Crysler v. Astrue, 5:05-CV-1132 (LEK/DEP).

• Decision Date: 27 June 2008
• Docket Number: No. 5:05-CV-1132 (LEK/DEP).,5:05-CV-1132 (LEK/DEP).
• Citation: 563 F.Supp.2d 418
• Parties: Lynn A. CRYSLER, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of New York

563 F.Supp.2d 418

Lynn A. CRYSLER, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 5:05-CV-1132 (LEK/DEP).

United States District Court, N.D. New York.

June 27, 2008.

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Olinsky, Shurtliff Law Firm, Jaya A. Shurtliff, Esq., of counsel, Syracuse, NY, for plaintiff.

Glenn T. Suddaby, United States Attorney for the Northern District of New York, William H. Pease, Esq., Assistant U.S. Attorney, of counsel, Syracuse, NY, for defendant.

DECISION AND ORDER

LAWRENCE E. KAHN, District Judge.

This matter comes before the Court following a Report-Recommendation filed on May 1, 2008, by the Honorable David E. Peebles, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Report-Rec. (Dkt. No. 10).

Within ten days, excluding weekends and holidays, after a party has been served with a copy of a Magistrate Judge's Report-Recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations," FED.R.CIVP. 72(b), in compliance with L.R. 72.1. No objections have been raised in the allotted time with respect to Judge Peebles's Report-Recommendation. Furthermore, after examining the record, the Court has determined that the Report-Recommendation is not subject to attack for plain error or manifest injustice.

Accordingly, it is hereby

ORDERED, that the Report-Recommendation (Dkt. No. 10) is APPROVED and ADOPTED in its ENTIRETY; and it is further

ORDERED, that the decision denying disability benefits is VACATED and this matter REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g)¹ for further proceedings consistent with the above; and it is further

ORDERED, that the Clerk serve a copy of this Order on all parties.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, United States Magistrate Judge.

LYNN A. CRYSLER, Plaintiff,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security,¹ Defendant.

Plaintiff Lynn A. Crysler, who suffers from various diagnosed conditions including fibromyalgia, chronic pain, fatigue, back pain, headaches, and depression, has commenced this proceeding seeking judicial review of the denial of her applications for disability insurance and supplemental security income ("SSI") benefits under the Social Security Act, based upon an administrative determination that she was not disabled at the relevant times. Plaintiff maintains that in finding no disability, the administrative law judge ("ALJ") assigned by the agency to hear and decide the matter erred in a number of significant ways, including by 1) failing to properly advise her of the right to legal representation and to ensure she had received adequate written notice of that right; 2) failing to meet his duty to develop the record, particularly in light of plaintiffs pro se status; 3) failing to accord proper deference to opinions of her treating physicians; 4) failing, when determining plaintiffs residual functional capacity ("RFC"), to discuss her limitations on a function-by-function basis; 5) relying upon the medical-vocational guidelines (the "grid") set forth in the regulations, 20 C.F.R. Pt. 404, Subpt. P. App. 2, to direct a finding of no disability; and 6) improperly rejecting, as not fully credible, plaintiffs complaints of disabling pain without proper explanation or support.

Having carefully reviewed the record now before the court, I find that the ALJ shirked his obligation to properly develop the record concerning plaintiffs RFC by failing to seek additional information from her treating physicians, and additionally erred in a number of significant other ways in analyzing the available evidence regarding plaintiffs condition and its effect upon her ability to perform work-related activities. I am therefore unable to conclude that the Commissioner's determination resulted from the application of proper legal principles and is supported by substantial evidence, and accordingly, recommend that the determination be reversed and the matter remanded to the agency for further proceedings.

I. BACKGROUND

The plaintiff was born in 1971; at the time of issuance of the ALJ's determination in this matter, she was thirty-three years old. Administrative Transcript at 40, 86.² At the times relevant to her claim for benefits, plaintiff lived with her parents and brother in a mobile home located in Marietta, New York. AT 39-40, 88. Plaintiff is a high school graduate, and additionally has undergone some Board of Cooperative Educational Services ("BOCES") training in the field of floral design. AT 40-41, 106.

Plaintiff has not worked since in or about January of 2003.³ AT 42, 101, 108. Plaintiffs past employment experiences have included working as a floral designer, a temporary office employee, and a sales associate. AT 45-18,101. Plaintiff testified that she supports herself using the proceeds of a settlement in a workers' compensation case involving her last employer, as well as through financial support received from parents. AT 42-44.

Plaintiffs medical difficulties began on November 1, 2002, when she was admitted to Community General Hospital with complaints of right side abdominal pain. AT 164-70. After ruling out other possible causes of her symptomology, including appendicitis and gynecologic origins, treating doctors at the hospital included that the plaintiff most likely suffered from polyserositis. AT 165-66. After being treated with steroids to address that possibility, plaintiff reported feeling better and was discharged from the hospital on November 6, 2002.⁴ Id.

Following her hospital visit plaintiff pursued further treatment with Dr. Andrew Merritt and a Nurse Practitioner ("NP") working in his office, Nancy Hudson. AT 242-44. Plaintiff was referred by Dr. Merritt on January 6, 2003 to Dr. Saad G. Sobhy for evaluation and pain management. AT 178-80. Following an examination, Dr. Sobhy diagnosed the plaintiff as suffering from myofascial pain syndrome, for which he recommended exercise and possible trigger point injections.⁵ AT 180.

On April 21, 2003 plaintiff was referred by Dr. Merritt to Dr. Lome A. Runge, a rheumotoligist, for further analysis of her complaints of pain and muscle spasms. AT 200-01. Based upon his examination of the plaintiff, Dr. Runge discerned the existence of moderately severe soft tissue tenderness in the trapezius muscles, paraspinal muscles of the cervical, upper thoracic, and lumbar spines, deltoids, lateral humeral epicondyles, and anserine bursae of the knees, but without swelling of any joints. AT 201. Dr. Runge diagnosed plaintiff as suffering from fibromyalgia, and advised her to begin a graduated exercise program starting with ten minutes of activity in the morning and then later in the days.⁶ Id.

A follow-up examination of the plaintiff was conducted by Dr. Runge on May 20, 2003. AT 199. While noting, some ongoing tenderness on that occasion, Dr. Runge also reported that plaintiffs pain had improved with exercise and determined that she could resume her employment as a florist, noting that there was no reason why she was unable to work.⁷ Id.

Plaintiff continued to treat with Dr. Runge into 2004. See, e.g., AT 196, 182. Based upon an examination conducted on October 16, 2003, Dr. Runge determined that there had been a definite worsening of plaintiffs symptoms, accordingly, urging her to recommit to an exercise program, starting with five minutes for two weeks and gradually adding five minutes of light cardiovascular, walking, or biking, additionally prescribing Ibuprofen for pain. AT 196. A subsequent examination by Dr. Runge, conducted on February 20, 2004, revealed severe local tenderness about the trapezius muscles and deltoids, leading him to conclude that plaintiffs fibromyalgia was moderately symptomatic, and to recommend that she pace her activities in order to avoid marked increases in discomfort. AT 182.

Among the strategies utilized by the plaintiff to address her condition has been physical therapy, which she attended from November of 2003 until March, 2004. AT 204-13. It was reported that with physical therapy, plaintiffs condition approved and she was experiencing less pain and able to increase her activities at home. AT 204-11. Plaintiff at one time also reportedly attended aquatic physical therapy three times a week for eight weeks, in order to address her fibromyalga. AT 236-38.

In response to plaintiffs complaints of headaches,⁸ neck pain and shoulder pain, Dr. Merritt ordered that magnetic resonance imaging ("MPJ") testing be conducted of plaintiffs cervical spine. See AT 232. Results of that MRI testing revealed a small central disc protrusion at C6-7, but without significant compromise of the cervical cord, and with no significant spinal canal or foraminal compromise detected apart from the mild degenerative disc disease identified at the C6-7 level. Id.

MRI testing of plaintiffs thoracic and lumbar spine was later ordered by Dr. Merritt on March 24, 2004, based upon plaintiffs complaint of back pain and leg cramps. AT 227-29. While the results of the thoracic spine MRI were unremarkable, testing of the lumbar spine showed degenerative disc disease at the L4-5 level with desiccation of the nucleus pulposis, possible tiny tears of the annulus fibrosis at L3-4 and L4-5, with mild broad posterior prominence of degenerative material at L3-4, L4-5, and L5-S1, although without significant spinal stenosis or neural foraminal encroachment. AT 227-28.

Plaintiff was examined by Dr. Linda Warnowicz, who practices out of the same office as Dr. Runge, with the assistance of Nurse Practitioner Carol Stoianoff, on May 21, 2004. AT 282. Based upon the results of examination conducted on that date the diagnosis of fibromyalgia, described as stable with ongoing symptoms, was continued without medication changes, and plaintiff...