the unavailability of clinical tests for fibromyalgia,
an ALJ cannot reject a physician's diagnosis of fibromyalgia on the
grounds that it is not supported by objective medical findings. See Id.
While it is true that no treating physician specifically noted that the
plaintiff had the requisite "11 out of 18 trigger points," the record is
replete with treatment notes indicating that plaintiff's entire body was
tender and painful to the touch. (Tr. 149, 152-154, 156.) Specifically,
Dr. Condemi noted that while the plaintiff's musculoskeletal exam was
positive for total pain, pain was most severe at the "fibrositis trigger
points." (Tr. 152.) A second treating physician, Dr. Nemetz, noted the
plaintiff had multiple tender areas. (Tr. 187-8, 202). Drs. Condemi,
Nemetz, Poduri and Balderman (a consultative physician upon who's opinion
the ALJ chiefly relied) all diagnosed the plaintiff as having
fibromyalgia. Based upon the reports of the plaintiff's treating
physicians, as well as those of Drs. Poduri and Balderman, it seems clear
that several qualified physicians and specialists believed the plaintiff
suffered from fibromyalgia. Further, each physician bolstered their
diagnoses with evidence of widespread body pain. Based upon this
evidence, I simply find no support for the ALJ's determination that the
plaintiff did not suffer from fibromyalgia.
The Treating Physician Rule
It has long been recognized that a treating source's opinion is
entitled to some extra weight in claims for Social Security disability
benefits. The opinion of a treating physician is given controlling weight
if it is well supported by medical findings and not inconsistent with
other substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 78
(2d.Cir. 1999); see also Clark v. Commissioner, 143 F.3d 115, 118 (2d
Cir. 1998) (citing 20 C.F.R. § 404.1527(d)(2)*fn5). In analyzing a
treating physician's report, "the ALJ cannot arbitrarily substitute his
own judgment for competent medical opinion," nor can he "set his own
expertise against that of a physician who submitted an opinion or
testified before him." Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)
citing McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795,
799 (2d Cir. 1983); see also Wagner v. Secretary of Health and Human
Servs., 906 F.2d 856, 862 (2d Cir. 1990) ("a circumstantial critique by
[a] non-physician, however thorough or responsible, must be
overwhelmingly compelling" to justify a denial of benefits).
The ALJ determined that the opinions of the plaintiff's treating
physicians were not well supported by objective medical findings. By
contrast, he found that the consultative assessment by Dr. Stephen
Balderman (Tr. 206-214) and an assessment by the State Disability
Determinations Service (Tr. 227-234) were better supported and more
I find that the ALJ improperly dismissed the many reports of the
plaintiff's treating physicians in favor of analyses that were less
supported by medical evidence in the record. The medical records
submitted by Drs. Nemetz, Poduri and Condemi clearly demonstrate the
long history of pain and clearly articulate their opinions
that such pain supports the diagnoses of fibromyalgia and CPS. These
physicians go on to limit the plaintiff's RFC to a level below that
necessary for sedentary work.*fn6 Dr. Nemetz noted that she "could not
imagine [plaintiff] succeeding in a competitive work situation (Tr.
205), while Dr. Poduri felt she could never return to work. (Tr. 142.)
Dr. Condemi evaluated the plaintiff as having severe limitations in all
functional areas: she could not walk longer than ten minutes without
pain; she could sit for only ten to fifteen minutes at a time; and she
could not climb, balance, stoop, crouch, kneel or crawl.*fn7 (Tr.
Instead of giving controlling weight to these opinions, the ALJ based
his ruling on a consultative exam and a State agency assessment.
Interestingly, the consultative examination by Dr. Balderman indicates a
diagnosis of fibromyalgia. (Tr. 209.) This diagnosis goes on to opine
that the plaintiff had a "mild limitation in pushing and pulling,"
"moderate limitation in standing," "minimal to mild limitation in
sitting," and "moderate limitation in bending." See Id. A physician's use
of the terms "moderate" and "mild", without additional information, does
not permit the ALJ to make the necessary inference that the plaintiff can
perform specific exertional requirements. See Curry v. Apfel, 209 F.3d 117,
123 (2d. Cir. 2000). The State Disability Determinations Service
assessment fares no better. The State consultant gives no objective
medical evidence supporting his/her determination of the plaintiff's
functional capacity. In fact, there is no evidence the consultant even
reviewed treatment notes from the plaintiff's treating physicians.
Clearly, neither of the sources can be considered "substantial evidence"
upon which the ALJ could base his ruling. As such, they do not possess the
weight necessary to overcome the well documented reports and opinions of
the plaintiff's treating physicians. I therefore find that the opinions
by the plaintiff's treating physicians are entitled to controlling
Plaintiff's Subjective Symptoms
The ALJ determined that the overall record contained sufficient
inconsistencies to find that the plaintiff was exaggerating her level of
pain. I find the ALJ's rationale for discrediting the plaintiff's
subjective symptoms to be totally unpersuasive. Clearly, the ALJ should
have placed more value on the testimony given by plaintiff.
When fibromyalgia is alleged, the credibility of a claimant's testimony
regarding her symptoms must take on substantially increased significance
in the ALJ's evaluation of the evidence. See Brunson, 2002 WL 393078 at
*16. Because of the lack of clinical tests to identify this affliction,
the subjective opinions of plaintiff are helpful when determining issues
The ALJ notes that Dr. Condemi indicated the plaintiff was "tolerating"
her pain better as evidence that the plaintiff's allegations of pain were
exaggerated. (Tr. 23.) Plaintiff's counsel correctly points out that
`tolerating pain' denotes endurance of pain rather than abatement of it.
(Tr. 10.) The ALJ also considered the fact that the plaintiff testified
she does nothing all day, but has no evidence of muscle atrophy, as
indication that she is exaggerating the pain. The record makes clear
that, although plaintiff is heavily dependent on her children and others
for help, she is not bedridden and is able to move around when
necessary. I do not see how the absence of muscle atrophy leads
conclusively to a finding that plaintiff has been embellishing her
symptoms. Finally, the ALJ notes that the plaintiff was able to sit
through the administrative hearing without any apparent signs of
discomfort. An "ALJ's observation that [a claimant] sat through the
hearing without apparent pain, being that of a lay person, is entitled to
but limited weight." See Carroll v. Secretary of Health & Human
Servs., 705 F.2d 638, 643 (2d Cir. 1983). Where it is well documented
that the plaintiff has endured this pain for many years, and has as a
result learned to tolerate such pain, I find it of very limited value
that the ALJ observed no apparent signs of distress.
The Commissioner's motion for a remand for further proceedings (Dkt.
#11) is denied, and this case is remanded to the Commissioner solely for
the calculation and payment of benefits.
IT IS SO ORDERED.