UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Tina Robinson, Claimant
v. Case No. 16-cv-347-SM Opinion No. 2017 DNH 160
Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Tina Robinson, moves to reverse or vacate the Acting
Commissioner’s decision denying her applications for Disability
Insurance Benefits under Title II of the Social Security Act and
Supplemental Security Income Benefits under Title XVI. See 42
U.S.C. §§ 423, 1381-1383c (collectively, the “Act”). The Acting
Commissioner objects and moves for an order affirming her
decision.
For the reasons discussed below, claimant’s motion is
granted, and the Acting Commissioner’s motion is denied. Procedural Background
I. Procedural History.
In June of 2013, claimant filed applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”), alleging that she was disabled and had been unable to
work since June 15, 2013 (she subsequently amended her onset of
disability to October 31, 2013). Claimant was 50 years old at
the time and she had acquired sufficient quarters of coverage to
remain insured through December 31, 2016. Those applications
were denied and claimant requested a hearing before an
Administrative Law Judge (“ALJ”).
In May of 2015, claimant, her representative, and a
vocational expert appeared before an ALJ, who considered
claimant’s applications de novo. Six weeks later, the ALJ
issued his written decision, concluding that claimant was not
disabled, as that term is defined in the Act, at any time prior
to the date of his decision. Claimant then requested review by
the Appeals Council. That request was denied. Accordingly, the
ALJ’s denial of claimant’s applications for benefits became the
final decision of the Commissioner, subject to judicial review.
Subsequently, claimant filed a timely action in this court,
2 asserting that the ALJ’s decision is not supported by
substantial evidence.
Claimant then filed a “Motion for Order Reversing Decision
of the Commissioner” (document no. 8). In response, the Acting
Commissioner filed a “Motion for an Order Affirming the Decision
of the Commissioner” (document no. 12). Those motions are
pending.
II. Stipulated Facts.
Pursuant to this court’s Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts which, because
it is part of the court’s record (document no. 13), need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I. “Substantial Evidence” and Deferential Review.
Pursuant to 42 U.S.C. § 405(g), the court is empowered “to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” Factual findings and credibility
3 determinations made by the Commissioner are conclusive if
supported by substantial evidence. See 42 U.S.C. §§ 405(g),
1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991). Substantial
evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Importantly, it
is something less than a preponderance of the evidence, so the
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence. Consolo v.
Federal Maritime Comm’n., 383 U.S. 607, 620 (1966). See also
Richardson v. Perales, 402 U.S. 389, 401 (1971).
II. The Parties’ Respective Burdens.
An individual seeking SSI and/or DIB benefits is disabled
under the Act if he or she is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The
Act places a heavy initial burden on the claimant to establish
4 the existence of a disabling impairment. See Bowen v. Yuckert,
482 U.S. 137, 146-47 (1987); Santiago v. Secretary of Health &
Human Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that
burden, the claimant must prove, by a preponderance of the
evidence, that her impairment prevents her from performing her
former type of work. See Gray v. Heckler, 760 F.2d 369, 371
(1st Cir. 1985); Paone v. Schweiker, 530 F. Supp. 808, 810-11
(D. Mass. 1982). If the claimant demonstrates an inability to
perform her previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that
she can perform, in light of her age, education, and prior work
experience. See Vazquez v. Secretary of Health & Human
Services, 683 F.2d 1, 2 (1st Cir. 1982). See also 20 C.F.R. §§
404.1512(f) and 416.912(f).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the testimony of the claimant or
other witnesses; and (3) the claimant’s educational background,
age, and work experience. See, e.g., Avery v. Secretary of
Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Secretary of Health & Human Services, 690 F.2d 5,
5 6 (1st Cir. 1982). Ultimately, a claimant is disabled only if
her:
physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.
42 U.S.C. § 423(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Acting Commissioner’s motion to affirm
her decision.
Background - The ALJ’s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory
five-step sequential evaluation process described in 20 C.F.R.
§§ 404.1520 and 416.920. See generally Barnhart v. Thomas, 540
U.S. 20, 24 (2003). Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since her amended alleged onset of disability: October 31, 2013.
Admin. Rec. at 20. Next, he concluded that claimant suffers
6 from the following severe impairments: “fibromyalgia,
degenerative disc disease, obesity and status post left heel
spur/Achilles tendon surgery.” Id. But, the ALJ determined
that those impairments, whether considered alone or in
combination, did not meet or medically equal one of the
impairments listed in Part 404, Subpart P, Appendix 1. Admin.
Rec. at 23.
Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
“sedentary” work, subject to the following limitations: “she can
occasionally climb stairs; she must avoid all ladders, ropes and
scaffolds; she can occasionally balance, stoop, kneel, crouch
and crawl; she must avoid hazards; [and] she must avoid
concentrated exposure to cold temperatures and wetness.” Id. at
24. In light of those restrictions, and based upon the
testimony of the vocational expert, the ALJ concluded that
claimant was capable of performing past relevant work as a
switchboard operator, customer service clerk, and/or
administrative assistant. Id. at 27. Consequently, the ALJ
concluded that claimant was not “disabled,” as that term is
defined in the Act, through the date of his decision.
7 Discussion
Claimant challenges the ALJ’s decision on two grounds,
asserting that he erred: (1) by failing to give appropriate
weight to the opinions of claimant’s treating physician, Dr.
Amber Schmidt; and (2) by failing to recognize that claimant
meets the requirements of listing 1.04(A), as set forth in Part
404, Subpart P, Appendix 1, of the Regulations. The latter
argument is both insufficiently developed and insufficiently
supported by the record evidence to warrant substantial
discussion. It is enough to note that the Commissioner’s
memorandum fully discusses the reasons that the ALJ’s decision
on that issue is supported by substantial evidence.
Claimant’s primary argument, however, has more merit. She
claims the ALJ failed to give appropriate weight to the opinions
of her treating physician, Dr. Amber Schmidt, a board certified
practitioner of family medicine. Instead, she says, the ALJ
afforded too much weight to the opinions of the non-examining
state agency physician, Dr. Hugh Fairly.
Although Dr. Fairly acknowledged claimant’s Fibromyalgia,
he seems to have dismissed it with a single sentence: “[July,
2012] - Clinical signs of Fibromyalgia: Cymbalta ‘helps a lot.’”
8 Admin. Rec. at 86. Dr. Fairly appears to be referencing a
statement claimant made in December of 2012, approximately one
month after she was prescribed Cymbalta (presumably to address
pain associated with Fibromyalgia, but also, perhaps, to address
symptoms of depression). See Id. at 307. But, that single
statement neither fully nor accurately represents claimant’s
condition. Indeed, it seems inconsistent with the medical
record as a whole. To the extent it implies that claimant’s
Fibromyalgia was well controlled with medication, it is
incorrect.
Just two months after starting treatment with Cymbalta,
claimant reported that she didn’t think it was working anymore.
Id. at 303. Shortly thereafter, she was switched to a different
medication - Viibryd - with the note that “she was taking
Cymbalta but it was too expensive.” Id. at 264. And, shortly
after that, she was instructed to stop taking Viibryd and Dr.
Schmidt prescribed a narcotic (Percocet) to address claimant’s
ongoing pain. Id. at 266.1 In short, then, claimant’s statement
1 Both Cymbalta and Viibryd are non-narcotic members of a class of medications known as “selective serotonin reuptake inhibitors” or SSRIs. They are typically used to treat depression, but may also be effective in the treatment of Fibromyalgia. Percocet is a combination of acetaminophen and oxycodone (an opioid) that is used to treat moderate to severe pain.
9 (almost immediately after she began using Cymbalta) that
Cymbalta “helps a lot” is hardly the full story (and may
actually be somewhat misleading). Nevertheless, the ALJ gave
Dr. Fairly’s opinion “great weight.” Id. at 27. At the same
time, the ALJ gave the opinions of claimant’s treating
physician, Dr. Schmidt, “little weight.” Id. at 26.
Claimant asserts that was error and in support of the claim
that she is disabled, she points primarily to Dr. Schmidt’s
various opinions as expressed in her “Fibromyalgia Medical
Source Statement.” See Admin. Rec. at 423-28. In that
comprehensive assessment of claimant’s symptoms and associated
conditions, Dr. Schmidt stated:
1. She had been treating claimant for two years, and met with her, on average, every two or three months;
2. Claimant meets the 1990 American College of Rheumatology Preliminary Diagnostic Criteria for Fibromyalgia;
3. Claimant suffers from numerous symptoms associated with Fibromyalgia, including a history of widespread chronic pain, cognitive dysfunction, dizziness, insomnia, severe fatigue, and significantly reduced physical activity or mental function;
4. Claimant suffers from “constant, stabbing, aching pain, 6-8/10”;
5. Claimant experiences 16 of 18 tender points (with 11 of 18 typically being used to characterize Fibromyalgia);
10 6. Some of the pain-killing medications claimant takes include side effects that cause drowsiness/dizziness and, therefore, have implications for claimant’s ability to work; and, finally,
7. If claimant were placed in a competitive work situation, claimant’s functional limitations would likely cause her to “miss several days a week due to pain issues and [she] would need numerous breaks during the day.”
Those opinions are entirely consistent with the medical
record. Indeed, as the Commissioner acknowledges, “Treatment
notes from throughout the period at issue consistently document
diffuse fibromyalgia tender points, chronic pain, and persistent
fatigue.” Joint Statement of Material Facts (document no. 13)
at 2.
The ALJ discounted Dr. Schmidt’s opinion (giving it “little
weight”) on grounds that it “is conclusory in nature, fails to
give disabling limitations and is an assessment of the
claimant’s ability to engage in basic work-like activities,
which is an opinion reserved to the Commissioner.” Admin. Rec.
at 26. Additionally, the ALJ noted that, “contemporaneous
treatment notes clearly showed that the claimant’s pain is well
controlled with medication” and physical examinations “were
benign and do not support Dr. Schmidt’s findings.” Id. Those
findings, however, are not entirely accurate. For example,
11 claimant’s treatment notes do not “clearly show” that her pain
is well controlled. Indeed, as Dr. Schmidt observed in the
Fibromyalgia Medical Source Statement, claimant complained of
severe pain often, even when taking prescribed medications.
See, e.g., Admin. Rec. at 376-77, 380-81, 390, 392, 400. See
also Mental Health Evaluation Report - Adult, prepared by Dr.
Trina Jackson, Admin. Rec. at 366 (recounting claimant’s
reported activities of daily living and noting that she reported
having to stop housework frequently due to pain and lack of
stamina, suffers from poor sleep due to pain, and reports being
able to stand for only 20 minutes at a time). Perhaps of equal
importance is Dr. Jackson’s conclusion that claimant “appeared
to present herself in an honest and straightforward manner. She
did not appear to exaggerate or malinger her symptoms.” Id. at
365. Parenthetically, the court notes that the ALJ afforded Dr.
Jackson’s opinions “great weight” because “Dr. Jackson is a
medical source who examined the claimant and had an opportunity
to observe her, giving Dr. Jackson special knowledge of the
claimant and insight into the extent of her impairments and
ability to function.” Id. at 22.
In light of the foregoing, the court cannot conclude that
the ALJ’s stated reasons for discounting the medical opinions of
12 claimant’s treating source, Dr. Amber Schmidt, are supported by
substantial evidence. See generally Hunt v. Colvin, No. 16-CV-
159-LM, 2016 WL 7048698, at *10 (D.N.H. Dec. 5, 2016) (finding
that the ALJ improperly discounted opinions in Fibromyalgia
Medical Source Statement because those opinions were supported
by relevant medical evidence). See also Johnson v. Astrue, 597
F.3d 409, 414 (1st Cir. 2009) (“once the ALJ accepted the
diagnosis of fibromyalgia, she also had no choice but to
conclude that the claimant suffered from the symptoms usually
associated with such condition, unless there was substantial
evidence in the record to support a finding that claimant did
not endure a particular symptom or symptoms. The primary
symptom of fibromyalgia, of course, is chronic widespread pain,
and the Commissioner points to no instances in which any of
claimant’s physicians ever discredited her complaints of such
pain. Given this, we do not think that the ALJ’s decision to
discredit claimant was supported by substantial evidence.”)
(citations and internal punctuation omitted).
Conclusion
This case, like so many involving claimants who suffer from
Fibromyalgia, is a close and difficult one. As the Court of
Appeals for the Seventh Circuit has observed, Fibromyalgia is:
13 a common, but elusive and mysterious, disease, much like chronic fatigue syndrome, with which it shares a number of features. Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are ‘pain all over,’ fatigue, disturbed sleep, stiffness, and — the only symptom that discriminates between it and other diseases of a rheumatic character — multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch . . . There is no serious doubt that [claimant] is afflicted with the disease but it is difficult to determine the severity of her condition because of the unavailability of objective clinical tests. Some people may have such a severe case of fibromyalgia as to be totally disabled from working, but most do not and the question is whether [claimant] is one of the minority.
Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d
914, 916 (7th Cir. 2003) (quoting Sarchet v. Chater, 78 F.3d
305, 306–07 (7th Cir. 1996)). Here, too, the question is
whether claimant is a member of the minority of patients
diagnosed with Fibromyalgia who is also disabled by reason of
disease.
Having reviewed the medical evidence of record, as well as
the arguments advanced by the parties, the court concludes that,
on balance, remand is appropriate so the ALJ may, at a minimum,
more fully consider the extent to which claimant’s Fibromyalgia
14 is disabling. The ALJ might also consider whether it is
appropriate in this case to seek the advice of a consultative
examiner. See generally Titles II and XVI: Evaluation of
Fibromyalgia, SSR 12-p, 2012 WL 3104869 (July 25, 2012) (“We may
purchase a consultative examination (CE) at our expense to
determine if a person has a [medically determinable impairment]
of FM or is disabled when we need this information to adjudicate
the case.”). Finally, to the extent the ALJ remains persuaded
that the opinions of claimant’s treating physician are entitled
to little weight, he should more fully explain the bases for
that conclusion and identify the record evidence supportive of
such a decision.
For the foregoing reasons, as well as those set forth in
claimant’s memorandum, claimant’s motion to reverse the decision
of the Commissioner (document no. 8) is granted to the extent
she seeks a remand for further proceedings consistent with this
opinion. The Commissioner’s motion to affirm her decision
(document no. 12) is denied.
Pursuant to sentence four of 42 U.S.C. § 405(g), the
decision of the ALJ dated June 24, 2015, is vacated and this
matter is hereby remanded for further proceedings consistent
15 with this order. The Clerk of Court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
August 22, 2017
cc: Brenda M. Golden Hallisey, Esq. T. David Plourde, AUSA