Opinion
Civil Action 2:23-cv-03259-DCC-MGB
05-29-2024
DEONN T.,[1]Plaintiff, v. MARTIN O'MALLEY,[2]Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Mary Gordon Baker Judge
Plaintiff Deonn T. (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
This case comes before the Court following a continuing disability review by the Commissioner. In an August 28, 2007 decision, Plaintiff was found disabled as of July 26, 2004 due to her diabetes, anemia, hypothyroidism, and asthma. (R. at 74-80.) She was 29 years old on her onset disability date. (R. at 38.) On December 5, 2019, the Agency conducted a review of Plaintiff's medical impairments pursuant to 20 C.F.R. § 404.1594 to determine whether she was entitled to continuing disability benefits and found Plaintiff was no longer disabled since October 1, 2019. (R. at 92.) This determination was upheld upon reconsideration. (R. at 29.) Plaintiff then requested a hearing before the assigned Administrative Law Judge (“ALJ”), which occurred on September 21, 2022. (R. at 22.) The ALJ issued a decision on January 18, 2023, confirming that Plaintiff was no longer disabled as of October 1, 2019. (R. at 29-40.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The most recent favorable medical decision finding that the claimant was disabled is the decision dated August 28, 2007. This is known as the “comparison point decision” or CPD.
(2) At the time of the CPD, the claimant had the following medically determinable impairments: diabetes, anemia, hypothyroidism, and asthma. These impairments were found to result in the residual functional capacity to perform less than sedentary work, with additional limitations, including unscheduled breaks and absence from work more than four days per month. Further, the claimant's symptoms were frequently severe enough to interfere with attention and concentration to perform even simple work tasks.
(3) The medical evidence establishes that, since October 1, 2019, the claimant has had the following medically determinable severe impairments: type I diabetes mellitus, with neuropathy, and rheumatoid arthritis/fibromyalgia. These are the claimant's current severe impairments.
(1) Since October 1, 2019, the claimant has not had an impairment or combination of impairments which meets or medically equals the severity of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.925 and 416.926).
(2) Medical improvement occurred on October 1, 2019 (20 C.F.R. 416.994(b)(1)(i)).
(3) After careful consideration of the entire record, I find that, beginning on October 1, 2019, the claimant has had the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except never climb ladders; occasionally climb stairs, balance, kneel, stoop, crouch, and crawl; frequently handle/finger/feel; and no exposure to unprotected heights or dangerous moving machinery.
(4) The claimant's medical improvement is related to the ability to work because it has resulted in an increase in the claimant's residual functional capacity (20 C.F.R. 416.994(b)(2)(iv)(B)).
(5) The claimant has no past relevant work (20 C.F.R. 416.965).
(6) On October 1, 2019, the claimant was a younger individual age 18-49 (20 C.F.R. 416.963).
(7) The claimant has at least a high school education (20 CFR 416.964).
(8) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. 416.968).
(9) Since October 1, 2019, considering the claimant's age, education, work experience, and residual functional capacity based on the current impairments, the claimant has been able to perform a significant number of jobs in the national economy (20 CFR 416.960(c) and 416.966).
(10) The claimant's disability ended on October 1, 2019, and the claimant has not become disabled again since that date (20 CFR 416.994(b)(5)(vii)).(R. at 29-39.)
APPLICABLE LAW
A. Relevant Statutory Law
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act as the inability “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 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).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to her past relevant work, the burden shifts to the Commissioner to show that the claimant-considering her age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
If a claimant is found to be disabled, the Act then requires periodic review to determine whether continuing benefits are warranted. 20 C.F.R. § 404.1594(a). The Commissioner may terminate a claimant's benefits if substantial evidence demonstrates that the physical or mental impairment for which such benefits were initially provided has ceased, does not exist, or is no longer disabling. 42 U.S.C. § 423(f). While this determination depends on a number of factors, the key issue is whether the claimant has realized a level of medical improvement that now enables him or her to work. The Act defines “medical improvement” as “any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled.” 20 C.F.R. § 404.1594(b)(1).
To make this determination, the Commissioner employs a seven-step sequential evaluation process:
1) Do the claimant's impairments meet or medically equal the severity of any listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App'x 1?
2) If not, has there been any medical improvement in the severity of the claimant's impairments?
3) If medical improvement has occurred, does such improvement relate to the claimant's ability to work?
4) If no medical improvement has occurred, does an exception apply?
5) If medical improvement relates to the claimant's ability to work, do the claimant's current impairments, singly or in combination, qualify as severe?
6) If severe impairments exist, does the claimant's residual functional capacity (“RFC”) permit the performance of past relevant work?
7) If not, does the claimant have the RFC to perform other work existing in significant numbers in the national economy?20 C.F.R. § 416.994(b)(5). If the Commissioner finds conclusively that a claimant qualifies as disabled at any point in this process, review does not proceed to the next step. See id.
B. Standard of Review
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry- pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff contends that the ALJ's decision is not supported by substantial evidence. More specifically, Plaintiff alleges that: (1) “the ALJ's finding of medical improvement is arbitrary and not evidence based”; and (2) the ALJ erred in her assessment of the opinion evidence. (Dkt. No. 8.)
The undersigned considers these arguments below.
A. The ALJ's Decision
As noted, the ALJ conducted a continuing disability review. To terminate benefits during such a review, the Commissioner must show by substantial evidence that medical improvement relevant to the beneficiary's ability to work has taken place. To determine medical improvement, there must be a comparison of the current medical severity of the impairments present at the time of the most recent favorable medical decision to the medical severity of that impairments at that time. 20 C.F.R. § 404.1594. Here, the ALJ noted that Plaintiff was found to have diabetes, anemia, hypothyroidism, and asthma at the time of the CPD. (R. at 31.) The ALJ then found that, “by October 1, 2019, there had been a decrease in medical severity of the impairments present at the time of the CPD.” (R. at 34.)
The ALJ further determined that, since October 1, 2019, Plaintiff “has had the following medical determinable severe impairments: type 1 diabetes mellitus, with neuropathy, and rheumatoid arthritis/fibromyalgia,” and she explained that none of these medically determinable impairments met or medically equaled the severity of an impairment listed in the Listing of Impairments. (R. at 31-34.) The ALJ described Plaintiff's residual functional capacity (“RFC”) based on Plaintiff's impairments since October 1, 2019. (R. at 34.) To justify her RFC finding, the ALJ described Plaintiff's testimony relating to Plaintiff's subjective complaints and her reports of daily activities. Here, the ALJ noted that Plaintiff testified, inter alia, “she was in the hospital due to blood sugar problems”; “she has neuropathy in her hands and feet”; and “she is limited to lifting two or three pounds, walking about three to five minutes, standing less than 10 minutes, and sitting 30 minutes before having to move around.” (R. at 35.) The ALJ also noted that Plaintiff “testified at the hearing to having the ability to wipe down countertops, prepare meals some days, and go outside and walk to the car and back a couple of times.” (R. at 35.)
The ALJ concluded that:
[T]he claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the objective medical and other evidence for the reasons explained in this decision. Accordingly, these statements have been found to affect the claimant's ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence. The claimant's daily activities suggest her conditions are not as limiting as alleged.(R. at 35.)
The ALJ then detailed Plaintiff's treatment records, ultimately finding that since October 1, 2019, “the evidence does not substantiate disabling type 1 diabetes mellitus, with neuropathy” and “the evidence does not substantiate disabling rheumatoid arthritis/fibromyalgia.” (R. at 3536.) The ALJ discussed Plaintiff's consultative physical examination in September 2020 with Thaer Joudeh, M.D., and then turned to the medical opinion evidence. (R. at 36-38.) Here, the ALJ gave some weight to the prior August 2007 decision; little weight to the opinions of consultative examiner Dr. Joudeh; “great weight to the physical assessment of the state agency medical consultant that concludes the claimant is limited to light work, with additional limitations, including avoid concentrated exposure to hazards and frequent handling/fingering/feeling”; and “little weight to the administrative findings of the state agency psychological consultant that concludes there is insufficient evidence.” (R. at 37-38.)
After evaluating the evidence in the record, the ALJ stated:
In summary, the claimant's assertion that she is not able to perform basic work activities is not consistent with the evidence, as it is inconsistent with her admitted activities of daily living and the treatment received. Based on all of the evidence of record, I find the claimant can perform light work, with additional limitations. The residual functional capacity since the cessation date further accounts for the claimant's hand/wrist symptoms with a limitation of frequently handle/finger/feel.(R. at 38.)
Based on the foregoing, the ALJ found that Plaintiff has been able to perform a significant number of jobs in the national economy since her medical improvement on October 1, 2019, including a hand packager, production worker, and production inspector. (R. at 38-39.) Thus, the ALJ concluded that Plaintiff's disability ended on October 1, 2019. (R. at 39.)
B. ALJ's Evaluation of Medical Improvement and RFC Finding
Plaintiff first argues that the ALJ's finding of medical improvement was based on a cherry-picked version of Plaintiff's records and an improper view of Plaintiff's fibromyalgia. (Dkt. Nos. 8 at 28-32; 11 at 1-10.) The Commissioner disputes these claims, arguing first that Plaintiff's fibromyalgia is not subject to a medical improvement analysis because this impairment was not present at the time of the August 2007 decision. (Dkt. No. 10 at 10 (quoting 20 C.F.R. § 416.994(b)(1)(i) (“Medical improvement is any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled.” (emphasis added)).) At the outset, the undersigned agrees that, specific to Plaintiff's arguments here, only the ALJ's evaluation of Plaintiff's diabetes can be addressed through the lens of medical improvement. The ALJ's evaluation of Plaintiff's fibromyalgia is relevant to her assessment of Plaintiff's ability to engage in substantial gainful activity. See 20 C.F.R. § 416.994(b)(1)(v) (“In most instances, we must show that you are able to engage in substantial gainful activity before your benefits are stopped. When doing this, we will consider all your current impairments not just that impairment(s) present at the time of the most recent favorable determination.”). With this clarification, the undersigned considers the ALJ's evaluation of these impairments.
Plaintiff's diabetes is also relevant to this assessment.
1. Diabetes Mellitus
a. The ALJ's Findings
As discussed above, the ALJ considered Plaintiff's diabetes throughout her decision. In her finding of “[m]edical improvement,” the ALJ determined that “by October 1, 2019, there had been a decrease in medical severity of the impairments present at the time of the CPD.” (R. at 35.) Specific to Plaintiff's diabetes, the ALJ stated:
At the time of the CPD, Stanley Von Hofe, M.D., noted the claimant had unstable and unpredictable blood sugar control (Ex. B1A, 9).... However, the current medical evidence shows the claimant has improved. While the claimant had received some treatment at the emergency department for diabetic ketoacidosis (Ex. B35F, 57), the medical evidence since the cessation date shows improvement in the diabetes mellitus. For example, a treatment note indicates the condition is controlled with insulin (Ex. B35F, 111)....(R. at 34.) Under her assessment of Plaintiff's current RFC, the ALJ again discussed the evidence relevant to Plaintiff's diabetes. Here, the ALJ stated,
Since October 1, 2019, the evidence does not substantiate disabling type 1 diabetes mellitus, with neuropathy. The claimant treated at Woodward Medical Center from the cessation date through June 2020, where she received diagnoses of insulin pump in place and type 1 diabetes mellitus, with diabetic polyneuropathy (Ex. B23F). The claimant treated at Prisma Health from the cessation date through November 2022, where she reported having tingling in the feet. The claimant received a diagnosis of type 1 diabetes mellitus (Ex. B19F; Ex. B22F; Ex. B29F; Ex. B31F; Ex. B34F). The claimant also treated at Mercy Health from May 2022 through November 2022, where the claimant had hospital admissions for diabetic ketoacidosis. The claimant
received diagnoses of diabetic hyperglycemia; diabetic ketoacidosis; and type 1 diabetes mellitus, with diabetic polyneuropathy (Ex. B35F). Laboratory testing showed the claimant is positive for diabetes mellitus (See, e.g., Ex. B34F, 72; Ex. B35F, 236, 266). However, the claimant treated the problem with medications and insulin (See, e.g., Ex. B35F, 16, 102, 159). During an October 2022 visit, the claimant denied having any dizziness, syncope, speech difficulty, or lightheadedness (Ex. B35F, 60). The diagnoses did not include other diabetes related complications (Ex. B31F, 48; Ex. B34F, 26). The claimant has been doing diabetes education (See, e.g., Ex. B31F, 21, 23, 128). Notably, the current medical evidence shows much improvement in the claimant's condition, as a treatment note states it is controlled with insulin (Ex. B35F, 111).(R. at 35-36.)
b. Analysis
In her brief, Plaintiff argues that the ALJ found Plaintiff's diabetes improved based on “a cherry-picked version of the record.” (Dkt. No. 30 at 8.) The Fourth Circuit has found that “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017). In her decision, the ALJ repeatedly cited one treatment note from October 3, 2022, as evidence of “much improvement in the claimant's” type 1 diabetes mellitus, emphasizing that the “treatment note states it is controlled with insulin.” (R. at 36 “Notably, the current medical evidence shows much improvement in the claimant's condition, as a treatment note states it is controlled with insulin”; see also R. at 34 “[T]he medical evidence since the cessation date shows improvement in the diabetes mellitus. For example, a treatment note indicates the condition is controlled with insulin”). As stated by Plaintiff, the ALJ ignored that the treatment note cited here recorded Plaintiff's hospital visit for moderate hyperglycemia with a high reading of her blood sugar that day and a “worsening” of her condition. (R. at 3001-02.) While this note also stated under “history” that Plaintiff's “diabetes status” was “controlled with insulin,” the ALJ entirely ignored the relevant notations in this same record of Plaintiff's high blood sugar and a worsening of her hyperglycemia.
Because the ALJ selectively cited the record to find “much improvement” in Plaintiff's diabetes since October 1, 2019, the undersigned cannot find the ALJ's determination of medical improvement is supported by substantial evidence. See, e.g., Christensen v. Berryhill, No. 0:17-cv-190-JMC-PJG, 2018 WL 1701978, at *3 (D.S.C. Feb. 28, 2018) (finding the ALJ improperly cherry-picked by citing only the favorable portions of mental health records and disregarding contrary portions of the same records; as a result “it is unclear whether the reasons provided by the ALJ for discounting . . . the opinion [of] a treating psychiatrist (and ultimately the reasons for the ALJ's residual functional capacity assessment are supported by substantial evidence”), adopted by, 2018 WL 1697299 (D.S.C. Apr. 6, 2018); Seabolt v. Barnhart, 481 F.Supp.2d 538, 548 (D.S.C. 2007) (“The ALJ is not required to discuss every piece of evidence, but if he does not mention material evidence, the court cannot say his determination was supported by substantial evidence.”).
Additionally, the ALJ offered little comparison between the medical records in existence at the time of the CPD and Plaintiff's current medical records when finding medical improvement in Plaintiff's diabetes. “In analyzing whether medical improvement has occurred, an ALJ must evaluate not only the current medical evidence, but also the medical evidence upon which the claimant's disability was premised.” Ambler v. Saul, 5:18-cv-553, 2020 WL 733183, at *3 (E.D. N.C. Jan. 24, 2020). That is, “the ALJ may not simply rely on the current medical evidence, but must compare the current medical severity of that impairment(s) which was present at the time of the [CPD] to the medical severity of [the] impairment(s) at [the] time [of alleged improvement].” Daniel C. v. Berryhill, No. 5:17-cv-00074, 2018 WL 7051034, at *9 (W.D. Va. Dec. 28, 2018) (internal citations and internal quotations omitted), adopted by, 2019 WL 237400 (W.D. Va. Jan. 16, 2019). “Nor is it sufficient for the ALJ to provide a mere summary of earlier records. Instead, a proper finding of medical improvement requires examination of reports and records generated before the CPD.” Id. (internal citations omitted).
Here, the ALJ's only mention of Plaintiff's diabetes at the time of the CPD is her reference to the August 2007 decision, stating, “[a]t the time of the CPD, Stanley Von Hofe, M.D., noted the claimant had unstable and unpredictable blood sugar control.” (R. at 34.) A review of the August 2007 decision shows that Dr. Von Hofe treated Plaintiff for “diabetes mellitus type 1 with a fair prognosis.” (R. at 77.) “Symptoms supporting that diagnosis included unstable and unpredictable blood sugar control and she had adjustments in insulin doses.” (R. at 77.) The August 2007 decision assigned Plaintiff an RFC “consistent with the findings of Dr. Von Hofe.” (R. at 76.) In her decision, the ALJ does not consider Plaintiff's treatment for diabetes at the time of CPD or explain how the records after the cessation date differ from Plaintiff's treatment for diabetes under Dr. Von Hofe. See Daniel C., 2018 WL 7051034, at *9 (finding medical improvement analysis deficient because ALJ did not actually compare the medical evidence of claimant's condition at the time of the CPD to the current severity of his condition.). As discussed above, the treatment record highlighted by the ALJ as evidence of improvement indicates that Plaintiff's blood sugar was not at a stable level in October of 2022, which would be consistent with Plaintiff's symptoms at the time of the CPD.
While the Commissioner argues that substantial evidence supports a finding of medical improvement, including Plaintiff's alleged non-compliance with diabetic treatment, the ALJ did not appear to rely on the evidence cited by the Commissioner to find medical improvement. (Dkt. No. 10 at 11-14; see R. at 34-36.) The Court cannot consider the Commissioner's post-hoc rationalizations to justify the ALJ's findings of medical improvement. See Radford v. Colvin, 734 F.3d 288, 294 (4th Cir. 2013) (rejecting Commissioner's argument in part because it consisted of “a post[-]hoc rationalization”); McKenzie v. Colvin, No. 9:14-cv-4816-RMG-BM, 2016 WL 182924, at *5 (D.S.C. Jan. 4, 2016) (declining to consider “a post-hoc argument made by the Commissioner in her brief” that substantial evidence supported a finding of medical improvement) (collecting cases), adopted by, 2016 WL 183907 (D.S.C. Jan. 14, 2016).
Because the ALJ's decision fails to set forth substantial evidence in support of Plaintiff's purported medical improvement as to her diabetes, the undersigned recommends this case be remanded. Also, as discussed further below, the ALJ erred in her assessment of Plaintiff's fibromyalgia and remand is also appropriate on this basis.
2. Fibromyalgia
a. The ALJ's Findings
In her decision, the ALJ further found that Plaintiff had a new severe impairment of fibromyalgia, which was not present at the time of the CPD. Relevant to this impairment, the ALJ stated,
Since October 1, 2019, the evidence does not substantiate disabling rheumatoid arthritis/fibromyalgia. The claimant treated at MedVirginia from the cessation date through May 2022, where she reported having swelling of the bilateral wrists, and bilateral knees. The claimant received diagnoses of fibromyalgia, arthritis of finger of right hand, and rheumatoid arthritis involving the right wrist (Ex. B17F; Ex. B20F; Ex. B21F; Ex. B30F; Ex. B32F). The claimant also reported having joint pains in the hands during visits at Mercy Health, where she received a diagnosis of polyarthritis, rheumatoid arthritis involving the right wrist, and fibromyalgia (Ex. B35F, 10-11, 117, 143). The claimant also reported having joint pain in the hands, swelling in the finger joints, and right knee pain during visits at Prisma Health. The claimant received diagnoses of rheumatoid arthritis in both hands, polyarthralgia, and fibromyalgia (Ex. B31F, 30, 56). However, the claimant had negative antinuclear antibody (ANA) tests and rheumatoid factor tests (Ex. B30F, 39; Ex. B31F, 30). The claimant treated the problems with medications (See, e.g., Ex. B32F, 21; Ex. B35F, 72, 159). The claimant also used a brace for left elbow pain (Ex. B30F, 44). Despite some findings of bony hypertrophy, mild swelling of the right hand finger joint, and sensory deficit at the left kneecap, examinations produced normal physical findings, including no deformity, normal strength, normal range of motion,
no active synovitis, no joint redness or increased warmth, no bony point tenderness, no extremity edema, normal pulses, intact sensation, intact reflexes, normal tandem walk, and normal gait (See, e.g., Ex. B30F, 40, 67; Ex. B32F, 30, 51; Ex. B34F, 26). The claimant reported improvement of pain on medications (Ex. B31F, 32, 56). Of note, a treatment note states the fibromyalgia is stable on medications (Ex. B32F, 44).(R. at 36.) Relying in part on the foregoing analysis, the ALJ ultimately found that since October 1, 2019, Plaintiff has had the RFC to perform light work with certain limitations. (R. at 34.)
b. Analysis
In her brief, Plaintiff argues that the ALJ improperly relied on select “normal physical findings” to discount the severity of Plaintiff's fibromyalgia. (Dkt. No. 8 at 30-31.) Relevant here, to determine a claimant's RFC, an ALJ must follow a two-step process set forth in SSR 16-3p to evaluate the claimant's symptoms. First, the ALJ must determine whether the individual has a medically determinable impairment “that could reasonably be expected to produce the individual's alleged symptoms.” SSR 16-3p, 2017 WL 5180304, at *3 (S.S.A. Oct. 25, 2017). In the second step the ALJ must “evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities ” Id. at *4. The ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” Id. at *10. In Arakas v. Commissioner, Social Security Administration, the Court of Appeals for the Fourth Circuit found that ALJs “may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” 983 F.3d at 97. Furthermore, “disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms.” Id. at 98.
In March 2016 the Social Security Administration published SSR 16-3p, 2016 WL 1119029 (2016), which rescinds and supersedes SSR 96-7p, eliminates use of the term “credibility,” and clarifies that subjective symptom evaluation is not an examination of an individual's character. SSR 16-3p applies to determinations and decisions made on or after March 29, 2016. Thus, this regulation applies to the instant ALJ decision, which was decided on January 18, 2023. SSR 16-3p, 2017 WL 5180304, at *13 n.27 (S.S.A. Oct. 25, 2017) (“Our adjudicators will apply this ruling when we make determinations and decisions on or after March 28, 2016.”). Although SSR 16-3p eliminates the assessment of credibility, it requires assessment of most of the same factors considered under SSR 96-7p.
At the ALJ hearing, Plaintiff testified that due to pain from her rheumatoid arthritis and fibromyalgia, she could only walk about three to five minutes, stand less than 10 minutes, and sit 30 minutes before having to move around. (R. at 60-61.) These limitations are inconsistent with the ALJ's RFC finding that Plaintiff could perform light work with certain limitations.As argued by Plaintiff, the ALJ improperly relied on normal objective findings to discount the alleged severity of Plaintiff's fibromyalgia. (R. at 36 “Despite some findings of bony hypertrophy, mild swelling of the right hand finger joint, and sensory deficit at the left kneecap, examinations produced normal physical findings, including no deformity, normal strength, normal range of motion, no active synovitis, no joint redness or increased warmth, no bony point tenderness, no extremity edema, normal pulses, intact sensation, intact reflexes, normal tandem walk, and normal gait.”); see David R. v. Kijakazi, No. DLB-20-cv-1277, 2021 WL 3144528, at *3 (D. Md. July 26, 2021) (“Arakas prohibits using normal, objective results to discount the intensity and persistence of a claimant's fibromyalgia symptoms, including pain.”); Charlene S. v. Saul, No. DLB-20-cv-853, 2021 WL 2141501, at *4 (D. Md. May 26, 2021) (“[T]he ALJ's notation of plaintiff's lack of swelling or crepitus and a ‘good range of motion over the hips' amounts to impermissible use of objective evidence to discount plaintiff's fibromyalgia symptoms.”).
The regulations state that a job is in the category of light work “when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.” 20 C.F.R. § 416.967.
In addition to these objective findings, the ALJ also emphasized Plaintiff's “reported improvement on medications.” (R. at 36.) Here, the record shows that the ALJ was referring to a treatment note from September 15, 2021, stating, inter alia, “She complains of pain in the surface of her midfoot bilaterally. Notes swelling involving her finger joints. She complains of gel phenomenon exacerbated with prolonged west [sic]; Feels like she is 80 y.o. She complains of constant left sided back pain. Takes Tylenol with improvement,” and a treatment note from November 9, 2021, stating, inter alia, “She complains of right knee pain.... Takes ibuprofen and Tylenol with improvement. She has difficulty sitting up.” (R. at 2235, 2259.) Notably, in these same treatment records documenting “improvement,” Plaintiff was still complaining of pain from her rheumatoid arthritis and fibromyalgia. (R. at 2235, 2259.) Similarly, when the ALJ emphasized that a treatment note “states the fibromyalgia is stable on medications,” she ignored the pain Plaintiff reported as “present” despite the medication. (R. at 36.) More specifically, the January 4, 2022 record referenced here stated Plaintiff's fibromyalgia was “stable on Venlafaxine 75 mg daily. Cervical pain and spasm present. Two recent visits to ED for same....” (R. at 2435.)
Upon review, the ALJ erred in effectively requiring Plaintiff to provide medical evidence of her symptoms from fibromyalgia. See Bryson v. Berryhill, No. 1:20-cv-00169-MOC, 2021 WL 2517682, at *6 (W.D. N.C. June 18, 2021) (“[T]he ALJ erred when he applied the incorrect legal standard by considering objective evidence as a factor in evaluating Plaintiff's subjective symptoms of fibromyalgia, which essentially required Plaintiff to prove her subjective symptoms of fibromyalgia with objective evidence.”). Moreover, the ALJ did not address the unique symptoms of a fibromyalgia diagnosis, and her failure to acknowledge Plaintiff's persistent pain even when Plaintiff's fibromyalgia was deemed “stable” indicates a lack of awareness about fibromyalgia's “unique nature.” See Arakas, 983 F.3d at 102 (finding that the ALJ's “decision exhibited] a pervasive misunderstanding of fibromyalgia” and remanding for benefits).
Additionally, while the ALJ relied on Plaintiff's daily activities to support her RFC finding, she did not explain how these activities showed that Plaintiff could sustain a full-time job and that she could actually perform the tasks required by light work. The activities recounted by the ALJ, specifically “the ability to wipe down countertops, prepare meals some days, and go outside and walk to the car and back a couple of times,” are not inherently inconsistent with the functional limitations alleged by Plaintiff at the ALJ hearing. See Coreen T. v. Kijakazi, No. CBD-19-cv-3372, 2022 WL 252961, at *7 (D. Md. Jan. 26, 2022) (“Individual or sporadic instances of activity do not necessarily demonstrate a person's ability to work on a sustained basis for eight hours per day.”). Thus, some explanation here was necessary to provide an accurate and logical bridge to the ALJ's conclusion that Plaintiff's daily activities supported her RFC finding. See, e.g., Garrett v. Saul, No. 0:19-cv-02898-RBH, 2021 WL 869687, at *5 (D.S.C. Mar. 9, 2021) (remanding because, inter alia, “the ALJ also failed to adequately explain how Plaintiff's limited ability to carry out daily activities supported her conclusion that Plaintiff could sustain an eight-hour workday”); Willie L. v. Kijakazi, No. TMD 20-cv-3279, 2021 WL 5233565, at *6 (D. Md. Nov. 10, 2021) (remanding in part because the ALJ recounted claimant's activities of daily living to support the RFC finding but “did not ‘explain how those activities showed that [Plaintiff] could sustain a fulltime job' and could actually perform the tasks required by light work”).
Based on the foregoing, the undersigned cannot find the ALJ's RFC finding, which fails to adequately assess the severity of Plaintiff's fibromyalgia, is supported by substantial evidence.
C. Remaining Allegations of Error
As mentioned above, Plaintiff also argues that remand is necessary because the ALJ erred in her assessment of the opinion evidence. (Dkt. No. 8.) The undersigned does not address this remaining allegation of error, as it may be rendered moot on remand. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). As part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration Plaintiff's remaining allegation of error.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).