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Rosenbauer v. Astrue

United States District Court, W.D. New York

August 22, 2014



MARIAN W. PAYSON, Magistrate Judge.


Plaintiff Sarah Cathleen Rosenbauer ("Rosenbauer") 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 (the "Commissioner") denying her application for Disability Insurance Benefits ("DIB"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 7).

Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 10, 18). For the reasons set forth below, this Court finds that the decision of the Commissioner is supported by substantial evidence in the record and is in accordance with the applicable legal standards. Accordingly, the Commissioner's motion for judgment on the pleadings is granted, and Rosenbauer's motion for judgment on the pleadings is denied.


I. Procedural Background

Rosenbauer applied for DIB on December 16, 2009, alleging disability beginning on January 9, 2010, due to back pain, migraines, manic depression and diabetes. (Tr. 182, 184, 197-98).[2] On July 23, 2010, the Social Security Administration denied Rosenbauer's claim for benefits, finding that she was not disabled. (Tr. 77-81). Rosenbauer requested and was granted a hearing before Administrative Law Judge Milagros Farnes (the "ALJ"). (Tr. 85-86, 88-89, 118-22). The ALJ conducted a video conference hearing on September 29, 2011. (Tr. 43-65). Rosenbauer was represented at the hearing by her attorney, Kelly Laga, Esq. (Tr. 43, 152). In a decision dated October 27, 2011, the ALJ found that Rosenbauer was not disabled and was not entitled to benefits. (Tr. 16-27).

On November 14, 2012, the Appeals Council denied Rosenbauer's request for review of the ALJ's decision. (Tr. 1-5). Rosenbauer commenced this action on December 19, 2012, seeking review of the Commissioner's decision. (Docket # 1). Rosenbauer had previously applied for benefits, which the Commissioner denied by final decision dated October 31, 2000. (Tr. 184).

II. Non-Medical Evidence

A. Rosenbauer's Application for Benefits

Rosenbauer was born on October 21, 1973 and is now forty years old. (Tr. 184). Rosenbauer completed eighth grade in 1989 and received special education services. (Tr. 203). Rosenbauer reported that her symptoms include constant pain that interferes with her ability to sit or to lie down. (Tr. 198). In addition, according to Rosenbauer, she suffers from disabling migraines. ( Id. ). Further, Rosenbauer reported that she suffers from depression that causes her to want to stay in bed and interferes with her functioning. ( Id. ). According to Rosenbauer, she has experienced these symptoms since April 2004. ( Id. ).

Rosenbauer reported that her previous work history included employment as a bus aid and cook, a cashier, a factory worker and a janitor. ( Id. ). At the time of her application, Rosenbauer was taking Flexeril to manage her back pain, Lantus and Metmorphin to address her diabetes, Naproxen for inflammation and Prozac for her depression. (Tr. 202). According to Rosenbauer, the Flexeril causes drowsiness. ( Id. ).

B. The Disability Analyst's Assessment

On July 23, 2010, the disability analyst, N. Bahl ("Bahl"), completed a physical residual functional capacity ("RFC") assessment. (Tr. 70-75). Bahl opined that Rosenbauer could occasionally lift ten pounds and frequently lift less than ten pounds. (Tr. 71). According to Bahl, Rosenbauer could sit for six hours during an eight-hour workday, stand for at least two hours during an eight-hour workday and was not limited in her ability to push or pull. ( Id. ). In addition, Bahl opined that Rosenbauer could occasionally climb ladders, ropes or scaffolds, stoop, kneel or crouch and could frequently balance and crawl. (Tr. 72). Finally, Bahl noted that Rosenbauer had no manipulative, visual, communicative or environmental limitations. (Tr. 72-73). Based upon this assessment of Rosenbauer's limitations, Bahl opined that Rosenbauer retained the ability "to perform sedentary work." (Tr. 74).

III. Relevant Medical Evidence[3]

Treatment notes from Strong Memorial Hospital ("Strong") indicate that Rosenbauer was injured during a motor vehicle accident in January 2002. (Tr. 400-01). Rosenbauer suffered a laceration to her liver and multiple rib fractures. ( Id. ). Rosenbauer also fractured a finger on her left hand, which was surgically repaired. (Tr. 481-82).

On April 19, 2004, Rosenbauer was admitted to the emergency room at the Clifton Springs Hospital & Clinic ("Clifton Springs"). (Tr. 218). Treatment notes indicate that Rosenbauer's family had called an ambulance after Rosenbauer collapsed and admitted ingesting more diabetes medication than her prescribed amount. ( Id. ). Rosenbauer reported experiencing despondency and anger caused by various problems in her personal life, including nightmares, the inability to speak to a close friend, domestic violence, and the fact that she had lost a radio contest that day. ( Id. ). According to Rosenbauer, she left the house after writing a note leaving custody of her children to her fiance. ( Id. ). Rosenbauer attempted to go the mall to look for employment, but realized that she was inappropriately dressed. ( Id. ). She slipped and fell on the pavement, causing traffic to stop. ( Id. ). Rosenbauer reported suicidal and violent thoughts. ( Id. ). Treatment notes indicate that Rosenbauer reported a history of mental health treatment for post-traumatic stress disorder related to a history of abuse as a child. ( Id. ).

Eileen Wegman ("Wegman"), a crisis specialist, diagnosed Rosenbauer with depressive disorder, not otherwise specified, rule out bipolar disorder and rule out post-traumatic stress disorder. (Tr. 226). Wegman noted that Rosenbauer suffered from suicidal ideation and homicidal ideation. ( Id. ). Wegman recommended an inpatient stay for further evaluation and long-term ongoing psychotherapy. ( Id. ).

On April 20, 2004, Rosenbauer was transferred for inpatient treatment at St. Mary's Hospital. (Tr. 655-66). Rosenbauer reported that she had not planned to overdose on her medication. ( Id. ). According to Rosenbauer she was overwhelmed by ongoing personal issues, including financial stress, trouble with her housing, inability to obtain disability benefits, and an ongoing abusive relationship with her significant other, who is the father of her four children. ( Id. ). Rosenbauer reported that all four children live with her and her fiance. ( Id. ). Rosenbauer reported that she has attempted to work, but that she gets too anxious and has to stop. ( Id. ). According to Rosenbauer, she has had arguments with her fiance over his refusal to help with household chores and childcare responsibilities. ( Id. ).

Rosenbauer reported that her primary care physician had prescribed Paxil for her depression and that she had been taking the medication for the past two years. ( Id. ). She reported a history of nightmares, flashbacks and poor sleep. ( Id. ). She also reported physical problems, including a herniated disc, chronic back pain, hypercholesterolemia, non-insulin dependent diabetes mellitus and migraine headaches. ( Id. ). Upon examination, Alexandra Fotiou ("Fotiou"), M.D., noted that Rosenbauer was mildly disheveled with a restricted and tearful affect and a depressed mood. ( Id. ). Her thoughts were organized, her speech was normal and she had no psychotic symptoms. ( Id. ). According to Fotiou, Rosenbauer's insight and judgment were fair. ( Id. ).

During her inpatient stay, Rosenbauer's affect brightened and her mood improved. ( Id. ). Rosenbauer denied any further suicidal ideation and stated that she wanted to return to care for her children. ( Id. ). Rosenbauer agreed to commence outpatient treatment for depression at Clifton Springs upon discharge. ( Id. ). Rosenbauer was discharged on April 22, 2004. ( Id. ). At discharge, Rosenbauer was diagnosed with major depressive disorder and assessed to have a Global Assessment of Functioning ("GAF") of 60. ( Id. ).

On April 28, 2004, Rosenbauer attended an appointment at Clifton Springs for outpatient mental health treatment. (Tr. 258). Treatment notes indicate that Rosenbauer had been recently discharged from inpatient hospitalization after an overdose. ( Id. ). The treatment notes recount Rosenbauer's mental health history. ( Id. ).

On June 2, 2004, Rosenbauer had another appointment at Clifton Springs with a psychiatric social worker. (Tr. 259, 270-71). Rosenbauer reported increased stress from her relationship with her fiance, her financial situation and her disabilities. ( Id. ). Rosenbauer reported that she was experiencing flashbacks, increased anxiety and panic, and decreased sleep and motivation. ( Id. ). Treatment notes reflect that Rosenbauer cancelled or failed to arrive for appointments on April 30, May 6, May 17 and June 16, 2004. (Tr. 271). The notes suggest that Rosenbauer relocated to Rochester, New York. ( Id. ).

On September 1, 2004, Rosenbauer went to the Geneva General Hospital complaining of pain in her left ankle. (Tr. 279). Rosenbauer reported that she injured her ankle while walking. ( Id. ). Upon examination, Rosenbauer was walking with a limp and her ankle was swollen and tender. ( Id. ). An x-ray revealed no evidence of any acute fractures, although it revealed a potential old fracture deformity of the lateral malleolus. (Tr. 280). Rosenbauer was prescribed an air cast and crutches. (Tr. 279).

On January 17, 2005, Rosenbauer met with Aubree Guiffre ("Guiffre"), M.S. M.F.T., an assessment therapist. (Tr. 296). The purpose of the visit was for Rosenbauer to be evaluated in connection with an ongoing custody dispute with her ex-partner. ( Id. ). During the interview, Rosenbauer denied any symptoms consistent with a mood or thought disorder or anxiety. ( Id. ). Guiffre opined that Rosenbauer did "not meet the criteria for a mental health diagnosis and mental health treatment [was] not being recommended." ( Id. ).

At the time of the interview, Rosenbauer reported that she was living with her husband, whom she married in July 2004, and that she was eight months pregnant. (Tr. 297-99). She had sought a mental health evaluation upon the advice of her attorney relating to an upcoming custody hearing. (Tr. 297-98). Rosenbauer reported that in June 2004, she ended a thirteen-year abusive relationship with her former partner, the father of her four children. (Tr. 298). According to Rosenbauer, her former partner had been physically abusive towards her and she had obtained an order of protection prohibiting him from contacting her. ( Id. ). Rosenbauer told Guiffre that she had attempted suicide in April 2004 because she felt "trapped" in her previous relationship. ( Id. ). Rosenbauer denied any current mental health symptoms and denied that she needed mental health treatment. ( Id. ). Rosenbauer reported that she had stopped working in July 2003 because of "family stress." (Tr. 299).

Rosenbauer reported that her mood was "better than ever" and denied problems with sleep, appetite, energy, motivation, concentration or memory. (Tr. 301). Upon examination, Guiffre noted that Rosenbauer's speech was normal, articulate and coherent and that she displayed coherent, attentive and logical thought process. (Tr. 300). Guiffre did not observe any physical symptoms associated with anxiety or depression and opined that Rosenbauer's affect was stable, full range and appropriate to content. ( Id. ). Further, Rosenbauer's insight and judgment were good. ( Id. ). Guiffre deferred diagnosis on Axis I and assessed Rosenbauer's GAF to be 65. (Tr. 301).

Between May and September 2006, Rosenbauer received treatment from the Women's Health Practice at Strong. (Tr. 314-26). During those appointments, Rosenbauer reported that she had not been receiving any treatment for her diabetes for the previous two years. (Tr. 319, 324). Rosenbauer reported a history of depression and a suicide attempt related to a previous abusive relationship, but indicated that she had "never been happier" since marrying her husband and denied any depressive symptoms. (Tr. 315, 324-25). Rosenbauer also reported a history of migraines, for which she was prescribed Fioricet in July 2006 and which provided her relief. (Tr. 324).

On January 26, 2007, Rosenbauer had an appointment at the internal medicine department at Strong to establish a primary care provider. (Tr. 418, 580-81). During that visit, she was examined by Ryan Hoefen ("Hoefen"), M.D. ( Id. ). At the time of her visit, Rosenbauer reported that she was five months pregnant and was controlling her diabetes with insulin due to her pregnancy. ( Id. ). Rosenbauer reported continuing to smoke up to one pack of cigarettes per day, and Hoefen strongly advised her to discontinue smoking. ( Id. ). Rosenbauer had a follow-up appointment with Hoefen on March 2, 2007. (Tr. 582-83).

On June 1, 2007, Rosenbauer met with Hoefen complaining of back pain. (Tr. 584). According to Rosenbauer, in 1995 she had been diagnosed with a disc herniation as a result of an MRI. ( Id. ). Since that time, Rosenbauer reported experiencing periods of excruciating back pain approximately three times per year. ( Id. ). According to Rosenbauer, the pain radiates down her back and both of her legs. ( Id. ). Rosenbauer reported that in the past she had received treatment at the emergency room for her back pain and that the pain was alleviated through the use of Naproxen, Percocet and Flexeril. ( Id. ). Rosenbauer also reported that since giving birth in April 2007, she had been prescribed Metformin and Glyburide to control her diabetes. ( Id. ). Hoefen prescribed Naproxen and Flexeril to address Rosenbauer's back pain and recommended that she perform back exercises and stretches to avoid any future flare-up of her back pain. (Tr. 585). In addition, Hoefen indicated that if her pain continued, they could discuss a referral for physical therapy or injections. ( Id. ).

On April 28, 2008, Rosenbauer had an appointment with Michael Ferrantino ("Ferrantino"), M.D., at Strong. (Tr. 587). Rosenbauer reported that she had recently gone to the emergency room after experiencing pain in her left shoulder for several days. (Tr. 587-88). She described the pain as "sharp and stabbing" with occasional radiation to her elbow. ( Id. ). According to Rosenbauer, the pain worsened with movement. ( Id. ). At the emergency room, an x-ray of her shoulder was taken. ( Id. ). The x-ray revealed no fracture, dislocation or joint abnormalities, but revealed possible calcific tendinitis. (Tr. 343, 587). Rosenbauer reported that she had been taking her husband's Percocet to manage the pain. (Tr. 587). Ferrantino assessed that the pain was likely caused by rotator cuff tendinitis, a minor tear or frozen shoulder. (Tr. 588). He prescribed Ibuprofen and recommended that Rosenbauer perform range of motion exercises. ( Id. ).

On May 22, 2008, Rosenbauer went to the emergency room at Strong complaining of a migraine headache. (Tr. 346-47). She was prescribed Vicodin and advised to schedule an appointment for re-evaluation the following week. ( Id. ).

On June 23, 2008, Rosenbauer visited with Hoefen complaining of back pain. (Tr. 586). Hoefen noted that Rosenbauer had a history of periodic back pain that was managed by Ibuprofen and Flexeril. ( Id. ). He also noted that he had avoided prescribing pain medication because Rosenbauer's husband was also a clinic patient and had exhibited drug-seeking behavior. ( Id. ).

On November 20, 2008, Rosenbauer had an appointment with Melissa Gunasekera ("Gunasekera"), M.D., at Strong. (Tr. 589-90). During the appointment, Rosenbauer complained of left leg pain that she described as a sharp pain radiating from her left hip down to her foot. ( Id. ). Rosenbauer reported that the pain was "excruciating" and that it was only relieved with Percocet, Flexeril and Naproxen, which she had obtained from her husband who is on disability. ( Id. ). According to Rosenbauer, the pain had gotten worse over the course of the previous months, and she had visited the emergency room on November 14, 2008 due to the pain. ( Id. ). At the emergency room she was given Naproxen and Flexeril, but no x-rays were taken. ( Id. ). Rosenbauer explained that she previously had been diagnosed with a herniated disc in her back and that she was taking Naproxen and Flexeril to manage her pain. ( Id. ). Both Rosenbauer and her husband requested pain medication. ( Id. ). Upon examination, Gunasekera assessed unimpressive findings after noting that Rosenbauer was able to remove her shoe from her left foot, requiring her to flex and extend her left hip, without pain or difficulty. ( Id. ). Gunasekera further opined that Rosenbauer and her husband were engaged in narcotic-seeking behavior, having repeatedly requested and bargained for narcotics and sleep medications. ( Id. ). Gunasekera advised Rosenbauer and her husband that Rosenbauer had failed to demonstrate compliance with primary care visits and that she needed to demonstrate that she had attempted previous treatment recommendations prior to exploring new treatment options, including narcotics. ( Id. ). Gunasekera continued the prescriptions for Flexeril and Naproxen and referred Rosenbauer to physical therapy. ( Id. ).

In addition, Rosenbauer reported that she had discontinued her medications for diabetes during the previous sixteen months because she had issues with her insurance and had failed to keep primary care appointments. ( Id. ). Gunasekera advised Rosenbauer of the importance of managing her glucose and taking her diabetes medications. ( Id. ). ...

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