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Marianne Bauer v. Michael J. Astrue

May 23, 2012


The opinion of the court was delivered by: Neal P. McCURN, Senior District Court Judge


This action was filed by plaintiff Marianne Bauer ("plaintiff") pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner ("Commissioner") of the Social Security Administration ("SSA"), who denied her application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Currently before the court is plaintiff's motion for judgment on the pleadings (Doc. No. 9) seeking reversal of the Commissioner's decision with a finding of disability, or in the alternative, an order of remand for a new hearing. Also before the court is the Commissioner's motion for judgment on the pleadings (Doc. No. 12) seeking affirmation of the Commissioner's findings. For the reasons set forth below, the Commissioner's motion is granted, and plaintiff's motion is denied.

I. Procedural History and Facts

A. Procedural history

On February 4, 2005, plaintiff filed a Title II application for a period of disability and disability insurance benefits ("DIB"), and a Title XVI application for Supplemental Security Income benefits ("SSI"). In her applications, plaintiff alleged disability beginning on May 18, 2004. A hearing was held on September 27, 2006, and plaintiff's claims were denied by Administrative Law Judge ("ALJ") Robert E. Gale in a decision issued on December 18, 2006. Plaintiff requested review by the Appeals Council, and on April 4, 2007, the Appeals Council vacated the December 18, 2006 decision and remanded plaintiff's claims to the same ALJ for further proceedings (which were to include testimony from a vocation expert), to be held on June 24, 2009.

The June 24 hearing was adjourned for the attainment of consultive examinations, and was rescheduled for August 12, 2009. Plaintiff did not appear for the August 12 hearing, but appeared and testified at a hearing held on September 10, 2009 in Binghamton, New York. A vocational expert ("VE") also appeared and testified at that hearing. The ALJ issued an unfavorable decision on September 17, 2009, finding that plaintiff was not disabled from the period of May 18, 2004 through the date of that decision. The decision of the ALJ became final when the Appeals Council denied plaintiff's request for review on July 30, 2010. This action followed.

B. Facts

The following facts are taken from plaintiff's statement of the case and are supplemented as the court deems necessary. A plaintiff's facts submitted in disability appeals are often incorporated by the Commissioner in his brief, with the exception of any inferences or conclusions asserted by plaintiff. Here, the Commissioner objects to plaintiff's recitation of facts, alleging that plaintiff's memorandum of facts is incomplete and contains argument. Accordingly, the Commissioner submits additional facts. The court omits plaintiff's arguments from her statement of facts, makes corrections where she mischaracterizes testimony, and includes such facts submitted by the Commissioner that the court deems relevant.

Plaintiff's date of birth is January 22, 1963. She was 41 years old on the alleged disability onset date. Plaintiff has a high school diploma, and vocational training as a hair stylist and nail technician. Tr. 362. Plaintiff has past relevant work as a salon hair stylist, from November of 1995 until May of 2004. Tr. 32; 362. Plaintiff has not engaged in any substantial gainful activity since May 18, 2004. Tr.24. She alleges disability arising out of multiple physical and psychological impairments. With respect to her physical impairments, plaintiff has undergone multiple diagnostic tests for her spinal conditions. An MRI of the cervical spine was performed on June 2, 2004. Tr. 215-16. That MRI of the cervical spine revealed cervical lordosis. Tr. 216. There is a C5-6 posterior endplate remodeling seen with broad based disc bulge and central disc herniation, causing mild spinal canal stenosis without compromise of the neural foramen at this level. Tr. 216. At C6-7, there was a broad based disc bulge. Tr. 216. For her spinal conditions, plaintiff initially began treatment with her family practitioner, Dr. Michelle Boyle ("Dr. Boyle"). Tr. 202. Dr. Boyle's treatment of plaintiff continued to the time this action was filed. Dr. Boyle provided a medical assessment of the ability to do work related activities on November 7, 2007. Tr. 233-36. Dr. Boyle's initial notes reflect tendonitis in the right upper extremity with a flare-up of symptoms and neck pain. Tr. 203-05. Plaintiff previously had shoulder surgery performed by Dr. Brosnan in 2003. Tr. 205. Plaintiff alleges that she woke up on May 30, 2004 with shooting pain in her upper arm. Plaintiff states that she was having difficulty performing work as a hair dresser at that point and was in fact removed from work. Tr. 205. In early June of 2004, plaintiff was referred to Dr. Saeed Bajwa ("Dr. Bajwa"). Tr. 206. The MRI of the cervical spine, referenced above, revealed disc herniations, spinal stenosis and disc bulges as noted supra. Tr. 206. Dr. Bajwa first treated plaintiff on August 6, 2004. Tr. 217. At her initial visit, Dr. Bajwa diagnosed plaintiff with severe neck pain, with radicular right arm pain more than the left arm at extension, most likely secondary to cervical spondylosis and degenerative disc disease at C5-6 and C6-7. Tr. 219. A regimen of treatment was recommended including physical therapy with ultrasonics, hydrocollators and neck exercises three times a week for three weeks. Tr. 219. Medications were prescribed, including Bextra. Tr. 219. Dr. Bajwa also noted that plaintiff "may have a touch of carpal tunnel syndrome because of her profession of hair stylist." Tr. 219. Dr. Bajwa recommended EMG nerve conduction studies if the symptoms did not improve. Tr. 219.

Dr. Boyle initially completed a residual functional capacity ("RFC") assessment on November 7, 2005. Tr. 233. In that assessment, Dr. Boyle found that plaintiff could lift and carry no more than ten pounds overall and could carry zero pounds occasionally and frequently. Dr. Boyle wrote that with respect to standing, walking and sitting, plaintiff would need to change positions at will, and can only occasionally climb, balance, stoop, crouch, kneel and crawl. She was very limited in her ability to reach, handle, as well as push and pull, due to the numbness and tingling in the upper extremities. Dr. Boyle noted plaintiff has a tendency to drop items as a result. Tr. 233-36. Plaintiff was also to avoid temperature extremes. Tr. 236. On a correspondence signed on September 26, 2006, Dr. Boyle confirmed that her assessment of November 7, 2005 was still valid within a reasonable degree of medical certainty. Tr. 268-69.

Plaintiff has continued to treat with Dr. Boyle. Dr. Boyle provided an update RFC physical assessment on May 5, 2007. Tr. 296. In that assessment, she found that plaintiff could lift and carry less than ten pounds overall and zero pounds occasionally or frequently; needed frequent position changes for standing, walking and sitting; could only occasionally climb, balance, stoop, crouch, kneel and crawl; was affected in her ability to reach and handle and was to avoid temperature extremes. Tr. 293-96. Dr. Boyle again updated her physical RFC assessment on July 30, 2008. Tr. 318. Dr. Boyle noted at that point that there were no changes since she last saw plaintiff in April of 2008. Tr. 315. Dr. Boyle was asked to complete a mental RFC. Tr. 312. Dr. Boyle again indicated that she was not aware of any changes since she last saw plaintiff in April of 2008 as reflected in her office notes. Tr. 312.

Based on a consultative neurological examination on August 24, 2009 (Tr. 322-34), Dr. Justine Magurno found that plaintiff was five feet three inches tall and weighed 187 pounds. Her blood pressure was 125/62 mm/Hg. Her uncorrected vision was 20/25 in the right eye, 20/40 in the left eye, and 20/20 in both eyes. Plaintiff's gait was left antalgic. She could walk on her heels and toes without difficulty. She could not stand on her right toes. She did not use any assistive device. She was unable to tandem walk. The Romberg test was negative. She needed no help changing at the examination or getting on and off the examination table. She was able to rise from a chair with mild difficulty. Tr. 324. The mental status examination revealed that plaintiff was dressed appropriately.

Tr. 325. She maintained appropriate eye contact. She appeared oriented to time, person and place. Plaintiff claimed that she sometimes saw things in a room or in the woods while driving, which were not there. There was no indication of recent or remote memory impairment. Plaintiff's mood and affect were appropriate. There was no suggestion of impairment of insight or judgment. Hand and finger dexterity were intact. Grip strength was 5/5 bilaterally. Plaintiff was right-handed. Her head was normocephalic and atraumatic. There was no tremor. Plaintiff's neck was supple. Cranial nerves II-XII were normal and functional. The fundi of the eyes were normal. There was no nystagmus. There was no left/right field defect. In the upper extremities, plaintiff exhibited strength of 4/5 in the proximal muscles on the right side, and 5/5 on the left side. Strength in the distal muscles was 5/5 on the right side, and 5/5 on the left side. Tr. 325. There was no dysmetria. Deep tendon reflexes were physiologic and equal. Muscle tone was normal. Rapid alternating movements were normal. There was no muscle atrophy. The lower extremities appeared antalgic on the right side. The legs exhibited strength of 4/5 on the right side in the proximal and distal muscles. On the left side strength was 5/5 in the proximal muscles and 4/5 in the distal muscles. There was no dysmetria. Deep tendon reflexes were physiologic and equal. Muscle tone was normal. Heel-to-shin testing was normal. Babinski reflexes were negative. There were no tremors. There was no muscle atrophy. Sensation was diminished to pinprick in the L5 distribution on the right side distally, in the S1 distribution of the upper calf, to the metacarpophalangeal area on the left hand, and to the wrist on the right hand. Tr. 326. To light touch, there was subjective decrease in the right middle finger. Proprioception was intact. Vibration could not be tested. The diagnoses were neck pain with history of degenerative disc disease and radicular symptoms, history of uveitis, and history of depression. Dr. Magurno stated that plaintiff should avoid overhead use of her arms. She had marked limitations for walking, standing, lifting, carrying, pushing and pulling on the right side. She had moderate limitations for reaching on the right side below the shoulder level. There were no observed limitations below the shoulder level for reaching, pushing, or pulling on the left side, fine motor activity, speech, hearing and sitting. Tr. 326.

Dr. Magurno also performed a consultative orthopedic examination on August 24, 2009. Tr. 335-47. Dr. Magurno found that plaintiff appeared to be in no acute distress. Tr. 337. She could squat half way. Her station was normal. Range of motion testing of the cervical spine revealed that flexion was 10 degrees, extension was full, lateral flexion was 20 degrees on the right side and 30 degrees on the left side. Tr. 338. Plaintiff was tender on the low cervical spine, on the right paracervical muscles and the right trapezius muscle. Trigger point testing revealed tenderness on the mid point. Plaintiff was tender above the scapular spine near the medial border of the scapula bilaterally, on the anterior neck, and on the left second costal chondral joint for a total of five ...

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