Hilliard v. Colvin

Decision Date31 October 2013
Docket Number13 Civ. 1942 (AJP)
PartiesMELISSA A. HILLIARD, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
CourtU.S. District Court — Southern District of New York
OPINION & ORDER

ANDREW J. PECK, United States Magistrate Judge:

Plaintiff Melissa A. Hilliard, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying her Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits. (Dkt. No. 1:Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. Nos. 8 & 11: Notices of Motion.) The parties have consented to decision by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 5: Consent Form.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings (Dkt. No. 8) is GRANTED and Hilliard's motion (Dkt. No. 11) is DENIED.

FACTS
Procedural Background

On August 13, 2010, Hilliard applied for DIB benefits, alleging that she was disabled since March 15, 2010. (Dkt. No. 7: Administrative Record filed by the Comm'r ("R.") 99.) On December 21, 2010, Hilliard filed an application for SSI benefits. (R. 108.) Hilliard allegeddisability due to pain in the back, hips, right knee and right shoulder. (R. 152, 154, 192.) The Social Security Administration ("SSA") consolidated the applications, found that Hilliard was not disabled, and denied the applications. (R. 55-59.) On December 21, 2010, Hilliard requested an administrative hearing. (R. 61-64.)

Administrative Law Judge ("ALJ") Brian W. Lemoine conducted a hearing on December 12, 2011 (R. 25-47), at which Hilliard appeared with counsel (R. 25, 28-29). On December 15, 2011, ALJ Lemoine issued a written decision finding Hilliard not disabled. (R. 9-20.) ALJ Lemoine's decision became the Commissioner's final decision when the Appeals Council denied Hilliard's request for review on February 7, 2013. (R. 1-5, 195-200.)

The issue before the Court is whether the Commissioner's decision finding Hilliard not disabled is supported by substantial evidence.

Non-Medical Evidence

Hilliard, born on December 25, 1965, was forty-four years old at the alleged onset of her disability. (R. 99, 108.) Hilliard graduated from high school and received some college credits. (R. 30.) Hilliard worked as a home health aide and as a van driver; both jobs required her to lift people and things. (R. 30-31, 132-33, 139-43.) Hilliard lives in Yonkers with the her three children, ages eighteen (twins) and twenty-one. (R. 39-40.) Hilliard performs light household chores, including washing the dishes, doing laundry, and cooking meals. (R. 39, 148, 275.) Hilliard's mother and three children help out with grocery shopping and other chores around the house, such as cooking and cleaning. (R. 39-40, 147-48, 275.) Hilliard takes public transportation by herself, but reported that she has difficulty going up the bus steps. (R. 41-42.) Hilliard leaves her house three to four times per week. (R. 147.) She is capable of walking and driving. (R. 147.)Hilliard's activities include talking on the phone, watching television, reading, and walking locally. (R. 151, 275.)

Medical Evidence
Prior to March 15, 2010

On May 17, 2008, Hilliard was treated in the Emergency Department of St. John's Riverside Hospital for complaints of pain in her lower back and right hip, the latter of which radiated down to her right leg. (R. 222-35.) An x-ray of the right hip and pelvis area came back normal. (R. 229.) The right knee x-ray revealed mild degenerative joint disease. (R. 228.) The hospital wanted to admit Hilliard for further evaluation of an unrelated condition, but Hilliard refused and was discharged against medical advice. (R. 226.) Upon discharge, Hilliard was ambulatory with steady gait. (R. 224.)

On May 5, 2009, Hilliard went to the Emergency Department at St. John's Riverside Hospital after a motor vehicle accident. (R. 236-41.) Hilliard was driving her work vehicle when she was hit from the side and injured her left knee. (R. 236.) A left knee x-ray could not rule out a small effusion. (R. 240.) Hilliard's knee was sore, but she could bear weight and walk. (R. 239.)

On October 4, 2009, Hilliard visited the Emergency Department at St. John's Riverside Hospital after tripping and falling the prior day. (R. 242-47.) Hilliard complained of pain in her back and wrist. (R. 242.) An x-ray of the lumbar spine showed no evidence of fracture and no abnormalities. (R. 246.) Hilliard was discharged that same day. (R. 244-45.)

On October 13, 2009, Hilliard returned to the Emergency Department at St. John's Riverside Hospital complaining of back pain on her right side, leg pain, bilateral knee pain, and numbness to her toes on her right foot. (R. 248-54.) Hilliard stated that the pain has been constant since her fall the previous week. (R. 248.) X-rays of both knees were normal. (R. 250.) An x-rayof the right wrist showed "mild degenerative changes of the carpal bones." (R. 250.) The attending physician diagnosed knee contusion, acute sprain/strain of the rotator cuff and arm contusion. (R. 254.)

On December 17, 2009, Hilliard visited her primary care physician, Dr. Lee Berk, complaining of right knee pain with popping and clicking. (R. 479-82.) Hilliard stated that the symptoms began four weeks prior. (R. 479.) She also complained of swelling and pain in her right calf. (R. 479.) Dr. Berk's physical examination showed moderate warmth and tenderness at the right knee along the joint line with suggestion of small effusion. (R. 480.) Dr. Berk also noted tenderness at the right calf. (R. 480.) Dr. Berk ordered a Duplex Doppler study of the lower right leg to evaluate Hilliard's calf swelling and right leg pain. (R. 481.) The Duplex Doppler test was performed on January 2, 2010 and revealed no evidence of deep venous thrombosis. (R. 336.)

Hilliard's persistent knee pain was unresponsive to physical therapy and Dr. Berk diagnosed a right meniscal tear. (R. 310.) On March 5, 2010, Dr. Berk cleared Hilliard for arthroscopic surgery on the right knee. (R. 310-13.) Dr. Arnold Wilson performed the surgery on March 15, 2010. (R. 201, 217, 298.)

After March 15, 2010
April 1, 2010 Through August 31, 2010

On May 7, 2010, Hilliard saw Dr. Berk with complaints of radiating pain in her neck, which began a year earlier and had since worsened. (R. 302.) Hilliard also complained of persistent right thigh and knee pain. (R. 302.) Hilliard had reduced her physical therapy treatment to once a week. (R. 302.) Dr. Berk noted that Hilliard was "currently out of work for unspecified reasons, and it is unclear if there are other [u]lterior motives to document disabilities, as [Hilliard] is not anxious to return to work. [Hilliard] appears to be lackadaisical about pursuing PT." (R. 302.) Onthe same visit, Dr. Berk observed that Hilliard had localized tenderness on palpation of the right trapezius and paracervical muscles. (R. 304.) Hilliard had right shoulder pain on full abduction and external rotation and tenderness of the great trochanter extending down the iliotibial band and right knee. (R. 304.) Dr. Berk diagnosed right shoulder impingement syndrome and iliotibial band syndrome in the right knee. (R. 304.) Dr. Berk's assessment was that both conditions had deteriorated and that Hilliard should follow up with Dr. Wilson for further evaluation and treatment. (R. 304.)

On May 21, 2010, in a Supplementary Report questionnaire for Hilliard's insurance company, Dr. Berk listed the following diagnoses: right trochanteric bursitis since February 2005; lumber radiculopathy, October 2005; cervical spondylosis and iliopsosis tendinitis, September 2006. (R. 296.) Dr. Berk opined that Hilliard was disabled and that it was unknown when she would be able to return to work. (R. 296.) Dr. Berk also filled out a New York State Department of Motor Vehicles Application for a Parking Permit for persons with disabilities for Hilliard, indicating that Hilliard had a temporary disability due to a meniscal tear in her right knee with an expected recovery date of September 15, 2010. (R. 297.)

On June 21, 2010, Hilliard visited Dr. Berk complaining of light-headedness. (R. 212.) Dr. Berk's musculoskeletal findings indicated that Hilliard had the normal full range of motion of all joints with no clubbing, cyanosis, edema, or deformity noted. (R. 214.) Dr. Berk diagnosed unchanged lumbar strain and soft cervical radiculopathy, and ordered Hilliard to continue with physical therapy. (R. 214.)

On June 30, 2010, Dr. Berk filled out a Workers' Compensation Board Doctor's Progress Report for Hilliard, listing the following diagnoses: meniscal tear and shoulder impingement. (R. 202.) Dr. Berk indicated that he referred Hilliard for orthopedic evaluation withDr. Arnold Wilson for complaints related to her knee and back pain. (R. 203.) Dr. Berk determined there was an eighty-percent temporary impairment. (R. 203.) Dr. Berk further concluded that Hilliard could not return to work due to her inability to sit for more than two hours, stand for more than thirty minutes, bend, lift, pull or twist. (R. 203.)

On July 2, 2010, Hilliard went to the Emergency Department at St. John's Riverside Hospital complaining of right shoulder pain. (R. 258-62.) The nursing assessment found Hilliard's range of motion to be intact to the affected area but she was unable to lift her right arm over her head. (R. 259.) The attending physician noted that Hilliard was able to lift her arm over her head, but that she had decreased range when putting her arm behind her back. (R. 261.) Hilliard expressed tenderness throughout her entire right shoulder and had spasms in the posterior aspect of the shoulder. (R. 261.) The attending physician ordered an x-ray, but Hilliard refused, demanding an MRJ instead....

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