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Beth H. v. Social Security Administration Commissioner

United States District Court, D. Maine

October 17, 2018

BETH H., Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION COMMISSIONER, Defendant

          REPORT AND RECOMMENDED DECISION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         On 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).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court affirm the administrative decision.

         The Administrative Findings

         The Commissioner's final decision is the December 1, 2016 decision of the Administrative Law Judge. (ALJ Decision, ECF No. 6-2.)[1] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. § 404.1520.

         Plaintiff 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. (Id.)

         Given 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[2], and concluded Plaintiff was not under a disability during the claimed period. (R. 18 - 19.)

         Standard of Review

         A court 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).

         Discussion

         Plaintiff 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.

         Plaintiff 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 fibromyalgia.

         Johnson 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 - 13)).

         Dr. 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.[3] Given the absence of any contemporaneous treatment or medical ...


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