George v . SSA CV-11-356-PB 6/7/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Lisa George
v. Case N o . 11-cv-356-PB Opinion N o . 2012 DNH 097 Michael J. Astrue, Commissioner Social Security Administration
MEMORANDUM AND ORDER
Lisa George seeks judicial review of a decision by the
Commissioner of the Social Security Administration denying her
application for disability insurance benefits. George contends
that the Administrative Law Judge (“ALJ”) who considered her
application improperly substituted his lay opinion for
uncontroverted expert opinions in the record. For the reasons
provided below, I grant George’s motion to reverse the
Commissioner’s decision and remand the case for further
administrative proceedings.
I. BACKGROUND1
George applied for disability insurance benefits on January
4 , 2010, when she was forty-six years old. She alleged a
disability onset date of December 1 , 2009, due to bipolar
1 The background information is taken from the parties’ Joint Statement of Material Facts. See L.R. 9.1(b). Citations to the Administrative Transcript are indicated by “Tr.” George has also submitted a list of disputed facts containing citations to the ALJ’s decision. See L.R. 9.1(c). Because I review the ALJ’s decision in its entirety, I need not rely on either party’s interpretation of that decision. disorder and fibromyalgia. She finished the eleventh grade and
did not subsequently obtain a GED. In the past she worked as a
housekeeper, a convenience store clerk, and a deli cook.
A. Medical Evidence
The administrative record contains treatment records from
the Weeks Medical Center as of January 9, 2009. At that time,
George complained of severe head and muscle aches. She reported
that her muscle aches were worsening and that she was having
difficulty getting out of bed in the morning. A physician’s
assistant diagnosed a joint disorder and suggested a possible
diagnosis of fibromyalgia.
George began treatment with Dianne Ryan, a nurse
practitioner, on March 2 7 , 2009. At their first appointment,
George complained of symptoms related to menopause, tendonitis,
insomnia, headaches, depression, and anxiety. In addition, she
reported chronic pain in her arms, legs, neck, and back. Nurse
Ryan diagnosed fibromyalgia, depression with anxiety, and
irritable bowel syndrome. She prescribed Cymbalta for
depression and Flexeril for fibromyalgia.
On May 1 5 , 2009, George informed Nurse Ryan that Cymbalta
was causing anxiety. She also complained of dizziness, panic
attacks, racing thoughts, edginess, irritability, feeling
2 overwhelmed, worrying excessively, crying, difficulty sleeping,
and mood swings. She reported that she had been experiencing
fleeting suicidal ideation without a specific plan for self-harm
for years. Lastly, she complained of right shoulder pain.
Nurse Ryan diagnosed depression with anxiety and tendonitis of
the right shoulder. Due to George’s adverse reaction to
Cymbalta, Nurse Ryan prescribed Prozac instead.
On June 2 2 , George reported to D r . Maude Keeshin at the
Weeks Medical Center that Prozac was making her manic and that
she had stopped taking i t . On July 2 9 , she was treated for back
pain and depression. The following month, Nurse Ryan noted that
George was experiencing an increase in anxiety, with attacks
occurring almost daily. She was afraid to leave the house. Her
sleep and appetite were poor. On a positive note, she was
experiencing fewer mood swings.
On October 1 4 , Nurse Ryan noted that Prozac was not
alleviating George’s symptoms. George reported feeling
overwhelmed, worrying excessively, and having racing thoughts.
Her home environment was stressful, as she was living with an
abusive husband and was unable to afford counseling.
On December 1 , 2009, George requested from Nurse Ryan a
note for work saying that she was “physically able to work.”
3 She reported to Nurse Ryan that she was not taking Xanax or
Flexeril. She complained of occasional joint swelling and
aching, for which she was taking ibuprofen to good effect.
Two weeks later, however, George reported that her pain
from fibromyalgia had become unbearable. She had chronic pain
and swelling in her joints. She also complained of isolation,
depression, and back pain. Pain and fatigue prevented her from
working. Nurse Ryan recommended psychological counseling, along
with pool therapy, yoga, stress reduction, stretching, and
walking for her fibromyalgia.
On January 7 , 2010, George reported that Flexeril was not
effective in relieving her muscle aches. She had increased pain
in her arms and legs and reported having difficulty lifting her
grandchildren. On physical examination, George’s neck was noted
to be tight and tender. The following month, George reported
having difficulty moving and opening things. She complained of
lower back pain, poor sleep, high stress, as well as pain in her
shoulders, hands, and feet. She also reported suicidal
ideation.
On February 1 6 , 2010, Edward Martin, Ph.D., reviewed
George’s records on behalf of the state disability determination
agency. D r . Martin did not indicate what records he reviewed,
4 though it appears likely that he had records from 2005 from the
Catholic Medical Center and treatment records from the Weeks
Medical Center for January 9, 2009 through January 7 , 2010. His
complete assessment was:
Claimant is 46 year female [sic] alleging Bipolar DO and somatic issues with an [Alleged Onset Date] of 12/1/2009. Review of [Medical Evidence of Record] references diagnoses of Depression and Anxiety with medication prescribed by ARNP. Multiple attempts made to secure Function Report w/o success; no [Consultative Evaluation] will be scheduled based on this FTC. Therefore, there exists insufficient information to assess psychological impairments.
Tr. 200.
On February 2 3 , 2010, George began treatment with Linda
MacDougall, a psychiatric nurse practitioner, based on a
referral from Nurse Ryan. George reported mood swings,
depression with anxiety, insomnia, racing thoughts, panic
attacks, as well as weight fluctuation with a history of
starving, binging, and purging. Nurse MacDougall diagnosed
bipolar affective disorder and anxiety disorder with chronic
pain. She assigned a Global Assessment of Functioning (“GAF”)
score of 50. 2
2 A GAF of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Diagnostic and Statistical Manual of Mental Disorders at 34 (4th
5 On March 3 , 2010, George reported to Nurse MacDougall that
she was experiencing increased panic attacks, anxiety, anger,
irritability, mood swings, poor appetite, and poor sleep. Her
pain had diminished, however. Two weeks later, she reported
that her mood was still fluctuating.
On April 1 4 , George complained to Nurse Ryan that her
fibromyalgia was “up and down.” At her next appointment in
June, she complained of back pain, joint pain with swelling,
knee pain, and recent manic upswings. Nurse Ryan noted sacral
pain in the cervical spine with minimal touch and a normal range
of motion in the spine. On July 1 2 , George reported that her
headaches had become severe. There was no cervical tenderness
on exam.
George saw Nurse MacDougall on July 2 1 . She reported that
Prozac was not alleviating her depression or mood swings, and
that her pain was worsening her depression. Nurse MacDougall
noted that treatment options were limited because George had no
insurance. Nurse MacDougall filled out a medical source
statement that same day, stating that George had bipolar
disorder and that treatment only partially alleviated her
depression. She indicated that George had experienced an
ed. 2000) (“DSM-IV”).
6 adverse response to several medications. Nurse MacDougall was
optimistic that George’s depression could be treated to
remission once the medication issues were resolved. She opined
that George was moderately limited in her ability to deal with
the public and markedly limited in her ability to deal with work
stress. According to Nurse MacDougall, George was not capable
of performing even a low-stress job.
On August 9, 2010, George reported frustration with pain,
depression, and low energy to Nurse MacDougall. On August 2 7 ,
she told Nurse Ryan that she continued to suffer pain due to
fibromyalgia in her neck, back, arm, and leg. She also reported
occasional weakness and difficulty functioning because of
generalized pain. Her mood was depressed. She had no energy or
motivation.
That same day, Nurse Ryan filled out a residual functional
capacity questionnaire. Nurse Ryan stated that George suffered
from fibromyalgia, depression with anxiety, irritable bowel
syndrome, obsessive compulsive disorder, rheumatoid arthritis,
hypertension, migraines, and mixed bipolar disorder. She opined
that George’s illness was long-term and that her prognosis was
fair. Nurse Ryan also noted that George’s medications were
causing side effects, including anger, vivid dreams,
7 irritability, rashes, and upset stomach. According to Nurse
Ryan, George’s psychological conditions were affecting her
physical conditions.
Nurse Ryan opined that George’s symptoms would interfere
with her ability to consistently concentrate on simple one-to-
three step tasks for two-hour periods of time due to
forgetfulness, mood swings, memory loss, and poor concentration.
She thought that George’s workplace productivity would be
reduced by at least twenty percent. She also stated that George
would experience episodic attacks or symptoms which were likely
to incapacitate her temporarily, including migraines, severe
depression, fatigue, severe pain, and chronic memory loss. The
episodes were likely to happen on a daily basis and could last
for days or even weeks. According to Nurse Ryan, George was not
capable of performing even a low-stress job.
On specific physical capabilities, Nurse Ryan opined that
George could sit and stand for ten minutes at a time for a total
of less than two hours in an eight-hour workday. She indicated
that George could lift less than ten pounds rarely; could stoop,
crouch, climb ladders, and climb stairs rarely or never; and
could twist and balance occasionally. George would need to be
able to shift positions at will and occasionally would need to
8 take unscheduled ten-minute breaks because of chronic pain,
stiffness, and fatigue. Nurse Ryan opined that George was
likely to miss four or more days of work per month due to her
conditions. She also stated that George had been misdiagnosed
and that her limitations had been present for years.
On October 1 , 2010, Nurse MacDougall again treated George
for depression with anxiety and bipolar affective disorder. The
following month, Nurse Ryan noted that George had not refilled
her Prozac prescription because it was causing her heartburn.
Lamictal, another psychotropic medication, was making her itchy
and had given her a rash. George also reported having “weird
and scary dreams.” She was feeling edgy, irritable, and
emotional. She again reported suicidal ideation. She was
taking Vicodin for pain in her hands and had increased
migraines.
George had a follow-up appointment with Nurse MacDougall on
November 1 1 . She complained that her family and boyfriend were
not supporting her financially. She felt hopeless and
overwhelmed. She regretted that she had not been successful
with her last suicide attempt but denied any plan for suicide.
She had stopped taking Lamictal because she had developed a
rash, and had stopped taking Prozac due to stomach pains. Nurse
9 MacDougall diagnosed depression with anxiety, bipolar affective
disorder, and obsessive compulsive disorder. She also noted:
[Patient’s] life is a mess. She is totally dependent on the good nature of those who know her for her survival. She asked to be started back on Prozac @ lower dose because that had been helpful. Prescribing options are limited. [Patient] might benefit[] from [in-patient] treatment but without insurance or demonstrated risk to self of community [sic] admission is highly unlikely.
Tr. 255. Nurse MacDougall concluded by encouraging George to
think about counseling and applying for disability.
On January 1 3 , 2011, George sought treatment from Nurse
Ryan. She reported that her fibromyalgia pain was always
present. She also complained of lower back discomfort. Nurse
Ryan checked for rheumatoid arthritis, but the rheumatoid factor
was negative.
Two days later, D r . Laurie Brodeur, Psy.D., evaluated
George’s psychological impairments. D r . Brodeur observed that
George walked carefully and gingerly. She was tearful
throughout the interview and spoke in a monotone and low voice.
At times her speech was disjointed. Her affect was flat. Dr.
Brodeur diagnosed George with bipolar II disorder and recurrent
major depressive episodes with hypomanic occurrences.
George told D r . Brodeur that she could not remember a time
when she did not feel suicidal. She stated that she had
10 overdosed on a medication in October 2010. Instead of seeking
treatment, her husband had watched her for two days while she
slept. She also reported suffering from anxiety since her
youth. Throughout her adult life, she had periods during which
she had not slept, had cleaned obsessively, or had been highly
productive. She had a history of self-harming as a teenager,
including superficial cutting of her arm because of stressful
family circumstances. As adult, she would destroy inanimate
objects when angry.
George felt that her depression, anxiety, and mood swings
had worsened markedly since age thirty-nine, when she went
through menopause. She reported that her mind rushed when her
mood was high. She described her sleep as poor and her mood as
lethargic and depressed. She was unable to experience pleasure
from activities she usually found enjoyable. She was irritable
and had occasional significant panic attacks. She was obsessed
about order in her house, at times cleaning for days without
sleep. She had difficulty with semantic memory at times.
George also reported having heard voices and seen things in the
shadows of her peripheral vision. She had odd thoughts about
preventing bad things from happening.
11 Dr. Brodeur noted that George’s concentration was poor.
She was of average intelligence but disliked school. Her fund
of knowledge was average. D r . Brodeur opined that George had
“marked” functional loss in the area of daily activities,
“marked” loss in social functioning, “moderate” loss in task
performance, and “marked” loss in stress reactions. D r . Brodeur
recommended medication and therapy. She noted that George was
skeptical that she could find a therapist she could trust. Dr.
Brodeur opined that George’s functional loss would be moderate
with treatment, but she was guarded in her prognosis because of
complications from George’s medical conditions and the chronic
history of her behavioral patterns. She estimated that it would
take three to four years for improvements to take hold.
On January 1 9 , 2011, George was evaluated by D r . Pancras
Van der Iaan, M.D., at the Weeks Medical Center. George
reported that she had developed fibromyalgia at age 11 and that
she was suffering from joint pain that had worsened over the
prior five years. She tested negative for rheumatoid arthritis.
Dr. Van der Iaan diagnosed fibromyalgia, bipolar affective
disorder, hypertension, and depression with anxiety.
On a separate questionnaire, D r . Van der Iaan indicated
that fibromyalgia was George’s primary diagnosis. She stated
12 that George had at least 11 out of 18 tender points upon digital
palpation, in accordance with the 1990 diagnostic criteria for
fibromyalgia established by the American College of
Rheumatology. She also stated that George had widespread pain
consistent with her diagnosis. Finally, she stated that the
opinion given by Nurse Ryan in August 2010 was an accurate
assessment of George’s functional limitations.
B. Administrative Proceedings
After her claim for benefits was denied at the initial
level, George requested a hearing before an ALJ. ALJ Merrill
held the hearing via video conference on January 2 1 , 2011. Both
George and a vocational expert testified. George was
represented by counsel.
ALJ Merrill issued a decision denying George’s claim on
February 2 4 , 2011. The ALJ concluded that the only medically
determinable impairment that George had was depression with
possible bipolar disorder. He denied her claim at Step Two of
the sequential analysis based on a conclusion that her
depression was not severe. He discounted her diagnosis of
fibromyalgia as unsupported by the medical record. The Decision
Review Board affirmed the ALJ’s decision on May 2 7 , 2011.
13 II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the “final decision” of the Commissioner. My
review is limited to determining whether the ALJ used “the
proper legal standards and found facts [based] upon the proper
quantum of evidence.” Ward v . Comm’r of Soc. Sec., 211 F.3d
652, 655 (1st Cir. 2000).
The findings of fact made by the ALJ are accorded deference
as long as they are supported by substantial evidence. Id.
Substantial evidence to support factual findings exists “‘if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.’”
Irlanda Ortiz v . Sec’y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (per curiam) (quoting Rodriguez v . Sec’y of
Health & Human Servs., 647 F.2d 2 1 8 , 222 (1st Cir. 1981)). If
the substantial evidence standard is met, factual findings are
conclusive even if the record “arguably could support a
different conclusion.” Id. at 770.
Findings are not conclusive, however, if they are derived
by “ignoring evidence, misapplying the law, or judging matters
14 entrusted to experts.” Nguyen v . Chater, 172 F.3d 3 1 , 35 (1st
Cir. 1999). The ALJ 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 ALJ, not
the court, to resolve conflicts in the evidence. Id.
The ALJ follows a five-step sequential analysis for
determining whether an applicant is disabled. 20 C.F.R. §
404.1520; 20 C.F.R. § 416.920. The applicant bears the burden,
through the first four steps, of proving that his impairments
preclude him from working. Freeman v . Barnhart, 274 F.3d 606,
608 (1st Cir. 2001). At the fifth step, the ALJ determines
whether work that the claimant can d o , despite his impairments,
exists in significant numbers in the national economy and must
produce substantial evidence to support that finding. Seavey v .
Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001).
III. ANALYSIS
George moves to reverse and remand the Commissioner’s
decision denying her application for disability insurance
benefits.3 She contends that the ALJ impermissibly substituted
3 The first form of relief George seeks is a remand with an order for payment of benefits. A remand with instructions to pay is ordinarily “an unnecessary abrogation of the Commissioner’s
15 his lay opinion for uncontroverted medical opinions in the
record when he determined that she was not disabled. The
Commissioner contends that the ALJ did not overstep the bounds
of lay competence and, alternatively, that any error is
harmless.
At Step Two of the sequential analysis, ALJ Merrill
determined that George did not have a severe impairment or
combination of impairments and, accordingly, was not disabled
for the purpose of her social security application. The ALJ
acknowledged that George had been diagnosed with fibromyalgia
and bipolar disorder, but he discounted both diagnoses as not
supported by the medical record o r , alternatively, as causing
only a minimal limitation on her ability to work. The ALJ gave
either “little” or “minimal” weight to the four medical opinions
in the record that contradicted his determination. Instead, he
“rel[ied] primarily upon the medical evidence of record,” as he
authority to adjudicate applications for disability benefits.” Seavey v . Barnhart, 276 F.3d 1 , 10 (1st Cir. 2001). Such extraordinary relief is warranted “only in the unusual case in which the underlying facts and law are such that the agency has no discretion to act in any manner other than to award or to deny benefits.” Id. at 1 1 . Claimant must show that “the proof of disability is overwhelming” or that “correcting the legal error clarified the record sufficiently that an award or denial of benefits was the clear outcome.” Id. Because George has not satisfied either requirement, an award of benefits is not appropriate in this case.
16 inevitably had to do because no medical opinion supported his
determination. T r . 1 3 . Because the ALJ judged matters
entrusted to experts, the case must be remanded for further
proceedings.
The opinions in the record were rendered by George’s
primary care nurse practitioner Ryan, treating physician D r . Van
der Iaan, treating psychiatric nurse practitioner MacDougall,
and examining psychologist D r . Brodeur. Nurse Ryan diagnosed
George with fibromyalgia, depression, and bipolar disorder,
among other ailments. She opined that George was incapable of
performing even a low-stress job. According to Nurse Ryan,
George could sit or stand only for ten minutes at a time for a
total of less than two hours each in an eight-hour workday. She
would need to take unscheduled breaks occasionally due to
chronic pain, stiffness and fatigue, and would experience
unpredictable episodic attacks of migraines, severe depression,
fatigue, severe pain, and chronic memory loss. D r . Van der Iaan
also examined George and opined that Nurse Ryan’s opinion was an
accurate assessment of George’s functional limitations. D r . Van
der Iaan diagnosed George with fibromyalgia and stated that
George had at least 11 out of 18 tender points upon digital
palpation and widespread pain consistent with her diagnosis.
17 Nurse MacDougall, who treated George’s psychiatric
conditions, opined that George was incapable of performing even
a low-stress job due to bipolar disorder and depression. Dr.
Brodeur also evaluated George and similarly diagnosed her with
bipolar disorder and recurrent major depressive episodes. D r .
Brodeur opined that George had “marked” functional loss in the
area of daily activities, “marked” loss in social functioning,
“moderate” loss in task performance, and “marked” loss in stress
reactions.
ALJ Merrill discounted all four medical opinions because
they “contain inconsistencies and do not accurately reflect the
longitudinal history presented in the treatment notes.” Tr. 1 1 .
The opinions, however, were uncontroverted. Although a state
agency representative made a physical assessment that George
could perform “light” work, that assessment was not completed by
a medical source and the ALJ correctly assigned it no weight.
The state agency did not perform a mental health assessment.
Instead of relying on the uncontroverted medical opinions,
the ALJ determined that medical evidence in the record supported
a finding that George’s conditions had a minimal impact on her
ability to work. “As a lay person, however, the ALJ was simply
not qualified to interpret raw medical data in functional terms
18 and no medical opinion supported the determination.” Nguyen,
172 F.3d at 3 5 ; see Alcantara v . Astrue, 257 Fed. Appx. 333, 334
(1st Cir. 2007) (“Absent a medical advisor’s or consultant’s
assessment of the full record, the ALJ effectively substituted
his own judgment for medical opinion.”); Berrios Lopez v . Sec’y
of Health & Human Servs., 951 F.2d 4 2 7 , 430 (1st Cir. 1991)
(“Since bare medical findings are unintelligible to a lay person
in terms of residual functional capacity, the ALJ is not
qualified to assess claimant’s residual functional capacity
based on the bare medical record.”).
The Commissioner argues that the ALJ did no more than
render a common-sense judgment that George’s impairments imposed
only mild functional limitations on her ability to perform basic
work activities. Although the First Circuit has stated that an
ALJ is not “precluded from rendering common-sense judgments
about functional capacity based on medical findings,” the court
has cautioned that the ALJ cannot “overstep the bounds of a lay
person’s competence and render a medical judgment.” Gordils v .
Sec’y of Health & Human Servs., 921 F.2d 3 2 7 , 329 (1st Cir.
1990). Here, ALJ Merrill overstepped his bounds. George’s
treatment record by no means supports a common-sense conclusion
that her ailments were minimal. In fact, four medical sources
19 who either treated or examined her concluded that she was
substantially impaired. Although the ALJ was not required to
credit those opinions, he could not render a contrary judgment
without expert opinion that controverted the medical opinions in
the record regarding the extent of George’s impairments.
ALJ Merrill’s decision is even more problematic because he
determined that George was not disabled at Step Two of the
sequential analysis. Step Two was designed to implement “a
threshold test of medical severity to screen out groundless
claims - i.e., those claims that, on a common sense basis, would
clearly be disallowed were vocational factors to be considered.”
McDonald v . Sec’y of Health & Human Servs., 795 F.2d 1118, 1123
(1st Cir. 1986). A finding that a claimant is not disabled at
this step of the analysis is appropriate only “when medical
evidence establishes only a slight abnormality or a combination
of slight abnormalities which would have no more than a minimal
effect on an individual’s ability to work.” SSR 85-28, 1985 WL
56856, at * 3 . Given the de minimis nature of the Step Two
regulation, adjudicators are cautioned to exercise
[g]reat care . . . in applying the not severe impairment concept. If an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual’s ability to do basic work activities, the sequential evaluation
20 process should not end with the not severe evaluation step.
Id. at * 4 . ALJ Merrill failed to heed that warning. Not only
did he find that George’s impairments were not severe when the
record does not clearly support that finding, the ALJ also
concluded that her fibromyalgia was not a medically determinable
impairment. Both George’s primary care provider and a treating
physician, however, diagnosed her with fibromyalgia. D r . Van
der Iaan specifically indicated that she exhibited point
tenderness in at least 11 out of 18 specified sites, a clinical
finding that is sufficient to support a diagnosis of
fibromyalgia. See Johnson v . Astrue, 597 F.3d 409, 412 (1st
Cir. 2009) (“[S]ince trigger points are the only ‘objective’
signs of fibromyalgia, the ALJ effectively was requiring
objective evidence beyond the clinical findings necessary for a
diagnosis of fibromyalgia under established medical
guidelines[.]” (internal quotation marks and alterations
omitted)). In the absence of medical opinion stating that the
treatment record did not warrant the diagnosis, the ALJ was not
entitled to conclude that George’s fibromyalgia was not a
medically determinable impairment. The error was not harmless,
as the Commissioner contends, because substantial evidence does
21 not support a finding that the condition only minimally impacted
George’s ability to work.
IV. CONCLUSION
For the foregoing reasons, I grant George’s motion to
reverse (Doc. N o . 7 ) , deny the Commissioner’s motion to affirm
(Doc. N o . 1 1 ) , and pursuant to 42 U.S.C. § 405(g), remand this
case to the Social Security Administration for further
proceedings consistent with this opinion. The clerk is directed
to enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
June 7 , 2012
cc: Craig A . Jarvis, Esq. Gretchen Leah Witt, AUSA