Boutsianis v. SSA CV-07-250-PB 04/01/08

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Vicki L . Boutsianis

v. Case N o . 07-cv-250-PB Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Vicki Boutsianis moves to reverse the Social Security

Administration’s denial of her claim for Supplemental Security

Income (“SSI”) and Disability Insurance Benefits (“DIB”) under

Titles II and XVI of the Social Security Act,

and 1382. Boutsianis applied for DIB and SSI on February 1 5 ,

2005, alleging disability since October 5 , 2004 as a result of

knee impairments, hip pain, multiple joint arthritis, heel spurs,

and depression. The Commissioner denied Boutsianis’s application

initially and on reconsideration. Administrative Law Judge

(“ALJ”) Matthew J. Gormley III held a hearing on August 1 1 , 2006,

and issued a decision in which he concluded that Boutsianis was

not disabled. The Appeals Council denied Boutsianis’s request

for review, and she appealed the ALJ decision to this court, pursuant to

(g). For the reasons that follow, I

grant Boutsianis’s motion to reverse, deny the Commissioner’s

motion to affirm, and remand this case for further administrative

proceedings.

I. BACKGROUND1

A. Procedural History

Boutsianis applied for DIB and SSI on February 1 5 , 2005,

alleging an inability to work since October 5 , 2004, due to knee

impairments, hip pain, multiple joint arthritis, heel spurs, and

depression. T r . at 56-62. The Social Security Administration

(“SSA”) denied Boutsianis’s application on August 3 0 , 2005, and

Boutsianis requested an administrative hearing. T r . at 25-28;

33.

On August 1 1 , 2006, ALJ Gormley held a hearing at which

Boutsianis testified and was represented by counsel. T r . at 199-

215. On November 2 2 , 2005, the ALJ issued a written decision

finding that Boutsianis was not disabled within the meaning of

1 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts (Doc. N o . 10) submitted by the parties. Citations to the Administrative Transcript are indicated as “Tr.”

-2- the Act. T r . at 10-20. Pursuant to

and

416.920(a), the ALJ used a five-step process to make this

finding, considering: (1) whether the claimant is engaged in

substantial gainful activity; (2) whether the claimant has a

severe impairment; (3) whether the impairment meets or equals a

specific listing of impairment in the SSA regulations and meets

the duration requirement; (4) assessment of residual functioning

capacity (“RFC”) and whether the claimant can still do past

relevant work; and (5) assessment of claimant’s RFC, age,

education, and work experience, to see if claimant can make an

adjustment to other work.2 See

and

416.920(a).

The ALJ concluded that Boutsianis had not engaged in

substantial gainful activity since October 5 , 2004, that

Boutsianis had the severe impairments of heel spurs, arthralgias,

and depression, and that Boutsianis’s impairments did not meet

2 The claimant has the burden of proof for the first four steps of this process. Freeman v . Barnhart,

(1st Cir. 2001). If the claimant meets her burden of proof at the first four steps, the burden shifts to the Commissioner, who must come forward with evidence of specific jobs in the national economy that the claimant can still perform despite her impairment.

-3- the criteria of any “listing of impairment” in the social

security regulations. T r . at 13-14. At step four of the

analysis, the ALJ analyzed Boutsianis’s medical records and

concluded that the medical evidence in the record failed to

substantiate Boutsianis’s “subjective allegations of total

functional incapacity.” T r . at 1 6 . The ALJ concluded that

Boutsianis’s allegations of pain were not entirely credible and

that the record did not show that her pain was completely

disabling. T r . at 1 7 .

The ALJ concluded that Boutsianis retained the RFC to sit,

stand, or walk for up to six hours in an eight-hour work day;

occasionally lift and carry twenty pounds and frequently lift and

carry ten pounds; occasionally balance, climb, stoop, kneel,

crouch, or crawl; understand, remember, and carry out simple

instructions; make judgments on simple work-related decisions;

interact appropriately with others in a work setting; and respond

appropriately to normal work pressures and changes in a routine

work setting. T r . at 1 8 . Nevertheless, the ALJ found that

because Boutsianis’s past relevant work as a restaurant manager

required her to lift and carry 50 to 100 pounds, Boutsianis could

no longer perform her past relevant work.

-4- The ALJ then concluded, at step five of the analysis, that

there were a significant number of jobs in the national economy

that Boutisanis could still perform, given her RFC.

The ALJ

utilized the Medical-Vocational Guidelines (“the Grids”) and

concluded that based on Boutsianis’s age, education, and RFC, the

tables directed a finding of not disabled. T r . at 1 9 ; see 20

C.F.R. Part 4 0 4 , Subpart P, Appendix 2 , Table 2 .

B. Medical History

Boutsianis was forty-five years old when she applied for SSI

and DIB in February 2005. T r . 46-53. She is a high school

graduate who can speak, read, and write in English. T r . at 5 6 .

Prior to the alleged onset of her disability on October 5 , 2004,

she had worked as a restaurant manager for almost 20 years. T r .

at 5 7 . The record contains detailed medical records from

December 2004 to July 2006.

In December 2004, Boutsianis saw Diane Bernard, a Certified

Physician’s Assistant, for complaints of heel spurs. T r . at 130-

34. Boutsianis also reported pain with walking, joint pain,

problems dropping things, and hip pain. T r . at 130. Bernard

conducted a physical examination, which showed all of

Boutsianis’s systems to be normal, except for tenderness over the

-5- heel of the right foot. T r . at 131. Bernard noted that

Boutsianis complained of back pain, joint pain, muscle weakness,

stiffness, and anxiety.

Bernard diagnosed heel spurs and

arthralgia, and prescribed Bextra (a nonsteroidal anti-

inflammatory drug) and Flexeril (a muscle relaxant). T r . at 132.

Boutsianis saw Bernard again in January 2005 for heel spurs.

Tr. at 135-36. Boutsianis reported that her heel spurs were

slightly better but that she had ongoing pain in her hips and

legs, such that she could not stand for any length of time or sit

for more than thirty minutes without pain.

She stated that

none of the medications were helping her pain, and also requested

information about diet and cholesterol.

Bernard again

prescribed Bextra and Flexeril, and added Elavil, an

antidepressant.

In February 2005, Boutsianis saw Bernard for a follow-up

visit. T r . at 137-38. Boutsianis reported that the medications

were working well, although she had not taken Elavil because of

the possible side effects, and requested a different medication

for depression.

In her assessment, Bernard noted that

Boutsianis’s heel spurs and arthralgia had improved.

Bernard prescribed Prozac.

-6- Boutsianis visited Bernard again in March 2005 for a breast

cancer screening. T r . at 139-41. At that visit Boutsianis

reported that she was doing well but was experiencing occasional

anxiety attacks and requested a medication to take as needed.

Bernard prescribed Xanax.

In April 2005, Boutsianis saw Bernard and complained of

heartburn after every meal, nausea, and dizziness. T r . at 143-

45. Upon examination, Boutsianis also complained of tinnitus and

headaches, and Bernard observed mild epigastric tenderness with

palpation in Boutsianis’s abdomen.

All other systems were

reported to be normal.

Bernard diagnosed new problems of

heartburn and chronic, bilateral tinnitus.

She prescribed

additional medications of Meclizine (an antihistamine) and

Prevacid (a heartburn medication).

Boutsianis returned for a follow-up appointment with Bernard

later in April 2005. T r . at 146-48. At this appointment,

Boutsianis reported that Prevacid was helping her heartburn, but

that Flexeril was not working as well as before.

She

reported using nasal spray daily and requested something else to

help with her stuffy nose, and she also requested a referral to a

psychiatrist.

Bernard noted that Boutsianis complained of

-7- nasal congestion, change in sleep habits, and depression, but

that Boutsianis denied having anxiety.

Bernard diagnosed

new problems of depression and nasal congestion and noted that

Boutsianis’s heartburn had improved, but that her tinnitus,

arthralgia, and heel spurs were unchanged.

Bernard took

Boutsianis off Bextra, switched Prevacid for Prilosec, increased

the dosage of Flexeril and Elavil, and prescribed the additional

medications of Flonase and Zyrtec for the nasal symptoms.

In June 2005, Boutsianis saw Bernard and stated that her

sciatic nerve had been bothering her and that Xanax was not

helping her anxiety. T r . at 151-52. She requested a note that

she could not work until her disability could be evaluated.

Bernard gave Boutsianis the note, recommended counseling, and

substituted Buspar for Xanax.

Boutsianis saw Certified Physician’s Assistant Kimberly

Gallant in September 2005 for a follow-up visit. T r . at 154-56.

Boutsianis reported that Flexeril was not working and requested

more Ranitidine for heartburn.

Boutsianis stated that

Elavil was effective in helping her sleep, but that her other

medications including Prozac, Meclizine, and Buspar were not

effective.

Boutsianis also stated that she had a history of

-8- fibromyalgia that was diagnosed in winter 2004, and attributed

her tinnitus and the pain her neck and lower extremities to

fibromyalgia.

Gallant noted the new problems of

fibromyalgia, a family history of abdominal aortic aneurysm, and

anxiety.

Gallant prescribed Prilosec, Ranitidine, Flexeril,

and Prozac (at an increased dosage), and removed Buspar.

In December 2005, D r . Kenneth Shuman referred Boutsianis to

physical therapy for the conditions o f : “fibromyalgia, left

groin strain, left arm strain, triceps/latissimus dorsi, left

thumb (trigger finger), and restless leg syndrome.” T r . at 113.

At her first physical therapy session in January 2006, the

therapist noted that Boutsianis reported that her left arm pain

stemmed from a fall on the ice two years prior. T r . at 174. At

this first session the therapist also noted that Boutsianis had a

decreased range of motion, decreased joint mobility, pain upon

palpation in her left shoulder, restricted mobility in her spine

at level C2-C7, and a winging left scapula. T r . at 175-76.

Boutsianis was discharged from physical therapy in March

2006 after 8 visits; she reported that her left shoulder was much

better. T r . at 177-80, 189. Later in March 2006, she received

occupational therapy for triggering in her left thumb. T r . at

-9- 182. After three visits to occupational therapy, the therapist

noted a lack of improvement and recommended that Boutsianis

revisit her doctor to consult about whether to continue with

occupational therapy or treat with cortisone injections.

C. Assessments and Reports in Connection with Applications for Benefits

Bernard filled out a Medical Report in connection with

Boutsianis’s application to the City of Rochester, New Hampshire,

Welfare Department for financial assistance. T r . at 6 9 . The

report is dated both January 2 1 , 2005, and April 2 6 , 2005.

Bernard stated in the report that Boutsianis was permanently and

totally disabled, such that she could do no work until further

notice. She listed her diagnoses, in order of importance, a s :

(1) arthralgia, (2) heel spurs, and (3) fibromyalgia.

On March 3 0 , 2005, Boutsianis filled out an Activities of

Daily Living Report in connection with her applications for DIB

and SSI. T r . at 72-77. In this report, Boutsianis stated that

her activities were very limited due to severe and constant pain.

She reported that, on a daily basis, she awoke with stiff

and painful muscles and alternated periods of rest with short

periods of housework. T r . at 7 2 . Boutsianis also stated that

-10- she had trouble remembering and concentrating when reading and

watching television. T r . at 73-74. She reported that she went

out infrequently, but that she occasionally drove and that she

regularly cared for her pets. T r . at 7 3 . Boutsianis also filled

out a pain questionnaire, reporting that her pain began in late

2002 and had worsened over time. T r . at 76-77. She stated that

chronic pain and depression limited her activities, and that her

pain medication worked sometimes within one hour or two and

worked for four to six hours.

On June 1 7 , 2005, D r . Joseph Cataldo completed a physical

RFC assessment of Boutsianis based on a full review of

Boutsianis’s medical records. T r . at 157-65. D r . Cataldo

concluded that the degree of limitations expressed by Boutsianis

were not supported by the total evidence in the file. T r . at

163. He found that she did suffer from osteoarthritis in her

right heel, but that her claim of fibromyalgia was

unsubstantiated by the record. T r . at 1 5 7 , 165. He also noted

that the Treatment Source Opinion completed by Bernard in

connection with Boutsianis’s welfare application was not signed

by a physician, and the statement in that report that Boutsianis

was disabled was not supported by the medical evidence in the

-11- record. T r . at 163; see also T r . at 6 9 .

On June 2 5 , 2005, Boutsianis saw psychologist D r . Thomas

Lynch for assessment of affective disorders and/or anxiety-

related disorders. T r . at 166-72. D r . Lynch noted that

Boutsianis had experienced significant losses in her life,

including both parents, a brother, and a long-term boyfriend.

Tr. at 166. He observed that, upon examination, Boutsianis

demonstrated moderate difficulties with concentration and short-

term memory. T r . at 170. D r . Lynch concluded that, due to her

anxiety and depression, Boutsianis could have difficulty

finishing tasks without being able to work at her own pace and

take breaks as needed and that she could have difficulty keeping

up with a routine. T r . at 171. He concluded that Boutsianis had

adequate social skills and that her problems with concentration

and short-term memory would improve with treatment for anxiety

and depression.

Dr. Nicholas Kalfas completed a Psychiatric Review Technique

form on July 8 , 2005, assessing Boutsianis from the period of

October 5 , 2004, to July 8 , 2005. T r . at 85-98. D r . Kalfas

concluded that Boutsianis had a non-severe impairment with a co-

existing non-mental impairment requiring referral to another

-12- medical specialty. T r . at 8 5 . Specifically, D r . Kalfas

concluded that Boutsianis showed signs of a depressive syndrome

with sleep disturbance, decreased energy, feelings of guilt or

worthlessness, and difficulty concentrating or thinking. T r . at

88. D r . Kalfas did not conclude that Boutsianis suffered from

any other psychiatric condition, including anxiety. T r . at 85-

98. He noted that Boutsianis’s activities of daily living and

ability to maintain concentration, persistence, or pace were

mildly limited, and he found that Boutsianis had no limitations

in social functioning. T r . at 9 5 . Finally, D r . Kalfas concluded

that Boutsianis did not meet the requirements of a listing of

impairment for a psychiatric problem. T r . at 9 6 .

On July 3 1 , 2006, D r . Kenneth Shuman filled out two Medical

Source Statements (“MSS”) of Ability to do Work-Related

Activities reports on Boutsianis’s behalf, one focusing on

physical, and the other on mental limitations. T r . at 190-93;

194-96. In the MSS focusing on physical limitations, D r . Shuman

opined that Boutsianis’s impairment affected her ability to lift,

carry, push, and pull, but he did not offer more specific

information about Boutsianis’s limitations, stating that he had

not tested her for these limitations. T r . at 190-91. D r . Shuman

-13- did state that Boutsianis must periodically alternate sitting and

standing, could occasionally balance, and could never climb,

kneel, crouch, crawl, or stoop. T r . at 191. D r . Shuman also

stated that Boutsianis was limited in her ability to reach, due

to joint pain, but that she was unlimited in her ability to

handle, finger, and feel. T r . at 192. Finally, he stated that

Boutsianis’s impairments required limited exposure to temperature

extremes, dust, humidity/wetness, hazards, fumes, odors,

chemicals, and gases, due to her significant allergies to dust.

Tr. at 193.

In the MSS focusing on mental limitations, D r . Shuman stated

that Boutsianis’s ability to understand, remember, and carry out

instructions was affected by her impairment, and that, due to

depression and anxiety, she had slight limitations in her ability

to understand and remember detailed instructions and carry out

detailed instructions. T r . at 194. He stated that she had no

limitation in her ability to understand, remember, or carry out

short, simple instructions, and no limitations in her ability to

make judgments on simple work-related decisions.

The doctor

also stated that she had no limitations in her ability to

interact appropriately with the public, supervisors, or co-

-14- workers, and no limitations in her ability to respond

appropriately to work pressure or changes in a usual or routine

work setting. T r . at 195.

II. STANDARD OF REVIEW

I am authorized pursuant to

(g) to review the

pleadings submitted by the parties and the transcript of the

administrative record and enter a judgment affirming, modifying,

or reversing the Commissioner’s final decision. My review is

limited to whether the Commissioner (through the ALJ and the

Appeals Council) applied the proper legal standards and found

facts based upon the proper quantum of evidence. Ward v . Comm’r

of Soc. Sec.,

5 2 , 655 (1st Cir. 2000); Nguyen v .

Chater,

1 , 35 (1st Cir. 1999).

The Commissioner’s findings of fact are accorded deference

as long as they are supported by substantial evidence. Ward,

. I must uphold these factual findings “if a

reasonable mind, reviewing the evidence in the record as a whole,

could accept it as adequate to support his conclusion.” Ortiz v .

Sec’y of Health & Human Servs.,

(1st Cir. 1991)

(quoting Rodriguez v . Sec’y of Health & Human Servs., 647 F.2d

-15- 218, 222 (1st Cir. 1981)). The Commissioner’s factual findings

are conclusive if there is substantial evidence to support his or

her decision, even if the record “arguably could support a

different conclusion.”

. The findings are not

conclusive, however, when they are derived by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts.”

Nguyen, 172 F.3d at 3 5 .

The Commissioner is responsible for determining issues of

credibility and for drawing inferences from evidence on the

record. Ortiz,

. It is the role of the

Commissioner, not the role of this court, to resolve conflicts in

the evidence.

III. ANALYSIS

Boutsianis raises three main arguments in support of her

motion for reversal. First, she argues that the ALJ erred when

he failed to accord controlling weight to her treating

physician’s opinion regarding her nonexertional limitations.

Second, she argues that because she has nonexertional limitations

that significantly erode the occupational base for light work,

the ALJ erred when he failed to call a vocational expert to

-16- testify at her hearing. Third, she argues that the ALJ erred

when he failed to consider all of her impairments because he

inaccurately stated in his opinion that there was no actual

diagnosis of fibromyalgia in the record.

For reasons discussed below, I find that while the ALJ did

not err when he declined to accord controlling weight to the

opinion of D r . Kenneth Shuman or when he declined to consider

fibromyalgia as contributing to Boutsianis’s impairment, the ALJ

did err in failing to determine whether Boutsianis’s

nonexertional limitations significantly impact her ability to

perform a full range of light work. Therefore, I remand this

case to the Social Security Administration for further

proceedings.

A. Treating Source’s Medical Opinion

A “treating source” is a physician with whom the claimant

has an ongoing treatment relationship.

,

416.902. The Social Security Administration has determined that

a treating source’s medical opinion must be given controlling

weight if it is well-supported and not inconsistent with other

substantial evidence in the record. S.S.R. 96-2p (1996). It is

also true, however, that “[e]ven if a treating source’s medical

-17- opinion is well-supported, controlling weight may not be given to

the opinion unless it is also ‘not inconsistent’ with the other

substantial evidence in the case record.”

Thus, the ALJ

must determine whether a medical opinion from a treating source

is both “well supported” and “not inconsistent” in a given case.

As the SSA states:

Sometimes, there will be an obvious inconsistency between the opinion and the other substantial evidence; for example, when a treating source’s report contains an opinion that the individual is significantly limited in the ability to do work-related activities, but the opinion is inconsistent with the statements of the individual’s spouse about the individual’s actual activities, or when two medical sources provide inconsistent medical opinions about the same issue.

at 3 .

Additionally, Social Security Ruling 96-2 states that for a

treating source’s opinion to be given controlling weight, the

adjudicator “must find that the treating source’s medical opinion

is well supported by medically acceptable clinical and laboratory

diagnostic techniques. The adjudicator cannot decide a case in

reliance on a medical opinion without some reasonable support for

the opinion.”

at 2 .

In this case, Boutsianis contends that the ALJ erred by not

according controlling weight to the opinion of D r . Kenneth Shuman

-18- as expressed in the two Medical Source Statements he filled out

in July 2006. See T r . at 190-96. In the physical MSS, D r .

Shuman stated that Boutsianis had the following limitations (Dr.

Shuman’s medical or clinical findings to support each limitation

are also noted):

1 ) Exertional limitation - Must periodically alternate sitting and standing to relieve pain or discomfort. Supporting medical/clinical finding: none.

2 ) Postural limitations - Can never climb, kneel, crouch, crawl, or stoop, and can only occasionally balance. Supporting medical/clinical finding: “can walk down the hall without staggering.”

3 ) Manipulative limitation - Can only occasionally reach in all directions. Supporting medical/clinical finding: “joint pain.”

4 ) Environmental limitation - Limited ability to tolerate exposure to temperature extremes, dust, humidity/wetness, hazards, and fumes. Supporting medical/clinical finding: “has significant allergies to dust.”

Tr. at 190-93.

In the mental MSS, D r . Shuman found that Boutsianis had a

slight limitation only in her ability to understand, remember,

and carry out detailed instructions. T r . at 194-96. His

supporting medical/clinical finding stated that: “Depression and

anxiety affect concentrating ability.”

-19- The ALJ noted these statements by D r . Shuman in his opinion,

but agreed with D r . Shuman only with respect to his statements

about Boutsianis’s exertional and mental limitations. T r . at

1 5 ; 1 8 . Because D r . Shuman’s opinions as to Boutsianis’s

postural, manipulative, and environmental limitations are largely

unsupported by “medically acceptable clinical and laboratory

diagnostic techniques” and inconsistent with other statements in

the record, the ALJ did not err when he failed to give

controlling weight to this opinion.

Dr. Shuman provided very little information to support his

opinion on the physical MSS form. He stated that Boutsianis

suffered from “joint pain.” There are medical and clinical

findings in the record to support his opinion that Boutsianis

suffered from joint pain, but there are no medical or clinical

findings in the record to show that joint pain prevented

Boutsianis from reaching in all directions. At most,

Boutsianis’s physical therapy records show problems with her left

shoulder that may cause difficulty with overhead reaching with

that arm, but, again, the record contains no explicit medical or

clinical findings on this point.

-20- Dr. Shuman also stated that Boutsianis “can walk down the

hall without staggering” as a medical or clinical finding to

support his conclusion regarding Boutsianis’s postural

limitations. Even if D r . Shuman intended to write “cannot”

rather than “can,” this is unsupported by other evidence in the

record. In her Activities of Daily Living report, Boutsianis

says that she is able to drive to the doctor’s office and the

grocery store, walk down the street occasionally, and regularly

care for her pets. T r . at 73-74. In all of her medical records,

there is no mention of difficulty walking or an affected or

uneven gait. There are no clinical findings in the record

regarding an inability to climb, kneel, crouch, or crawl, or any

findings regarding a limitation in Boutsianis’s ability to

balance.

Finally, D r . Shuman stated that Boutsianis suffered from

numerous environmental limitations due to her allergies to dust.

The record does show that Boutsianis sought treatment for nasal

congestion (see T r . at 146-48), which could support D r . Shuman’s

conclusion that she suffered from a dust allergy. However, there

are no medical or clinical findings in the record to support the

doctor’s conclusion that Boutsianis suffered from a dust allergy

-21- or that, even if her nasal congestion could be attributed to a

dust allergy, this allergy caused her to have other environmental

limitations including temperature extremes, humidity/wetness,

hazards, or fumes.

Because D r . Shuman’s opinions regarding Boutsianis’s

postural, manipulative, and environmental limitations are not

supported by medical or clinical findings in the record and are,

at times, inconsistent with other evidence in the record, the ALJ

was not required to give these opinions controlling weight.3

B. Failure to Call a Vocational Expert

Boutsianis argues that the ALJ erred when he relied on the

Grids, rather than the testimony of a Vocational Expert (“VE”) to

conclude that she was not disabled. When a claimant suffers from

nonexertional limitations that significantly erode her

3 Boutsianis also raises the argument that the ALJ failed to develop the record by failing to request D r . Shuman’s office notes. Boutsianis was represented by counsel throughout these proceedings but never presented these records to the ALJ, never informed the ALJ or the Appeals Council that these records existed or were required, and never requested that the ALJ subpoena these records. In light of these facts and because Boutsianis has failed to establish prejudice resulting from the ALJ’s failure to obtain these treatment notes, I find that the ALJ did not fail to develop the record. See Faria v . Comm’r of Soc. Sec.,

, at *1 (1st Cir. 1998).

-22- occupational base, testimony of a VE is usually required in order

for the Commissioner to meet his burden, at step five, of showing

that there are a significant number of jobs in the national

economy that the claimant can still perform despite her

limitations.

.1569a, 416.969a; see also Heggarty

v . Sullivan,

9 0 , 996 (1st Cir. 1991). In this type of

situation, reliance on the Grids alone is prohibited, although

the Grids may serve as a framework for analysis. Heggarty,

. Pain can constitute a significant nonexertional

impairment that would trigger the need for VE testimony. Nguyen,

172 F.3d at 3 6 .

As discussed above, the ALJ rejected many of the

nonexertional limitations noted in D r . Shuman’s MSS report

because they were not supported by medical or clinical findings

in the record. The ALJ did, however, find that Boutsianis had

some nonexertional limitations, although he did not engage in a

substantive analysis of the extent to which these nonexertional

limitations eroded the occupational base for light work. T r . at

19. Specifically, the ALJ stated that Boutsianis’s ability to

perform the full range of light work was reduced by her pain and

her adjustment disorder. Id. While the ALJ rejected

-23- Boutsianis’s allegation that she suffered from completely

disabling pain, the ALJ did recognize that Boutsianis’s pain

required that she be in a job where she would have the

opportunity to alternate positions at her own choosing. T r . at

17. He also concluded that her problems with anxiety and

depression (referred to as an “adjustment disorder”) interfered

with her ability to understand, remember, and carry out detailed

instructions.

At step five of the disability analysis, the Commissioner

bears the burden of showing that there are a significant number

of jobs in the national economy that the claimant can perform

despite her limitations. In this case, the ALJ erred when he

failed to analyze the extent to which Boutsianis’s nonexertional

impairments diminished her capacity to perform light work. The

ALJ’s decision in this case is similar to the ALJ decision

analyzed in Pratts v . Chater,

(2d Cir. 1996):

In the present case, the ALJ did not specifically articulate the nonexertional impairments that Pratts suffered. Nonetheless, in light of her reference to “his non- exertional limitations,” she apparently believed that he had some. The ALJ found that the grids directed a conclusion that Pratts was not disabled even though she neither identified his nonexertional limitations nor considered whether a vocational expert was necessary. The ALJ simply proceeded directly to the ultimate question of disability

-24- without first considering whether further testimony was necessary in light of Pratts's nonexertional impairments.

Pratts,

9 .

In Pratts, the Second Circuit remanded the case to the

Social Security Administration and ordered that the ALJ, on

remand, conduct a re-evaluation as to whether the claimant’s

nonexertional limitations significantly diminished his ability to

perform the full range of light work.

Similarly, in this

case, the ALJ should examine this issue on remand and, if the ALJ

concludes that Boutsianis’s nonexertional limitations

significantly diminish her ability to perform a full range of

light work, he should call a VE to testify as to whether there

are a sufficient number of jobs in the national economy that

Boutsianis could perform despite her limitations. See

C. Failure to Consider All Impairments

Boutsianis also argues that the ALJ failed to consider her

fibromyalgia as contributing to her impairments because he stated

in his opinion that there is no actual diagnosis of fibromyalgia

in the record. The ALJ’s conclusion that Boutsianis has never

actually been diagnosed with fibromyalgia is supported by

substantial evidence in the record. The record shows that

-25- Boutsianis’s primary care physician was Certified Physician’s

Assistant Diane Bernard from December 2004 to June 2005. There

is no evidence in the record that Bernard ever completed a

clinical examination of Boutsianis that resulted in a diagnosis

of fibromyalgia. In December 2004, Boutsianis reported to

Bernard that she was concerned that she might have fibromyalgia,

but Bernard did not diagnose fibromyalgia, finding only one

tender point in Boutsianis’s right foot. In September 2005,

Boutsianis saw a different medical provider, Certified

Physician’s Assistant Kimberly Gallant. T r . at 154-56. At that

visit, Boutsianis told Gallant that she had a history of

fibromyalgia and that it had been diagnosed in winter 2004.

Gallant and D r . Shuman, who treated Boutsianis beginning in 2006,

both noted in subsequent records that Boutsianis had

fibromyalgia, but the record does not show that the condition was

ever diagnosed based on clinical findings or testing.

Because the record does not contain clinical findings to

support Boutsianis’s claim that she had been diagnosed with

fibromyalgia, the ALJ did not err when he declined to consider

fibromyalgia as a contributing factor to Boutsianis’s impairment.

See Craig v . Chater,

, 590 n.2 (4th Cir. 1996)

-26- (holding that a claimant’s subjective complaints are not

considered clinical findings merely because they are recorded by

a doctor); see also Harvey v . Astrue,

(D. M e .

2007) (analyzing a similar claim in which a claimant told medical

practitioners she had been diagnosed with fibromyalgia although

there were no actual clinical findings to support the diagnosis

and holding that the ALJ did not err by failing to consider

fibromyalgia as a contributing impairment).

IV. CONCLUSION

For the reasons stated above, I grant plaintiff’s motion to

reverse (Doc. N o . 8 ) , deny defendant’s motion to affirm (Doc. N o .

9 ) , and remand this case pursuant to sentence four of

(g) to the Social Security Administration. The Clerk is

directed to enter judgment in accordance with this order and

close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 1 , 2008

-27- cc: D. Lance Tillinghast, Esq. Seth Aframe, Esq. Gretchen Leah Witt, Esq.

-28-