United States District Court, W.D. New York
the Plaintiff: Kevin Bambury, Esq. Jeffrey Freedman Attorneys
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
DECISION AND ORDER
CHARLES J. SIRAGUSA, United States District Judge
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.
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.
born in 1962, claims to be disabled primarily due to
“lumbar disc degeneration and displacement.” (46,
171). Plaintiff also claims to suffer from
shoulder pain and depression (211), though the medical record
contains only passing references to shoulder pain,
little mention of depression. 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.
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).
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.
activities of daily living essentially consist of caring for
the family's home and four children 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).
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
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). 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).
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).