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Martin v. Commissioner of Social Security

United States District Court, W.D. New York

September 6, 2017

DON MARTIN, Plaintiff

          For the Plaintiff: Kevin Bambury, Esq. Jeffrey Freedman Attorneys at Law

          For the Defendant: Graham Morrison, Esq. Social Security Administration Office of General Counsel Kathryn L. Smith, A.U.S.A. Office of the United States Attorney for the Western District of New York


          CHARLES J. SIRAGUSA, United States District Judge


         This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security (“Commissioner” or “Defendant”), which denied the application of Don Martin (“Plaintiff”) for Social Security Disability Insurance Benefits (“SSDI”) and Supplemental Security Income Benefits (“SSI”). Now before the Court is Plaintiff's motion (Docket No. [#10]) for judgment on the pleadings and Defendant's cross-motion [#13] for judgment on the pleadings. Plaintiff's application is denied, Defendant's application is granted, and this action is dismissed.


         The reader is presumed to be familiar with the parties' submissions, which contain detailed recitations of the pertinent facts. The Court has reviewed the administrative record [#9] and will reference it only as necessary to explain this Decision and Order.

         Plaintiff, born in 1962, claims to be disabled primarily due to “lumbar disc degeneration and displacement.” (46, 171).[1] Plaintiff also claims to suffer from shoulder pain and depression (211), though the medical record contains only passing references to shoulder pain, [2] and little mention of depression.[3] At the administrative hearing in this matter, Plaintiff's counsel stated, “I think it's the limitations from his back that keep him from being able to do any work in the national economy” (46), and that is essentially how Plaintiff testified. (49-54, 56-58).

         Plaintiff, who graduated from high school, has worked as a carpenter, roofer, satellite television installer and newspaper deliverer. (172, 189, 211). Plaintiff claims that he stopped working due to pain in his back, and in particular, pain caused by bending over. (49-50, 52, 58). Plaintiff also claims to experience pain when standing or sitting in one position for too long. (52).

         Plaintiff claims to have become disabled on December 1, 2011, though his work history was inconsistent long before that date. (30). For example, Plaintiff has no reported earnings for 1992, 1997-2002, 2008-2009, and 2011, and only $51.69 in reported earnings for 2010. (164-166).[4]

         Plaintiff's activities of daily living essentially consist of caring for the family's home and four children[5] while his wife is working outside of the home. (47). In that regard, Plaintiff provides child care, cooks, cleans, shops, drives, and walks the family dog, in addition to chopping and carrying fire wood. (47, 54, 179-182, 229, 269-270). At least one medical note indicates that Plaintiff is an “active stay-at-home dad.” (261).

         A medical office note from 2006 indicates that Plaintiff was having increasing back pain and stiffness. (221). Plaintiff reportedly stated that he had been having “nagging” low back pain for about five years, with occasional exacerbation. (221). On September 20, 2006, Plaintiff reportedly stated that his back pain was “gone, ” and that he usually only had pain for a “couple days at a time” after “do[ing] too much.” (223). On January 25, 2007, Seth Zeidman, M.D. (“Zeidman”), reported that CT testing of Plaintiff's lumbar spine showed “spondylolysis at ¶ 4-5 and L5-S1 with listhesis at ¶ 4-5.” (238). Zeidman noted, however, that Plaintiff was “not significantly symptomatic, ” adding that, “if he becomes symptomatic he may be a candidate for posterior lumbar fusion.” (238). In April 2007, Plaintiff reported having “increasing low back pain, especially with increasing activity, ” related to construction work. (224). On November 20, 2009, Plaintiff reported that his back pain tended to “flare up” “after chopping wood or at the end of a long work day.” (229). Upon examination, Plaintiff had “no vertebral tenderness” and “mild tenderness” in his “lower lumbar muscles bilaterally, ” with an “intact” range of motion. (229). In February 2010, Plaintiff reported that his back pain was more tolerable because he was only working part time as a carpenter. (230). Upon examination, Plaintiff was “tender across his lumbar muscles with mild tenderness in both [sacroiliac] joints, ” with a normal range of motion and ambulation. (230). In December 2010, Plaintiff reported that his back pain was “tolerable, ” and that he took “pain med[ications] and muscle relaxers three times a week.” (265). In June 2012, Plaintiff indicated that he was taking pain medication for his back pain as needed, “depending on [his] activity level.” (256). Plaintiff reported that he “walk[ed] dog for exercise [and] d[id] housework, ” and “fe[lt] better when in the pool or hot tub.” (257). On November 30, 2012, Plaintiff reported that his back pain had worsened after changing a flat tire. (255). Upon examination, Plaintiff had “diffuse tenderness across [his] lower lumbar muscles, [with] no localization [and] decreased forward flexion due to pain.” (255).

         On January 22, 2013, Plaintiff was examined by Elizama Montalvo, M.D. (“Montalvo”), a non-treating consultative examiner, at the Commissioner's request. (269-272). Plaintiff reported that his back pain was “constant, ” and became worse with prolonged walking or standing. (269). Plaintiff reportedly told Montalvo that he took naproxen and hydrocodone twice per day for pain, and metaxaone (muscle relaxer) “one to three times per day.” (269).[6] Plaintiff stated that he could stand “for maybe 15 to 20 minutes.” (269). Plaintiff, stated, however, that his daily activities included cleaning, doing laundry and providing childcare “seven days” a week. (269). Plaintiff further stated that he watched television, listened to the radio and played cards. (270). Montalvo reported that Plaintiff had full strength in all his extremities, with intact hand and finger dexterity. (271). Montalvo found tenderness and decreased range of motion in the lower back, with a positive straight-leg-raising test. (271). Montalvo's diagnosis was “low back pain with history of degenerative disc disease” and “arthritis . . . with pain” in the shoulder. (271). Montalvo opined that Plaintiff would have “mild to moderate limitations bending, lifting, walking, standing, and reaching.” (271).

         On March 21, 2013, Zeidman examined Plaintiff, and noted that he complained of having had “a few episodes” of “increased back pain, ” with the last one being after he changed the flat tire. (302). Plaintiff stated that “just about any activity” could exacerbate his pain, “especially bending and turning.” (303). Upon examination, Plaintiff appeared to be in discomfort, and walked hunched over. (304). Zeidman ordered a CT myelogram “to better evaluate [Plaintiff's] bony pathology and spondylolisheses at ¶ 4-5 and L5-S1.” (304). ...

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