel signs,[9] primarily in Simmons' right hand, and negative straight leg raising, but that lateral leg rotation increased her pain. (Id. at 300). Dr. Polepalle assessed Simmons as having a " history of myofascial pain," found " [h]er back pain [was] due to lumbar facet dysfunction," found " upper extremity paresthesias," and noted " aneurysmal dilation[10] . . . on the MRI of the cervical spine." (Id.). Dr. Polepalle recommended trigger point injections. (Id.). On February 16, and March 15, 2008, Simmons had follow-up visits with Dr. Polepalle who recommended continued physical therapy and treatment with heat. (Id. at 297-98).

On June 3, 2008, Simmons underwent an MRI of her left shoulder at the Orange Regional Medical Center. (Id. at 324). The radiologist's impresssions were " supraspinatus tendinopathy, partial thickness tear vs. tendonitis," but with " no evidence of full thickness tear of the rotator cuff; " " mild subacromial bursitis; " " small glenohumeral joint effusion; " and " mild hypertrophic degenerative osteoarthritic changes of the acromioclavicular joint with inferior osteophytes . . . consistent with an impingement syndrome." (Id. at 325).

2. Treatment After the Second Accident

On September 8, 2008, Simmons was transported by ambulance to the Orange Regional Medical Center in Middletown, New York, after a second automobile accident. (Id. at 381-405). Simmons was admitted at 1 p.m. and discharged at 2:35 p.m. (Id. at 384, 388). She complained primarily about back pain. (Id. at 389). A physical examination revealed " mild [right-sided]" tenderness of the supravlavicular (" SCM" ) and trapezius muscles, " [n]o spinal tenderness[, f]ull range of motion of [her] cervical spine," " [p]ositive right sided paralumbar muscle tenderness[, n]o vertebral tenderness . . . [and a f]ull range of motion" with " no tenderness" in her back. (Id. at 392). Upon her discharge, Simmons received a form stating that she could return to work without restriction on September 4, 2008. (Id. at 403).

On September 23, 2008, Dr. Polepalle ordered an MRI of Simmons' thoracic spine, which revealed dextroscoliosis, but " no evidence of disc herniation or significant stenosis," or " abnormal cord signals." (Id. at 326).

On November 4, 2008, Simmons visited Dr. Sridaran. (Id. at 354). Dr. Sridaran noted that Simmons complained of " pain in [her] neck, shoulders, mid and low back region, hips and lower extremities," which was " aggravated by any strenuous activity" and left her " unable to do household chores." (Id.). Dr. Sridaran noted that Simmons " appear[ed] to be apprehensive and anxious" and that her " movements [were] guarded." (Id. at 355). He also noted that Simmons' " [p]assive range of motion of the neck [was] resisted and voluntarily restricted," and that she had mild tenderness in her right paracervical region. (Id.). There also was mild tenderness of the right side paralumbar muscles in Simmons' mid and low back. (Id.). Simmons " resisted straight leg movements . . . with much force" but had normal range of motion in her leg joints. (Id.). Simmons' " [r]ight shoulder abduction [was] . . . painful and restricted," limited to thirty degrees, and met with " very hard resistence." (Id.). Simmons was able to " abduct and move [her] arm and rotate [her] shoulder on the left side when she [was] supine." (Id.). Her muscle tone was normal but " hard to assess" because she was " really rigid and resist[ed] any passive movement." (Id. at 356). Dr. Sridaran assessed Simmons as exhibiting " Cervical ...

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