United States District Court, D. Maine
JOHN GRIVOIS, Plaintiff.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION 
JOHN H. RICH, III, Magistrate Judge.
This Social Security Disability ("SSD") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the administrative law judge failed to properly analyze his fibromyalgia and cognitive impairments, reached a residual functional capacity ("RFC") determination unsupported by the medical opinion evidence, and neglected to make a function-by-function assessment of RFC, particularly with respect to a sit/stand option that he assessed. See Plaintiff's Itemized Statement of Errors ("Statement of Errors") (ECF No. 13) at 4-12. I find no reversible error and, accordingly, affirm the commissioner's decision.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2010, Finding 1, Record at 12; that, through his date last insured, he had severe impairments of degenerative disc disease, fibromyalgia, bilateral carpal tunnel syndrome ("CTS"), depression, anxiety, and a learning disability, Finding 3, id.; that, through his date last insured, he had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) except that he needed a sit/stand option, could perform occasional climbing, balancing, stooping, kneeling, crouching, and crawling except that he needed to avoid all ladders, ropes, and scaffolds, could perform occasional bilateral overhead reaching, could perform frequent bilateral grasping and handling, could perform simple unskilled work, and was able to maintain attention and concentration for two-hour increments throughout an eight-hour workday, Finding 5, id. at 18; that, through his date last insured, considering his age (47 years old, defined as a younger individual, as of his date last insured, December 31, 2010), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 21; and that he, therefore, had not been disabled from July 24, 2008, his alleged onset date of disability, through December 31, 2010, his date last insured, Finding 11, id. at 22. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The administrative law judge deemed the plaintiff's subjective allegations, including those of pain and restrictions stemming from fibromyalgia, not fully credible, stating:
The objective medical evidence of record does not show musculoskeletal, neurological or other signs which would explain the nature and intensity of his alleged functional limitations. [His] alleged side-effects of medications of drowsiness and dizziness are not shown to have significantly limited his ability to perform one or more basic work activities for a consecutive period of 12 or more months and not shown to be true side-effects given his inability to discern if his fibromyalgia pain is his lower back pain or vice versa.
Record at 20-21 (citation omitted).
Earlier in the decision, the administrative law judge also stated:
1. "[D]espite the [plaintiff's] subjective complaints his musculoskeletal, neurological and extremity testings are all within normal limits, with only some reduced range of motion and tenderness." Id. at 13.
2. In April 2009, John W. Hall, M.D., diagnosed the plaintiff with fibromyalgia; however, "Dr. Hall's examination was not a traditional examination for fibromyalgia, which notes what number of tender points there are." Id. at 13-14; see also id. at 560. "He did find tenderness in several areas, which does support his diagnosis." Id. at 14.
3. The plaintiff's fibromyalgia did not meet the criteria of Listing 14.09, pertaining to inflammatory arthritis, for lack of objective medical evidence demonstrating the criteria of the listing. See id. at 16.
4. Agency examining consultant Stacie Kunas, FNP-C, stated that "sitting, standing or walking for prolonged periods of time were possibly limited because of the [plaintiff's] subjective complaints of pain." Id. at 19. "Pain, however, is not an impairment or a functional limitation but a symptom." Id. "Further, she suggested he increase exercise to encourage joint mobility and because of obesity and increase standing to lessen vertebral load." Id.
5. Limitations assessed by Kunas "in lifting, carrying and holding [the plaintiff's] arms away from his body [were] not corroborated by objective medical evidence of record and [were] based on subjective complaints." Id.
The plaintiff complains that, in focusing on a lack of objective evidence, the administrative law judge misunderstood the nature of fibromyalgia, compromising the validity of his determinations regarding the plaintiff's RFC and credibility. See Statement of Errors at 4. As the plaintiff points out, see id. at 4-5, the First Circuit has recognized that "[f]ibromyalgia is defined as a syndrome of chronic pain of musculoskeletal origin but uncertain cause" and that "the musculoskeletal and neurological examinations are normal in fibromyalgia patients, and there are no laboratory abnormalities[, ]" Johnson v. Astrue, 597 F.3d 409, 410 (1st Cir. 2009) (citations and internal punctuation omitted). The First Circuit has observed:
[O]nce the ALJ [administrative law judge] accepted the diagnosis of fibromyalgia, she also had no choice but to conclude that the claimant suffered from the symptoms usually associated with such condition, unless there was substantial evidence in the record to support a finding that claimant did not endure a particular symptom or symptoms. The primary symptom of fibromyalgia, of course, is chronic widespread pain, and the Commissioner points to no instances in which any of claimant's physicians ever discredited her complaints of such pain.
Id. at 414 (citation and internal punctuation omitted) (emphasis in original).
The plaintiff argues that the administrative law judge impermissibly rejected evidence concerning the intensity and limiting effects of his pain, dismissing pain as a mere "symptom" when it is the defining characteristic of the disease of fibromyalgia. See Statement of Errors at 5-6. He notes that the First Circuit recognized, in Gagnon v. Secretary of Health & Human Servs., 666 F.2d 662, 666 n.8 (1st Cir. 1981), that pain alone can rise to the level of being a nonexertional impairment. See id. at 6 n.1.
These arguments are unavailing. As the commissioner points out, see Defendant's Opposition to Plaintiff's Itemized Statement of Specific Errors ("Opposition") (ECF No. 17) at 5-6, " Johnson does not stand for the proposition that an administrative law judge who finds a severe impairment of fibromyalgia must accept a claimant's allegations regarding the extent of his or her limitations at face value[, ]" Tompkins v. Colvin, No. 1:13-CV-73-GZS, 2014 WL 294474, at *5 (D. Me. Jan. 27, 2014). In this case, unlike in Johnson, the plaintiff neither points to the opinion of a treating source assessing greater restrictions than found by the administrative law judge nor, with one exception that I find inapplicable for the reasons detailed below, describes restrictions that should have been included. Compare Statement of Errors at 2-8 with Johnson, 597 F.3d at 410-12. Even assuming error, this is fatal to her bid for remand on this basis. See, e.g., Briggette v. Colvin, No. 2:13-cv-301-GZS, 2014 WL 3548992, at *6-*7 (D. Me. July 17, 2014) ("While it is certainly error to discount alleged fibromyalgia-related limitations on the basis of a lack of objective findings, the plaintiff has not shown that this was done in this case, nor that it was not at most a harmless error. The plaintiff has not identified any specific limitations stemming from her fibromyalgia that the administrative law judge was required to include in her RFC.... Without more, this court can only conclude that any error in this regard by the administrative law judge was harmless.") (citations omitted).
In any event, the plaintiff does not make a persuasive case that the administrative law judge erroneously discounted his fibromyalgia solely on the basis of a lack of objective medical findings. As the commissioner argues, the administrative law judge properly considered a lack of objective findings in that the plaintiff suffered not only from fibromyalgia but also from degenerative disc disease, and even the plaintiff was not sure which of those conditions was causing his pain. See Opposition at 6; Record at 45. He also considered evidence of findings of tenderness on examination, the efficacy of treatment in relieving the plaintiff's pain, and the plaintiff's activity levels, see Record at 13-14, 19-20, all of which are relevant to assessing the credibility of pain complaints, see, e.g., 20 C.F.R. § 404.1529(c)(3)(i), (ii), (iv)-(v) (factors relevant to the evaluation of symptoms such as pain include a claimant's daily ...