Weekley v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATION re 4 2 Complaint filed by Jennifer L. Weekley in that the Plaintiff's Statement of Errors be SUSTAINED and that this case be REMANDED to the Commissioner for further proceedings. Objections to R&R due by 2/1/2016. Signed by Magistrate Judge Terence P. Kemp on 1/13/16. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jennifer L. Weekley,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No.

2:14-cv-2051

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Jennifer L. Weekley, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for disability insurance benefits and
supplemental security income.

Those applications were filed on

April 5, 2011, and alleged that Plaintiff became disabled on
September 30, 2004.
After initial administrative denials of her claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on May 29, 2013.
ALJ denied benefits.

In a decision dated June 11, 2013, the

That became the Commissioner’s final

decision on August 28, 2014, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on December 29, 2014.

Plaintiff filed her

statement of specific errors on January 29, 2015, to which the
Commissioner responded on May 6, 2015.

Plaintiff filed a reply

brief on May 26, 2015, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 31 years old at the time of the
administrative hearing and who has a high school education,
testified as follows.

Her testimony appears at pages 40-55 of

the administrative record.
Plaintiff first testified that she lived in a trailer with
her family, which included three children, all ten or younger.
She was able to do some housework and cared for the children with
the help of other family members.

She drove to a doctor’s

appointment once a month, and her husband did the shopping.
Plaintiff said that she lived next door to her mother-in-law, who
helped with child care.
Plaintiff had been diagnosed with fibromyalgia in 2008.
a normal day, she cared for her four-year-old daughter.
some laundry and vacuuming.

In

She did

Everything was painful; she had

constant arm and leg pain as well as upper back pain.
some cleaning, the next day she would be in pain.

If she did

On a good day

she could also prepare dinner.
For pain relief, Plaintiff used heating pads, took warm
showers, and used an analgesic like Ben-Gay.
five or six hours total in a day.
church service.

She had to lie down

She was able to sit through a

However, she had trouble lifting more than an

armful of dry clothes.

She could stand and walk for an hour.

She had about seven good days in a month.
tired, sad, hopeless, and helpless.
III.

She felt stressed,

Lexapro helped her mood.

The Medical Records

The medical records in this case are found beginning on page
305 of the administrative record.

The Court will summarize those

records, as well as the opinions of the state agency reviewers,
to the extent that they are pertinent to Plaintiff’s statements
of error, which focus on fibromyalgia rather than any
psychological impairments.
The records demonstrate a long history of treatment for
fibromyalgia or fibromyalgia-like symptoms.

As Plaintiff

testified, she was diagnosed with fibromyalgia in February, 2008.
She discontinued treatment while carrying and then breast-feeding
-2-

her child.

She had reported pain in her arms, legs, and back in

2007 which were assessed as “myalgias, arms and legs, etiology
undetermined.”

She was told to see a rheumatologist but could

not do so due to lack of insurance.

In a note dated April 27,

2009, Dr. Presutti started her on Lyrica and Trazodone (to help
her sleep) and recommended a return visit in 4-6 weeks.

(Tr.

305-17).
Dr. Brown performed a consultative physical examination as
reflected in a report dated August 11, 2011.

Plaintiff told Dr.

Brown that the diagnosis of fibromyalgia had been made in 2002.
She described pain in the arms, legs, and back, and muscle spasms
and cramping in her hands.
seven.

She was symptomatic six days out of

Medications were not very helpful.

She was able to walk,

sit, and stand comfortably during the examination.

The only

positive finding was multiple tender points over the occiput,
posterior thorax, hips, and knees, consistent with fibromyalgia.
Dr. Brown concluded that Plaintiff’s ability to perform workrelated activities was at least mildly impaired.

(Tr. 329-33).

Plaintiff began a treating relationship with Dr. England at
the Holzer Clinic in 2011.

She told Dr. England that she had

pain in her legs and insomnia, and that her condition had gotten
progressively worse since 2008.
medication.

At that point, she was taking no

She had pain in 18 of 18 trigger points.

Dr.

England prescribed some medications and diagnosed both
fibromyalgia and depression.

(Tr. 339-40).

She was about the

same when seen a year later, reporting stiffness in the morning
in excess of one hour.

Other recheck visits were similar.

At a

return visit in 2013, Plaintiff reported some weight gain due to
her medication.

She again had pain in all 18 trigger points.

(Tr. 346-48).
Dr. England referred Plaintiff to Dr. Black, who saw her
on May 3, 2013.

Plaintiff also told Dr. Black that nothing had
-3-

seemed to help her pain in the past.
normal.

All of her lab results were

Her reported symptoms included unexplained weight gain,

night fever and sweats, difficulty sleeping, anxiety, depression,
and stress.

She also had recurrent belly pain and associated

symptoms as well as joint stiffness, aches, and pains.

Plaintiff

reported being able to stand for half an hour, sit for four
hours, lift 50 pounds, and walk up to 100 yards.
during the examination.

She was tearful

Her range of motion was full and

sensation, reflexes, and motor power were all normal.

Dr. Black

did not detect any trigger points but she was tender all over.
Dr. Black doubted the diagnosis of fibromyalgia and thought
Plaintiff was suffering from chronic fatigue syndrome with
myalgia.

He thought she had significant depression and probably

had sleep apnea.

He recommended, among other things, a

psychological evaluation and a sleep study.

He noted that the

symptoms outweighed any clinical findings and that it was
reasonable to search for a more in-depth diagnosis.

(Tr. 597-

98).
Plaintiff’s records were reviewed by two state agency
physicians.

The first, Dr. McCloud, stated on September 9, 2011,

that Plaintiff could do a full range of medium work limited only
by some environmental restrictions.

(Tr. 77-78).

Dr. Green, concurred.

Neither provided any

(Tr. 91-92).

The second,

explanation for these conclusions.
IV.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1830 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirement of the Social Security Act
through June 30, 2010.

Next, he found that she had not engaged

in substantial gainful activity since her alleged onset date of
-4-

September 30, 2004.
Going to the second step of the sequential evaluation
process, the ALJ determined that Plaintiff had severe impairments
including obesity and fibromyalgia.

The ALJ also found that

these impairments did not, at any time, meet or equal the
requirements of any section of the Listing of Impairments (20
C.F.R. Part 404, Subpart P, Appendix 1).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform work at the medium exertional level but that she had
to avoid concentrated exposure to extreme cold, extreme heat,
wetness, and humidity.
The ALJ next considered the applicable section of the
Medical-Vocational Guidelines.

Under Rule 203.28, someone with

Plaintiff’s characteristics would not be disabled if the person
could perform medium work.

The ALJ determined that the

restriction to exposure to extremes of temperature, humidity, and
wetness had little or no effect on the occupational base of
unskilled medium work.

Consequently, the ALJ concluded that

Plaintiff was not entitled to benefits.
V.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises two
issues.

She asserts that (1) the ALJ’s credibility analysis was

deficient, especially in light of the diagnosis of fibromyalgia;
and (2) the ALJ erred in his treatment of the limitations caused
by Plaintiff’s non-severe impairments. Her brief does not address
the second claim, however, so it will not be discussed here.
issues raised in her first claim are considered under the
following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial

-5-

The

evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion'"

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
The Credibility Finding
In her first statement of error, Plaintiff contends that the
ALJ failed to follow the dictates of Social Security Rulings
(SSR) 96-7p and 12-2p, which deal, respectively, with the general
subject of judging a claimant’s credibility and the more specific
subject of evaluating a claim of disability based on
fibromyalgia.

She asserts that the ALJ improperly based his

decision solely on the lack of objective medical evidence to
support her claim as to the severity of her fibromyalgia, and
that he did not take into account other factors which are made
relevant by the two rulings in question.

-6-

SSR 12-2p describes fibromyalgia as “a complex medical
condition characterized primarily by widespread pain in the
joints, muscles, tendons, or nearby soft tissues that has
persisted for at least 3 months.”

The analysis of fibromyalgia

as a potentially disabling condition is not, at least at a
general level, substantially different from the analysis of other
conditions which can, but do not always, cause debilitating pain
or fatigue.

First, the ALJ must decide if there is documentation

of a physical condition which can cause the claimant’s symptoms.
See 20 C.F.R. §404.1529(a).

If so, the ALJ must then decide how

severe the symptoms are and to what extent they impact the
claimant’s ability to work.

Id.

In making this latter determination, an ALJ is to be guided
by, inter alia, certain factors described in SSR 96-7p, which
tells the ALJ that “the intensity, persistence, and functionally
limiting effects of the symptoms must be evaluated to determine
the extent to which the symptoms affect the individual's ability
to do basic work activities.

This requires the adjudicator to

make a finding about the credibility of the individual's
statements about the symptom(s) and its functional effects.”
That ruling also cautions that
In determining the credibility of the individual's
statements, the adjudicator must consider the entire
case record, including the objective medical evidence,
the individual's own statements about symptoms,
statements and other information provided by treating
or examining physicians or psychologists and other
persons about the symptoms and how they affect the
individual, and any other relevant evidence in the case
record. An individual's statements about the intensity
and persistence of pain or other symptoms or about the
effect the symptoms have on his or her ability to work
may not be disregarded solely because they are not
substantiated by objective medical evidence.
These same concepts are reinforced in SSR 12-2p, which places
special emphasis on their value in fibromyalgia cases precisely
-7-

because of the limited usefulness of objective medical testing in
determining the functional impact of that condition.

SSR 12-2p

says, in pertinent part, that “[i]f objective medical evidence
does not substantiate the person's statements about the
intensity, persistence, and functionally limiting effects of
symptoms, we consider all of the evidence in the case record,
including the person's daily activities, medications or other
treatments the person uses, or has used, to alleviate symptoms;
the nature and frequency of the person's attempts to obtain
medical treatment for symptoms; and statements by other people
about the person's symptoms.”
Did the ALJ do that here?

Plaintiff says no; the

Commissioner contends otherwise.

In order to answer that

question, the ALJ’s decision and rationale must be reviewed in
some detail.
The ALJ did find that Plaintiff had impairments which could
reasonably be expected to cause her alleged symptoms.

(Tr. 23).

On the question of whether her statements about the intensity,
persistence, and disabling effects of those symptoms were
credible, however, he found against her.

In reaching that

conclusion, he first summarized the extensive treatment records
dating back to 2004, including records documenting the diagnosis
of fibromyalgia as early as 2008 and her report of myalgia-like
symptoms from 2007 forward.

Those records also documented

obesity; for example, in 2011, Plaintiff’s Body Mass Index was
38.98.

(Tr. 23-26).

After that review, the ALJ observed that “[e]ven when
considering the impact of obesity, the evidence reveals that the
claimant has minimal objective findings and is capable of
performing medium exertion ....”

(Tr. 26).

The ALJ bolstered

that observation by referring to the treatment notes which, in
his view, did not show severe tenderness and which revealed

-8-

normal gait and range of motion as well as a course of treatment
which was conservative and effective “when considering her
objective findings rather than her subjective complaints.”

Id.

The balance of the discussion of her impairments is directed
toward psychological, rather than physical, conditions.
The ALJ did acknowledge that there were some non-medical
reports about Plaintiff’s symptoms.

He discounted statements

made by her mother-in-law on the basis that they “were
contradictory to the findings in treatment notes and the
claimant’s extensive activities as noted.”

(Tr. 27-28).

The ALJ

then reviewed and adopted the findings of the state agency
reviewers as consistent with the objective medical findings.
(Tr. 29).
Almost all of the discussion which the ALJ devoted to the
limiting effect of Plaintiff’s fibromyalgia focused on the
absence of objective medical evidence and the lack of aggressive
treatment.

Since those are the earmarks of fibromyalgia and do

not address its severity, that focus was clearly improper.

As

this Court observed in a similar case, see Lucas v. Comm’r of
Social Security, 2014 WL 4065608, *8 (S.D. Ohio Aug. 14, 2014),
“insofar as the [ALJ] relied on negative test results and
clinical findings to discount plaintiff's subjective complaints
related to her fibromyalgia, the [ALJ] demonstrated a fundamental
misunderstanding of the disease.

The [ALJ] failed to recognize

that objective tests are of little relevance in determining the
existence or severity of fibromyalgia, which cannot be confirmed
by objective finding,” citing, inter alia, Rogers v. Comm’r of
Social Security, 486 F.3d 234, 245 (6th Cir. 2007).
The ALJ did make one passing reference in his evaluation of
Plaintiff’s fibromyalgia to her “extensive activities.”

That

list of activities, drawn from Exhibit 6E (found at Tr. 258-65),
was discussed primarily in the context of the evidence concerning
any psychologically-based limitations.
-9-

(Tr. 27).

To the extent

that the ALJ also considered those activities as evidence of an
ability to do medium work, that conclusion is not supported by
substantial evidence.

On the form in question, Plaintiff

reported that she was “in pain daily and cannot work to support
my family.”

She said she got one child up and off to school but

then went back to bed until two other children got up.

She could

care for them “while taking breaks in between sitting in a
chair.”
husband.

She also cared for animals but had help from her
Her pain affected her sleep.

She could prepare simple

meals but it might take one or two hours to do so.

Doing

cleaning or laundry took her all day and, again, her husband
helped with these chores.

She said that “over activity makes

pain worse” and that she went out alone only when absolutely
necessary, shopping only once or twice per month.

She rarely

engaged in activities she enjoyed, like fishing or hunting,
because that simply took too much effort.
was short-tempered due to pain.

Lastly, she said she

While that range of activities

might support a finding that she had few, if any, psychological
limitations, it (along with Plaintiff’s testimony at the hearing
and the third-party statements) provides no support for the ALJ’s
finding that Plaintiff could do a relatively full range of medium
work eight hours a day, five days a week.

Consequently, for at

least the period from 2008 forward, the case requires further
consideration of Plaintiff’s limitations due to fibromyalgia made
in accordance with SSRs 96-7p and 12-2p.
VI.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained and that this case
be remanded to the Commissioner for further proceedings pursuant
to 42 U.S.C. §405(g), sentence four.
VII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
-10-

Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

-11-