Summary
In Walker, the court vacated and remanded the Commissioner's finding that the claimant was not disabled after finding that the ALJ had failed when assessing the RFC to accept or explicitly discredit a treating source's assessment that the claimant would be absent more than three days a month.
Summary of this case from Carvalho v. KijakaziOpinion
Civil Action No. 04-11752-DPW.
August 23, 2005
MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Felicia Walker ("Walker") brings this action to challenge the determination by the Commissioner of the Social Security Administration ("SSA") that she is not disabled and therefore is ineligible for Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits. Walker contends that she is entitled to benefits because she is unable to work as a result of suffering from the following disabling conditions: fibromyalgia, chronic fatigue syndrome, bursitis, memory loss, anxiety, and depression.
I. BACKGROUND
A. Medical History
Walker, who was born on October 8, 1963, was thirty-eight years old at the time she applied for benefits. She is a high school graduate, attended college for two years, and has received additional training in real estate sales and small business management. (Tr. 117). Walker's prior work experience included employment as a mail handler, data entry clerk, assistant manager for a retail business, assistant child librarian, various roles (route coordinator, transportation manager, shift manager) at a transportation company, customer service representative, and real estate sales agent. (Tr. 15, 112). In October 2001, when Walker allegedly became too disabled to work, she was working as a transportation company shift manager.
The first reference to Walker's allegedly disabling conditions in the medical record is from a January 11, 2000 appointment Walker had with primary care physician, Dr. Warnick, during which she complained that she was experiencing headaches, night sweats, yellow spots in her field of vision, and tightness in her chest, right arm, and leg. (Tr. 166). Walker also reported increased fatigue and questioned whether it might be due to fibromyalgia. (Tr. 166). Walker indicated that her symptoms were occasional and that she was "feeling very well" overall. (Id.). In his notes of the visit, Dr. Warnick observed that it was an "essentially negative exam" and that Walker's symptoms were "likely secondary to fibromyalgia." (Id.).
In November 2000, Walker complained of neck and shoulder pain and was prescribed medication to treat it. (Tr. 169). The following month, after suffering a fall, Walker reported having spasms from her mid-to lower back, as well as right shoulder pain. Examination notes from the appointment indicate that she had a "history of fibromyalgia" but provide no independent diagnosis of the condition. Walker was diagnosed with back pain secondary to the fall and prescribed a course of treatment consisting of icing the injury and taking medication for it. (Id.).
At a June 29, 2001 appointment with Dr. Warnick, Walker reported having episodes of vertigo and also, inter alia, a numb feeling in her right arm and leg. (Tr. 173). Dr. Warnick's notes from the exam make reference to fibromyalgia. (Id.). During a July 12, 2001 appointment, Walker reported occasional lower back pain. (Tr. 174-75). Walker reiterated this complaint, and also reported joint pain and swelling, during a September 4, 2001 appointment for which Dr. Warnick's notes include reference to fibromyalgia. (Tr. 177). During a November 8, 2001 follow-up appointment with Dr. Warnick regarding her right neck, shoulder, and knee pain, as well as her headaches, Walker reported that the Amitriptyline Dr. Warnick had prescribed worked when she used it, but that she took it infrequently. (Tr. 178). Dr. Warnick's notes for this exam indicate that Walker had "positive trigger points," reiterated the diagnosis of fibromyalgia, and indicated that his instructions to Walker included that she take her prescribed medications and also rest. (Id.).
Dr. Warnick's notes from a December 12, 2001 appointment with Walker reflect her report that she had been "fighting depression [her] whole life but can't control it anymore." (Tr. 179). Walker also indicated that she was having increased levels of panic, decreased happiness, was sleeping poorly, and was irritable. (Id.). Walker informed Dr. Warnick that all of her family had a history of depression and that she was getting group therapy. (Id.). During the exam, Walker was teary, tender upon palpation, and reported feeling pain all over. (Id.). Dr. Warnick diagnosed anxiety, depression, and fibromyalgia; prescribed a new medication, Celexa; and referred Walker for mental health counseling. (Id.). The notes from a January 11, 2002 follow-up visit regarding Walker's depression and anxiety indicate that Walker was seeing a counselor at South Bay Mental Health Center ("SBMHC") two times per week. (Tr. 180). Dr. Warnick's notes state that there had been some improvement in Walker's depression and anxiety, that she continued to suffer from fibromyalgia, and that he was increasing her dosage of Celexa. (Id.).
Pursuant to a November 8, 2001 SBMHC Initial Treatment Plan, Walker began to receive twice-weekly home visits from SBMHC therapist Lauretta Valenti ("Valenti"). (Tr. 323-31).
In the course of pursuing her application for SSDI and SSI benefits, Walker completed an Activities of Daily Living ("ADL") questionnaire on March 9, 2002. (Tr. 133-37). In response to questions posed, Walker reported that she lived with her three children, who were then 15, 10, and 9; was taking medications for her condition; had trouble sleeping; and could care for her personal needs/grooming without assistance. (Tr. 133). Walker marked both "Yes" and "No" in response to several questions, including those regarding whether she prepared her own meals, did housework or odd jobs around the house, drove a car when she went out, watched TV, visited or received visits from relatives or friends, went out socially with friends or family, and had any problems getting along with family, friends, neighbors, or other people. (Tr. 134-37). The narrative responses Walker provided for these questions indicated that her ability to perform the activities depended on how she was feeling. (Id.).
In the ADL questionnaire, Walker indicated that at times she was able to prepare meals, do housework, read for short periods of time (two to five minutes at a stretch), and watch TV, but that because of her illnesses she was "unable to do normal activities or activities that I used to do like dancing, dollmaking, or social activities with friends, can't even sit in a movie anymore, do nothing with kids like used to." (Tr. 136). In response to a question about how her conditions stopped her from working, Walker wrote: "Concentration issues so I can't stay on task. Loss of memory prevents me from getting things done. Pain from fibro also interferes with motor skills and due to extreme anxiety and panic I can't drive to work or be around a lot of people and I have rage when I get upset." (Tr. 137).
Walker saw Dr. Warnick again on March 21, 2002, at which point she reported feeling more anxious and irritated, not sleeping well, experiencing decreased appetite, and having trouble concentrating. (Tr. 182). Walker also complained of increased "flare up of firbromyalgias." (Id.). Dr. Warnick added Wellbutrin — to help with anxiety and smoking cessation — to Walker's prescribed medications. (Id.).
At the behest of SSA, Walker received a psychological examination by Richard Ober, Ph.D., on March 22, 2002. (Tr. 203-06). Walker told Dr. Ober about her panic attacks, anxiety, night terrors, fibromyalgia, history of sexual abuse, and other problems. (Tr. 204-05). Dr. Ober's report indicates that Walker also informed him she could sit for four hours, stand for approximately two hours, walk for approximately thirty minutes, did not know how much she would be able to lift or carry, and would not have difficulty remembering or carrying out instructions or responding appropriately to coworkers, supervisors, or customary work pressures. (Tr. 206). Dr. Ober noted that Walker "displayed a wide range of affect, and this affect was consistent with thought," that "[n]o unusual aspects of behavior were observed, and there were no unusual gestures or mannerisms," and that "[s]he appeared to have no difficulty with concentration or memory." (Id.). Dr. Ober concluded:
In the opinion of the examiner, the claimant was currently suffering from panic disorder, although its severity did not keep her in the house. Her presentation during the interview was significant for the absence of demonstrable anxiety. Her IQ appeared to be in the average range, perhaps higher. There were no indications of difficulties with insight or judgment, and both were thought to be good. Her prognosis with treatment appears to be fair to good and without treatment appears to be fair.
(Id.).
Based only on a record review, state agency psychiatrist Dr. Stone assessed Walker's functional limitations and completed a Mental Residual Functional Capacity Assessment ("MRFCA") for her on April 2, 2002. (Tr. 207-24). As to Walker's functional limitations, Dr. Stone determined that due to her illness she had a moderate restriction in her activities of daily living; mild difficulties maintaining social functioning; and mild difficulties maintaining concentration, persistence or pace. (Tr. 217). In the MRFCA, Dr. Stone found that the "current reports suggest:
A. She is able to learn and remember at least simple instructions.
B. She can maintain attention and concentration for tasks that are routine and repetitive.
C. She can relate appropriately to others while performing non-demanding tasks.
D. She can adapt to routine changes inherent in the performance of simple work tasks."
(Tr. 223).
Dr. Jones, a state agency physician, completed a Physical Residual Functional Capacity Assessment ("PRFCA") regarding Walker on April 17, 2002. Dr. Jones made the assessment based on a record review and the file provided by the SSA did not include "treating or examining source statements regarding the claimant's physical capacities." (Tr. 240). In the PRFCA, Dr. Jones opined that Walker could occasionally lift 20 pounds, frequently lift 10 pounds, stand and/or walk — as well as sit — for a total of approximately six hours in an eight-hour workday, and was unlimited in her ability to push and/or pull. (Tr. 235). Dr. Jones found that Walker had no postural, manipulative, visual, communicative, or environmental limitations. (Tr. 236-38).
Also on April 17, 2001, as part of the assessment of Walker's eligibility for MassHealth insurance, Ronald Nappi, Ed.D., conducted a clinical interview of Walker and tested her on the Wechsler Memory Scale. (Tr. 226-32). Walker attended the interview dressed in her pajamas and, by way of explanation, told Nappi that she had difficulty leaving the house due to panic attacks. (Tr. 226). Walker informed Dr. Nappi about her current treatment regimen, including home visits by her therapist, her history of sexual abuse, and her ongoing problems with anxiety, panic attacks, sleep disturbance, concentration problems, loss of interest in significant activities, restricted range of affect, and difficulty getting herself dressed and out of the house. (Tr. 228-30). Dr. Nappi found that Walker's mood was depressed and her affect sad during the interview. (Tr. 230). Dr. Nappi diagnosed "Panic disorder without agoraphobia," employing the SSI Criteria Adult for Anxiety Related Disorders, and also "Pain disorder (fibromyalgia)." (Tr. 231). In support of this finding, Dr. Nappi observed:
The copy of Nappi's report that is included in the record is marked with — and, in places, partially obscured by — handwritten comments, corrections, and redactions that appear to have been made by Walker. (Tr. 226-32). For purposes of the present analysis, I leave aside Walker's commentary on the report and address only the substance of Nappi's findings, as far as they can be determined from the copy of the report in the record.
Following the text in the report regarding Walker's wearing pajamas to the interview and her explanation as to why she had done so, Nappi observed "[i]t was not clearly evident that what she was wearing were pajamas. They appeared to be casual clothes." (Tr. 226.)
the client does have documented evidence of recurrent severe panic attacks manifested by sudden unpredictable onset of intense apprehension, fear, terror, a sense of impending doom. Reports it is very difficult to leave her house and in fact today she was wearing pajamas. She also does report marked restrictions of activities of daily living and difficulties of maintaining social functioning and repeated episodes of deterioration in work-like settings. To be staying in the house, have the therapist come to the house, and very hesitant and fearful about going out. I find that the client does meet the criteria.
(Tr. 231-32). Dr. Nappi concluded that Walker's current GAF [Global Assessment of Functioning] was 45, the low end of a 45-71 GAF range he assessed for her. (Tr. 231).
The Global Assessment of Functioning Scale ranges from 0 ("persistent danger of severely hurting self or others") to 100 ("superior functioning"). A GAF score of 41-50 indicates "serious symptoms" and "serious impairment in social, occupational, or school functioning." Scores of 51-60 and 61-70 reflect moderate symptoms/moderate impairment in functioning and some mild symptoms/some difficulty in functioning, respectively. Global Assessment of Functioning (GAF) Scale, available at http://www.avapl.org/gaf/GAFSheet.html; see also Munson v. Barnhart, 217 F. Supp. 2d 162, 164 n. 2 (D. Me. 2002) (noting that a GAF score reflects "`the clinician's judgment of the individual's overall level of functioning.'" The score is taken from the GAF scale, which `is to be rated with respect only to psychological, social, and occupational functioning.'") (quoting American Psychiatric Ass'n Diagnostic and Statistical Manual of Mental Disorders 32, 34 (4th ed., text rev. 2000)).
On April 23, 2002 and April 24, 2002, respectively, a nurse reviewer and physician advisor for the University of Massachusetts Medical School Disability Evaluation Services signed a "Disability Determination Review Form For Adults" concluding that Walker's panic disorder met or equaled the SSI listings for anxiety-related disorders. (Tr. 194-201).
In a May 6, 2002 Reconsideration Disability Report ("RDR") Walker provided additional information about her condition and changes thereto since the date she applied for benefits. (Tr. 138-41). Walker reported that she had experienced "increased anxiety, pain from headaches and nerves in back and fibromyalgia, which has decreased ability to be mobil[e]." (Tr. 138). In response to a question regarding physical or mental limitations due to her condition since the date she applied for benefits, Walker's response included the following: "Inability to complete task, hopelessness, suicidal thoughts invading my mind. Can't sit, stand, walk for prolonged periods. Can't write for long time without pain in arm [and] hand." (Id.). Walker answered "Yes" to a question regarding whether she had any additional illness or injury since the date of application, writing: "extreme pain in hand, shoulder, neck, and legs don't know why." (Id.). To a question regarding any post-application changes in daily activities, Walker wrote:
Haven't did anything for weeks. Don't get out of bed or bath[e] for 2 wks. Kids missed lot of school for this. Just take Dr. drugs and stay in bed. When not in bed I have no desire to cook, clean, or go out. Can't leave the house. Because of new pain in palm of hands forearm hard to hold things or write. Mind wanders from one thing to the next. Hard to complete task or remember what task was.
(Tr. 140).
During a May 22, 2002 medical appointment, Walker reported back pain and having had a headache that lasted for three days. (Tr. 183). The doctor detected tenderness in Walker's left lumbar region during the examination. (Id.). Walker saw Dr. Warnick on June 20, 2002 for additional follow-up on her fibromyalgia, right hand/wrist/shoulder pain, and bilateral ear pain. (Tr. 184). Walker told Dr. Warnick that she had suffered a "nervous breakdown" in October 2001, but was now doing OK, that she continued to suffer from fibromyalgia, on account of which she was seeking SSDI benefits. (Id.). During the physical examination, Walker was tender at various trigger points. Dr. Warnick's notes from the appointment include the following:"? fibromyalgia v. depression-somatization, arthritis, etc." and "will hold off on filing SSDI form until we get rheum[atology] opinion re fibromyalgia [diagnosis]." (Id.).
Valenti, Walker's SBMHC therapist, completed a "Mental Impairment Questionnaire (Listings)" ("MIQ") regarding Walker and signed it on June 12, 2002. (Tr. 297-302). Dr. Warnick signed off on the MIQ on August 5, 2002. Valenti assessed a current GAF of 55 and found that this was also the highest GAF Walker had achieved during the past year. (Tr. 297). In the section of the MIQ in which the evaluator was to note the "clinical findings including results of mental status examinations which demonstrate the severity of your patient's mental impairment and symptoms," Valenti wrote: "The client appears to rise to the occasion and can manage herself for a higher level of functioning when family members need her assistance, and retreats after others have stabilized." (Tr. 298). As for Walker's prognosis, Valenti opined: "The prognosis is good if the client is consistent with treatment — the client is highly motivated and intelligent and follows treatment recommendations." (Tr. 300). In response to a question about whether psychiatric conditions exacerbated the client's experience of pain or other physical symptoms, Valenti wrote: "The client has physical pain in joint, muscles which is exacerbated when stressed psychologically, and she has seriously debilitating headaches when she becomes focused on others." (Id.). Valenti indicated that she anticipated Walker would be absent from work more than three times per month due to her impairment or treatment and would have difficulty working at a regular job on a sustained basis. (Tr. 301). Finally, Valenti indicated that Walker had marked limitations in activities of daily living and social functioning, constant deficiencies of concentration, persistence, or pace, and continual episodes of decompensation. (Tr. 302).
Following his May 22, 2002 appointment with Walker, Dr. Warnick referred her for a consultation with a rheumatologist, Dr. Schwartz, who examined Walker on June 25, 2002. (Tr. 185). Following a physical examination, Dr. Schwartz diagnosed Walker with fibromyalgia, hand pain of unknown etiology, enlarged thyroid, shoulder bursitis, sciatica, and chondromalacia. (Tr. 186). Walker had a follow-up visit with Dr. Warnick on July 18, 2002 to review the results of the consultation with Dr. Schwartz. (Tr. 187). Walker saw Dr. Warnick again on August 8, 2002 regarding her fibromyalgia, at which point he completed a "Fibromyalgia Residual Functional Capacity Questionnaire" ("FRFC") regarding Walker for the SSA. (Tr. 188).
The record includes a second copy of this same FRFC, which differs from the original only in that Dr. Warnick added a second signature, dated October 1, 2003, beneath his original one of August 9, 2002. (Tr. 309-14).
In the August 8, 2002 FRFC, Dr. Warnick, inter alia: indicated that Walker met the American Rheumatological criteria for fibromyalgia, had been diagnosed with fibromyalgia and depression, and had an impairment that had lasted or could be expected to last more than twelve months; listed the symptoms she suffered from; detailed the location and nature of her pain; indicated that she could sit for thirty minutes at a time and stand for 15 minutes; noted that in an eight-hour day she could sit or stand/walk for approximately four hours total and would need frequent, unscheduled breaks; noted that she could lift no more than 10 pounds and do so only occasionally; observed that she had "significant limitations" with respect to repetitive reaching, handling, or fingering and during an eight-hour workday could only perform repetitive tasks with her hands, fingers, or arms for 10% of the time; and opined that she would need, on average, to miss work more than three times per month as a result of her impairments or treatment thereof. (Tr. 303-08).
In the meantime, Walker completed a second ADL questionnaire for the SSA, this one dated August 2, 2002. (Tr. 144-48). By and large, her responses were consistent with those on her March 9, 2002 ADL questionnaire. (Id.). Notably, however, Walker no longer indicated that she did not need assistance with personal care/grooming and instead wrote "need someone to motivate me to get dressed. Usually stay in pajamas and clean house all day." (Tr. 144). In response to the question about how her condition stopped her from working, Walker stated:
Paranoid about being around other people, anxious, lack of concentration, rage, pressure, unable to complete task. Fear, self consci[ous] about appearance (50 pds overweight and bald due to hair loss). Nervousness, panic attacks. Limited use of right arm and left knee sometimes. Can't sit long. Can't stand long.
(Tr. 148).
Dr. Lipski, a state agency physician, completed a PRFCA regarding Walker on August 19, 2002. (Tr. 246-53). Dr. Lipski did not examine Walker, but instead based her findings on the file evidence provided to her by the SSA, which did not include "treating or examining source statements regarding the claimant's physical capacities." (Tr. 252). In the PRFCA, Dr. Lipski indicated that Walker could occasionally lift 20 pounds, could frequently lift 10 pounds, could stand and/or walk — as well as sit — for a total of approximately six hours in an eight hour workday, and was unlimited in her ability to push and/or pull. (Tr. 247). Dr. Lipski also determined that Walker had occasional postural limitations and was occasionally limited in her ability to perform right-sided overhead reaching. (Tr. 248-49).
Pursuant to a request from the SSA, psychiatrist Dr. Nizetic evaluated Walker on August 13, 2002. (Tr. 243-45). Walker told Dr. Nizetic that she suffered from panic attacks, generalized anxiety, and PTSD; described childhood experiences of sexual abuse, including by family members; and complained of flashbacks, disturbed sleep, shakes, chest tightness, recurring headaches, fibromyalgia, and other physical symptoms. With respect to daily functioning, Dr. Nizetic found that Walker "presents mild restriction of her daily activities and moderate constriction of her interest. Claimant's ability to relate to other people is not impaired." (Tr. 244). In the "Diagnostic Impressions" section of her report, Dr. Nizetic listed the following: R/O PTSD [rule out Post Traumatic Stress Disorder]; Panic Disorder with Agoraphobia; Polysubstance Abuse (Alcohol Cannabis), History of; C/O [complains of] Fibromyalgia, Recurring Headaches; Occupational Problems; 70 GAF. (Tr. 244). In the summary of her findings regarding Walker, Dr. Nizetic observed: "Although her symptoms suggest PTSD, her presentation did not meet the minimum criteria for such disorder. Claimant also complained of discrete periods of discomfort characterized by SOB [shortness of breath], shakes, hot flashes, chest discomfort, and `feelings like having a heart attack.' As presented, her symptoms imply a panic disorder." (Tr. 245).
Walker had a follow-up visit with rheumatologist Dr. Schwartz regarding her fibromyalgia, hand pain, and chondromalacia on August 26, 2002. (Tr. 189). Walker reported having experienced numbness and tingling, as well as neck pain, on her left side for the past week. Dr. Schwartz increased the dosage of Flexeril, a muscle relaxant, she had previously prescribed to Walker. (Id.).
On September 3, 2002, state agency psychiatrist Dr. Davidson completed a record review regarding Walker and, based thereupon, filled out a MRFCA. (Tr. 255-72). Dr. Davidson concluded that due to her mental disorders, Walker had moderate restriction in her activities of daily living, mild difficulty maintaining social functioning, moderate difficulty maintaining concentration, persistence, or pace, and had experienced one or two episodes of decompensation of an extended duration. (Tr. 265). In the "Functional Capacity Assessment" section of the form, Dr. Davidson opined as follows regarding Walker's limitations:
A. No cognitive impairment.
B. Her anxiety does interfere with attention and she may have some difficulty maintaining attendance, but should be capable of functioning in an unpressured setting.
C. She would need an uncritical and unpressured setting.
D. She has difficulty with traveling independently, but should be able to function where travel is not necessary.
(Tr. 271-72).
In file notes dated September 19, 2002, Valenti assessed Walker with a current GAF of 55, which was also the highest GAF attained in the past year, and an expected GAF upon discharge of 85. (Tr. 273-74). Valenti noted that there was no change in Walker's depression and that she had "severe depressive sy[mptom]s at times," but some improvement in her anxiety/panic attacks and fibromyalgia. (Tr. 274).
Walker had another follow-up appointment with Dr. Schwartz on October 15, 2002. (Tr. 190). Walker reported that she was experiencing increased pain in her left knee approximately three times per week. (Id.). Dr. Schwartz found that Walker was minimally tender and that her knees were cool, with no fluid build-up, a full range of motion, and no instability. (Id.). Dr. Schwartz indicated a diagnosis of fibromyalgia and knee pain and continued Walker on her current prescribed medications. (Id.).
According to Dr. Warnick's notes of an October 28, 2002 appointment with Walker, she presented at the visit with no muscle pain or joint pain/stiffness. (Tr. 191-92).
Walker saw Dr. Schwartz for a follow-up appointment on February 12, 2003, during which she reported an increase in knee pain. (Tr. 293). Dr. Schwartz noted that an x-ray of the knee was negative and that upon exam, Walker's knees were cool, with no fluid build-up and good range of motion. (Id.). Dr. Schwartz detected some mild symptoms in Walker's left knee and also, upon examining Walker's shoulders, mild discomfort on her right side. (Id.). Dr. Schwartz reiterated the diagnosis of fibromyalgia, hand pain, and chondromalacia she had made during her initial examination, continued Walker on her current medications, and prescribed shoulder and quadriceps strengthening exercises. (Id.).
Dr. Schwartz's notes from a July 8, 2003 follow-up appointment indicate that Walker reported she had not done her knee exercises, was walking more, and had some pain that varied in intensity. (Tr. 296). Walker's physical examination was negative. (Id.). Dr. Schwartz listed a diagnosis of fibromyalgia and chonodromalacia patella, and continued Walker on the same medications. (Id.).
Valenti completed a second MIQ regarding Walker on September 3, 2003, to which Dr. Warnick added his signature on October 1, 2003. (Tr. 315-18). Valenti assessed Walker with a current GAF of 65, the highest she had experienced during the past year. (Tr. 315). In response to a question soliciting clinical findings demonstrating the severity of Walker's impairment, Valenti wrote: "Avoidance is predominant feature of impairment — the client retreats to her room and [unintelligible] activities to avoid anxiety provoking stimuli." (Tr. 316). Valenti reiterated her opinion that Walker would be absent from work more than three times per month due to her impairments or treatment, and also would have difficulty working at a regular job on a sustained basis. (Tr. 317). Valenti's responses to two questions were changed from those she gave on the June 2002 MIQ: Valenti indicated that Walker had no restrictions — rather than marked restrictions — in her activities of daily living and had repeated (rather than continual) episodes of decompensation. (Tr. 318). She reiterated her prior opinions, however, that Walker had marked difficulties in maintaining social functioning and frequent deficiencies of concentration, persistence, or pace. (Id.).
Walker testified at a November 12, 2003 hearing before Administrative Law ("ALJ") Judge Barry H. Best regarding her application for benefits. In response to questioning from the ALJ, Walker testified that she lived in one half of a duplex with her husband and three children, ages 17, 12, and 11. (Tr. 33-34). Walker testified that she had worked for pay since her 2001 alleged onset date: in her capacity as a licensed real estate agent, she had received commissions in December 2002 and January 2003 for selling houses to her sister and a family friend. (Tr. 35). Walker testified that the last time she had engaged in real estate activities was August 2003, at which point she was only listing one property and had to stop doing so because the house "was just too difficult for me to show" on account of its distance, approximately 30 miles, from her home in Boston. (Tr. 36). When asked by the ALJ why she felt she was currently unable to do any work, Walker said, "[a]nxiety and pain mostly, going out of the house to get to a job and not being able to stay at a job without missing work because of pain or anxiety." (Tr. 39). When the ALJ asked Walker whether she ascribed her pain "to fibromyalgia or some other source," Walker answered: "I'm not really sure, for the most part fibromyalgia. I have migraines. I don't know what — if it's caused by the fibro. I have a problem with my shoulder, my right shoulder that could be from bursitis and fibro. I'm not sure quite what the cause of the pain is." (Tr. 40-41).
In response to a request by the ALJ that she describe her "good days" and "bad days," Walker testified that on a "good day" she would arise at 6 a.m., wake her children and send them off to school, spend the day cleaning or otherwise keeping herself busy, and have minimum pain. (Tr. 42). On a "bad day," by constrast, Walker usually would not be able to get her children up and prepared for school, would do "basically nothing" during the day, and, on a "very bad day" would sleep most of the day. (Id.).
Walker testified that she used the family computer occasionally, was sometimes able to get the necessary housework done, drove on average once a day, but not without someone accompanying her, and she did not go to the grocery store, "or anywhere for that matter," alone. (Tr. 42-43). When asked why, Walker explained that she was concerned about having a panic attack and how it was hard for her to go into a store alone. (Tr. 44). Walker testified that she watched TV and read, but had been unable to maintain her doll-making hobby. (Id.). Regarding social interaction, Walker testified that she saw her sister — who lived in the other half of the duplex — on a daily basis, and saw her mother at least three times per week, but otherwise did not see friends or family. (Tr. 45).
In response to questions from the ALJ, Walker testified that she could lift no more than ten pounds, could stand on her feet for 15-20 minutes, and experienced pain and pressure in her lower back if she sat for longer than 45-60 minutes. (Tr. 46). Regarding her pain, which she described as a "more muscle nerve kind of pain" than bone pain, Walker testified that she took Ibuprofen, which sometimes helped to alleviate it. (Id.).
In response to questions from her attorney regarding her anxiety, Walker testified that she experienced anxiety attacks, usually lasting 10 to 30 minutes, "[a] couple of times a week depending on the situation." (Tr. 51). Walker testified that it took her a day to return to normal functioning after each panic attack, and that although she had experienced panic attacks in her own home, she was more likely to have them when she was in a "strange place." (Tr. 51-52).
When asked by her attorney what affect her physical pain had on her anxiety, Walker responded: "I'm not quite sure how to answer that. I don't recall having an anxiety attack and not having pain, but I guess I could say I've probably had pain and not have had an anxiety attack because of the pain." (Tr. 52). Walker testified that her pain had worsened since the onset of her anxiety attacks, which she attributed to "[t]he pain being harder to deal with because of the anxiety attacks." (Tr. 52-53). Walker continued, "I got diagnosed with fibro in 1998. Prior to that and during that I've always been able to mostly live with the pain or suck it up so to speak and just do what I need to do. With the anxiety attacks my mind I guess is more focused on that and those symptoms, which makes the pain more dominant." (Tr. 53).
In response to a hypothetical question from her attorney about working, Walker stated that she did not think she would be able to work at a five-day-a-week job because "[a]t least one day, if not more than one day, I would miss work just because of having a panic attack or waking up and not — my shoulder, not being able to mo[v]e or something like that." (Id.). Walker testified that she had what she would characterize as a "bad day" with respect to pain at least five times per month. (Tr. 54). On those days, "I'm not getting out of bed. You know I might get up and have pain and the pain gets worse. Then I'm not going to do anything or do as little as possible, a heating pad, lay down, take my meds and that's the end of my day. Usually when that happens my children kind of help out until their dad gets home or whatever." (Id.).
The ALJ also received testimony at the hearing from vocational expert Michael LaRaia. (Tr. 54-68). The ALJ asked LaRaia to assume someone of Walker's age, education, and work experience who had a residual functional capacity for light work with "moderate restrictions in the areas of maintaining attention and concentration, dealing with public, co-workers, and supervisor, and dealing with ordinary expectations of attendance, persistence, and pace." (Tr. 57). After detailing what he meant by "moderate restrictions" in these areas, the ALJ asked LaRaia whether the hypothetical claimant could perform any of the work Walker had done in the past. (Tr. 59). LaRaia testified that Walker's prior work would be precluded and that the skills she had acquired in her previous work were non-transferable. (Id.).
The ALJ defined "moderate restriction in the areas of maintaining attention and concentration, dealing with public, co-workers, and supervisor, and dealing with ordinary expectations of attendance, persistence, and pace" as follows:
A moderate impairment in maintaining attention and concentration would leave the Claimant able to maintain concentration and attention sufficient to perform simple work tasks for eight hour workdays, assuming short work breaks on an average every two hours. With the ability to maintain concentration or attention required for more complex or detailed work on an occasional basis, but not for extended periods of time, certainly not continuously. And moderate impairment in dealing with other co-workers and supervisors would mean that the Claimant would be able to interact with the public on an occasional basis provided interaction did not require more than an exchange of non-personal work related information or hand off of products or materials. Claimant could work in the presence of co-workers and exchange an appropriate occasional, social interaction, but not within the context of a work team when work related interaction with co-workers would be constant or physical[ly] close. And could deal appropriate[ly] with supervisors on an occasional basis as to where subject to normal monitoring and review of work in an industrial setting for example, but not at circumstances in which because of product considerations or for other reasons the monitoring or intervention by supervisors is physically close or frequent or continuous. And with respect to dealing with expectation o[f] attendance, perseverance and pace with a moderate limitation the Claimant would be able to attend work regularly with an occasional, not more than once monthly, late arrival or unscheduled early departure. Could remain at an assigned workstation throughout a normal workday. Assuming again normal work breaks every, approximately two hours. And could work at a generally consistent pace with not more than minor variations. The Claimant would have only limited flexibility regarding work hours or work schedule or change in heightened standards of productivity.
(Tr. 57-58).
LaRaia was, however, able to identify other jobs in the regional or national economy that the hypothetical claimant could perform, as well as the numbers in which those jobs existed in the regional economy, which was defined as Rhode Island and southeastern Massachusetts. The jobs, and the associated number of positions available regionally, were as follows: security guard or representative (1,329); hand packer (2,700); assembler (7,300); production inspector (2,290); and cleaner (2,200). When the hypothetical was modified such that the claimant had only sedentary exertional capacity, LaRaia testified that the claimant could perform the following jobs, which were available in the regional economy in the numbers specified: security personnel (700); packager (1,185); assemblers (2,658); and production inspector. (Tr. 60).
The vocational expert did not specify how many inspector positions were available in the regional economy. (Tr. 60).
Finally, the ALJ asked LaRaia to identify the "upper limit on absenteeism" tolerated within the industries described. (Tr. 61). LaRaia testified that upper limit on absences from work in the relevant industries was one-and-a-half to two days per month (Id.).
B. Procedural History
Walker filed her application for SSDI and SSI benefits on December 27, 2001, alleging that she had been unable to work due to her disabling conditions since October 19, 2001. (Tr. 99-100). In a "Disability Report" submitted during the application process, Walker listed the following as "illnesses, injuries or conditions" limiting her ability to work: fibromyalgia, chronic fatigue syndrome, post traumatic stress disorder, manic depression, panic attacks, and anxiety disorder. After Walker's initial application was denied on April 22, 2002 (Tr. 75), she filed a request for reconsideration via case review. (Tr. 81).
The initial decision to deny benefits was upheld upon reconsideration in September 2002 (Tr. 83), and Walker requested a hearing before an ALJ. (Tr. 87). The hearing — at which Walker was represented by counsel — occurred on November 12, 2003. (Tr. 30-72). By decision dated March 25, 2004, the ALJ concluded that Walker was not disabled within the meaning the Social Security Act and, therefore, the denial of her application for SSDI and SSI benefits was upheld. (Tr. 14-22).
Thereafter, Walker appealed the decision of the ALJ to the Appeals Council. (Tr. 355-56). The Appeals Council denied the request for review by letter dated June 24, 2004, and, as a result, the ALJ's decision became the final decision by the Commissioner of the SSA in Walker's case. (Tr. 7-9). Having thus exhausted her administrative remedies, Walker commenced this action on August 10, 2004.
II. DISCUSSION
Walker argues that the ALJ committed three errors in his decision denying her SSDI and SSI benefits. First, she contends that he improperly disregarded or discredited the opinions of her mental health counselor and primary care physician, and failed altogether to consider the opinion Dr. Nappi. Walker next argues that the ALJ erred when he afforded greater weight to the opinions of consultative examiners than to those of her treating providers without having "good reasons" for doing so. Finally, Walker claims that the ALJ failed to take her physical limitations into account when assessing her residual functional capacity.
A. Standard of Review
In resolving the appeal of a final decision by the Commissioner denying an application for Social Security benefits, the district court is empowered to enter "a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The decision to deny an application for benefits must be upheld unless the Commissioner "has committed a legal or factual error in evaluating a particular claim." Manso-Pizarro v. Sec'y of Health Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
The factual findings of the Commissioner, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In this context, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 403 U.S. 389, 401 (1971). Furthermore, it is "the responsibility of the [Commissioner] to determine issues of credibility and to draw inferences from the record evidence." Ortiz v. Sec'y of Health Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). The resolution of any conflicts in the evidence is the province of the Commissioner, not the court.Id. If, however, the Commissioner's findings of fact are "derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts," they are not conclusive. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
B. The Disability Standard and the Decision of the ALJ
1. The Disability Standard
To be considered disabled under the Social Security Act — a prerequisite to eligibility for SSDI and SSI benefits — a claimant must establish that he is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). Furthermore, the claimant's disabling physical or mental impairment or impairments must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).
To test whether a claimant is disabled under this definition, SSA regulations require the Commissioner to engage in a sequential analysis consisting of up to five steps. 20 C.F.R. § 404.1520; see Goodermote v. Sec'y of Health Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). The questions must be posed in the following order and, as indicated below, the inquiry may be cut short by a finding that the claimant is disabled or not disabled at a particular step.
20 C.F.R. Part 404 sets forth the requirements regarding the receipt of SSDI benefits, whereas 20 C.F.R. Part 416 provides those regarding SSI benefits. Because the text of the two parts is substantially parallel, I cite only to Part 416.
First, the Commissioner must determine whether the claimant is presently employed performing substantial gainful activity. If the claimant is thus employed, she is not disabled within the meaning of the statute and the inquiry ends. 20 C.F.R. § 416.920(a)(4)(i).
Second, the Commissioner is to assess whether the claimant has a severe, medically determinable impairment or combination of impairments meeting the duration requirement (i.e., having lasted or being expected to last for a continuous period of not less than twelve months). 20 C.F.R. § 416.920(a)(4)(ii). A "severe" impairment is one that "significantly limits" the claimant's "physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c). If the claimant does not have such an impairment, she will automatically be found not disabled. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does have a qualifying impairment, the inquiry continues.
The third step entails additional consideration of the severity and duration of the claimant's impairment. Specifically, the Commissioner is to ask if the claimant's impairment "meets or equals" one of the listed impairments in Appendix 1 to the SSA regulations and also meets the duration requirement. 20 C.F.R. § 416.920(a)(4)(iii). If it does, the claimant will be found disabled. If not, rather than finding the claimant non-disabled, the analysis proceeds.
Before taking up the fourth and fifth questions, the claimant's residual functional capacity ("RFC") is assessed "based on all the relevant medical and other evidence" in the claimant's case record. 20 C.F.R. § 416.920(e). "Residual functional capacity" is defined as "the most [the claimant] can still do despite [her] limitations." 20 C.F.R. § 416.945(a)(1).
Thus, when addressing the fourth step of the disability analysis, the following findings have already been made: (1) the claimant is not currently employed performing substantial gainful activity; (2) the claimant has a severe impairment limiting her ability to perform "basic work activities"; (3) the claimant's impairment is not one of the Appendix 1 impairments; and (4) the claimant's RFC has been determined.
At the fourth step, the Commissioner assesses whether the claimant, in light of her RFC, can still perform her "past relevant work." 20 C.F.R. § 416.920(a)(4)(iv). The claimant bears the burden of demonstrating that she does not have sufficient RFC to perform her past relevant work. See Vasquez v. Sec'y Health Human Servs., 683 F.2d 1, 2 (1st Cir. 1982). If the Commissioner determines that the claimant can perform her past relevant work, the claimant is found not disabled and the analysis ends. Id. If, however, the claimant succeeds in demonstrating that is no longer able to perform her prior work, the Commissioner moves on to the fifth and final step.
In the final stage of the analysis, the Commissioner assesses whether the claimant can "make an adjustment to other work," taking into account the claimant's age, education, work experience, and RFC. 20 C.F.R. § 416.920(a)(4)(v). At this point, the burden shifts to the Commissioner to demonstrate that jobs exist in the national economy that the claimant can perform despite his impairment. See Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991) (per curiam); Vasquez, 683 F.2d at 2. If the Commissioner establishes that jobs exist to which the claimant can adjust, the claimant will be found not disabled. 20 C.F.R. § 416.920(a)(4)(v). If, on the other hand, the Commissioner fails to show that the claimant is employable with her impairments, a finding of disability must follow. Id.
2. The ALJ's Decision
In the present action, proceeding through the first three steps of the analysis set forth above the ALJ found that: (1) Walker had not engaged in substantial gainful activity since her alleged onset date of October 19, 2001; (2) the medical evidence established that Walker suffered from fibromyalgia and anxiety, both of which were "severe" impairments within the meaning of the SSA regulations; and (3) the impairments, while severe, did not meet or equal — either singly or in combination — any of the impairments listed in Appendix 1. (Tr. 15-16).
In reaching the conclusion that the impairments were not of "listing-level" severity, the ALJ called into question the basis of findings by Walker's primary care physician and mental health counselor that she had "marked" functional limitations. The ALJ observed that the "assessments appear to be based on the claimant's subjective complaints and not on the objective evidence as a whole," and therefore determined that they would not be afforded controlling weight. (Tr. 16). Furthermore — and presumably with respect to Walker's anxiety impairment, rather than her fibromyalgia — the ALJ noted that:
[t]he claimant's primary care physician (through whom the claimant has received virtually of [sic] her medical care for mental impairment) is not a psychiatrist, and her record reveals that she has never been treated by a psychologist or a psychiatrist, or referred for further treatment other than counseling and medications prescribed by her primary care physician.
(Tr. 16). The ALJ indicated that in reaching the conclusion that Walker did not have listing-level impairment, he had "considered the opinions of the State Agency medical consultants who evaluated this issue . . . and reached the same conclusion, i.e. that the claimant's impairment and/or combination of impairments do not meet or equal a listed impairment(s)." (Tr. 16).
Before proceeding to the fourth and fifth steps, the ALJ assessed Walker's RFC. His RFC finding — which he articulated in the context of a hypothetical question posed to the vocational expert during the hearing on Walker's case, as set forth supra at footnote 4 — was that Walker was "capable of performing a significant range of light work," with only moderate limitations. (Tr. 19-20). The ALJ determined, inter alia, that Walker could "maintain concentration and attention sufficient to perform simple work tasks for an eight hour workday," and that she was "able to attend work regularly, with an occasional (not more than once monthly) late arrival or unscheduled early departure; remain at an assigned work station throughout a normal work day, assuming normal work breaks; and work at a generally consistent pace with not more than minor variations." (Tr. 19).
Based upon the testimony of the vocational expert, the ALJ determined at the fourth step of the analysis that, in light of her RFC, Walker was unable to perform her past relevant work. (Tr. 19). Accordingly, the ALJ found that the burden shifted to the SSA in the fifth stage to demonstrate that jobs Walker could perform — given her age, education, past relevant work experience, and RFC — existed in significant numbers in the national economy. (Id.). Relying upon the testimony of the vocational expert regarding the various jobs Walker could perform given these limitations — all of which the expert found existed in significant numbers in the regional economy — the ALJ concluded that Walker was not disabled within the meaning of the applicable regulations. (Tr. 20, 22).
C. Review of the Commissioner's Decision
Walker's challenge to the ALJ's decision raises three grounds, contending that he erred by: (1) disregarding or discrediting the opinions of her mental health counselor and primary care physician, and failing to consider the opinion Dr. Nappi; (2) unjustifiably according greater weight to the opinions of consultative examiners than to those of treating providers; and (3) failing to consider her physical limitations due to fibromyalgia when determining her RFC.
Walker's first two arguments are unavailing. In contending that the ALJ "refus[ed] to consider relevant evidence of a mental impairment," Walker conflates consideration of evidence with a determination regarding its value. Clearly the ALJ took into account the opinions of Walker's therapist and primary care physician regarding her mental impairments. The ALJ referenced the opinions explicitly in his decision, but determined that they were "not afforded controlling weight" because the "assessments appear to be based on the claimant's subjective complaints and not on the objective evidence as a whole." (Tr. 16). Consistent with the ALJ's findings in this regard, the "clinical findings" sections of the two MIQs completed by Valenti, and co-signed by Dr. Warnick, were notable for the absence of what could be termed "objective evidence" of the severity of Walker's impairments — for instance, mental status examinations — offering instead narrative descriptions, presumably based upon Walker's self-report, of her behavior.
The ALJ also referenced Dr. Nappi's report in his decision, albeit in a footnote regarding the range of GAF scores for Walker in the record. (Tr. 18, n. 2). Dr. Nappi's conclusions — like those of the other consultive experts — were based on Walker's self-report of her condition and its impact on her activities of daily living. (Tr. 231-32). The failure by the ALJ to provide a separate, detailed discussion of Nappi's report in his decision was, if anything, harmless error. The ALJ discussed at length in the decision why he found Walker's statements about her condition not fully reliable. Presumably, he would have afforded relatively little weight to a report that drew its conclusions directly from those statements.
The "clinical findings" section of the June 12, 2002 MIQ stated: "The client appears to rise to the occasion and can manage herself for a higher level of functioning when family members need her assistance, and retreats after others have stabilized." (Tr. 298) The parallel section of the September 3, 2003 MIQ read: "Avoidance is predominant feature of impairment — the client retreats to her room and [unintelligible] activities to avoid anxiety provoking stimuli." (Tr. 316).
Pursuant to the applicable regulations, the opinions of a treating physician must be given controlling weight when they concern the "nature and severity" of the claimant's impairment, are "well-supported by medically acceptable clinical and laboratory diagnosis techniques," and are "not inconsistent with the other substantial evidence" in the claimant's case record. 20 C.F.R. § 404.1527(d). The First Circuit has explicitly rejected aper se rule requiring that opinions of treating physicians be given greater weight than those of non-treating physicians in this context. See Arroyo v. Sec'y Health Human Servs., 932 F.2d 82, 89 (1st Cir. 1991) ("The law in this circuit does not require ALJ's to give greater weight to the opinions of treating physicians."). It falls to the ALJ — not the reviewing court — to make credibility determinations, draw inferences from the record, and resolve any conflicts in the evidence. See Ortiz, 955 F.2d 769. Accordingly, the ALJ operated within the bounds of his authority in assessing how much weight to accord the opinions of Walker's treating providers.
In this case, the ALJ supported his decision not to give controlling weight to the opinions of Walker's treating providers with two lines of analysis. First, he determined that the opinions were not supported by objective evidence (i.e., "medically acceptable clinical and laboratory diagnostic techniques"), and instead were based on Walker's "subjective complaints." The ALJ went on to find that Walker's subjective complaints about her condition were "less than fully reliable" because, inter alia, her complaints were inconsistent with her self-report of activities of daily living, she had not been referred by her treating providers to psychiatric specialists for "more intensive intervention or care," and the two consultative experts who examined Walker, Drs. Ober and Nizetic, concluded that her psychological impairment only mildly limited her ability to engage in work-related activities. (Tr. 16-17).
In his findings, the ALJ noted that Walker had "reported and testified" to the following:
[s]he lives at home with her three children. She is able to take care of her own personal care needs as well as take care of her children and get them off to school. She is able to perform light household chores such as cleaning, washing clothes, cooking, and vacuuming. She goes shopping, drives a car, watches some television, and participates in church group activities.
(Tr. 17). From Walker's self-report of her activities of daily living, the ALJ concluded that:
she is an individual who is quite able to meet both routine obligations of taking care of herself and her three children, as well as engage in additional activities of interest. She has no more than seldom/slight restrictions in her activities of daily living (Exhibits 4E, 6E) [the ADL questionnaires completed by Walker]. The undersigned finds that based on the claimant's impairments and assessments drawn from her activities of daily living, she is capable of physical work at the light exertional level.
(Tr. 17).
Walker makes much of the fact that the ALJ commented upon the type of care she received for her psychological conditions and argues that he attempted to disguise his criticisms by a finding of evidentiary inconsistency. The relevant portion of the ALJ's decision reads as follows:
The absence of treatment for acute symptoms and the absence of treatment by any medical specialist at any time (especially, as notes, in the context of treatment by a counselor in a community mental health center where psychiatric care could be easily arranged if necessary) is inconsistent with the degree of functional impairment the claimant alleges: If signs and symptoms were severe, either or both her primary care physician and her counselors at the mental health center would at some point have referred her for more intensive intervention and care.
(Tr. 17).
There can be no doubt that an ALJ is not permitted to "substitute his own layman's opinion for the findings and opinion of a physician," Gonzalez Perez v. Sec'y of Health Human Servs., 812 F.2d 747, 749 (1st Cir. 1987), and to the extent that the above text could be read as the ALJ supplanting the opinion of Walker's treating providers with his own medical conclusions, it would be error. But, the ALJ referenced other substantial evidence — namely, Walker's report of her activities of daily living and the opinions of the consulting experts — in support of his determination that Walker was not disabled by her psychological impairments. His decision not to give controlling weight to the opinions of Valenti and Dr. Warnick on this matter, therefore, does not provide a basis for reversal or remand. Cf. Arroyo v. Barnhart, 295 F. Supp. 2d 214, 221 (D. Mass. 2003) (where ALJ committed legal error in one reason for giving "little weight" to opinions by claimant's treating providers, holding that his "decision can still pass muster if the other reasons given to accord medical reports little weight are adequately supported").
By contrast, the third argument advanced by Walker — i.e., that when assessing her RFC the ALJ failed to consider her physical limitations due to fibromyalgia — does warrant remand of the case for further proceedings. As discussed in greater detail in Part I.A supra, both in the questionnaires she filled out and in her testimony before the ALJ, Walker explained how her impairments — both psychological (i.e., anxiety/panic disorders) and physical (i.e., fibromyalgia) — at times severely limited her ability to engage in activities of daily living. (Tr. 42-45; 52-54; 134-37; 138-41; 144, 148). As discussed above, the ALJ articulated specific reasons for not affording controlling weight to the conclusions of Walker's treating providers regarding the severity of her psychological impairments, specifically referencing the reports from two consultive examiners who met with Walker in order to assess her psychological impairments. (Tr. 17). Walker informed both consultative examiners that she had been diagnosed with and suffered from fibromyalgia (Tr. 204, 243), but neither expert made particular findings regarding this condition, presumably because it was beyond the field of expertise of both.
The documentation from Walker's treating physicians — both Dr. Warnick, her primary care physician, and Dr. Schwartz, the rheumatologist to whom Dr. Warnick referred her for an expert opinion regarding whether she had fibromyalgia — includes repeated and specific reference to fibromyalgia. Following her initial examination of Walker on June 25, 2002, Dr. Schwartz made a diagnosis of fibromyalgia, which she then reiterated in her notes of each follow-up appointment she had with Walker over the subsequent year. The record is devoid of any medical evidence tending to show that Walker did not suffer from fibromyalgia; the dispute, if any, is regarding the extent to which she was limited by the condition.
Fibromyalgia is a rheumatic disease and, accordingly, rheumatology is the medical specialty with which it is associated.
Although fibromyalgia "may not lend [itself] to objective clinical findings," Cook v. Liberty Life Assurance Co. of Boston, 320 F.3d 11, 21 (1st Cir. 2003), there is an established and accepted protocol for diagnosing it:
The American College of Rheumatology deems the diagnosis [of fibromyalgia] appropriate for an otherwise unexplained condition in which a patient complains of pain on the left side of the body, the right side of the body, above the waist, below the waist, and in the axial skeleton, and in at least 11 of 18 specified points when the examining physician palpates them with his thumb.Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 877 (9th Cir. 2004) (citing Frederich Wolfe, et al., The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia, 33 Arthritis and Rheumatism (No. 2) 160, 171 (February 1990)). As a rheumatologist, Dr. Schwartz presumably was familiar with the diagnostic protocol for fibromyalgia.
The SSA arranged for two doctors to complete physical Residual Functional Capacity Assessments regarding Walker's fibromyalgia. The physical RFC assessments were based on reviews of the paper record only — which contained no "treating or examining source statements regarding the claimant's physical capacities" — and neither doctor performed an in-person examination of Walker. Both doctors concluded that Walker was not significantly limited by her fibromyalgia, apparently basing their findings on her self-report in the ADL questionnaires of being able to perform household chores, drive short distances, shop, and cook. (Tr. 235, 247). Absent from both reports was any mention of repeated comments by Walker in the ADL questionnaires that she was prevented, at times, from performing these activities due to her physical pain. Additionally, neither report made a finding regarding how frequently Walker could be expected to be absent from work due to her fibromyalgia. The ALJ neither referenced nor discussed either of these physical RFC assessments in his decision.
As noted above, Walker's primary care physician, Dr. Warnick, completed a "Fibromyalgia Residual Functional Capacity Questionnaire" regarding Walker in August 2002 and October 2003. In each questionnaire, Dr. Warnick opined that on average Walker would be "likely to be absent from work as a result of the impairment or treatment" (i.e., fibromyalgia) more than three times per month. (Tr. 307, 313). This finding was consistent with Walker's testimony before the ALJ that had a "bad day" in terms of pain — during which, essentially, she was confined to bed — at least five times per month. (Tr. 54).
See footnote 3, supra.
In his decision, the ALJ made no reference to either Dr. Warnick's opinion regarding expected absences or Walker's testimony about how frequently she was debilitated by pain. He did, however, conclude in the context of his RFC finding that Walker was "able to attend work regularly, with an occasional (not more than once monthly) late arrival or unscheduled early departure." (Tr. 19). It is not clear what medical evidence the ALJ relied upon in reaching this conclusion, which is inconsistent with Dr. Warnick's opinion and Walker's testimony, and for which there is no direct support in the opinions of the agency physicians who considered Walker's physical RFC. The ALJ incorporated this finding into his hypothetical question to the vocational expert regarding whether jobs existed in the regional economy that someone with Walker's age, education, work experience, and RFC could perform. In light of the testimony by the vocational expert that only one-and-a-half to two absences per month would be tolerated in the fields in which he concluded Walker could be employed, the RFC holding by the ALJ on this point was case determinative. To put it another way, if the ALJ had credited the testimony by Walker and opinion of Dr. Warnick regarding how frequently she would need to be absent from work due to her fibromyalgia, a finding of disability would have followed.
The First Circuit has held that "in determining the weight to be given to allegations of pain. . . . complaints of pain need not be precisely corroborated by objective findings, but they must be consistent with medical findings." Dupuis v. Sec'y Health Human Servs., 869 F.2d 622, 623 (1st Cir. 1989) (citingAvery v. Sec'y Health Human Servs., 797 F.2d 19, 21 (1st Cir. 1980); DaRosa v. Sec'y Health Human Servs., 803 F.2d 24, 26 (1st Cir. 1986)). Here, Walker's complaint of fibromyalgia pain was consistent with medical findings by both her primary care physician and a specialist in the relevant field that she suffered from the condition. Consistent medical findings also supported her report of how frequently she was completely debilitated by fibromyalgia-related pain (i.e., more than three times per month). As the Commissioner points out, Dr. Warnick did not reference any specific medical evidence in support of his opinion on this point. While this likely would provide a justification for the ALJ according the evidence less weight vis-a-vis medical findings with more robust support, it does not entitle him "to ignore medical evidence" entirely, as he seems to have done here. Nguyen, 172 F.3d at 35. By reaching a conclusion about Walker's expected absences that contradicted the only medical evidence directly on point, the ALJ appears to have "substitute[d] his own views for uncontroverted medical opinion," an analytical operation he is "not at liberty" to undertake.Id.
Unlike various of the other inquiries on the fibromyalgia RFC questionnaire, the expected absences question included no instruction to fill-in an explanation for the response given and provided no space for doing so.
Which is not to say that the ALJ is required to accept unquestioningly the evidence from Dr. Warnick and Walker regarding her expected absences. With respect to the former, if the ALJ determines that Dr. Warnick's opinion is not credible, he must explain the basis for his conclusion (for example, the lack of objective evidence supporting the medical finding). As to Walker's testimony about her fibromyalgia-related impairment, "[o]n remand, the ALJ is still free to find that appellant's testimony regarding h[er] pain and exertional limitations is not credible. This result, however, must be supported by substantial evidence and the ALJ must make specific findings as to the relevant evidence he considered in determining to disbelieve the appellant." DaRosa, 803 F.2d at 26.
The ALJ erred by failing to consider — by either accepting or explicitly discrediting — the record evidence from Walker and her treating physician regarding how frequently she could be expected to miss work due to fibromyalgia when reaching his determination of her RFC. The failure to consider this evidence diminished the relevance of the hypothetical question posed by the ALJ to the vocational expert. Cf. Torres v. Sec'y Health Human Servs., 870 F.2d 742, 745 (1st Cir. 1989) (holding that "the ALJ must determine what evidence he credits in order to pose a hypothetical which will be relevant and helpful"); Arocho v. Sec'y Health Human Servs., 670 F.2d 374, 375 (1st Cir. 1982) ("in order for a vocational expert's answer to a hypothetical question to be relevant, the inputs into that hypothetical must correspond to conclusions that are supported by the outputs from the medical authorities"). Because the vocational expert would have concluded that there was no work Walker could perform had this evidence been accepted and incorporated into the ALJ's hypothetical question — thereby dictating a finding of disability — the error was not harmless. The case is remanded, therefore, for the ALJ to make explicit findings regarding the extent of Walker's fibromyalgia-related impairment and to factor those findings into his assessment of her RFC, specifically with reference to how frequently she could be expected to be absent from work.
III. CONCLUSION
For the reasons set forth more fully above, the motion to affirm by the Commissioner is DENIED, its decision VACATED, and the case REMANDED for further proceedings consistent herewith.