Lillard v. Colvin

Filing 19

REPORT AND RECOMMENDATIONS re 17 MOTION for Summary Judgment filed by Carolyn W. Colvin, 14 MOTION for Summary Judgment filed by Diane Pecora Lillard Objections to R&R due by 6/2/2014. Signed by Magistrate Judge Stephanie A Gallagher on 5/14/2014. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DIANE PECORA LILLARD
v.
COMMISSIONER, SOCIAL SECURITY

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Civil Case No. JKB-13-1458
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014-01, the above-referenced case was referred to me to
review the parties’ cross-motions for summary judgment and to make recommendations pursuant
to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered the parties’ motions
and Ms. Lillard’s Reply. ECF Nos. 14, 17, 18. This Court must uphold the Commissioner’s
decision if it is supported by substantial evidence and if proper legal standards were employed.
42 U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987). I find that no hearing is necessary. Local Rule 105.6 (D. Md.
2011). For the reasons set forth below, I recommend that both motions be denied, and that the
case be remanded to the Commissioner for further proceedings in accordance with this Report
and Recommendations.
Ms. Lillard applied for Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”) on December 11, 2009, alleging a disability onset date of August 6, 1998. (Tr.
166–80). Her claims were denied initially on June 22, 2010, and on reconsideration on October
15, 2010. (Tr.102–09, 115–18). An Administrative Law Judge (“ALJ”) held a hearing on
December 13, 2011, (Tr. 45–86), and subsequently denied benefits to Ms. Lillard in a written
opinion. (Tr. 24–38). The Appeals Council declined review, (Tr. 1-6), making the ALJ’s
decision the final, reviewable decision of the agency.

The ALJ found that Ms. Lillard suffered from the severe impairments of fibromyalgia,
IBS (irritable bowel syndrome), elevated cholesterol, lumbar spine degenerative disc disease, and
affective disorder. (Tr. 27). Despite these impairments, the ALJ determined that Ms. Lillard
retained the residual functional capacity to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b): lifting and
carrying 10 pounds frequently and 20 pounds occasionally, can stand and walk in
excess of two and less than 6 hours in an eight hour day and sit the remainder of
an eight-hour work day, with occasional stooping, crouching, kneeling, crawling,
squatting and climbing stairs, avoiding concentrated exposure to heat and cold,
fumes, dust, and gases. She can understand, remember, and carry out detailed
instructions[.] She is able to concentrate and pay attention at that level of
complexity given customary breaks afforded workers in the competitive work
force. She may have trouble with punctuality; has trouble being on time but at the
end, is capable of sustaining a 40 hour work week, eight hours a day and five days
a week, despite psychological symptoms. She can read, write, and use numbers.
(Tr. 32). After considering the testimony from a vocational expert (“VE”), the ALJ determined
that Ms. Lillard was capable of performing past relevant work as a file clerk in a medical office,
and that she was not therefore disabled. (Tr. 36). The ALJ also made alternative findings at step
five of the sequential evaluation and concluded that Ms. Lillard was capable of performing other
jobs that exist in significant numbers in the national economy. (Tr. 37).
Ms. Lillard raises several arguments on appeal. First, she contends that the ALJ made an
incorrect finding of fact regarding her date last insured and her alleged disability onset date.
Second, she argues that the ALJ improperly weighed the opinions of treating physicians and state
agency medical consultants. Third, she argues that the Appeals Council erred by not considering
Social Security Ruling (“SSR”) 12-2p when it denied review. Fourth, she asserts that the ALJ
failed to include any limitation in the RFC assessment for her depression and anxiety. After a
careful review of the full record, I recommend remand so that the Commissioner may consider
the effect of SSR 12-2p, which sets forth guidance regarding the evaluation of fibromyalgia in

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disability claims. SSR 12-2p went into effect after the ALJ’s decision, but before the Appeals
Council declined review. See SSR 12-2p, 2012 WL 3104869 (July 25, 2012). Given that SSR
12-2p is clearly relevant to the evaluation of Ms. Lillard’s claims, I recommend that this Court
refrain from deciding the merits of Ms. Lillard’s arguments regarding the weight accorded to the
medical opinions of record and the adequacy of the RFC assessment.
SSR 12-2p became effective on July 25, 2012. See SSR 12-2p. The stated purpose of the
ruling is to “provide[s] guidance on how [the agency] develop[s] evidence to establish that a
person has a medically determinable impairment of fibromyalgia, and how [the agency]
evaluate[s] fibromyalgia in disability claims and continuing disability reviews under titles II and
XVI of the Social Security Act.” Id. at *1. According to SSR 12-2p, a claimant can establish a
medically determinable impairment of fibromyalgia if a physician has diagnosed fibromyalgia
and the claimant satisfies certain diagnostic criteria.1 Id. at *2. Once a medically determinable
impairment of fibromyalgia has been established by medical and other evidence, the
Commissioner will apply the five-step sequential evaluation to determine whether the claimant is
disabled. Id. at *5; see also 20 C.F.R. §§ 404.1520, 404.1620. Fibromyalgia is not a listed
impairment, thus, at step three of the sequential evaluation, the ALJ must determine whether the
claimant’s fibromyalgia meets another listing, independently or in combination, with another
impairment. Id. at *6. As part of the sequential evaluation, the ALJ will also assess the
claimant’s RFC. See 20 C.F.R. §§ 404.1520(e), 404.1620(3). In making the RFC assessment,
the ALJ “will consider a longitudinal record whenever possible because the symptoms of FM

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SSR 12-2p uses two sets of criteria for diagnosing fibromyalgia—the 1990 American College of
Rheumatology (“ACR”) Criteria for the Classification of Fibromyalgia and the 2010 ACR Preliminary
Diagnostic Criteria. 12-2p, at *2–3. Both sets of the criteria generally require that the claimant
demonstrate: (1) a history of widespread pain; (2) tender points or other manifestations of fibromyalgia
symptoms; and (3) evidence that other disorders, which could cause the symptoms have been ruled out.
Id.

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[fibromyalgia] can wax and wane so that a person may have ‘bad days and good days.’ ” SSR
12-2p, at *6. At steps four and five of the sequential evaluation, the ALJ will consider the
claimant’s symptoms, such as widespread pain and fatigue, in determining whether exertional
limitations, non-exertional physical or mental limitations, or environmental restrictions are
warranted. Id.
The Commissioner argues that even if SSR 12-2p applies to the ALJ’s decision, remand
would not be appropriate because the ALJ’s analysis was “consistent with the published
guidance.” Def.’s Mot. 31. As a threshold matter, I find that SSR 12-2p applies to Ms. Lillard’s
case because the ruling became effective while Ms. Lillard’s claims were pending before the
Appeals Council. SSR 12-2p explicitly states that its “policy interpretations...apply...to claims
above the initial level.” SSR 12-2p, at *1 n. 1.

Although Social Security Rulings do not carry

the “force and effect of the law or regulations,” see Heckler v. Edwards, 465 U.S. 870, 873 n.3
(1984), they are “binding on all components of the Social Security Administration.” 20 C.F.R. §
402.35(b)(1). The Appeals Council issued its decision denying review on April 5, 2013, and
thus had the benefit of SSR 12-2p’s guidance, yet it appears that the Appeals Council did not
consider the ruling. See (Tr. 5). Other district courts have similarly recommended remand to the
Commissioner for consideration of SSR 12-2p where that ruling was issued between the ALJ’s
opinion and the decision of the Appeals Council. See Schuster v. Colvin, No. 13-cv-0718-WJM,
2014 WL 803461 (D. Colo. Feb. 28, 2014); Iles v. Colvin, No. CIV-13-0221-F, 2014 WL
1330010 (W.D. Okla. March 31, 2014).
While the ALJ ultimately concluded that Ms. Lillard was not disabled, it is not clear that
her decision would have been the same had she employed the guidance of SSR 12-2p. The ALJ
designated Ms. Lillard’s fibromyalgia and other impairments as severe. However, she did not

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find that any of Ms. Lillard’s impairments met the criteria of a Listing.

See (Tr. 29).

Significantly, the ALJ only expressly considered Listing 12.04, which pertains to affective
disorders, and she did not specifically evaluate any Listings for physical impairments. See (Tr.
29–32). Moreover, SSR 12-2p explains that a claimant with fibromyalgia may have inconsistent
symptoms that “wax and wane” such that a person may have “bad days and good days.” 12-2p,
at *6. Here, the ALJ relied heavily on these very inconsistencies to find Ms. Lillard not disabled.
The ALJ noted that despite Ms. Lillard’s complaints of pain, she had full strength in her upper
and lower extremities, and was quite functional outside the home. (Tr. 35–36). The ALJ also
noted that while Ms. Lillard has a “longitudinal history of fibromyalgia” it “appears stable on
medications.” (Tr. 36). The ALJ relied repeatedly on the findings from a physical consultative
examination, which of course constitute only a snapshot of Ms. Lillard’s condition on a given
day. (Tr. 27, 35). The ALJ accorded “little weight” to the opinions of Ms. Lillard’s longtime
treating physician, Dr. Gregory Kelly, because his treatment records, which at times noted an
improvement in Ms. Lillard’s fibromyalgia, were inconsistent with his opinions of disability.
See (Tr. 34–35). I cannot determine whether the ALJ’s decision in this case would have been
different if she had the benefit of SSR 12-2p. Accordingly, I recommend remand. However, in
so recommending, I express no opinion as to whether the ALJ’s ultimate conclusion that Ms.
Lillard was not disabled is correct or incorrect.
On a final note, given that remand is appropriate, any argument that the ALJ made an
erroneous statement regarding the date Ms. Lillard’s disability began and her date last insured
(“DLI”) is moot. Pl.’s Mot. 26–27. The parties agree that the correct DLI is December 31, 2004
and that Ms. Lillard alleges disability as of August 6, 1998. Pl.’s Mot. 26–27; Def.’s Mot. 39.
On remand, it remains Ms. Lillard’s burden to demonstrate that her impairments rendered her

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disabled between her alleged onset date and her DLI. See 20 C.F.R. § 404.315; Johnson v.
Barnhart, 434 F.3d 650, 655–56 (4th Cir. 2005) (“To qualify for DIB, [the claimant] must prove
that she became disabled prior to the expiration on her insured status.”).
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant’s Motion for Summary Judgment (ECF No. 17);
2. the Court DENY Plaintiff’s Motion for Summary Judgment (ECF No. 14); and
3. the Court order the Clerk to REMAND the case to the Commissioner for further
proceedings and to CLOSE this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Fed. R. Civ. P. 72(b)(2) and Local Rule 301.5.b.

Dated: May 14, 2014

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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