UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Gloria Gean Fischer
v. Civil No. 13-cv-463-PB
Opinion No. 2017 DNH 119
US Social Security Administration,
Acting Commissioner, Nancy A. Berryhill
MEMORANDUM AND ORDER
Gloria Gean Fischer is a fifty-nine-year-old woman who
previously operated her own business. Earlier in this
proceeding, Fischer challenged the Social Security
Administration’s denial of her claim for disability insurance
benefits (“DIB”). After I reversed the denial, the Acting
Commissioner sought review of my order by the First Circuit
Court of Appeals. The First Circuit vacated my order and
remanded for consideration of Fischer’s remaining claims.
I. BACKGROUND
A. Underlying Facts
In accordance with Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts (Doc. No. 19).
Because that joint statement is part of the court’s record, I do
not recount it here. Instead, I discuss facts relevant to the
disposition of this matter as necessary below.
B. Procedural Posture
Fischer protectively applied for DIB on February 28, 2012,
alleging disability as of October 31, 1995. An administrative
law judge (“ALJ”) subsequently held a hearing in May 2013 at
which Fischer, represented by counsel, and a vocational expert
testified. Shortly thereafter, the ALJ produced a written
decision denying Fischer’s application. The Appeals Council
declined review, making the ALJ’s decision the Acting
Commissioner’s final decision.
In his decision, the ALJ laid out the five-step, sequential
analysis prescribed by 20 C.F.R. § 416.920(a). Given the ALJ’s
conclusion, however, he did not proceed past step two. At step
one, the ALJ determined that it was unnecessary to ascertain
whether Fischer’s income constituted substantial gainful
employment. At step two, the ALJ found that Fischer had a
medically determinable impairment — sciatica — but did not have
a severe impairment or combination of impairments as of March
31, 1998, her date last insured (“DLI”). Accordingly, Fischer
was not disabled prior to that date.
In an order dated October 30, 2014, I reviewed the ALJ’s
decision and remanded to correct a legal error. I ruled that
the ALJ failed to consult a medical expert when deciding that
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Fischer was not disabled prior to her DLI, as is generally
required by SSR 83-20. See SSR 83-20, 1983 WL 31249, at *3
(Jan. 1, 1983). And although an ALJ need not consult a medical
expert where the record unambiguously shows that the claimant
was not disabled as of her DLI, see, e.g., May v. Soc. Sec.
Admin. Com’r,
125 F.3d 841 (1st Cir. 1997) (unpublished) (per
curiam), I concluded that the record was ambiguous.
On appeal, the First Circuit reached the contrary
conclusion. Focusing on an MRI of Fischer’s cervical spine and
x-rays of her pelvis and left hip — all of which were taken
around the time of her DLI and all of which were normal — the
First Circuit held that the medical evidence unambiguously
demonstrated that Fischer had not become disabled prior to her
DLI. See Fischer v. Colvin, 831 F.3d 31, 35–36 (1st Cir. 2016).
Accordingly, even if SSR 83-20 applied, the ALJ did not need to
consult a medical expert.
Id. at 39. The First Circuit
instructed me to consider Fischer’s remaining claims. See
id.
at 39 & n.10.
II. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), I have the authority to
review the administrative record and the pleadings submitted by
the parties, and to enter judgment affirming, modifying, or
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reversing the final decision of the Commissioner. That review
is limited, however, “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). I defer to the ALJ’s findings of
fact, so long as those findings are supported by substantial
evidence.
Id. Substantial evidence 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 218, 222 (1st Cir. 1981)).
If the substantial evidence standard is met, the ALJ’s
factual findings are conclusive, even where the record “arguably
could support a different conclusion.” Id. at 770. Findings
are not conclusive, however, if the ALJ derived his findings by
“ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999) (per curiam). The ALJ is responsible for determining
issues of credibility and for drawing inferences from evidence
in the record. Irlanda Ortiz,
955 F.2d at 769. It is the role
of the ALJ, not the court, to resolve conflicts in the evidence.
Id.
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III. ANALYSIS
On remand, Fischer presses two arguments. First, she
argues that the ALJ failed to consider and properly evaluate her
diagnosis of chronic pain syndrome. Second, she argues that the
ALJ erred in analyzing her credibility and other evidence in the
record.
A. Are Fischer’s Arguments Foreclosed by the First Circuit’s
Decision?
Fischer maintains that the First Circuit’s decision does
not foreclose her arguments. According to Fischer, the First
Circuit merely held that the record did not require the ALJ to
consult a medical expert under SSR 83-20. See Doc. No. 20 at 2–
3. Any finding concerning ambiguity was limited to the context
of SSR 83-20; it would not implicate arguments made outside of
that context. See id. In addition, the First Circuit’s
decision to remand the case for consideration of Fischer’s
remaining claims necessarily implies that there are live claims
to consider. See
id.
I disagree. The First Circuit’s decision precludes
Fischer’s arguments. Subject to narrow exceptions, parties may
not relitigate, and a lower court may not reconsider, “matters
that were explicitly or implicitly decided by an earlier
appellate decision in the same case.” Negrón-Almeda v.
Santiago, 579 F.3d 45, 50–52 (1st Cir. 2009) (quoting United
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States v. Moran, 393 F.3d 1, 7 (1st Cir.2004)). Here, Fischer
focuses on the First Circuit’s ultimate conclusion that SSR 83-
20 would not require consulting a medical expert. But in
reaching its conclusion, the First Circuit held that medical
evidence unambiguously demonstrated that Fischer was not
disabled prior to her DLI. See Fischer,
831 F.3d at 36 (noting
that “precise medical evidence eliminated the need for the ALJ
to infer that Fischer's onset date preceded her DLI” and that
“the contemporaneous medical evidence was specific and
unequivocal”). That predicate holding, as a “matter[] . . .
decided by an earlier appellate decision” in this case, is
binding on me. See Negrón-Almeda,
579 F.3d at 50 (citation
omitted).
The First Circuit’s predicate holding renders harmless the
errors Fischer alleges. As outlined above, Fischer primarily
claims the ALJ committed two legal errors. To reverse an ALJ’s
decision, however, his or her errors should be harmful. See
Ward, 211 F.3d at 656 (“While an error of law by the ALJ may
necessitate a remand, a remand is not essential if it will
amount to no more than an empty exercise.” (citation omitted)).
Supposing the ALJ erred in evaluating Fischer’s chronic pain
syndrome and credibility, it would still be the case that the
medical evidence unambiguously shows that Fischer was not
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disabled prior to her DLI.1 A claimant cannot collect DIB in
that circumstance. See Fischer, 831 F.3d at 32. Thus, the
First Circuit’s decision forecloses Fischer’s remaining claims.2
B. Fischer’s Primary Arguments Fail on Alternative Grounds
Assuming that the First Circuit’s decision does not
foreclose Fischer’s primary arguments, I would still find no
reversible error.
1. Chronic Pain Syndrome
Fischer argues that the ALJ failed to consider her
diagnosis of chronic pain syndrome and evaluate it under the
standards set forth in SSR 03-2p, which provides rules for
evaluating claims of reflex sympathetic dystrophy syndrome, also
known as complex regional pain syndrome. See Doc. No. 20 at 4–
5; SSR 03-2p, 2003 WL 22399117, at *1 (October 20, 2003).
Fischer recognizes that her chronic pain syndrome was not
diagnosed until 2012, but contends that records from 2012 show
1 If a proper evaluation of the record could reasonably show that
Fischer was disabled prior to her DLI, then the record would be
ambiguous as to onset date. That possibility is foreclosed by
the First Circuit’s decision.
2 The First Circuit’s instruction to consider Fischer’s remaining
claims does not entail that the claims are unaffected by the
decision, as Fischer insists. Indeed, the First Circuit made
clear that it remanded Fischer’s claims not because of their
viability in light of its decision, but because I did not
initially address the claims and the parties did not argue them
on appeal or ask for their resolution. See Fischer,
831 F.3d at
39 n.10.
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that symptoms of chronic pain syndrome started in 1996, two
years prior to her DLI. See Doc. No. 20 at 4.
Fischer’s argument fails for a number of reasons. To
start, SSR 03-2p applies to complex regional pain syndrome
(“CRPS”), not chronic pain syndrome (“CPS”) simpliciter. See
SSR 03-2p, 2003 WL 22399117, at *1. CRPS is a type of CPS; it
is not synonymous with the condition. See
id. Because Fischer
has not pointed to any diagnosis of CRPS, as opposed to CPS, she
has not shown that SSR 03-2p actually applies. See Doc. No. 20
at 4–5.
Even if SSR 03-2p applied, Fischer has not shown that her
condition meets the diagnostic requirements set out in the
ruling. As a general matter, establishing a medically
determinable impairment requires evidence from acceptable
medical sources, such as physicians and psychologists. 20
C.F.R. § 404.1513(a) (2013) (since amended). More particularly,
the Social Security Administration recognizes CRPS in instances
of “persistent complaints of pain that are typically out of
proportion to the severity of any documented precipitant,”
coupled with one of the following signs in the affected region:
(1) swelling; (2) autonomic instability (e.g., “changes in skin
color or texture”); (3) abnormal hair or nail growth; (4)
osteoporosis; or (5) involuntary movement. See SSR 03-2p, 2003
8
WL 22399117, at *4. In her brief, Fischer does not point to any
evidence of the additional signs of CRPS. See Doc. No. 20 at 4–
5; Doc. No. 8-1 at 3–6. My review of the record reveals no
evidence from acceptable medical sources of relevant signs
reasonably tied to the affected region — the left side of
Fischer’s body. I find no reversible error.3
2. Credibility Determination
Fischer last argues that the ALJ failed to assess her
credibility after finding that her impairment could reasonably
cause her symptoms, as required by SSR 96-7p. See Doc. No. 20
at 5–6; see generally SSR 96-7p, 1996 WL 374186 (July 2, 1996)
(superseded 2016). Anticipating a counterargument, Fischer
further contends that, to the extent the ALJ made a credibility
assessment, it was based solely on the objective medical
evidence. See Doc. No. 20 at 6. Such an assessment would
contravene SSR 96-7p. See
id. Fischer adds that the ALJ did
not properly consider or evaluate medical evidence postdating
her DLI. See
id. at 5–6.
I conclude that Fischer did not develop her credibility
argument prior to remand. A party must “spell out its arguments
3 To the extent Fischer argues that the ALJ failed to consider or
evaluate evidence of CPS, as distinct from failing to properly
apply SSR 03-2p, that argument is foreclosed by the First
Circuit’s opinion, as explained above.
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squarely and distinctly,” otherwise those arguments are deemed
waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (quoting Rivera-Gomez v. de Castro,
843 F.2d 631, 635 (1st
Cir. 1988)). Furthermore, I decline to consider arguments
Fischer first developed on remand despite having adequate
opportunity and incentive to develop them earlier. Cf. United
States v. Casey,
825 F.3d 1, 12 (1st Cir. 2016) (“[A]rguments
raised for the first time in an appellate reply brief [are]
ordinarily deemed waived . . . .”); United States v.
Ticchiarelli,
171 F.3d 24, 32 (1st Cir. 1999) (in criminal
context, a defendant may not raise a new argument on remand for
resentencing if he or she had reason to raise it initially).
In this instance, Fischer did not cite SSR 96-7p in her
initial brief, nor did she cite other regulations relevant to
credibility determinations. See Doc. No. 8-1 at 3–6. Moreover,
her brief did not contain the substance of her 96-7p arguments:
it made no mention of the ALJ failing to make a credibility
determination or erroneously relying solely on objective medical
evidence. See id. To be sure, Fischer argued that medical
evidence and her testimony demonstrated the severity of her
impairment prior to her DLI, and that certain medical evidence
was consistent with her testimony. See
id. at 4–5. Yet she
described her testimony simply as “undisputed, credible and
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acknowledged in the [decision].” Id. at 4. Because Fischer
failed to “squarely and distinctly” develop her credibility
arguments initially, she cannot develop them on remand.4
IV. CONCLUSION
For the foregoing reasons, I grant the Acting
Commissioner’s motion to affirm (Doc. No. 9) and deny Fischer’s
motion to reverse (Doc. No. 8). The clerk is directed to enter
judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
June 26, 2017
cc: Christine Woodman Casa, Esq.
T. David Plourde, Esq.
4 To the extent that Fischer maintains that the ALJ ignored or
improperly evaluated medical evidence or her testimony more
generally, that argument is foreclosed by the First Circuit’s
decision, as explained above.
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