Lindstrom v. US Social Security Administration, Acting Commissioner

Filing 14

///ORDER denying 7 Motion to Reverse Decision of Commissioner; granting 12 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sandra Lindstrom
v.

Civil No. 16-cv-109-JD
Opinion No. 2017 DNH 019

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
O R D E R
Sandra Lindstrom seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Acting Commissioner of
the Social Security Administration, denying her application for
disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. § 423.

Lindstrom contends that the

Administrative Law Judge (“ALJ”) erred in finding that she did
not have a medically determinable severe impairment due to
multiple chemical sensitivity (“MCS”) before her date last
insured.

The Acting Commissioner moves to affirm.
Standard of Review

In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”

Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276

F.3d 1, 9 (1st Cir. 2001).

The court defers to the ALJ’s

factual findings as long as they are supported by substantial
evidence.

§ 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34

(1st Cir. 2016).
scintilla.

“Substantial evidence is more than a mere

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Castillo

Condo. Ass’n v. U.S. Dep’t of Housing & Urban Dev., 821 F.3d 92,
97 (1st Cir. 2016) (internal quotation marks omitted).
“[S]ubstantial evidence does not mean either uncontradicted
evidence or overwhelming evidence” but instead can be satisfied
“even if the record arguably could justify a different
conclusion.”

Id. (internal quotation marks omitted).
Background

Lindstrom applied for social security disability benefits
in 2009, alleging that her disability began on October 15, 1990.1
After her application was denied, a hearing was held before an
ALJ in December.

The ALJ issued a decision denying Lindstrom’s

claim on February 4, 2011.

Lindstrom appealed the unfavorable

decision, and the United States District Court in the District
of Vermont reversed and remanded for further proceedings.2

At that time and through most of the prior proceedings,
Lindstrom was known as Sandra Schadt.
1

2

Lindstrom has since moved to New Hampshire.
2

On direction from the Appeals Council, a new hearing was
held on October 14, 2015, before the same ALJ who held the first
hearing.

The ALJ issued an unfavorable decision on December 22,

2015, and Lindstrom sought judicial review of that decision.
Lindstrom was thirty years old in 1990.

She has a college

degree and has worked as a sales clerk, waitress, file clerk,
recreational aid, maintenance worker, supervisor of a group
home, and park foreman.

She stopped working in 1990 when she

was pregnant because she was having minor reactions to chemicals
in the environment, and she was concerned about the impact of
her reactions on her unborn child.
stayed at home to care for him.

After her son was born, she

Lindstrom’s last insured date

was December 31, 1995.
Lindstrom was evaluated in April and June of 1982 because
of allergic reactions.

She provided a detailed history of her

reactions to materials and environments beginning in 1979.

She

remembered having severe skin reactions in 1979 and 1982 but
follow-up pulmonary testing was normal and a dermatologist found
no reason to pursue patch tests.
Dr. John Balmes concluded that Lindstrom had developed
severe allergic reactions in the past, that she did not have
asthma, that she had sensitivity to substances in new clothes,
and that her reactions could be due to those substances and

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anxiety.

Lindstrom’s obstetric record in 1991 notes that she

was severely allergic to chemicals.
Michael Schaffer, Lindstrom’s chiropractor, wrote a letter
in 2009 that he had first treated Lindstrom in 1993.

Schaffer

noted that Lindstrom was intensely sensitive to chemicals,
including fumes from his office copy machine, new carpet, and
perfumes worn by others in his office.

Lindstrom’s employer

from 1982 to 1990 also wrote a letter that said Lindstrom
struggled with chemical allergies, which caused her to miss work
and eventually to stop working.
Medical notes in 1998 mentioned Lindstrom’s chemical
sensitivities.

Notes from the Shepard of Hope Clinic in 2002

stated that Lindstrom had an extreme allergy to new carpet but
do not indicate any treatment being provided for her allergy.
Treatment notes in 2006 mentioned her many chemical
sensitivities but do not indicate treatment.

Lindstrom was

tested for allergies in August of 2008, which showed strong
reactivity to polysorbate 60, fluride, indocine, penicillin, and
sulfamethosozole, along with moderate and mild reactions to
certain other substances.3

The testing done in 2008 had not been approved by the Food
and Drug Administration and had inconsistent results.
3

4

In September of 2009, Nurse Practitioner April Brumson,
from the Soujourns Community Health Clinic, noted that Lindstrom
had headaches because of multiple chemical sensitivities and
that her sensitivities also caused anaphylaxis, compromised
immunity, poor concentration, and an inability to process
information.

Brumsom thought the cognitive changes were more

disabling than headaches, that avoiding triggers was the best
treatment, and that her reactions were worsening over time.
Brumsom’s opinion was reviewed and approved by Dr. Gary Clay.
Dr. N. Thomas LaCava of Francis Hollistic Medical Center
wrote in October of 2009 that Lindstrom had chemical
sensitivities, chronic fatigue, food allergies, thyroiditis with
hypothyroidism, and a history of anaphylaxis.

Her treatment

involved avoiding chemicals that triggered a reaction, and her
prognosis was chronic, permanent, and unremittent.

For that

reason, Dr. LaCava thought Lindstrom would always be absent from
work.
Lindstrom also obtained an opinion letter in October of
2009 from Dr. Linda Haltinner who worked at the Soujourns
Clinic.

Dr. Haltinner wrote that Lindstrom was being treated

for symptoms of MCS, that her reactivity was extreme and
interfered with her normal life activities.

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She recounted an

incident at the clinic when Lindstrom had a reaction and had to
be escorted outside to allow her thinking to clear.
Nurse Practitioner Brumson provided another opinion in July
of 2010 in which she wrote that Lindstrom’s disability was due
to environmental allergies and multiple chemical sensitivities
as well as asthma caused by chemical exposure.

An ideal

controlled environment could best be approached in Lindstrom’s
home.

Dr. Brumson stated that Lindstrom’s limitations had

existed since 1979 based on Lindstrom’s reports.
Dr. Alex Bingham provided an opinion in December of 2010
that Lindstrom had been totally disabled since 1999 and had been
partially disabled from 1990 to 1999.

He found that Lindstrom

was disabled due to MCS.

He recounted Lindstrom’s symptoms and

her history of reactions.

He thought that she could not spend

time in an environment with exposure to a wide array of
chemicals and could function only in a highly controlled
environment at home.
At the first hearing on December 15, 2010, Lindstrom
testified to a history of physical responses to environmental
conditions, including cigarette smoke and pesticides, and to
being chronically sick.

She testified that when she became

pregnant she stopped working because she was afraid of the
effect of her reactions on the baby.

6

After her son was born in

1991, her sensitivity to environmental conditions became worse
and Lindstrom stayed at home to care for him.
She testified that her reactions to chemicals in the
environment included migraine headaches and anaphylactic shock.
She said that she had anaphylactic reactions in 1993, 2004, and
2005 but was able to treat the episodes with Benadryl except for
the bee sting in 2004 when she used an Epipen.

Lindstrom

testified that over the years she has learned to avoid exposure
that causes reactions.
Dr. Bruce J. Biller appeared by telephone at the 2010
hearing as an impartial medical expert.

Dr. Biller testified

that Lindstrom’s medical record was not a convincing basis to
prove disability.

He noted that MCS had not been proven by

testing but instead by a process of elimination without a
complete evaluation of other causes of Lindstrom’s symptoms.
Dr. Biller noted that the record did not include records of
anaphylaxis events or visits by Lindstrom for emergency care,
which would have been in the records if those incidents had
involved medical care.
Dr. Biller also questioned the validity of some of the
testing.

In Dr. Biller’s opinion, the record did not support

disability based on a diagnosis of MCS.

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He recommended that

Lindstrom undergo allergy and psychiatric testing by boardcertified physicians.
In response to questioning by Lindstrom’s counsel, Dr.
Biller noted that the medical paper he referenced for the case
was markedly skeptical of MCS as a disorder and that the AMA’s
Society Council on Scientific Affairs recommended that multiple
chemical sensitivities not be considered a recognizable symptom.
Dr. Biller also testified that Dr. Bingham’s criteria for MCS
would have to be reconciled with the more recent paper he had
read for the case.

The ALJ denied Lindstrom’s claim on February

4, 2011.
Lindstrom had allergy and neuro-psychological testing in
January and February of 2011 to assess MCS.

Dr. LaCava reported

in September of 2011 that Lindstrom was reactive to almost every
substance that was tested.

Based on his interpretation of the

testing, Dr. LaCava thought that Lindstrom’s reactivity would
preclude working in most if not all employment environments.
Dr. Luz Ruiz interpreted the neuro-psychological testing and
found that Lindstrom had mild cognitive impairment.
In September of 2013, Dr. Michael Lax provided an opinion
letter based on a review of Lindstrom’s medical records.

Dr.

Lax diagnosed MCS based on “a typical constellation of symptoms
and clinical presentation.”

He thought that Lindstrom had been

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unable to work outside her home since she stopped working in
1990.
Lindstrom sought judicial review of the ALJ’s decision in
the District of Vermont.

That court found that the ALJ erred in

determining at Step Two that Lindstrom did not have a medically
determinable impairment.

Specifically, the court concluded that

the ALJ should have considered all of the medical opinion
evidence in the record instead of relying exclusively on Dr.
Biller as to whether MCS can be a medically determinable
illness.

The court further directed that if the medical

opinions were correctly assessed on remand, the ALJ should then
consider the remoteness of the alleged onset date, including the
requirements of SSR 83-20 if necessary.
The second ALJ hearing was held in October of 2015.
Although Dr. Biller would have been available to testify at that
hearing, the ALJ and Lindstrom’s counsel had no questions to ask
him.

Lindstrom provided witness statements about her symptoms

from a former boss, her ex-husband, her sister, and her son.
The ALJ denied Lindstrom’s claim, and Lindstrom did not seek
review by the Appeals Council.
Discussion
In support of her appeal, Lindstrom contends that the ALJ
erred in finding that MCS is not a severe medically determinable
9

impairment at Step Two and asks the court to award benefits.
The Acting Commissioner moves to affirm the decision on the
grounds that the ALJ properly found that Lindstrom did not have
a medically determinable severe impairment before her last
insured date in 1995.
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis.

20 C.F.R. § 404.1520.

The claimant bears

the burden through the first four steps of proving that her
impairments preclude her from working.4
F.3d 606, 608 (1st Cir. 2001).

Freeman v. Barnhart, 274

At the fifth step, the Acting

Commissioner has the burden of showing that jobs exist which the
claimant can do.

Heggarty v. Sullivan, 947 F.2d 990, 995 (1st

Cir. 1991).
A.

Step Two Analysis
At Step Two, the ALJ must determine whether the claimant

has a severe medically determinable impairment or a combination
of impairments that is severe and meets the duration

The first four steps are (1) whether the claimant is engaged
in substantial gainful activity; (2) whether he has a severe
impairment; (3) whether the impairment meets or equals a listed
impairment; and (4) assessing the claimant’s residual functional
capacity and his ability to do his past relevant work. 20
C.F.R. § 404.1520(a).
4

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requirement.5

§ 404.1520(a)(4)(ii).

An impairment is medically

determinable only if it “result[s] from anatomical,
physiological, or psychological abnormalities which can be shown
by medically acceptable clinical and laboratory diagnostic
techniques.”

20 C.F.R. § 404.1508.

That means that the

impairment “must be established by medical evidence consisting
of signs, symptoms, and laboratory findings, not only by [the
claimant’s] statement of symptoms.”

Id.

An impairment or

combination of impairments is severe if the impairment or
combination “significantly limits [the claimant’s] ability to do
basic work activities.”

§ 404.1520(c).

In this case, Lindstrom claims to have been disabled since
1990 by MCS.

In reversing and remanding the case, the Vermont

District Court directed the ALJ on remand to weigh and consider
the medical opinions in the record, not to rely exclusively on
the opinion of Dr. Biller, and to develop the record with
missing records and with skin testing and neuropsychological
assessment.

The court did not consider the issue of Lindstrom’s

Lindstrom, who is represented by counsel, appears to
misunderstand her burden at Step Two. The issue is not whether
MCS might be a medically determinable severe impairment, as she
suggests. Instead, she bears the burden of proving that she had
a severe medically determinable impairment due to MCS within the
relevant period.
5

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last insured date and what evidence supported finding a
medically determinable impairment before that date.
B.

Last Insured Date
To be eligible for disability insurance benefits, the

claimant’s impairment must have been disabling while she had
insured status under the social security program. 42 U.S.C. §
423(a)(1)(A) 20 C.F.R. § 404.101(a); Jack v. Comm’r, Social
Security Admin., --- F. App’x ---, 2017 WL 104752, at *2 (11th
Cir. Jan. 11, 2017).

For that reason, a claimant must show that

she was disabled, within the meaning of the Social Security Act,
before her last insured date.

Fischer, 831 F.3d at 32-33;

Tremblay v. Sec’y of Health & Human Servs., 676 F.2d 11, 13 (1st
Cir. 1982).

At Step Two, the claimant must show that she had a

severe medically determinable impairment during the relevant
period, which is from the alleged onset date through her last
insured date.

See Duncan v. Colvin, 2016 WL 5477567, at *6 (D.

Me. Sept. 28, 2016); McFall v. Colvin, 2016 WL 900641, at *4
(D.N.H. Mar. 9, 2016) (citing Moret Rivera v. Sec’y of Health &
Human Servs., 1994 WL 107870, at *5 (1st Cir. Mar. 23, 1994)).
C.

Analysis
The ALJ again found that Lindstrom had not “substantiated

the existence of any medically determinable impairment through
the use of medically acceptable clinical and laboratory
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diagnostic techniques.”

Admin. Rec. at 933.

The ALJ noted Dr.

Biller’s opinion of the difficulty of diagnosing MCS.

He

concluded that the medical records provided only reports of
symptoms without “observation of symptoms by medical professions
[sic] or any testing that would support the claimant’s
allegations.”

Id.

The ALJ is wrong about a lack of testing evidence in the
record and again relies on Dr. Biller’s original review of the
record in that regard.

The record now includes, in addition to

the results of testing done in 2008, the results of skin testing
that was done in February and March of 2011, Dr. LaCava’s letter
in September of 2011 that interprets the results of the 2011
testing, and the results of neuro-psychological testing.

If the

ALJ had concluded his examination of the record at that point,
the decision would be reversed and remanded based on those
errors.
The ALJ continued on, however, to consider the evidence and
the opinions in the record to determine whether Lindstrom had a
medically determinable severe impairment during the relevant
period.

The ALJ remained skeptical that MCS is a medically

determinable impairment.

Because the Social Security

Administration apparently accepts MCS, or environmental illness,
as a medically determinable impairment, the court will proceed

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on that assumption.

See, e.g., Schadt v. Social Security Admin.

Comm’r, 2012 WL 1910083, at *5 (D. Vt. May 25, 2012); Robbins v.
Astrue, 2010 WL 3168306, at *4-*5 (D.N.H. Aug. 9, 2010).
Assuming that MCS is a medically determinable impairment,
the problem presented in this case, which was not considered by
the Vermont District Court, is whether Lindstrom has shown she
had a severe impairment due to MCS from October of 1990 through
her date last insured, December 31, 1995.

The ALJ concluded

that Lindstrom did not present sufficient evidence of an
impairment within the relevant period to support that finding.
1.

Contemporaneous Medical Evidence

The medical evidence from the relevant period is sparse.6
Lindstrom testified about having allergic reactions to chemicals
in the environment since 1979.

She was not diagnosed with MCS

or environmental illness during the relevant period.

Although

Lindstrom describes severe reactions, including anaphylactic
shock, she did not seek or receive medical care during those
incidents.
Lindstrom was pregnant during the relevant period.

Her

obstetric records in 1991 note Lindstrom’s report that she was a
Some of Lindstrom’s medical records may have been destroyed
due to record retention policies. That circumstance, however,
does not relieve Lindstrom of her burden to prove a medically
determinable severe impairment at Step Two. See Duncan v.
Colvin, 2016 WL 5477567, at *6 (D. Me. Sept. 28, 2016).
6

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“chemically sensitive person” with severe allergic reactions to
chemicals.

The medical records, however, do not document any

reactions by Lindstrom during her obstetric treatment and
delivery to support her reports of having had reactions.

See

Robbins, 2010 WL 3168306, at *9, n.6 (noting that while
objective testing is not available to diagnose MCS, the
claimant’s records must document symptoms observed during
medical visits or treatment).
Dr. Michael Shaffer provided a letter in 2009 in which he
described his memory of treating Lindstrom in his office in
1993.

He reported that Lindstrom “was intensely sensitive to

the chemicals around her,” including other patients’ perfume,
fumes from the copy machine, and new carpeting.

Dr. Shaffer

stated that Lindstrom experienced headaches and difficulty
breathing but did not indicate that her headaches or breathing
issues were apparent to him while she was in the office or that
her reported reactions required treatment in his office or
elsewhere.

As such, Dr. Shaffer’s memory of events appears to

reflect Lindstrom’s subjective reporting and does not provide
objective evidence of Lindstrom’s symptoms.
Lindstrom also relies on statements and testimony provided
by family members and a former employer about her symptoms
during the relevant period.

Only acceptable medical sources,

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however, can provide a diagnosis of a medically determinable
impairment.

§ 404.1513(a); Duncan, 2016 WL 5477567, at *6.

Evidence from other sources, such as family members and
employers, may be considered to determine the severity of a
diagnosed medically determinable impairment but not to diagnose
the impairment.

§ 404.1513(d).

Therefore, the contemporaneous medical evidence does not
establish a medically determinable impairment during the
relevant period through “signs, symptoms, and laboratory
findings,” as distinguished from Lindstrom’s own complaints and
statements of her symptoms.
2.

§ 404.1508.

Retrospective Opinion Evidence

Lindstrom also provided medical opinions to establish that
she had MCS during the relevant period and that MCS was a severe
impairment at that time.7

The ALJ considered the opinion

evidence but gave it little weight.
With respect to the treating medical providers, the ALJ
found no support for a Step Two impairment based on MCS.

The

ALJ explained that Nurse Practitioner Brumson’s opinion was
based completely on Lindstrom’s reports without any medical
evidence and that she is not an accepted medical source.

Dr.

As the ALJ notes, MCS was not recognized until 1999, after
Lindstrom’s date last insured.
7

16

Haltinner did not give an opinion that pertained to the relevant
period.
Lindstrom focuses on the medical opinions that were based
on a review of her records provided by Dr. LaCava, Dr. Lax, and
Dr. Bingham.

In each case, however, the ALJ thoroughly

explained the weaknesses in their opinions, including the lack
of underlying medical records of reaction incidents and
treatment, inconsistencies in their analyses of the record, and
the lack of validity of the tests and criteria applied.

The ALJ

particularly scrutinized Dr. LaCava’s interpretation of skin
testing results done in 2011, pointed out the conflicts and
inconsistencies between Dr. LaCava’s interpretations and the
actual test results, and noted the lack of indication that the
results pertained to Lindstrom’s diagnosis during the relevant
period, that is, between 1990 and 1995.

The ALJ also noted that

Dr. Lax’s conclusion, that Lindstrom was unable to work during
the relevant period, is a finding that is reserved to the
commissioner.

§ 404.1527(d)(1).

The ALJ properly considered all of the medical evidence,
including the medical opinion evidence in the record, and found
that Lindstrom had not established a severe medically
determinable impairment due to MCS at Step Two.

The ALJ

followed the required analysis, and substantial evidence

17

supports the ALJ’s decision.

Therefore, the ALJ’s decision must

be affirmed.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (document no. 7) is denied.
The Acting Secretary’s motion to affirm (document no. 12)
is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
January 30, 2017
cc:

Craig A. Jarvis, Esq.
Terry L. Ollila, Esq.

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