United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. RICH III, Magistrate Judge.
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
accordance with the commissioner's sequential evaluation
process, 20 C.F.R. Â§ 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. Â§ 404.981; Dupuis v. Secretary of
Health & Human Servs., 869 F.2d 622, 623 (1st Cir.
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. Â§ 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).
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. Â§ 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).
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. Â§ 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. Â§ 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. Â§ 404.1526(a).
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 . 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 .
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.
Security Ruling 12-2p provides guidance for Step 3 analysis
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 ...