Opinion
8:23-cv-02300-RMG-BM
06-10-2024
Cindy Gilliam, Plaintiff, v. Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
BRISTOW MARCHANT 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 remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In August 2016, Plaintiff filed an application for DIB alleging disability beginning April 1, 2016. R. 169-72. The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). R. 104-07, 111-15. Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on August 16, 2018, ALJ J. Petri conducted a de novo hearing on Plaintiff's claim. R. 36-68.
The ALJ issued a decision on December 31, 2018, finding Plaintiff not disabled under the Social Security Act (“the Act”). R. 16-34. Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. R. 1-7.
Plaintiff then requested judicial review. On December 27, 2020, this Court found the ALJ failed to properly consider Plaintiff's fibromyalgia and opinions from two of Plaintiff's physicians and remanded the matter to the Administration for further proceedings. R. 680-701. On July 26, 2022, the ALJ held a second hearing. R. 619-44. The ALJ again found Plaintiff not disabled under the Act in an opinion issued on August 2, 2022. R. 592-618. At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2023. R. 597. At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease of the lumbar and cervical spine, fibromyalgia, diabetes mellitus, sleep apnea, asthma, obesity, post-traumatic stress disorder (“PTSD”), major depressive disorder, and generalized anxiety disorder. R. 597-98. The ALJ also found Plaintiff had non-severe impairments, including hyperlipidemia, carpal tunnel syndrome, hernia status post-surgical repair, and gastroesophageal reflux disease (“GERD”). R. 598. At Step 3, the ALJ found none of Plaintiff's impairments met or medically equaled the severity of a listed impairment. Id.
Regarding Plaintiff's residual function capacity (“RFC”), the ALJ found Plaintiff retained the ability to
perform light work as defined in 20 CFR 404.1567(b) except she can never climb. She can occasionally balance, stoop, kneel, crouch, and crawl. She can tolerate frequent exposure to extreme cold, humidity, and pulmonary irritants, but no exposure to workplace hazards (i.e. moving machinery and unprotected heights). She is limited to simple, routine tasks, performed two hours at a time with only simple, work-related
decisions and occasional changes in the work setting or work methods. She can have no interaction with the public and cannot perform tandem or team-dependent tasks. She can have occasional interaction with coworkers and supervisors.R. 602. At Step 4, the ALJ found Plaintiff was incapable of performing her past relevant work as a court reporter and data entry operator. R. 608. Upon considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. R. 609. Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act from April 1, 2016, through August 5, 2022, the date of the ALJ's decision. R. 610.
Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. R. 574. Plaintiff filed the instant request for judicial review on May 29, 2023. ECF No. 1.
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ did not properly consider her fibromyalgia, ECF No. 8 at 52-55, and did not properly evaluate the opinions of Dr. Eric Loudermilk and Dr. Rebecca Norris, id. at 55-61. The Commissioner, on the other hand, contends that substantial evidence supports the ALJ's decision. ECF No. 12 at 11-21.
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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F.Supp. 686, 687 (S.D. W.Va. 1963)) (“Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.'”).
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. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); 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) (quoting 42 U.S.C. § 405(g)). 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); Brenem v. Harris, 621 F.2d 688, 690-91 (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 is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also 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 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
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) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), 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 her past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is “the most [a claimant] can still do despite [her] 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. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because “it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time”); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
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. 49,462-03, 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 and Weight Assigned to Treating Physicians' Opinions
At her first hearing, Plaintiff testified that chronic back pain associated with her severe fibromyalgia was the primary reason that she stopped working. R. 46-47, 55. She explained that she sat with her feet elevated to relieve some of the pressure off of her back, but, even so, if she sat for 15 or 20 minutes, it started hurting her back and she then needed to “get up and move around” for 10 or 15 minutes. R. 47-49, 54-55.
Since the ALJ's 2018 decision, Plaintiff has continued to treat with Dr. Loudermilk, a pain specialist, and Dr. Norris, Plaintiff's primary care physician, and has continued to report fibromyalgia symptoms. See R. 1522-28 (left shoulder and arm pain), 1032-33 (chronic pain in lower back and right leg), 1031 (worsening pain radiating from back to hips, legs, and feet), 1501-06 (fatigue, lower extremity weakness, muscle pain), 1429 (increased generalized pain), 1476-81 (tiredness), 1427 (increased generalized pain), 1465-70 (insomnia and chronic back pain),1656-64 (trouble concentrating and remembering things), 1738 (back and right shoulder pain), 1733-34 (pain in lower back and legs), 1725-26 (bilateral hip pain), 1745-47 (poor attention and concentration), 1777-83 (increased pain in joints, hands, knees, and elbows), 1723-24 (severe hip pain), 1835 (increased bilateral hip pain), 1853-57 (swelling in legs, arms, and hands). Plaintiff also underwent a cervical spine MRI, which showed cervical spondylosis and facet osteoarthritis with multilevel disc bulges and osteophyte formation causing varying degrees of central canal stenosis and neural foraminal impingement. R. 1262-84. Plaintiff has since been diagnosed with neck pain with left upper extremity radiculopathy secondary to cervical spondylosis and cervical disc disease at ¶ 5-C6, R. 1439-40, and has begun receiving cervical epidural steroid injections, see, e.g., R. 1437-38. Starting in 2020, Plaintiff's diagnoses also included generalized osteoarthritis. See R. 1739.
At her second hearing, Plaintiff testified that she started experiencing fibromyalgia symptoms around March 2016. R. 625. She stated her doctor had never tested her for trigger or tender points, but she had been tested for other autoimmune diseases and was negative for those. Id. Plaintiff described experiencing pain in her arms, hands, legs, back, and feet. R. 626. She testified that she also had degenerative disc disease in her neck and back but that she could differentiate between the spinal pain and the fibromyalgia pain. R. 626-27. Plaintiff described her spinal pain as sharp and excruciating and the fibromyalgia pain as constant. Id. She stated she could not take showers or baths because the pain increased when she got cold and that she stayed in bed a lot because of the pain. R. 627. Plaintiff was prescribed Lyrica for her fibromyalgia pain and stated it helped, but only to a point, and that she still experienced increased pain when it rained and when it was cold. Id. Plaintiff used a four-point cane at the hearing and stated it was prescribed for extra security because her legs would go out on her. R. 627-28. She testified her balance became a problem as she got older but that she could balance fine without the cane before March 2017. R. 628. Plaintiff testified that in early 2017 she was able to swim, but did not do a lot of walking or sitting. Id. Plaintiff agreed she originally testified she stopped working due to fibromyalgia-related pain, but stated she also struggled at work at that time because of severe PTSD and psychiatric symptoms including crying spells, trouble concentrating, and panic attacks. R. 632-34.
At the time of the hearing, Plaintiff was still seeing Dr. Loudermilk. R. 636. She had been treating with him since before March 2017 and Dr. Loudermilk had prescribed Lyrica, Percocet, Mobic, and Cymbalta. Id. Plaintiff stated the medications made her tired and that she would have to take a two-hour nap during the day every day. R. 636-37.
Between 2019 and 2021, Plaintiff worked as a self-employed court reporter, working when she “wanted to and felt like [she] could.” R. 639. She stated she could not work “too much” because typing and picking up bags was difficult. Id. She earned between $10,000.00 and $12,000.00 during that time. Id.
The Doctors' Opinions
Dr. Loudermilk completed a questionnaire concerning Plaintiff on May 11, 2018. R. 483-84. He reported that he had been treating her for low back pain, leg pain, and fibromyalgia pain since August 2014. R. 483. He noted Plaintiff had chronic back pain and diffuse muscle and joint pain due to fibromyalgia and that she required chronic pain medications, which he provided. R. 484. He stated that she needed to avoid lifting and carrying over 20 to 25 pounds, pushing or pulling over 50 pounds, and climbing ladders or being exposed to unprotected heights. R. 483. He also noted that she should avoid bending, twisting, crawling, and balancing. Id. And, he noted that she could not sit or stand for prolonged periods, needed to alternate between sitting and standing, and avoid prolonged lifting, carrying, or bending. Id.
Dr. Loudermilk provided a second opinion in October 2021, reaffirming his 2018 statements. R. 1675. Dr. Loudermilk noted he was a certified physician specializing in pain management. Id. He stated Plaintiff had been diagnosed with back pain, PTSD, anxiety and depression, and fibromyalgia. Id. Regarding plaintiff's fibromyalgia, Dr. Loudermilk explained he diagnosed the condition after observing Plaintiff's widespread pain, diffuse joint and muscle [pain], anxiety, insomnia, depression, “and a constellation of other symptoms.” Id. He opined Plaintiff's mental impairments increased her daily physical pain and stated he had been treating Plaintiff's pain with a combination of Percocet, Lyrica, Cymbalta, Mobic, and Voltaren Gel. Id. Dr. Loudermilk noted a 2017 MRI had also revealed lumbar disc bulging, protrusions, and facet arthropacy. Id. He opined Plaintiff would miss more than five days per month of work due to a combination of her conditions, would only be able to sit for between 30 and 45 minutes at a time and less than six hours total in an eight-hour workday due to her back and the joint pain from her fibromyalgia, could not walk for prolonged distances, and would be off task more than 15% of a working day. Id.
Dr. Norris also completed a questionnaire concerning Plaintiff on May 11, 2018. R. 485-86. She indicated that she treated Plaintiff for degenerative disc disease with chronic pain, myalgia, generalized anxiety disorder, GERD, insomnia, major depression with PTSD, diabetes, and hypertension. R. 485. Dr. Norris noted that Plaintiff had limited activity tolerance as a result of her myalgia and that she must be able to sit and stand as needed due to myalgia pain. Id. She opined that Plaintiff was not capable of returning to work activities due mostly to her mental health and limitations from her medications and that her myalgia would prohibit her from maintaining a full-time job. R. 486.
The Agency's medical reviewers, who examined Plaintiff's records but never Plaintiff herself, found she had exertional limitations consistent with light work, including occasionally lifting or carrying 20 pounds, frequently lifting or carrying 10 pounds, standing and walking for about six hours in an eight-hour workday, sitting for six hours in an eighthour workday, and that she was unlimited in her ability to push or pull. R. 77, 97.
The ALJ's Discussion
The ALJ found Plaintiff's fibromyalgia qualified as a severe impairment at Step Two.
R. 597-98. In her listing analysis, the ALJ stated:
Although there is no specific listing for fibromyalgia, Listing 14.09D has been considered. However, the claimant does not meet or equal any listing with fibromyalgia or a combination of impairments. Social Security Rulings 12-2p and 16-3p have been considered carefully. Social Security Ruling 12-2p instructs an adjudicator to look beyond the objective evidence, if necessary, to fully consider a claimant's subjective complaints due to fibromyalgia. Additionally, Social Security Ruling 16-3p instructs an adjudicator to utilize objective evidence as only one factor in considering a claimant's allegations. Therefore, the undersigned has given further consideration to the claimant's subjective complaints in a manner consistent with these rulings, as detailed below The undersigned has considered the totality of the record, including the longitudinal records, opinions, and objective and subjective evidence regarding fibromyalgia. It is acknowledged that symptoms wax and wane, but the overall effect of the impairment is considered in assessing the residual functional capacity.R. 600 (citations omitted).
The ALJ found Plaintiff capable of performing a full range of light work, except for the postural limitations discussed above. R. 602. This means the ALJ found Plaintiff could sit, stand, and walk for a full six hours in an eight-hour workday. The ALJ acknowledged Plaintiff's allegations of widespread pain in her arms, hands, legs, and feet and that she stopped working due to pain. R. 602. The ALJ then turned to the objective medical evidence. Regarding Plaintiff's fibromyalgia specifically, the ALJ stated:
The claimant has a history of fibromyalgia. She takes Mobic and Lyrica. On exams, there is no clubbing, cyanosis, or edema. Gait and station are normal. Inspection of all extremities is normal with no atrophy or swelling. Cranial nerves are intact. Grip strength is normal. There are no focal neurological deficits. Deep tendon reflexes are normal. The claimant has normal range of motion and no tenderness. She has normal reflexes and no cranial nerve deficits. The claimant testified that she has never had testing for tender points, but reports autoimmune labs were normal.
The claimant was seen in November 2021 with a history of chronic pain in the neck and left arm, consistent with radiculopathy and fibromyalgia. She was managing her pain effectively with medications. She reported 80% relief of pain with injections and that she did not need any further injections. In December 2021, sensation was intact to light touch in all extremities. Gait and station were normal. Motor exam in April 2022 was within normal limits. Motor function was normal. Tone and muscle bulk were normal. Sensation was intact to light touch. Gate was within normal limits. Coordination was intact. On exam in June 2022, cranial nerves were intact. Extremities were warm and well perfused.R. 604. Based on the above, the ALJ concluded, “[t]here is no indication that claimant's fibromyalgia causes limitations greater than the above light residual functional capacity.” Id. The ALJ also found Plaintiff's pain was well-controlled with medication and that her work activity indicated Plaintiff's “daily activities have, at least at times, been somewhat greater than [she] has generally reported.” R. 605-06.
Turning to the medical opinions, the ALJ found as follows:
Eric Loudermilk, M.D. completed a medical source statement in May 2018. Dr. Loudermilk opined the claimant . . . cannot sit or stand for prolonged periods. She needs to alternate between sitting and standing.... Dr. Loudermilk said it would be difficult for the claimant to maintain full time work . . . The postural limitations are inconsistent with objective evidence showing normal physical exams. Muscle strength was within normal limits. There were no subluxations. Gait was normal. The claimant was able to stand without difficulty. The claimant has normal range of motion and no tenderness. She has normal reflexes and no cranial nerve deficits. Gait and station are consistently normal....
In October 2021, Dr. Loudermilk opined the claimant can sit 30-45 minutes at a time, less than 6 hours total. She cannot walk prolonged distances. She would be off task more than 15% of the time and miss more than 5 days of work per month. This opinion is given little weight as it is not supported by treatment notes or consistent with the record as a whole. On exams, muscle strength was within normal limits. There were no subluxations, gait was normal. The claimant was able to stand without difficulty. The claimant has normal range of motion and no tenderness. She has normal reflexes and no cranial nerve deficits. Gait and station are consistently normal. Further, the limitations for time off task and absenteeism are overly restrictive in light of objective evidence. The claimant is noted to be doing well and feeling “much better.”
Dr. Rebecca Norris opined the claimant has limited activity tolerance. She must alternate sitting and standing as needed. Dr. Norris opined the claimant is not able to work. This is given little weight as it is not supported by treatment notes or findings and is not consistent with the record as a whole.... Moreover, the opinion is not consistent with the normal physical exams in the record. The claimant has normal reflexes and no cranial nerve deficits. Gait and station are consistently normal.R. 607-08 (citations omitted). On the other hand, the ALJ afforded great weight to the Agency reviewers' opinions, noting their “findings are supported by and consistent with the objective evidence.” R. 606.
Discussion
“Although there is no medical listing for fibromyalgia, Titles II and XVI of SSR 12-2p provide[ ] guidance on how the Commissioner develops evidence to establish that a person has a medically determinable impairment of fibromyalgia, and how to evaluate fibromyalgia in disability claims and continuing disability reviews.” Smith v. Colvin, No. 2:14-cv-00042, 2015 WL 7571946, at *7 (W.D. Va. Nov. 24, 2015). SSR 12-2p defines fibromyalgia as a “complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” SSR 12-2p, 77 Fed.Reg. 43,640, 43,641 (July 25, 2012). Ruling 12-2p explains how the Commissioner considers fibromyalgia in the five-step sequential evaluation process-including the RFC assessment-for determining disability:
How do we consider FM [fibromyalgia] in the sequential evaluation process? As with any adult claim for disability benefits, we use a 5-step sequential evaluation process to determine whether an adult with an MDI [medically determinable impairment] of FM is disabled.
A. At step 1, we consider the person's work activity. If a person with FM is doing substantial gainful activity, we find that he or she is not disabled.
B. At step 2, we consider whether the person has a “severe” MDI(s). If we find that the person has an MDI that could reasonably be expected to produce the pain or other symptoms the person alleges, we will consider those symptom(s) in deciding whether the person's impairment(s) is severe. If the person's pain or other symptoms cause a limitation or restriction that has more
than a minimal effect on the ability to perform basic work activities, we will find that the person has a severe impairment(s).
C. At step 3, we consider whether the person's impairment(s) meets or medically equals the criteria of any of the listings in the Listing of Impairments in appendix 1, subpart P of 20 CFR part 404 (appendix 1). FM cannot meet a listing in appendix 1 because FM is not a listed impairment. At step 3, therefore, we determine whether FM medically equals a listing (for example, listing 14.09D in the listing for inflammatory arthritis), or whether it medically equals a listing in combination with at least one other medically determinable impairment.
D. Residual Functional Capacity (RFC) assessment: In our regulations and SSR 96-8p, we explain that we assess a person's RFC when the person's impairment(s) does not meet or equal a listed impairment. We base our RFC assessment on all relevant evidence in the case record. We consider the effects of all of the person's medically determinable impairments, including impairments that are “not severe.” For a person with FM, we will consider a longitudinal record whenever possible because the symptoms of FM can wax and wane so that a person may have “bad days and good days.”
E. At steps 4 and 5, we use our RFC assessment to determine whether the person is capable of doing any past relevant work (step 4) or any other work that exists in significant numbers in the national economy (step 5). If the person is able to do any past relevant work, we find that he or she is not disabled. If the person is not able to do any past relevant work or does not have such work experience, we determine whether he or she can do any other work. The usual vocational considerations apply.Id. at 43,643-44 (emphasis added) (internal footnotes omitted).
Ruling 12-2p further provides that the Commissioner may find a claimant has a medically determinable impairment of fibromyalgia if the claimant meets all three of the following criteria: (1) a history of widespread pain, (2) repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions, and (3) evidence that other disorders could cause these repeated manifestations were excluded. Id. at 43,642.
Courts have recognized that “[f]ibromyalgia symptoms are entirely subjective [and t]here are no laboratory tests for the presence or severity of fibromyalgia.” Arakas v. Commissioner, 983 F.3d 83, 91(4th Cir. 2020). Indeed, “[p]hysical examinations [of patients with fibromyalgia] will usually yield normal results-a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions.” Id. at 96 (second alteration in original) (internal quotation marks omitted). Additionally, the nature of fibromyalgia is such that an individual's ability to perform “certain tasks or postural maneuvers on a given day does not necessarily reflect an ability to perform those tasks on a sustained basis.” Smith v. Colvin, No. 1:14-cv-04400-RBH, 2016 WL 1089302, at *7 (D.S.C. March 21, 2016) (internal quotation marks omitted).
The Court previously remanded this matter for further review in accordance with the above precedent, especially Arakas, which the Fourth Circuit had just decided. R. 676-701. In Arakas, the Fourth Circuit held that “ALJs may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia.” 983 F.3d at 97. The court emphasized that “[o]bjective indicators such as normal clinical and laboratory results simply have no relevance to the severity, persistence, or limiting effects of a claimant's fibromyalgia, based on the current medical understanding of the disease” and that if an ALJ considers objective evidence at all, it “should be treated as evidence substantiating the claimant's impairment.” Id. at 97-98 (emphasis in original). Once again, the ALJ has failed to adhere to this standard. It is clear from the decision that the ALJ discounted both Plaintiff's complaints and the opinions of her treating physicians because they were not consistent with objective evidence showing normal physical examinations-exactly the type of evidence the Fourth Circuit instructs have “no relevance” to the “limiting effects of a claimant's fibromyalgia.” Arakas, 983 F.3d at 97; see R. 604, 607.
The Commissioner attempts to distinguish Arakas because here the ALJ summarized the results of physical examinations but “did not state that she relied on those results or other objective medical evidence, in order to discount Plaintiff's subjective fibromyalgia complaints.” ECF No. 12 at 13 (emphasis in original). This ignores basic principals of legal writing, or any type of structural writing. If the summarized examination results are not offered to support the ALJ's conclusions, then they are misplaced. Every section of the ALJ's decision that discusses Plaintiff's pain, fibromyalgia, or limitations related to Plaintiff's pain or fibromyalgia includes a list of negative medical examinations. See R. 603; 604; 606-08. A reader cannot reach any conclusion other than that the ALJ relied on these objective tests when assigning little weight to Plaintiff's treating physician's opinions and finding “no indication [Plaintiff's] fibromyalgia causes limitations greater than” the RFC. Neither the Court nor the Commissioner can re-structure the ALJ's decision.
The Commissioner also argues the ALJ permissibly relied on objective evidence because she was also evaluating Plaintiff's subjective complaints related to her degenerative disc disease, diabetes, and obesity-all impairments that cause pain and are amenable to objective testing. ECF No. 12 at 13. The Court agrees that the ALJ can and should review objective findings in assessing those impairments. However, any objective findings, or lack thereof, cannot be used to chip away at Plaintiff's allegations of fibromyalgia-related symptoms and limitations.
Accordingly, the Court finds no substantive basis on which it can distinguish this case from Arakas and recommends the ALJ's decision be reversed and this case be remanded for further administrative review of Plaintiff's claim.
Remaining Allegations of Error
Because the Court finds that the ALJ's focus on the lack of objective medical evidence as a basis for rejecting Plaintiff's alleged limitations from fibromyalgia and for discounting the opinions of Dr. Loudermilk and Dr. Norris regarding the limitations associated with Plaintiff's alleged fibromyalgia is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations of error. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002). On remand, however, the Commissioner should consider Plaintiff's remaining allegations of error.
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.