Opinion
C. A. 1:22-127-JD-SVH
06-15-2022
Barbara S.,[1] Plaintiff, v. Kilolo Kijakazi,[2] Acting Commissioner of Social Security Administration, Defendant.
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 the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On August 22, 2019, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on November 1, 2018. Tr. at 15, 71, 72, 191-94. Her applications were denied initially and upon reconsideration. Tr. at 102-05, 110-16. On April 7, 2021, Plaintiff had a hearing by telephone before Administrative Law Judge (“ALJ”) Carl Watson. Tr. at 29-48 (Hr'g Tr.). The ALJ issued an unfavorable decision on June 3, 2021, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 12-28. 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 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on January 14, 2022. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 55 years old at the time of the hearing. Tr. at 32. She completed high school and two-and-a-half years of college. Id. Her past relevant work (“PRW”) was as a substitute teacher, a receptionist, a credit clerk, a home attendant, and a switchboard operator. Tr. at 45. She alleges she has been unable to work since November 1, 2018. Tr. at 191.
2. Medical History
Plaintiff presented to Michael R. Smith, M.D. (“Dr. Smith”), for lumbar back pain on November 16, 2018. Tr. at 398. She reported the pain had worsened over the prior few weeks and was radiating to her right lower extremity. Id. She requested refills of Amlodipine and Hydrochlorothiazide for hypertension and Ambien for sleep. Id. Dr. Smith noted paraspinal muscle spasm in the lumbar region, tenderness to palpation (“TTP”) over the bilateral lower lumbar region, decreased bending/anterior flexion of the lower back secondary to pain, and negative straight-leg raising test bilaterally. Tr. at 399. He assessed muscle spasm, back pain, primary insomnia, and hypertension. Id. He refilled Ambien, Amlodipine, and Hydrochlorothiazide and prescribed Zanaflex 4 mg for muscle spasms and Prednisone 10 mg and Norco 5-325 mg for back pain. Id.
On June 3, 2019, Plaintiff reported nightly use of Ambien had improved her sleep such that she was sleeping for six to eight hours per night. Tr. at 350. She indicated her hypertension was controlled with Amlodipine and Hydrochlorothiazide. Id. She endorsed a history of fibromyalgia, characterized by aches and pains throughout her body, and indicated she was taking no medication other than nonsteroidal anti-inflammatory drugs (“NSAIDs”). Id. She complained that her ears felt clogged. Id. Dr. Smith assessed insomnia, hypertension, fibromyalgia, and cerumen impaction of the bilateral ears. Tr. at 351. He cleaned Plaintiff's ears, prescribed Cymbalta, and refilled Zolpidem, Amlodipine, and Hydrochlorothiazide. Id.
On July 17, 2019, Plaintiff complained of nausea as a side effect of Cymbalta. Tr. at 348. She noted her insurance would not cover Savella and she was unable to pay for it out of pocket. Id. She endorsed moderate-to-severe pain in the large muscle groups of her upper and lower extremities, and Dr. Smith noted TTP in those areas. Id. Dr. Smith prescribed Lyrica and referred Plaintiff to a rheumatologist. Tr. at 349.
Plaintiff presented to rheumatologist Carlysle Barfield, M.D. (“Dr. Barfield”), for an examination on August 23, 2019. Tr. at 361-63. She described a six-month history of generalized pain throughout her body, a two-year history of poor sleep, and a six- to 12-month history of fatigue. Tr. at 361. She denied restless legs and endorsed snoring. Id. Dr. Barfield observed Plaintiff to demonstrate TTP in nearly all points throughout her torso and extremities. Id. He noted marked crepitation of Plaintiff's bilateral knees. Id. He assessed probable polymyalgia rheumatic and prescribed Prednisone. Id.
Plaintiff reported no change in her pain and ongoing sleep disturbance and fatigue on September 9, 2019. Tr. at 359. She indicated she had reduced, but had not completely eliminated, caffeine consumption. Id. Dr. Barfield indicated a likely diagnosis of fibromyalgia. Id. He prescribed Lyrica and instructed Plaintiff to taper down and discontinue Prednisone. Id.
Plaintiff underwent a bone mineral density study on September 16, 2019, that produced normal results. Tr. at 355-56.
On October 21, 2019, Plaintiff complained of poor sleep, fatigue, and generalized pain. Tr. at 368. She reported a two-week history of headaches that occurred upon waking each morning and prior to bedtime each night. Id. She said she had been unable to obtain Lyrica due to financial constraints, but noted her pain had not increased since she discontinued Prednisone. Id. Dr. Barfield prescribed Gabapentin and instructed Plaintiff to increase it from 300 mg three times a day to 900 mg three times a day over a three-week period. Id. He ordered a sleep study. Id.
On October 29, 2019, Plaintiff informed Dr. Smith that she continued to realize good results from Ambien, as she slept from eight to 10 hours each night. Tr. at 390. She indicated her hypertension was well-controlled with use of Hydrochlorothiazide and Amlodipine. Id. Dr. Smith assessed hypertension and insomnia and refilled Hydrochlorothiazide, Amlodipine, and Zolpidem. Tr. at 391.
Plaintiff complained of poor sleep, fatigue, and generalized pain on December 2, 2019. Tr. at 367. She noted she was taking Gabapentin 600 mg twice a day, but could not take the 900 mg dose because it caused sedation. Id. Dr. Barfield instructed Plaintiff to take Gabapentin 600 mg twice a day and 900 mg at bedtime and noted her sleep study remained pending. Id.
On December 30, 2019, Plaintiff underwent a sleep study that showed severe obstructive sleep apnea (“OSA”) with nocturnal hypoxemia and sleep maintenance insomnia. Tr. at 424-30.
Plaintiff presented to Kerri Kolehma, M.D. (“Dr. Kolehma”), for a physical consultative exam on January 13, 2020. Tr. at 375-80. She described an onset of fibromyalgia-related symptoms, including pain, fatigue, and insomnia, that had begun two years prior. Tr. at 375. She stated she experienced constant pain in her neck and back on some days, in her shoulders and arms on other days, and throughout her body on some days. Id. She described waking during the night, using the bathroom, and being unable to go back to sleep. Id. She indicated she sometimes woke with severe pain and stiffness. Id.
Plaintiff said her current medication regimen included Gabapentin, which eased her pain a little, and Ambien for sleep on rare occasions. Id. She noted Cymbalta had been ineffective and she had been unable to afford Lyrica. Id. She endorsed bilateral knee pain that was slightly worse on the left, but indicated it differed from her fibromyalgia-related pain. Id. She said her hypertension was well-controlled by medication. Id. She reported a history of bilateral carpal tunnel release in 2014 that had effectively treated her symptoms at the time, but noted intermittent tingling in her bilateral hands over the prior year. Tr. at 375-76.
Plaintiff admitted she had discontinued her work as a substitute teacher more than a year earlier to take care of her father prior to his death. Tr. at 376. She stated she had been unable to return to work after her father passed away because of her pain. Id.
Plaintiff estimated she could sit for 15 to 30 minutes, stand and walk for five to 10 minutes without support, and walk for a slightly longer period if she could lean on a shopping cart. Id. She said she could ascend and descend stairs with use of a railing for support. Id. She stated she was mostly independent with activities of daily living (“ADLs”), but required occasional assistance in washing and styling her hair. Id. She said she continued to drive. Id.
Dr. Kolehma indicated Plaintiff was 5' tall and weighed 226 pounds, consistent with extreme obesity. Tr. at 377. She noted Plaintiff had demonstrated no difficulty using her hands to fill out paperwork. Id. She observed Plaintiff to walk with a waddling gait secondary to her body habitus, but indicated her gait was otherwise normal and she did not use an assistive device for ambulation. Id. She noted Plaintiff's normal ability to perform tandem, heel, and toe walking. Id. She recorded right knee flexion to 100 degrees with crepitus present throughout range of motion (“ROM”) testing. Id. She noted left knee flexion to 115 degrees. Id. She observed decreased bilateral hip motion due to Plaintiff's body habitus. Id. She indicated Plaintiff had bilateral shoulder abduction and forward elevation to 120 degrees that was limited due to pain and tenderness in the upper trapezius muscle. Id. She noted TTP over Plaintiff's bilateral biceps, upper trapezii, thoracic and lumbar paraspinals, calf muscles, and thighs. Id. She observed Plaintiff to have normal fine and gross manipulation, normal hand joints, 5/5 grip strength, 5/5 pincer strength, and negative Tinel's and Phalen's tests. Id. She documented increased lumbar lordosis and protuberant abdomen. Id. She noted positive trigger points in Plaintiff's bilateral upper trapezii. Id. She recorded lumbar flexion to 70 degrees, extension to 15 degrees, and lateral flexion to 20 degrees. Tr. at 378. Dr. Kolehma assessed fibromyalgia, knee arthritis, osteoporosis, hypertension, and a history of carpal tunnel release. Id. She noted her observation of multiple tender points was consistent with Plaintiff's fibromyalgia diagnosis. Id. She further noted Plaintiff demonstrated extreme obesity and would benefit from weight loss to decrease pressure on her joints. Id. She indicated Plaintiff should do no kneeling, squatting, or crawling. Id.
On January 16, 2020, state agency psychological consultant Craig Horn, Ph.D., reviewed the record and completed a psychiatric review technique. Tr. at 52-53, 63-64. He considered Listing 12.04 for depressive, bipolar, and related disorders, but found Plaintiff had no severe mental impairment. Id.
On February 18, 2020, x-rays of Plaintiff's right knee revealed mild osteoarthritis and moderate osteophytes. Tr. at 382-83. It showed two potential loose bodies in the posterior joint space, measuring 14 mm and 15 mm, and indicated magnetic resonance imaging (“MRI”) might be helpful to further assessment. Id.
On February 19, 2020, state agency medical consultant Joseph Kmonicek, M.D., 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; frequently balance and stoop; occasionally kneel, crouch, crawl, and climb ramps and stairs; and never climb ladders, ropes, or scaffolds. Tr. at 54-56, 65-67. A second state agency medical consultant, Hurley W. Knott, M.D., assessed the same physical RFC on October 13, 2020. Compare Tr. at 54-56 and 65-67, with Tr. at 82-84 and 95-97.
Plaintiff complained of generalized pain, poor sleep, and fatigue on March 3, 2020. Tr. at 366. Dr. Barfield continued Gabapentin 600 mg twice a day and 900 mg at bedtime. Id.
On April 2, 2020, Plaintiff complained of fibromyalgia-related pain in the large muscle groups of her back and upper and lower body that was unrelieved by NSAIDs. Tr. at 386. She reported sleeping for three to four hours per night due to insomnia and indicated numerous medications had provided only minimal improvement. Id. Dr. Smith observed TTP in the large muscle groups of Plaintiff's upper and lower body. Tr. at 387. He assessed fibromyalgia and insomnia and prescribed Ultracet and Seroquel. Id.
Plaintiff reported generalized pain, poor sleep, and fatigue on May 28, 2020. Tr. at 365. Dr. Barfield noted Plaintiff's sleep study had revealed severe sleep apnea and that she was scheduled to follow up with a pulmonologist. Id. He continued Gabapentin 600 mg twice a day and 900 mg at bedtime and instructed Plaintiff to discontinue use of caffeine after lunch. Id.
On August 21, 2020, Plaintiff reported her blood pressure was well-controlled and she was sleeping for six to eight hours per night with use of Ambien. Tr. at 406. She indicated NSAIDs and Tylenol had provided only minimal relief of fibromyalgia-related symptoms and requested prescription medication. Id. Dr. Smith noted TTP in the large muscle groups of Plaintiff's upper and lower body. Tr. at 407. He assessed hypertension, insomnia, and fibromyalgia. Id. He refilled Amlodipine, Hydrochlorothiazide, and Zolpidem and prescribed Diclofenac Sodium 75 mg. Id.
A second state agency psychological consultant, R. Warren, M.D., assessed Plaintiff's mental impairment as non-severe on October 6, 2020. Tr. at 80-81, 93-94.
On October 8, 2020, Plaintiff reported sleeping well and denied experiencing daily fatigue. Tr. at 409. She described a moderate degree of generalized pain, but stated her pain was no worse, despite having last taken Gabapentin two weeks prior. Id. Dr. Barfield observed Plaintiff to demonstrate pain responses with internal rotation and abduction of the left shoulder and to be tender over the left bicipital tendon. Id. He assessed bicipital tendinitis, administered Depo-Medrol and Lidocaine injections to Plaintiff's left shoulder, and prescribed Desvenlafaxine ER 50 mg. Id.
Dr. Smith completed a questionnaire addressing Plaintiff's fibromyalgia-related functional abilities on March 3, 2021. Tr. at 432-33. He confirmed that Plaintiff met the American Rheumatological criteria for a diagnosis of fibromyalgia and had an additional diagnosis of low back pain. Tr. at 432. He characterized Plaintiff's prognosis as fair. Id. He identified Plaintiff's symptoms as multiple tender points, arthropathy, numbness and tingling, chronic fatigue, and subjective swelling. Id. He indicated emotional factors did not contribute to the severity of Plaintiff's symptoms and functional limitations. Id. He noted Plaintiff experienced pain in her lumbosacral, cervical, and thoracic spines and her bilateral shoulders, arms, hands/fingers, hips, legs, and knees/ankles/feet. Id. He opined as to specific limitations, as detailed below, indicated Plaintiff was not a malingerer, and stated her impairments were reasonably consistent with the functional limitations he described. Tr. at 432-33.
C. The Administrative Proceedings
1. The Administrative Hearing a. Plaintiff's Testimony
At the hearing, Plaintiff testified she had worked as a substitute teacher for about a year and last worked in February 2017. Tr. at 32. She stated she had previously worked as a manager, a receptionist, a patient intake worker in a home for disabled individuals, and a switchboard operator. Tr. at 33.
Plaintiff testified she lived with her 28-year-old daughter. Tr. at 34. She stated she had stopped working due to muscle aches. Id. She indicated that she had difficulty ascending and descending stairs and walking the halls when she worked as a substitute teacher. Tr. at 34-35.
Plaintiff said she experienced pain in her arms, hands, legs, feet, and back. Tr. at 35. She stated Dr. Smith had prescribed medication she took twice a day to alleviate her pain, but noted it “doesn't really help that much.” Id. She indicated she attempted household chores like sweeping, but was unable to continue for long periods and had sit down to rest and start and stop. Id. She said her current medication caused her to feel tired and sleep sometimes, but otherwise she denied side effects. Tr. at 36. She testified she drove to the grocery store if her daughter was not available to drive her and sometimes to an outdoor church service she could attend while sitting in her car. Id. She estimated she drove once a week. Id.
Plaintiff reported she had two or three good days each week when she could go out for a while and do chores. Tr. at 37. She testified that on her bad days, she was in too much pain to move, was mostly in bed, and did not do chores. Id. She said she did not engage in activities that required she stand for more than about 10 minutes at a time. Id. She stated she could walk around her house to sweep for about 10 minutes. Id. She explained that she needed something to lean on or to assist her if she attempted to stand or walk for a longer period. Tr. at 38. She said she felt increased pain in her knees and legs as she attempted to walk for longer periods. Id. She indicated she had difficulty bending. Id. She said she sometimes started chores one day and finished them another day. Tr. at 44.
Plaintiff explained she would be unable to work as a receptionist because she could not sit for long periods and needed to constantly get up. Tr. at 38. She stated she would eventually require pain medication. Tr. at 39. She indicated she was unable to perform the typing required in the job because her hands would cramp and lock up. Id. She estimated she would need to get up and move around after sitting for 10 to 15 minutes. Id.
Plaintiff testified she had difficulty sitting to watch television and needed to rotate, get up, or move somewhere to alleviate some of the pain before she could return to a seated position. Id. She stated it was insufficient for her to stand and immediately return to a seated position, as she needed to “stand up and move just a little bit.” Id.
Plaintiff said she was right-handed and felt equivalent pain in both hands. Tr. at 40. She stated the consultative examiner had not paid much attention to her hands and had not evaluated whether she could use them repetitively. Id. She said she experienced pain and sharpness in her hands after using them for short periods. Tr. at 41. She denied problems picking up small items and noted her hand pain and stiffness occurred mostly with writing and typing. Id.
Plaintiff testified she felt shoulder pain and had limited use of her shoulders. Id. She indicated the problems were more pronounced on the left. Id. She noted Dr. Barfield had assessed bursitis and had administered an injection. Tr. at 41-42. She stated she could reach, but had difficulty reaching above her head. Tr. at 42. She said she had better ability to reach with her right arm than her left. Id.
Plaintiff stated she was able to shop for groceries while leaning on the shopping cart. Id. She noted she required help from someone to put her groceries in her car and to unload them at home. Tr. at 42-43. She said she could lift a gallon of milk, but could not carry it. Tr. at 43.
Plaintiff testified she used a CPAP machine to treat severe sleep apnea. Id. She said it had helped her symptoms a little bit, but she continued to feel tired when she woke in the morning and during the day. Id. She indicated she would sometimes “nod off” unintentionally. Tr. at 44.
Plaintiff stated she had difficulty with concentration and focus due to pain and tiredness, but admitted her ability to focus had improved. Id. She indicated she would have difficulty completing tasks in a timely manner because of joint pain and limitations. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Katharine Bradford reviewed the record and testified at the hearing. Tr. at 45-47. The VE categorized Plaintiff's PRW as a substitute teacher, Dictionary of Occupational Titles (“DOT”) No. 249.367074, requiring light exertion and a specific vocational preparation (“SVP”) of 3; a receptionist, DOT No. 237.367-038, requiring sedentary exertion and an SVP of 4; a credit clerk, DOT No. 205.367-022, requiring sedentary exertion as described in the DOT and light exertion as performed and an SVP of 4; a home attendant, DOT No. 354.377-014, requiring medium exertion and an SVP of 3; and a switchboard operator, DOT No. 235.662-022, requiring sedentary exertion and an SVP of 3. Tr. at 45. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform light work with no climbing of ladders, ropes, or scaffolds; occasional climbing of ramps and stairs; occasional kneeling, crouching, and crawling; and no work at unprotected heights. Id. The VE testified the hypothetical individual could perform Plaintiff's PRW as a receptionist, credit clerk, substitute teacher, and switchboard operator. Tr. at 46.
The ALJ asked the VE to consider the individual described in the first question and to assume she would be limited to sedentary work. Id. He asked if the individual would be able to perform Plaintiff's PRW. Id. The VE testified the individual would be able to perform work as a receptionist and credit clerk, as both are described in the DOT, but could not perform the job of credit clerk as Plaintiff performed it. Id.
Plaintiff's attorney asked the VE if the individual would be able to perform the jobs identified in response to the prior questions if she were limited to occasional reaching, handling, and fingering. Tr. at 47. The VE testified the additional restriction would eliminate Plaintiff's PRW. Id.
Plaintiff's attorney asked the VE to consider the individual described in the ALJ's hypothetical questions, but to assume she would be limited to unskilled work. Id. She asked if Plaintiff's PRW would be eliminated. Id. The VE confirmed it would. 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 March 31, 2021.
2. The claimant has not engaged in substantial gainful activity since November 1, 2018, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: fibromyalgia, obesity, and arthritis in the knees (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 undersigned finds 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 cannot climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs, kneel, crouch, and crawl; and she must avoid working at unprotected heights.
6. The claimant is capable of performing past relevant work as a receptionist, credit clerk, and switchboard operator. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from November 1, 2018, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).Tr. at 17-23.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to evaluate fibromyalgia in accordance with SSR 12-2p; and
2) the ALJ failed to properly consider her treating physician's opinion in evaluating her RFC.
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) whether such impairment prevents claimant from performing PRW; 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).
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).
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.” Vtek 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
Plaintiff argues the ALJ did not evaluate fibromyalgia in accordance with SSR 12-2p. [ECF Nos. 10 at 14-19 and 12 at 1-8]. She notes the ALJ's decision fails to reference SSR 12-2p. [ECF No. 10 at 14]. She maintains the ALJ erroneously sought objective findings to support the severity of fibromyalgia and disregarded her statements as to her symptoms because they were not corroborated by objective findings. [ECF Nos. 10 at 14-17 and 12 at 2]. She contends the ALJ erred in disregarding her statements based on her conservative treatment, as there is no more invasive treatment for fibromyalgia than medication and exercise, and misinterpreted the record as to prescribed medications. [ECF Nos. 10 at 15-16 and 12 at 3, 4, 7]. She asserts the ALJ should not have discredited her statements based on her ADLs because such sporadic activity did not disprove her allegations of disabling pain and fatigue, exercise was beneficial to her impairment, and her activities were not inconsistent with her complaints. [ECF Nos. 10 at 1718 and 12 at 5]. She claims the Commissioner's notation of her failure to seek treatment for fibromyalgia-related symptoms prior to June 2019 is impermissible post-hoc rationale because it was not among the ALJ's reasons for denying her claim. [ECF No. 12 at 3-4].
The Commissioner argues substantial evidence supports the ALJ's evaluation of Plaintiff's fibromyalgia. [ECF No. 11 at 7-12]. She concedes the ALJ did not specifically cite SSR 12-2p, but maintains this was not error, as he correctly applied the principles of the SSR. Id. at 8, 11-12. She asserts the ALJ did not discredit Plaintiff's subjective complaints of fibromyalgia symptoms based on a lack of substantiating objective evidence or a history of conservative treatment, but because of noncompliance with recommended treatment and inconsistent ADLs. Id. at 8, 14. She claims that, in accordance with SSR 12-2p, the ALJ relied on medical records that showed Plaintiff's fibromyalgia responded well to prescribed medication, but that she did not take the medication consistently. Id. at 10. She argues the ALJ reasonably found Plaintiff's regular babysitting of her grandchildren in the afternoons and her abilities to watch television and read books daily to be inconsistent with her allegations. Id. She maintains the ALJ also correctly noted that the evidence from Plaintiff's physicians did not indicate she was unable to work. Id. at 11. She contends the ALJ properly considered Plaintiff's subjective complaints related to fibromyalgia in assessing her RFC. Id. at 12. She disputes Plaintiff's allegation that the ALJ did not consider the waxing and waning of her symptoms and notes he discussed the longitudinal record that spanned a two-year period. Id. at 13-14.
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 guide adjudicators in evaluating claims involving fibromyalgia. SSR 12-2p, 2012 WL 3104869 (2012). The SSR explains the requirements to establish fibromyalgia as a medically-determinable impairment, directs adjudicators to consider a medically-determinable impairment of fibromyalgia in the sequential evaluation process, and indicates they should “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 *2-*5.
Courts acknowledge fibromyalgia “symptoms are entirely subjective,” as “[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)). Physical examinations generally yield normal results, such as full ROM, no joint swelling, normal muscle strength, and normal neurological reactions. Id. at 96. It is impermissible for an ALJ to “evaluate an individual'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. Thus, an ALJ “improperly increase[s]” the claimant's “burden of proof” if he requires subjective descriptions of symptoms to be verified by objective medical evidence. Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017). If the ALJ concludes the evidence supports a medically-determinable impairment of fibromyalgia, he cannot reject the claimant's allegations as to the functional limitations the impairment imposes simply because there are not enough clinical signs and laboratory findings to suggest the symptoms are as severe as she alleges.
If the evidence supports a finding that fibromyalgia could reasonably be expected to cause the symptoms the claimant alleges, she is “entitled to rely exclusively on subjective evidence to prove” her symptoms are “so continuous and/or so severe that [they] prevent [her] from working a full eight hour day.” See Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006). “At this step, objective evidence is not required to find the claimant disabled.” Arakas, 983 F.3d at 95 (emphasis in original). However, this does not mean the ALJ must accept the claimant at her word as to the functional limitations she alleges are imposed by fibromyalgia. The ALJ should 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). Evidence relevant to this inquiry includes “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,” which 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. SSR 16-3p, 2017 WL 5180304, at *6; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
In evaluating whether substantial evidence supports the ALJ's decision, the undersigned has limited review to the rationale provided by the ALJ to support his decision. Thus, to the extent the Commissioner provided explanations not included in the ALJ's decision to support his findings, the undersigned declines to address those arguments. See Robinson ex rel. M.R.v. Commissioner of Social Sec., C/A No. 0:07-3521-GRA, 2009 WL 708267, at *12 (D.S.C. Mar. 12, 2009) (“[T]he principles of agency law limit this Court's ability to affirm based on post hoc rationalizations by the Commissioner's lawyers. ‘[R]egardless [of] whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for [his] decision and confine our review to the reasons supplied by the ALJ.'”) (quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)); see also Arakas, 983 F.3d at 109 (rejecting the Commissioner's effort to frame the ALJ's statement as an attempt to resolve an alleged inconsistency as “a meritless post-hoc justification”); Radford v. Colvin, 734 F.3d 288, 294 (4th Cir. 2013) (rejecting the Commissioner's attempt to justify the ALJ's denial of disability benefits as a post-hoc rationalization).
A review of the ALJ's decision confirms the parties' assertion that the ALJ did not specifically reference SSR 12-2p in the decision. See generally Tr. at 17-23. Nevertheless, the ALJ's failure to reference SSR 12-2p may be inconsequential if he materially complied with its provisions. Because the ALJ found fibromyalgia to be one of Plaintiff's medically-determinable impairments, he was required to consider it in subsequent steps of the sequential evaluation process, evaluate the intensity and persistence of pain and other fibromyalgia-related symptoms, and determine to what the extent fibromyalgia-related symptoms limited her capacity for work. See SSR 12-2p at *2-*5.
The ALJ considered fibromyalgia at subsequent steps. He found it to be among Plaintiff's severe impairments at step two. Tr. at 17-18. Although the analysis at step three requires the ALJ determine whether the claimant's impairments meet or medically equal a listing, fibromyalgia “cannot meet a listing” because it “is not a listed impairment.” SSR 12-2p, 2012 WL 3104869, at *6. Consequently, the ALJ must determine whether fibromyalgia medically equals a listing either on its own or in combination with at least one other medically-determinable impairment. Id. The ALJ assessed fibromyalgia at step three insomuch as he noted he had “considered the combined effects of the claimant's impairments and determined that the findings related to them were not at least equal in severity to those described in the listings.” Tr. at 19.
The ALJ also considered fibromyalgia in evaluating Plaintiff's RFC, as his explanation for the RFC assessment includes references to Plaintiff's allegation of disability due to fibromyalgia, confirmation of a fibromyalgia diagnosis by multiple providers, her reports to various providers of fibromyalgia-related symptoms, Dr. Barfield's observations and prescribed treatment, Dr. Kolehma's findings, and Dr. Smith's observations and prescribed treatment. Tr. at 20-21. He subsequently considered the RFC assessment in concluding the sequential evaluation at step four, with a finding that Plaintiff could perform her PRW. See Tr. at 23.
Although the ALJ considered fibromyalgia throughout the sequential evaluation process, such consideration is insufficient if he did not properly evaluate the intensity and persistence of Plaintiff's pain and other fibromyalgia-related symptoms in assessing her RFC. The ALJ acknowledged Plaintiff's reports of pain in her arms, hands, legs, feet, and back. Tr. at 20. He noted her testimony that she had two to three good days per week and stayed in bed on her bad days. Id. He cited her testimony that she could stand or walk for 10 minutes at a time and had to limit chores like sweeping to such a period and then rest. Id. He referenced her testimony that she could not perform her PRW as a receptionist because she could not sit for more than 10 minutes without having to get up or shift positions. Id. He noted her complaints of feeling tired and nodding off during the day and having concentration problems due to pain and fatigue. Id.
The ALJ discussed the medical evidence, stating “Dr. Barfield noted she exhibited tenderness virtually everywhere she was palpated over her torso and extremities.” Tr. at 20. He acknowledged Dr. Kolehma's finding of trigger points in the bilateral upper trapezii, her assessment of fibromyalgia, and her recommendations for continued medication and exercise. Tr. at 21. He noted Dr. Smith had found TTP in the large muscle groups of Plaintiff's upper and lower body and prescribed Ultracet for fibromyalgia. Id. His evaluation does not reflect the ALJ's overemphasis on objective medical evidence. In fact, the ALJ acknowledged that Plaintiff's medical providers documented trigger points-the only objective evidence of fibromyalgia- which weighed in her favor.
The ALJ considered Plaintiff's medication history and use in accordance with SSR 16-3p and 20 C.F.R. § 404.1529(c)(3) and § 416.929(c)(3). He indicated Dr. Barfield had initially assessed polymyalgia rheumatic and prescribed Prednisone and had subsequently assessed fibromyalgia and prescribed Gabapentin. Id. He stated Plaintiff had requested prescription pain medication or NSAIDs because over-the-counter medication had been minimally effective. Id. He acknowledged Dr. Smith's assessment of “some fibromyalgia” and his issuance of a prescription for Diclofenac Sodium. Id.
The ALJ also considered statements from Plaintiff's medical providers in accordance with SSR 16-3p and 20 C.F.R. § 404.1529(c)(3) and § 416.929(c)(3). He referenced Dr. Smith's March 2021 completion of a treating source statement in which he suggested Plaintiff had significant limitations. Id.
Although the ALJ found that Plaintiff's medically-determinable impairments could reasonably be expected to cause her alleged symptoms, he concluded her statements as to the intensity, persistence, and limiting effects of her symptoms were “inconsistent with the conservative treatment” she received and “her own reported activities of daily living,” as well as the medical evidence and other evidence in the record. Tr. at 20, 21. He explained Plaintiff had not consistently taken prescribed treatment for fibromyalgia. Id. Although he acknowledged Plaintiff's poor reaction to Cymbalta and inability to afford Lyrica, he noted the record provided “no indication as to why the claimant did not continue to take Ultracet or Gabapentin, but instead was taking over the counter pain and non-steroidal anti-inflammatories. (Exhibit 7F).” Id. He indicated Plaintiff's failure to seek treatment between August 2020 and March 2021 suggested “either the pain is not as severe as alleged or that the most recent prescription of Diclofenac Sodium ha[d] been effective.” Id.
Pursuant to SSR 16-3p, the ALJ cannot fault the claimant “for failing to pursue non-conservative treatment options where none exist,” but that is not what occurred here. Although the ALJ referenced Plaintiff's “conservative treatment” as one reason for finding her statements inconsistent with the record, he did not suggest that Plaintiff's statements were inconsistent with her allegations because she failed to pursue invasive treatment outside of that typically recommended for fibromyalgia patients. Instead, he explained that Plaintiff's treatment was even more conservative than that generally used for fibromyalgia, as she often took over-the-counter drugs instead of her prescribed medications. See Tr. at 21. Plaintiff notes that recognized treatment for fibromyalgia includes exercise, in addition to medication, but she does not allege, and the record does not support a finding that the ALJ disregarded evidence of her use of regular exercise as a method of treatment.
The ALJ permissibly considered Plaintiff's “attempts to seek medical treatment for symptoms and to follow treatment once it is prescribed.” SSR 16-3p at *9. A claimant's “[p]ersistent attempts to obtain relief of symptoms, such as increasing dosages and changing medications, trying a variety of treatments, [or] referrals to specialists, . . . may be an indication that an individual's symptoms are a source of distress and may show that they are intense and persistent.” Arakas, 983 F.3d at 102 (citing SSR 16-3p at *8)). However, “if the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms,” the adjudicator may reasonably conclude the intensity, persistence, and limiting effects of her symptoms are not as great as she alleges. In accordance with SSR 16-3p, the ALJ pointed to Plaintiff's failure to take prescribed medications without explanation and her lack of follow up after receiving the prescription for Diclofenac as indicative that her symptoms were not as severe as she alleged.
The ALJ's reference to Exhibit 7F encompasses Dr. Smith's treatment notes from visits on November 16, 2018, January 1, June 3, July 17, and October 29, 2019, and February 10 and April 2, 2020. As the ALJ pointed out, Plaintiff reported to Dr. Smith on April 2, 2020, that she was “currently using anti-inflammatories with poor results.” Tr. at 386. She reported use of Hydrochlorothiazide, Amlodipine Besylate, Zolpidem Tartrate, and Amoxicillin, but reported taking no other medication, despite Dr. Barfield's continuation of Gabapentin just one month prior. See Tr. at 366. Dr. Smith prescribed Ultracet during this visit. Tr. at 387. He authorized 120 pills for a 30-day supply with six refills and instructed Plaintiff to take one to two pills every six hours. Id. Thus, Dr. Smith authorized a seven-month supply of Ultracet, which would have run out in November 2020, if used as directed. When Plaintiff returned to Dr. Smith on August 21, 2020, her documented medications included Ultracet. Tr. at 406. However, she requested “some sort of pain medication/anti-inflammatory since over-the-counter Tylenol and over-the-counter anti-inflammatories have given her minimal improvement.” Id. The ALJ refilled Plaintiff's prescriptions for Amlodipine Besylate, Hydrochlorothiazide, and Zolpidem Tartrate and prescribed Diclofenac Sodium, but he did not refill Ultracet. Tr. at 407. Evidence from this visit seems to support the ALJ's finding that Plaintiff had stopped taking Ultracet without explanation.
The final treatment visit in the record is one from an October 2020 visit during which Plaintiff reported sleeping well, denied experiencing daily fatigue, described a moderate degree of generalized pain, and reported her pain was no worse, despite having last taken Gabapentin two weeks prior. Tr. at 409. This record is consistent with the ALJ's conclusion that Plaintiff stopped taking Gabapentin without explanation.
Plaintiff argues the ALJ impermissibly assumed Diclofenac Sodium effectively controlled her pain between August 2020 and March 2021 without the benefit of medical records to support such a finding. The claimant and her representative must “must make every effort to ensure” that the ALJ receives all the evidence and must inform SSA about or submit any written evidence “no later than 5 business days before the date of the scheduled hearing.” 20 C.F.R. §§ 404.935, 416.1435. Although Dr. Smith completed a medical source statement on March 3, 2021, the record contains no notes from treatment visits with Dr. Smith after August 21, 2020, and no treatment notes whatsoever after October 8, 2020. As discussed above, Dr. Barfield's October 2020 treatment notes reflect Plaintiff's denial of sleep disturbance, fatigue, and increased pain. See Tr. at 409. Given the evidence in the record and Plaintiff's failure to submit subsequent treatment records, the ALJ reasonably assumed either: (1) her symptoms were effectively controlled with Diclofenac Sodium; or (2) her symptoms were not so severe as to necessitate additional treatment.
The ALJ acknowledged Plaintiff's reported ADLs were somewhat restricted by her pain, but were “not so limited as to support greater limitations in the above residual functional capacity.” Tr. at 21-22. He wrote: “The claimant performs her own household chores, including sweeping, simple meals, and laundry. She drives, shops independently, and watches her grandchildren after they come home from daycare. (Exhibit 8E).” Tr. at 22.
Recognizing that “[a]n ALJ may not consider the type of activities a claimant can perform without also considering the extent to which she can perform them,” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018), the ALJ's decision reflects his consideration of Plaintiff's qualifying statements. See Tr. at 20, 22. He referenced Exhibit 8E, a function report that appears in the record at Tr. at 301-08. Tr. at 22. In this function report, Plaintiff indicated some of her ADLs were limited by severe pain. Tr. at 301. Nevertheless, she reported she woke, took medicine, and did “as much as a I can of my household chores-sweeping, making my bed (if I can), washing clothes, dusting, cooking dinner, washing dishes.” Tr. at 302. She stated her meal preparation included mostly preparing salads and sandwiches and sometimes preparing more complete meals that did not require she stand for long periods. Tr. at 303. She explained it now took her all day to perform the chores that had previously taken only two hours. Id. She indicated she went outside daily and traveled by driving or riding in a car. Tr. at 304. She stated she visited the grocery store weekly and shopped for clothes as needed. Id. She endorsed abilities to pay bills, count change, handle a savings account, and use a checkbook/money orders. Id. She noted her hobbies included watching television daily, reading the newspaper weekly, and reading a book a month. Tr. at 305.
Viewed in isolation, Plaintiff's ability to perform these activities at her own pace was not inconsistent with her statements as to the effects of her impairments. See Arakas, 983 F.3d at 101 (noting a “claimant's inability to sustain full-time work due to pain and other symptoms is often consistent with her ability to carry out daily activities”). However, the ALJ also pointed to Plaintiff's ability to provide daily care to her grandchildren as reflecting greater ability than she alleged. The undersigned notes that Plaintiff responded “[y]es” to the following question: Do you take care of anyone else such as a wife/husband, children, grandchildren, parents, friend, other?” and explained: “My grandchildren[.] Watch them until my daughter gets home from work (after daycare).” Id. The ALJ provided his rationale for finding this activity inconsistent with Plaintiff's allegations, writing: “The Administrative Law Judge recognizes that childcare, by its very nature, requires a certain degree of lifting, carrying, standing, walking, pushing, pulling, bending, and stooping. Such activity is inconsistent with the functional limitations alleged by the claimant.” Tr. at 22. While Plaintiff may argue the care she provided for her grandchildren was different than what the ALJ indicated childcare requires “by its very nature,” the record is devoid of any explanation from Plaintiff as to how she provided care for her grandchildren, leaving the ALJ to assume she performed it as it generally would be performed.
The ALJ also considered relevant that Plaintiff stopped working to provide care to her father prior to his death-not due to symptoms of fibromyalgia or other impairments. Id. Plaintiff alleges in her briefs that she continued to work as a substitute teacher while providing care to her father and that the ALJ erroneously assumed she had stopped working to care for her ailing father. [ECF Nos. 10 at 18 and 12 at 8]. However, Plaintiff's argument is contrary to the evidence, and the ALJ's interpretation is supported by the record. The report from Dr. Kolehma's consultative exam reflects: “She stopped working over a year ago, to help take care of her sick father. At that time, she worked as a substitute teacher. Her father passed away, and she has not returned to work because of pain.” Tr. at 376. The detailed earnings query shows earnings of $1,715.82 from Kelly Services in 2016 and $805.00 in earnings from Kelly Services in 2017. Tr. at 200. These earnings are consistent with Plaintiff's representation in a work history report that she worked for a school system as a substitute teacher from August 2016 to February 2017 and her testimony that she last worked in February 2017. Tr. at 32, 279, 283. Plaintiff did not allege she became unable to work in February 2017, when she last worked as a substitute teacher, but instead claimed she became disabled on November 1, 2018, more than a year-and-a-half later. See Tr. at 191.
The ALJ acknowledged Plaintiff's testimony that she was experiencing pain and constant muscle and body aches that interfered with her ability to walk and climb stairs while she was working as a substitute teacher. Tr. at 20. However, he emphasized that Plaintiff ultimately stopped working to provide care for her father, not due to these symptoms. The ALJ's conclusion is further supported by Plaintiff's reports to medical providers as to the onset of her symptoms. See Tr. at 361 (indicating a six-month history of generalized pain to Dr. Barfield during the August 2019 consultation); Tr. at 375 (reporting to Dr. Kolehma that her fibromyalgia-related symptoms started “about 2 years” prior to the January 2020 exam).
The ALJ's decision reflects his compliance with the requirements in SSR 12-2p. Because he considered fibromyalgia throughout the sequential evaluation process, appropriately evaluated the intensity and persistence of Plaintiff's pain and other fibromyalgia-related symptoms, and effectively determined to what the extent fibromyalgia-related symptoms limited her capacity for work, his decision is supported by substantial evidence.
2. Dr. Smith's Opinion
On March 3, 2021, Dr. Smith offered an opinion that Plaintiff's pain was precipitated by weather changes, cold, movement, overuse, and static position. Tr. at 432-33. He noted Plaintiff's pain was frequently severe enough to interfere with attention and concentration. Tr. at 432. He stated Plaintiff was moderately limited in her ability to deal with work stress. Id. He indicated Plaintiff's impairments were likely to produce good and bad days. Tr. at 433. He estimated Plaintiff could sit for 10 minutes at a time, stand for 10 minutes at a time, sit for about four hours in an eight-hour workday, stand and walk for about four hours in an eight-hour workday, frequently lift and carry 10 pounds, occasionally lift and carry 20 pounds, and never lift or carry 50 pounds. Id. He noted Plaintiff had significantly limited ability to engage in repetitive reaching, handling, or fingering. Id.
Plaintiff argues the ALJ failed to adequately consider and explicitly explain how he considered the supportability and consistency factors in evaluating the persuasiveness of Dr. Smith's opinion. [ECF Nos. 10 at 21-24 and 12 at 8-12]. She maintains the ALJ's citation to Exhibit 8F as contrary to Dr. Smith's opinion makes little sense, as Exhibit 8F contains no mention of attention, concentration, or handling stress. [ECF Nos. 10 at 24 and 12 at 1011]. She maintains the ALJ's indication that she did not need to alternate between sitting and standing every 10 minutes during the consultative exam disregards evidence that she experienced good and bad days and SSR 12-2p's recognition that fibromyalgia symptoms tend to wax and wane. [ECF No. 10 at 25 and 12 at 8-9, 11]. She contends the ALJ failed to consider and resolve her reported limitations in performing ADLs prior to concluding her ADLs were inconsistent with the symptoms she alleged. [ECF No. 10 at 26].
The Commissioner argues substantial evidence supports the ALJ's assessment of Dr. Smith's opinion as partially persuasive. [ECF No. 11 at 16]. She maintains Plaintiff's denial of problems with attention and concentration in function reports, an absence of complaints of problems with attention and concentration to her medical providers, mental status exams within normal limits, and ADLs that required considerable attention and concentration were inconsistent with Dr. Smith's opinion that fibromyalgia symptoms “frequently” interfered with Plaintiff's attention or concentration. Id. at 18.
She claims Dr. Smith's opinion that Plaintiff had “moderate” limitations in dealing with work stress was contradicted by her failure to report serious issues with handling stress in the function reports, an absence of complaints to her medical providers of difficulty handling stress, and mental status exams within normal limits. Id. She asserts substantial evidence supported the ALJ's rejection of Dr. Smith's opinion that Plaintiff had significant limitations in reaching, handling, or fingering because the treatment records reflected no complaints to her providers of difficulty with her arms or hands and Dr. Kolehma's consultative exam showed normal fine and gross manipulation, negative Tinel's and Phalen's tests, and 5/5 grip strength. Id. at 19. She argues substantial evidence supports the ALJ's rejection of Dr. Smith's impressions that Plaintiff could sit for only 10 minutes and stand for only 10 minutes at a time because her providers observed her normal gait and ability to sit comfortably and did not note her reports of needing to alternate positions or actual changes of position during 30-minute to one-hour appointments. Id. She further argues Plaintiff's ADLs of babysitting and watching television would generally require abilities to sit and stand for longer than 10 minutes at a time. Id. She claims the ALJ's citation to Exhibit 8F was meant to provide one example of a treatment record that failed to corroborate Plaintiff's statements and his reference to observations during Dr. Kolehma's consultative exam was intended to show her functioning on one “good day.” Id. at 19-20.
Regulations applicable to cases filed on or after March 27, 2017, specify the ALJ is not to defer to or give any specific weight to a medical opinion based on its source. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, he must consider the persuasiveness of all the medical opinions of record based on the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the medical opinion. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c). The ALJ is only required to explicitly discuss the supportability and consistency of each medical source's opinion, as these factors are considered most important in assessing its persuasiveness. 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinion . . . will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Relevant to the consistency factor, “[t]he more consistent a medical opinion . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion . . . will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
Substantial evidence must support the ALJ's conclusions as to the supportability and consistency of a medical opinion. If the ALJ materially errs in evaluating these factors, the court may remand the case. See Flattery v. Commissioner of Social Security Administration, C/A No. 9:20-2600-RBH-MHC, 2021 WL 5181567, at *8 (D.S.C. Oct. 21, 2021), (concluding substantial evidence did not support the ALJ's evaluation of the supportability factor where he ignored the claimant's continuing treatment with the medical provider and portions of the provider's treatment notes), adopted by 2021 WL 5180236 (Nov. 8, 2021); Joseph M. v. Kijakazi, C/A No. 1:20-3664-DCC-SVH, 2021 WL 3868122, at *13 (D.S.C. Aug. 19, 2021) (finding the ALJ erred in assessing a medical opinion pursuant to 20 C.F.R. § 404.1520c and § 416.920c because he misconstrued the date the plaintiff last saw the medical provider, neglected the continuing treatment relationship, and erroneously claimed the last treatment visit was prior to the plaintiff's alleged onset date), adopted by 2021 WL 3860638 (D.S.C. Aug. 30, 2021). The ALJ is not allowed to cherrypick the record, referencing only the evidence that supports his conclusion as to the persuasiveness of the medical opinion and ignoring evidence to the contrary. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (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); see also Robinson v. Saul, C/A No. 0:20-1860-RMG-PJG, 2021 WL 2300809, at *4-5 (D.S.C. May 25, 2021) (remanding case where the ALJ ignored treatment records supporting the medical provider's opinion), adopted by 2021 WL 2291834 (D.S.C. June 4, 2021).
In finding Dr. Smith's opinion “partially persuasive,” the ALJ conceded it was supported by Plaintiff's impairment of fibromyalgia” and Dr. Smith's “significant longitudinal history with the claimant.” Tr. at 22. He found Dr. Smith's opinion persuasive insomuch as he limited Plaintiff to light work, which was consistent with the lifting restrictions Dr. Smith specified. Compare Tr. at 19, with Tr. at 433.
However, the ALJ also found Dr. Smith's “suggested limitations regarding attention, concentration, and work stress [were] not supported by any findings in the treatment records and [were] inconsistent with the claimant's own reports.” Tr. at 22. He cited Exhibit 8F, stating Plaintiff “reported no limitations in attention, concentration, or handling stress.” Tr. at 22. Plaintiff argues the ALJ's citation to Exhibit 8F does not support his argument that Dr. Smith's “suggested limitations regarding attention, concentration, and work stress are not supported by any findings in the treatment records and are inconsistent with claimant's own reports.” Tr. at 22. However, it is obvious from the text the ALJ cited that his reference to Exhibit 8F was a typo and that he intended to cite to Exhibit 8E instead. Plaintiff specified in the function report at Exhibit 8E: “I don't have a problem paying attention” and noted she finished projects she started, followed written instructions very well, and was “pretty good” at following spoken instructions. Tr. at 306. She further reported she did not handle stress as well as she had in the past, but continued to handle changes in routine “pretty well.” Tr. at 307. This evidence is demonstrably inconsistent with Dr. Smith's indication that Plaintiff had frequent impairment to attention and concentration and moderately limited ability to deal with work stress. A review of Dr. Smith's records also supports the ALJ's finding that Dr. Smith's observations during exams did not support this aspect of his opinion. See Tr. at 344-57, 384-407.
The ALJ noted Dr. Smith's suggestion that Plaintiff would have to alternate between sitting and standing every 10 minutes was not consistent with her presentation during the consultative exam or her reported ADLs of watching television and reading. Tr. at 22-23. He conceded Plaintiff had reported having to alternate positions more frequently than she had in the past, but stated “no objective findings or subjective reports support the need to alternate positions every 10 minutes.” Tr. at 23.
If the ALJ had relied solely on Plaintiff's presentation during the consultative exam to reject Dr. Smith's opinion, the undersigned would likely conclude that he had not considered the waxing and waning of fibromyalgia-related symptoms. However, he also noted Plaintiff's ADLs of reading and watching television and the objective findings and subjective reports throughout the record suggested she had greater ability to maintain one position for longer than Dr. Smith indicated. See Tr. at 22-23. Earlier in the decision, the ALJ noted Plaintiff had reported providing care to her grandchildren, which inherently required “a certain degree of lifting, carrying, standing, walking, pushing, pulling, bending, and stooping.” Tr. at 22.
A review of all the evidence sustains the ALJ's conclusion that the record lacked objective findings or subjective reports to support a 10-minute limit on Plaintiff's ability to maintain a sitting, standing, or walking position. None of Plaintiff's medical providers described her as being in distress, appearing uncomfortable, or having to change positions during exams. See generally Tr. at 344-80, 384-431. Although Dr. Kolehma noted Plaintiff's reported abilities, neither of Plaintiff's treating providers documented her report of time limitations on her abilities to sit, stand, and walk. See Id. In fact, Plaintiff reported greater ability to Dr. Kolehma than Dr. Smith indicated in his opinion, as she estimated she could sit for 15-30 minutes at a time. See Tr. at 376. While symptoms of fibromyalgia can wax and wane, no evidence from any provider on any date supported the sitting, standing, and walking restrictions Dr. Smith indicated. Therefore, substantial evidence supports the ALJ's rejection of this element of Dr. Smith's opinion.
Finally, the ALJ rejected Dr. Smith's assertion that Plaintiff had significant limitations to repetitive reaching, handling, and fingering as inconsistent with her ADLs of “independent housework, child care, driving, and shopping” and with Dr. Kolehma's “findings of no handling or fingering limitations.” Id. Plaintiff argues the ALJ did not consider her reported limitations in performing her ADLs prior to concluding they were inconsistent with Dr. Smith's opinion. However, as discussed earlier, the ALJ acknowledged Plaintiff's testimony as to limitations in performing some household chores earlier in the decision. See Tr. at 20. Plaintiff has pointed to no evidence that her abilities to perform childcare for her grandchildren and drive were limited by her symptoms. Dr. Kolehma conducted a one-time assessment, which does not fully account for the good and bad days and waxing and waning of symptoms characteristic of fibromyalgia. However, during that one-time assessment, she noted Plaintiff demonstrated no difficulty using her hands to fill out paperwork and had normal fine and gross manipulation, normal hand joints, 5/5 grip strength, 5/5 pincer strength, and negative Tinel's and Phalen's tests. Tr. at 377. Although it is possible that Dr. Kolehma examined Plaintiff on one of her good days, Plaintiff has referenced no statements within the record or observations from Dr. Smith or any other provider that would support significant limitations to repetitive reaching, handling, and fingering.
In light of the foregoing, the undersigned finds the ALJ provided a well-reasoned explanation for rejecting portions of Dr. Smith's opinion and recommends the court find that substantial evidence supports the ALJ's conclusion that the opinion was only partially persuasive.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether her 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).