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Illenberg v. Colvin

United States District Court, S.D. New York

November 20, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SARAH NETBURN, Magistrate Judge.


Plaintiff Rebecca Illenberg 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 the final determination of the Commissioner of Social Security (the "Commissioner") denying her application for Social Security Disability Insurance benefits ("DIB") and Supplemental Security Income ("SSI") (collectively, "disability benefits"). Illenberg moved, and the Commissioner cross-moved, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

Because I conclude that the administrative law judge ("ALJ") did not commit legal error and substantial evidence supports his determination, I recommend that the Commissioner's motion for judgment on the pleadings be GRANTED, and the plaintiff's motion be DENIED.


On August 25, 2006, Illenberg filed concurrent applications for DIB and SSI benefits, alleging an onset date for her disability of January 15, 2005. On May 9, 2007, the Social Security Administration ("SSA") denied her applications, and on June 19, 2007, Illenberg requested a hearing before an ALJ. On February 26, 2009, Illenberg appeared before ALJ Arthur Patane. On April 23, 2009, which was after Illenberg's insured status expired on June 30, 2008, the ALJ issued a decision denying both applications. On February 24, 2011, the Appeals Council denied Illenberg's request for review of the ALJ's decision. Then, on November 29, 2011, the Appeals Council set aside its February 24, 2011 decision to consider additional information but ultimately denied review, thereby rendering the decision of the Commissioner final.

On June 8, 2009, Illenberg filed another application for DIB, alleging an onset date for her disability of January 15, 2005, due to bipolar disorder, manic depressive disorder, and anxiety disorder. (R. 20, 277, 298.) The SSA denied her application, and Illenberg appealed, requesting a hearing before an ALJ. On May 24, 2011, Illenberg and her attorney appeared before ALJ Roberto Lebron. The ALJ adjourned the hearing, however, to consider additional medical evidence not yet in his possession. In the interim, on January 10, 2012, Illenberg protectively filed another application for SSI benefits, alleging an onset date for her disability of August 22, 2006, due to bipolar disorder, manic depressive disorder, anxiety disorder, and herniated discs in her back. Because Illenberg's DIB application was pending, the SSI application was accelerated to the hearing level so that the applications could be consolidated. On February 17, 2012, Illenberg and her attorney appeared before ALJ Michael A. Rodriguez. The ALJ issued a decision on May 8, 2012, denying Illenberg's applications. First, the ALJ found that res judicata barred Illenberg's application for DIB because the ALJ's April 23, 2009 denial of DIB came after the last date for which Illenberg was insured, June 30, 2008.[1] Second, the ALJ denied Illenberg's application for SSI on the ground that she was not disabled. On September 24, 2013, the Appeals Council denied Illenberg's request for review of the ALJ's decision, thereby rendering the decision of the Commissioner final.

On December 19, 2013, Illenberg, through counsel, filed this action challenging only the denial of her SSI claim. On December 30, 2013, the Honorable Allison Torres referred Illenberg's case to my docket for a report and recommendation. On June 12, 2014, Illenberg filed a motion for judgment on the pleadings with supporting memorandum of law. On July 14, 2014, the Commissioner filed a cross-motion for judgment on the pleadings with supporting memorandum of law. On August 20, 2014, the Court issued an Order directing the parties to file an opposition or reply brief by August 25, 2214, otherwise the motions would be considered fully briefed. The parties filed no other opposition or reply briefs, and the motions are considered fully briefed.


The following facts are taken from the administrative record.

I. Non-Medical Evidence

Illenberg was born on October 24, 1980, and was 31 years old at the time of her hearing on February 17, 2012. She graduated from high school in 1998. Illenberg has four children. Illenberg's mother has custody of her two oldest children, a daughter and son; her third child, a son, was adopted when he was six months old; and her fourth child, a daughter, lives with her and her fiance (the child's father), John Best. (R. 650.)

In an SSA Disability Report filed in June or July 2009, [2] Illenberg reported that her ability to work is limited by bipolar disorder, manic depressive disorder, and anxiety disorder. (R. 298.) The disorders cause her to "get upset at people, " "have a short attention span, " and make her unable to "concentrate." (Id.) Before she stopped working on August 22, 2006, Illenberg had been a cashier at florist, retail and restaurant establishments. (R. 299.)

II. Relevant Medical History

A. Psychiatric Impairments

1. St. Luke's Cornwall Hospital

On September 20, 2005, Illenberg reported to the emergency room of St. Luke's Cornwall Hospital in Newburgh, New York with a "slight headache" and reported feeling depressed. (R. 365.) She had no prior psychiatric history and was on no medications. (R. 368.) Her affect was restricted, she was easily tearful, but her speech was coherent. (Id.) Illenberg, then 24 years old, reported that she had fleeting thoughts of cutting her wrists, but, realizing the irrationality of those thoughts, came to the emergency room for help. (Id.) She had been feeling depressed since giving up her eight-month-old son for adoption six months ago.[3] (Id.) She reported feeling "overwhelmed by [illegible] stressors" and from "having financial problems." (Id.) At the time, she was working part-time at a florist shop while her fiance took care of their two-year-old child. (Id.) She denied having suicidal ideation or any intent or plan to hurt herself. (Id.) The doctor's impression was "adjustment [illegible] with depressive mood." (Id.) Illenberg did not meet the criteria for involuntary admission, and the doctor recommended that she be discharged but referred to therapy and medication management. (R. 267.) She was prescribed Zoloft (50 mg/day). (Id.)

2. Dr. Mark Cerbone, St. Francis Hospital

On October 5, 2006, Illenberg saw Dr. Mark Cerbone for an Emergency Psychiatric Evaluation at St. Francis Hospital in Poughkeepsie, New York. (R. 373.) Dr. Cerbone noted that "the patient has a strong family history of bipolar disorder" and "experiences unstable moods, primarily describing episodes of depression, irritability, flying off the handle, ' a propensity towards distraught, tense mood states and difficulty sleeping." (Id.) Illenberg reported that she took 50 mg of Zoloft a day for one to two months with no apparent benefit so stopped taking it. (Id.) She came to the hospital because of recent "intense irritability" and "mood swings." (Id.) Dr. Cerbone described her mental status as "youthful [], tense, concerned, coherent, no threats, no hallucinations or delusions. Reflects on circumstances and collaborates in treatment decisions." (Id.) Dr. Cerbone diagnosed Illenberg on Axis I[4] with "mood disorder nos, rule out bipolar spectrum, "[5] "deferred" on Axis II, "none noted" on Axis III, access to mental health for Axis IV, and a Global Assessment of Functioning ("GAF")[6] score of 60 on Axis V. (Id.) Illenberg was to follow up with outpatient clinic services and was "offered Seroquel as an aid to sleep 400 mg per tab, ½ to 3 tabs p.o. at bedtime prn insomnia and Lamictal 25 mg p.o. every a.m., titrate up to 100 mg p.o. every a.m. by increasing 25 mg every 7 days." (Id.)

3. Dr. Frank Musolino, Lexington Center for Recovery

Illenberg was treated at the Lexington Center for Recovery ("Lexington") from June 27, 2007 through August 13, 2009. (R. 381.) She was referred to Lexington by Turning Point, where she had just finished 28 days of rehabilitation for marijuana and crack addiction. (R. 369, 386-87.) Illenberg reported that before rehab, she used crack for one year, marijuana for two years, and occasionally drank alcohol. (R. 385.) She smoked half a pack of cigarettes a day. (R. 388-89.) She noted she found it hard to keep a job, and her last job had been in January/February doing marketing for Liberty Taxes. (R. 388.) She reported that her family (mother, father, and brother) has a history of mental illness, and that she has had physically and sexually abusive boyfriends. (Id.) She reported being raped at least twenty times in the past and, as a result, has panic attacks when a male figure is behind her. (R. 393.) She reported that she has a history of depression and had previously been diagnosed with bipolar disorder, PTSD, and having had a "nervous breakdown." (R. 386, 389, 393.)

At Lexington, Dr. Frank Musolino diagnosed Illenberg on Axis I with Cocaine Dependence (304.20), Cannabis Abuse (305.20) and Mood Disorder NOS (296.90). (R. 393.) He gave no diagnosis under Axis II, noted Illenberg's diagnosis of Hepatitis C and her being five months pregnant under Axis III, and listed social environment, health care services, economic, occupational, and problems with primary support group as stressors under Axis IV. (R. 386, 395.) He reported Illenberg's GAF as 60.[7] (R. 395.) He described Illenberg as "pleasant, normal gait and posture..., good eye contact, friendly, answers all questions relevantly." (R. 394.) From June 2007 through August 2009, Dr. Musolino prescribed her a combination of BuSpar, Trazodone, and Abilify. (R. 392-93, 396.) On August 13, 2009, Illenberg reported having back pain due to herniated discs and that she might be having surgery. (R. 396.)

4. Hudson Valley Mental Health Clinic

From November 24, 2009 through January 9, 2012, Illenberg received mental health services at Hudson Valley Mental Health ("Hudson Valley"). (R. 642-678). Illenberg was referred to Hudson Valley upon completion of treatment at Lexington. (R. 649-51.) On December 22, 2009, Dr. Deborah Chung completed a psychiatric evaluation of Illenberg. (Id.) Illenberg reported that her oldest daughter's and older sons' fathers were sexually and physically abusive. (R. 650.) She reported being sober (from marijuana and crack abuse) for one year and that she attended Alcohols Anonymous ("AA") and Narcotics Anonymous ("NA"). She reported overdosing two times, once in her early twenties and once four and a half years ago. Her medical history included Hepatitis C and herniated disks from a car accident. Illenberg's chief complaint was, "I'm depressed with anxiety. I'm not able to sleep. I'm nervous around people. I feel worthless and guilty. I want to continue to take medications and therapy." (R. 649.) With regards to her mental status, Dr. Chung described Illenberg:

Patient is a 29 year old moderately heavy set Caucasian female who looks to be [her] stated age. She is casually attired, but somewhat sloppy with poor hygiene. She is cooperative and polite. She is distracted with 2 year old daughter. Affect is tense and anxious with depressed mood. Patient reports panic attacks in a crowd. Speech is coherent and relevant with no apparent thought disorders. Patient seems to be isolated with limited interaction. Patient denies any hallucinatory experiences or suicidal/homicidal ideas. She is oriented to 3 spheres. Memory for recent and remote events is intact. Patient seems to have low average intelligence. Insight and judgment are limited.

(R. 650.) Dr. Chung diagnosed Illenberg on Axis I with Major Depressive Disorder Single Episode (296.20), Panic Disorder with Agoraphobia (300.21), Cocaine Dependence in Early Remission (304.23), and Cannabis Abuse in Early Remission (305.23); on Axis II with "deferred" (799.9); on Axis III with Hepatitis C and herniated discs (causing back problems subsequent to a car accident); on Axis IV with support group, social, and occupational stressors; and on Axis V with a GAF of 50.[8] (R. 650, 563-68.)

Dr. Chung saw Illenberg again and wrote reports on September 24, 2010 (R. 557-62), January 18, 2011 (R. 549-56), February 25, 2011 (R. 647-48), April 14, 2011 (R. 541-48), July 14, 2011 (R. 671-78), October 12, 2011 (R. 663-70), and January 9, 2012 (R. 655-62). Throughout this time, Dr. Chung prescribed Illenberg with a combination of Abilify, Ambien, BuSpar, Remeron, Lunesta, and Klonopin. (R. 642-46.) Throughout this period, Illenberg's clinical diagnosis remained the same, except that her Axis IV diagnosis listed economic, educational, and occupational stressors as priorities beginning on September 24, 2010. (R. 561.) Throughout this period, the reports stated that "patient is struggling with health problems that have gone undiagnosed and has missed several appointments due to this. She is actively involved in her church and will begin helping people who struggle with drug addiction as she once did. [She h]as custody of one child and finds this difficult when she is not feeling well, " although the child's father is helpful. (R. 541, 549, 663, 671.) On January 18, 2011, Illenberg reported that she had seen a back surgeon and plans to have surgery in early 2011. (R. 551.) On February 25, 2011, Illenberg reported that on a scale of 1-10 (with 10 being the most intense), her back and leg pain was a 9. (R. 647.) Thereafter, Illenberg reported that she had back surgery in March, 2011 (R. 673.) On October 12, 2011 and January 9, 2012, Illenberg committed to applying for ACCES-VR[9] and following through with recommendations made by ACCES-VR. (R. 665, 657.) On January 9, 2012, Illenberg also reported being depressed because her grandmother died, and although she still had difficulty going out in crowded places, she had gone out over the holidays. (R. 655.)

B. Physical Impairments

1. Dr. Kenneth Desa

Illenberg saw Dr. Kenneth Desa as her primary care physician between April 23, 2009 and March 15, 2010. (R. 459-75.) During that time, Illenberg was 5'4", weighed between 190-217 lbs., and smoked cigarettes. (Id.) At visits on May 28, 2009 and December 18, 2009, Illenberg denied having headaches or having difficulty sleeping. (R. 460, 470.) On October 13, 2009, she denied having little interest or pleasure in doing things in the last two weeks and denied feeling down, depressed, or hopeless. (R. 462.) On November 2, 2009, she reported that she was hospitalized for six days when one side of her lungs collapsed in October 2009. (R. 464.)

2. Dr. Steven Celestin, Community Health, Hudson River Health Care, Inc.

Illenberg saw Dr. Steven Celestin as her primary care physician between December 29, 2009 and May 3, 2011. (R. 473-74, 508-31.) Illenberg confirmed that she had not used cocaine, marijuana, and alcohol since April 2007. (R. 513.) At her July 12, 2010 visit, Illenberg complained of back pain, noted that she will continue her neurological and pain management with Dr. Jindal, and indicated that she was applying for a disability parking sticker due to difficulty walking. (R. 515-16.) Between July 23, 2010 and August 24, 2010, Illenberg saw Dr. Celestin three times due to acute stomach pain. (R. 517-24). On November 30, 2010, Illenberg reported pain of 8-8.5 on a scale of 1-10 in her back, and on February 3, 2011, Dr. Celestin provided her medical clearance for disc replacement surgery (scheduled for March 1, 2011). (R. 525-28.) At her May 3, 2011 follow-up appointment after disc surgery, she reported that she had some pain while "walking long distances or exerting" herself but the pain is much improved overall. (R. 530.) She again reported that she had not suffered from little interest or pleasure in doing things in the last two weeks and had not been feeling down, depressed, or hopeless. (Id.) She also expressed an interest in trying Chantix to quit smoking. (Id.)

3. Dr. Ronald Scheinzeit, Orthopedic Associates of Dutchess County, P.C.

On November 6, 2007, Illenberg saw Dr. Ronald Scheinzeit of Orthopedic Associates of Dutchess County, P.C. for neck and lower back pain caused by a car accident she was in on July 13, 2007. (R. 375.) At the time, Illenberg was 26 years old, weighed 182 pounds and was five months pregnant. (Id.) She reported no pain down her arms or legs and had no tenderness in her neck and back. (Id.) "Her lower back has a little more tenderness centrally but she moves both hips, knees and ankles, and has pulse, sensation and motor function." (Id.) Her ability as to "straight leg raising" was negative. (Id.) Dr. Scheinzeit diagnosed her with a cervical sprain and lumbosacral strain. (Id.) On December 18, 2007, Dr. Scheinzeit saw Illenberg again and found no neurological changes in her status. (R. 377.) After giving birth on February 19, 2008, Illenberg visited Dr. Scheinzeit on April 15, 2008. (R. 379.) Her neck and lower back symptoms remained the same with no pain down her arms and legs, and no numbness or weakness. (Id.) She was able to "move her upper extremities and lower extremities" and was ambulatory. (Id.) Dr. Scheinzeit diagnosed her with persistent and chronic cervical strain and lumbar strain and recommended physical therapy. (Id.)

4. Dr. Surinder Jindal, Neurologist

Illenberg saw Dr. Surinder Jindal for her back pain beginning on May 19, 2009 through October 4, 2011.[10] (R. 429-58). On May 19, 2009, Illenberg complained of "cervical pain, lumbosacral pain, left arm pain and numbness, [] paresthesis of the hands, " and "of tingling and numbness sensation." (R. 451.) She was prescribed B6 50 mg a day and Relafen 500 mg twice a day as needed. (R. 440.) On June 18, 2009, Illenberg was reevaluated and reported that the pain was more frequent and bothersome, including: "hand numbness, " "radiating pain from the neck, " and pain which interfered with her sleep and daily activities. (R. 448.) Dr. Jindal recommended that Illenberg get an MRI, although he believed surgery was not necessary, and prescribed Lodine 300 mg twice a day, Zanaflex 2mg at nighttime, vitamin B6, and Darvocet as needed. (R. 449.) On July 9, 2009, a MRI revealed electrophysiological evidence of left L5-SI radiculopathy. Dr. Jindal recommended continuing "conservative treatment, " including trigger point injections in various spinal regions. (R. 447.) On October 22, 2009, Illenberg complained that her back pain was more frequent with some stiffness, although the trigger point injections relieved some pressure and burning sensations, making her more comfortable in daily activities. (R. 445.) Her straight leg raising was 70 degrees. (Id.) Dr. Jindal continued her "conservative pain management, " which then included Lodine, replacing Darvocet with Ultracet and Ultram, four trigger point injections in various spinal regions, and stretching. (Id.) On November 17, 2009 (R. 443), December 15, 2009 (R. 437), January 12, 2010 (R. 435), February 9, 2010 (R. 433), March 9, 2010 (R. 431), April 6, 2010 (R. 429), August 9, 2011 (R. 634), and October 4, 2011 (R. 633), Illenberg's pain and symptoms persisted and Dr. Jindal continued his "conservative pain management" recommendations.[11] Dr. Jindal also recommended weight loss. (R. 633.)

5. New York Spine Surgery & Rehabilitation Medicine, PLLC

Illenberg was referred by Dr. Jindal to Dr. Kenneth K. Hansraj at New York Spine Surgery & Rehabilitation Medicine, PLLC between July 2009 and November 2009. (R. 571-87.) On August 18, 2009, Illenberg reported "constant neck and back pain, " numbness in hands and weakness in legs and arms, "spending a lot [of] usual waking hours lying down, " and having pain during the night. (R. 579.) On a typical day, she reported being able to walk less than one New York City block and although walking elsewhere (shopping for groceries, walking around the house or in the mall) was possible, she was always in pain. (R. 581.) Dr. Hansraj recommended conservative treatment. (R. 582, 587.)

6. Dr. Ezriel Kornel, Brain and Spine Surgeons of New York

On October 6, 2010, Dr. Ezriel Kornel met with Illenberg to address her back pain. (R. 488.) Illenberg reported that "her pain is worse with prolonged sitting, prolonged standing, or prolonged walking and she feels very limited now and even has difficulty lifting her 2 ½ year-old daughter." (Id.) Dr. Kornel noted that Illenberg "tried extensive conservative treatment over the years including physical therapy and chiropractic without any benefit." (Id.) Dr. Kornel diagnosed Illenberg with "traumatic discopathy at L4-L5 causing chronic pain" and "whiplash injury ...

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