Jacobsen v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/20/18. (SAC )

FILED
2018 Mar-20 PM 04:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BOBBIE JO JACOBSEN

Claimant,
v.

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY

Respondent.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
2:16-CV-1608-KOB

MEMORANDUM OPINION
I. INTRODUCTION
On October 3, 2012, the claimant protectively applied for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. The claimant alleged disability beginning March 15, 2011,
because of migraines, arthritis in her neck and back, fibromyalgia, blindness in her
left eye, and vascular problems. The Commissioner denied these claims on

1

December 27, 2012. On February 1, 2013, the claimant filed a written request for
a hearing before an Administrative Law Judge, and he held a hearing on July 16,
2014. The ALJ held a second hearing on February 20, 2015 to hear additional
medical testimony. (R. 23, 50-63, 65-87, 127, 132, 206, 214, 231, 234).
In a decision dated August 2, 2015, the ALJ found the claimant not disabled
as defined by the Social Security Act and, therefore, ineligible for disability
benefits. (R. 23-37). On July 28, 2016, the Appeals Council denied the claimant’s
request for review; consequently, the ALJ’s decision became the final decision of
the Commissioner of the Social Security Administration. (R. 104). The claimant
has exhausted her administrative remedies, and this court has jurisdiction pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, the court
REVERSES and REMANDS the decision of the ALJ because substantial evidence
does not support his findings regarding the claimant’s fibromyalgia.
II. ISSUE PRESENTED
Whether the ALJ’s finding that the claimant did not have the medically
determinable impairment of fibromyalgia lacks substantial evidence.

III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This
court must affirm the ALJ’s decision if he applied the correct legal standards and if
substantial evidence supports his factual conclusions. See 42 U.S.C. § 405(g);
2

Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826
F.2d 996, 999 (11th Cir.1987).
“No . . . presumption of validity attaches to the [ALJ’s] legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.” Walker, 826 F.2d at 999. This court does not review the ALJ’s factual
determinations de novo. The court will affirm those factual determinations that are
supported by substantial evidence. “Substantial evidence” is “more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402
(1971).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the Commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d). Whether the
claimant meets a Listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
3

disagree with the ALJ about the significance of certain facts, the court has no
power to reverse that finding as long as substantial evidence in the record supports
it.
The court must “scrutinize the record in its entirety to determine the
reasonableness of the [ALJ]'s factual findings.” Walker, 826 F.2d at 999. A
reviewing court must not only look to those parts of the record that support the
decision of the ALJ, but also must view the record in its entirety and take account
of evidence that detracts from the evidence relied on by the ALJ. Hillsman v.
Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
The Eleventh Circuit has recognized that “fibromyalgia, a chronic pain
illness, is usually diagnosed based on an individual’s described symptoms because
the ‘hallmark’ of the disease is a lack of objective evidence.” Brown-GaudetEvans v. Comm’r Soc. Sec., 673 F. App’x 902, 906 (11th Cir. 2016). The ALJ
must “find that a person has a [medically determinable impairment] of
[fibromyalgia] if the physician diagnosed [fibromyalgia] and provides the evidence
described in II.A or section II.B, and the physician’s diagnosis is not inconsistent
with the other evidence in the [claimant’s] case record.” SSR 12-2p.
Sections II.A and II.B provide two sets of criteria for diagnosing
fibromyalgia: the 1990 American College of Rheumatology (ACR) Criteria for the
4

Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic Criteria.
SSR 12-2p §§ II.A & II.B. The 1990 ACR Criteria requires that the claimant show
(1) a history of widespread pain; (2) at least 11 positive tender points on physical
examination, found bilaterally, on the left and right sides of the body and both
above and below the waist; and (3) evidence that other disorders that could cause
the symptoms or signs were excluded. SSR 12-2p § II.A. In testing the tenderpoint sites, “the physician should perform digital palpation with an approximate
force of 9 pounds (approximately the amount of pressure needed to blanch the
thumbnail of the examiner).” Id. at II.A.2.b.
The 2010 ACR Criteria requires that the claimant demonstrate (1) a history
of widespread pain; (2) repeated manifestations of six or more fibromyalgia
symptoms, signs, or co-concurring conditions; and (3) evidence that other
disorders that could cause the symptoms, signs, or co-concurring conditions were
excluded. SSR 12-2p § II.B. Symptoms and signs of fibromyalgia include muscle
pain, fatigue or tiredness, muscle weakness, headache, numbness or tingling,
dizziness, insomnia, depression, nausea, chest pain, shortness of breath, and hair
loss. See SSR 12-2p § II.B n. 9 (citing 20 C.F.R. 404.1528(b) and 416.928(b) and
Table No. 4, “Fibromyalgia diagnostic criteria,” 2010 ACR Preliminary Diagnostic
Criteria). Some co-occurring conditions include depression, chronic fatigue

5

syndrome, gastroesophageal reflux disorder, and migraines. SSR 12-2p § II.B n.
10.
If an ALJ finds insufficient evidence to determine whether a claimant has a
MDI of fibromyalgia, he “may recontact the person’s treating or other source(s) to
see if the information [the ALJ] need[s] is available” or order a consultative
examination to determine if the claimant has a MDI of fibromyalgia when he needs
that information to adjudicate the claim. SSR 12-2p III.C.1 & 2.
V. FACTS
The claimant was forty-three years old at the time of the ALJ’s final
decision. The claimant has an 8th grade education and past relevant work as a
cashier, housekeeper, and dry cleaning presser. (R. 235-36). The claimant alleged
disability beginning on March 15, 2011 because of migraines, arthritis in her neck
and back, fibromyalgia, blindness in her left eye, and vascular problems. (R. 23,
234).
Physical Limitations
In March 2010, the claimant complained of arm and leg pain and fatigue to
doctors at Baptist Shelby Emergency Department. On March 9, 2010, the
claimant saw Dr. David Cox at Cardiovascular Associates for “unpredictable
episodes of chest pain,” “whole body tingling,” and fatigue. Dr. Cox indicated at
the March 23, 2010 follow-up that the claimant’s stress test and echocardiogram
6

were normal and that her chest pains were “noncardiac.” At that follow-up, the
claimant reported chest pains the Friday before; continued fatigue; and dizziness.
(R. 316, 346-49).
The claimant sought treatment on June 30, 2010 with Dr. Kirschberg at
Southern Neurology for a “very severe group of headaches that started in the last
four or five months.” Dr. Kirschberg noted that the claimant has no medical
insurance; she went to Shelby Baptist Emergency Department in May 2010 for one
of her severe headaches, but a CT scan of the brain and spinal tap were normal;
and the doctor at Shelby Baptist prescribed the claimant Fiorcit and Compazine,
but she continued to have three or four severe headaches a week. The claimant
reported that her hands and tongue go numb during a migraine; she cannot tolerate
the Fioicit; and she uses the Compazine that helps relieve her nausea. Dr.
Kirschberg noted that his physical examine revealed blindness in the claimant’s
left eye, which she had for fifteen years as the result of an accident, but all of her
other systems appeared normal. He prescribed Anaprox for her migraines; ordered
a head angiogram; and asked the claimant to follow-up the next month. (R. 33940).
At her follow-up on July 15, 2010, the claimant reported to Dr. Kirschberg
that her “headaches are no better on Anaprox” and that it causes swelling. Dr.

7

Kirschberg “put her on a little Elavil today”; told her to take Mobic; and asked her
to follow up by phone in two to four weeks. (R. 335).
By November 19, 2010, the claimant reported to Dr. Kirschberg that she
could not tolerate the Elavil and that the Mobic was not helping. Dr. Kirschberg
gave the claimant three-week’s worth of samples of Savella, “the newest of the
SNRIs for chronic pain”; continued the claimant on the Mobic; and asked her to
follow-up by phone in the next couple weeks. (R. 334). The record contains no
additional medical records from Dr. Kirschberg after November 2010.
The claimant presented to Dr. Jonathan C. Merkle at Montevallo Family
Medicine on March 10, 2011, complaining of fatigue and sinus issues. Dr. Merkle
noted “Fibromyalgia/Fatigue” under his “Assessment/Plan.” (R. 359).
On March 28, 2011, the claimant returned to Dr. Cox at Cardiovascular
Associates, again complaining of worsening chest pains, fatigue, dizziness, and leg
pain. The claimant also wanted to discuss taking Chantix to stop smoking. Dr.
Cox noted that “[o]verall, she’s doing well, but questions in a general way why
she’s so tired all the time. I don’t have an explanation for this from a cardiac
standpoint.”
Between June 9, 2011 and September 22, 2011, the claimant sought
treatment at the Community of Hope Health Clinic on four occasions. During
those visits, the claimant reported chronic pain “all over” her joints, especially her
8

left leg and hip; fatigue; dizziness; no energy; hair loss for the previous six to
seven months; muscle weakness; poor sleep; and shortness of breath. Her range of
motion in her neck and shoulders were normal during these visits. On June 16,
2011, the doctor at Hope Health Clinic indicated the difficulty with diagnosing her
chronic pain, and listed “fibromyalgia?” as a possible cause. (R. 390-93, 397,
407).
The claimant returned to the Hope Health Clinic on March 12, 2012,
complaining of heartburn and neck and head pain on her left side. The claimant
reported that she has three to four headaches a week; has suffered severe headaches
for ten years; experiences tingling in her legs during the headaches; and gets
“some” relief with Tylenol. The doctor ordered a CT scan of her cervical spine
that produced normal results. She also reported heartburn; the doctor assessed
gastroesophageal reflux disease (GERD) and prescribed Omeprazole. At her
follow-up on March 19, 2012, she had limited range of motion in her neck and left
shoulder and tenderness, and the doctor prescribed cyclobenzaprine as a muscle
relaxer. (R. 387-88, 375, 404).
At a follow-up at Hope Health Clinic on April 9, 2012, Dr. William Dunham
treated the claimant, who complained of neck pain on her right side and lack of
muscle function and coordination on her right and left sides. Dr. Dunham’s
physical examination of the claimant revealed a positive Spurling’s Test possibly
9

because of a herniated disc in the cervical spine. An MRI performed on April 16,
2012 revealed minimal right posterolateral disc protrusion and uncovertebral joint
hypertrophy at C6-C7, but no stenosis or nerve root encroachment. At the followup on June 4, 2012, Dr. Dunham diagnosed the claimant with degenerative joint
disease of cervical spine at the right facet joint. (R. 376, 386).
The claimant returned to Dr. Dunham on October 8, 2012, complaining of
weakness and tingling in her right hand. He ordered a nerve conduction study that
showed no definite abnormality. Dr. Nasrollah Eslami, who conducted the study,
indicated that, although the nerve conduction test on the claimant was normal, he
assessed she had mild carpal tunnel syndrome in her right hand based on her
history and his clinical exam. Dr. Dunham noted the claimant weighed 210 pounds
and needed to diet and exercise. (R. 385, 416, 462-63).
At the request of the Disability Determination Service, the claimant
completed a “Function Report-Adult” on October 25, 2012. In that report, the
claimant stated that, on a typical day, she watches TV, plays easy Wii games,
moves around the house, lies down during the day, and goes to bed at night.
Sometimes at night, her neck and back hurt so bad that she wakes up, often with a
headache. When bathing, she has to sit on the side of the tub to take a shower
because she cannot stand for too long or her back hurts; to wash her hair, she sits
on a chair, leans over the tub, and uses a cup to rinse her hair. She prepares meals
10

such as salads, crock pot meals, or frozen dinners once a day; she used to make
homemade meals before her pain limited her activities. She used to be able to do
laundry, vacuum, make the beds, clean the bathrooms, and wash dishes; but,
because of her impairments, now can only dust for about fifteen minutes with a
feather duster once every two weeks.
The claimant testified that she can drive, but she only goes out when
necessary, like for appointments with her doctors. She shops for groceries once a
week for about thirty minutes; pays bills; can count change; and can handle a
savings and checking account. However, she stated that her impairments limit her
ability to lift, squat, bend, stand, reach, walk, kneel, climb stairs, concentrate, and
understand some things. She can walk about 50 to 100 feet before she has to stop
for about ten to fifteen minutes and rest. She can pay attention a few minutes;
follow instructions with no problems; gets along “fine” with authority figures; and
does not handle stress or changes in routine well. (R. 245-55).
The claimant also complete a “Headache Questionnaire” on October 25,
2012, in which she stated she has three to four headaches a week that feel like a
“sledge hammer” has gone through one side of her head. The headaches usually
last for an hour and a half, and she has had these headaches for ten to twelve years.
Her headaches cause sensitivity to light and noise; her hands are numb and
“tingly”; and she slurs her words. She stated that she has tried to take prescription
11

medications for the migraines, but she is allergic to them; those medications cause
her to throw up, break out, and have suicidal thoughts. She stated she went to
Shelby Medical Center for her migraines, but doctors referred her to a neurologist.
(R. 257-59).
At the request of the Social Security Administration, neurologist Dr. Ashely
Holdridge, with MDSI Physician Services out of Ogden, Utah, performed a
consultative examination of the claimant on December 8, 2012. Dr. Holdridge also
reviewed the claimant’s medical records. The claimant told Dr. Holdridge that
more than ten years ago she started having migraine headaches. She has three or
four migraines per week that sometimes last all day and feel like a “sledge
hammer” going through the left side of her head. During her headaches, she is
sensitive to light and sound and has nausea. Taking three to four Bayer Aspirin a
day and sleeping give her some relief. The claimant has tried multiple migraine
medications prescribed by her neurologist, but she cannot tolerate any of those
medications.
Regarding her fibromyalgia, the claimant told Dr. Holdridge that “she was
diagnosed [with fibromyalgia] two years ago by her neurologist.” She has aching
pains “all over,” but worse in her shoulders and back. Lying down with a heating
pad and taking Bayer Aspirin give her some relief. The claimant also reported to
Dr. Holdridge that she went completely blind in her left eye in 2000 after a bungee
12

cord pierced that eye three times. She also stated that she has neck pain with
throbbing and sometimes shooting pains down her neck and right arm. Her neck
pain increases when she turns her head, and she uses heating pads to relax her
muscles.
When asked about her activities of daily living, the claimant reported to Dr.
Holdridge that she can do them on her own, but sometimes needs help with putting
on her shoes and socks because she “aches so bad.” She can shower on her own;
cannot do dishes or cook so her husband does those chores; tries to dust a “little
bit”; and spends the majority of her day watching TV and lying down.
Dr. Holdridge noted that the claimant could walk into the examination room
and get on the table without difficulty, but she had a “significant amount of pain
lying flat on the table and getting up,” causing the claimant to “start crying in
pain.” She could open and close a safety pin and pick it up off a flat surface with
both hands. Dr. Holdridge noted that the claimant was 5’6” and weighed 161
pounds.
Dr. Holdridge’s physical examination of the claimant revealed that she has a
“slight left sided limp. She was unable to tandem walk, to walk on her toes or walk
on her heels, because she said she was in too much pain” and began to cry. She
could not squat because of her pain. Her range of motion in all areas was normal,
but she had “multiple areas of tenderness to palpation and she did have at least 12
13

of the typical fibromyalgia trigger points.” Dr. Holdridge noted that the claimant
became “extremely tearful after she went from a supine to a sitting position and
after the trigger points for fibromyalgia were tested.” She had 5/5 muscle strength;
normal sensation to touch and pin in her fingers on both hands; total loss of
pinprick sensation in her left leg; and normal sensation in her left arm and right leg
and arm.
Dr. Holdrige’s diagnoses included migraine headaches, fibromyalgia with
“typical trigger point[s] associated with fibromyalgia”; blindness in her left eye;
and neck pain most likely caused by osteoarthritis. (R. 444-48).
The claimant returned to Dr. Dunham for a follow-up on January 14, 2013
complaining of sudden severe pain in her left leg; muscle spasms; motor weakness;
and neuropathy. Dr. Durham ordered an MRI of her lumbar spine that showed
normal results and “no abnormality to explain the [claimant’s] symptoms.” (R.
459, 461, 481-82).
On June 19, 2013, the claimant began treatment with Dr. Larry S. Mikul at
Baptist Health Center. The claimant told Dr. Mikul that her lower back pain was
worsening and radiating to her left thigh. She described the pain as “burning and
tingling” and stated that sitting, standing, and walking aggravate the pain. She has
weakness in her left leg even when taking a shower; has swelling in her ankles; and
cannot sleep at night because of her pain. She also reported having mild symptoms
14

of loneliness and depression; crying spells for no reason; and two to three
headaches a week. Dr. Mikul’s notes indicate that the claimant is allergic to
Acetaminophen, Hydrocodone, Cephalexin Monohydrate, Sulfa antibiotics, Pseu
doephedrine, Terbinafine, Hydroxyzine, Loratadine, Doxycycline, Clarithromycin,
Tramadol, Ketoprofen, and Hydromorphone.
Dr. Mikal’s physical examination of the claimant showed a full range of
motion in her spine and hip. However, he found that her “Fibromyalgia Tender
Point Calculation” was “12.” He assessed that the claimant has “Fibromyalgia
syndrome,” depression, and sciatica neuralgia, and prescribed Diclofenac Sodium
for her migraines; Soxepin for her depression, anxiety, and insomnia; Flexeril as a
muscle relaxer; Motrin for her inflammation and pain; Neurontin for nerve pain;
and Omeprazole for her GERD. (R. 478-80).
The claimant saw Dr. Mikal again on June 27, July 8, July 17, and
December 13, 2013. During those visits, the claimant reported “mildly severe”
shortness of breath aggravated by activities of daily living; joint tenderness, pain,
and swelling; knee pain; fatigue and malaise; generalized weakness; decreased
mobility; and weight loss. During the July 8 visit, Dr. Mikal found normal range
of motion, muscle strength, and stability in her extremities with no pain on
inspection, and the claimant reported on July 17 that the Neurontin caused
swelling, but that it and the Naproxin “has helped.” Dr. Mikal’s notes on July 17
15

indicate the claimant’s “gerd, depression, and fibromyalgia are all better. She is
now using a cane. She requested a handicap sticker.” He suggested that the
claimant see a rheumatologist. (R. 466-68, 471-74, 491-93).
The claimant saw Dr. Mikul again on April 16, July 8, and July 15, 2014,
continuing to complain of chronic pain and worsening left leg pain aggravated by
lying down, sitting, or standing. In April, she indicated she did not feel fatigued,
but by the July 8th visit she reported fatigue, chest pains, swelling, and irregular
heartbeats. Dr. Mikul added prescriptions for Cymbalta for her fibromyalgia pain
and Mirapex for muscle control. (R. 486-88, 561-65).
At the request of Disability Determination Service, Dr. Rex Harris, an
orthopedic surgeon, performed a consultative examination of the claimant without
reviewing her medical records. The claimant reported to Dr. Harris that she has
fibromyalgia, left leg pain, left neck pain, carpal tunnel syndrome in her right hand,
and sciatica on her left side. Dr. Harris’ physical examination of the claimant
revealed that she has a full range of motion in all areas, except she had limited
flexion and extension in her dorsolumbar spine; had a 4/5 grip strength on both her
right and left hands; minimal tenderness in her lower back; and negative straight
leg tests.
Based on the claimant’s complaints and his physical examination of her, Dr.
Harris assessed that the claimant could occasionally lift and carry up to 10 pounds;
16

sit for twenty minutes at one time; stand for fifteen minutes at one time; walk for
fifteen minutes before needing a break; required a cane to ambulate because it was
“medically necessary”; could occasionally reach overhead, handle, finger, feel, and
push/pull; occasionally operate foot controls; never work around unprotected
heights, moving mechanical parts; can occasionally drive; and can occasionally
work around extreme cold, heat, humidity, dust, and odors. In his opinion, the
claimant is “capable of sedentary work in the work place.” (R. 502-12).
The claimant returned to Dr. Mikul on August 14, November 13, and
December 2, 2014. At the August visit, she complained of lower back pain,
tingling down her leg, and swelling in her feet. After her November 13 visit with
Dr. Mikul, she presented to the Emergency Department at Shelby Baptist Medical
Center on November 23, complaining of back pain, leg pain and swelling and chest
pains. A Doppler exam revealed a blood clot in her left leg, and Dr. Derek
Patterson prescribed Xarleto and discharged the claimant to follow-up with Dr.
Mikul.
By her December 2, 2014 follow-up visit with Dr. Mikul, the blood clot was
still in her left leg, and she continued to complain of back pain, joint pain, fatigue,
and malaise. Dr. Mikul added a prescription for Percocet for pain. (R. 537-39,
541, 546, 556-60).

17

At a January 26, 2015 follow-up visit, Dr. Mikul noted that the claimant
needs more activity to help with the blood clot in her left leg and that he
encouraged her to quit smoking. His notes state that “[a]s explained and as
indicated by multiple signs around the office, I do not make disability
determinations. She has left a form for me to complete and I have completed the
section that states she can work.” (R. 573).
First ALJ Hearing
After the Commissioner denied the claimant’s request for disability benefits,
the claimant requested and received a hearing before an ALJ on July 16, 2014. (R.
8-39). At that hearing, the claimant testified that she stopped working in 2009
because she could not perform the required duties. She explained that she worked
at a gas station and was fired because she did not see someone steal gas without
paying. The gas pumps were on her left side when she stood at the cash register,
and her blindness in her left eye prevented her from seeing the gas pumps. (R. 70).
She also testified about the limitations caused by her fibromyalgia pain. She
hurts all over “mostly every day” and has a “prickly tingling feeling” in her
shoulders and arms. She stated that her doctor put her on Cymbalta a month earlier
that helps a little because “it takes a little [of the pain] away.” The ALJ asked:
“How did the doctors test you for fibromyalgia; she responded: “They didn’t.
They asked me what I felt, and I told them. I explained to them everything I was
18

feeling.” The ALJ asked the claimant to “tell [him] where your trigger spots are.”
She described spots in her back, leg, and shoulder that are tender. The ALJ asked
her if she had any additional tender spots, and she responded: “No.” (R. 71).
The claimant testified she has had her migraines since she was a kid, but
they have worsened and become more frequent as she has aged. She said she saw
Dr. Kirschberg at Southern Neurology for her migraines; he prescribed several
migraine medications to which she was allergic. She has three to four migraines a
week that could last from three to eight hours; has to lie down and put rags over
her eyes; feels nauseas during the migraines; and takes Excedrin Migraine to help
with the pain. (R. 72-73).
She also suffers from sciatica pain in her left leg that feels like “getting a lot
of needles poked at you.” She testified that she has fallen down steps three times
because her leg hurts, and she cannot put pressure on it. She obtained a disability
parking permit because of her sciatica, and she cannot walk 200 feet without
having to stop and rest. She testified that she also has back pain and arthritis;
weakness in her right arm; and carpel tunnel syndrome in her right hand that shoots
pain up her arm and causes numbness in her fingertips. (R. 74-79).
Regarding her daily activities, the claimant testified that she does not go
grocery shopping; has no activities or hobbies outside of her home; and does not
attend church. She dusts, but her husband does the laundry and dishes. (R. 80).
19

The vocational expert Claude Peacock testified that the claimant has past
relevant work as a cashier, housekeeper, and presser at a dry cleaner, all classified
as light, unskilled work. Mr. Peacock then testified concerning the type and
availability of jobs that the claimant was able to perform. The ALJ asked Mr.
Peacock about an hypothetical person the same age, education, and work history as
the claimant, who could perform a full range of light work, except she could only
occasionally stoop, kneel, crouch, crawl, and climb stairs and ramps; cannot work
at unprotected heights or around moving equipment; cannot climb ladders, ropes,
or scaffolds; and can frequently use her hands bilaterally to finger and grasp. Mr.
Peacock testified that such an individual could return to the claimant’s past
relevant work. (R. 83).
Mr. Peacock stated that, if the hypothetical person had pain such that she
could not maintain persistence and pace for 15-20% of the workday, no work
would be available.
Second ALJ Hearing
The ALJ convened a second hearing for Dr. Irving Kushner, a boardcertified rheumatologist, to testify via telephone regarding “whether sufficient
medical evidence [exists] in the record to form an opinion of the claimant’s
medical status.” Dr. Kushner reviewed the claimant’s medical records and testified
that he was “puzzled as to why a rheumatologist is needed for this case because I
20

didn’t find very much rheumatologic here.” Dr. Kushner stated that he “might say
that [he’s] not qualified to give an opinion about transient neuropathy or traumatic
eye blindness,” but in his opinion none of the non-rheumatologic diagnoses he
found in the claimant’s record would meet or equal a Listing.
The ALJ then asked Dr. Kushner about the claimant’s fibromyalgia. Dr.
Kushner acknowledged the mention of fibromyalgia in the claimant’s medical
records, but stated that “about half the rheumatologists don’t really think there is
such a thing. I’ve been skeptical. I don’t really think it’s a medically determinable
condition.” (R. 52-56).
Dr. Kushner testified that, even though he does not believe fibromyalgia is a
medically determinable impairment, he acknowledged that the Social Security
Administration issued a ruling “telling us that fibromyalgia is a medically
determinable condition and giving us criteria to arrive at a conclusion.” He
described the requirements for the 1990 and 2010 ACR Criteria. Dr. Kushner
noted that the first requirement under both sets of criteria is that the claimant has
“widespread pain . . . in all quadrants of the body” that persists for at least three
months. He found that the claimant’s medical record contains “no description of
the claimant’s pain at that distribution anywhere in the record.” Dr. Kushner also
indicated that he did not “see any numbers in this record” regarding the number of
tender point sites for the claimant. He stated that he has “no idea what sort of
21

pressure was being applied for that physician to conclude that [there] were tender
points. So . . . it doesn’t meet the criteria in that ruling.” (R. 56-57).
Based on his review of the claimant’s medical file, Dr. Kushner concluded
that the claimant has “no medically determinable conditions that would lead to
limitation,” even taking her blood clot in her leg into consideration. Dr. Kushner
indicated that blood clots are not “permanent”; usually resolve in time with
medications in about a month or two; and only “cause problems when they lead to
[a] pulmonary embolism.” (R. 58-59).
Because the ALJ heard from a vocational expert at the first hearing, he did
not elicit any additional vocational expert testimony. (R. 62).
VI. ALJ OPINION
On April 2, 2015, the ALJ determined that the claimant was not disabled
under the Social Security Act. The ALJ found the claimant met the insured status
requirement of the Social Security Act through March 31, 2013 and had not
engaged in substantial gainful activity since March 15, 2011, the alleged onset date
of disability. (R. 25).
Next, the ALJ found that the claimant suffered from the severe impairments
of migraines, sciatica, osteoarthritis, degenerative joint disease, gastroesophageal
reflux disease, spondylosis, carpel tunnel syndrome, deep venous thrombosis, and
obesity. He found that the record contained “no evidence of any other impairment
22

that had significantly affected the claimant’s ability to perform basic work
activities.” Noting the claimant’s left eye blindness, the ALJ found no functional
limitations because of this impairment because it caused only “minimal effects” on
her ability to work full-time. The ALJ noted that the claimant performed all of her
past relevant work with her blind left eye. Citing to Dr. Cox’s medical records
ruling out any cardiac issue, the ALJ also found no objective medical evidence to
support that the claimant had a heart impairment. (R. 26).
Regarding her fibromyalgia, the ALJ found that it was not a medically
determinable impairment. The ALJ acknowledged that two doctors diagnosed
fibromyalgia through tender point testing under the 1990 ACR Criteria, but gave
Dr. Kushner’s opinion that the claimant’s fibromyalgia was not a medically
determinable impairment great weight. The ALJ found that, because the
claimant’s doctors “failed to properly document the level of force used during
those examinations,” those diagnoses did not meet the regulation requirements to
find that the claimant’s fibromyalgia was a medically determinable impairment.
(R. 27, 34).
The ALJ acknowledged that the claimant complained of widespread pain
throughout the record. But he found that evidence in the record suggests that other
disorders could cause the claimant’s symptoms, including migraines, sciatica,
osteoarthritis, degenerative joint disease, gastroesophageal reflux disease,
23

spondylosis, carpel tunnel syndrome, and obesity. Because the claimant’s doctors
did not rule out those diagnoses as potential causes of her symptoms, the ALJ
found that the claimant’s fibromyalgia is not a medically determinable impairment.
The ALJ next found that none of the claimant’s impairments, singly or in
combination, manifested the specific signs and diagnostic findings required by the
Listing of Impairments. The ALJ took into account the claimant’s obesity and its
impact on her ability to function. (R. 28-29).
The ALJ then determined that the claimant had the RFC to perform light
work, except that she can only occasionally stoop, kneel, crouch, crawl, and climb
ramps and stairs; never be exposed to unprotected heights or dangerous machinery;
never climb ladders, ropes, or scaffolds; and only frequently use her hands
bilaterally to finger and grasp. In making this RFC determination, the ALJ
indicated that he carefully considered the entire record and thoroughly listed parts
of the record to supports his finding. The ALJ also stated that his RFC assessment
takes into account all of the claimant’s severe impairments. (R. 29-33, 36).
In considering the claimant’s subjective allegations of pain, the ALJ applied
the controlling pain standard of the Eleventh Circuit and found that the claimant’s
allegations of pain were not fully credible when considered in light of the entire
record. The ALJ concluded that, although the claimant’s medically determinable
impairments could reasonably be expected to cause symptoms, the claimant’s
24

allegations regarding intensity, persistence, and limiting effects of these symptoms
were “not entirely credible.” He found the “claimant only partially credible
because the objective medical evidence of record shows normal findings, which
suggest that the claimant’s impairments are not as severe as she alleges.” He
specifically noted the unremarkable imaging of the claimant’s spine in March and
April 2012; the EMG and nerve conduction tests that showed normal findings; the
claimant’s minimal reduction in grip strength on the left and right hand; normal
straight leg tests on both sides; and normal range of motion in her neck, shoulder,
and elbows. (R. 33).
The ALJ also noted that the claimant had a normal gait on some occasions; a
negative Romberg test; and ability to walk, squat, and rise. He stated that no
doctor has medically prescribed a cane or wheelchair for the claimant. Yet, the
ALJ indicated that he accounted for her slightly abnormal gait, obesity, blood clot,
and back pain by limiting the claimant’s RFC to “occasional postural movements
and no exposure to unprotected heights or dangerous machinery.” He also stated
that he accounted for her carpel tunnel syndrome by limiting her to only frequent
use of her hands bilaterally to finger and grasp.
Next, the ALJ gave “weight” to treating physician Dr. Mikul’s opinion that
she can work because he had the benefit of treating the claimant over an extended
period of time and was in the “best position to render an opinion on her condition.”
25

The ALJ gave consulting, non-examining physician Dr. Kushner’s opinion that she
has no medically determinable impairment at all “less weight” because the
claimant has severe impairments that could cause some functional limitations. (R.
34-35).
The ALJ gave consulting, examining physician Dr. Harris’ opinion that the
claimant could perform only sedentary work little weight because it was “internally
inconsistent.” The ALJ noted that Dr. Harris’ physical examination of the claimant
showed fairly normal findings: full range of motion in her neck, shoulders, and
neck; negative straight leg test bilaterally; and only slightly reduced grip strength.
The ALJ found that Dr. Harris’ findings on physical examination were inconsistent
with his assessment that the claimant could only sit twenty minutes, stand for
fifteen minutes, and walk for fifteen minutes. He also stated that Dr. Harris based
much of his opinion on the claimant’s subjective allegation that she uses a cane to
ambulate and that Dr. Harris’ “own physical examination shows that the claimant
could walk, squat, and rise.” The ALJ noted no doctor in the record prescribed the
claimant a cane and that she did not begin using one until 2013. (R. 35-36).
In assessing the claimant’s daily activities as they relate to her ability to
perform light work, the ALJ noted that she can watch TV; prepare meals for up to
one hour; play video games; and dust the house. The ALJ concluded that these

26

activities show that the claimant can “move around the house and use her hands
and feet.”
Lastly, the ALJ found that based on his RFC assessment for the claimant and
on the vocation expert’s testimony at the first hearing, the claimant could perform
her past relevant work as a cashier, housekeeper, and presser. Therefore, the ALJ
found that the claimant was not disabled as defined by the Social Security Act and
was not entitled to disability benefits.
VII. DISCUSSION
Although the claimant had two separate medically acceptable sources who
personally examined her and diagnosed fibromyalgia based on a medical finding of
at least 12 tender points commonly associated with fibromyalgia, the ALJ found
that her fibromyalgia did not constitute a medically determinable impairment.
That finding lacks reason and substantial evidence does not support it.
The ALJ based his finding that the claimant’s fibromyalgia was not a
medically determinable impairment on Dr. Kushner’s testimony at the second
hearing. The ALJ’s reliance on Dr. Kushner’s testimony was error. Dr. Kushner
indicated early on in the hearing that he had no idea why the ALJ needed the
opinion of a rheumatologist because he saw nothing rheumatologically noteworthy
in the claimant’s medical record. The court has “no idea” why Dr. Kushner was
selected to review the claimant’s medical records, other than to give a
27

predetermined opinion of no fibromyalgia. Dr. Kushner made clear that he joins
the half of rheumatologists who do not believe that fibromyalgia even exists as a
medically determinable impairment. No wonder Dr. Kushner questioned the need
for a rheumatologic consultative evaluation for the claimant—he does not think
fibromyalgia is “such a thing.” He assessed the claimant’s fibromyalgia from a
biased viewpoint from the beginning of his assessment and incorrectly evaluated
the claimant’s medical records.
Dr. Kushner’s assessments regarding the lack of widespread pain and lack of
number of tender points sites tested were contrary to the medical record. Dr.
Kushner said he found no evidence in the claimant’s medical records to show that
her pain was in all quadrants of her body. The record actually shows otherwise.
The ALJ even acknowledged that the claimant complained of widespread pain
throughout the record. For years, the claimant consistently complained of chronic
pain in all of her joints all over her body; on the right and left side of her body; in
her legs and in her arms; in her shoulders and back; and in her head. The court
does not know exactly which records Dr. Kushner reviewed; but the records the
court recounted at length in the fact section above constitute substantial evidence
that the claimant has widespread pain in all quadrants of her body.
Dr. Kushner also testified about the 1990 ACR Criteria and its requirement
that the claimant show at least 11 positive tender points on physical examination.
28

He stated that he did not “see any numbers in this record” regarding the number of
positive tender points for the claimant. Again, Dr. Kushner missed crucial
evidence in the record. Even the ALJ pointed out that two of the claimant’s
doctors diagnosed fibromyalgia based on a finding of 12 positive tender points.
The ALJ even agreed that Dr. Kushner erred when he opined that the
claimant had absolutely no medically determinable impairment that would cause
any limitation; he gave Dr. Kushner “less weight” as to that unsupported and
baseless opinion. Yet, despite Dr. Kushner’s failure to correctly assess the
claimant’s medical records and history and his baseless opinion that the claimant
had no medically determinable impairments, the ALJ gave Dr. Kushner’s opinion
great weight concerning the lack of evidence in the record regarding the amount of
pressure the doctors used on the claimant to determine tender points. On that fact
alone, Dr. Kushner concluded that those doctors’ opinions did not meet the 1990
ACR Criteria to show that the claimant’s fibromyalgia was a medically
determinable impairment. The ALJ grabbed hold of Dr. Kushner’s faulty
conclusion and incorrectly made it his own.
Dr. Holdridge, a neurologist who physically examined the claimant,
indicated that she used palpation to determine at least 12 points of tenderness in
the claimant’s joints. The Social Security Administration hired Dr. Holdridge to
physically examine the claimant and give her medical opinion in the claimant’s
29

disability case. Therefore, the court reasonably assumes that Dr. Holdridge was
familiar with the ACR Criteria and the proper force to use upon palpation to
determine that the claimant had “at least 12 of the typical fibromyalgia trigger
points.”
Likewise, the court reasonably assumes that Dr. Mikul, the claimant’s
treating physician, also knew the proper palpation technique to make a medical
finding that the claimant’s “Fibromyalgia Tender Point Calculation” was “12.”
The ALJ gave Dr. Mikul’s unexplained opinion that the claimant could work great
weight because Dr. Mikul was her treating physician and had the benefit of treating
the claimant over an extended period of time. Yet the ALJ refused to afford that
great weight to Dr. Mikul’s assessment that the claimant had 12 tender points
associated with fibromyalgia. The ALJ cannot have it both ways.
Dr. Holdridge and Dr. Mikul’s failure to record in their notes that they used
“an approximate force of 9 pounds” does not mean they in fact did not use the
correct force. If unsure, under SSR 12-2p, the ALJ should have contacted both of
these doctors to determine if they used the amount of force required by the
regulations. The ALJ also could have ordered a consultative physical examination
of the claimant by a rheumatologist—one who thinks fibromyalgia actually exists
as medically determinable impairment—to determine whether the claimant’s
fibromyalgia meets either the 1990 or 2010 ACR Criteria. Instead the ALJ ignored
30

Dr. Holdridge and Dr. Mikul’s medical findings based on their failure to
specifically state the amount of force they used upon palpation. In doing so, he
assumed that these doctors—the claimant’s treating physician and a Social
Security Administration selected examining consultant—did not know how to
diagnose fibromyalgia. Discounting their medical opinions solely on this basis
was error and substantial evidence does not support the ALJ’s finding.
The ALJ also failed to discuss specifically whether the claimant’s
fibromyalgia met the 2010 ACR Criteria for a medically determinable impairment.
The ALJ seemed to acknowledge that the claimant met the widespread pain
requirement found in both the 1990 and 2010 Criteria. The ALJ did not address
specifically the number of the claimant’s fibromyalgia symptoms, signs, and coconcurring conditions. The 2010 Criteria requires at least six or more fibromyalgia
symptoms, signs, and co-concurring conditions. The record shows that the
claimant had at least thirteen fibromyalgia indicators: muscle pain; fatigue; muscle
weakness; numbness or tingling; dizziness; insomnia; depression; nausea; chest
pain; shortness of breath; hair loss; GERD; and migraines.
The ALJ seemed to ignore these fibromyalgia indicators and instead found
that evidence in the record suggests that the claimant’s other severe impairments
could cause her fibromyalgia symptoms. However, that finding lacks substantial
evidence. Dr. Cox could find no cardiac basis for her chest pain or fatigue. Her
31

nerve conduction test for carpel tunnel syndrome was normal, but Dr. Eslami
assessed her carpel tunnel syndrome in one hand despite that normal finding. The
May 2010 CT scan of her brain and spinal tap were normal. The January 2013
MRI of her lumbar spine showed normal results and “no abnormality to explain
[the claimant’s] symptoms.” Her diagnosis of degenerative joint disease of the
cervical spine at the right facet joint in 2012 does not explain the chronic pain all
over her body and fibromyalgia symptoms the years before and after that
diagnosis. The objective medical tests throughout the record showed no objective
basis or other cause for the claimant’s widespread chronic pain all over her body.
The ALJ’s total disregard for the claimant’s fibromyalgia symptoms and
diagnoses by Dr. Holdrige and Dr. Mikul without further development of the
record is concerning. The court finds that substantial evidence does not support
the ALJ’s finding that the claimant’s fibromyalgia was not a medically
determinable impairment.
Other Concerns
The court is also concerned that the ALJ failed to include any limitations
caused by the claimant’s migraines in his RFC assessment. Although the ALJ
recounted in his opinion all of the evidence regarding the claimant’s migraines and
found them to be severe impairments, he failed to explain in any way why he
completely disregarded any limitations possibly cause by the claimant’s migraines.
32

In the section of his opinion where he applied the pain standard, he never
mentioned the claimant’s migraines. On remand, the ALJ should address this
concern.
Another concern includes the ALJ’s assessment of the claimant’s activities
of daily living as they relate to her ability to “handl[e] light work” and work a full
eight-hour work day. The ALJ found that the claimant could watch TV, prepare
meals for up to one hour, play video games, and dust the house. He then
concluded that these activities showed that the claimant could “move around and
can use her hands and feet.” That statement may be true; but all of these activities
together do not constitute substantial evidence that she can sustain light work on a
full-time basis with her severe impairments. See Parker v. Bowen, 793 F.2d 1177,
1180 (11th Cir. 1986) (substantial evidence did not support the ALJ’s finding that
the claimant’s ability to do simple household chores negated her claims that she
had to lie down every two hours because of her impairments). On remand, the ALJ
should explain how these activities of daily living are inconsistent with the
claimant’s allegations regarding her limitations.
VIII. CONCLUSION
For the reasons stated above, this court concludes that substantial evidence
does not support the ALJ’s findings regarding the claimant’s fibromyalgia.

33

Therefore, the court REVERSES and REMANDS the decision of the ALJ
consistent with this Memorandum Opinion.
The court will enter a separate Order to that effect simultaneously.
DONE and ORDERED this 20th day of March, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

34