UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Linda May,

Claimant

v. Civil No. 06-cv-133-SM

Opinion No. 2007 DNH 011

Jo Anne B. Barnhart, Commissioner,

Social Security Administration,

Respondent

O R D E R

Pursuant to 42 U.S.C. § 405(g), claimant, Linda May, moves

to reverse the Commissioner’s decision denying her application

for Social Security Disability Insurance Benefits under Title II

of the Social Security Act, 42 U.S.C. § 423 (the “Act”). Among

other things, she says the Administrative Law Judge failed to

afford appropriate weight to her treating physician’s opinion

that impairments will cause her to miss more than three days of

work each month. The Commissioner objects and moves for an order

affirming her decision. 

Factual Background

I. Procedural History.

On November 21, 2003, claimant filed an application for

disability insurance benefits under Title II of the Act, alleging

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that she had been unable to work since October 1, 2003. Her

application was denied and she requested a hearing before an

Administrative Law Judge (“ALJ”). 

On August 9, 2005, claimant and her attorney appeared before

an ALJ, who considered the application de novo. On September 23,

2005, the ALJ issued his order, concluding that claimant retained

the ability to perform a range of light work and was, therefore,

capable of performing her past relevant work as an office clerk. 

Accordingly, the ALJ concluded that claimant was not disabled, as

that term is defined in the Act, at any time prior to the date of

the ALJ’s decision. 

Claimant then sought review of the ALJ’s decision by the

Appeals Council. On March 24, 2006, the Appeals Council denied

her request, thereby rendering the ALJ’s decision a final

decision of the Commissioner, subject to judicial review. 

Claimant then brought this suit, asserting that the ALJ’s

decision was not supported by substantial evidence and seeking a

judicial determination that she is disabled within the meaning of

the Act. She has filed a “Motion for Order Reversing Decision of

the Commissioner” (document no. 13). The Commissioner objects

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1 Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938). It is something less than the weight of the evidence,

and the possibility of drawing two inconsistent conclusions from

the evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. Consolo v. Federal

3

and has filed a “Motion for Order Affirming the Decision of the

Commissioner” (document no. 16). Those motions are pending. 

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

part of the court’s record (document no. 17), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate. 

Standard of Review

I. Properly Supported Findings by the ALJ are

Entitled to Deference. 

Pursuant to 42 U.S.C. § 405(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings of the Commissioner are

conclusive if supported by substantial evidence.1 See 42 U.S.C.

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Maritime Comm’n., 383 U.S. 607, 620 (1966).

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§§ 405(g); Irlanda Ortiz v. Secretary of Health & Human Services,

955 F.2d 765, 769 (1st Cir. 1991). Moreover, provided the ALJ’s

findings are supported by substantial evidence, the court must

sustain those findings even when there may also be substantial

evidence supporting the adverse position. See Tsarelka v.

Secretary of Health & Human Services, 842 F.2d 529, 535 (1st Cir.

1988) (“[W]e must uphold the [Commissioner’s] conclusion, even if

the record arguably could justify a different conclusion, so long

as it is supported by substantial evidence.”). See also

Rodriguez v. Secretary of Health & Human Services, 647 F.2d 218,

222-23 (1st Cir. 1981). 

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v. Secretary

of Health & Human Services, 747 F.2d 37, 40 (1st Cir. 1984)

(citing Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It

is “the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence. 

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner], not the courts.” Irlanda Ortiz, 955 F.2d at 769

(citation omitted). Accordingly, the court will give deference

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to the ALJ’s credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192,

195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health &

Human Services, 803 F.2d 24, 26 (1st Cir. 1986)). 

II. The Parties’ Respective Burdens. 

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A). The Act places a heavy initial burden on the

claimant to establish the existence of a disabling impairment. 

See Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987); Santiago v.

Secretary of Health & Human Services, 944 F.2d 1, 5 (1st Cir.

1991). To satisfy that burden, the claimant must prove that her

impairment prevents her from performing her former type of work. 

See Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985) (citing

Goodermote v. Secretary of Health & Human Services, 690 F.2d 5, 7

(1st Cir. 1982)). Nevertheless, the claimant is not required to

establish a doubt-free claim. The initial burden is satisfied by

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the usual civil standard: a “preponderance of the evidence.” See

Paone v. Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982). 

Provided the claimant has shown an inability to perform her

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that she can

perform. See Vazquez v. Secretary of Health & Human Services,

683 F.2d 1, 2 (1st Cir. 1982). If the Commissioner shows the

existence of other jobs that the claimant can perform, then the

overall burden to demonstrate disability remains with the

claimant. See Hernandez v. Weinberger, 493 F.2d 1120, 1123 (1st

Cir. 1974); Benko v. Schweiker, 551 F. Supp. 698, 701 (D.N.H.

1982). 

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);

Goodermote, 690 F.2d at 6. When determining whether a claimant

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is disabled, the ALJ is also required to make the following five

inquiries: 

(1) whether the claimant is engaged in substantial

gainful activity;

(2) whether the claimant has a severe impairment;

(3) whether the impairment meets or equals a listed

impairment;

(4) whether the impairment prevents the claimant from

performing past relevant work; and

(5) whether the impairment prevents the claimant from

doing any other work.

20 C.F.R. § 404.1520. Ultimately, a claimant is disabled only if

her: 

physical or mental impairment or impairments are of

such severity that [s]he is not only unable to do [her]

previous work but cannot, considering [her] age,

education, and work experience, engage in any other

kind of substantial gainful work which exists in the

national economy, regardless of whether such work

exists in the immediate area in which [s]he lives, or

whether a specific job vacancy exists for [her], or

whether [s]he would be hired if [s]he applied for work. 

42 U.S.C. § 423(d)(2)(A). 

With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm her

decision. 

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2 “RFC is what an individual can still do despite his or her

functional limitations. RFC is an administrative assessment of

the extent to which an individual’s medically determinable

impairment(s), including any related symptoms, such as pain, may

cause physical or mental limitations or restrictions that may

affect his or her capacity to do work-related physical and mental

8

Discussion

I. Background - The ALJ’s Findings.

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory fivestep sequential evaluation process described in 20 C.F.R.

§ 404.1520. Accordingly, he first determined that she had not

been engaged in substantial gainful employment since October 1,

2003. Next, he concluded that she suffers from “fibromyalgia and

an adjustment disorder with depressed mood.” Administrative

Record (“Admin. Rec.”) at 22. He also concluded that those

impairments are “severe,” as that term is used in the Act. Id.

at 23. Nevertheless, the ALJ determined that those impairments,

regardless of whether they were considered alone or in

combination, did not meet or medically equal one of the

impairments listed in Part 404, Subpart P, Appendix 1. Id. 

The ALJ next concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

a range of light work.2 He noted, however, that claimant’s RFC

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activities. Ordinarily, RFC is the individual’s maximum

remaining ability to do sustained work activities in an ordinary

work setting on a regular and continuing basis, and the RFC

assessment must include a discussion of the individual’s

abilities on that basis.” Social Security Ruling (“SSR”), 96-8p,

Policy Interpretation Ruling Titles II and XVI: Assessing

Residual Functional Capacity in Initial Claims, 1996 WL 374184 at

*2 (July 2, 1996) (citation omitted). 

9

was limited by the following non-exertional factors: “a mild

limitation in her ability to focus and/or to maintain

concentration due to pain” and a need to work in an environment

where “supervisory criticism is not confrontational.” Admin.

Rec. at. 25. Despite those limitations, however, the ALJ

concluded that claimant was capable of performing her past

relevant work as an office clerk. Id. at 28. In light of those

findings, the ALJ concluded that “claimant has not been under a

‘disability,’ as defined in the Social Security Act, from October

1, 2003 through the date of [his] decision.” Id. at 29. 

II. Fibromyalgia.

It is undisputed that claimant has been diagnosed as

suffering from fibromyalgia. See Admin. Rec. at 22. According

to one basic source, “the term ‘fibromyalgia’ literally means

muscle fiber pain. FM is a chronic disorder that develops

gradually and is long-lasting, although it may be punctuated by

acutely painful episodes.” 6 Attorneys’ Textbook of Medicine,

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para. 25.00 (3d ed. 1999). That source goes on to describe the

condition as follows:

Patients with FM have had feelings of soreness, often

quite marked, all over their bodies for six months or

longer. Fibromyalgia is a type of chronic pain

syndrome affecting the soft tissues, which may, as

cause or effect, involve some sort of psychological

disorder or an abnormal response to stress. Typically

patients describe deep aching, throbbing, or a burning

feeling, and they may feel totally drained of energy. 

Frequently pain is most severe at certain “tender

points” that tend to be the same in most patients. The

picture of FM often includes trouble sleeping deeply,

headaches, chest pains, dizziness, and symptoms of

“irritable bowel.” There tend to be periods of

especially severe pain alternating with times of little

or no discomfort. What FM does not do, despite the

long-standing pain, is cause permanent tissue damage or

deformity. 

Id., at para. 25.01. See also Aimee E. Bierman, Note, The

Medico-Legal Enigma of Fibromyalgia: Social Security Disability

Determinations and Subjective Complaints of Pain, 44 Wayne L.

Rev. 259, 259 (1998) (“Fibromyalgia is the most prevalent chronic

musculoskeletal pain syndrome. It is characterized by

widespread, diffuse muscle pain, an absence of structural or

inflammatory musculoskeletal abnormalities, decreased pain

thresholds, profound fatigue, and sleep disturbances. While it

is not fatal or progressively disabling, rheumatologists consider

it to be profoundly incapacitating in the most severe cases.”)

(footnotes omitted). 

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One of the problems posed in the context of an application

for Social Security disability benefits is that, as demonstrated

in this case, there are no recognized medical tests (i.e.,

objective evidence) that will definitively confirm a diagnosis of

fibromyalgia or establish the degree of disability caused by that

illness. At least one legal commentator, an Administrative Law

Judge with the Social Security Administration, has published an

article discussing this very issue:

Currently, no objective findings or lab test for

fibromyalgia are commonly accepted in the medical

community. Despite the results of several studies, it

seems that the research still has a way to go before

the medical community at large will accept one or more

laboratory or imaging tests as diagnostically

determinative. 

The most widely accepted criteria for the diagnosis of

fibromyalgia are the American College of Rheumatology

(ACR) 1990 Criteria for the Classification of

Fibromyalgia. There are two criteria: a history of

widespread pain, as defined in the criteria, and pain

in 11 of 18 tender point sites when pressed or

“palpated” by a physician. The criteria state that for

a tender point to be considered “positive,” the patient

must say the palpation was painful. 

Importantly, the “tender points” of the ACR criteria

are not objective signs. One of the authors of the

criteria has called the points a “notoriously

unreliable and manipulable exercise.” 

Common sense alone dictates that if a physician touches

a person’s body and the person tells the physician that

it hurts, this is a subjective response by the patient. 

Even a wince or a jerk in response to palpation can be

feigned. 

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Kevin F. Foley, Establishing Medically Determinable Impairments,

35 APR Trial 66, 70 (April, 1999) (footnotes omitted). 

Consequently, this case, like so many others involving

claimants diagnosed with fibromyalgia, turns largely upon an

assessment of the credibility of the claimant’s assertion that

she suffers from disabling pain, as well as a determination of

the weight properly to be ascribed to the opinions of her

treating physicians. 

III. Evidence that Claimant will Often Miss Work.

Challenging the adverse disability determination, claimant

asserts that the ALJ failed to address “uncontroverted evidence

that [claimant] would be expected to miss more than three days

[of work] per month due to her medical condition.” Claimant’s

memorandum (document no. 14) at 4. Claimant is referring to the

Mental Impairment Questionnaire that was completed jointly by

Carin Torp, MALCMHC, and claimant’s primary care physician, Brian

Hauser, M.D. In his thorough written decision, the ALJ discusses

that report on several occasions and, where appropriate, explains

why he afforded less than controlling weight to some of the

opinions expressed in that report.

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The ALJ does not, however, discuss the opinion shared by Ms.

Torp and Dr. Hauser that claimant’s impairments would likely

cause her to be absent from work “more than three times a month.” 

Admin. Rec. at 226. To be sure, the ALJ does discuss Dr.

Hauser’s view that, as of January 12, 2004, claimant “does have

fibromyalgia but that is at this point not worsening and is

certainly not debilitating in my opinion.” Admin. Rec. at 27. 

See also Id. at 195. But, the ALJ does not discuss Dr. Hauser’s

subsequent opinion, rendered approximately four and one-half

months later, that claimant’s impairments would likely cause her

to miss more than three days of work each month. 

If Dr. Hauser’s most recent opinion about the disabling

nature of claimant’s impairments is fully credited, it would

certainly suggest that claimant’s occupational base is severely

eroded. And, if that is the case, a vocational expert might be

necessary to determine if there are any jobs available in the

national workforce that claimant could perform. 

Conclusion

In light of the ALJ’s failure to address the opinion of Ms.

Torp and Dr. Hauser that claimant’s impairments will cause her to

be absent from work more than three days each month, the most

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prudent course is to remand this matter for further proceedings. 

That will allow the ALJ to provide an explanation as to why he

(implicitly) discounted those opinions and, if necessary, obtain

the assistance of a vocational expert. It will also afford the

ALJ and the claimant an opportunity to obtain the functional

capacity evaluation that the ALJ references, see Admin. Rec. at

27, but which was either not performed or was omitted from the

record. 

For the foregoing reasons, claimant’s motion for order

reversing the decision of the Commissioner (document no. 13) is

granted in part and denied in part. To the extent it seeks a

remand of this matter to the ALJ for further proceedings, it is

granted. In all other respects, it is denied. The

Commissioner’s motion for order affirming the decision of the

Commissioner (document no. 16) is denied. 

Pursuant to sentence four of 42 U.S.C. § 405(g), this matter

is hereby remanded to the ALJ for further proceedings consistent

with this order and, if the ALJ sees fit, the taking of

additional evidence and/or testimony. The Clerk of Court shall

enter judgment in accordance with this order and close the case. 

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

January 25, 2007

cc: David L. Broderick, Esq.

David F. Bander, Esq.

Roger D. Turgeon, Esq.

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