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Lynn M. v. Berryhill

United States District Court, D. Vermont

January 8, 2019

LYNN M., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER (DOCS. 12, 15)


         Plaintiff Lynn M. brings this action under 42 U.S.C. § 405(g), requesting reversal of the decision of the Commissioner of Social Security denying her applications for disability insurance benefits (DIB) and supplemental security income (SSI). (Doc. 5.) Pending before the court is Plaintiffs motion to reverse the decision of the Commissioner (Doc. 12) and the Commissioner's motion to affirm (Doc. 15). For the reasons stated below, Plaintiffs motion is DENIED, and the Commissioner's motion is GRANTED.


         Plaintiff was 41 years old on her alleged disability onset date of December 15, 2014. She states that she is unable to work due to severe depression, posttraumatic stress disorder (PTSD), fibromyalgia, and irritable bowel syndrome (IBS). (AR 855.) She asserts that her PTSD stems from a time when she was younger (AR 857-58), and that the symptoms worsened when her parents passed away in 2011 and 2012. (AR 858.) She states that she has experienced severe depression since around the time that her parents died. (See AR 855.) She was also diagnosed with fibromyalgia around that time. (See AR 858-59.) She began experiencing IBS symptoms after her children were born, but testified that the symptoms worsened around 2011. (AR 859-60.)

         Plaintiff is divorced with two adult children. (AR 845.) She lives with her boyfriend. (Id.) She has a driver's license and is able to drive. (AR 846.) She graduated from high school and earned an associate's degree in nursing around 2003, although she was not able to pass the requisite examinations to obtain a nursing license. (Id.) Plaintiffs last employment was at a hair salon, which she left in 2011 to care for her ailing father. (AR 847.) She previously worked as a stock clerk and as a nurse assistant and secretary. (See AR 849-54.)

         Regarding her daily activities, Plaintiff testified that she is able to take care of her personal hygiene. (AR 864.) She does the laundry once a week but testified that it takes her a while to fold the laundry and sometimes she does not fold it at all. (AR 865.) She testified that she could never stand and do a whole sink of dishes. She has no glass in her house because her hands have been going numb since around 2015 and she drops things. She likes to draw and color, and does crochet depending on how her arms and hands feel. She testified that she does a lot of reading and that she walks every day. (Id.) Her doctors have encouraged walking, and she typically walks for 15 minutes down and up her long driveway. (AR 865-66.) Her favorite hobby is gardening, which she does up to a half hour a day, but which she cannot do alone because she sometimes cannot get up off the ground by herself. (AR 866.)

         Plaintiff filed applications for DIB and SSI on March 30, 2015. (AR 913-14.) Her claims were denied initially on June 23, 2015 (id.), and upon reconsideration on July 24, 2015. (AR 947-48.) She requested a hearing, and Administrative Law Judge (ALJ) Joshua Menard conducted a hearing on August 4, 2016. (AR 841-76.) Plaintiff appeared at the hearing and was represented by Marc Pepin. Vocational Expert (VE) James Soldner also testified. ALJ Menard issued an unfavorable decision on September 19, 2016. (AR 2435.) The Appeals Council denied Plaintiffs request for review (AR 1), and she appealed to this court on May 10, 2017. (Doc. 5.)

         ALJ Decision

         Social Security Administration regulations set forth a five-step, sequential evaluation process to determine whether a claimant is disabled. McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). First, the Commissioner considers "whether the claimant is currently engaged in substantial gainful activity." Id. Second, if the claimant is not currently engaged in substantial gainful activity, then the Commissioner considers "whether the claimant has a severe impairment or combination of impairments." Id., Third, if the claimant does suffer from such an impairment, the inquiry is "whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments." Id. Fourth, if the claimant does not have a listed impairment, the Commissioner determines, "based on a 'residual functional capacity' assessment, whether the claimant can perform any of his or her past relevant work despite the impairment." Id.

         Finally, if the claimant is unable to perform past work, the Commissioner determines "whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience." Id.; see 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proving her case at steps one through four. McIntyre, 758 F.3d at 150. At step five, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).

         Employing that sequential analysis in his September 19, 2016 decision, ALJ Menard first determined that Plaintiff has not engaged in substantial gainful activity since December 15, 2014, the alleged onset date. (AR 26.) At step two, the ALJ found that Plaintiffs severe impairments are fibromyalgia syndrome, IBS, a mood disorder, and an anxiety disorder. (AR 27.) The ALJ also found that Plaintiff has other non-severe impairments, including tachycardia and headaches. (AR 28-29.) At step three, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (AR 29.)

         Next, the ALJ concluded that Plaintiff has the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)[1] except as follows:

[S]he can understand, remember and carry out simple, routine tasks. She can occasionally interact with supervisors, co-workers and the public. She can deal with only few changes in a routine work setting with predictable routines. She requires ready access to bathroom facilities. She is limited from pushing/pulling more than 20 pounds occasionally and 10 pounds frequently.

(AR 30.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (AR 33.) At step five, the ALJ considered Plaintiffs age, education, work experience, and RFC, and concluded that there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, including mail clerk, assembler plastic hospital products, and fruit distributor (packing). (AR 34.) The ALJ accordingly concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, from December 15, 2014 through the date of the decision. (AR35.)

         Standard of Review

         The Social Security Act defines disability, in pertinent part, 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." 42 U.S.C. § 423(d)(1)(A). Under the Act, a claimant will only be found disabled if his "impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 423(d)(2)(A).

         In considering the Commissioner's disability decision, the court conducts "a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied." Brault v. Soc. Sec. Admin,, Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)); see also 42 U.S.C. § 405(g). "Substantial evidence means 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Poupore, 566 F.3d at 305 (quoting Consol. Edison Co. of N.Y. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938)). The "substantial evidence" standard is even more deferential than the "clearly erroneous" standard; facts found by the ALJ can be rejected "only if a reasonable factfinder would have to conclude otherwise.'" Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)). The court is mindful that the Social Security Act is "a remedial statute to be broadly construed and liberally applied." Dousewicz v. Harris, 646 F.2d 771, 773 (2dCir. 1981).


         On appeal, Plaintiff argues that the ALJ failed to properly assess her physical limitations associated with fibromyalgia and IBS, and that evidence added to the record by the Appeals Council after the ALJ's decision shows greater mental limitations than the limitations in the RFC. (Doc. 12 at 1, 15.) The Commissioner maintains that the ALJ's decision is supported by substantial evidence and complies with applicable legal standards. (Doc. 15 at 1.)

         I. Physical Limitations-Fibromyalgia

         A. Step-Three Analysis and Listing 14.09

         According to Plaintiff, the "primary problem" with the ALJ's RFC analysis is that the ALJ focused almost entirely on Listing 14.09 and failed to consider the factors in Social Security Ruling 12-2p, 2012 WL 3104869 (July 25, 2012) ("SSR 12-p"), or otherwise conduct a meaningful assessment of her pain symptoms. (See Doc. 12 at 3, 6.) The court accordingly reviews the ALJ's step-three analysis of Plaintiff s fibromyalgia syndrome.

         Having found Plaintiffs fibromyalgia to be a "severe" impairment at step two, the ALJ discussed that impairment at step three to determine whether it meets or medically equals the criteria of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ wrote:

Appendix 1 does not contain a listing for Fibromyalgia Syndrome. However, Social Security Ruling 12-2p establishes that it is appropriate to consider this condition under Listing 14.09 of Appendix 1. This listing describe[s] inflammatory arthritis. It establishes that an individual is disabled based upon the medical evidence alone if, in relevant part, she has persistent inflammation or joint deformity resulting in an inability to ambulate effectively or to perform fine and gross movements effectively. The inability to ambulate effectively means extreme limitation of the ability to ambulate. It is generally defined as having insufficient lower extremity strength to ambulate without the use of an assistive device that affects the use of both upper extremities. The inability to perform fine and gross movements effectively also means extreme limitation of function. It is generally defined as having the inability to perform such tasks as preparing a simple meal and feeding oneself.
In this case, the claimant has consistently maintained normal gait (Exhibit B-1F/33). She does not use an assistive device to ambulate. She has also acknowledged that she engages in activities such as driving, drawing and doing arts and crafts (Exhibit B-11F/10, B-8F/43). Therefore, she is not unable to ambulate or to perform fine and gross movements effectively as contemplated by Listing 14.09 of Appendix 1.

(AR 29.) On appeal, Plaintiff does not argue that her fibromyalgia meets or medically equals the criteria of Listing 14.09. (Doc. 12 at 7.) Instead, she argues that the ALJ improperly limited the RFC assessment to the criteria of Listing 14.09, rather than considering the full set of factors outlined in SSR 12-2p. (Id. at 6; see also Doc. 21 at 1-2.) To assess that argument, the court turns to the ALJ's RFC analysis.

         B. RFC Assessment Encompassed Fibromyalgia Symptoms

         According to Plaintiff, the ALJ's discussion in support of the RFC is "extremely brief and "did not even mention fibromyalgia or the effects of [Plaintiffs] severe pain that results from the disorder." (Doc. 12 at 3.) The Commissioner disagrees, arguing that the ALJ undertook "an extensive analysis of [Plaintiff s] subjective complaints of pain and clinical findings concerning her fibromyalgia throughout his decision." (Doc. 15 at 5.) Plaintiff maintains that the Commissioner "downplay [ed]" the severity of her symptoms. (Doc. 21 at 2.)

         It is true that the ALJ's RFC discussion explicitly mentions "fibromyalgia" only twice (AR 31), and does not mention SSR 12-2p at all. But the ALJ began his RFC analysis by stating the he had carefully considered the entire record and had considered "all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 96-4p." (AR 30-31.) This is consistent with SSR 12-2p, which states that the RFC assessment must be based on "all relevant evidence in the case record" and that consideration must be given to "the effects of all of the person's medically determinable impairments, including impairments that are 'not severe.'" SSR 12-2p, at *6.

         The ALJ then noted that he was required to follow a two-step process to evaluate Plaintiffs symptoms. (AR 31.) This is also consistent with SSR 12-2p, which requires the same two-step process. SSR 12-2p, at *5. First, the ALJ must determine whether there are "medical signs and findings" that show the claimant has a medically determinable impairment "which could reasonably be expected to produce the pain or other symptoms alleged." Id. Second, once a medically determinable impairment is established, the ALJ must "evaluate the intensity and persistence of the person's pain or any other symptoms and determine the extent to which the symptoms limit the person's capacity for work." Id.

         After summarizing Plaintiffs statements about her impairments (including fibromyalgia and medications tried for that impairment), the ALJ wrote:

After careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.

(AR 31.) If the ALJ had stopped there, then the court might agree with Plaintiff that the analysis was insufficient. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (ALJ must set forth the "crucial factors ... with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence"). But the ALJ went on to discuss Plaintiffs daily activities, finding them "inconsistent with her assertion of disabling symptoms," and then reviewed opinion evidence. (AR 32-33.)

         The court accordingly rejects Plaintiffs suggestion that the ALJ's "entire assessment" of her fibromyalgia appeared in the step-three analysis or was limited to considering the criteria of Listing 14.09. (Doc. 12 at 6.) The ALJ plainly had Plaintiffs fibromyalgia in mind in the RFC analysis. He explicitly mentioned fibromyalgia twice in his recitation of Plaintiffs statements (AR 31), and also mentioned Plaintiffs pain in his analysis of the opinion evidence (AR 33).

         The court proceeds to consider Plaintiffs related argument that the ALJ's fibromyalgia analysis was deficient. Plaintiff argues that the ALJ failed to consider the factors enumerated in the regulations. (Doc. 12 at 5.) She also argues that the ALJ erroneously "reject[ed]" opinion evidence from her treating sources. (Id. at 7.) The court considers these arguments in turn.

         C. Enumerated Factors for Evaluation of Fibromyalgia Symptoms

         The ALJ stated that he considered all of Plaintiff s symptoms based on the requirements of 20 C.F.R. §§ 404.1529 and 416.929-regulatory provisions describing how to evaluate symptoms including pain. (AR 31.) Plaintiff argues that the ALJ failed to properly assess her symptoms under § 404.1529. (Doc. 12 at 5.)[2] A brief review of those relevant regulations is therefore warranted.

         Sections 404.1529 and 416.929 instruct that, when evaluating the intensity and persistence of a claimant's symptoms, ALJs must "consider all of the available evidence, including your [the claimant's] history, the signs and laboratory findings, and statements from you, your treating or nontreating source, or other persons about how your symptoms affect you." 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).[3] ALJs are also required to consider medical opinions. Id. The regulations further require consideration of a series of factors relevant to the claimant's symptoms:

(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to ...

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