Maynard v. US Social Security Administration, Acting Commissioner
Filing
16
///ORDER granting 12 Motion to Reverse Decision of Commissioner; denying 14 Motion to Affirm Decision of Commissioner. The case is remanded to the Acting Commissioner for further proceedings, pursuant to sentence four of 42 U.S.C. § 405(g). Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kara Lea Maynard
v.
Civil No. 14-cv-512-LM
Opinion No. 2015 DNH 192
Carolyn W. Colvin, Acting
Commissioner, Social
Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Kara Maynard moves to
reverse the Acting Commissioner’s decision to deny her
application for Social Security disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. § 423.
The
Acting Commissioner, in turn, moves for an order affirming her
decision.
For the reasons that follow, this matter is remanded
to the Acting Commissioner for further proceedings consistent
with this order.
I. Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . . .
42 U.S.C. § 405(g).
However, the court “must uphold a denial of
social security disability benefits unless ‘the [Acting
Commissioner] has committed a legal or factual error in
evaluating a particular claim.’”
Manso-Pizarro v. Sec’y of HHS,
76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v.
Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.”
Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)).
In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla.
It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’”
Currier v. Sec’y of HEW, 612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).
But, “[i]t is the responsibility of the
[Acting Commissioner] to determine issues of credibility and to
draw inferences from the record evidence.
Indeed, the
resolution of conflicts in the evidence is for the [Acting
Commissioner], not the courts.”
Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
2
omitted).
Moreover, the court “must uphold the [Acting
Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.”
Tsarelka v. Sec’y of HHS, 842 F.2d 529,
535 (1st Cir. 1988) (per curiam).
Finally, when determining
whether a decision of the Acting Commissioner is supported by
substantial evidence, the court must “review[] the evidence in
the record as a whole.”
Irlanda Ortiz, 955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
II. Background
The parties have submitted a Joint Statement of Material
Facts, document no. 15.
That statement is part of the court’s
record and will be summarized here, rather than repeated in
full.
Maynard has worked as a restaurant manager, retail manager,
and most recently, as a customer service representative.
She
was last insured for Social Security disability insurance
benefits, or DIB, on December 31, 2010.
Since 2007, Maynard has received the following diagnoses:
back pain, chronic low back pain, chronic low back pain of
probable myofascial etiology, low back pain with left lower
3
extremity radiculopathy and weakness, fatigue, paresthesia,1
hypothyroidism, hypothyroidism with severe fatigue, autoimmune
hypothyroidism, Hashimoto thyroiditis, Vitamin D deficiency,
atypical migraine with neurological symptoms, acute sinusitis,
empty sella syndrome, and depression.
diagnosed with fibromyalgia.
She has also been
Fibromyalgia is “[a] common
syndrome of chronic widespread soft-tissue pain accompanied by
weakness, fatigue, and sleep disturbances; the cause is
unknown.”
Stedman’s Medical Dictionary 725 (28th ed. 2006).
Fibromyalgia is usually associated with paresthesia, and
“frequently occurs in conjunction with migraine headaches.”
Id.
Maynard’s medical treatment has included physical therapy,
chiropractic, orthotics, massage, acupuncture, and a variety of
medications, including narcotic pain medication.
In November of 2009, Maynard began treating with Dr.
Concetta Oteri-Ahmadpour.2
By the time Maynard began seeing Dr.
Oteri, she was already taking two Vicodin every four hours for
Paresthesia is “[a] spontaneous abnormal usually
nonpainful sensation (e.g., burning, pricking); may be due to
lesions of the central or peripheral nervous systems.”
Stedman’s Medical Dictionary 1425 (28th ed. 2006).
1
Some documents in the record refer to Maynard’s treating
physician as Dr. Oteri-Ahmadpour; others refer to her as Dr.
Oteri. Throughout this order, the court refers to her as “Dr.
Oteri.”
2
4
her low back pain, and was getting no relief.3
In February of
2010, Dr. Oteri noted that Maynard had “tried amitriptyline and
Cymbalta without any relief whatsoever,”4 and that she needed “to
be on chronic narcotics in order to have enough relief to
perform her activities of daily living and take care of her
children.”
Administrative Transcript (hereinafter “Tr.”) 374.
In March of 2010, Maynard filed an application for DIB,
alleging an onset date of April 1, 2006.
Her claim was
initially denied, but after a hearing before an Administrative
Law Judge (“ALJ”), she was awarded benefits.
In brief, ALJ Edward Hoban found that Maynard: (1) suffered
from four severe impairments: headaches, obesity, a back
disorder, and fibromyalgia; and (2) had the residual functional
Vicodin is a “trademark for combination preparations of
hydrocodone bitartrate and guaifenesin.” Dorland’s Illustrated
Medical Dictionary 2055 (32d ed. 2012). Hydrocodone is a
“semisynthetic opioid analgesic derived from codeine but having
more powerful sedative and analgesic effects.” Id. at 878.
3
Amitriptyline chloride is “[a] chemical compound in the
tricyclic antidepressant class that can be used to treat some
sleep disorders and neurogenic pain syndromes.” Stedman’s,
supra note 1, at 63. Cymbalta is a “trademark for a preparation
of duloxetine hydrochloride.” Dorland’s, supra note 3, at 457.
Duloxetine hydrochloride is a “serotonin-norepinephrine reuptake
inhibitor, used for the treatment of major depressive disorder
and the relief of pain in diabetic neuropathy.” Id. at 572.
4
5
capacity (“RFC”)5 to perform sedentary work, “except [that] she
[was] unable to maintain a schedule on a regular and continuing
basis due to her need to rest at will secondary to pain and
fatigue.”
Tr. 89.
Based upon the RFC he ascribed to Maynard
and the testimony of a vocational expert (“VE”), the ALJ
determined that Maynard was disabled because her physical
impairments precluded her from performing any jobs that were
available in the national economy.
In reaching his decision, the ALJ relied upon an opinion
from Dr. Oteri.
As the ALJ said in his decision:
Dr. Oteri-Ahmadpour opines that the claimant is not
capable of working due to the very limited range of
motion of her back and [her] need of chronic narcotics
for pain. While the issue of “disability” under the
[Social Security] Act is reserved to the Commissioner,
I find Dr. Oteri-Ahmadpour’s opinion to be evidence of
her assessment of the severity of the claimant’s
symptoms and resultant functional limitations (Social
Security Ruling 96-5p). Accordingly, her opinion is
given weight.
Tr. 89 (citation to the record omitted).
On the other hand, the
ALJ discounted an opinion from a nonexamining medical source:
“The State agency medical consultant’s physical assessment is
given little weight because evidence received at the hearing
As used in the ALJ’s decision, “residual functional
capacity” is a term of art that means “the most [a claimant] can
still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1).
5
6
level shows that the claimant is more limited than determined by
the State agency consultant.”
Tr. 90.
In the opinion the ALJ discounted, which was prepared in
August of 2010, Dr. Hugh Fairly opined, among other things, that
Maynard could stand and/or walk (with normal breaks) for about
six hours in an eight-hour workday and could also sit (with
normal breaks) for about six hours in an eight-hour workday.
In
the section of the RFC assessment form devoted to Maynard’s
abilities to sit, stand, and walk, where he was asked to
“[e]xplain how and why the evidence support[ed] [his]
conclusions” and to “[c]ite the specific facts upon which [his]
conclusions [were] based,” Dr. Fairley did not write anything.
Tr. 476.
After ALJ Hoban issued a decision favorable to Maynard, the
Social Security Appeals Council decided on its own to review
that decision, vacated it, and remanded for further proceedings.
In its remand order, the Appeals Council took issue with ALJ
Hoban’s findings on Maynard’s severe impairments, noting in
particular: “There is no diagnosis or evidence from a treating,
examining, or non-examining acceptable medical source to support
the decision’s finding of fibromyalgia.”
Tr. 93.
Then, the
Appeals Council directed the ALJ to do four different things,
including these three: (1) obtain “a physical consultative
7
examination with a functional capacity assessment . . . and
available medical source statements about what the claimant can
still do despite [her] impairments,” Tr. 95; (2) “obtain [if
necessary] evidence from a medical expert to clarify the nature
and severity of the claimant’s impairment,” id.; and (3)
“[f]urther consider the claimant’s ability to perform [her] past
relevant work,” id.
On remand, the Social Security Administration (“SSA”)
obtained a consultative examination from Dr. William Windler.
Based upon his examination in December of 2012, Dr. Windler
reached the following conclusions:
Ms. Maynard is a 33-year-old female who has a history
of migraine headaches occurring most days and causing
her generally to retreat to bed. She has Hashimoto’s
thyroiditis and in her chart there are entries
indicating elevated thyroid paroxetine antibody
levels. She takes thyroid supplementation. She has
very minimal thoracolumbar scoliosis. She had diffuse
aches and pains and tender points in all four
quadrants consistent with a fibromyalgia. She has a
history of some depression.
Tr. 676.
Dr. Windler also completed a Medical Source Statement
of Ability to do Work-Related Activities (Physical).
In it, he
opined that Maynard could sit for about 30 minutes at a time and
stand or walk for about 15 minutes at a time.
He also opined
that she could sit, stand, and walk for a total of one hour each
during the course of an eight-hour workday, and indicated that
8
she would need to spend the remainder of an eight-hour work day
reclining, lying down, or soaking in a warm tub.
In the space where he was asked to indicate the medical or
clinical findings supporting his opinions about Maynard’s
ability to sit, stand, and walk, Dr. Windler wrote nothing.
However, in response to similar questions asked throughout the
form with regard to other physical abilities, Dr. Windler gave
the following responses:
• history mostly, physical exam findings of diffuse
tender points (lifting and carrying)
• history mostly, diffuse tender points (use of hands)
• history, diffuse tender points, tender knees with
patellar manipulation, low back pain with hip R.O.M.
(use of feet)
• history, physical exam, tender patella, ↓ L.S. spine
R.O.M./tenderness, ↓ squatting via exam (postural
limitations)
• history, exam findings of diffuse tender points, ↓
L.S. spine flexion & tenderness to palpation
diffusely (environmental limitations)
• history, and exam findings as noted on this form &
in report for social security (activities)
Tr. 679, 681, 682, 683, 684.
Finally, when asked to indicate
when the limitations he found were first present, if he could do
so with a reasonable degree of medical probability, Dr. Windler
responded: “Likely 2006 onward.”
Tr. 684 (emphasis added).
9
In June of 2013, Maynard’s treating physician drafted a
letter to whom it may concern, in which she noted the following
diagnoses: “Lyme Arthritis, Myalgic Encephalomyelitis/Chronic
Fatigue Syndrome, Hashimoto’s Disease/Chronic Lymphocytic
Thyroiditis, Fibromyalgia, Chronic back pain and Chronic
migraines.”
Tr. 794.
After describing in detail the clinical
bases for those diagnoses, including a finding that Maynard
exhibited 16 of the 18 tender points used to diagnose
fibromyalgia, Dr. Oteri concluded her letter this way:
Based upon my findings and her conditions, my medical
opinion is that Kara Maynard was completely and
permanently disabled prior to my enrolling her as a
patient in 2009, became unable to work due to her
medical issues prior to my enrolling her as a patient
in 2009, is unable to work in any capacity and that
her physical conditions are also creating mental
difficulties that further her disability. She had
exhibited these symptoms far before she began seeing
me, but none of her previous providers ever compiled
the symptoms to come to a total diagnosis and instead
treated her on a symptomatic basis. We have done
extensive testing on her over the years and we have
determined that her diseases and their effects
prohibit her from even performing daily life
activities and she needs to be on constant narcotic
medications that do not allow her to work, even on a
part time basis.
Tr. 797-98.
On remand, Maynard received a second hearing before a
different ALJ, Thomas Merrill.
At the hearing, ALJ Merrill took
testimony from a medical expert, Dr. Arthur Brovender.
10
Dr.
Brovender described the medical records on which he based his
opinions this way:
In 1F, your honor, 5/5/09 they talk about Vivarins; in
2F just chronic low back pain; on 7/12/’07 she
[weighed] 173 pounds; her MRI of 7/17/’07[]was
essentially normal; 3F an MRI from 20/3/’09 of the
lumbrosacro spine is essentially normal; in
[INAUDIBLE] F they talk about hypothyroidism; in 15F
on 12/26/12 she’s 5’6”, she’s 220 pounds; she has
whole body pain; she has low back pain. Examination
essentially normal. And they made a diagnosis of
fibromyalgia. They didn’t talk about in this
examination of [INAUDIBLE] or tender points. They
didn’t say there was – how many points were tender or
anything like that.
Tr. 70-71.
Next, the ALJ asked: “[W]hich of these conditions
would you opine are medically determined.”
Tr. 71.
Dr.
Brovender responded:
A Her examinations are essentially normal, your honor.
She’s overweight, she’s obese. And there’s no blood
work if she’s got an autoimmune disease. Her MRIs are
essentially normal, her physical examination at 2F,
normal.
Id.
Then Dr. Brovender engaged in the following exchange with
the ALJ:
Q Are you familiar with the listings [of physical
impairments] used by the [C]ommissioner [of Social
Security]?
A Yes.
Q Do you have an opinion as to whether she would meet
any listing?
A I looked at 1.04A, your honor, for low back pain,
and she doesn’t meet or equal that.
11
Q Based upon your review of this record and your
experience, education, and training, do you have an
opinion as to whether there are any limitations that
the claimant would have?
A Your honor, I’m going to factor in – I can’t say how
much pain she has, I don’t know. Like I can’t
quantify it and I’ll put in her weight. I’d say she
could sit for six to eight hours with normal breaks,
stand and walk; two hours of walking, two hours of
standing; she could lift ten pounds frequently, 20
occasionally; she can bend, stoop, squat or kneel
occasionally. I wouldn’t have her crawl. She can go
up stairs and ramps, ropes, ladders and scaffolds
occasionally. There’s no limitation of reaching
overhead or fine or gross manipulation.
Tr. 71-72.
In addition to taking testimony from Dr. Brovender, the ALJ
also heard from a vocational expert.
hypothetical questions to the VE.
The ALJ posed three
In response to the first one,
which posited an ability to stand or walk for six hours and an
ability to sit for six hours, the VE testified that Maynard
could perform her former work as a customer service
representative and her former work as a retail manager.
In
response to the second hypothetical question, which posited an
ability to stand and walk for only two hours each, or a total of
four hours, the VE testified that Maynard could work as a
customer service representative.
In response to the third
question, which posited an ability to walk, stand, and sit for a
total of one hour each in an eight-hour workday, the VE
testified that there were no jobs that Maynard could perform on
12
a full-time basis.
Thus, the key issue in this case is
Maynard’s capacity for sitting, standing, and walking.
After the hearing, the ALJ issued a decision that includes
the following relevant findings of fact and conclusions of law:
3. Through the date last insured, the claimant had
the following severe impairments: migraines; and
chronic low back pain (20 CFR 404.1520(c)).
. . . .
4. Through the date last insured, the clamant did not
have an impairment or combination of impairments that
met or medically equaled the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and
404.1526).
. . . .
5. After careful consideration of the entire record,
I find that, through the date last insured, the
claimant had the residual functional capacity to
perform light work as defined in 20 CRF 404.1567(b),
except with the ability to stand and walk for two
hours each and sit for six hours in an eight hour
workday, with unlimited use of hands or feet to
operate controls and to push/pull. She is unable to
crawl or climb ladders, ropes and scaffolds, and she
is able to occasionally balance, stoop, kneel, crouch,
and claim ramps and stairs. She must avoid
unprotected heights.
. . . .
6. Through the date last insured, the claimant was
capable of performing past relevant work as a customer
service representative. This work did not require the
performance of work-related activities precluded by
the claimant’s residual functional capacity (20 CFR
404.1565).
Tr. 13, 14, 18.
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III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability.
42 U.S.C. §§ 423(a)(1)(A)-(E).
The only question
in this case is whether Maynard was under a disability at any
time before December 31, 2010, the last date on which she was
insured for DIB.
To decide whether a claimant is disabled for the purpose of
determining eligibility for DIB, an ALJ is required to employ a
five-step process.
See 20 C.F.R. § 404.1520.
The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform
past relevant work, then the application is denied; 5)
if the [claimant], given his or her residual
functional capacity, education, work experience, and
age, is unable to do any other work, the application
is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920, which outlines the same five-step process as
the one prescribed in 20 C.F.R. § 404.1520).
14
The claimant bears the burden of proving that she is
disabled.
See Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
must do so by a preponderance of the evidence.
She
See Mandziej v.
Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11) (D. Mass. 1982)).
Finally,
[i]n assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including:
(1) objective medical facts; (2) [claimant]’s
subjective claims of pain and disability as supported
by the testimony of the claimant or other witness; and
(3) the [claimant]’s educational background, age, and
work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).
B. Maynard’s Claims
Maynard claims that the ALJ’s decision should be reversed,
and her case remanded, because the ALJ erred in assessing her
RFC by: (1) improperly weighing the expert-opinion evidence; (2)
failing to weigh the “other source” evidence; and (3) improperly
assessing her credibility.
Maynard’s first argument is both
persuasive and dispositive.
In his decision, the ALJ gave “significant weight” to the
opinion Dr. Brovender provided at the hearing, “significant
weight” to Dr. Fairley’s 2010 opinion, “limited weight” to both
of Dr. Oteri’s opinions, and “limited weight” to Dr. Windler’s
15
opinion.
Maynard objects to the manner in which the ALJ handled
the opinions of Drs. Brovender, Oteri, and Windler, while the
Acting Commissioner contends that the ALJ gave proper
consideration to all four opinions.
The court begins by
outlining the regulations that govern the assessment of medical
opinions and then turns to each of the opinions at issue in this
case.
1. Evaluation of Medical Expert Opinions
Under the applicable Social Security regulations, the
Acting Commissioner, and by extension the ALJ, is directed
generally to give the greatest weight to medical opinions from
treating sources, less weight to opinions from sources who have
only examined the claimant, and the least weight to medical
source who have neither treated nor examined the claimant.
20 C.F.R. § 404.1527(c).
See
That said, however, “the regulations
also presuppose that nontreating, nonexamining sources may
override treating doctor opinions, provided there is support for
the result in the record.”
Shaw v. Sec’y of Health & Human
Servs., 25 F.3d 1037 (unreported per curiam table decision)
(citations omitted), 1994 WL 251000, at *4 (1st Cir. 1994); see
also Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d
427, 431 (1st Cir. 1991) (collecting cases in which opinions of
treating physicians have been properly discounted).
16
When determining the amount of weight to give a medical
opinion from a treating source, the ALJ is directed to consider
the length of the treatment relationship and the frequency of
examination, along with the nature and extent of the treatment
relationship.
See 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii).
When
assessing any medical opinion, the ALJ should consider
supportability through medical signs and laboratory findings,
consistency with the record as a whole, the medical source’s
specialization, and other factors, such as the source’s
understanding of Social Security disability programs and his or
her familiarity with information in the claimant’s case file.
See 20 C.F.R. §§ 404.1527(c)(3)-(6).
2. Dr. Oteri
The ALJ gave Dr. Oteri’s opinions “limited weight because
[they were] inconsistent with the claimant’s diagnostic and
clinical exams,” Tr. 17, because “the records show that Dr.
Oteri-Ahmadpour [was] a ‘personal friend’ of the claimant,” Tr.
18, and because “her opinion regarding the claimant’s inability
to perform daily activities is not supported by the claimant’s
own reported daily activities,” id.
The ALJ’s appraisal of Dr.
Oteri’s opinion is not well supported.
In support of his determination that Dr. Oteri’s opinion
was inconsistent with her diagnostic and clinical examinations,
17
i.e., that her opinion was not supported, the ALJ wrote: “She
[Dr. Oteri] also opines that despite normal test results, the
claimant has a diagnosis of fibromyalgia.”
Tr. 17.
There is a
two-fold problem with the ALJ’s determination.
First, it would appear to be based upon a misreading of Dr.
Oteri’s opinion, which states:
The diagnosis of Fibromyalgia is based on the
following clinical findings: We did screening
laboratory tests to exclude other medical conditions
such as rheumatoid arthritis, myositis,
hypothyroidism, multiple sclerosis, and lupus. Also,
the American College of Rheumatology (Wolfe, et al.
Arthritis & Rheumatism 33:160, 1990) has established
general classification guidelines for Fibromyalgia.
These guidelines require that widespread aching be
present for at least 3 months and a minimum of 11 out
of 18 tender points be met and the patient meets both
of these criteria including at least 16 of the 18
tender points on each examination.
Tr. 795.
Based upon the foregoing, Dr. Oteri did not, as the
ALJ suggests, diagnose fibromyalgia without a clinical basis for
doing so.
Moreover, the “normal test results” the ALJ
identified are consistent with a diagnosis of fibromyalgia, and
the clinical findings on which Dr. Oteri relied are appropriate
to support a diagnosis of fibromyalgia.
As the court of appeals
for this circuit has pointed out:
Fibromyalgia is defined as “[a] syndrome of chronic
pain of musculoskeletal origin but uncertain cause.”
Stedman’s Medical Dictionary, at 671 (27th ed. 2000).
Further, “[t]he musculoskeletal and neurological
examinations are normal in fibromyalgia patients, and
there are no laboratory abnormalities.” Harrison’s
18
Principles of Internal Medicine, at 2056 (16th ed.
2005). 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.” Stedman’s Medical
Dictionary, supra.
Johnson v. Astrue, 597 F.3d 409, 410 (1st Cir. 2010).
Given a
proper reading of Dr. Oteri’s opinion, and in light of Johnson,
the court cannot agree that Dr. Oteri’s diagnosis of
fibromyalgia was not supported by clinical findings.
The ALJ also discounted Dr. Oteri’s opinion because Dr.
Oteri is a “‘personal friend’ of the claimant.”
Tr. 18.
Presuming that is an appropriate ground for discounting a
medical opinion, the evidence upon which the ALJ relied for
making that finding consists in its entirety of a telephone
message sheet filled out by several different individuals who
are identified only by their initials.
The only plausible
interpretation of that sheet, when read in its entirety, is that
Maynard had a medical issue to discuss that was sufficiently
personal that she did not want to mention it to anyone other
than Dr. Oteri.
What is missing here is anything directly from
either Dr. Oteri or Maynard that would indicate that they were
personal friends or that could reasonably support such an
inference.
A single message sheet, completed by intermediaries
standing between Maynard and Dr. Oteri, is not evidence a
19
reasonable mind could accept as adequate to support the
conclusion that Dr. Oteri and Maynard were personal friends and
that their friendship inspired Dr. Oteri to issue opinions that
were more favorable to Maynard’s claim than the opinions she
would have written for a patient with similar medical conditions
who was not a personal friend.
Moreover, while the ALJ focused upon a purported personal
relationship between Maynard and Dr. Oteri, he said nothing
about the length of the treatment relationship and the frequency
of examination, which is a factor he was obligated to consider.
See 20 C.F.R. § 404.1527(c)(2)(i).
With respect to the nature
and extent of the treatment relationship, see id. §
404.1527(c)(2)(ii), the ALJ observed that Dr. Oteri’s “records
actually show very limited treatment during the relevant time
period.”
Tr. 18.
But, by the time Maynard began treating with
Dr. Oteri, several forms of treatment for pain, including
physical therapy, chiropractic, orthotics, massage, and
acupuncture had proven to be ineffective, and Maynard was
already on narcotic pain medication, which Dr. Oteri continued.
Moreover, in the 2010 opinion from Dr. Oteri on which ALJ Hoban
relied when he determined that Maynard was disabled, Dr. Oteri
stated that Maynard had “debilitating low back pain for which we
have not found an effective treatment.”
20
Tr. 567.
Given that
Maynard had tried multiple forms of treatment, without success,
before she began seeing Dr. Oteri, Dr. Oteri’s relatively
limited treatment regimen is not substantial evidence supporting
a decision to give little weight to her opinion.
Finally, the ALJ stated that Dr. Oteri’s opinion on
Maynard’s inability to perform daily activities “is not
supported by the claimant’s own reported daily activities, which
include caring [for] her three young children, helping with
meals and going shopping.”
Tr. 18.
The Acting Commissioner
concedes that the record does not support the ALJ’s finding that
Maynard reported that she went shopping.
In the Function Report on which the ALJ relied for his
finding that Maynard helps with meals, Maynard described her
food preparation activities this way: “my husband helps me with
meals by prepping before he goes to bed our breakfast + lunch,”
Tr. 237.
She elaborated: “I warm things in microwave if needed
and my husband preps everything . . . I feed my kids + self
daily from prepped meals with help about an hour for all 3 meals
. . . I can no longer stand to cut, clean, chop, cook meals.”
Tr. 238.
In that same report, Maynard described her child-care
activities this way: “bathe with the children, feed breakfast to
kids and myself, get tired; put on movie for kids, rest on
couch, eat lunch, take more medication, sit and play a game with
21
kids if not too tired, nap with kids.”
Tr. 236.
In addition,
after indicating that she went outside daily, Maynard explained:
“We sit on the stairs to get fresh air but we don’t have a
fenced yard so the kids can’t play as I can’t chase them.”
239.
Tr.
In sum, the Function Report on which the ALJ relied to
discredit Dr. Oteri’s opinion does not contain substantial
evidence of meal-preparation or child-care activities that is
indicative of a capacity for full-time work.
The bottom line is this.
The ALJ’s explanation for giving
Dr. Oteri’s opinion limited weight is not supported by
substantial evidence.
3. Dr. Windler
The ALJ gave “limited weight to the opinion of the
consultative examiner, Dr. William Windler, M.D. . . . because
it [was] mostly conclusory, with little evidence cited to
support his opinion of disability,” because “[t]he functional
limitations appear to be based solely on the claimant’s selfreported limits,” and because the “opinion . . . is inconsistent
with [Dr. Windler’s] own exam.”
Tr. 18.
The ALJ’s appraisal of
Dr. Windler’s opinion is not well supported.
As noted, the ALJ criticized Dr. Windler’s opinion for
being conclusory and citing little evidence.
The Acting
Commissioner goes a step further, pointing out that “Dr. Windler
22
left blank the section of the form asking him to identify the
particular medical or clinical findings supporting his opinion
of Plaintiff’s extreme sitting, standing, and walking
limitations.”
Resp’t’s Mem. of Law (doc. no. 14-1) 13-14.
However, the opinion from Dr. Fairley, to which the ALJ gave
great weight, suffers from the exact same deficiency; Dr.
Fairley did not answer the same question that Dr. Windler did
not answer.
See Tr. 476.
Moreover, when viewed as a whole, Dr. Windler’s Medical
Source Statement makes it evident that he based his opinion on a
combination of subjective history from Maynard and the results
of his physical examination, including his identification of
“diffuse aches and pains and tender points in all four quadrants
consistent with a fibromyalgia.”
Tr. 676.
Specifically, Dr.
Windler mentioned his examination and findings in no fewer than
six other responses.
In addition, the question that Dr. Windler
left blank was not just left blank; it was crossed out with an
“X” that was intended to eliminate a question right above it
that was not applicable.
It is clear, when viewing the form as
a whole, that Dr. Windler crossed out the question he did not
answer by accident, and that his response to that question, had
he answered it, would have been similar to the responses he gave
to six other similar questions.
23
In short, the court cannot agree that Dr. Windler’s opinion
was inadequately supported.
Similarly, because Dr. Windler
conducted a physical examination, and referred to its results in
both his narrative report and his Medical Source Statement, the
court concludes that the ALJ’s characterization of Dr. Windler’s
limitations as being based solely upon Maynard’s self-reporting
is not supported by substantial evidence.
And, in addition, “‘a
patient’s report of complaints, or history, is an essential
diagnostic’ tool in fibromyalgia cases, and a treating
physician’s reliance on such complaints ‘hardly undermines his
opinion as to [the patient’s] functional limitations.’”
Johnson, 597 F.3d at 412 (quoting Green-Younger v. Barnhart, 335
F.3d 99, 107 (2d Cir. 2003)).
Also unfounded is the ALJ’s assertion that Dr. Windler’s
opinion “is inconsistent with his own exam, which shows intact
normal function, no deformity of the spine noted, although with
some tenderness, normal heel and toe walking, normal reflexes,
and normal motion, motor function, and sensation in her lower
extremities.”
Tr. 18.
For one thing, the “some tenderness” to
which the ALJ refers is actually diffuse tenderness in Maynard’s
neck, in her abdomen (even to light touch), throughout her upper
extremities, throughout her thoracolumbar spine, and throughout
her lower extremities.
See Tr. 676.
24
Moreover, Dr. Windler
characterized that diffuse tenderness as “consistent with
fibromyalgia,” id., a characterization that is consistent with
the diagnostic criteria for fibromyalgia, his own findings of
diffuse tender points in all four quadrants, and Dr. Oteri’s
finding that Maynard exhibited 16 of the 18 fibromyalgia tender
points.
Beyond that, the ALJ does not explain how the various
normal findings he mentions translate into a capacity for
sitting, standing, and walking that is any different from the
RFC Dr. Windler ascribed to Maynard.
As with the ALJ’s appraisal of Dr. Oteri’s opinion, the
court concludes that the ALJ’s assessment of Dr. Windler’s
opinion is not supported by substantial evidence.
4. Dr. Fairley
The ALJ gave Dr. Fairley’s opinion “significant weight in
light of his medical expertise and knowledge of Social Security
Regulations” and “because it [was] generally consistent with the
claimant’s medical records and reported daily activities.”
17.
Tr.
While the ALJ said that Dr. Fairley’s opinion was generally
consistent with Maynard’s medical records, he did not indicate
which records, specifically, he was referring to.
Moreover,
because Dr. Fairley rendered his opinion in 2010, he necessarily
did not have the benefit of the medical evidence on which Drs.
Oteri and Windler based their diagnoses and opinions, medical
25
evidence that is decidedly inconsistent with Dr. Fairley’s
opinion.
5. Dr. Brovender
The ALJ gave Dr. Brovender’s opinion “significant weight in
light of his medical expertise and knowledge of Social Security
Regulations” and “because it [was] generally consistent with the
evidence of record, which does not show disabling functional
limitations due to pain.”
Tr. 17.
Both Dr. Brovender’s opinion
and the ALJ’s reliance upon it are problematic for several
reasons.
First, Dr. Brovender’s opinion did not factor in either Dr.
Oteri’s opinion or the clinical findings and diagnosis on which
that opinion was based.
See 20 C.F.R. § 404.1527(c)(3)
(“because nonexamining sources have no examining or treating
relationship with [a claimant], the weight we will give their
opinions will depend on the degree to which they provide
supporting explanations for their opinions,” which includes
consideration of “opinions of treating and other examining
sources”).
Then, while he purported to offer an opinion on
whether Maynard’s low back pain met or equaled the listing for
disorders of the spine, Dr. Brovender also stated that he did
not know, and could not factor in, her pain.
26
Finally, Dr. Brovender misconstrued Dr. Windler’s opinion.
According to Dr. Brovender, Dr. Windler diagnosed fibromyalgia
without talking about tender points.
Dr. Windler did not
quantify Maynard’s tender points, which is one of the diagnostic
criteria for fibromyalgia.
See Johnson, 597 F.3d at 410.
But,
he did state that his examination identified tender points in
five different parts of Maynard’s body, spanning all four
quadrants, which is the other diagnostic criterion for
fibromyalgia.
In addition, other than making passing references
to an “essentially normal” physical examination and two
“essentially normal” MRIs, Dr. Brovender did not link his
opinion that Maynard could sit for six to eight hours, walk for
two hours, and stand for two hours to any particular medical
signs or laboratory findings.
See 20 C.F.R. § 404.1527(c)(3).
And, as the court has noted, normal physical examinations and
diagnostic imaging are not inconsistent with a diagnosis of
fibromyalgia and the functional limitations that can result from
that medical condition.
Because Dr. Brovender misconstrued Dr. Windler’s opinion,
and because Dr. Brovender did not support his opinion with
citations to medical evidence, see 20 C.F.R. § 404.1527(c)(3),
the ALJ’s reliance upon Dr. Brovender’s opinions is misplaced.
27
6. Medical Opinion Summary
The ALJ’s handling of the medical opinions in this case
warrants a remand.
The Appeals Council directed the ALJ on
remand to obtain a consultative examination with an RFC
assessment.
The ALJ did so, and Dr. Windler assessed Maynard as
having, prior to the expiration of her DIB coverage, physical
limitations that, according to the VE, precluded her from
working.
The Appeals Council directed the ALJ to obtain
available medical source statements about Maynard’s capacity for
performing work-related activities.
The ALJ did so, and Dr.
Oteri gave a statement that was consistent with Dr. Windler’s
assessment.
The ALJ, however, rejected that evidence in favor
of the opinions of two nonexamining medical experts, including
Dr. Brovender, who: (1) did not review Dr. Oteri’s opinion and
the clinical findings reported therein; (2) mischaracterized Dr.
Windler’s opinion; and (3) did not adequately identify support
for his own opinion in the medical evidence.
Because the ALJ’s
appraisal of the medical opinions is not supported by
substantial evidence, this case must be remanded.
7. Other Issues
In her memorandum of law, Maynard points out that the ALJ
did not apply the relevant SSA guidelines for evaluating DIB
claims based upon fibromyalgia.
The Acting Commissioner
28
concedes that the ALJ applied the wrong set of guidelines.
On
remand, the ALJ should apply Social Security Ruling 12-2p,
“Evaluation of Fibromyalgia,” when considering Maynard’s claim.
IV. Conclusion
For the reasons given, the Acting Commissioner’s motion for
an order affirming her decision, document no. 14, is denied, and
Maynard’s motion to reverse that decision, document no. 12, is
granted to the extent that the case is remanded to the Acting
Commissioner for further proceedings, pursuant to sentence four
of 42 U.S.C. § 405(g).
The clerk of the court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
October 7, 2015
cc:
Janine Gawryl, Esq.
Robert J. Rabuck, Esq.
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