CAROL E. JACKSON, District Judge.
This matter is before the Court for review of an adverse ruling by the Social Security Administration.
On October 20, 2010, plaintiff Debra Knight filed applications for a period of disability, disability insurance, Title II, 42 U.S.C. §§ 401 et seq., and supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of March 31, 2007, which was also the last date of her insured status.
Plaintiff and counsel appeared for a hearing on February 29, 2012. (Tr. 68-107). On May 25, 2012, the ALJ issued a decision finding that plaintiff was not disabled before March 31, 2007. (Tr. 10-25). The Appeals Council denied plaintiff's request for review on May 8, 2013. (Tr. 1-6). Accordingly, the ALJ's decision stands as the Commissioner's final decision.
In her Disability Report (Tr. 194-201), plaintiff listed her disabling conditions as fybromyalgia; severe widespread muscle pain, tenderness, and weakness; chronic fatigue syndrome; depression, malaise and anxiety; significant short-term memory loss; difficulty concentrating and focus; osteoarthritis; residuals of past back injury; neck pain and immobility; and sleep apnea. Between 2002 and 2008, she held jobs as a cashier, child care worker, envelope stuffer, school kitchen worker, and teacher's aide. (Tr. 197). When the applications were filed in 2010, plaintiff's medications included Ampheta S/Combo,
Plaintiff completed a Function Report on December 16, 2008. (Tr. 254-66). She wrote that she was extremely stiff upon waking and felt too ill to eat breakfast. She required two to three hours to perform personal care and often required her husband's help to dress. She usually attempted one household chore, such as making her bed or doing laundry, but experienced extreme fatigue, chest pain, and shortness of breath if she exerted herself for more than 15 minutes. She described her sleep as very restless, due to pain from staying in one position. (Tr. 255-56). Throughout the day she walked from room to room, skimmed magazines, and watched birds from her deck. Reading and watching television put her to sleep. "Real cooking" took her 3 to 4 hours, so her husband usually cooked the evening meal. She drove to the bank or post office once or twice a month, but driving longer than 15 minutes caused pain and fatigue. She accompanied her husband to the grocery store. Her husband paid the bills, but plaintiff was able to manage bank accounts and count change. She needed reminders to take her medicine. She was no longer able to complete yard work, walk outdoors, paint, or read. She spent time with family members but found socializing with friends to be too taxing. Plaintiff had difficulties with lifting, bending, standing, squatting, reaching, walking, sitting, kneeling, climbing stairs, using her hands, completing tasks, understanding, following instructions, memory and concentration. She no longer handled stress well. She required a raised toilet seat and elevated counters to make attending to her personal care less taxing.
Plaintiff's Work History Report shows that she was employed doing factory assembly work for 19 years, until March 1999. Starting in 2002, she held a series of short-term jobs, working in a high school kitchen (2002), as a cashier at Wal-Mart (2002), as a secretary for Kelly Services (2005), a teacher's aide (2003), and in a day care center (2008). (Tr. 246). Plaintiff wrote of her work at the day care center, "They always asked me to work full time. I told them it was not physically possible for me . . . [T]he woman I worked with . . . would do all the lifting of the babies — she could hand them to me, then I could bottle feed them [and] rock them to sleep." (Tr. 232). Her co-worker wrote that she helped plaintiff lift the children because plaintiff was afraid she would drop them. "She hurt all the time in her arms and legs." (Tr. 245).
Plaintiff testified that she graduated from high school. (Tr. 99). She resided with her husband, who was retired and received a pension and Social Security. (Tr. 70-71). She had previously worked assembling small electrical units. (Tr. 91).
The ALJ explained that the medical information in the present record did not date back to March 2007, the date on which plaintiff was last insured. (Tr. 75, 77). Therefore, the ALJ retrieved the medical records associated with the prior claim.
Plaintiff testified that she was in too much pain from fibromyalgia "to do anything at all anymore." (Tr. 77). The pain caused her to toss and turn while sleeping and she estimated that she slept between three and five hours a night. A sleep study established that she had sleep apnea. When questioned by the ALJ, plaintiff acknowledged that she did not follow through with treatment for the condition but explained that she did not have health insurance and so was often unable to comply with some recommendations. (Tr. 83-84).
When asked what she did during the day, plaintiff responded, "Not a lot." She sat around, got up and walked, and sat again. She did some light housework, but her husband took care of most tasks. (Tr. 100). She was able to make sandwiches but it took her six hours to cook a meal the last time she attempted to do so. She was able to do laundry, but her husband had to carry it up and down the stairs for her. Watching television put her to sleep and she did not read because her vision was blurry. (Tr. 102-03). She did not use a computer. She occasionally went grocery shopping but otherwise did not go anywhere, which she found upsetting.
When she worked as an assembler, plaintiff stood all day and lifted 20 pounds occasionally and 75 pounds infrequently. (Tr. 91-92). The work became too physically demanding for her to continue. She testified that she was crying at work and had incidents "like passing out." Once, an ambulance was called because she thought she was having a heart attack. She continued to have "really bad chest pains" in which her chest got really tight and she experienced pain. It made her very frightened. (Tr. 92). Her physician told her that the chest pain might be due to the fibromyalgia, because she apparently did not have a cardiac condition. She took Propranolol to treat the chest pain. After leaving her position with the factory, plaintiff worked as a retail sales clerk, daycare provider, envelope stuffer, kitchen helper, teacher aide and a poll worker. (Tr. 95-96). These positions did not rise to the level of substantial gainful employment. (Tr. 12).
Delores Gonzalez, M.Ed., a vocational expert, provided testimony regarding plaintiff's past work. Ms. Gonzalez testified that plaintiff's work as a retail sales clerk is classified as light and semi-skilled; the day care worker position is classified as light and semi-skilled and has a Specific Vocational Preparation (SVP) level of 4
Plaintiff's discussion of the medical records begins in June 2005. Prior to that date, she was diagnosed with mild mitral valve prolapse (Tr. 430), chronic fatigue syndrome, and fibromyalgia (Tr. 382, 396, 370). She periodically complained of tightness in her chest, feeling light-headed, neck pain, shortness of breath, and pedal edema. (Tr. 430, 342, 341, 380, 340). She consistently reported fatigue, tenderness and swelling of the joints, irritable bowel, and gastroesophageal reflux disease. (Tr. 344, 338, 377, 339). Her primary care physician, Rosemary Cannistraro, M.D., Ph.D., occasionally noted that the muscle beds were tender to palpation. (Tr. 382, 375). In November 2004, plaintiff underwent a sleep evaluation and was diagnosed with obstructive sleep apnea and psychophysiologic insomnia. (Tr. 371, 368-69, 365).
In June 2005, plaintiff's medications included an antidepressant, Propranolol for chest pain, Ultram,
In April 2006, plaintiff complained that she felt "terrible" and "hurt[] all over." She was not sleeping at all and had pain in her ribs which hurt when she moved. She had joint swelling and diffuse tenderness in her ribs, hands, and feet; depression; fatigue; and headache. Dr. Cannistraro noted that plaintiff was suffering an exacerbation of the symptoms of chronic fatigue syndrome and fibromyalgia, with generalized malaise. (Tr. 332). A chest x-ray was unremarkable. (Tr. 349). In May 2006, plaintiff reported an improvement in her symptoms, including improved sleep and energy. (Tr. 331). She had started exercising which caused some shortness of breath. In August 2006, Dr. Cannistraro noted that plaintiff continued to show improvement, writing that "Adderall has really helped fatigue and given some quality of life." (Tr. 330). The fatigue and fibromyalgia were "in remission" and plaintiff felt "better focus." Medication records indicate that plaintiff's dosage of Adderall increased in August 2006. (Tr. 234).
In January 2007, Dr. Cannistraro noted that plaintiff's fibromyalgia and chronic fatigue syndrome were "significantly improved" with the addition of Cymbalta and Adderall. (Tr. 329). Her fatigue was "much better" and "this is best" plaintiff had felt "in years." In March 2007, plaintiff continued to report improvement. She stated that she had taken a trip to Texas and driven to the border where she walked across a bridge over the Rio Grande. (Tr. 328). However, plaintiff told Dr. Cannistraro that the Cymbalta was too expensive and medication records reflect a decrease in her dosage. (Tr. 234).
In the following months, plaintiff reported that she felt more pain and was having trouble sleeping as a result of weaning off Cymbalta. (Tr. 324-27). In February 2008, Dr. Cannistraro noted that plaintiff was experiencing increased depression, worsened pain, more fatigue, decreased endurance, and sleep disorder, and had multiple myalgias, numbness, and chest pain. (Tr. 323). A stress echocardiogram was normal. (Tr. 451). In April 2008, Dr. Cannistraro noted that plaintiff's fibromyalgia was exacerbated and provided some samples of Lyrica.
In January 2009, plaintiff complained of shortness of breath, chest pains, and joint tenderness. (Tr. 291). In March and May 2009, plaintiff complained of joint pain and body aches. In July 2009, plaintiff was in a lot of pain; her hands were swollen and painful, and she had diffuse tenderness of the joints. She reported being unable to walk during the prior month. Dr. Cannistraro described her as fretful and crying. Dr. Cannistraro prescribed Savella
Dr. Cannistraro completed a Physical Residual Functional Capacity Questionnaire on September 20, 2010. (Tr. 274-78). Dr. Cannistraro described plaintiff's symptoms as muscular weakness and tenderness in legs, hands, and arms. She further stated that plaintiff "flinche[d] with pain at slight touch in these areas." She "has experienced widespread pain in all four quadrants." In response to a question asking her to identify the clinical findings and objective signs supporting her assessment, Dr. Cannistraro wrote: "fibromyalgia osteoarthritis, malaise and fatigue, chronic fatigue syndrome, sleep apnea." In response to a question about treatment and side effects, Dr. Cannistraro wrote "Fibromyalgia has caused patient to be debilitated, suffering from weakness, pain all over, and fatigue." Plaintiff's pain was likely to "frequently" interfere with attention and concentration and she was incapable of performing even low-stress work. Plaintiff's impairments were expected to last 12 months or more and her depression and anxiety contributed to the severity of her symptoms. Dr. Cannistraro did not respond to a question asking whether plaintiff was a malingerer. (Tr. 274-75). She also declined to answer any of the questions regarding plaintiff's functional limitations, writing that she was "unable to evaluate."
Dr. Cannistraro completed a second Residual Functional Capacity Questionnaire on January 25, 2012. (Tr. 310-14). She noted that she saw plaintiff for one hour every 6 to 8 weeks. Plaintiff's diagnoses included fibromyalgia, irritable bowel syndrome, osteoarthritis, hypertension, esophageal reflux, and chronic pain syndrome. Plaintiff's symptoms included multiple tender points, nonrestorative sleep, chronic fatigue, morning stiffness, muscle weakness, episodic subjective swelling, vestibular dysfunction, numbness and tingling, Sicca symptoms, Raynaud's phenomenon, breathlessness, anxiety, depression, and chronic fatigue syndrome. This time, Dr. Cannistraro stated that plaintiff's emotional symptoms did not contribute to the severity of plaintiff's limitations. Plaintiff experienced pain all of the time, precipitated by changing weather, movement or overuse, cold, and stress, and was "ok" only two days a month. Dr. Cannistraro opined that plaintiff was able to walk one block; sit or stand for 5 minutes before needing to change position; sit less than 2 hours in an 8hour day; walk or stand not at all; would have to walk every five minutes for about 2 minutes; and would need to take 10 breaks during an 8-hour day. In addition, plaintiff needed to elevate her legs to waist level when sitting. Plaintiff was restricted to rarely lifting less than 10 pounds and never lifting anything heavier, and she could rarely use her hands for grasping, fine manipulation, or reaching. Her impairments could be expected to cause more than 4 absences per month. Plaintiff's symptoms and limitations had been present since June 2005.
Dr. Cannistraro explained the difference between her responses to the two questionnaires by saying: "I saw the patient in the office on 1-23-12 and completed the form while I examined the patient. The form on 9-20-[10] was completed 3 weeks after a visit with the patient and was not addressed during the visit." (Tr. 443).
In the decision issued on May 25, 2012, the ALJ made the following findings:
(Tr. 12-25).
The Court must affirm the Commissioner's decision "if the decision is not based on legal error and if there is substantial evidence in the record as a whole to support the conclusion that the claimant was not disabled."
To be entitled to disability benefits, a claimant must prove she is unable to perform any substantial gainful activity due to a medically determinable physical or mental impairment that would either result in death or which has lasted or could be expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D), (d)(1)(A);
Steps one through three require the claimant to prove (1) she is not currently engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3) her disability meets or equals a listed impairment.
"Prior to step four, the ALJ must assess the claimant's residual functioning capacity (`RFC'), which is the most a claimant can do despite her limitations."
In determining a claimant's RFC, the ALJ must evaluate the claimant's credibility.
At step four, the ALJ determines whether a claimant can return to her past relevant work, "review[ing] [the claimant's] [RFC] and the physical and mental demands of the work [claimant has] done in the past." 20 C.F.R. § 404.1520(e). The burden at step four remains with the claimant to prove her RFC and establish that she cannot return to her past relevant work.
If the ALJ holds at step four of the process that a claimant cannot return to past relevant work, the burden shifts at step five to the Commissioner to establish that the claimant maintains the RFC to perform a significant number of jobs within the national economy.
If the claimant is prevented by her impairment from doing any other work, the ALJ will find the claimant to be disabled.
Plaintiff challenges the ALJ's determination that she retained the RFC to perform medium work, arguing that the ALJ improperly discounted the opinion of her treating physician and failed to support the RFC determination with medical evidence. She also argues that the ALJ did not present a proper hypothetical to the vocational expert.
A claimant's RFC is "the most a claimant can still do despite his or her physical or mental limitations."
In reaching the RFC determination, the ALJ gave little weight to the opinion of Dr. Cannistraro, plaintiff's treating physician. Generally, a treating physician's opinion is given more weight than other sources in a disability proceeding.
The ALJ gave multiple reasons for discounting Dr. Cannistraro's opinion. However, the ALJ's analysis failed to take into account the nature of fibromyalgia. Fibromyalgia's symptoms typically include sleep deprivation, fatigue, and pain, and are largely subjective.
The ALJ's analysis was inaccurate with respect to some of the medical evidence. For example, the ALJ incorrectly stated that the treatment records did not include findings of swelling or numbness. The treatment notes reflect that swelling was present on multiple occasions between 2003 and 2007, (Tr. 342, 240, 339, 387, 332, 323), and numbness was present in February 2008 (Tr. 323). The ALJ also stated that Dr. Cannistraro never prescribed pain medications. (Tr. 21). The record shows that plaintiff was prescribed Ultram and Flexeril in June 2005 (Tr. 318); Savella and Salonpas in July 2009 (Tr. 294); and Gabapentin in May 2010 (Tr. 301). Starting in 2006, plaintiff was prescribed Cymbalta and Adderall to treat the symptoms of fibromyalgia and chronic fatigue syndrome, including pain. (Tr. 387, 331).
The ALJ also noted that Dr. Cannistraro never directed plaintiff to restrict her activities and, indeed, encouraged her to exercise. (Tr. 19). A physician's recommendation of exercise to a patient with fibromyalgia is not necessarily inconsistent with a finding of disability.
Based on the above, the Court finds that the ALJ did not "give good reasons" for discrediting the opinion of Dr. Cannistraro. 20 C.F.R. § 404.1527(c)(2).
Plaintiff argues that the ALJ improperly failed to support the RFC determination with citation to any medical evidence, relying on
Defendant argues that the ALJ's RFC determination is supported by evidence in the record showing that plaintiff experienced temporary improvement on the date she was last insured. On January 24, 2007, plaintiff reported that her chronic fatigue syndrome and fibromyalgia had significantly improved once she began taking Cymbalta and Adderal, and that she was feeling better than she had in years. (Tr. 329). Similarly, on March 21, 2007, plaintiff reported that her fatigue had improved. However, plaintiff's subjective report does not satisfy the requirement of medical evidence to support the RFC.
The RFC determination in this case is not support by substantial evidence in the record and thus the matter must be remanded. On remand, the ALJ should consider whether to obtain the opinion of a consultative examiner to determine whether plaintiff was able to maintain substantial gainful employment on March 31, 2007. Plaintiff's challenge to the testimony of the vocational expert is moot.
For the reasons discussed above, the Court finds that the Commissioner's decision is not supported by substantial evidence in the record as a whole.
Accordingly,