Darling v. Colvin

Filing 25

ORDER denying 17 Motion of plaintiff for Summary Judgment; denying 23 Motion of defendant for Summary Judgment; the Commissioners judgment is REVERSED IN PART; case is REMANDED for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 8/1/2017. (jnls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

August 1, 2017
LETTER TO COUNSEL
RE:

Deborah Jean Darling v. Commissioner, Social Security Administration;
Civil No. SAG-16-2934

Dear Counsel:
On August 22, 2016, Plaintiff Deborah Jean Darling petitioned this Court to review the
Social Security Administration’s final decision to deny her claims for Disability Insurance
Benefits and Supplemental Security Income. (ECF No. 1). I have considered the parties’ crossmotions for summary judgment, and Ms. Darling’s supplemental filing and reply. (ECF Nos. 17,
22, 23, 24). I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). This Court
must uphold the decision of the Agency if it is supported by substantial evidence and if the
Agency employed proper legal standards. See 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996). Under that standard, I will deny both motions, reverse the
judgment of the Commissioner, and remand the case to the Commissioner for further analysis
pursuant to sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.
Ms. Darling filed claims for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on May 8, 2012, originally alleging a disability onset date of September
1, 2010.1 (Tr. 221-30). Her claims were denied initially and on reconsideration. (Tr. 83-107,
110-35). An Administrative Law Judge (“ALJ”) held a hearing on April 22, 2015. (Tr. 42-82).
Following that hearing, on August 14, 2015, the ALJ determined that Ms. Darling was not
disabled during the relevant time frame. (Tr. 17-39). The Appeals Council denied Ms. Darling’s
request for review, (Tr. 1-6), so the ALJ’s decision constitutes the final, reviewable decision of
the Agency.
The ALJ found that Ms. Darling suffered from fibromyalgia, lumbar and cervical
degenerative disc disease, asthma, and right ankle reconstruction. (Tr. 22). Despite these
impairments, the ALJ determined that Ms. Darling retained the residual functional capacity
(“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
she can occasionally perform postural activities but cannot climb ladders, ropes
and scaffolds. She can frequently handle and finger. She should avoid
1

Ms. Darling later amended her alleged onset date to September 3, 2012. (Tr. 47).

Deborah Jean Darling v. Commissioner, Social Security Administration
Civil No. SAG-16-2934
August 1, 2017
Page 2
concentrated exposure to temperature extremes, wetness, humidity, pulmonary
irritants, vibrations, and hazards. She requires the use of a cane to ambulate and
balance.
(Tr. 25). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Darling could perform jobs existing in significant numbers in the national economy and that,
therefore, she was not disabled. (Tr. 32-33).
Ms. Darling raises two primary arguments on appeal: (1) that the ALJ erred in
considering her fibromyalgia; (2) that the ALJ did not comply with Lewis v. Berryhill, 858 F.3d
858 (4th Cir. 2017).2 I concur that the ALJ’s analysis of Ms. Darling’s fibromyalgia does not
fulfill the requirements of SSR 12-2p, including his basis for assigning no weight to Dr. OforiAwuah’s opinion and little weight to Dr. Gadhia’s opinion, and therefore remand the case for
further discussion. In remanding for additional explanation, I express no opinion as to whether
the ALJ’s ultimate conclusion that Ms. Darling is not entitled to benefits is correct or incorrect.
The ALJ appears to have rejected Ms. Darling’s complaints of disabling pain from
fibromyalgia, largely relying upon certain findings made upon physical examinations. (Tr. 2730). That analysis does not take into account the fact that fibromyalgia is difficult to corroborate
through specific objective findings. See, e.g., Gavigan v. Barnhart, 261 F. Supp. 2d 334, 340 (D.
Md. 2003) (noting that fibromyalgia “poses particular challenges to credibility analyses due to
the limited available objective medical evidence.”). Additionally, the nature of fibromyalgia
means that a patient’s ability to perform certain tasks or postural maneuvers on a given day does
not necessarily reflect an ability to perform those tasks and maneuvers on a sustained basis.
Social Security Ruling (“SSR”) 12-2p, which became effective on July 25, 2012, governs the
evaluation of fibromyalgia in disability claims. See SSR 12-2p, 2012 WL 3104869 (July 25,
2012). It emphasizes consideration of the “longitudinal record” of fibromyalgia “whenever
possible because the symptoms of FM [fibromyalgia] can wax and wane so that a person may
have ‘bad days and good days.’” Id. at *6. Thus, the fact that Ms. Darling had some physical
examinations at which she displayed no serious symptoms does not disprove her allegations of
persistent pain. See, e.g, Green-Younger v. Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003) (noting
that for fibromyalgia patients “physical examinations will usually yield normal results – a full
range of motion, no joint swelling, as well as normal muscle strength and neurological
reactions.”) (citation omitted).
Importantly, the ALJ repeatedly characterized Ms. Darling as having an “improved
condition” or “significant improvement.” (Tr. 29, 30). That characterization, apparently based
upon an appointment in June, 2013, at which Ms. Darling displayed few symptoms, does not
take into account the fact that fibromyalgia symptoms “wax and wane” and do not generally
demonstrate sustained improvement. Id. As cited in Ms. Darling’s memorandum, at a
subsequent appointment in October, 2013 not cited by the ALJ, Ms. Darling displayed decreased
2

However, because this case is being remanded on other grounds, I need not reach the Lewis issue. On remand, the
ALJ should assess Ms. Darling’s credibility based on both her subjective statements and the medical evidence, in
accordance with Lewis.

Deborah Jean Darling v. Commissioner, Social Security Administration
Civil No. SAG-16-2934
August 1, 2017
Page 3
motor strength, decreased reflexes, and had a questionable prognosis because “falls have been
unpredictable and chronic pain issues have been longstanding.” Pl. Mot. at 14-15, (citing (Tr.
572)). Thus, the “improvement” repeatedly cited by the ALJ is not reflected in the record.
Next, the ALJ suggests that the fibromyalgia shows “responsiveness to conservative
treatment and medications.” (Tr. 30). However, it is unclear, in the context of fibromyalgia,
what other forms of treatment might have been available to Ms. Darling or her treating
physicians. Chronic, incurable conditions such as fibromyalgia are customarily managed by
“conservative” measures such as medications and dietary changes. See Lapeirre-Gutt v. Astrue,
382 Fed. Appx. 662, 664 (9th Cir. 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.”). Thus, her “conservative” treatment regimen is
attributable to the lack of more intensive treatment options for her condition, and is not a reason
to discredit her treating physician or her own description of the severity of her impairments.
Finally, the ALJ repeatedly cites “robust activities of daily living” as a factor
undermining Ms. Darling’s allegations of disabling pain. (Tr. 30). However, the ALJ’s
characterization of Ms. Darling’s activities does not comport with her descriptions in her hearing
testimony. Compare (Tr. 30-31) with (Tr. 55-66). For example, the ALJ describes Ms. Darling
as “babysitting her granddaughter,” (Tr. 30), although Ms. Darling states that she spent time
about once per month with a four year old cousin playing Connect Four or other board games.
(Tr. 66). Similarly, the ALJ states that she “went out of town to help her sister,” (Tr. 31), while
Ms. Darling explained that she only drove her mother to Pennsylvania so that her mother could
stay with her sister. (Tr. 66). On remand, the ALJ should ensure an accurate description of Ms.
Darling’s activities of daily living, making appropriate credibility findings where needed.
Ultimately, the ALJ’s evaluation of Ms. Darling’s fibromyalgia does not comport with
SSR 12-2p. In addition to the errors described above, the ALJ’s assignments of “little weight”
and “no weight” to the opinions of the two treating physicians, Drs. Gadhia and Ofori-Awuah,
are not premised on substantial evidence in light of the conclusory allegations that the opinions
are “inconsistent with the medical evidence of record” or “vague.” (Tr. 29, 30). On remand, the
ALJ should provide a more complete evaluation of the opinions of the medical sources, in light
of the complete treatment record and the provisions of SSR 12-2p.
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment (ECF No. 17)
is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 23) is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s judgment is REVERSED
IN PART due to inadequate analysis. The case is REMANDED for further proceedings in
accordance with this opinion. The Clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.

Deborah Jean Darling v. Commissioner, Social Security Administration
Civil No. SAG-16-2934
August 1, 2017
Page 4

Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge