Fleck v. Social Security Administration, Commissioner
MEMORANDUM OPINION remanding case for further proceedings. Signed by Judge Madeline Hughes Haikala on September 30, 2016. (Haikala, Madeline)
2016 Sep-30 PM 10:43
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
KIMBERLY DIANE FLECK,
Commissioner, Social Security
Case No.: 5:15-cv-01293-MHH
This case is before the Court for review of a report and recommendation
concerning the termination of plaintiff Kimberly Diane Fleck’s disability insurance
benefits. In the report, the magistrate judge recommended that the Court affirm the
Commissioner’s decision that Ms. Fleck is no longer disabled. (Doc. 14). Ms.
Fleck objects to the magistrate judge’s recommendation. (Doc. 15; Doc. 19). This
opinion addresses Ms. Fleck’s objections.
STANDARD OF REVIEW
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
When a party objects to a report, a district court must “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. §§ 636(b)(1)(B)-(C). A
district court reviews legal conclusions in a report de novo and reviews for plain
error factual findings to which no objection is made. Garvey v. Vaughn, 993 F.2d
776, 779 n. 9 (11th Cir. 1993); see also LoConte v. Dugger, 847 F.2d 745, 749
(11th Cir. 1988); Macort v. Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir. 2006).
Ms. Fleck lodges four objections to the magistrate judge’s recommendation,
one of which concerns a factual determination regarding malaise, a sign or
symptom of lupus under listing 14.02. Because the Court sustains this objection
and remands the case to the Commissioner for further administrative proceedings,
the Court does not reach Ms. Fleck’s other arguments for relief.1
For her other objections, Ms. Fleck argues that the magistrate judge did not properly apply the
law concerning the ALJ’s credibility determination. (Doc. 15, pp. 4-7). In addition, Ms. Fleck
objects to the holding that the ALJ was not required to explicitly discuss whether Ms. Fleck
meets a listing. (Doc. 15, pp. 1-2). The magistrate judge properly recited the law regarding an
ALJ’s obligation to consider the Listings. (See Doc. 14, pp. 7-8). The Eleventh Circuit has
explained that “[t]he ALJ’s finding as to whether a claimant does or does not meet a listed
impairment may be implied from the record.” Prince v. Commissioner, Social Sec. Admin., 551
Fed. Appx. 967, 969 (11th Cir. 2014) (citing Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th
Cir. 1986)). “Furthermore, while the ALJ must consider the Listings in making its disability
determination, ‘it is not required that the [ALJ] mechanically recite the evidence leading to her
determination.’” Id. (quoting Hutchison, 787 F.2d at 1463)). In Hutchison, the Eleventh Circuit
noted: “There may be an implied finding that a claimant does not meet a listing. Edwards v.
Heckler, 736 F.2d 625, 629 (11th Cir. 1984). We thus consider it clear that the ALJ, in reaching
the fourth and fifth steps of the disability analysis, implicitly found that appellant did not meet
any of the Appendix 1 impairments.” Hutchison, 787 F.2d at 1463. Although an ALJ need not
make explicit findings regarding listed impairments, an ALJ’s analysis must demonstrate to the
Court that the ALJ considered evidence relevant to the listing. As explained below, in this case,
the ALJ’s discussion of the medical evidence does not account for certain diagnoses and reported
symptoms that support Ms. Fleck’s arguments concerning her impairment of lupus, so the Court
cannot determine whether the ALJ considered that evidence or the related lupus listing.
In making a de novo review of the factual findings to which Ms. Fleck
objects, the Court “review[s] the ALJ’s ‘factual findings with deference.’” 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)).
The 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, the Court may not “decide the facts anew,
reweigh the evidence,” or substitute its judgment for that of the ALJ. Winschel v.
Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal
quotations and citation omitted). If substantial evidence supports the ALJ’s factual
findings, then the Court must accept the magistrate judge’s recommendation and
“must affirm [the Commissioner’s decision] even if the evidence preponderates
against the Commissioner’s findings.” Costigan v. Comm’r of 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, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
This social security case concerns the termination of Ms. Fleck’s disability
benefits. Therefore, as the magistrate judge stated, the burden in this case rests not
on Ms. Fleck, as in the typical case involving an initial claim for benefits, but on
the Commissioner. (Doc. 14, p. 4) (“‘Pursuant to 42 U.S.C. § 423(f) and the
implementing regulations, in a termination case the burden is placed on the
Commissioner to show the plaintiff has the ability to engage in substantial gainful
activity.’ Cross v. Astrue, 659 F. Supp. 2d 1216, 1224 (N.D. Ala. 2009) (citing
Glenn v. Shalala, 21 F.3d 983, 987 (10th Cir. 1994); Griego v. Sullivan, 940 F.2d
942, 944 (5th Cir. 1991).”).
As the Fifth Circuit explained in Griego, in a
[t]he first part of the evaluation process  focuses on medical
improvement. . . .
The second part of the evaluation process relates to ability to engage
in substantial gainful activity. Here the implementing regulations
incorporate many of the standards set forth in the regulations
governing initial disability determinations. See 20 C.F.R. §§
404.1594(b)(5) and (f)(7). The difference, of course, is that the
ultimate burden of proof lies with the Secretary in termination
proceedings. In evaluating ability to engage in substantial gainful
activity, the Secretary considers, first, whether the claimant can
perform past relevant work and, if not, whether the claimant can
perform other work. 20 C.F.R. §§ 404.1594(f)(7) and (f)(8).
Griego, 940 F.2d at 944.
In 2006, the Social Security Administration found that Ms. Fleck was
disabled because of breast cancer and related impairments. (Doc. 6-3, pp. 16, 18).
In December 2010, the Administration concluded that Ms. Fleck’s medical
condition had improved, and she was no longer disabled. (Doc. 6-3, p. 16). Ms.
Fleck concedes that her breast cancer is not active; however, she contends that she
remains disabled because of lupus and inflammatory arthritis. (Doc. 10, p. 1). Ms.
Fleck argues that the ALJ erred by failing to find that she meets Listing 14.02 for
lupus or Listing 14.09(D) for inflammatory arthritis. The Court considers only the
lupus listing in this opinion.
The applicable regulations define systemic lupus erythematosus as “a
chronic inflammatory disease that can affect any organ or body system. It is
frequently, but not always, accompanied by constitutional symptoms or signs
(severe fatigue, fever, malaise, involuntary weight loss).”
20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 14.00(D)(1)(a). Major organs or body systems include:
[r]espiratory (pleuritis, pneumonitis), cardiovascular (endocarditis,
myocarditis, pericarditis, vasculitis), renal (glomerulonephritis),
hematologic (anemia, leukopenia, thrombocytopenia), skin
(photosensitivity), neurologic (seizures), mental (anxiety, fluctuating
cognition (“lupus fog”), mood disorders, organic brain syndrome,
psychosis), or immune system disorders (inflammatory arthritis).
Listing 14.02 for systemic lupus erythematosus (SLE) requires a lupus
A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate
level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue,
fever, malaise, or involuntary weight loss).
B. Repeated manifestations of SLE, 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:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to
deficiencies in concentration, persistence, or pace.
20 C.F.R. § 404, Subpt. P, App. 1, § 14.02.
Although an ALJ may make implicit findings regarding the listings, see
supra note 1, “[a] clear articulation of both fact and law is essential to [the Court’s]
ability to conduct a review that is both limited and meaningful.”
Heckler, 748 F.2d 1511, 1514-15 (11th Cir. 1984). The Court cannot tell from the
ALJ’s opinion whether the ALJ considered listing 14.02. In concluding that Ms.
Fleck “did not have an impairment or a combination of impairments which met or
medically equaled” a listing, the ALJ stated, “[s]pecifically, evidence has not
shown limitations consistent with listing 14.01, regarding immune system
disorders or listing 14.09, regarding inflammatory arthritis, with objective findings
discussed in more detail below.” (Doc. 6-3, p. 18). The ALJ did not specifically
mention listing 14.02. In assessing Ms. Fleck’s RFC, the ALJ focused on certain
aspects of the treatment notes from Ms. Fleck’s physicians and intimated that Ms.
Fleck might not even have lupus.2 For example, the ALJ described a record from
Ms. Fleck’s September 2011 visit to the Vanderbilt University Medical Center
Rheumatology Clinic. The ALJ pointed out that the examining physician felt that
Ms. Fleck, at worse, had a mild case of lupus. (Doc. 6-3, p. 23).
The ALJ then discussed select findings in records from Ms. Fleck’s local
rheumatologist. Citing a January 2012 record, the ALJ stated that Ms. Fleck
reported neck and back pain and “significant depression” but no other significant
symptoms. (Doc. 6-3, p. 24). The record to which the ALJ referred states that Ms.
Fleck “feels miserable and feels like taking her life off [sic]. She’s taking her
depression pill regularly.” (Doc. 6-13, p. 32). The “Assessment and Plan” section
of the record states “has active lupus.” (Doc. 6-13, p. 32). With respect to an
April 2012 record, the ALJ noted that Ms. Fleck “had stopped her medication for
lupus” and “she felt much better.” (Doc. 6-3, p. 24). The corresponding record
states that Ms. Fleck had “active lupus,” and her doctor gave her new prescriptions.
(Doc. 6-13, p. 31). Citing a record from August 2012, the ALJ stated that Ms.
At stage four of her analysis, the ALJ stated that as of December 2010, Ms. Fleck had the
“medically determinable impairment” of lupus, but the ALJ did not indicate whether she
regarded lupus as a severe or a non-severe impairment. (Doc. 6-3, p. 18).
Fleck “continued to do well” and was “‘stable.’” (Doc. 6-3, p. 24). That record
confirms few lupus symptoms other than abdominal problems (Doc. 6-13, p. 30),
but a record from September 2012 reflects that Ms. Fleck returned to her
rheumatologist two weeks later complaining of a “rash around her mouth” and
“some increased pain.” Dr. Jampala found that Ms. Fleck was developing “some
knots in her left index finger.” Dr. Jampala once again diagnosed “active lupus”
and stated that Ms. Fleck was experiencing a “lupus flare up and possible rash
from lupus.” (Doc. 6-13, p. 29).
Describing a record from November 2012, the ALJ wrote: “the claimant
reported her depression was not too bad. While she reported dryness in her eyes,
she had no loss of vision or double vision. There was no joint swelling.” (Doc. 63, p. 24). The record that the ALJ cited also states:
Patient continues to feel miserable. She has pain all over. Some of
her medicines were changed her [sic] and her depression is not too
bad. She has neck pain and has lot of headache. She continues to
have significant dryness in the eye and pain. . . . Patient feels cold in
her feet and always numb. She has pain in her abdomen. She has
small cyst in her left third finger. It is not hurting.
(Doc. 6-13, p. 28). Her other systems were negative. Dr. Jampala maintained a
diagnosis of “active lupus,” stated that Ms. Fleck had “ongoing problem with her
pain. She has lot of stress,” and added Trazadone to Ms. Fleck’s prescription
medicine regime. (Doc. 6-13, p. 28).
Thus, the administrative record, viewed in its entirety, suggests that the ALJ
may have overlooked the portions of Ms. Fleck’s records that may support a
finding that Ms. Fleck meets the lupus listing. See McCruter v. Bowen, 791 F.2d
1544, 1548 (11th Cir. 1986) (If the record viewed in its entirety indicates that the
ALJ “focus[ed] upon one aspect of the evidence and ignor[ed] other parts of the
record,” then the reviewing court “cannot properly find that the administrative
decision is supported by substantial evidence. It is not enough to discover a piece
of evidence which supports that decision, but to disregard other contrary evidence.
The review must take into account and evaluate the record as a whole.”). The
medical records in the administrative record demonstrate that several doctors have
diagnosed Ms. Fleck with lupus. (See e.g., Doc. 6-11, p. 36; Doc. 6-13, pp. 26-33;
Doc. 6-23, p. 13).
In his report, the magistrate judge found that substantial evidence in the
administrative record indicates that Ms. Fleck does not meet Listing 14.02 for
lupus because “the record does not support a finding [Ms. Fleck] has two of the
constitutional symptoms or signs.” (Doc. 14, pp. 9-10). As stated above, those
constitutional symptoms or signs are severe fatigue, fever, malaise, or involuntary
The magistrate judge found, and the undersigned agrees, that
“considerable medical evidence support[s] a finding of chronic fatigue.” (Doc. 14,
p. 9; see also Doc. 6-3, p. 46; Doc. 6-8, p. 56; Doc. 6-10, p. 53; Doc. 6-11, pp. 34,
40, 61; Doc. 6-12, pp. 11, 33, 38; Doc. 6-13, pp. 26, 39; Doc. 6-14, p. 6; Doc. 6-15,
p. 17; Doc. 6-21, p. 3; Doc. 6-30, p. 19). The magistrate judge also concluded that
references in the medical evidence to “ICD-9-CM code 780.79 – Other malaise and
fatigue,” were insufficient to support a finding that Ms. Fleck suffers from malaise,
a symptom that would give Ms. Fleck the two constitutional signs or symptoms
that listing 14.02 requires. (Doc. 14, pp. 9-10).3
The ALJ’s analysis contains no discussion of the standard for malaise or the
distinction between fatigue and malaise.
According to the Social Security
regulations, “[s]evere fatigue means a frequent sense of exhaustion that results in
significantly reduced physical activity or mental function. Malaise means frequent
feelings of illness, bodily discomfort, or lack of well-being that result in
significantly reduced physical activity or mental function.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1 Listing 14.00(C)(2). In addition to the records discussed above,
many of Ms. Fleck’s records contain evidence of “feelings of illness, bodily
discomfort, or lack of well-being.” And there are records that indicate that Ms.
Fleck suffers not only from severe depression but also from other reduced mental
functions. (See, e.g. Doc. 6-10, p. 65) (July 2007 record noting diagnosis of
decreased short-term memory and referral to Neurology “to have her memory
The magistrate judge stated that the diagnoses of other malaise and fatigue “could potentially
indicate a finding of malaise,” and they “could just as likely reference the physicians’ explicit
findings of fatigue.” (Doc. 14, pp. 9-10).
changes evaluated more closely, as I think that her pattern of memory loss is a little
bit more unusual timing-wise from her chemotherapy and is persistent.”); (Doc. 610, p. 63) (April 2008 record reflecting memory trouble with referral for
neurocognitive retraining); (Doc. 6-10, pp. 53-54) (December 2008 record noting
cognitive difficulties with “mental fog”; record contains instruction that Ms. Fleck
should begin stretching exercises and a walking program); (Doc. 6-10, p. 55)
(March 2009 record explaining that because of pain in her calf, Ms. Fleck had “to
stop after she walks a few yards. Once she rests and she can feel better and she can
walk back again. She does regular walking and she goes swimming . . . lupus has
history of connective tissue disease”); (Doc. 6-14, p. 6) (May 2012 record from
neurological clinic examining cognitive dysfunction and noting that Ms. Fleck
reported “a significant amount of worsening of her cognition,” though her
depression was under control); (Doc. 6-15, p. 17) (November 2012 record
describing “very disruptive” headaches that “can occur more than 4 times a day”).
The Court expresses no opinion about the significance of these records; that
is for the ALJ to decide. The Court merely identifies the records and notes that
they may be pertinent to an examination of malaise. Also relevant is the fact that
one of Ms. Fleck’s treating physicians wrote in four separate records “780.79 –
other malaise and fatigue.” (Doc. 6-10, p. 19; Doc. 6-12, p. 15; Doc. 6-26, p. 32;
Doc. 6-26, p. 36). As the magistrate judge observed, it is not clear from these
notations whether the physician, Dr. Haley, was diagnosing only malaise or fatigue
or both malaise and fatigue. The record does not indicate that the ALJ contacted
Dr. Haley to ask for clarification.
“Social security disability proceedings are
inquisitorial rather than adversarial.” Crawford & Co. v. Apfel, 235 F.3d 1298,
1304 (11th Cir. 2000). “[A]n ALJ should recontact a claimant’s treating physician
if the evidence in the record is otherwise inadequate to determine whether the
claimant is disabled.”
Robinson v. Astrue, 365 Fed. Appx. 993, 999 (11th Cir.
2010).4 Logically, the obligation to recontact a treating physician is more pressing
in a termination setting like this one.
For the reasons stated above, the Court will remand this action to the
Commissioner for further administrative proceedings consistent with this
DONE and ORDERED this September 30, 2016.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
See also SSR 96-5p, 1996 WL 374183, at *6 (“[I]f the evidence does not support a treating
source’s opinion on any issue reserved to the Commissioner and the adjudicator cannot ascertain
the basis of the opinion from the case record, the adjudicator must make ‘every reasonable effort’
to recontact the source for clarification of the reasons for the opinion.”
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