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Oliver v. Commissioner of Social Security

United States District Court, W.D. New York

November 7, 2017

KATHRYN MARIE OLIVER, Plaintiff
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          For the Plaintiff: Brandi C. Smith, Esq., Kenneth R. Hiller, Esq.

          For the Defendant: Lorie E. Lupkin, Esq., Kathryn L. Smith, A.U.S.A.

          DECISION AND ORDER

          CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         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 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 is granted.

         FACTUAL BACKGROUND

         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 [#7] and will reference it only as necessary to explain this Decision and Order.

         On July 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).

         On 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).

         On 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] unclear.” (366).

         On 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 possible” (373).

         A few 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.” (377).

         On 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. (438).

         On 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).

         On 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).

         On 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).

         On 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).

         On 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, 432).

         On 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).

         On 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 recover. (409).

         On 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).

         On 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).

         On March 6, 2013, Dr. Alexander performed rotator-cuff-repair surgery on Plaintiff, and indicated that he achieved “an excellent repair.” (422).

         On 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. (413).

         On 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 ...


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