Maynard v. US Social Security Administration, Acting Commissioner

Filing 14

///ORDER granting 9 Motion to Reverse Decision of Commissioner; denying 13 Motion to Affirm Decision of Commissioner. Maynard's motion to reverse 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). So Ordered by Judge Paul J. Barbadoro.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Kara Lea Maynard
v.

Civil No. 17-cv-087-PB
Opinion No. 2018 DNH 030

Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration

MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 405(g), Kara Maynard moves to
reverse the decision of the Acting Commissioner of the Social
Security Administration (“SSA”) to deny her application for
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
Memorandum and 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).

Nevertheless, 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

Health & Human Servs., 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 Health, Educ. & Welfare, 612

F.2d 594, 597 (1st Cir. 1980) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)).

However, “[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

2

Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per
curiam) (citations omitted).

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 Health & Human

Servs., 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 Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).

II.
Maynard was born in 1979.
in customer service.

Background
She last worked in April of 2006

In March 2010, she applied for disability

insurance benefits (“DIB”), and she identified the following
medical conditions as limiting her ability to work: chronic
dorsalgia; 1 congenital scoliosis; 2 recurrent migraines, including

1

Dorsalgia is “pain in the back.”
Medical Dictionary 563 (32nd ed. 2012).
2

Dorland’s Illustrated

Scoliosis is “[a]bnormal lateral and rotational curvature
of the vertebral column.” Stedman’s Medical Dictionary 1734
(28th ed. 2006).
3

hemiplegic; 3 muscular spasms; hypothyroidism; myofascial
etiology; 4 and extensive, incurable back pain and debilitating
migraines.

Doc. 12 at 1.

While Maynard initially claimed to

have become disabled on April 1, 2006, she has since amended her
alleged onset date to November 1, 2008.

Id. at 1, 17.

The SSA initially denied Maynard’s claim, but she appealed
the denial, and after a hearing before Administrative Law Judge
(“ALJ”) Edward Hoban, Maynard received a fully favorable
decision on her claim in December 2011.

Id. at 1.

The SSA

Appeals Council vacated ALJ Hoban’s decision, and remanded with
instructions to refer Maynard for a consultative examination
(“CE”). 5

Id. at 2.

The SSA, in turn, sent Maynard to Dr.

William Windler, who performed a CE in December 2012.
12; Administrative Transcript (“Tr.”) 674.

Id. at

In his report on the

examination he administered, Dr. Windler documented Maynard’s
complaints of whole-body pain, numbness, and tingling; migraine

3

Hemiplegic migraines are “a form associated with transient
hemiplegia.” Stedman’s, supra note 2, at 1212. Hemiplegia is
“[p]aralysis of one side of the body.” Id. at 866.
4

Myofascial means “[o]f or relating to the fascia
surrounding and separating muscle tissue.” Stedman’s, supra
note 2, at 1272. Fascia is “[a] sheet of fibrous tissue that
envelops the body beneath the skin; it also encloses muscles and
groups of muscles and separates their several layers or groups.”
Id. at 700.
5

“A consultative examination is a physical or mental
examination or test purchased for [a claimant] at [the SSA’s]
request . . .” 20 C.F.R. § 404.1519.
4

headaches; light sensitivity; and depression.

Tr. 674-675.

He

also reported findings of diffuse tenderness: (1) over the
musculature of Maynard’s neck; (2) over her abdomen; (3)
throughout her upper extremities; (4) over the paraspinous
muscles throughout her thoracolumbar spine; and (5) throughout
her lower extremities. 6
report:

Tr. 676.

Dr. Windler concluded his

“She has diffuse aches and pains and tender points in

all four quadrants consistent with a fibromyalgia.”

Tr. 676.

In a separate document, i.e., a Medical Source Statement of
Ability to Do Work-Related Activities (Physical), Dr. Windler
gave his opinions on Maynard’s residual functional capacity
(“RFC”). 7

Tr. 679-684.

The record also includes a June 2013 letter addressed “To
whom it may concern,” from Maynard’s treating physician,
Concetta Oteri, D.O.

Tr. 794.

Maynard first saw Dr. Oteri in

September of 2008, complaining of cerumen impaction. 8

Tr. 403.

In January of 2009, Maynard presented to Dr. Oteri “with

6

More specifically, Dr. Windler found “some tenderness over
the greater trochanteric regions bilaterally” and “slight
tenderness with patellar manipulation.” Tr. 676.
7

“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).
8

Cerumen is “[t]he soft, brownish yellow, waxy secretion (a
modified sebum) of the ceruminous glands of the external
auditory canal.” Stedman’s, supra note 2, at 351.
5

symptoms that she had for quite a long time several years,”
including headaches with migraines, numbness, back pain,
significant fatigue and poor sleep quality.

Tr. 401.

Dr. Oteri

gave assessments of fatigue, paresthesia, 9 and back pain.
401.

Tr.

In addition, after noting that Maynard had never had a

“significant workup” regarding fibromyalgia, Dr. Oteri ordered a
battery of diagnostic tests.

Tr. 401.

In her June 2013 letter, Dr. Oteri listed a diagnosis of
fibromyalgia.

Tr. 794.

In support of that diagnosis, and

several others, Dr. Oteri reported the following symptoms:
stroke-like migraine episodes, cognitive and memory
impairment, hypersensitivity to hot and cold as well
as climatic change, muscle fatigability, swollen and
tender lymph nodes, movement disorder, chronic
musculoskeletal pain, chronic fatigue, sleep
disturbance, persistent muscle tenderness, irritable
bowels including diarrhea and constipation, noncardiac chest pain, sporadic throat soreness,
recurring bursitis, balance and coordination problems,
recurring migraines, clinical depression, neurological
problems, anxiety and poor concentration.
Tr. 794.

Dr. Oteri continued:

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 [“ACR”] (Wolfe,
et al. Arthritis & Rheumatism 33:160, 1990) has
established general classification guidelines for
9

Paresthesia is “[a] spontaneous abnormal usually
nonpainful sensation (e.g., burning, pricking); may be due to
lesions of both the central and peripheral nervous systems.”
Stedman’s, supra note 2, at 1425.
6

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.

Furthermore, Dr. Oteri noted that “[a]ntidepressant

medications are the most frequently used and best studied drugs
for the treatment of ME/CFS and Fibromyalgia,” 10 and then then
went on to describe a largely unsuccessful course of
antidepressant medications she had prescribed for Maynard.
795.

Tr.

Dr. Oteri’s contemporaneous treatment notes from 2013, in

turn, fully document her statements that beginning in 2009, she
gave Maynard prescriptions for Cymbalta, 11 Amitriptyline, 12 and
Celexa. 13

Tr. 795.

Dr. Oteri concluded her letter with an

10

ME/CFS stands for myalgic encephalomyelitis/chronic
fatigue syndrome. Encephalomyelitis is an “[i]nflammation of
the brain and spinal cord.” Stedman’s, supra note 2, at 635.
Myalgia is “[m]uscular pain.” Id. at 1265.
11

Cymbalta is a “trademark for a preparation of duloxetine
hydrochloride.” Dorland’s, supra note 1, at 457. Duloxetine
hydrochloride is “a serotonin-norepinephrine reuptake inhibitor,
used for the treatment of major depressive disorder.” Id. at
572.
12

Amitriptyline hydrochloride is “[a] chemical compound of
the tricyclic antidepressant class that can be used to treat
some sleep disorders and neurogenic pain syndromes.” Stedman’s,
supra note 2, at 63.
13

Celexa is a “trademark for a preparation of citalopram
hydrobromide.” Dorland’s, supra note 1, at 312. Citalopram
hydrobromide is “a selective serotonin reuptake inhibitor . . .
used as an antidepressant.” Id. at 366.
7

opinion on Maynard’s ability to work.

Tr. 797-798.

In June 2013, Maynard received a second hearing before a
different ALJ, Thomas Merrill.
denied Maynard’s claim.

Doc. 12 at 2.

A month later, he

In his decision, the ALJ determined

that Maynard had the severe impairments of migraines and chronic
low back pain.

Tr. 13.

He also noted that Maynard had alleged

limitations due to fibromyalgia.

While he did not determine

that her fibromyalgia was a severe impairment, he did consider
the effects of fibromyalgia when determining Maynard’s RFC.
13.

Tr.

With regard to the medical opinion evidence, the ALJ gave:

(1) significant weight to the opinion of Dr. Arthur Brovender,
an orthopedic surgeon, who examined some of Maynard’s medical
records and testified, by telephone, at her 2013 hearing; (2)
significant weight to the opinion of Dr. Hugh Fairley, a stateagency consultant who examined some of Maynard’s medical records
and prepared an assessment of her physical RFC in August of
2010; 14 (3) limited weight to opinions rendered by Dr. Oteri in
2010 and 2013; and (4) limited weight to the opinions rendered
by Dr. William Windler after his 2012 CE.
Maynard appealed.

Tr. 17-18.

In an order dated October 7, 2015, Judge

McCafferty reversed the ALJ’s decision on grounds that he had

14

As it happens, in his favorable decision from 2011, ALJ
Hoban had discounted Dr. Fairley’s opinion. See Maynard v.
Colvin, 2015 DNH 192, at *3.
8

improperly weighed the expert-opinion evidence.
Colvin, 2015 DNH 192, at *12.

See Maynard v.

Judge McCafferty also noted, and

the Acting Commissioner conceded, that when evaluating Maynard’s
claim, “the ALJ did not apply the relevant SSA guidelines for
evaluating DIB claims based upon fibromyalgia.”

Id. at 12.

Judge McCafferty went on to say that “[o]n remand, the ALJ
should apply Social Security Ruling [‘SSR’] 12-2p, ‘Evaluation
of Fibromyalgia,’ when considering Maynard’s claim.”

Id.

After

Judge McCafferty issued her order, the SSA Appeals Council
issued an order “remand[ing] [Maynard’s] case to an [ALJ] for
further proceedings consistent with the order of the court.”
Tr. 907.
On remand, Maynard obtained and submitted three more
opinions from Dr. Oteri.

Tr. 838.

Each opinion was dated June

1, 2016, and each was submitted on a form that was captioned
“Physical Medical Source Statement,” and that had a hand-written
notation above the caption.
as of Nov. 1, 2008.”

One notation said: “Please fill out

Tr. 1168.

Another notation said: “Please

fill out as of Nov. 1, 2008 to current.”

Tr. 1178.

third notation said: “Please fill out as of current.”

And the
Tr. 1173.

At Maynard’s June 2016 hearing (her second before ALJ Merrill
and her third overall), a vocational expert testified that a
person with the limitations described in Dr. Oteri’s
retrospective Medical Source Statement would be unable to meet
9

the demands of any job.

Tr. 855-856.

After Maynard’s hearing, the ALJ issued a decision in which
he evaluated all the opinions he had considered in his 2013
decision, and gave them essentially the same weight he had given
them in 2013. 15

In addition, the he gave “little weight” to each

of the three new opinions from Dr. Oteri that Maynard submitted
in anticipation of her 2016 hearing.

Tr. 822.

With respect to fibromyalgia, the ALJ found “that the
evidence does not support a finding [that] fibromyalgia meets
the criteria to be considered as a medically determinable
impairment.”

Tr. 815.

He then gave the following assessment of

Maynard’s RFC:
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 CFR 404.1567(b) except she has
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 climb
ramps and stairs. She must avoid unprotected heights.
Tr. 817.

On the basis of the foregoing RFC, the ALJ determined,

just as he had in his previous decision, that Maynard was
capable of performing her past relevant work as a customer

15

While this is probably a distinction without a
difference, the ALJ gave “significant” weight to the opinions of
Dr. Brovender and Dr. Fairley in 2013, but gave “substantial”
weight to those opinions in 2016. See Tr. 17, 823, 824.
10

service representative.

Tr. 825.

III.
A.

Discussion

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 the ALJ correctly determined that
Maynard “was not under a disability, as defined in the Social
Security Act, at any time from April 1, 2006, the alleged onset
date, through December 31, 2010, the date last insured,” Tr.
825. 16
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
16

Earlier in his decision, the ALJ stated that “[b]efore
the current hearing in this matter, the claimant amended her
alleged onset date [from April 1, 2006] to November 1, 2008,” so
it is not clear why he used the 2006 date in his conclusion.
Tr. 808.
11

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 five-step process for
Supplemental Security Income, which is the same as the one
prescribed in 20 C.F.R. § 404.1520).
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 Health &
Human Servs., 797 F.2d 19, 23 (1st Cir. 1986); Goodermote v.
Sec’y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982)).
B.

Maynard’s Claims
Maynard claims that the ALJ erred by: (1) determining that

her fibromyalgia was not a medically determinable impairment
(“MDI”); (2) improperly weighing the expert-opinion evidence;

12

and (3) improperly weighing the “other source” evidence.
Maynard’s first claim is persuasive and dispositive.
1.

Fibromyalgia as an MDI

In her order remanding Maynard’s case to the SSA, Judge
McCafferty directed the ALJ to apply SSR 12-2p when considering
Maynard’s claim.

Maynard v. Colvin, 2015 DNH 192, at *12.

The

ALJ did so, and determined that Maynard’s purported fibromyalgia
(“FM”) was not an MDI.

Tr. 811-813.

According to the applicable regulations, an MDI “must
result from anatomical, physiological, or psychological
abnormalities that can be shown by medically acceptable clinical
and laboratory diagnostic techniques.”

20 C.F.R. § 404.1521.

For that reason, an MDI “must be established by objective
medical evidence from an acceptable medical source.”

Id.

When

the potential MDI at issue is fibromyalgia, “[a] licensed
physician (a medical or osteopathic doctor) is the only
acceptable medical source who can provide such evidence.”
12-2p, 2012 WL 3104869, at *2 (S.S.A. July 25, 2012).

SSR

SSR 12-2p

goes on to explain that the SSA “will find that a person has an
MDI of FM if the physician diagnosed FM and provides the
evidence [the SSA] describe[s] in section II.A. or section
II.B., and the physician’s diagnosis is not inconsistent with
the other evidence in the person’s case record.”

Id.

Section II.A. of SSR 12-2p is based upon “[t]he 1990 ACR
13

[American College of Rheumatology] Criteria for the
Classification of Fibromyalgia,” and provides that FM may be an
MDI if a claimant: (1) has “[a] history of widespread pain . . .
that has persisted (or that persisted) for at least 3 months” 17;
(2) has “[a]t least 11 [of 18] positive tender points on
physical examination” 18; and (3) produces “[e]vidence that other
disorders that could cause the symptoms or signs were excluded.”
SSR 12-2p, 2012 WL 3104869, at *2-*3.
Section II.B. is based upon “[t]he 2010 ACR Preliminary
Diagnostic Criteria,” and provides that that FM may be an MDI if
a claimant: (1) has “[a] history of widespread pain”; (2) has
“[r]epeated manifestations of six or more FM symptoms, signs, or
co-occurring conditions, especially manifestations of fatigue,
cognitive or memory problems (‘fibro fog’), waking unrefreshed,
depression, anxiety disorder, or irritable bowel syndrome” 19; and

17

Widespread pain is
(the right and left sides
waist) and axial skeletal
chest, thoracic spine, or
3104869, at *2.

“pain in all quadrants of the body
of the body, both above and below the
pain (the cervical spine, anterior
low back).” SSR 12-2p, 2012 WL

18

“The positive tender points must be found bilaterally (on
the left and right sides of the body) and both above and below
the waist.” SSR 12-2p, 2012 WL 3104869, at *3.
19

The applicable signs “include muscle pain, irritable
bowel syndrome, fatigue or tiredness, thinking or remembering
problems, muscle weakness, headache, pain or cramps in the
abdomen, numbness or tingling, dizziness, insomnia, depression,
constipation, pain in the upper abdomen, nausea, nervousness,
chest pain, blurred vision, fever, diarrhea, dry mouth, itching,
14

(3) produces “[e]vidence that other disorders that could cause
these repeated manifestations of symptoms, signs, or cooccurring conditions were excluded.”

SSR 12-2p, 2012 WL

3104869, at *3.
The ALJ in this case determined that Maynard’s fibromyalgia
was not an MDI.

It is not unusual for courts to affirm such

determinations.

For example, in Tozier v. Berryhill, the

magistrate judge recommended affirming the ALJ’s determination
that FM was not an MDI where: (1) the ALJ found that “the record
[did] not confirm that [the claimant had] the requisite number
and location of tender trigger point findings and there [was] no
evidence that medical doctors [had] excluded other impairments
as required in [SSR] 12-2p,”; and (2) two doctors who reviewed
the claimant’s medical records found “that there was no
examination confirming fibromyalgia by the requisite criteria.”
No. 1:16-cv-540-NT, 2017 WL 3331776, at *3-*4 (D. Me. Aug. 4,
2017) (quoting the record), adopted by No. 1:16-cv-540-NT, 2017

wheezing, Raynaud’s phenomenon, hives or welts, ringing in the
ears, vomiting, heartburn, oral ulcers, loss of taste, change in
taste, seizures, dry eyes, shortness of breath, loss of
appetite, rash, sun sensitivity, hearing difficulties, easy
bruising, hair loss, frequent urination, or bladder spasms.”
SSR 12-2p, 2012 WL 3104869, *3 at n.9. The applicable cooccurring conditions include “anxiety disorder, chronic fatigue
syndrome, irritable bladder syndrome, interstitial cystitis,
temporomandibular joint disorder, gastroesophageal reflux
disorder, migraine, or restless leg syndrome.” Id. *3 at n.10.
15

WL 4015652 (D. Me. Sept. 11, 2017).

In Sinclair v. Berryhill,

Judge Young affirmed the ALJ’s determination that FM was not an
MDI where the claimant did not produce evidence that: (1) any
acceptable medical source had found the requisite number of
tender points; (2) she had manifested the requisite number of FM
signs, symptoms, or co-occurring conditions; or (3) any
acceptable medical source had excluded other disorders that
could have caused her signs or symptoms.

See 266 F. Supp. 3d

545, 553-554 (D. Mass. 2017).
This case is distinguishable from both Tozier and Sinclair.
Unlike the record in Tozier, the record in this case includes
confirmation of the requisite number and location of trigger
point findings (in Dr. Oteri’s May 2013 letter) and evidence
that a doctor excluded other impairments (also in Dr. Oteri’s
May 2013 letter).

And while the record in Tozier included

statements by two doctors to the effect that the claimant’s
medical records documented no examination confirming
fibromyalgia by the relevant criteria, Judge McCafferty has
already noted that Dr. Brovender’s characterization of Dr.
Windler’s examination report as failing to discuss tender points
was incorrect, see Maynard, 2015 WL 5838319, at *11, so this
case lacks an analogue to the two doctors’ statements in Tozier.
And, in contrast with the record in Sinclair, the record in this
case includes evidence that: (1) an acceptable medical source
16

(Dr. Oteri) found the requisite number of tender points; (2)
Maynard had manifested the requisite number of FM signs,
symptoms, or co-occurring conditions (reported in both Dr.
Windler’s report 20 and Dr. Oteri’s May 2013 letter 21); and (3) an
acceptable medical source (Dr. Oteri) had excluded other
disorders that could have caused Maynard’s signs or symptoms.
For his part, in support of his determination that
Maynard’s purported FM was not an MDI, the ALJ focused on: (1)
Maynard’s failure to claim that she was disabled as a result of
FM in any of her application materials; (2) Dr. Fairley’s
observation that Maynard did not claim to be disabled due to FM;
(3) the lack of a diagnosis of FM in any medical record
generated prior to Maynard’s date last insured, i.e., December
31, 2010; and (4) his determination that Maynard’s medical
records, prior to her date last insured, did not document the
criteria necessary to establish FM, under the standard set out
in SSR 12-2p.

Tr. 813-814.

Then, in the section of his

decision devoted to opinion evidence, the ALJ discussed Dr.

20

Dr. Windler reported manifestations of whole-body pain,
numbness, tingling, depression, light sensitivity, and migraine.
See Tr. 674-75.
21

Dr. Oteri reported manifestations of irritable bowel
syndrome, thinking or remembering problems, muscle weakness,
insomnia, depression, constipation, chest pain, diarrhea,
anxiety disorder, chronic fatigue syndrome, and migraine. See
Tr. 794.
17

Oteri’s May 2013 letter, and assigned it little weight because:
(1) the letter was inconsistent with Dr. Oteri’s examination
records during the time prior to Maynard’s date last insured
because those records do not include a diagnosis of
fibromyalgia, a tender-point evaluation, or a four quadrant
evaluation; (2) Dr. Oteri is “an osteopathy [sic] and the record
includes no evaluation by a rheumatologist,” Tr. 822; (3) the
letter falsely represents that Maynard was diagnosed with
fibromyalgia in 2009; (4) the letter represents that Maynard
“enrolled” as Dr. Oteri’s patient in 2009 when, in fact, she had
been a patient in Dr. Oteri’s practice since at least 2007; (5)
the letter reports diagnoses that do not appear in Dr. Oteri’s
treatment notes; and (6) while the letter indicates that Maynard
experienced widespread aching for at least three months and had
at least 11 positive tender points on each examination, Dr.
Oteri’s examination notes do not document either condition.

Tr.

822.
The question before the court is whether the ALJ’s
determination that Maynard’s fibromyalgia was not an MDI is
supported by substantial evidence.

It is not.

In the remainder

of this section, the court begins by discussing the four reasons
the ALJ gave for determining that Maynard’s FM was not an MDI,
and then turns to the six reasons he gave for assigning limited
weight to Dr. Oteri’s opinions, including her appraisal of
18

Maynard’s FM.
a.
ALJ’s reasons for determining that Maynard’s
fibromyalgia was not a medically determinable
impairment
i.
Maynard’s failure to claim that she
was disabled as a result of fibromyalgia in any
of her application materials
The ALJ does not explain how Maynard’s failure to identify
FM as a disabling impairment in her application materials has
any bearing on the analysis mandated by SSR 12-2p, and the court
can discern no way in which this fact would support a
determination that Maynard’s FM was not an MDI.
ii. Dr. Fairley’s observation that
Maynard did not claim to be disabled due to
fibromyalgia
The ALJ does not explain how Dr. Fairley’s observation that
Maynard did not identify FM as a disabling impairment in her
application materials has any bearing on the analysis mandated
by SSR 12-2p, and the court can discern no way in which this
fact would support a determination that Maynard’s FM was not an
MDI.
iii. The lack of a diagnosis of
fibromyalgia in any medical record generated
prior to Maynard’s date last insured, i.e.,
December 31, 2010
The ALJ is correct in noting that no treating physician
ever formally diagnosed Maynard with FM before December 31,
2010.

But the persuasive value of that fact is diminished to

19

the point of insubstantiality by two facts the ALJ does not
mention: (1) in 2009, Dr. Oteri ordered diagnostic testing to
exclude disorders other than FM that could have caused Maynard’s
signs and symptoms; 22 and (2) starting in 2009, Dr. Oteri
prescribed a course of treatment, i.e., antidepressant
medication, that is indicated for FM.
iv. The ALJ’s determination that
Maynard’s medical records, prior to her date
last insured, did not document the criteria
necessary to establish FM, under the standard
set out in SSR 12-2p
As the court has already noted, before Maynard’s date last
insured, Dr. Oteri had excluded other conditions that could have
caused Maynard’s signs and symptoms and had initiated a course
of treatment that is indicated for FM.

Thus, the lack of

documentation in Maynard’s medical records that fully supports
an SSR 12-2p analysis is not substantial evidence that Maynard’s
FM was not an MDI.
b.
ALJ’s reasons for giving limited weight to
Dr. Oteri’s opinions
i.
The purported inconsistency between
Dr. Oteri’s May 2013 letter and her examination
records during the time prior to Maynard’s date
last insured (which do not include a diagnosis

22

In her May 2013 letter, Dr. Oteri explained: “We did
screening laboratory tests to exclude other medical conditions
such as rheumatoid arthritis, myositis, hypothyroidism, multiple
sclerosis, and lupus.” Tr. 795.
20

of fibromyalgia, a tender-point evaluation,
or a four-quadrant evaluation)
Again, Dr. Oteri’s treatment records indicate that before
Maynard’s date last insured, Dr. Oteri had excluded other
conditions that could have caused Maynard’s signs and symptoms
and had initiated a course of treatment that is indicated for
FM.

Those aspects of Dr. Oteri’s treatment records are entirely

consistent with her May 2013 letter.

Moreover, while Dr.

Oteri’s treatment records do not include an express diagnosis of
fibromyalgia, a tender-point evaluation, or a four-quadrant
evaluation, those omissions only establish that Dr. Oteri’s
treatment records do not support the statements in her May 2013
letter, not that they are inconsistent with it.

Those records

would be inconsistent if, for example, they had documented a
tender-point evaluation that revealed 8 of 16 tender points
rather than the 16 of 18 that Dr. Oteri mentioned in her letter.
But, that is not the case here; the records are simply silent.
ii. Dr. Oteri’s status as an osteopath and
the lack of any evaluation by rheumatologist
SSR 12-2p does not say that evidence on fibromyalgia must
come from a rheumatologist; it provides that “a medical or
osteopathic doctor is the only acceptable medical source who can
provide such evidence.”

SSR 12-2p, 2012 WL 3104869, at *2.

Oteri is an osteopathic doctor.

Thus, she is an acceptable

medical source, for the purposes of SSR 12-2p.
21

Dr.

iii. The May 2013 letter’s representation that
Dr. Oteri diagnosed Maynard with fibromyalgia in
2009
Given the court’s determination that the lack of an express
diagnosis of FM prior to Maynard’s date last insured is not
substantial evidence to support a determination that Maynard’s
FM was not an MDI, the court can discern no way in which the
inaccuracy of the statement in Dr. Oteri’s May 2013 letter about
a 2009 diagnosis would support a determination that Maynard’s FM
was not an MDI.
iv. The May 2013 letter’s representation
that Maynard “enrolled” as Dr. Oteri’s patient in
2009 when, in fact, she had been a patient in Dr.
Oteri’s practice since at least 2007
The court can discern no way in which the purported
inaccuracy of the statement in Dr. Oteri’s May 2013 letter about
when Maynard became her patient would support a determination
that Maynard’s FM was not an MDI.
v.
The May 2013 letter’s references to
diagnoses that do not appear in Dr. Oteri’s
treatment notes
The only diagnosis that matters is fibromyalgia, and the
court has already explained why the lack of an express diagnosis
of FM in Dr. Oteri’s treatment notes does not support a
determination that Maynard’s FM was not an MDI.
vi. The lack of substantiation in Dr.
Oteri’s examination notes for her statements, in
the 2013 letter, that Maynard experienced
widespread aching for at least three months and
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had 16 positive tender points on each examination
SSR 12-2p provides that a determination that fibromyalgia
is an MDI must come from an acceptable medical source.

Dr.

Oteri is an acceptable medical source who provided evidence that
prior to Maynard’s date last insured, she experienced widespread
aching for at least three months and had 16 FM tender points.
SSR 12-2p requires evidence from an acceptable medical source,
but there is nothing in SSR-2p to suggest that Dr. Oteri’s
retrospective evidence is somehow invalid because the findings
she reported were not documented in her examination notes.

To

be sure, SSR 12-2p provides that the SSA “will review the
physician’s treatment notes to see if they are consistent with
the diagnosis of FM,” 2012 WL 3104869, at *2, but it is
difficult to see how treatment for fibromyalgia in the form of
antidepressant medication, prescribed after diagnostic testing
to exclude other impairments, is inconsistent with a diagnosis
of FM.

Accordingly, the lack of substantiation in Dr. Oteri’s

examination notes for her subsequent findings concerning
widespread aching and tender points does not support a
determination that Maynard’s FM was not an MDI.
In sum, the ALJ’s determination that Maynard’s fibromyalgia
does not qualify as an MDI is not supported by substantial
evidence.

Given the degree to which the decision as to whether

or not FM is an MDI reverberates through the sequential
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evaluation process, see SSR 12-2p, 2012 WL 3104869, at *5-6, the
ALJ’s failure to make a determination that is supported by
substantial evidence merits a remand.
2.

Evaluation of Medical Expert Opinions

Because this case is being remanded for the reasons given
above, the court need not dwell on the manner in which the ALJ
evaluated the expert medical opinions, but because that issue
was the basis for Judge McCafferty’s remand, the court will deal
with it briefly.
a.

Dr. Windler’s Opinion

In December 2012, in conjunction with his consultative
examination, Dr. Windler completed a Medical Source Statement of
Ability to Do Work-Related Activities (Physical).

Tr. 679-684.

Judge McCafferty described the opinions in Dr. Windler’s Medical
Source Statement:
[H]e 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 she would need to spend the remainder of an
eight-hour work day reclining, lying down, or soaking
in a warm tub.
Maynard, 2015 DNH 192, at *3.

In his 2013 decision,

[t]he 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 self-reported limits,”
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and because the “opinion . . . is inconsistent with
[Dr. Windler’s] own exam.”
Id. at *10 (citation to the record omitted).

Judge McCafferty

determined that “[t]he ALJ’s appraisal of Dr. Windler’s opinion
[was] not well supported.”

Id.

In his 2016 decision, the ALJ presents the very same
analysis of Dr. Windler’s opinion that Judge McCafferty
rejected, with the following addition:
[Dr. Windler] noted that [Maynard] did not bring a
photo ID to the exam, and he did not state whether he
reviewed the longitudinal medical records as required
under SSR 12-2p, although he did mention some findings
that he said were in her “chart.”
Tr. 824. 23

If Dr. Windler mentioned findings in Maynard’s chart,

he necessarily reviewed her longitudinal medical records, and
his Medical Source Statement includes six references to
Maynard’s medical history.

See Maynard, 2015 DNH 192, at *4.

23

As an ancillary matter, it is not clear how the
provisions of SSR 12-2p apply to the question of whether the ALJ
evaluated Dr. Windler’s opinion on Maynard’s RFC in accordance
with 20 C.F.R. § 404.1527. The “requirement” to which the ALJ
refers appears to be directed to the evidence necessary to
support a determination that fibromyalgia is an MDI. See SSR
12-2p, 2012 WL 3104869, at *1. Moreover, while SSR 12-2p states
that “it is important that the medical source who conducts the
[consultative examination] has access to longitudinal
information about the [claimant],” it goes on to provide that
the SSA “may rely on the CE report even if the person who
conducts the CE did not have access to longitudinal evidence if
[the SSA] determine[s] that the CE is the most probative
evidence in the case record.” Id. at *5. This suggests that
access to longitudinal information is preferable, but not a
“requirement.”
25

Accordingly, the lack of a sentence specifically stating that
Dr. Windler reviewed Maynard’s longitudinal medical records is
not a good reason for discrediting his opinion on Maynard’s RFC.
As for Maynard’s failure to bring a photo ID to the CE, the
court is a loss to see how that fact has any bearing on any
relevant issue.

In sum, the ALJ’s 2016 evaluation of Dr.

Windler’s opinion does not appear to be any better supported
than the evaluation that Judge McCafferty rejected in her order
on the ALJ’s 2013 decision.
b.

Dr. Oteri’s 2013 Opinion

In her May 2013 letter, Dr. Oteri described the symptoms
and clinical findings supporting her diagnosis of fibromyalgia
and then went on to state that “[o]ral antidepressant medication
therapy [was] not effective for [Maynard] and so we are using
narcotic pain medication to control as much of the pain for
[Maynard] as possible.”

Tr. 797.

Dr. Oteri then opined that

Maynard was completely and permanently disabled prior
to [Dr. Oteri’s] enrolling her as a patient in 2009,
became unable to work due to her medical issues prior
to [Dr. Oteri’s] enrolling her as a patient in 2009,
is unable to work in any capacity and . . . 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.

In his 2013 decision,

[t]he ALJ gave Dr. Oteri’s opinions “limited weight
because [they were] inconsistent with the claimant’s
diagnostic and clinical exams,” because “the records
26

show that Dr. Oteri–Ahmadpour [was] a ‘personal
friend’ of the claimant,” and because “her opinion
regarding the claimant’s inability to perform daily
activities is not supported by the claimant’s own
reported daily activities.”
Maynard, 2015 DNH 192, at *7 (citations to the record omitted).
Judge McCafferty determined that “[t]he ALJ’s appraisal of Dr.
Oteri’s opinion [was] not well supported.”

Id.

In his 2016 decision, the ALJ devoted a single paragraph to
Dr. Oteri’s May 2013 letter.

Tr. 822.

The placement of that

paragraph suggests that the ALJ was evaluating Dr. Oteri’s
opinion on Maynard’s capacity for performing work-related
activities.

But the content of that paragraph – which touches

on few of the relevant 20 C.F.R. § 404.1527 factors – indicates
that the ALJ’s primary focus was on whether Dr. Oteri’s letter
supported a determination that Maynard had FM that qualified as
an MDI.

Rather than re-analyzing the ALJ’s paragraph on Dr.

Oteri’s letter to determine whether the ALJ properly discounted
Dr. Oteri’s opinion on Maynard’s capacity for performing workrelated activities, the court simply notes that on remand, the
ALJ should evaluate Dr. Oteri’s May 2013 letter in accordance
with 20 C.F.R. § 404.1527.

IV. Conclusion
For the reasons given, the Acting Commissioner’s motion for
an order affirming her decision, doc. no. 13, is denied, and
27

Maynard’s motion to reverse that decision, doc. no. 9, 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 Court shall enter judgment

in accordance with this Memorandum and Order and close the case.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge

February 13, 2018
cc:

Janine Gawryl, Esq.
T. David Plourde, Esq.

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