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Milliken v. Berryhill

United States District Court, W.D. New York

July 28, 2017

JENNIFER LEE MILLIKEN, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of the Social Security Administration, Defendant.

          DECISION AND ORDER

          Elizabeth A. Wolford United States District Judge.

         INTRODUCTION

         Plaintiff 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.

         Thus, Plaintiffs motion for judgment on the pleadings (Dkt. 11) is granted, and the Commissioner's motion is denied. (Dkt. 16).

         BACKGROUND

         I. Overview

         On 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).

         On 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. (Dkt. 1).

         II. The Non-Medical Evidence

         A. Plaintiffs Function Report

         On 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. (Id.).

         Plaintiff 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).

         Plaintiff 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.).

         B. Plaintiffs Testimony

         Plaintiff 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).

         Plaintiff 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. (Id.).[2]

         Plaintiff 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).

         Plaintiff 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. (Id.).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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. (Id.).

         Plaintiff 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).

         Plaintiff 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).

         At the 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 day." (Id.).

         Plaintiff 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. (Id.).

         Plaintiff 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).

         Plaintiff 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).

         C. Vocational Expert's Testimony

         The VE 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 sedentary level?

(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).

         III. Summary of the Medical Evidence

         The Court assumes the parties' familiarity with the voluminous medical evidence in this case. Therefore, only a brief summary is necessary.

         A. Dr. Eugene J. Gosy

         On July 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" disability. (Id.).

         On 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. (Id.).

         On 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).

         On 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. (Tr. 403).

         On June 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).

         On 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).

         On 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.).

         On 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. 417).

         On May 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 ...


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