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Maynard v. Berryhill

United States District Court, D. New Hampshire

February 13, 2018

Kara Lea Maynard
Nancy A. Berryhill, Acting Commissioner, Social Security Administration



         Pursuant 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.

         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). 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)).

         II. Background

         Maynard 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;[1] congenital scoliosis;[2] recurrent migraines, including hemiplegic;[3] muscular spasms; hypothyroidism; myofascial etiology;[4] 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.

         The SSA 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") .[5] 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.[6] 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").[7] Tr. 679-684.

         The 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.[8] 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, [9] 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.

         In her 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, "[10] 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, [11] Amitriptyline, [12] and Celexa.[13] Tr. 795. Dr. Oteri concluded her letter with an opinion on Maynard's ability to work. Tr. 797-798.

         In June 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;[14] (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. Tr. 17-18.

         Maynard 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.

         On 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.

         After 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.[15] 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. Tr. 822.

         With 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.

         Ill. Discussion

         A. The Legal Framework

         To be 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.[16]

         To 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 granted.

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).

         The 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 experience.

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. 1982)).

         B. Maynard's Claims

         Maynard 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. ...

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