RICHARD L. VOORHEES, District Judge.
The Social Security Administration ("SSA") has established a five-step sequential evaluation process for determining whether an individual is disabled.
The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court's review of a final decision of the Commissioner to: (1) whether substantial evidence supports the Commissioner's decision; and (2) whether the Commissioner applied the correct legal standards. Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). The Fourth Circuit has made clear that it is not for a reviewing court to re-weigh the evidence or to substitute its judgment for that of the Commissioner—so long as that decision is supported by substantial evidence. Hays, 907 F.2d at 1456 (4th Cir.1990); see also, Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Hancock v. Astrue, 657 F.3d 470, 472 (4th Cir. 2012). "Substantial evidence has been defined as `more than a scintilla and [it] must do more than create a suspicion of the existence of a fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401). Ultimately, it is the duty of the Commissioner, not the courts, to make findings of fact and to resolve conflicts in the evidence. Hays, 907 F.2d at 1456; King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979) ("This court does not find facts or try the case de novo when reviewing disability determinations."); Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) ("We note that it is the responsibility of the [Commissioner] and not the courts to reconcile inconsistences in the medical evidence, and that it is the claimant who bears the risk of nonpersuasion."). Indeed, so long as the Commissioner's decision is supported by substantial evidence, it must be affirmed even if the reviewing court disagrees with the final outcome. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).
This is a case where new evidence has been specifically incorporated into the record by the Appeals Council. Accordingly, this new evidence is part of the record on appeal. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011). The Court notes that the Appeals Council did not explain the basis for its decision; however, it is not required to do so. Id. at 702. Certainly "an express analysis of the Appeal's Council's determination would [be] helpful for purposes of judicial review." Id. at 706 (quoting Martinez v. Barnhart, 444 F.3d 1201, 1207-08 (10th Cir. 2007)). However, judicial review is still possible "as long as the record provides `an adequate explanation of [the Commissioner's] decision.'" Id. (quoting DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983)). When a court "cannot determine, from review of the record as a whole, if substantial evidence supports the denial of benefits" it must reverse and remand. Id. at 702.
In Meyer, the ALJ denied the disability claim and stated that the claimant had failed to provide an opinion from his treating physician. Id. at 703. The claimant then submitted a letter from his treating physician to the Appeals Council. Id. at 703-04. However, the Appeals Council did not change the ALJ's decision. Id. The Fourth Circuit held that remand was appropriate because the ALJ's decision suggested that an "evidentiary gap played a role in its decision." Id. The Fourth Circuit stated that the record was not "one-sided" and that evidence submitted needed to be reconciled by the ALJ because "[a]ssessing the probative value of competing evidence is quintessentially the role of the fact finder." Id.
In this case, Plaintiff submitted a letter from Dr. Friedland to the Appeals Council. The letter indicates that Dr. Friedland began seeing Plaintiff in March of 2012. (Tr. 405). It states that "[s]he was diagnosed with fibromyalgia 7 years ago" and that "[a]s a result of the increasing pain from her fibromyalgia and increasing fatigue from fibromyalgia, she has been unable to work at any job since August 2011." (Id.). Friedland continues that since he has treated her "her pain has only intensified requiring significant amounts of narcotic medication." (Id.). Friedland also states that "[h]er pain involves multiple trigger points over her body, including in her arms, back, and legs. Staying in one position causes significant multiple spasms and stiffness, as well as deterioration of function." (Id.). Regarding her treatment, he states that:
(Id.). Friedland concludes by stating "I feel that Mrs. Fraley remains totally disabled." (Id.).
Regarding Plaintiff's allegations of fibromyalgia, the ALJ stated that:
(Tr. 20).
The Commissioner argues that remand is inappropriate because Friedland's letter adds nothing that could change the underlying opinion. The Court agrees. The ALJ found that there was no substantial proof of trigger points to verify the existence of fibromyalgia and the letter adds nothing to contradict this aside from stating without providing any documentation that there are "multiple trigger points over her body." The Commissioner argues, correctly, that aside from prescribing narcotic pain medications, there are no objective criteria such as examination findings that justify Plaintiff's diagnosis — something that remains true despite the existence of the letter. None of Dr. Friedland's notes indicate that he conducted trigger point testing.
Further, Dr. Friedman's treatment notes do not substantiate his statements about the narcotics' effect on Plaintiff's ability to work. (Tr. 393) ("From fibromyalgia standpoint, she is doing well."); (Tr. 375) ("She continues to have fibromyalgia pain, which is all over her body but she is doing a good job walking more consistently, almost on a daily basis and feels that this helps ease her pain."); (Tr. 386, 400) ("IMPRESSION: Fibromyalgia, maintained on OxyContin and oxycodone."). Neither is his statement regarding narcotics substantiated elsewhere in the medical record. (Tr. 21). Dr. Friedman's letter also indicates that treatment has escalated to narcotic pain medicine; however, the record reveals that Dr. Friedman began prescribing Plaintiff narcotics at the very beginning of his treatment of Plaintiff in March of 2012. (Tr. 378). Accordingly, Friedman's letter adds nothing that justifies remanding this case for further consideration.
SSR 12-2p explains how the SSA determines if a person has a medically determinable impairment ("MDI") of fibromyalgia. SSR 12-2p states that a person can establish that he or she has fibromyalgia only by providing evidence from an acceptable medical source, meaning a licensed physician. It further provides that "[w]e cannot rely on the physician's diagnosis alone. The evidence must document that the physician reviewed the person's medical history and conducted a physical exam. We will review the physician's treatment notes to see if they are consistent with the diagnosis . . . ." SRR 12-2p. Further, SSR 12-2p states that "before we find that a person with an MDI of [fibromyalgia] is disabled, we must ensure there is sufficient objective evidence to support a finding that the person's impairment(s) so limits the person's functional abilities that it precludes him or her from performing any substantial gainful activity." Id.
SSR 12-2p also details specific criteria that can establish a MDI of fibromyalgia. Specifically, the SSA "will find that a person has an MDI of [fibromyalgia] if the physician diagnosed [fibromyalgia] and provides the evidence we describe in section II.A. or section II. B., and the physician's diagnosis is not inconsistent with the other evidence in the person's case record." Id.
To prove fibromyalgia under section II.A., a plaintiff must all of the following: (1) a history of widespread pain; (2) at least eleven tender points on physical examination; and (3) "[e]vidence that other disorders that could cause the symptoms or signs were excluded." Id. In testing tender points, "the physician should perform digital palpation." Id.
To prove fibromyalgia under section II.B., a plaintiff must have all of the following criteria: (1) "a history of widespread pain"; (2) "repeated manifestations of six or more [fibromyalgia] symptoms, signs,
Plaintiff argues that the ALJ solely relied on the II.A. criteria in determining that she did not have a MDI of fibromyalgia. It is clear that the ALJ discussed the II.A. criteria when referencing tender points. (Tr. 21). The Commissioner argues, correctly, that Plaintiff has only made a conclusory allegation that the letter itself establishes her fibromyalgia as a MDI. Plaintiff has not even attempted to state how the letter, which is less than a page, can establish the entirety of the II.B. criteria. As stated above, the existence of the letter does not warrant remand because the Commissioner's decision remains adequately supported.
Decisions by other governmental or nongovernmental agencies indicating that a claimant is disabled are not binding on the SSA. 20 C.F.R. 1504. SSR 06-03p states that:
The Court finds Chief Judge Whitney's explication of Western District precedent persuasive:
Gabriel v. Colvin, No. 1:14-CV-270-FDW, 2015 WL 4591591, at *3 (W.D.N.C. July 29, 2015) (discussing a prior Medicaid determination). In this case, the Court finds that the ALJ considered opinion evidence in accordance with SSR 06-03. (Tr. 18). Moreover, there was no written explanation of the decision that could inform the ALJ's analysis in any meaningful manner. King v. Astrue, No. 2:09-2358-RSC, 2010 WL 3430781, at *6 (D.S.C. Aug. 31, 2010); Wrightson v. Colvin, No. 2:-13-CV-59-BO, 2014 WL 5471908, at *2 (E.D.N.C. Oct. 22, 2014) ("The full decision also does not cite to specific medical evidence, thus the Court finds that consideration of the full decision would not affect the ALJ's analysis."); see (Tr. 183) ("Based on the information received, it appears that you have met the group policy's definition of Total Disability."). Moreover, the Commissioner correctly argues that the standards that govern the long-term disability policy and the SSA are sufficiently different that a review of the determination would not inform the ALJ of how he is to apply the regulations in this instance. See (Tr. 183-184) ("[B]enefits are payable for a maximum of 24 months if a disability occurs as a result of a self-reported disorder" however, noting that consideration is given to medical records). Accordingly, the Court finds that the ALJ's purported failure to specifically identify the receipt of long-term disability benefits and explain what weight to give it is harmless error.
SSR 12-2p, n.5.
