United States District Court, D. Maine
DOROTHY DESJARDINS, Plaintiff.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDED DECISION 
JOHN H. RICH, III, Magistrate Judge.
This Social Security Disability ("SSD") and Supplemental Security Income ("SSI") 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 argues that the administrative law judge failed to adequately consider and assess the nature and limiting effects of her chronic pain syndrome, most often diagnosed as fibromyalgia, could not validly rely on the opinions of agency nonexamining consultants, who did not see critical records, erred in assessing credibility, and improperly relied on the so-called "Grid, " the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart P, to find her capable of performing other work. See Plaintiff's Corrected Statement of Errors ("Statement of Errors") (ECF No. 18) at 4-24. I agree that the administrative law judge erred in relying, for purposes of determining whether the plaintiff had a medically determinable impairment of fibromyalgia, on the opinions of agency nonexamining consultants who did not have the benefit of review of material evidence and made a residual functional capacity ("RFC") determination unsupported by substantial evidence, undermining her reliance on the Grid. Accordingly, I recommend that the court vacate the commissioner's decision and remand this case for further proceedings consistent herewith.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; 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 March 31, 2009, Finding 1, Record at 16; that she had a severe impairment of degenerative disc disease, Finding 3, id.; that she had the RFC to perform the full range of medium work, as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), Finding 5, id. at 23; that, considering her age (30 years old, defined as a younger individual, on her alleged disability onset date, originally August 31, 2010, but amended to January 1, 2009), 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 she could perform, Findings 7-10, id. at 29; and that she, therefore, had not been disabled from January 1, 2009, through the date of the decision, April 10, 2013, Finding 11, id. at 30. The Appeals Council declined to review the decision, id. at 6-8, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; 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), 1383(c)(3); 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 her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(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 statement of errors also implicates Step 2 of the sequential evaluation process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence "establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered." Id. (quoting Social Security Ruling 85-28).
A. Finding of No Medically Determinable Fibromyalgia Impairment
The administrative law judge found that the plaintiff had no medically determinable impairment of fibromyalgia, explaining:
The [plaintiff] has alleged that she has fibromyalgia. Indeed, many treatment notes reveal that she carried the diagnosis at times. Social Security Ruling 12-2p ["SSR 12-2p"] provides that the diagnosis of fibromyalgia for the purpose of this decision requires a history of widespread pain in all four quadrants of the body; evidence that other physical or mental disorders that could cause the symptoms or signs were excluded; and either (a) at least 11 positive tender points in the left and right side and upper and lower parts of the body or (b) repeated manifestations of 6 or more fibromyalgia symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems ("fibro fog"), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.
The record does not provide evidence that the [plaintiff] has a history of widespread pain in all four quadrants of the body for which other causes have been ruled out. It does not contain reports that 11 or more tender points were found. It does not contain evidence, objective or otherwise, of cognitive or memory difficulties or ongoing irritable bowel syndrome. Although treatment notes at times report allegations by the [plaintiff] that she felt fatigued, examining practitioners do not report that she appeared fatigued or that she awoke unrefreshed from sleep. The fact that an individual may have had six or more of the symptoms diagnostic of fibromyalgia at various times in her life, does not mean that the person has fibromyalgia. Moreover, although the [plaintiff] has alleged several other symptoms of fibromyalgia at times according to treatment notes, there is no indication that the other symptoms were not caused by other disorders.
Record at 18-19.
She stated that:
1. Geoffrey Gratwick M.D., a consulting rheumatologist, found in 2004 and 2005 that the plaintiff did not have fibromyalgia and that her alleged symptoms might be caused by psychogenic rheumatism or somatoform disorder, finding her complaints "to be so extraordinary that even the diagnostic classification of fibromyalgia has to be stretched somewhat to encompass [her] degree of pain." Id. at 19 (citation and internal quotation marks omitted).
2. Newer medical reports of record were "cumulative and reflect[ed] the presence of essentially the same facts as were documented in reports available to Dr. Gratwick." Id. While several treating or examining practitioners continued for some time to note a diagnosis of fibromyalgia, none reported "new evidence diagnostic of the disorder[.]" Id. "In fact, treatment notes by Andrew Nicholson, M.D., the [plaintiff's] primary care physician... from 2011 or earlier through 2012 or later, contain no diagnosis of fibromyalgia although he did assess the [plaintiff] as having various other impairments that might cause her wide spread pain complaints, such as somatoform disorder and myalgia and myositis." Id. Yet, "his treatment notes contain[ed] no reports that he observed significant signs of impairment diagnostic of the disorders." Id. (citations omitted).
3. A treating source, Pamela LaJeunesse, A.N.P., indicated on November 6, 2009, that she doubted fibromyalgia because there were "no tender points[.]" Id. at 19, 211A.
4. While agency nonexamining consultant Robert Hayes, M.D., stated on October 7, 2009, that the plaintiff had primary diagnoses of pseudo-seizures and fibromyalgia and a secondary diagnosis of back reflex sympathetic dystrophy ("RSD"), he stated that the allegation of seizures was unsupported by the medical evidence of record and cited no evidence of fibromyalgia or RSD, apart from noting that one treating physician had stated that the plaintiff had a previous diagnosis of fibromyalgia and another had assessed fibromyalgia on June 26, 2009, without citing any basis for the assessment. See id. at 19-20. "Thus, it is unclear what impairments [Dr. Hayes] found to be medically determinable and causing the functional limitations." Id. at 20 (citation omitted).
5. Two other agency nonexamining consultants later found that the record contained no basis for diagnosing any impairment other than degenerative disc disease in the lumbar spine. See id. at 20; see also id. at 35-38 (opinion of Donald Trumbull, M.D., dated October 27, 2011), 46-49 (opinion of Benjamin Weinberg, M.D., dated March 22, 2012).
The administrative law judge assigned "greatest weight" to the findings of Drs. Trumbull and Weinberg that the plaintiff had no medically determinable fibromyalgia impairment, which she deemed "consistent with findings ...