Urbanak v. Berryhill

PATRICIA ANNE URBANAK, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social Security Defendant.

17 Civ. 5515 (CM)(HBP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 18, 2018

REPORT AND RECOMMENDATION

PITMAN, United States Magistrate Judge:

TO THE HONORABLE COLLEEN MCMAHON, United States District Judge,

I. Introduction

Plaintiff brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB"). Plaintiff and the Commissioner have both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Item ("D.I.") 15, 22). For the reasons set forth below, I respectfully recommend that the Commissioner's motion be granted and that plaintiff's motion be denied.

II. Facts¹

A. Procedural Background

Plaintiff filed an application for DIB on November 13, 2013, alleging that she became disabled on June 12, 2013 due to lower back and left leg pain (Tr. 10, 148-49, 175). Her application for DIB benefits was initially denied on February 20, 2014 and she requested, and was granted, a hearing before an administrative law judge ("ALJ") thereafter (Tr. 10, 84-85). On June 4, 2015, plaintiff and her attorney appeared before ALJ Vincent M. Cascio for a hearing (Tr. 59-68). However, the ALJ adjourned the hearing because approximately 328 pages of plaintiff's medical records had been produced for the first time on the day of the hearing and he needed time to review them (Tr. 59-68). The ALJ held a supplemental hearing on August 25, 2015, during which plaintiff and a vocational expert testified (Tr. 26-58). On November 3, 2015, the ALJ issued a decision finding that plaintiff was not disabled (Tr. 10-20). This decision became the final decision of the Commissioner on May 25, 2017 when the Appeals Council denied plaintiff's request for review (Tr. 1-5). Plaintiff timely commenced this action on July 20, 2017, seekingreview of the Commissioner's decision (Complaint, dated July 18, 2017 (D.I. 1)).

B. Social Background

Plaintiff was born on February 13, 1963 and was 50 years old at the time she filed her application for DIB (Tr. 69, 173). She has a ninth grade level of education and never received her GED (Tr. 32, 168). Plaintiff is divorced and lives alone in "a little cottage" with a single floor (Tr. 31).

Plaintiff worked as a Certified Nurse's Aide ("CNA") from October 1997 through February 19, 2013 (Tr. 32). Plaintiff stated in her "Disability Report," dated November 18, 2013, that her position required her to assist patients with eating, dressing, bathing and moving in and out of bed (Tr. 169). She also maintained that her job frequently required her to lift fifty pounds or more and to perform tasks, such as, walking, standing, reaching, climbing, sitting, crawling, crouching, kneeling, stooping, writing and handling large objects (Tr. 169).

Plaintiff injured her back at work when she fell trying to lift a patient out of bed (Tr. 34).² After this fall, plaintiff reported significant pain in her lower back and difficultystanding or sitting for long periods of time (Tr. 34-35). Plaintiff was able to perform only "light duty work" after this injury (Tr. 32-35). At the hearing, plaintiff testified that on February 19, 2013 her employer informed her she could no longer work as a CNA, but offered her another position in the nursing home's kitchen (Tr. 32-33). It is unclear from plaintiff's testimony whether she voluntarily declined to accept this position or if she was actually terminated by her employer because she later testified that her employer told her that she was "getting fired because [she was] cursing" at work³ (Tr. 32-35). Plaintiff returned to her job briefly in August 2013,⁴ but testified that, as of the date of the hearing, she was no longer able to work at all due to constant pain in her left leg and lower back (Tr. 34-43).

C. Medical Background

1. Medical Records Pre-Dating the Relevant Time Period

a. The Westchester Medical Practice

Plaintiff visited Terry Alexander, Family Nurse Practitioner ("FNP") and Dr. Cynthia Ligenza of the Westchester Medical Practice five times before the onset of her alleged disability in June 2013. Plaintiff listed Westchester Medical Practice as her Primary Care Physician ("PCP") during this time (Tr. 225, 410).

Plaintiff visited her PCP on February 8, 2012 complaining of lower back pain (Tr. 852). The pain reportedly originated in her left lower back and radiated to her left buttock (Tr. 852). Plaintiff described the pain as dull and noted it was aggravated by lifting, walking and standing (Tr. 852). According to plaintiff, these symptoms began approximately two months prior to this visit and improved with a lidocaine⁵ patch (Tr. 852). Dr. Ligenza ordered an x-ray of plaintiff's lower back, which revealed "degenerative changes of the lumbar spine predominantlyinvolving L4-L5"⁶ (Tr. 851). Dr. Ligenza also ordered an x-ray of plaintiff's hips, which revealed no abnormalities (Tr. 850).

According to a letter dated May 11, 2012 from her PCP, plaintiff returned to her PCP on February 28, 2012, though there are no medical records available of this visit (Tr. 399).

On March 10, 2012, plaintiff visited her PCP and claimed to have injured her back at work while lifting a patient out of a chair (Tr. 200, 409-10). Terry Alexander, FNP, ordered an MRI of plaintiff's lumbar spine (Tr. 286). This MRI was performed on March 14, 2012 and revealed mild multilevel degenerative disc disease⁷ most prominent at L4-5, a small broad-based⁸left bilateral disc protrusion at L3-4 with left neural foraminal encroachment,⁹ mild impingement of the exiting left L3 nerve root and moderate left neural foraminal narrowing, diffuse disc bulging at L4-5¹⁰ with bilateral neutral foraminal encroachment and left lateral disc protrusion which encroached the left neuralforamen at L5-S1 (Tr. 286). However, there did not appear to be any impingement on the exiting left L5 nerve root¹¹ and there was no evidence of significant spinal canal stenosis¹² (Tr. 286). Plaintiff applied for, and eventually received, workers' compensation benefits for this injury (Tr. 34, 63-64, 392-98).¹³ However, because plaintiff's PCP did not accept workers' compensation benefits, Dr. Ligenza referred plaintiff to Orthopedic Associates of Dutchess County for treatment for these injuries (Tr. 200, 396-99).

After this referral, plaintiff did not return to her PCP until February 25, 2013 for her annual physical (Tr. 838). At this physical, plaintiff denied having any lower back problems, and the physical examination disclosed no deformity orscoliosis¹⁴ of the thoracic or lumbar spine (Tr. 842). Plaintiff responded "no" when asked if she was in pain during this examination (Tr. 842). The next visit by plaintiff to her PCP was on June 4, 2013, and her physical examination again disclosed no deformity or scoliosis of the thoracic or lumbar spine (Tr. 827-31).

b. Dr. William Barrick

On May 24, 2012, plaintiff visited Dr. William Barrick of Orthopedic Associates of Dutchess County. As of that date, plaintiff was still out of work due to her March 10, 2012 injury and plaintiff reported that she was still experiencing pain that was a three to four out of ten in severity (Tr. 396). Plaintiff also had right-sided neck pain, but did not report any numbness or tingling (Tr. 396). Plaintiff had previously been prescribed Flexeril,¹⁵ but claimed to have stopped taking it because it made her nauseous (Tr. 396).

The physical exam of plaintiff showed that her gait and station¹⁶ were normal (Tr. 397). She required no assistive devices or assistance walking and required no assistance removing her sandals (Tr. 397). Plaintiff's lumbar spine exhibited nearly full-extension (Tr. 397). She also had full range of motion in both hips (Tr. 397). Plaintiff exhibited no pain, guarding or tenderness; however, there was mild tenderness in the left groin region (Tr. 397). Dr. Barrick also reviewed plaintiff's March 14, 2012 MRI during his examination (Tr. 397).

At the conclusion of the May 24, 2012 appointment, Dr. Barrick opined that plaintiff was experiencing an exacerbation of her pre-existing degenerative disc disease and the development of new onset lumbar radiculopathy¹⁷ as a result (Tr. 397). Dr. Barrick found that plaintiff had been temporarily totally disabled, but was no longer disabled as of his examination (Tr. 397). Dr. Barrick further found that plaintiff was 25% impaired and could return to work albeit with limitations on lifting and bending (Tr. 394-97). Dr. Barrick also recommended a consultation with pain management services and for plaintiff to considerepidural steroid injections ("ESIs")¹⁸ since physical therapy did not appear to be helping plaintiff with her discomfort (Tr. 397).

c. Dr. Steven Jacobs

Plaintiff visited Dr. Steven Jacobs, a neurosurgeon at New York Neurological, on ten occasions prior to the alleged onset of her disability.

Plaintiff's initial consultation with Dr. Jacobs took place on May 15, 2012 (Tr. 287). Plaintiff told Dr. Jacobs that her workplace injury actually took place on February 28, 2012 and denied any back pain prior to that date (Tr. 287). Plaintiff complained of progressive back pain radiating down her left leg into the groin and reported weakness, tingling and numbness in her left leg (Tr. 287). She described the pain as "incapacitating" and stated the pain was an eight out of ten in severity (Tr. 287). She further claimed the back pain was aggravated by activity and relieved by rest (Tr. 287).

Dr. Jacob's physical examination of plaintiff's lumbar spine revealed pain when plaintiff rose from a seated position(Tr. 289). The plaintiff exhibited a distressed posture during the history taking portion of the exam (Tr. 289). Plaintiff also had increased back pain standing...