Boutsianis v. SSA CV-07-250-PB 04/01/08
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Vicki L . Boutsianis
v. Case N o . 07-cv-250-PB Opinion N o . 2008 DNH 065 Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Vicki Boutsianis moves to reverse the Social Security
Administration’s denial of her claim for Supplemental Security
Income (“SSI”) and Disability Insurance Benefits (“DIB”) under
Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 423
and 1382. Boutsianis applied for DIB and SSI on February 1 5 ,
2005, alleging disability since October 5 , 2004 as a result of
knee impairments, hip pain, multiple joint arthritis, heel spurs,
and depression. The Commissioner denied Boutsianis’s application
initially and on reconsideration. Administrative Law Judge
(“ALJ”) Matthew J. Gormley III held a hearing on August 1 1 , 2006,
and issued a decision in which he concluded that Boutsianis was
not disabled. The Appeals Council denied Boutsianis’s request
for review, and she appealed the ALJ decision to this court, pursuant to 42 U.S.C. § 405(g). For the reasons that follow, I
grant Boutsianis’s motion to reverse, deny the Commissioner’s
motion to affirm, and remand this case for further administrative
proceedings.
I. BACKGROUND1
A. Procedural History
Boutsianis applied for DIB and SSI on February 1 5 , 2005,
alleging an inability to work since October 5 , 2004, due to knee
impairments, hip pain, multiple joint arthritis, heel spurs, and
depression. T r . at 56-62. The Social Security Administration
(“SSA”) denied Boutsianis’s application on August 3 0 , 2005, and
Boutsianis requested an administrative hearing. T r . at 25-28;
33.
On August 1 1 , 2006, ALJ Gormley held a hearing at which
Boutsianis testified and was represented by counsel. T r . at 199-
215. On November 2 2 , 2005, the ALJ issued a written decision
finding that Boutsianis was not disabled within the meaning of
1 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts (Doc. N o . 10) submitted by the parties. Citations to the Administrative Transcript are indicated as “Tr.”
-2- the Act. T r . at 10-20. Pursuant to 20 C.F.R. §§ 404.1520 and
416.920(a), the ALJ used a five-step process to make this
finding, considering: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant has a
severe impairment; (3) whether the impairment meets or equals a
specific listing of impairment in the SSA regulations and meets
the duration requirement; (4) assessment of residual functioning
capacity (“RFC”) and whether the claimant can still do past
relevant work; and (5) assessment of claimant’s RFC, age,
education, and work experience, to see if claimant can make an
adjustment to other work.2 See 20 C.F.R. §§ 404.1520 and
416.920(a).
The ALJ concluded that Boutsianis had not engaged in
substantial gainful activity since October 5 , 2004, that
Boutsianis had the severe impairments of heel spurs, arthralgias,
and depression, and that Boutsianis’s impairments did not meet
2 The claimant has the burden of proof for the first four steps of this process. Freeman v . Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). If the claimant meets her burden of proof at the first four steps, the burden shifts to the Commissioner, who must come forward with evidence of specific jobs in the national economy that the claimant can still perform despite her impairment. Id.
-3- the criteria of any “listing of impairment” in the social
security regulations. T r . at 13-14. At step four of the
analysis, the ALJ analyzed Boutsianis’s medical records and
concluded that the medical evidence in the record failed to
substantiate Boutsianis’s “subjective allegations of total
functional incapacity.” T r . at 1 6 . The ALJ concluded that
Boutsianis’s allegations of pain were not entirely credible and
that the record did not show that her pain was completely
disabling. T r . at 1 7 .
The ALJ concluded that Boutsianis retained the RFC to sit,
stand, or walk for up to six hours in an eight-hour work day;
occasionally lift and carry twenty pounds and frequently lift and
carry ten pounds; occasionally balance, climb, stoop, kneel,
crouch, or crawl; understand, remember, and carry out simple
instructions; make judgments on simple work-related decisions;
interact appropriately with others in a work setting; and respond
appropriately to normal work pressures and changes in a routine
work setting. T r . at 1 8 . Nevertheless, the ALJ found that
because Boutsianis’s past relevant work as a restaurant manager
required her to lift and carry 50 to 100 pounds, Boutsianis could
no longer perform her past relevant work. Id.
-4- The ALJ then concluded, at step five of the analysis, that
there were a significant number of jobs in the national economy
that Boutisanis could still perform, given her RFC. Id. The ALJ
utilized the Medical-Vocational Guidelines (“the Grids”) and
concluded that based on Boutsianis’s age, education, and RFC, the
tables directed a finding of not disabled. T r . at 1 9 ; see 20
C.F.R. Part 4 0 4 , Subpart P, Appendix 2 , Table 2 .
B. Medical History
Boutsianis was forty-five years old when she applied for SSI
and DIB in February 2005. T r . 46-53. She is a high school
graduate who can speak, read, and write in English. T r . at 5 6 .
Prior to the alleged onset of her disability on October 5 , 2004,
she had worked as a restaurant manager for almost 20 years. T r .
at 5 7 . The record contains detailed medical records from
December 2004 to July 2006.
In December 2004, Boutsianis saw Diane Bernard, a Certified
Physician’s Assistant, for complaints of heel spurs. T r . at 130-
34. Boutsianis also reported pain with walking, joint pain,
problems dropping things, and hip pain. T r . at 130. Bernard
conducted a physical examination, which showed all of
Boutsianis’s systems to be normal, except for tenderness over the
-5- heel of the right foot. T r . at 131. Bernard noted that
Boutsianis complained of back pain, joint pain, muscle weakness,
stiffness, and anxiety. Id. Bernard diagnosed heel spurs and
arthralgia, and prescribed Bextra (a nonsteroidal anti-
inflammatory drug) and Flexeril (a muscle relaxant). T r . at 132.
Boutsianis saw Bernard again in January 2005 for heel spurs.
Tr. at 135-36. Boutsianis reported that her heel spurs were
slightly better but that she had ongoing pain in her hips and
legs, such that she could not stand for any length of time or sit
for more than thirty minutes without pain. Id. She stated that
none of the medications were helping her pain, and also requested
information about diet and cholesterol. Id. Bernard again
prescribed Bextra and Flexeril, and added Elavil, an
antidepressant. Id.
In February 2005, Boutsianis saw Bernard for a follow-up
visit. T r . at 137-38. Boutsianis reported that the medications
were working well, although she had not taken Elavil because of
the possible side effects, and requested a different medication
for depression. Id. In her assessment, Bernard noted that
Boutsianis’s heel spurs and arthralgia had improved. Id.
Bernard prescribed Prozac. Id.
-6- Boutsianis visited Bernard again in March 2005 for a breast
cancer screening. T r . at 139-41. At that visit Boutsianis
reported that she was doing well but was experiencing occasional
anxiety attacks and requested a medication to take as needed.
Id. Bernard prescribed Xanax. Id.
In April 2005, Boutsianis saw Bernard and complained of
heartburn after every meal, nausea, and dizziness. T r . at 143-
45. Upon examination, Boutsianis also complained of tinnitus and
headaches, and Bernard observed mild epigastric tenderness with
palpation in Boutsianis’s abdomen. Id. All other systems were
reported to be normal. Id. Bernard diagnosed new problems of
heartburn and chronic, bilateral tinnitus. Id. She prescribed
additional medications of Meclizine (an antihistamine) and
Prevacid (a heartburn medication). Id.
Boutsianis returned for a follow-up appointment with Bernard
later in April 2005. T r . at 146-48. At this appointment,
Boutsianis reported that Prevacid was helping her heartburn, but
that Flexeril was not working as well as before. Id. She
reported using nasal spray daily and requested something else to
help with her stuffy nose, and she also requested a referral to a
psychiatrist. Id. Bernard noted that Boutsianis complained of
-7- nasal congestion, change in sleep habits, and depression, but
that Boutsianis denied having anxiety. Id. Bernard diagnosed
new problems of depression and nasal congestion and noted that
Boutsianis’s heartburn had improved, but that her tinnitus,
arthralgia, and heel spurs were unchanged. Id. Bernard took
Boutsianis off Bextra, switched Prevacid for Prilosec, increased
the dosage of Flexeril and Elavil, and prescribed the additional
medications of Flonase and Zyrtec for the nasal symptoms. Id.
In June 2005, Boutsianis saw Bernard and stated that her
sciatic nerve had been bothering her and that Xanax was not
helping her anxiety. T r . at 151-52. She requested a note that
she could not work until her disability could be evaluated. Id.
Bernard gave Boutsianis the note, recommended counseling, and
substituted Buspar for Xanax. Id.
Boutsianis saw Certified Physician’s Assistant Kimberly
Gallant in September 2005 for a follow-up visit. T r . at 154-56.
Boutsianis reported that Flexeril was not working and requested
more Ranitidine for heartburn. Id. Boutsianis stated that
Elavil was effective in helping her sleep, but that her other
medications including Prozac, Meclizine, and Buspar were not
effective. Id. Boutsianis also stated that she had a history of
-8- fibromyalgia that was diagnosed in winter 2004, and attributed
her tinnitus and the pain her neck and lower extremities to
fibromyalgia. Id. Gallant noted the new problems of
fibromyalgia, a family history of abdominal aortic aneurysm, and
anxiety. Id. Gallant prescribed Prilosec, Ranitidine, Flexeril,
and Prozac (at an increased dosage), and removed Buspar.
In December 2005, D r . Kenneth Shuman referred Boutsianis to
physical therapy for the conditions o f : “fibromyalgia, left
groin strain, left arm strain, triceps/latissimus dorsi, left
thumb (trigger finger), and restless leg syndrome.” T r . at 113.
At her first physical therapy session in January 2006, the
therapist noted that Boutsianis reported that her left arm pain
stemmed from a fall on the ice two years prior. T r . at 174. At
this first session the therapist also noted that Boutsianis had a
decreased range of motion, decreased joint mobility, pain upon
palpation in her left shoulder, restricted mobility in her spine
at level C2-C7, and a winging left scapula. T r . at 175-76.
Boutsianis was discharged from physical therapy in March
2006 after 8 visits; she reported that her left shoulder was much
better. T r . at 177-80, 189. Later in March 2006, she received
occupational therapy for triggering in her left thumb. T r . at
-9- 182. After three visits to occupational therapy, the therapist
noted a lack of improvement and recommended that Boutsianis
revisit her doctor to consult about whether to continue with
occupational therapy or treat with cortisone injections.
C. Assessments and Reports in Connection with Applications for Benefits
Bernard filled out a Medical Report in connection with
Boutsianis’s application to the City of Rochester, New Hampshire,
Welfare Department for financial assistance. T r . at 6 9 . The
report is dated both January 2 1 , 2005, and April 2 6 , 2005. Id.
Bernard stated in the report that Boutsianis was permanently and
totally disabled, such that she could do no work until further
notice. She listed her diagnoses, in order of importance, a s :
(1) arthralgia, (2) heel spurs, and (3) fibromyalgia. Id.
On March 3 0 , 2005, Boutsianis filled out an Activities of
Daily Living Report in connection with her applications for DIB
and SSI. T r . at 72-77. In this report, Boutsianis stated that
her activities were very limited due to severe and constant pain.
Id. She reported that, on a daily basis, she awoke with stiff
and painful muscles and alternated periods of rest with short
periods of housework. T r . at 7 2 . Boutsianis also stated that
-10- she had trouble remembering and concentrating when reading and
watching television. T r . at 73-74. She reported that she went
out infrequently, but that she occasionally drove and that she
regularly cared for her pets. T r . at 7 3 . Boutsianis also filled
out a pain questionnaire, reporting that her pain began in late
2002 and had worsened over time. T r . at 76-77. She stated that
chronic pain and depression limited her activities, and that her
pain medication worked sometimes within one hour or two and
worked for four to six hours. Id.
On June 1 7 , 2005, D r . Joseph Cataldo completed a physical
RFC assessment of Boutsianis based on a full review of
Boutsianis’s medical records. T r . at 157-65. D r . Cataldo
concluded that the degree of limitations expressed by Boutsianis
were not supported by the total evidence in the file. T r . at
163. He found that she did suffer from osteoarthritis in her
right heel, but that her claim of fibromyalgia was
unsubstantiated by the record. T r . at 1 5 7 , 165. He also noted
that the Treatment Source Opinion completed by Bernard in
connection with Boutsianis’s welfare application was not signed
by a physician, and the statement in that report that Boutsianis
was disabled was not supported by the medical evidence in the
-11- record. T r . at 163; see also T r . at 6 9 .
On June 2 5 , 2005, Boutsianis saw psychologist D r . Thomas
Lynch for assessment of affective disorders and/or anxiety-
related disorders. T r . at 166-72. D r . Lynch noted that
Boutsianis had experienced significant losses in her life,
including both parents, a brother, and a long-term boyfriend.
Tr. at 166. He observed that, upon examination, Boutsianis
demonstrated moderate difficulties with concentration and short-
term memory. T r . at 170. D r . Lynch concluded that, due to her
anxiety and depression, Boutsianis could have difficulty
finishing tasks without being able to work at her own pace and
take breaks as needed and that she could have difficulty keeping
up with a routine. T r . at 171. He concluded that Boutsianis had
adequate social skills and that her problems with concentration
and short-term memory would improve with treatment for anxiety
and depression. Id.
Dr. Nicholas Kalfas completed a Psychiatric Review Technique
form on July 8 , 2005, assessing Boutsianis from the period of
October 5 , 2004, to July 8 , 2005. T r . at 85-98. D r . Kalfas
concluded that Boutsianis had a non-severe impairment with a co-
existing non-mental impairment requiring referral to another
-12- medical specialty. T r . at 8 5 . Specifically, D r . Kalfas
concluded that Boutsianis showed signs of a depressive syndrome
with sleep disturbance, decreased energy, feelings of guilt or
worthlessness, and difficulty concentrating or thinking. T r . at
88. D r . Kalfas did not conclude that Boutsianis suffered from
any other psychiatric condition, including anxiety. T r . at 85-
98. He noted that Boutsianis’s activities of daily living and
ability to maintain concentration, persistence, or pace were
mildly limited, and he found that Boutsianis had no limitations
in social functioning. T r . at 9 5 . Finally, D r . Kalfas concluded
that Boutsianis did not meet the requirements of a listing of
impairment for a psychiatric problem. T r . at 9 6 .
On July 3 1 , 2006, D r . Kenneth Shuman filled out two Medical
Source Statements (“MSS”) of Ability to do Work-Related
Activities reports on Boutsianis’s behalf, one focusing on
physical, and the other on mental limitations. T r . at 190-93;
194-96. In the MSS focusing on physical limitations, D r . Shuman
opined that Boutsianis’s impairment affected her ability to lift,
carry, push, and pull, but he did not offer more specific
information about Boutsianis’s limitations, stating that he had
not tested her for these limitations. T r . at 190-91. D r . Shuman
-13- did state that Boutsianis must periodically alternate sitting and
standing, could occasionally balance, and could never climb,
kneel, crouch, crawl, or stoop. T r . at 191. D r . Shuman also
stated that Boutsianis was limited in her ability to reach, due
to joint pain, but that she was unlimited in her ability to
handle, finger, and feel. T r . at 192. Finally, he stated that
Boutsianis’s impairments required limited exposure to temperature
extremes, dust, humidity/wetness, hazards, fumes, odors,
chemicals, and gases, due to her significant allergies to dust.
Tr. at 193.
In the MSS focusing on mental limitations, D r . Shuman stated
that Boutsianis’s ability to understand, remember, and carry out
instructions was affected by her impairment, and that, due to
depression and anxiety, she had slight limitations in her ability
to understand and remember detailed instructions and carry out
detailed instructions. T r . at 194. He stated that she had no
limitation in her ability to understand, remember, or carry out
short, simple instructions, and no limitations in her ability to
make judgments on simple work-related decisions. Id. The doctor
also stated that she had no limitations in her ability to
interact appropriately with the public, supervisors, or co-
-14- workers, and no limitations in her ability to respond
appropriately to work pressure or changes in a usual or routine
work setting. T r . at 195.
II. STANDARD OF REVIEW
I am authorized pursuant to 42 U.S.C. § 405(g) to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the Commissioner’s final decision. My review is
limited to whether the Commissioner (through the ALJ and the
Appeals Council) applied the proper legal standards and found
facts based upon the proper quantum of evidence. Ward v . Comm’r
of Soc. Sec., 211 F.3d 6 5 2 , 655 (1st Cir. 2000); Nguyen v .
Chater, 172 F.3d 3 1 , 35 (1st Cir. 1999).
The Commissioner’s findings of fact are accorded deference
as long as they are supported by substantial evidence. Ward, 211
F.3d at 655. I must uphold these factual findings “if a
reasonable mind, reviewing the evidence in the record as a whole,
could accept it as adequate to support his conclusion.” Ortiz v .
Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)
(quoting Rodriguez v . Sec’y of Health & Human Servs., 647 F.2d
-15- 218, 222 (1st Cir. 1981)). The Commissioner’s factual findings
are conclusive if there is substantial evidence to support his or
her decision, even if the record “arguably could support a
different conclusion.” Id. at 770. The findings are not
conclusive, however, when they are derived by “ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
Nguyen, 172 F.3d at 3 5 .
The Commissioner is responsible for determining issues of
credibility and for drawing inferences from evidence on the
record. Ortiz, 955 F.2d at 769. It is the role of the
Commissioner, not the role of this court, to resolve conflicts in
the evidence. Id.
III. ANALYSIS
Boutsianis raises three main arguments in support of her
motion for reversal. First, she argues that the ALJ erred when
he failed to accord controlling weight to her treating
physician’s opinion regarding her nonexertional limitations.
Second, she argues that because she has nonexertional limitations
that significantly erode the occupational base for light work,
the ALJ erred when he failed to call a vocational expert to
-16- testify at her hearing. Third, she argues that the ALJ erred
when he failed to consider all of her impairments because he
inaccurately stated in his opinion that there was no actual
diagnosis of fibromyalgia in the record.
For reasons discussed below, I find that while the ALJ did
not err when he declined to accord controlling weight to the
opinion of D r . Kenneth Shuman or when he declined to consider
fibromyalgia as contributing to Boutsianis’s impairment, the ALJ
did err in failing to determine whether Boutsianis’s
nonexertional limitations significantly impact her ability to
perform a full range of light work. Therefore, I remand this
case to the Social Security Administration for further
A. Treating Source’s Medical Opinion
A “treating source” is a physician with whom the claimant
has an ongoing treatment relationship. 20 C.F.R. §§ 404.1502,
416.902. The Social Security Administration has determined that
a treating source’s medical opinion must be given controlling
weight if it is well-supported and not inconsistent with other
substantial evidence in the record. S.S.R. 96-2p (1996). It is
also true, however, that “[e]ven if a treating source’s medical
-17- opinion is well-supported, controlling weight may not be given to
the opinion unless it is also ‘not inconsistent’ with the other
substantial evidence in the case record.” Id. Thus, the ALJ
must determine whether a medical opinion from a treating source
is both “well supported” and “not inconsistent” in a given case.
Id. As the SSA states:
Sometimes, there will be an obvious inconsistency between the opinion and the other substantial evidence; for example, when a treating source’s report contains an opinion that the individual is significantly limited in the ability to do work-related activities, but the opinion is inconsistent with the statements of the individual’s spouse about the individual’s actual activities, or when two medical sources provide inconsistent medical opinions about the same issue.
Id. at 3 .
Additionally, Social Security Ruling 96-2 states that for a
treating source’s opinion to be given controlling weight, the
adjudicator “must find that the treating source’s medical opinion
is well supported by medically acceptable clinical and laboratory
diagnostic techniques. The adjudicator cannot decide a case in
reliance on a medical opinion without some reasonable support for
the opinion.” Id. at 2 .
In this case, Boutsianis contends that the ALJ erred by not
according controlling weight to the opinion of D r . Kenneth Shuman
-18- as expressed in the two Medical Source Statements he filled out
in July 2006. See T r . at 190-96. In the physical MSS, D r .
Shuman stated that Boutsianis had the following limitations (Dr.
Shuman’s medical or clinical findings to support each limitation
are also noted):
1 ) Exertional limitation - Must periodically alternate sitting and standing to relieve pain or discomfort. Supporting medical/clinical finding: none.
2 ) Postural limitations - Can never climb, kneel, crouch, crawl, or stoop, and can only occasionally balance. Supporting medical/clinical finding: “can walk down the hall without staggering.”
3 ) Manipulative limitation - Can only occasionally reach in all directions. Supporting medical/clinical finding: “joint pain.”
4 ) Environmental limitation - Limited ability to tolerate exposure to temperature extremes, dust, humidity/wetness, hazards, and fumes. Supporting medical/clinical finding: “has significant allergies to dust.”
Tr. at 190-93.
In the mental MSS, D r . Shuman found that Boutsianis had a
slight limitation only in her ability to understand, remember,
and carry out detailed instructions. T r . at 194-96. His
supporting medical/clinical finding stated that: “Depression and
anxiety affect concentrating ability.” Id.
-19- The ALJ noted these statements by D r . Shuman in his opinion,
but agreed with D r . Shuman only with respect to his statements
about Boutsianis’s exertional and mental limitations. T r . at
1 5 ; 1 8 . Because D r . Shuman’s opinions as to Boutsianis’s
postural, manipulative, and environmental limitations are largely
unsupported by “medically acceptable clinical and laboratory
diagnostic techniques” and inconsistent with other statements in
the record, the ALJ did not err when he failed to give
controlling weight to this opinion.
Dr. Shuman provided very little information to support his
opinion on the physical MSS form. He stated that Boutsianis
suffered from “joint pain.” There are medical and clinical
findings in the record to support his opinion that Boutsianis
suffered from joint pain, but there are no medical or clinical
findings in the record to show that joint pain prevented
Boutsianis from reaching in all directions. At most,
Boutsianis’s physical therapy records show problems with her left
shoulder that may cause difficulty with overhead reaching with
that arm, but, again, the record contains no explicit medical or
clinical findings on this point.
-20- Dr. Shuman also stated that Boutsianis “can walk down the
hall without staggering” as a medical or clinical finding to
support his conclusion regarding Boutsianis’s postural
limitations. Even if D r . Shuman intended to write “cannot”
rather than “can,” this is unsupported by other evidence in the
record. In her Activities of Daily Living report, Boutsianis
says that she is able to drive to the doctor’s office and the
grocery store, walk down the street occasionally, and regularly
care for her pets. T r . at 73-74. In all of her medical records,
there is no mention of difficulty walking or an affected or
uneven gait. There are no clinical findings in the record
regarding an inability to climb, kneel, crouch, or crawl, or any
findings regarding a limitation in Boutsianis’s ability to
balance.
Finally, D r . Shuman stated that Boutsianis suffered from
numerous environmental limitations due to her allergies to dust.
The record does show that Boutsianis sought treatment for nasal
congestion (see T r . at 146-48), which could support D r . Shuman’s
conclusion that she suffered from a dust allergy. However, there
are no medical or clinical findings in the record to support the
doctor’s conclusion that Boutsianis suffered from a dust allergy
-21- or that, even if her nasal congestion could be attributed to a
dust allergy, this allergy caused her to have other environmental
limitations including temperature extremes, humidity/wetness,
hazards, or fumes.
Because D r . Shuman’s opinions regarding Boutsianis’s
postural, manipulative, and environmental limitations are not
supported by medical or clinical findings in the record and are,
at times, inconsistent with other evidence in the record, the ALJ
was not required to give these opinions controlling weight.3
B. Failure to Call a Vocational Expert
Boutsianis argues that the ALJ erred when he relied on the
Grids, rather than the testimony of a Vocational Expert (“VE”) to
conclude that she was not disabled. When a claimant suffers from
nonexertional limitations that significantly erode her
3 Boutsianis also raises the argument that the ALJ failed to develop the record by failing to request D r . Shuman’s office notes. Boutsianis was represented by counsel throughout these proceedings but never presented these records to the ALJ, never informed the ALJ or the Appeals Council that these records existed or were required, and never requested that the ALJ subpoena these records. In light of these facts and because Boutsianis has failed to establish prejudice resulting from the ALJ’s failure to obtain these treatment notes, I find that the ALJ did not fail to develop the record. See Faria v . Comm’r of Soc. Sec., 1998 WL 1085810, at *1 (1st Cir. 1998).
-22- occupational base, testimony of a VE is usually required in order
for the Commissioner to meet his burden, at step five, of showing
that there are a significant number of jobs in the national
economy that the claimant can still perform despite her
limitations. 20 C.F.R. §§ 404.1569a, 416.969a; see also Heggarty
v . Sullivan, 947 F.2d 9 9 0 , 996 (1st Cir. 1991). In this type of
situation, reliance on the Grids alone is prohibited, although
the Grids may serve as a framework for analysis. Heggarty, 947
F.2d at 996. Pain can constitute a significant nonexertional
impairment that would trigger the need for VE testimony. Nguyen,
172 F.3d at 3 6 .
As discussed above, the ALJ rejected many of the
nonexertional limitations noted in D r . Shuman’s MSS report
because they were not supported by medical or clinical findings
in the record. The ALJ did, however, find that Boutsianis had
some nonexertional limitations, although he did not engage in a
substantive analysis of the extent to which these nonexertional
limitations eroded the occupational base for light work. T r . at
19. Specifically, the ALJ stated that Boutsianis’s ability to
perform the full range of light work was reduced by her pain and
her adjustment disorder. Id. While the ALJ rejected
-23- Boutsianis’s allegation that she suffered from completely
disabling pain, the ALJ did recognize that Boutsianis’s pain
required that she be in a job where she would have the
opportunity to alternate positions at her own choosing. T r . at
17. He also concluded that her problems with anxiety and
depression (referred to as an “adjustment disorder”) interfered
with her ability to understand, remember, and carry out detailed
instructions.
At step five of the disability analysis, the Commissioner
bears the burden of showing that there are a significant number
of jobs in the national economy that the claimant can perform
despite her limitations. In this case, the ALJ erred when he
failed to analyze the extent to which Boutsianis’s nonexertional
impairments diminished her capacity to perform light work. The
ALJ’s decision in this case is similar to the ALJ decision
analyzed in Pratts v . Chater, 94 F.3d 34 (2d Cir. 1996):
In the present case, the ALJ did not specifically articulate the nonexertional impairments that Pratts suffered. Nonetheless, in light of her reference to “his non- exertional limitations,” she apparently believed that he had some. The ALJ found that the grids directed a conclusion that Pratts was not disabled even though she neither identified his nonexertional limitations nor considered whether a vocational expert was necessary. The ALJ simply proceeded directly to the ultimate question of disability
-24- without first considering whether further testimony was necessary in light of Pratts's nonexertional impairments.
Pratts, 94 F.3d at 3 9 .
In Pratts, the Second Circuit remanded the case to the
Social Security Administration and ordered that the ALJ, on
remand, conduct a re-evaluation as to whether the claimant’s
nonexertional limitations significantly diminished his ability to
perform the full range of light work. Id. Similarly, in this
case, the ALJ should examine this issue on remand and, if the ALJ
concludes that Boutsianis’s nonexertional limitations
significantly diminish her ability to perform a full range of
light work, he should call a VE to testify as to whether there
are a sufficient number of jobs in the national economy that
Boutsianis could perform despite her limitations. See id.
C. Failure to Consider All Impairments
Boutsianis also argues that the ALJ failed to consider her
fibromyalgia as contributing to her impairments because he stated
in his opinion that there is no actual diagnosis of fibromyalgia
in the record. The ALJ’s conclusion that Boutsianis has never
actually been diagnosed with fibromyalgia is supported by
substantial evidence in the record. The record shows that
-25- Boutsianis’s primary care physician was Certified Physician’s
Assistant Diane Bernard from December 2004 to June 2005. There
is no evidence in the record that Bernard ever completed a
clinical examination of Boutsianis that resulted in a diagnosis
of fibromyalgia. In December 2004, Boutsianis reported to
Bernard that she was concerned that she might have fibromyalgia,
but Bernard did not diagnose fibromyalgia, finding only one
tender point in Boutsianis’s right foot. In September 2005,
Boutsianis saw a different medical provider, Certified
Physician’s Assistant Kimberly Gallant. T r . at 154-56. At that
visit, Boutsianis told Gallant that she had a history of
fibromyalgia and that it had been diagnosed in winter 2004. Id.
Gallant and D r . Shuman, who treated Boutsianis beginning in 2006,
both noted in subsequent records that Boutsianis had
fibromyalgia, but the record does not show that the condition was
ever diagnosed based on clinical findings or testing.
Because the record does not contain clinical findings to
support Boutsianis’s claim that she had been diagnosed with
fibromyalgia, the ALJ did not err when he declined to consider
fibromyalgia as a contributing factor to Boutsianis’s impairment.
See Craig v . Chater, 76 F.3d 585, 590 n.2 (4th Cir. 1996)
-26- (holding that a claimant’s subjective complaints are not
considered clinical findings merely because they are recorded by
a doctor); see also Harvey v . Astrue, 2007 WL 2021918 (D. M e .
2007) (analyzing a similar claim in which a claimant told medical
practitioners she had been diagnosed with fibromyalgia although
there were no actual clinical findings to support the diagnosis
and holding that the ALJ did not err by failing to consider
fibromyalgia as a contributing impairment).
IV. CONCLUSION
For the reasons stated above, I grant plaintiff’s motion to
reverse (Doc. N o . 8 ) , deny defendant’s motion to affirm (Doc. N o .
9 ) , and remand this case pursuant to sentence four of 42 U.S.C. §
405(g) to the Social Security Administration. The Clerk is
directed to enter judgment in accordance with this order and
close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
April 1 , 2008
-27- cc: D. Lance Tillinghast, Esq. Seth Aframe, Esq. Gretchen Leah Witt, Esq.
-28-