Opinion
C. A. 9:20-02442-TMC-MHC
11-04-2021
Jennifer Nole, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff Jennifer Nole, proceeding pro se, filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the Commissioner) denying her claims for Disability Insurance Benefits (DIB) under Title II and Supplemental Security Income (SSI) under Title XVI of the Social Security Act. This case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Having carefully considered the parties' submissions and the applicable law, the undersigned recommends that the Commissioner's decision be reversed and remanded for further findings for the reasons that follow.
I. BACKGROUND
A. Procedural History
Plaintiff applied for DIB and SSI on January 27, 2017, alleging disability as of December 19, 2016. R.pp. 52, 608-616. Plaintiff's claims were denied initially and upon reconsideration, and Plaintiff then requested a hearing before an ALJ. R.pp. 556-557. A hearing, at which Plaintiff and a vocational expert (VE) testified, was held on December 7, 2018. R.pp. 430-459. The ALJ 1 thereafter denied Plaintiff's claims in a decision issued on May 7, 2019, finding that Plaintiff was not disabled from the alleged date of onset through the date of the decision. R.pp. 52-62.
Plaintiff was represented by counsel at the hearing. See R.pp. 433, 554-555.
The Appeals Council denied Plaintiff's request for review on April 28, 2020, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. R.pp. 1-8. Thereafter, Plaintiff brought this pro se action seeking judicial review of the Commissioner's decision.
B. ALJ's Decision
The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2021.
2. The claimant has not engaged in substantial gainful activity since December 19, 2016, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: fibromyalgia, asthma, degenerative disc disease, osteoarthritis, headaches, anxiety disorder, and somatoform disorder (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, [the ALJ found] that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can never climb ladders, ropes or scaffolds, but can occasionally perform all other postural activities. The claimant can frequently push, pull, handle and finger. She must avoid bright, flashing lights, similar visual stimuli, and loud noises. She must avoid concentrated exposure to respiratory irritants, unprotected heights, and hazards. The claimant can perform simple, routine tasks for two-hour increments followed by customary breaks. She is limited to occasional public interaction and should be superficial involving no engagement with the public as part of the job duties, and would miss one day of work per week.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).2
7. The claimant ... was 35 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from December 19, 2016, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).R.pp. 52-62. The ALJ concluded that Plaintiff was not disabled under DIB or SSI based on the applications filed on January 27, 2017. R.p. 62.
II. APPLICABLE LAW
A. Scope of Review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2007) (internal quotation marks omitted). 3
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
Plaintiff appears in this action without the representation of an attorney. Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
B. Sequential Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that she has an impairment or combination of impairments that prevents her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423(d). The Social Security Administration (SSA) has established a five-step sequential evaluation process for determining if a person is 4 disabled. 20 C.F.R. §§ 404.1520. The five steps are: (1) whether the claimant is engaging in substantial gainful activity; (2) whether the claimant has a severe medically determinable impairment; (3) whether the impairment(s) meets or equals an impairment set forth in the Listings of Impairments, 20 C.F.R. Part 404, Subpt. P., App. 1; (4) whether the impairment(s) prevents the claimant from returning to her past relevant work; and, if so, (5) whether the claimant is able to perform other work as it exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v); see Woods v. Berryhill, 888 F.3d 686, 689 (4th Cir. 2018).
It is the claimant's duty both to produce evidence and prove she is disabled during the first four steps of the inquiry, while the burden shifts to the Commissioner for the final step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). To satisfy this burden at step five, the Commissioner must prove, “by a preponderance of the evidence, that the claimant can perform other work that exists in significant numbers in the national economy, considering the claimant's residual functional capacity, age, education, and work experience.” Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016) (internal quotation marks omitted). The Commissioner may carry this burden by obtaining testimony from a VE. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015); Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). The ALJ is to develop the record and where the ALJ “fails in his duty to fully inquire into the issues necessary for adequate development of the record, and such failure is prejudicial to the claimant, the case should be remanded.” Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980).
III. DISCUSSION
In her Brief, Plaintiff contends that the ALJ's decision is not supported by substantial evidence. Plaintiff appears to argue that the RFC found by the ALJ is not supported by substantial evidence as she does not have the RFC required to perform the jobs identified. In particular, 5 Plaintiff claims that she does not have the capacity to perform light, unskilled work because she cannot be erect for more than an hour, cannot perform repetitive motions with her extremities, would need to take a break to recline for an hour after working an hour, has vision problems, has memory problems, and has problems understanding things. ECF No. 28 at 2-3. She also appears to argue that the ALJ did not properly consider her subjective symptoms. Id. at 6. In her Response Brief, Plaintiff appears to allege that her subjective symptoms, which wax and wane, were not properly credited by the ALJ. See ECF No. 33 at 3-4.
In her Complaint, as well as her Brief and Reply Brief, Plaintiff appears to disagree with many of the conclusions and diagnoses of her medical providers and asserts that information in her medical records was “recorded in error by most physicians.” See, e.g., ECF No. 1 at 4, ECF No. 1-1 at 1. However, the medical records in the administrative record are from Plaintiff's medical providers. The is no evidence that the ALJ or Commissioner instructed any physician as to what to put in these records, and it is not the role of the ALJ, the Commissioner, or this Court to “correct” the alleged errors.
Plaintiff submitted additional medical records with her Brief but has not provided any page numbers indicating that these records were part of the record before the ALJ. “Reviewing courts are restricted to the administrative record in performing their limited function of determining whether the [Commissioner's] decision is supported by substantial evidence.” Huckabee v. Richardson, 468 F.2d 1380, 1381 (4th Cir. 1972); see Thomas v. Comm'r, 24 Fed.Appx. 158, 162 (4th Cir. 2001) (“It has long been settled that ‘reviewing courts are restricted to the administrative record in performing their limited function of determining whether the [Commissioner]'s decision is supported by substantial evidence.'” (brackets omitted) (quoting Wilkins v. Secretary, DDHS, 953 F.2d 93, 96 (4th Cir. 1991)). The Commissioner's decision should not be reversed based on the submitted evidence as it is not part of the administrative record. Additionally, some of these records are dated more than two years prior to her alleged onset date (ECF No. 28 at 9-11) and the others are dated more than nine months after the ALJ's decision (id. at 12-17). Plaintiff has not made a motion for remand pursuant to sentence six and has not alleged that there was good reason for these records not being part of the record. See 42 U.S.C.A. § 405(g) (The district court may only order additional evidence to be taken before the Commissioner upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.). However, should the district court adopt the undersigned's recommendation and remand the case for further consideration by the ALJ, Plaintiff will have the opportunity to submit additional evidence to the ALJ as part of that process.
Plaintiff is proceeding pro se, and her assertions in the Complaint have been carefully considered. Plaintiff contends that the Commissioner's decision was based on legal error because 6 of incorrect medical documentation. ECF No. 1 at 1, ECF No. 1-1 at 1-2. She also appears to allege that she should be found disabled based on her impairment of fibromyalgia which causes her tenderness, joint stiffness, pain, muscle weakness, spasms, low electrolytes, severe dry eye syndrome, memory problems, and “sensory deprivation/influx.” ECF No. 1-1 at 1-2.
After careful review and consideration of the arguments presented, and for the reasons set forth hereinbelow, the undersigned is constrained to agree with the Plaintiff that the ALJ committed reversible error by failing to properly consider her mental RFC and to properly consider her fibromyalgia thereby requiring a reversal with remand of this case.
A. Mental RFC/Moderate Limitations in Concentration, Persistence, and Pace
Plaintiff claims she does not have sufficient memory and focus to perform the jobs identified. Liberally construing this claim, Plaintiff appears to dispute the ALJ's determination that she has the RFC to perform simple, routine tasks for two-hour increments followed by customary breaks. R.p. 57. The Commissioner contends that the ALJ sufficiently articulated support for the RFC finding and that the discussion of the evidence permits meaningful judicial review. ECF No. 29 at 8-9.
At step three, the ALJ found that Plaintiff had moderate limitations in concentration, persistence, and maintaining pace (CPP). R.p. 57. The ALJ, at Finding 5, stated that Plaintiff could perform simple, routine tasks for two-hour increments followed by customary breaks. Id. Thereafter, the ALJ stated that the RFC assessed was appropriate and found that “in light of moderate limitations in interacting with others and concentration, persistence, and maintaining pace, the claimant is limited to simple work and occasional public interaction.” R.p. 60. He did not include language in his explanatory paragraph as to his finding that Plaintiff could perform simple, routine tasks for two-hour increments followed by customary breaks. 7
The Fourth Circuit held in Mascio that “an ALJ does not account ‘for a claimant's [moderate] limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'” Mascio, 780 F.3d at 638, quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). Rather, that restriction only addresses the complexity of the work, not a claimant's ability to stay on task as required by Mascio. See Mascio, 780 F.3d at 638; Salmon v. Colvin, No. 12-1209, 2015 WL 1526020, at *3 (M.D. N.C. Apr. 2, 2015) (noting that “the Fourth Circuit made clear that an ALJ does not account for a claimant's limitations in [CPP] by restricting the hypothetical question to simple, routine, tasks or unskilled work.”) (citations and quotations omitted); see also Sanders v. Berryhill, No. 16-3883, 2018 WL 878964, at *10 n. 10 (D.S.C. Jan. 29, 2018) (finding that an ALJ's hypothetical to VE that only limited the claimant to simple and routine tasks in low stress environment did not adequately account for claimant's moderate CPP limitations), report and recommendation adopted, No. 16-3883, 2018 WL 835228 (D.S.C. Feb. 13, 2018). Therefore, such a limitation fails to adequately address Plaintiff's CPP limitation.
The RFC determination at Finding 5 contains a limitation that Plaintiff “can perform simple, routine tasks for two-hour increments followed by customary breaks.” However, the ALJ did not explain, in accordance with SSR 96-8p, 1996 WL 374184 (S.S.A. July 2, 1996), how he arrived at this finding or how this accounts for the moderate CPP limitation found at step three. The ALJ does not discuss how he determined that Plaintiff could stay on task for two-hour increments, as opposed to one-hour increments or three-hour increments and does not explain why customary breaks were sufficient. See Morgan v. Saul, No. CV 9:19-1390-BHH-BM, 2020 WL 3318630, at *3 (D.S.C. June 3, 2020), 8 report and recommendation adopted, 2020 WL 3316089 (D.S.C. June 18, 2020); Mellon v. Astrue, No. 08-2110, 2009 WL 2777653, at * 13 (D.S.C. Aug. 31, 2009) (finding that for ALJ's articulation to be adequate under SSR 96-8p, the ALJ's logic and reasoning on the ultimate issue must be supported by substantial evidence in the record); Quinones v. Saul, No. 18-3561, 2019 WL 7461669, at * 14-15 (D.S.C. Dec. 18, 2019) (decision reversed where a review of the decision showed no specific support for the ALJ's “finding that Plaintiff could maintain pace for two-hour periods”), report and recommendation adopted, 2020 WL 42860 (D.S.C. Jan. 3, 2020); see also Mascio, 780 F.3d at 637 (courts cannot meaningfully review decision where they “are left to guess about how the ALJ arrived at his conclusions”).
State agency psychologists Dr. Jennifer Steadham (in June 2017) and Dr. Kendra Werden (in October 2017) opined that Plaintiff's ability to maintain attention and concentration for extended periods was moderately limited and that Plaintiff could attend and perform simple, unskilled tasks for reasonable periods of time without special supervision. R.pp. 471, 472, 509. However, they did not define “reasonable periods of time.” Both concluded that the limitations did not preclude the performance of simple, unskilled work with limited contact. R.pp. 467, 503. However, they also noted that the medical evidence of record reflected possible interference with Plaintiff's attention/concentration and subjective memory complaints by medications, physical issues, and untreated anxiety/stress. Id.
It is not clear whether substantial evidence supports the ALJ's findings as to Plaintiff's mental RFC. The court cannot meaningfully review the ALJ's decision here where it is left to guess how the ALJ arrived at the conclusion that Plaintiff, with her moderate limitation in CPP, could perform simple, routine tasks for two-hour increments followed by customary breaks. See Monroe, 826 F.3d at 189 (4th Cir. 2016) (Case reversed where ALJ failed to “build an accurate 9 and logical bridge from the evidence to his conclusion.”) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)); Woods, 888 F.3d at 686, 694 (4th Cir. 2018) (“[T]he ALJ must both identify evidence that supports his conclusion and build an accurate and logical bridge from the evidence to his conclusion”).
It is also noted that the RFC found by the ALJ in his decision differs from the RFC articulated in the hypothetical posed to the VE concerning the number of days of work Plaintiff would miss. In Finding 5, as well as in the later paragraph discussing Plaintiff's RFC, the ALJ stated that Plaintiff would miss one day of work per week. R.pp. 57, 60. However, the VE's testimony regarding jobs that a claimant with Plaintiff's limitations could perform was in response to the ALJ's hypothetical to the VE indicating that the claimant would miss one day of work per month. R.p. 456. The Commissioner, in reciting the RFC found by the ALJ, substitutes “month” for “week, ” writing that Plaintiff “would miss one day of work per [month].” Commissioner's Brief, ECF No. 29 at 7. However, no explanation of this discrepancy is given. Although it is possible that the ALJ made typographical errors in the decision, this discrepancy should be addressed if this case is remanded.
B. The ALJ's Assessment of Plaintiff's Fibromyalgia
Plaintiff appears to contend that the ALJ failed to properly consider all of her subjective symptoms of fibromyalgia in finding that she could perform a range of simple, light work. The Commissioner contends that the ALJ properly considered Plaintiff's fibromyalgia, but discounted Plaintiff's alleged symptoms because Plaintiff questioned the diagnosis of fibromyalgia, refused prescriptions for Lyrica and Cymbalta, refused physical therapy, and decided instead to do Tai Chi. See ECF No. 29 at 8-9.
1. Assessing RFC
In determining a claimant's RFC, an ALJ must “consider all of the claimant's ‘physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect [the claimant's] ability to work.'” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (quoting Monroe, 826 F.3d at 188). “‘Only after such a function-by-function analysis may an ALJ express RFC in terms of the exertional levels of work' of which he believes the claimant to be capable.” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (citing SSR 96-8p) (quoting Monroe, 826 F.3d at 179) (emphasis added). Moreover, every conclusion reached by an ALJ when evaluating a claimant's RFC must be accompanied by “a narrative discussion describing [ ] the evidence” that supports it. Id. (quoting Thomas, 916 F.3d at 311) (alteration in original); see Woods, 888 F.3d at 694 (explaining that “the ALJ must both identify evidence that supports his conclusion and build an accurate and logical bridge from that evidence 10 to his conclusion”) (internal quotation marks omitted) (emphasis in original). Thus, “a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas, 916 F.3d at 311.
2. Evaluating Subjective Statements
A claimant's statements are among the evidence the ALJ must consider and reconcile with her RFC assessment. “[A]n ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). The ALJ proceeds to the second step only if the claimant's impairments could reasonably produce the symptoms she alleges. See 20 C.F.R. § 404.1529(c)(1) .
At the second step, the ALJ is required to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities.” Lewis, 858 F.3d at 866 (citing 20 C.F.R. § 404.1529(c)). The ALJ must “evaluate whether the [claimant's] statements are consistent with objective medical evidence and the other evidence.” SSR 16-3p, 2016 WL 1119029, at *6 (S.S.A. Mar. 16, 2016). “Other evidence” includes “statements from the individual, medical sources, and any other sources that might have information about the individual's symptoms, including agency personnel, as well as the factors set forth in [the] regulations.” Id. at *5; see also 20 C.F.R. § 404.1529(c)(3) (listing factors to consider, such as claimant's daily activities; the location, duration, frequency, and intensity of pain or other symptoms; medication and other treatment taken or received to relieve pain or other symptoms; any measures other than treatment an individual uses or has used to relieve 11 pain or other symptoms; and any other factors concerning an individual's functional limitations and restrictions because of pain or other symptoms). Importantly, the ALJ is not to evaluate the claimant's symptoms “based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled.” SSR 16-3p, 2016 WL 1119029, at *4; see Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir. 2020) (“We also reiterate the long-standing law in our circuit that disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms.”).
Pursuant to SSR 16-3p, the ALJ must explain which of the claimant's symptoms the ALJ found “consistent or inconsistent with the evidence in [the] record and how [the ALJ's] evaluation of the individual's symptoms led to [the ALJ's] conclusions.” 2016 WL 1119029, at *8. The ALJ must evaluate the “individual's symptoms considering all the evidence in [the] record.” Id.
3. Evaluating Fibromyalgia
The Fourth Circuit recently explained that fibromyalgia is “a disorder of unknown cause characterized by chronic widespread soft-tissue pain particularly in the neck, shoulders, back, and hips, which is aggravated by use of the affected muscles and accompanied by weakness, fatigue, and sleep disturbances.” Arakas, 983 F.3d at 91 (internal quotation marks and citation omitted). SSR 12-2p governs the evaluation of fibromyalgia, and it explains that fibromyalgia is “a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” SSR 12- 2p, 2012 WL 3104869, at *2 (S.S.A. July 25, 2012). SSR 12-2p provides that fibromyalgia should be considered in the RFC based on a longitudinal record whenever possible because symptoms can wax and wane such that a person may have “bad days and good days.” Id. at *6. Courts have recognized that fibromyalgia “symptoms are entirely subjective, ” and “[t]here are no laboratory tests for the presence or severity 12 of fibromyalgia.” Arakas, 983 F.3d at 91(quoting Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)). Moreover, physical examinations usually yield normal results such as a full range of motion, no joint swelling, normal muscle strength, and neurological reactions. Id. at 96.
4. The ALJ's Decision
In his decision, the ALJ summarized Plaintiff's disability reports, function reports, and testimony:
The claimant alleged she is unable to work due to fibromyalgia, muscle weakness, joint stiffness, blurred vision, migraines, vertigo, arthritis, anxiety, memory, and visual difficulty, heart problems, and shortness of breath. Side effects from medication reportedly include photophobia, chronic sleep, nausea, and vertigo. Because of these symptoms, the claimant reportedly has difficulty lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, climbing stairs, seeing, remembering, completing tasks, concentrating, understanding, and using her hands.R.p. 58 (internal citations to the administrative record omitted).
The ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” R.p. 58. The ALJ further explained:
As for the claimant's statements about the intensity, persistence, and limiting effects of her symptoms, they are inconsistent with the medical evidence of record as a whole.. ..Turning to her fibromyalgia, the treatment record is significant for this impairment in the form of diagnosis and treatment. However, in February 2018 she stated that she is not confident in the diagnosis and refused Lyrica and Cymbalta, noting she would continue with muscle relaxers as needed. She also refused physical therapy, but [Plaintiff] decided to do Tai Chi. In May 2018, a rheumatologist evaluated the claimant. The rheumatologist noted that she had 18 out of 18 fibromyalgia tender points and scored the top score on fibromyalgia criteria testing. The rheumatologist recommended that she try to maintain a high level of physical activity. Treatment for symptoms included physical therapy, diagnostic imaging, electromyogram, injections, Tai Chi, and various medications, which alleviated some of the claimant's symptoms. In fact, the claimant generally13
presented with benign findings on examination including normal gait, normal muscle strength, no atrophy, intact reflexes, negative straight leg raises, and slightly decreased range of motion, suggesting that treatment was at least somewhat effective. Overall, with regard to her muscle pain, in April 2018, the treating source noted that given her extensive history, relatively normal studies and physical examinations, and improvement with physical therapy, her symptoms were mostly musculoskeletal and psychological.R.pp. 58-59 (internal citations to the administrative record omitted).
Finally, the ALJ stated:
There are several reasons why [Plaintiff's] allegations of debilitating symptoms are not entirely consistent with the evidence. First there is evidence of noncompliance with recommended treatment, which suggests that the symptoms may not have been as limiting as the claimant has alleged in connection with the application. Second, the claimant described daily activities, which are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations. Third, although the claimant has received various forms of treatment for the allegedly disabling symptoms, which would normally weigh somewhat in the claimant's favor, the record also reveals that the treatment has been generally successful in controlling those symptoms. Fourth, despite allegations of debilitating limitations, physical and mental status examinations, as mentioned above, generally indicated benign findings. Finally, despite the extensive treatment record from several different providers, there are no medical sources opining any functional limitations greater than those outlined in this decision. For these reasons, the claimant's allegations concerning the severity of her symptoms are not entirely consistent with the evidence, and any limitations imposed by the claimant's impairments are accounted for sufficiently in the [RFC].R.p. 60.
The ALJ discounted Plaintiff's fibromyalgia complaints in part based on the notation of one of her physicians in 2018 that Plaintiff was not “confident” of the diagnosis of fibromyalgia and refused to be on medications for treatment including Lyrica or Cymbalta at that time. R.p. 1596. However, the physician also noted that he continued Plaintiff's prescriptions for a muscle relaxer (Plaintiff appears to assert that she takes two muscle relaxers for fibromyalgia pain - see ECF No. 1-1 at 1) and Tramadol. Id. Additionally, Plaintiff continued to seek treatment for her fibromyalgia, including an examination a few months later (in May 2018) by rheumatologist Dr. 14 Gary E. Fink. Dr. Fink assessed:
Severe subset fibromyalgia - widespread pain since 2008, diagnosed as having fibromyalgia 2015 with rapid 3 score in [his] office of 30 (top score=30) and [Plaintiff] has a score of 31 on the [American College of Rheumatology's] 2010 fibromyalgia criteria (the top score) and widespread severe tenderness present on physical examination with 18 out of 18 fibromyalgia tender points present with history of irritable bowel syndrome, migraine headaches, paresthesias, poor sleep, poor energy, cognitive issues, allodynia, morning stiffness and anxiety.R.p. 1513. Dr. Fink suggested that Plaintiff could try Cymbalta, but he also stated that he did not have anything to offer in terms of medications he thought would be effective treating her problem. Id.
Under SSR 12-2p, two sets of criteria are listed, both of which may be independently used to establish a diagnosis of fibromyalgia. SSR 12-2p, 2012 WL 3104869, at *2-3. These are the 1990 ACR Criteria for the Classification of Fibromyalgia (1990 Criteria) and the 2010 ACR Preliminary Diagnostic Criteria (2010 Criteria). SSR 12-2p, 2012 WL 3104869, at *2. Under the 1990 Criteria, a claimant is considered to have a medically determinable impairment if fibromyalgia has been diagnosed by a physician and there is: (1) a history of widespread pain; (2) at least eleven positive tender points on physical examination; and (3) evidence that other disorders that could cause the symptoms or signs were excluded. Id. at *2-3. Under the 2010 Criteria, a claimant is considered to have a medically determinable impairment if fibromyalgia has been diagnosed by a physician and there is: (1) a history of widespread pain; (2) repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions; and (3) evidence of other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded. Id. at 3.
Although the ALJ considered other evidence in discounting Plaintiff's subjective symptoms of fibromyalgia (see R.p. 58-59), he effectively required objective evidence by placing undue emphasis on Plaintiff's relatively normal studies and physical examinations. See Arakas, 983 F.3d at 97 (citing Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003)). The ALJ also concluded that Plaintiff's medications improved her condition, stating that “the claimant generally presented with benign findings on examination including normal gait, normal muscle strength, no atrophy, intact reflexes, negative straight leg raises, and slightly decreased range of motion, suggesting that treatment was at least somewhat effective.” R.p. 61. However, it is unclear that 15 this conclusion fully accounted for Plaintiff's testimony and her continued reporting of fibromyalgia pain to her physicians (see, e.g., 436, 438, 440, 949, 1046-1047, 1562, 1573-1574).
The ALJ, in discounting Plaintiff's subjective statements about her fibromyalgia, also stated that “[o]verall with regard to her muscle pain, in April 2018, the treating source noted that given her extensive history, relatively normal studies and physical examinations, and improvement with physical therapy, her symptoms are mostly musculoskeletal and psychological.” R.p. 61. It is unclear that this statement, made at an orthopedic examination to determine if surgery or other treatment should be pursued for Plaintiff's complaints of lower back/lumbar and neck/cervical problems, provides a supportive reason to discount Plaintiff's subjective fibromyalgia complaints. At the examination, Plaintiff reported muscle aches, muscle weakness, arthralgias/joint pain, back pain, weakness, and numbness; and physical examination revealed tenderness of the paracervicals and limited range of motion. These findings appear to support Plaintiff's subjective symptoms of fibromyalgia, which is “characterized by ‘chronic widespread soft-tissue pain particularly in the neck shoulders, back, and hips, which is aggravated by use of the affected muscles' and ‘accompanied by weakness, fatigue, and sleep disturbances'” Arakas, 983 F.3d at 91 (citing Steadman's Medical Dictionary 331870 (2014)).
The ALJ later concluded that there were several reasons why Plaintiff's allegations of debilitating symptoms (including evidence of noncompliance with recommended treatment and his daily activities) were not entirely consistent with the evidence. However, the ALJ again states that Plaintiff's treatment was generally successful in controlling her symptoms, which appears to contradict Plaintiff's continued complaints of fibromyalgia symptoms. The ALJ also appears to impermissibly rely on a lack of objective symptoms to discount Plaintiff's fibromyalgia subjective complaints, stating that physical and mental status examinations “generally indicated benign 16 findings.” R.p. 60.
As noted above, the ALJ discounted Plaintiff's subjective complaints in part because she refused Cymbalta and Lyrica. However, it is unclear whether the ALJ fully considered Plaintiff's testimony that she tried Lyrica and it made her feel worse (R.p. 440), Dr. Fink's statement that he did not have anything to offer in terms of medications he thought would be effective treating Plaintiff's problem (R.p. 1513), and a primary care provider's notation that Plaintiff had been on multiple agents for fibromyalgia (R.p. 955). Although the ALJ discounted Plaintiff's subjective symptoms in part because she refused physical therapy, it is unclear that the ALJ fully considered the extensive time period during which Plaintiff participated in physical therapy, including shortly before her alleged December 2016 onset date (from June to September 2016) and from February to September 2017. See R.pp. 110-1021, 1029-1033, 1214-1452.
Finally, because Plaintiff has the severe impairment of fibromyalgia, it is not clear that the objective findings relied on by the ALJ support the mental RFC determination. Although the ALJ found that Plaintiff's fibromyalgia was a severe impairment and discussed SSR 12-2p in his step three analysis, it is not clear from the decision that Plaintiff's fibromyalgia was fully considered in formulating the mental RFC. Symptoms of fibromyalgia, such as widespread pain or fatigue, “may result in exertional limitations that prevent a person from doing the full range of unskilled work” and fibromyalgia claimants “may also have nonexertional physical or mental limitations because of their pain or other symptoms, ” as well as nonexertional environmental restrictions. SSR 12-2p, 2012 WL 3104869, at *6. Because the ALJ may have relied on the objective medical evidence to discount Plaintiff's subjective complaints of fibromyalgia symptoms of pain, memory loss, problems understanding, and anxiety disorder, it is unclear that the ALJ properly considered 17 the possible non-exertional limitations posed by Plaintiff's fibromyalgia. See Arakas, 983 F.3d at 97 (Holding 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.”).
The 2010 ACR Preliminary Diagnostic Criteria include repeated manifestations of fibromyalgia symptoms, signs, or co-occurring conditions, “especially fatigue, cognitive or memory problems, waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.” SSR 12-2p at 3.
The ALJ's errors do not necessarily mean that Plaintiff is disabled. However, these errors undermine the stated bases for the ALJ's conclusions as set forth in his decision, thereby requiring remand for a proper evaluation of the case record. Moreover, it is further unclear from the record and the decision how or on what basis the ALJ determined that Plaintiff, notwithstanding her fibromyalgia, psychological impairments, and pain, could perform work as set out in the RFC finding. Based on the above, the undersigned is unable to conclude that the ALJ properly evaluated Plaintiff's subjective symptoms of fibromyalgia and that the ALJ's RFC determination is supported by substantial evidence.
Without further explanation from the ALJ regarding how he reconciled any inconsistencies in the record and reached his conclusions, the Court is unable to conduct meaningful appellate review of the ALJ's decision, such that remand is warranted. See Cotter v. Harris, 642 F.2d 700 (3rd Cir. 1981) (listing cases remanded because of failure to provide explanation or reason for rejecting or not addressing relevant probative evidence). While the ALJ may ultimately determine that Plaintiff retained the RFC to perform substantial gainful activity during the relevant time period, in order for this Court to uphold such a decision as supported by substantial evidence, the ALJ must properly consider and evaluate the evidence and explain his rationale for reaching the decision sufficient to build “an accurate and logical bridge from the evidence to his conclusions[.]” Monroe, 826 F.3d at 189 (internal quotation marks omitted); 18 Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”). The ALJ failed to do so here, thereby requiring remand.
C. Remaining Allegations of Error
In light of the recommendation to remand for further consideration, the undersigned declines to address the remaining claims of error, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). However, as part of the overall reconsideration of this claim upon remand, the ALJ should consider Plaintiff's remaining allegations of error. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002) (noting the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo).
D. Remand Versus Award of Benefits
Plaintiff requests that this action be remanded to the Commissioner for an award of benefits. ECF No. 1 at 4. “Whether to reverse and remand for an award of benefit or remand for a new hearing rests within the sound discretion of the district court.” Smith v. Astrue, No. 10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) (citing Edwards v. Bowen, 672 F.Supp. 230, 237 (E.D. N.C. 1987)); see also Evans v. Heckler, 734 F.2d 1012, 1015 (4th Cir. 1984). When “[o]n the state of the record, [plaintiff's] entitlement to benefits is wholly established, ” reversal for award of benefits rather than remand is appropriate. Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980). 19
“The Fourth Circuit has explained that outright reversal-without remand for further consideration-is appropriate under sentence four ‘where the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose'” and “where a claimant has presented clear and convincing evidence that he is entitled to benefits.” Goodwine v. Colvin, No. 3:12-2107-DCN, 2014 WL 692913, at *8 (D.S.C. Feb. 21, 2014) (citing Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974)); Veeney ex rel. Strother v. Sullivan, 973 F.2d 326, 333 (4th Cir. 1992). An award of benefits is appropriate when “a remand would only delay the receipt of benefits while serving no useful purpose, or a substantial amount of time has already been consumed.” Davis v. Astrue, C/A No. 07-1621-JFA, 2008 WL 1826493, at *5 (D.S.C. Apr. 23, 2008) (citing Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984)); Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir. 1982). “On the other hand, remand is appropriate ‘where additional administrative proceedings could remedy defects....'” Id. (quoting Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989)). Remand, rather than reversal, is required, however, when the ALJ fails to explain his reasoning and there is ambivalence in the medical record, precluding a court from “meaningful review.” Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013). Pursuant to the above standards, remand for further proceedings, rather than outright remand, is appropriate as there is not clear and convincing evidence that Plaintiff is entitled to benefits and additional proceedings may remedy defects in this case. 20
IV. CONCLUSION
It is RECOMMENDED that the decision of the Commissioner be REVERSED and REMANDED pursuant to 42 U.S.C. § 405(g) for further administrative review.
The parties' attention is directed to the important notice on the next page. 21
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). 22