Opinion
5:23-CV-510-D
07-17-2024
VINCENT TOMPKINS, Plaintiff/Claimant, v. MARTIN O'MALLEY, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE.
This matter is before the court on the parties' briefs filed pursuant to the Supplemental Rules for Social Security Actions. [DE-11, -13]. Claimant Vincent Tompkins (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for Supplemental Security Income (“SSI”) payments. Claimant also filed a reply brief, [DE-14], and the matter is ripe for adjudication. Having carefully reviewed the administrative record and the briefs submitted by the parties, it is recommended that the final decision of the Commissioner be reversed and the matter be remanded for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for SSI payments on February 5, 2020, alleging disability beginning February 1, 2019. (R. 10, 240-49). The claim was denied initially and upon reconsideration. (R. 10, 119-48). A telephonic hearing before an Administrative Law Judge . (“ALJ”) was held on August 11, 2022, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 10, 48-83). On September 7, 2022, the ALJ issued a decision denying Claimant's request for benefits. (R. 7-34). On July 24, 2023, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
IL STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920, under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . .. past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 416.920(a)(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 416.920(a)(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found that Claimant has not engaged in substantial gainful activity since February 5, 2020. (R. 12). Next, the ALJ determined Claimant has the severe impairments of cervical stenosis, lumbar stenosis, obesity, fibromyalgia, insulin dependent diabetes mellitus, nonproliferative diabetic retinopathy, chronic kidney disease/diabetic nephropathy, migraine headaches, major depressive disorder, and post-traumatic stress disorder. Id. Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; adapting or managing oneself; and concentrating, persisting, or maintaining pace. (R. 12-15). At step three, the ALJ concluded Claimant's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
Prior to proceeding to step four, the ALJ assessed Claimant's residual functional capacity (“RFC”), finding Claimant has the ability to perform light work with the following additional limitations:
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 these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §404.1567(b).
Bilaterally, occasionally, he can use the upper extremities to lift, reach, pull, and push overhead. Otherwise, bilaterally, he can use the upper extremities frequently to lift, reach, pull, and reach in all other directions. He can use the right dominant upper extremity frequently to handle (this includes the concept of grasping), finger, and feel. Bilaterally, the claimant can use the lower extremities occasionally to operate foot and leg controls. Occasionally, the claimant can stoop, crouch, kneel, and climb stairs and ramps. Occasionally, the claimant can be exposed to temperature extremes. The claimant cannot work around dangerous, moving mechanical parts and unprotected heights and is precluded from climbing ladders, ropes and scaffolds. The claimant will need [sic] avoid job requiring binocular depth perception and binocular field of vision. The claimant is limited to working in a moderate noise environment. The claimant has the capacity to engage in simple, routine, and repetitive tasks in two-hour intervals. Occasionally, the claimant can have direct interaction with the general public, coworkers, and supervisors. He can perform low stress occupation [sic] involving non-production rate or assembly work. He will require unimpeded access to restroom [sic] during regularly scheduled breaks.(R. 16-27). In making this assessment, the ALJ found Claimant's statements regarding the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the medical and other evidence in the record. (R. 18). At step four, the ALJ concluded that Claimant has no past relevant work. (R. 27). Nevertheless, considering Claimant's age, education, work experience, and RFC, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Claimant could perform. (R. 27-28).
V. DISCUSSION
Claimant contends that the ALJ erred by failing to account for the time off necessitated by Claimant's fatigue, migraines, and fibromyalgia flares when assessing his RFC and improperly evaluating the medical opinion of Claimant's chiropractor. Pl.'s Br. [DE-11] at 9-31. The Commissioner counters that the ALJ thoroughly considered the relevant evidence, and the RFC is supported by substantial evidence. Def's Br. [DE-13] at 6-16.
This Recommendation refers to the page number reflected in the CM/ECF footer where, as here, that number differs from the document's internal pagination.
1. Claimant's Potential Time Off Task and Absenteeism
An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1). “[T]he residual functional capacity ‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 968p). The ALJ must provide “a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id. (quoting SSR 96-8p). “Only after such a function-by-function analysis may an ALJ express RFC ‘in terms of the exertional levels of work.'” Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”). However, the Fourth Circuit has rejected “a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis.” Mascio, 780 F.3d at 636. Rather, the court explained that “[r]emand may be appropriate . .. where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Id. (citation omitted).
In assessing Claimant's RFC, the ALJ stated the following regarding Claimant's fibromyalgia:
Although the claimant has been diagnosed with fibromyalgia, his examination findings only equivocally support this impairment. SSR 12-2p instructs that the Agency will find that a person has a medically determinable impairment of fibromyalgia only if the physician diagnosed fibromyalgia and provides the evidence described in section ILA. or section II.B. of the Ruling, and the physician's diagnosis is not inconsistent with the other evidence in the person's case record. These sections of the Ruling provide two sets of very specific criteria for diagnosing fibromyalgia, which are generally based on the 1990 American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia (the criteria in section ILA.), or the 2010 ACR Preliminary Diagnostic Criteria (the criteria in section II.B.). Briefly, the 1990 criteria are: 1) a history of widespread pain, i.e., pain in both sides of the body or above and below the waist with axial skeletal pain, that has been present for at least three years; 2) pain on digital palpation, which must be present in at least 11 of the 18 “tender point sites” designated by the College; and 3) evidence that other disorders that could cause the symptoms or signs were excluded. Alternatively, the 2010 criteria are: 1) a history of widespread pain, i.e., pain in both sides of the body or above and below the waist, has been present for at least three years; 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 cooccurring conditions were excluded.
In the case at bar, the medical evidence of record does not reflect the presence of at least 11 trigger points. Rather, the medical evidence of record documents only “distinct trigger points” without further detail or explanation (Exhibits B6F, B8F, and B24F). Although there are certainly documented complaints of pain, there is evidence that other disorders, namely the claimant's stenosis with radiculopathy and arthritis, could cause the claimant's pain, while his mental health impairments could reasonably cause his cognitive problems and depression/anxiety. Furthermore, his orthopedic physician in April 2020 did not feel his symptoms were fully consistent with fibromyalgia (Exhibit B8F). However, consistent with a diagnosis of fibromyalgia, the claimant reported chronic fatigue (Exhibits B2F, B3F, B5F, B6F, B8F, B9F, Bl IF, B12F, B13F, B18F, B20F, B22F, B24F, and B27F). Considering the diagnosis, I find the claimant's fibromyalgia is a severe impairment and further limits [him] to the light exertional level with the additional postural and manipulative limitations described herein.(R. 19-20). With respect to Claimant's migraine headaches, the ALJ found,
In April 2020, the claimant reported experiencing two to four migraine headaches per week. However, the claimant did not follow up with recommended treatment, including cervical epidural steroid injections or cervical facet blocks, despite repeated complaints of headaches (Exhibits B6F, B7F, B8F, andB18F). The record does not reflect any specific treatment for headaches aside from over-the-counter medications. The headaches are accommodated for by a limitation to working in a moderate noise environment.(R. 21-22). Claimant argues that the ALJ's RFC analysis is deficient because it recognizes that Claimant's fibromyalgia and migraine headaches are severe impairments but does not account for the time off necessitated by Claimant's resulting fatigue and discomfort. Pl.'s Br. [DE-11] at 925. The Commissioner challenges whether Claimant's fibromyalgia is a severe impairment and argues that Claimant's contention that the ALJ was required to include limitations for work absences or time off task should be rejected as an “improper attempt to impose a categorical rule in migraine cases.” Def.'s Br. [DE-13] at 8-13.
The undersigned agrees with Claimant's position: the ALJ's RFC assessment is not supported by substantial evidence. Turning first to the fibromyalgia discussion, the ALJ rather confusingly appears to challenge, but ultimately credit, Claimant's diagnosis and related symptoms. (R. 19-20). As relevant here, the ALJ specifically mentions Claimant's chronic fatigue and notes that it is consistent with a diagnosis of fibromyalgia. (R. 20). However, while the ALJ states that Claimant's fibromyalgia symptoms-including, presumably, his chronic fatigue-are addressed in the RFC, he does not account for the extent of those limitations. This constitutes impermissible cherrypicking, as “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of no disability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); Lockerby v. Saul, No. 1:19-cv-00159-MOC, 2020 WL 506752, at *3 (W.D. N.C. Jan. 30, 2020) (“An accurate and logical bridge must consider both favorable and unfavorable evidence”).
The ALJ's cherrypicking of the record is evidenced by the RFC's failure to mention Claimant's potential time off task or excessive absences from work. Claimant has consistently stated at various medical appointments that he suffers from chronic fatigue, is tired all the time, and suffers from post-exertional fatigue, (R.377, 489, 514, 537, 541, 549, 553-54, 561, 568, 573, 586, 591, 611, 629, 633, 685, 1102,1178,1306, 1328,1392,1418,1451,1456,1461,1464, 1476, 1478, 1483, 1486, 1513, 1515, 1520, 1531, 1827, 1835, 1841, 1853, 1886, 1923,'1933); and testified at the hearing that he experiences fatigue “on a daily basis,” (R. 62). Most significantly, Claimant's function report and his mother's third-party statements reflect that he sleeps poorly and typically requires multiple naps per day, (R.276-77, 285, 309), and treatment notes indicate that he experiences fibromyalgia flare-ups a “few times a month” that leave him essentially bedbound, (R. 586, 1230, 1232, 1239-40, 1246). As the Fourth Circuit held in Shelley C. v. Comm'r of the SSA, subjective statements from claimants “should be treated as evidence substantiating the claimant's impairment.” 61 F.4th 341, 360 (4th Cir. 2023) (citing Arakas v. Comm'r of the SSA, 983 F.3d 83, 97-98 (4th Cir. 2020)). This means that Claimant is entitled to solely rely on subjective statements to support his fatigue-related claims, and if the ALJ disregarded these claims-which, despite the Commissioner's arguments to the contrary, does not appear to be the case-he should have explained why he did so. Id. at 361-62.
Relatedly, the ALJ states that he considered Claimant's migraine headaches when assessing his RFC, but instead he cherrypicked the record and plainly did not evaluate the full extent of limitations caused by this recurrent issue. In summarizing Claimant's testimony, the ALJ noted that Claimant “estimated he would experience a headache at least two days per week, which could last several hours or two to three days. He said he would go to his bedroom, turn the lights off, and avoid sound when experiencing a migraine.” (R. 17). The ALJ also noted that Claimant “did not follow up with recommended treatment,” presumably to discredit this testimony. Id. However, while it is true that “[i]f a symptom can be reasonably controlled by medication or treatment, it is not disabling,” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (citing Purdham v. Celebrezze, 349 F.2d 828, 830 (4th Cir. 1965); 20 C.F.R. § 404.1530), the ALJ's report does not discuss the fact that Claimant's recommended treatment consisted of cervical epidural steroid injections and cervical facet block injections. (R. 536, 541-42, 548, 553, 1129, 1153-54, 1158, 1163-64, 1167, 1209-10, 1217, 1224, 1230, 1232, 1246-47). This is significant because the ALJ also failed to mention that Claimant refused the recommended treatments because of his history of central sensitization, which he has consistently reported is aggravated by injection therapy, and the fact that previous treatments were either ineffective or discontinued because of Claimant's reduced kidney functioning. Id. As this court and other Fourth Circuit trial courts have implied on multiple occasions, when a medication or other remedial measure causes a claimant to suffer significant side effects, it is not a reasonable method for controlling their symptoms. See McAuley v. Colvin, No. 7:12-CV-311-D, 2013 WL 7098724, at *11 (E.D. N.C. Dec. 13,2013) (“The ALJ's conclusions are supported by the record. Contrary to his testimony at the hearing,. . . Plaintiff repeatedly told his pain medication provider that the medication helped and did not cause side effects.'''') (emphasis added); Batson v. Colvin, No. 7:14-CV-48-D, 2015 WL 10000791, at *15 (E.D. N.C. Mar. 5, 2015); Tilley v. Colvin, No. TMD 14-3266,2016 WL 775420, at *12 (D. Md. Feb. 29, 2016) (“Substantial evidence in the record after Plaintiff's alleged onset date of disability demonstrates that medications relieved Plaintiff's pain symptoms without side effects.")-, Owens v. Colvin, No. 1:12-CV-367-FDW-DSC, 2013 WL 5356837, at *11 (W.D. N.C. Sep. 24, 2013) (“Plaintiff admitted that those measures made his pain “tolerable” . . . and did not cause any side effects.”); Dagenhart v. Colvin, No. 5:13-CV-76-GCM, 2014 WL 4672429, at *4 (W.D. N.C. Sep. 18, 2014); Payne v. Berryhill, 1:17CV294, 2018 WL 671245, at *6 (M.D. N.C. Feb. 1, 2018); Neely v. Colvin, No. 2:12-cv-88-RJC-DSC, 2013 WL 5536791, at *9 (W.D. N.C. Oct. 7, 2013). Thus, if the ALJ discredited Claimant's central sensitization claims and this impacted the RFC assessment, he should have so stated and explained his reasoning. See Shelley C, 61 F.4th at 361-62.
Central sensitization is a “pathophysiologic process in which the central nervous system undergoes changes that alter its processing of pain and other sensory stimuli” and causes those with the disorder to be more sensitive to pain and other sensory stimuli. Mary M. Volchek, et al., Central Sensitization, Chronic Pain, and Other Symptoms: Better Understanding, Better Management, CLEVELAND CLINIC J. OF MED. (Apr. 2023), https://www.ccjm.Org/content/90/4/245.
The omissions described above are especially troubling because in Shelley C., the Fourth Circuit stated, in pertinent part,
Strikingly, ... the ALJ disregarded a powerful segment of the vocational expert's testimony. When asked about a person with psychological impairments who would be off task from their job for more than an hour a day, in addition to regular breaks, and miss more than two days of work a month on a regular basis, the vocational expert vocalized that there were no such jobs in the national economy suitable for a person with such limitations. We are perplexed by the ALJ's dismissal of this significant testimony. Given Shelley C.'s daily routine, she cannot possibly be
expected to attend, let alone perform, the jobs suggested.Id. at 368. In the instant case, Claimant's potential time off task and absenteeism are likewise outcome-determinative, because at the August 2022 hearing, the VE testified that to sustain competitive employment an employee's time off task “should not exceed about 5 to 6% of the time on a regular basis”; “the key is it shouldn't be easily noticed by supervisors or other' employees.” (R. 81). The VE further explained that “[u]sually no more than one [absence] per month” is tolerated by employers “as an average and that would be the maximum, some employers will be less than that.” (R. 81-82). However, the RFC only limits Claimant to working in a moderate noise environmental and makes no mention of his potential time off task or absenteeism. (R. 21-22). Without reweighing the evidence or establishing a categorical rule for migraine cases, the VE's testimony clearly indicates that these factors are outcome-determinative, and the decision's failure to address either one frustrates meaningful review. As it is not the province of the court to weigh the evidence in the first instance, see Mascio, 780 F.3d at 636, remand is warranted for further consideration of this issue.
2. Dr. Hooper's Medical Opinion
Claimant argues that the ALJ improperly discounted the opinion of Claimant's treating chiropractor, Dr. Mark GJ Hooper. Pl.'s Br. [DE-11] at 25-31. Specifically, Claimant contends that Dr. Hooper opined that Claimant cannot repetitively lift, bend, or twist and cannot sit for extended periods of time over twenty minutes, and the ALJ found his opinion unpersuasive because he 1) improperly conflated these repetitive motion findings with examination findings of normal strength with left-sided, weakness, and 2) mischaracterized Claimant's testimony. Id. The Commissioner counters 'that the ALJ properly considered Dr. Hooper's medical opinion and Claimant is simply arguing that he should have weighed the evidence differently. Def.'s Br. [DE-13] at 13-16.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). The applicable regulations provide that the ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [Claimant's] medical sources.” 20 C.F.R. §. 404.1520c(a). Instead, the ALJ must consider the persuasiveness of medical opinions using five factors: (1) supportability, meaning that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s)... the more persuasive the medical opinions or prior administrative medical finding(s) will be”; (2) consistency, meaning that the more consistent an opinion is with other evidence in the record, the more persuasive the medical opinion will be; (3) the medical source's relationship with the claimant, which considers the length of the treating relationship, frequency of examinations, purpose of the treating relationship, extent of the treatment relationship, and whether the medical source examined the claimant; (4) specialization, meaning that “a medical source who has received advanced education and training to become a specialist may be more persuasive”; and (5) “other factors that tend to support or contradict a medical opinion.” Id. § 404.1520c(c)(1)-(5). The most important factors are supportability and consistency. Id. § 404.1520c(a).
Dr. Hooper completed a statement dated May 4, 2021, in which he opined,
Mr. Vincent Tompkins has been under our care since 05/21/20 for chronic cervical and lumbar spinal-related conditions. Based on his history, MRI findings, examination findings, and response to care, it can be determined with a large degree of medical certainty that Mr. Tom[p]kins is unable to lift, bend, or twist on a repetitive basis, [or] sit for extended periods of time over 20 minutes, which will limit his domestic duties such as cleaning the house and preparing meals, and household duties such as yard work, washing a car, and taking out the trash. He has limitations and difficulty with personal life issues such as sleeping, driving, and intimacy. And personal care items such as showering and shaving. He is no longer
able to exercise on a regular basis. These limitations are due to pain, fatigue, weakness and restricted motions in his cervical and lumbar spine. In my opinion, this condition is permanent and our treatment is targeted at providing temporary relief of symptoms and assisting Mr. Tompkins with the ability to perform the activities of daily living mentioned above.
The ALJ found Dr. Hooper's opinion only partly persuasive, stating,
The opinion that the claimant could not lift on a repetitive basis is not persuasive, as it is not consistent with the findings of normal strength with slight left-sided weakness (Exhibits B1F, B5F, B6F, B7F, B8F, Bl IF, B13F, B14F, B17F, B18F, B20F, B22F, B24F, and B30F). The opinion that the claimant could not repetitively bend or twist is persuasive, as it is consistent with the imaging studies showing lumbar stenosis and hip arthritis, as well as the findings of limited range of motion and obesity (Exhibits B18F, B20F, B22F, and B24F). The opinion that the claimant could not sit for over 20 minutes is not persuasive, as it is not consistent with the claimant's reports that he would sit throughout the days (Exhibits Bl IF, B22F, and B29F).(R. 23). Turning first to the repetitive motion findings, Claimant states that the ALJ's assessment is flawed for three reasons: one, “[n]ormal strength does not speak to the ability to repetitively perform an activity, which was the limitation Dr. Hooper assessed”; two, other record evidence, such as Claimant's statements regarding his post-exertional fatigue and the impact of weather on his conditions, contradicts the ALJ's findings; and three, the ALJ “did not acknowledge” that “[t]he limitations on Tompkins's ability to lift repetitively is [sic] not just from his cervical and lumbar spine problems but also from his fibromyalgia and central sensitization syndrome pain, which are worsened by exertion.” Pl.'s Br. [DE-11] at 27-29.
Numerous courts have recognized that “fibromyalgia's ‘symptoms are entirely subjective and there are no laboratory tests that can confirm the presence or severity of the syndrome.'” Adams v. Colvin, No. 5:14-CV-689-KS, 2016 WL 697138, at *3 n.1 (E.D. N.C. Feb. 22, 2016) (quoting McIntire v. Colvin, No. 3:13-CV-143, 2015 WL 401007, at *41 (N.D. W.Va. Jan. 5, 2015) and Stahlman v. Astrue, No. 3:10-CV-475, 2011 WL 2471546 (E.D. Va. May 17, 2011)). The primary symptom of fibromyalgia is chronic, widespread pain, Id. (citing Johnson v. Astrue, 597 F.3d 409, 414 (1st Cir. 2009)), and “physical examinations will usually yield normal results-full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions,” Id. (quoting Green-Younger v. Barnhart, 335 F.3d 99, 108-09 (2nd Cir. 2003) (citation omitted)). Given these factors, the ALJ's consistency analysis is glaringly incomplete.
As explained above, the ALJ simultaneously deems Claimant's fibromyalgia to be a severe impairment and discredits Claimant's subjective statements concerning his symptoms. See supra § V.1. However, Claimant is entitled to rely upon such statements, particularly in view of his fibromyalgia diagnosis. See id.; Adams, 2016 WL 697138, at *3 n.1. Because the ALJ's report fails to duly consider the extent of Claimant's limitations, the undersigned is unable to trace his reasoning and determine whether substantial evidence supports the determination that medical records detailing Claimant's normal strength are inconsistent with Dr. Hooper's opinion that Claimant is unable to lift repetitively. The undersigned is also unable to determine whether the ALJ analyzed other potentially relevant diagnostic factors in making this assessment, such as Claimant's post-exertional fatigue, chronic fatigue, and heightened sensitivities to pain and other sensory stimuli, like inclement weather. Thus, remand is warranted, and it is recommended that the ALJ assess the persuasiveness of Dr. Hooper's opinion in the context of a more fully developed record on reconsideration.
The undersigned also finds the ALJ's discussion of Claimant's sitting limitations inadequate. The ALJ cites Claimant's “reports that he would sit throughout the days,” but in doing so, mischaracterizes the record. (R. 23). Claimant has mentioned at several points that he enjoys sitting outdoors, watching movies, listening to music, and researching how to upgrade his computer. (R. 697, 1721). However, Claimant has not indicated how often he does these things, or for how long he does them; there is no evidence in the record suggesting that he sits for longer than twenty minutes at a time, in a manner inconsistent with Dr. Hooper's opinion. Consequently, the undersigned is unable to trace the ALJ's reasoning, and remand is warranted on this basis as well.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that the final decision of the Commissioner be reversed and the matter be remanded for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until July 31, 2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ., P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).