GILCHER v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION and ORDER granting 9 Plaintiff's Motion for Summary Judgment and denying 11 Defendant's Motion for Summary Judgment and remanding the case for reasons set forth in the Opinion. Signed by Judge Donetta W. Ambrose on 3/3/16. (cha)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SUSAN GILCHER,

)
)
)
)
)
)
)
)
)
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Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 15-133

AMBROSE, Senior District Judge.
OPINION
and
ORDER OF COURT

Susan Gilcher (“Gilcher”) filed an application for Supplemental Security Income
(“SSI”) and Disability Insurance Benefits (“DIB”) on May 10, 2012, alleging a disability
as of August 1, 2009. (R. 28) She bases her claim of disability on, among other things,
fibromyalgia, osteoarthritis, right shoulder impairment, lumbar arthritis, cervical
degenerative disc disease, arthritis and major depressive disorder. (R. 28, 30) The
claims were denied initially and Gilcher received a hearing before an ALJ. (R. 45-83)
Gilcher was represented by counsel at the hearing and a vocational expert testified. (R.
45-83) The ALJ denied Gilcher’s claim. (R 25-44). More specifically, the ALJ concluded
that Gilcher had the residual functional capacity to perform light work, with certain
limitations and thus was capable of performing past relevant work as a cleaner, sander
and painter. (R. 34-40)
Gilcher requested a review by the Appeals Council but such request was denied
on March 27, 2015. (R. 1-4) This appeal followed. Before the Court are Cross-Motions
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for Summary Judgment. (Docket Nos. [9] and [11]). Both parties have filed Briefs in
Support of their Motions. (Docket Nos. [10] and [12]). After careful consideration of the
submissions of the parties, and based on my Opinion set forth below, the ALJ’s decision
is reversed and remanded.
I. Standard of Review
The standard of review in social security cases is whether substantial evidence
exists in the record to support the Commissioner=s decision. Allen v. Bowen, 881 F.2d
37, 39 (3d Cir. 1989). Substantial evidence has been defined as Amore than a mere
scintilla.

It means such relevant evidence as a reasonable mind might accept as

adequate.@ Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995), quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971). Additionally, the Commissioner=s findings of fact, if
supported by substantial evidence, are conclusive. 42 U.S.C. '405(g); Dobrowolsky v.
Califano, 606 F.2d 403, 406 (3d Cir. 1979). A district court cannot conduct a de novo
review of the Commissioner=s decision or re-weigh the evidence of record. Palmer v.
Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's findings of fact are
supported by substantial evidence, a court is bound by those findings, even if the court
would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). To determine whether a finding is supported by substantial evidence,
however, the district court must review the record as a whole. See, 5 U.S.C. '706.
To be eligible for social security benefits, the plaintiff must demonstrate that he
cannot engage in substantial gainful activity because of a 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 at least 12 months. 42
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U.S.C. '423(d)(1)(A); Brewster v. Heckler,

786 F.2d 581, 583 (3d Cir. 1986). The

Commissioner has provided the ALJ with a five-step sequential analysis to use when
evaluating the disabled status of each claimant. 20 C.F.R. '404.1520(a). The ALJ
must determine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether the claimant has a severe impairment; (3) if the claimant has
a severe impairment, whether it meets or equals the criteria listed in 20 C.F.R., pt. 404,
subpt. P., appx. 1; (4) if the impairment does not satisfy one of the impairment listings,
whether the claimant=s impairments prevent him from performing his past relevant work;
and (5) if the claimant is incapable of performing his past relevant work, whether he can
perform any other work which exists in the national economy, in light of his age,
education, work experience and residual functional capacity.

20 C.F.R. '404.1520.

The claimant carries the initial burden of demonstrating by medical evidence that he is
unable to return to his previous employment (steps 1-4). Dobrowolsky, 606 F.2d at 406.
Once the claimant meets this burden, the burden of proof shifts to the Commissioner to
show that the claimant can engage in alternative substantial gainful activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse
the decision with or without remand to the Commissioner for rehearing. Podedworny v.
Harris, 745 F.2d 210, 221 (3d Cir. 1984).
II. The Parties’ Motions
The issue before me concerns the application of the treating physician doctrine
and the assessment of Gilcher’s credibility. In the context of a disability claim involving
fibromyalgia, these two concepts are particularly intertwined.
A.

Credibility
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As stated below, the diminished weight that the ALJ assigned to the opinion of
Dr. Phelps was based largely on the fact that the opinion relied on Gilcher’s subjective
complaints. Because the ALJ found Gilcher not entirely credible, that finding affected his
analysis of the treating source’s opinion. Although Gilcher challenges this aspect of the
ALJ’s reasoning in the context of the “treating physician rule,” the ALJ’s underlying
credibility assessment merits separate mention.
It is well-recognized that due to its presentation primarily via subjective
complaints, fibromyalgia presents distinctive issues in the disability context:
Fibromyalgia syndrome is a common and chronic disorder characterized by
widespread muscle pain, fatigue, and multiple tender points…. ‘Tender points are
specific places on the body – on the neck, shoulders, back, hips and upper and
lower extremities, where people with fibromyalgia feel pain in response to slight
pressure.’ ‘Fibromyalgia’s cause is unknown, there is no cure, and it is poorlyunderstood within much of the medical community. The disease is diagnosed
entirely on the basis of patients’ reports of pain and other symptoms…
‘Symptoms associated with fibromyalgia include ‘pain all over,’ fatigue, disturbed
sleep, stiffness, and tenderness occurring at eleven of eighteen focal points.

Greenwood v. Colvin, Civ. No. 15-93, 2016 WL 74648 at * 2 (Jan. 7, 2016), citing,
Henderson v. Astrue, 887 F. Supp.2d 617, 634 (W.D. Pa. 2012).
“Because objective tests may not be able to verify a diagnosis of fibromyalgia,
the reports of treating physicians, as well as the testimony of the claimant, become even
more important in the calculus for making a disability determination.” Perl v. Barnhart,
2005 U.S. Dist. LEXIS 3776, at *3 (E.D. Pa. March 10, 2005). Therefore, “in cases
involving fibromyalgia, … consideration of a plaintiff’s subjective complaints are given
an elevated importance.” McIntire v. Colvin, 2014 U.S. Dist. LEXIS 181227 at * 94 (N.D.
W. Va. Sept. 24, 2014). An ALJ’s decision “must contain specific reasons for the finding
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on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reason for that weight.” Hayes v.
Colvin, 2015 U.S. Dist. LEXIS 128561 at * 8 (W.D. Pa. Sept. 24, 2015).
Here, the ALJ found Gilcher’s statements “concerning the intensity, persistence
and limiting effects” of her symptoms were “not credible” because the “medical records
do not establish that the severity of the claimant’s symptoms render her disabled.” (R.
37) The ALJ then references records relating to a shoulder issue that resolved with
surgery, and to the absence of records relating to mental health treatment. (R. 37) He
then speaks of reports detailing degenerative changes to Gilcher’s knees, lumbar and
cervical spine. (R. 37) Yet the ALJ makes very little reference to Gilcher’s records
regarding her fibromyalgia. Dr. Hassan, a specialist (rheumatologist), diagnosed her
with fibromyalgia. (R. 497-99) He prescribed medication and steroid injections for her
condition. (R. 497-99) His treatment records indicate that conservative treatment
approaches failed. (R. 37) Dr. Ramirez similarly identified Gilcher as having
fibromyalgia, with the presence of widespread pain for at least three months, pain above
and below the waistline, pain in the axial skeleton, and pain on palpitation in at least 11
of the 18 tender points. (R. 291) Further, Dr. Phelps’s records confirm a finding of
fibromyalgia and the treatment of Gilcher for the same. The ALJ’s notation that “there
was very little evidence of fibromyalgia until November 2011, and nothing persistent
until 2013” in explaining his finding regarding her credibility is curious. (R. 37) The case
law demonstrates, as do Gilcher’s own medical records, that fibromyalgia is a diagnosis
of exclusion. Thus, that it may have taken some time to diagnose her condition does
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not negate its existence. None of her physicians suggested that she is a malingerer.
The ALJ’s credibility determinations are entitled to great deference and his
approach to Gilcher’s credibility would not alone be grounds for remand in this matter.
Because I remand on other grounds, however, as discussed infra, the ALJ should take
the opportunity to reconsider or clarify his determination regarding Gilcher’s subjective
complaints. The circumstances here, taken together, call for greater specificity. I
emphasize that fibromyalgia patients are neither per se entitled to disability benefits nor
exempt from a finding of malingering; moreover, of course, constant complaints to
medical providers do not equate to trustworthiness. However, it is incumbent upon
adjudicators to be as clear and specific as possible when explaining their judgments as
to the believability of those diagnosed with this poorly understood disorder, which has
significant subjective components. This is particularly true in a case such as this one, in
which the record is liberally and consistently sprinkled with recurrent visits to physicians
with complaints of pain, and a fibromyalgia diagnosis from multiple treating sources.
B.

Treating Source Doctrine

The amount of weight accorded to medical opinions is well-established.
Generally, the ALJ will give more weight to the opinion of a source who has examined
the claimant than to that of a non-examining source. 20 C.F.R. § 416.927(c)(1).
Additionally, the ALJ typically will give more weight to opinions from treating physicians,
“since these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from the objective
medical findings alone or from the reports of individual examinations, such as
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consultative examinations or brief hospitalizations.” 20 C.F.R. § 416.927(c)(2). If the
ALJ finds that “a treating source’s opinion on the issue(s) of the nature and severity of [a
claimant’s] impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence [of] record,” he must give that opinion controlling weight. Id. If a treating
physician’s opinion is not given controlling weight, the ALJ must consider all relevant
factors that tend to support or contradict any medical opinions of record, including the
patient / physician relationship; the supportability of the opinion; the consistency of the
opinion with the record as a whole; and the specialization of the provider at issue. 20
C.F.R. § 416.927(c)(1)-(6). “[T]he more consistent an opinion is with the record as a
whole, the more weight [the ALJ generally] will give to that opinion.” 20 C.F.R. §
416.927(c)(4). In the event of conflicting medical evidence, the Court of Appeals for the
Third Circuit has explained:
“A cardinal principle guiding disability determinations is that the ALJ
accord treating physicians’ reports great weight, especially ‘when their
opinions reflect expert judgment based on continuing observation of the
patient’s condition over a prolonged period of time.” Morales v. Apfel, 225
F.3d 310, 317 (3d Cir. 2000) (quoting Plummer v. Apfel, 186 F.3d 422,
429 (3d Cir. 1999)). However, “where … the opinion of a treating
physician conflicts with that of a non-treating, non-examining physician,
the ALJ may choose whom to credit” and may reject the treating
physician’s assessment if such rejection is based on contradictory medical
evidence. Id. Similarly, under 20 C.F.R. § 416.927(c)(2), the opinion of a
treating physician is to be given controlling weight only when it is wellsupported by medical evidence and is consistent with other evidence in
the record.
Becker v. Comm’r. of Social Sec., 403 Fed. Appx. 679, 686 (3d Cir. 2010).
The ultimate issue of whether an individual is disabled within the meaning of the
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Act is for the Commissioner to decide. Thus, the ALJ is not required to afford special
weight to a statement by a medical source that a claimant is “disabled” or “unable to
work.” See 20 C.F.R. § 416.927(d)(1), (3); Dixon v. Comm’r. of Soc. Sec., 183 Fed.
Appx. 248, 251-52 (3d Cir. 2006) (stating, “[o]pinions on disability are not medical
opinions and are not given any special significance.”). Although the ALJ may choose
who to credit when faced with a conflict, he “cannot reject evidence for no reason or for
the wrong reason.” Diaz v. Comm’r. of Soc. Sec., 577 F.3d 500, 505 (3d Cir. 2009).
The ALJ must provide sufficient explanation of his or her final determination to provide a
reviewing court with the benefit of the factual basis underlying the ultimate disability
finding. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). In other words, the ALJ must
provide sufficient discussion to allow the court to determine whether any rejection of
potentially pertinent, relevant evidence was proper. Johnson v. Comm’r. of Soc. Sec.,
529 F.3d 198, 203-4 (3d Cir. 2008).
In this case, Dr. Phelps, Gilcher’s treating physician, completed a “Medical
Source Statement of Claimant’s Ability to Perform Work-Related Physical Activities”
dated March 26, 2012, in which she opined that Gilcher was incapable of completing an
eight-hour workday. (R. 378-385) Dr. Phelps also completed a “medical statement
regarding fibromyalgia for Social Security disability claim,” in which she noted that
Gilcher suffered from a history of widespread pain for three or more months; that
Gilcher had pain in 11 or more pressure points; that Gilcher experienced stiffness and
the sensation of swollen hands; that she had sleep disturbance and suffered from
chronic fatigue. (R. 378) She limited Gilcher to working 2 hours a day. (R. 378)
The ALJ “afforded no weight to [Dr. Phelps’s opinion] as her notes and the form
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itself show that she merely repeated the claimant’s subjective complaints.” (R. 38)
(emphasis added) Instead, the ALJ afforded “significant weight” to the opinion offered
by Dr. Juan Mari-Mayans, a state agency physician who reviewed Gilcher’s claim for
benefits. Dr. Mari-Mayans explicitly rejected Dr. Phelps’s opinion because she “relied
heavily on the subjective report of symptoms and limitations provided by the
claimant.” (R. 94) (emphasis added). Thus, the ALJ’s acceptance of Dr. Mari-Mayans’
opinion and rejection of Dr. Phelps’s opinion are both premised upon the fact that Dr.
Phelps’s opinion relied on Gilcher’s subjective complaints of pain. Yet, as stated above,
such subjective complaints of pain are given “elevated importance” in evaluating
fibromyalgia. McIntire v. Colvin, 2014 U.S. Dist. LEXIS 181227, at * 94 (N.D. W. Va.
Sept. 24, 2014).
In considering the ALJ’s approach to Dr. Phelps’s and Dr. Mari-Mayan’s opinion,
I am informed by the principles recounted supra, relating to fibromyalgia in particular. I
am not confident, in reviewing the ALJ’s Opinion that he considered the importance of
subjective complaints of pain in evaluating Gilcher’s claim of disability based upon
fibromyalgia.
As I have done previously, “I emphasize that fibromyalgia patients are not per se
entitled to disability benefits; moreover, of course, constant complaints to medical
providers do not equate to trustworthiness.” Young v. Colvin, 2015 U.S. Dist. LEXIS
162451 at * 9, 2015 WL 7871060 (W.D. Pa. Dec. 3, 2015). Instead, a claimant must
demonstrate that she has “such a severe case of fibromyalgia as to be totally disabled
from working.” Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996). In other words, not
every fibromyalgia patient will obtain a favorable result on appeal to a district court. At
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the same time, however, “it is incumbent upon adjudicators to be as clear and specific
as possible when explaining those judgments of the believability of those diagnosed
with this poorly understood disorder, which has significant subjective components.”
Young, 2015 U.S. Dist. LEXIS 162451 at * 9, 2015 WL 7871060.
III. Conclusion
This matter will be remanded, so that the ALJ may reconsider the matter of the
weight to be afforded the opinions of Dr. Phelps and Dr. Mari-Mayans, as well as
Gilcher’s credibility, in light of distinctive issues presented by fibromyalgia in the
disability context.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SUSAN GILCHER,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 15-133

AMBROSE, Senior District Judge.

ORDER OF COURT
Therefore, this 3rd day of March, 2016, it is ordered that Plaintiff’s Motion for Summary
Judgment (Docket No. 9) is granted and Defendant’s Motion for Summary Judgment (Docket
No. 11) is denied.
It is further ordered that the decision of the Commissioner of Social Security is hereby
reversed and remanded in accordance with the accompanying Opinion.

BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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