Opinion
Civil Action No. 8:18-cv-02972-MGL-JDA
12-27-2019
Vanessa Faye George, Plaintiff, v. Andrew Saul, Commissioner Social Security, Defendant.
REPORT AND RECOMMENDATION OF 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) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claims for disability insurance benefits ("DIB") and supplemental security income ("SSI"). 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.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In October 2014, Plaintiff filed applications for DIB and SSI, alleging an onset of disability date of September 23, 2009. [R. 210-26.] The claims were denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 67-145, 150-59.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on July 17, 2017, ALJ Peggy McFadden-Elmore conducted a de novo video hearing on Plaintiff's claims. [R. 46-66.]
Plaintiff subsequently amended her alleged onset date to December 13, 2015. [R. 239-40.]
The ALJ issued a decision on November 1, 2017, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 7-30.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through December 30, 2016, and had not engaged in substantial gainful activity since December 13, 2015, the amended alleged onset date. [R. 13, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: carpal tunnel syndrome; degenerative changes of the lumbosacral spine; hypothyroidism; hyperlipidemia; obesity; and history of fibromyalgia. [R. 13, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of high blood pressure; anemia; insomnia; history of kidney stones; calculus of gallbladder with cholecystitis without biliary obstruction; S/P resection of ovarian cancer; and anxiety disorder. [R. 13.] At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 14, 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 his past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with some non-exertional limitations. The claimant is capable of lifting and/or carrying 20 pounds occasionally and 10 pounds frequently. She is capable of standing and/or walking at least 6 hours in an 8-hour workday and sitting about 6 hours in an 8-hour workday. She can occasionally climb ladders, ropes, scaffolds, ramps and stairs, balance, stoop, kneel, crouch and crawl. She can frequently perform handling bilaterally. She must avoid concentrated exposure to workplace hazards.[R. 16, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant as a cook. [R. 23, Finding 6]. However, considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert ("VE"), the ALJ found that there were jobs that existed in significant numbers in the national economy that the Plaintiff could perform. [R. 24, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined in the Act from December 13, 2015, through the date of the decision. [R. 25, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on November 2, 2018. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision should be reversed and remanded for an award of benefits or for further administrative proceedings. [Doc. 15.] Specifically, Plaintiff contends the ALJ failed to properly consider Plaintiff's fibromyalgia under SSR 12-2p [id. at 12-17]; failed to explain how the RFC accounts for Plaintiff's carpal tunnel syndrome, reduced range of motion of the bilateral shoulders, and peripheral neuropathy [id. at 18-21]; failed to properly assess medical source opinion evidence [id. at 21-27]; and failed to consider her subjective symptomology in accordance with SSR 16-3p [id. at 27-29].
The Commissioner, on the other hand, contends the ALJ's decision should be affirmed because the record contains substantial evidence supporting the decision. [Doc. 17.] The Commissioner argues the ALJ fully accounted for Plaintiff's credible limitations resulting from fibromyalgia consistent with SSR 12-2p [id. at 13-18]; properly considered the limitations associated with Plaintiff's carpal tunnel, shoulder osteoarthritis, and peripheral neuropathy [id. at 18-22]; properly analyzed the opinion of Plaintiff's rheumatologist [id. at 22-25]; and properly assessed Plaintiff's subjective statements [id. at 25-28].
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, 416.920. 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), 416.920(a)(4); 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), 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. §§ 404.1572(b), 416.972(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, 416.974-.975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1521, 416.921. 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), 1382c(a)(3)(G). 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), 1382c(a)(3)(G).
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 or 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
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), 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
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 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). 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); 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, 416.969a; 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), 416.969a(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. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(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), 416.927(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), 416.927(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), 416.927(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), 416.927(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, 416.917; 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, 416.917. 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), 416.929(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 F. App'x 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, 416.928 (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
Consideration of Fibromyalgia under SSR 12-2p
"Although there is no medical listing for fibromyalgia, Titles II and XVI of Social Security Ruling 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) (citing SSR 12-2p, 77 Fed. Reg. 43,640 (July 25, 2012)). 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. at 43,641.
SSR 12-2p explains how fibromyalgia should be evaluated in disability claims and provides that fibromyalgia should be considered in the RFC based on a longitudinal record whenever possible because symptoms can wax and wane such that a person may have "bad days and good days." Id. at 43,642, 43,644. Courts have recognized that fibromyalgia symptoms are entirely subjective, there is no laboratory test to confirm the presence or severity of it, and that "physical examinations will usually yield normal results" such as "a full range of motion, no joint swelling," normal muscle strength, and neurological reactions. Smith v. Colvin, No. 1:14-cv-04400-RBH, 2016 WL 1089302, at *7 (D.S.C. March 21, 2016) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003)). 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." Id. (quoting Winkler v. Comm'r, Soc. Sec. Admin., No. SAG-14-2720, 2015 WL 4069334, at *4 (D. Md. July 2, 2015)).
In this case, the ALJ found at Step 2 that Plaintiff's fibromyalgia constituted a severe impairment. However, the Court finds that the ALJ failed to properly evaluate Plaintiff's fibromyalgia throughout the rest of the decision as required by SSR 12-2p. Curiously, the ALJ failed to even mention SSR 12-2p in her decision at all. In evaluating the RFC determination, the Court must be able to deduce whether the ALJ considered Plaintiff's subjective complaints of fibromyalgia pain in determining Plaintiff's RFC. See Smith, 2016 WL 1089302 at *7-8 (reversing the ALJ where he failed to account for the subjective nature of fibromyalgia in his RFC analysis); Dowell v. Colvin, No. 1:12CV1006, 2015 WL 1524767, at *3 (M.D.N.C. Apr. 2, 2015) (reversing the ALJ because the ALJ failed to provide reasons, supported by the evidence in the record, for the weight he gave to claimant's subjective pain complaints). In the instant matter, it is unclear whether the ALJ considered Plaintiff's testimony regarding the pain associated with her fibromyalgia and/or her stated limitations. Plaintiff testified that the main areas of her body that hurt were her hands and wrists with pain going up to her neck that she described as burning pain "like hot knives." [R. 60.] She also described having similar pain in her left hip. [Id.] Plaintiff testified that she had been diagnosed with fibromyalgia and experienced pain all over. [R. 60-61.] She testified she could lift 10-20 pounds, could not walk a mile, and could stand or sit in one place for only 10-15 minutes because of the sharp pain in her hip. [R. 55-56.] She also testified that, although she had been released her from the rheumatology practice, before she was released, she was given a medicine to apply where she hurt and a prescription for Gabapentin. [R. 57-58.] It is unclear from the ALJ's decision that she considered any of Plaintiff's testimony regarding the pain associated with her fibromyalgia and/or her stated limitations.
See Eller v. Colvin, No. 1:14-cv-00493-LCB-JLW, 2015 WL 4489479, at *5-6 (M.D.N.C. July 22, 2015) (applying the analysis and reasoning from Dowell, noting that the remand "may actually be stronger in this case because SSR 12-2p was available to the ALJ in this case," even though it was not available in Dowell).
This includes the ALJ's hypothetical to the VE. Indeed, in the hypothetical ultimately relied on, the ALJ failed to mention any limitations directed to Plaintiff's pain complaints. [R. 62-63.] To the extent the ALJ's second hypothetical included an inability to tolerate working eight hours per day, 40 hours per week, because of pain or a need to take unscheduled breaks, the VE testified that all work would be precluded. [R. 64.]
In considering Plaintiff's fibromyalgia, the ALJ explained that she considered Plaintiff's fibromyalgia/osteoarthritis under Listing 1.00, but found that the record failed to document that her condition "has affected her ability to ambulate effectively on a chronic basis, caused an inability to perform fine and gross movements effectively, or caused compromise of a nerve root or the spinal cord." [R. 15.] The ALJ summarized the medical evidence related to Plaintiff's diagnosis of fibromyalgia as follows:
• "I note that Dr. Turner's physical examination in January 2014 revealed no active fibromyalgia "tender points" in any of the classic 18 locations, and that her wrists had full range of motion without swelling or tenderness." [R. 18-19.]Although the ALJ found Plaintiff's fibromyalgia to be severe, her decision appears to suggest that she questioned the validity of Plaintiff's diagnosis. The ALJ failed to explain how she considered this evidence in light of Dr. Patel's assessment that Plaintiff suffered from primary fibromyalgia syndrome with a history of chronic pain and his notation that Plaintiff complained of related symptoms of non-restorative sleep, diffuse pain, and anxiety. [R. 677-78.] Further, Dr. Patel, whose opinion the ALJ gave great weight [R.23], documented 14 trigger points on his physical examination of Plaintiff [R. 678]. The ALJ appears to have discounted the opinion of Plaintiff's treating rheumatologist Dr. Turner in part because of Dr. Patel's decision to discharge Plaintiff from the practice [see R. 22 (finding that X-rays did not support Dr. Turner's findings but that Dr. Patel's findings were supported by objective evidence and that Dr. Patel discharged Plaintiff from the rheumatology practice)], but both doctors found that Plaintiff suffered from fibromyalgia and treated her for such.
• In October 2016, "Dr. Turner stated that the claimant's symptoms were most consistent with soft tissue issues including trochanteric bursitis, infraspinatus tendinitis, and fibromyalgia. I note that Dr. Turner's physical examination states that the claimant was negative for all 18 "tender points" in his fibromyalgia assessment." [R. 20.]
• "Dr. Turner evaluated the claimant on February 24, 2017, and stated that the vast majority of the claimant's joint pain was consistent with osteoarthritis, with a component of fibromyalgia contributing to her neck and shoulder girdle pain. Again, Dr. Turner noted on physical examination that no fibromyalgia "tender points" were appreciated in any of the classic 18 locations." [R. 20.]
• "Dr. Turner prescribed the claimant extremely high levels of opioids without any radiological evidence to support the claimant's subjective complaints, and in fact, he did not even request X-rays for several years and Dr. Turner's physical examinations were not consistent with his diagnosis of fibromyalgia." [R. 22.]
Upon review, it appears that the ALJ acted in contradiction to SSR 12-2p and discounted Plaintiff's complaints because of a lack of objective medical evidence and normal physical exam findings. The ALJ also seems to have discounted Plaintiff's complaints based on her suspicion that Plaintiff failed to report earnings [R. 18 ("This history of inconsistent reporting and earnings makes it difficult to ascertain the claimant's current work status, and discounts her allegations of disability")] and her distrust of Dr. Turner's treatment decisions [R.19 ("[t]he generally non-severe radiological evidence is inconsistent with the extremely high levels of narcotics being prescribed by Dr. Turner")]. However, the ALJ failed to explain how her suspicions factored into her weighing of Plaintiff's pain complaints given the subjective nature of fibromyalgia.
As stated, the ALJ's decision fails to account for Plaintiff's testimony about her fibromyalgia pain, leaving the Court unable to deduce the weight given to Plaintiff's subjective complaints. See Sarcinella v. Berryhill, No. 8:16-cv-1216-MGL-JDA, 2017 WL 1710948, at *15 (D.S.C. April 21, 2017) (citing Smith, 2016 WL 1089302 at *7) (identifying as reversible error the ALJ's failure to account for the subjective nature of fibromyalgia pain and fatigue in plaintiff's RFC as required by SSR 12-2p), Report and Recommendation adopted by 2017 WL 1542059 (D.S.C. April 28, 2017). Although the Court is mindful that the ALJ retains the authority to make the RFC determination, it is legally insufficient for the ALJ to merely recite some facts—and ignore others—and make conclusory statements in support of the RFC determination. Dowell, 2015 WL 1524767, at *4. "A necessary predicate to engaging in substantial evidence review is a record" that adequately explains the ALJ's findings and reasoning. See id. at *4 (requiring that the ALJ "build a logical bridge between the evidence and his conclusions") (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). Given the particular decision in this case, the Court cannot ascertain whether the ALJ accounted for Plaintiff's fibromyalgia symptoms in making the RFC determination, which is required by SSR 12-2p. Accordingly, the Court cannot find that the ALJ's decision is supported by substantial evidence and recommends that the case be remanded for further administrative review of Plaintiff's claims.
Additional Allegations of Error
Because the Court finds the ALJ's failure to properly consider Plaintiff's fibromyalgia in accordance with SSR 12-2p is a sufficient basis for remand, the Court declines to address Plaintiff's remaining allegations. See Hancock v. Barnhart, 206 F. Supp. 2d 757, 763 n.3 (W.D. Va. 2002) (noting that on remand, "[t]he ALJ's prior decision has no preclusive effect, as it [is] vacated and a new hearing [is] conducted de novo"). However, on remand, the ALJ 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.
s/ Jacquelyn D. Austin
United States Magistrate Judge December 27, 2019
Greenville, South Carolina