United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. NIVISON U.S. MAGISTRATE JUDGE.
Plaintiff Beth H's application for disability insurance
benefits under Title II of the Social Security Act,
Defendant, the Social Security Administration Commissioner,
found that Plaintiff has severe impairments, but retains the
functional capacity to perform substantial gainful activity.
Defendant, therefore, denied Plaintiff's request for
disability benefits. Plaintiff filed this action to obtain
judicial review of Defendant's final administrative
decision pursuant to 42 U.S.C. § 405(g).
a review of the record, and after consideration of the
parties' arguments, I recommend the Court affirm the
Commissioner's final decision is the December 1, 2016
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 6-2.) The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. § 404.1520.
alleges an onset of disability of April 1, 2010, and her date
last insured is June 30, 2010. (ALJ Decision, R. 12.) The ALJ
found that Plaintiff has severe, but non-listing-level
impairments consisting of fibromyalgia, migraine headaches,
and obesity. (Id.) The ALJ did not find any
exertional limitation, but found that Plaintiff's
physical residual functional capacity permits Plaintiff to no
more than occasionally climb ramps and stairs, balance,
stoop, kneel, crouch and crawl. (R. 15.) The ALJ also
determined that Plaintiff cannot be exposed to or negotiate
dangerous machinery, unprotected heights, ladders, ropes, or
scaffolds. (Id.) The ALJ also found that
Plaintiff's mental residual functional capacity limits
Plaintiff to simple, repetitive tasks, with occasional
exercise of independent judgment, to no more than occasional
changes in processes, and does not allow for production pace.
the residual functional capacity (RFC) as determined by the
ALJ, and considering Plaintiff's age, education, work
experience, and the testimony of the vocational expert who
appeared at Plaintiff's hearing, the ALJ found Plaintiff
could perform substantial gainful activity consisting of
representative jobs existing in significant numbers in the
national economy, and concluded Plaintiff was not under a
disability during the claimed period. (R. 18 - 19.)
must affirm the administrative decision provided the decision
is based on the correct legal standards and is supported by
substantial evidence, even if the record contains evidence
capable of supporting an alternative outcome.
Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16
(1st Cir. 1996) (per curiam); Rodriguez Pagan v.
Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987).
Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a finding. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Rodriguez v.
Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981).
“The ALJ's findings of fact are conclusive when
supported by substantial evidence, but they are not
conclusive when derived by ignoring evidence, misapplying the
law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
argues the ALJ erred because although he concluded
Plaintiff's fibromyalgia was a severe impairment, he
improperly evaluated the condition and did not give
sufficient weight to the expert opinion of Plaintiff's
provider, Meredith Norris, D.O. In Plaintiff's view, the
ALJ improperly judged matters entrusted to experts and
disregarded circuit precedent related to fibromyalgia.
cites Johnson v. Astrue, 597 F.3d 409 (1st Cir.
2009), for the proposition that the ALJ, upon finding that
fibromyalgia is a severe impairment, must conclude that the
symptoms usually associated with fibromyalgia are present.
(Statement of Errors at 2, citing Johnson, 597 F.3d
at 414.) In Johnson, where the record included
detailed fibromyalgia findings made in the relevant time
period, id. at 410 - 11, the First Circuit held that
an ALJ could not dismiss the treating rheumatologist's
assessment of the claimant's RFC based on (1) the limited
number of consultations (three), (2) a misreading of the
record concerning the location and impact of injection
therapy, (3) an inference that a recommendation of physical
therapy contradicted the limitations suggested in the
rheumatologist's RFC opinion, and (4) the absence of
objective findings that would measure the extent of the
claimant's impairment, given that there are no objective
means of doing so for certain impairments such as
also states that typical symptoms such as “chronic
widespread pain” are not necessarily present, let alone
disabling, if there is substantial evidence to the contrary.
Id. (citing Rose v. Shalala, 34 F.3d 13, 18
(1st Cir. 1994) (discussing chronic fatigue syndrome)). Here,
in his assessment of Plaintiff's claim, the ALJ
acknowledged the existence of diagnosed fibromyalgia-related
conditions (diffuse pain and migraines) that would have a
more than slight impact on Plaintiff's ability to perform
work activities, but reasoned the conditions were not as
limiting as claimed in part given Plaintiff's failure to
seek treatment during the claimed period or for a four-year
period after her date last insured. (R. 17.) The ALJ thus
cited reliable evidence (e.g., Plaintiff's account of her
activity level, Plaintiff's lack of treatment during and
after the claimed period) to support his conclusion that
Plaintiff's symptoms and limitations were not as
extensive as claimed. See Knudsen v. Colvin, No.
2:14-cv-155-JHR, 2015 WL 1505689 (D. Me. Apr. 1, 2015)
(“Essentially, the plaintiff takes the position that
Johnson requires this court to hold that, once an
administrative law judge has found that a claimant suffers
from fibromyalgia as a severe impairment, he or she must also
accept all of the claimant's testimony about the
intensity of the symptoms ‘usually associated with'
fibromyalgia. This court has rejected this argument.”
(citation omitted, quoting Johnson, 597 F.3d at 12 -
Norris' opinion that due to Plaintiff's headaches,
Plaintiff is an unreliable employee does not compel a
contrary conclusion. The lack of treatment for fibromyalgia
or headaches in 2010, and a contemporary (2009) report of
“good general health, ” together with
Plaintiff's reported activilty level, constitute
substantial evidence to support the ALJ's
rationale. Given the absence of any contemporaneous
treatment or medical ...