United States District Court, D. Rhode Island
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Glenford W. served in the United States Army, including
active duty in Afghanistan, from 2010 through 2013. Since
ending his deployment, he has suffered from service-related
post-traumatic stress disorder, with depression and anxiety,
and diffuse body pain that has been diagnosed as
fibromyalgia. Although he has been deemed disabled by the
Department of Veterans Affairs (“VA”), his third
application for Disability Insurance Benefits
(“DIB”) under 42 U.S.C. § 405(g) of the
Social Security Act (the “Act”) was denied based
on the decision of an Administrative Law Judge
(“ALJ”), who accepted his impairments but found
that he retained the RFC to perform simple light work in a
stable environment with limited interactions with others.
Before the Court is Plaintiff's motion to reverse the
Commissioner's decision. Plaintiff contends that the ALJ
erred in affording minimal weight to one VA treating source
opinion, to the examining/file review opinions of two other
VA sources, and to the examining opinions of a family
practitioner, which were presented in support of his VA
disability claim. Plaintiff also challenges the ALJ's
evaluation of the limiting effects of fibromyalgia. Defendant
Nancy A. Berryhill (“Defendant”) has filed a
motion for an order affirming the Commissioner's
matter has been referred to me for preliminary review,
findings and recommended disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B). Having reviewed the entire record, I
find that error tainted the ALJ's reasons for affording
minimal weight to the findings of the primary care treating
physician, Dr. Raymond Lee, and to those of the VA
examining/file reviewing psychologists, Dr. Rebecca Papas and
Dr. William Haddad, but I also find that these errors are
harmless. By contrast, I find no error in the ALJ's
decision to discount the seriously flawed opinions of the
non-VA examiner, Dr. Dawn Moten. With respect to
fibromyalgia, I find that the ALJ appropriately followed the
First Circuit's guidance in Johnson v. Astrue,
597 F.3d. 409, 412 (1st Cir. 2009), and that his assessment
of the intensity and severity of Plaintiff's fibromyalgia
symptoms is well supported by substantial evidence. Based on
these findings, I recommend that Plaintiff's Motion to
Reverse the Decision of the Commissioner (ECF No. 8) be
DENIED and Defendant's Motion for an Order Affirming the
Decision of the Commissioner (ECF No. 10) be GRANTED.
serving a one-year-long deployment in Afghanistan, Plaintiff,
a “younger” person in the parlance of the Act,
ended active duty in the Army in 2013, and joined the New
York National Guard as an infantry team leader. Tr. 43, 55,
397. He continued serving until he was medically discharged
in January 2017. Tr. 299. The record is unclear regarding
what activities the National Guard position required, except
that the file includes references to traveling to New York
for training in June 2016. Tr. 440; see Tr. 492 (as
of March 2016, “[h]e is in active guard service and
going to school”). Plaintiff's only other post-Army
work was a summer job as a camp counselor in 2014. Tr. 43-44.
In the early years following his Army discharge, Plaintiff
was diagnosed with post-traumatic stress disorder
(“PTSD”); he also complained of hand, knee, spine
and hip issues linked to strains that occurred during 2012
and 2013 while in service. Tr. 255, 1594. During 2016,
Plaintiff went through the stress of a divorce and was
awarded 50% custody of his two-year-old daughter, at the same
time that he was a full-time college student. Tr. 41-42, 725.
Also in 2015/2016, Plaintiff was diagnosed with fibromyalgia
based on diffuse body pain and other diagnostic criteria. Tr.
1105. Plaintiff received treatment from the VA for all of his
mental and physical symptoms.
time of the ALJ's hearing in September 2017, Plaintiff
was caring for his daughter three days a week, sometimes
longer if his ex-wife was away, Tr. 742, and attending
college full time. He had completed the sophomore year,
mostly through on-line courses; he was studying business and
doing well. Tr. 41-42, 491; see Tr. 45
(“I'm probably like a B student.”). As
Plaintiff told the ALJ, “I like school. It keeps me
busy, ” Tr. 46; Plaintiff also testified that he had no
difficulty caring for his toddler, watching movies with her
and taking her to a nearby park. Tr. 48. The record reflects
that Plaintiff ran a 5k with his daughter in 2016, and
“had a good time and hope to get out and do more things
like that.” Tr. 441. In late November 2016, shortly
before the period in issue, Plaintiff reported to treating
sources that he was walking more and doing slow jogs. Tr.
652. Plaintiff drives independently, shops for food and
children's items, handles his own finances, and goes to
church. Tr. 315, 316.
first DIB application was filed on August 6, 2015; it was
denied on reconsideration on October 5, 2015. His second DIB
application was filed on June 8, 2016; it alleged onset as of
August 29, 2014, and was denied on reconsideration on January
5, 2017. See Tr. 17 n.1. The current DIB application
was filed on January 9, 2017, alleging onset as of the day
immediately following the prior denial determination (January
6, 2017). Plaintiff's date last insured is December 31,
the administrative phase, Plaintiff asked that the earlier
applications be reopened; this request was pressed during the
ALJ's hearing. Tr. 40, 63-64. Reopening was denied by the
ALJ because he did “not find that the evidence shows
facts that would have resulted in a different conclusion as
to eligibility than originally reached had the evidence been
introduced or available at the time of the prior
determinations.” Tr. 17 n.1. Nevertheless, the ALJ
considered the entire medical record consistent with 20
C.F.R. § 404.1512(b). In his motion to this Court,
Plaintiff does not argue that the ALJ's refusal to reopen
is error; rather, he asks only that a remand order based on
the errors as to which he presented arguments should include
the directive that the Commissioner reconsider whether
Plaintiff's prior applications should be reopened.
Accordingly, this report and recommendation does not
separately address the issue of reopening, deeming it waived.
Medical History During Period in Issue
the period in issue - from January 6, 2017, until the date of
the ALJ's decision on October 17, 2017 - Plaintiff sought
and received almost no medical treatment.
beginning of the period, on January 27, 2017, Plaintiff saw
his primary care physician, Dr. Raymond Lee, who had signed
an opinion ten days prior confirming the diagnosis of
fibromyalgia based on diffuse pain, stiffness, fatigue, sleep
disturbances, depression and anxiety and irritable bowel
symptoms. Tr. 1097. At the January 27, 2017, appointment, Dr.
Lee focused on the dosage of Plaintiff's medication,
which was causing fatigue, at the same time that fibromyalgia
symptoms were “slightly improved with cymbalta, ”
while “anxiety/depression improved with cymbalta[, ]
. . . [n]o longer having panic attacks. Tr. 1706. On
examination, Dr. Lee found muscular strength “5/5
strength throughout, ” with all other observations
normal except for “tenderness over blt traps and upper
arms, ” including full range of motion in the cervical
spine. Tr. 1705.
February 2017, Plaintiff saw an ophthalmologist to whom he
was referred by Dr. Lee based on Plaintiff's complaint of
blurry vision. Testing yielded the finding that
Plaintiff's vision was normal and the issue was caused by
“mild refractive error.” Tr. 1733.
September 12, 2017, Plaintiff saw his psychiatrist, Dr. Syed
Raza, whose notes reference the long (“more than 9
months”) delay since Plaintiff had last been seen. Tr.
2293. Plaintiff told Dr. Raza that he was depressed and tired
since running out of medication two weeks before, although he
was sleeping well. Tr. 2294. On examination, Dr. Raza's
findings were entirely normal; “[o]verall functioning
the treating records for the period in issue, except for
those related to the last appointment with Dr. Raza, were
reviewed by the SSA file-reviewing experts.
Medical History Prior to Period in Issue
massive medical record for the prior period, which was
available both to the SSA file-reviewing experts and to the
ALJ, goes back to 2013. It reflects Plaintiff's
consistent PTSD diagnosis and his struggles with related
depression and anxiety, particularly the symptoms of
self-isolation and challenges in dealing with other people.
However, by 2016, following several years of treatment,
treating notes are upbeat. See, e.g., Tr. 813 (Feb.
2016: “Vet is coping very well . . . taking care of
self and daughter . . . ...