Rosenbauer v. Astrue
Filing
24
-CLERK TO FOLLOW UP- DECISION & ORDER granting 10 Motion for Judgment on the Pleadings; denying 18 Motion for Judgment on the Pleadings, and Rosenbauer's complaint 1 is dismissed with prejudice. Signed by Hon. Marian W. Payson on 8/22/2014. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
SARAH CATHLEEN ROSENBAUER,
DECISION & ORDER
Plaintiff,
12-CV-6690P
v.
MICHAEL J. ASTRUE, 1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________
PRELIMINARY STATEMENT
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.
1
After the commencement of this action, on February 14, 2013, Carolyn W. Colvin became Acting
Commissioner of Social Security.
BACKGROUND
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
2
The administrative transcript shall be referred to as “Tr. __.”
2
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).
3
Those portions of the treatment records that are relevant to this decision are recounted herein.
3
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 fiancé. (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
4
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 fiancé. (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 fiancé 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
5
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 fiancé, 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).
6
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
7
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
8
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
9
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.). Gunasekera
recommended restarting Glucovance and gave Rosenbauer a glucose monitor. (Id.).
On March 6, 2009, Rosenbauer had an appointment with Albert Kim (“Kim”),
M.D. (Tr. 591-92). Rosenbauer reported that she had been monitoring her blood glucose levels,
which had improved from her previous levels, but were not optimal. (Id.). Rosenbauer reported
10
experiencing stress due to several deaths in her family and her husband’s recent hospitalization.
(Id.). Kim encouraged Rosenbauer to improve her diet and to exercise. (Id.).
On July 17, 2009, Rosenbauer began receiving primary care treatment at Culver
Medical Group (“Culver Medical”). (Tr. 593-95). Treatment notes indicate that Rosenbauer was
receiving care at Strong internal medicine, but had switched providers because her husband had
switched to Culver Medical. (Id.). At the appointment, Rosenbauer’s blood sugar level was at a
“critical high.” (Id.). Rosenbauer reported that she had been taking Glyburide/Metformin to
manage her glucose levels and that she had recently increased her dosage because her levels
were high. (Id.). Anne Huber (“Huber”), M.D., modified her diabetes prescription by
discontinuing Glyburide and prescribing Lantus and Metformin. (Id.).
Rosenbauer’s new patient report indicated that she exercised regularly by
walking, playing with her kids and playing tennis. (Tr. 306). Rosenbauer reported that she
experienced pain in her back, knee and shoulder. (Tr. 307). According to Rosenbauer, she had
experienced intermittent back pain for several years and her shoulder had bothered her for the
past four days. (Id.). Rosenbauer reported that her pain was exacerbated by lifting and excessive
movement. (Id.).
Rosenbauer attended another appointment with Huber on July 29, 2009. (Tr.
596-97). Huber checked Rosenbauer’s blood sugar levels and determined that they were lower.
(Id.). Huber noted that she wanted to discuss smoking cessation and Rosenbauer’s daytime
sleepiness at a future appointment. (Id.).
On January 11, 2010, Rosenbauer attended an appointment with Huber to
follow-up on her diabetes. (Tr. 599-601). Rosenbauer also raised concerns regarding her mood
and insomnia. (Id.). According to Rosenbauer, she was experiencing difficulties sleeping due to
11
aches in her legs and body, and her children waking her up in the night. (Id.). Rosenbauer’s
husband also reported that she snored and momentarily stops breathing during her sleep. (Id.).
Rosenbauer reported that she never feels well-rested and is often tired during the day. (Id.).
With respect to her mood, Rosenbauer reported a history of depression. (Id.). According to
Rosenbauer, she cries all the time and feels overwhelmed by her children. (Id.). Rosenbauer
reported that she had previously been prescribed Paxil, but it caused her to feel manic. (Id.).
Rosenbauer also reported that she had tried Wellbutrin without success. (Id.). According to
Rosenbauer, she has not taken any medication to manage her mood for several years, but felt that
she should be on medication and should have individual counseling. (Id.).
Huber prescribed Fluoxetine to address Rosenbauer’s depression and contacted a
social worker to establish a behavioral health therapist for Rosenbauer. (Id.). Huber opined that
Rosenbauer might suffer from sleep apnea and referred her to a sleep specialist. (Id.). Huber
also indicated that Rosenbauer needed an eye examination. (Id.).
On May 24, 2010, Rosenbauer attended another appointment with Huber. (Tr.
602-04). Huber monitored Rosenbauer’s blood glucose levels, and Rosenbauer reported that she
was trying to eat a healthier diet and was occasionally walking for exercise. (Id.). Rosenbauer
reported continued depression with some good days and some bad days. (Id.). Rosenbauer also
reported that she had a history of migraine headaches, which she experienced approximately
twice per week. (Id.). Rosenbauer reported that she had used Fioracet in the past and that it
provided relief and that Immitrex did not relieve her symptoms. (Id.). Huber increased
Rosenbauer’s dosage of Fluoxetine to attempt to bring her mood to a better level. (Id.). Huber
prescribed Naproxen with Reglan to address Rosenbauer’s migraine headaches. (Id.).
12
On July 15, 2010, state examiner Dr. Margery Baittle (“Baittle”) conducted a
consultative psychiatric evaluation of Rosenbauer. (Tr. 532-35). During the evaluation,
Rosenbauer reported that she completed school through the eleventh grade in a regular class
setting. (Id.). Rosenbauer told Baittle that she lives with her husband and their six children
ranging in ages from sixteen to three. (Id.). Rosenbauer reported that she last worked in 2001
and could not recall why she stopped working. (Id.). According to Rosenbauer, she is currently
unable to work because of her back, body pain, diabetes and depression. (Id.).
Rosenbauer recounted her history of psychiatric treatment, including her
hospitalization in 2004 and her subsequent outpatient treatment for a few months following that
hospitalization. (Id.). Rosenbauer reported that she did not currently receive mental health
treatment, but had scheduled an appointment to commence treatment in August 2010. (Id.).
Rosenbauer reported that she has difficulty sleeping and has to force herself to get out of bed in
the morning. (Id.). According to Rosenbauer, she suffers from crying spells, irritability,
concentration problems and diminished sense of pleasure. (Id.). Rosenbauer stated that she
experienced these symptoms prior to her hospitalization in 2004. (Id.). At times, according to
Rosenbauer, she also experiences periods of manic symptoms, during which her mood is
elevated and she is more active and easily distractible. (Id.).
Rosenbauer reported that she socializes infrequently. (Id.). According to
Rosenbauer, her husband and children assist her around the house. (Id.). Rosenbauer reported a
good relationship with her family and that her mother and brother live upstairs. (Id.).
Rosenbauer told Baittle that she enjoys sewing, quilting, watching television, listening to the
radio, reading and watching her small children. (Id.).
13
Upon examination, Baittle noted that Rosenbauer appeared somewhat disheveled.
(Id.). Baittle opined that Rosenbauer had fluent, clear speech, coherent and goal-directed
thought processes, somewhat dysphoric affect, neutral mood, clear sensorium, good orientation,
and average intellectual functioning with a somewhat limited general fund of information. (Id.).
Baittle noted that Rosenbauer’s attention and concentration were mildly impaired. (Id.).
According to Baittle, Rosenbauer could count, perform simple calculations and understand the
serial three’s, although she performed them incorrectly. (Id.). Baittle found Rosenbauer’s recent
and remote memory skills mildly impaired. (Id.). According to Baittle, Rosenbauer could recall
three out of three objects immediately and two out of three objects after five minutes and she
could complete five digits forward and back. (Id.). Baittle opined that Rosenbauer’s insight and
judgment were fair. (Id.).
According to Baittle, Rosenbauer could follow and understand simple and more
complex directions, perform simple tasks independently, relate quite well with others, seemed to
maintain attention and concentration, could manage her own finances and could probably make
appropriate decisions, although Rosenbauer has difficulty dealing with stress. (Id.). According
to Baittle, Rosenbauer’s prognosis was fair. (Id.).
That same day, July 15, 2010, state examiner Karl Eurenius (“Eurenius”), M.D.,
conducted a consultative internal examination of Rosenbauer. (Tr. 536-41). During Eurenius’s
examination, Rosenbauer reported that she suffered from depression, back pain, headaches and
diabetes. (Id.). According to Rosenbauer, she has had back pain for the past twenty years and
was told that she had a “slipped disc” in 1997. (Id.). Rosenbauer reported that she was treated
with Vicodin, Flexeril and Naprosyn, which generally alleviates the pain. (Id.). In addition, heat
helps to alleviate the pain. (Id.). According to Rosenbauer, on occasion, the pain radiates from
14
her back into her buttocks and down her legs. (Id.). Rosenbauer reported that she has numbness
and tingling in her hands and that she has a small sore on her left foot. (Id.).
Rosenbauer reported that she is able to cook, clean, do the laundry and shop, but
does so with difficulty because of her back pain. (Id.). Rosenbauer reported that she can
shower, bathe and dress herself daily. (Id.). Rosenbauer’s hobbies include watching television,
reading and listening to the radio. (Id.).
Upon examination, Eurenius noted that Rosenbauer did not appear to be in any
distress and that her gait and stance were normal. (Id.). Rosenbauer was able to stand on her
heels and toes and could squat fifty percent with pain. (Id.). Eurenius noted that Rosenbauer did
not use an assistive device and did not need any assistance to change, get off the examination
table or rise from the chair. (Id.).
Eurenius noted that Rosenbauer’s cervical spine showed full flexion, extension,
lateral flexion bilaterally and full rotary movement, and her lumbar spine had limited flexion
with pain. (Id.). Rosenbauer’s lumbar lateral flexion and rotation were full with pain in the low
mid-back. (Id.). In addition, Eurenius noted that Rosenbauer could perform straight leg raises to
thirty degrees bilaterally while standing and ninety degrees bilaterally while sitting with pain in
the low mid-back. (Id.). Rosenbauer had full range of motion in her shoulders, elbows,
forearms, wrists, hips, knees and ankles. (Id.). Eurenius also noted tenderness in Rosenbauer’s
low, mid-back upon palpitation. (Id.).
Eurenius reviewed x-rays of Rosenbauer’s spine. (Id.). The lumbosacral spine
x-ray revealed degenerative spondylosis at L4-L5 and L5-S1 with straightening and no
compression fractures. (Id.). The thoracic spine x-ray revealed mild degenerative spondylosis at
T11-T12 with no compression fracture. (Id.). Eurenius opined that Rosenbauer was “moderately
15
limited in prolonged standing, climbing or descending more than a flight of stairs, bending,
lifting, or carrying more than ten pounds, and kneeling due to chronic low back pain. (Id.).
On July 22, 2010, agency medical consultant Dr. T. Harding (“Harding”)
completed a Psychiatric Review Technique. (Tr. 542-55). Harding concluded that Rosenbauer’s
mental impairments did not meet or equal a listed impairment. (Tr. 545, 547). According to
Harding, Rosenbauer suffered from mild limitations in her activities of daily living and moderate
limitations in her ability to maintain social functioning and to maintain concentration, persistence
or pace. (Tr. 552). In addition, according to Harding, there was insufficient evidence to
determine whether Rosenbauer had suffered from repeated episodes of deterioration. (Id.).
Harding completed a mental RFC assessment. (Tr. 66-69). Harding opined that Rosenbauer
suffered from moderate limitations in her ability to complete a normal workday and work week
without interruptions and to perform at a consistent pace without an unreasonable number and
length of rest periods; accept instructions and respond appropriately to criticism from
supervisors; maintain socially appropriate behavior and adhere to basic standards of neatness and
cleanliness; respond appropriately to changes in a work setting; and travel in unfamiliar places or
use public transportation. (Tr. 67). According to Harding, Rosenbauer is able to perform the
basic demands of competitive, renumerative unskilled work on a sustained basis. (Tr. 68).
On September 18, 2010, Rosenbauer went to the emergency room at Strong
complaining of abdominal pain. (Tr. 560). Rosenbauer was given pain and nausea medication
and was advised to follow-up with her primary care physician. (Tr. 562).
On November 5, 2010, Rosenbauer attended an appointment with Huber. (Tr.
605-07). Huber noted that Rosenbauer was not testing her blood sugar regularly and had not
requested to have labs performed for a significant amount of time. (Id.). During the visit,
16
Rosenbauer complained of pain in the ball of her left foot that had been ongoing for the previous
three months. (Id.). In addition, Rosenbauer reported that she continued to have issues falling
and staying asleep at night and was frequently tired during the day. (Id.). Upon examination,
Huber noted a painful callous under the ball of Rosenbauer’s left foot. (Id.). Huber prescribed
Trazadone and Naproxen to assist Rosenbauer with her sleep management and referred her to a
sleep specialist. (Id.). Huber referred Rosenbauer to a podiatrist to treat her callous and gave her
ten tablets of Tylenol with Codeine to manage her pain until she met with the podiatrist. (Id.).
Huber noted that Rosenbauer was overdue for an ophthalmology appointment, as well as a lipid
profile. (Id.).
On November 23, 2010, Rosenbauer presented to the emergency department at
Strong complaining of ongoing pain in her left foot. (Tr. 563-64). Rosenbauer reported that she
had an appointment with a podiatrist scheduled in three weeks. (Id.). Upon examination, a
plantar wart was observed on Rosenbauer’s left foot that was only painful with pressure. (Id.).
Rosenbauer was advised to call her podiatrist and attempt to get an earlier appointment. (Id.).
She was given a prescription for Percocet and advised to alternate between Percocet and Tylenol
to manage her pain. (Id.).
On December 3, 2010, Rosenbauer returned to Huber to follow-up on her left foot
pain. (Tr. 608-09). Rosenbauer reported that the callous on her left foot limited her mobility and
that she had to take pain medication in order to complete her housework. (Id.). Rosenbauer was
taking Naproxen and Percocet to manage her pain and had scheduled a February 1, 2011
appointment with a podiatrist. (Id.). Rosenbauer requested a prescription for more pain killers
until her podiatrist appointment. (Id.). Huber advised Rosenbauer to soak and exfoliate her foot
daily and to continue taking Naproxen. (Id.). In addition, Huber prescribed Tylenol. (Id.).
17
Rosenbauer also reported that she had ceased taking Trazadone for her insomnia and that she
was doing well on melatonin. (Id.).
Rosenbauer returned for a visit with Huber on January 7, 2011. (Id.). Rosenbauer
complained that the Tylenol did not provide relief for her foot pain and requested a prescription
for Percocet. (Id.). According to Rosenbauer, she had received a prescription for Percocet from
the emergency department when she originally sought evaluation of her left foot pain and it had
alleviated her pain. (Id.). Huber gave Rosenbauer a prescription for Percocet. (Id.). With
respect to Rosenbauer’s diabetes, Huber noted that Rosenbauer had not yet gone for lab work
and wrote her another lab slip. (Id.). Rosenbauer reported that she would undergo a sleep study
on February 1, 2011. (Id.).
On February 1, 2011, Rosenbauer met with a podiatrist, Robert Peel (“Peel”),
D.P.M., for an evaluation of her left foot. (Tr. 556-58). Peel assessed a low-grade ulceration and
an abscess plantar aspect on the left foot. (Id.). Peel debrieded and de-roofed the wounded area
and applied a dressing which he advised Rosenbauer to change daily. (Id.).
On February 10, 2011, Rosenbauer went to the emergency room complaining of
back pain. (Tr. 565). According to Rosenbauer, she has a history of back pain and her current
pain started when she attempted to lift her fifty-pound child. (Id.). Rosenbauer requested pain
medication, a referral to a back specialist and a doctor’s note to excuse her from her volunteer
work. (Id.). An x-ray of Rosenbauer’s spine revealed loss of lumbar lordosis related to a spasm
or a strain, but no bony abnormality. (Tr. 566). Rosenbauer was given Flexeril, Vicodin and
ibuprofen which alleviated her pain. (Id.). She was instructed not to lift anything heavier than
ten pounds for the next week. (Id.). Rosenbauer was given a note to excuse her from her
18
volunteer work until February 16, 2011. (Id.). Rosenbauer was prescribed Percocet, ibuprofen
and Flexeril. (Id.).
On June 16, 2011, Rosenbauer returned to the emergency room complaining of
left ankle pain. (Tr. 567). Rosenbauer reported that her dog had stepped on her ankle and that
she could not bear weight on her left foot. (Id.). Rosenbauer was advised to rest, ice, compress
and elevate her ankle and to follow-up with her primary care physician. (Tr. 570). She was
prescribed Naproxen and Percocet for her pain. (Id.).
On June 21, 2011, Rosenbauer attended an appointment with Huber. (Tr.
613-15). Huber’s treatment notes indicate that Rosenbauer had missed several clinic visits.
(Id.). Rosenbauer reported that she had not been taking Metformin for her diabetes for the past
two months, but was continuing to take Lantus daily. (Id.). Rosenbauer reported that she had
also stopped taking Lisinopril for the previous two months. (Id.). In addition, Rosenbauer had
stopped taking Fluoxetine to manage her depression during the previous six months. (Id.).
Rosenbauer reported that despite discontinuing her medication, her mood had improved, which
she attributed to sleeping better. (Id.). According to Rosenbauer, she was using a CPAP
machine and melatonin and had improved sleep. (Id.). In addition, Rosenbauer reported that she
was learning how to ride a motorcycle. (Id.). Rosenbauer reported that she had had the callous
removed from her left foot and it was no longer causing any problems. (Id.).
On August 11, 2011, Rosenbauer went to the emergency department at Strong
complaining of chest and back pain. (Tr. 618). She was admitted to undergo a cardiac
assessment. (Tr. 649). Rosenbauer returned to the emergency room the following day
complaining of continued back pain. (Id.). Rosenbauer was discharged on August 13, 2011 with
prescriptions for Naproxen and Oxycodone to manage her pain through the weekend. (Tr. 646).
19
She was advised to make an appointment with her primary care physician if her pain continued.
(Tr. 642).
Rosenbauer met with Elizabeth Cherella (“Cherella”), M.D., at Culver Medical on
August 19, 2011 complaining of upper back pain. (Tr. 649-51). Upon examination, Cherella
noted that Rosenbauer had full range of motion for flexion and extension in her back, but that
any twisting motion was limited by pain. (Tr. 650). Cherella recommended that Rosenbauer
continue taking Naproxen, Flexeril and Percocet to manage her pain, that she begin taking
Neurontin for her chronic lower back pain and that she attend physical therapy. (Id.).
Rosenbauer declined physical therapy due to “home stressors,” including her six children and her
ailing husband. (Id.).
IV.
Proceedings before the ALJ
At the administrative hearing, Rosenbauer testified that she completed school
through the eighth grade and had tried to obtain her GED, but could not because she had
difficulty getting out of the house. (Tr. 50). According to Rosenbauer, she is five feet, five
inches and weighs approximately 194 pounds. (Id.). She testified that she lives with her
husband and six children, ages 17, 15, 13, 10, 6 and 4. (Tr. 51).
Rosenbauer testified that she has not worked since 1999, when she was employed
as a cashier at a gas station. (Tr. 55). Rosenbauer previously worked at a daycare as a bus aide.
(Id.). According to Rosenbauer, she worked in that position for approximately five months, but
left her job because it required her to lift and bend to pick up children. (Tr. 55-56). Rosenbauer
testified she also previously worked in a factory. (Id.).
20
Rosenbauer testified that she suffers from diabetes and experiences rapid blood
sugar fluctuations. (Tr. 51). According to Rosenbauer, when her sugar is very low she is
“shaky” and when her sugar is high she is very tired. (Tr. 51-52). Rosenbauer testified that she
has difficulty maintaining a healthy diet because of her six children and that her husband assists
her in remembering to take her medications. (Id.). Rosenbauer indicated that her diabetes also
causes foot pain and numbness in her hands, fingers and toes. (Tr. 53). She also has vision
problems and possible kidney damage related to her diabetes. (Id.). Rosenbauer also
experienced a callous on her left foot. (Tr. 54).
In addition to diabetes, Rosenbauer testified that she also suffers from chronic
back pain. (Id.). According to Rosenbauer, she fell when she was fourteen and has experienced
back pain ever since that time. (Id.). Rosenbauer testified that when she was twenty-four, she
underwent an MRI that indicated that she had “two herniated, slipped discs” in her lower back.
(Id.). According to Rosenbauer, her doctors have provided treatment in the form of pain regimen
and have suggested physical therapy to control her back problem. (Id.). Rosenbauer testified
that her back pain makes it difficult to complete household chores and requires her to sit or
complete tasks in “spurts.” (Tr. 55). In addition, her back pain interrupts her sleep and limits her
ability to go on long car rides. (Id.).
According to Rosenbauer, she also has been diagnosed with sleep apnea and uses
a CPAP machine every night. (Tr. 58). Rosenbauer testified that the CPAP machine has not
improved her sleep and that she only sleeps for approximately three hours each night. (Id.). Her
inability to sleep, according to Rosenbauer, causes her to take naps during the day and to feel
drained and without energy. (Id.).
21
During a typical day, Rosenbauer testified that she cares for her children and gets
them prepared to attend school. (Tr. 56). She drives her two youngest children to school and
picks them up later in the day. (Id.). Although Rosenbauer attempts to perform smaller chores
around the house, she testified that her older children assist with the dishes, laundry and taking
out the garbage. (Id.). According to Rosenbauer, she is able to lift approximately five pounds
and can stand for approximately ten minutes and sit for approximately twenty minutes before
needing to take a break. (Tr. 57). Rosenbauer testified that she has difficulty climbing stairs.
(Tr. 59). In addition, she testified that when her back pain is acute, she uses a cane to assist with
mobility. (Tr. 57).
Rosenbauer testified that she is currently taking Metformin and Lantus to control
her diabetes. (Id.). She also takes Prozac, Oxycodone, Naproxen and Cylobenzafine. (Id.).
According to Rosenbauer, she experiences approximately ten to fifteen migraines per month.
(Tr. 57-58). She is currently taking Toradol to treat her migraines. (Id.). Rosenbauer testified
that her medications help to alleviate some of her pain and allow her to wash more dishes or to
complete the household vacuuming. (Tr. 59). According to Rosenbauer, her pain returns when
the medications wear off. (Id.).
Rosenbauer testified that she also suffers from depression. (Tr. 60). According to
Rosenbauer, she is taking Prozac to address her depression, but it causes anxiety in the evening.
(Tr. 59-60). Rosenbauer testified that she is on a waiting list to receive individual therapy at
Unity Health Systems to address her depression. (Id.). According to Rosenbauer, her depression
has gotten worse and makes it difficult to complete certain daily activities. (Id.).
A vocational expert, James Newman (“Newman”), also testified during the
hearing. (Tr. 60-65). The ALJ first asked Newman to characterize Rosenbauer’s previous
22
employment. (Tr. 60). According to Newman, Rosenbauer had previously been employed as a
cashier and a daycare worker. (Tr. 60-61).
The ALJ then asked Newman whether a person of the same age as Rosenbauer,
with the same education and vocational profile, who was able to complete simple, routine tasks
without production rate or pace work at a light exertional level, but needed a sit/stand option and
could not climb stairs would be able to perform any of the work that Rosenbauer previously
performed. (Tr. 61). Newman opined that such an individual would be unable to perform the
previously-identified positions, but would be able to perform the positions of office helper, table
worker and conveyor worker. (Tr. 61-62).
The ALJ then asked Newman whether a person of the same age as Rosenbauer,
with the same education and vocational profile, who was able to complete simple, routine tasks
without production rate or pace work in a low stress environment with occasional
decision-making at a sedentary exertional level, but needed a sit/stand option and could not
climb stairs would be able to perform any of the work that Rosenbauer previously performed.
(Tr. 62). Newman opined that such an individual would be unable to perform the
previously-identified positions. (Id.). Newman testified that such an individual could perform
other jobs available in the local and national economy, including table worker, DOT number
739.687-182 with 62,000 positions in the national economy and 1,100 positions in New York
State; stuffer, DOT number 731.685-014, with 80,000 positions in the national economy and
1,400 in New York State; and patcher, DOT number 723.687-010, with 35,000 positions in the
national economy and 900 in New York State. (Tr. 62-63). Newman also testified that these
jobs would not be available to the same individual if that individual was off task approximately
fifteen percent of the time. (Tr. 64).
23
DISCUSSION
I.
Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s
determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent
24
they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled for the purposes of SSI and disability benefits if they are
unable “to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§§ 423(d)(1)(A) & 1382c(a)(3)(A). When assessing whether a claimant is disabled, the ALJ
must employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982) (per curiam). The five-steps are:
(1)
whether the claimant is currently engaged in substantial
gainful activity;
(2)
if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;
(3)
if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;
(4)
if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity to
perform his past work; and
(5)
if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
25
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
A.
The ALJ’s Decision
In her decision, the ALJ followed the required five-step analysis for evaluating
disability claims. (Tr. 16-27). Under step one of the process, the ALJ found that Rosenbauer
had not engaged in substantial gainful activity since May 19, 2010, the application date. (Tr.
21). At step two, the ALJ concluded that Rosenbauer has the severe impairments of insulin
dependent diabetes mellitus, degenerative spondylosis at T11-12, L4-5 and L5-S1, chronic
migraine headaches, obstructive sleep apnea, depression, bipolar II disorder, and panic disorder
without agoraphobia. (Id.). With respect to Rosenbauer’s mental impairments, the ALJ found
that Rosenbauer suffered from moderate difficulties in maintaining concentration, persistence or
pace and social functioning and mild difficulties in performing activities of daily living. (Id.).
At step three, the ALJ determined that Rosenbauer does not have an impairment (or combination
of impairments) that meets or medically equals one of the listed impairments. (Tr. 21-22). The
ALJ concluded that Rosenbauer had the RFC to perform sedentary work except that she needs
the option to sit or stand at will; cannot climb stairs or perform production rate or pace work; is
limited to simple, routine tasks; and, requires a low stress work environment with only
occasional decision-making. (Tr. 23). At step four, the ALJ determined that Rosenbauer was
unable to perform former work as a cashier or daycare worker. (Tr. 25). Finally, at step five, the
ALJ concluded that Rosenbauer could perform other jobs that existed in the local and national
economy, including table worker, stuffer and patcher. (Tr. 26). Accordingly, the ALJ found that
Rosenbauer is not disabled. (Id.).
26
B.
Rosenbauer’s Contentions
Rosenbauer contends that the ALJ’s determination that she is not disabled is not
supported by substantial evidence. (Docket # 18-1). First, Rosenbauer contends that the ALJ’s
physical RFC assessment is not based upon substantial evidence because it relied upon the
findings of Eurenius, whose opinion is too vague and conclusory to support the ALJ’s findings.
(Id. at 11-13). Next, Rosenbauer contends that the ALJ’s assessment of her mental capabilities
was flawed for two reasons. First, she maintains that the ALJ improperly failed to apply the
special technique required for evaluating mental impairments. (Id. at 14-15). Next, Rosenbauer
argues that the ALJ’s RFC assessment was not supported by substantial evidence because she
improperly rejected Harding’s opinion and thus failed to account for the limitations identified by
Harding. (Id. at 15-17). Finally, Rosenbauer maintains that the ALJ’s determination at step five
is not supported by substantial evidence because the ALJ misstated the vocational expert’s
testimony concerning the number of patcher positions available in the local economy and
because the vocational expert’s testimony does not otherwise provide substantial evidence to
support the ALJ’s conclusion. (Id. at 9-11, 17-18).
II.
Analysis
A.
ALJ’s RFC Assessments
An individual’s RFC is his “maximum remaining ability to do sustained work
activities in an ordinary work setting on a continuing basis.” Melville v. Apfel, 198 F.3d 45, 52
(2d Cir.1999) (quoting SSR 96–8p, 1996 WL 374184, *2 (July 2, 1996)). When making an RFC
assessment, the ALJ should consider “a claimant’s physical abilities, mental abilities,
symptomology, including pain and other limitations which could interfere with work activities
27
on a regular and continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221 (N.D.N.Y. 2009)
(citing 20 C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider all the relevant
evidence, including medical opinions and facts, physical and mental abilities, non-severe
impairments, and [p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue, 2009 WL
1940539, *9 (N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 380 F. App’x 231 (2d
Cir. 2010).
1.
Physical RFC Assessment
Rosenbauer challenges the ALJ’s physical RFC determination on the grounds that
it relied upon the consultative opinion rendered by Eurenius. (Docket # 18-1 at 11-13).
According to Rosenbauer, Eurenius’s use of the phrase “moderately” to describe Rosenbauer’s
limitations was too vague to permit the ALJ to formulate her RFC assessment. (Id.).
“An expert’s opinion can be deemed ‘not substantial’ when the expert describes
the claimant’s impairments in terms which are ‘so vague as to render it useless in evaluating’
[p]laintiff’s RFC.” Mancuso v. Colvin, 2013 WL 3324006, *3 (W.D.N.Y. 2013) (quoting
Burgess v. Astrue, 537 F.3d 117, 128-29 (2d Cir. 2008)). In other words, an expert’s opinion that
uses vague phrases may not constitute substantial evidence to support an RFC determination
when it is “accompanied by no additional information, [and thus] prevent[s] the ALJ, as a
layperson, from being able to make the necessary inference whether [p]laintiff can perform the
particular requirements of a specified type of work.” See id. Contrary to Rosenbauer’s
contentions, the use of phrases such as “moderate” or “mild” by a consultative examiner does not
automatically render the opinion impermissibly vague. See Dier v. Colvin, 2014 WL 2931400,
*4 (W.D.N.Y. 2014) (“while the treating physician and consultative examiner used terms like
“mild” and “moderate[,]” this does not automatically render their opinions void for vagueness”);
28
Tudor v. Comm’r of Soc. Sec., 2013 WL 4500754, *12 (E.D.N.Y. 2013) (“[c]ontrary to
plaintiff’s contentions, the ‘mere use of the phrase ‘moderate limitations’ does not render [a
doctor’s] opinion vague or non-substantial for purposes of the ALJ’s RFC determination’”)
(quoting Mancuso v. Colvin, 2013 WL 3324006 at *4). Instead, when “those opinions are based
on clinical findings and an examination of the claimant, the conclusion can serve as an adequate
basis for the ALJ’s ultimate conclusion.” Dier v. Colvin, 2014 WL 2931400 at *4 (internal
quotations omitted).
Eurenius’s opinion that Rosenbauer was “moderately limited” in her ability to sit
for prolonged periods, climb or descend stairs, bend, lift, kneel or carry more than ten pounds
was based upon his review of x-rays of Rosenbauer’s spine, as well as his interview and physical
examination of Rosenbauer. (Tr. 536-41). During the examination, Eurenius noted that
Rosenbauer was able to walk on her heels and toes, squat halfway, had a normal gait and stance,
had full flexion, extension, lateral flexion and full rotary movement in her cervical spine and had
some flexion limitations in her lumbar spine. Accordingly, Eurenius’s opinion concerning
Rosenbauer’s “moderate” limitations was based upon medical examination, evaluation and
observation, and the ALJ thus properly relied upon Eurenius’s opinion to support her RFC
assessment. See Dier, 2014 WL 2931400 at *4 (“when, as here, [the doctor’s opinions] are
based on clinical findings and an examination of the claimant, the conclusion can serve as an
adequate basis for the ALJ’s ultimate conclusions) (internal quotation omitted); Tudor v.
Comm’r of Soc. Sec., 2013 WL 4500754 at *12 (“[because the doctor’s] opinion was supported
by ‘additional information,’ i.e., objective medical findings, her opinion is not vague and
provided an adequate basis for the ALJ to infer that plaintiff is capable of performing the
exertional requirements of sedentary work”); Mancuso, 2013 WL 3324006 at *4 (“[a]s the
29
challenged sentence of [the doctor’s] report is based on the aforementioned observations, which
were made pursuant to valid medical tests, . . . [the doctor’s] opinion constitutes valid,
substantial medical evidence which the ALJ properly utilized when determining [p]laintiff’s
mental RFC[;] [t]herefore, the ALJ’s . . . RFC determination was supported by substantial
evidence”). Accordingly, I conclude that the ALJ’s physical RFC determination is supported by
substantial evidence.
2.
Mental RFC Assessment
I turn next to Rosenbauer’s contention that the ALJ’s mental RFC assessment was
flawed because the ALJ improperly rejected the opinion of Harding, the non-examining state
consultative psychiatrist, and because the ALJ failed to apply the “special technique” at steps
two and three. (Docket # 18-1 at 14-17).
Rosenbauer contends the ALJ improperly rejected Harding’s medical opinion and
in doing so failed to discuss moderate limitations identified by Harding. Specifically,
Rosenbauer contends that the ALJ failed to account for her moderate limitations in her ability to
accept instructions and respond appropriately to criticism from supervisors, maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness.
An ALJ should consider “all medical opinions received regarding the claimant.”
See Spielberg v. Barnhart, 367 F. Supp. 2d 276, 281 (E.D.N.Y. 2005) (citing 20 C.F.R.
§ 404.1527(d)). When evaluating medical opinions, regardless of their source, the ALJ should
consider the following factors:
(1) the frequency of examination and length, nature, and extent of
the treatment relationship,
(2) the evidence in support of the physician’s opinion,
(3) the consistency of the opinion with the record as a whole,
30
(4) whether the opinion is from a specialist, and
(5) whatever other factors tend to support or contradict the
opinion.
Gunter v. Comm’r of Soc. Sec., 361 F. App’x 197, 199 (2d Cir. 2010); see Spielberg v. Barnhart,
367 F. Supp. 2d at 281 (“factors are also to be considered with regard to non-treating sources,
state agency consultants, and medical experts”) (citing 20 C.F.R. §§ 404.1527(d) and (e)); House
v. Astrue, 2013 WL 422058, *2 (N.D.N.Y. 2013) (“[m]edical opinions, regardless of the source
are evaluated considering several factors outlined in 20 C.F.R. §§ 404.1527(c), 416.927(c)”).
Under the regulations, Harding is an acceptable medical source, and the opinion
should have been considered by the ALJ. 20 C.F.R. § 404.1513. Accordingly, I agree with
Rosenbauer that the ALJ erred by rejecting Harding’s opinion on the grounds that the consultant
was not an acceptable medical source. I conclude, however, that the ALJ’s error was harmless
because Harding’s opinion is consistent with the ALJ’s RFC assessment. See Amberg v. Astrue,
2010 WL 2595218, *4 (N.D.N.Y.) (“although the ALJ’s stated reason for discounting the
[doctor’s] opinions may not have been supported by the record, any error in this regard was
harmless because the ALJ’s RFC finding is consistent with [the] opinions”) (citing Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“where application of the correct legal principles to
the record could lead to only one conclusion, there is no need to require agency
reconsideration”)), report and recommendation adopted, 2010 WL 2595130 (N.D.N.Y. 2010).
As discussed above, Harding opined that Rosenbauer was moderately limited in
her ability to accept instructions and respond appropriately to criticism from supervisors,
maintain socially appropriate behavior, adhere to basic standards of neatness and cleanliness,
respond appropriately to changes in the work setting and travel to unfamiliar places. (Tr. 67).
31
After assessing those moderate limitations, Harding opined that Rosenbauer could “perform
basic demands of competitive, remunerative unskilled work on a sustained basis.” (Tr. 68). The
ALJ determined that Rosenbauer could perform simple, routine tasks without production rate or
pace work in a low stress work environment with only occasional decision-making. Although
the ALJ may not have discussed each of the moderate limitations identified by Harding, her RFC
assessment accounted for those limitations and was entirely consistent with Harding’s opinion
that Rosenbauer could perform unskilled work without any other limitations. Accordingly, I
conclude that the ALJ properly evaluated and incorporated into her RFC assessment the
limitations identified in Harding’s opinion, even if she did not explicitly discuss each limitation.
See Retana v. Astrue, 2012 WL 1079229, *6 (D. Colo. 2012) (ALJ was not required to discuss
thoroughly each moderate limitation; “ALJ’s RFC adopted some of [doctor’s] moderate
limitations such as restricting plaintiff to unskilled work not involving complex tasks, reflecting
plaintiff’s moderate limitations in his ability to carry out detailed instructions and to maintain
concentration for extended periods”). Indeed, if anything, the ALJ’s RFC assessment assumed
greater limitations on Rosenbauer’s ability to work than Harding’s opinion. 4 Accordingly, I
conclude that although the ALJ erred in rejecting Harding’s opinion, such error was harmless
because consideration of Harding’s opinion would not have altered the ALJ’s RFC assessment.
The Court finds no merit in Rosenbauer’s argument that the ALJ erred by failing
to apply the “special technique” applicable to mental impairments. (Docket # 18-1 at 14-15).
An ALJ’s evaluation of a claimant’s mental impairments must reflect her application of the
“special technique” set out in 20 C.F.R. § 404.1520a, which requires consideration of “four
broad functional areas . . . : [a]ctivities of daily living; social functioning; concentration,
4
Harding opined that Rosenbauer could perform remunerative unskilled work, which is consistent with the
ALJ’s RFC that limited Rosenbauer to simple, routine tasks. The ALJ imposed further limitations, including
requiring a low stress work environment, only occasional decision-making and no production rate or pace work.
32
persistence, or pace; and episodes of decompensation.” 20 C.F.R. § 404.1520a(c)(3). The first
three areas are rated on a five-point scale – “[n]one, mild, moderate, marked, and extreme.” Id.
at § 404.1520a(c)(4). “[I]f the degree of limitation in each of the first three areas is rated ‘mild’
or better, and no episodes of decompensation are identified, then the [ALJ] generally will
conclude that the claimant’s mental impairment is not ‘severe.’” Kohler v. Astrue, 546 F.3d 260,
266 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1520a(d)(1)).
Here, the ALJ concluded that Rosenbauer suffered from mild restrictions in
activities of daily living and moderate difficulties in maintaining social functioning and
concentration, persistence or pace. 5 (Tr. 21). In addition, the ALJ concluded that Rosenbauer
had not suffered from any episodes of decompensation. (Id.). In support of this conclusion, the
ALJ reasoned that Rosenbauer was able to care for herself and her six children, maintain a
relationship with her husband and successfully manage her household. (Tr. 22). Although the
ALJ could have explained her reasoning more thoroughly when evaluating Rosenbauer’s
abilities in each of the areas, I conclude that the ALJ adequately applied the special technique
when she concluded that Rosenbauer’s depression, bipolar II disorder and panic disorder were
“severe” but did not meet any of the listings applicable to mental disorders. Cf. Arguinzoni v.
Astrue, 2009 WL 1765252, *9 (W.D.N.Y. 2009) (ALJ’s failure to apply special technique did
not require remand; “[w]hile [the ALJ] failed to document specific findings as to the degree of
limitation in each functional area, the ALJ still ultimately highlighted his findings and concluded
a sufficient analysis to permit adequate review on appeal in this case”).
5
Rosenbauer argues that the ALJ failed to cite and thus likely overlooked Harding’s Psychiatric Review
Technique located at Exhibit 17F of the record. (Docket # 18-1 at 17). Even assuming Rosenbauer is correct, any
such error by the ALJ was harmless because her application of the “special technique” resulted in an evaluation
substantially identical to Harding’s. (Compare Tr. 21 with Tr. 552).
33
B.
ALJ’s Step Five Determination
Finally, I turn to Rosenbauer’s challenges to the ALJ’s step five determination.
(Docket # 18-1 at 9-11, 17-18). Rosenbauer contends that remand is warranted because the ALJ
misstated the vocational expert’s testimony. Specifically, Rosenbauer contends that the ALJ
stated that there were 2,900 jobs patcher jobs available in the local economy, but that Newman
testified that there were only 900 patcher jobs available in the local economy. Although
Rosenbauer is correct that the ALJ misstated the number of patcher jobs identified by Newman, I
conclude that her misstatement was harmless. Campbell v. Comm’r of Soc. Sec., 2002 WL
31107503, *5 n.5 (E.D. Mich. 2002) (“[t]he ALJ’s misstatement of the number of suitable jobs is
inconsequential”). Newman testified that Rosenbauer could perform three different jobs with a
combined total of 3,400 jobs in New York. (Tr. 62-63). That number is sufficiently large to
satisfy the Commissioner’s burden at step five. See Gurule v. Astrue, 2012 WL 1609691, *4
(D. Vt. 2012) (“[c]ourts have refused to draw a bright line standard for the minimum number of
jobs required to show that work exists in significant numbers, and have generally held that what
constitutes a significant number of jobs is a relatively low threshold number”) (internal quotation
omitted) (collecting cases).
Finally, Rosenbauer contends that the ALJ erred in relying on the vocational
expert because the hypothetical posed to the expert was based upon a flawed RFC assessment.
(Docket # 18-1 at 18). Having determined that substantial evidence supports the ALJ’s RFC
determination, this argument is rejected. See Wavercak v. Astrue, 420 F. App’x 91, 95 (2d Cir.
2011) (“[b]ecause we have already concluded that substantial record evidence supports the RFC
finding, we necessarily reject [plaintiff’s] vocational expert challenge”).
34
CONCLUSION
This Court finds that the Commissioner’s denial of DIB was based on substantial
evidence and was not erroneous as a matter of law. Accordingly, the ALJ’s decision is affirmed.
For the reasons stated above, the Commissioner’s motion for judgment on the pleadings (Docket
# 10) is GRANTED. Rosenbauer’s motion for judgment on the pleadings (Docket # 18) is
DENIED, and Rosenbauer’s complaint (Docket # 1) is dismissed with prejudice.
IT IS SO ORDERED.
s/Marian W. Payson
____________________________________
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
August 22, 2014
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