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Price v. Colvin

United States District Court, N.D. Alabama, Eastern Division

June 28, 2017




         Plaintiff Mary Elizabeth Price (“Plaintiff” or “Price”) brings this action pursuant to Section(s) 205(g) and/or 1631(c)(3) of the Social Security Act (“the Act”), seeking review of the decision of the Commissioner of Social Security (“Commissioner”) denying her claims for a period of disability, disability insurance benefits (“DIB”), and/or Supplemental Security Income (“SSI”). See, 42 U.S.C. §§ 405(g) and/or 1383(c). Based on the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

         I. Proceedings Below

         On February 13, 2013, Plaintiff filed a Title II application for disability insurance benefits. (R. at 212-13). The claim was denied on March 14, 2014. (R. at 148-54). Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on May 15, 2013. (R. at 155-56). On June 24, 2014, a hearing was held before ALJ Tracy S. Guice. (R. at 164). In her December 23, 2014 decision, the ALJ determined Plaintiff not disabled under sections 216(i) and 223(d) of the Act, from February 1, 2012 through the date of the decision. (R. at 91). Following the ALJ's decision, Plaintiff appealed to the Appeals Council. (R. at 69-71). The request for review was denied on May 10, 2015. (R. at 1-7). This denial made the ALJ's decision the final decision of the Commissioner of the SSA, and ripe for this court's review. (R. at 1).

         Prior to the alleged onset of disability, Plaintiff had previously held positions as a legal assistant, paralegal, social worker, and teacher. (R. at 255). Plaintiff testified she had experienced some symptoms prior to the alleged disability onset date, and in 2011 sought treatment in the emergency room for pain, weakness, and fatigue, but received no diagnosis or explanation for her symptoms. (R. at 18). She has not worked since May 2011, citing a hostile work environment as the reason for leaving her last job as a legal assistant.[1] (R. at 35, 255). Plaintiff testified that she experienced some symptoms at the time, but “not enough to keep [her] from working.” (R. at 18, 35). Plaintiff testified to missing work about one day per month due to fatigue.[2] (R. at 35). Plaintiff further testified that by February 2012 she “couldn't do it anymore” and “started going to the doctor, trying to figure [the cause for her symptoms] out.” (R. at 18). Plaintiff alleges she became disabled on February 1, 2012 as a result of fibromyalgia, hypothyroidism, dysautonomia, conversion disorder, depression, anxiety, PTSD, history of vasovagal syncope, vitamin B-12 deficiency, and sleep apnea with restless leg syndrome.[3] (R. at 132, 212).

         Throughout the period of her alleged disability, Plaintiff was treated and/or assessed by two primary care physicians and multiple specialists. (R. at 137-39). She received multiple diagnoses, including fibromyalgia, connective tissue disease, disautonomia, mild obstructive sleep apnea, chronic pain syndrome, spinal stenosis, near syncope, depression, anxiety, and PTSD. (Id.) Plaintiff consistently presented with self-reported severe pain, numbness, weakness, fatigue, trouble concentrating, and dizziness. (R. at 120-23, 560-62, 581-83, 650-52). Plaintiff's treating physicians, performed extensive diagnostic testing and examinations and results were unremarkable excepting trace positive anti-CCP[4], mild stenosis with minimal degenerative changes, and consistent trigger point tenderness. (R. at 441-43, 575-78, 580-84, 590-603). It was noted frequently that Plaintiff experienced no range of motion limitations, synovitis or joint degeneration, or any other type of degeneration frequently experienced with Plaintiff's diagnosed conditions and symptoms. (R. at 580-84). Plaintiff's physicians' characterizations of symptoms varied from qualifying symptoms as severe and debilitating as a result of fibromyalgia to “somewhat vague” with “no clear cause for … pain.” (R. at 425, 577, 985-91).

         Plaintiff's activities of daily living up to and at the time of the ALJ hearing included caring for her pets, practicing yoga, taking short walks when she feels able, watching television, checking email, paying bills, attending church and alcoholics anonymous meetings, and grocery shopping. (R. at 25-28). Plaintiff testified that she only occasionally drives, and often requires assistance from her husband to complete tasks, including grocery shopping. (R. at 26). Plaintiff testified she is able to prepare simple meals for herself, lift around eight pounds, and bathe or shower once or twice per week. (R. at 28, 36). Plaintiff was 49 years old at the time of the hearing. (R. at 15).

         In June 2015, nearly one year after the hearing before the ALJ, Plaintiff's primary care physician completed a “Fibromyalgia Medical Assessment.” (R. at 985-91). The assessment noted that Plaintiff's treatment for fibromyalgia began in September 2011 and met the 2010 diagnostic criteria for fibromyalgia outlined in SSR 12-2P. (Id.). The assessment further noted Plaintiff's self-reported symptoms of objective signs of tenderness, muscle weakness, and fatigue, and stated that all other possible causes for Plaintiff's pain other than fibromyalgia had been ruled out, but that “at times” Plaintiff's symptoms were related to “emotional factors.” (Id.). In the assessment, the physician estimated Plaintiff would be able to sit, stand, and/or walk for less than two hours in an eight-hour work day, could never carry 20 pounds or more, and would likely miss more than four days of work per month. (Id.).

         The Fibromyalgia Medical Assessment, and some of Plaintiff's self-reported symptoms and limitations, conflicted with the Residual Function Capacity Assessment (“RFC”) completed in March 2013 as part of the Disability Determination. (R. at 141-46, 985-91). In the RFC, the examiner assessed that Plaintiff could lift ten to twenty pounds and stand, walk, and/or sit for six hours in an eight-hour work day. (R. at 141). The RFC further placed environmental and postural limitations on Plaintiff. (R. at 143). The Mental RFC, which was included in the same report, described Plaintiff's abilities to carry out detailed instructions, maintain attention and concentration for extended periods of time, interact appropriately with the general public, accept instructions and criticism, and get along with coworkers as “moderately limited.” (Id.) No significant limitations were placed on the remaining categories. (R. at 141-44). Notably, the examination declared Plaintiff's statements regarding symptoms as only “partially credible, ” and those regarding intensity, persistence, and functionally limiting effects as not supported by the objective medical evidence alone. (R. at 140-41).

         At the hearing, when given hypotheticals with factors and limitations similar to those indicated in Plaintiff's RFC, the Vocational Expert (“VE”) testified that someone similarly situated to Plaintiff could not performed her past work, but there are at least three jobs in significant numbers in the national economy that such a person could perform. (R. at 38-39). The VE further testified that under those same circumstances, if the hypothetical claimant were to miss more than two days of work per month, no suitable work would exist in the national economy. (R. at 40).

         II. ALJ Decision

         Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520. First, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is work that is done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant has a severe medically determinable impairment (“MDI”) or a combination of medical impairments that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether the claimant's impairment meets or medically equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).

         If the claimant does not fulfill the requirements necessary to be declared disabled under the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ must first determine the claimant's residual functional capacity (“RFC”), which refers to the claimant's ability to work despite her impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the ALJ determines that the claimant is capable of performing past relevant work, then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to perform past relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether the claimant is able to perform any other work commensurate with her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove the existence, in significant numbers, of jobs in the national economy that the claimant can do given her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c).

         The SSA has further expanded the process specifically for fibromyalgia disability claims in SSR 12-2p policy interpretation ruling which serves to “provide[] guidance on how we develop evidence to establish . . . [an MDI] of fibromyalgia . . . and how we evaluate [fibromyalgia] in disability claims.” 77 Fed. Reg. 43, 640-01(July 25, 2012). SSR 12-2p states that if a disability claim is based wholly or in part on fibromyalgia, the claimant's symptoms must be considered. Id. Fibromyalgia is a MDI and can be the basis for disability if established by appropriate medical evidence from an accepted medical source, including but not limited to “longitudinal records reflecting ongoing medical evaluation and treatment.” Id. SSR 12-2p specifically requires that a diagnosis alone cannot serve as the basis for establishing an MDI of fibromyalgia; rather, the evidence must document physician-reviewed medical history and physical exams to determine whether “consistent with the diagnosis of fibromyalgia . . . symptoms have improved, worsened, or remained stable over time, and establish the physician's assessment over time of the person's physical strength and functional abilities.” Id. Specifically, the claimant must not only be diagnosed with fibromyalgia, but meet the criteria outlined in either the 1990 American College of Rheumatology Criteria for the Classification of Fibromyalgia[5] or the 2010 ACR Preliminary Diagnostic Criteria.[6] Id. The five-step test outlined above is not altered under SSR 12-2p. Id. Fibromyalgia is not a listed impairment, so under step three, fibromyalgia must medically equal a listed impairment either on its own or in combination with one or more other MDIs. Id. If the claimant's fibromyalgia or combination of that condition and any other MDIs do not medically equal a listed impairment, an RFC assessment will be required. Id. Due to the waxing and waning of fibromyalgia symptoms, the claimant's longitudinal medical and treatment record is considered. Id. The usual vocational considerations are applied with the inclusion of symptoms typically associated with fibromyalgia: widespread pain, fatigue, and/or other fibromyalgia symptoms resulting in exertional limitations, non-exertional physical or mental limitations, and/or non-exertional environmental limitations. Id. It is noted that adjudicators must specifically consider the possibility of these limitations, which may “erode [the] occupational base . . . preclud[ing] the use of a rule in appendix 2 to direct decision, ” requiring the use of rules in appendix 2 as a framework and/or a vocational expert. Id.

         SSR 12-2p further outlines the two-step process for evaluating claimant's statements regarding symptoms and functional limitations. Id. First, medical signs and findings must show that the claimant has “a MDI(s) which could reasonably be expected to produce the pain or other symptoms alleged.” Id. As fibromyalgia is a MDI, this first step is satisfied. Second, in evaluating the intensity and persistence of the symptoms and the extent to which they may limit ability to work, if a claimant's statements are not substantiated by objective medical evidence, “all of the evidence in the case record, including the person's daily activities, medications or other treatments the person uses, or has used, to alleviate symptoms; the nature and frequency of the person's attempts to obtain medical treatment for symptoms; and statements by other people about the person's symptoms, ” is considered. Id. Credibility is to be determined in accordance with SSR 96-7p[7], requiring examination of the individual's daily activities; location, duration, frequency, and intensity of pain or other symptoms; factors that precipitate and aggravate symptoms; type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; any measures other than treatment the individual uses or has used to relieve pain or other symptoms; and any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. Id.

         Here, the ALJ determined that Plaintiff had not engaged in substantial gainful activity during the period of alleged disability and had the following severe MDI's: “fibromyalgia; sleep apnea; history of dysautonomia; status post esophageal benign tumor removal; mild cervical stenosis; arthralgias; major depressive disorder; generalized anxiety disorder; and posttraumatic stress disorder.” (R. at 79). As such, the ALJ determined steps one and two of the five-step process were satisfied. (R. at 79). However, the ALJ determined that none of Plaintiff's severe MDIs met or medically equaled a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1. (R. at 80). The ALJ specifically noted that no examining or treating physician has reported otherwise, nor does fibromyalgia, arthralgia, or sleep apnea “result in the marked functional limitations that would suggest medical equivalence to any listed impairment.” (R. at 80). The ALJ further stated that she considered the entire record, including Plaintiff's testimony, and analyzed all listings. (R. at 80-81). As step three of the five-step process was not satisfied, the ALJ performed an RFC assessment in accordance with steps four and five of the five-step process. (R. at 80-89).

         The ALJ determined that Plaintiff did not have the RFC to perform past relevant work. (R. at 90). However, the ALJ determined that Plaintiff did have the RFC “to perform a reduced range of light work” including the ability to lift and carry ten to twenty pounds, sit for six hours, stand or walk for 4 hours, balance and climb, perform simple routine tasks, sustain concentration and attention for two hours, and tolerate occasional non-transactional interactions with the public. (R. at 81-89). The ALJ included exertional, postural, environmental, and mental limitations in her determination. Id. After considering Plaintiff's RFC, education, work experience, and age, the ALJ determined there are jobs Plaintiff could perform that exist in ...

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