United States District Court, D. New Hampshire
Shannon C. Smith
Andrew Saul, Commissioner, Social Security Administration
Michael L. Henry, Esq.
MEMORANDUM AND ORDER
J. BARBADORO, UNITED STATES DISTRICT JUDGE
Smith challenges the denial of her claims for Disability
Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) pursuant to 42 U.S.C.
§ 405(g). She contends that the Administrative Law Judge
(“ALJ”) erred by (1) failing to properly analyze
her mental impairments at step two and thereafter; (2)
failing to follow the Social Security Administration's
(“SSA”) Ruling on the Evaluation of Fibromyalgia,
SSR 12-2p, 2012 WL 3104869 (July 25, 2012); and (3)
improperly giving greater weight to non-examining state
agency consultants than to Smith's treating and examining
medical sources. The Commissioner, in turn, moves for an
order affirming the ALJ's decision. For the following
reasons, I grant Smith's motion and remand this matter to
the Commissioner for further proceedings consistent with this
is a forty-four-year-old woman who has previously worked as a
gas station attendant and cashier and currently works part
time at a Dunkin' Donuts. See Administrative Transcript
(“Tr.”) at 297, 305. She alleges that she has
been disabled since January 12, 2016, due to a combination of
fibromyalgia, Chiari malformation,  migraines, depression, and
anxiety. Tr. at 18-19.
filed claims for DIB and SSI on November 30, 2016. Tr. at
271. After an initial denial on March 16, 2017, Tr. at 121,
she testified at a hearing before ALJ Thomas Merrill on
November 13, 2017. Tr. at 39-80. The ALJ denied Smith's
applications, Tr. at 32, and the SSA Appeals Council denied
her request for review. Tr. at 1-3. As such, the ALJ's
decision constitutes the Commissioner's final decision,
which Smith now appeals.
section, I decline to recite a full history of Smith's
medical treatment, opting instead to focus on the treatment
records necessary to provide context in this case.
to Smith's alleged disability onset date, she was
diagnosed and/or treated by various providers for migraines,
e.g., Tr. at 389, 404, 416, 686; anxiety/panic disorder,
e.g., Tr. at 389, 416, 429, 436, 686, 687, 695, 703;
depression, e.g., Tr. at 389, 436, 686, 695; Chiari
malformation, Tr. at 389; and fibromyalgia, e.g., Tr. at 429;
as well as other ailments not claimed as a basis for her
disability, e.g., Tr. at 389, 397-98, 422.
the alleged onset date, Smith continued to seek treatment for
fibromyalgia, anxiety, and depression from her primary care
physician, Dr. Nanyee Keyes on February 24, 2016. Tr. at
441-42. That June, Smith discussed with a physician assistant
how her fibromyalgia interfered with her sleep, which in turn
exacerbated her fibromyalgia symptoms. Tr. at 446. Another
doctor, Dr. Mitchell Young, diagnosed Smith as having
fibromyalgia affecting her shoulder on September 24. Tr. at
474. Smith returned to Dr. Keyes on November 18, who noted 14
positive fibromyalgia tender points (out of a possible 18)
and scores of 15 and 14 on the depression and anxiety scales,
respectively. Tr. at 468, 479-80. That same day, in support
of Smith's application for DIB and SSI, Dr. Keyes
completed a physical medical source statement listing
diagnoses of fibromyalgia, depression, and anxiety. Tr. at
465-68. She also submitted a mental impairment
source statement, which noted diagnoses of anxiety and
depression. Tr. at 469-72. Dr. Keyes checked boxes for
thirty-four “signs and symptoms, ” Tr. at 470,
and for various functional limitations at varying levels of
severity, Tr. at 471. On January 11, 2017, Smith sought
treatment for fibromyalgia from a physician assistant, Tr. at
492, and again from Dr. Keyes on January 18, Tr. at 493. On
November 23, Smith saw Dr. Jing Ji about her headaches. Tr.
at 481-82. Dr. Ji found “no major concern”
regarding Chiari malformation, but noted that Smith could
have hemiplegic migraines. Tr. at 484. Dr. Ji saw Smith for a
follow-up three months later. Tr. at 506-07.
evaluated by Dr. David Kamen, a consultative psychologist, on
February 1. Tr. at 510-15. Dr. Kamen noted both positive and
negative aspects of Smith's functioning, including
several depression and anxiety symptoms that Smith presented
during the evaluation. Tr. at 510. Ultimately, he concluded
that he did “not believe that [Smith] is able to
sustain an ordinary routine and regular work attendance . . .
.” Tr. at 514.
also had a fibromyalgia evaluation conducted by Dr. Prachaya
Nitichaikulvatana on April 4, Tr. at 877, and spoke with Dr.
Sumathi Rajanna on June 2 following a panic attack and
self-harm incident at work, Tr. 884. She had an initial
evaluation at Greater Nashua Mental Health Center on July 18,
during which she reported symptoms “indicative of a
diagnosis of Major Depressive Disorder, moderate, recurrent
with anxious distress.” Tr. at 526. She was also given
a rule-out diagnosis of borderline ...