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Davis v. Colvin

United States District Court, W.D. New York

February 27, 2017


          DECISION & ORDER

          MARIAN W. PAYSON United States Magistrate Judge


         Plaintiff 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).

         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 ## 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.


         I. Procedural Background

         Davis 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).[1] On December 13, 2012, the Social Security Administration denied Davis's claim for benefits, finding that he was not disabled.[2] (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).

         On 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).

         II. Relevant Evidence[3]

         A. Medical Records

         1. Florida Hospital Fish Memorial Emergency Department

         On June 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 week. (Id.).

         Davis 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.).

         2. Florida Hospital Fish Memorial Outpatient Rehabilitative

         On June 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.).

         3. Strong Memorial Hospital Emergency Department

         On June 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.).

         4. Cornhill Internal Medicine

         Treatment 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 insurance. (Id.).

         Upon 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.).

         On 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 months. (Id.).

         5. Rochester General Hospital

         On 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.).

         6. Paul Rubery, MD

         Davis 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 complication. (Id.).

         On 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.).

         Davis 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.).

         7.University Sports and Spine Rehabilitation

         Davis 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.).

         On May 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.).

         Davis 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 Davis's ...

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