Opinion
CASE NO. 3:17-cv-01724-MEM-GBC
03-06-2019
TRACIE L. STEVENS, Plaintiff, v. NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S APPEAL AND TO REVERSE AND REMAND DECISION OF COMMISSIONER
This matter is before the undersigned United States Magistrate Judge for decision. Tracie L. Stevens ("Plaintiff") seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
I. Legal Standards of Review
To receive disability or supplemental security benefits under the Social Security Act ("Act"), a claimant bears the burden to demonstrate an "inability 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 12 months." 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920. The process requires an Administrative Law Judge ("ALJ") to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford, 399 F.3d at 551. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("court shall review only the question of conformity with such regulations and the validity of such regulations"). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence "does not mean a large or considerable amount of evidence, but rather 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford, 399 F.3d at 552. The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999) (citing 42 U.S.C. § 405(g)).
II. Procedural History
On November 12, 2013, Plaintiff filed an application for Disability Insurance Benefits ("DIB") under Title II of the Act, 42 U.S.C. §§ 401-433, 1382-1383, with a last insured date of December 31, 2007, and an alleged disability onset date of December 31, 2005. (Tr. 50, 122). On February 12, 2016, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 47-67). Plaintiff sought review of the decision, which the Appeals Council denied on June 8, 2017, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 11-16).
Disability insurance benefits are paid if the individual is disabled by the last date that a claimant meets the requirements of being insured. See 42 U.S.C. § 423(a)(1)(A), (c)(1).
Plaintiff filed for extensions of time to file this civil action. (Tr. 1-9).
On September 28, 2017, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On December 19, 2017, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 4, 5). On April 3, 2018, Plaintiff filed a brief in support of the appeal. (Doc. 10 ("Pl. Br.")). On May 1, 2018, Defendant filed a brief in response. (Doc. 11 ("Def. Br.")). On May 31, 2018, Plaintiff filed a reply. (Doc. 14 (Reply)).
III. Issues on Appeal
On appeal, Plaintiff argues the "ALJ erroneously found that none of Plaintiff's impairments were severe, and that her fibromyalgia was not medically determinable or severe," and the "ALJ erroneously assigned little weight to the finding of service-connected disability by the Department of Veterans Affairs without good reasons." (Pl. Br. at 3). IV. Facts in the Record
Since the ALJ fully developed the record and the parties have adequately articulated Plaintiff's medical history in their briefs, the Court will only summarize the relevant facts to provide context to Plaintiff's impairments and address the issues raised.
A. Background
Plaintiff was born in September 1966 and thus is classified by the regulations as a younger individual through the date last insured of December 31, 2007. (Tr. 29, 122); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff alleged disability due to: (1) Chronic Obstructive Pulmonary Disease (COPD); (2) Fibromyalgia; (3) Sleep Apnea; (4) Multiple Joint Arthritis; (5) Irritable Bowel Syndrome; (6) Headaches; (7) Peripheral Neuropathy; (8) Lymphatic Disorders; (9) Anxiety; and (10) Major Depression. (Tr. 122-23). Plaintiff completed one year of college. (Pl. Br. at 2; Tr. 200). // // //
B. Medical Opinions
1. VA Compensation and Pension Examination ("C&P Examination") for Chronic Fatigue Syndrome, July 2000: D.E. Castrignano, D.O.
Compensations and pension examinations are not for the purposes of treatment. See e.g., 38 C.F.R. § 60.2 ("Compensation and pension examination means an examination requested by VA's Veterans Benefits Administration to be conducted at a VA health care facility for the purpose of evaluating a veteran's claim"); Walker v. Shinseki, No. 12-2367, 2013 WL 4431075, at *4 (Vet. App. Aug. 19, 2013) (upholding decision which distinguished between statements for the purposes of treatment versus statements made during a compensation and pension examination).
On July 20, 2000, Plaintiff underwent a compensation and Pension Examination ("C&P Examination") with Dr. Castrignano, D.O. to determine eligibility for VA disability benefits. (Tr. 429-36). Dr. Castrignano noted "She experienced localized muscle aches in the hands and feet. She also had muscle aches in the low back; however, these aches have been attributed to Degenerative Disc Disease in the Lumbo-Sacral Spine. No generalized muscle aches. No significant muscle weakness." (Tr. 429-30). Regarding joint pain Dr. Castrignano noted "She does experience migratory joint pains involving both elbows, both wrists, both hips, and both knees. Only the left knee was found to have positive x-ray findings with chondromalacia in the left knee with a known history of repeated left knee trauma." (Tr. 430). Dr. Castrignano's diagnoses included: (1) only three out of ten criteria were met for Chronic Fatigue Syndrome (frequent headaches, migratory joint pains, and non-restful sleep) and therefore there was an insufficient basis to establish a diagnosis of chronic fatigue syndrome; (2) impaired utilization of vitamin B-12 levels associated decreased vitamin B-12 binding capacity; (3) "fibromyalgia - multiple joints - bilateral"; (4) degenerative disc disease - lumbo-sacral spine; (chondromalacia patellae - left knee. (Tr. 430, 432).
2. VA Psychiatric Examinations, June 2003: P. Chatham-Showalter, M.D.
During a C&P examination dated June 5, 2003, Dr. Chatham-Showalter noted the medical record included a diagnosis of fibromyalgia by Dr. Castignano in the July 2000 C&P examination. (Tr. 354-55). Plaintiff believed "today's examination is part of an appeal related to her diagnosis of B12 deficiencies" which resulted in peripheral neuropathy and depression. (Tr. 355). During the physical examination, Plaintiff moved stiffly, had no tremor and "trigger points were not assessed." (Tr. 356). Dr. Chatham-Showalter diagnosed insomnia "secondary to fibromyalgia, which is service connected," as well as dysthymia "more likely than not secondary to the stress of having fibromyalgia, which is a service-connected condition." (Tr. 356.). Dr. Chatham-Showalter also stated that "[t]he diagnosis of fibromyalgia does encapsulate many of, if not, most of her physical complaints as well as fatigue, difficulty concentrating and cognit[ive] slowing." (Tr. 356). Dr. Chatham-Showalter did not explain her conclusions regarding fibromyalgia, except for the reliance on the diagnosis provided in Dr. Castignano's July 2000 C&P examination opinion. (Tr. 355-56).
For a discussion regarding "Service Connected" VA disability law see McCleary v. Colvin, No. 1:15-CV-172, 2016 WL 6871375, passim (M.D. Pa. Mar. 1, 2016); Durden v. Colvin, No. 1:15-CV-0118, 2016 WL 827078, passim (M.D. Pa. Mar. 3, 2016).
In a treatment record dated June 10, 2003, Dr. Chatham-Showalter wrote:
She tends to obsess on how she could have "pernicious anemia if she is not anemic" and seems unable to grasp that pernicious anemia is a historical term for B12 deficiency. She has been not treated for fibromyalgia by any of her VA doctors, even though it was diagnosed by one of the C&P examiners, who, however, is not a treating physician of hers. The SSRI Celexa, the trazodone, and the Remeron that she receives for the depressive symptoms and the insomnia could be partially treating her fibromyalgia, however.(Tr. 357). In August 2004 and December 2004, Dr. Chatham-Showalter submitted a "no show note." (Tr. 849, 859, 1415, 1425). Plainrtiff does not direct the Court to instances in the record indicating that Dr. Chatham-Showalter treated Plaintiff.
3. VA C&P Examinations for Joints, June 2003: Joseph G. Pomponio, M.D.
On June 10, 2003, Plaintiff underwent a C&P examination for the joints with Dr. Pomponio (Tr. 386-89). Dr. Pomponio wrote:
[Plaintiff] has a diagnosis of fibromyalgia, also known as fibrositis. She has wide-spread musculoskeletal pain and tender points. The tender points are in and around the left knee, particularly superior-inferior to the patella. She said there is a great deal of fatigue with this knee on overuse. She has had some trouble with sleep disturbance, but she is having problems with her marriage. There is stiffness, paresthesias, and sometimes depression and anxiety with this, which she has, some of which is now, and she is going to be seeing our psychiatrist later on.(Tr. 387-88). Under the section labeled "diagnostic and clinical tests," the only test listed was an order for x-rays. (Tr. 388). In the diagnosis section Dr. Pomponio wrote:
She does have widespread pain on both sides of the body, with more emphasis on the left below the thoracic spine, the low back, and also the knees, ankles, and feet. The date of onset of the symptoms has been since she was in the Service, possibly 1992, at which time she states that she did hurt that knee.
...
The condition apparently is currently active. The musculoskeletal areas involved are the left leg above and below the knee, the right leg, mainly above the knee, and both shoulders, and also in the lumbosacral spine.
She has lumbosacral spine problems, probably degenerative disk disease, along with chronic lumbosacral strain. She has a diagnosis of chondromalacia patellae of her left knee. She also gives a diagnosis of 812 deficiency, [although] she never did have pernicious anemia. She also has chronic sinusitis with nasal congestion. She also has a diagnosis of fibromyalgia or fibromyositis.(Tr. 388).
4. Rheumatology report January 2000: Nabeela Mian, M.D.
In a record dated January 19, 2000, Dr. Mian evaluated Plaintiff to determine whether Plaintiff's symptoms could be explained by rheumatic or autoimmune disorders. (Tr. 936-938). Dr. Mian wrote:
[Plaintiff] has had extensive records. I reviewed all of them. Apparently, in earlier part of 1999, she had some syncopal episode. At that time, MRI of the brain, echocardiogram, and tilt table tests were done, and those were all normal. In March of 1999, she had Schilling test without intrinsic factor, and it was normal. She had MRI of her left knee in July of 1995, which showed mild chondromalacia of patella. Also, from January of 1999, ANA was negative. EEG was normal. Antiphospholipid antibodies G and M were negative. Lyme antibodies with western blot were negative. Recent laboratory data from 12/17/99 revealed urinalysis is normal. CBC showed MCV 102. 9, MCH 35, hemoglobin, hematocrit, and cell counts were normal. Sedimentation rate 2. Rheumatoid factor, ANA, chemistries, and liver function tests were normal. Thyroid function studies were nor mal. Bl2 level was 205, even though she has been given IM Bl2 shots for almost a year now.(Tr. 937). Dr. Mian concluded:
1. Paresthesias with loss of sensation to soft touch and pinprick with muscle spasms and joint pains. So far, all of the rheumatological workup had been negative. Would like to add some more serological workup, including an ANCA-C and P, Sjogren's antibodies, complement level, CRP, CPK, and RPR.(Tr. 937). In an addendum dated February 10, 2000, Dr. Mian wrote:
2. Her neurological symptoms and persistent B12 deficiency--I Have no explanation. I have called and spoken with Dr. Luque, who is going to come down shortly and examine the patient, and then further neurological workup will be ordered according to his recommendations. Will also refer her to hematology/oncology, Dr. Roda, regarding her persistent b12 deficiency, even after supplementation.
Dr. Luque came down to see the patient. He examined the patient, and he says her signs and symptoms are consistent with posterior column disease. She has loss of sensation to vibration, also cold, pinprick, and light touch in her feet, going up to her knees. She is advised at this time to schedule EMG/nerve conduction studies. Also, he will reevaluate her in 1-2 months and also to be seen by Dr. Roda in Hematology/Oncology to work up why her Bl2 is not being absorbed even after IM injections. Will order all of these workups as advised by Dr. Luque and also the rheumatological workup will be done. I will see her back in 6-8 weeks.(Tr. 938).
5. VA C&P Examination for Fibromyalgia, January 2007: Jyothi Veera, M.D.
On January 11, 2007, Jyothi Veera, M.D. examined Plaintiff for the purposes of determining eligibility for VA disability benefits. (Tr. 1578-80). Dr. Veer noted that Plaintiff was not on any medications for fibromyalgia, however, was on Mirtazapine which helps to some extent. (Tr. 1578). Dr. Veera noted that Plaintiff experienced the following symptoms of fibromyalgia on a constant or nearly constant basis: unexplained fatigue, sleep disturbance, paresthesias, depression, anxiety, and musculoskeletal symptoms. (Tr. 1579). Dr. Veera noted arthralgia in the neck, bilateral arms, bilateral legs, back and chest. (Tr. 1579). Dr. Veera listed the following right-sided tender points: (1) Occiput, at the suboccipital muscle insertion; (2) low cervical, at the anterior aspect of the intertransverse spaces at C5-C7; (3) trapezius, at the midpoint of the upper border; (4) supraspinatus, at origin, above the scapula spine near the medial border; (5) lateral epicondyle, 2 cm distal to the epicondyle; (6) knee, at the medial fat pad proximal to the joint line. (Tr. 1579). Dr. Veera listed the following left-sided tender points: (1) occiput, at the suboccipital muscle insertion; (2) low cervical, at the anterior aspect of the intertransverse spaces at C5-C7; (3) trapezius, at the midpoint of the upper border; (4) supraspinatus, at origin, above the scapula spine near the medial border; (5) lateral epicondyle, 2 cm distal to the epicondyle, and; (6) knee, at the medial fat pad proximal to the joint line. (Tr. 1579).
Dr. Veera diagnosed Plaintiff with fibromyalgia and opined that the condition: (1) severely impacted her ability to shop and engage in sports; (2) moderately impacted her ability to carry out chores, exercise, recreate, and travel, and (3) had no impact on her ability to maintain hygiene, eat, and dress. (Tr. 1580). Dr. Veera wrote "most of her limitations are secondary to pain and stiffness in multiple joints" (Tr. 1580).
V. Analysis
A. Fibromyalgia as a Medically Determinable Impairment
Plaintiff argues the ALJ committed revisable error by finding Plaintiff's Fibromyalgia was "not medically determinable" despite a previous diagnosis of fibromyalgia beginning in 2000. (Pl. Br. at 6). Plaintiff argues she "was properly diagnosed by ACR criteria with at least 11 out of 18 tender points, as contemplated in Social Security Ruling 12-2p . . . . there is no requirement in the Ruling of more than one examination demonstrating the requisite tender points." (Pl. Br. at 7). In the February 2016 opinion, the ALJ explained:
Although Veterans Affairs Medical Center (VAMC) records list a diagnosis of Fibromyalgia beginning in 2000 and service-related disability secondary to fibromyalgia (Exh. 2F, pp. 2, 70, 86, 93, 170), this diagnosis is not confirmed by the requirements spelled out in SSR 12-2p. Using the 1990 ACR Criteria for the Classification of Fibromyalgia, during the relevant period, the claimant did not have the requisite widespread pain in all four quadrants of the body that has persisted for at least 3 months, at least 11 of 18 tender points, and evidence that other disorders were excluded. Furthermore, she did not have widespread pain, repeated manifestations of six or more Fibromyalgia symptoms/signs/co-occurring conditions, and evidence that other disorders that cause these repeated manifestations were excluded, as required by the 2010 ACR Preliminary Diagnostic Criteria. At an examination in June 2003 there is mention of tender points, but the report does not confirm that there are at least 11 such points (Exh. 2F, p. 125). At an evaluation in January 2007 the claimant appears to have had 12 tender points (Exh. 2F, p. 71), but this was not demonstrated at any other exam during the relevant period. Accordingly, Fibromyalgia was not medically determinable.Tr. 53 (emphasis omitted). Eligibility for disability insurance benefits under the SSA is conditioned on compliance with all relevant requirements of the statute. Scipio v. Comm'r of Soc. Sec., 611 F. App'x 99, 101-02 (3d Cir. 2015). "[A] disability is established where the claimant demonstrates that there is some medically determinable basis for an impairment that prevents [her] from engaging in any substantial gainful activity for a statutory twelve-month period." Fargnoli v. Massanari, 247 F.3d 34, 38-39 (3d Cir.2001) (internal quotation marks and citations omitted); accord 42 U.S.C. § 423(d)(1)(A). A "medically determinable" impairment is one that results from anatomical, physiological, or psychological abnormalities demonstrable by medically acceptable clinical and laboratory diagnostic techniques. Scipio v. Comm'r of Soc. Sec., 611 F. App'x 99, 101-02 (3d Cir. 2015) (citing 42 U.S.C. § 423(d)(3) (effective since November 2, 2015)); 20 C.F.R. § 404.1508 (DIB) (effective until March 26, 2017); 20 C.F.R. § 416.908 (SSI) (effective until March 26, 2017). Furthermore, a medically determinable impairment must be established by an acceptable medical source enumerated in 20 C.F.R. § 404.1513 (DIB); 20 C.F.R. § 416.913 (SSI) (effective September 3, 2013 to March 26, 2017) ("We need evidence from acceptable medical sources to establish whether you have a medically determinable impairment(s)").
Sections 20 C.F.R. § 404.1529(b) (DIB), § 416.929(b) (SSI) provide:
In cases decided by a State agency . . . , a State agency medical or psychological consultant or other medical or psychological consultant designated by the Commissioner directly participates in determining whether your medically determinable impairment(s) could reasonably be expected to produce your alleged symptoms. In the disability hearing process, a medical or psychological consultant may provide an advisory assessment to assist a disability hearing officer in determining whether your impairment(s) could reasonably be expected to produce your alleged symptoms. At the administrative law judge hearing or Appeals Council level of the administrative review process, the adjudicator(s) may ask for and consider the opinion of a medical or psychological expert concerning whether your impairment(s) could reasonably be expected to produce your alleged symptoms.20 C.F.R. § 404.1529 (b) (Effective: June 13, 2011 to March 26, 2017).
Social Security Ruling (SSR) 12-2P "provides guidance on how [the agency] develop[s] evidence to establish that a person has a medically determinable impairment (MDI) of fibromyalgia (FM)." Soc. Sec. Ruling, Ssr 12-2p; Titles II & Xvi: Evaluation of Fibromyalgia, SSR 12-2P (S.S.A. July 25, 2012). Ruling 12-2P presents three requirements for a finding of fibromyalgia as a medically determinable impairment: (1) a diagnosis by licensed physician (a medical or osteopathic doctor); (2) diagnostic criteria "describe in section II.A. or section II. B." are met, and; (3) the "diagnosis is not inconsistent with the other evidence in the person's case record." SSR 12-2P. Section II.A states:
A. The 1990 ACR Criteria for the Classification of Fibromyalgia. Based on these criteria, we may find that a person has an MDI of FM if he or she has all three of the following:
1. A history of widespread pain—that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months. The pain may fluctuate in intensity and may not always be present.
2. At least 11 positive tender points on physical examination (see diagram below). The positive tender points must be found bilaterally (on the left and right sides of the body) and both above and below the waist.
a. The 18 tender point sites are located on each side of the body at the:
• Occiput (base of the skull);
• Low cervical spine (back and side of the neck);
• Trapezius muscle (shoulder);
• Supraspinatus muscle (near the shoulder blade);
• Second rib (top of the rib cage near the sternum or breast bone);
• Lateral epicondyle (outer aspect of the elbow);
• Gluteal (top of the buttock);
• Greater trochanter (below the hip); and
• Inner aspect of the knee.
b. In testing the tender-point sites, the physician should perform digital palpation with an approximate force of 9 pounds (approximately the amount of pressure needed to blanch the thumbnail of the examiner). The physician considers a tender point to be positive if the person experiences any pain when applying this amount of pressure to the site.
3. Evidence that other disorders that could cause the symptoms or signs were excluded. Other physical and mental disorders may have symptoms or signs that are the same or similar to those resulting from FM. Therefore, it is common in cases involving FM to find evidence of examinations and testing that rule out other disorders that could account for the person's symptoms and signs. Laboratory testing may include imaging and other laboratory tests (for example, complete blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor).SSR 12-2P (footnotes omitted). In a note for the third requirement SSR 12-2P notes: "Some examples of other disorders that may have symptoms or signs that are the same or similar to those resulting from FM include rheumatologic disorders, myofacial pain syndrome, polymyalgia rheumatica, chronic Lyme disease, and cervical hyperextension-associated or hyperflexion-associated disorders." SSR 12-2P
The undersigned finds substantial evidence does not support the ALJ's conclusion under the 1990 ACR Criteria for the Classification of Fibromyalgia, during the relevant period, Plaintiff "did not have the requisite widespread pain in all four quadrants of the body that has persisted for at least 3 months, at least 11 of 18 tender points, and evidence that other disorders were excluded." (See Tr. 53). It appears the ALJ conflated the three-month durational requirement of widespread pain with the requirement of having at least 11 tender points. (See Tr. 53). The ALJ explains "[a]t an evaluation in January 2007 [Plaintiff] appears to have had 12 tender points (Ex. 2F, p. 71), but this was not demonstrated at any other exam during the relevant period." (Tr. 53). As Plaintiff correctly points out, there is no requirement for an additional examination for at least 11 tender points. SSR 12-2P. The 1990 ACR criteria requires a "history of widespread pain—that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months" not a three-month history of at least 11 tender points. See SSR 12-2P. Defendant does not explain how the medical record falls short of meeting the three-month durational requirement for widespread pain. The medical history indicates Plaintiff met the criteria of widespread pain in Dr. Castrignano's July 2000 examination and diagnosis of fibromyalgia (Tr. 429-36), Dr. Pomponio's June 2003 examination (Tr. 387-88), and in Dr. Veera's January 2007 examination. (Tr. 1578-80). Plaintiff met the requirement for at least 11 tender points in Dr. Veera's January 2007 examination. (Tr. 1578-80). Contrary to the ALJ's finding that evidence that other disorders were not excluded pursuant to SSR 12-2P (Tr. 53), Dr. Mian's review of medical records and analysis meets that requirement and rules out disorders explicitly enumerated in the notes of SSR 12-2P and lists several tests. (Tr. 936-938).
Based on the foregoing, the ALJ erred in concluding fibromyalgia was not a medically determinable impairment.
B. Step Two Severity of Impairments
Plaintiff argues that the ALJ erred in determining that none of Plaintiff's impairments were severe. Pl. Br. at 3-6. "The step-two inquiry is a de minimis screening device to dispose of groundless claims." Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). Thus, "[a]n impairment or combination of impairments can be found 'not severe' only if the evidence establishes a slight abnormality or a combination of slight abnormalities which have 'no more than a minimal effect on an individual's ability to work.'" Id. (quoting SSR 85-28, 1985 WL 56856, at *4). "Only those claimants with slight abnormalities that do not significantly limit any 'basic work activity' can be denied benefits at step two." Id. (quoting Bowen v. Yuckert, 482 U.S. 137, 158, (1987) (O'Connor, J., concurring)). If the claimant can present evidence presenting more than a "slight abnormality," the severity requirement is met. Id. Further, any reasonable doubts in step two should be resolved in the claimant's favor. Id.
A reviewing court, however, should not apply a more stringent standard of review. McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). The Commissioner's denial at step two, like one made at any other step in the sequential analysis, is to be upheld if supported by substantial evidence. Id. (citation omitted). In McCrea, the Third Circuit Court of Appeals reiterated that the "burden placed on an applicant at step two is not an exacting one." Id. Although the social security regulations speak in terms of "severity," the Commissioner has clarified that an applicant need only demonstrate something beyond "a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work." Id. (citing SSR 85-28, 1985 WL 56856, at *3). As observed in Striplin v. Colvin:
McCrea instructs that the determination of whether an applicant has met her burden at step two in the sequential analysis should focus upon her evidence. If such evidence demonstrates that the applicant has "more than a 'slight abnormality,' the step-two requirement of 'severe' is met, and the sequential evaluation process should continue." Id. at 362; 20 C.F.R. §§ 404.1520(d)-(f) and 416.920(d)-(f).Striplin v. Colvin, No. 3:15CV330, 2016 WL 5871086, at *5-6 (M.D. Pa. Oct. 7, 2016). Given the error in the ALJ's determination of Fibromyalgia as not a medically determinable impairment, combined with Dr. Veera's January 2007 opinion noting twelve tender points and the limitations in her ability to shop, carry out chores, exercise, recreate, and travel (Tr. 1579-80), the undersigned finds Plaintiff has presented evidence of more than a slight abnormality. Pursuant to McCrea, reasonable doubt should be construed in favor of continuing the evaluation process. In light of the evidence Plaintiff presented, the ALJ erred in finding Plaintiff did not have a severe impairment. /// ///
C. Weight to VA Disability Rating
Plaintiff argues that the ALJ committed reversable error by assigning limited weight to the VA disability rating. (Pl. Brief at 3). In previous cases, the undersigned has discussed at length the significant differences VA disability rating decisions and SSA disability determinations, the probative value of VA disability rating decisions, and the issue of weight an ALJ should allocate to VA disability rating decisions. Kichman v. Colvin, No. 1:15-CV-00957-YK-GBC, 2016 WL 8115733, at *18-19 (M.D. Pa. Dec. 28, 2016), report and recommendation adopted, No. 1:15-CV-957, 2017 WL 405923 (M.D. Pa. Jan. 27, 2017); McCleary v. Colvin, No. 1:15-CV-172, 2016 WL 6871375, passim (M.D. Pa. Mar. 1, 2016); Durden v. Colvin, No. 1:15-CV-0118, 2016 WL 827078, passim (M.D. Pa. Mar. 3, 2016). The VA rating decision "is authored by an individual 'unqualified' to make medical conclusions and is 'essentially a form opinion, unaccompanied by any written report.'" Durden v. Colvin, No. 1:15-CV-0118, 2016 WL 827078, at *1 (M.D. Pa. Mar. 3, 2016) (internal citations omitted).
see also Pimentel v. Berryhill, No. 1:15-CV-2061, 2017 WL 4284559, at *3 (M.D. Pa. Sept. 27, 2017); Walter v. Colvin, No. 1:16-CV-00496, 2017 WL 1363336, at *15 (M.D. Pa. Mar. 13, 2017), report and recommendation adopted sub nom. Walter v. Berryhill, No. 1:16-CV-496, 2017 WL 1344663 (M.D. Pa. Apr. 12, 2017); Burczyk v. Colvin, No. CV 15-1421, 2016 WL 3057668, at *1 (W.D. Pa. May 31, 2016). But see, Ewen v. Colvin, No. CV 15-1318, 2016 WL 6524960, at *2-3 (W.D. Pa. Nov. 3, 2016).
The ratings determination is not a medical opinion, because it is not from an acceptable medical source, and is not an opinion from another medical source. See SSR 06-3p. The Court further notes that "[n]either 20 C.F.R. § 404.1504 nor SSR 06-03p requires that any specific level of weight be accorded a VA disability decision." Wilson v. Colvin, No. 2:13-CV-197-JDL, 2014 WL 4715406, at *5 (D.Me. Sept. 22, 2014). In Kichman v. Colvin, the undersigned discussed in detail why VA disability rating decisions were not probative in the matter of work-based limitations in the Social Security context. Kichman v. Colvin, No. 1:15-CV-00957-YK-GBC, 2016 WL 8115733, at *18 (M.D. Pa. Dec. 28, 2016), report and recommendation adopted, No. 1:15-CV-957, 2017 WL 405923 (M.D. Pa. Jan. 27, 2017).
06-3P was rescinded on March 27, 2017, following the date of the ALJ's decision. See Rescission of Soc. Sec. Rulings 96-2p, 96-5p, & 06-3p, SSR 96-2P, 2017 WL 3928298 (S.S.A. Mar. 27, 2017) (for "claims filed on or after March 27, 2017, the final rules state that adjudicators will not provide any articulation about their consideration of decisions from other governmental agencies and nongovernmental entities because this evidence is inherently neither valuable nor persuasive to us"). --------
Review of the record supports the ALJ's allocation of weight to the references to VA rating decision. Plaintiff does not direct the court to the actual rating decision, rather the ALJ addresses the medical files that reference the service connected disability decision's rating. (Tr. 60 (citing to Tr. 264, 791)). The July 2011 C&P examinations noted that the examinations were requested to determine the extent of Plaintiff's eligibility for "individual unemployability." (Tr. 2047, 2078-81, 3168). However, there is no VA rating decision in the record regarding a determination of her "Individual Unemployability," a determination which may not support her claim for disability. See Kichman v. Colvin, No. 1:15-CV-00957-YK-GBC, 2016 WL 8115733, at *18-19 (M.D. Pa. Dec. 28, 2016), report and recommendation adopted, No. 1:15-CV-957, 2017 WL 405923 (M.D. Pa. Jan. 27, 2017) (discussing VA records which found that the plaintiff did not qualify as "unemployable"). The ALJ considered the references to the VA's determination and appropriately gave the references little weight due to the fundamental differences in the determination processes between the Social Security Administration and the Department of Veterans Affairs. (Tr. 60); see Burczyk v. Colvin, No. CV 15-1421, 2016 WL 3057668, at *3 (W.D. Pa. May 31, 2016); McCleary v. Colvin, No. 1:15-CV-172, 2016 WL 6871375, passim (M.D. Pa. Mar. 1, 2016); Durden v. Colvin, No. 1:15-CV-0118, 2016 WL 827078, passim (M.D. Pa. Mar. 3, 2016) (explaining that even with TDIU and 100 percent schedular ratings, "there exist significant differences from SSA disability determination requirements").
VI. Recommendation
The undersigned recommends the Court vacate the decision of the Commissioner pursuant to 42 U.S.C. § 405(g) and remand the case for further proceedings. Accordingly, it is HEREBY RECOMMENDED: 1. The decision of the Commissioner of Social Security denying Plaintiff's benefits under the Act be vacated and the case remanded to the Commissioner of Social Security to develop the record fully, conduct a new administrative hearing and appropriately evaluate the evidence. 2. The Clerk of Court close this case. The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.Dated: March 6, 2019
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE