Spielberg v . SSA CV-10-463-PB 10/18/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Karyn Beth Spielberg
v. Case N o . 10-cv-463-PB Opinion N o . 2011 DNH 171 Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Karyn Beth Spielberg filed a complaint seeking review,
pursuant to 28 U.S.C. § 405(g), of the Commissioner’s decision
denying her application for disability insurance and supplemental
security income benefits. Spielberg contends that the
Administrative Law Judge (“ALJ”) erred at Step Two of the
sequential analysis and that the ALJ erred in assigning the most
weight to the opinion of the state agency reviewing physician.
The Commissioner moves to affirm the decision.
I. BACKGROUND1
Spielberg applied for Social Security benefits on April 9,
2008, when she was fifty years old. She alleged an onset of
1 The background information is taken from the parties’ Joint Statement of Material Facts and the administrative record. See LR 9.1(b). I note that the information in the Joint Statement is not presented in chronological order or any other particular order, which has required additional time in preparing this order. disability as of July 2 , 2006, due to the effects of a stroke she
suffered in 1993, fibromyalgia, lupus, and depression. She is a
high school graduate. She worked in the past as a restaurant
hostess, a skin care technician, a secretary and receptionist at
law firms, and a sales clerk.
A. Medical History Spielberg suffered a stroke in 1993 and was treated at the
New Hampshire Rehabilitation Hospital. Following treatment,
Spielberg returned to her work as a legal secretary.
In March 2007, Spielberg injured her back while moving
furniture at her mother’s house. An MRI revealed a mild
compression fracture in the thoracic region of the spine. In May
2008, Spielberg went to the emergency room at Catholic Medical
Center because of body aches, primarily in her foot, wrist, and
upper back. X-rays showed unremarkable results. Dr. Bundschuh of Goffstown Primary Care began treating
Spielberg as her primary care physician in October 2008. Dr.
Bundschuh noted Spielberg’s report of chronic pain and thought it
might be caused by fibromyalgia. D r . Bundschuh also noted
Spielberg’s report of short-term memory loss and indicated it
might be due to depression, but later she attributed it to the
effects of the stroke. D r . Bundschuh referred Spielberg to a
rheumatologist.
2 In January 2009, D r . Bundschuh provided a report of
treatment and diagnoses for Spielberg. D r . Bundschuh wrote that
because of her short-term memory loss, Spielberg had to be
systematic about everything, including making lists to complete
tasks. D r . Bundschuh said that distractions were a problem and
that the effort Spielberg expended in maintaining her activities caused severe exhaustion, requiring daily naps. D r . Bundschuh
noted that Spielberg had been diagnosed with autoimmune lupus in
1980. She also noted current symptoms, including exhaustion,
joint pain, migraine headaches, and intermittent depression.
Dr. Douglas R. Marks, a rheumatologist, examined Spielberg
in March 2009, ordered testing that was done in April, and
examined Spielberg again on May 2 0 , 2009. D r . Marks found that
Spielberg’s symptoms were most consistent with fibromyalgia. Dr.
Marks recommended that Spielberg increase her exercise to walking slowly for one hour each day. He also recommended Aleve. Dr.
Marks completed a residual functional capacity questionnaire on
June 1 , 2009, in which he stated that Spielberg met the criteria
for fibromyalgia, indicated a question as to whether Spielberg
has “lupus asplenia,” and noted her stroke, severe depression,
and nephrolithiasis. He stated that Spielberg was not a
malingerer, but her symptoms were aggravated by emotional
factors. He listed Spielberg’s pain as bilateral and stated that
3 she had diffuse myofascial pain and right hand and wrist pain.
Dr. Marks determined that Spielberg’s symptoms were severe
enough to interfere with her attention and concentration and that
she had a marked limitation in her ability to deal with work
stress. With respect to her physical limitations, D r . Mark
stated that Spielberg could walk one or two city blocks at a time, could sit for fifteen minutes and stand for twenty minutes
at a time, and could sit, stand, or walk for two hours in an
eight-hour work day. Spielberg would need to be able to shift
between sitting, standing, and walking and might need unscheduled
breaks every one to two hours. She could only occasionally lift
ten pounds and never lift twenty pounds. She was limited in
repetitive reaching, handling, and fingering because of
impairment in her hands and limited in postural activities. D r .
Marks stated that Spielberg would be absent from work because of her impairments more than three times each month.
Spielberg had a hysterectomy on July 1 , 2009. On follow up
in September, D r . Bundschuh wrote that Spielberg was feeling much
better as a result of the surgery and was dealing better with
pain. Spielberg then was considering working part time despite
her memory issues.
Spielberg was diagnosed with osteoporosis in February 2010.
On March 1 , 2010, Spielberg had a follow-up appointment with D r .
4 Bundschuh. D r . Bundschuh noted that Spielberg had no new issues
and was in no acute distress. At Spielberg’s request, D r .
Bundschuh drafted a letter “To Whom It May Concern,” in which she
listed Spielberg’s current issues as osteoporosis, back pain from
a 2007 injury, glaucoma, nephrolithiasis, fibromyalgia, asplenia,
and memory loss since her stroke. D r . Bundschuh stated that Spielberg was unable to work eight hours a day or forty hours a
week.
B. Evaluations by State Agency Consultants
The Social Security Administration sent Spielberg to a
consultative examination with a psychologist, Darlene Gustavson,
Psy.D., which was done on July 1 4 , 2008. A brief mental status
examination provided a score of twenty-nine out of thirty points.
Dr. Gustavson found that Spielberg was oriented and was able to
complete the tasks provided in the test. D r . Gustavson stated that Spielberg was able to understand and remember instructions,
to interact appropriately with others including fellow employees,
to sustain attention and to complete at least simple tasks, and
to tolerate common work stresses. D r . Gustavson diagnosed major
depressive disorder, which was recurrent and mild, and
recommended mental health treatment. D r . Gustavson also noted
that Spielberg was able to participate in the sixty-minute
evaluation without complaint.
5 On August 1 4 , 2008, a state agency psychologist, D r .
Phillips, reviewed Spielberg’s records and completed a
psychiatric review technique form and a mental residual
functional capacity assessment form. D r . Phillips noted that D r .
Gustavson’s report was the only mental evidence in the record.
Dr. Phillips found that Spielberg had moderate limitations in the ability to understand and remember detailed instructions, the
ability to maintain attention and concentration for extended
periods, the ability to complete a normal workday and work week,
the ability to perform at a consistent pace without an
unreasonable number of rest periods, and the ability to interact
appropriately with the public and to respond appropriately to
changes in the work setting.
Dr. William Windler did a consultative examination of
Spielberg for the Social Security Administration on September 1 2 , 2008. D r . Windler wrote that Spielberg had had a stroke in 1993
which caused temporary weakness on her right side and also had
caused problems with concentration, focus, and memory. Spielberg
also told D r . Windler that she had been diagnosed with lupus in
1982, which caused fatigue and lack of energy that was worsened
by the stroke. She reported back pain, right ankle pain, pain in
her left hand and wrist, and a limited tolerance for sitting,
standing, walking, and postural activities.
6 On physical examination, D r . Windler found no acute distress
and normal gait, standing, mood, affect, and thinking. Palpation
revealed tenderness in several areas of the back and left knee.
Dr. Windler concluded that Spielberg’s lupus was manifesting in
numerous painful areas and that her stroke had apparently left
cognitive difficulties. Dr. Jonathan Jaffe, another state agency physician, reviewed
Spielberg’s records and completed a physical functional capacity
assessment on September 1 7 , 2008. D r . Jaffe noted the lack of a
statement from a treating source about Spielberg’s physical
capabilities. He concluded that Spielberg could occasionally
lift twenty pounds, frequently lift ten pounds, and could sit,
stand, and walk for approximately six hours in an eight hour day.
C. Administrative Proceedings
Spielberg’s claims for Social Security benefits were denied on September 1 9 , 2008. She requested a hearing, which was held
on March 1 2 , 2010. Spielberg attended the hearing, represented
by counsel, and testified. A vocational expert also testified.
The ALJ issued a decision denying Spielberg’s claims on May
1 5 , 2010. The ALJ found that Spielberg had severe impairments
due to mild degenerative disc disease and depression. The ALJ
also found that Spielberg retained the residual functional
capacity to do light work with certain limitations in dealing
7 with complex tasks and dealing with the public. Based on those
findings and the vocational expert’s opinions, the ALJ concluded
that jobs existed that Spielberg could d o . Therefore, she was
not disabled for purposes of her Social Security application.
The Decision Review Board reviewed the decision, corrected a
“scrivener’s error,” deleted the semi-skilled jobs that the ALJ had included in the Step Five findings, and refuted Spielberg’s
contention that the consultative opinions were not entitled to
weight because they did not consider subsequent medical records.
The ALJ’s decision, as modified by the Decision Review Board,
became the final decision of the Commissioner. Spielberg then
filed this action to challenge the Commissioner’s decision.
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. 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 6 5 2 , 655 (1st
Cir. 2000).
8 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.’” 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.”
Ortiz, 955 F.2d at 770.
Findings are not conclusive, however, if they are derived by
“ignoring evidence, misapplying the law, or judging matters
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 her impairments
preclude her from working. Freeman v . Barnhart, 274 F.3d 606,
9 608 (1st Cir. 2001). At the fifth step, the Commissioner
determines whether work that the claimant can d o , despite her
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
Spielberg contends that the Commissioner’s decision must be
reversed because the ALJ failed to find at Step Two that she had
a severe impairment due to fibromyalgia and erroneously relied on
the opinion of a state agency consultative physician to determine
Spielberg’s residual functional capacity. The Commissioner moves
to affirm the decision because any error at Step Two is harmless
and because the ALJ properly assessed the medical opinion
evidence.
A. Step Two Findings
At Step Two of the sequential analysis, an applicant for
Social Security benefits must show “that [s]he has a medically
severe impairment or combination of impairments.” Bowen v .
Yuckert, 482 U.S. 1 3 7 , 146 n.5 (1987). The requirement of a
medically severe impairment or combination of impairments is met
unless the record shows “only a slight abnormality or combination
of slight abnormalities which would have no more than a minimal
10 effect on an individual’s ability to work even if the
individual’s age, education, or work experience were specifically
considered.” McDonald v . Sec’y of Health & Human Servs., 795
F.2d 1118, 1124 (1st Cir. 1986). The purpose of Step Two is “to
do no more than screen out groundless claims.” Id.
The Step Two findings are then reviewed at Step Three to
determine whether the applicant’s severe impairment or
impairments meet or equal an impairment listed in the Social
Security regulations. 20 C.F.R. §§ 404.1520(d);2 Barnhart v .
Thomas, 540 U.S. 2 0 , 25 (2003). If the impairments do not meet
or equal a listed impairment, the ALJ proceeds to Step Four to
determine whether the applicant can do her previous work, and if
not, the ALJ continues to Step Five to determine whether the
applicant can do other jobs that exist that exist in sufficient
numbers in the national economy. Id.
In this case, the ALJ found that Spielberg had severe impairments due to degenerative disc disease and depression. The
ALJ disputed D r . Marks’s diagnosis of fibromyalgia and concluded
that the record did not show that the condition caused any
2 For purposes of this case, the regulations governing disability insurance benefits, set forth in Part 4 0 4 , are the same as the regulations governing supplemental security income, set forth in Part 416. See Reagan v . Sec’y HHS, 877 F.2d 123, 124 (1st Cir. 1989). To avoid needless repetition, I will cite only the Part 404 regulations
11 significant limitations. As a result, the ALJ did not include
fibromyalgia as a severe impairment.
Even if the ALJ erred by omitting fibromyalgia as a severe
impairment at Step Two, the error does not require reversal as
long as it did not prejudice the outcome. Stout v . Comm’r,
Social Security Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006). At Step Four of the sequential analysis, “the ALJ will assess and
make a finding about [“the applicant’s] residual functional
capacity based on all the relevant medical and other evidence in
[the] case record.” 20 C.F.R. § 404.1520(e). The residual
functional capacity assessment is then used at Steps Four and
Five to determine whether there is work the applicant can d o .
Id. An applicant’s residual functional capacity “is the most
[he] can still do despite [his] limitations.” 20 C.F.R.
§ 404.1545(a)(1). In making that assessment, the ALJ “will consider all of [the applicant’s] medically determinable
impairments of which [the ALJ is] aware, including [the
applicant’s] medically determinable impairments that are not
‘severe,’ as explained in [sections] 404.1520(d), 404.1521, and
404.1523 . . . .” § 404.1545(a)(2).
Therefore, if the ALJ found any severe impairment at Step
Two, continued through the sequential analysis, and properly
evaluated all impairments for purposes of the disability
12 determination, the decision will not be reversed. See, e.g.,
Delia v . Comm’r of Social Security, 2011 WL 2748622, at *1 (11th
Cir. July 1 4 , 2011); Carpenter v . Astrue, 537 F.3d 1264, 1266
(10th Cir. 2008); Burch v . Barnhart, 400 F.3d 676, 682 (9th Cir.
2005).
B. Medical Opinions In finding that Spielberg retained the residual functional
capacity to do light work with certain limitations for simple
tasks and dealing with the public, the ALJ credited the opinions
of state agency consultative physicians, D r . Jaffe and D r .
Phillips. The ALJ gave little weight to the opinions of
Spielberg’s treating physicians, D r . Marks and D r . Bundschuh,
concluding that their opinions ascribing significant limitations
to Spielberg’s abilities were not supported by their notes or the
medical records. The Decision Review Board supported the ALJ’s decision to rely on D r . Jaffe’s opinion, despite the more recent
medical records from D r . Marks and D r . Bundschuh, on the ground
that the additional records did not support Spielberg’s claimed
impairments.
The ALJ is required to attribute weight to a medical opinion
based on the nature of the relationship between the medical
provider and the claimant. 20 C.F.R. § 404.1527(d). An opinion
based on one or more examinations is entitled to more weight than
13 a non-examining source’s opinion, and a treating source’s
opinion, which is properly supported, is entitled to more weight
than other opinions. Id. A treating source’s opinion on the
nature and severity of the claimant’s impairments will be given
controlling weight if the opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
case record.” § 404.1527(d)(2). “If any of the evidence in [the
claimant’s] case record, including any medical opinion(s), is
inconsistent with other evidence or is internally inconsistent,
[the ALJ] will weigh all of the evidence and see whether [she]
can decide whether you are disabled based on the evidence we
have.” § 404.1527(c)(2).
Spielberg contends that the ALJ did not properly explain the
decision to give little weight to the opinions of D r . Marks and Dr. Bundschuh. She challenges the ALJ’s reliance on D r . Jaffe’s
opinion because D r . Jaffe did not have the benefit of the
information from D r . Marks’s records and D r . Bundschuh’s later
records and because the ALJ provided no analysis of D r . Jaffe’s
opinion to support the weight given that opinion. She also notes
that D r . Jaffe commented about the lack of a statement from a
treating source on Spielberg’s physical capacities, which was
provided in the later records.
14 1. Dr. Jaffe’s Opinion
Dr. Jaffe served as a state agency consultative physician
and did not examine Spielberg. His opinion is based entirely on
his review of Spielberg’s medical records that existed before he
provided his opinion on September 1 7 , 2008. As a result, D r .
Jaffe did not consider D r . Marks’s records or D r . Bundschuh’s records that were generated after he provided his opinion.
Social Security Ruling 96-6p provides that state agency
consultants’ opinions can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence including any evidence received at the administrative law judge and Appeals Council levels that was not before the State agency, the consistency of the opinion with the record as a whole, including other medical opinions, and any explanation for the opinion provided by the . . . consultant.
SSR 96-6p, 1996 WL 374180, at * 2 . “[T]he amount of weight that
can properly be given the conclusions of non-testifying, non-
examining physicians will vary with the circumstances, including
the nature of the illness and the information provided the
expert.” Rose v . Shalala, 34 F.3d 1 2 , 18 (1st Cir. 1994). A
state agency consultant’s opinion that is based on an incomplete
record, when later evidence supports the claimant’s limitations,
cannot provide substantial evidence to support the ALJ’s decision
to deny benefits. See, e.g., Padilla v . Barnhart, 186 Fed. Appx.
15 1 9 , 20 (1st Cir. 2006); Russell v . Astrue, 742 F. Supp. 2d 1355,
1378-79 (N.D. G a . 2010); L.B.M. ex rel. Motley v . Astrue, 2010 WL
1190326, at *13 (S.D. Ind. Mar. 2 3 , 2010).
In this case, D r . Jaffe did not have any information
pertaining to Spielberg’s fibromyalgia diagnosis or her treating
physicians’ opinions about her limitations. The ALJ explained that he gave significant weight to D r . Jaffe’s opinion only
because he was an agency physician who was familiar with the
Social Security Administration’s definitions and procedures. The
Decision Review Board added its view that the additional records
added nothing significant. Notably, the Decision Review Board
overlooked D r . Marks’s records and opinion and provided only a
one-sided summary of D r . Bundschuh’s records.
2. Dr. Marks’s and Dr. Bundschuh’s Records and Opinions
Dr. Bundschuh began treating Spielberg as her primary care physician in October of 2008. D r . Marks, a rheumatologist, saw
Spielberg on a first visit in March of 2009. He then ordered
laboratory tests which were done in April and had a follow up
meeting with Spielberg in May of 2009. Both D r . Bundschuh and
Dr. Marks provided opinions that Spielberg was limited by pain
and fatigue caused by fibromyalgia, along with other impairments.
Dr. Marks found, among other things, that Spielberg could lift or
carry up to ten pounds only occasionally, would need unscheduled
16 breaks from work every one to two hours, and could only sit,
stand, or walk during four hours of an eight-hour work day. Dr.
Bundschuh’s opinions were similar, and she stated that Spielberg
could only work four hours out of an eight-hour day.
The ALJ explained that he gave little weight to D r . Marks’s
opinions because he had only treated Spielberg from March through May of 2009, his notes had few objective findings, his statement
of medical impairments in the form included the phrase “w/in
normal limits,” he failed to indicate whether her impairments
would last twelve months or more, his findings about Spielberg’s
limitations in walking appeared to be inconsistent, and Spielberg
did not need a cane to walk. The ALJ also noted D r . Marks’s
findings pertaining to a lack of “synovitis” and a good range of
motion.
As Spielberg points out, the ALJ mistook some of D r . Marks’s records for hospital records, raising a question about the care
and attention the ALJ gave to reviewing the record. In addition,
the ALJ ignored D r . Marks’s positive finding of approximately
twelve of the eighteen points used to diagnose fibromyalgia.
Further, D r . Marks’s note in the assessment form pertaining to
bilateral pain in Spielberg’s hands, wrists, and ankles, which
includes the phrase “w/in normal limits,” documents pain on both
sides of the body and above and below the waist.
17 The First Circuit has explained that a lack of objective
medical findings to support a fibromyalgia diagnosis is typical
and that patients with fibromyalgia may have normal test results.
Johnson v . Astrue, 597 F.3d 409, 410 (1st Cir. 2009). The court
noted that “[t]he American College of Rheumatology nonetheless
has established diagnostic criteria that include pain on both sides of the body, both above and below the waist, and point
tenderness in at least 11 of 18 specified sites.” Id. (internal
quotation marks omitted). Therefore, the ALJ’s reasons for
discounting D r . Marks’s opinion demonstrate his lack of
understanding of fibromyalgia and highlight the rule that an ALJ
is not qualified to interpret raw medical data to determine
Spielberg’s functional capacity. Nguyen, 172 F.3d at 3 5 .
The ALJ gave little weight to D r . Bundschuh’s opinion
because in an office note for preoperative evaluation, D r . Bundschuh wrote: “The patient’s functional capacity is hard to
determine as she is limited due to her fibromyalgia. However,
given what she does d o , which is walking and taking care of her
own ADLs, there seems to be no compromise.” Admin. Rec. at 285.
The ALJ interpreted D r . Bundschuh’s note to mean that Spielberg’s
physical abilities were not compromised by fibromyalgia, which
would be inconsistent with the first part of the note. The note
is ambiguous and cannot carry the weight the ALJ ascribes to i t .
18 In sum, the ALJ improperly relied on D r . Jaffe’s opinion and
erroneously rejected the opinions of D r . Marks and D r . Bundschuh.
C. Result
In response to the hypothetical question which incorporated
Dr. Jaffe’s opinion, the vocational expert found many jobs that
Spielberg could d o . In contrast, when asked a hypothetical question based on D r . Marks’s and D r . Bundschuh’s assessments,
the vocational expert responded that there were no jobs she could
do with those limitations. Because the ALJ erred in relying on
Dr. Jaffe’s opinion and the result prejudiced Spielberg’s claim,
the case must be remanded for further proceedings.
IV. CONCLUSION
For the foregoing reasons, I grant Spielberg’s motion to
reverse (Doc. N o . 1 0 ) , deny the Commissioner’s motion to affirm
(Doc. N o . 1 3 ) , and pursuant to sentence four of 42 U.S.C. §
405(g), remand this case to the Social Security Administration.
The clerk is directed to enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
October 1 8 , 2011
19 cc: Jeffrey A . Schapira, Esq. Robert Rabuck, Esq.