JACOB P. HART, Magistrate Judge.
Christina Faith Kennedy brought this action under 42 USC §405(g) to obtain review of the decision of the Commissioner of Social Security denying her claim for Disability Insurance Benefits ("DIB"). She has filed a Request for Review to which the Commissioner has responded. As set forth below, Kennedy's Request for Review will be denied, and judgment granted in favor of the Commissioner.
Kennedy was born on March 21, 1976. Record at 142. She obtained a college degree. Record at 177. She worked in the past as an administrator in several personal care homes for the elderly. Record at 178.
On March 2, 2015, Kennedy filed her application. Record at 142. In it, she asserted disability as of November 10, 2014, as a result of benign hypermobility joint syndrome, fibromyalgia, chronic fatigue and pain, restless leg syndrome, sleep disturbance, depression, anxiety, and cognitive impairment. Record at 142, 176. At her hearing, Kennedy amended her onset date to May 1, 2015, and withdrew her claims of mental illness. Record at 33.
Kennedy's application for benefits was denied on May 13, 2015. Record at 71. She then sought de novo review by an Administrative Law Judge ("ALJ"). Record at 80. A hearing took place in this matter on August 29, 2017. Record at 29. On September 19, 2017, however, the ALJ issued a written decision denying benefits. Record at 12. The Appeals Council denied Kennedy's request for review, permitting the ALJ's decision to stand as the final decision of the Commissioner. Record at 3. Kennedy then filed this action.
The role of this court on judicial review is to determine whether the Commissioner's decision is supported by substantial evidence. 42 U.S.C. §405(g);
To prove disability, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him from engaging in any `substantial gainful activity' for a statutory twelve-month period." 42 U.S.C. § 423(d)(1). As explained in the following agency regulation, each case is evaluated by the Commissioner according to a five-step process:
20 C.F.R. § 404.1520 (references to other regulations omitted).
The ALJ determined that Kennedy suffered from the severe impairments of mild sleep apnea, periodic limb movement disorder, benign hypermobility syndrome and possible Ehlers-Danlos syndrome. Record at 18. He found that no impairment, and no combination of impairments, met or medically equaled a listed impairment. Record at 19.
The ALJ found that Kennedy retained the following residual functional capacity ("RFC"):
Record at 19-20.
Relying upon the testimony of a vocational expert who appeared at the hearing, the ALJ determined that Kennedy could work as a small products assembler, light product inspector, or packer. Record at 23. He concluded, therefore, that she was not disabled.
In her Request for Review, Kennedy raises these arguments: (1) the ALJ wrongly failed to consider certain evidence of impairment; (2) the ALJ wrongly failed to credit the opinions offered by treating care providers; (3) the ALJ erred in failing to identify fibromyalgia as a severe impairment; (4) the ALJ erred in failing to identify the intervals at which Kennedy must alternate sitting and standing; (5) the ALJ wrongly relied on the "sit and squirm test"; and (6) the ALJ failed to consider Kennedy's excellent work history.
In ten pages of her brief, Kennedy identifies over fifteen individual treatment notes which she claims were either ignored or misinterpreted by the ALJ. Brief at 11-21. She also complains that the ALJ failed to evaluate the Disability Report she filed in connection with her application, and wrongly handled the evidence of Ehlers-Danlos syndrome.
In a case such as this, with several hundred pages of medical evidence, an ALJ's duty to consider and evaluate the medical evidence clearly does not compel him to discuss every treatment note in his decision.
There is some confusion, both on the part of the ALJ, and on the part of Kennedy's counsel, regarding Ehlers-Danlos syndrome. As Kennedy notes, the ALJ expressed some skepticism at the hearing regarding the origin and reliability of the diagnosis. Record at 39-40. Kennedy's counsel agreed at the hearing that the actual Ehlers-Danlos diagnosis was missing from the record. Record at 41.
Apparently, however, joint hypermobility syndrome is a mild form of Ehlers-Danlos syndrome.
Accordingly, the ALJ was mistaken when he wrote in his decision that the record did not "reflect such a diagnosis or assessment." Record at 18. However, the ALJ went on to write: "Even so, the undersigned gives the claimant the benefit of the doubt, and has considered the symptoms of this alleged condition in forming the residual functional capacity below."
As to the ALJ's treatment of the evidence, some of Kennedy's criticisms are based on factual error. For one thing, she has accused the ALJ of failing to discuss a treatment note regarding April 15, 2015, MRIs of her cervical and lumbar spine, and of mistakenly writing that the MRI was of her "left hand." Brief at 14,
Later in his decision, moreover, the ALJ correctly cited a January 30, 2016, letter to Dr. Morris from Premier Imaging which described a normal MRI of Kennedy's left hand. Record at 20, 494. This was significant because, a month earlier, Kennedy appeared at the Paoli Hospital emergency room complaining of pain in her left hand and left leg. Record at 550.
Kennedy also complains that the ALJ ignored evidence of muscle strains: an April, 2015, MRI of her right ankle, and December 15, 2015, testing of her left shoulder. Record at 340, 341. These muscle strains would not be important for Social Security purposes unless the strain lasted twelve months or more. They could also be important in showing a series of injuries which supported Dr. Morris's diagnosis of Ehlers-Danlos syndrome/benign hypermobility syndrome. In that case, however, the ALJ's failure to mention them was clearly not harmful since he accepted that diagnosis.
Most of the other records which the ALJ did not mention contain primarily subjective complaints of pain and lethargy. The ALJ recognized that "the claimant testified to having a myriad of problems and pain issues at the hearing, in addition to problems with fatigue." Record at 20. Perhaps this was overly cursory, and the ALJ should have acknowledged that Kennedy's testimony was supported by consistent complaints over the years to multiple physicians. Nevertheless, even this brief description of Kennedy's testimony indicates that ALJ was aware of her subjective allegations.
Further, as the ALJ noted, "there was also doubt expressed by at least two medical examiners concerning the consistency, or lack thereof, of the claimant's symptoms with the objective physical exams and test results." Record at 20. The ALJ cited records from a May 9, 2017, incident where Kennedy appeared at Paoli Hospital's emergency room with complaints of severe head and neck pain, as well as dizziness, left-sided weakness, and hallucinations. Record at 370. After obtaining normal CT results, a review of recent blood work, and excluding migraine and trauma, the emergency room staff wrote that it could not identify an "emergent explanation" for Kennedy's symptoms. Record at 373. They also noted: "Unable to raise L leg on exam, but able to ambulate to the bathroom without trouble, moving legs when I am not in the room." Record at 371.
Somewhat similarly, George J. Hart, MD, FAAN, a neurologist at Bryn Mawr Hospital reported on May 15, 2017, that "there was poor effort in left lower extremity". Record at 375. He wrote: "I see no clear etiologies from the standpoint [sic "neurological standpoint"?] for any of her complaints."
The ALJ also cited a physical therapy evaluation dated July 14, 2017. Record at 527. There, the therapist wrote that Kennedy showed "apparent difficulty in completing volitional movements with the left lower extremity upon command, although a display of effort with facial grimacing and altered breathing is noted." Record at 530. This, despite the fact that her gait was almost normal, her muscles appeared normal on distraction testing, and no atrophy was present in the leg.
Kennedy argues that the ALJ's use of the physical therapy note was unfair, because she is claiming to suffer from an atypical cause of musculoskeletal weakness. Whether or not there is any medical basis for this claim that no organic cause is observable for weakness caused by Ehlers-Danlos syndrome, this certainly does not explain the several observations of poor effort.
The Commissioner has also pointed out that Madeleine Heaney, MD, Kennedy's primary case physician, wrote on July 17, 2017, that Kennedy gave "variable effort on formal testing", and had normal muscle tone and bulk. Record at 432. She added: "Very dramatic description of symptoms."
As a whole, therefore, it does not appear that the ALJ "cherry-picked" evidence. Rather, it seems that, despite Kennedy's persistent complains of pain and fatigue, the evidence of poor effort led the ALJ to conclude that — while Kennedy was limited by her impairments — she was not disabled.
Dr. Heaney, the primary care physician, submitted a Medical Source Statement dated April 29, 2015. Record at 324. In it, she indicated that Kennedy could sit for four hours at a time and for seven hours in an eight-hour workday, and could stand or walk for only two hours in an eight-hour workday. Record at 325. She also opined that Kennedy could reach, handle, finger, feel and push/pull only occasionally. Record at 326. Dr. Heaney attributed these limitations to chronic musculoskeletal pain "especially in hands", fatigue, and a torn Achilles tendon in the right ankle. Record at 325, 326.
The ALJ wrote:
Record at 21. (Internal citations omitted).
Kennedy argues that Dr. Heaney's findings were consistent with Dr. Morris's notes. However, the notes that Kennedy cites only reflect her subjective complaints of hand pain. As discussed above, the ALJ discussed the normal January 30, 2016, MRI of Kennedy's left hand. Record at 20, 494. As also noted, EMG and nerve conduction testing was normal in all four of Kennedy's extremities. 20, 444. Kennedy also points to November 30, 2016, treatment notes by rheumatologist Liliane Min, MD. However, Dr. Min noted only "mild swelling" in two metacarpals on Kennedy's left hand, which was noted to be "non tender." Record at 367. Dr. Heaney's report was written before all of the foregoing occurred.
It is also notable that the state agency reviewing physician, Michael Brown, DO, found on May 13, 2015, that Kennedy had no medically determinable impairment at all. Record at 68. He cited a November 21, 2014, note from Paoli Hospital which described Kennedy as a patient "with neurologic symptoms and completely negative physiologic workup." Record at 270. The ALJ, however, gave Dr. Brown's opinion little weight, finding that the record did contain evidence of physically determinable impairments. Record at 21.
Clearly, the ALJ did not find that either Dr. Heaney's opinion or Dr. Brown's opinion fully captured the contents of the medical record. For this reason, he reached an RFC assessment which described limitations somewhere between those described by Dr. Heaney and Dr. Brown. He appropriately supported his decision with accurate citations to the medical evidence. In these circumstances, there is no apparent error in the ALJ's treatment of Dr. Heaney's report.
In his decision, the ALJ explained that he did not find Kennedy's fibromyalgia to be a medically determinable impairment because "it [did] not appear that the requirements of Social Security Ruling 12-2p were met." Record at 18. The ALJ explained at the hearing that he could not find that other disorders which might cause Kennedy's joint pain had been ruled out, as the ruling required. Record at 41-2. Social Security Ruling 12-2p precludes the Agency from finding a medically determinable impairment of fibromyalgia unless "there is evidence that other disorders were excluded as possible causes of the pain."
Kennedy claims the ALJ erred in this regard. She points out that Dr. Morris, who originally diagnosed her with Ehlers-Danlos syndrome, diagnosed her with fibromyalgia on March 1, 2015, and thereafter treated the two as separate diagnoses. Record at 330, 356. Dr. Morris also found Kennedy to suffer from the painful "trigger points" which are characteristic of fibromyalgia.
The ALJ did not ignore this issue, however. At the hearing, he stated that the finding of trigger points was not satisfactory for the purposes of SSR 12-2p, because Ehlers-Danlos/hypermobility was never ruled out as a source for Kennedy's pain. Record at 42-3. In other words, for the ALJ to find that fibromyalgia was a medically determinable impairment, that diagnosis would have to supplant Ehlers-Danlos, and not merely co-exist with it, because they both caused the same symptoms of muscle pain (and, he might have added, fatigue). As a practical matter, because both ailments cause the same symptoms, the ALJ's evaluation of Kennedy's functioning with Ehlers-Danlos/benign hypermobility syndrome was identical to the analysis he would have made if he had found fibromyalgia to be a severe impairment.
It should be noted that, if the ALJ had only a diagnosis of fibromyalgia before him, Kennedy's normal objective testing would have seemed less significant, because it is widely accepted that those who suffer from fibromyalgia frequently have normal testing.
Nevertheless, even in fibromyalgia cases, the ALJ must compare the objective evidence to the claimant's subjective complaints in determining the extent to which a claimant is limited, and is permitted to reject plaintiff's subjective testimony as long as he provides a sufficient explanation for doing so.
Kennedy maintains that the ALJ erred in finding that she needed a sit/stand option without specifying the intervals at which she would need to alternate sitting and standing. She points to the vocational expert's testimony that the jobs available would depend on whether an individual could alternate every hour, or every ten to fifteen minutes. Record at 59-61.
The jobs identified by the ALJ in his decision as suitable for Kennedy, however, all provided the opportunity to sit and stand at will. Record at 60-61. In other words, all of the jobs identified by the ALJ would permit Kennedy to alternate sitting and standing at any interval she chose. Clearly, the ALJ did not err in this regard.
In his decision, the ALJ wrote:
Record at 21.
It has long been decided in this Circuit that an ALJ cannot base his decision on his own unsupported lay observations of a client's behavior at the hearing.
Kennedy claims that the ALJ here wrongly relied on the "sit and squirm" test "rather than examining the record and considering objective medical evidence." Brief at 27. She may be correct to the extent that the ALJ's opinion as to whether she seemed "comfortable" may be even less probative than the ALJ himself admitted. It is unclear whether the ALJ was, in fact, entitled to rely on his opinion in this regard at all. In
Nevertheless, the ALJ clearly did not rely on his own observation rather than on the medical record. As described in the other sections of this opinion, the ALJ thoroughly discussed the medical record, including a great deal of objective testing. His opinion is therefore supported by substantial evidence even if the comment set forth above is ignored. For this reason, remand is not necessary to address this issue.
Finally, Kennedy argues that the ALJ erred in failing to consider her "excellent" work history. She worked steadily for seven years, took seven years off when her children were small, and then worked steadily for another six years. Record 151-2.
The Social Security regulations provide that a claimant's prior work record is one of many factors which an ALJ will consider in evaluating the claimant's symptoms. 20 CFR §404.1529(c)(3). Kennedy has cited this regulation, and has also cited a number of cases which provide that a good work history enhances a claimant's "credibility."
The cases Kennedy has cited are somewhat outdated. As explained in SSR 16-3p, the agency has now rejected the concept of a "credibility" finding, because "subjective symptom evaluation is not an examination of an individual's character." 2017 WL 5180304 at *2 (October 25, 2017). The ruling states:
As such, it is not clear how much importance can be given to factors which are irrelevant to Kennedy's symptoms during her claimed period of disability, such as her employment history. In any case, even when a claimant's "credibility" was at issue, his or her work history was not dispositive of the issue, and a failure to discuss it did not require remand.
In accordance with the above discussion, I conclude that the decision of the Appeals Council should be affirmed, and judgment entered in favor of the Commissioner.
