Tina T. v. Kijakazi

Full title: Tina T.,[1] Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social…

Court: United States District Court, D. South Carolina

Date published: Apr 6, 2023

C. A. 1:22-3192-DCC-SVH (D.S.C. Apr. 6, 2023)

Opinion

C. A. 1:22-3192-DCC-SVH

04-06-2023

Tina T.,[1] Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.

Shiva V. Hodges United States Magistrate Judge

REPORT AND RECOMMENDATION

Shiva V. Hodges United States Magistrate Judge

This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.

I. Relevant Background

A. Procedural History

On August 8, 2019, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on December 31, 2018. Tr. at 90, 91, 222-23, 224-30. Her applications were denied initially and upon reconsideration. Tr. at 131-34, 137-42. On January 4, 2022, Plaintiff had a hearing by telephone before Administrative Law Judge (“ALJ”) Gregory M. Wilson. Tr. at 38-63 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 2, 2022, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 9-29. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-8. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 20, 2022. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 36 years old at the time of the hearing. Tr. at 46. She completed a bachelor's degree in alternative medicine. Id. Her past relevant work (“PRW”) was as a marketing manager. Tr. at 59-60. She alleges she has been unable to work since June 21, 2019.²Tr. at 42.

2 Prior to the hearing, Plaintiff submitted a letter indicating she agreed to amend her alleged onset date of disability to June 21, 2019. Tr. at 240.

2. Medical History

On February 21, 2019, Plaintiff reported having more than four moderate-to-severe headaches per month. Tr. at 326. She indicated her headaches made her feel angry and irritable and caused difficulty reading, socializing, thinking clearly, and performing activities of daily living (“ADLs”). Tr. at 326-27. She rated her overall pain intensity as a three on a 10-point scale, but noted it was gradually worsening. Tr. at 328-29.

A medical treatment plan dated February 25, 2019, reflects Plaintiff's description of tension across the top of her shoulders, neck pain, mid-back pain, headaches, shoulder pain, elbow pain, hand and finger pain, neck pain radiating to her upper extremities, weakness in her upper extremities, numbness and tingling in her arms and hands, pain in her arms, low back pain radiating to her lower extremities, hip pain, chest pain, and fatigue. Tr. at 330. It includes diagnoses of segmental and somatic dysfunction of the cervical, thoracic, and lumbar regions, sacroiliitis, cervicalgia, pain in the thoracic spine, low back pain, other chronic pain, myalgia, paresthesia of the skin, and other spondylosis of the cervical region with radiculopathy. Tr. at 330-31. Nurse practitioner Nicole Portela ordered x-rays of Plaintiff's cervical, thoracic, and lumbar spine, trigger point injections to the cervical and thoracic spine, glutes, and left sacroiliac joint, and B12 Cyanocobalamin injections. Tr. at 331-32. She referred Plaintiff to physical therapy and ordered a back brace, a transcutaneous epidural nerve stimulation (“TENS”) unit, a TENS garment, and electromyography (“EMG”)/nerve conduction studies (“NCS”). Tr. at 332-33.

Greg Keppel, D.C. (“Dr. Keppel”), interpreted x-rays of Plaintiff's thoracic spine to show spondylotic changes at the T7-T12 levels with anterior endplate spurring, a slight 12-degree scoliosis, and a compression fracture at ¶ 12. Tr. at 338. He stated x-rays of Plaintiff's lumbar spine showed facet tropism at the lumbosacral junction, a slight 13-degree levoscoliosis, retrolisthesis at the L1 level, and a compression fracture of T12-L1. Tr. at 340. He noted x-rays of Plaintiff's cervical spine showed retrolisthesis at the C6 level and spondylotic changes at the C4, C5, and C6 levels with endplate spurring. Tr. at 352. Plaintiff received chiropractic treatment from Dr. Keppel on February 25, 2019. Tr. at 335-37.

Plaintiff received seven acupuncture treatments between June 18 and October 3, 2019. Tr. at 424-25.

Plaintiff presented to neurologist Anthony Holt, D.O. (“Dr. Holt”), on June 21, 2019. Tr. at 415. She reported migraine headaches and intermittent shock-like pain in the left side of her face. Id. Dr. Holt noted he had last seen Plaintiff in October 2017. Id. He recorded normal findings on general and neurological exams. Tr. at 415-16. He stated it was “concerning that the patient appear[ed] to have trigeminal neuralgia,”³ as “[c]onsidering her age,” it suggested “she may have multiple sclerosis.” Tr. at 416. He planned to start Plaintiff on Lamictal, but she indicated she had developed a rash after taking it in the past. Id. Instead, he prescribed Trileptal 300 mg twice a day and ordered magnetic resonance imaging (“MRI”) of her brain to assess for multiple sclerosis. Id.

3 Trigeminal neuralgia “is a type of chronic pain disorder that involves sudden, severe facial pain” and “affects the trigeminal nerve, or fifth cranial nerve, which provides feeling and nerve signaling to many parts of the head and face.” Trigeminal Neuralgia, NATIONAL INSTITUTE OF NEUROLOGICAL DISORDERS AND STROKE, https://www.ninds.nih.gov/ health-information/disorders/trigeminal-neuralgia (last visited April 5, 2023). It “is a type of neuropathic pain, typically caused by a nerve injury or nerve lesion.” Id. Symptoms of trigeminal neuralgia include “sudden, intense pain, typically on one side of the face”; “pain attacks that can last for a few seconds to about two minutes”; “numbness or a tingling sensation”; “a burning, throbbing, shock-like, or aching sensation”; and “attacks of pain that occur regularly for days to weeks or longer, sometimes several times a day.” Id. A court may take judicial notice of factual information in postings on government websites. See Phillip v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (noting the court “may properly take notice of matters of public record,” including “publicly available [statistics] on a government website”).

On June 27, 2019, Plaintiff reported worsened and more frequent ocular migraines. Tr. at 367. She described pain that radiated from the back of her head to her eyes and was accompanied by a shimmer of light from one eye to the other. Id. She stated this had occurred three times since the beginning of the year and indicated she had constant pressure behind her left eye and on the left side of her head. Id. The medical evidence indicates Plaintiff had been experiencing ocular migraines of mild severity since 2017. Id. William F. Darby, M.D. (“Dr. Darby”), noted corrected visual acuity of 20/30 +2 in both eyes. Tr. at 368. He assessed new-onset trigeminal neuralgia and stable ocular migraine and regular astigmatism of both eyes. Tr. at 369. He prescribed new glasses. Id.

Plaintiff presented to Abbeville Area Medical Center on July 5, 2019, complaining of a knot at the base of her skull. Tr. at 382. A computed tomography (“CT”) scan showed reversal of the usual cervical lordosis and mild degenerative changes of the spine with anterior bridging osteophytes at ¶ 5-6 and C6-7, as well as mild right foraminal narrowing at ¶ 5-6 and C6-7. Tr. at 379. The attending physician noted the presence of a firm, movable subdermal nodule, but explained that the CT scan showed nothing of concern. Id. He advised Plaintiff to follow up with her primary care physician for a possible fine needle biopsy and provided a copy of the CT scan for Plaintiff to take to Dr. Holt. Id. Plaintiff's discharge diagnoses included trigeminal neuralgia, neck pain, and localized swelling, mass, and lump in the neck. Tr. at 378.

Plaintiff complained of electric shock-type pain on both sides of her face on July 24, 2019. Tr. at 413. She denied side effects from Trileptal, but indicated she had received no benefit from it. Id. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 413-14. He indicated it was important that Plaintiff undergo the MRI of her brain and head, as trigeminal neuralgia was a potential presenting symptom of multiple sclerosis. Tr. at 414. He increased Trileptal to 600 mg twice a day. Id.

On July 30, 2019, an MRI of Plaintiff's brain showed no evidence of acute infarct, hemorrhage, mass, or abnormal enhancement. Tr. at 394.

On August 12, 2019, Plaintiff endorsed continued facial pain and headaches with the increased dose of Trileptal. Tr. at 411. She complained of memory loss and numbness, tingling, and burning in her extremities. Id. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 41112. He recommended Plaintiff wean herself off Trileptal, prescribed Toradol 10 mg, and ordered a 70 mg injection of Aimovig. Tr. at 412.

On September 19, 2019, Plaintiff reported improved headaches on Aimovig, although she continued to experience occasional breakthrough headaches. Tr. at 409. She indicated she had successfully weaned herself from Trileptal. Id. She suspected some of her headaches were related to anxiety, but declined counseling. Id. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 409-10. He increased Plaintiff's Aimovig dose to 140 mg per month to address her breakthrough headaches. Tr. at 410.

Plaintiff reported mixed results from Aimovig on October 23, 2019. Tr. at 441. She indicated the medication sometimes helped her headaches and, at other times, triggered her migraines and facial pain. Id. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 441-42. He switched Plaintiff from Aimovig to Emgality 120 mg injections, provided Toradol for rescue therapy, and referred her for magnetic resonance angiography (“MRA”) to rule out an aneurysm. Tr. at 442. Plaintiff underwent an MRA of the brain on November 5, 2019, that was unremarkable. Tr. at 440.

Plaintiff reported she was no longer benefitting from Emgality on November 25, 2019. Tr. at 438. She indicated she had been taking left over Ativan at night and it had helped with anxiety. Id. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 438-39. He ordered another injection of Emgality, but indicated he would seek approval for Botox treatment. Tr. at 439. He prescribed Clonazepam and warned against taking it in combination with Ativan. Id.

Plaintiff presented to Kevin Broome, D.C. (“Dr. Broome”), for 41 chiropractic treatment visits between December 23, 2019, and March 2, 2021. Tr. at 448-55, 568-589. She reported a lack of improvement or increased symptoms during some visits, but many treatment notes reflect improved migraines and trigeminal neuralgia. Id.

On January 3, 2020, Dr. Holt noted Plaintiff had been approved for Botox treatment for migraines. Tr. at 436. He recorded normal findings on general and neurological exams. Tr. at 435-37. He prescribed Phenergan for migraine-related nausea and referred Plaintiff to a counselor in accordance with her requests. Id. Plaintiff underwent her first Botox injections without complications on January 27, 2020. Tr. at 434-35.

Plaintiff described ocular migraines that went “up her nerve to her vein” and a painful kaleidoscope in her vision on January 29, 2020. Tr. at 506. She indicated the visual disturbance was so bad that she could not drive. Id. Dr. Darby noted Plaintiff's best corrected visual acuity was 20/40+1 in her right eye and 20/30+ in her left eye. Id. He assessed new subjective visual disturbance and stable ocular migraines, trigeminal neuralgia, and regular astigmatism of both eyes. Tr. at 507. He referred Plaintiff to a neuro ophthalmologist. Tr. at 508.

On February 12, 2020, Plaintiff reported significant improvement in her headaches with Botox treatment, but requested treatment for anxiety prior to proceeding with additional Botox injections. Tr. at 432. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 432-33. He prescribed Ativan 1 mg for Plaintiff to take one hour prior to her next Botox treatment. Tr. at 433.

On March 11, 2020, state agency medical consultant William Hopkins, M.D. (“Dr. Hopkins”), reviewed the record and assessed Plaintiff's physical residual functional capacity (“RFC”) as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; and avoid concentrated exposure to extreme cold, extreme heat, humidity, noise, vibration, hazards, fumes, odors, dusts, gases, and poor ventilation. Tr. at 72-74, 85-87.

On April 13, 2020, state agency psychological consultant Debra C. Price, Ph.D., reviewed the record, considered evidence of anxiety, and found Plaintiff's mental impairment to be non-severe. Tr. at 70-71, 83-84. A second psychological consultant, M. Jane Yates, Ph.D., also assessed Plaintiff's anxiety as non-severe. Tr. at 101-03, 117-19.

Plaintiff underwent Botox injections on April 29, 2020. Tr. at 458-59. Dr. Holt noted that despite having taken Ativan prior to the procedure, Plaintiff continued to have some difficulty tolerating the injections, but instructed him to continue. Tr. at 459.

Plaintiff reported increased left-sided symptoms of trigeminal neuralgia and complained Botox was no longer helping her symptoms on May 29, 2020. Tr. at 456. She requested to undergo cyber knife radiation for treatment of intractable trigeminal neuralgia on the left. Id. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 456-57. He advised Plaintiff to discontinue Botox and referred her for evaluation for possible cyber knife radiation therapy. Tr. at 457. He prescribed Baclofen 10 mg three times a day. Id.

Plaintiff presented to neurosurgeon Ward C. Worthington, III, M.D. (“Dr. Worthington”), on June 17, 2020. Tr. at 468. She described bilateral ear pain that radiated into her bilateral jaws, up into her head, and throughout her face. Id. Dr. Worthington observed Plaintiff to be “very tearful and emotional.” Id. He recorded normal findings on exam. Tr. at 468-69. He assessed atypical facial pain and explained his assessment as follows:

On initial encounter there are many aspects of her syndrome which do not in my view clearly fit into a diagnosis of trigeminal neuralgia. This includes the bilaterality of her pain as well as lack of response to carbamazepine. She has many other symptoms and associations. We have no medical records on her so far. I have asked for her neurologist notes to be sent and an MRI that [has] been performed. I would like to discuss her case with him. But I am loath to suggest surgical intervention at this time as I'm not sure that [s]he is mainly bothered by trigeminal neuralgia. I may suggest an opinion of a[n] academic neurologist for her.

Tr. at 469.

Plaintiff complained of pain in the left side of her face and intermittent pain throughout her body on July 10, 2020. Tr. at 488. She endorsed some relief with Baclofen, but noted it made her feel drowsy. Id. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 488-89. He stated he had been unable to help Plaintiff with long-term pain control. Tr. at 489. He prescribed Lyrica 50 mg at night for facial pain, headaches, and body pain and referred Plaintiff to a neurologist at a university hospital based on Dr. Worthington's recommendation. Id.

On August 4, 2020, state agency medical consultant Stephen Burge, M.D. (“Dr. Burge”), reviewed the record and assessed the following physical RFC: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; and avoid concentrated exposure to extreme cold, extreme heat, noise, vibration, and hazards. Tr. at 104-06, 120-22.

Plaintiff presented to Dr. Darby with a complaint of decreased vision on August 20, 2020. Tr. at 503. She described a kaleidoscope in her vision that occurred once a week for approximately 30 minutes. Id. She stated this was associated with trigeminal neuralgia flares. Id. She continued to endorse mild ocular migraines. Id. Dr. Darby noted 20/60 vision in Plaintiff's right eye and 20/50-1 vision in her left eye. Tr. at 504. He assessed ocular migraine, history of trigeminal neuralgia, regular astigmatism of both eyes, and subjective visual disturbance and noted all four conditions were stable. Tr. at 505. He suspected Plaintiff's visual disturbance was related to trigeminal neuralgia and noted Plaintiff had plans to follow up with Dr. Holt and the neurology department at the Medical University of South Carolina (“MUSC”). Id.

On October 7, 2020, Plaintiff reported she had not yet seen a neurologist at MUSC and requested she be referred to a different university hospital. Tr. at 521. She described intermittent pain on the left side of her face that was somewhat improved by Lyrica and Baclofen. Id. She requested a higher dose of Lyrica. Id. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 521-22. He referred Plaintiff to the neurology department at Augusta University Medical Center (“AUMC”) for evaluation of intractable trigeminal neuralgia on the left and chronic headaches, increased Lyrica to 100 mg at night, and decreased Baclofen to 10 mg in the morning. Tr. at 522.

Plaintiff presented to neurosurgeon John R. Vender, M.D. (“Dr. Vender”), at AUMC for an evaluation on November 18, 2020. Tr. at 590. She described bilateral aching and left-sided facial pain with a tightness or pressure typically in the mid and upper face and sharp, shooting pain extending from the suboccipital area to the mid-convexity on the left. Id. She said she experienced this pain several times each day and it involved her face, gums, and teeth. Id. She reported she had been examined by her dentist, who had confirmed the source of the pain was not temporomandibular joint (“TMJ”) disorder or dental disease. Id. She stated Carbamazepine had initially been effective, but had produced side effects, and Neurontin had been ineffective. Id. She said Lyrica seemed to help the shooting pain and Baclofen seemed to help the aching pain. Tr. at 590-91. Dr. Vender noted normal findings on MRI and neurological exam, but indicated MRA confirmed “evidence of a large vessel loop impacting upon the superior portion of the cisternal trigeminal nerve adjacent to the dorsal root entry zone,” although there did not “appear to be a deflection or displacement of the nerve.” Tr. at 591. He stated: “Clinically she presents a very complex picture of possibly several overlapping pain syndromes.” Id. He found “her symptoms on the left that are sharp, severe, self-limited, lancinating in characteristic, and triggerable” were “highly consistent with trigeminal neuralgia.” Id. He felt the “aching deeper pressure type pain” could be related to tension-type headache or jaw claudication. Id. He discussed possible treatment with nerve block and ablation and recommended an evaluation for vasculitis, confirmation that Plaintiff did not have TMJ syndrome, a pain management evaluation, treatment for occipital neuralgia, and a possible trial of steroids. Id.

Plaintiff presented to neurologist Jerry N. Pruitt, M.D. (“Dr. Pruitt”), at AUMC on December 17, 2020. Tr. at 595. She reported having injured the left side of her face in a car accident in 2002. Id. She indicated she had developed sharp pain in her left ear in March 2019 that subsequently radiated to the left side of her face. Tr. at 595. She described her pain as an eight when severe and associated with stabbing and electrical episodes that waxed and waned. Id. She endorsed constant aching pain she rated as a six. Id. She indicated her symptoms were exacerbated by extreme temperatures, chewing crunchy foods, and light touch near her ear and were sometimes associated with tearing and redness of her left eye. Id. She stated her symptoms could last from several seconds to days. Id. She described three incidents in which she “lock[ed] in a fetal position for several minutes and fe[lt] confused afterwards,” as well as one recent episode in which “the right side of her tongue flipped for 8 minutes,” causing her not to be able to talk at the time. Tr. at 595-96. Dr. Pruitt noted Plaintiff had previously been prescribed Trileptal, Gabapentin, Lyrica, and Baclofen and had received Botox injections and acupuncture. Id. He recorded normal observations on physical and neurological exams. Tr. at 597. He wrote:

At this point her symptoms are most likely related to a combination of problems that need to be addressed separately. She has a psych/somatic component from [posttraumatic stress disorder] and [generalized anxiety disorder], probable TMJ dislocation with dental health issues as a possible parotid gland inflammation and duct obstruction. We will address the [trigeminal neuralgia] component before she has the other problems addressed.

Tr. at 598. He increased Lyrica to 100 mg twice a day. Id.

On January 13, 2021, Plaintiff reported the increased dose of Lyrica was controlling the vast majority of her headaches and facial pain and she was no longer taking Baclofen. Tr. at 519. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 519-20. He provided Plaintiff with two sample tablets of Nurtec 75 mg as rescue therapy to treat migraines. Tr. at 520.

Plaintiff presented with depression and anxiety on March 10, 2021. Tr. at 500. She indicated she continued to have severe and disabling trigeminal neuralgia. Tr. at 501. She endorsed unusual irritability after having run out of Pristiq over the prior weekend. Tr. at 500. She stated she no longer wanted to take antidepressant medication. Id. She indicated Lyrica helped her trigeminal neuralgia, but she grew tolerant of the medication and had to adjust it up to 150 mg three times a day. Id. She described passing out upon starting an increased dose of Lyrica or taking Baclofen, but indicated she remained conscious as she could still hear during these incidents. Id. She endorsed low energy, decreased ability to focus and sustain attention, variable mental acuity, and generally low motivation, although she sometimes had periods of up to an hour of frenzied, goal-directed activity. Id. She denied suicidal and homicidal ideations. Id. Theresa Bishop, M.D. (“Dr. Bishop”), noted depressed and anxious mood with non-congruent affect, but noted otherwise normal findings on exam. Tr. at 551. She discussed transcranial magnetic stimulation after Plaintiff indicated her desire to pursue non-medication options for treatment. Id. She stated Plaintiff had borderline personality traits and referred her to licensed independent social worker June Glenn for dialectical behavior therapy. Id. She continued Buspirone 15 mg twice a day. Tr. at 502.

Plaintiff followed up with Dr. Pruitt on June 16, 2021. Tr. at 559. She reported being in pain most of the time. Id. Dr. Pruitt continued Lyrica 150 mg three times a day, ordered lab studies, and increased Carbamazepine to 400 mg twice a day. Tr. at 561-62.

Plaintiff returned to Dr. Holt for a six-month follow up visit on July 14, 2021. Tr. at 517. She indicated the daily combination of 800 mg of Carbamazepine and 450 mg of Lyrica had worked well for a while, but had become less effective. Id. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 517-18. He instructed Plaintiff to continue Carbamazepine and Lyrica at the same doses and to add Nurtec every other day to try to prevent migraines. Tr. at 518.

Plaintiff followed up with Dr. Vender on July 16, 2021. Tr. at 563. He stated Plaintiff appeared to have a significant component of classic trigeminal neuralgia. Id. He indicated he had discussed with Plaintiff three invasive options, including microvascular decompression, percutaneous rhizotomy, and stereotactic radiosurgical rhizotomy using the gamma knife. Id. He noted Plaintiff was not interested in percutaneous rhizotomy, but did not know whether to proceed with microvascular decompression or the gamma knife procedure. Id. Plaintiff indicated she would further consider her options. Tr. at 564. She contacted Dr. Vender later the same day to inform him she had decided to proceed with the gamma knife radiostatic surgery. Tr. at 565. Dr. Vender performed the gamma knife procedure on August 9, 2021. Tr. at 536-37.

On October 20, 2021, Plaintiff reported she had benefitted well from the gamma knife procedure for approximately three weeks, but some of her pain had returned, although it was not as severe. Tr. at 515. She complained of pain throughout her entire body. Id. Dr. Holt recorded normal findings on general and neurological exams. Tr. at 515-16. He continued Plaintiff on Carbamazepine and increased Lyrica to 200 mg three times a day. Tr. at 515. He noted Plaintiff was “now complaining of pain throughout her body which is most likely fibromyalgia.” Id.

On December 15, 2021, Plaintiff reported her pain was under much better control for several weeks following the gamma knife procedure, but had subsequently returned. Tr. at 529. She indicated she was taking Carbamazepine 400 mg twice a day and Lyrica 200 mg three times a day with frequent breakthrough pain. Id. Plaintiff complained the increased dose of Lyrica had led to more cognitive problems, occasional slurring of her words, and word-finding problems. Tr. at 530. Dr. Pruitt noted Plaintiff's Lyrica dose had been increased in October, after she was diagnosed with fibromyalgia. Id. He stated Plaintiff was very tearful during the visit and had several “paroxysms of left facial pain” during the interview portion of the visit that lasted 10 to 15 seconds. Id. He advised Plaintiff of pain management options, and they discussed the likelihood that she was suffering from depression related to her chronic pain. Id. He ordered lab studies and prescribed Cymbalta 30 mg to be increased to 60 mg after four weeks. Tr. at 531.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

At the hearing, Plaintiff testified she was right-handed. Tr. at 46. She stated she lived with her boyfriend, who received benefits as a disabled veteran, and their seven children, ages 7 to 14. Tr. at 46, 47. She said she last worked at R&R Heating and Air on December 31, 2018. Tr. at 46. She explained she had subsequently attempted to start her own holistic healthcare business between January and March 2019, but closed it upon experiencing trigeminal neuralgia flares. Tr. at 47.

Plaintiff stated trigeminal neuralgia, chronic migraines, and fibromyalgia prevented her from engaging in full-time employment. Tr. at 48. She described “extremely painful” trigeminal neuralgia flares that felt “like a Taser on [her] face, or lightning strikes across [her] cheeks, [and] ice picks in [her] eyes.” Id. She said she also had “flares that are more constant pain” involving “burning or pressure.” Id. She indicated the pain was in her teeth, as well. Id. She said she experienced the flares daily at unpredictable times, although she tried to avoid known triggers such as cold, weather changes, brushing her teeth, brushing her hair, and stress. Tr. at 48-49. She testified she treated her symptoms with Lyrica, Carbamazepine, and Cymbalta, but continued to experience them daily. Tr. at 49. She noted the side effects of these medications included dizziness, blurred vision, difficulty finding words, and forgetfulness. Id.

Plaintiff testified she experienced migraines about once a week that usually lasted for about three days. Id. She said she sometimes treated the migraines with Nurtec when she had samples of the medication. Id. She indicated when she did not have Nurtec, she would “just lay in bed with the heating pad.” Tr. at 49-50. She said she had to rely on samples because her insurance would not cover Nurtec. Tr. at 50. She stated she had previously tried Aimovig, Emgality, Botox, and acupuncture to treat her migraines. Id. She indicated her first round of Botox injections had been helpful, but her second round appeared to worsen her symptoms. Tr. at 51. She said she stopped receiving Botox injections because the procedure was too painful. Id.

Plaintiff confirmed that she had undergone gamma knife radiation in August. Id. She admitted it had provided some improvement for a couple of weeks, but said the “electric shock flares” returned after a few weeks and the fire, pain, and constant pressure subsequently returned such that she was receiving no present benefit from the procedure. Id.

Plaintiff testified she experienced additional pain in her feet, hands, legs, and lower back. Tr. at 52. She said she experienced numbness, tingling, and weakness in her hands. Id. She stated her hands would “open by themselves,” causing her to drop items. Id. She explained numbness in her face and involuntary hand movements were a side effect of the medication she was taking for trigeminal neuralgia. Id. She indicated her other pain was caused by fibromyalgia. Id. She confirmed she had received trigger-point injections for her back pain a few years prior. Id. However, she stated they were not helpful. Tr. at 53. She said she had also used a TENS unit that failed to provide relief. Id. She denied taking pain medication, aside from the medication she took for facial pain. Id.

Plaintiff stated she could lift no more weight than a gallon of milk using both hands. Id. She estimated she could stand for “[m]aybe 15 minutes” because she developed pain in her feet that traveled up her legs and into her back. Tr. at 53-54. She said she could sit for 20 to 25 minutes because her pain “seem[ed] to settle” if she did not move. Tr. at 54. She said she could not sit still, alternated between getting up and lying down, and continued to feel uncomfortable while lying down. Id.

Plaintiff confirmed she had been treated by a mental healthcare provider the prior summer. Id. She said she was taking Cymbalta for trigeminal neuralgia and depression. Tr. at 55. She denied having had back or neck surgery. Id.

Plaintiff confirmed that she had cooked, done laundry, mopped, and cleaned the kitchen since 2019. Tr. at 55-56. She denied having washed dishes, folded clothes, swept, vacuumed, taken out the trash, cleaned the bathroom, or cleaned the living room over that period. Tr. at 56. She said her children and her boyfriend did the chores she did not perform. Id. She admitted she had a valid driver's license, but denied driving. Tr. at 56-57. She said she had traveled to Georgia to visit her specialist and to undergo the gamma knife procedure. Tr. at 57. She denied having traveled outside of South Carolina for any other reason. Id. She denied attending religious services and school activities, using Facebook, taking her children to medical appointments, and visiting friends and family. Tr. at 57-58. She admitted she texted, used email, and conducted research using the internet. Tr. at 57. She said she rarely visited stores. Tr. at 58. She indicated she talked and read with her children and assisted them with their homework. Id.

b. Vocational Expert Testimony

Vocational Expert (“VE”) Barbara Hudson Azzam reviewed the record and testified at the hearing. Tr. at 58-62. The VE categorized Plaintiff's PRW as an advertising manager, Dictionary of Occupational Titles (“DOT”) No. 164.117-010, requiring sedentary exertion and a specific vocational preparation (“SVP”) of 8 per the DOT and 5 as performed by Plaintiff. Tr. at 59-60. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift 20 pounds occasionally and 10 pounds frequently; stand for six hours in an eight-hour workday; walk for six hours in an eight-hour workday; sit for six hours in an eight-hour workday; frequently stoop, crouch, handle, and reach overhead; occasionally be exposed to temperature extremes, humidity, loud background noise, vibration, and hazards that included dangerous, moving machinery and unprotected heights; perform simple and detailed work with occasional decision making, frequent judgment, occasional changes in the work setting, and a reasoning level up to and including 3; and work on a sustained basis, eight hours a day, five days a week in two-hour increments with normal breaks over the course of an eighthour workday. Tr. at 60. The VE testified that the hypothetical individual would be unable to perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs the hypothetical person could perform. Id. The VE identified jobs at the light exertional level with an SVP of 2 as a product marker, DOT No. 209.587-034, a packager, DOT No. 559.687-074, and a mailroom clerk, DOT No. 209.687-026, with 500,000, 400,000, and 100,000 positions in the national economy. Tr. at 61. The VE confirmed that her testimony was consistent with the DOT and that any aspect of her testimony not specifically addressed in the DOT, particularly with respect to overhead reaching, was based on her training and experience. Id.

For a second hypothetical question, the ALJ asked the VE to consider the limitations identified in the first question but to further consider that the individual would be absent from the work area for periods at her own discretion on a daily basis, causing her to be off-task more than 20% of a workday. Tr. at 62. He asked if the additional restriction would affect the VE's response. Id. The VE testified it would preclude all work activity because most employers would consider the period of time off-task to be excessive. Id.

2. The ALJ's Findings

In his decision, the ALJ made the following findings of fact and conclusions of law:

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 31, 2018, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: trigeminal neuralgia; ocular migraines; and mild degenerative disc disease (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, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant is limited to occasional exposure to temperature extremes, humidity, noise, vibration, and hazards such as dangerous moving machinery and unprotected heights. The claimant can frequently stoop, crouch, reach overhead and handle. Due to pain secondary to ocular migraines and trigeminal neuralgia, the claimant can perform simple and detailed work with occasional decision-making, frequent judgment, and occasional changes in the work setting. Work is limited to a reasoning level up to and including three, which can be performed on a sustained basis for eight hours a day, five days a week, in two-hour increments with normal breaks.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on May 26, 1985 and was 33 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 (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, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from December 31, 2018, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. at 14-23.

II. Discussion

Plaintiff alleges the Commissioner erred for the following reasons:

1) the ALJ did not consider fibromyalgia and its effects in accordance with SSR 12-2p; and

2) the ALJ failed to properly evaluate Plaintiff's subjective allegations.

The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.

A. Legal Framework

1. The Commissioner's Determination-of-Disability Process 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). Section 423(d)(1)(A) defines disability 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 at least 12 consecutive months.

42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings;⁴ (4) whether such impairment prevents claimant from performing PRW;⁵ and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

4 The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).

5 In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).

A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

B. Analysis

1. Evaluation of Fibromyalgia and SSR 12-2p

Plaintiff argues the ALJ failed to follow SSR 12-2p in evaluating fibromyalgia. [ECF No. 11 at 25]. She claims the ALJ erred in finding fibromyalgia was not a medically-determinable impairment because she established the diagnosis through the second set of factors. Id. at 26-28. She maintains her other impairments were not among the impairments cited in SSR 12-2p “that may have symptoms or signs that are the same or similar to those resulting from [fibromyalgia].” [ECF No. 14 at 11]. She asserts the Commissioner and the ALJ ignored evidence that fibromyalgia was an established diagnosis prior to the relevant period. Id. She contends the ALJ's error in failing to assess fibromyalgia as a severe medically-determinable impairment was not remedied because he did not consider it at subsequent steps in the sequential evaluation process. Id. at 12-13.

The Commissioner argues substantial evidence supports the ALJ's finding that fibromyalgia was not a medically-determinable impairment. [ECF No. 13 at 18-21]. She maintains the ALJ correctly noted the record lacked evidence of 11 of 18 fibromyalgia tender points and indications that a doctor had excluded other impairments in assessing the diagnosis. Id. at 18. She notes the record “contains virtually no mention of fibromyalgia, let alone specific treatment for the condition.” Id. at 19. She asserts Dr. Holt assessed Plaintiff as “most likely” having fibromyalgia, which is not a definitive diagnosis, and that she had multiple confirmed impairments that could reasonably cause the same symptoms as those she asserts may be attributable to fibromyalgia. Id. at 19-20. She maintains that even if the ALJ erred in failing to assess fibromyalgia as a severe medically-determinable impairment, his error was inconsequential because he proceeded beyond step two in the evaluation process. Id. at 20.

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 v. Commissioner, Social Security Administration, 983 F.3d 83, 91 (4th Cir. 2020) (internal quotation marks and citation omitted). The Social Security Administration (“SSA”) issued SSR 12-2p to provide instruction to adjudicators evaluating fibromyalgia claims. SSR 12-2p, 2012 WL 3104869 (2012). If fibromyalgia is established as a medically-determinable impairment, the ALJ must consider it in the sequential evaluation process and “evaluate the intensity and persistence of the person's pain or any other symptoms and determine the extent to which the symptoms limit the person's capacity for work.” Id. at *5-*6. However, fibromyalgia must first be established as a medically-determinable impairment to be considered in the sequential evaluation process. Id. at *2-*3.

“Fibromyalgia ‘symptoms are entirely subjective' and ‘[t]here are no laboratory tests for the presence or severity of fibromyalgia.'” Arakas, 983 F.3d at 91 (quoting Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). However, like all other medically-determinable impairments, fibromyalgia “must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques” and “must be established by objective medical evidence from an acceptable medical source.” 20 C.F.R. §§ 404.1521, 416.921. The SSA will not accept a claimant's “statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s).” Id. An ALJ should not rely on a physician's diagnosis of fibromyalgia alone, but should review the evidence to determine if the claimant's medical history and physical examinations are consistent with the diagnosis and with the physician's statements regarding the claimant's physical strength and functional abilities. SSR 12-2p, 2012 WL 3104869, at *2.

Fibromyalgia may be confirmed through either the 1990 American College of Rheumatology (“ACR”) Criteria for the Classification of Fibromyalgia (“1990 Criteria”) or the 2010 ACR Preliminary Diagnostic Criteria (“2010 Criteria”). Id.

To meet the 1990 Criteria the claimant must show all three of the following:

1) A history of widespread pain-that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)-that has persisted (or that persisted) for at least 3 months. The pain may fluctuate in intensity and may not always be present.

2) At least 11 positive tender points on physical examination . . . The positive tender points must be found bilaterally (on the left and right sides of the body) and both above and below the waist . . .

3) Evidence that other disorders that could cause the symptoms or signs were excluded ....

2012 WL 3104869, at *2-*3.

To establish a diagnosis under the 2010 Criteria, the claimant must have a history of widespread pain; repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions; and evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded. Id. at *3. Fibromyalgia symptoms and signs that may be considered include muscle pain, irritable bowel syndrome, fatigue or tiredness, thinking or memory problems, muscle weakness, headaches, pain or cramps in the abdomen, numbness or tingling, dizziness, insomnia, depression, pain in the upper abdomen, nausea, nervousness, chest pain, blurred vision, fever, diarrhea, dry mouth, itching, wheezing, Raynaud's phenomenon, hives or welts, ringing in the ears, vomiting, heartburn, oral ulcers, loss of taste, change in taste, seizures, dry eyes, shortness of breath, loss of appetite, rash, sun sensitivity, hearing difficulties, easy bruising, hair loss, frequent urination, or bladder spasms. Id. at *3 n.9. Co-occurring conditions include irritable bowel syndrome, depression, anxiety disorder, chronic fatigue syndrome, irritable bladder syndrome, interstitial cystitis, TMJ disorder, gastroesophageal reflux disease, migraine, and restless leg syndrome. Id. at *3 n.10.

Fibromyalgia is often referred to as a “diagnosis by exclusion.” See Peeper v. Astrue, 418 Fed.Appx. 760, 763 (10th Cir. 2011) (quoting Preston v. Sec'y of Healty & Human Servs., 854 F.2d 815, 817-18 (6th Cir. 1998)). Accordingly, both the 1990 Criteria and the 2010 Criteria require evidence that other disorders that could cause the symptoms or signs were excluded. SSR 12-2p, 2012 WL 3104869, at *3. Although fibromyalgia cannot be confirmed by laboratory testing, it should only be definitively diagnosed after those impairments that produce similar symptoms and can be confirmed through laboratory testing and diagnostic imaging have been ruled out.

The ALJ considered evidence of fibromyalgia, writing:

The record contains a reference to a diagnosis of fibromyalgia (see Exhibit 19F). However, the record does not confirm that the claimant has the requisite number of tender point findings. The lack of specificity fails to satisfy the criteria necessary to find fibromyalgia a severe impairment. Moreover, there is no evidence that medical doctors have excluded other impairments as required in SSR 12-2p. Thus, this diagnosis does not comport with the requirements set forth in either 12-2p or 96-4p that requires that an “impairment” must result from anatomical, physiological or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Consequently, I find that this impairment does not meet the requirements set forth by the Social Security Administration needed for the determination that fibromyalgia is a medically determinable impairment.

Tr. at 18.

Plaintiff concedes the ALJ correctly concluded the evidence did not establish a medically-determinable impairment of fibromyalgia based on the 1990 Criteria, but argues she meets all three criteria to establish fibromyalgia as a medically-determinable impairment under the 2010 Criteria. [ECF No. 11 at 26-28]. The ALJ did not specifically address the first and second of the 2010 Criteria, but found there was no evidence that other disorders that could cause repeated manifestations of symptoms, signs, or cooccurring conditions had been excluded. See Tr. at 18. Assuming arguendo that Plaintiff has a history of widespread pain and repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions, substantial evidence would still support the ALJ's conclusion that the evidence did not establish fibromyalgia as a medically-determinable impairment if he correctly concluded that the evidence did not show Plaintiff's medical providers had excluded other impairments in assessing the diagnosis.

Plaintiff argues “it is only reasonable” for the court to infer that other conditions were excluded prior to assessing a diagnosis of fibromyalgia “[s]ince objective evidence did not support that [her] complaints were supported by her other impairments.” [ECF No. 11 at 27]. The undersigned declines to make such an inference.

“[I]t is common in cases involving [fibromyalgia] to find evidence of examinations and testing that rule out other disorders that could account for the person's symptoms and signs.” SSR 12-2p, 2012 WL 3104869, at *3. “Some examples of other disorders that may have symptoms or signs that are the same or similar to those resulting from fibromyalgia include rheumatologic disorders, myofascial pain syndrome, polymyalgia rheumatica, chronic Lyme disease, and cervical hyperextension-associated or hyperflexion-associated disorders.” Id. at *3 n.7. Relevant testing “may include imaging and other laboratory tests (for example, complete blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatic factor).” Id. at *3. The record contains x-rays, a CT scan, MRIs, an MRA, and complete blood count testing. Tr. at 338, 340, 352, 385, 391, 394, 440, 531-32, 550, 562. It does not include any additional laboratory tests, which would presumably be required to effectively rule out other disorders that could account for Plaintiff's symptoms and signs, or any indication that the example disorders with similar signs and symptoms were ruled out. Therefore, the evidence before the court supports the ALJ's conclusion that other impairments consistent with Plaintiff's symptoms had not been excluded prior to diagnosing fibromyalgia.

Plaintiff invites the court to find the absence of evidence that other impairments were ruled out in diagnosing fibromyalgia may be explained by the fact that the diagnosis was established prior to her alleged disability onset date. [ECF No. 11 at 27]. She directs the court to prior decisions in Pearson v. Commissioner of Social Security Administration, C/A No. 1:16-2726-PMD-SVH, 2017 WL 1378197, at *16-17 (D.S.C. Mar. 29, 2017), adopted by 2017 WL 1364220 (Apr. 14, 2017), and Strickland v. Berryhill, C/A No. 7:16-252-FL, 2017 WL 3910436, at *6 (E.D. N.C. Aug. 21, 2017), adopted by 2017 WL 3908675 (Sept. 6, 2017). She references Dr. Holt's indication that her full body symptoms were “most likely” attributable to fibromyalgia and references to fibromyalgia as a historical diagnosis in Exhibit 19F. See ECF No. 11 at 27 (referencing Tr. at 43).

The undersigned's review of the record reveals references to fibromyalgia as a historical diagnosis in December 2020 and June, August, and September 2021 records from AUMC. See Tr. at 529, 534, 553, 595. Dr. Holt's records also include fibromyalgia on a problem list beginning in July 2020. See Tr. at 488, 515, 517, 519, 521. However, despite the fact that Dr. Holt treated Plaintiff throughout the relevant period and had previously treated her in October 2017, his treatment notes prior to July 2020 do not include fibromyalgia on a problem list or any mention of fibromyalgia as an established diagnosis. See Tr at 409, 411, 413, 415, 432, 436, 438, 441, 456, 458. This distinguishes Dr. Holt's records in the instant case from those the court in Pearson found to suggest fibromyalgia was an established diagnosis prior to the relevant period. See Pearson, 2017 WL 1378197, at *16 (“In his July 15, 2013 statement, Dr. Dbouk indicated he had treated Plaintiff since 2005 The earliest records from Dr. Dbouk [within the period requested by the Social Security Administration] indicate that fibromyalgia was an established diagnosis by early 2012 .... Therefore, it is possible that Dr. Dbouk ruled out other potential diagnoses prior to the earliest date covered by the medical records request.”).

Furthermore, notes from Plaintiff's presentations to other providers fail to document fibromyalgia as a historical diagnosis. See Tr. at 330-31 (failing to indicate “fibromyalgia” on a February 25, 2019 diagnosis list from Palmetto Physical Medicine), 367 (including no reference to fibromyalgia in past medical history portion of Dr. Darby's June 27, 2019 record), 382 (not showing fibromyalgia on a problem list associated with a July 5, 2019 ER visit), 426 (neglecting to include fibromyalgia among major complaints and diagnoses on patient intake form dated August 8, 2018), 448 (not including fibromyalgia among diagnoses and complaints upon initial presentation to Dr. Broome on December 23, 2019), 468 (not showing fibromyalgia among past medical history in Dr. Worthington's June 17, 2020 evaluation note), 499-500 (containing no mention of fibromyalgia on problem list or past medical history in Dr. Bishop's March 10, 2021 treatment note).

The lack of evidence as to how the diagnosis was established further weakens Plaintiff's argument that fibromyalgia was diagnosed prior to the relevant period. In Strickland, the court relied on Plaintiff's hearing testimony to conclude evidence that presumably established fibromyalgia as a medically-determinable impairment was not developed as part of the record. Strickland, 2017 WL 3910436, at *6 (“Claimant's counsel advised the ALJ that Claimant was being treated for fibromyalgia at the time of her alleged onset date in August 2008, and Claimant testified at the administrative hearing that her problems started with fibromyalgia and her primary care provider sent her to Chapel Hill where she was diagnosed with fibromyalgia, ‘looking at all the points' .... This evidence, from which it can be reasonably inferred that Dr. Franco sent Claimant to a specialist who diagnosed her with fibromyalgia in 2008, after administering a tender-points test, may be highly probative of whether the 1990 Criteria were met.”). Review of the record reveals no similar evidence in this case.

In light of the foregoing, the undersigned recommends the court find the ALJ complied with SSR 12-2p and did not err in concluding the evidence failed to establish fibromyalgia as a medically-determinable impairment.

2. Subjective Allegations

Plaintiff argues the ALJ did not explain how the evidence failed to support her subjective allegations. [ECF No. 11 at 23]. She maintains the ALJ's citation of a mix of positive and negative findings does not show that he resolved the conflicting evidence. Id. at 23-25. She asserts the ALJ erroneously discredited her allegations based on an absence of objective evidence of pain. Id. at 24. She points out that the absence of confirmation through diagnostic testing does not undermine her allegations of pain related to trigeminal neuralgia. [ECF No. 14 at 3]. She maintains that she continued to experience pain from her other impairments even though her migraine-related pain was reduced by medications at times. Id. at 4. She contends the ALJ unreasonably relied on “sporadic notations of stability with medications.” Id. at 4-5. She notes the ALJ discussed her ADLs in the context of addressing the severity of her mental impairments, but did not reject her pain complaints based on her ADLs. Id. at 5. She claims the Commissioner improperly relies on the state agency consultants' opinions to support the ALJ's rejection of her allegations because the ALJ found the record supported greater limitations than those opined to by the consultants. Id. at 6. She contends the ALJ's analysis is flawed because his citation of positive and negative findings lacks explanation for why he picked “one side of the evidence over the other.” Id. at 8.

The Commissioner argues substantial evidence supports the ALJ's conclusion that Plaintiff's allegations were not entirely consistent with the medical and other evidence. [ECF No. 13 at 11]. She maintains the ALJ explained that Plaintiff's allegations of disabling mental symptoms and limitations were not supported by the evidence. Id. at 11. She contends the ALJ explained that diagnostic testing revealed no acute findings, objective testing was unremarkable, and the medical providers noted normal findings. Id. at 12. She notes the ALJ considered Plaintiff's reports to her providers that her treatment was partially effective and her symptoms were somewhat relieved with medication. Id. at 12-13. She claims the ALJ's conclusion was further supported by his discussion of Plaintiffs ADLs. Id. at 13-14. She asserts the ALJ relied on the state agency consultants' opinions in declining to accept all of Plaintiff's allegations. Id. at 14. However, she maintains the ALJ included multiple restrictions in the RFC assessment based on Plaintiff's subjective allegations. Id. at 14-15. She argues the ALJ's reference to positive and negative findings shows that he did not cherry-pick the evidence and fulfilled his duty to resolve the conflicting evidence and provide a logical bridge connecting the evidence and his conclusion. Id. at 15. She claims the ALJ did not err in noting objective findings and testing were unremarkable because a lack of supporting objective medical evidence is among the relevant considerations in evaluating a claimant's subjective allegations. Id. at 16. She notes the ALJ did not rely on the lack of objective medical findings alone to support his conclusion. Id.

“Under the regulations implementing the Social Security Act, an ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. § 404.1529(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)). After concluding the impairment could reasonably produce the symptoms the claimant alleges, the ALJ proceeds to the second step, which requires him 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.” Id. (citing 20 C.F.R. § 404.1529(c)).

An ALJ “improperly increase[s]” the claimant's “burden of proof” where he requires the subjective description of symptoms to be verified by objective medical evidence. Lewis, 858 F.3d at 866. Thus, if an ALJ concludes a claimant has severe impairments that could reasonably cause the symptoms she alleges, he cannot reject the functional limitations the claimant alleges simply because there are not enough clinical signs and laboratory findings to corroborate her allegations.

This does not mean an ALJ is required to accept every representation a claimant makes regarding the intensity, persistence, and limiting effects of any symptom that could reasonably result from her medically-determinable impairments. Instead, the ALJ must consider “whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence, including [the claimant's] history, the signs and laboratory findings, and statements by [the claimant's] medical sources or other persons about how [her] symptoms affect [her].” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). The ALJ should examine “statements from the individual, medical sources, and any other sources that might have information about the claimant's symptoms, including agency personnel, as well as the factors set forth in [the] regulations.” SSR 16-3p, 2017 WL 5180304, at *6. These factors include: (1) the claimant's ADLs; (2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms; (3) any precipitating or aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms; (6) any measures the claimant uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (7) other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

The ALJ must explain which of the claimant's alleged symptoms he found “consistent or inconsistent with the evidence in [the] record and how [his] evaluation of the individual's symptoms led to [his] conclusions.” SSR 16-3p, 2017 WL 5180304, at *8. He is required to include a narrative discussion explaining the restrictions included in the RFC assessment and referencing specific medical facts, such as medical signs and laboratory evidence, and non-medical evidence, including ADLs and observations. SSR 96-8p, 1996 WL 374184, at *7. However, the ALJ cannot cherry-pick the record by referencing only the evidence that supports his conclusions and ignoring the evidence to the contrary. See Lewis, 858 F.3d at 869 (providing an “ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of nondisability while ignoring evidence that points to a disability finding”) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). He “must explain how any material inconsistencies or ambiguities in the case record were considered and resolved.” 96-8p, 1996 WL 374184, at *7. “Courts have interpreted the explanation requirement as imposing a duty on the ALJ to “build an accurate and logical bridge” between the evidence and the conclusions as to the intensity, persistence, and limiting effects of the claimant's symptoms. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Afpel, 277 F.3d 863, 872 (7th Cir. 2000)).

The ALJ acknowledged Plaintiff's allegations that “her ability to work is primarily limited by flares of neuralgia pain, fibromyalgia, and chronic migraines”; her medications caused side effects of “blurred vision and forgetfulness”; she experienced severe facial pain daily, “about one headache a week that last[ed]] up to three days,” “widespread pain” in her feet, hands, legs and lower back,” and “numbness in her hands that cause[d] her to drop things”; she could “lift about a gallon of milk with both hands”, “stand for about 15 minutes and sit for about 25 minutes at a time”; and had “recently sought treatment for depression and anxiety.” Tr. at 17. He found Plaintiff's medically-determinable impairments “could reasonably be expected to cause the alleged symptoms,” but her “statements concerning the intensity, persistence and limiting effects of these symptoms” were “not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in th[e] decision.” Id.

The ALJ appropriately declined to consider Plaintiff's subjective allegations as to pain and other symptoms that were not related to medically-determinable impairments. See SSR 96-8p, 1996 WL 374184, at *2 (“It is incorrect to find that an individual has limitations or restrictions beyond those caused by his or her medical impairment(s) including any related symptoms, such as pain ....”) (emphasis in original)). He concluded the evidence did not establish remote traumatic brain injury, endometriosis, or fibromyalgia as medically-determinable impairments.⁶Tr. at 17-18. Although Plaintiff alleged fibromyalgia caused her to experience chronic widespread soft-tissue pain throughout her body, muscle weakness, fatigue, and sleep disturbances, the ALJ was not required to address these allegations because the evidence did not establish fibromyalgia as a medically-determinable impairment.

6 Plaintiff concedes in her reply brief that the ALJ was not required to consider fibromyalgia in assessing her RFC if it was not a medically-determinable impairment. [ECF No. 14 at 13].

The ALJ appropriately considered whether Plaintiff's statements conflicted with statements of her medical sources and the signs and laboratory findings in accordance with 20 C.F.R. § 404.1529(c) and 416.929(c). He referenced x-rays that “reveal[ed] spondylotic changes in the thoracic spine, a compression fracture of T12/L1, and slight levoscoliosis” and a CT scan of the cervical spine that “revealed mild degenerative changes and mild neural foraminal narrowing at ¶ 5-6 and C6-7. Tr. at 19. He pointed to consistent observations on neurological exams of motor strength that was “5/5 throughout with no drift of the upper extremities or extraneous movements,” intact sensation, normal coordination, and normal standard and tandem gait. Tr. at 19, 20, 21 He noted an MRI and MRA of the brain were normal. Tr. at 20. He referenced Dr. Worthington's exam that was “fairly unremarkable with full ranges of motion, normal cognition, normal gait, normal reflexes and normal motor strength.” Id. He wrote: “Consistent with prior exams, Dr. Vender's evaluation found the claimant to have no focal motor or sensory deficits, no clubbing or edema, and no acute distress (Exhibit 19F).” Id. He noted Dr. Worthington's indication that “many aspects” of Plaintiff's subjective complaints “d[id] not fit into a diagnosis of trigeminal neuralgia.” Id. However, he acknowledged that Dr. Vender found Plaintiff's symptoms were “highly suggestive of trigeminal neuralgia.” Id. He weighed this conflicting evidence in favor of Dr. Vender's opinion, as he assessed trigeminal neuralgia as a severe impairment. See Tr. at 14. His discussion reflects a thorough review, as he did not cherry-pick the evidence and cited both positive and negative findings.

Plaintiff is correct that some of the unremarkable exam findings were not inconsistent with her complaints of pain related to trigeminal neuralgia or migraines. However, the ALJ found mild degenerative disc disease (“DDD”) to be among Plaintiff's severe impairments. See Tr. at 14. Evidence he cited as to gait, strength, and range of motion were relevant to his assessment of the functional limitations imposed by DDD.

The ALJ explained that the objective exams “support[ed] the RFC findings of the State agency consultants,” whose opinions he found “partially persuasive” as “based on a review of the medical record and supported by a detailed rationale.” Tr. at 21. He accepted their opinions that Plaintiff would be limited to light work with environmental limitations, but imposed “postural and manipulative restrictions to account for [Plaintiff's] degenerative disc disease.” Id. However, the ALJ did not reject Plaintiff's statements based on the objective exam findings alone. He considered the other factors in 20 C.F.R. § 404.1529(c), 20 C.F.R. § 416.929(c), and SSR 163p in evaluating Plaintiff's statements and assessing the RFC.

The ALJ addressed Plaintiff's statements to her providers regarding the location, duration, frequency, and intensity of her pain in accordance with 20 C.F.R. § 404.1529(c), 20 C.F.R. § 416.929(c), and SSR 16-3p. He noted that in February 2019, Plaintiff reported “four or more moderate to severe headaches a month.” Tr. at 19. He acknowledged Plaintiff's June and July 2019 complaints of “migraines and shock-like pain in the left side of the face.” Id. He stated Plaintiff “reported additional symptoms of numbness and tingling in the extremities in addition to memory loss” on August 12, 2019, but “this was not appreciated on her neurological exam.” Tr. at 20. He pointed out that Plaintiff described her ocular migraines as “mild” in June 2019 and January 2020. Id. Again, the ALJ did not cherry-pick the record and cited both the statements that supported Plaintiff's allegations and those that indicated lesser restrictions.

The ALJ considered the type, dosage, effectiveness and side effects of Plaintiff's medications and other treatment she received to address symptoms of her medically-determinable impairments in accordance with 20 C.F.R. § 404.1529(c), 20 C.F.R. § 416.929(c), and SSR 16-3p. He cited impressions that Plaintiff's symptoms improved while she was receiving chiropractic treatment from Dr. Broome. Tr. at 20. He referenced Plaintiff's report of improvement in her headaches following Botox injections in February 2020. Id. However, he acknowledged that Plaintiff “indicated [in May 2020 that] her Botox interjections were not helping anymore and she was referred for possible CyberKnife radiation.” Id. He noted Plaintiff's Lyrica dose was increased on January 13, 2021, and it “was noted to be controlling the vast majority of her headaches and facial pain.” Id. He wrote: “This increase in Lyrica was noted to work well until July of 2021, when the claimant reported an increase in symptoms. However it was noted that a sample of Nurtec helped with her headaches temporarily (Exhibit 17F).” Id. He recognized that Plaintiff underwent “Gamma knife treatment” in August 2021 and “reported several weeks of improvement; however, by December 15, 2021, her pain had returned (Exhibit 19F).” Id. The ALJ did not cherry-pick the record, as he cited evidence as to periods of effective treatment, as well as indications of symptom exacerbation and changes in treatment.

Although Plaintiff argues the ALJ only considered her ADLs in evaluating the severity of her mental impairments, this is not correct, as he considered her ADLs in the context of explaining the RFC assessment and after having acknowledged her allegations. The ALJ indicated: “neurology records regularly note that the claimant's memory is 3/3 immediate a[nd] 3/3 after a five-minute-delay,” “[h]er fund of knowledge is normal,” and she “has normal language and attention.” Tr. at 18. He recognized Plaintiff's report that she could follow instructions “somewhat,” but noted she claimed the problem was “with her eyes skipping words” and “indicated that she can help her children with schoolwork (Exhibit 3E).” Id. He stated Plaintiff had not alleged difficulties interacting with others, had “neat and clean” grooming, and had intact insight and judgment. Id. This evidence of Plaintiff's ADLs and observations as to her mental status supports the ALJ's conclusion that Plaintiff's pain and other symptoms were not as distracting and otherwise limiting as she alleged.

The ALJ thoroughly considered Plaintiff's statements and provided a rational explanation for accounting for some in the RFC assessment and rejecting others, based on all the relevant evidence. He specifically noted he included restrictions in addition to those supported by the objective evidence and opinions based on Plaintiff's statements. See Tr. at 19. He wrote:

In terms of her degenerative disc disease and the pain caused by her trigeminal neuralgia and ocular migraines, I have limited the claimant to less than a full range of light work with additional postural restrictions. In light of her testimony regarding hand pain and evidence of mild degenerative disc disease in the cervical spine, I have also limited her to frequent overhead reaching and handling. Finally, I have accounted for her complaints of facial pain related to trigeminal neuralgia and ocular migraines by limiting her exposure to environmental irritants in addition to imposing nonexertional limitations. For instance, due to pain secondary to ocular migraines and trigeminal neuralgia, the claimant can perform simple and detailed work with occasional decision-making, frequent judgment, and occasional changes in the work setting. Work is limited to a reasoning level up to and including three, which can be performed on a sustained basis for eight hours a day, five days a week, in two-hour increments with normal breaks.

However, these limitations are primarily based on the claimant's subjective reports as abnormal objective findings are limited. Over the course of treatment, the claimant has tried many medications and procedures in an effort to alleviate her pain; however, these only provided temporary relief. However, as discussed below, the claimant characterizes her migraines as mild and records indicate symptoms are somewhat relieved with medication. While she continues to report facial pain related [to] trigeminal neuralgia, objective findings and testing are

unremarkable. Accordingly, I do not find support for imposi[ng] additional RFC limitations.

Tr. at 19.

Viewed in isolation, the ALJ's statement that “objective findings and testing [were] unremarkable,” despite Plaintiff's reports of facial pain appears to suggest he considered only the objective evidence in evaluating Plaintiff's statements as to the intensity, persistence, and limiting effects of fibromyalgia, but the court does not view statements in isolation. As discussed above, the ALJ considered the relevant evidence in evaluating Plaintiff's statements and imposed additional restrictions in the RFC assessment to account for pain imposed by trigeminal neuralgia. See Tr. at 18-20. He found the evidence considered in combination, which included Plaintiff's statements throughout the record, her medical providers' impressions, objective testing and exam findings, and her ADLs, did not support “disabling functional limitations.” Tr. at 20.

In light of the foregoing, the undersigned recommends the court find the ALJ evaluated the intensity, persistence, and limiting effects of Plaintiff's pain and other symptoms in accordance with 20 C.F.R. § 404.1529, 20 C.F.R. § 416.929, and SSR 16-3p. His decision reflects his thorough consideration of all the evidence relevant to this inquiry, and he adequately explained how he accounted for Plaintiff's alleged symptoms to the extent they were not inconsistent with the other evidence of record.

III. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether his decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

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

901 Richland Street

Columbia, South Carolina 29201

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).