Joseph A. v. Kijakazi

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JOSEPH A., 	:
Plaintiff, 	:
:
v. 	: 	C.A. No. 22-293WES
:
KILOLO KIJAKAZI, 	:
Acting Commissioner of Social Security, 	:
Defendant. 	:
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Plaintiff Joseph A. is a “younger individual” who completed high school and last worked
as an automobile mechanic in 2012. On February 13, 2020, he applied for Supplemental
Security Income (“SSI”) pursuant to Title XVI of the Social Security Act (the “Act”). This is the
third time Plaintiff has sought disability benefits. His 2014 application for disability insurance
benefits (“DIB”) was denied by an administrative law judge (“ALJ”) on March 2, 2016. Tr. 65-
76. His 2017 applications for SSI and DIB were denied by a different ALJ on October 12, 2018.
Tr. 85-94. In his current application, Plaintiff claimed disability as of October 13, 2018, based
on allegations of fibromyalgia, migraines, herniated discs in neck, nerve damage, lower back,
hands, shoulder, right knee, sciatic nerve and depression. Tr. 201, 246. At the hearing on the
current application, Plaintiff confirmed that the period in issue in this case began not on the day
of alleged onset, but on the day he applied for benefits, February 13, 2020. Tr. 42. This
application was denied by the Acting Commissioner of Social Security (“Commissioner”) based
on the decision of a third ALJ who found that, during the period in issue, Plaintiff suffered from
severe disc disease impacting his neck and lumbar spine resulting in pain and functional
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limitations, as well as severe depressive disorder, but that he retained the RFC 1 to perform light
work with additional mental limitations. Tr. 10-24.
Plaintiff has moved for reversal of this adverse decision. ECF No. 12. In his motion,
Plaintiff alleges that the ALJ erred in relying on the testifying medical expert, a board-certified
internist with a subspecialty in rheumatology, Dr. Stephen Kaplan,2 to find at Step Two (1) that
Plaintiff did not suffer from the medically determinable impairment of fibromyalgia based on the
criteria set out in SSR 12-2p, 2012 WL 3104869 (July 25, 2012); and (2) that Plaintiff’s
migraines improved with treatment (a series of Botox injections and medication) so that, by the
period in issue, they caused only minimal functional limitations and were non-severe
impairments. ECF No. 12 at 10-14. Plaintiff also alleges that the ALJ erred in failing to credit
Plaintiff’s subjective statements about the pain “all . . . over my body,” Tr. 39; the pain of his
“increasing” migraines, Tr. 41; and the pain and limited ability to use his right hand due to
“dropping and locking up,” Tr. 44. The Commissioner has filed a counter motion to affirm the
ALJ’s decision, arguing that Dr. Kaplan’s opinions regarding fibromyalgia, migraines and hand
limitations are well supported by substantial evidence and there is no contrary evidence in that
no qualified medical professional has opined that Plaintiff suffers from disabling limitations.
ECF No. 15 at 3-16. The Commissioner also contends that the ALJ’s approach to Plaintiff’s
subjective statements is consistent with the requirements of applicable law. Id. at 16-19.
The parties’ motions have been referred to me for preliminary review, findings and
recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
1 RFC refers to “residual functional capacity.” It is “the most you can still do despite your limitations,” taking into
account “[y]our impairment(s), and any related symptoms, such as pain, [that] may cause physical and mental
limitations that affect what you can do in a work setting.” 20 C.F.R. § 416.945(a)(1).
2 Dr. Kaplan’s curriculum vitae is in the record at Tr. 585-97.
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II. 	Standard of Review
The 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. Irlanda
Ortiz v. Sec’y of Health & Hum. Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam);
Rodriguez v. Sec’y of Health & Hum. Servs., 647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel,
71 F. Supp. 2d 28, 30 (D.R.I. 1999), aff’d, 230 F.3d 1347 (1st Cir. 2000) (per curiam). Once the
Court concludes that the decision is supported by substantial evidence and that the
Commissioner correctly applied the law, the ALJ’s decision must be affirmed, even if the Court
would have reached a contrary result as finder of fact. Rodriguez Pagan v. Sec’y of Health &
Hum. Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per curiam). The determination of substantiality is
based upon an evaluation of the record as a whole. Brown, 71 F. Supp. 2d at 30. The Court may
not reinterpret or reweigh the evidence or otherwise substitute its own judgment for that of the
Commissioner. Id. at 30-31 (citing Colon v. Sec’y of Health & Hum. 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 Rodriguez, 647 F.2d at 222).
III. 	Disability Determination
The law 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. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). The impairment must be
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severe, making the claimant unable to do previous work, or any other substantial gainful activity
which exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. §§ 416.905-911.
A. 	The Five-Step Evaluation
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R.
§ 416.920(a). First, if a claimant is working at a substantial gainful activity, the claimant is not
disabled. Id. § 416.920(a)(4)(i). Second, if a claimant does not have any impairment or
combination of impairments that significantly limit physical or mental ability to do basic work
activities, then the claimant does not have a severe impairment and is not disabled. Id. §
416.920(a)(4)(ii). Third, if a claimant’s impairments meet or equal an impairment listed in 20
C.F.R. Part 404, Appendix 1, the claimant is disabled. Id. § 416.920(a)(4)(iii). Fourth, if a
claimant’s impairments do not prevent doing past relevant work, the claimant is not disabled. Id.
§ 416.920(a)(4)(iv). Fifth, if a claimant’s impairments (considering RFC, age, education and
past work) prevent doing other work that exists in the local or national economy, a finding of
disabled is warranted. Id. § 416.920(a)(4)(v). The claimant bears the burden of proof at Steps
One through Four, but the Commissioner bears the burden at Step Five. Sacilowski v. Saul, 959
F.3d 431, 434 (1st Cir. 2020); Wells v. Barnhart, 267 F. Supp. 2d 138, 144 (D. Mass. 2003).
B. 	Step Two Determination
Step Two is a screening device used to eliminate applicants “whose impairments are so
minimal that, as a matter of common sense, they are clearly not disabled from gainful
employment.” McDonald v. Sec’y of Health & Hum. Servs., 795 F.2d 1118, 1122 (1st Cir.
1986). At Step Two, Plaintiff has the burden to show that he had a “medically determinable”
physical or mental impairment(s) that significantly limited his ability to do basic work activity at
the relevant time. Luz R. v. Saul, C.A. No. 19-00307-WES, 2020 WL 1026815, at *6 (D.R.I.
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Mar. 3, 2020), adopted by text order (D.R.I. Mar. 30, 2020). An error at Step Two does not
require remand as long as the sequential analysis continues and limitations caused by symptoms
related to the overlooked impairment are incorporated into the RFC. White v. Colvin, No. 14-
171 S, 2015 WL 5012614, at *8 (D.R.I. Aug. 21, 2015); see Courtemanche v. Astrue, No. CA 10-
427M, 2011 WL 3438858, at *15 (D.R.I. July 14, 2011) (any error at step two is harmless
“absent any specific showing by Plaintiff of any particular functional limitations attributable to
[the impairment] that the ALJ failed to consider in making his RFC finding”), adopted sub nom.
Courtemance v. Astrue, 2011 WL 3421557 (D.R.I. Aug. 4, 2011).
C. 	Claimant’s Subjective Statements
A reviewing court will not disturb a clearly articulated credibility finding based on
substantial supporting evidence in the record. See Frustaglia v. Sec’y of Health & Hum. Servs.,
829 F.2d 192, 195 (1st Cir. 1987) (per curiam). Guidance in evaluating the claimant’s statements
regarding the intensity, persistence and limiting effects of subjective symptoms, including pain,
is provided by SSR 16-3p, 2017 WL 5180304, at *2-3 (Oct. 25, 2017), which directs the ALJ to
consider the entire case record, including the objective medical evidence, the individual’s
statements, statements and other information provided by medical sources and other persons, and
any other relevant evidence, as well as whether the subjective statements are consistent with the
medical signs and laboratory findings. Id. at *2-5. In this Circuit, the SSR 16-3p requirements
are also reflected in Avery v. Sec’y of Health & Hum. Servs., 797 F.2d 19, 28-29 (1st Cir. 1986),
which requires examination of considerations capable of substantiating subjective complaints of
pain including: (1) daily activities; (2) the location, duration, frequency, and intensity of the pain;
(3) precipitating and aggravating factors; (4) the type, dosage, effectiveness and side effects of
any medication taken to alleviate the pain or other symptoms; (5) treatment, other than
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medication, received for relief of pain; (6) any other measures used to relieve pain or other
symptoms; and (7) any other factors relating to the claimant’s functional limitations and
restrictions attributable to pain. Cookson v. Colvin, 111 F. Supp. 3d 142, 154 (D.R.I. 2015). As
the First Circuit emphasized, in the absence of direct evidence to rebut a claimant’s testimony
about subjective symptoms, such statements should be taken as true. Sacilowski, 959 F.3d at
441; Tegan S. v. Saul, 546 F. Supp. 3d 162, 169 (D.R.I. 2021). That is, if proof of disability is
based on subjective evidence and a credibility determination is critical to the decision, the
subjective statements must either be explicitly discredited or the implication of lack of credibility
must be so clear as to amount to a specific credibility finding. Foote v. Chater, 67 F.3d 1553,
1561-62 (11th Cir. 1995); Vanessa C. v. Kijakazi, C.A. No. 20-363MSM, 2021 WL 3930347, at
*4 (D.R.I. Sept. 2, 2021), adopted, 2021 WL 8342850 (D.R.I. Nov. 2, 2021).
Although an individual’s subjective statements as to pain are not conclusive of disability,
42 U.S.C. §§ 423(d)(5)(A); 1382c(a)(3)(H)(i), an ALJ’s “extreme insistence on objective medical
findings to corroborate subjective testimony of limitation of function because of pain” is error.
Amanda B. v. Kijakazi, C.A. No. 21-308MSM, 2022 WL 3025752, at *3 (D.R.I. Aug. 1, 2022)
(internal quotation marks omitted), adopted, 2022 WL 18910865 (D.R.I. Nov. 7, 2022).
Nevertheless, a reviewing court will not disturb a clearly articulated finding discounting such
statements as long as it is based on substantial supporting evidence in the record. See Frustaglia,
829 F.2d at 195.
D. 	Fibromyalgia
To provide guidance to adjudicators facing disability claims based on fibromyalgia, the
Commissioner issued SSR 12-2p. Emphasizing that subjective pain and fatigue can be disabling,
SSR 12-2p sets out fibromyalgia’s diagnostic criteria. Patrick F. v. Kijakazi, C.A. No. 22-
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212MSM, 2023 WL 2770389, at *3 (D.R.I. Apr. 4, 2023), adopted, 2023 WL 6004594 (D.R.I.
July 10, 2023). Specifically, SSR 12-2p provides that, “[a]s in all claims for disability benefits,
we need objective medical evidence to establish the presence of an MDI [medically determinable
impairment]” based on a diagnosis provided by a licensed physician who performed a physical
examination. 2012 WL 3104869, at *3. The diagnosis must be based on either (1) three criteria
based on those listed in the 1990 ACR Criteria for the Classification of Fibromyalgia; or (2) three
criteria based on those listed in the 2010 ACR Preliminary Diagnostic Criteria. 2012 WL
3104869, at *2. Once the claimant sustains his burden of establishing that fibromyalgia is an
MDI that could reasonably be expected to produce the pain or other symptoms alleged, the
analysis proceeds to consider the intensity and persistence of pain and other symptoms to
determine their impact on the claimant’s ability to function. Id. at *5.
For fibromyalgia as for any other MDI, “[a] claimant’s testimony about symptoms is
insufficient to establish a severe impairment at Step 2 in the absence of medical evidence.”
Teves v. Astrue, Civil No. 08-246-B-W, 2009 WL 961231, at *4 (D. Me. April 7, 2009); see
Roberts v. Colvin, C.A. No. 14-289-M, 2015 WL 1040672, at *9-10 (D.R.I. Mar. 10, 2015)
(“ALJ may properly base her Step 2 finding on the absence of medical evidence”; no Step Two
error if record contains no diagnosis of fibromyalgia by acceptable medical source). If a
claimant does not meet his burden of demonstrating that he has a “medically determinable
physical or mental impairment(s) that significantly limited his ability to do basic work activity at
the relevant time,” the ALJ’s Step Two determination that fibromyalgia is not an MDI must be
sustained. Luz R., 2020 WL 1026815. However, if the diagnosis of fibromyalgia by a qualified
medical professional was made before the period in issue and sustained as reflected in treating
notations and opinions of record during the period in issue, it is error for the ALJ not to develop
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the record to determine whether the requirements of SSR 12-2p continue to be satisfied. Tegan
S., 546 F. Supp. 3d at 166 (where rheumatologist who had previously diagnosed fibromyalgia
continued to treat fibromyalgia and opined that it was impairment causing function-limiting pain
during period in issue, error for ALJ to rely on lack of diagnosis during period in issue as basis
for finding of no MDI at Step Two).
If the ALJ errs in rejecting fibromyalgia as an MDI at Step Two, but the analysis
continues with appropriate regard for the pain and other symptoms alleged by the claimant, the
error is harmless and the ALJ’s determination should be affirmed. Luz R., 2020 WL 1026815, at
*8-9 (ALJ’s denial of benefits affirmed where claimant failed to demonstrate that RFC did not
appropriately account for her symptoms, whether or not attributable to fibromyalgia); see
Ferrazzano-Mazza v. Colvin, CA No. 14-239 ML, 2015 WL 4879002, at *15-18 (D.R.I. Aug. 14,
2015) (any error tainting the ALJ’s Step Two determination regarding fibromyalgia is harmless
because ALJ’s finding that pain did not cause disabling limitations is well supported by
substantial evidence of record).
III. 	Facts and Analysis
A. 	Fibromyalgia and Related Symptoms Including Pain
At the hearing in this case, Plaintiff testified that his most severe and limiting problem is
“fibromyalgia” causing “nerve pain all . . . over my body.” Tr. 39-40 (“It’s everywhere”); see Tr.
42-43 (describing limitations caused by fibromyalgia); Tr. 255 (“[P]ain is everywhere with every
move”). Yet, despite carrying the burden at Step Two to establish the diagnosis of fibromyalgia,
Plaintiff points to no records reflecting such a diagnosis during the relevant period; despite
carrying the burden at the RFC phase to establish that he suffered from disabling functional
limitations, Plaintiff points to no medical opinion from any source that his symptoms (whether
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caused by fibromyalgia or any other impairment) have resulted in disabling limitations. Further,
Plaintiff declined to cross examine Dr. Kaplan, the testifying medical expert on whom the ALJ
principally relied for his Step Two findings regarding fibromyalgia and (along with other
evidence) for his RFC analysis of the limiting effects of pain. Tr. 55. Instead, Plaintiff asks the
Court to substitute its own interpretation of certain medical records to find that Plaintiff’s
symptom claims – pain, reduced memory, trouble with task completion, fatigue, anger and sleep
issues (including his claim that oxycodone and repeated injections were inadequate to treat pain)
– are close enough to fibromyalgia’s diagnostic criteria and sufficiently reflective of severe
symptoms as to require remand.3 This argument fails because these records (and the symptoms
they reflect) were appropriately considered by the ALJ, who relied on the entire record, the
interpretations of the expert state agency consultants, the testifying medical expert and Plaintiff’s
subjective statements (to the extent not contradicted by other evidence), to find that Plaintiff does
have significant limitations but that they are not disabling.
Factually, there is no question that the record before the Court reflects that fibromyalgia
had been diagnosed in the past, well prior to the period now in issue and prior to the period
covered by the record assembled for the current case. See Tr. 72-74 (ALJ who rejected
Plaintiff’s disability claim for the period March 1, 2014, through March 2, 2016, notes diagnosis
of fibromyalgia made by Dr. Khin Sien Yin in December 2015); Tr. 87, 91, 94 (based on
diagnoses of fibromyalgia made between July 2015 and August 2018, ALJ finds it to be severe at
Step Two but not disabling for period from March 3, 2016 through October 12, 2018). However,
3 Plaintiff’s symptom-based argument rests largely on a form he filled in, seemingly in 2017. Tr. 300-01. This
argument appears to be asking the Court inappropriately to reinterpret or reweigh this evidence by comparing the list
of symptoms Plaintiff alleged in 2017 with the criteria in SSR 12-2p to find that remand is required because this list
amounts to some evidence that the diagnostic criteria for fibromyalgia are met. This argument fails for so many
reasons that I decline to articulate all of them, except to note that Plaintiff’s list applies to 2017 (when he apparently
was diagnosed with fibromyalgia), not to the period in issue.
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the current record not only contains no diagnosis of fibromyalgia by any physician or any other
medical source, but also has nothing establishing or even permitting the inference that the
previously diagnosed fibromyalgia has persisted into the period in issue. Rather, the records
repeatedly note only that Plaintiff’s “past medical history” included a diagnosis of fibromyalgia.
E.g., Tr. 391 “Past Medical History Fibromyalgia”); Tr. 326 (“Past Medical History . . . Chronic
pain syndrome, Dx with fibromyalgia by physiatry . . . followed by Dr. Yen”); Tr. 437 (“Past
Medical Hx . . . Fibromyalgia”).4 That these records lack both a medical diagnosis of
fibromyalgia and clinical observations that would establish such a diagnosis is confirmed by the
testimony of Dr. Kaplan based on his review of all of the records from the original alleged onset
date forward:
I don’t see any evaluation here that we could call fibromyalgia in terms of the
criteria. There are now three sets of criteria. I don’t see any analysis in the record
suggesting he meets any of those criteria.
Tr. 53-54.
By contrast with the lack of evidence of fibromyalgia during the period in issue, Plaintiff
is right that this medical record does reflect his complaints of pain in the neck, back, shoulders
and occasionally knees, for which treating sources prescribed medication and injections. E.g.,
Tr. 348, 432-34. However, the reviewing experts at the initial and reconsideration phases
considered Plaintiff’s statements regarding pain, as well as the medical records reflecting
4 In one arguable exception, at a medication management appointment on August 14, 2020, a nurse noted Plaintiff’s
claim of fibromyalgia and did not label it as a “past” diagnosis. Tr. 616 (“Patient presenting for follow-up of pain in
his neck, shoulders, back and diffuse pain related to fibromyalgia.”). However, this nurse did not purport to
diagnose fibromyalgia; further, her physical examination yielded observations of “no acute distress,” with only
moderate tenderness in the neck and mild tenderness in the lumbar spine on palpation, as well as bilateral
paravertebral tenderness. Id. Otherwise, she found all to be within normal limits. Id. Thus, this record does not
support a finding that Plaintiff was diagnosed with fibromyalgia or displayed the diagnostic criteria of fibromyalgia
during the period in issue; it also contradicts Plaintiff’s subjective statements about debilitating pain all over his
body.
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observations of pain and limitations on movement in the shoulders and cervical/lumbar spine,
though not to the extent that Plaintiff alleged. Tr. 102-06, 112-15. Based on this evidence, these
physicians both found a severe “disorder of back” and “other arthropathies,” but that Plaintiff
retained the RFC to perform light work with additional limitations. Tr. 105, 114. Consistent
with these prior administrative findings, Dr. Kaplan’s expert testimony included his opinion
regarding Plaintiff’s RFC restrictions caused by these symptoms, including pain. Tr. 52. Dr.
Kaplan confirmed that the record does reflect “mainly axial skeletal pain,” primarily in the spine
with tenderness and “some decreased range of motion,” as well as decreased range of motion in
the upper right extremity, but a normal gait, resulting in light exertional limits. Tr 53-55.
Plaintiff’s attorney was offered an opportunity to question Dr. Kaplan but declined to do so. 5 Tr.
55.
The ALJ’s decision relies on the non-examining experts’ prior administrative findings,
Dr. Kaplan’s opinion, the medical record, the evidence of Plaintiff’s “significant physical or
other activities,” Tr. 18, and Plaintiff’s subjective statements, discounted by his finding that some
of the statements clash with other evidence. The decision concludes that Plaintiff failed to
establish fibromyalgia as an MDI but did establish that he suffers from pain that limited his
ability to function, albeit not so significantly as to preclude work. Tr. 12-22. Specifically, at
Step Two, the ALJ found that Dr. Kaplan “testified that the record did not contain any of the
5 At the end of the hearing, Plaintiff (speaking for himself, not through counsel) expressed disagreement with Dr.
Kaplan’s opinion but only because, as he said, he had been diagnosed with fibromyalgia in the past by “Dr. Yen.”
Tr. 60. In response, the ALJ noted:
[T]here are complaints of pain, but there is no, under the criteria for a diagnosis of fibromyalgia,
and there are two or three criteria that have to be met. They are not in the record . . . what he’s
saying is, based on the record, he cannot say that that’s established.
Id. Plaintiff’s attorney made no comment and presented no argument.
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diagnostic criteria/clinical findings/observations necessary to establish the diagnosis of
fibromyalgia,” so that “the claimant’s alleged fibromyalgia is a non-medically determinable
impairment.” Tr. 13. At the RFC phase, the ALJ adopted Dr. Kaplan’s opinion based on axial
skeletal pain and limitation on movement, finding that Plaintiff is limited to light exertional
work. Tr. 19.
In challenging these findings, Plaintiff principally critiques the ALJ’s reliance on Dr.
Kaplan. He also somewhat vaguely contends 6 that the ALJ erred in discounting Plaintiff’s
subjective statements regarding the pain and other symptoms that Plaintiff attributed to
fibromyalgia. None of these reasons for remand withstands scrutiny.
In attacking Dr. Kaplan, Plaintiff first contends that Dr. Kaplan misapplied SSR 12-2p
because he referenced “three sets of criteria.” While Plaintiff is right that SSR 12-2p does
broadly rely on two (not three) alternative sets of criteria for the second step in the analysis, he
neglects to mention that it also specifies that the diagnosis is established by a three-step criteria
inquiry. SSR 12-2p, 2012 WL 3104869, at *6. The record further establishes that Dr. Kaplan is
a board-certified internist with a subspecialty in rheumatology. Tr. 587. If Plaintiff wished to
clarify what Dr. Kaplan, an experienced specialist, meant by “three sets of criteria,” the time to
do that was at the hearing, yet Plaintiff declined to ask any questions. Tr. 55. Nor has Plaintiff
pointed to anything in the record permitting the inference that what one might speculate reflects
a misunderstanding of the criteria somehow tainted Dr. Kaplan’s conclusion that a diagnosis of
fibromyalgia was not established.
6 Based on the lack of development of this argument, I alternately find that it is waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“Judges are not expected to be mindreaders . . . a litigant has an obligation
to spell out its arguments squarely and distinctly, or else forever hold its peace.”) (internal quotation marks omitted);
Melissa G. v. Kijakazi, C.A. No. 20-00367-WES, 2021 WL 3124228, at *8 (D.R.I. July 23, 2021) (arguments not
sufficiently developed or supported in the opening brief are “clearly throw-in arguments left for the Court to sort out
on its own and, as such, are deemed waived”), adopted by text order (D.R.I. Aug. 18, 2021).
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Second, Plaintiff argues that Dr. Kaplan’s statement that “I don’t see any evaluation here
that we could call fibromyalgia in terms of the criteria” compels the conclusion that Dr. Kaplan
improperly limited his inquiry to a search for a record created by a doctor who expressly
performed the SSR 12-2p analysis. I disagree. To the ALJ (and to me, based on my review of
the entirety of the record presented to this Court), this testimony is clear. That is, Dr. Kaplan
scoured the record for anything establishing either that fibromyalgia was diagnosed by a
qualified medical professional or that the record contains competent clinical evidence
establishing the SSR 12-2p criteria sufficient to support a diagnosis of fibromyalgia.
Importantly, Plaintiff points to nothing in the record for the period in issue suggesting that Dr.
Kaplan got it wrong. Nor did Plaintiff avail himself of the opportunity to ask Dr. Kaplan during
the hearing if he had improperly limited his review. Nor has Plaintiff sustained his burden of
establishing a diagnosis of fibromyalgia or clinical observations sufficient to establish the
diagnosis by an acceptable medical source consistent with SSR 12-2p and applicable to the
period in issue.
The final problem with Plaintiff’s fibromyalgia argument is the reality that ALJ’s analysis
continued, focused on Plaintiff’s allegations of pain and their impact on his ability to function.
Ferrazzano-Mazza, 2015 WL 4879002, at *16; see White, 2015 WL 5012614, at *8 (“claimant
cannot demonstrate harmful error at Step Two unless the failure to make severity findings ends
the analysis”). Thus, at the RFC phase, the ALJ’s analysis appropriately examined Plaintiff’s
subjective claims and the evidence related to the period in issue. In addition to reliance on the
state agency experts and Dr. Kaplan, Tr. 19-21, he complied with SSR 16-3p by contrasting
Plaintiff’s subjective claims of severely limiting pain all over his body with his reports to treating
providers of pain limited to the neck, back, shoulders and sometimes knee; with his stable pain
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management treatment; with the largely normal findings on physical examination (mostly mild
pain in the shoulders and sometimes knee, neck/spine muscle tightness and moderate tenderness
and related range of motion restrictions); and with Plaintiff’s reported activities, including
gardening, daily walks (albeit limited as Plaintiff claimed), house sitting and homeschooling his
children during the pandemic. Tr. 16-19; see Sacilowski, 959 F.3d at 441 (ALJ must consider but
need not rely on subjective statements that are explicitly discredited); Patrick F., 2023 WL
2770389, at *5 (affirming ALJ’s analysis of subjective statements of pain caused by fibromyalgia
based on compliance with SSR 16-3p’s requirement to consider inconsistent statements to
treating sources, course of treatment and daily activities). With a clear explanation
(appropriately footed in substantial evidence) for his approach to Plaintiff’s subjective
statements, the ALJ adopted a light exertional RFC.
I find no error at either Step Two or the RFC phase. Therefore, I recommend that the
Court reject Plaintiff’s attack on the ALJ’s approach to fibromyalgia and Plaintiff’s related
symptoms, including his subjective claims of pain.
B. 	Migraines
Prior to the period in issue, in July 2019, Plaintiff began treatment with a neurologist and
other providers at NeuroHealth for serious migraine headaches. Tr. 319. At the first appointment
of record, the provider noted his complaint of daily headaches that can last for hours, cause
significant symptoms (such as nausea and vomiting), and require him to lie down in a darkened
room; a neurological examination was performed, Tr. 319-21, and Botox injections were
initiated. Tr. 317. Within six weeks of the first Botox injection, Plaintiff reported that he was
going many days without a headache and that the severity has reduced; another neurological
examination was conducted. Tr. 314. By the end of 2019, the neurologist noted that migraines
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had reduced in frequency to “1 migraine a week that is not as severe” since Botox injections
began. Tr. 312.
After the commencement of the period in issue, Plaintiff had appointments with the
neurologist in March and April 2020. Tr. 403-07. In March, Plaintiff received the third Botox
injection; the treating note reflects that he is “doing well” and his report that he “has 1-2
migraines every 1-2 weeks.” Tr. 406. By April, following the third injection, the neurologist
noted:
The patient . . . has continued with Botox every three months. He reports
headaches are “great.” He notes occasional mild headaches that do not require
treatment. Rarely has a severe headache that will resolve completely with
sumatriptan 100 mg. He reports he has not had any days where he cannot get out
of bed since starting the Botox.
Tr. 403. After that, regular appointments continued. In June 2020, Plaintiff reported to treating
providers that his migraines had been “stable since last set of Botox.” Tr. 401. In October 2020,
Plaintiff reported that “migraines have been stable since last set of Botox ans (sic) denies any
changes.” Tr. 598. The record contains no other reference to migraines.
The State agency reviewing physicians considered these records except for the last one in
October 2020; they agreed that this medical record establishes migraine as a non-severe
impairment. Tr. 105 (“Migraine is both well controlled both in frequency and severity w botox
injections” and neurological findings are normal); Tr. 114 (same). Based on his review of the
entire record, Dr. Kaplan concurred. He testified that, although neurological observations on
examination were consistently negative, Tr. 53, during 2019, prior to the period in issue,
migraines had been fairly frequent with “a lot of effects,” including nausea and vomiting. Id.
However, once Botox injections were started, Dr. Kaplan opined they were effective in reducing
headache frequency to one a week by December, with less severity. Tr. 53-54.
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For the period in issue, Dr. Kaplan testified by reference to Tr. 403, a record from April
2020. He stated that “[Plaintiff] apparently was down to one every three months” and that “his
headaches were rarely severe at that time.” Tr. 54. The latter statement accurately reflects the
neurologist’s notation, but the former does not. That is, Tr. 403 states that Plaintiff “continued
with Botox every three months,” not that the headaches had dropped to one every three months.
Id. What the neurologist actually recorded was Plaintiff’s report that headaches are “great,”
occurring once or twice per week, but so mild as to require no treatment, with only a rare7
headache becoming severe; per the treating note, these severe headaches were not only “[r]are . .
. since starting Botox” but also “resolved completely with sumatriptan.” Id.
The ALJ relied on these records, the reviewing expert findings, and the opinions of Dr.
Kaplan to find that migraines were established as an impairment, but that they were non-severe
because they did not “significantly limit [Plaintiff’s] physical . . . ability to do basic work
activities for at least a continuous twelve-month period.” Tr. 13. However, the ALJ did not rely
on Dr. Kaplan’s mistaken statement about a frequency reduction to one every three months.
Instead, the ALJ appropriately focused on the actual record, as well as on Dr. Kaplan’s testimony
that neurologic examinations were unremarkable, and that Plaintiff reported significant
improvement in frequency and severity. Tr. 12-19. Importantly, in compliance with Sacilowski,
959 F.3d at 441, the ALJ specifically noted that Plaintiff’s subjective statements about headache
pain on application (e.g., Tr. 41 (Plaintiff testifies migraines have “been increasing”)) were
directly rebutted by the neurologist’s report of his statements about the headaches during the
7 Plaintiff argues that remand is required to determine whether these “rare” severe headaches (which Plaintiff
reported would resolve “completely” with medication) are so function-limiting as to cause disabling absenteeism.
Tr. 403. I disagree. Plaintiff’s argument fails to consider that the same neurologist also noted Plaintiff’s report that
headaches are “great,” as well as that, since starting Botox, there have been no days where he had to stay in bed. Id.
Plaintiff also omits the subsequent treating notes, which confirm that Plaintiff’s headaches were sustained at this
reduced level of frequency and severity. These records provide ample support for the ALJ’s finding.
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period in issue (e.g., Tr. 403 (Plaintiff “reports headaches are ‘great’”). Tr. 19. No source has
opined that, during the period in issue, Plaintiff’s migraines caused function-limiting symptoms,
including symptoms that would result in absenteeism.8
Plaintiff argues that the ALJ’s Step Two finding that migraines are non-severe is error by
focusing on Dr. Kaplan’s testimony. He contends that remand is required because Dr. Kaplan’s
summary of the neurologist’s treating record varies from its actual content based on Dr. Kaplan’s
mistaken statement about “every three months,” as well as that Dr. Kaplan misinterpreted
negative examinations that Plaintiff contends are belied by the actual course of treatment. Apart
from Dr. Kaplan’s mistaken reference to “every three months,” this argument fails because, at
both Step Two and for the RFC phase, the ALJ appropriately considered all of the pertinent
medical records, as interpreted not only by Dr. Kaplan, but also by the state agency experts, to
find improvement with Botox to the point where Plaintiff reported that headaches were “great,”
while severe headaches (with the associated symptoms of nausea and vomiting among others)
had become rare and resolved completely with prescribed medication.9 Tr. 12-13, 16, 18-19. As
to Dr. Kaplan’s mistake, it does not give rise to an ALJ error, because the ALJ did not adopt it.
8 Plaintiff separately argues that Sacilowski mandates reversal because it holds that migraines can be disabling due
absenteeism. 959 F.3d at 435. This argument fails because, unlike in Sacilowski, where the record for the relevant
period included the opinion of a treating physician that the claimant would miss work due to migraines and medical
records “documenting multiple migraine headaches per week,” id., the relevant record in this case contains no such
treating source opinion nor are there medical records for the period in issue documenting multiple severe headaches
per week. To the contrary, the relevant treating record reflects Plaintiff’s report following the third Botox injection
that he was getting only one to two mild headaches per week that did not require treatment, as well as that severe
headaches were rare and would resolve completely with sumatriptan. Tr. 403. Sacilowski does not establish error in
this case.
9 Plaintiff points out that the ALJ’s Step Two determination that migraines were not a severe MDI caused the ALJ to
skip a Step Three Listing-equivalence analysis pursuant to SSR 19-4p, 2019 WL 4169635, at *7 (Aug. 26, 2019).
He contends that this omission undermines the harmlessness otherwise resulting from the ALJ’s RFC analysis,
which took Plaintiff’s allegations of pain into consideration. This argument is unavailing not only because there is
no error in the ALJ’s Step Two treatment of migraines, but also because there is no evidence that Plaintiff’s
headaches exhibited signs and limitations equivalent to those in the relevant listing. See Monteiro v. Saul, Civil
Action No. 1:20-CV-12189-RWZ, 2022 WL 867988, at *5-6 (D. Mass. Mar. 23, 2022).
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Rather, he relied on Dr. Kaplan’s accurate conclusions, which are confirmed by the treating
record, including that Plaintiff’s statements to his treating sources clash materially with his
testimonial descriptions of the severity and frequency of headaches.10
Finding no error in the ALJ’s approach to Plaintiff’s headaches and related symptoms, I
do not recommend remand.
C. 	Hands
Plaintiff testified during the hearing that he experiences “numbness, loss of feeling,
spasms and locking” in his hands, needing “somebody [to] put a weight on it to keep it open for a
while so I can relieve the pain.” Tr. 44, 50; see also Tr. 254-55 (in function report, Plaintiff
claims hands give out and cannot hold). Plaintiff does not argue that carpal tunnel syndrome
(which had been diagnosed in the past) should have been found to be a severe MDI at Step Two;
rather, he contends that remand is required for further consideration of these subjective
statements about his hands.
Except for Plaintiff’s subjective statements, all record references to hand issues are prior
to the period in issue. For example, the treating record reflects carpal tunnel syndrome treated in
2018 by injections despite findings on examination of normal strength and full active range of
motion in both hands. Tr. 625-36, 666, 688. Closer (but still prior) to the period in issue are two
instances of hand complaints, albeit in mental health records. Tr. 336 (in January 2020, Plaintiff
tells mental health nurse “hands cont. to lock up and are very painful”); Tr. 374 (in July 2019,
Plaintiff tells mental health nurse “hands are swollen and can’t close”). Importantly, these
complaints to mental health professions resulted in no follow up or treatment. For the period in
10 If the Court were to assume that this amounts to an ALJ error, such an error does not require remand because,
even without Dr. Kaplan’s opinion, the ALJ’s determination that migraines were not severe at Step Two is amply
supported by the neurologist’s treating records, which so dramatically contradict Plaintiff’s contention that
migraines were “increasing.” Tr. 41; see Tr. 18-19, 403.
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issue, the record is devoid of any evidence of any complaint or report by Plaintiff to any treating
source of hand pain or of functional limitations affecting either hand. Consistent with this
complete absence of evidence, Plaintiff testified that he could not remember the name of the
“neuro place” that had done hand injections in the past and conceded that he had had no
treatment recently. Tr. 44. The record contains no opinion from any source that Plaintiff had any
hand limitations. Aware of Plaintiff’s claim of hand-related limitations, both the non-examining
experts and Dr. Kaplan reviewed this record for any evidence; all three assessed no manipulative
limitations for the period in issue. Tr. 54-55, 105, 114.
At both Step Two and the RFC phase, the ALJ considered Plaintiff’s testimony regarding
hand pain, contrasted it with the “insufficient” treatment evidence, and relied on the experts’
findings and opinion to find no manipulative limitations. Tr. 12-13, 16-19. Mindful that at Step
Two and for the RFC an ALJ may rely on the absence of record evidence during the period in
issue because these are both matters on which Plaintiff carries the burden, see Roberts, 2015 WL
1040672, at *9-10; Courtemanche, 2011 WL 3438858, at *15, I find that the ALJ’s decision to
discount Plaintiff’s extravagant claims on application of debilitating hand pain, numbness and
locking is well grounded in substantial evidence and consistent with applicable law. Finding no
error, I do not recommend remand.
IV. 	Conclusion
Based on the foregoing, I recommend that Plaintiff’s Motion to Reverse the Decision of
the Commissioner (ECF No. 12) be DENIED and the Commissioner’s Motion for an Order
Affirming her Decision (ECF No. 15) be GRANTED. Any objection to this report and
recommendation must be specific and must be served and filed with the Clerk of the Court
within fourteen (14) days of its receipt. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure
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to file specific objections in a timely manner constitutes waiver of the right to review by the
district judge and the right to appeal the Court’s decision. See United States v. Lugo Guerrero,
524 F.3d 5, 14 (1st Cir. 2008); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st
Cir. 1980).
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
October 25, 2023
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