Opinion
Case No. 8:20-cv-00130-RMG-JDA
12-21-2020
Cindy Gilliam, Plaintiff, v. Commissioner of 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) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In August 2016, Plaintiff filed an application for DIB alleging disability beginning April 1, 2016. [R. 169-72.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 104-07, 111-15.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on August 16, 2018, ALJ J. Petri conducted a de novo hearing on Plaintiff's claim. [R. 36-68.]
The ALJ issued a decision on December 31, 2018, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 16-34.] At Step 1, the ALJ found Plaintiff met the Act's insured-status requirements through March 31, 2017, and had not engaged in substantial gainful activity since April 1, 2016, the alleged onset date. [R. 18, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease of the lumbar and cervical spines, fibromyalgia, sleep apnea, asthma, obesity, post-traumatic stress disorder, major depressive disorder, and generalized anxiety disorder. [R. 18, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of hyperlipidemia, carpal tunnel syndrome, hernia status post-surgical repair, and gastroesophageal reflux disease ("GERD"). [R. 19.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 19, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
[T]hrough the date last insured, the claimant had the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except she can never climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She can have frequent exposure to pulmonary irritants and workplace hazards. She is limited to simple, routine tasks performed two hours at a time. The claimant can have no interaction with the public, but occasional interaction with coworkers and supervisors.[R. 21, Finding 5.] At Step 4, the ALJ found that Plaintiff was incapable of performing her past relevant work as a court reporter or data-entry operator. [R. 28, Finding 6]. Upon considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 29, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act from April 1, 2016, the alleged onset date, through March 31, 2017, the date last insured. [R. 30, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. [R. 1-7.] Plaintiff filed the instant request for judicial review on January 13, 2020. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ did not properly consider Plaintiff's fibromyalgia [Doc. 14 at 26-28] and did not properly evaluate the opinions of Dr. Eric Loudermilk, Dr. Rebecca Norris, and nurse practitioner Carissa Parnell [id. at 29-35]. The Commissioner, on the other hand, contends that substantial evidence supports the ALJ's decision. [Doc. 15 at 16-25.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. § 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do her past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [her] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462-03, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 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 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Fibromyalgia and Weight Assigned to Treating Physicians' Opinions
In the instant case, Plaintiff testified that chronic back pain associated with her severe fibromyalgia was the primary reason that she stopped working. [R. 46-47, 55.] She explained that she sits with her feet elevated to relieve some of the pressure off of her back, but, even so, if she sits for 15 or 20 minutes, it starts hurting her back and she then needs to "get up and move around" for 10 or 15 minutes. [R. 47-49, 54-55.] Additionally, the ALJ found at Step 2 that Plaintiff's fibromyalgia constituted a medically determinable impairment and that it was severe. [R. 18, Finding 3.] The ALJ also found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms [we]re not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in th[e] decision." [R. 22.] In fact, the ALJ did not include in Plaintiff's RFC a limitation on the amount of time she could sit, in contravention of the opinions of Dr. Loudermilk and Dr. Norris. Plaintiff argues that the ALJ did not satisfactorily explain why she rejected her alleged limitations from fibromyalgia, nor did she properly evaluate these doctors' opinions. [Doc. 14 at 26-33.] The Court agrees.
As noted, Plaintiff also argues that the ALJ misevaluated the opinion of nurse practitioner Parnell. [Doc. 14 at 34-35.] Because the Court concludes that the ALJ did not satisfactorily explain why she rejected Plaintiff's alleged limitations from fibromyalgia and that she erred in evaluating the opinions of Dr. Loudermilk and Dr. Norris, which primarily addressed Plaintiff's physical impairments, the Court does not address the ALJ's evaluation of Parnell's opinion, which concerns Plaintiff's mental impairments.
The Doctors' Opinions
Dr. Loudermilk completed a questionnaire concerning Plaintiff on May 11, 2018. [R. 483-84.] He reported that he had been treating her for low back pain, leg pain, and fibromyalgia pain. [R. 483.] He noted that she had chronic back pain and diffuse muscle and joint pain due to fibromyalgia and that she requires chronic pain medications, which he provided. [R. 484.] He stated that she needed to avoid lifting and carrying over 20 to 25 pounds, pushing or pulling over 50 pounds, and climbing ladders or being exposed to unprotected heights. [R. 483.] He also noted that she should avoid bending, twisting, crawling, and balancing. [Id.] And, he noted that she could not sit or stand for prolonged periods, needed to alternate between sitting and standing, and avoid prolonged lifting, carrying, or bending. [Id.]
Dr. Norris also completed a questionnaire concerning Plaintiff on May 11, 2018. [R. 485-86.] She indicated that she treated Plaintiff for degenerative disc disease with chronic pain, myalgia, generalized anxiety disorder, GERD, insomnia, major depression with PTSD, diabetes, and hypertension. [R. 485.] Dr. Norris noted that Plaintiff had limited activity tolerance as a result of her myalgia and that she must be able to sit and stand as needed due to myalgia pain. [Id.] She opined that Plaintiff was not capable of returning to work activities due mostly to her mental health and limitations from her medications and that her myalgia would prohibit her from maintaining a full-time job. [R. 486.]
The ALJ's Discussion
Discussing Dr. Loudermilk's opinion and Plaintiff's alleged fibormyalgia, the ALJ stated:
[Dr. Loudermilk's] opinion is rendered on a form pre-worded by the attorney. It is somewhat suggestive to the questionnaire's intended purpose and desired outcome, which compromises the integrity of the doctor's opinion. I note that the opinion is not signed. Thus, I afford this opinion partial weight. While I note the doctor's specialty area, his opinion is not consistent with the medical evidence of record. The clinical exam findings including normal gait, musculoskeletal and neurological exams do not support this opinion. Also, objective imaging of the spine support no more than mild to moderate changes.
I have evaluated [Plaintiff's] reported fibromyalgia under the provisions of Social Security Ruling 12-2p. As noted in this Ruling, 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. Fibromyalgia may cause exertional limitations secondary to widespread pain and other symptoms, and can cause nonexertional physical, environmental, or mental restrictions. I have considered the claimant's impairments and symptoms in light of this Ruling and incorporated restrictions arising from her fibromyalgia into her [RFC].
In addressing the objective imaging, by way of history, prior to the alleged onset date, MRI of the cervical spine, dated November 8, 2013, revealed mild straightening of the cervical spine, which may be positional. The vertebral bodies were normal in height and signal characteristics. There was no focal marrow lesion or destructive lesion.
MRI of the cervical spine, dated August 14, 2014, revealed mild disc bulge to the left at L5-S1, mild-moderate bilateral lumbar facet arthropathy and Schmorl's nodes of the lower thoracic spine and upper lumbar spine. Regarding objective imaging, MRI of the lumbar spine, dated February 6, 2017, revealed no lumbar fracture or disc herniation. There was left sided disc protrusion at L5-S1. There was mild L3-4 disc bulge. Also, there was moderate lumbar facet arthropathy.[R. 23 (citations omitted).]
Regarding Dr. Norris's opinion specifically, the ALJ stated:
[Dr. Norris's] opinion is rendered on a form pre-worded by the attorney. It is somewhat suggestive to the questionnaire's intended purpose and desired outcome, which compromises the integrity of the doctor's opinion. I note this opinion is not signed. Partial weight is assigned to this opinion. Although Dr. Norris is a treating source, she is a primary care physician and not a pain management specialist, psychiatrist, rheumatologist, or orthopedist. Her opinion is not consistent or even supported by her treating notes that the claimant was doing well on medications. Apparently, she relied solely on [Plaintiff's] subjective complaints and not the clinical exam findings or objective evidence.[R. 25.]
In contrast, the ALJ gave great weight to the opinions of two Disability Determination Services ("DDS") non-treating, non-examining consulting physicians, James Taylor, D.O., and George Walker, M.D., who completed Physical RFC Assessments on December 19, 2016, and March 21, 2017, respectively. [R. 25.] Each doctor opined that Plaintiff "could occasionally lift and or carry 20 pounds, frequently lift and or carry 10 pounds, stand and or walk about 6 hours in an 8 hour workday, . . . sit about 6 hours in an 8 hour workday[,] push and or pull[,] occasionally climb ramps/stairs, climb ladders, ropes and scaffolds, balance, stoop, kneel, crouch, and crawl." [R. 25.] Both doctors also opined that Plaintiff "had no manipulative, visual, or communicative limitations" and that while she "should avoid concentrated exposure to hazards, [she] could have unlimited exposure to extreme cold, extreme heat, wetness, humidity, noise, vibration, and pulmonary irritants." [R. 25.]
The ALJ stated:
Great weight is afforded to the DDS physical opinions as they are generally consistent with the overall medical evidence of record. Although they are non-treating and non-examining physicians, they are familiar with SSA policies, regulations and definitions regarding disability and have the advantage of reviewing a longitudinal record. Evidence received at the hearing level does not significantly contradict their opinions. The evidence supports [that Plaintiff] had normal gait, and normal musculoskeletal and neurological exams. Further, while [Plaintiff] alleged fibromyalgia, she has not treated with a rheumatologist. Also, there is no indication of at least 11 tender points.[R. 25-26.]
Discussion
Before addressing the ALJ's specific analysis, the Court begins with some background principles about how the Commission evaluates reported fibromyalgia.
"Although there is no medical listing for fibromyalgia, Titles II and XVI of SSR 12-2p provide[ ] guidance on how the Commissioner develops evidence to establish that a person has a medically determinable impairment of fibromyalgia, and how to evaluate fibromyalgia in disability claims and continuing disability reviews." Smith v. Colvin, No. 2:14-cv-00042, 2015 WL 7571946, at *7 (W.D. Va. Nov. 24, 2015). SSR 12-2p defines fibromyalgia as a "complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months." SSR 12-2p, 77 Fed. Reg. 43,640, 43,641 (July 25, 2012). Ruling 12-2p explains how the Commissioner considers fibromyalgia in the five-step sequential evaluation process—including the RFC assessment—for determining disability:
How do we consider FM [fibromyalgia] in the sequential evaluation process? As with any adult claim for disability benefits, we use a 5-step sequential evaluation process to determine whether an adult with an MDI [medically determinable impairment] of FM is disabled.
A. At step 1, we consider the person's work activity. If a person with FM is doing substantial gainful activity, we find that he or she is not disabled.
B. At step 2, we consider whether the person has a "severe" MDI(s). If we find that the person has an MDI that could reasonably be expected to produce the pain or other symptoms the person alleges, we will consider those symptom(s) in deciding whether the person's impairment(s) is severe. If the person's pain or other symptoms cause a limitation or restriction that has more than a minimal effect on the ability to perform basic work activities, we will find that the person has a severe impairment(s).
C. At step 3, we consider whether the person's impairment(s) meets or medically equals the criteria of any of the listings in the Listing of Impairments in appendix 1, subpart P of 20 CFR part 404 (appendix 1). FM cannot meet a listing in appendix 1 because FM is not a listed impairment. At step 3, therefore, we determine whether FM medically equals a listing (for example, listing 14.09D in the listing for inflammatory arthritis), or whether it medically equals a listing in combination with at least one other medically determinable impairment.
D. Residual Functional Capacity (RFC) assessment: In our regulations and SSR 96-8p, we explain that we assess a person's RFC when the person's impairment(s) does not meet or equal a listed impairment. We base our RFC assessment on all relevant evidence in the case record. We consider the effects of all of the person's medically determinable impairments, including impairments that are "not
severe." For a person with FM, we will consider a longitudinal record whenever possible because the symptoms of FM can wax and wane so that a person may have "bad days and good days."Id. at 43,643-44 (emphasis added) (internal footnotes omitted).
E. At steps 4 and 5, we use our RFC assessment to determine whether the person is capable of doing any past relevant work (step 4) or any other work that exists in significant numbers in the national economy (step 5). If the person is able to do any past relevant work, we find that he or she is not disabled. If the person is not able to do any past relevant work or does not have such work experience, we determine whether he or she can do any other work. The usual vocational considerations apply.
Ruling 12-2p further provides that the Commissioner may find a claimant has a medically determinable impairment of fibromyalgia if the claimant meets all three of the following criteria: (1) a history of widespread pain, (2) repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions, and (3) evidence that other disorders could cause these repeated manifestations were excluded. Id. at 43,642. Courts have recognized that "[f]ibromyalgia symptoms are entirely subjective [and t]here are no laboratory tests for the presence or severity of fibromyalgia." Arakas v. Commissioner, ___ F.3d ___, 2020 WL 7331494, at *2 (4th Cir. Dec. 14, 2020). Indeed, "[p]hysical examinations [of patients with fibromyalgia] will usually yield normal results—a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions." Id. at *7 (second alteration in original) (internal quotation marks omitted). Additionally, the nature of fibromyalgia is such that an individual's ability to perform "certain tasks or postural maneuvers on a given day does not necessarily reflect an ability to perform those tasks on a sustained basis." Smith v. Colvin, No. 1:14-cv-04400-RBH, 2016 WL 1089302, at *7 (D.S.C. March 21, 2016) (internal quotation marks omitted).
These manifestations "especially" include "fatigue, cognitive or memory problems ('fibro fog'), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome." SSR 12-2p, 77 Fed. Reg. at 43,642 (internal footnote omitted).
"Other physical and mental disorders may have symptoms or signs that are the same or similar to those resulting from FM. Therefore, it is common in cases involving FM to find evidence of examinations and testing that rule out other disorders that could account for the person's symptoms and signs." SSR 12-2p, 77 Fed. Reg. at 43,641-42 (internal footnote omitted). "Some examples of other disorders that may have symptoms or signs that are the same or similar to those resulting from FM include rheumatologic disorders, myofacial pain syndrome, polymyalgia rheumatica, chronic Lyme disease, and cervical hyperextension-associated or hyperflexion-associated disorders." Id. at 43,642 n.7.
An exhaustive discussion of the alleged errors in the ALJ's rejection of Plaintiff's alleged limitations from fibromyalgia and the ALJ's evaluation of Dr. Loudermilk's and Dr. Norris's opinions regarding Plaintiff's limitations from fibromyalgia is not necessary here. It is sufficient to note that the ALJ's primary basis for rejecting Plaintiff's alleged limitations, discounting Dr. Loudermilk's and Dr. Norris's opinions, and giving great weight to the opinions of the non-treating and non-examining consulting physicians was the ALJ's view that no objective medical evidence supported the fibromyalgia symptoms and limitations that Plaintiff claimed she had. [R. 23, 25.] That analysis is at odds with controlling Fourth Circuit law providing that "ALJs must not rely on objective medical evidence (or the lack thereof)—even as just one of multiple factors—to discount a claimant's subjective complaints regarding symptoms of fibromyalgia." Arakas, 2020 WL 7331494, at *8; see also Godwin v. Colvin, No. 4:15-cv-1953-TER, 2016 WL 5425011, at *12 (D.S.C. Sept. 29, 2016) ("A lack of objective findings says relatively little about the severity of . . . fibromyalgia because . . . there is no objective test for fibromyalgia." (internal quotation marks omitted)). That same reasoning would apply to an ALJ's discounting a treating physician's opinion based on lack of objective medical evidence regarding fibromyalgia. The Court therefore recommends that the ALJ's decision be reversed and this case be remanded for further administrative review of Plaintiff's claim. On remand, the ALJ should pay close attention to the legal principles outlined in Arakas, including those regarding how to analyze fibromyalgia and the opinions of treating and examining physicians, on one hand, and mere consulting physicians, on the other. Arakas, 2020 WL 7331494, at *16-20.
As for the ALJ's observation that the opinions were each "rendered on a form pre-worded by the attorney" [R. 23, 25], it is unclear why the ALJ would consider this a basis for discounting the opinion. Although the forms certainly revealed that the questions were posed to the doctors for possible use in Plaintiff's case for disability benefits, the ALJ does not identify anything about the forms that was particularly slanted or suggestive. The ALJ also discounted both opinions because the doctors did not sign their names to the forms on which they provided their written answers. [R. 23, 25.] Given that the ALJ does not seem to doubt that the doctors actually filled out the forms in question, the Court knows of no reason why their decision not to sign the questionnaires—which did not even contain a specific place for their signatures—could be a basis for discounting the opinions rendered thereon. The Court also questions the ALJ's reliance on the lack of indication of at least 11 tender points [R. 26], given that the ALJ herself found that Plaintiff's fibromyalgia was a medically determinable impairment and that it was severe [R. 18, Finding 3.]. --------
Remaining Allegations of Error
Because the Court finds that the ALJ's focus on the lack of objective medical evidence as a basis for rejecting Plaintiff's alleged limitations from fibromyalgia and for discounting the opinions of Dr. Loudermilk and Dr. Norris regarding the limitations associated with Plaintiff's alleged fibromyalgia is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations of error. See Hancock v. Barnhart, 206 F. Supp. 2d 757, 763 n.3 (W.D. Va. 2002). On remand, however, the Commissioner should consider Plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge December 21, 2020
Greenville, South Carolina