Dietrich v. Colvin

Filing 20

ORDER signed by Judge Pamela Pepper on 3/30/2016 VACATING the Final Administrative Decision of the Commissioner, and REMANDING this case to the Commissioner for further proceedings. (cc: all counsel)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

KATHRYN DIETRICH,
Plaintiff,
v.

Case No. 14-cv-1202-pp

CAROLYN W. COLVIN,
Defendant.

ORDER VACATING THE FINAL ADMINISTRATIVE DECISION OF THE
COMMISSIONER, AND REMANDING FOR FURTHER PROCEEDINGS

I.

INTRODUCTION
Plaintiff Kathryn Dietrich seeks judicial review of a final decision of

defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, who
found that she was not “disabled” within the meaning of the Social Security
Act. The Social Security Administration’s Appeals Council denied review,
making the administrative law judge’s (ALJ’s) decision the final decision of the
Commissioner.
The plaintiff contends that the ALJ erred by failing to evaluate the
plaintiff’s fibromyalgia and carpel tunnel syndrome, rendering an erroneous
residual functional capacity determination, improperly evaluating the opinion
evidence, making an adverse credibility determination, and failing to evaluate
the appropriate listings in connection with the plaintiff’s conditions. The
plaintiff asserts that this court should reverse the Commissioner’s decision and
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award her benefits, or remand the case to the ALJ for further proceedings. For
the reasons stated below, the court will vacate the Commissioner’s decision
and remand for further proceedings consistent with this order.
II.

STANDARD OF REVIEW
A.

Judicial Review

When the Appeals Council denies a claimant’s request review, the ALJ’s
decision constitutes the final decision of the Commissioner. Moore v. Colvin,
743 F.3d 1118, 1120 (7th Cir. 2014). Judicial review under §405(g) is limited;
the district court will reverse only if the ALJ’s decision is not supported by
substantial evidence, is based on legal error, or is so poorly articulated as to
prevent meaningful review. Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 698
(7th Cir. 2009). “An ALJ’s findings are supported by substantial evidence if the
ALJ identifies supporting evidence in the record and builds a logical bridge
from that evidence to the conclusion.” Id. (citation omitted). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Barnett v. Barnhart, 381 F.3d 664, 668
(7th Cir. 2004) (citation omitted). If conflicting evidence in the record would
allow reasonable minds to disagree about whether the claimant is disabled, the
ALJ’s decision to deny the application for benefits must be affirmed. Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
The district court must review the entire record, including both the
evidence that supports the ALJ’s conclusions as well as evidence that detracts
from the ALJ’s conclusions, but it may not “displace the ALJ’s judgment by
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reconsidering facts or evidence, or by making independent credibility
determinations.” Id.
In sum, the district court will uphold a decision so long as the record
reasonably supports it and the ALJ explains his analysis of the evidence with
enough detail and clarity to permit meaningful review. Eichstadt v. Astrue, 534
F.3d 663, 665-66 (7th Cir. 2008).
B.

Disability Determination

The Social Security Administration provides “disability insurance benefits
and supplemental security income to persons who have a ‘disability.’” Barnhart
v. Thomas, 540 U.S. 20, 22 (2003) (citing 42 U.S.C. §§423(d)(2)(A),
1382c(a)(3)(B)). To qualify as “disabled,” the claimant must demonstrate a
“physical or mental impairment or impairments . . . 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.” Id. at 21-22. The Social
Security Act further
defines “disability” as the “inability 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.”
Id. at 23.
In evaluating a claim for disability benefits, the ALJ follows a five-step,
sequential process, asking:

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(1)

Has the claimant engaged in substantial gainful
activity since her alleged onset of disability?

(2)

If not, does she suffer from a severe, medically
determinable impairment?

(3)

If so, does that impairment meet or equal any
impairment listed in SSA regulations as presumptively
disabling?

(4)

If not, does she retain the residual functional capacity
(“RFC”) to perform her past work?

(5)

If not, can she perform other jobs existing in
significant numbers?

E.g., Villano v. Astrue, 556 F.3d 558, 561 (7th Cir. 2009).
If it appears at any step that the claimant is not disabled, the analysis
ends. 20 C.F.R. §404.1520(a)(4). “The claimant bears the burden of proof at
steps one through four, after which at step five the burden shifts to the
Commissioner.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir.
2005).
III.

DISCUSSION
A.

Factual Background and Procedural History

In her disability application, the plaintiff alleged that she became
disabled on April 30, 2010 as a result of a stroke, diabetes, neuropathy,
pinched nerves, sleep apnea, depression, and—of primary importance to this
court’s decision to vacate and remand this case to the Commissioner—
fibromyalgia. Dkt. No. 12 at 1. The plaintiff’s medical records clearly reflect that
she has a diagnosis of fibromyalgia. E.g., Dkt. No. 15-10 at 16, 18, and 67;
Dkt. No. 15-12 at 17. At the hearing before the ALJ, the plaintiff testified that
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she takes medication for fibromyalgia and has been treated for fibromyalgia for
“[a] long time.” Dkt. No. 15-3 at 27.
The ALJ issued her decision on June 28, 2013. Dkt. No. 15-4. At step
one of the five-step sequential analysis, she found that the plaintiff had not
engaged in substantial gainful activity since the plaintiff’s alleged disability
onset date of April 30, 2010. Id. at 9. At step two, she found that the plaintiff
had “the following severe impairments: diabetes mellitus, obesity, status post
transient ischemic attacks, degenerative disk disease of the cervical and
lumbar spine, obstructive sleep apnea and a history of anticardiolipin
antibody.” Id. The ALJ found that the plaintiff’s depression was not severe
because it did not cause more than a minimal limitation on the plaintiff’s
ability to perform basic mental work activities. Id.
At step three, however, the ALJ concluded that the plaintiff was not
disabled because she did not have an impairment or combination of
impairments that met or medically equaled an impairment listed in 20 C.F.R.
Part 404 Subpart P, Appendix 1 (20 C.F.R. §§404.1520(d), 404.1525, and
404.1526). Id. at 11. She based this conclusion on her review of the medical
evidence and the opinions of state agency medical consultants, who determined
that the plaintiff’s severe impairments did not meet the criteria of any listed
impairment. Id.
The ALJ summarized the plaintiff’s testimony at the evidentiary hearing
and recounted the plaintiff’s medical records over several pages of her decision.

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After this detailed summary, the ALJ stated that the plaintiff’s medical
providers had determined that her daily activity level did not support the
severity of her alleged limitations Id. at 18. She concluded that the plaintiff
“ha[d] the residual functional capacity to perform light work,” except that the
plaintiff must avoid “concentrated exposure to hazards such as moving
machinery and unprotected heights,” and “all exposure to extreme cold, fumes,
odors, dusts, gases, soldering fluxes, dust, and hazards.” Id. at 11. The ALJ
further determined that the plaintiff “c[ould] handle and finger bilaterally on a
frequent, but not constant, basis. She is limited to simple, routine and
repetitive work tasks.” Id.
B.

The Court Must Vacate and Remand Because the ALJ Failed to
Consider Evidence of the Plaintiff’s Fibromyalgia at Either Step
Two or Step Five.

Despite the record evidence showing the plaintiff has been diagnosed
with fibromyalgia, the ALJ did not address the fibromyalgia diagnosis or its
impact on the plaintiff at any point in her written decision. Nor did she state
whether she considered Social Security Ruling (“SSR”) 12–2p; Titles II and XVI:
Evaluation of Fibromyalgia, which was published and effective on July 25,
2012 (almost a year prior to the ALJ’s decision). The stated purpose of SSR 122p is to provide “guidance on how [the SSA] develop[s] evidence to establish
that a person has a medically determinable impairment (MDI) of fibromyalgia
(FM), and how [SSA] evaluate[s] FM in disability cases . . . .” Section VI(D) of
the policy interpretation section of SSR 12-2p provides, “
We consider the effects of all of the person’s medically
determinable impairments, including impairments that are
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“not severe.” For a person with [fibromyalgia], we will
consider a longitudinal record whenever possible because
the symptoms of [fibromyalgia] can wax and wane so that a
person may have “bad days and good days.”
The Seventh Circuit has explained that a diagnosis of fibromyalgia, by
itself, is not sufficient to establish that a person is disabled. Sarchet v. Chater,
78 F.3d 305, 306 (7th Cir. 1996). But given the record evidence that the
plaintiff had been diagnosed with fibromyalgia, the ALJ was required to
evaluate the extent to which the plaintiff’s fibromyalgia limited her functional
capabilities. Aquino v. Colvin, No. 12-C-4557, 2014 WL 7190890, at *11 (N.D.
Ill. Dec. 16, 2014) (There is substantial evidence that Plaintiff suffered from
fibromyalgia . . . Accordingly, the ALJ was required to evaluate the intensity,
persistence, and limiting effects of this condition.”). Cf. Tooley v. Colvin, No. 13c-3520, 2015 WL 4448114, at *3 (N.D. Ill. Jul. 20, 2015) (“Absent an actual
diagnosis, the AU [sic] was not required to evaluate Claimant’s alleged
fibromyalgia in accordance with SSR 12-2p.”).
Because the ALJ did not discuss the plaintiff’s fibromyalgia at any point
in her written decision, the court is left to guess about how (if at all) the ALJ
factored the plaintiff’s fibromyalgia into her decision that the plaintiff was not
disabled and her determination that the plaintiff’s “statements concerning the
intensity, persistence, and limiting effects of [her] symptoms are not entirely
credible . . . .” Dkt. No. 15-4 at 12. Because the court cannot make that
determination in the first instance, the court must vacate and remand this
case to the Commissioner. E.g., Kinard v. Colvin No. 13-C-4363, 2015 WL
2208177, at *3 (N.D. Ill. May 7, 2015) (“there is clear evidence in the record
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that indicates a diagnosis of fibromyalgia, and thus the duty rests with the ALJ
. . . to analyze, discuss, and weigh the value of that evidence in light of SSR 12–
2p . . . The ALJ did not do that here, and therefore the Court cannot conclude
that his decision is based on substantial evidence.”).
Because the court must remand the case on the basis of the ALJ’s failure
to consider the evidence of the plaintiff’s fibromyalgia, the court need not
address the remaining asserted errors that the plaintiff raises in her briefs. The
plaintiff may raise those issues on remand, so that the ALJ may consider them
when re-evaluating the plaintiff’s claim for disability benefits. The court also
recognizes the possibility that the evidence “would yield the same conclusion
even if it were analyzed under SSR 12–2p,” Kinard, 2015 WL 2208177, at *3,
but the ALJ must weigh the evidence in the first instance and determine if the
plaintiff is disabled.
IV.

CONCLUSION
The court ORDERS that that the final administrative decision of

Carolyn W. Colvin, Acting Commissioner of Social Security, denying the
plaintiff’s application for disability benefits is VACATED. The court REMANDS
this case under sentence four of §405(g) of the Social Security Act to the
Commissioner for further proceedings consistent with this order; specifically,
the court remands with instructions that the ALJ consider the evidence

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regarding the plaintiff’s fibromyalgia, using the guidance provided in SSR 122p. The court will enter judgment accordingly.
Dated in Milwaukee, Wisconsin this 30th day of March, 2016.

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