United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
BARBADORO, UNITED STATES DISTRICT JUDGE.
to 42 U.S.C. § 405(g), Kara Maynard moves to reverse the
decision of the Acting Commissioner of the Social Security
Administration ("SSA") to deny her application for
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
Memorandum and Order.
Standard of Review
applicable standard of review in this case provides, in
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). Nevertheless, 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 Health & Human
Servs., 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 Health,
Educ. & Welfare, 612 F.2d 594, 597 (1st Cir. 1980)
(quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). However, "[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 Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted). 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 Health & Human Servs., 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 Health & Human Servs., 647 F.2d 218,
222 (1st Cir. 1981)).
was born in 1979. She last worked in April of 2006 in
customer service. In March 2010, she applied for disability
insurance benefits ("DIB"), and she identified the
following medical conditions as limiting her ability to work:
chronic dorsalgia; congenital scoliosis; recurrent
migraines, including hemiplegic; muscular spasms;
hypothyroidism; myofascial etiology; and extensive, incurable
back pain and debilitating migraines. Doc. 12 at 1. While
Maynard initially claimed to have become disabled on April 1,
2006, she has since amended her alleged onset date to
November 1, 2008. Id. at 1, 17.
initially denied Maynard's claim, but she appealed the
denial, and after a hearing before Administrative Law Judge
("ALJ") Edward Hoban, Maynard received a fully
favorable decision on her claim in December 2011.
Id. at 1. The SSA Appeals Council vacated ALJ
Hoban's decision, and remanded with instructions to refer
Maynard for a consultative examination ("CE")
Id. at 2. The SSA, in turn, sent Maynard to Dr.
William Windier, who performed a CE in December 2012.
Id. at 12; Administrative Transcript
("Tr.") 674. In his report on the examination he
administered, Dr. Windier documented Maynard's complaints
of whole-body pain, numbness, and tingling; migraine
headaches; light sensitivity; and depression. Tr. 674-675. He
also reported findings of diffuse tenderness: (1) over the
musculature of Maynard's neck; (2) over her abdomen; (3)
throughout her upper extremities; (4) over the paraspinous
muscles throughout her thoracolumbar spine; and (5)
throughout her lower extremities. Tr. 676. Dr. Windier
concluded his report: "She has diffuse aches and pains
and tender points in all four quadrants consistent with a
fibromyalgia." Tr. 676. In a separate document,
i.e., a Medical Source Statement of Ability to Do
Work-Related Activities (Physical), Dr. Windier gave his
opinions on Maynard's residual functional capacity
("RFC"). Tr. 679-684.
record also includes a June 2013 letter addressed "To
whom it may concern, " from Maynard's treating
physician, Concetta Oteri, D.O. Tr. 794. Maynard first saw
Dr. Oteri in September of 2008, complaining of cerumen
impaction. Tr. 403. In January of 2009, Maynard
presented to Dr. Oteri "with symptoms that she had for
quite a long time several years, " including headaches
with migraines, numbness, back pain, significant fatigue and
poor sleep quality. Tr. 401. Dr. Oteri gave assessments of
fatigue, paresthesia,  and back pain. Tr. 401. In addition, after
noting that Maynard had never had a "significant
workup" regarding fibromyalgia, Dr. Oteri ordered a
battery of diagnostic tests. Tr. 401.
June 2013 letter, Dr. Oteri listed a diagnosis of
fibromyalgia. Tr. 794. In support of that diagnosis, and
several others, Dr. Oteri reported the following symptoms:
stroke-like migraine episodes, cognitive and memory
impairment, hypersensitivity to hot and cold as well as
climatic change, muscle fatigability, swollen and tender
lymph nodes, movement disorder, chronic musculoskeletal pain,
chronic fatigue, sleep disturbance, persistent muscle
tenderness, irritable bowels including diarrhea and
constipation, non-cardiac chest pain, sporadic throat
soreness, recurring bursitis, balance and coordination
problems, recurring migraines, clinical depression,
neurological problems, anxiety and poor concentration.
Tr. 794. Dr. Oteri continued:
The diagnosis of Fibromyalgia is based on the following
clinical findings: We did screening laboratory tests to
exclude other medical conditions such as rheumatoid
arthritis, myositis, hypothyroidism, multiple sclerosis, and
lupus. Also, The American College of Rheumatology
["ACR"] (Wolfe, et al. Arthritis &
Rheumatism 33:160, 1990) has established general
classification guidelines for Fibromyalgia. These guidelines
require that widespread aching be present for at least 3
months and a minimum of 11 out of 18 tender points be met and
the patient meets both of these criteria including at least
16 of the 18 tender points on each examination.
Tr. 795. Furthermore, Dr. Oteri noted that
"[a]ntidepressant medications are the most frequently
used and best studied drugs for the treatment of ME/CFS and
Fibromyalgia, " and then then went on to describe a
largely unsuccessful course of antidepressant medications she
had prescribed for Maynard. Tr. 795. Dr. Oteri's
contemporaneous treatment notes from 2013, in turn, fully
document her statements that beginning in 2009, she gave
Maynard prescriptions for Cymbalta,  Amitriptyline,
and Celexa. Tr. 795. Dr. Oteri concluded her letter
with an opinion on Maynard's ability to work. Tr.
2013, Maynard received a second hearing before a different
ALJ, Thomas Merrill. Doc. 12 at 2. A month later, he denied
Maynard's claim. In his decision, the ALJ determined that
Maynard had the severe impairments of migraines and chronic
low back pain. Tr. 13. He also noted that Maynard had alleged
limitations due to fibromyalgia. While he did not determine
that her fibromyalgia was a severe impairment, he did
consider the effects of fibromyalgia when determining
Maynard's RFC. Tr. 13. With regard to the medical opinion
evidence, the ALJ gave: (1) significant weight to the opinion
of Dr. Arthur Brovender, an orthopedic surgeon, who examined
some of Maynard's medical records and testified, by
telephone, at her 2013 hearing; (2) significant weight to the
opinion of Dr. Hugh Fairley, a state-agency consultant who
examined some of Maynard's medical records and prepared
an assessment of her physical RFC in August of
2010; (3) limited weight to opinions rendered
by Dr. Oteri in 2010 and 2013; and (4) limited weight to the
opinions rendered by Dr. William Windier after his 2012 CE.
appealed. In an order dated October 7, 2015, Judge McCafferty
reversed the ALJ's decision on grounds that he had
improperly weighed the expert-opinion evidence. See
Maynard v. Colvin, 2015 DNH 192, at *12. Judge
McCafferty also noted, and the Acting Commissioner conceded,
that when evaluating Maynard's claim, "the ALJ did
not apply the relevant SSA guidelines for evaluating DIB
claims based upon fibromyalgia." Id. at 12.
Judge McCafferty went on to say that "[o]n remand, the
ALJ should apply Social Security Ruling ['SSR']
12-2p, 'Evaluation of Fibromyalgia, ' when
considering Maynard's claim." Id. After
Judge McCafferty issued her order, the SSA Appeals Council
issued an order "remand[ing] [Maynard's] case to an
[ALJ] for further proceedings consistent with the order of
the court." Tr. 907.
remand, Maynard obtained and submitted three more opinions
from Dr. Oteri. Tr. 838. Each opinion was dated June 1, 2016,
and each was submitted on a form that was captioned
"Physical Medical Source Statement, " and that had
a hand-written notation above the caption. One notation said:
"Please fill out as of Nov. 1, 2008." Tr. 1168.
Another notation said: "Please fill out as of Nov. 1,
2008 to current." Tr. 1178. And the third notation said:
"Please fill out as of current." Tr. 1173. At
Maynard's June 2016 hearing (her second before ALJ
Merrill and her third overall), a vocational expert testified
that a person with the limitations described in Dr.
Oteri's retrospective Medical Source Statement would be
unable to meet the demands of any job. Tr. 855-856.
Maynard's hearing, the ALJ issued a decision in which he
evaluated all the opinions he had considered in his 2013
decision, and gave them essentially the same weight he had
given them in 2013. In addition, the he gave "little
weight" to each of the three new opinions from Dr. Oteri
that Maynard submitted in anticipation of her 2016 hearing.
respect to fibromyalgia, the ALJ found "that the
evidence does not support a finding [that] fibromyalgia meets
the criteria to be considered as a medically determinable
impairment." Tr. 815. He then gave the following
assessment of Maynard's RFC:
After careful consideration of the entire record, I find
that, through the date last insured, the claimant had the
residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except she has the ability to stand and
walk for two hours each and sit for six hours in an eight
hour workday, with unlimited use of hands or feet to operate
controls and to push/pull. She is unable to crawl or climb
ladders, ropes and scaffolds, and she is able to occasionally
balance, stoop, kneel, crouch, and climb ramps and stairs.
She must avoid unprotected heights.
Tr. 817. On the basis of the foregoing RFC, the ALJ
determined, just as he had in his previous decision, that
Maynard was capable of performing her past relevant work as a
customer service representative. Tr. 825.
The Legal Framework
eligible for disability insurance benefits, a person must:
(1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be
under a disability. 42 U.S.C. §§ 423(a)(1)(A)-(E).
The only question in this case is whether the ALJ correctly
determined that Maynard "was not under a disability, as
defined in the Social Security Act, at any time from April 1,
2006, the alleged onset date, through December 31, 2010, the
date last insured, " Tr. 825.
decide whether a claimant is disabled for the purpose of
determining eligibility for DIB, an ALJ is required to employ
a five-step process. See 20 C.F.R. § 404.1520.
The steps are: 1) if the [claimant] is engaged in substantial
gainful work activity, the application is denied; 2) if the
[claimant] does not have, or has not had within the relevant
time period, a severe impairment or combination of
impairments, the application is denied; 3) if the impairment
meets the conditions for one of the "listed"
impairments in the Social Security regulations, then the
application is granted; 4) if the [claimant's]
"residual functional capacity" is such that he or
she can still perform past relevant work, then the
application is denied; 5) if the [claimant], given his or her
residual functional capacity, education, work experience, and
age, is unable to do any other work, the application is
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001)
(citing 20 C.F.R. § 416.920, which outlines the
five-step process for Supplemental Security Income, which is
the same as the one prescribed in 20 C.F.R. § 404.1520).
claimant bears the burden of proving that she is disabled.
See Bowen v. Yuckert, 482 U.S. 137, 146 (1987) . She
must do so by a preponderance of the evidence. See
Mandziej v. Chater, 944 F.Supp. 121, 129 (D.N.H. 1996)
(citing Paone v. Schweiker, 530 F.Supp. 808, 810-11
(D. Mass. 1982)). Finally,
[i]n assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including: (1)
objective medical facts; (2) [claimant's] subjective
claims of pain and disability as supported by the testimony
of the claimant or other witness; and (3) the
[claimant]'s educational background, age, and work
Mandziej, 944 F.Supp. at 129 (citing Avery v.
Sec'y of Health & Human Servs., 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec'y of
Health & Human Servs., 690 F.2d 5, 6 (1st Cir.
claims that the ALJ erred by: (1) determining that her
fibromyalgia was not a medically determinable impairment
("MDI"); (2) improperly weighing the expert-opinion
evidence; and (3) improperly weighing the "other
source" evidence. ...