Lonardo v. Astrue CV-10-482-JL 11/16/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Cathy Anne Lonardo v. Civil N o . 10-cv-482-JL Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM ORDER

This is an appeal from the partial denial of a claimant’s

application for Social Security Disability Benefits. See

(g). The claimant, Cathy Anne Lonardo, contends that

the administrative law judge (“ALJ”) incorrectly found that

although Lonardo suffered from cervical radiculopathy, depression

and anxiety, Admin. R. 11; 1 see

(a),(c), she

retained the residual functional capacity2 (“RFC”) to perform

unskilled sedentary work, Admin. R. 1 2 ; see

(a), 404.1568(a). The ALJ concluded that although she

was unable to perform her prior work as a “house cleaner,” given

her age, education and work experience, there were a significant

1 The court will reference the administrative record (“Admin. R.”) to the extent that it recites facts contained in or directly quotes documents from the record. C f . Lalime v . Astrue, N o . 08- cv-196-PB,

, at *1 (D.N.H. Apr. 1 4 , 2009). 2 “Residual Functional Capacity” is defined as “an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p,

, at *1 (July 2 , 1996). number of job opportunities available to her prior to October 4 ,

2009.3 Admin. R. 14-15; see

(a)(4)(iv),(v);

p t . 4 0 4 , subpt. P, App. 2 , § 202 (the “Grid”). Lonardo contends

that the ALJ erred because she:

(1) improperly concluded that despite Lonardo’s depression and anxiety, she was capable of performing unskilled work, Admin. R. 12-14; C l . B r . 2-6,

(2) improperly evaluated Lonardo’s subjective complaints, rendering her RFC determination flawed, see Admin. R. 1 3 ; C l . B r . 12-15; see generally SSR 96-7p,

(July 2 , 1996),

(3) improperly assigned greater weight to the opinions of non-examining physicians, and did not grant controlling weight to her treating physician’s functional capacity assessment, Admin. R. 13-14, C l . Br. 6-12, see generally

, 404.1527(d); SSR 96-2p,

(July 2 , 1996), and,

(4) failed to obtain vocational expert testimony to determine the availability of work opportunities and instead improperly relied on “the Grid” despite Lonardo’s non-exertional limitations. Admin. R. 14-15, C l . B r . 17-20, see generally Ortiz. v . Sec’y of Health & Human Servs.,

2 0 , 525-26 (1st Cir. 1989).

The Commissioner asserts that the ALJ’s findings are supported by

substantial evidence in the record, and moves for an order

3 The ALJ approved Lonardo’s claim for Supplemental Security Income benefits as of the date of her 50th birthday. The ALJ also determined that Lonardo was disabled on that date under Medical-Vocational Rule 201.14, see generally 20 C.F.R. p t . 4 0 4 , subpt. P, App. 2 , § 2 0 0 , but since she was last insured for disability benefits as of September 3 0 , 2007, her claim for disability benefits was denied. Admin. R. 1 5 .

2 affirming his decision.4 This court has subject-matter

jurisdiction under

(federal question) and

(g) (Social Security). After a review of the

administrative record, the court concludes that the ALJ

improperly relied on “the Grid” to determine whether there were

jobs available to her in the national economy. See generally 20

C.F.R. p t . 4 0 4 , subpt. P, App. 2 , § 200(e). The court therefore

grants Lonardo’s motion and denies the Commissioner’s motion.

I. APPLICABLE LEGAL STANDARD

The court’s review under Section 405(g) is “limited to

determining whether the ALJ deployed the proper legal standards

and found facts upon the proper quantum of evidence.” Nguyen v .

Chater,

1 , 35 (1st Cir. 1999); see Simmons v . Astrue,

9 1 , 399 (D.N.H. 2010). If the ALJ’s factual

findings are supported by substantial evidence in the record,

they are conclusive, even if the Court does not agree with the

ALJ’s decision and other evidence supports a contrary conclusion.

See Tsarelka v . Sec’y of Health & Human Servs.,

(1st Cir. 1988). Substantial evidence is “such relevant evidence

as a reasonable mind might accept as adequate to support a

4 The Decision Review Board, see generally

, affirmed the decision of the ALJ, Admin. R. 1 , rendering it a final decision of the Commissioner that is appealable to this court. See

.

3 conclusion.” Richardson v . Perales,

(1971)

(quotations omitted). The ALJ is responsible for determining

issues of credibility, resolving conflicting evidence, and

drawing inferences from the evidence in the record. See

Rodriguez v . Sec’y of Health & Human Servs.,

1 8 , 222

(1st Cir. 1981); Pires v . Astrue,

5 , 21 (D.

Mass. 2008) (“resolution of conflicts in the evidence or

questions of credibility is outside the court’s purview, and thus

where the record supports more than one outcome, the ALJ’s view

prevails”). The ALJ’s findings are not conclusive, however, if

they were “derived by ignoring evidence, misapplying the law, or

judging matters entrusted to experts.” Nguyen, 172 F.3d at 3 5 .

If the ALJ made a legal or factual error, the decision may be

reversed and remanded to consider new, material evidence, or to

apply the correct legal standard. Manso-Pizarro v . Sec’y of

Health & Human Servs.,

5 , 1 6 , 19 (1st Cir. 1996); see

(g).

II. BACKGROUND

The parties filed a Joint Statement of Material Facts

(document n o . 1 1 ) , which is part of the record reviewed by the

court. See LR 9.1(d). This court will briefly recount the key

4 facts, and otherwise incorporates the parties’ joint statement by

reference.

Lonardo filed an application for Disability Insurance

Benefits in December 2006 claiming she became disabled in January

2004 due to anxiety and depression, arthritis, fibromyalgia, and

multiple sclerosis. See Admin. R. 2 5 , 97-101, 118-40, 144-69.

Lonardo reported that for a number of years she has been limited

by debilitating pain and numbness that makes it difficult to

walk, sit, and stand. See id. at 33-34, 38-39. Lonardo stated

that she has episodes where her body becomes numb and she cannot

move. She claimed to have overwhelming fatigue that “can come on

at any given time. . . . I can experience it for days or weeks,

and even months.” Id. at 3 7 . Lonardo also reported severe

depression caused by her physical ailments and debilitating

anxiety that is only partially controlled by medication. See id.

at 38-39.

Lonardo testified that before she allegedly became disabled,

she “was cleaning three to four homes a day, five days a week . .

. .” Id. at 3 4 . By January 2010, however, she had only four

clients and, at least once a month, she is forced to reschedule a

cleaning appointment because she is physically and emotionally

5 unable to work.5 Id. at 3 7 . Lonardo’s daughter testified at the

hearing that she witnessed episodes where Lonardo would go

completely numb and was unable to function. She also testified

that Lonardo’s ability to clean homes slowed dramatically and

that she often needed to reschedule cleaning appointments because

she was in too much pain to work. Id. at 46-48.

Lonardo’s application for benefits was denied in July 2007,

see id. at 61-64, because it was determined that although she

suffered from multiple sclerosis, fibromyalgia, “as well as

mental health issues,” she was still capable of performing her

prior work as a housekeeper. Id. at 6 4 . Lonardo appealed that

decision to the ALJ, see generally

, who,

after a hearing in January 2010, concluded that although Lonardo

was incapable of returning to her prior work, she retained the

residual functional capacity to perform a full range of sedentary

unskilled work and was not entitled to disability benefits.

Admin. R. 12-16; see generally

(a)(4)(iv),

(v).

The ALJ’s RFC analysis and choice to rely on the Grid

necessarily required consideration of evidence regarding the

limiting effects of Lonardo’s fatigue, anxiety, and depression in

5 Lonardo stated that her income from cleaning varied from $100 to $500 per month.

at 2 7 .

6 addition to her complaints of overwhelming pain. See generally,

Guyton v . Apfel,

(D. Mass. 1998)

(permissible for ALJ to rely on the grid where nonexertional

impairments “impose no significant restriction on the range of

work” a claimant can perform (quotations omitted)). Evidence of

Lonardo’s non-exertional impairments therefore will be summarized

at the outset.

Records indicate that Lonardo had been treated for a number

of ailments at the Strafford Family Practice from November 2002

through September 2006. Admin. R. 187-97. Although Lonardo

asserts an onset date of January 2004, early treatment records

from the Strafford Family Practice reveal complaints of fatigue

and depression as early as November/December 2002.

at 194-

95. In 2005, however, she reported that her depression “had

improved.”

. Treatment records from the Newburyport

Family Practice from May 2004 through April 2007 indicate that

Lonardo continued to receive treatment for anxiety, depression,

and fatigue.

. Lonardo also was

treated by a licensed social worker, Jane Zeller, between January

2004 and March 2007 for depression and anxiety. Id. at 326-27.

Zeller observed that Lonardo demonstrates a “quite depressed”

mood and “a good deal” of anxiety. Id. at 326. Although Zeller

observed that Lonardo showed no thought disorder, Zeller opined

7 that her memory was impaired and she had difficulty

concentrating. Id. Zeller also stated that Lonardo was socially

isolated and she became anxious very easily, so much so that she

became “impaired cognitively” when under stress. Id. at 327.

Lonardo’s mental capabilities were evaluated three

additional times after she filed for disability benefits. In

February 2007, treating physician D r . Renae Freid at Newburyport

Family Practice completed a mental impairment questionnaire. Id.

at 288-89. D r . Freid opined that Lonardo suffered from

generalized anxiety and depression, and posttraumatic stress

disorder. Id. at 289. D r . Freid noted that Lonardo responded

only marginally to medication. D r . Freid stated that she had

“limited sustainability” in task performance due to physical pain

and because she is easily distracted and overwhelmed. Id.

Lonardo also had a consultative exam by D r . Sandra K.

Vallery, Ph.D., in June 2007. Id. at 334-39. D r . Vallery’s

assessment revealed mixed functionality. D r . Vallery observed

that Lonardo had good insight and judgment, was able to

understand directions, and interact and communicate effectively.

Lonardo also exhibited sustained concentration. Id. at 337-38.

Dr. Vallery noted, however, that Lonardo’s memory was impaired

and that she “is not able to tolerate stresses common to the work

environment, such as interactions with superiors, decision making

8 and scheduling.” Id. at 338. D r . Vallery also stated that

Lonardo “is rather overwhelmed . . . .[and] concerns are

manifested in her anxiety as well as her depression, which takes

on several vegetative symptoms and impairs her functioning.” Id.

Dr. Vallery observed that “[i]n any event, M s . Lonardo is

vulnerable to her symptoms of anxiety and depression.” Id.

A few weeks after D r . Vallery’s assessment, an SSA

consultant, D r . Michael Schneider, Psy.D., completed a

psychiatric review and mental residual functional capacity

assessment. Id. at 340-57. D r . Schneider concluded that Lonardo

suffered from affective disorders and anxiety disorders with

recurrent severe panic attacks occurring on the average of at

least once per week. Id. 3 4 0 , 345. D r . Schneider also found

that Lonardo had moderate restrictions in daily living, social

functioning, and maintaining concentration, persistence and pace.

Id. at 350. D r . Schneider opined that Lonardo would be

moderately limited in understanding, remembering, and carrying

out detailed instructions, responding appropriately to criticism,

and adjusting to changes in a work setting. Id. at 354-55. He

concluded, however, that Lonardo could work a normal workweek

because she is capable of understanding and remembering short

simple instructions and that if her supervisors were not overly

9 critical, she could interact appropriately in a work setting and

adjust to changes. Id. at 356.

Dr. Schneider did not find Lonardo’s allegations of mental

impairment credible. He stated that “[i]t would appear, that

most of her limitations are more related to physical problems,

and not her mental limitations.” Id. at 356. D r . Schneider also

specifically disagreed with D r . Vallery’s assessment of Lonardo’s

functional abilities. D r . Schneider opined that the

functional opinions of D r . Vallery are not given as much weight as usual, particularly her statement about not being able to tolerate stresses common to the work environment. . . . This is not supported by the objective data of her own evaluation, nor is it supported by the ADLs filled out by the claimant. For example, this claimant indicates that she has no difficulty getting along with others, especially authority figures. She did not have difficulty with Dr. Vallery and D r . Vallery did indicate that she is able to interact and communicate effectively. Also, the claimant is able to maintain some schedule, continuing to clean 3 houses that she has cleaned in the past.6

Id.

6 The court is a bit baffled by this latter observation as the record indicated that Lonardo cleaned these three houses at most only weekly, and then reportedly only when she was feeling well. The court is unsure how D r . Vallery’s observation of Lonardo’s inability to maintain a schedule is inconsistent with Lonardo’s disability function reports.

10 The ALJ determined that Lonardo was severely impaired due to

cervical radiculopathy, depression and anxiety.7 Admin. R. 1 1 ,

see generally

(a)(4)(ii). The ALJ

specifically found, however, that Lonardo’s reports about the

limiting nature of her impairments were not credible. The ALJ

did conclude that Lonardo’s reported fatigue “would limit her”

ability to perform, and thus she was only capable of performing

sedentary unskilled work.8 Admin. R. 1 3 ; see generally,

(a)(4)(iv). The ALJ concluded that given this

RFC, Lonardo was unable to perform her past work as “house

cleaner.” Admin. R. 1 4 . The ALJ, relying on the Grid,

concluded, however, that there were a significant number of jobs

available in the national economy and Lonardo was therefore not

7 The ALJ also stated that although the record showed that Lonardo experienced irritable bowel syndrome, an aneurism, hip pain, and sinusitis, these impairments were not severe. As discussed infra Part I I I , the ALJ did not address Lonardo’s fibromyalgia. Admin. R. 1 1 . 8 Sedentary work is defined as “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties.”

(a).

Unskilled work is defined as “work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time.”

(a).

11 disabled. Id. at 14-15; see generally,

(a)(4)(iv),(v).

III. ANALYSIS

A five-step process is used to evaluate an application for

social security benefits.

(a)(4). The

applicant bears the burden through the first four steps to show

that she is disabled.9 Freeman v . Barnhart,

(1st Cir. 2001). At the fifth step, the Commissioner bears the

burden of showing that a claimant has the residual functional

capacity to perform other work that may exist in the national

economy. Id.; see also

(a)(4)(v); Heggarty

v . Sullivan,

9 0 , 995 (1st Cir. 1991). The ALJ’s

conclusions at steps four and five are informed by her assessment

of a claimant’s RFC, which is a description of the kind of work

that the claimant is able to perform despite her impairments.

(a)(4), 404.1545.

9 Specifically, the claimant must show that: (1) she is not engaged in substantial gainful activity; (2) she has a severe impairment; (3) the impairment meets or equals a specific impairment listed in the Social Security regulations; or (4) the impairment prevents or prevented her from performing past relevant work. The Social Security Act 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.”

(d)(1)(A).

12 Lonardo contends that ALJ erred in failing to obtain

vocational expert testimony at Step 5 . Lonardo asserts that the

ALJ impermissibly relied on the Grid to determine that there was

work available to her in the national economy despite the

nonexertional limitations presented by symptoms of fatigue,

depression and anxiety. C l . B r . 1 7 . The court agrees.

Although a claimant bears the burden of showing she is

disabled in the first four steps of the evaluation process, “the

burden shifts to the Secretary to show the existence of other

jobs in the national economy that the claimant can nonetheless

perform.” Guyton,

(quotations omitted).

Where the claimant’s limitations are exclusively exertional, the

Commissioner can satisfy his burden through the use of the

“Grid,” a regulatory “matrix of the applicant’s exertional

capacity, age, education, and work experience. If the facts of

the applicant’s situation fit within the Grid’s categories, the

Grid directs a conclusion as to whether the individual is or is

not disabled.” Seavy v . Barnhart,

, 5 (1st Cir. 2001)

(quotations omitted); see generally, 20 C.F.R. p t . 4 0 4 , subpt. P,

App. 2 , § 200. The Grid thus provides the Commissioner with a

streamlined method to determine eligibility where a claimant’s

limitations are purely exertional. See, e.g., Ortiz, 890 F.2d at

524.

13 “Yet the Grid is predicated on [the claimant] having an

impairment which manifests itself by limitations in meeting the

strength requirements of jobs. Accordingly, where a claimant has

one or more non-strength limitations, the [Grid does] not

accurately reflect what jobs would or would not be available.”

Id. (Quotations, citations, and ellipses omitted.) Therefore,

“if the [claimant] has nonexertional limitations (such as mental,

sensory, or skin impairments . . . ) that restrict [her] ability

to perform jobs [she] would otherwise be capable of performing,

then the Grid is only a framework to guide the decision.” Seavy,

(quotations and brackets omitted). In such cases,

“the Secretary must carry his burden of proving the availability

of jobs in the national economy by other means, typically through

the use of a vocational expert.” Ortiz, 890 F.2d at 524

(citations and quotations omitted). Indeed, where nonexertional

impairments are present, vocational testimony “is usually

required to determine the appropriate occupational base” Devin

v . U.S. Soc. Sec. Admin., N o . 08-cv-242-PB,

, at *

3 (D.N.H. June 4 , 2009), as “the nonexertional impairment may

significantly affect [a] claimant’s ability to perform the full

range of jobs at her strength level, and because the SSA bears

the burden of proving jobs are available . . . .”

14 The rules do not absolutely prohibit an ALJ from consulting

the Grid where there are some nonexertional limitations. Rather,

in certain cases

[i]t is permissible for the Administrative Law Judge to rely on the Grid where she concludes that these nonexertional impairments or limitations impose no significant restriction on the range of work a claimant is exertionally able to perform. Moreover, if a non- strength impairment, even though considered significant, has the effect only of reducing that occupational base marginally, the Grid remains highly relevant and can be relied on exclusively to yield a finding as to disability. Yet the more that occupational base is reduced by a nonexertional impairment, the less applicable are the factual predicates underlying the Grid rules, and the greater is the need for vocational evidence.

Guyton,

(quotations and citations omitted).

So long as the record “amply support[s]” the conclusion that the

claimant’s nonexertional limitations do not interfere with a full

range of work, reliance on the Grid is appropriate. Ortiz, 890

F.2d at 526. Courts caution, however, that “an ALJ typically

should err on the side of taking vocational evidence when [a

nonexertional] limitation is present . . . . [S]hould an ALJ

determine that the Grid can be relied on in such a case, we urge

that the evidentiary support for that decision be enumerated

. . . clearly and in great[] detail . . . .” Id. at 528; see

Larocque v . Barnhart,

(D.N.H. 2006).

In this case, the ALJ relied on the Grid because she

concluded that Lonardo’s depression, anxiety, and fatigue did not

15 impair her ability to complete a full range of sedentary

unskilled work. Admin. R. 14-15. The First Circuit has stated

that “so long as a nonexertional impairment is justifiably found

to be substantially consistent with the performance of the full

range of unskilled work, the Grid retains its relevance and the

need for vocational testimony is obviated.” Ortiz, 890 F.2d at

526. Where a claimant has mental impairments, the ALJ must

carefully determine: “(1) whether a claimant can perform close to

the full range of unskilled work, and (2) whether [she] can

conform to the demands of a work setting, regardless of the skill

level involved.” Id. An inability to satisfy either inquiry

precludes reliance on the Grid. C f . id.

The ALJ’s decision to rely on the Grid does not contain an

in depth analysis of either step outlined above. Instead the ALJ

simply concludes that “the additional limitations had little or

no effect on the occupational base of unskilled sedentary work.”

Id. at 1 5 . Implicit in the ALJ’s use of the Grid is the

determination that Lonardo can perform a full range of work and

adjust to the demands of the workplace. C f . id. at 526-27. The

court questions whether the record supports a finding that

Lonardo can perform close to the full range of unskilled work.

The basic mental demands of competitive remunerative unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision,

16 coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base.

Id. at 526 (quotations omitted). Most medical professionals who

evaluated Lonardo questioned her ability to function in a normal

unskilled work setting. D r . Freid noted that Lonardo was

“[e]asily overwhelmed” by stress,” was distracted easily and had

trouble completing tasks.10 Id. Similarly, D r . Vallery observed

“Ms. Lonardo is not able to tolerate stresses common to the work

environment, such as interactions with supervisors, decision

making and scheduling.” Admin. R. 338. Although SSA

consultative psychologist D r . Michael Schneider opined that

Lonardo could “complete a normal work week,” he limited her

ability to “interact appropriately” with peers and supervisors to

“an environment where the supervisory criticism is not overly

critical of her performance.” Id. at 356. D r . Schneider also

concluded that Lonardo experienced “recurrent severe panic

attacks”, had moderate limitations in maintaining concentration,

persistence and pace, carrying out instructions, responding to

criticism, and adjusting to changes at work. Id. at 3 4 0 , 345.

10 Dr. Freid also noted that Lonardo exhibited a limited ability to perform and complete tasks due to physical pain. Admin. R. 289.

17 Given the amount of record evidence indicating that

Lonardo’s mental restrictions impaired her ability to function in

an unskilled work setting, the court is hesitant to conclude that

the ALJ appropriately relied on the Grid. This is particularly

true here where the ALJ’s order contained little mention or

analysis of the effect of Lonardo’s nonexertional impairments on

the occupational base. C f . Guyton,

. The

ALJ should have consulted a vocational expert given these

limitations, or at least addressed them in her discussion of the

Grid. See Ortiz, 890 F.2d at 526-27 (capacity to do unskilled

work requires careful consideration of claimant’s functionality).

Reliance on the Grid also was inappropriate here because the

ALJ’s implicit finding that Lonardo could conform to the regular

demands of a workday was unsupported by the evidence. Performing

in a regular workplace involves “a claimant’s ability to

accommodate the demands of a work setting per s e . . . . [T]he

mentally impaired may cease to function effectively when facing

such demands as getting to work regularly and remain in the

workplace for a full day.” Id. at 527 (quotations and ellipses

omitted).

The record is far from clear regarding Lonardo’s ability to

maintain a regular working schedule. Beginning in 2002,

Lonardo’s income from cleaning dropped dramatically. Lonardo and

18 her daughter testified that although Lonardo maintained a few

clients, she rescheduled cleaning appointments on a regular

basis. The ALJ did note that Lonardo “has remained active

working part-time as a housekeeper.” Admin. R. 1 3 . This

observation overstates the record, as Lonardo’s part-time work

was extremely limited and erratic. At the very least then, the

ALJ should have conducted a more searching discussion and

analysis of the effect of Lonardo’s non-exertional impairments on

the available occupational base. See, e.g. Ortiz, 890 F.2d at

528. Indeed, it is error to rely on the Grid where record shows

that a claimant “needs a flexible, self-paced job with an

understanding boss.” Devin,

, at * 5 . The

applicable regulations require vocational expert evidence in

those cases “because the tables do not reflect an occupational

base that is circumscribed by her individual restrictions.”

In sum, the ALJ’s decision is reversed because she “ignored

important limitations” in Lonardo’s ability to work11 and did not

11 Additionally, the court is concerned with the ALJ’s treatment (or lack thereof) of the Lonardo’s fibromyalgia claim. See C l . B r . 8-12. Although Lonardo asserted that she suffered from fibromyalgia, see, e.g., Admin. R. 2 5 , 3 8 , 123, 1 6 8 , and her records reveal numerous complaints of musculoskeletal pain, see e.g.

, 2 8 1 , 2 9 1 , the ALJ’s order completely ignores any claim or evidence of fibromyalgia.

at 1 1 . Apart from the ailments she found severe, the ALJ noted only that “the claimant has also received general medical care for various complaints,” then dismissed sinusitis, a possible aneurysm, and hip pain as non-severe. Admin. R. 1 1 . The ALJ ignored Lonardo’s

19 fibromyalgia claim, despite the fact that fibromyalgia was asserted in Lonardo’s disability claims, id. at 123, mentioned in the SSA denial letters, id. at 5 6 , 6 4 , listed as a “secondary diagnosis” on SSA consulting physician D r . Jaffe’s 2007 RFC assessment, id. at 3 5 8 , is mentioned multiple times in D r . Vallery’s assessment, id. at 334-339, and was discussed at the hearing. Id. at 2 5 , 3 8 . Although the ALJ gave little weight to an evaluation by D r . Sanchez in 2009 where fibromyalgia was assessed at length, id. at 13-14, 396-99, the disorder was mentioned by other health professionals well before D r . Sanchez’s report was generated. Id. at 2 5 , 3 8 , 243, 358. Although the ALJ is not required to elaborate on every shred of evidence before her, see Rodriguez v . Sec’y of Health & Human Servs., N o . 90- 1039,

(1st Cir. 1990), it is improper to fail to acknowledge, let alone analyze, a significant claim of impairment arguably supported by evidence in the record and brought to the attention of the ALJ. See Torres v . Barnhart,

3 , 41 (D. Mass. 2002) (error to ignore cognitive impairment where record contains examples of impairment); c f . Rodriguez,

(evaluation proper where there were no “significant omissions”). This is not the case where an ALJ properly considers a limitation and, based on the record, discounted that limitation’s effect on the claimant’s functional capabilities. C f . Sheffield v . Callahan,

5 , 81 (D. Mass. 1998). It simply appears that either by omission or commission, a significant claimed impairment was ignored.

The court’s concern is heightened by recent circuit precedent involving fibromyalgia. The Court of Appeals, in Johnson v . Astrue,

(1st Cir. 2009), stated that it was error in a fibromyalgia case for an ALJ to reject a treating provider’s assessment of disability based on the lack of objective evidence to support i t . The court concluded that because “[t]he primary symptom of fibromyalgia, of course, is chronic widespread pain, and the Commissioner points to no instances in which any of claimant’s physicians ever discredited [her] complaints of such pain,” the ALJ’s decision to discredit the claimant’s reports of pain was unsupported by the evidence.

. To be sure, the analysis of a fibromyalgia claim is complex. But where there are years of medical reports documenting complaints of physical pain, Lonardo’s alleged fibromyalgia claim should not be ignored by the ALJ. Here, the ALJ never acknowledged Lonardo’s claim in her order. The ALJ did find that Lonardo was severely impaired by cervical

20 adequately explain why, given Lonardo’s limitations, an

individualized assessment was not needed here. Larocque,

. As such, the decision of the ALJ is

reversed, c f . Guyton,

(failure of ALJ to

adequately discuss effect of mental impairment on occupational

base “is a sufficient basis for remand”), and remanded for

further proceedings.

IV. CONCLUSION

Pursuant to sentence four of

(g), Lonardo’s

motion to reverse and remand the Commissioner’s decision12 is

granted. The Commissioner’s motion to affirm the decision13 is

denied. The Clerk of Court is directed to enter judgment in

accordance with this order and close the case.

radiculopathy. Admin. R. 1 1 . It is unclear, however, if the ALJ considered this impairment as the sole cause of Lonardo’s pain and therefore her fibromyalgia claim need not be mentioned. It is advisable on remand that this facet of Lonardo’s claim be addressed. 12 Document n o . 7. 13 Document n o . 1 0 .

21 SO ORDERED.

l^Yf0^^> Ur^ted States District Judge

Dated: November 16, 2011

cc: Raymond J. Kelly, Esq. T. David Plourde, Esq.

22