UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Shannon C. Smith Case No. 18-cv-1086-PB v. Opinion No.

Andrew Saul, 1 Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Shannon Smith challenges the denial of her claims for

Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”) pursuant to

(g). She contends that

the Administrative Law Judge (“ALJ”) erred by (1) failing to

properly analyze her mental impairments at step two and

thereafter; (2) failing to follow the Social Security

Administration’s (“SSA”) Ruling on the Evaluation of

Fibromyalgia, SSR 12-2p,

(July 25, 2012); and

(3) improperly giving greater weight to non-examining state

agency consultants than to Smith’s treating and examining

medical sources. The Commissioner, in turn, moves for an order

affirming the ALJ’s decision. For the following reasons, I grant

Smith’s motion and remand this matter to the Commissioner for

1 On June 17, 2019, Andrew Saul was sworn in as Commissioner of Social Security. He replaced the nominal defendant, Nancy A. Berryhill, who had been Acting Commissioner of Social Security. further proceedings consistent with this order.

I. BACKGROUND

A. Procedural Facts

Smith is a forty-four-year-old woman who has previously

worked as a gas station attendant and cashier and currently

works part time at a Dunkin’ Donuts. See Administrative

Transcript (“Tr.”) at 297, 305. She alleges that she has been

disabled since January 12, 2016, due to a combination of

fibromyalgia, Chiari malformation, 2 migraines, depression, and

anxiety. Tr. at 18–19.

Smith filed claims for DIB and SSI on November 30, 2016.

Tr. at 271. After an initial denial on March 16, 2017, Tr. at

121, she testified at a hearing before ALJ Thomas Merrill on

November 13, 2017. Tr. at 39–80. The ALJ denied Smith’s

applications, Tr. at 32, and the SSA Appeals Council denied her

request for review. Tr. at 1–3. As such, the ALJ’s decision

constitutes the Commissioner’s final decision, which Smith now

appeals.

B. Medical Evidence

In this section, I decline to recite a full history of

2 Chiari malformation is “a congenital anomaly in which the cerebellum and medulla oblongata, which is elongated and flattened, protrude into the spinal canal through the foramen magnum . . . It may be accompanied by hydrocephalus, spina bifida, syringomyelia, and mental defects.” Dorland’s Illustrated Medical Dictionary 1098 (32d ed. 2012).

2 Smith’s medical treatment, opting instead to focus on the

treatment records necessary to provide context in this case.

Prior to Smith’s alleged disability onset date, she was

diagnosed and/or treated by various providers for migraines,

e.g., Tr. at 389, 404, 416, 686; anxiety/panic disorder, e.g.,

Tr. at 389, 416, 429, 436, 686, 687, 695, 703 ; depression,

e.g., Tr. at 389, 436, 686, 695; Chiari malformation, Tr. at

389; and fibromyalgia, e.g., Tr. at 429; as well as other

ailments not claimed as a basis for her disability, e.g., Tr. at

389, 397–98, 422.

Following the alleged onset date, Smith continued to seek

treatment for fibromyalgia, anxiety, and depression from her

primary care physician, Dr. Nanyee Keyes on February 24, 2016.

Tr. at 441–42. That June, Smith discussed with a physician

assistant how her fibromyalgia interfered with her sleep, which

in turn exacerbated her fibromyalgia symptoms. Tr. at 446.

Another doctor, Dr. Mitchell Young, diagnosed Smith as having

fibromyalgia affecting her shoulder on September 24. Tr. at 474.

Smith returned to Dr. Keyes on November 18, who noted 14

positive fibromyalgia tender points (out of a possible 18) and

scores of 15 and 14 on the depression and anxiety scales,

respectively. Tr. at 468, 479–80. That same day, in support of

Smith’s application for DIB and SSI, Dr. Keyes completed a

physical medical source statement listing diagnoses of

3 fibromyalgia, depression, and anxiety. Tr. at 465–68. 3 She also

submitted a mental impairment source statement, which noted

diagnoses of anxiety and depression. Tr. at 469–72. Dr. Keyes

checked boxes for thirty-four “signs and symptoms,” Tr. at 470,

and for various functional limitations at varying levels of

severity, Tr. at 471. On January 11, 2017, Smith sought

treatment for fibromyalgia from a physician assistant, Tr. at

492, and again from Dr. Keyes on January 18, Tr. at 493. On

November 23, Smith saw Dr. Jing Ji about her headaches. Tr. at

481–82. Dr. Ji found “no major concern” regarding Chiari

malformation, but noted that Smith could have hemiplegic

migraines. Tr. at 484. Dr. Ji saw Smith for a follow-up three

months later. Tr. at 506–07.

She was evaluated by Dr. David Kamen, a consultative

psychologist, on February 1. Tr. at 510–15. Dr. Kamen noted both

positive and negative aspects of Smith’s functioning, including

3 The ALJ discounted this report by Dr. Keyes’s as internally contradictory, in part due to a misrepresentation of what Dr. Keyes wrote in it. Specifically, in an error repeated in Defendant’s briefs, the ALJ claimed that “Dr. Keyes noted that the claimant could sit for three hours at a time but could only sit for two hours in an eight-hour workday.” Tr. 30. In fact, Dr. Keyes appears to have crossed out the number “2” and written in “3” above it, Tr. 466, making her answers consistent on this point. Since, as discussed below, my remand is not based upon the ALJ’s weighing of Dr. Keyes’s opinion, I need not address his reasons for doing so in any detail. I point out this discrepancy only to caution the ALJ on remand to ensure that his reasons for discounting this or any other report are, in fact, supported by the record.

4 several depression and anxiety symptoms that Smith presented

during the evaluation. Tr. at 510. Ultimately, he concluded that

he did “not believe that [Smith] is able to sustain an ordinary

routine and regular work attendance . . . .” Tr. at 514.

Smith also had a fibromyalgia evaluation conducted by Dr.

Prachaya Nitichaikulvatana on April 4, Tr. at 877, and spoke

with Dr. Sumathi Rajanna on June 2 following a panic attack and

self-harm incident at work, Tr. 884. She had an initial

evaluation at Greater Nashua Mental Health Center on July 18,

during which she reported symptoms “indicative of a diagnosis of

Major Depressive Disorder, moderate, recurrent with anxious

distress.” Tr. at 526. She was also given a rule-out diagnosis

of borderline personality disorder. Tr. at 526. At her September

5 follow-up with Dr. Nitichaikulvatana, Smith reported worsening

fibromyalgia pain. Tr. at 887.

Smith began therapy with Camila Fonseca on July 31. Tr. at

528. She continued to see Ms. Fonseca, eventually asking her to

complete a Mental Impairment Medical Source Statement on October

3. Tr. at 918–21. This statement identified only three “signs

and symptoms,” Tr. at 919, and noted far less severe functional

limitations than Dr. Keyes’s earlier statement, Tr. at 920.

C. The ALJ’s Decision

The ALJ assessed Smith’s claims under the five-step

analysis required by

. At step one, he found

5 that Smith had not engaged in substantial gainful activity

(“SGA”) since January 12, 2016, her alleged disability onset

date. Tr. at 18. At step two, the ALJ found that Smith’s

fibromyalgia was a severe impairment, but that her Chiari

malformation, migraines, anxiety, and depression were non-

severe. Tr. at 18–24. At step three, the ALJ concluded that

Smith did not “have an impairment or combination of impairments

that medically meets or equals a listed impairment” in 20 C.F.R.

§ Pt. 404, Subpt. P, App. 1. Tr. at 24–25.

The ALJ next evaluated Smith’s residual functional capacity

(“RFC”) and determined that she could perform light work, with

the following exceptions:

[Smith] can lift and carry 10 pounds frequently and 20 pounds occasionally; sit for six hours in an eight[- ]hour work period; stand, or walk for six hours in an eight[-]hour work period; perform unlimited pushing and pulling of 10 pounds frequently and 20 pounds occasionally with the upper and lower extremities; occasionally climb, stoop, kneel, crouch or crawl; and frequently balance.

Tr. at 25. Based upon this RFC, the ALJ determined at step four

that Smith could perform her past work as a fast food worker or

cashier and was, therefore, not disabled. Tr. at 32. Having

resolved the claim at step four, the ALJ did not proceed to step

five.

6 II. STANDARD OF REVIEW

I am authorized to review the pleadings submitted by the

parties and the administrative record and enter a judgment

affirming, modifying, or reversing the Commissioner’s final

decision. See

(g). That review “is limited to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence.” Ward

v. Comm’r of Soc. Sec.,

(1st Cir. 2000). I

“defer to the Commissioner’s findings of fact, so long as they

are supported by substantial evidence.”

(citing Nguyen v.

Chater,

(1st Cir. 1999) (per curiam)).

“[W]hatever the meaning of ‘substantial’ in other contexts, the

threshold for such evidentiary sufficiency is not high.” Biestek

v. Berryhill, ___ U.S. ___,

,

(2019). It means only “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.”

(quoting Consolidated Edison Co. v. NLRB,

,

,

(1938)).

If the Commissioner’s factual findings are supported by

substantial evidence, they are conclusive, even where the record

“arguably could support a different conclusion . . . .” Irlanda

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

(1st

Cir. 1991) (per curiam). The Commissioner’s findings “are not

conclusive when derived by ignoring evidence, misapplying the

7 law, or judging matters entrusted to experts.” Nguyen,

. “Issues of credibility and the drawing of permissible

inference from evidentiary facts are the prime responsibility of

the Commissioner, and the resolution of conflicts in the

evidence and the determination of the ultimate question of

disability is for [him], not for the doctors or for the courts.”

Purdy v. Berryhill,

(1st Cir. 2018) (internal

quotation marks and brackets omitted) (quoting Rodriguez v.

Sec’y of Health & Human Servs.,

(1st Cir.

1981)).

III. ANALYSIS

Smith argues that a remand is required for three principal

reasons: (1) the ALJ failed to properly consider Smith’s non-

severe impairments at step two and thereafter; (2) the ALJ did

not follow SSR 12-2p,

; and (3) the ALJ

improperly gave greater weight to non-examining state agency

consultants than to Smith’s treating and examining medical

sources. Smith’s first argument is dispositive and warrants a

remand. I first address the ALJ’s handling of Smith’s non-severe

impairments at step two. I then discuss his handling of those

impairments at both step three and the RFC calculation stage

that precedes step four.

8 A. Step Two Analysis of Non-Severe Impairments

In his decision, the ALJ determined that Smith’s

fibromyalgia was a severe impairment. Tr. at 18. The ALJ also

determined, however, that there was “no evidence that any other

conditions have met the durational requirements of this program,

or that they create any specific functional limitations

regarding [Smith’s] ability to perform basic work-related

activities” and thus any such conditions were “non-severe.” Tr.

at 24. Smith challenges this determination.

I need not decide whether the ALJ erred by concluding that

Smith’s other impairments were non-severe because “[t]his court

has consistently held . . . that an error in describing a given

impairment as non-severe is harmless so long as the ALJ found at

least one severe impairment and progressed to the next step of

the sequential evaluation.” Chabot v. U.S. Soc. Sec. Admin., No.

13-cv-126-PB,

, at *9 (D.N.H. May 20, 2014).

Had the ALJ not identified fibromyalgia as a severe

impairment, I would need to address whether substantial evidence

supported his conclusion that Smith’s other impairments were

non-severe. Where, as here, the ALJ finds at least one severe

impairment and resolves step two in the claimant’s favor, the

decision not to treat other impairments as severe is, at most,

harmless error. See Hines v. Astrue, No. 11-cv-184-PB,

, at *12 (D.N.H. Mar. 26, 2012), adopted by

9 1393063 (D.N.H. Apr. 20, 2012). Because, in this case, the ALJ

identified fibromyalgia as a severe impairment at step two, the

appropriate question is whether the ALJ adequately addressed the

non-severe impairments after step two. See Lavoie v. Colvin, No.

15-cv-209-PB,

, at *2 (D.N.H. June 24, 2016).

B. Analysis of Non-Severe Impairments after Step Two

In assessing whether a claimant is disabled, an ALJ must

consider “the combined effect of all of a claimant's

impairments[,]” regardless of whether those impairments are

individually classified as “severe.” McDonald v. Sec’y Health &

Human Servs.,

(1st Cir. 1986); see

(d)(2)(B); 20 C.F.R. 404.1523(c). It is “simply a matter of

common sense that various physical, mental, and psychological

defects, each non-severe in and of itself, might in combination,

in some cases, make it impossible for a claimant to work.”

McDonald,

. An ALJ must therefore “consider the

combined effect of all of [a claimant’s] impairments without

regard to whether any such impairment, if considered separately,

would be of sufficient severity.” 20 C.F.R. 404.1523(c); see SSR

96-8P,

, at *5 (July 2, 1996). And, although an

ALJ has “considerable latitude” in how he considers non-severe

impairments, Chabot,

, at *10, he may “not

disregard individual, non-severe impairments where the

claimant's collective impairments are severe,” Forni v.

10 Barnhart, No. 05-cv-406-PB,

, at *8 (D.N.H. Oct.

17, 2006). It is reversible error for an ALJ not to consider a

claimant’s non-severe impairments in conjunction with her severe

impairments at step three and when formulating her RFC. See,

e.g., Lavoie,

, at *3–4 (overturning ALJ’s

decision where claimant’s non-severe depression was not

considered in conjunction with her severe impairments, including

fibromyalgia); Morse v. Colvin, No. 14-cv-18-LM,

, at *8 (D.N.H. Mar. 17, 2015) (remanding case where ALJ

failed to discuss combination of claimant’s severe and non-

severe impairments at step three and at RFC calculation); Forni,

, at *8–9 (concluding that ALJ’s failure to

consider non-severe depression in conjunction with severe asthma

and carpal tunnel syndrome warranted remand); Stephenson v.

Halter, No. CIV. 00-391-M,

, at *2 (D.N.H. Aug.

20, 2001) (ruling that ALJ does not meet requirement of

merely by finding that impairment is not severe

either alone or in combination with other impairments, but must

actually address non-severe impairment when assessing RFC).

Like the ALJs in Lavoie, Morse, Forni, and Stephenson, the

ALJ in this case discussed Smith’s severe and non-severe

impairments individually at step two. Tr. at 18–24. Then, at

step three, he concluded that she did not have “an impairment or

combination of impairments that medically meets or equals a

11 listed impairment.” Tr. 25. In reaching that conclusion,

however, he never once mentioned any of Smith’s non-severe

impairments, let alone discussed how they might, in combination

with her severe fibromyalgia, equal a listed impairment. 4 The

words “migraine,” “Chiari malformation,” “anxiety,” and

“depression” do not appear.

After step three, in determining Smith’s RFC, the ALJ’s

only mention of any non-severe impairments is a reference to

Smith’s testimony that her depression prevented her from

exercising, thereby interfering with her fibromyalgia treatment. 5

Tr. 26. In the RFC calculation, the words “migraine,” “Chiari

malformation,” and “anxiety” are again nowhere to be found. This

suggests that the ALJ did not include Smith’s non-severe

4 Somewhat puzzlingly, the ALJ did consider, albeit in a cursory manner, the “potential effects obesity has in causing or contributing to impairments in other body systems.” Tr. 25. Smith at no point alleged disability based upon obesity, nor do any of the medical reports referenced by the ALJ list obesity as a potentially disabling condition. In fact, the Disability Determination Explanation that Smith appealed to the ALJ lists her BMI as 27.4, Tr. 140, which falls below the National Institutes of Health obesity threshold of 30. See Stedman’s Medical Dictionary 620200 (28th ed. 2006); SSR 02-1p,

, at *2 (Sept. 12, 2002).

5 This interaction between the severe fibromyalgia and non-severe depression is but one example of how an impairment that does not equal a listed impairment on its own might be exacerbated by another, even non-severe, impairment such that the combined effect does rise to the level of a listed impairment. It underscores the importance of considering the various impairments in combination and providing enough explanation of that analysis to allow for judicial review.

12 impairments in his RFC calculation and only considered her

severe fibromyalgia. Cf. Lavoie,

, at *3 (holding

that ALJ’s failure to mention claimant’s depression at RFC stage

suggests it was “impermissibly dropped” from the analysis).

The Commissioner presents two arguments in defense of the

ALJ’s decision, neither of which is persuasive. First, the

Commissioner notes that the ALJ stated that “he had reviewed and

considered all ‘severe’ and ‘non-severe’ impairments in

formulating the RFC.” Defs.’ Mem. of Law in Supp. of Defs.’ Mot.

for an Order Affirming the Decision of the Comm’r. Doc. No. 12-1

at 19 (internal quotation marks omitted). The Commissioner’s own

brief, however, concedes that this language is mere

“boilerplate.” Doc. No. 12-1 at 19. This court has consistently

ruled that a “boilerplate assertion that an ALJ considered all

of the claimant’s impairments in combination, without describing

any actual analysis, is insufficient.” Lavoie,

,

at *4 (internal brackets and quotation marks omitted) (quoting

Morse,

, at *8).

Second, the Commissioner identifies two instances in the

ALJ’s RFC calculation that reference Medical Source Statements

by Dr. Keyes, Tr. 465–72, and Ms. Fonseca, Tr. 918–21, as

evidence to “back[] up that boilerplate.” Doc. No. 12-1 at 19.

The Commissioner’s assertion that Dr. Keyes’s treatment notes

“did not reflect any abnormal mental status findings,” Doc. No.

13 12-1 at 19, are inaccurate, because Keyes’s notes, at minimum,

identify a score of 14 for anxiety and a score of 15 for

depression. Tr. 479. But even if the ALJ’s characterization of

Smith’s mental impairments had been accurate, it would not

remedy the more fundamental concern that he failed to consider

the combined effect of these non-severe mental impairments with

Smith’s severe fibromyalgia. “It is axiomatic that disability

may result from a number of impairments which, taken separately,

might not be disabling, but whose total effect, taken together,

is to render claimant unable to engage in substantial gainful

activity.” Morse,

, at *9 (quoting Walker v.

Bowen,

(4th Cir. 1989)). The SSA’s own ruling on

the evaluation of fibromyalgia further emphasizes the

requirement of “consider[ing] the effects of all of the person’s

medically determinable impairments, including impairments that

are ‘not severe.’” SSR 12-2p,

, at *6. 6

6 Because the ALJ’s failure to consider the impairments in combination is sufficient grounds to remand this case, I need not consider Smith’s argument that the ALJ failed to cite and follow SSR 12-2p. The Commissioner asks me to adopt from other circuits a rule that an ALJ is not required to mention a ruling by name if he substantially complies with it. Doc. No. 12-1 at 14. Even if I were to adopt this rule, the ALJ did not substantially follow SSR 12-2p in this case, as that ruling explicitly requires the ALJ to consider fibromyalgia in combination with other impairments. SSR 12-2p,

at *6. On remand, the ALJ must follow SSR 12-2p in all respects. In the event I am again asked to review the ALJ’s decision, proper citation to SSR 12-2p will assist me in ensuring that the ruling has been followed.

14 Depression and anxiety are both associated with fibromyalgia.

Id. at *3. Courts have found that the interaction of mental

conditions, such as depression, with fibromyalgia can “result[]

in increased pain and suffering.” Barnes v. Astrue, No. 07-2141,

, at *3 (W.D. Ark. Dec. 10, 2008); see also

Hazelton v. Astrue, No. 4:08-2767-TER,

, at *5

(D.S.C. Mar. 19, 2010) (remanding case where “ALJ discussed

[claimant’s] fibromyalgia, anemia, asthma, and depression

separately, but did not discuss her impairments in combination

as required.”). Thus, even though, in this case, the ALJ

credited a medical opinion that the claimant’s mental

impairments resulted in no more than “mild difficulty in

completing activities of daily living,” Tr. 30, he should still

have considered the potentially disabling effects of those non-

severe impairments in combination with Smith’s fibromyalgia in

formulating her RFC.

An ALJ’s opinion “must provide adequate explanation to show

that he had considered the combined effect of the impairments as

to allow proper judicial review.” Lavoie,

, at *4

(quoting Reichenbach v. Heckler,

(4th Cir.

1985)). Where, as here, the ALJ fails to provide such adequate

explanation, his decision is not supported by substantial

evidence and must be remanded for further consideration. See

15 IV. CONCLUSION

For the foregoing reasons, I deny the Commissioner’s motion

to affirm (Doc. No. 12) and grant Smith’s motion to reverse

(Doc. No. 9). Pursuant to sentence four of

(g), I

remand the case to the Social Security Administration for

further proceedings consistent with this Memorandum and Order.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

November 13, 2019

cc: Janine Gawryl, Esq. Michael L. Henry, Esq.

16