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Garrity v. Colvin

United States District Court, D. Maine

May 13, 2016

JOYCE MARIE GARRITY, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDED DECISION [1]

          JOHN H. RICH III, Magistrate Judge.

         In this Social Security Disability ("SSD") appeal, the plaintiff contends that the administrative law judge should have found that she met a Listing, wrongly applied the Grid, and assigned her a residual functional capacity ("RFC") that is not supported by substantial evidence. I recommend that the court affirm the commissioner's decision.

         In accordance with 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, 2015, Finding 1, Record at 11; that she suffered from degenerative disc disease, chronic pain, obesity, and fibromyalgia, impairments that were severe but which, considered separately or in combination, did not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 3-4, id. at 11-13; that she had the RFC to perform work at the light exertional level, except that she was limited to occasional stooping and crouching and frequent climbing, balancing, kneeling, and crawling, Finding 5, id. at 13; that she was unable to perform any past relevant work, Finding 6, id. at 18; that, considering her age (43 years old on her alleged disability onset date, September 8, 2010), limited education, work experience, and RFC, and using the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart P (the "Grid") as a framework for decision-making, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id.; and that she, therefore, had not been disabled from September 8, 2010, through the date of the decision, March 7, 2014, Finding 11, id. at 19. 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 her 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 statement of errors also implicates Step 3 of the sequential evaluation process, at which step a claimant bears the burden of proving that her impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 404.1520(d); Dudley v. Secretary of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. § 404.1525(c)(3). To equal a listing, the claimant's impairment(s) must be "at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 404.1526(a).

         I. Discussion

         A. Step 3

         The plaintiff contends that the administrative law judge "did not properly evaluate whether [the] Plaintiff's fibromyalgia medically equaled a listing at Step 3[.]" Plaintiff's Statement of Errors ("Itemized Statement") (ECF No. 12) at [18]. She asserts that the administrative law judge "clearly ignored and/or improperly discounted the longitudinal records of the Plaintiff's longstanding treating medical doctor, Dr. Stoll." Id. She quotes language from Social Security Ruling 12-2p to the effect that longitudinal information must be considered when fibromyalgia is the diagnosed medical impairment at issue because its signs and symptoms may vary over time. Id. at [19].

         The administrative law judge said the following about the plaintiff's fibromyalgia at Step 3:

The American College of Rheumatology has established the following criteria for the classification of fibromyalgia: a history of widespread pain and pain in 11 of 18 tender point sites on digital palpation. Pain is considered widespread when all of the following are present-pain in the left side of the body, pain in the right side of the body, pain above the waist, and pain below the waist. In addition, axial skeletal pain (cervical spine, anterior chest, thoracic spine, or low back) must be present. In this definition, shoulder and buttock pain is considered as pain for each involved side. "Low back" pain is considered lower segment pain. The undersigned has considered Social Security Ruling 12-2p to establish if the claimant's symptoms fulfill the criteria and finds that the evidence does not meet the basis for finding "disability" at this step of the evaluation.

         Record at 13.

         Social Security Ruling 12-2p provides guidance for Step 3 analysis of fibromyalgia:

At step 3, we consider whether the person's impairment(s) meets or medically equals the criteria of any of the listings in the Listing of Impairments in appendix 1, subpart P of 20 CFR part 404 (appendix 1). FM [fibromyalgia] cannot meet a listing in appendix 1 because FM is not a listed impairment. At step 3, therefore, we determine whether FM medically equals a listing (for example, listing 14.09D in the listing for inflammatory arthritis), or ...

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