Opinion
C. A. 9:20-3202-TLW-MHC
12-16-2021
Maria Jurvonee Weathers, Plaintiff, v. Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff filed the Complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the Commissioner) denying Plaintiff's claim for disability insurance benefits under the Social Security Act. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision that Plaintiff is not disabled or to deny Plaintiff's claim for benefits, and Plaintiff requests that the decision be reversed and remanded to the Commissioner for additional administrative proceedings. The Commissioner disagrees, arguing that the decision to deny benefits is supported by substantial evidence and that Plaintiff was properly found not to be disabled.
This case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Having carefully considered the parties' submissions and the applicable law, the undersigned recommends that the Commissioner's decision be reversed and the case remanded for further proceedings.
I. APPLICABLE LAW
A. Scope of Review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted). Substantial evidence has been defined as:
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 refusal to direct a verdict were the case before a jury, then there is “substantial evidence.”Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that substantial evidence “means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”) (internal quotation marks omitted).
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Hays, 907 F.2d at 1456. Thus, in “assessing whether there is substantial evidence, the reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the agency.” Walls, 296 F.3d at 290 (internal quotation marks omitted). “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Sequential Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that the claimant has an impairment or combination of impairments that prevents the claimant from engaging in all substantial gainful activity for which the claimant is qualified by age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. §§ 423(d); 1382c(a)(3)(H)(i); 20 C.F.R. § 416.905(a).
The Social Security Administration (SSA) has established a five-step sequential evaluation process for determining if a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). The five steps are: (1) whether the claimant is engaging in substantial gainful activity; (2) whether the claimant has a severe medically determinable impairment; (3) whether the impairment(s) meets or equals an impairment set forth in the Listings of Impairments, 20 C.F.R. Part 404, Subpt. P., App. 1; (4) whether the impairment(s) prevents the claimant from returning to the claimant's past relevant work; and, if so, (5) whether the claimant is able to perform other work as it exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see Woods v. Berryhill, 888 F.3d 686, 689 (4th Cir. 2018).
It is the claimant's duty both to produce evidence and prove the claimant is disabled during the first four steps of the inquiry, while the burden shifts to the Commissioner for the final step. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). To satisfy this burden at step five, the Commissioner must prove, “by a preponderance of the evidence, that the claimant can perform other work that exists in significant numbers in the national economy, considering the claimant's residual functional capacity, age, education, and work experience.” Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016) (internal quotation marks omitted). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015); Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). The ALJ is to develop the record and where the ALJ “fails in his duty to fully inquire into the issues necessary for adequate development of the record, and such failure is prejudicial to the claimant, the case should be remanded.” Marsh v. Harris, 632 F.2d 296, 300 (4th Cir 1980).
II. ADMINISTRATIVE PROCEEDINGS
Plaintiff applied for disability insurance benefits (DIB) in December 2017, alleging disability beginning on September 23, 2017. R.p. 171. Plaintiff's claims were denied initially and upon reconsideration, and Plaintiff then requested a hearing before an Administrative Law Judge (ALJ). R.pp. 75, 93. A hearing, at which Plaintiff (represented by counsel) and a vocational expert testified, was held on September 18, 2019. R.pp. 34-65. The ALJ thereafter denied Plaintiff's claims in a decision issued October 23, 2019, finding that Plaintiff was not disabled from her alleged onset date through the date of the decision. R.pp. 10-21.
The ALJ employed the statutorily required five-step sequential evaluation process to determine whether Plaintiff was disabled from the alleged onset date of September 23, 2017. R.pp. 10-21. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2022.
2. The claimant has not engaged in substantial gainful activity since September 23, 2017, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: bilateral knee chondromalacia, tachycardia and obesity (20 CFR 404.1520(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)....
5. After careful consideration of the entire record, the [ALJ found] that the claimant
has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can occasionally climb ladders, ropes, and scaffolds and frequently climb ramps and stairs; and she can frequently stoop, kneel, crouch and crawl....
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565)....
7. The claimant was . . . 41 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569a)....
11. The claimant has not been under a disability, as defined in the Social Security Act, from September 23, 2017, through the date of this decision (20 CFR 404.1520(g)).R.pp. 10-21.
An impairment is “severe” if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
The ALJ also found that the claimant's hypertension, venous insufficiency, gastritis, irritable bowel syndrome, tremors, arthritis, and depression are not severe impairments. R.pp. 12-14. The ALJ found the claimant's fibromyalgia to be a non-medically determinable impairment. R.p. 13.
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b).
Plaintiff appealed the ALJ's decision to the Appeals Council, which concluded on July 29, 2020, that there was no basis to change the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. R.pp. 1-5. This action followed.
III. DISCUSSION
On appeal, Plaintiff asserts that the ALJ failed to properly evaluate Plaintiff's alleged fibromyalgia impairment. After careful review and consideration of the record and the arguments presented, for the reasons set forth below, the undersigned finds that it is unclear from the decision whether the ALJ properly evaluated Plaintiff's fibromyalgia, thereby requiring reversal of the decision with remand for further consideration.
A. The ALJ's Assessment of Plaintiff's Fibromyalgia
Social Security Ruling (SSR) 12-2p governs the evaluation of fibromyalgia, and it explains that fibromyalgia is “a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” SSR 12- 2p, 2012 WL 3104869, at *2 (S.S.A. July 25, 2012). Courts have recognized that fibromyalgia “symptoms are entirely subjective, ” and “[t]here are no laboratory tests for the presence or severity of fibromyalgia.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 91 (4th Cir. 2020) (quoting Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)). Moreover, physical examinations usually yield normal results such as a full range of motion, no joint swelling, normal muscle strength and neurological reactions. Id. at 96. SSR 12-2 provides that “[w]hen a person seeks disability benefits due in whole or in part to [fibromyalgia], [the ALJ] must properly consider the person's symptoms when [the ALJ] decide[s] whether the person has [a medically determinable impairment] of [fibromyalgia].” Id.
Pursuant to SSR 12-2p, a claimant can establish a medically determinable impairment of fibromyalgia by demonstrating: (1) a diagnosis from an acceptable medical source and (2) evidence from that source that satisfies either the 1990 American College of Rheumatology Preliminary Diagnostic Criteria for fibromyalgia (the “1990 Criteria”) or the 2010 American College of Rheumatology Preliminary Diagnostic Criteria for fibromyalgia (the “2010 Criteria”). Id. The 1990 Criteria requires a claimant to show (1) a history of widespread pain, (2) at least 11 positive tender points on physical examination, and (3) evidence that other disorders that could cause the signs or symptoms were excluded. SSR 12-2p, 2012 WL 3104869, at *3. Under the 2010 Criteria, a claimant establishes a medically determinable impairment of fibromyalgia by showing: (1) a history of widespread pain; (2) repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome; and (3) evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded. See SSR 12-2p, 2012 WL 3104869, at *2-3.
In this case, the ALJ found that Plaintiff did not have a medically determinable impairment of fibromyalgia:
The claimant's fibromyalgia is found to be a non-medically determinable impairment. The medical record did not include evidence of at least 11 tender points on physical examination or of repeated manifestations of 6 or more fibromyalgia symptoms, signs or co-occurring conditions. Notably, the claimant frequently displayed a normal strength and tone during clinical examinations. Therefore, the condition is not medically determinable.R.p. 13 (internal citations omitted).
B. The Parties' Arguments
Plaintiff concedes that the medical record does not contain evidence of at least 11 tender points, such that her fibromyalgia cannot be found to be a medically determinable impairment under the 1990 Criteria. ECF No. 13 at 25. However, she argues that the record contains sufficient evidence to satisfy the 2010 Criteria, such that it was error for the ALJ to conclude that her fibromyalgia was not a medically determinable impairment. With respect to the first 2010 criterion,
Plaintiff points to multiple records documenting a history of widespread complaints of pain. Id. (citing R.pp. 802, 813, 827, 890). Regarding the second criterion, Plaintiff argues that the “records show numerous instances of fibromyalgia symptoms, signs or co-occurring conditions including fatigue (R 382, 501, 602); depression (R 377, 386, 421); irritable bowel syndrome, (R 421, 619, 632); numbness/tingling (R 343, 1141, 1155); rash (R 1087, 1119, 1154); and, headache. (R 336, 694, 1087).” Id. She further asserts that “the ALJ simply ignored this evidence.” Id. at 26. With respect to the third, and final, criterion, Plaintiff notes that the ALJ did not make any finding regarding whether there was evidence that other disorders that could cause the signs or symptoms were excluded. Id. at 27. She argues, however, that there is evidence in the record sufficient to support a finding that other disorders were excluded. Id. Specifically, Plaintiff points to treatment notes from Rheumatologist Celine Ward, in which Dr. Ward assessed Plaintiff for possible lupus but determined that Plaintiff did not meet the criteria for lupus. R.p. 853. According to Plaintiff, Dr. Ward's determination essentially excluded lupus as a possible diagnosis explaining her symptoms. ECF No. 15 at 6. Plaintiff also argues that the ALJ's reliance on evidence that Plaintiff “frequently displayed a normal strength and tone during clinical examinations” is misplaced, as courts have recognized that fibromyalgia symptoms are entirely subjective and physical examinations usually yield normal results such as a full range of motion, no joint swelling, normal muscle strength and neurological reactions. ECF No. 13 at 26-27 (citing Arakas, 983 F.3d at 96).
In Response, the Commissioner does not refute the existence of record evidence supporting the first two criteria relating to pain and signs, symptoms and co-occurring conditions; however, the Commissioner claims that Plaintiff “does not provide proof of the third criteria-that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded.” ECF No. 14 at 10. According to the Commissioner, “the record showed that her medical providers had not excluded other disorders that could be causing her pain.” Id. at 10-11 (noting that there was evidence that Plaintiff had seen three rheumatologists-Drs. Dayal, Burack, and Celine Ward-and arguing that none of them had excluded other disorders as the source of her pain). The Commissioner further argues that Plaintiff was seen by cardiologists, her primary care physician Joyce Ward, and a vascular surgeon, and that notes from those visits document a medical history of obesity, tremors, hypertension, tachycardia, chest pain on exertion, depression, patellofemoral syndrome of both knees, chondromalacia of both patellae, and a family history of lupus. Id. at 11 (citing R.pp. 814, 890, 899, 970, 991, 1251, 1254, 1265, 1273, 1369). The Commissioner also notes that two rheumatologists and a vascular surgeon found that Plaintiff could possibly have Raynaud's syndrome. Id. at 10-11 (citing R.pp. 912, 1261). The Commissioner contends that Plaintiff did not meet the requirements of SSR 12-2p to show that other disorders were excluded as possible causes of her pain because “her records indicate multiple disorders that could be the source of her pain and that were not excluded by her doctors.” Id.
In Reply, Plaintiff contends that the Commissioner's arguments regarding the third criterion “are impermissible post hac rationale” because the ALJ did not say anything about the third criterion in her decision. ECF No. 15 at 7. Plaintiff also argues that the Commissioner has misconstrued the medical records and argues that diagnoses of chronic pain syndrome and Raynaud's syndrome would not rule out fibromyalgia. Id. at 5. She argues that the symptoms of Raynaud's syndrome-fingers that turn pale or white then blue when exposed to cold, or during stress or emotional upset, then red when the hands are warmed-do not explain Plaintiff's fibromyalgia symptoms, and the Commissioner has not explained why the other diagnoses listed by the Commissioner would be considered to cause her fibromyalgia symptoms. Id. at 5-7. Finally, Plaintiff notes that the Commissioner did not refute her arguments that the ALJ's error at Step 2 was not harmless. Id. at 7; ECF No. 14 at 26-27.
C. Analysis
In making her determination that Plaintiff did not have a medically determinable impairment of fibromyalgia, the ALJ did not address all three 1990 Criteria or all three 2010 Criteria. Rather, she addressed only the second criterion for each test. As stated above, Plaintiff does not disagree with the ALJ's finding that the record does not contain evidence sufficient to establish the second prong of the 1990 Criteria. Accordingly, the undersigned will address only the 2010 Criteria.
The ALJ did not address the first prong of the 2010 Criteria or make any specific findings about whether the medical evidence shows a history of widespread pain. However, the undersigned agrees with Plaintiff that there is evidence in the record documenting a history of widespread pain. See R.pp. 592, 802, 813, 827, 382, 890, 1119.
With respect to the second prong of the 2010 Criteria, the ALJ found that the medical records “did not include evidence . . . of repeated manifestations of 6 or more fibromyalgia symptoms, signs or co-occurring conditions.” R.p. 13. However, substantial evidence does not support this finding. As Plaintiff cited in her brief, there is evidence of repeated manifestations of fatigue, depression, irritable bowel syndrome, numbness/tingling, rash, and headache. See R.pp. 336, 343, 377, 382, 386-88, 421, 501, 601-03, 619, 628, 632, 694, 696, 827-28, 842, 851-52, 1119, 1153-54. Additionally, multiple physicians indicated that Plaintiff may have Raynaud's phenomenon. See R.pp. 592, 853, 912, 1261, 1265, 1369, 1379, 1391. SSR 12-2p specifically identifies each of these “somatic symptoms” as among those the Commissioner considers “to be [fibromyalgia] ‘signs' under 20 CFR 404.1528(b) and 416.928(b).” SSR 12-2p, 2012 WL 3104869, at *3 n.9 (“These ‘somatic symptoms' include muscle pain, irritable bowel syndrome, fatigue or tiredness, . . . headache, . . . numbness or tingling, . . . depression, . . . chest pain, . . . Raynaud's phenomenon, . . . rash[.]”). Because the ALJ did not mention or discuss SSR 12-2p in her decision, it is not clear whether she considered this guidance in determining what constituted signs and symptoms of fibromyalgia. At any rate, however, the undersigned concludes that there is evidence of repeated manifestations of 6 or more fibromyalgia symptoms, signs or co-occurring conditions, such that substantial evidence does not support the ALJ's conclusion to the contrary.
With respect to the third criterion, the undersigned agrees with Plaintiff that the ALJ never discussed whether there was evidence in the record that other disorders that could cause repeated manifestations of fibromyalgia symptoms, signs, or co-occurring conditions were excluded. See SSR 12-2p, 2012 WL 3104869, at *2-3. Nonetheless, there is evidence in the record that at least one such disorder-lupus-was excluded. Treatment notes from Rheumatologist Ward's April 23, 2018 examination of Plaintiff indicate that Rheumatologist Ward determined that Plaintiff “does not meet classification criteria for lupus.” R.p. 853. Subsequent treatment notes from PCP Dr. Joyce Ward noted that “Lupus was ruled out.” R.pp. 1261, 1265, 1369, 1379, 1391.
One of those same records by PCP Ward also lists lupus erythematosus among Plaintiff's ongoing “Problem List/Past Medical History, ” despite noting under the narrative “History of Present Illness” that “Lupus was ruled out.” R.p. 1369. The ALJ did not discuss this particular record, and it is not the Court's responsibility to weigh conflicting evidence in the first instance. See Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013).
Although the Commissioner argues that Plaintiff did not meet the requirements of SSR 122p to show that other disorders were excluded as possible causes of her pain because “her records indicate multiple disorders that could be the source of her pain and that were not excluded by her doctors, ” ECF No. 14 at 11, “this Court cannot accept the Commissioner's post hac explanations as a substitute for the ALJ's failure to articulate in the first instance the grounds for h[er] decision.” See Bailey v. Saul, No. CV 1:19-1998-BHH, 2020 WL 5640540, at *4 (D.S.C. Sept. 22, 2020); Robinson ex rel. M.R. v. Comm'r of Soc. Sec., No. 0:07-3521-GRA, 2009 WL 708267, at *12 (D.S.C. 2009) (noting that “[p]rinciples of agency law limit this Court's ability to affirm based on post hoc rationalizations from the Commissioner's lawyers, ” and explaining that even if the record contains enough evidence to support the ALJ's decision, “principles of administrative law require the ALJ to rationally articulate the grounds for his decision and confine [the Court's] review to the reasons supplied by the ALJ”) (citing Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)); see also Truitt v. Saul, No. 1:19-527-MGL-SVH, 2020 WL 1000106, at *16 (D.S.C. Jan. 6, 2020) (“While a review of the record provides additional reasons the ALJ could have reasonably cited to support the weight he gave Dr. Boyels's opinion, the burden rests with the ALJ to cite such evidence, and his failure to do so cannot be cured by the Commissioner's argument to the Court.”). Thus, the undersigned cannot evaluate the sufficiency of the ALJ's decision by looking at the Commissioner's post hac offerings. See Stettler v. Berryhill, No. 817CV00836BHHJDA, 2018 WL 2716309, at *10 (D.S.C. May 22, 2018), report and recommendation adopted, No. 8:17-CV-836-BHH, 2018 WL 2689277 (D.S.C. June 5, 2018); Canady v. Colvin, No. CA 5:12-2507, 2014 WL 4063155, at *3 (D.S.C. Aug. 14, 2014).
The undersigned concludes that the ALJ's analysis of whether Plaintiff's fibromyalgia is a medically determinable impairment was flawed. In determining that Plaintiff's fibromyalgia is not a medically determinable impairment, the ALJ addressed only one of the three 2010 Criteria, and substantial evidence does not support her finding in that regard. The ALJ failed to analyze the remaining two criteria, despite the guidance set forth is SSR 12-2p. Moreover, there is evidence in the record of a history of widespread pain and of the exclusion of at least one other potential diagnosis. See Bullard v. Berryhill, No. CV 1:17-432-JMC-SVH, 2017 WL 10399270, at *17 (D.S.C. Oct. 12, 2017), report and recommendation adopted sub nom. Bullard v. Comm'r of Soc. Sec. Admin., No. 1:17-CV-00432-JMC, 2018 WL 4575148 (D.S.C. Sept. 25, 2018) (“The 1990 and 2010 Criteria do not specify how many other potential diagnoses must be excluded.”); see also Strickland v. Berryhill, No. 7:16-CV-252-FL, 2017 WL 3910436, at *5 (E.D. N.C. Aug. 21, 2017), report and recommendation adopted, No. 7:16-CV-252-FL, 2017 WL 3908675 (E.D. N.C. Sept. 6, 2017) (finding that substantial evidence did not support ALJ's conclusion that the record contained no evidence that other disorders were excluded where there were records related to a consultation to rule out rheumatoid arthritis).
“Given the depth and ambivalence of the medical record, the ALJ's failure to adequately explain h[er] reasoning precludes this Court . . . from undertaking a ‘meaningful review' of the finding that” Plaintiff's fibromyalgia is not a medically determinable impairment. Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013). Moreover, just as it is not this Court's province to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the ALJ, ” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012), it is also not “the province of the district court . . . to engage in these exercises in the first instance.” Radford, 734 F.3d at 296. Thus, the undersigned recommends that this action be reversed and remanded to the Commissioner to consider Plaintiff's fibromyalgia pursuant to the standards set forth in SSR 12-2p.
The Commissioner does not argue that any error would be harmless, and the undersigned likewise cannot conclude that the ALJ's error at Step 2 in this case is harmless. Rather, the ALJ's error potentially impacted each subsequent step of the sequential evaluation, because the ALJ did not consider Plaintiff's fibromyalgia at subsequent steps. See Strickland v. Berryhill, No. 7:16-CV-252-FL, 2017 WL 3910436, at *5 (E.D. N.C. Aug. 21, 2017), report and recommendation adopted, No. 7:16-CV-252-FL, 2017 WL 3908675 (E.D. N.C. Sept. 6, 2017) (finding that ALJ's analysis of whether fibromyalgia was an MDI was flawed and not supported by substantial, and that the error “potentially impacted each subsequent step of the sequential evaluation, because Claimant's fibromyalgia was not further considered”); see also Toney v. Berryhill, No. 9:17-CV-00080, 2018 WL 4090630, at *4 (D.S.C. Aug. 28, 2018) (explaining that “in assessing residual functional capacity, the Administration considers only medically determinable impairments, ” and that “because the ALJ concluded that [the claimant] did not have a medically determinable impairment of fibromyalgia, it would have been improper to consider it in the RFC calculation”) (emphasis in original) (citation and internal quotation marks omitted).
RECOMMENDATION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED AND REMANDED pursuant to 42 U.S.C. § 405(g) for further administrative review.
IT IS SO RECOMMENDED.
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).