Bell v. Berryhill

Filing 17

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, this case will be remanded for further consideration of the degree to which Plaintiffs fibromyalgia compromises her ability to perform full-time employment. The SSA must expand the record to more fully address this question and should consider soliciting a clarifying opinion from Dr. Albright and, perhaps, referring Plaintiff for examination by a rheumatologist.Signed by Honorable Richard P. Conaboy on 6/7/18. (cc)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
Carrie Ann Bell,
Plaintiff

No.3:17-cv-01793

v.

(Judge Richard P. Conaboy)

Nancy A. Berryhill,
Acting Commissioner of
Social Security,
Defendant

MEMORANDUM
1.

Procedural Background.
We consider here Plaintiff’s appeal from an adverse

decision of the Social Security Administration (“SSA”) on her
applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). This case was initially
filed in 2012 and most recently was back before the SSA after
being remanded by this Court in July of 2016. After remand,
Plaintiff received a new hearing before an ALJ on May 25, 2017.
The ALJ issued a written a decision dated August 2, 2017, which,
once again, denied Plaintiff’s claims. This Court has
jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
II. Testimony before the ALJ.
A hearing was conducted before ALJ Randy Riley on May 25,
2017 in Harrisburg, Pennsylvania. Plaintiff Carrie Ann Bell

testified on her own behalf and Michael Kibble, a vocational
expert (“VE”), testified as to the availability of employment in
hypothetical situations proposed by the ALJ. Also present was
Plaintiff’s attorney whose identity was not placed in the
record.
Plaintiff testified that she and her two children had lived
with her mother since some unspecified date in 2013. Her mother
was about to turn fifty-four years of age on the date of the
hearing. Plaintiff went back to work briefly in 2015 despite the
fact that neither her physical nor mental condition had
improved. (R. 553-554). In order to obtain the job a friend
helped her to complete the application. She needed assistance
because she did not understand some of the questions. (R. 555).
Plaintiff did not know anyone who worked for the employer
for whom she worked in 2015. She did not have difficulty
understanding the employer’s directions about how to do the job.
She worked for three months and then stopped because her back
pain was getting worse. Her daughter is autistic and required
more care as well, but the primary reason she quit the job was
constant back pain. (R. 555-56). The job in question was parttime but she still needed to call off or go home early four or
five times during the three months she worked there. She does
not believe that she could have performed the job (a hotel maid)
if it had been on a full-time basis. (R. 557). Bending down to

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make beds and clean the bathrooms was particularly difficult for
her. She was under constant supervision and was told that she
was too slow at doing the rooms. She was also told that she was
forgetting to do things such as supplying cups or setting alarm
clocks. She had difficulty working at the pace her supervisor
preferred. She was often directed to work at a speed she found
difficult to maintain. (R. 557-58).
Since she left part-time employment as a hotel maid in 2013
her primary physical problems have been back pain and
instability in her right shoulder. She takes unspecified pain
medications for these conditions but denies side effects. (R.
559). She also has problems with her memory. She forgets things
like paying for her children’s lunch tickets. She is also
reluctant to go anywhere by herself and is always accompanied by
one of her daughters, her mother, or a friend. She is afraid
that someone may hurt her and recounted an episode in which she
was alone and had an angry encounter with another motorist. When
she goes to the store she is never sure whether she has received
the correct change. Her mother helps her manage her bills. (R.
560-63).
The VE testified that he was familiar with the SSA’s
categories of work and with the Dictionary of Occupational
Titles. He stated that he was also familiar with the Plaintiff’s
work history. He indicated that Plaintiff’s past relevant work

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had been classified as light though medium as performed by the
Plaintiff (housekeeper-cleaner) and medium though heavy as
performed by the Plaintiff (store laborer).
R. 564-65).
The ALJ asked the VE to assume a person of the Plaintiff’s
age, education, and work experience with additional limitations
to light work; occasional use of stairs; occasional balancing,
stooping, kneeling, crouching, and crawling; never use of
ladders; no exposure to irritants; work limited to routine,
repetitive tasks; and a work environment that does not involve
fast-paced production quotas or frequent workplace changes.
Based on those assumptions, the VE stated that the Plaintiff
would not be able to perform any of her past relevant work.
However, given those limitations, light work would be available
within the hypothetical claimant’s capacities as a bindery
machine feeder and a bakery racker. Also, sedentary work would
be available as a table worker. (R. 565-66).
When the ALJ altered the previous hypothetical question to
include an additional limitation such that the hypothetical
claimant would also need to alternate between sitting and
standing every fifteen minutes, the VE stated that such a person
could not perform as a bindery machine feeder or bakery racker,
but would be able to perform the sedentary job of table worker.
The VE added that two other sedentary jobs - - small products

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assembler and conveyer line bakery worker would also be within
the hypothetical claimant’s capacities. When the ALJ altered the
hypothetical question once again to further assume that the
hypothetical claimant would be unable to consistently perform
sustained work activity over a forty hour week, the VE responded
that the addition of such a limitation would render the
hypothetical person (and hence the claimant) unemployable. (R.
566).
Plaintiff’s counsel then questioned the VE whether the
sedentary jobs she had described required more than occasional
supervision. The VE replied that they involved occasional
supervision “on the lower end of occasional”. The VE was then
asked whether the need for a supervisor to correct an employee’s
performance in some small way on a daily basis would affect the
ability of the employee to stay employed. The VE responded that
if the small corrections were made in response to some error
that was resulting in a faulty product the person would be
unemployable as requiring too much supervisory attention. (R.
567-568).
III. Medical Evidence.
A. Pinnacle Health.
Plaintiff’s primary health care provider from April of 2011
to at least September of 2014 was Pinnacle Health in Middletown,
Pennsylvania. Dr. William Albright provided the bulk of her

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care. Dr. Joseph W. Lohr and Nurse Practitioner Linda Ulrich
also provided medical services to Plaintiff during this period.
Throughout Plaintiff’s involvement with Pinnacle Health,
progress notes indicate diagnoses of low back pain, migraine
headaches, and fibromyalgia. Plaintiff’s treatment at Pinnacle
Health consisted of prescription pain medications, several
trigger point injections, and physical therapy. An office note
of October 11, 2012 suggests that x-rays and an MRI produced no
answer regarding the etiology of Plaintiff’s back pain and that
the advisability of seeing a pain psychologist was discussed.1
While the office notes from Pinnacle Health bear out the fact
that Plaintiff complained continuously of back pain throughout
the relevant period, the progress notes typically describe her
distress level as “mild” or “moderate” and, on some occasions,
as “no apparent distress”.
Nurse Practitioner Lisa Ulrich executed a Residual
Functional Capacity Questionnaire with respect to Plaintiff on
July 27, 2012 (R. 388-89). Ms. Ulrich opined that Plaintiff
suffered from migraines, low back pain and fibromyalgia. Ms.
Ulrich indicated the Plaintiff’s symptoms would “seldom”
interfere with her ability to perform simple work-related tasks;

1

An MRI performed on November 17, 2011 indicated that Plaintiff’s vertebral body heights
were preserved and demonstrated no significant degenerative changes. The MRI did demonstrate
“mild posterior central disc protrusion at L5-S1”.

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that Plaintiff could walk one-half block without rest or
significant pain; that Plaintiff could sit for thirty minutes at
a time and stand-walk for fifteen minutes at a time; that
Plaintiff could sit for up to three hours in an eight hour work
day and stand/walk for up to three hours in an eight hour work
day; that Plaintiff required a job which would permit her to
shift positions at will; that Plaintiff would need to take
unscheduled breaks of twenty to thirty minutes every two hours
while at work; that Plaintiff could frequently lift up to ten
pounds and occasionally lift up to twenty pounds; that Plaintiff
had no limitation with respect to grasping, turning, or twisting
objects or with fine manipulation; that Plaintiff would miss
three to four work days each month; that Plaintiff was not a
malinger; and that Plaintiff was incapable of sustained fulltime employment.
On December 10, 2012, Dr. Albright completed a Residual
Functional Capacity Questionnaire concerning Plaintiff. His
findings largely mirrored those of Nurse Practitioner Ulrich
five months earlier. Dr. Albright did place even more
restrictions on Plaintiff’s ability to sit, stand/walk, and
lift. He also found that Plaintiff’s ability to perform
repetitive reaching, handling, or fingering was significantly
limited. He stated that he could not say whether Plaintiff was a

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malingerer but, like Ms. Ulrich, he concluded that Plaintiff was
incapable of full-time employment.
B. Dr. Bruce Goodman.
On March 24, 2010, Dr. Goodman evaluated Plaintiff at the
request of the Bureau of Disability Determination. Dr. Goodman
did not have the benefit of Plaintiff’s medical records and he
relied on Plaintiff’s recitation of her medical history.
Plaintiff told Dr. Goodman that she was looking for work but had
been unable to find a job that she could tolerate. Dr. Goodman
stated that Plaintiff also told him that she had two children
age two and six and that she was capable of cooking, cleaning,
grocery shopping, driving, and child care. She walked with a
normal gait, could heel/toe walk easily, exhibited no muscle
spasm, exhibited negative straight leg raising in the supine
position, and displayed no muscular atrophy or weakness. Dr.
Goodman assessed that Plaintiff could stand/walk and sit without
limitations; could frequently lift up to twenty pounds and had
no limitation with respect to reaching, handling, fingering, or
feeling.
C. Dr. Joseph Agliotta.
Dr. Agliotta, a psychologist evaluated Plaintiff’s
intellectual functioning on March 31, 2010 at the request of the
Bureau of Disability Determination. He administered the Wechsler
Adult Intelligent Test, reviewed Plaintiff’s records, and

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interviewed her. Dr. Agliotta found her to be oriented to
person, place, and time with concrete thought processes. He
found also that her mood was pleasant and her affect was full
range. He assessed her verbal IQ at 66, performance IQ at 64,
and full scale IQ at 63. These scores were indicative of mild
mental retardation. He observed also that Plaintiff “would need
assistance and oversight in managing any financial benefits.” In
terms of her ability to understand, remember, and carry out
instructions, Dr. Agliotta found only slight to moderate
impairment. Dr. Agliotta also assessed slight to moderate
impairment in Plaintiff’s ability to interact with the public,
coworkers, and supervisors.
IV. ALJ Decision.
The ALJ’s decision (Doc. 12-13 at 521-548) was unfavorable
to the claimant. It includes the following findings of fact and
conclusions of law.
1. The claimant meets the insured status
requirements of the Social Security Act through
December 31, 2011.
2. The claimant has not engaged in substantial
gainful activity since December 31, 2005, the
alleged onset date.
3. The claimant has the following severe
impairments: mild mental retardation,

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degenerative disc disease of the cervical and
lumbar spine, fibromyalgia, pain disorder,
bipolar disorder, and panic disorder.
4. The claimant does not have an impairment or
combination of impairments that meets or
medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Sub
Part, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire
record, the undersigned finds that the claimant
has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567 (d)
and 414.967(d) except: occasionally climb
stairs, balance, stoop, kneel, crouch, and
crawl; never climb ladders, ropes, or
scaffolds; must be allowed to alternate between
sitting and standing every fifteen minutes as
needed; avoid exposure to irritants; and work
is limited to simple, routine, repetitive tasks
in a work environment free from fast-pace
production involving only simple work-related
decisions with few, if any, work-place changes.

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6. The claimant is unable to perform any past
relevant work.
7. The claimant was born on February 15, 1982 and
was twenty-three years old which is defined as
a younger individual age 18-49, on the alleged
disability onset date.
8. The claimant has at least a high school
education and is able to communicate in
English.
9. Transferability of job skills is not an issue
in this case because the claimant’s past
relevant work is unskilled.
10. Considering the claimant’s age, education, work
experience, and residual functional capacity,
there are jobs that exist in significant
numbers in the national economy that the
claimant can perform.
11. The claimant has not been under a disability as
defined in the Social Security Act, from
December 31, 2005, through the date of this
decision.
V.

Disability Determination Process.

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The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2

It is necessary for

the Commissioner to ascertain: 1) whether the applicant is
engaged in a substantial activity; 2) whether the applicant is
severely impaired; 3) whether the impairment matches or is equal
to the requirements of one of the listed impairments, whereby he
qualifies for benefits without further inquiry; 4) whether the
claimant can perform his past work; 5) whether the claimant=s
impairment together with his age, education, and past work
experiences preclude him from doing any other sort of work.

20

CFR '' 404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley,
493 U.S. 521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to

demonstrate that he or she is unable to engage in his or her

2

ADisability@ is defined as the Ainability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not less than 12
months . . . .@ 42 U.S.C. ' 423(d)(1)(A). The Act further provides that an individual is disabled
only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.
42 U.S.C. ' 423(d)(2)(A).

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past relevant work.

If the claimant satisfies this burden, then

the Commissioner must show that jobs exist in the national
economy that a person with the claimant=s abilities, age,
education, and work experience can perform.

Mason v. Shalala,

993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R. at 541).
VI.

Standard of Review.
This Court’s review of the Commissioner=s final decision is

limited to determining whether there is substantial evidence to
support the Commissioner=s decision.

42 U.S.C. ' 405(g);

Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
Substantial evidence means Amore than a mere scintilla”.

It

means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.@

Richardson v. Perales, 402

U.S. 389, 401 (1971); see also Cotter v. Harris, 642 F.2d 700,
704 (3d Cir. 1981).

The Third Circuit Court of Appeals further

explained this standard in Kent v. Schweiker, 710 F.2d 110 (3d
Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence
vel non of substantial evidence is not

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merely a quantitative exercise. A single
piece of evidence will not satisfy the
substantiality test if the Secretary
ignores, or fails to resolve, a conflict
created by countervailing evidence. Nor is
evidence substantial if it is overwhelmed
by other evidenceB-particularly certain
types of evidence (e.g., that offered by
treating physicians)B-or if it really
constitutes not evidence but mere
conclusion. See Cotter, 642 F.2d at 706
(ASubstantial evidence@ can only be
considered as supporting evidence in
relationship to all the other evidence in
the record.@) (footnote omitted). The
search for substantial evidence is thus a
qualitative exercise without which our
review of social security disability cases
ceases to be merely deferential and becomes
instead a sham.
710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary
to analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative
exhibits, Ato say that [the] decision is supported by
substantial evidence approaches an abdication of the court=s
duty to scrutinize the record as a whole to determine whether
the conclusions reached are rational.@
606 F.2d 403, 406 (3d Cir. 1979).

Dobrowolsky v. Califano,

In Cotter, the Circuit Court

clarified that the ALJ must not only state the evidence
considered which supports the result but also indicate what
evidence was rejected: ASince it is apparent that the ALJ cannot
reject evidence for no reason or the wrong reason, an

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explanation from the ALJ of the reason why probative evidence
has been rejected is required so that a reviewing court can
determine whether the reasons for rejection were improper.@
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake

an exhaustive discussion of all the evidence.
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp

AThere is no

requirement that the ALJ discuss in her opinion every tidbit of
evidence included in the record.@
130, 133 (3d Cir. 2004).

Hur v. Barnhart, 94 F. App=x

A[W]here [a reviewing court] can

determine that there is substantial evidence supporting the
Commissioner=s decision, . . .
implicated.@

the Cotter doctrine is not

Hernandez v. Commissioner of Social Security, 89

Fed. Appx. 771, 774 (3d Cir. 2004) (not precedential).
A reviewing court may not set aside the Commissioner=s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
Hartranft, 181 F.3d at 360 (citing Monsour Medical Center v.
Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986); 42 U.S.C. '
405(g) (A[t]he findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be
conclusive . . .@). AHowever, even if the Secretary=s factual
findings are supported by substantial evidence, [a court] may
review whether the Secretary, in making his findings, applied
the correct legal standards to the facts presented.@

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Friedberg

v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983) (internal
quotation omitted).

Where the ALJ=s decision is explained in

sufficient detail to allow meaningful judicial review and the
decision is supported by substantial evidence, a claimed error
may be deemed harmless.

See, e.g., Albury v. Commissioner of

Social Security, 116 F. App=x 328, 330 (3d Cir. 2004) (not
precedential) (citing Burnett v. Commissioner, 220 F.3d 112 (3d
Cir. 2000) (A[O]ur primary concern has always been the ability to
conduct meaningful judicial review.@). Finally, an ALJ=s decision
can only be reviewed by a court based on the evidence that was
before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
VII. Discussion
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue
here, we note the Third Circuit has repeatedly emphasized the
special nature of proceedings for disability benefits.
Dobrowolsky, 606 F.2d at 406.

See

Social Security proceedings are

not strictly adversarial, but rather the Social Security
Administration provides an applicant with assistance to prove
his claim.

Id.

AThese proceedings are extremely important to

the claimants, who are in real need in most instances and who
claim not charity but that which is rightfully due as provided

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for in Chapter 7, Subchapter II, of the Social Security Act.@
Hess v. Secretary of Health, Education and Welfare, 497 F. 2d
837, 840 (3d Cir. 1974).

As such, the agency must take extra

care in developing an administrative record and in explicitly
weighing all evidence.

Dobrowolsky, 606 F.2d at 406.

Further,

the court in Dobrowolsky noted Athe cases demonstrate that,
consistent with the legislative purpose, courts have mandated
that leniency be shown in establishing the claimant=s disability,
and that the Secretary=s responsibility to rebut it be strictly
construed.@

Id.

B. Plaintiff’s Allegations of Error.
1. Whether the ALJ unreasonably determined that Plaintiff
failed to meet the criteria of Listing 12.05(B)?
To substantiate a claim for DIB under a Listing, the
claimant must demonstrate that she meets all criteria of the
Listing. Sullivan v. Zebley, 493 U.S. 521,530(1990). Here,
claimant asserts that she meets the criteria of Listing 12.05B
which requires that she demonstrate:
1. Significantly sub average general
intellectual functioning evidenced by …
a full scale (or comparable) IQ score
of 70 or below on an individually
administered standardized test of
general intelligence; and

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2. Significant defects in adaptive functioning
currently manifested by extreme limitation
of one, or marked limitation of two, of the
following areas of mental functioning:
(a)understand, remember, or apply
instructions; or (b)interact with
others; or (c) concentrate, persist,
or maintain pace; or (d) adapt or
manage oneself.
The record clearly documents that Plaintiff has significantly sub
average intellectual functioning via the Wechsler Adult
Intelligence Scale administered by Dr. Agliotta. (R. 293-295).
Thus, claimant has satisfied the first element of Listing 12.05B.
The Court is less sanguine that she satisfies the other necessary
criteria.
There is no convincing evidence of record that Plaintiff has
an extreme limitation or even a marked limitation of any of the
four components of paragraph two of the Listing. Both Dr. Agliotta
and Dr. Suminski found that Plaintiff’s limitations with regard to
understanding, remembering and applying instructions; interacting
with others; concentration, persistence and pace; and adaptation

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were either mild or moderate.3 Thus, the ALJ’s conclusion that
Plaintiff did not satisfy all criteria of the Listing is well
supported by substantial evidence of record. Accordingly,
Plaintiff’s allegation of error on this point will be rejected.
2. Whether the ALJ improperly evaluated the medical evidence
regarding the effect of Plaintiff’s fibromyalgia?
Plaintiff claims that the ALJ failed to consider the
debilitating effect of her fibromyalgia in determining her
residual functional capacity. (R. 16-18). The ALJ did acknowledge
that Plaintiff’s fibromyalgia is a “severe impairment” at step 2
of the SSA’s evaluative process. Despite that assessment and
identification of other severe impairments including mild mental
retardation, degenerative disc disease of the lumbar and cervical
spine, pain disorder, panic disorder, and bipolar disorder, the
ALJ found Plaintiff to be capable of light work with various
additional limitations. (R. 533-534). A VE has confirmed that work
exists in significant numbers in the national economy in
occupations that accommodate the ALJ’s assessment of Plaintiff’s
residual functional capacity. (R. 565-567).
The ALJ’s residual functional capacity determination is in
stark contrast to a Residual Functional Capacity Questionnaire

3

Dr. Sumski noted: “The claimant is able to meet the basic mental demands of simple routine
work on a sustained basis despite the limitations resulting from her impairment.” (R. at 301).

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submitted on December 10, 2012 by Dr. William J. Albright,
Plaintiff’s treating physician. (R. 449-450). Dr. Albright’s
assessment places severe limitations on Plaintiff and concludes
unequivocally that Plaintiff is incapable of sustaining full-time
employment. The ALJ relied instead on medical opinions provided by
Dr. Bruce Goodman, a consulting, examining physician who evaluated
Plaintiff at the request of the Bureau of Disability Determination
in March of 2010, and Dr. Candelaria Legaspi, a state agency
medical consultant who reviewed Plaintiff’s medical records in
April of 2012. (R. at 538). Both Dr. Goodman and Dr. Legaspi
concluded that Plaintiff could perform work on a full-time basis
at the light exertional level.
In the Third Circuit a treating physician’s opinion is
entitled to great deference and, where uncontradicted by other
credible medical evidence of record, controlling weight. This is
even more particularly so when, as in this case, the treating
physician’s opinion is based upon a continuing observation of a
patient’s condition over a prolonged period of time. Morales
Apfel, 225 F3d 310 (3d Cir. 2000); See also 20

C.F.R. §

416.927(d)(2). Where competing medical opinions exist, the ALJ may
choose whom to credit but “cannot reject evidence for no reason or
for the wrong reason.” Plummer v. Apfel, 186 F3d 422, 429 (3d Cir.
1999). The ALJ is required to provide “good reason” for rejecting

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the medical opinion of a treating source. 20 C.F.R. §
404.1527(c)(2).
Before discussing the ALJ’s rationale for subordinating Dr.
Albright’s opinion to those of Drs. Goodman and Legaspi, the Court
must note that Dr. Goodman’s opinion (R. 288-292) is temporally
remote having been rendered more than eight years ago. More
significantly, Dr. Goodman’s opinion predates Plaintiff’s
diagnosis of fibromyalgia which was first noted by Dr. Albright in
his office notes dated July 27, 2012. (R. at 422). Because of its
temporal remoteness and because Dr. Albright’s numerous treatment
notes over a period of some forty-one months between April of 2011
and September of 2014 record the onset and continued
intractability of Plaintiff’s fibromyalgia, Dr. Goodman’s report
cannot reasonably be considered as accurate an assessment of
Plaintiff’s limitations as that of Dr. Albright.
Dr. Legaspi’s report is also suspect because it does not even
identify, much less discuss Plaintiff’s indisputable diagnosis of
fibromyalgia as confirmed by the ALJ himself. Moreover, Dr.
Legaspi did not have the benefit of a long, longitudinal history
of treating the patient as did Dr. Alright. Thus, in the absence
of some palpable error or shortcoming in Dr. Albright’s assessment
of Plaintiff’s capacity for work, it is unreasonable to prefer the
assessment of Dr. Legaspi produced from cold records alone.

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The ALJ’s stated basis for rejecting Dr. Albright’s opinion
that Plaintiff is disabled is:
There is also no explanation of the opinion on
the form itself and Dr. Albright’s treatment
records, including examination from the day the
form was completed, do not document significant
objective examination findings or an underlying
degree of disease supportive of the limitations
suggested. Accordingly, this opinion is also
found unsupported by the record and afforded
little weight.
(R. at 439). The court must disagree with this analysis. There are
no diagnostic tests for fibromyalgia. Fibromyalgia is a condition
that is diagnosed primarily on subjective complaints and a “case
involving a diagnosis of fibromyalgia presents a particular need
for a close examination of the evidence due to the nature of the
disease.” Watkins v. Colvin, 2013 WL1909550 (M.D. Pa. May 8, 2013)
(Citing Henderson v. Astrue, 887 F Supp. 2d 617, 636 (W.D.Pa.
2012). Thus, the ALJ’s observation about a supposed lack of
“significant objective examination findings” would hardly be
surprising in a case involving fibromyalgia. “Fibromyalgia
patients often manifest normal muscle strength and neurological
reactions and have a full range of motion.” Rogers v. Commissioner
of Social Security, 486 F3d 234, 244 (6d Cir. 2007). Despite the

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ALJ’s assertion that Dr. Albright’s progress notes contain no
objective findings, the treatment notes do contain numerous
references to fatigue; bilateral pain in the lower back, side,
upper back, and neck; difficulty initiating sleep; nocturnal
awakening; bilateral trigger areas; lumbar spine and right
sacroiliac joint tenderness; and generalized muscular aches and
pains. Each of these symptoms frequently occur in fibromyalgia
patients. See www.mayoclinic.org/fibromyalgia. Moreover, Dr.
Albright’s course of treatment of the Plaintiff included pain
alleviating medication, trigger point injections, and a referral
of the Plaintiff to a pain management psychologist. These modes of
treatment are those normally used in a fibromyalgia case. Id.
While the degree to which Plaintiff’s symptoms impair her
ability to work may still be open to some question, Plaintiff’s
subjective complaints as recorded over a period of years by Dr.
Albright constitute strong evidence that, considered together with
Plaintiff’s other severe impairments of record, Plaintiff may have
a more limited residual functional capacity than that determined
by the ALJ or even be disabled.

Thus, the Court must agree with

Plaintiff’s allegation of error on this point.
VIII. Conclusion.
For the reasons discussed above, this case will be remanded
for further consideration of the degree to which Plaintiff’s
fibromyalgia compromises her ability to perform full-time

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employment. The SSA must expand the record to more fully address
this question and should consider soliciting a clarifying opinion
from Dr. Albright and, perhaps, referring Plaintiff for
examination by a rheumatologist.

BY THE COURT
S/Richard P. Conaboy
Richard P. Conaboy
United States District Judge

Dated: June 7, 2018

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