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Corlis v. Colvin

United States District Court, D. Maine

January 14, 2016

JEAN BERNICE CORLIS, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM DECISION [1]

John H. Rich III United States 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 seeks remand on the bases that the administrative law judge erred in evaluating her fibromyalgia, an opinion of treating physician Amy K. Etzweiler, M.D., her residual functional capacity (“RFC”), and her credibility. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of Errors”) (ECF No. 8) at 2-6. I conclude that the administrative law judge’s analysis of the plaintiff’s fibromyalgia is sufficiently flawed to warrant reversal of his decision and remand for further proceedings not inconsistent 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 June 30, 2013, Finding 1, Record at 23; that she had a severe impairment of degenerative disc disease, Finding 3, id.; that she had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), could lift/carry 10 pounds frequently and 20 pounds occasionally, could sit for about six hours and stand/walk for about six hours in an eight-hour workday, would need to stretch for one to two minutes every hour, could occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl, could never climb ladders, ropes, or scaffolds, should avoid even moderate exposure to hazards such as machinery and heights, should avoid irregular/sloping work surfaces, and might need to use a cane for extended ambulation, Finding 5, id. at 25; that, considering her age (41 years old, defined as a younger individual, on her alleged disability onset date, July 1, 2011), education (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 July 1, 2011, through the date of the decision, November 29, 2013, Finding 11, id. at 30. 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, 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).

I. Discussion

At Step 2, the administrative law judge found that “[t]he [plaintiff’s] medically determinable physical impairments of fibromyalgia and migraines do not cause more than minimal limitation in her ability to perform basic work activities and are therefore non-severe.” Record at 24. He did not explain that finding. See id.

As the plaintiff observes, see Statement of Errors at 2, in Johnson v. Astrue, 597 F.3d 409 (1st Cir. 2009), the First Circuit stated:

[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.

Johnson, 597 F.3d at 414 (citation and internal punctuation omitted) (emphasis in original).

The plaintiff correctly asserts that the administrative law judge cited no evidence, let alone substantial evidence, to support a finding that she did not have the symptoms usually associated with fibromyalgia, and pointed to no instance in which any treating physician ever discredited her complaints. See Statement of Errors at 3.

In addition, at oral argument, counsel for the commissioner conceded that the administrative law judge’s decision was inconsistent in that, on the one hand, he found a medically determinable impairment of fibromyalgia and, on the other, expressed doubt that the condition existed. See Record at 28 (stating, in context of discrediting Etzweiler RFC opinion, that “[t]here are few examination findings to support her diagnosis of fibromyalgia, 1st assessed by her in 2009, or to provide any indication of an objective basis for the [plaintiff’s] back pain.”).

However, counsel contended that any error was harmless because (i) the record contains virtually no evidence of a medically determinable impairment of fibromyalgia, fibromyalgia-related (versus back-related) complaints by the plaintiff, or treatment for fibromyalgia, and, (ii) unlike in Johnson, the administrative law judge found a nonsevere, rather than severe, fibromyalgia impairment and relied on the opinion of an agency nonexamining consultant who had taken the plaintiff’s fibromyalgia into account, deeming it ...


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