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UNITED STATES DISTRICT COURT JUL 3-0 2020
WESTERN DISTRICT OF NEW YORK ss
ask
Wess € LoewenGut ews
ERN DISTRICTS
Melissa A. Dunworth,
Plaintiff,
v. 19-cv-2 (JLS)
Commissioner of Social Security,
Defendant.
DECISION AND ORDER
Plaintiff Melissa A. Dunworth brings this action under the Social Security
Act, seeking review of a determination by the Commissioner of Social Security (the
“Commissioner’) that she was not disabled. Dkt. 1. Dunworth moved for judgment
on the pleadings. Dkt. 14. The Commissioner responded and cross-moved for
judgment on the pleadings. Dkt. 15. Dunworth replied. Dkt. 18.
For the below reasons, this Court grants Dunworth’s motion and denies the
Commissioner’s cross-motion.
PROCEDURAL HISTORY
On January 8, 2015, Dunworth applied under Title XVI for social security
income. Dkt. 1-1, at 5.1 She originally alleged she had been disabled since October
14, 2000, but later changed the disability onset date to January 8, 2015. Id.
1 The same day, she applied under Title II for disability and disability insurance
benefits, which she later voluntarily withdrew. Jd. The Court addresses only
Dunworth’s Title XVI application.
The Commissioner denied Dunworth’s application on April 27, 2015. Id. On
May 1, 2015, she requested a hearing before an administrative law judge (“ALJ”).
Id. The ALJ held a hearing on August 22, 2017, and issued an unfavorable decision
on October 3, 2017, finding that Dunworth was not disabled under Sections 216(i),
223(a), and 1614(a)(3)(A) of the Social Security Act. See Dkt. 1-1, at 5, 16.
Dunworth appealed the ALJ’s decision on December 7, 2017, and the Appeals
Council denied her request for review on October 31, 2018. See id. at 6; Dkt. 1-2, at
2,6. She commenced this action on December 31, 2018. Dkt. 1.
LEGAL STANDARDS
I. District Court Review
The scope of review of a disability determination involves two levels of
inquiry. See Johnson v. Bowen, 817 F.2d 988, 985 (2d Cir. 1987). First, the Court
must “decide whether [the Commissioner] applied the correct legal principles in
making the determination.” Jd. The Court’s review for legal error ensures “the
claimant has had a full hearing under the . . . regulations and in accordance with
the beneficent purposes” of the Social Security Act. Moran v. Astrue, 569 F.3d 108,
112 (2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Second,
the Court “decide[s] whether the determination is supported by ‘substantial
evidence.” Johnson, 817 F.2d at 985 (quoting 42 U.S.C. § 405(g)).
“Substantial evidence” is “more than a mere scintilla” and “means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotations
and citation omitted). The Court does not “determine de novo whether [the
claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (internal
quotations and citation omitted). But “the deferential standard of review for
substantial evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003). Indeed, if there is “a
reasonable basis for doubt whether the ALJ applied correct legal principles,”
applying the substantial evidence standard to uphold a finding that the claimant
was not disabled “creates an unacceptable risk that a claimant will be deprived of
the right to have her disability determination made according to the correct legal
principles.” Johnson, 817 F.2d at 986.
II. Disability Determination
ALJs follow a five-step evaluation process to determine if a claimant is
disabled. See 20 C.F.R. § 416.920(a)(2). At the first step, the ALJ determines
whether the claimant currently is engaged in substantial gainful employment. Id.
§ 416.920(a)(4)(i). If so, the claimant is not disabled. Id. If not, the ALJ proceeds to
step two. Id. § 416.920(a)(4).
At step two, the ALJ decides whether the claimant suffers from any severe
impairments. Id. § 416.920(a)(4)(ii). If there are no severe impairments, the
claimant is not disabled. Jd. If there are any severe impairments, the ALJ proceeds
to step three. Id. § 416.920(a)(4).
At step three, the ALJ determines whether any severe impairment or
combination of impairments meets or equals an impairment listed in the
regulations. Id. § 416.920(a)(4)qii). If the claimant’s severe impairment or
combination of impairments meets or equals an impairment listed in the
regulations and meets the duration requirement, the claimant is disabled. Id.
§ 416.920(a)(4)qaii).
But if the ALJ finds that no severe impairment or combination of
impairments meets or equals an impairment in the regulations, the ALJ proceeds to
calculate the claimant’s residual functional capacity (“RFC”). Id. § 416.920(a)(4)(iv);
id. §§ 416.920(d)-(e). The RFC is a holistic assessment that addresses the
claimant’s medical impairments—both severe and non-severe—and evaluates the
claimant’s ability to perform physical or mental work activities on a sustained basis,
notwithstanding limitations for her collective impairments. See id. § 416.945.
The ALJ then proceeds to step four and determines, using the claimant’s
RFC, whether the claimant can perform past relevant work. Id. § 416.920(e). If the
claimant can perform past relevant work, she is not disabled, and the analysis ends.
Id. § 416.920(f). But if the claimant cannot perform past relevant work, the ALJ
proceeds to step five. Id. § 416.920(a)(4)(iv); id. § 416.920(f).
In the fifth and final step, the Commissioner must present evidence showing
the claimant is not disabled because the claimant is physically and mentally
capable of adjusting to an alternative job. See id. §§ 416.920(a)(4)(v), (g); Bowen v.
Yuckert, 482 U.S 137, 146 n.5 (1987); 20 C.F.R. §§ 404.1520(a)(4)(v), (g).
Specifically, the Commissioner must prove the claimant “retains a residual
functional capacity to perform alternative substantial gainful work which exists in
the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) Gnternal
quotations and citation omitted).
DISCUSSION
Applying the five-step evaluation, the ALJ first found that Dunworth had not
engaged in substantial gainful activity since January 8, 2015, the alleged onset
date. See Dkt. 1-1, at 8. At step two, the ALJ found that Dunworth had several
severe impairments, including: polyarthralgia; obesity; asthma; history of deep vein
thrombosis and bilateral pulmonary emboli; bipolar disorder; and anxiety disorder.
See id. The ALJ found that fibromyalgia was a non-medically determinable
impairment. He then found that Dunworth did not have an impairment or
combination of impairments that meets or medically equals the severity of an
impairment listed in the regulations at step three. See id. at 9. Instead, he found
“mild” or “moderate” limitations. Id.
At step four, after considering “all symptoms and the extent to which th[o]se
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence,” the ALJ found that Dunworth has the residual
functional capacity to perform:
Full range of light work .... More specifically, [Dunworth] can lift
and/or carry up to 10 pounds frequently and up to 20 pounds on occasion,
push and/or pull up to 10 pounds frequently, sit for up to six hours in an
eight-hour workday, and stand and/or walk for up to six hours in an
eight-hour workday. [She] can occasionally kneel, crouch, crawl, push,
pull, bend, and climb stairs and ramps, but can never climb ladders,
ropes, or scaffolds. Also, she cannot work around unprotected heights
or moving mechanical parts or be exposed to the extreme heat, cold,
wetness, or humidity. Additionally, [Dunworth] must avoid
concentrated exposure to fumes, odors, dust, gases, poor ventilation, and
other respiratory irritants. Psychiatrically, [she] is able to work in a low
stress work environment. This is reflected by the ability to understand,
remember and carry out simple instructions and tasks, have no
supervisory duties, no independent decision-making, no strict
production quotas, and minimal changes in work routine and processes.
Finally, [Dunworth] is capable of frequent interaction with supervisors,
co-workers, and the general public.
Id. at 10. The ALJ also found that Dunworth could not perform past relevant work.
Id. at 15. At the fifth and final step, the ALJ concluded that jobs Dunworth can
perform exist in significant numbers in the national economy, considering her age,
education, work experience, and residual functional capacity. Id. at 15.
Dunworth raises two challenges to the Commissioner’s decision: (1) the ALJ
failed to evaluate her fibromyalgia properly under Social Security Ruling 12-2p
(“SSR 12-12p”), and his error was not harmless; and (2) the Appeals Council failed
to consider properly the treating opinion evidence submitted for its review. See Dkt.
14, at 11.
I. The ALJ Failed to Evaluate Properly Dunworth’s Fibromyalgia.
Dunworth claims that the ALJ did not properly evaluate whether her
fibromyalgia was a medically determinable impairment at step two. See Dkt. 1-1, at
11.
“When the parties disagree over the effect of the ALJ’s failure to include a
condition at step two, resolution of this issue comes down to a question of whether
there was substantial evidence to support the ALJ’s conclusion that the omitted
condition should not be included as a severe impairment.” Casselbury v. Colvin, 90
F. Supp. 3d 81, 93 (W.D.N.Y. 2015) (quoting Eralte v. Colvin, No. 14 Civ. 1745(0CF),
2014 WL 7330441, at *10 (S.D.N.Y. Dec. 23, 2014)). Fibromyalgia is determined
through exclusion, and fibromyalgia patients often have physical examinations that
yield “normal” results. See Lisa v. Sec. of Dep’t of Health & Human Servs., 940 F.2d
40, 44-45 (2d Cir. 1991) (quoting Preston v. Sec’y of Health & Human Servs., 854
F.2d 815, 817-18 (6th Cir. 1988)). The Second Circuit, among other courts,
recognizes that “fibromyalgia is a disabling impairment and that ‘there are no
objective tests which can conclusively confirm the disease.” Green-Younger v.
Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (quoting Preston, 854 F.2d at 818).
To address this issue, the Commissioner developed SSR 12-2p to provide
guidelines for the evidence required to establish fibromyalgia as a medically
determinable impairment. See SSR 12-2p, 2012 WL 3104869, at *2 (July 25, 2012).
Fibromyalgia is a medically determinable impairment if: (1) the physician
diagnosed fibromyalgia; (2) the physician provided the evidence required in Section
II.A. (1990 American College of Rheumatology Criteria) or Section II.B (2010
Preliminary Diagnostic Criteria); and (3) the physician’s diagnosis is not
inconsistent with the other evidence in the person’s case record. See id.
Here, the ALJ did not properly evaluate—or, at a minimum, did not properly
support his evaluation of—Dunworth’s fibromyalgia. The ALJ mentions SSR 12-2p,
but his analysis consists of one sentence: “As it pertained to rheumatoid arthritis
and fibromyalgia, there is no assessment that is consistent with SSR 12-2p.” See
Durodoye v. Comm’ of Soc. Sec., No. 6:16-CV-1457 (CFH), 2018 WL 1444212, at *6
(N.D.N.Y. Mar. 20, 2018); Dkt. 1-1, at 8. The ALJ did not cite any criteria and did
not explain his conclusion regarding Dunworth’s fibromyalgia. See Dkt. 1-1, at 8-9.
Rather, he provided a brief discussion of Dunworth’s diagnosis and various objective
tests, which appeared “unremarkable” or “normal.” See id. The ALJ concluded that
Dunworth’s fibromyalgia was not a medically determinable impairment based on a
lack of objective findings, and did not consider the non-objective methods for
assessing fibromyalgia set forth in SSR 12-2p.
The Court next must consider whether the ALJ’s error at step two was
harmless. Dunworth argues that “because the ALJ concluded that [her]
fibromyalgia is not a medically determinable impairment, [he] had no basis to credit
[her] statements regarding her fibromyalgia-related symptoms in the remainder of
[his] decision.” See Dkt. 14, at 15 (quoting Cooper v. Comm of Soc. Sec., No. 17-
CV-1058-MJR, 2019 WL 1109573, at *5 (W.D.N.Y. Mar. 11, 2019)). The
Commissioner argues that the ALJ considered all of the medical record evidence
regarding symptoms attributed to polyarthralgia, which closely resemble the
symptoms of fibromyalgia, as required by 20 C.F.R. §§ 404.1529 and 416.929. See
Dkt. 1-1, at 10; see also Dkt. 15-1, at 8-10.
The harmless error doctrine requires “a reviewing court [to] reverse and
remand when an [ALJ] errs when reaching a decision, unless, as a matter of law,
the result could not be affected by the error.” Showers v. Colvin, No. 3:18-cv-1147
(GLS/ESH), 2015 WL 1483819, at *8 (N.D.N.Y. Mar. 25, 2015). Failure to include a
condition as a severe impairment “is harmless if the ALJ proceeded through the
sequential analysis taking the plaintiffs complaints of pain into account when
making his RFC determination.” Casselbury, 90 F. Supp. 3d at 94. But when the
ALJ’s error stems from his decision that an impairment is not medically
determinable, the “step two harmless doctrine is inapplicable.” Keller v. Colvin, No.
16-CV-6399P, 2017 WL 4112024, at *14 (W.D.N.Y. Sept. 18, 2017). In other words,
the step two harmless error doctrine applies only to ALJ decisions regarding
whether an impairment is severe, and not to decisions regarding whether the
impairment is medically determinable. See Showers, 2015 WL 1483819, at *8.
Here, the ALJ’s incomplete analysis of Dunworth’s fibromyalgia at step two
could have affected his RFC analysis. The relevant issue was whether Dunworth’s
fibromyalgia was a medically determinable impairment—not whether her
fibromyalgia was a severe impairment—so the harmless doctrine does not apply.”
See id. Because he determined that Dunworth’s fibromyalgia was not a medically
determinable impairment, the ALJ should not have considered the symptoms
relating to her fibromyalgia when he calculated her RFC. Even if the ALJ
considered similar symptoms when calculating Dunworth’s RFC, “remand is
necessary for the ALJ to properly evaluate [Dunworth]’s fibromyalgia at step two
and the remaining steps of the sequential evaluation process.” See Keller, 2017 WL
4112024, at *14.
2 This distinction matters because, “when functional effects of impairments
erroneously determined to be nonsevere at step [two] are fully considered and
factored into subsequent residual functional capacity assessments, the step [two]
error effectively is cured.” Showers, 2015 WL 1483819, at *8. That cure did not
occur here.
II. The Appeals Council Did Not Fail to Consider Treating Opinion
Evidence Submitted for Its Review.
Dunworth argues that the Appeals Council failed to consider treating
opinion evidence submitted for its review. See Dkt. 14, at 16.
The “treating physician rule” requires the Appeals Council to consider
additional evidence from a claimant if the evidence is: (1) new; (2) material;
(3) relates to the period on or before the ALJ’s decision; and (4) would, with
reasonable probability, change the outcome of the decision. See Brown v. Comm’r of
Soc. Sec., No. 17-CV-1107P, 2019 WL 2441862, at *2 (W.D.N.Y. June 12, 2019).
Evidence is “new” if “it has not been considered previously in the administrative
process.” Id. Evidence is “material” when “it is relevant to the claimant’s condition
during the time period for which benefits were denied and probative, meaning there
is a reasonable probability that it would have influenced the Commissioner to
decide the claimant’s application differently.” Id.
Generally, the Appeals Council gives more weight to medical opinions from
the claimant’s treating sources because those sources likely have the most
knowledge about the claimant’s medical history. See 20 C.F.R. § 416.927(c)(2).
Medical opinions are “statements from acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s] impairment(s),
including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant]
can still do despite impairment(s), and [the claimant’s] physical or mental
restrictions.” 20 C.F.R. § 404.1527(a)(1). But “a statement by a medical source that
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[the claimant is] ‘disabled’ or ‘unable to work’ does not mean that [the Appeals
Council] will determine [the claimant is] disabled.” Id. § 416.927(d)(1).
Here, the Appeals Council did not err by declining to review opinion evidence
from Dr. Smith. The evidence was new because Dr. Smith’s examination was not
“considered previously in the administrative process.” See Brown, 2019 WL
2441862, at *2. The evidence was not, however, material. Dr. Smith’s examination
was “relevant to [Dunworth]’s condition during the time period for which benefits
were denied and probative” because it pertained to her fibromyalgia around the
period for which the ALJ rendered an unfavorable decision. See id. But there is not
a “reasonable probability that [the evidence] would have influenced the
Commissioner to decide [Dunworth]’s application differently.”
In particular, Dr. Smith completed a medical examination of Dunworth,
listing her medical conditions as anxiety, depression, asthma, arthritis, and
fibromyalgia. See Dkt. 8, at 36-37.3 All of these conditions are documented in
Dunworth’s medical record and were considered by the Commissioner, ALJ, and
Appeals Council. See id. at 80-81. Dr. Smith’s note that Dunworth “is unable to
work at this time” also does not have a reasonable probability of affecting the
outcome because the Appeals Council—not Dunworth’s treating physician—is
“responsible for making the determination or decision about whether [she] meets
the statutory definition of disability.” 20 C.F.R. § 416.927. Finally, Dr. Smith did
3 All further references to Dkt. 8 are denoted “Tr.”
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not describe the nature and severity of Dunworth’s impairments, including
fibromyalgia; he merely provided a conclusory statement. See Tr. 37.
The Appeals Council properly denied Dunworth’s request that it review the
evidence from Dr. Smith. Because the evidence was not material, the Appeals
Council was not required to review it. See Brown, 2019 WL 2441862, at *2.
CONCLUSION
For the reasons stated above, the Court GRANTS Dunworth’s motion for
judgment on the pleadings (Dkt. 14) and DENIES the Commissioner’s motion for
judgment on the pleadings (Dkt. 15). The Commissioner’s decision is VACATED,
and the matter is REMANDED for further administrative proceedings consistent
with this decision and order. The Clerk of Court is directed to close this case.
SO ORDERED.
Dated: July 30, 2020
Buffalo, New York annie
ie L. SINATRA, TR.
Xu NITED STATES DISTRICT JUDGE
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