United States District Court, W.D. New York
the Plaintiff: Brandi C. Smith, Esq., Kenneth R. Hiller, Esq.
the Defendant: Lorie E. Lupkin, Esq., Kathryn L. Smith,
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
Kathryn Oliver (“Plaintiff”) for Social Security
Disability Insurance Benefits (“SSDI”). Now
before the Court is Plaintiff's motion (Docket No. [#10])
for judgment on the pleadings and Defendant's
cross-motion [#12] for judgment on the pleadings.
Plaintiff's motion is denied and Defendant's motion
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 [#7] and will reference it only as necessary to
explain this Decision and Order.
30, 2007, Plaintiff went to Thambirajah Nagendra, M.D.
(“Nagendra”) for “follow up [regarding]
nonischemic cardiomyopathy, tobacco abuse [and],
anxiety/depression.” (392). Plaintiff indicated that
she was having “midthoracic back pain at times, ”
had lost her job, and was applying for Social Security
disability benefits. (392). However, Plaintiff also
reportedly stated that she was planning to work with her
daughter at a child daycare center. (392).
November 21, 2011, Plaintiff complained to her primary care
physician, Rebecca Wadsworth, M.D. (“Wadsworth”),
that she felt fatigued, and had been having throbbing pain in
her legs for several months, as well as pain and weakness in
her arms and shoulders. (383). Upon examination, Wadsworth
reported that Plaintiff had full range of motion in her arms,
with normal grip strength, and some tenderness “in the
outer thigh area.” (383). Wadsworth opined that
Plaintiff's complaints might be related to her thyroid,
or to deficiencies of magnesium and/or Vitamin D. (383).
April 2, 2012, rheumatologist Rashmi Khadilkar, M.D.,
reported that Plaintiff was complaining of pain in her right
foot, and pain in the middle of her back that became worse
when doing “laundry or dishes.” (364). Khadilkar
noted that recent x- rays showed “mild degenerative
changes” of the thoracic spine, and indicated that the
“etiology [of Plaintiff's pain] remain[ed]
November 11, 2012, Plaintiff was working in the bakery at
Walmart, when she injured her shoulder and back while lifting
a box of dough. On November 16, 2012, Dr. Wadsworth reported
that Plaintiff “developed low back pain and then had a
30 pound box of frozen [dough] fall on her right
shoulder.” (373). Plaintiff told Wadsworth that
“[a]s the night [of the day of the injury had]
progressed, ” she also developed pain in her
“right groin” and foot. (373). Wadsworth noted
that Plaintiff had a history of chronic obstructive pulmonary
disease (“COPD”), “cardiomyopathy,
nonischemic, ” hyperlipidemia, depression, anxiety and
hypertension, and had previously had surgery for bilateral
carpal tunnel release and plantar fasciectomy. (374). After
examination, Wadsworth's assessment was “right
rotator cuff injury” and “abdominal wall hernia
days later, Plaintiff was examined by Adbullah Al-Mahayri,
M.D. (“Al-Mahayri”), concerning the possible
hernia. (374-377). Al-Mahayri's assessment was
“musculoskeletal pain, no evidence of hernia.”
November 16, 2012, Plaintiff was seen by orthopedic
specialist Daniel Alexander, M.D. (“Alexander”).
Alexander's impression was “right shoulder
derangement.” (438). Alexander noted that Plaintiff was
working “with restrictions, ” and opined that she
had a “moderate, temporary” degree of disability.
December 3, 2012, Wadsworth examined Plaintiff again, at
which time Plaintiff was complaining of increased “low
back and thoracic pain, ” including pain between her
shoulder blades. (378). Wadsworth noted, however, that
Plaintiff's shoulder and abdominal pain “ha[d]
pretty much disappeared or gotten much better.” (378).
Upon examination, Plaintiff was “mildly tender”
between her shoulder blades and in her lower back. (378).
Plaintiff had been attending physical therapy
(“PT”) and taking Flexeril and Tylenol PM.
Wadsworth asked to see Plaintiff again in two weeks, and
indicated that she would remain out of work until December
17, 2012, but could return to work thereafter. (378-379).
December 14, 2012, Dr. Alexander examined Plaintiff again,
and this time his impression was “right shoulder
rotator cuff tendonitis.” (433). Alexander opined that
Plaintiff had only a “mild, temporary”
disability, but noted that Dr. Wadsworth had excused
Plaintiff from work. (434).
December 17, 2012, Wadsworth noted that Plaintiff had
returned to the office, and that “not much has
changed.” Wadsworth indicated that Plaintiff was
“tender” over the right rotator cuff, and was
also “tender across [the] thoracic paraspinal areas,
” and her assessment was “thoracic back pain,
right should injury.” (380). Wadsworth stated that
Plaintiff would be examined by an orthopedic specialist and
would have an MRI. (380). Wadsworth indicated that Plaintiff
should remain out of work until January 2, 2013, to allow her
to see a orthopedic specialist regarding her complaint of
back pain. (380).
December 28, 2012, Alexander examined Plaintiff again, to
evaluate her right shoulder and thoracic spine. (435).
Alexander noted that x-rays of the thoracic spine showed
“multilevel thoracic disc disease with some kyphosis as
well but no compression fractures, ” for which he
recommended “conservative” treatment. (436). As
for whether Plaintiff was working at that time, Alexander
wrote, “No but she was given restrictions, ” and
indicated that she had a “moderate” disability
and had not reached maximum medical improvement. (436).
December 31, 2012, Plaintiff reportedly told Alexander that
she was having pain in her lower back, “with
activities, ” which she attributed to her injury at
work on November 11th. (427). Alexander's physical
examination was unremarkable, though he noted that an x-ray
showed “degenerative changes in the lower back.”
(427-428). Alexander's impression was “low back
strain, ” though he did not indicate that Plaintiff had
any degree of disability relating to such condition. (428,
January 25, 2013, Dr. Alexander noted that an MRI of
Plaintiff's lower back had confirmed “lumbar disc
disease, ” for which he recommended that she receive an
epidural pain injection. (429-430).
January 30, 2013, Steven Hausmann, M.D.
(“Hausmann”), a non-treating physician, examined
Plaintiff concerning her work-related injury at the request
of Walmart's worker's compensation carrier.
(407-410). Plaintiff reportedly told Hausmann that she had an
MRI on December 22, 2012, which showed “3 bulging
discs” in her lumbosacral spine. (407). Plaintiff told
Hausmann that she had “intense pain when using the
right arm, ” as well as numbness in the arm and hand,
as well as “low back pain, more on the left than right,
[which was] worse with bending.” (407). Plaintiff
indicated that she was still working at Walmart, “with
light or restricted duties.” (407). Hausmann reported
that he had reviewed Plaintiff's medical records,
including an MRI of the lumbar spine, dated January 21, 2013,
and an MRI of the right shoulder, dated December 22, 2012.
(408-409). According to Hausmann, the shoulder MRI showed
“a full-thickness [rotator cuff] tear, ” while
the lumbar spine MRI showed
multilevel degenerative disc disease . . . from L4 through
S1, broad based disc bulges were seen at those levels, and
suggestion of annular fissure or tear posteriorly at ¶
4-L5. No evidence of central canal stenosis or foraminal
encroachment. There is also a mild broad based disc bulge at
¶ 3-L4. Overall, the findings were that of degenerative
disc disease of the lumbar spine.
(408). Upon examination, Hausmann found that Plaintiff had
tenderness in the lower back and right shoulder area, without
muscle spasm. (409). Hausmann indicated that Plaintiff's
shoulder pain was likely related to her work injury, and that
her back pain may also have been a “strain injury,
” but that the degenerative changes on the MRI were not
causally related to the injury on November 11, 2012. (409).
Hausmann's diagnosis was “right rotator cuff tear,
” and “lumbar strain, ” and he recommended
that Plaintiff have surgery for the shoulder, after which, he
anticipated, she would need “12 to 16 weeks” to
February 11, 2013, orthopedic specialist David Cywinski, M.D.
(“Cywinski”) reported that Plaintiff was
complaining of increased neck pain. (415). Cywinski noted
that prior diagnostic testing had revealed degenerative
changes of the cervical spine, and requested a new MRI test.
(416). Cywinski opined that Plaintiff had a “mild to
moderate” temporary disability. (416).
February 20, 2013, Dr. Cywinski administered a pain injection
for Plaintiff's lumbar pain, involving the disc bulge at
¶ 4-L5 and L5-S1. (423).
March 6, 2013, Dr. Alexander performed rotator-cuff-repair
surgery on Plaintiff, and indicated that he achieved
“an excellent repair.” (422).
March 18, 2013, Plaintiff was re-examined by Dr. Cywinski,
for complaints involving the cervical spine. (413-414).
Cywinski noted that an MRI showed osteophyte formation at
¶ 5-C6 with no evidence of herniation. (413). Cywinski
reported that Plaintiff had “tenderness to palpation
about the right paraspinal musculature, ” and pain with
flexion and extension. (413). Cywinski diagnosed
“cervicalgia, ” and recommended physical therapy.
April 11, 2013, Dr. Alexander noted that plaintiff had
“good passive motion but decreased active motion of the
right shoulder” following surgery, and that the
incision was “healing nicely.” (411). Alexander
indicated that plaintiff could begin physical therapy
rehabilitation for the shoulder. (411). Alexander stated that
Plaintiff had a “total ...