Andrade-Hermort v. Colvin
Judge Rya W. Zobel: ORDER entered. MEMORANDUM OF DECISION. Plaintiff's Motion to Reverse or Remand the Decision of Commissioner (Docket # 10) is ALLOWED, and Defendant's Motion to Affirm the Commissioner's Decision (Docket # 13) is DENIED. The case is remanded to the Commissioner for further findings of plaintiff's functional capacity in light of the admitted diagnosis of fibromyalgia and her testimony detailing her limitations. (Gioia, AnaMaria)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-12477-RWZ
MARIA MANUELA ANDRADE-HERMORT
NANCY A. BERRYHILL,1
Acting Commissioner of the Social Security Administration
MEMORANDUM OF DECISION
November 6, 2017
Plaintiff Maria Manuela Andrade-Hermort appeals from a final decision by the
Acting Commissioner of Social Security (“the Commissioner”) upholding the ruling of
the Administrative Law Judge (“ALJ”) that denied her application for Social Security
Disability Insurance Benefits (“SSDI”). Docket # 10. Plaintiff contends that the ALJ’s
finding that she could perform her past work was not supported by substantial evidence,
and relatedly, that the ALJ erred by failing to consider the effects of her impairments
when determining her residual functional capacity. The Commissioner filed a crossmotion seeking an order to affirm the decision. Docket # 13.
Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill has been substituted for Carolyn W .
Colvin as Acting Com m issioner of the Social Security Adm inistration.
Plaintiff filed an application for SSDI on February 11, 2014, alleging disability due
to “inflamatory [sic] [rheumatoid arthritis], DDD back, possible Lyme Disease, brain
aneurysm s/p surgery with shunt in situ, HBP, risk of bleeding, right CTS-trigger fingerarthritis, impaired balance with falls, and L knee disorder” beginning April 2, 2012. R. at
143.2 Her claims were first denied on April 15, 2014, and again upon reconsideration
later in July 2014. Plaintiff filed a request for a hearing before an ALJ, and a hearing
was held on August 19, 2015. At the hearing, a vocational expert (“VE”) testified.
Applicable Statutes and Regulations
To receive SSDI benefits, a claimant must be unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment or impairments
must be “of such severity that [she] is not only unable to do [her] previous work but
cannot, considering [her] age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy.” Id. §
423(d)(2)(A); see also 20 C.F.R. § 404.1505(a).
The ALJ analyzes whether a claimant is disabled by using an established “fivestep sequential evaluation process.” See 20 C.F.R. § 404.1520(a)(4)(i)–(v). Under this
framework, the ALJ first determines whether the claimant is currently engaging in
substantial gainful work activity. If not, then at step two, the ALJ decides whether the
“R.” refers to the Social Security adm inistrative record, which was electronically filed in
this appeal. Docket # 8.
claimant has a “severe” medical impairment or impairments, which means the
impairment “significantly limits [the claimant’s] physical or mental ability to do basic work
activities,” id. § 404.1520(c). If the claimant has a severe impairment or impairments,
the ALJ considers, third, whether the impairment or impairments meets or equals an
entry in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, and
meets the duration requirement. If so, then the claimant is considered disabled. If not,
the ALJ must determine the claimant’s residual functioning capacity (“RFC”), which is
“the most [a claimant] can still do despite [her] limitations,” 20 C.F.R. § 404.1545(a)(1).
The ALJ then moves to step four and determines whether the claimant’s RFC allows her
to perform her past relevant work. If the claimant has the RFC to perform her past
relevant work, she is not disabled. If the claimant does not, the ALJ decides, at step
five, whether the claimant can do other work in light of her RFC, age, education, and
work experience. If the claimant can, she is not considered disabled; otherwise, she is.
“Once the applicant has met his or her burden at Step 4 to show that he or she is unable
to do past work due to the significant limitation, the Commissioner then has the burden,
at Step 5, of coming forward with evidence of specific jobs in the national economy that
the applicant can still perform.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); see
also 20 C.F.R. §§ 404.1512(3), 404.1560(c)(2).
The ALJ’s Decision
In a September 24, 2015, written decision, the ALJ found that plaintiff was not
disabled under the Social Security Act. He first concluded that plaintiff did meet the
insured status requirements of the Social Security Act through December 30, 2012. See
42 U.S.C. § 423. Then, he structured his decision around the five-step sequential
evaluation process. At the first step, the ALJ found that plaintiff had not engaged in
substantial gainful activity since the alleged onset date of her disability, and at step two,
that she has several severe impairments: fibromyalgia and associated lower back pain,
and arthritis.3 See 20 C.F.R. § 404.1520(c). Nonetheless, he determined at step three
that she does not have an impairment or combination of impairments that meets or
medically equals the severity of one of those listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 because “the medical evidence does not show a gross anatomical deformity
[or] findings based on appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis (Listing 1.02).” R. at 20. Before moving to step
four, he wrote:
[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except that she can lift 20 pounds
occasionally, and 10 pounds frequently; stand or walk at least 6 hours in an
8-hour workday; sit (with normal breaks), about 6 hours in an 8-hour workday;
frequently climb or balance, stoop, kneel, crouch, or crawl, but never climb a
ladder; and, she must avoid concentrated exposure to hazards.
Id. He found plaintiff’s allegations only “partially credible” because the “treatment notes
in the record do not support the conditions to which she testified.” R. at 22. Specifically,
although she testified that she had “painful joints and swelling in her lower back,
shoulders, elbows, hands, knees, and ankles, and . . . was having a difficult time
climbing stairs,” id. at 21, the objective medical evidence reflected that plaintiff in
December 2012 had “a full [range of motion] of all joints, 5/5 strength throughout; mild
The ALJ further noted that “the record shows and/or that the claim ant alleges additional
conditions such as risk of bleeding, a brain aneurism [sic] status post surgery with (VP) shunt in situ,
possible Lym e’s Disease, and depression/anxiety.” R. at 19. He found, however, that after reviewing the
evidence, “these conditions [were] controlled, m inim ally treated, not treated at all, or that they lack
objective m edical evidence of a diagnosis, treatm ent, or functional lim itations in support thereof.” Id.
Thus, the ALJ ultim ately concluded that these additional alleged conditions “have little to no im pact on the
claim ant’s ability to do work like activities, and, at worst, [are] non-severe in nature.” Id.
tenderness to palpation at multiple joints (hands, wrist, elbows, knees, and ankles); a full
sensation to light touch; normal patellar reflexes; 5/5 strength throughout, including hip
flexors; low back pain with a negative straight leg raise bilaterally; and no evidence of
active synovitis.” Id. at 22. “Accordingly, [he found] that although the claimant
experiences some limitations, they are only found to be to the extent described in the
[RFC].” Id. At the fourth step, the ALJ determined that, based on the VE’s testimony,
plaintiff was capable of performing past relevant work that included light, semi-skilled
positions as a Social Service Aide4 and as a Teacher’s Aide. Accordingly, the ALJ
concluded that plaintiff was not disabled through the date last insured.
Plaintiff appealed the ALJ’s decision to the Social Security Administration’s
(“SSA”) Appeals Council, which denied review on October 7, 2016. The ALJ’s decision
thus became the final decision of the Commissioner. Plaintiff now seeks reversal of the
final determination under 42 U.S.C. § 405(g).
Standard of Review
The Commissioner’s findings of fact are conclusive if based on the correct legal
standard and supported by substantial evidence. 42 U.S.C. § 405(g); Seavey, 276 F.3d
at 9. Substantial evidence includes “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” See Richardson v. Perales, 402 U.S. 389
401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). So
In the W ork History Report, plaintiff identified the following prior job titles: “Case
Manager”; “Residential instructor”; and “Teacher’s aid [sic]”. R. at 155. During the hearing, the VE
identified plaintiff’s relevant prior work to correspond with the following titles and Dictionary of
Occupational Titles (“DOT”) code: Social services aide (DOT 195.367-010) and teacher’s aide (DOT
249.367-074). Accordingly, “Social Service Aide” is synonym ous with “Case Manager”.
long as the Commissioner’s determinations are supported by substantial evidence, they
must be affirmed, “even if the record arguably could justify a different conclusion.”
Rodriguez Pagan v. Sec’y Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per
curiam). Further, resolving credibility issues “and the drawing of permissible inference
from evidentiary facts are the prime responsibility of the [Commissioner].” Rodriguez v.
Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (quoting Rodriguez
v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965)). Questions of law are reviewed de
novo. Seavey, 276 F.3d at 9.
Plaintiff maintains that her “impairments prevented her from doing any of her past
relevant work,” Docket # 10-1, at 6. Plaintiff argues that the ALJ’s RFC determination is
unsupported by substantial evidence because he failed to consider the effects of her
impairments, such as pain, fatigue, and dizziness, on her ability to work, and failed to
make “findings as to [her] concentration, persistence and pace, and memory in the
RFC,” id. at 7. She contends that both the medical records and her testimony “show that
she had impaired mobility,” id., that prevented her from climbing stairs on home visits,
which was part of her job requirements as a case manager.5
The Com m issioner attem pts to side-step this argum ent by claim ing that “the ALJ did not
conclude that Plaintiff could perform that type of past relevant work [i.e., being a case m anager who had to
clim b steps],” but rather found that plaintiff “would still be able to perform work as a social service aide . . .
with her im pairm ents and the assessed RFC.” Docket # 14, at 15. This argum ent is both perplexing and
incorrect. The ALJ never addressed the issue of clim bing steps, nor asked the VE what are the job
requirem ents for a case m anager. Instead, in the hypothetical he presented to the VE, he assum ed that
the “individual has the ability to frequently clim b,” R. at 47 (em phasis added).
Further, the record is m issing page three of plaintiff’s work history report, dated March 3,
2014, which appears to have included the job description of her role as a Teacher’s Aide. See id. at
174–75 (“Page 2 of 8" followed by “Page 4 of 8"). Although plaintiff failed to put in issue how her
lim itations prevented her from satisfying the requirem ents of being a teacher’s aide, it is unclear how the
ALJ could have concluded that plaintiff had the RFC to perform her past job as a teacher’s aide without an
understanding of what the job entails. See 20 C.F.R. § 404.1520(f) (requiring ALJ to com pare his RFC
assessm ent with the physical and m ental dem ands of plaintiff’s past relevant work).
The ALJ determined that plaintiff had several severe impairments, including
fibromyalgia. Nevertheless, he found that plaintiff’s testimony regarding her physical
limitations and the effects of pain were only “partially credible” because the “treatment
notes in the record do not support the conditions to which she testified,” R. at 22. He
ultimately determined that plaintiff had the RFC to “lift 20 pounds occasionally, and 10
pounds frequently . . . frequently climb or balance, stoop, kneel, crouch, or crawl, but
never climb a ladder[,]” id. at 20. But “once the ALJ accepted the diagnosis of
fibromyalgia, [he] also ‘had no choice but to conclude that the claimant suffer[ed] from
the symptoms usually associated with [such condition], unless there was substantial
evidence in the record to support a finding that claimant did not endure a particular
symptom or symptoms.’” Johnson v. Astrue, 597 F.3d 409, 410 (1st Cir. 2009) (per
curiam) (quoting Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994) (emphasis in original)).
Here, there was no such substantial evidence to support the ALJ’s finding.
The ALJ relied on the treating physicians’ notes to find that plaintiff’s allegations
were only “partially credible” because the treatment notes reported that plaintiff had no
neurological abnormalities, “a full [range of movement] of all joints,” “a full sensation to
light touch,” and “5/5 strength throughout,” R. at 22. But the First Circuit has recognized
that “‘[t]he musculoskeletal and neurological examinations are normal in fibromyalgia
patients, and there are no laboratory abnormalities.’” Johnson, 597 F.3d at 410 (quoting
Harrison’s Principles of Internal Medicine 2056 (16th ed. 2005)). “Rather, ‘a patient’s
report of complaints, or history, is an essential diagnostic tool’ in fibromyalgia cases,”
Johnson, 597 F.3d at 412 (quoting Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d
Cir. 2003)). Here, the medical evidence record reflects that plaintiff asserted multiple
complaints of her pain prior to her alleged onset date and through the date last insured
(i.e., December 30, 2012). Indeed, plaintiff’s medical records reflect that “she has had
[a] history of joint pain and achiness.” R. at 210. None of the treatment notes discredit
her complaints. See Johnson, 597 F.3d at 414. In 2010, plaintiff’s primary care
physician found that “[h]er knee [was] very swollen. There [was] swelling inside of the
joint, tenderness right along the joint line.” R. at 214. In January 2012, she again
“presented with knee pain” and described it as “aching, stiffness and swelling,” and the
treatment notes reflect there was “joint tenderness,” id. at 233–34. Dr. Friday, a
rheumatologist who examined plaintiff in December 2012, “found that the claimant had .
. . mild tenderness to palpation at multiple joints (hands, wrist, elbows, knees, and
ankles) . . . ; low back pain with a negative straight leg raise bilaterally; and, no evidence
of active synovitis,” id. at 22. At a later visit in January 2014 with another
rheumatologist, Dr. Hait, plaintiff “continue[d] to have  aching and burning pain in her
hands, knees, elbows, shoulders and feet,” and was found to have “trigger points 12/18,”
id. at 257; cf. Johnson, 597 F.3d at 410 (“The American College of Rheumatology
nonetheless has established diagnostic criteria that include ‘pain on both sides of the
body, both above and below the waist, [and] point tenderness in at least 11 of 18
specified sites.’”) (quoting Stedman’s Medical Dictionary, at 671 (27th ed. 2000)); see
also Ramos-Birola v. Astrue, No. 10-12275-DJC, 2012 WL 4412938, at *12 (D. Mass.
Sept. 24, 2012) (“‘trigger point’ and ‘tender point’ are sometimes used interchangeably to
describe the sites in a [rheumatology] exam”).
The ALJ also placed “great weight” on two non-examining state agency medical
consultants’ assessments because he found that “they are consistent with, and
supported in the medical record,” R. at 22. The non-examining consultants found that
plaintiff’s “statements on physical limitations are . . . partially credible based on the
totality of the evidence,” R. at 58, 69, because “[t]here are no clinical findings supporting
the alleged limitations with standing or sitting.” Id. But “the lack of objective [clinical]
findings to substantiate her condition . . . is what can be expected in fibromyalgia cases.”
Johnson, 597 F.3d at 412–13. The consultants relied solely on a review of plaintiff’s
medical record in order to complete plaintiff’s physical RFC assessment. There is
nothing in the medical evidence record, however, that supports their RFC
assessments—and thereby the ALJ’s RFC determination—that plaintiff can occasionally
lift twenty pounds, frequently lift ten pounds, stand and/or sit about 6 hours in an 8-hour
workday, and frequently climb, kneel, stoop, crawl, and crouch. See R. at 59, 70.6
Thus, the ALJ erred in attributing “great weight” to these assessments in determining
plaintiff’s RFC. See Strother v. Astrue, No. 09-30122, 2011 WL 808873, at *7 (D. Mass.
Mar. 2, 2011) (finding that it was error to place significant weight on non-examining
physician in a fibromyalgia case because doctor “could not make his own independent
observations of Plaintiff’s mobility or immobility”); see also Rose v. Shalala, 34 F.3d 13,
18 (1st Cir. 1994) (“We have held that the amount of weight that can properly be given
the conclusions of non-testifying, non-examining physicians will vary with the
circumstances, including the nature of the illness and the information provided the
expert.”). On remand, the Commissioner should consider her assessment of plaintiff’s
credibility—and relatedly, her RFC determination—in light of Johnson.
Although in plaintiff’s Function Report, she states that she is able to perform household
tasks, drive, shop for groceries, read, watch t.v. and knit, R. at 165–68, she also reports that it was
“difficult” to kneel and bend, and that she could not drive a car for long distances. R. at 37. Thus, it is
unclear how these activities of daily living specifically support an RFC assessm ent that concludes plaintiff
is able to frequently clim b, kneel, stoop, crawl, and crouch.
Plaintiff’s Motion to Reverse or Remand the Decision of Commissioner (Docket
# 10) is ALLOWED, and Defendant’s Motion to Affirm the Commissioner’s Decision
(Docket # 13) is DENIED.
The case is remanded to the Commissioner for further findings of plaintiff’s
functional capacity in light of the admitted diagnosis of fibromyalgia and her testimony
detailing her limitations.
Novem ber 6, 2017
/s/Rya W . Zobel
RYA W . ZOBEL
S ENIOR UNITED STATES DISTRICT JUDGE
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