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Butler v. Astrue

United States District Court, N.D. New York

February 28, 2013

Linda BUTLER, Plaintiff,
v.
Michael J. ASTRUE, Commissioner, Social Security Administration, Defendant.

Page 467

Stephen J. Mastaitis, Jr., Office of Stephen J. Mastaitis, Jr., Saratoga Springs, NY, for Plaintiff.

Thomas C. Gray, Social Security Administration, New York, NY, for Defendant.

DECISION and ORDER

WILLIAM G. YOUNG, District Judge.[1]

I. INTRODUCTION

Linda Butler (" Butler" ) brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. ยง 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (the " Commissioner" ). Butler challenges the decision of the Administrative Law Judge (the " hearing officer" ) denying her application for Social Security Disability Insurance (" SSDI" ) benefits. Butler requests this Court grant her application for SSDI benefits or remand this case to the Commissioner for further proceedings. Form Compl. Appeal Decision Comm'r Soc. Sec.

Page 468

(" Compl." ) 1, ECF No. 1; Mem. Law Supp. Pl.'s Compl. & Mot. J. Pleadings (" Butler's Mem." ) 23, ECF No. 12. The Commissioner requests this Court affirm the hearing officer's decision and grant his motion for judgment on the pleadings. Def.'s Br. Pursuant Gen. Order No. 18 (" Comm'r's Mem." ) 1, 23, ECF No. 13.

A. Procedural Posture

On January 26, 2007, Butler filed a Title II application for SSDI benefits, alleging disability for a period beginning on March 4, 1991, and ending on December 31, 1996 (the " relevant period" ). Admin. R. at 13.[2] On June 10, 2009, the hearing officer granted Butler's request for a continuance so that she could obtain an attorney. Id. at 42-47. Butler, represented by counsel, testified in person at the hearing held on August 19, 2009. Id. at 21-41. On September 18, 2009, the hearing officer issued an unfavorable decision, finding that Butler was not disabled. Id. at 20. On October 23, 2009, Butler filed a timely request for review of the hearing officer's decision, id. at 8-9, and submitted additional evidence on January 11, 2011, and January 19, 2011, id. at 5, 175-78, 255. After considering the record and the new evidence provided, the Appeals Council denied Butler's request on March 4, 2011. Id. at 1-3. On April 21, 2011, Butler filed the present action with this Court to review the decision of the Commissioner. Compl. 1.

B. Factual Background

Butler was born in 1951. Admin. R. at 25. She graduated from high school and has completed a " couple of college courses." Id. Butler stopped working in March 1991 after she fell and suffered injuries to her back. Id. Prior to her injuries, Butler worked as a secretary/bookkeeper for approximately seven years, a dispatcher for about three years, a secretary/stenographer for five years, and a waitress for one year. Id. at 26, 127. Butler also bred, raised, and trained up to twelve dogs at a time. Id. at 27. She traveled extensively to dog shows, but her back pain eventually reduced her to sitting in the ring giving commands, while her husband performed all the physical work. Id. Butler stopped traveling to dog shows sometime around 1994 or 1995, id., and now she only trains one dog at a time, id. at 37; see id. at 141 (stating she can no longer train dogs). She also stated that she has two dogs as pets. Id. at 138. Butler is able to microwave meals, eat, read, watch television, use the computer, tend to the dogs when her husband is not home, and care for herself. Id. at 36, 138-39. Her husband, however, does the laundry, cleaning, and grocery shopping. Id. at 35, 138.

1. Physical Impairments

Butler has a history of numerous physical impairments, including lower back and neck pain, fibromyalgia, arthritis, colitis, headaches, and hypoglycemia. Id. at 126.

a. Evidence Through December 31, 1996, Considered by the Hearing Officer

Included in the medical records from March 4, 1991, through December 31, 1996, were three treatment letters from Fred P. Scialabba, M.D. (" Dr. Scialabba" ), id. at 184-89, MRI results, id. at 288, and a partial examination report performed by Neal S. Greenstein, M.D. (" Dr. Greenstein" ), id. at 252, 305-06.[3]

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According to the medical evidence, Butler suffered from severe pain in her lower back and right hip after falling on ice in February 1991. Id. at 187, 252. On May 14, 1991, Dr. Scialabba reported that Butler consistently described pain in her lower back, which radiated down her right leg. Id. at 184; see also id. at 186. Butler's MRI and CT scan revealed that she has a mildly bulging disc and foraminal stenosis at level L4-L5 but discounted a herniated disc. Id. at 184, 187, 288. Dr. Scialabba opined that the foraminal stenosis may be the cause of the compression of the L5 nerve but noted that Butler's description of her symptoms was more consistent with an S1 nerve root irritation. Id. at 184. Dr. Scialabba discontinued physical therapy because it did not seem to improve Butler's symptoms; rather, the twenty-minute car ride home seemed to aggravate her pain. Id.

On February, 7, 1996, Dr. Greenstein reported that Butler had " some diffuse painful tender points consistent with fibromyalgia." Id. at 306. [4] According to Dr. Greenstein, after the accident, Butler developed pain in her lower back, making it difficult for her to move. Id. She also subsequently developed pain in her upper back, shoulders, neck, right arm and hand, and occasionally her right knee. Id. She also suffered from constant headaches and fatigue and had difficulty sleeping. Id. Prolonged sitting caused some numbness in her right foot and thigh. Id. Dr. Greenstein reported that Butler's treatment consisted of medication, including Motrin and Hydrocodone, and physical therapy, which did not seem to improve her symptoms. Id. Butler also described suffering from colitis since 1975. [5] Id. at 37.

b. Evidence After Relevant Period Considered by the Hearing Officer

On January 14, 1997, fourteen days after the end of the relevant period, chiropractor Brad Elliott, D.C. (" Dr. Elliott" ) diagnosed Butler with a multi-level lumbar disc injury and moderate to severe secondary fibromyalgia syndrome. Id. at 253. Dr. Elliott's diagnosis was based on Butler's MRI, which showed lateral recess stenosis, and his own assessments during over one and a half years of treatment. Id. Dr. Elliott opined that Butler was able to stand for six hours, sit for two hours, and lift up to fifteen pounds, but required total rest the next day. Id.

Dr. Elliott reported that Butler's fibromyalgia consists of multiple tender points, general muscle weakness, stiffness, and fatigue, accompanied by severe sleep disturbances. Id. Butler's symptoms also include widespread muscular pain, headaches, irritable bowels, and radicular pain or numbness. Id. at 253-54. Dr. Elliott

Page 470

noted that, under the American College of Rheumatology's diagnostic criteria, fibromyalgia is a diagnosis of elimination. Id. at 254. In August 2009, Dr. Elliott opined that Butler had been totally disabled since he started treating her in April 1995. Id. at 249. He reiterated that Butler could not lift more than fifteen pounds, stand, sit, or walk for up to one hour at a time in an eight-hour work day and up to a total of two hours in an entire day. Id. at 250-51.

In March 2000, a CT scan performed of Butler's back confirmed earlier observations from the relevant period that she had a degenerative spur formation and lumbar lordosis at the L4-L5 level. Id. at 199. John R. Cetner, M.D. (" Dr. Cetner" ), Butler's treating physician since 1988, examined her in February 2005 and observed a mild degenerative spurring of her back in the lumbar area. Id. at 196. In May 2007, Dr. Cetner diagnosed Butler with lower back pain, fibromyalgia, headaches, and irritable bowel syndrome; Dr. Cetner opined that the diagnosis was permanent in nature and not likely to change. Id. at 207-08. Dr. Cetner confirmed that the back pain was diagnosed " decades" ago and that the fibromyalgia was diagnosed in 1996. Id. at 208. Dr. Cetner noted that despite Butler's subjective complaints of back pain and fatigue, there are " no objective findings of disability." Id. at 211. In Dr. Cetner's opinion, Butler had no limitations regarding her capacity to lift, carry, sit, stand, and walk. Id. at 211-12.

c. Consultative Examination

On August 6, 2007, consultative orthopedic physician Amelita Balagtas, M.D. (" Dr. Balagtas" ) examined Butler. Id. at 220-22; Comm'r's Mem. 3. Dr. Balagtas diagnosed Butler with fibromyalgia and osteoarthritis of the spine, shoulder, and hands. Admin. R. at 221-22. Dr. Balagtas reported that Butler had full flexion, extension, and rotary movements of the spine. Id. at 221. Dr. Balagtas also observed tenderness in the posterior paracervical muscles, suboccipital area, upper forearms, and at the anterior chest walls. Id. Her lumbar spine forward flexion was limited to thirty degrees and lateral flexion to twenty degrees in both directions. Id. The tender points in Butler's lumbar spine were localized in her lumbar paraspinals and gluteal muscles. Id. Dr. Balagtas opined that Butler had moderate limitations in activities that required bending, lifting, carrying, and prolonged standing and sitting. Id. at 222.

Disability examiner, W. Denny, saw Butler on September 10, 2007, for a functional capacity assessment. Id. at 224-29. The examiner observed that Butler suffered from diffuse pain throughout her whole body, lower back pain, fatigue, insomnia, headaches, and tenderness in local points, including the suboccipital area, forearms, lumbar paraspinals, gluteal muscles, and anterior chest wall. Id. at 225-26. These symptoms were caused in part by a mildly bulging disc and foraminal stenosis in her lumbar area; the symptoms were exacerbated by her fibromyalgia. Id. at 225. The examiner noted that Butler had the capacity occasionally to lift fifty pounds, frequently to lift twenty-five pounds, to alternate standing and walking for six hours in an eight-hour workday, and to sit for six hours in an eight-hour workday. Id. at 225.

d. Evidence Submitted to the Appeals Council

On January 19, 2011, Butler submitted new evidence to the Appeals Council. Id. at 255-308.[6] Among the evidence submitted

Page 471

were notes from Dr. Cetner from the period of November 18, 1988, through May 22, 2007. Id. at 256-76. The new evidence also included reports from Dr. Cetner, dated April through August 1991, to Butler's insurance company, stating that Butler has been disabled since March 1991 due to chronic lower back pain. Id. at 268-71. Although Dr. Cetner reported that Butler's chronic back pain " followed a fall back in January of 1991," id. at 256, his medical records show that Butler's complaints of lower back pain seem to have preceded her fall in 1991, see id. at 268 (recommending to take Motrin for discomfort at L4-L5 level in December 1988 and reporting lower back pain in February 1989). Nonetheless, Dr. Cetner's handwritten notes consistently describe Butler's pain in her lower back at the L4-L5 level and her limited movement during the relevant period. See, e.g., id. at 264 (reporting in March 1991 that Butler experienced pain in her lower back which gets " worst at sitting" ); id. at 263 (reporting in March 1992 that Butler could not stand or sit for more than ten to fifteen minutes, demonstrated frontal flexion of thirty degrees, and exhibited lateral bending of twenty degrees, with pain in lower back); id. (noting in November 1992 that Butler was " unable to sit for a length of time" ); id. at 262 (reporting in January 1993 chronic lumbar strain and pain in the lower back with limited frontal flexion to forty-five degrees and thirty degrees of lateral bending); id. at 261 (reporting lower back pain in June 1994); id. at 261-62 (describing in March 1995 that Butler's lateral bending limited to twenty degrees and frontal flexion of twenty degrees due to pain at bending); id. at 260 (treating pain at L-5 level in October 1996).

A CT scan from Butler's lumbar spine taken on March 5, 1991, showed a mild to moderate bulge ...


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