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Cross v. Colvin

United States District Court, D. New Hampshire

April 4, 2016

Linda Cross,
Carolyn W. Colvin, Acting Commissioner, Social Security Administration.


ANDREA K. JOHNSTONE, Magistrate Judge.

Pursuant to 42 U.S.C. § 405(g), Linda Cross moves to reverse the Acting Commissioner's decision to deny her application for Social Security disability insurance benefits, or DIB, 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 should be remanded to the Acting Commissioner for further proceedings consistent with this Report and Recommendation.

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 (doc. no. 13), which is part of the court's record and will be summarized here rather than repeated in full.

Cross has been diagnosed with a variety of mental and physical conditions including fibromyalgia, degenerative disc disease, and degenerative joint disease of the knees. She has received various forms of treatment for those conditions, including medication, injections, physical therapy, and surgery.

In October of 2010, Cross began seeing a rheumatologist, Dr. John Gorman, for treatment of fibromyalgia. The record includes 13 office notes authored by Dr. Gorman, [1] plus several reports on laboratory tests that he had ordered. When Cross began treating with Dr. Gorman, she was working. She continued to work until April 2011.

In a March 2012 office note, resulting from a follow-up visit for treatment of Cross's fibromyalgia, Dr. Gorman wrote:

She tried Cymbalta at 30 mg daily, pain increased. She went back to 60 mg daily and feels better. Fibromyalgia is well controlled except for daytime fatigue. Also hands are still achy and stiff.
Minimal exercise lately. Still can't work - feet sore if she stands long, unacceptable stiffness in legs if she sits long.

Administrative Transcript (hereinafter "Tr.") 332. In that same note, under the heading "Impression & Recommendations, " Dr. Gorman wrote, with respect to Cross's fibromyalgia: "Doing fairly well on Cymbalta, probably would worsen if she went back to work." Tr. 333. A week or so after Dr. Gorman wrote that note, Cross filed her application for DIB. In what appears to be the most recent office note by Dr. Gorman, which documents a visit on July 29, 2013, Dr. Gorman wrote: "Fibromyalgia is doing well, except that her energy is still low. Was able to get off Avinza about 2 months ago. Myalgias well controlled on Cymbalta 30 mg daily - decreased from 60." Tr. 557. Under the heading "Impression & Recommendations" he wrote: "Overall doing well. Low back pain and Achilles tendinitis resolved." Tr. 558.

In October 2012, Dr. Hugh Fairley, a state agency consultant who did not examine Cross, performed an assessment of her residual functional capacity ("RFC"), [2] based upon a review of her medical records. The Disability Determination Explanation form that reports Dr. Fairley's RFC assessment lists diagnoses of fibromyalgia, osteoarthrosis and allied disorders, and degenerative disc disease. In his assessment, Dr. Fairley opined that Cross could lift and/or carry 10 pounds both occasionally and frequently, could stand and/or walk, with normal breaks, for two hours in an eight-hour workday, and could sit, with normal breaks, for about six hours in an eight-hour workday. Dr. Fairley also opined that Cross could occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl, but could never climb ladders/ropes/scaffolds.

In February 2013, another non-examining consultant, Dr. Harold Ramsey, completed a Physical RFC Assessment on Cross. He began by noting primary diagnoses of degenerative disc disease of the lumbar spine and knees, and fibromyalgia. He opined that Cross could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk, with normal breaks, for four hours in an eight-hour workday; and sit, with normal breaks, for about six hours in an eight-hour workday. Dr. Ramsey identified the same postural limitations that Dr. Fairley identified.

Also in February 2013, Dr. Gorman filled out an Arthritis Impairment Questionnaire on Cross. After identifying relevant diagnoses of fibromyalgia and chronic low back pain, Dr. Gorman opined that Cross could: (1) lift up to five pounds frequently and up to 10 pounds occasionally, but could never lift more than ten pounds; and (2) carry up to five pounds occasionally but never carry more than that. He further opined that during an eight-hour workday, Cross could sit for less than one hour, and could stand/walk for about an hour. He also opined that it was necessary or medically recommended that Cross neither sit continuously nor stand/walk continuously in a work setting. Finally, Dr. Gorman opined that Cross: (1) needed to get up and move around every hour or so; (2) could return to a seated position in about three hours; (3) frequently experienced pain, fatigue, or other symptoms that were severe enough to interfere with her attention and concentration; (4) needed to take unscheduled breaks of at least 30 minutes every one or two hours to rest or relieve pain; and (5) was likely to miss work more than three times a month as a result of her impairments or treatment for them.

In March 2013, Cross's primary care provider of nine years, Dr. Carl Ciak, wrote a letter, addressed "to whom it may concern, " that notes her diagnosis of fibromyalgia and describes the treatment Cross had received for back and leg pain. He also offered the following opinion:

Because of her ongoing symptoms she has been unable to work. Due to the pain she is not able to do any work that would require significant physical labor. In addition, she has difficulty in sitting or standing for any prolonged periods of time. Because this is a chronic condition I would anticipate that her symptoms will be ongoing and certainly exceed 12 months.

Tr. 546. In a letter dated May 16, 2013, addressed to Cross's counsel, Dr. Peter Noordsij, an orthopedist who had treated Cross for degenerative arthritis in her knees, opined that Cross was not "capable of full time standing and/or competitive work." Tr. 548.

In October 2013, Dr. Gorman wrote a letter, addressed "to whom it may concern, " that includes the following opinions on her RFC:

[T]hroughout the course of an eight hour work day, I believe that Ms. Cross would be limited to sitting less than one hour and standing/walking up to one hour total. Further, she would be required to take unscheduled breaks to rest or relive pain every one to two ...

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