United States District Court, W.D. New York
DECISION AND ORDER
Elizabeth A. Wolford United States District Judge.
Jennifer Lee Milliken ("Plaintiff) brings this action
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) and
seeks review of the final decision of Nancy A. Berryhill,
Acting Commissioner of Social Security ("the
Commissioner"), denying Plaintiffs application for
Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI"). (Dkt. 1).
Presently before the Court are the parties' opposing
motions for judgment on the pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure. (Dkt. 11; Dkt. 16).
For the reasons set forth below, this Court finds that the
decision of the Commissioner is not supported by substantial
evidence in the record.
Plaintiffs motion for judgment on the pleadings (Dkt. 11) is
granted, and the Commissioner's motion is denied. (Dkt.
October 31, 2011, Plaintiff filed a Title II application for
DIB and protectively filed a Title XVI application for SSI.
(Administrative Transcript (hereinafter "Tr.") at
229-45). In both applications, she alleged that she had been
disabled since July 15, 2008, due to arthritis, the impact of
prior back surgeries, and depression. (Tr. 238).
Specifically, Plaintiff complained that she injured her back
in 2002 while "rolling" a patient while working as
a Certified Nursing Assistant ("CNA"). (Tr. 46).
Plaintiffs back pain worsened over time, and, on November 12,
2008, Plaintiff underwent an "anterior lumbar interbody
fusion with cage screws and plate at ¶ 5-S1" due to
lumbar instability syndrome and degenerative disk disease.
(Tr. 305-08, 587-88). Dr. Douglas B. Moreland, M.D.
("Dr. Moreland"), from the Buffalo Neurosurgery
Group, was the Attending Physician for the procedure. (Tr.
306). Dr. Moreland surgically placed a "cage" into
Plaintiffs spine to separate her vertebrae, and then inserted
"rods and pins." (Tr. 85). Plaintiff tolerated the
procedure well and was discharged the following day. (Tr.
306). However, this surgery did not alleviate Plaintiffs back
problems, and, on August 3, 2009, she underwent a second
surgery where "pedicle screws and rods" were
inserted into her L5-S1 spinal vertebrae. (Tr. 313).
Plaintiff was also frequently examined by Dr. Eugene J. Gosy,
M.D. ("Dr. Gosy") for pain management, and she
sought physical therapy to treat her pain. (Tr. 366-426,
527-543, 584-608, 654, 668).
December 29, 2011, Plaintiffs applications were denied, (Tr.
102-113), and Plaintiff timely filed a request for a hearing
before an Administrative Law Judge ("ALJ") on
January 4, 2012. (Tr. 114-16). On February 15, 2013,
Plaintiff appeared at a hearing before ALJ Nancy L.
Pasiecznik, (Tr. 41-69), and on October 17, 2014, Plaintiff
appeared at a second hearing before ALJ Donald T. McDougall
("ALJ McDougall" or "the ALJ"). (Tr.
72-91). Vocational Expert Jeanne Beechler (the
"VE") also testified at the second hearing. (Tr.
87-89). On November 28, 2014, ALJ McDougall found that
Plaintiff was not disabled within the meaning of the Social
Security Act. (Tr. 16-38). Plaintiff requested a review of
that decision, (Tr. 11), and on February 8, 2016, the Appeals
Council denied Plaintiffs request for review, making ALJ
McDougall's decision the final decision of the
Commissioner. (Tr. 6-8). On April 15, 2016, Plaintiff filed
this action appealing the final decision of the Commissioner.
The Non-Medical Evidence
Plaintiffs Function Report
December 5, 2011, Plaintiff completed a Function Report (Tr.
246-57) in which she reported pain in her back and down her
legs that limited her activities. (Tr. 246). Plaintiff would
take a nap soon after she woke each day because her pain
medication made her tired. (Tr. 247). Before her injury,
Plaintiff could stand longer, sleep through the night, take
long walks, and walk up and down stairs without her back
hurting. (Id.). Plaintiff did not sleep well in any
position, (id.), and due to her pain, she also had
difficulty putting on pants and socks, or tying her shoes.
reported that she could clean dishes or vacuum for about 10
minutes at a time before needing to rest. (Tr. 249).
Plaintiff could also mow about half of her lawn, but someone
else would have to finish it because of her pain.
(Id.). Plaintiff was able to drive a car and go
shopping, but she would use a shopping cart for support to
prevent her back from hurting. (Tr. 249-50). Plaintiff also
reported back pain while lifting, standing, walking for too
long, sitting for too long, climbing stairs, kneeling,
squatting, and reaching. (Tr. 251-52). Plaintiff could walk
one block at a time before having to sit down and rest for a
"couple of min[utes]." (Tr. 253).
described her pain "as a sharp but sometimes a dull pain
that does not go away." (Tr. 254). The pain first began
to affect her activities after she had surgery on her back.
(Id.). Plaintiff also noted that her pain had begun
to increase in intensity, and that it was chronic and
persistent. (Tr. 255). Although Plaintiffs pain medication
would help control her pain for about 3-5 hours, it was not
always effective. (Id.).
was 42 years old on the day that the ALJ rendered his
decision. (See Tr. 16, 229). At the hearing held on
January 4, 2012, Plaintiff testified that she had a high
school education and had completed a CNA course. (Tr. 43).
Plaintiff was 5'2" tall and weighed 170 pounds.
(Id). Plaintiff lived at home with her aunt, mother,
and two children, who were then 10 and 13 years old. (Tr. 45,
60, 63). Plaintiff had worked as a CNA since 1996, but she
had not worked at any job for pay since July 15, 2008. (Tr.
44-45). Plaintiffs last day of insurance coverage was
December 31, 2013. (Tr. 44).
testified that she had injured her back in 2002 while
"rolling" over a resident at her work place. (Tr.
46). When Plaintiffs injury slowly worsened, she engaged the
services of Dr. Moreland, who performed her first surgery in
2007. (Tr. 47). Plaintiff testified that she was unable to
return to work after this surgery, and engaged Dr.
Moreland's services again for a second surgery in 2008.
further testified that she experienced sharp pain in her back
when she bent or turned in a "certain way."
(Id.). Plaintiff stated that a "sharp,
stabbing" pain would travel down her right leg, and that
her pain medication reduced the pain "a little
bit." (Tr. 48). Plaintiff also reported numbness in the
same leg, and rated the severity of her pain at about a six
out often. (Tr. 49).
testified that lying on her stomach relieved the pain, and
that she would usually lie down for about four hours a day.
(Id.). However, Plaintiff would only sleep an
average of three to four hours a night, waking up every hour
due to her pain. (Tr. 50). Plaintiff took several
medications, including Lortab, Mobic, and muscle relaxers,
which eased her pain but did not completely alleviate it.
could stand for about 10 minutes at a time, and could
probably walk half a block before she needed a break. (Tr.
51). Plaintiff estimated that she could only spend an hour
sitting, standing, or walking during an eight-hour period.
(Id.), Plaintiff testified that she could only lift
about five pounds, and that her position as a CNA required
her to lift about eighty to one hundred pounds. (Tr. 52).
Plaintiff had difficulty bending down or raising her arms
above her head, and although Plaintiff lived on the second
floor of her residence, she would usually only walk up and
down the stairs twice a day. (Tr. 52-53).
further testified that she suffered from depression and
anxiety, and that she took various medications to alleviate
these issues. (Tr. 55-57). Plaintiff also used Methocarbamol,
Meloxicam, Lortrab, and hydroxyzine pamoate to help control
her pain. (Tr. 57). Plaintiff testified that her children
helped her shop for groceries, and that she usually leaned on
the shopping cart to support her back. (Tr. 60). Plaintiff
was unable to drive for more than 15 to 20 minutes at a time
without needing a break to walk around. (Tr. 61). Plaintiffs
aunt assisted with the cooking, (id.), and while
Plaintiff could clean the dishes or vacuum, she could only do
so for five to ten minutes at a time before having to sit
down and rest for an hour. (Tr. 62).
did not socialize as much since she could not sit or stand
for very long, (id.), and she no longer enjoyed many
hobbies, such as riding her bike and walking with her
children, due to her back pain. (Tr. 63). Plaintiff also has
had problems showering after her second surgery because she
would lose her balance if she closed her eyes.
testified that she had good and bad days, and that on a bad
day, she would not get out of bed because of the pain. (Tr.
65). Plaintiff indicated that she had about four bad days a
week, and that this would negatively affect her ability to
keep a regular job schedule. (Id.). Plaintiff noted
that her pain has worsened, and that she developed pain in
her right leg after her second surgery in 2008. (Tr. 65).
then testified that after sitting for some time, she would
have to get up and walk around for about 20 minutes before
sitting again, and that simply standing up and stretching for
a minute or two would not be sufficient. (Tr. 66). Plaintiff
was then posed with a hypothetical as to whether she could
work an eight-hour work day with appropriate breaks, and she
responded that she did not believe she could successfully
make it through the hypothetical workday because she took her
pain medication every four hours and would feel very tired as
soon as she used them. (Tr. 67-68). Plaintiff further
testified that the rods and steel in her spine limited her
ability to move to the side or twist. (Tr. 68).
hearing held on February 15, 2013, Plaintiff testified that
she had sought vocational placement through a worker's
compensation proceeding, but she was told to continue
"basically doing the same thing [she] was doing."
(Id.). Plaintiff also testified that all the jobs
that were suggested for her required that she stand even
though she could only do so for about five to ten minutes.
(Tr. 78). After standing, Plaintiff had to sit down for about
fifteen minutes before standing again; Plaintiff could only
sit for fifteen minutes before she experienced pain from
sitting as well. (Tr. 79). In order to take pressure off her
back, Plaintiff would lie down "basically almost all
again testified that she could help wash the dishes, but
because she could not stand long enough to finish them,
someone else would have to finish them. (Tr. 80). Plaintiff
estimated that she could probably move a gallon of milk from
the counter to the fridge, if she was already standing.
would usually take a nap about an hour after taking her pain
medication. (Tr. 81). In addition, Plaintiff testified that
Dr. Moreland had recently recommended a third spinal surgery.
(Tr. 81-82). Plaintiff believed this procedure was necessary
because "a nerve [wa]s being pinched" by "a
buildup of calcium, " which has caused her pain in her
leg for about three months. (Tr. 82).
then testified that "[m]oving around" would worsen
her pain, and that she would experience pain if she held up
her arms for too long or moved her neck in a "certain
way." (Tr. 83-84). Plaintiff also noted that during her
first surgery, Dr. Moreland put a "cage" in her
spine to separate her vertebrae and then inserted "rods
and pins." (Tr. 85). Plaintiff testified that this
surgery "didn't work, " so Dr. Moreland
inserted more pins and rods in her back during a second
surgery. (Id.). Plaintiff indicated that her
condition has not improved since the second surgery, and she
is currently waiting on a "comp approval" for a
third surgery. (Tr. 86).
Vocational Expert's Testimony
described Plaintiffs past work as a CNA, which had a Specific
Vocational Preparation rating of four with medium strength
demand. (Tr. 88). The ALJ then posed a hypothetical:
[Assume] a person of the same age, education, and work
experience as the claimant, but assume a hypothetical person
who's limited to light work as that's defined in the
[C]ommissioner's regulation, but there'd be
additional limitations. The person should not be exposed to
extreme cold, heat, wetness, or humidity. And the person
should be able to change positions from sitting to standing
or vice versa at least every half hour for a brief period, a
minute or two. And no ladders, ropes, scaffolds. No kneeling
or crawling. No more than occasional balance, stoop[ing], or
crouch[ing]. No work at heights or around dangerous moving
machinery. And no more than occasional stairs or ramps. Would
such a person be able to do any jobs at the light or
(Id.). The VE stated that such a person might be
able to work as a cashier, storage facility clerk, or food
order clerk. (Tr. 88-89). The VE noted that such a person
would have to be capable of maintaining a regular schedule to
work full-time. (Tr. 89).
Summary of the Medical Evidence
Court assumes the parties' familiarity with the
voluminous medical evidence in this case. Therefore, only a
brief summary is necessary.
Dr. Eugene J. Gosy
2, 2008, Plaintiff reported to Dr. Gosy that she was
struggling with pain control and had missed multiple days of
work due to severe back pain. (Tr. 392). Plaintiff
"[w]alked with a nonantalgic gait, " but had
tenderness at the sciatic notch bilaterally. (Tr. 393).
Plaintiff did not exhibit "signs of acute distress,
" and her strength in the upper and lower extremities
was 5/5 bilaterally. (Id.). Plaintiff was diagnosed
with low back pain/lumbago and Myofacial Pain Syndrome, and
prescribed several pain medications. (Id.).
Plaintiff was assessed with a "mild partial"
February 16, 2010, Plaintiff returned to Dr. Gosy and
reported daily aching and throbbing pain in her lower lumbar
territory, which was aggravated by prolonged activity or
heavy lifting. (Tr. 394). Plaintiff attended physical therapy
twice a week, and rated the severity of her pain at 6/10.
(Id.). Plaintiff did not exhibit any "signs of
acute distress, " and while she walked with a
"normal gait, " Dr. Gosy noted that Plaintiff had
tenderness at the lower lumbosacral segments bilaterally and
decreased extension. (Tr. 395). Plaintiffs strength in her
upper and lower extremities was 5/5 bilaterally. (Tr. 396).
Plaintiff continued her pain medications, was again assessed
with a "mild partial" disability, and was
determined to suffer from a 25% temporary impairment.
March 30, 2010, Plaintiff reported continuing aching pain in
the lower lumber territory, which she rated as 5/10 in
severity. (Tr. 397). Plaintiff walked with a normal gait, but
appeared to be in "moderate distress." (Tr. 399).
Dr. Gosy noted that Plaintiff had "[t]enderness at the
lower lumbosacral segments bilaterally, " and had
decreased extension. (Id.). Plaintiff was again
diagnosed with lumbago and kept on pain medications. (Tr.
399-400). Plaintiff was assessed with a 25% temporary
impairment. (Tr. 400).
April 29, 2010, Plaintiff stated that the aching pain in her
lower lumbar territory had spread to her lower limbs. (Tr.
401). Plaintiff did not appear to be in acute distress, and
she walked with a normal gait. (Tr. 402). Plaintiff had
tenderness in the lower lumbosacral segments bilaterally, and
had decreased extension. (Id.). Dr. Gosy assessed
Plaintiff as being 100% disabled from her prior occupation,
but assessed her with a 50% temporary disability overall.
30, 2010, Plaintiff noted that her pain remained unchanged.
(Tr. 404). Plaintiffs prescription for Vistaril was
discontinued as it caused extreme fatigue. (Id.).
Plaintiff walked with a normal gait and had tenderness in her
lower lumbosacral territory, as well as decreased extension.
(Tr. 405). Plaintiff was assessed with a 50% temporary
disability. (Tr. 406-07).
September 29, 2010, Plaintiff described "aching,
throbbing pain to the lower lumbar territory" radiating
into her lower limbs, which she rated in severity as a 7/10
"on most days." (Tr. 408). Dr. Gosy noted that
Plaintiff appeared to be in "moderate distress, "
and had "[t]enderness at the buttocks and lower
lumbosacral territory bilaterally." (Tr. 409). Dr. Gosy
increased Plaintiffs pain medication prescription, and
Plaintiff was again assessed with a 50%) temporary disability
overall. (Tr. 410).
January 13, 2011, Plaintiff noted that her symptoms remained
unchanged, and she reported the severity of her pain as 6/10.
(Tr. 411). Plaintiff reported that her pain medications
"help[ed] ¶ 80-90%"; however, Dr. Gosy noted
that Plaintiff appeared to be in moderate distress. (Tr.
411-12). Plaintiff walked with a normal gait and had
"[t]enderness at the buttocks and lower lumbosacral
territory bilaterally, " as well as decreased extension.
(Id.). Plaintiff was assessed with a 50% temporary
disability overall. (Id.).
April 13, 2011, Plaintiff reported "aching pain to the
lower lumbar, " and rated the severity of the pain at
8/10. (Tr. 414). Plaintiff indicated that the medication was
"75% effective in consolidating her pain and increasing
her functional capacity." (Id.). Plaintiff
stated that her sleep was nonrestorative, and that she had
experienced an increased number of lower back spasms since
the onset of spring weather. (Id.). Plaintiff walked
with a normal gait, but appeared to be in moderate distress,
with decreased extension. (Tr. 416). Dr. Gosy increased the
prescription for Plaintiffs pain medication. (Id.).
Plaintiff was assessed with a 50% temporary impairment. (Tr.
13, 2011, Plaintiff reported aching pain and rated its
severity at 8/10. (Tr. 418). Plaintiff stated that two of her
medications caused undesirable side effects, (id.),
and Dr. Gosy replaced them with additional prescriptions.
(Tr. 420). Dr. Gosy noted that no signs of acute distress
were present, and that Plaintiff walked with a normal gait
but had decreased extension. (Id.). Plaintiff had
"[t]enderness at the buttocks and ...