Johnson v. Astrue , 338 F. App'x 3 ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-2486
RACHEL JOHNSON,
Plaintiff, Appellant,
v.
MICHAEL J. ASTRUE,
Commissioner, Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
James J. Gannon and Green & Greenberg, on brief for
appellant.
Dulce Donovan, Assistant U.S. Attorney, and Robert Clark
Corrente, U.S. Attorney on brief for appellee.
July 21, 2009
Per Curiam. Claimant Rachel Johnson appeals from the
judgment of the Rhode Island district court affirming the denial of
her application for Social Security disability benefits. Claimant
alleged disability based primarily on fibromyalgia and a mental
condition (depression and anxiety), and, after a hearing, an
administrative law judge (ALJ) concluded that although claimant
could not return to her past work due to these severe conditions,
claimant nonetheless retained the capacity for light to sedentary
work which (1) is unskilled, routine, and repetitive, (2) provides
an opportunity to alternate between sitting and standing at roughly
30-minute intervals during the day, and (3) involves no overhead
work with the left arm and no kneeling, crawling, climbing, or
squatting. In finding that there were jobs that a person with such
limitations could perform, the ALJ relied on the testimony of a
vocational expert (VE). While we agree, for essentially the
reasons stated in the Report and Recommendation of the magistrate
judge, which was adopted by the district judge, that substantial
evidence supports the ALJ’s conclusion that claimant’s mental
impairment was not disabling, we conclude that the ALJ’s reasoning
that claimant’s fibromyalgia also was not disabling was flawed and
must be reexamined.
We begin with basics. Fibromyalgia is defined as “[a]
syndrome of chronic pain of musculoskeletal origin but uncertain
cause.” Stedman’s Medical Dictionary, at 671 (27th ed. 2000).
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Further, “[t]he musculoskeletal and neurological examinations are
normal in fibromyalgia patients, and there are no laboratory
abnormalities.” Harrison’s Principles of Internal Medicine, at
2056 (16th ed. 2005). The American College of Rheumatology
nonetheless has established diagnostic criteria that include “pain
on both sides of the body, both above and below the waist, [and]
point tenderness in at least 11 of 18 specified sites.” Stedman’s
Medical Dictionary, supra.
The principal evidence regarding claimant’s fibromyalgia
for the relevant period -- May 30, 2002 (her onset date) through
June 30, 2003 (the expiration of her insured status) -- is
contained in the reports of Dr. Yousaf Ali, a rheumatologist who
treated claimant. At her first appointment, in September 2002,
claimant complained of pain and depression, and a musculoskeletal
examination revealed positive, bilateral trapezius trigger points
and “exquisite tenderness” in claimant’s hips and legs. Trans. at
267-68. However, claimant’s motion of her hips, knees, and ankles
was normal, and her neurological examination was grossly intact.
Id. at 268. Dr. Ali opined that claimant did not appear to meet
the criteria for fibromyalgia. Id.
Claimant next saw Dr. Ali in January 2003. Id. at 269.
At this time, Dr. Ali noted that claimant was doing “much better”
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since she had been getting “local trochanteric bursal injections.”1
Id. Claimant, however, continued to complain of pain in her
shoulders, hips, and knees. Id. Dr. Ali noted the presence of
multiple tender points and, at this time, made a diagnosis of
fibromyalgia. Id.
At claimant’s third visit, in April 2003, Dr. Ali
described her as having “vague arthralgias and myalgias”2 and
feeling as if her joints were “melting.” Id. at 270. Dr. Ali then
explained that his diagnosis of fibromyalgia was based on “diffuse
joint symptoms above and below the waist in the setting of negative
serologies and multiple tender points.” Id. He also noted that
the treatment for fibromyalgia involves analgesics, physical
therapy, aerobic exercise, and a sleep program. Id. at 271.
On July 11, 2003 -- less than two weeks after claimant’s
insured status expired -- Dr. Ali completed an RFC evaluation form.
Id. at 273. Dr. Ali indicated, on this form, that claimant (1)
could sit for three hours at a stretch, for a total of four hours
during an eight-hour workday, (2) could stand for one hour at a
stretch, for a total of one hour per workday, and (3) could walk
1
The trochanter is part of the top of the femur (near the
hip), and a bursa is a “sac or saclike cavity filled with a viscid
fluid and situated at places in the tissues at which friction would
otherwise develop.” Dorland’s Illustrated Medical Dictionary, at
1953, 262 (30th ed. 2003).
2
Arthralgia refers to pain in the joints, and myalgia refers
to pain in the muscles. Dorland’s Illustrated Medical Dictionary,
at 149, 1205.
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for one hour at a stretch, for a total of one hour per workday.
Id. Dr. Ali also indicated that claimant could never lift “[u]p to
5 lbs.” Id. Since claimant was rated as not being able to sit for
six hours or lift 10 pounds, she lacked the capacity for the full
range of sedentary work. See SSR 96-9p, Implications of a Residual
Functional Capacity for Less than a Full Range of Sedentary Work,
1996 WL 374185, at *6.
In concluding that claimant could perform light to
sedentary work, the ALJ gave “little weight” to Dr. Ali’s RFC
assessment, and she provided several unpersuasive reasons for this
decision. First, the ALJ noted that, during the relevant period,
Dr. Ali had seen claimant only three times at roughly three-month
intervals. While the length of time that a medical source has been
treating an individual is a relevant factor in evaluating the
weight to be given to that source’s opinions, see 20 C.F.R. §
404.1527(d)(2)(i), the ALJ here offered no explanation for, or
citation in support of, her belief that Dr. Ali’s treatment
relationship with claimant had been too abbreviated to enable him
to offer an informed opinion about claimant’s physical
capabilities. Nor do we think that it is obvious to a lay person
such as the ALJ that Dr. Ali had not treated claimant on a
sufficient number of occasions over a sufficient amount of time.
The ALJ’s second reason for giving little weight to Dr.
Ali’s RFC assessment was that claimant had shown “considerable
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improvement in [her] shoulder complaints after she received
trochanteric bursal injections and Ambien for sleep.” Trans. at 27
(emphasis added). This is a misreading of the record. The
injections that claimant received were in her hips, not her
shoulder, and, while Dr. Ali stated that claimant was doing “much
better” after the injections, he did not specify in what respect
she was better; nor, we add, does it appear that Ambien had
anything to do with claimant’s improvement. Id. at 269. More
significant, however, is the fact that this is the only reference
that Dr. Ali made to an improvement in claimant’s condition.
Indeed, local injections in fibromyalgia patients often provide
relief that is only temporary. Harrison’s Principles of Internal
Medicine, at 2057.
The ALJ next found that Dr. Ali’s RFC opinion was
inconsistent with his prescription of physical therapy and aerobic
exercise. The first problem with this reasoning is that this is
the appropriate treatment for fibromyalgia. Second, there is no
indication of the level of physical therapy and/or aerobic exercise
that Dr. Ali thought would be suitable for claimant, and, according
to one source, exercise for fibromyalgia patients “should be of a
low-impact type and begun at a low level” with the goal that
“[e]ventually, the patient should be exercising 20 to 30 min[utes]
3 to 4 days a week.” Id. (emphasis added). Plainly, if this were
the level of activity that Dr. Ali had in mind, his recommendation
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for physical therapy and aerobic exercise is not inconsistent with
his opinion regarding claimant’s limited physical abilities.
This leaves what appears to be the ALJ’s primary reason
for giving little weight to Dr. Ali’s limited RFC assessment --
i.e., that such limitations were “of necessity based on the
claimant’s subjective allegations as the doctor’s examinations of
the claimant were, with the exception of the presence of tender
points, relatively benign.” Trans. at 27. Dr. Ali’s “need” to
rely on claimant’s subjective allegations, however, was not the
result of some defect in the scope or nature of his examinations
nor was it even a shortcoming. Rather, “a patient's report of
complaints, or history, is an essential diagnostic tool” in
fibromyalgia cases, and a treating physician’s reliance on such
complaints “hardly undermines his opinion as to [the patient’s]
functional limitations.” Green-Younger v. Barnhart, 335 F.3d 99,
107 (2d Cir. 2003) (internal punctuation and citation omitted).
Further, since trigger points are the only “objective” signs of
fibromyalgia, the ALJ “effectively [was] requiring objective
evidence beyond the clinical findings necessary for a diagnosis of
fibromyalgia under established medical guidelines,” and this, we
think, was error. See id. at 106-07 (holding that the ALJ erred in
rejecting the RFC opinion of the claimant’s treating physician on
the ground that, except for the presence of trigger points, there
was no “objective” medical evidence to support such opinion).
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As a result of all of the foregoing, the ALJ’s reasons
for essentially discounting Dr. Ali’s RFC opinion are significantly
flawed. And, although two non-examining physicians completed RFC
assessments opining that claimant had the capacity for sedentary or
light work, these assessments provide too cursory a basis upon
which to rest a finding that claimant was not disabled. “We have
held that the amount of weight that can properly be given the
conclusions of non-testifying, non-examining physicians will vary
with the circumstances, including the nature of the illness and the
information provided the expert.” Rose v. Shalala, 34 F.3d 13, 18
(1st Cir. 1994) (internal quotation marks and citation omitted).
In relation to the first such assessment, the non-
examining physician failed to cite claimant’s fibromyalgia as a
diagnosis, Trans. at 227, despite the fact that the record
contained, at the relevant time, an opinion from an expert (Dr.
Ali), that claimant, in fact, suffered from such a condition. We
therefore think that this assessment cannot be accorded much
weight. The second RFC assessment similarly is flawed because,
although the diagnosis of fibromyalgia was acknowledged, id. at
326, it seems as if this assessing physician misunderstood the
nature of this condition.
In particular, the physician, in concluding that claimant
retained the functional capacity for light work, basically relied
on the lack of objective findings to substantiate her condition,
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and, as explained supra at 3, such a lack is what can be expected
in fibromyalgia cases. Because of this error, the second RFC
assessment also is entitled to little weight. See Rose, 34 F.3d at
18-19 (where the non-examining physicians’ RFC assessments, in
finding that the claimant retained the capacity for at least
sedentary work, relied on the lack of objective evidence to account
for the claimant’s significant level of fatigue associated with his
chronic fatigue syndrome (CFS), such assessments could not provide
substantial support for the ALJ’s conclusion that claimant was not
disabled; that is, a lack of objective proof is normal in CFS
patients). We add that the latter assessment also suffers from a
second shortcoming -- i.e., it appears that the assessing physician
ignored Dr. Ali’s RFC opinion, see Trans. at 333, although such
opinion was in the record by the time of this assessment. See
Rose, 34 F.3d at 19 (where a claimant’s RFC depends in large part
on the functional implications of his or her subjective symptoms,
a treating physician’s “on-the-spot examination and observation of
claimant might ordinarily be thought important”) (internal
quotation marks and citation omitted). We therefore conclude that
the ALJ was not free to disregard Dr. Ali’s RFC opinion, and that
the hypothetical that was presented to the VE -- being based
primarily on the non-examining RFC assessments -- lacked
substantial support in the record.
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In addition to disregarding Dr. Ali’s opinion, the ALJ
also decided not to fully credit claimant’s allegations of
disabling pain, and she based this decision on (1) claimant’s
supposed dereliction in pursuing treatment and (2) the extent of
her daily activities. In regard to the former, the ALJ first noted
that claimant had declined recommended injections in her knees.
However, this recommendation had been made in May 2001 --about one
year prior to the onset date of May 30, 2002, Trans. at 165 -- and
thus is not pertinent.
Second, the ALJ cited claimant’s failure to pursue
physical therapy (PT) that was prescribed in connection with her
recovery from surgery on one of her shoulders (which surgery
removed a cancerous nodule). Id. at 217-224. The problem, of
course, is that this PT was unconnected to claimant’s fibromyalgia.
Further, the record shows that one of claimant’s treating
physicians had prescribed PT specifically for the fibromyalgia,
and, between April and June of 2003, claimant had attended at least
12 such sessions. Id. at 225-26, 650-54. Plainly, then, “[t]his
was not a case in which a claimant failed to seek treatment for
symptoms later claimed debilitating.” Nguyen v. Chater, 172 F.3d
31, 36 (1st Cir. 1999) (per curiam).
The ALJ’s third example of claimant’s dereliction in
pursuing treatment similarly is flawed. Specifically, although the
ALJ is correct that claimant had told one of her physical
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therapists that she had stopped taking Neurontin (a pain
medication) because it increased the frequency of her headaches and
that she had not informed her doctors of this decision, Trans. at
652, the ALJ’s description of this event is not entirely accurate.
Specifically, there is no indication, as the ALJ stated, id. at 29,
that claimant had discontinued the Neurontin in order to obtain
replacement medicine, and, in fact, it appears that, at this time,
claimant already was on at least two other pain relievers.3 Id. at
652, 760, 779. Moreover, the physical therapist specifically had
instructed claimant to tell her doctors about discontinuing the
Neurontin, and the evidence does not show whether claimant
eventually followed this advice.
As for claimant’s daily activities, the ALJ relied on the
fact that claimant could engage in some of these activities --
e.g., light housework, meal preparation, and driving short
distances. Despite claimant’s abilities in this regard, however,
we see two problems with this reliance. First, such activities are
not necessarily inconsistent with Dr. Ali’s opinion that claimant
could sit for fours hours per eight-hour day and could walk and
stand for one hour each during the same time period. And, while
the record shows that claimant probably has the ability to lift
3
Confusingly, the ALJ had stated earlier in the opinion that
claimant had taken herself off of the Neurontin without seeking a
replacement, id. at 24, and this is a similarly unsupported
description of the record.
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some amount of weight, this may not be inconsistent with Dr. Ali’s
opinion that claimant could never lift “up to” five pounds. That
is, it is unclear whether such an opinion means that claimant never
could lift items weighing, say, one or two pounds.
Second, once the ALJ accepted the diagnosis of
fibromyalgia, she also “had no choice but to conclude that the
claimant suffer[ed] from the symptoms usually associated with [such
condition], unless there was substantial evidence in the record to
support a finding that claimant did not endure a particular symptom
or symptoms.” See Rose, 34 F.3d at 18 (emphasis added). The
primary symptom of fibromyalgia, of course, is chronic widespread
pain, and the Commissioner points to no instances in which any of
claimant’s physicians ever discredited her complaints of such pain.
Given this, we do not think that the ALJ’s decision to discredit
claimant was supported by substantial evidence.
For the reasons given above, the judgment of the district
court is vacated in part, and the case is remanded to that court
with instructions to remand to the Commissioner for further
findings and/or proceedings not inconsistent with this opinion.
It is so ordered.
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