LANDYA McCAFFERTY, District Judge.
Pursuant to 42 U.S.C. § 405(g), Carolyn Hunt moves to reverse the Acting Commissioner's decision to deny her applications for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter is remanded to the Acting Commissioner for further proceedings consistent with this order.
The applicable standard of review in this case provides, in pertinent part:
42 U.S.C. § 405(g) (setting out the standard of review for DIB decisions);
As for the statutory requirement that the Acting Commissioner's findings of fact be supported by substantial evidence, "[t]he substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts."
The parties have submitted a Joint Statement of Material Facts. That statement, document no. 13, is part of the court's record and will be summarized here, rather than repeated in full.
Hunt filed applications for DIB and SSI on January 3, 2013, claiming to have become disabled on December 22, 2012. In her applications, she identified the following medical conditions as limiting her ability to work: fibromyalgia, fatigue, spinal issues, arthritis, and carpel tunnel syndrome in both hands.
Hunt has been diagnosed with a variety of physical and mental conditions including: adjustment disorder, depression, posttraumatic stress disorder ("PTSD"), brain injury, narcolepsy, degenerative disk and degenerative joint disease of the cervical spine, cervical spondylosis with myelopathy, carpal tunnel syndrome of both hands, polyarthralgia,
"Fibromyalgia is a disorder of unknown cause characterized by chronic widespread aching and stiffness."
In February 2013, Hunt's primary care provider, Dr. David Nelson, referred Hunt to Dr. Julia Bolding, a rheumatologist, to confirm his diagnosis of fibromyalgia.
Tr. 421.
With respect to Hunt's physical residual functional capacity ("RFC"),
In his RFC assessment, Dr. Jaffe opined that Hunt could: (1) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk (with normal breaks) for about six hours in an eight-hour workday; (3) sit (with normal breaks) for about six hours in an eight-hour workday; and (4) push and/or pull the same amounts she could lift and/or carry. With regard to postural limitations, Dr. Jaffe opined that Hunt could frequently balance and could occasionally climb ramps, stairs, ladders, ropes, and scaffolds; stoop; kneel; crouch; and crawl. He identified no manipulative, visual, communicative, or environmental limitations.
In their FCE Summary, Colby and Bradshaw opined that Hunt could lift: (1) 20 pounds infrequently and 10 pounds frequently, from floor to knuckle; and (2) 15 pounds infrequently and 10 pounds frequently from knuckle to shoulder height, and from shoulder height to overhead. They also opined that Hunt had no problems with sitting, standing, walking, or climbing stairs.
Finally, in his Fibromyalgia Medical Source Statement, Dr. Nelson stated that Hunt's fibromyalgia had lasted or could be expected to last at least twelve months, and gave the following prognosis: "Poor — doubt she will recover/improve." Tr. 617. Regarding Hunt's functional limitations in a work setting, Dr. Nelson opined that she: (1) did not "have the stamina and endurance to work an easy job 8 hours per day 5 days per week (with normal breaks every two hours),"
With respect to Hunt's mental RFC, the record includes four opinions: (1) a Mental Health Evaluation report prepared by Dr. Trina Jackson, after she performed a consultative examination; (2) a mental RFC assessment by Dr. Craig Stenslie, a state agency psychological consultant who reviewed Hunt's medical records, but did not examine or treat her; (3) a Medical Source Statement of Ability to Do Work-Related Activities (Mental) completed by Dr. Nelson; and (4) a Mental Impairment Questionnaire completed by Dr. Erinn Fellner, who had seen Hunt in May 2014, on a referral from Dr. Nelson. Again, the court describes each opinion in turn.
After performing a consultative examination, Dr. Jackson diagnosed Hunt with PTSD and major depressive disorder. In her report, she described Hunt's current level of functioning in five areas, two of which are relevant to the issues before the court:
Tr. 317 (emphasis in the original).
In his mental RFC assessment, Dr. Stenslie opined that Hunt had no limitations on her ability to understand and remember and had no social interaction limitations. With regard to sustained concentration and persistence, Dr. Stenslie opined that Hunt was not significantly limited in five of eight listed abilities, but was moderately limited in her abilities to: (1) carry out detailed instructions; (2) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and (3) complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. With regard to adaptation, Dr. Stenslie opined that Hunt was not significantly limited in three of four listed abilities, but was moderately limited in her ability to respond appropriately to changes in the work setting.
In his Medical Source Statement (Mental), Dr. Nelson opined that Hunt had mild limitations in five of ten listed abilities (understanding and remembering simple instructions, carrying out simple instructions, interacting appropriately with the public, interacting appropriately with supervisors, and interacting appropriately with co-workers), moderate limitations in two abilities (making judgments on simple work-related decisions and responding appropriately to usual work situations and to changes in a routine work setting), and marked limitations in three abilities (understanding and remembering complex instructions, carrying out complex instructions, and making judgments on complex work-related decisions).
In her Mental Impairment Questionnaire, Dr. Fellner opined that Hunt had mild limitations in three of sixteen mental abilities and aptitudes necessary to do unskilled work, moderate limitations in seven abilities, and marked limitations in six abilities. Specifically, Dr. Fellner opined that claimant had marked limitations in: (1) maintaining attention for two-hour segments; (2) maintaining regular attendance and being punctual within customary, usually strict tolerances; (3) working in coordination with or proximity to others without being unduly distracted; (4) completing a normal workday and workweek without interruptions from psychologically-based symptoms; (5) performing at a consistent pace without an unreasonable number and length of rest periods; and (6) dealing with normal work stress. She supported those opinions with this narrative:
Tr. 623. With respect to functional limitations, Dr. Fellner opined that Hunt had: (1) moderate restrictions on her activities of daily living; (2) marked difficulties in maintaining both social functioning
After the Social Security Administration ("SSA") denied Hunt's applications for benefits, she received a hearing before an Administrative Law Judge ("ALJ"). Subsequently, the ALJ issued a decision that includes the following relevant findings of fact and conclusions of law:
Tr. 29, 31-32, 36, 37.
Based upon a response to a hypothetical question he posed to a vocational expert ("VE") that incorporated the RFC recited above, the ALJ determined that Hunt was able to perform the jobs of assembler of plastic hospital parts, marker, and electric accessories assembler.
After getting an answer to his first hypothetical question, the ALJ asked the VE a second question that posited the following additional limitations:
Tr. 74. The VE testified that there were no jobs that a person with those limitations could perform. Finally, in response to questions from claimant's counsel, the VE testified that there were no jobs that a person could perform if he had any one of the following limitations: (1) a need to take unscheduled five minute breaks each hour; (2) "a marked limitation in the ability to maintain concentration for two-hour segments," Tr. 76; (3) "a marked limitation in the ability to maintain regular attendance and be punctual within customary, usually strict tolerances,"
To be eligible for disability insurance benefits, a person must: (1) be insured for such benefits; (2) not have reached retirement age; (3) have filed an application; and (4) be under a disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). To be eligible for supplemental security income, a person must be aged, blind, or disabled, and must meet certain requirements pertaining to income and assets. 42 U.S.C. § 1382(a). The question in this case is whether the ALJ correctly determined that Hunt was not under a disability from December 22, 2012, through July 11, 2014, which is the date of the ALJ's decision.
To decide whether a claimant is disabled for the purpose of determining eligibility for either DIB or SSI benefits, an ALJ is required to employ a five-step process.
The claimant bears the burden of proving that she is disabled.
Hunt challenges the ALJ's decision on multiple grounds, but this claim is dispositive: the ALJ erred in his consideration of the opinions that Dr. Nelson expressed in his Fibromyalgia Medical Source statement and that Dr. Fellner expressed in her Mental Impairment Questionnaire.
Under the applicable regulations, the SSA, and by extension an ALJ, is obligated to evaluate every medical opinion a claimant submits.
20 C.F.R. §§ 404.1527(a)(2) & 416.927(a)(2). As a general matter,
In addition to outlining the general principle stated above, the SSA regulations further provide that
20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2). When an ALJ does not give controlling weight to a treating source's opinion, he must still determine the amount of weight to give that opinion by considering: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the supportability of the opinion; (4) the consistency of the opinion with the record as a whole; (5) the medical specialization of the source offering the opinion; and (6) any other factors that may support or contradict the opinion.
In any event, an ALJ must "always give good reasons . . . in [his] notice of . . . decision for the weight [he] give[s] [a claimant's] treating source's opinion." 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2).
The ALJ gave little weight to the opinions expressed in Dr. Nelson's Fibromyalgia Medical Source Statement. Hunt claims that the ALJ erred by failing to give controlling weight to those opinions. The court finds that the ALJ did not provide sufficient justification for discounting Dr. Nelson's opinions.
The ALJ began his discussion of Dr. Nelson's opinions by describing them:
Tr. 35. The ALJ explained his decision to give little weight to Dr. Nelson's opinions this way:
Tr. 36.
As a preliminary matter, it is clear that the ALJ addressed, and discounted, Dr. Nelson's opinions that claimant lacked the stamina to work an eight-hour workday, and would be off task up to 25 percent of any given workday, but it is not so clear that the ALJ actually addressed Dr. Nelson's opinion that claimant would be absent from work four or more days per month. Given the ALJ's obligation to evaluate all medical opinions,
Turning to the opinions from Dr. Nelson that the ALJ clearly did evaluate, he mentioned both of the factors that must be considered when determining whether to give controlling weight to a treating source's opinion,
With regard to the first factor, supportability, the regulations provide that the opinion of a treating source such as Dr. Nelson is entitled to controlling weight if, among other things, it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2). The ALJ stated, in a conclusory manner, that Dr. Nelson's opinion was not supported by the medical evidence of record. However, the medical evidence documents both claimant's complaints to Dr. Nelson about multiple symptoms of fibromyalgia, including pain, stiffness, weakness, and paresthesia, and Dr. Bolding's determination that Hunt exhibited tenderness at more than 11 of the 18 fibromyalgia tender points. Regarding that evidence, the court of appeals has explained that "`a patient's report of complaints, or history, is an essential diagnostic tool' in fibromyalgia cases,"
Beyond that, the ALJ wrote that Dr. Nelson's opinion was not supported because "the records do not reflect disabling levels of pain." Tr. 36. Pain, however, is only one symptom of fibromyalgia; there are others, such as "fatigue, a sense of weakness . . ., paresthesia, difficulty sleeping, and headaches."
Turning to the second factor that must be considered when determining whether to give controlling weight to a treating source's opinion,
The record does include several reports on claimant's daily activities, but they do not support the ALJ's conclusion. In the Function Report — Adult that Hunt submitted to the SSA, she was asked to describe what she did from the time she woke up until going to bed, and she gave this response:
Tr. 230 (emphasis added). At her hearing, Hunt testified that she: (1) has "extreme tiredness during the day," Tr. 62; (2) "tend[s] to kind of zone out,"
The Acting Commissioner offers the following defense of the ALJ's evaluation of Dr. Nelson's opinions:
Doc. no. 11-1, at 10 (citation to the record omitted). While the ALJ did find claimant's statements about her symptoms to be less than entirely credible, he did not identify his unfavorable credibility assessment as a basis for discounting Dr. Nelson's opinion, and it is not for the Acting Commissioner to defend the ALJ's decision with rationales that the ALJ did not articulate.
In sum, the ALJ's analysis of the factors identified in 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2), with respect to the opinions Dr. Nelson expressed in his Fibromyalgia Medical Source Statement, is inadequately specific and inadequately supported. Accordingly, the ALJ gave insufficient justification for determining that those opinions were not entitled to controlling weight.
The court has thus determined that this matter must be remanded because of the way in which the ALJ considered supportability and consistency, as those terms are defined in 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2). The court now turns to the supportability analysis that must be undertaken under subsection (c)(3) of those regulations when a treating source's opinion is not given controlling weight, but must still be evaluated. According to that subsection of the regulations:
20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3). To the extent that the ALJ determined that Dr. Nelson's opinions did not meet that standard of supportability, he was mistaken. In his Fibromyalgia Medical Source Statement, Dr. Nelson specifically identified claimant's symptoms, diagramed her tender point sites, and referred to both Dr. Bolding's office note and the FCE Summary authored by Colby and Bradshaw. In other words, Dr. Nelson
Before moving on from Dr. Nelson's Fibromyalgia Medical Source Statement, the court has one final observation, related to fibromyalgia, that may prove useful on remand. To support his determination that claimant's statements about her fibromyalgia symptoms were not entirely credible, the ALJ said this: "Significantly, [claimant's] treating examining physician, Julia Bolding, opines that she does not feel that the claimant's fibromyalgia is a basis for disability." Tr. 33 (citation to the record omitted). In point of fact, Dr. Bolding's opinion was not limited to claimant's particular case of fibromyalgia but, rather, extended to fibromyalgia in general: "I do not consider fibromyalgia an appropriate reason for disability." Tr. 421. That opinion, as opposed to an opinion on the functional effects of
The ALJ gave little weight to the opinions expressed in Dr. Fellner's Mental Impairment Questionnaire. Hunt claims that the ALJ erred by failing to give great weight to those opinions. The manner in which the ALJ evaluated Dr. Fellner's opinions suffers from the same infirmities of his evaluation of Dr. Nelson's opinions, and provides another ground for remand.
To begin, while the ALJ began his discussion of Dr. Nelson's opinions by describing them, he did not do so for the opinions that Dr. Fellner expressed in her Mental Impairment Questionnaire, which complicates things from the outset. Dr. Fellner, like Dr. Nelson, opined that Hunt would be absent from work more than four days per month due to her impairments. But, while the ALJ at least acknowledged Dr. Nelson's opinion on this issue, he said nothing at all about Dr. Fellner's opinion on it. Thus, it is far from clear that the ALJ gave any consideration to Dr. Fellner's opinion on Hunt's likely absence from work.
Be that as it may, the ALJ described his evaluation of Dr. Fellner's opinions this way:
Tr. 36.
The first sentence of the ALJ's evaluation of Dr. Fellner's opinions calls them conclusory and refers to a lack of support. But, it is not clear whether the ALJ was undertaking a supportability analysis for the purposes of 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2), which pertain to the controlling weight analysis, or for the purposes of 20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3), which pertain to the weighing of treating source opinions that have not been given controlling weight. Either way, the ALJ's determination that Dr. Fellner's opinions lack support is unfounded.
With respect to support from "medically acceptable clinical and laboratory diagnostic techniques," 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2), which is necessary to entitle a treating source's opinion to controlling weight, Dr. Fellner completed her Mental Impairment Questionnaire less than a month after she spent 90 minutes examining Hunt. In the progress note that resulted from that examination, Dr. Fellner described the findings of a mental status examination she administered to Hunt:
Tr. 509-10 (emphasis added).
Tr. 510, 516. Leaving aside Dr. Fellner's conclusions regarding disability, which are entitled to no particular weight,
The ALJ did not question the validity of Dr. Fellner's mental status examination. Thus, her report on that examination would appear to satisfy the supportability requirement of 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2) with respect to Dr. Fellner's opinion that claimant was "unable to maintain attention for tasks greater than 30 minutes." Tr. 623. Such a limitation, in turn, would preclude employment, according to the testimony of the VE.
With respect to the supportability analysis that applies to treating source opinions that are not given controlling weight, the court is not persuaded by the ALJ's characterization of Dr. Fellner's opinion as "conclusory." Dr. Fellner provided her opinion on a form provided by the SSA, and while that form consists of three sets of questions calling for answers in check boxes, each set of questions is followed by a space calling for a narrative explanation. Dr. Fellner, in turn, used each of those three spaces to provide a response that identified the specific diagnoses and/or symptoms that caused the limitations she ascribed to Hunt. The ALJ's characterization of Dr. Fellner's opinion as "conclusory" appears to be contradicted by this evidence. More to the point, to the extent that the ALJ determined that Dr. Fellner's opinion lacked support, for the purposes of 20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3), that determination does not appear to be well founded.
Finally, there are also problems with the ALJ's discussion of consistency with the record as a whole, which is a factor in both the controlling weight analysis and the analysis that applies to treating source opinions that are not given controlling weight. The ALJ said that Dr. Fellner's opinion "is inconsistent with the treatment records of the claimant which do not show marked limitations in social functioning or maintaining concentration, persistence and pace." Tr. 36. But, the ALJ identified no specific treatment records that are inconsistent with Dr. Fellner's opinions and, as the court has noted above, Dr. Fellner's treatment records
Along with the claims addressed above, Hunt claims that the ALJ erred in: (1) assessing her RFC; (2) evaluating the credibility of her statements about the symptoms of narcolepsy and fibromyalgia; and (3) framing the questions he posed to the VE. Because the ALJ's RFC assessment and, by extension, the questions he posed to the VE, were both based upon an improper evaluation of the medical opinions, there would be no point in performing an analysis of those aspects of the ALJ's decision at this juncture. With regard to claimant's challenge to the ALJ's credibility assessment, the court presumes that the SSA will bear in mind the court's concerns over the ALJ's reliance upon Dr. Bolding's skepticism about fibromyalgia as a diagnosis that can support a determination of disability. Given that this matter is being remanded on other grounds, there is no need for any further consideration of Hunt's remaining claims.
For the reason described above, the Acting Commissioner's motion for an order affirming her decision, document no. 11, is denied, and Hunt's motion to reverse that decision, document no. 9, is granted to the extent that this matter is remanded to the Acting Commissioner for further proceedings, pursuant to sentence four of 42 U.S.C. § 405(g). The clerk of the court shall enter judgment in accordance with this order and close the case.
SO ORDERED.