Opinion
Civil Action 8:21-cv-01153-JMC-JDA
03-04-2022
Ruth Butts, Plaintiff, v. Commissioner Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff's claim for disability insurance benefits (“DIB”). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and the case remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
PROCEDURAL HISTORY
Plaintiff filed an application for DIB in November 2018, alleging an onset of disability date of November 2, 2018, which Plaintiff later amended to October 26, 2018. [R. 151-57.] The claim was denied initially by the Social Security Administration (“the Administration”). [R. 107-20.] Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on January 16, 2020, ALJ Jarrod Tranguch conducted a de novo hearing on Plaintiff's claim. [R. 59-91.]
The ALJ issued a decision on March 30, 2020, finding Plaintiff had not been under a disability within the meaning of the Social Security Act (“the Act”) from October 26, 2018, through the date of this decision. [R. 7-23.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2022, and had not engaged in substantial gainful activity since October 26, 2018, the alleged onset date. [R. 12, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the severe impairment of osteopenia. [R. 12, Finding 3.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 15, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity (“RFC”):
[T]he claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b). She must avoid crawling and climbing on ladders, ropes or scaffolding. The claimant can tolerate occasional exposure to extreme cold, heat, humidity and vibration. She must avoid workplace hazards such as unprotected heights and dangerous, moving machinery.[R. 15, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was capable of performing her past relevant work as a technical business analyst (insurance industry) and office clerk. [R. 18, Finding 6.] Thus, the ALJ found that Plaintiff had not been under a disability, as defined by the Act, from October 26, 2018, through the date of the decision. [R. 19, Finding 7.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. [R. 1-6.] Plaintiff filed the instant request for review in this Court on April 19, 2021. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and contains multiple legal errors warranting the reversal and remand of the case. [Doc. 9.] Plaintiff argues that the ALJ did not properly evaluate Plaintiff's fibromyalgia in accordance with SSR 12-2p. [Id. at 28-32.] Specifically, Plaintiff contends the records show that fibromyalgia was already an established diagnosis prior to the relevant period and that the ALJ failure to properly consider this impairment in the sequential evaluation process cannot be harmless error. [Id. at 30-31.]
The Commissioner, on the other hand, argues that the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 10.] Specifically, the Commissioner argues that substantial evidence supports the ALJ's finding that fibromyalgia was not a medically determinable impairment. [Id. at 9-12.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
Where conflicting evidence “allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ), ” not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision “is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision ‘with or without remanding the cause for a rehearing.'” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971). Remand is unnecessary where “the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant may produce further evidence on remand.”). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207.
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding ....42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F.Supp. 1248, 1250 n.3 (S.D. W.Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). “Disability” is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency” in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
“Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)-and gainful-done for pay or profit, whether or not a profit is realized, Id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is “severe” if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, “the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them”). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.”). If the ALJ finds a combination of impairments to be severe, “the combined impact of the impairments shall be considered throughout the disability determination process.” 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work “reflect[s] the statute's focus on the functional capacity retained by the claimant.” Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 (“Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy.”). The purpose of using a vocational expert is “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, “it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments.” Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations omitted).
III. Medical Opinions
For claims filed on or after March 27, 2017, as Plaintiff's is, the applicable regulations require ALJs to consider the persuasiveness of each medical opinion of record in accordance with 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 opinion. 20 C.F.R. § 404.1520c(b), (c). Regarding supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion . . . the more persuasive the medical opinion will be.” 20 C.F.R. § 404.1520c(c)(1). As for the relationship with the claimant, ALJs consider the “length of the treatment relationship, ” the “[f]requency of examinations, ” the “[p]urpose of the treatment relationship, ” the “[e]xtent of the treatment relationship, ” and whether the source has examined the claimant. 20 C.F.R. § 404.1520c(c)(3).
The new regulations define the term “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. §§ 404.1513(a)(2).
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling (“SSR”) 16-3p provides, “[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed.Reg. 49, 462, 49, 464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed.Reg. at 49, 463. First, “the ALJ must determine whether the claimant has produced medical evidence of a ‘medically determinable impairment which could reasonably be expected to produce” the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed.Reg. at 49, 463. Second, the ALJ must evaluate “the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently.” SSR 16-3p, 82 Fed.Reg. at 49, 464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Fibromyalgia Analysis under SSR 12-2
The Administration published SSR 12-2p to provide guidance on how it develops evidence to establish and evaluate a medically determinable impairment of fibromyalgia. SSR 12-2p, 2012 WL 3104869 (July 25, 2012). The ruling provides that a claimant may establish fibromyalgia as a medically determinable impairment by providing evidence from an acceptable medical source. Id. at *2. ALJs should not rely on the physician's diagnosis alone, but rather, they should review the evidence to determine whether the claimant's medical history and physical examinations are consistent with the diagnosis and with the physician's statements concerning the claimant's physical strength and functional abilities. Id. The ruling requires that a claimant's fibromyalgia diagnosis be confirmed through either the 1990 American College of Rheumatology (“ACR”) Criteria for the Classification of Fibromyalgia (“the 1990 Criteria”) or the 2010 ACR Preliminary Diagnostic Criteria (“the 2010 Criteria”). Id.
The 1990 Criteria require 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 of signs were excluded....Id. at *2-3.
To establish a diagnosis under the 2010 Criteria, the claimant must have a history of widespread pain (“the first component”); repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions (“the second component”); and evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded (“the third component”). 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, headache, pain or cramps in the abdomen, numbness or tingling, dizziness, insomnia, depression, constipation, 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, temporomandibular joint disorder, gastroesophageal reflux disorder (“GERD”), migraine, or restless leg syndrome. Id. at *3 n.10.
Plaintiff's Testimony
During the hearing, the ALJ asked Plaintiff's counsel to point out evidence in the record that would satisfy the criteria of SSR 12-2p. [R. 65.] Counsel responded that fibromyalgia was found to be a severe impairment at the initial level, but that he could certainly go back and look for specific criteria. [Id.] Plaintiff testified that her fibromyalgia can be pretty painful, that Dr. Solomon diagnosed her with fibromyalgia in 1998, and that her symptoms have worsened as she has gotten older. [R. 75, 82-83.] Plaintiff testified that, over the years, she has taken different kinds of medications and had some therapy, but that she was diagnosed a long time ago. [R. 76.] Plaintiff testified that she was taking over-the-counter medication for her fibromyalgia pain and that the pain is worse in her legs but affects her all over. [R. 76.] She is allergic to Lyrica and cannot take it for pain. [R. 83.] She also tried Gabapentin, but it did not work. [R. 83-84.]
Medical Evidence
At the initial evaluation stage, Plaintiff was found to have the following medically determinable impairments: fibromyalgia (severe), lung cancer (severe), and anxiety and obsessive-compulsive disorders (non-severe). [R. 98, 111.] She was also noted to have 8/18 trigger points at the neck level, trapezius muscle, bilateral shoulder, upper back and upper thighs. [R. 103, 111.] Notes from a consultative internal medicine exam performed by Ziba Monfared, M.D. (“Dr. Monfared”), state that Plaintiff has a history of fibromyalgia since 1996 and chronic pain affecting the upper back, neck, upper thigh, and shoulder area. [R. 398, 401.] Dr. Monfared diagnosed Plaintiff with fibromyalgia but listed her prognosis as good. [R. 401.] William Dougherty, Psy.D, completed a Mental RFC questionnaire on Plaintiff's behalf. [R. 581.] Stating that he had begun his treatment in April 2019, he noted her diagnoses as fibromyalgia, economic stress, and health issues. [R. 581.] He noted that her fibromyalgia impacted her mental impairment. [R. 581.]
ALJ's Consideration of Fibromyalgia
Upon considering the record and Plaintiff's testimony, the ALJ determined that
While the claimant alleges that she [has] pain limitations caused by fibromyalgia, the medical evidence fails to satisfy the criteria of SSR 12-2p to establish that the claimant has a medically determinable impairment of fibromyalgia. The medical evidence fails to establish either [the] subsection IIA2 requirement of medical evidence of at least 11 positive tender points on physical examination or the requirements of subsection IIB2 of repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions.
Moreover, the medical evidence fails to establish evidence that other disorders that could cause these signs or symptoms were excluded as required by both IIA3 and IIB3.
The claimant testified that her primary care physician diagnosed and treated her for fibromyalgia. However, her medical records reveal her primary care physician and her other providers only note the claimant reported this diagnosis to them and no diagnostic examinations, objective testing, or any evidence of exclusion before diagnosis (See Exhibits 6Fp47, 12Fp8, 16Fp7, 17Fp5, and 19Fp1). Notably, there is no medical evidence that the claimant was referred [to] a rheumatologist[] or other specialist or had any blood work to rule out any rheumatology related conditions to explain her symptoms. While the consultative examiner did list the diagnosis of fibromyalgia as part of his report, his physical examination only noted 8 out of 18 "trigger points" and the remaining physical examination finding[s] were largely within normal limits, as discussed in detail below (See Exhibit 9F). Finally, while the claimant's chiropractor did diagnose her with segmental and somatic dysfunction of the cervical region and thoracic region, cardiothoracic radiculopathy and cervicalgia, a chiropractor is not an acceptable medical source. Therefore, the undersigned finds that the medical evidence record does not support . . . finding these three conditions as medically determinable impairments.[R. 14-15.]
Discussion
The Court concludes that the record supports the ALJ's finding that Plaintiff did not have a medically determinable impairment of fibromyalgia based on the 1990 Criteria [R. 14 (evidence fails to show at least 11 positive tender points on physical examination)], but his decision fails to reflect proper consideration of the 2010 Criteria.
Although the ALJ concluded the record failed to reflect “repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions” [R. 14], he did not satisfactorily explain that conclusion, nor does the Commissioner defend it. A review of the record in fact reveals instances of six or more symptoms, signs, or co-occurring conditions, those being fatigue [R. 351, 356], depression [R. 388], GERD [R. 351, 483], headache [R. 548, 550], anxiety [R. 350, 391], and muscle and joint pain/weakness [R. 347, 357]. It is the ALJ's duty to “build an accurate and logical bridge from the evidence to his conclusion.” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (internal quotation marks omitted). His failure to build such a bridge from the cited evidence precludes meaningful review by this Court of the ALJ's finding that Plaintiff failed to establish the second component of the 2010 Criteria.
In contrast to the Commissioner's silence regarding the second component of the 2010 Criteria, the Commissioner defends the ALJ's conclusion that “the medical evidence fails to establish evidence [the third component, ] that other disorders that could cause these signs or symptoms were excluded.” [Doc. 10 at 11-12.] The Court notes that, as a factual matter, the ALJ was correct in concluding that the record did not show that fibromyalgia was diagnosed after other potential impairments were excluded. However, it is unclear whether such evidence is absent because Plaintiff's medical providers neglected to exclude other impairments or because the other potential impairments were excluded prior to the relevant period. Pursuant to SSR 12-2p, the Administration is to request evidence for the 12-month period prior to the claimant's application date unless the adjudicator has “reason to believe” that he needs “evidence from an earlier period.” 2012 WL 3104869, at *4. In addition, SSR 12-2p sets forth the actions that must be taken if the record contains insufficient evidence for the adjudicator to determine whether the claimant has fibromyalgia as a medically determinable impairment. Id. It provides that the ALJ may re-contact the claimant's treating or other sources, request additional existing records, or ask the claimant or others for more information. Id. If the adjudicator has taken these steps but the record remains insufficient to establish fibromyalgia as a medically determinable impairment, the ALJ may make a decision based on the evidence he has or refer the claimant for a consultative examination. Id.
In light of Plaintiff's testimony that Dr. Solomon diagnosed fibromyalgia in 1998 [R. 83], about 20 years prior to the alleged onset date, the ALJ should have reasonably inferred that earlier existing records might show that potential diagnoses other than fibromyalgia were excluded. Despite this possibility and contrary to SSR 12-2p's provisions for addressing cases involving insufficient evidence, the ALJ did not attempt to obtain additional records from Dr. Solomon or any other provider who treated Plaintiff during the period of her fibromyalgia diagnosis. The ALJ also failed to take any of the other actions specified in SSR 12-2p for resolving the insufficiency in the record. Because the ALJ did not take any steps to resolve the insufficiency, he did not properly reject the diagnosis of fibromyalgia based on the absence of evidence in the record to show other potential diagnoses were excluded. See SSR 12-2p, 2012 WL 3104869, at *4 (providing that the determination may be made based on the evidence of record if the record remains insufficient “despite our efforts to obtain additional evidence”); see also Toney v. Berryhill, No. 9:17-cv-00080, 2018 WL 4090630, at *3-4 (D.S.C. Aug. 28, 2018) (reversing the ALJ's decision for failure to take these steps); Pearson v. Comm'r of Soc. Sec., No. 1:16-2726-PMD-SVH, 2017 WL 1378197, at *16-17 (D.S.C. Mar. 29, 2017) (reversing the ALJ's decision in part based on failure to take these steps), Report and Recommendation adopted by 2017 WL 1364220 (D.S.C. Apr. 14, 2017).
The Commissioner also emphasizes that Plaintiff's “records do not even reflect a formal fibromyalgia diagnosis.” [Doc. 10 at 11.] However, the same was true in Toney. Toney, 2018 WL 4090630, at *2, 3 (“[T]he ALJ stated that evidence of fibromyalgia in the record seemed to be based on the claimant's reports of having been diagnosed with the disease, ” but the plaintiff “specifically stated to the ALJ that she was diagnosed with fibromyalgia [at least 10 years prior to the onset date]” (internal quotation marks omitted)). As Toney reflects, the 2010 Criteria do not require evidence of a fibromyalgia evaluation and diagnosis. Here, the Administration requested records from the period beginning one year prior to the onset date [R. 236], and the first note from a treatment visit in the record is dated May 25, 2016 [R. 5l7-20]. Plaintiff testified that she was diagnosed with fibromyalgia in 1998. [R. 83.]
Furthermore, a review of the record does not show that the ALJ adequately considered fibromyalgia at subsequent steps in the evaluation process. He did not consider whether fibromyalgia equaled a Listing at Step 3 either singularly or in combination with other severe impairments. [R. 15.] He indicated that the medical evidence of record revealed Plaintiff had “8 out of 18 ‘trigger points, '” but “he also observed that the claimant's straight leg raise[s] were negative, ” her “joints were stable and non-tender, ” there was “no redness, heat or effusion, ” and her “deep tendon reflexes were physiologic and equal in both upper and lower extremities.” [R. 17.] He did not consider whether fibromyalgia may support the severity of Plaintiff's alleged symptoms when he found that her RFC was “supported by the medically acceptable diagnostic techniques, clinical findings and testimony of record.” [R.18.] Thus, “his RFC assessment fails to reflect adequate consideration of all of Plaintiff's impairments and his finding that Plaintiff could perform jobs at [Step 5] is inherently flawed.” Pearson, 2017 WL 1378197, at *17. In light of the foregoing, the undersigned recommends the Court find the ALJ did not adequately consider Plaintiff's fibromyalgia diagnosis under SSR 12-2p and thus that the ALJ's decision be reversed and the case remanded.
In arguing that the ALJ's finding that Plaintiff could not establish the 2010 Criteria should be affirmed, the Commissioner notes that Plaintiff “acknowledged that her treatment was limited to over-the-counter pain medication.” [Doc. 10 at 11.] But Plaintiff actually indicated that over the years she had been treated with different kinds of medicines and “had some therapy way back.” [R. 76.] She also added that she was “real sensitive to medications.” [R. 76.] In any event, “[t]he court cannot look to post-hoc offerings to support the Commissioner's decision.” Canady v. Colvin, No. 5:12-2507-KDW, 2014 WL 4063155, at *3 (D.S.C. Aug. 14, 2014); see Grisom v. Comm'r of Soc. Sec., No. 8:19-cv-02443-BHH-JDA, 2020 WL 3848227, at *11 (D.S.C. June 29, 2020) (“[B]ecause the ALJ has not given any indication in the current decision that she discounted [the physician's] decision based on [the facts identified by the Commissioner on appeal], neither of [the Commissioner's] new justifications would be a proper basis for affirmance.”), Report and Recommendation adopted by 2020 WL 3843564 (D.S.C. July 8, 2020). Because the ALJ did not reject fibromyalgia as medically determinable based on Plaintiff's course of treatment, the Commissioner's argument is an impermissible post hoc rationale that the Court cannot consider.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.