WEBB v. COMMISSIONER OF SOCIAL SECURITY
Filing
11
MEMORANDUM OPINION AND ORDER denying 7 Plaintiff's Motion for Summary Judgment and granting 9 Defendant's Motion for Summary Judgment. Signed by Judge Terrence F. McVerry on 5/20/2015. (rjw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
)
) 1:14-cv-00250-TFM
)
)
)
)
)
FRANKIE L. WEBB, JR.,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION
May 20, 2015
I.
Introduction
Frankie L. Webb, Jr., (“Plaintiff”) brought this action for judicial review of the decision
of the Acting Commissioner of Social Security, which denied his application for disability
insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401403. Pending before the Court are the parties’ cross-motions for summary judgment (ECF Nos.
7, 9). The motions have been fully briefed and are ripe for disposition (ECF Nos. 8, 10).
II.
Background
A.
Facts
Plaintiff was born on February 4, 1969, making him a “younger person” under the
regulations as of his alleged onset date.1 (R. 47). He graduated from high school and thereafter
joined the United States Army. (R. 47-48). He served on active duty in Kuwait and Iraq in 2003
and eventually retired from the Army in September 2009 for medical reasons. (R. 48-51).
Specifically, he was missing “on average one to maybe two days a week” because he was
1.
If a claimant is under age 50, the Social Security Administration “generally do[es] not
consider that [his] age will seriously affect [his] ability to adjust to other work.” 20 C.F.R. §
404.1563(c).
1
“getting sick” and his “sugar readings from the diabetes were really high.” (R. 50-51). He also
had trouble gripping things with his hands, which, during the hearing, he attributed to “arthritis.”
(R. 50-52). He has not worked since 2009 and receives disability benefits from the Department
of Veterans Affairs (“VA”). (R. 48).
In his initial application for benefits, Plaintiff alleged disability as of August 31, 2009,
due to fibromyalgia, hypertension, sleep apnea, diabetes, nonalcoholic steatohepatitis (fatty liver
disease), a torn left Achilles, tendonitis in his right Achilles, bilateral hearing loss, tinnitus, and
gastroesophageal reflux disease (“GERD”). (R. 94, 154-55, 172). After his claim was denied at
the administrative level, Plaintiff filed a supplemental disability report in which he claimed to be
suffering from post-traumatic stress disorder (“PTSD”). (R. 194).
1.
Veterans Affairs Medical Center Records
Plaintiff has treated at the VA Medical Center (“VAMC”) in Erie, Pennsylvania, since his
retirement. On July 31, 2009, Lawrence Galla, M.D., conducted compensation and pension
examination (“C&P exam”) in connection with Plaintiff’s VA disability claim. (R. 318). Dr.
Galla reviewed Plaintiff’s “myriad of claims” and confirmed that he had previously been
diagnosed with fatty liver, GERD (well controlled on Nexium), sleep apnea (treated with a
continuous positive airway pressure (“CPAP”) machine), diabetes mellitus, residual right leg
burn with erythema, hyperlipidemia, and kidney stones. (R. 322-25). On August 20, 2009,
Plaintiff underwent another C&P exam, this time with Michael Orinick, M.D. (R. 327). Plaintiff
complained of a variety of musculoskeletal ailments and pain, along with trouble sleeping,
stiffness, paresthesia, and irritable bowel syndrome. (R. 331). Although a physical examination
was unremarkable, Plaintiff had “at least 16 and possibly 18 tender points consistent with a
diagnosis of fibromyalgia . . . .” (R. 332). According to Dr. Orinick, Plaintiff’s problems were
2
“difficult to diagnose due to the diffuse nature of the pain with palpation and diffuse range of
motion problems, without overt objective findings suggestive of any specific pathology in any of
these areas.” (R. 334). Still, he explained that “most if not all of [Plaintiff’s] complaints are due
to fibromyalgia.” (R. 334).
Plaintiff visited the Erie Vet Center on September 28, 2011, to undergo Vocational
Rehabilitation orientation and fill out paperwork. (R. 441). Afterward, Jane Drumm, a licensed
clinical social worker, called Plaintiff to tell him about the counseling services offered by the Vet
Center. (R. 441). In response to questioning from Ms. Drumm, Plaintiff described his
readjustment to civilian life as good, and he declined Ms. Drumm’s offer of counseling. (R. 441).
After the conversation, Ms. Drumm noted that Plaintiff “sounded positive” and hoped to attend
school and find a job in the civilian workforce. (R. 441).
In March 2012, Mary Ann Kozlowski, M.D., of the VAMC performed another C&P
exam and also completed a VA Disability Benefits Questionnaire, in which she assessed each of
Plaintiff’s alleged impairments, including his fibromyalgia. (R. 227-307). In terms of symptoms,
Plaintiff reported experiencing stiffness, muscle weakness, fatigue, sleep disturbances,
paresthesia, headaches, and irritable bowel syndrome. (R. 273, 275). He also described having
dreams of a military nature and experiencing numbness in his hands, forearms, elbows, and legs.
(R. 273). As for treatment, Plaintiff took five ibuprofens a day, which he said helped to alleviate
his pain. (R. 273). In the Disability Benefits Questionnaire, Dr. Kozlowski checked a box
indicating that Plaintiff’s fibromyalgia impacted his ability to work. (R. 275). As she explained,
Plaintiff told her that “[h]e can sit at the computer for 20-30 minutes before he has to get up and
walk about for several miutes [sic] and if they do not loosen up he has to go and lay down.” (R.
275). Thus, she continued, “[t]his would preclude gainful employment in a physical or a
3
sedentary job.” (R. 275).
In October 2012, Plaintiff saw Andrew King, M.D., his primary care physician at the
VAMC, and reported that his condition was about the same as it had been. (R. 369). He did,
however, describe suffering from recurrent neck and upper back soreness, but noted that the
soreness usually worked itself out over the course of the day. (R. 369). He also reported
experiencing some arthralgia (joint pain), myalgia (muscle pain), and constipation, but denied
experiencing any additional symptoms, including fatigue, memory loss, paresthesia, weakness,
depression, anxiety, and thoughts of hurting himself and others. (R. 371). Dr. King confirmed
diagnoses of hypertension, diabetes mellitus, osteoarthritis, hyperlipidemia, GERD, elevated
liver enzymes, and sleep apnea, but he made no mention of fibromyalgia. (R. 371). According to
Dr. King, Plaintiff’s diabetes was poorly controlled, his blood pressure was slightly elevated, his
lipids were high, his GERD was stable, his degenerative joint disease was stable with only
occasional reported aches, and his weight was down slightly. (R. 371-72). Because of Plaintiff’s
high blood sugars and elevated blood pressure and lipids, Dr. King “discussed at length” the
need for exercise, weight loss, and lifestyle changes. (R. 369). He also administered depression
and PTSD screenings, both of which were negative. (R. 375-76).
Plaintiff followed up with Dr. King on April 18, 2013, with reports that he had recently
strained a rib while playing basketball with his son. (R. 354). In addition to the rib pain, Plaintiff
said that he had not been checking his blood-sugar levels, and, although his weight was down
slightly, he had been non-compliant with his diet. (R. 354). At the same time, his sleep apnea
was reportedly “OK w/ CPAP,” and he denied any new cardiac, pulmonary, gastrointestinal,
skin, or neurological symptoms. (R. 354). He also denied fatigue, memory loss, paresthesia,
weakness, depression, anxiety, and thoughts of hurting himself and others. (R. 357). Dr. King
4
determined that Plaintiff’s diabetes was even more uncontrolled than it had been during their last
visit, and urged Plaintiff to comply with his diet and make the lifestyle changes that had
previously been discussed. (R. 357). Meanwhile, Dr. King found that Plaintiff’s hypertension,
GERD, “DJD/fibromyalgia,” and elevated liver enzymes were stable. (R. 357). Finally, Plaintiff
tested negative for depression and PTSD, as he had done during his last visit. (R. 359).
Dr. King next saw Plaintiff on October 22, 2013, when he noted that Plaintiff was
“generally doing well[.]” (R. 417). Plaintiff reported feeling some fatigue after eating lunch,
which were apparently attributed to his diabetes, and a few arthralgias, but he denied
experiencing any other symptoms, including memory loss, paresthesia, weakness, depression,
anxiety, and thoughts of hurting himself or others. (R. 418-19). Depression and PTSD screenings
were once again negative. (R. 422-23). Moreover, just like in April 2013, Dr. King did not record
any notes regarding Plaintiff’s fibromyalgia. According to Dr. King, Plaintiff’s hypertension,
GERD, and sleep apnea were stable, but his sugar levels remained elevated. (R. 421). As a result,
Dr. King recommended starting Plaintiff on insulin, which he began taking the next month. (R.
421, 490, 492, 493). Dr. King also continued to urge Plaintiff to diet and exercise. (R. 421).
On December 13, 2013, Plaintiff contacted Dr. King’s office through the VA’s webbased secured messaging system to request a prescription for fibromyalgia. (R. 487). Dr. King
prescribed Plaintiff cyclobenzaprine, a muscle relaxant. (R. 487). That same date, Plaintiff
requested a referral to be evaluated for PTSD, explaining that he was waking up with “bad
dreams/night sweats” and that fellow veterans had told him to seek help. (R. 486). Dr. King
obliged. (R. 486). Plaintiff testified that, before he reached out to Dr. King, he “sort of kept” his
symptoms of PTSD “away from the VA” because he “wasn’t proud of having it.” (R. 66).
A few days later, Plaintiff underwent a Gulf War Registry physical exam at the VAMC.
5
(R. 480). He complained of chronic fatigue with night sweats, muscle and joint pain, sleep
disturbances, gastrointestinal problems, heartburn, constipation, anxiety, mood swings,
paresthesia, and insomnia. (R. 484). But he denied, among other things, memory loss, difficulty
concentrating, depression, and combat-related nightmares and flashbacks. (R. 484). Upon
examination, Plaintiff had no joint tenderness, warmth, or swelling; no muscle atrophy; a good
range of motion; and full muscle strength in his upper and lower body. (R. 485-86).
On December 28, 2013, Plaintiff visited the VAMC to undergo a mental health
diagnostic study with Patrick McKinstry, a certified mental health counselor. (R. 466). As he had
when he contacted Dr. King for a referral, Plaintiff explained that a friend had advised him to
seek treatment after he “lashed-out at some neighborhood children.” (R. 468). His friend
suggested that he might have PTSD and “encouraged him to approach the VA to become service
connected.” (R. 468). While he never sought treatment before, he said that he had been
experiencing PTSD-like symptoms since “right after 9/11.” (R. 468). During the study, Plaintiff
reported trouble sleeping, with two to three nightmares a week of a military nature; feelings of
nervousness, excessive worry, and muscle tension; and irritability, anhedonia (reduced ability to
experience pleasure), feelings of worthlessness, and impaired concentration. (R. 468-69). He also
described having anger-management problems and a tendency to isolate himself. (R. 468).
As part of the diagnostic study, Mr. McKinstry conducted a behavioral/mental status
inventory, which revealed that Plaintiff was well-oriented, attentive, and appropriately behaved.
(R. 473). Likewise, his mood was euthymic (non-depressed), his affect was “mood congruent,”
his thought processes were normal and congruent, his judgment was good, and he displayed no
evidence of hallucinations or illusions. (R. 473). Based on Plaintiff’s description of his
symptoms, however, Mr. McKinstry diagnosed him with unspecified depressive disorder,
6
unspecified anxiety disorder, and “r/o PTSD,” or rule out PTSD. (R. 474). In the
impression/recommendations portion of the inventory, Mr. McKinstry explained that Plaintiff
was eager to interact and recognized the problematic nature of his behaviors, but at the same
time he displayed a limited desire to enact change. (R. 475). “As the interview progressed,” Mr.
McKinstry noted, “[Plaintiff] inquired as to when he may be service connected for PTSD. After
some discussion, it is apparent that [Plaintiff] thought that was the purpose of interaction . . . .”
(R. 475). In response to Plaintiff’s queries about becoming service connected, Mr. McKinstry
explained to him the “clinical nature” of the visit and described his treatment options. (R. 475).
Plaintiff expressed that he was unsure about whether he wanted to undergo treatment2 and
indicated that he intended to approach the eligibility office to schedule a compensation and
pension examination, as becoming “service connected” was “his main concern.” 3 (R. 475).
Nevertheless, Mr. McKinstry noted that Plaintiff did report many symptoms of PTSD, and thus
concluded that “[f]urther assessment” would be “prudent.” (R. 475).
In January 2014, Plaintiff began seeing Saundra Fulgham, a licensed clinical social
worker, for counseling at the Erie Vet Center. (R. 439-40). During the intake assessment,
Plaintiff had difficulty discussing traumatic events, but his mood was fair and he was amenable
to receiving services. (R. 440). Plaintiff described having experienced difficulty with crowds,
panic attacks accompanied by sweating and difficulty breathing two to three times per day, sleep
disturbances, nightmares, trust issues, flashbacks, road rage, and a growing lack of patience and
tolerance for others. (R. 430). He also complained of excessive fatigue, irritability/aggression,
2.
At the hearing, Plaintiff explained that he was not receptive to receiving treatment at the
time because he was uncomfortable with Mr. McKinstry, who was not himself a veteran. (R. 68).
3.
Conversely, Plaintiff testified at the hearing that he was primarily concerned with seeking
treatment for PTSD and not becoming service connected. (R. 68).
7
anxiety, depression, hypervigilance, apathy, affective labiality, and changes in his personality.
(R. 432). However, he denied feelings of hopelessness/despair and suicidal/homicidal thoughts.
(R. 430-31). Likewise, Ms. Fulgham noted that his appearance was neat, his manner was
“[f]riendly, [and] cooperative,” his intelligence was above average, he was well-oriented, his
memory function was normal, his motor activity was relaxed, and his judgment was good. (R.
432). Following the intake assessment, Plaintiff continued to see Ms. Fulgham every other week
throughout early 2014. (R. 70, 513-26). In April 2014, Ms. Fulgham completed a psychosocial
assessment, in which she diagnosed Plaintiff with PTSD and recommended further counseling.
(R. 511). Her diagnosis was confirmed by Anthony Mancini, Psy.D, who co-signed the
assessment form. (R. 511).
On January 24, 2014, Plaintiff presented to the Urgent Care Center at the Erie VAMC
with sinusitis. (R. 457). When asked to review his symptoms, he denied experiencing, among
other things, night sweats, fatigue, arthralgia, myalgia, memory loss, paresthesia, weakness,
depression, anxiety, and thoughts of hurting himself/others. (R. 459).
In April 2014, Dr. King completed a Fibromyalgia Residual Functional Capacity
(“RFC”) Questionnaire. (R. 531-35). According to Dr. King, Plaintiff satisfied the American
College of Rheumatology (“ACR”) criteria for fibromyalgia,4 and his prognosis was “stable.” (R.
531-35). Dr. King noted that Plaintiff had multiple tender points, non-restive sleep, chronic
fatigue, morning stiffness, muscle weakness, frequent severe headaches, numbness and tingling,
breathlessness, anxiety, panic attacks, depression, and chronic fatigue syndrome. (R. 531). When
4.
Under the ACR criteria, a person is considered to have fibromyalgia (1) he has a history
of widespread pain that has lasted for at least three months, (2) there are at least 11 positive
tender points, bilaterally and above and below the waist, and (3) other disorders that could have
caused the symptoms have been excluded. Titles II & XVI: Evaluation of Fibromyalgia, SSR 122P, 2012 WL 3104869, at *2 (S.S.A. July 25, 2012).
8
asked how often Plaintiff’s pain or other symptoms would interfere with the attention and
concentration needed to perform simple work tasks, Dr. King responded, “frequently.” (R. 532).
Dr. King further indicated that Plaintiff was only capable of low-stress work. (R. 533). In
addition, Dr. King opined that Plaintiff could sit for 30 minutes at a time and stand for 20
minutes at a time before needing to get up and could only sit and stand/walk for less than two
hours total in a workday. (R. 533). In Dr. King’s view, Plaintiff also required a job that would
allow shifting positions at will, would sometimes require the use of a cane or other assistive
device, and would need to be permitted to take unscheduled, five-to-ten-minute breaks every
hour. (R. 533).
With regard to exertional limitations, Dr. King felt that Plaintiff could frequently
lift/carry less than 10 pounds, occasionally lift/carry 10 pounds, and rarely lift/carry 20 pounds.
(R. 534). He could occasionally twist, climb ladders, and climb stairs, but rarely stoop and
crouch; and occasionally look down, turn his head, look up, and hold his head in a static position.
(R. 534). Dr. King also opined that Plaintiff had significant limitations in his ability to engage in
repetitive reaching, handling, and fingering. (R. 534). Finally, Dr. King opined that Plaintiff
would miss more than four days of work per month because of his fibromyalgia. (R. 534).
3.
State Agency Examinations and Assessments
On September 30, 2013, Plaintiff underwent a physical examination with state agency
consultant Charles E. Rohrbach, D.O. (R. 385). Plaintiff presented to Dr. Rohrbach with a “few
vague complaints.” (R. 387). In particular, he reported having an “exhausting fatigue which is
disabling to him” and numbness and tingling in his hands, which, according to Dr. Rohrbach,
was apparently related to his diabetes. (R. 387). Plaintiff denied having any other symptoms,
including depression, and a physical examination revealed unremarkable findings. (R. 389-91).
9
Plaintiff did not display any clubbing, cyanosis, or edema; had a full range of motion in all of his
extremities; and had full muscle strength. (R. 391). Additionally, Plaintiff was able to ambulate
into and out of the exam room, position himself on the exam table, and arise from a chair in the
exam room without any difficulty. (R. 391). Following the exam, Dr. Rohrbach completed a
medical source statement, in which he opined that Plaintiff could continuously lift/carry up to 50
pounds and occasionally up to 100 pounds; sit and stand for eight hours without interruption and
walk for six hours without interruption; continuously reach, handle, finger, feel, and push/pull in
both hands; frequently use his feet (despite slight neuropathy); and continuously engage in all
postural activities. (R. 397-98). He further opined that Plaintiff could perform activities like
shopping, travel without a companion, walk without assistance and at a reasonable pace, use
public transportation, climb a few steps at a reasonable pace, prepare simple meals and feed
himself, care for his personal hygiene, and sort, handle and use papers and files. (R. 399).
On November 4, 2013, Michael J. Niemiec, a state agency physician, reviewed Plaintiff’s
file and completed a physical RFC assessment form. (R. 98-100). Dr. Niemiec opined that
Plaintiff could occasionally lift/carry 50 pounds, frequently lift/carry 25 pounds, stand/walk for
about six hours, and sit for about six hours. (R. 99). Dr. Niemiec also opined that Plaintiff was
unlimited in his ability to push and/or pull and had no postural, manipulative, visual,
communicative, or environmental limitations. (R. 99).
B.
Procedural History
Plaintiff filed an application for DIB on May 22, 2013. (R. 154-55). His claim was denied
at the administrative level, and subsequently he filed a written request for a hearing. A hearing
was held on April 29, 2014, before Administrative Law Judge (“ALJ”) David F. Brash. (R. 4093). Plaintiff was represented by counsel and testified at the hearing, as did his wife, Stephanie,
10
and an impartial vocational expert (“VE”). (R. 40-93).
On June 6, 2014, the ALJ issued a decision denying Plaintiff’s claim for benefits. (R. 25).
At step one of the sequential evaluation process, the ALJ found that Plaintiff had several
“severe” impairments: fibromyalgia, obesity, osteoarthritis, diabetes mellitus with mild
neuropathy, obstructive sleep apnea, bilateral sensorineural hearing loss, tinnitus, status post left
Achilles tendon tear, right Achilles tendonitis, shin splints, and PTSD. (R. 20). The ALJ also
considered Plaintiff’s hypertension, residual right leg burn with erythema, GERD, fatty liver
disease, nonalcoholic fatty liver disease, sinusitis, deviated septum, kidney stones, depression,
and anxiety, but determined that none of these impairments were “severe.” (R. 21-22). At the
third step, the ALJ found that Plaintiff’s impairments did not meet or equal the requirements of
any of the Listed Impairments. (R. 24-26). Accordingly, the ALJ proceeded to assess the
following RFC assessment for Plaintiff:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) except: he can never climb a ladder, rope, or scaffold; can never
crawl; can only occasionally push, pull, or operate foot controls with the lower
extremities; can only occasionally climb ramps and stairs; can only occasionally
balance, stoop, kneel, or crouch; must avoid even moderate exposure to
temperature extremes, wetness, and humidity; must avoid all exposure to
unprotected heights, dangerous machinery, and like workplace hazards; will
require a sit-stand option, at the work station, with intervals no more frequent than
every thirty minutes; is limited to a moderate noise intensity level work
environment, such as that akin to being in the presence of light traffic or in a
department or grocery store; is limited to understanding, remembering, and
carrying out simple instructions and performing simple, routine tasks; is limited to
no work-related contact with the public, only occasional and superficial
interaction with co-workers, and no more than occasional supervision; and is
limited to a low stress work environment, which means no production rate pace
work, but, rather, goal oriented work with only occasional and routine change in
work setting.
(R. 26). At step four, the ALJ concluded that Plaintiff could not return to his past relevant work.
Finally, at step five, the ALJ concluded that a significant number of jobs existed in the national
11
economy that Plaintiff could perform based on the VE’s responses to his hypothetical questions.
(R. 34-35). Thus, the ALJ held that Plaintiff was not disabled within the meaning of the Act. The
ALJ’s decision became the final decision of the Acting Commissioner on August 13, 2014, when
the Appeals Council denied Plaintiff’s request for review. (R. 1-4).
III.
Legal Analysis
A.
Sequential Evaluation Process
To qualify for disability benefits under the Act, a claimant must demonstrate that there is
some “medically determinable basis for an impairment that prevents him or her from engaging in
any substantial gainful activity for a statutory twelve-month period.” Fargnoli v. Massanari, 247
F.3d 34, 38-39 (3d Cir. 2001) (internal citation omitted); 42 U.S.C. § 423 (d)(1). When deciding
whether a claimant is disabled, the Commissioner utilizes a five-step sequential evaluation. 20
C.F.R. §§ 404.1520 and 416.920. This process requires the Commissioner to consider, in
sequence, whether a claimant (1) is working, (2) has a severe impairment, (3) has an impairment
that meets or equals the requirements of a listed impairment, (4) can return to his or her past
relevant work, and (5) if not, whether he or she can perform other work that exists in significant
numbers in the national economy. See Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545-46 (3d
Cir. 2003) (quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 118-19 (3d Cir. 2000)).
B.
Standard of Review
The Act strictly limits the Court’s ability to review the Commissioner’s final decision. 42
U.S.C. § 405(g). “This Court neither undertakes a de novo review of the decision, nor does it reweigh the evidence in the record.” Thomas v. Massanari, 28 F. App’x 146, 147 (3d Cir. 2002).
Instead, the Court’s “review of the Commissioner’s final decision is limited to determining
whether that decision is supported by substantial evidence.” Hartranft v. Apfel, 181 F.3d 358,
12
360 (3d Cir. 1999). If the Commissioner’s decision is supported by substantial evidence, it is
conclusive and must be affirmed. 42 U.S.C. § 405(g). The Supreme Court has defined
“substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389 (1971). It consists of more than a
scintilla but less than a preponderance of the evidence. Thomas v. Comm’r of Soc. Sec., 625 F.3d
798 (3d Cir. 2010). Importantly, “[t]he presence of evidence in the record that supports a
contrary conclusion does not undermine the Commissioner’s decision so long as the record
provides substantial support for that decision.” Malloy v. Comm’r of Soc. Sec., 306 F. App’x 761,
764 (3d Cir. 2009).
C.
Discussion
Plaintiff raises three arguments in support of his motion for summary judgment.5 He
argues that the ALJ (1) erred in analyzing his allegations of pain and fibromyalgia, as well as the
opinion evidence related thereto; (2) erred in finding that his mental impairments (depression,
anxiety, and PTSD) were not disabling; and (3) erred in assessing Plaintiff’s RFC and his
analysis of the VE’s testimony. These arguments will be addressed seriatim.
1.
The ALJ did not err in his analysis of Plaintiff’s pain and
fibromyalgia.
Plaintiff’s first contention is that the ALJ erred in analyzing the effects of his
fibromyalgia on his ability to work. According to Plaintiff, “the ALJ’s analysis of [his]
fibromyalgia rests on mistaken assumptions about the nature of the disease[.]” Pl.’s Br. at 8, ECF
No. 8. In particular, Plaintiff maintains that the ALJ placed too much emphasis on the lack of
“substantial treatment” and objective findings, swelling, and other orthopedic and neurological
5.
Plaintiff has actually raised four separate arguments, but the Court finds it more
appropriate to address his arguments as to the ALJ’s evaluation of the opinion evidence
alongside his argument as to the ALJ’s assessment of his fibromyalgia.
13
deficits, which, in Plaintiff’s view, are not relevant factors when considering a claimant with
fibromyalgia. Plaintiff also contends that the ALJ erred by interpreting reports that his condition
had been “stable” as meaning that his fibromyalgia was not disabling. Finally, Plaintiff faults the
ALJ for failing to accord more weight to Dr. King’s opinion regarding the effects of his
fibromyalgia and to the VA’s decision to regard him as disabled.
Fibromyalgia is “a common, but elusive and mysterious, disease[,]” characterized by
diffuse musculoskeletal pain, “fatigue, disturbed sleep, [and] stiffness[.]” Sarchet v. Chater, 78
F.3d 305, 306 (7th Cir. 1996). In evaluating disability claims based on fibromyalgia, courts have
acknowledged that symptoms of the disease are entirely subjective and that objective, medical
testing is incapable of confirming a diagnosis or assessing the disease’s severity. Id. “Still, a
claimant who has been diagnosed with fibromyalgia will not automatically be classified disabled
under the Social Security Act.” Ford v. Astrue, No. CIV.A. 11-591, 2012 WL 2318983, at *7
(W.D. Pa. June 18, 2012) (citing Singleton v. Astrue, 542 F. Supp. 2d 367, 377 (D. Del. 2008)).
“Some people may have such a severe case of fibromyalgia as to be totally disabled from
working, but most do not[.]” Sarchet, 78 F.3d at 306 (citations omitted). “[B]ecause of the
subjectivity of the symptoms of fibromyalgia, the credibility of a claimant’s testimony” with
regard to his symptoms takes on special importance. Ford, 2012 WL 2318983, at *7 (citing
Singleton, 542 F. Supp. 2d at 378). Consequently, “‘[e]ven in fibromyalgia cases, the ALJ must
compare the objective evidence and the [claimant’s] subjective complaints and is permitted to
reject plaintiff’s subjective testimony so long as he provides a sufficient explanation for doing
so.’” Id. (quoting Nocks v. Astrue, 626 F. Supp. 2d 431, 446 (D. Del. 2009)). When assessing a
plaintiff’s fibromyalgia-related symptoms, the ALJ may also “consider whether the record
reveals clinical documentation of the complainant’s symptoms and whether diagnosing
14
physicians reported on the severity of the condition.” Id. The Social Security Administration has
emphasized this, explaining that in fibromyalgia cases, “longitudinal records reflecting ongoing
medical evaluation and treatment from acceptable medical sources are especially helpful in
establishing both the existence and severity of the impairment.” Titles II & XVI: Evaluation of
Fibromyalgia, SSR 12-2P, 2012 WL 3104869, at *3 (S.S.A. July 25, 2012). SSR 12-2P goes on
to explain that if “objective medical evidence does not substantiate the person’s statements
about the intensity, persistence, and functionally limiting effects of symptom,” the ALJ must
“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.” Id.
In this case, the ALJ found that Plaintiff’s fibromyalgia was a “severe” impairment. (R.
20). However, he did not find that Plaintiff’s testimony regarding his claimed symptoms to be
entirely credible. In particular, the ALJ found that (1) there was no evidence of “substantial
treatment” from 2009 through 2012; (2) treatment records from September 2011 did not contain
objective findings of musculoskeletal limitations; (3) an examination from January 2013 did not
show any swelling, pain, weakness, or paresthesia in Plaintiff’s extremities; (4) Dr. King stated
in April 2013 that Plaintiff’s condition was stable; (5) Plaintiff only reported a few arthralgias
and myalgias in April 2013; (6) the consultative examination revealed that Plaintiff had a full
range of motion and full muscle strength in his extremities; (7) a December 2013 examination
showed that Plaintiff had no joint tenderness or swelling and a good range of motion with full
muscle strength; (8) a January 2014 examination was negative for arthralgia, myalgia, and
fatigue, and showed that Plaintiff’s muscle movement was not limited; and (9) Dr. King reported
15
that Plaintiff’s condition was stable in April 2014. (R. 27-28). The ALJ also discounted
Plaintiff’s testimony because he found his activities of daily living to be inconsistent “with an
individual who is not able to work.” (R. 31). Likewise, the ALJ concluded that Plaintiff’s overall
treatment history – including the fact that he had not treated with a specialist for fibromyalgia –
was not consistent with Plaintiff’s claim of disabling impairments. (R. 31).
The Court finds that the ALJ provided legally sufficient reasons for finding that
Plaintiff’s fibromyalgia and the associated pain was not disabling. Although the ALJ did mention
the lack of objective findings, he also appropriately considered all of the additional factors
identified in SSR 12-2P when assessing the severity of Plaintiff’s condition. Namely, he was
correct in observing that Plaintiff had not received “substantial treatment” for fibromyalgia
throughout the relevant time period. After his diagnosis in 2009, Plaintiff never saw a specialist
and treated only sporadically with Dr. King, who, during some visits, failed to even so much as
acknowledge that Plaintiff had fibromyalgia. Moreover, in other visits with Dr. King and
different doctors at the VAMC, Plaintiff either denied fibromyalgia-related symptoms such as
joint and muscle pain and fatigue, or said that his symptoms were stable. All the while,
Plaintiff’s uncontrolled diabetes, compounded by Plaintiff’s poor diet and lack of exercise,
seemed to be Dr. King’s chief concern – not his fibromyalgia. Accordingly, the ALJ did not err
in assessing all of the evidence related to Plaintiff’s fibromyalgia and determining that his
testimony regarding the severity of that condition was not entirely credible. At any rate, even
though the ALJ did not find Plaintiff to be entirely credible and found a lack of supporting
medical evidence for his claims, he generously limited him to sedentary, unskilled work, with
several other exertional and non-exertional limitations. This decision is supported by substantial
evidence.
16
Plaintiff’s argument with respect to the ALJ’s treatment of the opinion evidence in the
record also does not hold water. In the fibromyalgia questionnaire completed in April 2014, Dr.
King found, in essence, that Plaintiff could not even perform the requirements of sedentary work.
The ALJ accorded this opinion little weight because it was based largely on Plaintiff’s subjective
complaints and inconsistent with Plaintiff’s history of physical examinations, treatment history,
and reported daily activities. The ALJ did not err in this respect. Inasmuch as the ALJ provided
sufficient reasons for discounting the credibility of Plaintiff’s subjective complaints, he could
also reject Dr. King’s opinion, which, as he found, was apparently based entirely on Plaintiff’s
own complaints. It is also well settled that an ALJ may reject a treating physician’s opinion if it
is “inconsistent with the other substantial evidence in the case record.” Fargnoli, 247 F.3d at 42.
As the ALJ pointed out, Dr. King’s opinion was inconsistent with other substantial evidence in
the record. Throughout the record, Plaintiff’s physical examinations were routinely
unremarkable. Not only did he display full muscle strength and range of motion – which, to be
sure, is expected from a person with fibromyalgia – but he also at times denied having
fibromyalgia-related symptoms. What is more, he received conservative treatment. It was not
until December 2013 that he received a prescription related to his fibromyalgia, and even then,
he sought out a prescription. He also engaged in activities that were inconsistent with the severe
restrictions found by Dr. King.
Indeed, not even Dr. King’s own prior treatment notes reflect complaints of symptoms as
severe as those reflected in the questionnaire completed in April 2014. For example, the last time
Plaintiff saw Dr. King, in October 2013, he was “generally doing well[.]” (R. 417). Although
Plaintiff reported feeling some fatigue after eating lunch and a few arthralgias, he denied
paresthesia and weakness, and no mention was made of fibromyalgia in Dr. King’s notes. (R.
17
418-19). It is also worth noting that whenever Plaintiff presented to the Urgent Care Center at the
VAMC in January 2014, just a few months before Dr. King completed his questionnaire,
Plaintiff denied, among other symptoms, fatigue, arthralgia, myalgia, paresthesia, and weakness
– all of which one would expect to find in someone with severe fibromyalgia. (R. 459). For all of
these reasons, the ALJ did not err in assigning little weight to Dr. King’s opinion.
Likewise, the ALJ did not err in rejecting the VA’s finding that Plaintiff’s fibromyalgia
was disabling. As the regulations make clear, a decision by another government agency, such as
the VA, is not binding on the ALJ. See 20 C.F.R. § 404.1504. Nevertheless, the ALJ is “required
to evaluate all the evidence in the case record that may have a bearing on [his] determination or
decision of disability, including decisions by other governmental and nongovernmental
agencies.” SSR 06-03P, 2006 WL 2329939, at *6 (S.S.A. Aug. 9, 2006). Accordingly, while not
binding, “evidence of a disability decision by another governmental or nongovernmental agency
cannot be ignored and must be considered.” Id. The ALJ should, in turn, fully “explain the
consideration given to these decisions . . . .” Id. Here, the ALJ did just that, insofar as he
expressly considered the VA’s finding in 2012 that Plaintiff’s fibromyalgia would preclude
gainful employment and provided several legally supported bases for assigning this assessment
little weight.
2.
The ALJ did not err in finding Plaintiff’s PTSD, depression, and
anxiety not disabling.
Plaintiff argues that the ALJ erred in finding that his PTSD is not disabling. The Court
disagrees. The record contains no mention of PTSD until December 2013, when a fellow veteran
referred Plaintiff to the VAMC to undergo a mental health diagnostic study with Mr. McKinstry.
Up until that point, Plaintiff denied PTSD-related symptoms, and mental health screenings were
consistently negative. Furthermore, it was not until April 2014 that Plaintiff received a formal
18
diagnosis of PTSD from a medically acceptable source, namely, Dr. Mancini. Nevertheless, the
ALJ gave him the benefit of the doubt and found that his PTSD constituted a “severe”
impairment that could be expected to last at least 12 months. Later, when assessing Plaintiff’s
RFC, the ALJ extensively reviewed Plaintiff’s subjective complaints about his PTSD-related
symptoms, and provided valid reasons for discounting Plaintiff’s credibility with respect to these
complaints and finding that Plaintiff’s PTSD was not entirely disabling. As the ALJ found, there
was simply a dearth of evidence to substantiate Plaintiff’s bleak assessment of his own condition,
primarily because he did not seek treatment until just months before the administrative hearing.
Although it is understandable that Plaintiff might have been unwilling to seek treatment until
December 2013 because he could not come to terms with his condition, that fact does not
absolve him of the obligation to substantiate his claim with medical evidence. More than that,
even though the ALJ did not fully credit Plaintiff’s subjective complaints, he nonetheless limited
Plaintiff “to understanding, remembering, and carrying out simple instructions and performing
simple, routine tasks; is limited to no work-related contact with the public, only occasional and
superficial interaction with co-workers, and no more than occasional supervision; and is limited
to a low stress work environment . . . .” (R. 26). This more than accounted for the effects of his
PTSD on his ability to work.
Similarly, Plaintiff contends that the ALJ erred in finding that his alleged depression and
anxiety were not “severe” impairments at the second step of the sequential evaluation process.
This too is a baseless contention. As with Plaintiff’s PTSD, Plaintiff did not complain about
symptoms of depression and anxiety until December 2013. Prior to that, depression screenings
were completely negative. Moreover, although Mr. McKinstry did diagnose Plaintiff with
depression and anxiety, as the ALJ pointed out, Mr. McKinstry is not an “acceptable medical
19
source,” so his diagnosis could not establish the existence of a “medically determinable
impairment.” 20 C.F.R. § 404.1513. Accordingly, inasmuch as Plaintiff was never diagnosed
with depression or anxiety from an “acceptable medical source,” the ALJ did not err in finding
that neither of these alleged conditions constituted “medically determinable impairments,” let
alone “severe” impairments.
3.
The ALJ did not err in his RFC and in his analysis of the vocational
evidence.
Finally, Plaintiff argues that the ALJ erred in failing to recognize several alleged
limitations when assessing Plaintiff’s RFC: his problems gripping and manipulating things with
his hands, the limitations on sitting/standing found by Dr. King, and the off-task limitation found
by Dr. King. The ALJ was not, however, required to recognize these limitations or convey them
to the VE in the form of hypothetical questions if he did not find them to be credibly established.
See Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (citation omitted) (explaining “that
the ALJ must accurately convey to the vocational expert all of a claimant’s credibly established
limitations”). In his decision, the ALJ acknowledged that Plaintiff testified about dropping
things, but he found that this alleged limitation was not credibly established because “treatments
notes do not contain clinical findings of problems with grip or manipulation, and the claimant
had 5/5 strength in all extremities in December 2013.” (R. 28). Because the ALJ provided a valid
reason for rejecting this claimed impairment, he was not required to incorporate it into his RFC
or convey it to the VE.6 See Rutherford, 399 F.3d at 554 (noting that a limitation that an ALJ can
6.
Even if the ALJ had found that Plaintiff was limited in the use of his hands, the result
would be the same. The VE testified that, assuming Plaintiff could only occasionally grasp and
finger bilaterally, he could still perform the job of surveillance system monitor, of which there
are approximately 25,000 in the national economy. Courts have found that 25,000 jobs in the
national economy constitutes a “significant” number. See, e.g., Gutierrez v. Comm’r of Soc. Sec.,
20
discount a limitation that is not supported by objective medical evidence). Similarly, insofar as
the ALJ rejected Dr. King’s opinions and provided valid explanations for doing so, he was not
required to incorporate the severe limitations regarding Plaintiff’s ability to sit/stand and inability
to focus found by Dr. King into his RFC or convey such limitations to the VE in his hypothetical
questions.
IV.
Conclusion
It is undeniable that Plaintiff has a number of impairments, and this Court is sympathetic
and aware of the challenges which Plaintiff faces in seeking gainful employment. Under the
applicable standards of review and the current state of the record, however, the Court must defer
to the reasonable findings of the ALJ and his conclusion that Plaintiff is not disabled within the
meaning of the Social Security Act, and that he is not disabled under the Act. Therefore, the
Court will GRANT the Motion for Summary Judgment filed by the Commissioner and DENY
the Motion for Summary Judgment filed by Plaintiff. An appropriate Order follows.
McVerry, S.J.
740 F.3d 519, 529 (9th Cir. 2014) (finding that 25,000 jobs “represents a significant number of
jobs in several regions of the country”).
21
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
)
) 2:14-cv-00250-TFM
)
)
)
)
)
FRANKIE L. WEBB, JR.,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
ORDER
AND NOW, this 20th day of May, 2015, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that Plaintiff’s MOTION
FOR SUMMARY JUDGMENT (ECF No. 7) is DENIED, the Acting Commissioner’s
MOTION FOR SUMMARY JUDGMENT (ECF No. 9) is GRANTED. The Clerk shall mark
this case CLOSED.
BY THE COURT:
s/ Terrence F. McVerry
Senior United States District Judge
cc:
Pamela M. Schiller, Esq.
Email: BSH@BSHLAW.NET
Christian A. Trabold, Esq.
Email: christian.a.trabold@usdoj.gov
(via CM/ECF)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?