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Woo v. Colvin

United States District Court, S.D. New York

February 2, 2018

Woo, Plaintiff,
v.
Carolyn W. Colvin, [1] Defendant.

          TO THE HONORABLE JESSE M. FURMAN, UNITED STATES DISTRICT JUDGE:

          REPORT AND RECOMMENDATION

          STEWART D. AARON, United States Magistrate Judge

         Plaintiff Alyce Woo (“Woo”) brings this action pursuant to § 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security, denying her application for Disability Insurance Benefits (“DIB”).[2] (Compl., ECF No. 1.) Presently before the Court is Woo's motion, pursuant to Fed.R.Civ.P. 56(a) for summary judgment (Pl.'s Notice of Mot., ECF No. 12), [3] and the Commissioner's cross-motion, pursuant to Fed.R.Civ.P. 12(c), for judgment on the pleadings. (Def.'s Notice of Mot., ECF No. 14.)

         For the reasons set forth below, the Court recommends that the Commissioner's motion for judgment on the pleadings be GRANTED, and Woo's motion be DENIED.

         BACKGROUND

         I. Procedural Background

         Woo filed for benefits on July 31, 2013, alleging a disability onset date of November 12, 2012. (Administrative R. [“R.”] 162-65, ECF No. 10.) Following an initial denial of benefits on January 14, 2014 (R. 97-105), Woo had a hearing before Administrative Law Judge (“ALJ”) Katherine Edgell on February 6, 2015. (R. 61-83.) The ALJ found that, although Woo did have severe impairments, Woo maintained a residual functional capacity (“RFC”) to perform a range of sedentary to light work, with limitations on lifting, stooping and squatting. (R. 43.) Relying on the testimony of a vocational expert, the ALJ found that Woo could not perform her past relevant work, and that a significant number of jobs existed in the national economy that Woo could perform. (R. 49-51.) As a result, the ALJ found that Woo was not disabled and denied Woo's application for benefits on March 27, 2015. (R. 51.) ALJ Edgell's decision became the Commissioner's final decision when the Appeals Council denied review on August 19, 2016. (R. 1-7.) This action followed.

         II. Non-Medical Evidence and Woo's Testimony Before the ALJ

          Born on June 18, 1967, Woo was forty-five years old at the alleged November 12, 2012 onset of her disability and forty-seven years old at the time of the ALJ hearing. (R. 65.) She is 5'4” and weighs approximately 150 pounds. (R. 65-66, 179.). When applying for DIB, she reported her medical conditions as a back injury and a neck injury. (Id.) At the hearing, Woo alleged disability due to severe neck and shoulder pain. (R. 67.) Woo suffered an injury to her neck at work on November 4, 2012. (R. 197, 371-72, 397.) The injury occurred when she was pushing a heavy box at work. (R. 490.)

         Woo lives in a private house with her husband, three of her four children (ages twenty-four, sixteen and thirteen), [4] and her mother-in-law, father-in-law and sister-in-law. (R. 64-65, 189.) She also has dogs, which she helps feed. (R. 190.) Woo's home has two flights of stairs that she climbs. (R. 64.) Woo is right-handed and uses a walker “when needed, ” but, in her testimony and her Activities of Daily living report, said she “do[es] not use [her] walker now.” (R. 66, 195-96.)

         On an average day, Woo usually wakes up at 8:30 a.m. and eats breakfast. (R. 70.) She then rests in bed and watch television or play games on her phone, before getting up to do housework such as dishes or laundry. (R. 70-71.) She also feeds the dogs, takes her children to and from school and cooks simple meals. (R. 190-91.) She is able to wash and dress herself. (R. 70, 190.) She drives locally, making short trips for various errands, such as taking her kids to and from school, banking, attending doctor's appointments and grocery shopping. (R. 66, 192.) She gets together with family and friends regularly, one or two times per week, at “restaurants, malls, and movies.” (R. 71, 192-94.) Sometimes, Woo uses a treadmill. (R. 47, 502.) At one point, Woo was taking online coursework to become a veterinarian's assistant. (R. 48, 675.)

         Woo testified that, since November 2012, she has taken two vacations. The first was a seven-day vacation to Italy with her husband (R. 70.), during which she did some walking. (R. 45, 454.) The second vacation was a week-long vacation in Atlantic City, to which her husband drove them. (R. 70.)

         Though she was prescribed other medications, Woo testified that the only medications she took were Aleve and Advil, because she did not like the side effects that other medications gave her, including headaches and stomach pain. (R. 69, 199.)

         III. Vocational Testimony Before the ALJ

         During the hearing before the ALJ, Woo answered questions about the four positions she held during the preceding fifteen years: retail stock person, retail manager, key holder/barista and truck stock person.

         Woo testified she had last worked in 2012 as a retail stock person, a position she held for two years. (R. 75-76.) In that position, the heaviest items she lifted were approximately fifteen to twenty pounds. (R. 76.) Prior to that, she was a retail manager at the Children's Place, where she handled store stock and displays and performed managerial tasks, including supervising employees, managing the employee schedule and handling employee personnel matters (such as hiring and firing). (R. 76.) Before that, she worked as a key holder and barista at Starbucks; her duties as a key holder included opening the store and refilling the pastry selection, among other comparable tasks. (R. 77.) Lastly, prior to that, she was a truck stock person at the Container Store. (R. 77.)

         Vocational Expert Melissa Fass Karlin also testified at the hearing before the ALJ.[5] Fass Karlin categorized Woo's past work into the following: warehouse worker, [6] which is medium, unskilled work; manager of a retail store, [7] which is light, skilled work; counter attendant, [8] which is light, unskilled work; and truck driver helper, [9] which is heavy, unskilled work. (R. 78.) The ALJ asked Fass Karlin which of those jobs a hypothetical employee could perform, if the employee was limited to doing light work with no continual stoop or squat. Fass Karlin testified that such an employee could perform three of the four positions Woo had held: retail stock person, retail manager and key holder/barista (but not truck stock person).[10] (R. 79.) The ALJ further asked Fass Karlin what types of jobs the hypothetical employee could do, if the hypothetical employee had two additional limitations: lifting no more than ten pounds and no repetitive overhead lifting. (R. 79.) After double-checking the DOT chart, Fass Karlin testified that such an individual would be able to work in the following positions: messenger, [11] which is light, unskilled work; or marker, [12]which is light, unskilled work. (R. 80.) As a further hypothetical, the ALJ then asked Fass Karlin what jobs the hypothetical employee could perform with further additional limitations of: no overhead lifting at all, only occasional stooping or squatting permitted, and limiting sitting and standing permitted for only twenty to thirty minutes. (R. 81.) Fass Karlin testified that someone with such a profile could perform two jobs: order clerk, [13] which is sedentary, unskilled work; or addresser, [14] which is sedentary, unskilled work. (R. 80-81.) There were 18, 929 order clerk jobs available in the national economy, and 19, 004 addresser jobs available in the national economy. (R. 80-81.) The only hypothetical employee which Fass Karlin testified would not be able to work was a hypothetical employee, with all of the above limitations, who would additionally require unscheduled breaks in excess of ordinary lunch and coffee breaks. (R. 81.)

         In response to questions from Woo's counsel about whether the hypothetical employee could perform the order clerk or addresser positions if s/he could only occasionally walk, Fass Karlin testified that, since both of those positions are sedentary, the hypothetical employee could still perform both positions. (R. 82.)

         IV. Medical Evidence Before the ALJ

         Woo claims a disability as of November 12, 2012 from an injury she suffered at work on November 4, 2012, entitling her to DIB due to pain in her neck, back, left shoulder and left knee. (Pl's. Mem. in Support, ECF. No 13, at 4-5.) Additionally, she says she cannot lift anything over five pounds (R. 72, 194), cannot stand for longer than ten to fifteen minutes (R. 194), cannot walk for longer than thirty to forty-five minutes (R. 194), and cannot sit comfortably for longer than thirty to forty-five minutes. (R. 195.)

         From November 2012 to January 2013, Woo saw a chiropractor named Dr. Marco A. Caruso, D.C.[15] On November 8, 2012, Woo visited Dr. Caruso and complained of increased pain on the right side of her neck. (R. 338-39.) She assessed this pain at level nine (out of ten) on the pain scale. (R. 338-39.) Dr. Caruso's treatment note for that day does not indicate any mention of the injury Woo suffered at work days earlier (on November 4, 2012). Upon physical examination, Dr. Caruso described Woo as having “restricted cervical[16] and lumbar movement.” (R. 338.) He performed range of motion tests on Woo. In his assessment, Dr. Caruso said that Woo's symptoms were “common” and that he expected her to “respond well to treatment and to return to the preaggravated status very soon.” (R. 339.) Dr. Caruso's treatment plan for Woo included thrice-weekly visits, chiropractic adjustments to Woo's spine and cold pack therapy.

         On November 13, 2012, Woo returned to Dr. Caruso and reported her neck pain at a level eight on the pain scale, stating a modest improvement. (R. 339-41.) Dr. Caruso examined Woo's joints, noting the parts of Woo's body where he observed restriction, tenderness or reduced mobility (which was generally slight or mild). He again noted Woo's restricted cervical and lumbar movement and performed range of motion tests. He diagnosed Woo with: radicular syndrome[17]in the cervical and brachial (arm) area, neck lesions, neck subluxation[18] and muscle spasms. Dr. Caruso assessed Woo as “apparently suffering a moderate recurrence. No progress is expected this early in treatment. Some improvement should be evident soon.” Dr. Caruso's treatment plan included thrice-weekly visits, chiropractic adjustments, cold pack therapy, interferential ultrasonic therapy[19] and proprioceptive[20] neuromuscular[21] facilitation[22] (PNF). (R. 340.)

         During the rest of November 2012, Woo visited Dr. Caruso six times: November 14, 15, 16, 19, 21 and 30. (R. 341-47, 406-09.) Over that period of time, Woo reported a gradual improvement in her neck pain: she reported a level nine on the pain scale on her visits on November 14, 15 and 16; a level eight on the pain scale on her visit on November 19; a level seven on the pain scale on her visit in November 21 and a level six on the pain scale on her visit on November 30. Dr. Caruso continually noted that Woo's treatment was still in the early stages and that progress was not expected yet, but was anticipated shortly and that he expected Woo to respond well to treatment. He continued to treat Woo using chiropractic adjustments, cryotherapy, spinal decompression and range of motion exercises, among other chiropractic treatment. Dr. Caruso did not prescribe any medications to Woo. Dr. Caruso advised Woo not to work, to avoid strenuous activity and to rest between treatments.

         On November 29, 2012, Woo saw Dr. Bradley Cash, M.D., for her neck and left shoulder pain, rating her pain at a level eight. (R. 649-52.) In his physical examination, Dr. Cash found tenderness in Woo's spine at level C4-7 and on the left side of Woo's neck. He also found in Woo's neck a decreased range of motion and factors contributing to cervical radicular syndrome. He found Woo's walking gait to be normal. Dr. Cash diagnosed Woo with left rotator cuff[23]syndrome, herniated disc[24] in her neck and left cervical radiculopathy.[25] Dr. Cash prescribed three medications to Woo (Ultram, Tricor and Lipitor) and ordered an MRI of Woo's cervical spine.

         In December 2012, Woo made one visit to chiropractor Dr. Caruso, on December 5, 2012. (R. 347-48.) She described her neck pain as “less intense” and rated it as a level three on the pain scale. Dr. Caruso examined her joints and range of motion, and Woo reported a lower pain level during the range of motion measurements than she previously reported during the range of motion measurements in November. Caruso noted that Woo was “responding well” and “showing a significant reduction in symptoms severity, ” and her visits were reduced from thrice-weekly to “as needed.” Caruso treated Woo with PNF, cold therapy, interferential wave therapy, range of motion exercises, ultrasound therapy and chiropractic adjustments.

         On December 11, 2012, per a referral from Dr. Cash, Woo saw Dr. Michael Singer, M.D., for an MRI on her left shoulder. (R. 375-76.) Dr. Singer found subchondral[26] cysts, [27] tendon damage and fluid. He also found her biceps tendon to be within normal limits, with no tears or retraction. He concluded that Woo could not return to work, citing her left shoulder pain as the reason.

         On December 13, 2012, Woo returned to Dr. Cash, reporting increased pain in her left arm. (R. 644.) His findings were largely the same as her previous visit to him on November 29, 2012, but he did prescribe a new medication, Medrol. Dr. Cash advised Woo to remain out of work until January 28, 2013. (R. 398.)

         On December 19, Dr. Cash performed an electromyogram (EMG).[28] (R. 623-26.) The EMG results were consistent with acute radiculopathy at discs C6-C7. Dr. Cash recommended a cervical MRI, pain medications and physical therapy.

         Woo began attending Dr. Cash's office for physical therapy on December 20, 2012. (R. 632-35.) During her course of physical therapy, she routinely saw two physical therapists: Andrea Wolkenberg and Hemalatha Ramraj. Both physical therapists were supervised by Dr. Cash, and Dr. Cash signed off on their physical therapy records for Woo. On December 20, Woo saw Wolkenberg. Wolkenberg identified Woo as having excellent rehabilitation potential, with a treatment plan of thrice-weekly sessions over two months. Additionally, her treatment plan for Woo included muscle relaxation, joint mobilization, soft tissue mobilization, home exercise, laser and electrical simulation, heat therapy, cervical stabilization and stretching.

         Woo saw Dr. Singer again, per another referral from Dr. Cash, on December 27, 2012. (R. 380-81.) Dr. Singer performed another MRI, this time on Woo's cervical spine. Dr. Singer found herniation at discs C5-C6 and C6-C7. (R. 380.)

         Woo continued with her physical therapy sessions at Dr. Cash's office throughout the rest of December 2012, including visits on December 28 and 31. (R. 640-42.) She also saw Dr. Cash on January 3, 2013, at which point his treatment plan included continued physical therapy, with surgery as the next option. (R. 637-39.) Woo reported she had been taking Advil, and Dr. Cash prescribed Lorzone. (R. 638.)

         Experiencing a “flare-up” of symptoms, Woo returned to chiropractor Dr. Caruso's office ten times in January 2013: January 2, 4, 7, 9, 11, 14, 16, 18, 21 and 25. (R. 348-61.) She reported sharp and shooting pain in her lower back and legs and, during each visit, rated the pain a level eight or nine on the pain scale. She said the pain increased when bending, carrying and lifting, but decreased when resting. During the range of motion tests, Woo reported higher pain levels than in December 2012.[29] Dr. Caruso noted that such flare-ups were common for people in Woo's condition, and that he expected her to respond well to treatment. During these visits to Dr. Caruso, Woo was treated with PNF, chiropractic adjustments, interferential wave therapy, range of motion exercises, spinal decompression and ultrasound therapy.

         On January 28, 2013, Dr. Singer performed another MRI on Woo's cervical spine. (R. 386-87.) When compared with his previous cervical spine MRI on Woo from December 27, 2013, he found straightening of Woo's spine, preserved vertebral body height, disc desiccation[30] and disc herniation at discs C5-C6 and C6-C7.

         On February 20, 2013, Dr. George Burak, M.D. performed an independent orthopedic medical exam on Woo. (R. 667-70.) He found Woo's range of motion to be “extremely limited, ” with almost no flexion or extension, and reduced rotation and inclination. (R. 668.) He diagnosed Woo with a temporary, total disability and herniated discs at ¶ 5-C6 and C6-C7. He stated that Woo should not return to work.

         On February 26, 2013, Woo saw a surgeon, Dr. Ezriel Kornel, M.D. (R. 366-67.) Dr. Kornel diagnosed Woo with a herniated cervical disc at ¶ 5-C6. As treatment, Dr. Kornel performed an anterior cervical discectomy[31] with fusion[32] surgery and arthrodesis[33] plating[34] at discs C5-C6. Woo was in stable condition after the procedure. On March 11, 2013, Woo saw Dr. Kornel for a postoperative follow-up visit. (R. 368, 514.) She said she was feeling much better, and Dr. Kornel measured her strength at a five out of five. (R. 514.) He wrote in a letter that she would begin physical therapy and “remain out of work for six weeks.” (R. 368.)

         Woo returned to Dr. Cash's office for physical therapy sessions for her neck and back on March 13, 2013. (R. 448-51.) During her initial evaluation with Wolkenberg on March 13, 2013, she said she was doing well post-surgery, and had driven for the first time that day. (R. 448.) She rated her pain at a level four. (R. 448.) Wolkenberg noted that Woo had limited range of motion, but rated her strength at a four to five (out of five) without pain. (R. 449.) Wolkenberg's assessment was that Woo had gained significant range of motion after electrical and manual stimulation, “which bodes well for her recovery.” (R. 450.) Wolkenberg listed Woo's rehabilitation potential as “excellent.” (R. 450.) Wolkenberg's treatment plan for Woo included: muscle relaxation procedures, soft tissue mobilization, strength/stability training, home exercise, cardiovascular conditioning education, activities progression, electrical stimulation, cryotherapy, heat therapy, core strengthening/lumbar stabilization and cervical stabilization. (R. 451.) Wolkenberg expected Woo's physical therapy to last two months, with thrice-weekly visits. (R. 451.)

         Woo continued to be treated by Wolkenberg and Ramraj for physical therapy throughout March and April 2013. (R. 410-51.) During her physical therapy visit on March 18, 2013, Woo reported that she “felt much better” for a day and a half after the March 13, 2013 treatment. (R. 444.) She continued reporting improvements during March 2013, with no notable changes in the observations of Wolkenberg and Ramraj. (See, e.g., R. 412, 420, 424, 432, 436, 440.) For example, at her March 25, 2013 physical therapy session with Wolkenberg, she reported that she was sleeping well due to a new pillow which was “very comfortable on her nec [sic]” and that she could turn her head, without also turning her entire body, to also look in car mirrors while driving (R. 424.); on March 27, 2013, Wolkenberg's assessment stated that Woo's range of motion in her spine “continues to improve.” (R. 420.)

         During her physical therapy session with Ramraj on April 5, 2013, Woo reported increased neck pain after her previous session, but said it was improving. (R. 412.) Woo continued to show improvement in physical therapy throughout April 2013, including reporting gaining strength on April 19, 2013. (R. 474.) At her physical therapy visit on April 22, 2013, Ramraj assessed Woo as having “tolerated well” with her exercises on that day. (R. 470.) On April 22 and 24, 2013, Woo stated she was doing her exercises consistently. (R. 466, 468.) By the end of the month, at her physical therapy session on April 26, 2013, Woo reported no new complaints. (R. 462.)

         Woo continued to visit Dr. Cash's office for physical therapy in May 2013, including before and after a ten-day vacation, during which she took a break from physical therapy. Before her vacation, she did some therapeutic exercises, completing twenty bicep curls with one-pound weights, forty reps of “gripping using ball” and other exercises. After returning from her vacation, during her May 15, 2013 physical therapy visit with Ramraj, she complained of “neck soreness after walking during her vacation. But states her neck overall feels better.” (R. 454.) She was again treated with electrical stimulation, manual therapy and a hot pack, but did not do exercises because of the aforementioned soreness. Woo's chart noted that she “has increased strength and dec[reased] pain. She is doing better overall.” (R. 455.)

         Woo visited surgeon Dr. Kornel a number of times over the summer of 2013. (R. 508-12.) Although on May 20, 2013, she reported to Dr. Kornel that her symptoms were not improving (R. 512), on June 10, 2013, Woo reported that, although she still felt back and leg pain, she felt less numbness, and she was able to walk with assistance from a walker. (R. 511.) By July 3, 2013, Dr. Kornel reported Woo was “much improved with PT” and Woo was taken off all narcotics. (R. 510.)

         On June 26, 2013, Dr. Burak again saw Woo. (R. 671-74.) He noted that Woo's range of motion was “dramatically improved” from his previous examination in February 2013, as her results were within normal range with no spasms, and with Woo having “[e]xcellent strength.” (R. 672.) Dr. Burak concluded that Woo “has made an excellent recovery from cervical spine surgery” and that she could return to work, so long as she avoided lifting more than twenty-five pounds and avoided lifting above the shoulder level for four months. He opined that Woo would reach maximum medical improvement over four to six months.

         Woo again saw Dr. Burak on October 1, 2013. (R. 675-77.) She reported that her neck pain had increased. He concluded that her cervical pain had returned and that she had an acute cervical injury requiring C5-C6 decompression and fusion, with a recently-developed herniated disc at ¶ 7. He opined that she could return to work, so long as she avoided lifting more than ten pounds or above her shoulder repetitively.

         On December 5, 2013, Woo was referred by the Division of Disability Determination to Dr. Richard Goccia, M.D., for a consultative orthopedic examination. (R. 488-92.) Radiologist Dr. Lawrence Liebman, M.D. also performed a radiographic exam of Woo's lumbosacral spine, [35]finding laminectomy[36] and fusion with a disc implant at ¶ 5-S1. He did not find compression fracture.[37] (R. 489.) Dr. Goccia noted that Woo could walk without difficulty and squat at fifty percent. (R. 491.) When examining her hands and fingers, he measured her grip strength at a four out of five on the left hand, but “questioned her effort on physical examination.” (R. 491.) Dr. Goccia also observed a full range of motion in Woo's shoulders, elbows, forearms, wrists and fingers. He also noted that Woo's spine did not have any tenderness or spasm. In Woo's lower body, he observed full range of motion in her hips, knees and ankles.

         During a December 23, 2013 visit to Dr. Kornel, Woo reported that any movement in her left arm and hand resulted in severe pain, which had worsened in recent days. Because of this, Dr. Kornel noted that it was difficult to assess Woo's strength. He referred Woo to the emergency room for pain management and a repeat MRI. (R. 506.) On December 24, 2013, Dr. Kornel performed two operative procedures on Woo: fluoroscopic[38] guidance, and a procedure using electrophysiological[39] techniques to monitor her nerves. (R. 525.)

         On January 6, 2014, Woo said during a follow-up visit to Dr. Kornel that her pain was “much improved” and “resolved.” Dr. Kornel prescribed an elastic neck bandage-collar and Valium. (R. 504.)

         During her visits to Dr. Kornel in March 2014, Woo consistently reported improvement in her neck pain, but also that she still had some left shoulder pain. (R. 502, 503.)

         On April 7, 2014, Dr. Kornel performed routine imaging on Woo's left shoulder. (R. 499.) Dr. Kornel reported there was no fracture or ...


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