United States District Court, W.D. New York
DECISION & ORDER
W. PAYSON United States Magistrate Judge
Tyrone James Davis (“Davis”) brings this action
pursuant to Section 205(g) of the Social Security Act (the
“Act”), 42 U.S.C. § 405(g), seeking judicial
review of a final decision of the Commissioner of Social
Security (the “Commissioner”) denying his
applications for Supplemental Security Income and Disability
Insurance Benefits (“SSI/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 # 7).
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 ## 11, 13). For the reasons set
forth below, this Court finds that the decision of the
Commissioner is supported by substantial evidence in the
record and complies with applicable legal standards.
Accordingly, the Commissioner's motion for judgment on
the pleadings is granted, and Davis's motion for judgment
on the pleadings is denied.
protectively filed for SSI/DIB on September 27, 2012,
alleging disability beginning on July 16, 2010, due to
scoliosis, chronic lower back pain, post-spinal fusion with
rods, limited ability to stand or sit in excess of one hour,
limited ability to engage in prolonged walking, and limited
ability to bend and lift objects. (Tr. 136,
140). On December 13, 2012, the Social Security
Administration denied Davis's claim for benefits, finding
that he was not disabled. (Tr. 72-79). Davis requested and was
granted a hearing before Administrative Law Judge Michael W.
Devlin (the “ALJ”). (Tr. 80-81, 92-96). The ALJ
conducted the hearing on July 8, 2014. (Tr. 30-51). Davis was
represented at the hearing by his attorney, Justin Goldstein,
Esq. (Tr. 30, 70). In a decision dated August 15, 2014, the
ALJ found that Davis was not disabled and was not entitled to
benefits. (Tr. 17-25).
September 24, 2015, the Appeals Council denied Davis's
request for review of the ALJ's decision. (Tr. 1-4).
Davis commenced this action on November 13, 2015, seeking
review of the Commissioner's decision. (Docket # 1).
Florida Hospital Fish Memorial Emergency
11, 2011, Davis presented to the emergency department at the
Florida Hospital Fish Memorial complaining of chronic low
back pain. (Tr. 184-86). He reported that his pain was a
level seven of ten and was exacerbated with movement.
(Id.). Davis was prescribed Vicoprofen and assessed
to have suffered a back sprain or strain. (Id.). He
was advised to follow up with Florida Orthopedics in one
returned to the emergency department on July 13, 2011,
complaining of lower back pain. (Tr. 187-90). According to
Davis, he had suffered from chronic lower back pain and was
scheduled to begin physical therapy the following day.
(Id.). He reported pain at a level ten of ten that
was exacerbated by movement, bending over, standing, and
walking. (Id.). Upon examination, Davis exhibited
normal range of motion and alignment, with moderate
tenderness in the mid-lumbar region. (Id.). The
straight leg raise test was negative. (Id.). Davis
was discharged with prescriptions for a Salonpas pain patch
with capsaicin, a Prednisone dose pack, Motrin, and Flexeril.
(Id.). He was advised to follow up with his primary
care provider. (Id.).
Florida Hospital Fish Memorial Outpatient
29, 2011, Davis began treatment at the Florida Hospital Fish
Memorial Outpatient Rehabilitative Services Department. (Tr.
191-92, 197-98). On that date, Davis was evaluated for
exacerbation of his lower back pain. (Id.). He
reported decreased tolerance for prolonged sitting and
standing. (Id.). He was assessed to require
treatment for significant soft tissue restrictions,
flexibility issues, mild hip weakness, decreased core
strength and lumbar stability, and decreased lumbar and ankle
range of motion. (Id.). Davis attended physical
therapy appointments during July and August 2011. (Tr.
196-204). During that time, Davis had fair attendance and
made slower than expected progress. (Id.).
Strong Memorial Hospital Emergency
25, 2012, Davis presented at the emergency department of
Strong Memorial Hospital complaining of chronic back pain.
(Tr. 254-61). He reported a history of scoliosis surgery and
worsening back pain. (Id.). He indicated that he had
recently moved to the area and did not yet have a primary
care physician. (Id.). Upon examination, Davis
exhibited spasm in his lumbar back without bony tenderness.
(Id.). He was diagnosed with chronic back pain and
discharged home with prescriptions for Flexeril and Tramadol.
(Id.). He was also provided contact information for
primary care physicians and a spine doctor. (Id.).
Cornhill Internal Medicine
records indicate that Davis met with Rajendra Singh
(“Singh”) at Cornhill Internal Medicine on
November 14, 2012, to establish primary care. (Tr. 208-09).
During the visit, Davis reported a long history of chronic
back pain and that he had undergone a spinal fusion at the
age of 12. (Id.). Davis reported that he had rods
and plates in his back that had never been removed due to
lack of insurance. (Id.). He also reported increased
pain since 2007, but that he had not sought treatment because
he lacked insurance. (Id.). According to Davis, he
had dropped out of school for business management due to back
pain and had recently moved to Rochester and had obtained
examination, Singh noted tenderness of the lumbosacral spine
with no restrictions on movement. (Id.). The
straight leg raise test was negative on the right side and
positive at thirty degrees on the left side. (Id.).
Davis exhibited five out of five power in his lower
extremities, the ability to walk on his heels and toes, and
normal reflexes. (Id.). Singh assessed chronic back
pain. (Id.). Singh ordered an x-ray of his lumbar
spine and referred him to physical therapy and an orthopedic
surgeon. (Id.). He prescribed Proximal,
Amitriptyline, and Tramadol. (Id.).
December 20, 2012, images were taken of Davis's spine.
(Tr. 268-69). The images revealed no evidence of hardware
fracture. (Id.). On February 5, 2013, Davis returned
for a follow-up appointment with Singh. (Tr. 270-72).
Treatment notes suggest that since the last appointment,
Davis had undergone a CT scan of his spine and had met with
Dr. Paul Rubery, a spine specialist who had recommended
conservative treatment without surgical intervention.
(Id.). Davis had been referred for physical therapy
and was prescribed Amitriptyline, Naproxen, and Tramadol.
(Id.). Despite the medications, Davis reported that
he continued to experience pain in his upper and mid back.
(Id.). Upon examination, Singh noted lumbar
kyphosis, but no tenderness to palpation. (Id.).
Davis's forward flexion and lateral bending movements
were somewhat painful and restricted. (Id.). The
straight leg raise test was negative bilaterally.
(Id.). Davis was able to walk on his heels and toes
and demonstrated full strength and reflexes in his lower
extremities. (Id.). Singh advised Davis to continue
with the medications and physical therapy recommended by Dr.
Rubery and to return for a follow-up appointment in three
Rochester General Hospital
December 27, 2012, Davis presented to the emergency
department at Rochester General Hospital complaining of back
pain after shoveling snow earlier that afternoon. (Tr.
241-47). Davis reported that he had taken Tramadol, Naproxen,
and Amitriptyline without relief. (Id.). According
to Davis, his pain was moderate and did not radiate, although
it interfered with his sleep. (Id.). Upon
examination, Davis exhibited normal range of motion in his
thoracic and lumbar back, with bilateral lower thoracic
paraspinal tenderness. (Id.). Davis was discharged
with Valium and Norco and advised to follow up with his
primary care physician or back specialist. (Id.).
Paul Rubery, MD
attended a consultative appointment with Paul Rubery
(“Rubery”), MD, on January 7, 2013. (Tr. 249-50).
Davis reported ongoing lower back pain and that he had
undergone an anterior posterior fusion at ¶ 10-L4 as a
teenager to address his congenital kyphosis. (Id.).
Treatment notes suggest that Davis was a trained sports
journalist, but was not currently working. (Id.).
Upon examination, Rubery noted no discomfort, normal gait,
normal toe walk, normal heel walk, normal tandem gait, normal
Romberg test, normal straight leg raise, and no midline
stigmata. (Id.). Rubery did note a slight anterior
lean in Davis's sagittal balance and pain when Davis
flexed to bring his hands to his knees. (Id.).
Rubery assessed back pain after an extensive fusion for
congenital kyphosis. (Id.). He ordered a CT scan to
assess fusion healing and referred Davis for physical
therapy. (Id.). The imaging was conducted on January
28, 2013. (Tr. 251-52, 265-67). The imaging showed status
post left lateral and bilateral posterior spinal fusion at
¶ 10 through L4 with no evidence of hardware
February 11, 2013, Davis returned for an appointment with
Rubery. (Tr. 278). During the appointment, Rubery reported
that the CT scan revealed a solid fusion without any clear
evidence of pseudarthrosis. (Id.). He did note that
there was mild wear and tear in one disc. (Id.).
Rubery opined that Davis's ongoing pain might be due to a
lumbar kyphosis and that physical therapy was the best
approach to maintaining back strength. (Id.). Rubery
advised against further surgery, believing it was unlikely to
provide predictable relief. (Id.). Davis was
frustrated by the inexact nature of the diagnosis and the
advisement against surgery. (Id.).
returned to Rubery's office on August 6, 2013, and met
with Deborah Horst (“Horst”), NP. (Tr. 290).
Davis reported that he continued attending physical therapy
and had completed his second course without relief.
(Id.). Davis expressed frustration and indicated
that he would like something more done because he had not
experienced any significant response after two courses of
physical therapy. (Id.). Horst ordered an MRI and
advised Davis to return for a follow-up appointment with
Rubery. (Id.). The MRI was conducted on August 13,
2013. (Tr. 291-92). The metal rods in Davis's back
obstructed visualization of the lumbar spine. (Id.).
Sports and Spine Rehabilitation
attended two physical therapy appointments at University
Sports and Spine Rehabilitation in January 2013. (Tr.
274-77). During each visit, Davis rated his pain at a level
four and reported improvement with home exercise.
(Id.). With therapy, Davis was able to improve his
range of motion, strength, and functioning. (Id.).
30, 2013, Jillian Collins (“Collins”) conducted a
lumbar spine evaluation. (Tr. 279-83). She noted that Davis
suffered from a fixed kyphosis and that he had previously
undergone rehabilitation in January 2013. (Id.).
According to the treatment notes, Davis's doctors had
recommended conservative treatment with medication and
physical therapy. (Id.). Davis reported that his
last physical therapy session had improved his flexibility,
although he continued to experience pain. (Id.).
reported that he was not working due to back pain, but that
he completed housekeeping chores, worked out using free
weights, and walked approximately 2.5 miles twice a week.
(Id.). He indicated that his pain worsened with
bending, sitting, or prolonged standing and was alleviated by
lying down or performing bridging exercises. (Id.).
Upon examination, Collins noted significant tightness in