United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
August 14, 2017, Plaintiff Nicole C. applied for Disability
Insurance Benefits (“DIB”) under 42 U.S.C. §
405(g) of the Social Security Act (the “Act”),
and Supplemental Security Income (“SSI”) under
§ 1631(c)(3). Alleging onset on June 26, 2017, Plaintiff
contends that the Administrative Law Judge
(“ALJ”) erred in assessing the impact of
fibromyalgia on her residual functional capacity
(“RFC”),  in that he did not accept her subjective
statements as reliable and found the opinion of her treating
physician, Dr. Miridula Menon, to be unpersuasive, but found
the contemporaneous opinion of the state agency non-examining
physician, Dr. Marcia Lipski, to be persuasive. Defendant
Andrew M. Saul (“Defendant”) moves for an order
affirming the Commissioner's decision. The matter has
been referred to me for preliminary review, findings and
recommended disposition pursuant to 28 U.S.C. §
reviewed the record, I find that the ALJ's findings are
consistent with applicable law and sufficiently supported by
substantial evidence. Accordingly, I recommend that
Plaintiff's Motion to Reverse the Decision of the
Commissioner (ECF No. 10) be DENIED and Defendant's
Motion for an Order Affirming the Decision of the
Commissioner (ECF No. 11) be GRANTED.
prior disability applications for SSI and DIB were denied at
the initial phase in April 2016. She worked after that as a
clerk in various medical offices until June 26, 2017 (the
alleged onset date); she was only thirty-nine years old when
she stopped working. Tr. 171. Plaintiff is married with three
children, all at home; she completed eleventh grade and has
her GED. Tr. 49. In addition to fibromyalgia, Plaintiff
suffers from obesity, degenerative disc disease, migraine
headaches, hypothyroidism and depression/anxiety. Dr. Menon
is Plaintiff's primary care physician; her treating
relationship with Plaintiff extends throughout the period in
issue, from prior to October 2016 through February 2018 with
appointments generally once a month.
relevant treating history begins shortly before onset, in May
2017, when Plaintiff saw one of Dr. Menon's colleagues
for a headache and low back pain after moving furniture for
her daughter. Tr. 470. An x-ray revealed little more than
moderate disc space narrowing at the L5-S1 level but, on
examination, the lower lumbar spine was “quite tender,
” Tr. 472, and straight leg raise was positive on one
side. Other observations were normal, including normal gait.
Tr. 441. Muscle relaxants, prednisone and ibuprofen were
prescribed. During the summer of 2017, Plaintiff saw Dr.
Menon five times. Dr. Menon addressed Plaintiff's
complaints of body aches and fatigue, but other than myalgias
and pain at an appointment right after a motor vehicle
accident, the examination results were largely normal. Tr.
448-61, 552-54. In August 2017, based on Plaintiff's
complaints of pain, Dr. Menon referred Plaintiff to a
rheumatologist, Dr. John Conte. At his initial evaluation,
Dr. Conte found that Plaintiff was obese and had multiple
tender points, but that she was “[c]omfortable at rest,
” Tr. 494, and had normal range of motion, good
strength, normal gait and “[s]trong grips, ” Tr.
495. He noted the absence of any “apparent inflammatory
or autoimmune condition that would explain her sundry pain
complaints and fatigue, ” and suggested that she
consider returning to work. Tr. 497. In early September 2017,
Dr. Menon referred Plaintiff to Ortho RI; despite subjective
complaints of pain at the most extreme severity level (10/10)
and a limp, objective findings on examination included the
observation that she was “comfortable, ” with
some limits on motion and strength for an injured hip, but
were otherwise normal, with independent ambulation and normal
gait. Tr. 499-500. She was advised to lose weight and
exercise and that conservative treatment would be
appropriate. Tr. 500.
the fall of 2017, complaining of chest tightness, generalized
body aches and fatigue, radiating back pain causing numbness
in the right lower extremity, and the inability to walk even
a few steps without pain, Plaintiff was seen four times by
Dr. Menon. Tr. 42-46, 574-78. Meanwhile in early November,
Plaintiff returned to Dr. Conte, who noted the intervening
motor vehicle accident and, this time, diagnosed fibromyalgia
and trigger finger (both hands); on examination, Dr. Conte
found tenderness and trigger points in the back, hips, knees
and shoulders, but normal strength and gait, including
“[s]trong grips.” Tr. 519-24. He prescribed
Naltrexone and suggested she return in two months. Tr. 530.
In early November 2017, Plaintiff was seen at the Spine
Center; on examination by Dr. Keith-Austin Scarfo, she was in
no acute distress, had normal strength, intact range of
motion and negative straight-leg raise, with a mildly
antalgic gait and diffuse tenderness (to light touch) in the
spine. Tr. 556. Dr. Scarfo noted that the CT scan of the
spine was normal except for a possible disc bulge. He also
observed: “I feel that she is on far too many
medications that do not provide her any benefit.” Tr.
558. Plaintiff also continued to go to Ortho RI, where she
saw Dr. Maher El-Khatib in late November. On examination Dr.
El-Khatib found normal gait, normal strength, negative
straight-leg raise, “[s]ome tenderness over lower
lumbar spinal and paraspinal areas, ” but significant
tenderness in the sacroiliac joint. He suggested injections
for the latter (which he administered in December 2017) and
urged Plaintiff to lose weight as a way to relieve her
symptoms. Tr. 623-24.
December 2017, Dr. Marcia Lipski, a state agency expert,
reviewed the foregoing record. She acknowledged that
Plaintiff is morbidly obese and accurately summarized
findings on examination by Dr. Conte, Dr. Menon and Dr.
Menon's colleagues, as well as Plaintiff's
statements, for example, as set out in the Function Reports.
Based on this file review, Dr. Lipski endorsed as severe
obesity and “disorders of muscle, ligament and fascia,
” Tr. 203, 219, and opined to an RFC limited to the
ability to lift no more than twenty pounds occasionally, to
sit or to stand/walk for about six hours in an eight-hour
day, with significant postural and manipulative (overhead
reaching) limitations. Tr. 206-07, 222-23. The Social
Security Administration (“SSA”) assessment notes
that Plaintiff's statements regarding her symptoms based
on “myofascial pain and morbid obesity” are only
partially consistent with the medical and non-medical
evidence of record. Tr. 205, 221.
after Dr. Lipski signed her opinion, on January 5, 2018,
Plaintiff returned to Dr. Menon. Tr. 638. One of the purposes
of this appointment was to “[d]iscuss paperwork.”
Id. On examination, Dr. Menon made normal findings
except for “[m]ultiple tender points” and
recommended that Plaintiff continue with gabapentin, Flexeril
and ibuprofen, with emphasis on getting adequate sleep,
exercise and stress control. Tr. 640. There is no
prescription, recommendation, observation or suggestion in
this or any other treating record that Plaintiff use a cane
or other assistive device when standing or walking, that
Plaintiff elevate her legs with prolonged sitting for 50% of
the time, or that Plaintiff is limited in the use of her
hands and fingers to 25% of the time.
same day as this appointment, Dr. Menon signed her opinion.
In it, she wrote that Plaintiff's diagnosed impairments
include fibromyalgia, lumbar radiculopathy, migraines, sleep
apnea, hypothyroidism and mental issues, while her symptoms
include tender points, headaches, chronic fatigue and pain
virtually everywhere, among others. Tr. 618. Based on these
impairments, Dr. Menon opined that Plaintiff cannot walk more
than one block, cannot sit for more than twenty minutes,
cannot stand for more than ten minutes, cannot sit and
stand/walk for as many as two hours in an eight-hour day,
cannot carry even ten pounds (except rarely), and can use her
hands and fingers only 25% of the time, as well as that she
is limited in the use of both arms to 25% of the time, except
for reaching, which she can do for 50%-75% of the time. Tr.
619. Further, Dr. Menon opined that, while engaged in
occasional standing/walking, Plaintiff “must . . use a
cane or other assistive device” and
“should” keep her legs elevated above knee level
for 50% of the workday. Tr. 620.
record for the period after these opinions were signed by Dr.
Lipski and Dr. Menon may be briefly summarized. In January
2018, Plaintiff was screened for carpal tunnel syndrome
(“CTS”) and was diagnosed with minimal left CTS,
but the clinical note indicates that the diagnosis was by
ultrasound criteria only in that there were no signs on the
nerve conduction study. Tr. 663. Also in January, Dr.
El-Khatib continued to observe normal gait, normal muscle
tone and negative straight leg raise, but limited heel/toe
walking, with some tenderness and painful flexion and
extension of the lumbar spine and significant tenderness in
the sacroiliac joint. Tr. 629. He administered lumbar facet
block injections. Tr. 630-32. In February, Plaintiff saw Dr.
Menon again; although she complained that the fibromyalgia
pain was worse, she also told Dr. Menon that she “does
try to walk everyday”; Dr. Menon's examination
yielded all normal findings. Tr. 633, 635. On a referral from
Dr. Menon, a neurological examination resulted in
observations of independent ambulation, normal strength and
normal gait; a brain MRI performed based on Plaintiff's
complaints was normal. During this appointment, Plaintiff
told the treating provider that “[s]he takes care of
her family which include her husband, two younger children
[at] home, and an older one who's 21.” Tr. 657. The
notes from mental health providers from February through
August 2018 include observations of normal gait and
Plaintiff's reports of walking in the woods (where she
hurt her ankle), going out with her family for Mother's
Day and “coping with things much better.” Tr.
Standard of Review
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla - that is, the
evidence must do more than merely create a suspicion of the
existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support
the conclusion. Ortiz v. Sec'y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam);
Rodriguez v. Sec'y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel,
71 F.Supp.2d 28, 30 (D.R.I. 1999). Once the Court concludes
that the decision is supported by substantial evidence, the
Commissioner must be affirmed, even if the Court would have
reached a contrary result as finder of fact. Rodriguez
Pagan v. Sec'y of Health & Human Servs., 819
F.2d 1, 3 (1st Cir. 1987); see also Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991);
Lizotte v. Sec'y of Health & Human Servs.,
654 F.2d 127, 128 (1st Cir. 1981). The determination of
substantiality is based upon an evaluation of the record as a
whole. Brown, 71 F.Supp.2d at 30; see also
Frustaglia v. Sec'y of Health & Human Servs.,
829 F.2d 192, 195 (1st Cir. 1987); Parker v. Bowen,
793 F.2d 1177, 1180 (11th Cir. 1986) (court also must
consider evidence detracting from evidence on which
Commissioner relied). Thus, the Court's role in reviewing
the Commissioner's decision is limited. Brown,
71 F.Supp.2d at 30. The Court does not reinterpret the
evidence or otherwise substitute its own judgment for that of
the Commissioner. Id. at 30-31 (citing Colon v.
Sec'y of Health & Human Servs., 877 F.2d 148,
153 (1st Cir. 1989)). “[T]he resolution of conflicts in
the evidence is for the Commissioner, not the courts.”
Id. at 31 (citing Richardson v. Perales,
402 U.S. 389, 399 (1971)). If the Court finds either that the
Commissioner's decision is not supported by substantial
evidence, or that the Commissioner incorrectly applied the
law relevant to the disability claim, the Court may remand a
case to the Commissioner for a rehearing under Sentence Four
of 42 U.S.C. § 405(g). Allen v. Colvin, No. CA
13-781L, 2015 WL 906000, at *8 (D.R.I. Mar. 3, 2015) (citing
Jackson v. Chater, 99 F.3d 1086, 1097-98 (11th
Cir.1996)). If the Court finds that a judicial award of
benefits would be proper because the proof is overwhelming,
or the proof is very strong and there is no contrary
evidence, the Court can remand for an award of benefits.
Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001).
defines disability as the inability to do 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.
§ 416(I); 20 C.F.R. § 404.1505. The impairment
must be severe, making the claimant unable to do previous
work, or any other ...