Andrade-Hermort v. Colvin
Judge Rya W. Zobel: Memorandum of Decision entered granting 18 Motion for Reconsideration. Upon reconsideration, defendants Motion for OrderAffirming the Decision of the Commissioner (Docket # 13) is ALLOWED, and plaintiff'sMotion for Order Reversing the Commissioners Decision (Docket # 10) is DENIED.This Memorandum of Decision supersedes the courts prior decision (Docket # 15), andan Amended Judgment shall enter affirming the decision of the Commissioner. (Urso, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-12477-RWZ
MARIA MANUELA ANDRADE-HERMORT
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security Administration
MEMORANDUM OF DECISION
February 14, 2018
Defendant ("the Commissioner") moves for reconsideration of the court's
November 6, 2017 Memorandum of Decision remanding plaintiff's application for Social
Security Disability Insurance benefits and denying the Commissioner's cross-motion to
This case hinges on the Administrate Law Judge’s (“ALJ”) determination of
plaintiff's residual functional capacity ("RFC"), i.e., "the most [she] can still do despite
[her] limitations." 20 C.F.R. § 404.1545(a)(1). In the proceedings below, the ALJ found
that plaintiff had severe impairments, including fibromyalgia. To decide whether those
impairments were disabling, he determined her RFC: she could perform "light work”
The court’s Novem ber 6, 2017 Mem orandum of Decision fully sets out this case’s factual
and procedural details. (Docket # 15). Only the facts relevant to the present m otion are related here.
with certain limitations, including that she could only stand, walk, or sit for about six
hours in an eight-hour workday and could only "climb or balance, stoop, kneel, crouch,
or crawl" "frequently."2 This RFC somewhat incorporates plaintiff’s self-reported
limitations as to, inter alia, difficulty climbing stairs, kneeling, sitting, and balancing. For
the most part, however, the ALJ found plaintiff's allegations were only "partially credible"
because they were not supported by the treatment notes of her physicians. Concluding
that a person with plaintiff's RFC could perform plaintiff's past relevant work, the ALJ
determined she was not disabled.
Plaintiff sued and principally challenged the RFC determination. In its November
6, 2017 Memorandum of Decision, the court agreed with plaintiff that the ALJ had
improperly discredited her self-reported limitations and had erroneously relied on the
absence of objective evidence when determining her RFC. Citing Johnson v. Astrue,
597 F.3d 409 (1st Cir. 2009), the court noted that objective evidence is not typically
found in fibromyalgia cases. The court therefore remanded the application with
instructions that the ALJ reevaluate plaintiff’s credibility and her RFC in light of Johnson.
Standard of Review
Reconsideration pursuant to Federal Rule of Civil Procedure 59(e) "allow[s] a
court to correct its own errors and avoid unnecessary appellate procedures."
Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 190 (1st Cir. 2004). "Rule
59(e) relief is granted sparingly, and only when ‘the original judgment evidenced a
manifest error of law, if there is newly discovered evidence, or in certain other narrow
In this context, “frequently” m eans “occurring from one-third to two-thirds of the tim e”
during the workday, “off and on.” See SSR 83-10, 1983 W L 31251 (“Determ ining Capability to Do Other
W ork – The Medical-Vocational Rules of Appendix 2").
situations.'" Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014) (quoting
Global Naps, Inc. v. Verizon New England, Inc., 489 F.3d 13, 25 (1st Cir. 2007)).
As to the ALJ's decision, the court's review "is limited to determining whether the
ALJ used the proper legal standards and found facts upon the proper quantum of
evidence." Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
The Commissioner argues that the court overstated the rule of Johnson and
erred in finding the ALJ's decision unsupported by substantial evidence.
According to the Commissioner, the ALJ was obligated to evaluate the credibility
of plaintiff's self-reported limitations per the applicable laws and Social Security Rulings
("SSRs"), including the rules specifically governing fibromyalgia evaluations.3 See SSR
12-2p, 2012 WL 3104869 ("Evaluation of Fibromyalgia"). She contends that the ALJ
appropriately considered the record evidence when making that credibility
determination and calculating plaintiff's RFC. Moreover, the Commissioner
distinguishes this case from Johnson, arguing that Johnson concerned the standards
for diagnosing fibromyalgia, whereas this case involves determining whether plaintiff’s
diagnosed fibromyalgia was disabling. She urges that because the ALJ applied the
appropriate law, and because the substantial evidence supports his conclusions, his
decision is entitled to considerable deference. See Rodriguez v. Sec'y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (it is the Commissioner's responsibility
to weigh conflicting evidence and decide issues of credibility; the court must uphold her
SSRs “represent precedent final opinions and orders and statem ents of policy and
interpretations” adopted by the Social Security Adm inistration. 20 CFR § 402.35(b)(1). They are binding
on all com ponents of the Adm inistration. Id.
findings "if a reasonable mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support [her] conclusion.").
As the Commissioner notes, SSR 12-2p guides the ALJ in "evaluat[ing] a
person's statements about his or her symptoms and functional limitations" in
fibromyalgia cases. 2012 WL 3104869, at *5. It does so by directing the ALJ to employ
the two-step process set forth in SSR 96-7p. Id.; see SSR 96-7p, 1996 WL 374186
(“Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an
Individual’s Statements”).4 Step two of that process is relevant here: in determining the
RFC, "[i]f objective medical evidence does not substantiate the person's statements
about the intensity, persistence, and functionally limiting effects of symptoms," then the
ALJ must consider all of the evidence in the record and make a finding on the credibility
of the person's self-reported limitations. SSR 12-2p, 2012 WL 3104869, at *5.
Importantly, the ruling requires that there be "sufficient objective evidence to support a
finding that the person's impairment(s) so limits the person's functional abilities that it
precludes him or her from performing any substantial gainful activity." Id. at *2; see
Coe v. Colvin, No. CV 15-30037, 2016 WL 3350995, at *7 (D. Mass. June 15, 2016)
("some objective evidence is necessary in order to determine the severity of a plaintiff's
fibromyalgia to support a finding of disability.").
SSR 96-7p was in effect at the tim e the ALJ considered plaintiff’s application, but it has since
been superseded by SSR 16-3p. See SSR 16-3p, 2017 W L 5180304 (“Evaluation of Sym ptom s in
Disability Claim s”).
On reconsideration, the ALJ's RFC determination is supported by substantial
evidence and not contrary to law. While it is error, under Johnson, to require objective
clinical evidence as a prerequisite to finding a severe impairment of fibromyalgia, "the
physical limitations imposed by the symptoms of such illnesses do lend themselves to
objective analysis." Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 16 n. 5 (1st
Cir. 2003) (referring to fibromyalgia and chronic fatigue syndrome). The ALJ need not
accept the claimant's self-reported limitations at face value. Rather, he must often
make a credibility determination by weighing a claimant's allegations against the rest of
the record, including the objective medical evidence or lack thereof. See Coe, 2016 WL
3350995, at *8 (credibility determinations are "a vital piece of the puzzle and therefore
critical to the outcome of fibromyalgia cases.") (internal quotation marks omitted). Such
determinations should not be disturbed if they are clearly articulated and supported by
substantial evidence. See Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192,
194 (1st Cir. 1987).
Here, the ALJ reached supportable conclusions and followed the relevant law
and SSRs in his decision. Citing SSR 96-7p, the ALJ first noted that he would need to
make a "finding on [plaintiff's] credibility" as to those self-reported limitations not
substantiated by objective medical evidence. R. 21; see SSR 96-7p, 1996 WL 374186,
at *2.5 The ALJ recognized that such a credibility finding had to be "based on a
consideration of the entire case record." R. 21; see SSR 96-7p, 1996 WL 374186, at
*2. He then began his analysis by summarizing plaintiff's self-reported limitations from
In addition to SSR 96-7p, the ALJ also cited SSR 12-2p (albeit in the context of his stepthree analysis earlier in the decision). R. 18.
her disability and function reports as well as her hearing testimony. He noted the
limitations she claimed to suffer, including difficulty climbing stairs, bending at the waist
to pick up objects, kneeling, and sitting, as well as her general reports of pain and
assertion that she could not work in any capacity on a sustained basis. Next, the ALJ
surveyed the rest of the record, summarizing the relevant notes from treating physicians
Drs. Ogilvy, Stamoulis, and Friday. He enumerated the evidence of functional
limitations in these notes, such as Dr. Ogilvy's reference to "trouble walking because of
the joint pain." R. 298. In addition, the ALJ noted other findings of the treating doctors,
including Dr. Friday's observation that despite "mild tenderness to palpation at multiple
joints," plaintiff had full range of motion, "5/5 strength throughout," and no evidence of
swelling. R. 296. Finally, the ALJ considered the opinion evidence of state agency
medical consultants Dr. Titanji and Dr. Gopal, each of whom reviewed plaintiff's medical
file and opined on the limitations she might suffer due to her conditions.
Based on his review of the record, the ALJ made the specific finding that
plaintiff's self-reports regarding her limitations were "partially credible."6 R. 22. He
stated the reason for this finding: "the treatment notes in the record did not support the
conditions to which she testified." R. 22. That finding is supported by substantial
evidence. None of plaintiff’s treating physicians explicitly opined on her limitations.7 As
SSR 96-7p endorses this nuanced balancing. See SSR 96-7p, 1996 W L 374186, at *4
(“The adjudicator m ay also find an individual's statem ents, such as statem ents about the extent of
functional lim itations or restrictions due to pain or other sym ptom s, to be credible to a certain degree.”) .
The treatm ent notes do contain isolated com m ents regarding plaintiff’s “trouble walking
because of the joint pain" (R. 298) and her having “som e functional debility” (R. 296). Those reports are
consistent with the ALJ’s finding that plaintiff was “partially credible” in her self-reported lim itations. W hile
the com m ents suggest som e lim itations, they do not wholly support plaintiff’s broader claim that she could
not work in any capacity on a sustained basis.
such, the ALJ was justified in relying heavily on Drs. Titanji and Gopal, both of whom
expressed the belief that while plaintiff might have "some limitations because of joint
pain," the objective evidence did not substantiate the more extensive restrictions she
alleged. R. 58, 69; see Mariano v. Colvin, No. CV 15-018, 2015 WL 9699657, at *9
(D.R.I. Dec. 9, 2015), report and recommendation adopted, 2016 WL 126744 (D.R.I.
Jan. 11, 2016) (Because treating doctor did not analyze plaintiff’s limitations, “the ALJ
properly afforded significant probative value to the state agency physicians, who did
opine to exertional, postural, manipulative and environmental limitations arising from the
objective findings in the record."). Finally, afer reaching this supportable credibility
determination, the ALJ calculated plaintiff’s RFC by appropriately incorporating the
record evidence. Though “light work” normally “requires a good deal of walking or
standing,” 20 C.F.R. § 404.1567, the ALJ specified that plaintiff could “stand or walk at
least 6 hours in an 8-hour workday”; could only “sit (with normal breaks) about 6 hours
in an 8-hour workday”; could only “climb or balance, stoop, kneel, crouch or crawl”
“frequently”; and couldn’t climb ladders at all. R. 20.
Notably, "[w]hat is missing from the administrative record in this case is any
assessment by a treating care provider that supports Plaintiff's claims of disabling
functional limitations attributable to fibromyalgia." Barowsky v. Colvin, No.
15-CV-30019, 2016 WL 634067, at *4 (D. Mass. Feb. 17, 2016). As noted above, there
must be "sufficient objective evidence to support a finding that the person's
impairment(s) so limits the person's functional abilities that it precludes him or her from
performing any substantial gainful activity." SSR 12-2P, 2012 WL 3104869, at *2.
Thus, the ALJ was justified in finding that the record evidence was inconsistent with the
full extent of plaintiff's reported difficulties. His credibility determination, RFC
assessment, and ultimate finding of no-disability are supported by substantial evidence.
Defendant's Motion for Reconsideration of the Court's Order & Judgment
(Docket # 18) is ALLOWED. Upon reconsideration, defendant’s Motion for Order
Affirming the Decision of the Commissioner (Docket # 13) is ALLOWED, and plaintiff's
Motion for Order Reversing the Commissioner’s Decision (Docket # 10) is DENIED.
This Memorandum of Decision supersedes the court’s prior decision (Docket # 15), and
an Amended Judgment shall enter affirming the decision of the Commissioner.
February 14, 2018
/s/Rya W. Zobel
RYA W . ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE
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