Starcher v. Commissioner of Social Security
REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be sustained to the extent that the case be remanded to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four. Objections to R&R due by 10/31/2016. Signed by Magistrate Judge Terence P. Kemp on 10/12/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Dave A. Starcher,
Commissioner of Social Security,
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Plaintiff, Dave A. Starcher, filed this action seeking
review of a decision of the Commissioner of Social Security
denying his application for disability insurance benefits.
application was filed on May 7, 2012, and alleged that Plaintiff
became disabled on November 1, 2008.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on February 6, 2014.
In a decision dated June 13, 2014, the ALJ
That became the Commissioner’s final decision
on October 27, 2015, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on March 21, 2016.
Plaintiff filed a
statement of specific errors on May 26, 2016, to which the
Commissioner responded on June 23, 2016.
Plaintiff has not filed
a reply brief, and the case is now ready to decide.
Plaintiff’s Testimony at the Administrative Hearing
Plaintiff, who was 53 years old as of the date of the
hearing and who completed one year of college, testified as
His testimony appears at pages 48-73 of the
Plaintiff first testified that he could not work because he
could not sit for very long.
He could do a little walking but
had pain in his ankles and feet.
Also, he had limited use of his
hands and had pain in them all the time.
He could also stand for
no more than ten or fifteen minutes.
2008 was the last year in which Plaintiff had worked.
left that job because he was laid off.
with his previous job.
The same thing happened
Even when he was working, he had
significant health problems.
Those two jobs were both in debt
collection, and he had also been a store manager and a customer
Upon further questioning about his physical abilities,
Plaintiff said he could sit between twenty minutes and half an
hour and then resume sitting if he could stand up and move around
for five minutes or so.
due to a hernia.
He was limited to lifting five pounds
Plaintiff saw a doctor only every three months
because he had no insurance.
He was most comfortable lying on
If he used his hands for more than a minute or two,
they would cramp up.
In a typical day, Plaintiff would eat breakfast, feed his
pets, get dressed, sit on the couch, and visit with his sister.
He would also get up and move around in between sitting.
could cook simple meals and load a dishwasher.
He had attempted
to shovel snow the day before the hearing but that caused him to
have back pain.
Pain interrupted his sleep at night.
did some reading and was able to use the internet to check email
He could dress himself but shaving was difficult.
Finally, he testified that if he took Flexeril as prescribed
(every six hours) he could not function.
The Medical Records
The pertinent medical records are found beginning at page
235 of the record and can be summarized as follows.
Taking the exhibits in order, the first set of records come
from Dr. Swarup, who treated Plaintiff for fibromyalgia.
diagnosis appears in a 2009 treatment note which indicates that
18 out of 18 tenderpoints were present.
of the hands was noted.
The plan at that point was to restart
Plaintiff on Lyrica and have him exercise and stop smoking.
Plaintiff said the Lyrica helped but he was only able to get it
for a month, and he was experiencing pain in his neck, back,
elbows, shoulders, knees, and ankles.
He also had morning
stiffness and swelling, from arthritis, in his elbows and
When Plaintiff saw Dr. Swarup again in June, 2010, he
was still having joint swelling from rheumatoid arthritis and
overall body ache from fibromyalgia.
He had also developed
episodic back pain over the past four months, located in the
No fibromyalgia tenderpoints were present at that
He was prescribed Flexeril and Vicodin.
Notes from 2011
and 2012 were similar; 11 fibromyalgia tenderpoints were noted
during two of those visits, and Plaintiff reported generalized
musculoskeletal pain, including an increase in shoulder pain
radiating to his fingers. (Tr. 236-53).
Plaintiff saw Dr. Whitehead for a consultative physical
examination on October 15, 2012.
His chief complaint was
described as “polyarthralgias.”
Plaintiff reported daily
constant pain exacerbated by lifting and bending.
He also had
problems grasping objects, particularly with his left hand, and
complained of diffuse weakness and periodic numbness in his right
He said he could sit for thirty minutes, stand for an
hour, and walk about half a mile.
cleaning, and shopping.
He also did light cooking,
On examination, Plaintiff walked with a
He showed decreased range of motion in the cervical
spine, with tenderness, and painful motion in the lumbar spine.
Straight leg raises were negative.
There was mild tenderness in
the hands and decreased grip strength on the left. Trigger point
testing showed only two points present.
Dr. Whitehead diagnosed
rheumatoid arthritis, fibromyalgia, and coronary artery disease.
He concluded that Plaintiff “would be best suited for sedentary
type job duties with intermittent standing throughout the day and
would likely be able to tolerate intermittent standing for 4-5
hours throughout the day, only occasional bending and lifting
with a 10 pound lifting restriction.”
Plaintiff had been living in Arizona, which is where he was
seen by Dr. Swarup.
When he moved back to Ohio, he began
treatment with Dr. Madan.
Dr. Madan’s notes show that Plaintiff
was assessed with rheumatoid arthritis.
X-rays of Plaintiff’s
hands were taken on February 28, 2013 which showed cyst formation
in both wrists and deformities which might be related to
An x-ray of Plaintiff’s feet showed joint
narrowing and degenerative changes as well as osteophyte
formation, and an x-ray of the cervical spine showed degenerative
changes as well.
An office visit note from April
1, 2013, shows that Plaintiff was reporting 1-2 hours of morning
stiffness and pain at a six out of ten level as well as pain and
swelling in the feet, hands, ankles, and knees.
showed decreased range of motion in the cervical spine and the
lumbar spine and diffuse swelling in the hands and fingers, with
all joints tender to palpation.
swollen and warm to the touch.
Plaintiff’s knees were also
His gait was antalgic.
assessed with rheumatoid arthritis, chronic pain syndrome,
osteoarthritis, vitamin D deficiency, and fibromyalgia.
to a pain specialist was recommended once Plaintiff obtained
The final medical record is an office note from Dr. Patel
dated October 23, 2013.
It notes, among other things, that
fibromyalgia was diagnosed in February, 2013 through laboratory
There is no indication that any physical examination
was performed that day.
In addition to these treatment or evaluation records, two
state agency physicians expressed views about Plaintiff’s
Dr. Lewis noted diagnoses of inflammatory
arthritis, fibromyalgia, and ischemic heart disease.
concluded, on October 24, 2012, that Plaintiff could do light
work and had some limits on his ability to climb ladders, ropes,
and scaffolds, stoop, and bend at the knees.
handling and fingering were limited to frequent, apparently based
on comments that Plaintiff was not currently having difficulties
with fine and gross manipulation.
Dr. Bolz reached
the same conclusions in his report of January 1, 2013.
Neither had the benefits of the reports from Drs. Madan and
The Vocational Testimony
Mark A. Anderson was called to testify as a vocational
expert at the administrative hearing.
His testimony begins at
page 75 of the administrative record.
Mr. Anderson first testified about Plaintiff’s past relevant
He said the collection clerk job was skilled and
sedentary, and the store manager job was skilled and light.
other job, which Mr. Anderson described as check cashier, was
sedentary and semi-skilled.
Next, Mr. Anderson was asked some questions about someone
with Plaintiff’s background and who could work at the sedentary
level, could climb ramps or stairs occasionally but not ladders,
ropes, or scaffolds, could occasionally balance, kneel, stoop,
crouch, and crawl, and could do handling and fingering only
The person also needed to be able to alternate
between sitting and standing, being able to sit for an hour
before needing to get up and stretch for five minutes.
Anderson said that someone with those restrictions could do
Plaintiff’s past job as a collection clerk or check cashier.
Next, Mr. Anderson was asked how limiting the person’s
ability to handle and finger to occasionally would affect the
ability to do those jobs.
He said that restriction would
eliminate both jobs and leave only a sedentary job of credit
information clerk which such a person could do.
the person were off task for five minutes at a time every thirty
minutes so that he or she could stand up and walk around, as a
practical matter that person could not be gainfully employed.
The same would be true if the person missed two days or more of
work per month or had many marked mental limitations relating to
Further, he testified that if a person could do
handling on a frequent basis but fingering on only an occasional
basis, none of Plaintiff’s past work would be available.
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages 2635 of the administrative record.
The important findings in that
decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the special earnings requirements of the Social Security Act
through December 31, 2013.
Second, he found that Plaintiff had
not engaged in substantial gainful activity since his alleged
Going to the next step of the sequential evaluation
process, the ALJ concluded that Plaintiff had severe impairments
including inflammatory arthritis, osteoarthritis, and coronary
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,
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff had the residual functional
capacity to perform work at the sedentary exertional level
although he could not climb ladders, ropes, or scaffolds, and he
could only occasionally crawl, balance, stoop, kneel, and crouch
and climb stairs and ramps.
Further, Plaintiff was required to
shift positions between sitting and standing, being able to sit
for one hour at a time before standing and stretching for five
minutes, and he was limited to frequent fine and gross
manipulation (or handling and fingering).
With these restrictions, the ALJ concluded that Plaintiff
could perform his past relevant work as a collection clerk and
Such a finding is inconsistent with disability.
Consequently, the ALJ decided that Plaintiff was not entitled to
Plaintiff’s Statement of Specific Errors
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
evidence, shall be conclusive. . . ."
Substantial evidence is
"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402
adequate to support a conclusion'"
U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
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.
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).
Plaintiff is proceeding in this case pro se and has not
filed a traditional statement of errors.
He has attached to his
filing a number of more recent medical reports which were not
before the ALJ and which this Court therefore cannot consider in
determining if the ALJ’s decision is supported by substantial
See, e.g., Cotton v. Sullivan, 2 F.3d 692, 696 (6th
Cir. 1993), holding that “the district court improperly
considered [the claimant’s] new evidence because the claimant
failed to demonstrate good cause justifying a remand for
administrative consideration of the new evidence.”
The Court can
review Plaintiff’s new evidence to see if it would justify a
remand under 42 U.S.C. §405(g), sentence six, but must evaluate
the ALJ’s decision on the basis of the records before that judge.
As to that issue, the key decisions made by the ALJ decisions which, had they gone the other way, would have resulted
in a finding of disability - were that Plaintiff could perform
handling and fingering frequently rather than occasionally, and
that he could sit for up to an hour at a time during the work day
before needing to change positions.
If Plaintiff’s testimony on
either of these points had been accepted, the decision could well
have been different.
Since Plaintiff indicates a general
disagreement with the ALJ’s decision concerning his ability to
function in the workplace, the Court will review these findings
under the substantial evidence standard.
The ALJ first acknowledged Plaintiff’s testimony at the
hearing that he had difficulty sitting and that due to weakness
in his hands he had trouble holding a pen or pencil.
the ALJ found those statements not to be fully credible.
Next, the ALJ concluded that Plaintiff’s primary impairment
was rheumatoid arthritis.
The ALJ found that Plaintiff’s
fibromyalgia was not a medically determined impairment because
other explanations for his symptoms - specifically, rheumatoid
arthritis - had not been excluded and that, under the applicable
Social Security Ruling, SSR 12-2p, such exclusion is required,
see Tr. 29.
The ALJ then determined that any comments about the
level of Plaintiff’s pain made to Dr. Swarup in 2009 were
inconsistent with that physician’s observation that Plaintiff was
“in no acute distress,” and further noted that he visits to Dr.
Swarup produced only unremarkable findings.
The ALJ then discussed Dr. Whitehead’s opinion, noting
Plaintiff’s report of difficulty grasping with his left hand and
an inability to sit for more than 30 minutes - the same amount to
which he testified at the administrative hearing.
that testing of the hands showed only some diminished strength in
the left hand, the ALJ gave “great weight” to Dr. Whitehead’s
Turning to the 2013 medical records, the ALJ acknowledged
that the x-rays taken at that time showed various findings, but
said that the physical examination s “remained largely
He characterized Dr. Madan’s comment that
Plaintiff’s general appearance was within normal limits as being
incompatible with a finding of disabling symptoms notwithstanding
the positive signs exhibited on examination.
In what appears to be his credibility finding, the ALJ noted
that at the hearing, “claimant is able to dress himself, prepare
meals, clean the house, and shovel snow for 10 to 15 minutes at a
This meant that “claimant is able to grasp,
stand, walk and manipulate on some level” and led the ALJ to
conclude that he could do frequent handling and fingering.
The ALJ also noted that in an effort to accommodate Plaintiff’s
chronic pain symptoms, he found that Plaintiff needed to shift
positions “to the extent described in this decision” - that is,
after an hour of continuous sitting.
Finally, the ALJ,
giving “some weight” to the opinions of the state agency
reviewers, said that due to the combined effects of Plaintiff’s
impairments, including obesity, he had decided to limit Plaintiff
to sedentary rather than light activity.
Addressing first the ALJ’s finding that Plaintiff’s
fibromyalgia is not a medically determinable impairment, the
Court notes that SSR 12-2p was adopted to provide “guidance on
how we develop evidence to establish that a person has a
medically determinable impairment (MDI) of fibromyalgia (FM), and
how we evaluate FM in disability claims....”
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 Ruling states that fibromyalgia is a medically determinable
impairment “when it is established by appropriate medical
evidence” and “can be the basis for a finding of disability.”
then notes that fibromyalgia can only be established by evidence
from an acceptable medical source, and that there must be both a
diagnosis and evidence described in the following two subsections
of the Ruling.
The first, section II(A), requires a history of
widespread pain, at least eleven positive tender points on
examination, and evidence that other disorders which could cause
the symptoms or signs were excluded.
The second set of criteria
found in section II(B) are similar except that “[r]epeated
manifestations of six or more FM symptoms” is substituted for the
tender point findings.
The ruling also advises adjudicators that
if objective evidence does not substantiate the claimant’s
symptoms, the adjudicator still must consider “all of the
evidence in the case record” - an acknowledgment that, often,
objective testing is insufficient to determine the extent to
which fibromyalgia may be debilitating.
The record in this case contains multiple diagnoses of
fibromyalgia, and that was one of the conditions listed and
evaluated during the first two levels of the administrative
There were also at least two instances where the
tender point criteria were satisfied.
The ALJ did not
specifically base his decision about fibromyalgia on the fact
that, at other times, Plaintiff did not demonstrate the required
number of tender points, and there is nothing in this record to
explain whether, in order to reach a valid diagnosis of
fibromyalgia, a physician must be able to locate at least eleven
tender points at each examination.
That leaves, as the crucial
part of the ALJ’s finding on the issue, his determination that
because Plaintiff suffered from rheumatoid arthritis, he could
not also be suffering from fibromyalgia.
That finding seems totally at odds with the decisional law
in this area.
For example, in Stup v. UNUM Life Ins. Co. of
America, 390 F.3d 301, 303 (4th Cir. 2004), the court quoted an
HHS/National Institute of Health study which said that “People
with rheumatoid arthritis and other autoimmune diseases, such as
lupus, are particularly likely to develop fibromyalgia.”
the leading opinions dealing with fibromyalgia from the Sixth
Circuit Court of Appeals, Rogers v. Comm’r of Social Security,
486 F.3d 234 (6th Cir. 2007), involved a claimant who had been
diagnosed with both rheumatoid arthritis and fibromyalgia, and
the court remanded the case for further consideration of both
As the Court reads SSR 12-2p, if the medical records do not
demonstrate that any testing was done to identify and rule out
other conditions which might also cause the type of overall
muscle, joint, or soft tissue pain associated with fibromyalgia,
an ALJ might well find that the third diagnostic criterion set
forth in SSR 12-2p were not met.
However, when, as here, such
testing is done, and another condition (rheumatoid arthritis) is
identified, but that condition causes different types of symptoms
such as joint swelling, which is not typically associated with
fibromyalgia, see, e.g., Preston v. Sec’y of HHS, 854 F.2d 815,
818 (6th Cir. 1988)(examination of a fibromyalgia patient
ordinarily shows “a full range of motion, no joint swelling, as
well as normal muscle strength and neurological reactions”), it
is simply incorrect to conclude that both illnesses cannot coexist.
The physicians who diagnosed both, and treated both
separately, clearly determined that rheumatoid arthritis was both
present and did not fully explain Plaintiff’s other symptoms;
otherwise, they would not have diagnosed both conditions.
this situation, it was legal error for the ALJ to find that
because rheumatoid arthritis had been diagnosed, Plaintiff’s
fibromyalgia could not qualify as a medically determinable
The Commissioner, apparently recognizing that the ALJ’s
decision on this issue might be problematic, argues that any
error made by the ALJ was harmless.
There is a body of case law
holding that when an ALJ erroneously decides that a medical
condition is not severe, if the limitations caused by that
condition are considered when the ALJ decides what the claimant
can and cannot do, it makes no difference whether that condition
was found to be “severe” at the second step of the analysis.
See, e.g., Taylor v. Astrue, 2012 WL 870770, *5 (S.D. Ohio March
14, 2012), adopted and affirmed, 2012 WL 1268178 (S.D. Ohio April
13, 2012), citing Maziarz v. Sec'y of HHS, 837 F.2d 240, 244 (6th
That is not what occurred here, however.
explained below, the ALJ’s determination that Plaintiff’s
fibromyalgia was not a medically determinable impairment appears
to have influenced his analysis of Plaintiff’s limitations and
his assessment of Plaintiff’s credibility, thereby influencing
his residual functional capacity finding as well.
As SSR 12-2p indicates, and as the case law has established,
a fibromyalgia sufferer can present to a physician without any
significant objective signs or symptoms.
As noted in Preston,
supra, and repeated in numerous other decisions, the typical
signs of orthopedic or neurologic abnormalities are often absent
in fibromyalgia patients.
See also Sarchet v. Chater, 78 f.3d
305, 307 (7th Cir. 1996)(noting that the ALJ had improperly
“depreciated the gravity of [claimant]'s fibromyalgia because of
the lack of any evidence of objectively discernible symptoms,
such as a swelling of the joints”).
But here, the ALJ’s decision
is replete with comments that because various treatment notes
describe Plaintiff as “in no acute distress” or as having a
general appearance “within normal limits,” he could not be
experiencing debilitating pain or weakness, particularly from
That type of analysis is problematic under the
best of circumstances because the key findings in a doctor’s
report are the examination results rather than more general
comments about the patient’s appearance.
But this analysis is
especially troubling in a case involving fibromyalgia, where such
comments are completely consistent with the way in which persons
with that disease can appear when examined.
The ALJ may well
have been influenced to make these comments - and to devalue
Plaintiff’s testimony as well as some of the objective findings
from his physicians - because of his erroneous decision about
whether Plaintiff’s fibromyalgia was a medically determinable
The error is therefore not harmless, or, at least,
the Commissioner has not carried the burden of showing that it
was, and a remand is required in order for the ALJ properly to
evaluate the case in light of the diagnosis of fibromyalgia and
its presence as a severe impairment.
On remand, the ALJ should also consider some additional
The state agency opinions are the only place in the
record where Plaintiff is said to be capable of frequent
fingering and handling (although that conclusion may also be
implied by Dr. Whitehead’s report).
But all of those opinions
predate the x-ray findings from Dr. Madan.
Those findings, which
a lay person is probably unable to interpret, coupled with
Plaintiff’s testimony that his hand weakness has worsened,
suggest that additional evidence should be taken on the question
of whether he retained the ability to handle and finger
frequently at all times before the expiration of his insured
Also, Dr. Whitehead’s report, to which the ALJ assigned
great weight, expressed no opinion as to how long Plaintiff could
sit continuously before needing to stand.
Dr. Whitehead limited
Plaintiff to a sedentary level of lifting and said he could
tolerate four to five hours of standing, but the only evidence in
the record as to how long Plaintiff could sit before needing to
change positions is Plaintiff’s own testimony.
Nothing in his
testimony, which the ALJ summarized in a way that does not
accurately reflect what Plaintiff said about his ability to cook,
clean, dress, shop, or shovel snow, is inconsistent with a halfhour sitting limitation.
Consequently, the ALJ should make a
specific credibility finding about that portion of Plaintiff’s
testimony, and if he finds it not to be credible, should explain
why not, following the analytical pattern described in cases like
Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994).
testified that, as of the time of the hearing, although he could
dress himself, he could no longer wear clothing with buttons or
His testimony about being able to dress himself is not,
as the ALJ seemed to conclude, inconsistent with an inability to
finger or handle more than occasionally, and a more detailed
credibility finding should be made on this issue as well.
short, especially given the key nature of the questions of how
long Plaintiff could sit and how frequently he could handle and
finger, all of these issues deserve a more through discussion
than the ALJ devoted to them.
As noted above, Plaintiff also included some more recent
medical records with his statement of errors.
On remand, he may
submit them to the ALJ, although the ALJ will be free to
determine if they have any relevance to Plaintiff’s functional
capacity on or before December 31, 2013.
To make it clear, the
remand which is being recommended is not based on this evidence
but on the errors identified in the ALJ’s decision.
Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained to the extent that
the case be remanded to the Commissioner pursuant to 42 U.S.C.
§405(g), sentence four.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
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
of the report or specified proposed findings or
recommendations to which objection is made.
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
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