UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Tina Robinson, Claimant

v. Case No. 16-cv-347-SM Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Tina Robinson, moves to reverse or vacate the Acting

Commissioner’s decision denying her applications for Disability

Insurance Benefits under Title II of the Social Security Act and

Supplemental Security Income Benefits under Title XVI. See

, 1381-1383c (collectively, the “Act”). The Acting

Commissioner objects and moves for an order affirming her

decision.

For the reasons discussed below, claimant’s motion is

granted, and the Acting Commissioner’s motion is denied. Procedural Background

I. Procedural History.

In June of 2013, claimant filed applications for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income

(“SSI”), alleging that she was disabled and had been unable to

work since June 15, 2013 (she subsequently amended her onset of

disability to October 31, 2013). Claimant was 50 years old at

the time and she had acquired sufficient quarters of coverage to

remain insured through December 31, 2016. Those applications

were denied and claimant requested a hearing before an

Administrative Law Judge (“ALJ”).

In May of 2015, claimant, her representative, and a

vocational expert appeared before an ALJ, who considered

claimant’s applications de novo. Six weeks later, the ALJ

issued his written decision, concluding that claimant was not

disabled, as that term is defined in the Act, at any time prior

to the date of his decision. Claimant then requested review by

the Appeals Council. That request was denied. Accordingly, the

ALJ’s denial of claimant’s applications for benefits became the

final decision of the Commissioner, subject to judicial review.

Subsequently, claimant filed a timely action in this court,

2 asserting that the ALJ’s decision is not supported by

substantial evidence.

Claimant then filed a “Motion for Order Reversing Decision

of the Commissioner” (document no. 8). In response, the Acting

Commissioner filed a “Motion for an Order Affirming the Decision

of the Commissioner” (document no. 12). Those motions are

pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts which, because

it is part of the court’s record (document no. 13), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. “Substantial Evidence” and Deferential Review.

Pursuant to

(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings and credibility

3 determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(1st Cir. 1991). Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB,

(1938). Importantly, it

is something less than a preponderance of the evidence, so the

possibility of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. Consolo v.

Federal Maritime Comm’n.,

(1966). See also

Richardson v. Perales,

(1971).

II. The Parties’ Respective Burdens.

An individual seeking SSI and/or DIB benefits is disabled

under the Act if he or she is unable “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). See also 42 U.S.C. § 1382c(a)(3). The

Act places a heavy initial burden on the claimant to establish

4 the existence of a disabling impairment. See Bowen v. Yuckert,

(1987); Santiago v. Secretary of Health &

Human Services,

(1st Cir. 1991). To satisfy that

burden, the claimant must prove, by a preponderance of the

evidence, that her impairment prevents her from performing her

former type of work. See Gray v. Heckler,

(1st Cir. 1985); Paone v. Schweiker,

(D. Mass. 1982). If the claimant demonstrates an inability to

perform her previous work, the burden shifts to the Commissioner

to show that there are other jobs in the national economy that

she can perform, in light of her age, education, and prior work

experience. See Vazquez v. Secretary of Health & Human

Services,

(1st Cir. 1982). See also

(f) and 416.912(f).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

,

5 6 (1st Cir. 1982). Ultimately, a claimant is disabled only if

her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Acting Commissioner’s motion to affirm

her decision.

Background - The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory

five-step sequential evaluation process described in

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since her amended alleged onset of disability: October 31, 2013.

Admin. Rec. at 20. Next, he concluded that claimant suffers

6 from the following severe impairments: “fibromyalgia,

degenerative disc disease, obesity and status post left heel

spur/Achilles tendon surgery.”

But, the ALJ determined

that those impairments, whether considered alone or in

combination, did not meet or medically equal one of the

impairments listed in Part 404, Subpart P, Appendix 1. Admin.

Rec. at 23.

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

“sedentary” work, subject to the following limitations: “she can

occasionally climb stairs; she must avoid all ladders, ropes and

scaffolds; she can occasionally balance, stoop, kneel, crouch

and crawl; she must avoid hazards; [and] she must avoid

concentrated exposure to cold temperatures and wetness.”

. In light of those restrictions, and based upon the

testimony of the vocational expert, the ALJ concluded that

claimant was capable of performing past relevant work as a

switchboard operator, customer service clerk, and/or

administrative assistant.

. Consequently, the ALJ

concluded that claimant was not “disabled,” as that term is

defined in the Act, through the date of his decision.

7 Discussion

Claimant challenges the ALJ’s decision on two grounds,

asserting that he erred: (1) by failing to give appropriate

weight to the opinions of claimant’s treating physician, Dr.

Amber Schmidt; and (2) by failing to recognize that claimant

meets the requirements of listing 1.04(A), as set forth in Part

404, Subpart P, Appendix 1, of the Regulations. The latter

argument is both insufficiently developed and insufficiently

supported by the record evidence to warrant substantial

discussion. It is enough to note that the Commissioner’s

memorandum fully discusses the reasons that the ALJ’s decision

on that issue is supported by substantial evidence.

Claimant’s primary argument, however, has more merit. She

claims the ALJ failed to give appropriate weight to the opinions

of her treating physician, Dr. Amber Schmidt, a board certified

practitioner of family medicine. Instead, she says, the ALJ

afforded too much weight to the opinions of the non-examining

state agency physician, Dr. Hugh Fairly.

Although Dr. Fairly acknowledged claimant’s Fibromyalgia,

he seems to have dismissed it with a single sentence: “[July,

2012] - Clinical signs of Fibromyalgia: Cymbalta ‘helps a lot.’”

8 Admin. Rec. at 86. Dr. Fairly appears to be referencing a

statement claimant made in December of 2012, approximately one

month after she was prescribed Cymbalta (presumably to address

pain associated with Fibromyalgia, but also, perhaps, to address

symptoms of depression). See Id. at 307. But, that single

statement neither fully nor accurately represents claimant’s

condition. Indeed, it seems inconsistent with the medical

record as a whole. To the extent it implies that claimant’s

Fibromyalgia was well controlled with medication, it is

incorrect.

Just two months after starting treatment with Cymbalta,

claimant reported that she didn’t think it was working anymore.

Id. at 303. Shortly thereafter, she was switched to a different

medication - Viibryd - with the note that “she was taking

Cymbalta but it was too expensive.” Id. at 264. And, shortly

after that, she was instructed to stop taking Viibryd and Dr.

Schmidt prescribed a narcotic (Percocet) to address claimant’s

ongoing pain. Id. at 266.1 In short, then, claimant’s statement

1 Both Cymbalta and Viibryd are non-narcotic members of a class of medications known as “selective serotonin reuptake inhibitors” or SSRIs. They are typically used to treat depression, but may also be effective in the treatment of Fibromyalgia. Percocet is a combination of acetaminophen and oxycodone (an opioid) that is used to treat moderate to severe pain.

9 (almost immediately after she began using Cymbalta) that

Cymbalta “helps a lot” is hardly the full story (and may

actually be somewhat misleading). Nevertheless, the ALJ gave

Dr. Fairly’s opinion “great weight.” Id. at 27. At the same

time, the ALJ gave the opinions of claimant’s treating

physician, Dr. Schmidt, “little weight.” Id. at 26.

Claimant asserts that was error and in support of the claim

that she is disabled, she points primarily to Dr. Schmidt’s

various opinions as expressed in her “Fibromyalgia Medical

Source Statement.” See Admin. Rec. at 423-28. In that

comprehensive assessment of claimant’s symptoms and associated

conditions, Dr. Schmidt stated:

1. She had been treating claimant for two years, and met with her, on average, every two or three months;

2. Claimant meets the 1990 American College of Rheumatology Preliminary Diagnostic Criteria for Fibromyalgia;

3. Claimant suffers from numerous symptoms associated with Fibromyalgia, including a history of widespread chronic pain, cognitive dysfunction, dizziness, insomnia, severe fatigue, and significantly reduced physical activity or mental function;

4. Claimant suffers from “constant, stabbing, aching pain, 6-8/10”;

5. Claimant experiences 16 of 18 tender points (with 11 of 18 typically being used to characterize Fibromyalgia);

10 6. Some of the pain-killing medications claimant takes include side effects that cause drowsiness/dizziness and, therefore, have implications for claimant’s ability to work; and, finally,

7. If claimant were placed in a competitive work situation, claimant’s functional limitations would likely cause her to “miss several days a week due to pain issues and [she] would need numerous breaks during the day.”

Those opinions are entirely consistent with the medical

record. Indeed, as the Commissioner acknowledges, “Treatment

notes from throughout the period at issue consistently document

diffuse fibromyalgia tender points, chronic pain, and persistent

fatigue.” Joint Statement of Material Facts (document no. 13)

at 2.

The ALJ discounted Dr. Schmidt’s opinion (giving it “little

weight”) on grounds that it “is conclusory in nature, fails to

give disabling limitations and is an assessment of the

claimant’s ability to engage in basic work-like activities,

which is an opinion reserved to the Commissioner.” Admin. Rec.

at 26. Additionally, the ALJ noted that, “contemporaneous

treatment notes clearly showed that the claimant’s pain is well

controlled with medication” and physical examinations “were

benign and do not support Dr. Schmidt’s findings.” Id. Those

findings, however, are not entirely accurate. For example,

11 claimant’s treatment notes do not “clearly show” that her pain

is well controlled. Indeed, as Dr. Schmidt observed in the

Fibromyalgia Medical Source Statement, claimant complained of

severe pain often, even when taking prescribed medications.

See, e.g., Admin. Rec. at 376-77, 380-81, 390, 392, 400. See

also Mental Health Evaluation Report - Adult, prepared by Dr.

Trina Jackson, Admin. Rec. at 366 (recounting claimant’s

reported activities of daily living and noting that she reported

having to stop housework frequently due to pain and lack of

stamina, suffers from poor sleep due to pain, and reports being

able to stand for only 20 minutes at a time). Perhaps of equal

importance is Dr. Jackson’s conclusion that claimant “appeared

to present herself in an honest and straightforward manner. She

did not appear to exaggerate or malinger her symptoms.” Id. at

365. Parenthetically, the court notes that the ALJ afforded Dr.

Jackson’s opinions “great weight” because “Dr. Jackson is a

medical source who examined the claimant and had an opportunity

to observe her, giving Dr. Jackson special knowledge of the

claimant and insight into the extent of her impairments and

ability to function.” Id. at 22.

In light of the foregoing, the court cannot conclude that

the ALJ’s stated reasons for discounting the medical opinions of

12 claimant’s treating source, Dr. Amber Schmidt, are supported by

substantial evidence. See generally Hunt v. Colvin, No. 16-CV-

159-LM,

, at *10 (D.N.H. Dec. 5, 2016) (finding

that the ALJ improperly discounted opinions in Fibromyalgia

Medical Source Statement because those opinions were supported

by relevant medical evidence). See also Johnson v. Astrue,

(1st Cir. 2009) (“once the ALJ accepted the

diagnosis of fibromyalgia, she also had no choice but to

conclude that the claimant suffered from the symptoms usually

associated with such condition, unless there was substantial

evidence in the record to support a finding that claimant did

not endure a particular symptom or symptoms. The 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. Given this, we do not think that the ALJ’s decision to

discredit claimant was supported by substantial evidence.”)

(citations and internal punctuation omitted).

Conclusion

This case, like so many involving claimants who suffer from

Fibromyalgia, is a close and difficult one. As the Court of

Appeals for the Seventh Circuit has observed, Fibromyalgia is:

13 a common, but elusive and mysterious, disease, much like chronic fatigue syndrome, with which it shares a number of features. Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are ‘pain all over,’ fatigue, disturbed sleep, stiffness, and — the only symptom that discriminates between it and other diseases of a rheumatic character — multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch . . . There is no serious doubt that [claimant] is afflicted with the disease but it is difficult to determine the severity of her condition because of the unavailability of objective clinical tests. Some people may have such a severe case of fibromyalgia as to be totally disabled from working, but most do not and the question is whether [claimant] is one of the minority.

Hawkins v. First Union Corp. Long-Term Disability Plan,

(7th Cir. 2003) (quoting Sarchet v. Chater,

, 306–07 (7th Cir. 1996)). Here, too, the question is

whether claimant is a member of the minority of patients

diagnosed with Fibromyalgia who is also disabled by reason of

disease.

Having reviewed the medical evidence of record, as well as

the arguments advanced by the parties, the court concludes that,

on balance, remand is appropriate so the ALJ may, at a minimum,

more fully consider the extent to which claimant’s Fibromyalgia

14 is disabling. The ALJ might also consider whether it is

appropriate in this case to seek the advice of a consultative

examiner. See generally Titles II and XVI: Evaluation of

Fibromyalgia, SSR 12-p,

(July 25, 2012) (“We may

purchase a consultative examination (CE) at our expense to

determine if a person has a [medically determinable impairment]

of FM or is disabled when we need this information to adjudicate

the case.”). Finally, to the extent the ALJ remains persuaded

that the opinions of claimant’s treating physician are entitled

to little weight, he should more fully explain the bases for

that conclusion and identify the record evidence supportive of

such a decision.

For the foregoing reasons, as well as those set forth in

claimant’s memorandum, claimant’s motion to reverse the decision

of the Commissioner (document no. 8) is granted to the extent

she seeks a remand for further proceedings consistent with this

opinion. The Commissioner’s motion to affirm her decision

(document no. 12) is denied.

Pursuant to sentence four of

(g), the

decision of the ALJ dated June 24, 2015, is vacated and this

matter is hereby remanded for further proceedings consistent

15 with this order. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

August 22, 2017

cc: Brenda M. Golden Hallisey, Esq. T. David Plourde, AUSA

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