May v . SSA 06-CV-133-SM 01/25/07
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Linda May,
Claimant
v. Civil N o . 06-cv-133-SM
Opinion N o . 2007 DNH 011
Jo Anne B . Barnhart, Commissioner,
Social Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Linda May, moves
to reverse the Commissioner’s decision denying her application
for Social Security Disability Insurance Benefits under Title II
of the Social Security Act,
42 U.S.C. § 423 (the “Act”). Among
other things, she says the Administrative Law Judge failed to
afford appropriate weight to her treating physician’s opinion
that impairments will cause her to miss more than three days of
work each month. The Commissioner objects and moves for an order
affirming her decision.
Factual Background
I. Procedural History.
On November 2 1 , 2003, claimant filed an application for
disability insurance benefits under Title II of the Act, alleging
that she had been unable to work since October 1 , 2003. Her
application was denied and she requested a hearing before an
Administrative Law Judge (“ALJ”).
On August 9, 2005, claimant and her attorney appeared before
an ALJ, who considered the application de novo. On September 2 3 ,
2005, the ALJ issued his order, concluding that claimant retained
the ability to perform a range of light work and was, therefore,
capable of performing her past relevant work as an office clerk.
Accordingly, the ALJ concluded that claimant was not disabled, as
that term is defined in the Act, at any time prior to the date of
the ALJ’s decision.
Claimant then sought review of the ALJ’s decision by the
Appeals Council. On March 2 4 , 2006, the Appeals Council denied
her request, thereby rendering the ALJ’s decision a final
decision of the Commissioner, subject to judicial review.
Claimant then brought this suit, asserting that the ALJ’s
decision was not supported by substantial evidence and seeking a
judicial determination that she is disabled within the meaning of
the Act. She has filed a “Motion for Order Reversing Decision of
the Commissioner” (document n o . 1 3 ) . The Commissioner objects
2
and has filed a “Motion for Order Affirming the Decision of the
Commissioner” (document n o . 1 6 ) . Those motions are pending.
II. Stipulated Facts.
Pursuant to this court’s Local Rule 9.1(d), the parties have
submitted a statement of stipulated facts which, because it is
part of the court’s record (document n o . 1 7 ) , need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I. Properly Supported Findings by the ALJ are
Entitled to Deference.
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 of the Commissioner are
conclusive if supported by substantial evidence.1 See 42 U.S.C.
1
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison C o . v . NLRB, 305 U.S. 1 9 7 , 229
(1938). It is something less than the weight of the evidence,
and 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
3
§§ 405(g); Irlanda Ortiz v . Secretary of Health & Human Services,
955 F.2d 765, 769 (1st Cir. 1991). Moreover, provided the ALJ’s
findings are supported by substantial evidence, the court must
sustain those findings even when there may also be substantial
evidence supporting the adverse position. See Tsarelka v .
Secretary of Health & Human Services,
842 F.2d 529, 535 (1st Cir.
1988) (“[W]e must uphold the [Commissioner’s] conclusion, even if
the record arguably could justify a different conclusion, so long
as it is supported by substantial evidence.”). See also
Rodriguez v . Secretary of Health & Human Services,
647 F.2d 2 1 8 ,
222-23 (1st Cir. 1981).
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v . Secretary
of Health & Human Services, 747 F.2d 3 7 , 40 (1st Cir. 1984)
(citing Sitar v . Schweiker,
671 F.2d 1 9 , 22 (1st Cir. 1982)). It
is “the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner], not the courts.” Irlanda Ortiz,
955 F.2d at 769
(citation omitted). Accordingly, the court will give deference
Maritime Comm’n.,
383 U.S. 6 0 7 , 620 (1966).
4
to the ALJ’s credibility determinations, particularly where those
determinations are supported by specific findings. See
Frustaglia v . Secretary of Health & Human Services, 829 F.2d 1 9 2 ,
195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &
Human Services,
803 F.2d 2 4 , 26 (1st Cir. 1986)).
II. The Parties’ Respective Burdens.
An individual seeking Social Security disability 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 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). The Act places a heavy initial burden on the
claimant to establish the existence of a disabling impairment.
See Bowen v . Yuckert,
482 U.S. 1 3 7 , 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 that her
impairment prevents her from performing her former type of work.
See Gray v . Heckler,
760 F.2d 369, 371 (1st Cir. 1985) (citing
Goodermote v . Secretary of Health & Human Services,
690 F.2d 5 , 7
(1st Cir. 1982)). Nevertheless, the claimant is not required to
establish a doubt-free claim. The initial burden is satisfied by
5
the usual civil standard: a “preponderance of the evidence.” See
Paone v . Schweiker, 530 F. Supp. 8 0 8 , 810-11 (D. Mass. 1982).
Provided the claimant has shown 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. See Vazquez v . Secretary of Health & Human Services,
683 F.2d 1 , 2 (1st Cir. 1982). If the Commissioner shows the
existence of other jobs that the claimant can perform, then the
overall burden to demonstrate disability remains with the
claimant. See Hernandez v . Weinberger,
493 F.2d 1120, 1123 (1st
Cir. 1974); Benko v . Schweiker,
551 F. Supp. 6 9 8 , 701 (D.N.H.
1982).
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 1 9 , 23 (1st Cir. 1986);
Goodermote,
690 F.2d at 6. When determining whether a claimant
6
is disabled, the ALJ is also required to make the following five
inquiries:
(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 listed
impairment;
(4) whether the impairment prevents the claimant from
performing past relevant work; and
(5) whether the impairment prevents the claimant from
doing any other work.
20 C.F.R. § 404.1520. Ultimately, a claimant is disabled only if
her:
physical or mental impairment or impairments are of
such severity that [s]he 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 [s]he lives, or
whether a specific job vacancy exists for [her], or
whether [s]he would be hired if [s]he applied for work.
42 U.S.C. § 423(d)(2)(A).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm her
decision.
7
Discussion
I. 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. Accordingly, he first determined that she had not
been engaged in substantial gainful employment since October 1 ,
2003. Next, he concluded that she suffers from “fibromyalgia and
an adjustment disorder with depressed mood.” Administrative
Record (“Admin. Rec.”) at 2 2 . He also concluded that those
impairments are “severe,” as that term is used in the Act.
Id.
at 2 3 . Nevertheless, the ALJ determined that those impairments,
regardless of whether they were considered alone or in
combination, did not meet or medically equal one of the
impairments listed in Part 4 0 4 , Subpart P, Appendix 1 .
Id.
The ALJ next concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
a range of light work.2 He noted, however, that claimant’s RFC
2
“RFC is what an individual can still do despite his or her
functional limitations. RFC is an administrative assessment of
the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may
affect his or her capacity to do work-related physical and mental
8
was limited by the following non-exertional factors: “a mild
limitation in her ability to focus and/or to maintain
concentration due to pain” and a need to work in an environment
where “supervisory criticism is not confrontational.” Admin.
Rec. a t . 2 5 . Despite those limitations, however, the ALJ
concluded that claimant was capable of performing her past
relevant work as an office clerk. Id. at 2 8 . In light of those
findings, the ALJ concluded that “claimant has not been under a
‘disability,’ as defined in the Social Security Act, from October
I , 2003 through the date of [his] decision.”
Id. at 2 9 .
II. Fibromyalgia.
It is undisputed that claimant has been diagnosed as
suffering from fibromyalgia. See Admin. Rec. at 2 2 . According
to one basic source, “the term ‘fibromyalgia’ literally means
muscle fiber pain. FM is a chronic disorder that develops
gradually and is long-lasting, although it may be punctuated by
acutely painful episodes.” 6 Attorneys’ Textbook of Medicine,
activities. Ordinarily, RFC is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual’s
abilities on that basis.” Social Security Ruling (“SSR”), 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, 1996 WL 374184 at
*2 (July 2 , 1996) (citation omitted).
9
para. 25.00 (3d ed. 1999). That source goes on to describe the
condition as follows:
Patients with FM have had feelings of soreness, often
quite marked, all over their bodies for six months or
longer. Fibromyalgia is a type of chronic pain
syndrome affecting the soft tissues, which may, as
cause or effect, involve some sort of psychological
disorder or an abnormal response to stress. Typically
patients describe deep aching, throbbing, or a burning
feeling, and they may feel totally drained of energy.
Frequently pain is most severe at certain “tender
points” that tend to be the same in most patients. The
picture of FM often includes trouble sleeping deeply,
headaches, chest pains, dizziness, and symptoms of
“irritable bowel.” There tend to be periods of
especially severe pain alternating with times of little
or no discomfort. What FM does not d o , despite the
long-standing pain, is cause permanent tissue damage or
deformity.
Id., at para. 25.01. See also Aimee E . Bierman, Note, The
Medico-Legal Enigma of Fibromyalgia: Social Security Disability
Determinations and Subjective Complaints of Pain, 44 Wayne L .
Rev. 259, 259 (1998) (“Fibromyalgia is the most prevalent chronic
musculoskeletal pain syndrome. It is characterized by
widespread, diffuse muscle pain, an absence of structural or
inflammatory musculoskeletal abnormalities, decreased pain
thresholds, profound fatigue, and sleep disturbances. While it
is not fatal or progressively disabling, rheumatologists consider
it to be profoundly incapacitating in the most severe cases.”)
(footnotes omitted).
10
One of the problems posed in the context of an application
for Social Security disability benefits is that, as demonstrated
in this case, there are no recognized medical tests (i.e.,
objective evidence) that will definitively confirm a diagnosis of
fibromyalgia or establish the degree of disability caused by that
illness. At least one legal commentator, an Administrative Law
Judge with the Social Security Administration, has published an
article discussing this very issue:
Currently, no objective findings or lab test for
fibromyalgia are commonly accepted in the medical
community. Despite the results of several studies, it
seems that the research still has a way to go before
the medical community at large will accept one or more
laboratory or imaging tests as diagnostically
determinative.
The most widely accepted criteria for the diagnosis of
fibromyalgia are the American College of Rheumatology
(ACR) 1990 Criteria for the Classification of
Fibromyalgia. There are two criteria: a history of
widespread pain, as defined in the criteria, and pain
in 11 of 18 tender point sites when pressed or
“palpated” by a physician. The criteria state that for
a tender point to be considered “positive,” the patient
must say the palpation was painful.
Importantly, the “tender points” of the ACR criteria
are not objective signs. One of the authors of the
criteria has called the points a “notoriously
unreliable and manipulable exercise.”
Common sense alone dictates that if a physician touches
a person’s body and the person tells the physician that
it hurts, this is a subjective response by the patient.
Even a wince or a jerk in response to palpation can be
feigned.
11
Kevin F. Foley, Establishing Medically Determinable Impairments,
35 APR Trial 6 6 , 70 (April, 1999) (footnotes omitted).
Consequently, this case, like so many others involving
claimants diagnosed with fibromyalgia, turns largely upon an
assessment of the credibility of the claimant’s assertion that
she suffers from disabling pain, as well as a determination of
the weight properly to be ascribed to the opinions of her
treating physicians.
III. Evidence that Claimant will Often Miss Work.
Challenging the adverse disability determination, claimant
asserts that the ALJ failed to address “uncontroverted evidence
that [claimant] would be expected to miss more than three days
[of work] per month due to her medical condition.” Claimant’s
memorandum (document n o . 14) at 4 . Claimant is referring to the
Mental Impairment Questionnaire that was completed jointly by
Carin Torp, MALCMHC, and claimant’s primary care physician, Brian
Hauser, M.D. In his thorough written decision, the ALJ discusses
that report on several occasions and, where appropriate, explains
why he afforded less than controlling weight to some of the
opinions expressed in that report.
12
The ALJ does not, however, discuss the opinion shared by M s .
Torp and D r . Hauser that claimant’s impairments would likely
cause her to be absent from work “more than three times a month.”
Admin. Rec. at 226. To be sure, the ALJ does discuss D r .
Hauser’s view that, as of January 1 2 , 2004, claimant “does have
fibromyalgia but that is at this point not worsening and is
certainly not debilitating in my opinion.” Admin. Rec. at 2 7 .
See also Id. at 195. But, the ALJ does not discuss D r . Hauser’s
subsequent opinion, rendered approximately four and one-half
months later, that claimant’s impairments would likely cause her
to miss more than three days of work each month.
If D r . Hauser’s most recent opinion about the disabling
nature of claimant’s impairments is fully credited, it would
certainly suggest that claimant’s occupational base is severely
eroded. And, if that is the case, a vocational expert might be
necessary to determine if there are any jobs available in the
national workforce that claimant could perform.
Conclusion
In light of the ALJ’s failure to address the opinion of M s .
Torp and D r . Hauser that claimant’s impairments will cause her to
be absent from work more than three days each month, the most
13
prudent course is to remand this matter for further proceedings.
That will allow the ALJ to provide an explanation as to why he
(implicitly) discounted those opinions and, if necessary, obtain
the assistance of a vocational expert. It will also afford the
ALJ and the claimant an opportunity to obtain the functional
capacity evaluation that the ALJ references, see Admin. Rec. at
2 7 , but which was either not performed or was omitted from the
record.
For the foregoing reasons, claimant’s motion for order
reversing the decision of the Commissioner (document n o . 13) is
granted in part and denied in part. To the extent it seeks a
remand of this matter to the ALJ for further proceedings, it is
granted. In all other respects, it is denied. The
Commissioner’s motion for order affirming the decision of the
Commissioner (document n o . 16) is denied.
Pursuant to sentence four of 42 U.S.C. § 405(g), this matter
is hereby remanded to the ALJ for further proceedings consistent
with this order and, if the ALJ sees fit, the taking of
additional evidence and/or testimony. The Clerk of Court shall
enter judgment in accordance with this order and close the case.
14
SO ORDERED.
Steven J. McAuliffe
Chief Judge
January 2 5 , 2007
cc: David L. Broderick, Esq.
David F. Bander, Esq.
Roger D. Turgeon, Esq.
15
