Clem v. Colvin
REPORT AND RECOMMENDATIONS. Signed by Magistrate Judge Stephanie A Gallagher on 12/19/2016. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KAREN LYNN CLEM
COMMISSIONER, SOCIAL SECURITY
Civil Case No. JFM-16-912
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.
(ECF Nos. 11, 14). 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. 2016). For the reasons set forth
below, I recommend that the Court deny both motions, reverse the judgment of the
Commissioner, and remand the case to the Commissioner for further analysis in accordance with
this Report and Recommendations.
Ms. Clem applied for Disability Insurance Benefits (“DIB”) on April 16, 2013, alleging
disability beginning July 18, 2006.
Her claim was denied initially and on
reconsideration. (Tr. 109-12, 120-21). An Administrative Law Judge (“ALJ”) held a hearing on
June 11, 2015, (Tr. 40–92), and subsequently denied benefits to Ms. Clem in a written opinion.
(Tr. 18-39). The Appeals Council declined review, (Tr. 1-7), making the ALJ’s decision the
final, reviewable decision of the Agency.
The ALJ found that Ms. Clem suffered from the severe impairments of seronegative
arthritis, bursitis of the shoulder, obesity, degenerative joint irregularities, osteoarthritis of the
knees, carpal/cubital tunnel/ulnar nerve irregularities, and fibromyalgia. (Tr. 23). Despite these
impairments, the ALJ determined that Ms. Clem retained the residual functional capacity to:
perform light work as defined in 20 CFR 404.1567(b) except the claimant was
prohibited from negotiating ladders, ropes, or scaffolds. She could crawl, crouch,
bend, stoop, and negotiate steps and ramps occasionally. Ms. Clem required a
cane to ambulate. She was precluded from overhead work, and she was limited to
no more than frequent reaching laterally and straight out. The claimant must have
been allowed to change positions once per hour, she would be off task 10% of the
time, and she would miss 10 days of scheduled work per year. Finally, she was
limited to no more than frequent gross and fine dexterity.
After considering the testimony from a vocational expert (“VE”), the ALJ
determined that, in light of transferable work skills from her past relevant work, Ms. Clem was
capable of performing jobs existing in significant numbers in the national economy, and that,
therefore, she was not disabled. (Tr. 31-32).
Ms. Clem raises two primary arguments on appeal. First, she contends that the ALJ erred
in the assignments of weight to her medical sources and in the determination of her RFC.
Second, she argues that the ALJ improperly assessed her credibility. After a careful review of
the full record, I concur with Ms. Clem’s arguments, because the ALJ did not provide substantial
evidence to support his conclusions regarding her medical impairments.
As background, Ms. Clem’s diagnoses include fibromyalgia.
SSR 12-2p became
effective on July 25, 2012. See SSR 12-2p. The stated purpose of that ruling is to “provide
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. Under the ruling, when making the RFC assessment, the ALJ “will consider a
longitudinal record whenever possible because the symptoms of [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.
Although the ALJ acknowledged SSR 12-2p in his opinion, (Tr. 25), he did not apply its
guidance properly in evaluating Ms. Clem’s condition. The ALJ cited the same three factors to
justify both the assignment of “limited weight” to the opinion of Ms. Clem’s longtime treating
rheumatologist, Dr. Rezaian, and the adverse credibility finding: (1) conservative and outpatient
treatment history; (2) documented clinical and examination findings; and (3) “Ms. Clem’s stated
ongoing capabilities.” (Tr. 29, 30). Each factor will be addressed in turn.
First, the ALJ repeatedly characterized Ms. Clem’s treatment as “conservative, routine,
and performed on an outpatient basis.” See, e.g., (Tr. 29). However, it is unclear, in the context
of rheumatoid arthritis and fibromyalgia, what other forms of treatment might have been
available to Ms. Clem or her treating physicians. Those chronic, incurable conditions are
customarily managed by “conservative” measures such as medications and dietary changes. See
Lapeirre-Gutt v. Astrue, 382 Fed. Appx. 662, 2010 WL 2317918 at *1 (9th Cir. June 9, 2010)
(noting that the claimant “cannot be discredited for failing to pursue non-conservative treatment
options” for fibromyalgia since “none exist.”); Brosnahan v. Barnhart, 336 F.3d 671, 677 (8th
Cir. 2003) (noting that “the lack of any need for surgery is also not a reason to discredit
[Plaintiff]: the [American College of Rheumatology] does not recommend surgery for
fibromyalgia.”). In Ms. Clem’s case, her physicians unsuccessfully prescribed a long list of
medications to try to control her pain and symptoms, but her adverse reactions to the medications
outweighed any benefit received.
See, e.g., (Tr. 760) (discontinuing Celebrex); (Tr. 773)
(discontinuing Lidoderm patches); (Tr. 811-12) (discontinuing Elavil); (Tr. 834) (noting failed
treatment with Cymbalta, Lyrica, and Savella). Thus, her “conservative” treatment regimen is in
part attributable to the lack of more intensive treatment options for her conditions and in part
attributable to her inability to avail herself of medication options. Neither is a reason to discredit
her treating physician or her own description of the severity of her impairments.
Second, the ALJ cites “documented clinical and examination findings” as a basis for
devaluing Dr. Rezaian’s opinion and discrediting Ms. Clem. (Tr. 29, 30). In support, the ALJ
repeatedly summarizes one particular 2011 examination in which Ms. Clem had “no evidence of
tenderness or instability” in her joints. (Tr. 28-29). In light of the numerous other medical
records reflecting contrary findings, reliance on that single report is precluded by the guidance of
SSR 12-2p. 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,
The existence of one, or even more than one, examination in which no significant
symptoms were found does not contradict the opinion of Dr. Rezaian or the complaints of Ms.
Clem, due to the inherently variable nature of her conditions.
Finally, the ALJ cited “Ms. Clem’s stated ongoing capabilities” as a basis for rejecting
Dr. Rezaian’s opinion and Ms. Clem’s assertion of disability. (Tr. 28-29). It is unclear how Ms.
Clem’s reported activities would be consistent with a finding of an ability to perform light work
as substantial gainful activity. The ALJ cited Ms. Clem’s report that she “retains the capacity to
take care of most personal needs, prepare sandwiches and easy to prepare meals, clean, wash
laundry, complete light gardening, drive 1-2 times per week on average, shop for groceries and
personal items, handle her finances, operate a computer, watch television, visit her family, talk
on the phone, and maintain regular medical appointments, albeit at a slower pace, with
frequent breaks, and with the assistance of her family members.” (Tr. 29) (emphasis added)
(citation omitted). In fact, as the ALJ also noted, Ms. Clem clarified that “her schedule must be
planned in advanced [sic] and limited to simple goals that are met that day.” (Tr. 27). Thus, Ms.
Clem’s reported activities do not support the ALJ’s contention that Ms. Clem would be able to
travel to and from a workplace five days per week and then perform tasks requiring an ability to
stand and walk for six hours in an eight hour workday, and occasionally crawl, crouch, bend, and
stoop despite her use of a cane. In fact, her “stated ongoing capabilities” are more consistent
with Dr. Rezaian’s opinion than the RFC assessment enunciated by the ALJ.
Ultimately, in light of the flawed evidence cited by the ALJ to support his conclusions, I
cannot find substantial evidence to support (1) his assignment of weight to the opinion of Dr.
Rezaian or (2) his adverse credibility assessment. Accordingly, I recommend remand for the
ALJ to fulfill his duty of explanation. In so recommending, I express no opinion regarding
whether the ALJ’s ultimate conclusion that Ms. Clem is not entitled to benefits is correct or
For the reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant’s Motion for Summary Judgment [ECF No. 14];
2. the Court DENY Plaintiff’s Motion for Summary Judgment [ECF No. 11];
3. the Court REVERSE IN PART due to inadequate analysis the Commissioner’s
judgment pursuant to sentence four of 42 U.S.C. § 405(g);
4. the Court REMAND this case for further proceedings in accordance with this opinion;
5. the Court close this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 301.5(b).
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.
Dated: December 19, 2016
Stephanie A. Gallagher
United States Magistrate Judge
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