Harner v. Social Security Administration, Commissioner
MEMORANDUM OPINION - For the reasons discussed above, the Court affirms the Commissioner's decision. Signed by Judge Madeline Hughes Haikala on 03/31/2021. (CJM)
2021 Mar-31 PM 05:06
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
Zinta Renee Harner,
Case No.: 4:19-cv-01808-MHH
Andrew Saul, Commissioner of the
Social Security Administration,
Zinta Harner has asked the Court to review a final adverse decision of the
Commissioner of Social Security under 42 U.S.C. § 405(g). After review, the Court
affirms the Commissioner’s decision.
Ms. Harner applied for a period of disability and disability insurance benefits
on April 28, 2017, alleging that her disability began on August 5, 2016. (Doc. 6-12,
p. 5). She alleged disabling conditions of degenerative disc disease, fatty liver, two
bulging discs in her lumbar spine, forminal stenosis, severe fatigue, a herniated disc
in her cervical spine, radiculopathy from her lumbar spine to her legs, migraine
headaches, asthma, and food allergies. (Doc. 6-10, p. 3). The Commissioner denied
Ms. Harner’s claim, and she requested a hearing before an Administrative Law Judge
(ALJ). (Doc. 6-11, pp. 7, 13). After her hearing, the ALJ issued an unfavorable
decision. (Doc. 6-3, pp. 38–58). The Appeals Council denied Ms. Harner’s request
for review, making the Commissioner’s administrative decision final for this Court’s
judicial review. (Doc. 6-3, pp. 2–8); see 42 U.S.C. § 405(g).
Standard of Review
The scope of review in this matter is limited. “When, as in this case, the ALJ
denies benefits and the Appeals Council denies review,” a district court “review[s]
the ALJ’s ‘factual findings with deference’ and [her] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510–11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
A district court must determine whether there is substantial evidence in the
record to support the ALJ’s factual findings. “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158 (11th Cir. 2004). In making this evaluation, a district court may not “decide
the facts anew, reweigh the evidence,” or substitute its judgment for the ALJ’s.
Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011)
(internal quotations and citation omitted).
If the ALJ’s decision is supported by
substantial evidence, a district court “must affirm even if the evidence preponderates
against the Commissioner’s findings.” Costigan v. Comm'r, Soc. Sec. Admin., 603
Fed. Appx. 783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, a district court must determine
whether the ALJ applied the correct legal standards. If the district court finds an
error in the ALJ’s application of the law, or if the district court finds that the ALJ
failed to provide sufficient reasoning to demonstrate that the ALJ conducted a proper
legal analysis, then the district court must reverse the ALJ’s decision. Cornelius v.
Sullivan, 936 F.2d 1143, 1145–46 (11th Cir. 1991).
The Regulatory Framework for Applications Filed after March 27, 2017
The general rules guiding an ALJ’s analysis of an application for SSI benefits
are well-settled. To be eligible for SSI benefits, a claimant must be disabled. Gaskin
v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013). “A claimant is
disabled if he is unable to engage in substantial gainful activity by reason of a
medically-determinable impairment that can be expected to result in death or which
has lasted or can be expected to last for a continuous period of at least 12 months.”
Gaskin, 533 Fed. Appx. at 930 (citing 42 U.S.C. § 423(d)(1)(A)).
To determine if a claimant is disabled, an ALJ follows a five-step sequential
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
Winschel, 631 F.3d 1176, 1178 (11th Cir. 2011). “The claimant has the burden of
proof with respect to the first four steps.” Wright v. Comm’r of Soc. Sec., 327 Fed.
Appx. 135, 136–37 (11th Cir. 2009). “Under the fifth step, the burden shifts to the
Commissioner to show that the claimant can perform other jobs that exist in the
national economy.” Wright, 327 Fed. Appx. at 137.
The regulations governing the types of evidence that a claimant may present
in support of his application for benefits or that the Commissioner may obtain
concerning an application and the way in which the Commissioner must assess that
evidence changed in March of 2017, and those changes apply to this case because
Ms. Harner filed her application for benefits in April of 2017. Under the new
regulations, evidence falls into five categories:
objective medical evidence,
including laboratory findings; medical opinions, meaning “a statement from a
medical source about what you can still do despite your impairment(s) and whether
you have one or more impairment-related limitations or restrictions;” “other medical
evidence” which includes all non-objective medical evidence such as medical
history, diagnoses, and “judgments about the nature and severity of your
impairments;” evidence from non-medical sources such as family members,
employers, or others who have information relevant to an application for benefits;
and prior administrative medical findings, which are findings, “other than the
ultimate determination about whether you are disabled, about a medical issue made
by our Federal and State agency medical and psychological consultants at a prior
level of review (see [20 C.F.R] § 404.900) in your current claim based on their
review of the evidence in your case record . . . .” 20 C.F.R. § 404.1513(a).
The new regulations govern the way in which an ALJ must evaluate medical
opinions and prior administrative medical findings from federal and state agency
medical and psychological consultants. Now, an 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 own]
medical sources.” 20 C.F.R. § 404.1520c(a). Instead, an ALJ must evaluate each
medical opinion using the following five factors:
(1) Supportability. The more relevant the objective medical evidence
and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative
medical finding(s), the more persuasive the medical opinions or
prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other
medical sources and nonmedical sources in the claim, the more
persuasive the medical opinion(s) or prior administrative medical
finding(s) will be.
(3) Relationship with the claimant. This factor combines
consideration of the issues in paragraphs (c)(3)(i)-(v) of this section.
Length of the treatment relationship. The length of time a
medical source has treated you may help demonstrate whether
the medical source has a longitudinal understanding of your
Frequency of examinations. The frequency of your visits with the
medical source may help demonstrate whether the medical
source has a longitudinal understanding of your impairment(s).
Purpose of the treatment relationship. The purpose for treatment
you received from the medical source may help demonstrate the
level of knowledge the medical source has of your
Extent of the treatment relationship. The kinds and extent of
examinations and testing the medical source has performed or
ordered from specialists or independent laboratories may help
demonstrate the level of knowledge the medical source has of
Examining relationship. A medical source may have a better
understanding of your impairment(s) if he or she examines you
than if the medical source only reviews evidence in your folder.
(4) Specialization. The medical opinion or prior administrative
medical finding of a medical source who has received advanced
education and training to become a specialist may be more
persuasive about medical issues related to his or her area of specialty
than the medical opinion or prior administrative medical finding of
a medical source who is not a specialist in the relevant area of
(5) Other factors. We will consider other factors that tend to support
or contradict a medical opinion or prior administrative medical
finding. This includes, but is not limited to, evidence showing a
medical source has familiarity with the other evidence in the claim
or an understanding of our disability program’s policies and
evidentiary requirements. When we consider a medical source’s
familiarity with the other evidence in a claim, we will also consider
whether new evidence we receive after the medical source made his
or her medical opinion or prior administrative medical finding
makes the medical opinion or prior administrative medical finding
more or less persuasive.
20 C.F.R. § 404.1520c(c)(1)-(5) (emphasis added).
In his written decision, an ALJ must state the extent to which he found the
medical opinions and prior administrative medical findings in the record persuasive,
using the following criteria:
(1) Source-Level Articulation.
Because many claims have
voluminous case records containing many types of evidence from
different sources, it is not administratively feasible for us to
articulate in each determination or decision how we considered all
of the factors for all of the medical opinions and prior administrative
medical findings in your case record. Instead, when a medical
source provides multiple medical opinion(s) or prior administrative
medical finding(s), we will articulate how we considered the
medical opinions or prior administrative medical findings from that
medical source together in a single analysis using the factors listed
in paragraphs (c)(1) through (c)(5) of this section, as appropriate.
We are not required to articulate how we considered each medical
opinion or prior administrative medical finding from one medical
(2) Most Important Factors. The factors of supportability (paragraph
(c)(1) of this section) and consistency (paragraph (c)(2) of this
section) are the most important factors we consider when we
determine how persuasive we find a medical source’s medical
opinions or prior administrative medical findings to be. Therefore,
we will explain how we considered the supportability and
consistency factors for a medical source’s medical opinions or prior
administrative medical findings in your determination or decision.
We may, but are not required to, explain how we considered the
factors in paragraphs (c)(3) through (c)(5) of this section, as
appropriate, when we articulate how we consider medical opinions
and prior administrative medical findings in your case record.
(3) Equally Persuasive Medical Opinions or Prior Administrative
Medical Findings About the Same Issue. When we find that two
or more medical opinions or prior administrative medical findings
about the same issue are both equally well-supported (paragraph
(c)(1) of this section) and consistent with the record (paragraph
(c)(2) of this section) but are not exactly the same, we will articulate
how we considered the other most persuasive factors in paragraphs
(c)(3) through (c)(5) of this section for those medical opinions or
prior administrative medical findings in your determination or
20 C.F.R. § 404.1520c(b)(1)-(3) (emphasis added).
The new regulations do not address the way in which an ALJ should weigh
other evidence including diagnoses that do not include opinions concerning
impairment-related limitations or restrictions, objective medical evidence such as
test results, and testimony provided during administrative hearings. 1 The regulations
state that an ALJ does not have to explain how he considered evidence from nonmedical sources using the standards in 20 C.F.R. § 404.1520c(a), (b), and (c). 20
C.F.R. § 405.1520c(d). 2
The parties do not cite to, and the Court has not identified, controlling regulations in this area.
See Rochelle S. v. Saul, No. C20-5532-MAT, 2021 WL 252925, at *3 (W.D. Wash. Jan. 25,
2021) (“Under the regulations the ALJ cited, [§ 416.920c(d)] she was ‘not required to articulate
how [she] considered evidence from nonmedical sources using the requirements’ for medical
sources, such as supportability, consistency, and treating relationship.”); Melanie Lynne H. v. Saul,
No. 20-1028-JWL, 2020 WL 6262913, at *6 (D. Kan. Oct. 23, 2020); Wright v. Comm’r of Soc.
The Administrative Law Judge’s Findings
The ALJ found that Ms. Harner had not engaged in substantial gainful activity
since August 5, 2016, the alleged onset date. (Doc. 6-3, p. 44). The ALJ determined
that Ms. Harner suffered from the following severe impairments: spine disorders,
fibromyalgia, and migraines. (Doc. 6-3, p. 44). The ALJ noted that Ms. Harner’s
medical records “indicate[d] fatty liver, food allergies, asthma, coronary artery
disease, sleep apnea, essential hypertension, hyperlipidemia, frequent sinus
infections, and obesity,” but found that “the evidence does not establish that these
impairments reach the severity standard under the regulations.” (Doc. 6-3, p. 44).
The ALJ explained that while “the evidence indicates the above-mentioned
conditions were generally resolved with appropriate treatment or never lasted 12
continuous months,” he nevertheless “considered all of [Ms. Harner’s] medically
determinable impairments, including those that are not severe, when assessing her
residual functional capacity.” (Doc. 6-3, p. 44).
Sec., No. 2:19-cv-1124, 2020 WL 5651540, at *6 (S.D. Ohio Sept. 23, 2020); Simone V. v. Saul,
No. 19-2577-JWL, 2020 WL 5203461, at *4 (D. Kan. Sept. 1, 2020); Ryan L. F. v. Comm’r of
Soc. Sec., No. 6:18-cv-01958-BR, 2019 WL 6468560, at *8 (D. Or. Dec. 2, 2019) (“Although the
ALJ must consider evidence from nonmedical sources pursuant to [20 C.F.R.] §§ 404.1520c(d)
and 416.920c(d) of the new regulations, the ALJ is ‘not required to articulate how [he] consider[s]
evidence from nonmedical sources’ and he . . . does not have to use the same criteria as required
for medical sources.”).
The ALJ determined that Ms. Harner’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, [her]
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence
in the record . . . .” (Doc. 6-3, p. 47). Based on a review of the extensive medical
evidence, the ALJ concluded that Ms. Harner did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
listed impairments 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 6-3, p. 46).
Given Ms. Harner’s impairments, the ALJ evaluated her residual functional
capacity and determined that Ms. Harner had the RFC to perform:
light work as defined in 20 CFR 404.1567(b) except occasionally
climbing ramps or stairs, never climbing ladders, ropes or scaffolds,
occasionally balancing, stooping, kneeling, crouching or crawling,
frequently reaching overhead bilaterally, must avoid all exposure to
unprotected heights, unprotected moving mechanical parts and
dangerous machinery, must alternate sitting and standing every 20-30
minutes throughout the work day in order to change position for a brief
positional change of less than 5 minutes but without leaving the work
(Doc. 6-3, p. 46). “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.” 20 C.F.R. § 404.1567(b). “If someone
can do light work, . . . she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of
time.” 20 C.F.R. § 404.1567(b). “Sedentary work involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in carrying out
job duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
Based on this RFC, the ALJ concluded that Ms. Harner could perform her past
relevant work as a receptionist and travel agent. (Doc. 6-3, p. 51). Ms. Harner was
50 years old, “which is defined as an individual closely approaching advanced age,
on the alleged disability onset date.” (Doc. 6-3, p. 52) (citing 20 C.F.R. § 404.1563).
Ms. Harner had at least a high school education and can communicate in English.
(Doc. 6-3, p. 52) (citing 20 C.F.R. § 404.1564).
The ALJ concluded that
“[t]ransferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding that
[Ms. Harner] is ‘not disabled,’ whether or not [she] has transferable job skills.”
(Doc. 6-3, p. 52) (citing SSR 82-41; 20 C.F.R. Part 404, Subpart P, Appendix 2). In
addition to concluding that Ms. Harner could perform her past relevant work, the
vocational expert who testified at the ALJ hearing identified two other jobs Ms.
Harner could perform: office helper (Dictionary of Occupational Titles No.
239.567.010) and mail sorter (Dictionary of Occupational Titles No. 209.687.026).
(Doc. 6-3, pp. 52–53).
Based on this evidence, the ALJ concluded Ms. Harner was not disabled and
not entitled to benefits. (Doc. 6-3, p. 53).
Objective Medical Evidence and Other Medical Evidence
Ms. Harner’s medical records confirm that she had suffered from a history of
musculoskeletal impairments through the disability period. A May 7, 2017 lupus
panel showed a positive result on the ANA screen. (Doc. 6-5, p. 13). 3 The panel
also showed Ms. Harner tested negative for DNA Ab (ds) Crithidia, IFA; Striated
Muscle Ab; and Myocardial AB, IF. (Doc. 6-5, p. 13). 4 On June 22, 2017,
ANA TESTING, LUPUS RESEARCH ALLIANCE, https://www.lupusresearch.org/understandinglupus/diagnosis-and-treatment/ana-testing/ (last visited Mar. 16, 2021) (“The antinuclear antibody
(ANA) test is commonly used to look for autoantibodies that attack components of your cells’
nucleus, or ‘command’ center, triggering autoimmune disorders like lupus. 95% of people with
lupus test positive for ANA, but a number of other, non-lupus causes can trigger a positive ANA,
including infections and other autoimmune diseases. The ANA test simply provides another clue
for making an accurate diagnosis.”).
DOUBLE-STRANDED DNA (DSDNA) ANTIBODY, IGG BY IFA (USING CRITHIDIA LUCILIAE), ARUP
LABORATORIES, https://ltd.aruplab.com/Tests/Pub/2002693 (last visited Mar. 16, 2021) (“Positive
for anti-double stranded DNA (anti-dsDNA) igG antibody is a diagnostic criterion of systematic
lupus erythematosus (SLE). The presence of the anti-dsDNA IgG antibody is identified by IFA
titer (Crithidia luciliae indirect fluorescent test [CLIFT]). CLIFT is highly specific for SLE with
a sensitivity of 50-60 percent.”).
STRIATIONAL (STRIATED MUSCLE) ANTIBODIES, SERUM, MAYO CLINIC LABORATORIES,
https://www.mayocliniclabs.com/test-catalog/Clinical+and+Interpretive/8746 (last visited Mar.
rheumatologist Dr. Vishala Chindalore examined Ms. Harner and wrote that Ms.
has [had] problems with joints onset many years ago. Morning stiffness
lasts 2 hours. Has not had any intra articular injs or aspirations. Has
hypertension, no diabetes, heart problems, seizures, strokes, ulcers,
bleeding, transfusions. No changes in weight, bowel or bladder habits,
skin rashes, psoriasis, tickbites, infections, hairloss, dry mouth, sores in
the mouth, photosensitivity or Raynaud’s. Has dry eyes. Cannot sleep
well, under stress, gets fatigued. No blood clots, 2 miscarriages, 1
abortion. States grandparents have arthritis, unsure of type. Gets
mammograms and DEXA regularly. Had hyst. No smoking or drug
abuse. Drinks alcohol. Lives in Centre with spouse. Kids-none. Does
not work….AN8 Has joint pains and has ANA 1:80 homo pattern, lupus
profile neg and has low C3. Has some hair loss, no oral ulcers, no
photosensitivity, skin rashes.
(Doc. 6-24, p. 60). Dr. Chindalore ordered x-rays of Ms. Harner’s hand, knees, and
hips, and noted that Ms. Harner has OA/fibromyalgia features. (Doc. 6-24, pp. 64–
65). In an August 3, 2017 follow-up, Dr. Chindalore noted Ms. Harner’s ANA was
slightly abnormal but that her lupus profile was negative. (Doc. 6-25, p. 70). While.
16, 2021) (Used “[a]s a serological aid in the diagnosis of thymoma [a tumor originating from the
epithelia cells of the thymus that is considered a rare malignancy], especially in patients with onset
of myasthenia gravis (MG) younger than 45 years[.] [Useful] [a]s a screening test for MG in older
patients, especially when tests for muscle acetylcholine receptor (AChR) antibodies are
=df72a68c-a092-4255-9846-cbe5df6d0ce0 (last visited Mar. 16, 2021) (“Detection of myocardial
antibodies suggests that a patient’s heart disease may have an immunologic component.
Myocardial antibodies are found in the serum of patients with various cardiomyopathies, especially
idiopathic dilated cardiomyopathy, myocarditis, rheumatic fever, and Dressler’s Syndrome.”).
Ms. Harner had a low positive ANA, she had no other criteria for lupus. (Doc. 625, p. 70). Dr. Chindalore described Ms. Harner’s joint pain:
Symptoms include joint pain, joint swelling, joint stiffness and morning
stiffness. Symptoms are located in the neck, lower back, left shoulder,
left metacarpal phalangeal joint, left proximal interphalangeal joint, left
distal interphalangeal joint, left hip, right shoulder, right metacarpal
phalangeal joint, right proximal interphalangeal joint, right distal
interphalangeal joint and right hip. [Ms. Harner] describes the pain as
aching. The symptoms occur constantly. Currently the symptoms
occur daily. [Ms. Harner] describes this as moderate in severity and
worsening. Symptoms are exacerbated by inactivity. The pain radiates
to the hand, thigh and lower leg. Associated symptoms include fatigue
and myalgia. [Ms. Harner] is not currently being treated for this
problem. [Ms. Harner] was previously evaluated by a primary care
provider (Kristy Burt, NP/Dr. K. Duryea). Past treatment has included
physical therapy. Note for “Joint pain”. Has been in pain management
in the past, sees the Chiropractor, Epidurals, trigger point injections,
(Doc. 6-25, p. 70). Dr. Chindalore described Ms. Harner’s fibromyalgia symptoms
as “includ[ing] widespread pain and diffuse tenderness. [Ms. Harner] describes the
pain as aching.” (Doc. 6-25, p. 70). Dr. Chindalore started Ms. Harner on 30mg of
Cymbalta. (Doc. 6-25, p. 70).5
DULOXETINE [CYMBALTA] (ORAL ROUTE), MAYO CLINIC, https://www.mayoclinic.org/drugssupplements/duloxetine-oral-route/description/drg-2006724 (“Duloxetine [Cymbalta] is used to
treat depression and anxiety. It is also used for pain caused by nerve damage associated with
diabetes (diabetic peripheral neuropathy). Duloxetine is also used to treat fibromyalgia (muscle
pain and stiffness) and chronic (long-lasting) pain that is related to muscles and bones. Duloxetine
belongs to a group of medicines know as selective serotonin and norepinephrine reuptake
inhibitors (SSNRIs). These medications are thought to work by increasing the activity of the
chemicals called serotonin and norepinephrine in the brain.”) (last visited Mar. 19, 2021).
On April 4, 2018, and June 19, 2018, Ms. Harner followed up with Dr.
Chindalore. (Doc. 6-25, pp. 92, 95). She was taking 60mg of Cymbalta daily, and
continued to have some pain. (Doc. 6-25, pp. 92, 95). During an April 2, 2019,
follow-up appointment, her records show she was taking 90mg of Cymbalta daily
and continued to have some pain. (Doc. 6-26, p. 57).
On January 9, 2017, Ms. Harner visited the Primary Care Centre to ask for a
referral to a back specialist. (Doc. 6-8, p. 40). Ms. Harner explained that she had
been seeing a physician in Breeman, Georgia, but needed to get established in
Alabama. (Doc. 6-8, p. 40). She denied fatigue, fever, headaches, vertigo, and
dizziness, and rated her pain a 3/10. (Doc. 6-8, p. 41). She also told the physician
that she had experienced at least two falls in the preceding 12 months, at least one
of which caused her injury. (Doc. 6-8, p. 42). The physician referred her to a
neurosurgeon to evaluate her back pain. (Doc. 6-8, p. 42).
On February 7, 2017, Ms. Harner underwent an MRI of her cervical spine
without contrast due to cervical radiculopathy and cervical stenosis of the spinal
canal. (Doc. 6-8, p. 7). The findings showed:
Curvature, vertebral body heights, intervertebral disc spaces, and
alignment are maintained. Narrow signal and intervertebral disc signal
is preserved throughout. The cervical spinal cord demonstrates mild
dilation of the central canal at the level of C7 measuring only 1.5 mm.
There is no evidence of intrinsic cord lesion, cord expansion, or
cerebellar tonsil ectopia. Included portions of the posterior fossa are
within normal limits. Surrounding soft tissues of the neck and vascular
flow voids are grossly preserved.
(Doc. 6-8, p. 7). Her C2-3, C3-4, C-4-5, and C7-T1 vertebrae were all within normal
limits, but her C5-6 vertebrae had “[m]ild circumferential disc bulge, with mild
spinal stenosis but no cord impingement. There is no evidence of neural foraminal
stenosis.” (Doc. 6-8, p. 8). And her C6-7 vertebrae had a “[s]mall left paracentral
disc extrusion, with caudal migration of disc material behind the C7 vertebral body.
There is mild spinal stenosis, without evidence of cord impingement. There is no
evidence of neural foraminal stenosis.” (Doc. 6-8, p. 8).
She also underwent an MRI of her lumbar spine without contrast due to low
back pain with bilateral leg numbness. (Doc. 6-8, p. 9). The findings showed:
There are 5 nonrib-bearing lumbar vertebral bodies. No listhesis of L4
relative to L5 measures approximately 3 mm and is thought to be
accounted for by degenerative changes. Otherwise, alignment appears
within normal limits. Mild endplate degenerative signal changes are
present. No acute fracture is seen. Edema within the right and left
pedicles of L4 and L5 is present which may be related to degenerative
facet changes or stress phenomenon. Vertebral body heights are
normal. The distal spinal cord morphology and signal intensity is
normal. The conus medullaris terminates normally. Visualized
posterior abdomen and pelvis are within normal limits.
(Doc. 6-8, p. 9). Her T12-L1, L1-2, L2-3, and L3-4 vertebrae were normal. (Doc.
6-8, p. 10). At her L4-5 vertebrae, the physician noted:
Severe facet disease is present on the right and left. Small facet joint
effusions are present. Synovial cysts extend dorsally from the right and
left facets. On the left, this measures approximately 8 mm in size. On
the right, there is intraspinal extension of this cyst which measures
approximately 5 mm in size. This contributes to crowding of nerves in
the thecal sac. Uncovering of disc space is present with a mild broad
bulge. Moderate crowding of nerves in the thecal sac is present.
Narrowing of the lateral/subarticular recess is present and is thought to
be at least moderate, left greater than right. Displacement of transiting
L5 nerve some of the right and left is possible. Moderate foraminal
narrowing on the left and right is noted. Disc bulge may abut the
existing L4 nerves also.
(Doc. 6-8, p. 10). And at the L5-S1, the physician noted “[m]oderate left foraminal
disc protrusion is superimposed on a moderate broad bulge mild facet disease is
present. Mild foraminal narrowing on the right with moderate narrowing on the left
is present. Disc bulge may displace the existing left L5 nerve.” (Doc. 6-8, p. 10).
On June 7, 2017, Ms. Harner visited Atlanta Brain and Spine Care where she
was evaluated by neurosurgeon Dr. Michele Johnson. (Doc. 6-24, p. 51). Dr.
Johnson wrote that Ms. Harner had “a long history of chronic back pain” and “has
been experiencing new numbness in her right>left legs and increasing back pain over
the last 2-3 years.” (Doc. 6-24, p. 51). Ms. Harner had lumbar epidurals with
minimal benefit and “describes the burning numbness as running down her lateral
legs into her entire feet.” (Doc. 6-24, p. 51). Dr. Johnson identified four current
problems Ms. Harner suffered from: spondylolisthesis, lumbar region; intervertebral
disc disorders with radiculopathy, lumbar region; low back pain; and other
spondylosis with radiculopathy, lumbar region. (Doc. 6-24, p. 53). Dr. Johnson
wrote that Ms. Harner “would greatly benefit from L4-S1 SLIF followed by a
posterior lumbar fusion.” (Doc. 6-24, p. 53).
On October 3, 2017, Ms. Harner underwent spinal surgery. (Doc. 6-26, p.
10). Her preoperative diagnoses included: (1) L4-5 and L5-S1 severe degenerative
disk disease; (2) herniated disk, bilateral neural foramineal stenosis with mild-tomoderate central stenosis from L4-S1; (3) low back pain and grade 1
spondylolisthesis at L4/5; and (4) lumbar radiculopathy L4-S1. (Doc. 6-26, p. 10).
Dr. Johnson and a vascular surgeon conducted three procedures as part of Ms.
Harner’s surgery: (1) transperitoneal approach for an anterior L4-5 and L5-S1
diskectomy, bilateral foraminotomy; (2) L4-5 and L5-S1 two-level interbody fusion
using a NuVasive cage with BMP sponge and cancellous allograft use for arthrodesis
x2 levels; and (3) L4-S1 anterior instrumentation using the NuVasive system. (Doc.
6-26, p. 10). Dr. Johnson explained that she had “achieved great reduction of the
L4/5 spondyloliethesis,” and that Ms. Harner “had good bone quality . . . .” (Doc.
6-26, p. 11).
On August 27, 2018, Ms. Harner visited Dr. Johnson for a follow-up
appointment. (Doc. 6-26, p. 3). Dr. Johnson noted that Ms. Harner “no longer feels
any leg pain.” (Doc. 6-26, p. 3). But Ms. Harner did report “burning numbness . . .
running down her lateral legs into her entire feet” and “some central neck pain which
has been treated with trigger point injections unsuccessfully.” (Doc. 6-26, p. 3). Ms.
Harner’s gait and coordination were normal, and her neck had a normal range of
motion. (Doc. 6-26, p. 4).
In a February 27, 2019 treatment note, a physician notes that Ms. Harner “is
compliant with her treatment and medications, and she is doing well with her
medications.” (Doc. 6-26, p. 25). On March 28, 2019, Ms. Harner had a tele-med
appointment. (Doc. 6-26, p. 21). 6 The physician noted:
[Ms. Harner] says she is doing ok, but says she is not sleeping too well.
She wants to go up on her Cymbalta because she says it helps her
fibromyalgia. She says because she does not have insurance she can
not afford to go and see her rheumatologist. She says her depression is
better. She says she has crying spells sometimes but not as bad as
before. She says the Rexulti does help her. She says her medication
has not come through the PAP and she says she will come and get
samples but she says when she does not have the samples she can tell a
difference. She denies any lethal ideations. She says she is living in a
camper in her best friends yard.
(Doc. 6-26, p. 21).
Mental Health Treatment
On June 29, 2018, Ms. Harner sought mental health treatment at Grandview
Behavioral Health Centers. (Doc. 6-4, p. 73). Her intake forms show that her chief
complaint was that she was having issues due to her fibromyalgia “but everything is
getting worse.” (Doc. 6-4, p. 73). She reported her physical pain as 10/10 and said
that nothing made the pain better. (Doc. 6-4, p. 74). Throughout July 2018, Ms.
Harner was under the care of Ramone Pettry, CRNP-BC. (Doc. 6-4, p. 66). NP
Pettry diagnosed Ms. Harner with depression and anxiety. (Doc. 6-4, p. 78).
The date may be March 26, 2019; the medical record is not completely legible.
A July 20, 2018 treatment note shows that Ms. Harner had been crying all day
and felt like she was losing her mind. (Doc. 6-4, p. 71). In an August 23, 2018
treatment note, NP Pettry noted Ms. Harner was experiencing “frequent crying,
sadness” and “financial stress” and had a hearing in her divorce on August 28th.
(Doc. 6-4, p. 70).
Dr. Vishala Chindalore
On December 11, 2017, Ms. Harner’s rheumatologist, Dr. Vishala Chindalore,
completed a “Medical Opinion RE: Ability to do Work-Related Activities.” (Doc.
6-25, p. 78).7 Dr. Chindalore advised that Ms. Harner became unable to work on
August 5, 2016. (Doc. 6-25, p. 78). The form indicated that Dr. Chindalore believed
Ms. Harner could occasionally lift and carry 10 pounds, could frequently lift and
carry less than 10 pounds, could stand and walk less than two hours per day, and
could sit less than two hours per day. (Doc. 6-25, pp. 78–79). According to Dr.
Chindalore, Ms. Harner could sit and stand about 15 minutes before changing
positions and had to walk around every 15 minutes for a period of 10 minutes at a
time. (Doc. 6-25, p. 79). Ms. Harner needed the opportunity to shift at will from
See Schinck v. Comm’r of Soc. Sec., 935 F.3d 1245, 1261 (11th Cir. 2019) (“[T]he regulations
do not require a doctor’s opinion to take a certain form. On the contrary, they expressly
contemplate that medical sources ‘may’—but need not—use terms similar to those used in the
regulations and may—but need not—use them in exactly the same was as the Administration if
sitting or standing to walking and would need to lie down at unpredictable intervals.
(Doc. 6-25, pp. 79–80). This could happen “several times a day, depending on [her]
pain levels.” (Doc. 6-25, p. 80).
Dr. Chindalore explained these restrictions were supported by Ms. Harner’s
fibromyalgia, positive lupus test, pressure point testing, and back fusion. (Doc. 625, p. 80). Dr. Chindalore indicated that Ms. Harner could occasionally climb stairs,
but could never twist, stoop (bend), crouch, or climb ladders. (Doc. 6-25, p. 80).
And her impairments affected her ability to reach (including overhead), handle items
(gross manipulation), finger items (fine manipulation), feel, and push/pull. (Doc. 625, p. 80). These functions were affected by Ms. Harner’s “severe pain” and “onsets
of migraines.” (Doc. 6-25, p. 80).
Ms. Harner’s impairments were “likely to produce ‘good days’ and ‘bad
days,’” and would likely cause her to be absent more than four days per month.
(Doc. 6-25, p. 82). Dr. Chindalore explained that the following limitations would
affect Ms. Harner’s ability to work: “Inability to sit + stand for short or long periods
of time, and the use of hands due to fibromyalgia pain + discomfort. [Ms. Harner]
does not sleep during the nights due to pain. She also states she is feeling depressed
due to constant pain.” (Doc. 6-25, p. 82).
Dr. Michele Johnson
On January 8, 2018, Ms. Harner’s neurosurgeon, Dr. Michele Johnson,
completed a “Medical Opinion RE: Ability to do Work-Related Activities.” (Doc.
6-25, p. 85). Like Dr. Chindalore, Dr. Johnson advised that Ms. Harner became
unable to work on August 5, 2016. (Doc. 6-25, p. 85). Dr. Johnson noted that Ms.
Harner could occasionally lift and carry 10 pounds and could frequently lift and carry
less than 10 pounds. (Doc. 6-25, pp. 85–86). Dr. Johnson believed that Ms. Harner
could stand and walk less than two hours per day, could sit less than two hours per
day, and could only sit or about 15 minutes before needing to change position. (Doc.
6-25, p. 86). Ms. Harner needed to walk around about every 15 minutes, and each
walk must be about 10 minutes. (Doc. 6-25, p. 86). Ms. Harner needed the
opportunity to shift at will from sitting or standing to walking. (Doc. 6-25, p. 86).
Dr. Johnson explained that she performed a spinal fusion surgery on Ms.
Harner and her rheumatologist had diagnosed Ms. Harner with fibromyalgia; these
medical findings supported the above limitations. (Doc. 6-25, p. 87). She noted that
Ms. Harner’s back would take a minimum of nine months to heal, and she could not
bend, lift more than 10 pounds, or twist during that time. (Doc. 6-25, p. 89).
Nurse Practitioner Pettry’s Assessment
On July 20, 2018, Ramona Pettry, CRNP-BC, prepared the following medical
opinion of Ms. Harner:
Zinta Harner is my patient and has been under my care since July 2,
2018. I am intimately familiar with her history and with the functional
limitations imposed by her emotional/mental health-related issue.
Due to this emotional disability, Zinta has certain limitations coping
with what would otherwise be considered normal, but significant day
to day situations. To help alleviate these challenges and to enhance her
day to day functionality, I have recommended Zinta to obtain an
emotional support animal. The presence of this animal is necessary for
the emotional/mental health of Zinta Harner because its presence will
mitigation the symptoms she is currently experiencing.
(Doc. 6-25, p. 100). A second letter, prepared the same day, adds an additional
sentence asking that Ms. Harner be allowed to be accompanied by her emotional
support animal on an airplane. (Doc. 6-25, p. 101).
Dr. Williams’s Assessment
On August 15, 2017, Dr. Samuel Williams prepared a non-examining
consultative review of Ms. Harner’s medical records and disability claim. (Doc. 610, pp. 2–12). Dr. Williams reviewed medical records from MDSI Physician Group;
Anniston Medical Center; Atlanta Brain & Spine Care; Harbin Neurosurgery;
Chiropractor Kirk Keener; Primary Care group of West Georgia; Floyd Primary
Care Centre; Alliance Pain and Spine; Tanner Medical Center; Carrollton Ear Nose
& Throat; Carrolton Orthopaedic Clinic; Advanced Chiropractic Solutions; and
evidence provided by Ms. Harner. (Doc. 6-10, pp. 3–7). Because Dr. Williams
reviewed these records in August 2017, he did not review the medical opinions
provided by Drs. Chindalore and Johnson in January 2018.
Included in Dr. Williams’s assessment are notes from disability adjudicator
Shannon Reaid, which appear to be from a conversation she had with Ms. Harner on
June 21, 2017:
[Ms. Harner] stated she is not scheduled for a C-spine or L-spine
surgery. She stated her husband just had L-spine surgery and they are
waiting on him to heal before they schedule her L4/5 surgery. She said
she does not know when this will be. She said she had imaging of her
L-spine at Harbin Neurosurgery in 2015 (this MER has been requested)
and has an apt 6/30 at Piedmont Atlanta for CT L-spine. She said she
kept her apt 6/7 at Atlanta Brain and Spine with Dr. Johnson. She said
she has an apt still with Dr. Chindalore 6/22. Only other upcoming apt
she has is 7/26 for labs with Dr. Burt at Floyd Primary Care.
Memory/concentration/understanding: Said she will misplace things
sometimes. Said she will talk with someone sometimes and forget
things later on. Said she is able to drive and remember familiar
locations. Her husband in the background said it is her short-term
memory. She said that she has to make lists when she goes grocery
shopping. Said she writes her doctor appointments down in her planner.
Said she can remember where she went to school and most past events.
Said she can remember what she ate for dinner yesterday. Able to
remember some of her family’s Dos, but has to write some of those
down in her planner. Said she is able to following along with the plot
of a TV/movie and generally remember it afterward. Has not discussed
her issues with a doctor. Said she thinks it is related to pain.
(Doc. 6-10, p. 8). The notes indicate a consultative examination was not required.
(Doc. 6-10, p. 9).
Dr. Williams prepared a “findings of fact and analysis of evidence.” (Doc. 610, pp. 9–12). He listed two severe impairments from which he believed Ms. Harner
the primary impairment of “spine disorders” and the secondary
impairment of fibromyalgia. (Doc. 6-10, p. 11). With respect to mental medically
determinable impairments, Dr. Williams noted that Ms. Harner “did not initially
allege any mental impairments” and that “[t]he issues she stated [with respect to
mental impairments] are issues that are typically encountered by ‘average’
individuals without any mental impairment, such as, writing items down on a
grocery list, writing down dates in a calendar, forgetting detains of a conversation
from days earlier, and misplacing items.” (Doc. 6-10, p. 11).
Dr. Amason’s Assessment
On August 15, 2017, Dr. Thomas Amason prepared another portion of the
non-exam consultative report on Ms. Harner. (Doc. 6-10, pp. 12–19). Dr. Amason
found that Ms. Harner could occasionally lift and carry up to 20 pounds and could
frequently lift and carry up to 10 pounds. (Doc. 6-10, p. 13). He found she could
stand and walk about six hours in an eight-hour workday and could push and pull
without limitation “other than shown, for lift and/or carry.” (Doc. 6-10, p. 13).
Because of Ms. Harner’s “L-spine and C-spine bulging,” Dr. Amason found Ms.
Harner has postural limitations and that she could never climb ladders, ropes, or
scaffolds as a precaution. (Doc. 6-10, p. 14).
Dr. Amason found that Ms. Harner was limited in reaching overhead, both in
the right and left direction. (Doc. 6-10, p. 14). But Dr. Amason found that Ms.
Harner was not limited in her handling (gross manipulation), fingering (fine
manipulation), and feeling (skin receptors). (Doc. 6-10, p. 14). Ms. Harner’s
limitation in overhead reaching was due to her syrinx C-spine. (Doc. 6-10, p. 14). 8
Dr. Amason concluded that “[b]ased on the seven strength factors of the
physical RFC (lifting/carrying, standing, walking, sitting, pushing, and pulling),”
Ms. Harner had the maximum sustained work capability to perform light work.
(Doc. 6-10, p. 18).
Dr. Amason recommended as representative occupations
assembler, production; wireworker; and subassembler. (Doc. 6-10, p. 18). These
jobs are in the light work category. See Dictionary of Occupational Titles Nos. 706687-010 (Assembler, Production); 728.684-022 (Wireworker); and 729.684-054
Michael Rubin, Syrinx of the Spinal Cord of Brain Stem, Merck Manual,
https://www.merckmanuals.com/professional/neurologic-disorders/spinal-cord-disorders/syrinxof-the-spinal-cord-or-brain-stem (“A syrinx is a fluid-filled cavity within the spinal cord
(syringomyelia) . . . Symptoms include flaccid weakness of the hands and arms and deficits in pain
and temperature sensation in a capelike distribution over the back and neck[.]”) (last visited Mar.
Dr. Hewlett’s Consultative Examination
On July 1, 2017, Dr. Nathan Hewlett performed a consultative examination of
Ms. Harner. (Doc. 6-24, p. 68). Dr. Hewlett noted Ms. Harner’s five chief
complaints: low back pain, fibromyalgia, migraines and headaches, chronic fatigue,
and insomnia. (Doc. 6-24, p. 68). Dr. Hewlett wrote that Ms. Harner had:
a history of low back pain. She states it is secondary to a disc bulge at
L4-L5 and L5-S1. She states that she has had pain for years that has
progressed to a 9/10 severity and is constant. She denies aggravating
or alleviating symptoms. She states that medications do not really help
this. She has had multiple epidural and trigger point injections, which
have provided minimal relief. She states that she has radiation of the
pain with numbness to the bilateral, right greater than left legs. She
states that she is scheduled for spinal surgery at L4-L5. The claimant
also endorses diffuse joint paints worse in her shoulders, neck, and
hands. She states the pain 8 or 9/10 in severity and constant. She states
that she has been diagnosed with lupus and fibromyalgia. She states
that she underwent a breast reduction in 2016, which did not help her
low back pain or neck pain. She states that she has tried Lyrica, which
has not alleviated her diffuse pain; however, she has only been taking
it for approximately one week. She states that she experiences
migraines approximately 1-2 times a week. She takes Imitrex. She
describes an eye pressure and frontal pain that radiates to her back. She
states that she also experiences frequent sinus pressure and headaches.
[Ms. Harner] also endorses chronic fatigue. She states that she
experiences insomnia and only achieves 3-4 hours of sleep a night.
(Doc. 6-24, pp. 68–69).
Dr. Hewlett noted that Ms. Harner could enter the
examination room without difficulty and could sit comfortably throughout the exam.
(Doc. 6-24, p. 70). She was “able to manipulate fine objects without difficulty.”
(Doc. 6-24, p. 70). Her gait was normal, she could walk on her heels and toes
equally, and could perform “finger-nose-finger test and rapid alternating hand
movements without difficulty.” (Doc. 6-24, p. 71). After evaluating Ms. Harner’s
range of motion, Dr. Hewlett found “[n]o evidence of crepitus or effusion in the
bilateral knees.” (Doc. 6-24, p. 72).
Dr. Hewlett also evaluated Ms. Harner’s fine motor skills. He found that Ms.
is able to grip and hold objects securely to the palm by the last three
digits. [Ms. Harner] is able to grasp and manipulate both large and
small objects with the first three digits. [Her] thumb functions with
normal opposition. There is no evidence of myotonia or grip release.
There is no evidence of localized tenderness, erythema, or effusion.
There is no evidence of diminution of function with repetition. There
is no evidence of spasticity or ataxia. Normal sensation to touch and
pinprick in all fingers. Joint position and vibration sense are normal.
Subjective and objective findings are consistent.
(Doc. 6-24, p. 72). Dr. Hewlett reported Ms. Harner’s diagnoses of lumbago,
fibromyalgia, migraines, chronic fatigue, and insomnia. (Doc. 6-24, p. 72).
Dr. Hewlett created a functional assessment, concluding that Ms. Harner
could stand/walk up to six hours with a limited range of motion of her lumbar spine.
(Doc. 6-24, p. 72). She could lift/carry/push/pull 30 pounds occasionally and 20
pounds frequently. (Doc. 6-24, p. 73). Ms. Harner had no limitations on fine or
gross manipulative activities, “including reaching overhead, reaching forward,
handling, fingering, and feeling.” (Doc. 6-24, p. 73).
Evidence from Non-Medical Sources
On May 15, 2017, Ms. Harner completed a Disability Determination Service
Headache Questionnaire. (Doc. 6-13, p. 24). She explained she had headaches once
or twice a week, and they caused severe pain in her head and neck. (Doc. 6-13, p.
24). She also reported light sensitivity and that her headaches affected her vision
and caused her to become nauseated and vomit. (Doc. 6-13, p. 24). She believed
her neck pain, sinus issues, and lack of sleep caused her headaches. (Doc. 6-13, p.
25). Ms. Harner was taking Imitrex for the headaches, but the medication caused
extreme fatigue. (Doc. 6-13, p. 25). Besides the medication, Ms. Harner would use
ice packs and sit in a dark room to try and combat the headaches. (Doc. 6-13, p. 25).
She also tried massage therapy and chiropractic treatments. (Doc. 6-13, p. 25). She
explained that her “severe headaches limit me & what I can do. I can’t do any work.”
(Doc. 6-13, p. 26).
Ms. Harner also filled out a DDS Fatigue Questionnaire. (Doc. 6-13, p. 27).9
She explained she normally woke up between 9:00 and 10:00 a.m. daily, would take
two one-hour naps throughout the day, and had problems sleeping because of pain
and an inability to get comfortable. (Doc. 6-13, p. 27). She said that her husband
The DDS Fatigue Questionnaire is undated.
helped her do laundry and take care of their pets. (Doc. 6-13, p. 27). Ms. Harner
wrote that while her husband prepares and cooks most of her food, she would cook
twice a day, usually making sandwiches and heating microwavable items. (Doc. 613, p. 27).
She reported needing assistance carrying, lifting, and unloading
groceries. (Doc. 6-13, p. 28). When she was in severe pain, Ms. Harner could be
on her feet for around 30 minutes and would sometimes need a two- to three-hour
break to rest before continuing an activity. (Doc. 6-13, p. 28).
Work History Report
Ms. Harner provided extensive information about her previous employment
on the Social Security Administration’s Work History Report. (Doc. 6-13, p. 39).
She listed seven positions as either a receptionist or travel agent between March
1999 and August 2016. (Doc. 6-13, p. 28). In her most recent position as a medical
office receptionist between April 2013 and August 2016, Ms. Harner reported that
she greeted patients, answered the phone, and scheduled appointments. (Doc. 6-13,
p. 40). She explained that she would walk about an hour a day, stand about an hour
a day, sit about eight hours a day, stoop about 30 minutes a day, reach about 30
minutes a day, and write, type, or handle small objects about six hours a day. (Doc.
6-13, p. 40).
She reported never climbing, kneeling, crouching, crawling, or
handling, grabbing, or grasping big objects. (Doc. 6-13, p. 40). She did not lift
anything. (Doc. 6-13, p. 40). Her job immediately preceding that, where she worked
between September 2011 and April 2013, had identical exertional requirements.
(Doc. 6-13, p. 41).10
When Ms. Harner worked as a travel agent between February 2002 and
January 2006, she sat for eight hours a day, knelt 30 minutes per day, and wrote,
typed, or handled small objects eight hours a day. (Doc. 6-13, p. 43). Throughout
all Ms. Harner’s jobs, she explained that she never lifted or carried objects. (See
Doc. 6-13, pp. 40–45).
Ms. Harner submitted a function report documenting her day-to-day life. (See
Doc. 6-13, p. 47). She explained that from the time she wakes up to the time she
goes to bed, she “stretch[es] to try to move and take my pain pills. Eat a light
breakfast. Make the bed. Read. Do some laundry but my husband has to carry it to
downstairs. Eat lunch. Take a nap or two to try to rest. Occasionally I fix light meal
a dinner. Take more pain pills. Then go to bed.” (Doc. 6-13, p. 47). She explained
that before her conditions developed, she would walk her dogs, exercise, ride bikes,
sit and stand without hurting, go up and down steps without hurting, and do yard
work. (Doc. 6-13, p. 48). She reported she is in constant pain and unable to sleep.
(Doc. 6-13, p. 48). She had no problem feeding herself or using the toilet, but she
So too did job number three where she worked as a medical receptionist between January 2006
and September 2010. (See Doc. 6-13, p. 42).
reported pain trying to put on pants, standing too long in the shower, and bending
over to shave. (Doc. 6-13, p. 49).
Ms. Harner reported that when she would go out, she would drive herself in a
car, and that she was able to drive alone. (Doc. 6-13, p. 50). She was able to shop
in stores, usually once a week. (Doc. 6-13, p. 50). She was able to pay bills, count
change, handle a savings account, and use a checkbook. (Doc. 6-13, p. 50).
Ms. Harner explained that she would spend time with others, when able,
usually by sitting and talking. (Doc. 6-13, p. 51). She said she attended church
weekly when she was not in severe pain. (Doc. 6-13, p. 51). Since her conditions
began, Ms. Harner has become “withdrawn and not as outgoing and involve[d] due
to severe pain.” (Doc. 6-13, p. 52).
Ms. Harner wrote that she could only walk about 50 feet before needing to
stop and rest. (Doc. 6-13, p. 52). Usually, she would rest 5-10 minutes before
resuming walking, depending on the severity of her pain. (Doc. 6-13, p. 52). She
wore a back brace daily for support and had been doing so for about five or six years.
(Doc. 6-13, p. 53). In the final remarks section, Ms. Harner wrote:
I felt that my quality of life is not what it used to be. My abilities, social
life, activity level is not what they used to be. Not able to bend,
[illegible]. My focus level + concentration has suffered severely and
my pain level has worse. I am not rested due to pain. Sleep aid doesn’t
(Doc. 6-13, p. 54).
On April 22, 2019, the ALJ held an administrative hearing on Ms. Harner’s
application for benefits. (Doc. 6-4, p. 2). Maranda Hanawalt, a non-attorney
representative, appeared on Ms. Harner’s behalf. (Doc. 6-4, pp. 2, 4). Ms. Harner
testified that she lives in a camper parked in front of her friend’s house. (Doc. 6-4,
p. 7). She completed high school and received some technical training after she
graduated. (Doc. 6-4, p. 8). She explained that the last job she held was as a
receptionist at a medical office in Georgia where she worked for about three years.
(Doc. 6-4, p. 9). The job required her to answer phones, prepare patient charts
(including typing and checking insurance), check patients in and out of the office,
take payments, and schedule appointments. (Doc. 6-4, p. 9). She had to lift up to
50 pounds, place office supply orders, unload and stack reams of printer paper, and
stack water jugs in a water cooler. (Doc. 6-4, pp. 9–10). Ms. Harner had to leave
the job because she was having too much pain, “and it was hard to sit and it was hard
to do my duties because of all my pain.” (Doc. 6-4, p. 9).
The ALJ asked Ms. Harner to explain, in her own words, why she believes
she cannot work anymore. (Doc. 6-4, p. 10). She responded:
I have low back pain. I had surgery a year and a half ago for low back
-- for my back. I was tested positive in 2017 for lupus and thank God
I’ve got more of all the fibro symptoms. I’ve got dry eyes. I’ve got
joint and muscle pain, all my -- I got really bad -- I get a lot of bad
headaches and migraines. I have shoulder pain. I have neck aches at
the base of my neck which causes a lot of headaches. I’ve got shoulder
pain, my elbows . . . and then my low back, as well as my hips, then my
knees. My hands constantly hurt. It’s affected me as far as writing
because I like to journal. It’s affected my writing and even my typing
and then my hands get number and tingle a lot and then all the way
down -- even my right heel, in the back of my right heel even hurts and
I get a lot of numbness and tingling in my feet. I don’t sleep well. I
may get three hours of sleep and that’s even with my CPAP machine.
(Doc. 6-4, p. 11). Ms. Harner explained that since her back surgery in 2017, she had
not had spinal blocks or steroid injections. (Doc. 6-4, p. 12).
Ms. Harner testified that, beginning in 2018, she sought counseling for
depression. (Doc. 6-4, pp. 12–13). She began with weekly visits, but at the time of
her administrative hearing, Ms. Harner was going every other week. (Doc. 6-4, p.
13). The counseling was not helping with the symptoms of her depression. (Doc.
6-4, p. 13).
The ALJ asked Ms. Harner to rate her day-to-day pain on a scale of 1 to 10,
“one being kind of a minor ache and ten being so excruciating, you’d need to go run
to the emergency room,” and Ms. Harner testified it was at a ten. (Doc. 6-4, pp. 13–
14). She explained that pain medication did not really reduce her pain and that her
physicians were adjusting her medications. (Doc. 6-4, p. 14). Ms. Harner testified
that she was seeing a chiropractor for her back, but the treatment provided only
temporary relief and then “after a couple of hours, it’s back to hurting again.” (Doc.
6-4, p. 14).
Ms. Harner testified about her migraines, explaining that she got them at least
once each week and they would last “[a]t least a whole day, could goes [sic] into
two.” (Doc. 6-4, p. 16). When she got a migraine, Ms. Harner took Imitrex, rested
in complete darkness, and used an eye cover to help alleviate the symptoms. (Doc.
6-4, p. 16).11 She attributed the migraines to her severe neck pain, which is “right at
the base of my neck. It’s like something like stabbing it,” a constant pain. (Doc. 64, p. 16).
Ms. Harner testified that her physicians told her not to lift more than 5 or 10
pounds, and she stated that she had trouble gripping items, taking lids off containers,
and trouble writing. (Doc. 6-4, p. 18). She explained she could probably walk about
100 yards without having to stop and rest; she could lift a gallon of milk out of the
refrigerator; she could extend her arms out in front of her and above her head; and
that she could kneel carefully to the floor to pick something up that fell. (Doc. 6-4,
pp. 20–21). She also told the ALJ she suffered from memory loss, lack of focus, and
lack of concentration. (Doc. 6-4, p. 22).
IMITREX, RXLIST, https://www.rxlist.com/imitrex-drug.htm (“Imitrex is a prescription medicine
used to treat the symptoms of migraine headache and cluster headache. Imitrex may be used alone
or with other medications. Imitrex is an antimigraine agent, serotonin 5-HT-Receptor antagonist.”)
(last visited Mar. 15, 2021).
On a typical day, Ms. Harner explained that she could get up, take a shower,
and get dressed on her own. (Doc. 6-4, p. 22). But she “limited [her] showers to
once every other day or once every two days because it’s a task for me to have to try
to do my hair and get ready.” (Doc. 6-4, p. 22). She could prepare light, simple
means for herself and do light laundry. (Doc. 6-4, p. 22). She did her grocery
shopping and attended a weekly Bible study a weekly church service when she was
able. (Doc. 6-4, p. 23). Ms. Harner testified that she had gone on several recent
trips, including a trip to Nashville with some girlfriends and a trip to Ohio to visit
family. (Doc. 6-4, pp. 25–26). Ms. Harner also made the following statement to the
I’ve worked since I was the age of 15. I’ve worked two and three jobs
most of my life. I raised my brother when he was at the -- when he was
at the age of 14 where I worked two and three jobs, cleaned the house
while I was raising him. He’s now 37 with a career in the Army. I’ve
purchased two homes on my own. I’ve never taken advantage of the
system. I’ve always prided myself in being a hard worker and thought
my husband would support me in my deteriorating health but did not.
Since my divorce last year, I’ve been wondering if, in part, it wasn’t
due to my physical pain affecting me mentally as well. This has been
hard on my mental state with my health issues. I am currently going
through counseling which you now know. I am now living in a camper
in my friend’s front yard because I have no other place to go. This
entire process has been hard for me. I am -- I went from being very
independent, a hard worker my whole life, purchased two homes being
single, raised my brother being single, being very outgoing, very active
and fun loving. Two, having failing health, which is painful physically
and mentally; having to ask for help and I’m not at [sic] outgoing and
active as I once was, and having -- and not having any independence or
feeling of. I need the disability because I stay in too much pain to hold
a job. I need an income. I need insurance so I can see my doctors and
labs, and get lab work, to give me some sense of independence back, to
get out of this camper and I’m not able to rent anything or even get in
income based housing without an income. I’ve been a hard worker my
whole life and I’ve paid into the system for years. I’ve worked hard
long as my body would allow me to. And I’m really sorry that I have
to be here and to go through this, but I have no other option and I really
appreciate you letting me read that.
(Doc. 6-4, p. 34).
After Ms. Harner testified, the ALJ placed a vocational expert, Melissa
Brassfield, under oath and questioned her about Ms. Harner’s claim. First, the
vocational expert testified that Ms. Harner could perform her past work as a
receptionist (Dictionary of Occupational Titles No. 237.367-038, SVP 4, sedentary)
and a travel agent (Dictionary of Occupational Titles No. 252.152-010, SVP 5,
sedentary). (Doc. 6-4, p. 36). The ALJ then posed the following hypothetical to Ms.
let’s assume a hypothetical individual of [Ms. Harner’s] age and
education. Let’s further assume the same work experience and
education. Let’s further assume a light exertional level, occasionally
climbing ramps or stairs, never climbing ladders, ropes or scaffolds;
occasionally balancing, stooping, keeling, crouching and crawling;
frequently reaching overhead bilaterally; must avoid all exposure to
unprotected heights, unprotected moving mechanical parts and
dangerous machinery. Could this hypothetical individual perform any
of [Ms. Harner’s] past work?
(Doc. 6-4, pp. 36–37). Ms. Brassfield testified that yes, the hypothetical individual
could perform both of Ms. Harner’s past jobs “[a]s generally performed for the
receptionist, as actually and generally for the travel agent.” (Doc. 6-4, p. 37). Ms.
Brassfield also testified that this hypothetical person could perform the work of an
administrative clerk (Dictionary of Occupational Titles No. 219.362-010, SVP 4,
light work), file clerk (Dictionary of Occupational Titles No. 206.387-034, SVP 3,
light work), office helper (Dictionary of Occupational Titles No. 239.567-010, SVP
2, light work), and mail sorter (Dictionary of Occupational Titles No. 209-687-026,
SVP 2, light work). (Doc. 6-4, pp. 37–38).
The ALJ asked Ms. Brassfield a second hypothetical, with the same
restrictions as the first but adding that the hypothetical individual “must alternate
sitting and standing every 20 to 30 minutes throughout the workday in order to
change position for a brief positional change of less than five minutes but without
leaving the workstation.” (Doc. 6-4, p. 38). Ms. Brassfield said that the additional
restriction did not change the jobs available to such an individual. (Doc. 6-4, pp.
38–39). In a third hypothetical, the ALJ asked Ms. Brassfield to:
assume a hypothetical individual of the claimant’s age, education and
work history. Further assume a sedentary exertional level; occasionally
climb ramps and stairs; never climbing ladders, ropes or scaffolds;
occasionally balancing, stooping, kneeling, crouching or crawling;
frequently reaching overhead bilaterally; occasionally handling and
fingering bilaterally; must avoid all exposure to unprotected heights,
unprotected moving mechanical parts and dangerous machinery; must
alternate sitting and standing every 20 to 30 minutes throughout the
workday in order to change positions for a brief positional change of
less than five minutes but without leaving the workstation. Could this
hypothetical individual perform any of [Ms. Harner’s] past work?
(Doc. 6-4, pp. 39–40). Ms. Brassfield testified that this person could not perform
Ms. Harner’s past work and that “there would be no jobs [in the national economy]
and that would be based on the limitation to sedentary work with occasional handling
and fingering, those skills do not transfer into jobs that would fit within that, and
additionally, there would be no jobs from the unskilled job base that I could
identify.” (Doc. 6-4, p. 40).
Ms. Harner’s representative asked Ms. Brassfield if “an individual would miss
four or more days per month, would the individual be able to hold any of the past
relevant work?” (Doc. 6-4, p. 41). Ms. Brassfield said no. (Doc. 6-4, p. 41).
Ms. Harner argues that the ALJ erred for four reasons. First, he “failed to
accord proper weight” to her treating rheumatologist, Dr. Vishala Chindalore, her
treating neurosurgeon, Dr. Michele Johnson, and her treating Nurse Practitioner
Ramona Perry. (Doc. 12, pp. 2, 16). Second, the ALJ failed to properly consider
her fibromyalgia under SSR 12-2p. (Doc. 12, p. 2). Third, the ALJ’s finding that
she can perform past work is not supported by substantial evidence. (Doc. 12, p. 2).
Finally, the ALJ erred in holding that Ms. Harner’s daily activities diminish the
persuasiveness of her pain testimony. (Doc. 12, p. 2).
The ALJ’s Evaluation of Drs. Chindalore and Johnson and NP Pettry
Citing Phillips v. Barnhart, 357 F.3d 1232 (11th Cir. 2003), and Lewis v.
Callahan, 125 F.3d 1436 (11th Cir. 1997), Ms. Harner argues that an ALJ must
“clearly articulate the reasons for giving less weight to the opinion of a treating
physician, and the failure to do so is reversible error.” (Doc. 12, p. 17). She contends
that the ALJ failed to properly evaluate the opinions of her treating medical
Because the new regulations that we have discussed apply to Ms. Harner’s
application for benefits, the ALJ did not have to articulate a reason for giving less
weight to the opinion of a treating physician. The treating physician rule was retired
when the new 2017 regulations took effect. Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Rep. 5844-01, 5853, 2017 WL 168819
(“[W]e are not retaining the treating source rule in final [20 C.F.R. §§] 404.1520c .
. . for claims filed on or after March 27, 2017.”). 12
The ALJ summarized the medical opinions provided by Drs. Chindalore and
Johnson and NP Pettry:
Rheumatologist Dr. Chindalore, who has treated [Ms. Harner] since
June 22, 2017, provided an assessment indicating that [she] has been
unable to work since August 5, 2016 with a limiting assessment of
functioning due to medical findings of fibromyalgia, positive lupus test,
For a thorough history of the treating physician rule in social security cases, see generally
Charles Terranova, Comment, Somebody Call My Doctor: Repeal of the Treating Physician Rule
in Social Security Disability Adjudication, 68 BUFF. L. REV. 931 (2020).
pressure point testing, and back fusion (Exhibit 30F). Dr. Johnson from
Atlanta Brain & Spine Care, who has treated [Ms. Harner] since June
7, 2017, also indicated that [she] was unable to work effective August
5, 2016 due to back fusion surgery, fibromyalgia, and chronic pain and
signed [her] application for a disability parking placard (Exhibits 31F
and 35F). Ramona Pettry, CRNP-BC, who has treated [Ms. Harner]
since July 2, 2018, indicated that due to [her] emotional disability, [Ms.
Harner] has certain limitations coping with what would otherwise be
considered normal, but significant day to day situations and
recommended a service animal in addition to her treatment regimen
(Doc. 6-3, p. 50). The ALJ “considered [these] medical opinion[s] . . . in accordance
with the requirements of 20 CFR 404.1520c.” (Doc. 6-3, p. 46). He concluded that
the three providers’ assessments were not persuasive, “as they are not supported by
or consistent with the medical evidence, particularly the evidence demonstrating
improvement and resolution of [Ms. Harner’s] leg pain following back surgery and
conservative care.” (Doc. 6-3, p. 50). The ALJ stated:
Treatment records referenced positive fibromyalgia tender points,
swelling and deformity of the hands, crepitus in both knees,
osteoarthritis changes, obesity, painful range of motion, and muscle
spasms; however, [Ms. Harner] has maintained normal findings in
relation to her grip, extremity strength, gait, range of motion of most
major joints, and sensory and motor function (Exhibits 36F, 37F, and
38F). The record provided multiple clinical entries documenting that
her pain symptoms were stable on her treatment regimen (Exhibits 29F,
32F, 34F, and 37F). ANA was only slightly abnormal and lupus panel
was negative (Exhibit 32F). Mentally, she had no prior history of
counseling except for marital issues stemming from a divorce. It was
not until recently in August 2018 that she sought actual mental health
treatment with Ms. Pettry (Exhibit 36F). However, in those records and
in the most recent note in April 2019 indicated improvement in her
mental health on her treatment regimen (Exhibit 38F). There was no
indication that Ms. Pettry felt that [Ms. Harner’s] condition was so
severe as to warrant referral for impatient hospitalization. Instead, [Ms.
Harner] continued to be treated with changing doses of her medications
with good results. Likewise, [she] indicated that she is able to do her
own activities of daily living, shop, and travel (Exhibit 10E and hearing
(Doc. 6-3, p. 50).
Under the new regulations, the ALJ adequately accounted for his finding that
the medical opinions from Ms. Harner’s treating physicians were not persuasive.
This is not a situation where the ALJ “provided two  sentences in which he stated
broad conclusions without explaining his analysis regarding consistency and
supportability.” Works v. Saul, No. 4:19-cv-01515-MHH, 2021 WL 690126, at *15
(N.D. Ala. Feb. 23, 2021). Here, the ALJ cited to specific pieces of inconsistent
evidence in the record and pointed out why he believed Drs. Chindalore and Johnson
and NP Pettry provided unsupportable opinions. (Doc. 6-3, p. 50). Substantial
evidence supports the ALJ’s analysis of the medical opinions from Ms. Harner’s
treating physicians. 13
The Court does not believe a claimant has to have been hospitalized for mental health treatment
to demonstrate a severe mental health limitation, but the ALJ’s analysis of Ms. Harner’s mental
health concerns otherwise is supported by substantial evidence.
The ALJ Did Not Err in Considering Ms. Harner’s Daily Activities
Relying on Schink v. Comm’r of Soc. Sec., 935 F.3d 1245 (11th Cir. 2019),
where the Eleventh Circuit Court of Appeals noted that the claimant’s daily activities
“were mostly, if not all, solitary” and the activities did not “discount the treating
physicians’ opinions that [the claimant] suffered significantly . . . ,” Schink, 935 F.3d
at 1264, Ms. Harner argues that the ALJ improperly discounted her testimony
regarding her daily activities. She notes that “[t]he ability to perform the limited
activities noted by the ALJ does not rule out the presence of disabling pain. The
ability to watch television, do occasional shopping, or perform other sporadic
activities does not mean the plaintiff is not disabled.” Early v. Astrue, 481 F. Supp.
2d 1233, 1238 (N.D. Ala. 2007).
In Schink, the Eleventh Circuit considered whether the claimant’s activities of
daily life contradicted the treating physicians’ opinions. 935 F.3d at 1264. As
discussed above, the treating physician presumption no longer applies. The ALJ did
not rely on Ms. Harner’s testimony about her day-to-day activities when considering
the persuasiveness of her treating physicians’ medical opinions. Rather, the ALJ
considered her daily activities with respect to her allegations of disabling pain:
[Ms. Harner’s] daily activities are not entirely consistent with her
allegations of disabling symptoms. At the hearing, she asserted a
limited lifestyle due to pain, memory loss, and lack of focus and
concentration. For example, she claimed that she was unable to
function due to constant pain of a 10/10 level. However, the record
indicates that she performs a variety of activities. For instance, she
remains actively involved in her church and activities. She attends
bible study once a week and church once a week. She is also able to
read, do household chores, prepare meals, drive, pay bills, handle a
savings account, use a checkbook, and spend time with others (Exhibits
10E, 36F, and 38F). She enjoys reading and she spends time on the
internet. She testified to taking long road trips recently to Ohio and
Nashville with friends and her brother.
(Doc. 6-3, p. 49). The ALJ found that Ms. Harner’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms, but her
“statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence
in the record . . . .” (Doc. 6-3, p. 47). The ALJ considered Ms. Harner’s daily
activities only as part of his analysis of her pain, and he considered her total activities
together with objective medical evidence. (See Doc. 6-3, pp. 47–49).
Ms. Harner’s reliance on Early is closer to the mark, but because substantial
evidence supports the ALJ’s analysis, Early does not offer Ms. Harner relief. In
Early, as here, the ALJ considered the claimant’s activities of daily life when
evaluating a claim under the pain standard. Early, 481 F. Supp. 2d at 1238. The
court in Early noted that the specific activities of daily living the ALJ recited did not
support a finding that the claimant’s pain testimony was not true. Early, 481 F.
Supp. 2d at 1238. The Court wrote: “[t]he ability to watch television, do occasional
shopping, or perform other sporadic activities does not mean that the plaintiff is not
disabled.” Early, 481 F. Supp. 2d at 1238.
The Eleventh Circuit has explained that if an ALJ “decides not to credit the
claimant’s testimony about her subjective symptoms, the ALJ must articulate
explicit and adequate reasons for doing so unless the record obviously supports the
credibility finding.” Meehan v. Comm’r of Soc. Sec., 776 Fed. Appx. 599, 603 (11th
Cir. 2019) (citing Foote v. Chater, 67 F.3d 1553, 1561–62 (11th Cir. 1995)).
Here, the ALJ relied on Ms. Harner’s activities of daily life together with
extensive medical evidence, and the ALJ highlighted activities that were not solitary
and did not evidence limitations like trips and church activities. (See Doc. 6-3, pp.
47–49). The ALJ provided specific evidentiary record citations that contradict Ms.
Harner’s subjective complaints. Thus, the ALJ clearly articulated his findings about
Ms. Harner’s subjective complaints of pain and explained why he found them
inconsistent with the evidence in the record.
The ALJ Properly Analyzed Ms. Harner’s Fibromyalgia Under SSR 12-2p
Ms. Harner next argues that the ALJ failed to properly analyze her
fibromyalgia under SSR 12-2p. (Doc. 12, p. 18). SSR 12-2p took effect July 25,
2012 and “provides guidance on how [the Commissioner of Social Security]
develop[s] evidence to establish that a person has a medically determinable
impairment of fibromyalgia, and how [the Commissioner] evaluate[s] fibromyalgia
in disability claims . . . .” SSR 12-2p, 2012 WL 3104869, at *1 (July 25, 2012). The
ruling explains that “longitudinal records reflecting ongoing medical evaluation and
treatment from acceptable medical sources are especially helpful in establishing both
the existence and severity” of a claimant’s fibromyalgia. SSR 12-2p, 2012 WL
3104869, at *3.
The Commissioner has asked the Court to disregard Ms. Harner’s request for
review of the ALJ’s fibromyalgia analysis. (Doc. 16, p. 19). The Commissioner
points out that Ms. Harner “does not spell out her argument squarely or distinctly as
to why she believes the ALJ’s fibromyalgia assessment was deficient. Rather, [she]
block quotes several cases discussing fibromyalgia but she makes no attempt to tie
them to any alleged error by the ALJ.” (Doc. 16, p. 19). The Commissioner argues
Ms. Harner has abandoned the argument. (Doc. 16, p. 19) (citing Doe v. Moore, 410
F.3d 1337, 1349 n.10 (11th Cir. 2005)).
The Commissioner’s description of Ms. Harner’s fibromyalgia argument is
correct. In her brief, Ms. Harner block quoted portions of several Eleventh Circuit
Court of Appeals and Northern District of Alabama cases, (See Doc. 12, pp. 19–20),
but she did not articulate a specific error that the ALJ made in analyzing her
fibromyalgia under SSR 12-2p. The Court is left to speculate about how Ms. Harner
believes the ALJ failed to properly analyze her fibromyalgia. Nonetheless, the Court
will review the ALJ’s analysis against the backdrop of SSR 12-2p to make sure he
properly assessed her fibromyalgia.
When evaluating a claimant’s statements about her symptoms and functional
limitations related to fibromyalgia, an ALJ must follow a two-step process. SSR 122p, 2012 WL 3104869, at *5. First, “[t]here must be medical signs and findings that
show the person has a [medically determinable impairment] which could reasonably
be expected to produce the pain or other symptoms alleged.” SSR 12-2p, 2012 WL
3104869, at *5.
After determining a medically determinable impairment like
fibromyalgia, the ALJ “evaluate[s] the intensity and persistence of the person’s pain
or any other symptoms and determine the extent to which the symptoms limit the
person’s capacity for work.” SSR 12-2p, 2012 WL 3104869, at *5. “If objective
medical evidence does not substantiate the person’s statements about the intensity,
persistence, and functionally limiting effects of symptoms, [the ALJ] consider[s] all
of the evidence in the case record, including the person’s daily activities,
medications or other treatments the person uses, or has used, to alleviate symptoms;
the nature and frequency of the person’s attempts to obtain medical treatment for
symptoms; and statements by other people about the person’s symptoms.” SSR 122p, 2012 WL 3104869, at *5.
Under SSR 12-2p, an ALJ must consider whether the claimant’s impairments
meet or medically equal the criteria of any listings in the Listing of Impairment in
appendix 1, subpart P of 20 C.F.R. Part 404 (appendix 1). SSR 12-2p, 2012 WL
3104869, at *6. But because fibromyalgia is not a listed impairment, it cannot meet
a listing in appendix 1. SSR 12-2p, 2012 WL 3104869, at *6. So, at step 3, the ALJ
must “determine whether [fibromyalgia] 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.” SSR 12-2p, 2012 WL 3104869, at *6.
Here, the ALJ properly determined that Ms. Harner’s severe impairments
included fibromyalgia. (Doc. 6-3, p. 44). The ALJ noted there is no specific listing
for fibromyalgia, and he evaluated Ms. Harner’s fibromyalgia under listing 14.09D
for inflammatory arthritis, as well as listing 1.04 for degenerative disc disease. (Doc.
6-3, p. 46). “However, [Ms. Harner] does not have repeated manifestations of
inflammatory arthritis, with at least two of the constitutional symptoms or signs
(severe fatigue, fever, malaise, or involuntary weight loss) and one of the following
at the marked level: limitation of activities of daily living; limitation in maintaining
social functioning; or limitation in completing tasks in a timely manner due to
deficiencies in concentration, persistence, or pace.” (Doc. 6-3, p. 46). So, the ALJ
concluded that Ms. Harner did not have an impairment or combination of
impairments that met or medically equaled the severity of one listed in 20 C.F.R.
Part 404, Subpart P Appendix 1. (Doc. 6-3, p. 46).
The ALJ explained the evidence he considered with respect to Ms. Harner’s
functional limitations and restrictions in activities of daily living. (Doc. 6-3, p. 47).
“Those reports document difficulties with lifting, squatting, bending standing,
reaching, walking, sitting kneeling, stair climbing, using her hands, memory,
completing tasks, concentration, understanding, following instructions, getting
along with others, engaging in social activities, and handing [sic] stress and changes
in routine.” (Doc. 6-3, p. 47). After considering medical evidence and Ms. Harner’s
testimony at her hearing, the ALJ concluded that her “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however,
[her] statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence
in the record . . . .” (Doc. 6-3, p. 47). The ALJ specifically considered evidence of
Ms. Harner’s fibromyalgia, explaining that:
[t]here is also little evidence specific to her fibromyalgia other than
references to slightly elevated ANA, low C3, positive trigger points
(all) with swelling and deformities in both hands, crepitus in both knees,
osteoarthritis changes, muscle spasms, and painful range of motion of
all extremities. Imaging of the hands showed mild to moderate joint
space narrowing of the PPIPs, DIPs, and carpometacarpal arthritis
noted bilaterally (Exhibit 16F/11). X-rays of the knees showed mild to
moderate medial joint space narrowing but no other significant
abnormalities such as chondrocalcinosis or erosions (Exhibit 16F/11).
X-ray of the pelvis was normal and showed no obvious sacroiliitis and
an unremarkable lower lumbar spine. Throughout the course of
treatment, there was no evidence of effusions, oral ulcers,
photosensitivity, or skin rashes. She had a normal bone density scan
(Exhibit 10F/7). Moreover, there was no clinical criteria for lupus but
osteoarthritis/fibromyalgia symptoms successfully treated with
changing doses of Cymbalta (most recently in April 2019) (Exhibits
16F/5 and 29F/2 and 4).
(Doc. 6-3, p. 48).
The ALJ explained that “[t]reatment records through April 2019 continued to
document [Ms. Harner’s] self-reports of pain symptoms along with the conservative
treatment of the prescribing of medications, chiropractic therapy, and the start of
mental health treatment in August 2018.” (Doc. 6-3, p. 48). The ALJ noted that
records show Ms. Harner’s fibromyalgia “remained stable on her treatment
regimen,” and “[t]hrough April 2019, [Ms. Harner] continued to improve in regards
to her fibromyalgia . . . .” (Doc. 6-3, p. 48). While Ms. Harner’s treatment notes
reflected the positive fibromyalgia tender points, “the examiner noted that [Ms.
Harner] entered the room without difficulty and was able to sit comfortably
throughout the duration of the exam.” (Doc. 6-3, p. 49). And while her “[t]reatment
records through April 2019 continued to reference the deficits” Ms. Harner
experienced, they “also [showed] normal findings in relation to her grip, extremity
strength, gait, range of motion of most major joints, and sensory and motor
function.” (Doc. 6-3, p. 49). The ALJ also accounted for Ms. Harner’s limitations
relating to fibromyalgia by including postural, manipulative, and environmental
restrictions in his RFC. (See Doc. 6-3, p. 46).
Finally, the ALJ explained that Ms. Harner’s “daily activities are not entirely
consistent with her allegations of disabling symptoms.” (Doc. 6-3, p. 49). Ms.
Harner “remains actively involved in her church and activities. She attends bible
study once a week and church once a week. She is also able to read, do household
chores, prepare meals, drive, pay bills, handle a savings account, use a checkbook,
and spend time with others. She enjoys reading and she spends time on the internet.
She testified to taking long road trips recently to Ohio and Nashville with friends
and her brother.” (Doc. 6-3, p. 49).
Ms. Harner argues her case is like Somogy v. Comm’r of Soc. Sec., 366 Fed.
Appx. 56 (11th Cir. 2010). (Doc. 12, p. 19). In Somogy, the Eleventh Circuit found
that the ALJ improperly discounted the claimant’s physician’s opinion because the
physician’s notes were based on the claimant’s subjective complaints of pain.
Somogy, 366 Fed. Appx. at 63. The court “recognized that fibromyalgia ‘often lacks
medical or laboratory signs, and is generally diagnosed mostly on an individual’s
described symptoms,’ and that the ‘hallmark’ of fibromyalgia is therefore ‘a lack of
objective evidence.’” Somogy, 366 Fed. Appx. at 63 (quoting Moore v. Barnhart,
405 F.3d 1208, 1211) (11th Cir. 2005)). So, “[t]he lack of objective clinical findings
is, at least in the case of fibromyalgia, therefore insufficient alone to support an
ALJ’s rejection of a treating physician’s opinion as to the claimant’s functional
imitations.” Somogy, 366 Fed. Appx. at 64 (citing Green-Younger v. Barnhart, 335
F.3d 99, 108 (2d Cir. 2003)).
But the ALJ did not rely on a lack of objective clinical findings alone to reject
Ms. Harner’s treating physicians’ opinions with respect to her limitations. Rather,
the ALJ explained that Ms. Harner’s self-reported activities -- including weekly trips
to church and bible study, car trips to Ohio and Tennessee, reading, and doing
household chores -- combined with the objective clinical findings led him to
disbelieve Ms. Harner’s allegations of disabling physical limitations. (See Doc. 63, pp. 49–51). So, Somogy is inapposite.
While “the ALJ did not specifically cite to Ruling 12-2p, substantial evidence
supports the conclusion that the ALJ properly evaluated [Ms. Harner’s] fibromyalgia
under the two-step process set out in the Ruling because he considered the medical
evidence, found that [Ms. Harner] had a severe impairment, and evaluated that
impairment using the five-step process.” Sorter v. Soc. Sec. Admin., Comm’r, 773
Fed. Appx. 1070, 1073 (11th Cir. 2019). The mere existence of Ms. Harner’s
fibromyalgia “does not reveal the extent to which [it] limit[s] her ability to work . .
. .” Moore, 405 F.3d at 1213 n.6 (citing McCruter v. Bowen, 791 F.2d 1544, 1547
(11th Cir. 1986)). The ALJ complied with SSR 12-2p, and substantial evidence
supports his analysis of Ms. Harner’s fibromyalgia.
Substantial Evidence Supports the ALJ’s Finding That Ms. Harner Could
Perform Past Work
Ms. Harner argues that the ALJ erred in finding that she could perform past
work. (Doc. 12, p. 21). Citing Nelms v. Bowen, 803 F.2d 1164, 1165 (11th Cir.
1986), and Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987), Ms. Harner
contends that the ALJ “must make a finding of the physical requirements and
demands of the claimant’s past work.” (Doc. 12, p. 22).
After the ALJ assessed Ms. Harner’s RFC, he needed to determine if she could
perform her past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f);
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The burden was on Ms.
Harner to prove she could not perform her past relevant work either as she performed
it or as it is generally performed in the national economy. Long v. Acting Comm’r
of Soc. Sec. Admin., 749 Fed. Appx. 932, 934 (11th Cir. 2018) (citing Jackson v.
Bowen, 801 F.2d 1291, 1293–94 (11th Cir. 1986)). “In making this determination,
the ALJ must consider all the duties of the claimant’s past work and evaluate [her]
ability to perform them in spite of [her] impairments.” Long, 749 Fed. Appx. at 934
(citing Lucas v. Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990)). “The ALJ may
rely on a vocational expert’s testimony regarding the physical and mental demands
of the claimant’s past work, and may also consider the job descriptions set forth in
the Dictionary of Occupational Titles (DOT).” Long, 749 Fed. Appx. at 934 (citing
20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). “When there is no evidence of the
physical requirements and demands or the required duties of past work, the ALJ
cannot properly determine whether the claimant has the residual functional capacity
to perform past relevant work.” Long, 749 Fed. Appx. at 934 (citing Cannon v.
Bowen, 858 F.2d 1541, 1545–46 (11th Cir. 1988)).
Here, the vocational expert testified that Ms. Harner worked as both a
receptionist and a travel agent. (Doc. 6-4, p. 36). She provided the DOT listings for
each. (Doc. 6-4, p. 36) (DOT No. 237.367-038, SVP 4, Sedentary (Receptionist);
DOT No. 252.152-010, SVP 5, Sedentary (Travel Agent)). The vocational expert
also testified that she reviewed Ms. Harner’s file and listened to her testimony
regarding her work history. (Doc. 6-4, p. 36). The file noted Ms. Harner’s jobs as
actually performed. (See Doc. 6-13, pp. 39–45). The ALJ based his opinion on the
vocational expert’s testimony, Ms. Harner’s testimony, and Ms. Harner’s work
history forms. (See Doc. 6-3, p. 52) (“Based on the residual functional capacity
found herein and [Ms. Harner’s] other vocational factors, the vocational expert
testified that [she] could perform her past relevant work.”). He found that Ms.
Harner “is able to perform the work as a receptionist as it is generally performed and
the work as a travel agent as it is actually and generally performed.” (Doc. 6-3, p.
The Eleventh Circuit has held that an ALJ satisfies his duty to develop a full
record on the requirements of the claimant’s past work when the record includes
“[t]he Work History Report, the testimony of [the claimant] and the vocational
expert, and the DOT” which “combine to paint a full picture of [the claimant’s] past
relevant work—both as she performed it herself, and as it is generally performed.”
Holder v. Soc. Sec. Admin., 771 Fed. Appx. 896, 900 (11th Cir. 2019). Because the
ALJ considered Ms. Harner’s work history report, Ms. Harner’s testimony, the
vocational expert’s testimony, and the DOT listings, he painted a full picture of Ms.
Harner’s past relevant work history and satisfied his obligation to develop the
In her reply brief, Ms. Harner argues that the ALJ failed to properly apply Grid Rule 201.14 as
applicable to sedentary work, which provides that if a claimant is closely approaching advanced
age and is a high school graduate, but does not have an education providing direct entry into skilled
work, and her previous work experience consists of either unskilled or semi-skilled work with
skills that are non-transferrable, then the claimant is found to be disabled. (Doc. 17, p. 6) (citing
20 C.F.R. § 404, Subpart b, App.2, Table No. 1). But Ms. Harner makes no mention of the Grid
Rule in her memorandum in support of disability. The Eleventh Circuit Court of Appeals is clear
that courts “decline ‘to consider issues raised for the first time in an appellant’s reply brief,’ and
that we ‘ha[ve] repeatedly denied motions to file supplemental briefs that seek to raise new issues
not covered in an appellant’s initial brief on appeal.’” U.S. v. Britt, 437 F.3d 1103, 1104 (11th Cir.
2006) (quoting United States v. Levy, 416 F.3d 1273, 1276 n.3 (11th Cir. 2005), cert. denied, 546
U.S. 1011 (2005)). Because Ms. Harner did not raise her Grid Rule argument in her initial brief,
the Court will not consider the argument.
Sentence Six Remand
Ms. Harner has asked the Court to remand her case to the Commissioner under
Sentences Four and Six of 42 U.S.C. § 405(g). (Doc. 18). With respect to Sentence
Four, this opinion addresses Ms. Harner’s argument that “the denial [of benefits] is
not based on substantial evidence in that the ALJ repudiated evidence and opinions
of [her] treating rheumatologist, Dr. Chindalore and [her] treating orthopedic, Dr.
Johnson.” (Doc. 18, p. 1).
With respect to Sentence Six, Ms. Harner points to the fact that the
Commissioner found her disabled as of October 22, 2020, (Doc. 18-1, p. 1), and this
subsequent favorable decision constitutes new evidence that was not available to the
ALJ in May 2019 when he made his decision. (Doc. 18, p. 1). According to Ms.
Harner, “[t]he subsequent favorable decision undermines the ALJ’s decision to
accord little weight to” her treating physicians. (Doc. 18, p. 1).
Sentence Six remand is appropriate when a claimant establishes that there is
new, noncumulative evidence; that the evidence is material such that a reasonable
probability exists it will change the administrative result; and that there was good
cause for failure to submit it at the administrative level. See Hunter v. Soc. Sec.
Admin., Comm’r, 808 F.3d 818, 821 (11th Cir. 2015). Ms. Harner does not show
that a later finding of disability with a disabled date nearly 17 months after the ALJ
rendered his decision on this benefit application would change the administrative
result. She also does not provide context for the new finding of disability, so the
Court does not know why the Commissioner has now found her disabled. “A
decision is not evidence nay more than evidence is a decision,” and “‘a subsequent
favorable decision itself, as opposed to the evidence supporting the subsequent
decision, does not constitute new and material evidence under § 405(g).’” Hunter,
808 F.3d at 822 (quoting Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 653 (6th Cir.
2009)). Accordingly, the Court denies Ms. Harner’s motion to remand under
For the reasons discussed above, the Court affirms the decision of the
Commissioner of Social Security.
DONE and ORDERED this March 31, 2021.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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