Herrick v. Colvin

Filing 26

ORDER : For the reasons set forth in the attached, the parties are hereby ordered to submit additional briefing within forty-five (45) days from the date of this Order. Signed by Judge William I. Garfinkel on 11/3/15.(Cates, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

SARAH HERRICK,
Plaintiff,
v.

No. 3:14-cv-1426(WIG)

CAROLYN COLVIN,
Acting Commissioner of
Social Security,
Defendant.
_____________________________________X

ORDER
Plaintiff Sarah Herrick has filed this appeal of the adverse decision of the Commissioner
of Social Security denying her application for Title II disability insurance benefits (“DIB”).
Plaintiff moved, pursuant to 42 U.S.C. § 405(g), for an order reversing this decision, or in the
alternative, remanding the matter for rehearing. [Doc. # 16]. The Commissioner responded with
a motion to affirm the decision of the Commissioner. [Doc. # 22]. The undersigned heard oral
argument in this case on November 2, 2015.
At oral argument, Plaintiff’s counsel argued that the residual functional capacity (“RFC”)
assessed by the ALJ was not supported by substantial evidence. Specifically, Plaintiff’s counsel
maintained that the ALJ failed to meaningfully consider the fluctuating nature of Plaintiff’s
fibromyalgia symptoms. In essence, Plaintiff’s counsel argues that, while on a good day Plaintiff
may be able to meet the assessed RFC, she often has bad days, and it was error for the ALJ to
fail to consider the good day / bad day nature of her impairment and its impact on her ability to
maintain employment.

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Counsel for the Commissioner, at oral argument, disagreed with the characterization of
Plaintiff’s symptoms as fluctuating. Rather, defense counsel argues that the medical evidence
shows good function, improvement with treatment, normal test results, and no relapse or
significant setbacks during the relevant period.
The Court has carefully examined the medical records. Within the relevant period, 1
there is evidence suggesting fluctuation. Plaintiff has, at times, reported an improvement of
symptoms. For example, on December 3, 2009, and on April 6, 2009, treatment notes indicate
Plaintiff’s pain was 0/10. (R. 358, 363). In May and July of 2009, while Plaintiff was being
treated by chiropractor Dr. Laub, Plaintiff had some improvement with pain and was feeling
better overall. (R. 341, 343, 350). Plaintiff has also reported worsening and/or fluctuation of
pain and other symptoms within the relevant period. For example, on March 14, 2008, Plaintiff
presented to Dr. Jill Moorcroft with muscle pain that had been gradually improving but had since
plateaued. (R. 378). Plaintiff wondered whether she should get a temporary handicap plate for
her bad days. (Id.). Treatment notes from April 2008 state that Plaintiff had “2 good days in the
last week, whereas, prior to starting the CoQ10, she had none in the last 6 months.” (R. 375).
Further, Dr. Hanke’s notes from May 11, 2010 indicate Plaintiff reported increased pain
over the past few months, and that Naproxen is no longer helping. (R. 355). Plaintiff reported
difficulty doing activities and having to miss work because of the pain. (Id.). Dr. Hanke
observed full muscle strength and intact sensation. (R. 356). On June 6, 2010, Dr. ElMoslimany noted Plaintiff’s muscle pain began in late 2009, worsened when she stopped taking
Naprosyn, and that three to four days a week the pain and weakness is to the point where
Plaintiff has trouble walking, driving, and completing other activities. (R. 382). Upon physical
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The relevant time period for establishing disability in this case is from the alleged onset date,
January 31, 2008, through the date of last insured, December 31, 2010.
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examination, Dr. El-Moslimany observed full strength in both upper and lower extremities and
normal gait. (R. 383-84). On July 8, 2010, Dr. El-Moslimany’s treatment notes indicate
Plaintiff reporting worsening pain. (R. 380). At this visit he also reported normal gait despite
Plaintiff’s use of two canes because of pain, and that an MRI, EMG, and blood tests were
negative or within normal limits. (R. 380-81). Dr. El-Moslimany diagnosed possible
fibromyalgia based on Plaintiff’s description of her pain and other symptoms. (R. 381).
In September 2010, Dr. Abarientos noted that medication was helping Plaintiff’s muscle
pain, and that she was still using crutches for balance and pain. (R. 890). On December 6, 2010,
Plaintiff presented to the emergency room with severe pain such that she was unable to walk.
(R. 438, 470). In a visit with Dr. Abarientos a week later, Plaintiff complained of continued pain
and weakness in her legs, and she used a cane to walk. (R. 438). Upon exam, Plaintiff had
normal strength and muscle tone. (Id.). Dr. Abarientos noted an unremarkable neurology
workup, and recommended a muscle biopsy for a possible metabolic myopathy. (R. 438-39).
The biopsy showed no significant pathologic change. (R. 441).
In sum, a close reading of treatment notes from the relevant period show that, while
Plaintiff had normal strength and gait, she also had muscle pain in varying degrees. As such, the
question of whether the ALJ properly considered this fluctuation in symptoms is presented. Cf.
Kosyjana v. Comm’r, Soc. Sec. Admin., No. CIV. SAG-13-2838, 2014 WL 5308028, at *2 (D.
Md. Oct. 15, 2014) (discussing analysis of fibromyalgia).
The parties are hereby ordered to submit additional briefing solely on the issue of
whether the ALJ adequately analyzed Plaintiff’s fibromyalgia symptoms in assessing her RFC
(and, if required, at step five). Any relevant case law should be thoughtfully incorporated, as

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should any discussion of SSR 12-2p, if necessary. Additional briefing should not exceed ten
(10) pages in length, and shall be due within forty-five (45) days from the date of this Order.
SO ORDERED, this

3rd

day of November, 2015, at Bridgeport, Connecticut.
/s/ William I. Garfinkel
WILLIAM I. GARFINKEL
United States Magistrate Judge

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