Teachout v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Dominique T.,1
Plaintiff,
v. 5:24-CV-1532
(MJK)
Frank Bisignano,
Commissioner of Social Security
Defendant.
_____________________________________________________________________
Howard D. Olinsky Esq., for Plaintiff
Fergus J. Kaiser Esq., Special Asst. U.S. Attorney, for Defendant
Mitchell J. Katz, U.S. Magistrate Judge
MEMORANDUM-DECISION & ORDER
Dominique brought this action under the Social Security Act (42
U.S.C. § 405(g)) seeking judicial review of the Social Security
Commissioner’s final decision denying her application for benefits. (Dkt.
1.). Dominique consented to the jurisdiction of a Magistrate Judge.
(Dkt. 4). Both parties filed briefs (Dkts. 13, 15, 16) which the Court
treats as motions under Fed. R. Civ. P. 12(c), in accordance with
General Order 18.
1 This Decision will identify the plaintiff using only her first name and last initial to
protect her privacy.
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I. PROCEDURAL HISTORY
On July 28, 2021, Dominique filed an application for Title XVI
supplemental social security income benefits, alleging disability
beginning March 5, 2021. (T. 10).2 The Social Security Administration
(“SSA”) denied the claims initially on January 24, 2022, and again upon
reconsideration on November 3, 2022. (Id.). Dominique requested a
hearing 18 days later. (Id.) The SSA granted the request and
Administrative Law Judge (“ALJ”) Kenneth Theurer held a telephonic
hearing on March 29, 2024. (T. 40-67). At the hearing, non-attorney
advocate Kimberly MacDougall represented Dominique. (T. 43). Both
Dominique and Vocational Expert, Victor Alberigi, testified. (T. 46-61;
61-66). On April 11, 2024, ALJ Theurer issued an unfavorable decision.
(T. 7-20).
II. GENERALLY APPLICABLE LAW
The parties are familiar with the five-step-sequential analysis
ALJs use to evaluate disability insurance and supplemental security
income claims, so the Court need not repeat it. See 20 C.F.R. §§
404.1520, 416.920; see also Petrie v. Astrue, 412 F. App’x 401, 404 (2d
2 All page references are to the Administrative Transcript (“T.”) and not the page
numbers assigned by the CM/ECF pagination system.
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Cir. 2011) (summary order) (describing the five-step-sequential
analysis). As to the substantial evidence standard: substantial evidence
is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Talavera v. Astrue, 697 F.3d 145, 151
(2d Cir. 2012).
III. FACTS
The record includes Dominique’s medical and mental health
treatment records which the parties are familiar with. The Court will
refer to the pertinent records and the hearing testimony in its analysis
of the parties’ claims, as appropriate.
IV. THE ALJ’S DECISION
At step one of the five-step-sequential analysis, ALJ Theurer
determined that Dominique has “not engaged in substantial gainful
activity since July 1, 2021, the application date.” (T. 12) (cleaned up).
At step two, ALJ Theurer held that Dominique “has the following
severe impairments: lupus erythematosus, fibromyalgia, psoriatic
arthritis, cervical degenerative disc disease, asthma, and recurrent
cerumen impaction of both []ears with left side hearing loss.” (Id.).
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Next, ALJ Theurer discussed the “paragraph B” criteria. (T. 12-
13). “To satisfy the paragraph B criteria,” mental impairments “must
result in one extreme limitation or two marked limitations in a broad
area of functioning.” See 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.00(A)(2)(b) (cleaned up). The four broad areas of mental functioning
are: (1) understanding, remembering, or applying information; (2)
interacting with others; (3) maintaining concentration, persistence, or
pace; and (4) adapting and managing oneself. See 20 C.F.R. pt. 404,
subpt. P, app. 1, § 12.00(C). Here, ALJ Theurer found that Dominique
“has no more than mild limitation[s] in any of” the four broad areas of
mental functioning. (T. 13) (emphasis removed).
At step three, ALJ Theurer determined that Dominique did not
“have a single impairment, or combination of impairments, that equaled
the severity of impairments listed in 20 C.F.R Part 404, subpt. P, app.
1.” (T. 15) (citations omitted).
After this, ALJ Theurer determined that Dominique had the
residual function capacity (“RFC”) to perform:
a range of light work, as defined in 20 CFR 416.967(b).
Specifically, the claimant can lift and carry twenty pounds
occasionally and ten pounds frequently, sit for up to six hours,
and stand or walk for approximately six hours in an eight-
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hour day with normal breaks. She can never climb ladders,
ropes, or ladders, but can occasionally climb ramps or stairs,
balance, stoop, kneel, crouch, and crawl. She can also
occasionally reach overhead with her right upper extremity.
The claimant should avoid working at unprotected heights or
in conjunction with dangerous machinery. She should also
avoid exposure to concentrations of smoke, dust, and
respiratory irritants or more than moderate levels of noise, as
defined in the Dictionary of Occupational Titles.
(T. 15).
To make this finding, ALJ Theurer considered “the medical
opinion(s) and prior administrative medical finding(s)” pursuant to 20
C.F.R. § 416.920c. (Id.).
At step four, ALJ Theurer found that Dominique “has no past
relevant work,” is within the “younger individual age 18-49” category,
“has a limited education,” and “transferability of skills is not an issue.”
(T. 18) (cleaned up).
Finally at step five, ALJ Theurer held that “considering” her “age,
education, work experience, and residual functional capacity,”
Dominique “is capable of making a successful adjustment other work
that exist in significant numbers in the national economy.” (T. 19-20).
Accordingly, ALJ Theurer determined that Dominique is not disabled as
defined by the Social Security Act. (T. 20).
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V. ISSUES IN CONTENTION
Dominique argues that substantial evidence does not support ALJ
Theurer’s RFC determination because the ALJ only relied on objective
clinical evidence—in the fibromyalgia context—when performing the
supportability and consistency analyses on Nancy Gaskill P.A.’s medical
opinion. (Pl. Br. at pgs. 9-15). In opposition, the Commissioner argues
that substantial evidence supports ALJ Theurer’s decision. (Def. Br. at
5-10).
VI. DISCUSSION
ALJ Theurer’s decision is remanded because his
supportability and consistency analyses failed to look past
the objective clinical findings even though Dominique
suffers from fibromyalgia.
Fibromyalgia is “a disease that eludes” objective “measurement.”
Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d. Cir. 2003). “There are
no objective tests which can conclusively confirm the disease.” Id.
(internal citations omitted). So “objective findings are not required to
find that an applicant is disabled.” Id. (internal citation omitted). As a
result, ALJs cannot “rely solely on objective evidence—or lack thereof—
related to fibromyalgia;” they “must consider all relevant evidence,
including the longitudinal treatment record.” Anysha M. v. Comm’r of
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Soc. Sec., No. 19-CV-0271 (CFH), 2020 WL 1955326 at *3 (N.D.N.Y.
2020) (cleaned up).
Dominique has a long history of fibromyalgia symptoms. In 2018,
Dominique reported pain in her hands, knees, neck, hips, and ankles.
(T. 335). Her provider noted that she suffered from joint swelling, joint
stiffness, joint pain, neck pain, and myalgias. (T. 337). Ultimately, the
provider identified “12+ tender fibromyalgia points.” (Id.). The following
year, Dominique continued to report body aches and morning stiffness.
(T. 340). In February 2020, Domonique still suffered from soft tissue
swelling in her left wrist and several tender points. (T. 356). A year
later, Dominique reported “symptoms of arthralgia in her hands, wrists,
elbows, shoulders[,] and knees with 15 minutes of morning stiffness.”
(T. 546). She also suffered from pain in her ankles and hips. (Id.). In
April 2021, Dominique continued reporting “pain in her
hips/shoulders/fingers/lower back, with morning stiffness lasting 15
minutes.” (T. 612). In January 2022, Consultative Examiner, Elke
Lorensen, M.D., assessed Dominique. (T. 1117-20). During that
examination, Dr. Lorensen noted, among other things, “four positive
trigger points . . . for fibromyalgia[.]” (T. 1119).
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In March 2022, Dominique began to show improvement.
Dominique’s morning stiffness decreased from 15 minutes to five
minutes, and both her sleep and fatigue improved. (T. 1157). Dominique
also noted “significant improvement in her symptoms” due to Saphnelo
infusions. (Id.).
But Dominique’s joint pain did not vanish. In June 2022,
Dominique reported joint and neck pain when being assessed for left
knee pain. (T. 1345). In February 2024, Dominique was “feeling well”
and “in good spirits” before and after receiving a Saphnelo infusion. (T.
1574). But in the following month, a provider noted that Dominique
“continues to have moderate exacerbation of generalized joint pain
about 1 week” before she is scheduled to receive her monthly Saphnelo
infusion. (T. 2046). Dominique also reported morning stiffness that lasts
between five and 10 minutes. (T. 2047). Ultimately, that provider noted
that Dominique has fibromyalgia related pain. (Id.).
ALJ Theurer’s decision does not meaningfully address
Dominique’s long history of fibromyalgia symptoms and relies on only
objective clinical findings. See (T. 16-18). When performing the
supportability and consistency analyses, ALJ Theurer articulated that
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P.A. Gaskill, found Dominique to have “no tenderness, weakness, or
unrestricted motion” in her “upper or lower extremities.” (T. 18). With
that evidence, ALJ Theurer found P.A. Gaskill’s medical source
statement unsupported by her medical findings and inconsistent with
the record. (Id.).
ALJ Theurer’s sole reliance on the objective clinical findings was
error. Indeed, ALJs err when they “place[] undue emphasis on
plaintiff[s’] ‘benign’ physical examination findings. In doing so, . . .
ALJ[s] fail[] to show an appreciation of the well-settled understanding
that fibromyalgia impairments may not manifest in abnormal objective
findings.” Melanya B. v. Comm’r of Soc. Sec., No. 22-CV-6125, 2024 WL
4223655, at *4 (W.D.N.Y. 2024) (internal citation omitted).Yet here,
ALJ Theurer relied on only objective clinical findings when finding P.A.
Gaskin’s medical source statement unsupported by her treatment notes.
ALJ Theurer’s over reliance on objective clinical findings when
performing the supportability and consistency analyses was error. See
Lisa E. v. Comm’r of Soc. Sec., No. 20-CV-0037, 2021 WL 4472469, at *7
(W.D.N.Y. 2021) (reversing the ALJ’s decision where the court found
“that the ALJ unduly emphasized the absence of abnormal results
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during plaintiff's physical examinations – without a demonstrated
understanding of the nature of fibromyalgia – particularly in finding
that Gallagher-Bartholomew’s and Dr. Bartholomew’s opined
limitations were unsupported by their own treatment notes.”). In short,
ALJ Theurer’s supportability and consistency analyses were flawed. So
substantial evidence does not support ALJ Theurer’s decision.
The natural counter-argument—that medicine addressed
Dominque’s fibromyalgia symptoms, so ALJ Theurer’s reliance on the
objective evidence was proper—is unpersuasive. “The signs and
symptoms of fibromyalgia vary in severity overtime and may even be
absent on some days.” SSR 12-2P, 2012 WL 3104869, at *4 (July 25,
2012) (cleaned up). And while her fibromyalgia symptoms may have
been mild during her consultative examinations (Dr. Lorensen found
four fibromyalgia trigger points during her consultative examination of
Dominique), Dominique’s testimony supports her position that her
fibromyalgia is severe now. See Ian S. v. Comm’r of Soc. Sec., No. 20-
CV-6022-A, 2021 WL 3292203, at *6 (W.D.N.Y. 2021) (“[i]n cases where
fibromyalgia is the alleged disability, a claimant's testimony, regarding
[their] symptoms from the disorder, should be given increased
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importance in the ALJ’s determination of whether the claimant is
disabled.”). Dominique testified that she suffers from pain in her neck,
left shoulder, hips, left knee, fatigue, tiredness, depression, and anxiety.
(T. 51, 54, 55). All of these issues are associated with fibromyalgia. See
Davis v. Berryhill, No. 16-CV-954, 2018 WL 4629126, *4 (W.D.N.Y.
2018) (noting that common symptoms associated with fibromyalgia,
include “body-wide pain and tender points in joints, muscles, tendons,
and other soft tissues,” as well as “fatigue, sleep problems, headaches,
depression, anxiety, and other symptoms”). ALJ Theurer needed to
assess whether the current severity of Dominique’s fibromyalgia affects
her ability to sustain full time employment. Yet he did not do so. As a
result, any argument that medicine controlled Dominique’s
fibromyalgia does not overcome ALJ’s Theurer’s failure to discuss the
impact fibromyalgia has on Dominique.
To be sure, ALJ Theurer acknowledges that Dominique testified
about fibromyalgia’s impact on her life, but he does nothing else with
the testimony. See (T. 16-18). Examining ALJ Theurer’s decision, the
Court can glean that he rejected Dominique’s testimony, in addition to
the objective medical evidence, because of records—from 2021 to early
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2023—that indicate that Dominique went to her mother’s house for
barbeques on two separate occasions, rode a bike around Onondaga lake
to celebrate her 11-year anniversary with her fiancé, takes her children
trick or treating, spends time with friends and family, goes out for
walks, and completes her activities of daily living without effort. (T. 14)
citing (T. 1890, 1900, 1916, 1928, 1962, 1973, 1986, 1991, 2000, 2009).
But those records do not present a full picture. For example, records
after early 2023 no longer indicate that Dominique performed her
activities of daily living without difficulty. See, e.g., (T. 2009, 2015,
2019, 2024, 2031). Beyond that, Dominique testified that her ability to
perform physical activities deteriorated. See (T. 48, 49, 57, 58); see also
Ian S., 2021 WL 3292203, at *6. In other words, ALJ Theurer needed to
use more recent evidence to exemplify Dominique’s inability to work.
The Commissioner’s argument on appeal—substantial evidence
supports ALJ Theurer’s supportability and consistency analyses
because the ALJ discussed objective clinical evidence associated with
fibromyalgia—is unpersuasive. The Commissioner’s argument suffers
from the same defect ALJ Theurer’s decision does: The argument’s
central focus is objective evidence. See (Def. Br. at pgs. 6-10). And this
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Court has already rejected that argument. See Tabitha L. v. Dudek, No.
3:24-CV-476 (AJB/MJK), 2025 WL 1448566, at *7 (N.D.N.Y. May 5,
2025) (cleaned up) (recommending the District Court reverse the ALJ’s
decision because “the ALJ should not have placed excessive reliance on
objective tests and the lack of objective findings). Thus, this Court finds
the Commissioner’s argument unpersuasive.
* * *
The Court finds that substantial evidence does not support ALJ
Theurer’s decision. To sum up, ALJ Theurer relied on only objective
clinical findings when performing the supportability and consistency
analysis on PA Gaskill’s medical source statement. That over reliance
on objective evidence—which misses the insidious nature of
fibromyalgia—is error.
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VII. CONCLUSION
WHEREFORE, based on the findings above, it is
ORDERED, that Dominique’s motion for judgment on the
pleadings (Dkt. 13) be GRANTED; and it is further
ORDERED, that the Commissioner’s motion for judgment on the
pleadings (Dkt. 15) be DENIED; and it is further
ORDERED, that the ALJ’s decision be REVERSED and
REMANDED.
Dated: December 11, 2025
___________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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