United States District Court, D. New Hampshire
Janine Gawryl, Esq.
Robert J. Rabuck, Esq.
LANDYA MCCAFFERTY UNITED STATES DISTRICT JUDGE
Pursuant to 42 U.S.C. § 405(g), Kara Maynard moves to reverse the Acting Commissioner’s decision to deny her application for Social Security disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter is remanded to the Acting Commissioner for further proceedings consistent with this order.
I. Standard of Review
The applicable standard of review in this case provides, in pertinent part:
The [district] court shall have power 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. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .
42 U.S.C. § 405(g). However, the court “must uphold a denial of social security disability benefits unless ‘the [Acting Commissioner] has committed a legal or factual error in evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting Commissioner’s findings of fact be supported by substantial evidence, “[t]he substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts.” Alexandrou v. Sullivan, 764 F.Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial evidence is ‘more than [a] mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Currier v. Sec’y of HEW, 612 F.2d 594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the [Acting 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 [Acting Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations omitted). Moreover, the court “must uphold the [Acting Commissioner’s] conclusion, even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence.” Tsarelka v. Sec’y of HHS, 842 F.2d 529, 535 (1st Cir. 1988) (per curiam). Finally, when determining whether a decision of the Acting Commissioner is supported by substantial evidence, the court must “review the evidence in the record as a whole.” Irlanda Ortiz, 955 F.2d at 769 (quoting Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
The parties have submitted a Joint Statement of Material Facts, document no. 15. That statement is part of the court’s record and will be summarized here, rather than repeated in full.
Maynard has worked as a restaurant manager, retail manager, and most recently, as a customer service representative. She was last insured for Social Security disability insurance benefits, or DIB, on December 31, 2010.
Since 2007, Maynard has received the following diagnoses: back pain, chronic low back pain, chronic low back pain of probable myofascial etiology, low back pain with left lower extremity radiculopathy and weakness, fatigue, paresthesia, hypothyroidism, hypothyroidism with severe fatigue, autoimmune hypothyroidism, Hashimoto thyroiditis, Vitamin D deficiency, atypical migraine with neurological symptoms, acute sinusitis, empty sella syndrome, and depression. She has also been diagnosed with fibromyalgia. Fibromyalgia is “[a] common syndrome of chronic widespread soft-tissue pain accompanied by weakness, fatigue, and sleep disturbances; the cause is unknown.” Stedman’s Medical Dictionary 725 (28th ed. 2006). Fibromyalgia is usually associated with paresthesia, and “frequently occurs in conjunction with migraine headaches.” Id. Maynard’s medical treatment has included physical therapy, chiropractic, orthotics, massage, acupuncture, and a variety of medications, including narcotic pain medication.
In November of 2009, Maynard began treating with Dr. Concetta Oteri-Ahmadpour. By the time Maynard began seeing Dr. Oteri, she was already taking two Vicodin every four hours for her low back pain, and was getting no relief. In February of 2010, Dr. Oteri noted that Maynard had “tried amitriptyline and Cymbalta without any relief whatsoever, ” and that she needed “to be on chronic narcotics in order to have enough relief to perform her activities of daily living and take care of her children.” Administrative Transcript (hereinafter “Tr.”) 374.
In March of 2010, Maynard filed an application for DIB, alleging an onset date of April 1, 2006. Her claim was initially denied, but after a hearing before an Administrative Law Judge (“ALJ”), she was awarded benefits.
In brief, ALJ Edward Hoban found that Maynard: (1) suffered from four severe impairments: headaches, obesity, a back disorder, and fibromyalgia; and (2) had the residual functional capacity (“RFC”) to perform sedentary work, “except [that] she [was] unable to maintain a schedule on a regular and continuing basis due to her need to rest at will secondary to pain and fatigue.” Tr. 89. Based upon the RFC he ascribed to Maynard and the testimony of a vocational expert (“VE”), the ALJ determined that Maynard was disabled because her physical impairments precluded her from performing any jobs that were available in the national economy.
In reaching his decision, the ALJ relied upon an opinion from Dr. Oteri. As the ALJ said in his decision:
Dr. Oteri-Ahmadpour opines that the claimant is not capable of working due to the very limited range of motion of her back and [her] need of chronic narcotics for pain. While the issue of “disability” under the [Social Security] Act is reserved to the Commissioner, I find Dr. Oteri-Ahmadpour’s opinion to be evidence of her assessment of the severity of the claimant’s symptoms and resultant functional limitations (Social Security Ruling 96-5p). Accordingly, her opinion is given weight.
Tr. 89 (citation to the record omitted). On the other hand, the ALJ discounted an opinion from a nonexamining medical source: “The State agency medical consultant’s physical assessment is given little weight because evidence received at the hearing level shows that the claimant is more limited than determined by the State agency consultant.” Tr. 90.
In the opinion the ALJ discounted, which was prepared in August of 2010, Dr. Hugh Fairly opined, among other things, that Maynard could stand and/or walk (with normal breaks) for about six hours in an eight-hour workday and could also sit (with normal breaks) for about six hours in an eight-hour workday. In the section of the RFC assessment form devoted to Maynard’s abilities to sit, stand, and walk, where he was asked to “[e]xplain how and why the evidence support[ed] [his] conclusions” and to “[c]ite the specific facts upon which [his] conclusions [were] based, ” Dr. Fairley did not write anything. Tr. 476.
After ALJ Hoban issued a decision favorable to Maynard, the Social Security Appeals Council decided on its own to review that decision, vacated it, and remanded for further proceedings. In its remand order, the Appeals Council took issue with ALJ Hoban’s findings on Maynard’s severe impairments, noting in particular: “There is no diagnosis or evidence from a treating, examining, or non-examining acceptable medical source to support the decision’s finding of fibromyalgia.” Tr. 93. Then, the Appeals Council directed the ALJ to do four different things, including these three: (1) obtain “a physical consultative examination with a functional capacity assessment . . . and available medical source statements about what the claimant can still do despite [her] impairments, ” Tr. 95; (2) “obtain [if necessary] evidence from a medical expert to clarify the nature and severity of the claimant’s impairment, ” id.; and (3) “[f]urther consider the claimant’s ability to perform [her] past relevant work, ” id.
On remand, the Social Security Administration (“SSA”) obtained a consultative examination from Dr. William Windler. Based upon his examination in December of 2012, Dr. Windler reached the following conclusions:
Ms. Maynard is a 33-year-old female who has a history of migraine headaches occurring most days and causing her generally to retreat to bed. She has Hashimoto’s thyroiditis and in her chart there are entries indicating elevated thyroid paroxetine antibody levels. She takes thyroid supplementation. She has very minimal thoracolumbar scoliosis. She had diffuse aches and pains and tender points in all four quadrants consistent with a fibromyalgia. She has a history of some depression.
Tr. 676. Dr. Windler also completed a Medical Source Statement of Ability to do Work-Related Activities (Physical). In it, he opined that Maynard could sit for about 30 minutes at a time and stand or walk for about 15 minutes at a time. He also opined that she could sit, stand, and walk for a total of one hour each during the course of an eight-hour workday, and indicated that she would need to spend the remainder of an eight-hour work day reclining, lying down, or soaking in a warm tub.
In the space where he was asked to indicate the medical or clinical findings supporting his opinions about Maynard’s ability to sit, stand, and walk, Dr. Windler wrote nothing. However, in response to similar questions asked throughout the form with regard to other physical abilities, Dr. Windler gave the following responses:
• history mostly, physical exam findings of diffuse tender points (lifting and carrying)
• history mostly, diffuse tender points (use of hands)
• history, diffuse tender points, tender knees with patellar manipulation, low back pain with hip R.O.M. (use of feet)
• history, physical exam, tender patella, ↓ L.S. spine R.O.M./tenderness, ↓ squatting via exam (postural limitations)
• history, exam findings of diffuse tender points, ↓ L.S. spine flexion & tenderness to palpation diffusely ...