United States District Court, D. Maryland
CARINA T. DEANS
COMMISSIONER, SOCIAL SECURITY
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge
to Standing Order 2014-01, the above-captioned case has been
referred to me to review the parties' dispositive motions
and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered
the parties' cross-motions for summary judgment. [ECF
Nos. 11, 12]. I find that no hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). This Court must
uphold the decision of the Agency if it is supported by
substantial evidence and if the Agency employed proper legal
standards. 42 U.S.C. §§ 405(g), 1383(c)(3);
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996);
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
For the reasons set forth below, I recommend that both
motions be denied, that the Commissioner's decision be
reversed in part pursuant to sentence four, and that the case
be remanded to the Commissioner for further proceedings in
accordance with this Report and Recommendations.
Deans filed her application for Disability Insurance Benefits
(“DIB”) on September 4, 2012, alleging that her
disability began on April 23, 2012. (Tr. 104); see Pl.
Mot. 1. Her application was denied initially and on
reconsideration. (Tr. 105-20). An Administrative Law Judge
(“ALJ”) held a hearing on August 18, 2014, at
which Ms. Deans testified and was represented by counsel.
(Tr. 54-81). Following the hearing, the ALJ determined that
Ms. Deans was not disabled within the meaning of the Social
Security Act during the relevant time frame. (Tr. 38-53). The
Appeals Council denied Ms. Deans's request for review,
(Tr. 1-6), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Ms. Deans suffered from the severe impairments of
“diabetes mellitus, fibromyalgia, psoriatic arthritis,
obesity and osteoarthritis.” (Tr. 43). Despite this
impairment, the ALJ determined that Ms. Deans retained the
residual functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a)
except the claimant should never climb ladders, ropes or
scaffolds and can occasionally climb ramps or stairs. The
claimant can occasionally stoop, kneel, crouch and crawl. The
claimant should avoid exposure to workplace hazards such as
unprotected machinery and unprotected heights.
(Tr. 44). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Ms. Deans
could perform her past relevant work and that, therefore, she
was not disabled. (Tr. 49).
Deans raises two primary arguments on appeal: (1) that the
ALJ assigned insufficient weight to the opinion of her
treating rheumatologist, Dr. Paul Gertler; and (2) that the
ALJ improperly assessed Ms. Deans's credibility. Pl. Mot.
8-15. After a careful review of the full record, I concur
with Ms. Deans's arguments because the ALJ did not
provide substantial evidence to support her conclusions
regarding her medical impairments.
background, Ms. Deans's diagnoses include fibromyalgia.
(Tr. 43). SSR 12-2p “provides guidance on how [the
Agency] develop[s] evidence to establish that a person has a
medically determinable impairment of fibromyalgia, and how
[the Agency] evaluate[s] [fibromyalgia] in disability claims
and continuing disability reviews under Titles II and XVI of
the Social Security Act.” See SSR 12-2p, at
*1. Under the ruling, when making the RFC assessment, the ALJ
“will consider a longitudinal record whenever possible
because the symptoms of [fibromyalgia] can wax and wane so
that a person may have ‘bad days and good
days.'” Id. at *6. At steps four and five
of the sequential evaluation, the ALJ will consider the
claimant's symptoms, such as widespread pain and fatigue,
in determining whether exertional limitations, non-exertional
physical or mental limitations, or environmental restrictions
are warranted. Id.
the ALJ acknowledged SSR 12-2p in her opinion, (Tr. 44), she
did not apply its guidance properly in evaluating Ms.
Deans's condition. Specifically, the ALJ cited four
primary factors to justify the assignment of “less
weight” to the opinion of Ms. Deans's treating
rheumatologist, Dr. Gertler, and the adverse credibility
finding: (1) “generally mild findings on physical
examinations;” (2) an absence of “emergency room
intervention” or “required hospitalization due to
[Ms. Deans's] conditions;” (3) Ms. Deans's
admission that she considered “part time work during
evaluations with Dr. Gertler;” and (4) Dr.
Gertler's recommendation that Ms. Deans “exercise
as part of her treatment.” (Tr. 48). Each factor will
be addressed in turn.
the ALJ repeatedly cites Ms. Deans's “generally
mild findings on physical examinations” as a basis for
devaluing Dr. Gertler's opinion and discrediting Ms.
Deans. See, e.g., (Tr. 48). Specifically,
the ALJ summarizes several of Dr. Gertler's treatment
notes to conclude that Ms. Deans shows “essentially
normal findings with minimal and mild indications of symptoms
or limitations.” See (Tr. 46-47). However, the
ALJ's analysis does not take into account the fact that
fibromyalgia is difficult to corroborate through specific
objective findings. See, e.g., Gavigan
v. Barnhart, 261 F.Supp.2d 334, 340 (D. Md. 2003)
(noting that fibromyalgia “poses particular challenges
to credibility analyses due to the limited available
objective medical evidence.”). Indeed, SSR 12-2p
provides that the ALJ “will consider a longitudinal
record whenever possible because the symptoms of
[fibromyalgia] can wax and wane so that a person may have
‘bad days and good days.'” SSR 12-2p, at *6.
Therefore, the existence of some examinations in which no
significant symptoms were found does not contradict the
opinion of Dr. Gertler or the complaints of Ms. Deans, due to
the inherently variable nature of her condition.
numerous medical records reflect contrary findings, including
treatment notes from Dr. Gertler providing far more severe
descriptions of Ms. Deans's condition. Notably,
examination records revealed a “[f]ibromyalgia clinical
diagnosis based on generalized pain and tender points,
” (Tr. 305), “erosive inflammatory polyarthritis
with psoriasis, ” (Tr. 291), a diagnosis of
“chronic fatigue, ” (Tr. 294), “ongoing
symptomology and radiologic change on MRI, ”
id., “erosions on MRI, ” (Tr. 289),
“abnormal ANA with RNP antibodies, ”
id., “musculoskeletal pain, ” (Tr. 292),
“symptomatic” hips, shoulders, and hands, (Tr.
300), “stiffness in the neck as well as the back,
” id., “pain and restriction on internal
rotation of both shoulders, ” (Tr. 306), and
“several tender swollen joints, ” (Tr. 302). The
ALJ, however, failed to evaluate this evidence, contrary to
SSR 12-2p's mandate that the ALJ should consider the
longitudinal record and the waxing and waning symptoms of
also cites the absence of “emergency room
intervention” or “required hospitalization due to
[Ms. Deans's] conditions” as a basis to reject Dr.
Gertler's opinion and Ms. Deans's assertion of
disability. See (Tr. 48). However, there is no
requirement that a finding of disability due to fibromyalgia
requires hospitalization or emergency room treatment. To the
contrary, fibromyalgia, a chronic, incurable condition, is
customarily managed by conservative measures such as
medications and dietary changes. See Lapeirre-Gutt v.
Astrue, 382 Fed.Appx. 662, 2010 WL 2317918 at *1 (9th
Cir. June 9, 2010) (noting that the claimant “cannot be
discredited for failing to pursue non-conservative treatment
options” for fibromyalgia since “none
exist.”); Brosnahan v. Barnhart, 336 F.3d 671,
677 (8th Cir. 2003) (noting that “the lack of any need
for surgery is also not a reason to discredit [Plaintiff]:
the [American College of Rheumatology] does not recommend
surgery for fibromyalgia.”). Thus, it was error for the
ALJ to discredit Ms. Deans's treating rheumatologist or
her own credibility on this basis. Moreover, the ALJ's
reliance on Ms. Deans's alleged admission that she
considered “part time work” was also improper.
See (Tr. 48). Critically, Ms. Deans noted in her
September 25, 2012 evaluation with Dr. Gertler that
“[s]he is considering part time work but does not
know if she has the energy” to do so as a result
of her impairments. See (Tr. 317) (emphasis added).
Contrary to the ALJ's assertion, Ms. Deans did not
concede that she believed she was capable of part-time work.
Instead, Ms. Deans provided further support that she was not
capable of doing so as a result of her fatigue and physical
limitations. Accordingly, the ALJ improperly relied on Ms.
Deans's statement to discredit Dr. Gertler and Ms.
Deans's own description of the severity of her
the ALJ cited Dr. Gertler's recommendation that Ms. Deans
exercise as a basis for devaluing Dr. Gertler's opinion
and discrediting Ms. Deans. See, e.g., (Tr.
48). However, Dr. Gertler's recommendation that Ms. Deans
participate in therapeutic exercise is not inconsistent with
a finding of disability. See Johnson v. Astrue, 597
F.3d 409, 412 (1st Cir. 2009) (holding that “aerobic
exercise is not inconsistent with [treating physician's]
opinion regarding claimant's limited physical
abilities”). Indeed, “[physical exercise] is the
appropriate treatment for fibromyalgia.” Id.;
see Williams v. Astrue, No. 1:08-CV-270, 2009 WL
1408246, at *3-4 (E.D. Va. May 19, 2009). Contrary to the
ALJ's assertion, the fact that a patient is encouraged to
remain active does not disprove her allegations of disability
or reflect an ability to sustain work. Accordingly, the ALJ
improperly relied on Dr. Gertler's recommendation to
discredit his opinion and Ms. Deans's credibility.
in light of the flawed evidence cited by the ALJ to support
her conclusions, I cannot find substantial evidence to
support (1) her assignment of weight to the opinion of Dr.
Gertler, or (2) her adverse credibility assessment.
Accordingly, I recommend remanding the case so that the ALJ
may fulfill her duty of explanation. In so recommending, I
express no opinion regarding ...