JOHN J. O'SULLIVAN, District Judge.
THIS MATTER is before the Court on the Plaintiff's Motion for Summary Judgment with Supporting Memorandum of Law (DE#18, 10/22/2014) and the Defendant's Motion for Summary Judgment with Supporting Memorandum of Law and Response to Plaintiff's Motion for Summary Judgment (DE#21, 12/19/2014). The plaintiff seeks remand and reversal of the decision of the Secretary of Social Security denying the plaintiff's eligibility for Period of Disability and Disability Insurance Benefits. In the alternative, the plaintiff requests a remand for further administrative proceedings. The complaint was filed pursuant to the Social Security Act, 42 U.S.C. §405(g) (hereinafter "Act"). This case is properly before the Court for judicial review of a final decision of the Social Security Administration (hereinafter "SSA"). The parties consented to Magistrate Judge jurisdiction and this matter was referred to the undersigned pursuant to Judge Moreno's Order dated August 15, 2014 (DE #13, 8/15/14). Having carefully considered the filings and applicable law, the undersigned enters the following Order.
On July 3, 2011, the plaintiff protectively filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401
The ALJ found on May 22, 2013, that the plaintiff was not disabled within the meaning of the Act. (Tr. 21-37). The plaintiff submitted a Request for Review of Hearing/Decision Order on June 7, 2013. (Tr. 16-17). On August 1, 2013, the Appeals Council (AC) provided the plaintiff with 25 days to send additional evidence for consideration. (Tr. 7). The plaintiff provided an additional brief and "Quick Note" treatment record from Richard Chang, M.D. (Tr. 4). The AC denied the plaintiff's request for review on April 24, 2014. (Tr. 1-6). The Order of the AC considered the additionally submitted evidence and made it part of the record. ( Tr. 1-5). The ALJ's decision stands as the Commissioner's final decision. Judicial review of the Commissioner's final decision is permitted by Section 205(g) of Title II of the Social Security Act, 42 U.S.C. § 405(g).
The plaintiff was born on January 19, 1965. (Tr. 49-50, 174). The plaintiff has three years of college education but does not have a bachelor's degree. (Tr. 50). The plaintiff previously worked as a bookkeeper. (Tr. 50-54). The plaintiff alleges that she suffers from lupus, fibromyalgia, severe depression, lumbar hernias, back injury and thyroid nodules.
Between 2007 and 2013, the plaintiff was observed or treated by multiple physicians regarding her lupus and depression. (Tr. 461, 477, 447-49, 496-97). The plaintiff was eventually also treated for her later diagnosed fibromyalgia. (Tr. 498). In November 2007, the plaintiff's physician was Rafael F. Rivas-Chacon, M.D.. Dr. Rivas-Chacon gave an impression of cutaneous lupus, polyarthralgias and depression. (Tr 400).
The plaintiff treated with three doctors during and after the alleged onset date of disability: her primary care physician, Dr. Rene Gomez. (Tr. 56); Dr. Chang, a board certified Rheumatologist from May 2011 until December 2012 (Tr. 56, 496-97); and a psychiatrist, Dr. Delgadillo starting in December 2011. (Tr. 56, 461 ).
Prior to the amended May 2, 2011, onset date, the plaintiff was examined by Jamie A. Pachon, M.D. at the request of Dr. Gomez. (Tr. 372-73). In Dr. Pachon's letter to Dr. Gomez, he stated the plaintiff's past medical history included a multitude of symptoms and also stated the plaintiff "carrie[d] a diagnosis of discoid lupus erthematosus." (Tr. 372). On February 16, 2010, Dr. Pachon's progress note indicated that the plaintiff had a tender point and "muscular back pain." (Tr. 370). At the plaintiff's next visit, Dr. Sheldon, another physician at Dr. Pachon's office, indicated that the plaintiff had multiple tender points and assessed that the plaintiff had suspect fibromyalgia symptoms on a progress report dated April 12, 2011. (Tr. 369).
Between May 2011 and December 2012, the plaintiff was treated by Dr. Richard Chang, M.D., a board certified Rheumatologist. (Tr. 496-97). On May 2, 2011, the plaintiff filled out a patient questionnaire that asked her to list any medical problems or surgeries she had. (Tr. 445) The plaintiff only listed lupus.
Dr. Chang also ordered tests to be performed on the plaintiff. (Tr. 447-49). On May 18, 2011, the plaintiff had a Lumbar Spine MRI performed and a Chest 2-Views x-ray.
The plaintiff saw a psychiatrist, Noel Delgadillo, M.D., between December 9, 2011, and March 20, 2013. (Tr. 461).
On April 10, 2013, Dr. Chang gave an oral sworn statement, taken before Marcela Losh, a Certified Court Reporter and Notary Public in and for the State of Florida, regarding his treatment of the plaintiff. (Tr. 494-503). Dr. Chang indicated during the oral sworn statement that he is a board certified rheumatologist. (Tr. 496). Dr. Chang stated that his diagnosis of the plaintiff is that: "[s]he has lupus, fibromyalgia, depression and lumbar spine disc herniation and sciatica." (Tr. 497). Dr. Chang's diagnosis of the plaintiff's lupus was based on a skin biopsy and the fibromyalgia was based on a clinical diagnosis of the patient exhibiting at least 11 of the 18 tender points on her body. (Tr. 497-98).
When asked about the plaintiff's symptoms, by Lyle Lieberman, Esq., during the oral sworn statement, Dr. Chang responded that her lupus symptoms included "skin rash, fatigue, hair loss, skin rash under the sun ... dry eyes and mouth, sores in the mouth, a history of miscarriage." (Tr. 498). Dr. Chang stated that the plaintiff's symptoms of fibromyalgia symptoms included "fatigue, poor sleep and significant widespread body pain."
Dr. Chang further testified during the oral sworn statement, that the plaintiff's impairments would limit the plaintiff's ability to sit or stand while on the job to "no more than three to four hours per day." (Tr. 501 ). When given the meaning of sedentary work under section 404.1567(a) of the Social Security regulations, Dr. Chang opined that the plaintiff would not be able to perform the level of sedentary work for eight hours a day, forty hours a week, on a sustained basis. (Tr. 500-01 ).
On August 18, 2013, Richard Chang, M.D., electronically signed a "Quick Note" regarding the plaintiff. (Tr. 505). In the "Quick Note" Dr. Chang opined that the plaintiff
(Tr. 505).
The additional evidence supplied by Dr. Chang was received by the AC and made part of the record. (Tr. 5). The additional evidence supplied by Dr. Chang was considered by the AC. (
On September 2, 2011, the plaintiff had a Medical Disability and Social Security Examination. (Tr. 425). Dr. Michael Feldman was the examining physician. (Tr. 427). Dr. Feldman conducted a physical examination of the plaintiff, including an examination of extremities/musculoskeletal and neurologic exam. (Tr. 425-426). During the plaintiff's physical examination, Dr. Feldman observed that the plaintiff had a rash on her face with "plaque like formations on the malar areas as well as rash upper extremities." (Tr. 426). Upon extremities/musculoskeletal examination, Dr. Feldman noted the plaintiff had "[a]ntalgic gait due to low back pain," and "defers stooping due to low back pain and pain is at L5-S1 and coccyx area."
On the neurologic exam, Dr. Feldman explained that the plaintiff's sensory examination was intact and her motor exam was within normal limits except for the abnormal gait.
(Tr. 427)(emphasis added).
The plaintiff was also referred by the Social Security to Dr. MontesDeOca's office for a general clinical evaluation with mental status for disability evaluation on her claim. (Tr. 432-435). The plaintiff's examination focused on "assessing the nature and extent of her alleged depression." (Tr. 432). The plaintiff's evaluation took place on September 6, 2011. (Tr. 432). The plaintiff was examined by Ailyn Penate, M.S., a Psychometrician/Psychological Trainee under Gloria MontesdeOca, Ph.D., a Licensed Psychologist. (Tr. 435). The evaluator's diagnosis of the plaintiff was as follows:
(Tr. 435). The report concluded that the plaintiff's "prognosis is good ... [a] by history diagnosis has been given, as she is currently with psychiatric treatment and no other symptom was observed during the evaluation. The evaluator recommends the following: Continue psychiatric evaluation." (Tr. 434).
At the ALJ hearing on April 29, 2013, Dr. Charles L. Cooke testified as a Medical Expert on behalf of the Social Security Administration. (Tr. 63-64). Dr. Cooke testified that he thought the record, as it stood on April 29, 2013, was sufficient to render an opinion in the case. (Tr. 64). During his examination, Dr. Cooke testified to the plaintiff's diagnosis of discoid lupus and confirmed the diagnosis. (Tr. 65). Dr. Cooke denied that the plaintiff's discoid lupus fell under a listing. (Tr. 66-67). Dr. Cooke further testified that the plaintiff's possible carpel tunnel syndrome similarly did not meet a listing. (Tr. 67). With respect to the plaintiff's depression, Dr. Cooke did not think there was sufficient information for him to evaluate because he is not a psychiatrist or a psychologist. (Tr. 67-68). Thereafter, Dr. Cooke moved on to discuss the plaintiff's lower back pain. (Tr. 68). Dr. Cooke considered the plaintiff's MRI which revealed herniated disks and an annular tear. (Tr. 68-69). Dr. Cooke stated "these are legitimate and for real causes the pain," but because he did not find radiculopathy, he opined the plaintiff did not meet a listing for spinal stenosis
Dr. Cooke explained his familiarity with the American College of Rheumatology standard for diagnosis of fibromyalgia.
"Disability" is defined as the "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted or can last for a continuous period of not less than twelve months...." 42 U.S.C. §§ 416(I); 423(d)(1); 20 C.F.R. § 404.1505 (2005). The impairment(s) must be severe, making the plaintiff "unable to do his previous work ... or any other kind of substantial gainful work which exists in the national economy ..." 42 U.S.C. § 423(d)(1); 20 C.F.R. § 404.1505-404.1511 (2005).
To determine whether the plaintiff is entitled to disability benefits, the ALJ must apply a five-step analysis. 20 C.F.R. § 404.1520(a)-(f). The ALJ must first determine whether the plaintiff is presently employed or engaging in substantial gainful activity. If so, a finding of non-disability is made and the inquiry ends.
Second, the ALJ must determine whether the plaintiff suffers from a severe impairment or a combination of impairments. If the plaintiff does not, then a finding of non-disability is made and the inquiry ends.
Third, the ALJ compares the plaintiff's severe impairments to those in the listings of impairments located in Appendix I to Subpart 404 of the Code of Federal Regulations. 20 C.F.R. § 404.1520(d), Subpart P, Appendix I. Certain impairments are so severe, whether considered alone or in conjunction with other impairments, that if such impairments are established, the regulations require a finding of disability without further inquiry into the plaintiff's ability to perform other work.
Fourth, the ALJ must determine whether the plaintiff has the "residual functional capacity" to perform his or her past relevant work. "Residual functional capacity" is defined as "what you can do despite your limitations." 20 C.F.R § 404.1545(a)(1). This determination takes into account "all relevant evidence," including medical evidence, the claimant's own testimony, and the observations of others. 20 C.F.R § 404.1545(a)(1). If the plaintiff is unable to perform his or her past relevant work, then a prima facie case of disability is established and the burden of proof shifts to the Commissioner to show at Step 5 that there is other work available in the national economy which the plaintiff can perform. 20 C.F.R. § 404.1520(e)-(9);
Fifth, if the plaintiff cannot perform his or her past relevant work the ALJ must decide if he or she is capable of performing any other work in the national economy.
On May 22, 2013, the ALJ found that the plaintiff was not disabled under the relevant sections of the Act. (Tr. 37).
At step one, the ALJ found that the plaintiff was not presently participating in and had not participated in substantial gainful activity since the amended alleged onset date of disability.
In the ALJ's evaluation of claimant's fibromyalgia, the ALJ considered two sets of criteria for diagnosing fibromyalgia: the 1990 American College of Rheumatology Criteria for the Classification of Fibromyalgia; and the 2010 American College of Rheumatology Preliminary Diagnostic Criteria.
When considering the plaintiff's fibromyalgia claim, the ALJ accorded "less than controlling weight" to the treating rheumatologist, Dr. Chang because his opinion was "inconsistent with his clinical notes and largely based on the claimant's self reports. It [was] also inconsistent with the clinical and diagnostic testing from Dr. Chang and other treating sources."
The ALJ next found that the plaintiff did have the RFC to "perform the full range of sedentary work as defined in 20 CFR 404.1567(a)." (Tr. 30). The ALJ further stated that:
(Tr. 30). At the same time, the ALJ warned that the plaintiff should avoid sedentary range work that would involve "concentrated exposure to extreme heat and cold; exposure to vibrating surfaces; or moving mechanical parts. She should avoid concentrated exposure to fumes, noxious odors, gases and poor ventilation, as well as humidity and wetness. She is limited to moderate exposure to noise. The claimant should avoid working in direct sunlight." (Tr. 30).
Furthermore, at step four, the ALJ, aided by the Vocational Expert's testimony, found that the plaintiff was unable to perform any past relevant work. (Tr. 36).
Thereafter, the ALJ found that
(Tr. 37). The ALJ, directed by Medical-Vocational Rule 201.21, concluded the plaintiff was "not disabled" as defined by the Act. (Tr. 37).
The Court must determine whether it is appropriate to grant either party's motion for summary judgment. Judicial review of the factual findings in disability cases is limited to determining whether the record contains substantial evidence to support the ALJ's findings and whether the correct legal standards were applied. 42 U.S.C § 405 (g);
The restrictive standard of review, however, applies only to findings of fact. No presumption of validity attaches to the Commissioner's conclusions of law, including the determination of the proper standard to be applied in reviewing claims.
The reviewing court must be satisfied that the decision of the Commissioner is grounded in the proper application of the appropriate legal standards.
The plaintiff challenges the ALJ's decision of May 22, 2013, and asserts that the "Commissioner erred as a matter of law in determining that she is not disabled and issued a decision which was not based on substantial evidence."
The plaintiff argues that the ALJ improperly discounted the treating physician's opinion because the treating physician's testimony affirmed claimant's fibromyalgia and further stated that the claimant had exhibited at least 11 of the 18 trigger points. (Tr. 35). The plaintiff further asserts that the ALJ failed to show good cause for failing to give the treating physician's opinion controlling weight. (Pl.'s Mot. for Sum. J. with Supp. Memo. of Law. DE# 18 at 8, 10/22/2014).
The defendant contends that the ALJ properly considered all of the relevant evidence when assigning the treating physician's opinion less than controlling weight. (Def.'s Mot. for Sum. J. with Sup. Memo. of Law and Resp. to Pl.'s Mot. Sum. J. DE# 22 at 9, 12/19/2014). The defendant notes that there was no documentation ruling out other disorders caused by similar symptoms to fibromyalgia, the physician never specified the location or number of the plaintiff's tender points, and the examining doctor, Dr. Cooke, disagreed with Dr. Chang's opinion.
Because the undersigned finds that a remand was appropriate after submission of the supplemental evidence, the Court need only consider the second issue presented in the plaintiff's motion of whether the AC erred when it did not remand after the submission of substantial evidence. The plaintiff contends that "[t]he Appeals Council erred as a matter of law by refusing to remand this case to the ALJ despite the important new evidence from Dr. Chang".
The plaintiff has an opportunity to present additional evidence at any point during the administrative proceedings.
It is established law that:
In order for the AC to consider supplemental evidence, the evidence submitted must be "new and material" to the issues considered by the ALJ's decision and relate to the period on or before the ALJ's decision.
The issue now becomes not whether the new evidence was disregarded, but whether the Commissioner's decision is still supported by substantial evidence of the entire record.
In this case, one of the plaintiff's principle complaints was fibromyalgia. (Tr. 217). The ALJ noted that one of the physician's found the plaintiff had "suspect fibromyalgia" and the treating physician diagnosed the plaintiff with fibromyalgia (Tr. 25). The ALJ also noted that the consultative examiner, Dr. Feldman, found multiple tender points on the plaintiff, but all three failed to locate where they were on the plaintiff's body to satisfy SSR 12-2p. (Tr. 25). The plaintiff contends that the additional evidence from Dr. Chang "goes to the heart of the ALJ's purported concerns and undermines her determination with regards to Ms. Ponton's fibromyalgia."
Fibromyalgia cases often lack medical or laboratory signs. The Eleventh Circuit has recognized that a physician's testimony can be extremely valuable in fibromyalgia cases because fibromyalgia is generally diagnosed based on subjective complaints.
When a claimant submits additional evidence that does not provide substantive information of a plaintiff's condition prior to or at the time of the ALJ's decision making, the case does not need to be remanded.
The ALJ has a basic duty to develop a full and fair record and the plaintiff maintains the ultimate burden of proving he/she is disabled through providing evidence.
While a doctor's opinion or statement is not determinative of the plaintiff's disability, Dr. Chang's "Quick Note" dated August 18, 2013, offers information regarding one of the plaintiff's main claims for disability and provides an opinion of the plaintiff's residual functioning capacity that should be considered with the totality of the evidence.
This Court finds that the supplemental evidence is new and material to the outcome of the plaintiff's case and that the supplemental evidence was not properly considered. The case should, therefore, be remanded for reconsideration of the totality of the evidence. Remand of the case for reconsideration of new evidence does not require the court to look further into whether substantial evidence of the earlier record, supported the ALJ's finding.
In accordance with the foregoing, it is
DONE AND ORDERED.
Section II(B) considers the 2010 ACR Preliminary Diagnostic Criteria. Under this criteria, a person who meets all three of the following criteria may have a medically determinable impairment offibromyalgia. The criteria are: (1) a history of widespread pain (the same as the first factor in the 1990 criteria), (2) repeat showing of six or more Fibromyalgia symptoms or co-occurring conditions, and (3) Evidence that the other disorders that caused the manifestation of symptoms were excluded (similar to the third requirement under the 1990 criteria).
