Johnson v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 5/2/2012. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ROSA MARIE JOHNSON,
Plaintiff,

:
:

vs.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

CA 11-0460-C

:
:

Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security denying her claim for
disability insurance benefits. The parties have consented to the exercise of jurisdiction
by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court.
(Docs. 18 & 19 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P.
73, the parties in this case consent to have a United States Magistrate Judge conduct any
and all proceedings in this case, . . . order the entry of a final judgment, and conduct all
post-judgment proceedings.”).) Upon consideration of the administrative record,
plaintiff’s brief, the Commissioner’s brief, and the arguments of the parties at the March
28, 2012 hearing before the Court, it is determined that the Commissioner’s decision

1

denying plaintiff benefits should be reversed and remanded for further consideration
not inconsistent with this decision.1
Plaintiff alleges disability due to fibromyalgia. The Administrative Law Judge
(ALJ) made the following relevant findings:
1.
The claimant meets the insured status requirements of the Social
Security Act through March 31, 2014.
2.
The claimant has not engaged in substantial gainful activity since
January 9, 2009, the alleged disability onset date. (20 CFR 404.1571 et
seq.).
3.
The claimant has the following severe impairment: Fibromyalgia.
(20 CFR 404.1520(c)).
The medical evidence of record reflects that the claimant has a history of
conservative treatment for neck and back pain, which she attributes to
injuries she sustained in motor vehicle accidents in 2005 and 2006. The
record also shows that the claimant has a history of treatment with
neurologist Walid W. Freij, M.D. for complaints of pain and numbness in
her right upper and lower extremities, as well as in her back and neck. Dr.
Freij obtained cervical and lumbar MRI scans of the claimant in 2005. The
lumbar MRI scan revealed no abnormalities and the cervical MRI scan
showed a reversal of the cervical lordosis with shallow annular
displacement and focal subligamentous disc protrusion at C5/C6 which
did not appear to be neurocompressive. Dr. Freij also performed
NCV/EMG testing of the claimant’s right upper and lower extremities,
which were unremarkable. An MRI scan of the claimant’s lumbar spine
subsequently obtained in January 2007 was also normal. An MRI scan of
the claimant’s cervical spine performed in January 2007 showed a small
central disc protrusion at C5-C6.

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 18 & 19 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))
1

2

On April 15, 2009, the claimant underwent a consultative physical
examination by Huey Kidd, D.O. at the request of the Social Security
Administration. The claimant reported having back pain, neck pain, pain
all over her body, headaches, and pain and numbness in her arms and
legs. Dr. Kidd’s physical examination of the claimant’s extremities
revealed full range of motion and 5/5 strength in the upper and lower
extremities. She was able to bend at her waist to approximately 80
degrees, she was able to squat and stand without difficulty, she ambulated
without a limp or without any difficulty, and her deep tendon reflexes
were 2/4 throughout, but she was able to touch her toes. Dr. Kidd stated
his diagnostic impression as “low back pain.”
The documentation of record reflects that the claimant returned to Dr.
Freij on June 25, 2009, having last seen him three years earlier in 2006. The
claimant presented to Dr. Freij in June 2009 with complaints of aches and
pain all over, as well as numbness in her hands. Dr. Freij noted that he
performed NCS/EMG testing in 2005, which showed no evidence of
carpal tunnel, and that he prescribed the claimant muscle relaxants that
helped her and “then she stopped coming.” Dr. Freij’s physical
examination of the claimant in June 2009 showed tenderness over the
paraspinal muscles in the cervical spine, lumbosacral spine, and thoracic
spine but her strength was 5/5 in the upper and lower extremities. Dr.
Freij stated that most of the claimant’s aches were muscular in nature and
he noted that a past MRI scan of her cervical spine showed protrusion of
the disc at “C3-C4” (MRI scan indicated C5-C6, not C3-C4). He further
stated that complaints in her hands might be related to carpal tunnel
syndrome. Dr. Freij prescribed the claimant a muscle relaxant and
recommended that she undergo repeat NCS/EMG testing of the upper
and lower extremities.
On August 3, 2009, Dr. Freij completed a Clinical Assessment of Pain form
on the claimant’s behalf in which he stated that the claimant’s pain was
present to such an extent as to be distracting to the adequate performance
of work activities. Dr. Freij also stated that the side effects of the claimant’s
prescribed medication could be expected to be severe and to limit the
claimant’s effectiveness due to distraction, inattention, drowsiness, etc.
The record shows that the claimant returned to Dr. Freij three months
later on September 17, 2009, at which time she reported continuing neck
and back pain, as well as pain in her arms and legs. Dr. Freij noted that the
claimant was “not on any medications right now.” Dr. Freij concluded
that fibromyalgia was a possible diagnosis of the claimant’s condition. He

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prescribed the claimant Savella and ordered a rheumatoid arthritis screen,
the results of which were negative.
The documentation of record shows that the claimant was next seen by
Dr. Freij on November 16, 2009, at which time the doctor noted that she
was “diagnosed with fibromyalgia.” Dr. Freij also noted that the claimant
had not taken the medication that he had prescribed for her in September
2009 but that she was still on the muscle relaxant that had helped some of
her pain. He indicated that the claimant was tender in her shoulders, back,
and arms. Dr. Freij prescribed the claimant a more affordable medication,
Elavil, and he instructed her to return to him in two months for reevaluation. At the claimant’s follow-up evaluation in January 2010, the
claimant reported that the Elavil had helped her symptoms but she
complained of weight gain with the medication. Dr. Freij changed the
claimant’s medication and referred her to physical therapy. The
evidentiary record reflects that the claimant underwent physical therapy
for a short period of time in February 2010 and that she experienced some
improvement in her symptoms. The claimant also reported to Dr. Freij in
May 2010 that the medications she was taking were providing her some
relief of her symptoms, but she wanted to change medications due to
adverse side effects of breast swelling and elevated Prolactin levels.
On October 3, 2010, Dr. Freij completed a second Clinical Assessment of
Pain form on the claimant’s behalf in which he stated that the claimant’s
pain was frequently present to such an extent as to be distracting to the
adequate performance of work activities. Dr. Freij further stated that the
claimant’s medication side effects could be expected to be severe and to
limit the claimant’s effectiveness due to distraction, inattention,
drowsiness, etc.
The evidentiary record indicates that the claimant has a history of
depression diagnosed by a neurologist which she contends was treated
with antidepressant medication. In her application for Title II disability
benefits, the claimant did not specifically allege a functionally limiting
mental impairment, but she reported that she was taking two
antidepressant medications prescribed by her treating physician.
.

.

.

The undersigned finds that the claimant’s medically determinable mental
impairment of Major Depressive Disorder does not cause more than
minimal limitation in the claimant’s ability to perform basic mental work
activities and is therefore nonsevere. In making this finding, the
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undersigned has considered the four broad functional areas set out in the
disability regulations for evaluating mental disorders and in section
12.00C of the Listing of Impairments. These four broad functional areas
are known as the “paragraph B” criteria.
.

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.

Because the claimant’s medically determinable mental impairment causes
no more than “mild” limitation in any of the first three functional areas
and “no” episodes of decompensation which have been of extended
duration in the fourth area, it is nonsevere.
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments. Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental functional analysis.

4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. (20 CFR
404.1520(d), 404.1525, 404.1526).
.

.

.

5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except that she is precluded
from performing any overhead work, including overhead lifting and
carrying, she is limited to the performance of simple, routine, repetitive
tasks, and she can adapt only to minimal changes in the work setting.
.

.

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The claimant alleges an inability to work because of a combination of
physical and mental health problems including fibromyalgia and
depression. The claimant reported that she has pain in her back, neck,
5

right leg, and left side and that her legs and hands get numb. The claimant
stated that standing and lifting makes her pain worse. She indicated that
she could lift up to 10 pounds.
When the claimant’s impairments, viewed individually and in
combination, are considered, the undersigned finds that the claimant is
not precluded from performing a range of light work. Based on the
claimant’s physical impairments, the undersigned finds that the claimant
is capable of lifting and/or carrying up to 20 pounds occasionally and 10
pounds frequently, standing and/or walking for a total of about six hours
in an eight-hour workday, and sitting for a total of about six hours in an
eight-hour workday. The claimant has no postural, manipulative, visual,
communicative, or environmental limitations. However, due to the
claimant’s disc protrusion at C3-C4, the undersigned finds that she is
precluded from performing overhead work including overhead lifting and
carrying and, based on Dr. Tocci’s assessment of the claimant’s mental
functioning as set out in Exhibit 11F, which indicates that the claimant has
difficulty organizing information, sequencing tasks, remembering tasks,
and performing tasks in a timely manner, the claimant is limited to
performing simple, routine, repetitive tasks and she can adapt only to
minimal changes in the work setting.
In making the above finding as to the claimant’s residual functional
capacity, the undersigned Administrative Law Judge has considered all
symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and other
evidence, based on the requirements of 20 CFR 404.1529 and SSRs 96-4p
and 96-7p. The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and SSRs 96-2p, 965p, 96-6p and 06-3p.

The Administrative Law Judge has assigned significant evidentiary
weight to the findings and conclusions of the examining physician, Dr.
Huey Kidd, as set out in Exhibit 13F, as well as to the results of the
objective diagnostic testing contained in the evidentiary record,
particularly the results of the cervical and lumbar MRI scans performed in
January 2007 as set out in Exhibit 12F at pages 6-7. The undersigned notes
that based on his physical examination of the claimant in April 2009, Dr.
Kidd reported that the claimant had full range of motion of her upper and
lower extremities, that her strength in her upper and lower extremities
was full and normal, that she was able to squat and stand without
difficulty, and that she ambulated without any difficulty. These objective
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clinical examination findings support a residual functional capacity for
light work. Additionally, an MRI scan of the claimant’s lumbar spine
showed no abnormalities that would support a finding that the claimant
possessed any functional limitation as a result of a lumbar spine
impairment and, her cervical MRI scan was otherwise normal except for a
small central disc protrusion at C5-C6.
The undersigned has also assigned significant evidentiary weight to the
findings and conclusions of the examining psychologist, Dr. Nina Tocci, as
set out in Exhibit 11F. Dr. Tocci’s assessment of the claimant’s mental
functional capacity is provided for in the claimant’s residual functional
capacity with the limitation to simple, routine, repetitive tasks and
minimal changes in the work setting.
The undersigned further finds the conclusions of the state agency
psychological consultant, Donald E. Hinton, PhD., as set out in Exhibit 15F
to be persuasive in reaching a conclusion regarding the severity of the
claimant’s medically determinable mental impairment and her mental
residual functional capacity.
The Administrative Law Judge recognizes that 20 CFR 404.1527(d)(2) and
Social Security Ruling 96-2p require that a treating source’s medical
opinion on the nature and severity of a claimant’s impairments must be
given controlling weight if it is well-supported by medically acceptable
clinical and laboratory techniques and is not inconsistent with other
substantial evidence in the record. Substantial weight must be given to the
opinion, diagnosis, and medical evidence of a treating physician unless
there is good cause to do otherwise. Good cause exists if the opinion is not
bolstered by the evidence, the evidence supports a contrary finding, or the
opinion is conclusory or inconsistent with the physician’s own medical
records.
The undersigned Administrative Law Judge finds that, in the present case,
good cause exists to justify not assigning any evidentiary weight to Dr.
Freij’s statements in the Clinical Assessment of Pain forms he completed
on the claimant’s behalf on August 9, 2009 and October 3, 2010. Dr. Freij’s
opinions in the Questionnaires are vague and conclusory, inasmuch as he
did not provide a diagnostic basis for his responses to the questions
propounded therein. The undersigned acknowledges that, in his treatment
notes, Dr. Freij stated his diagnostic assessments of the claimant’s
condition as muscular pain and fibromyalgia. The undersigned must,
therefore, assume that those are the impairments that Dr. Freij concluded
caused the claimant’s alleged symptomatology. However, the objective
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medical evidence of record does not contain clinical examination findings
or objective diagnostic evidence of impairments of such severity to
support Dr. Freij’s opinions that the claimant’s pain resulting from those
impairments is so severe as to be distracting to the adequate performance
of work activities.
Another factor that undermines the credibility of and, therefore, the
evidentiary weight to be given to, Dr. Freij’s opinions in the Clinical
Assessment of Pain forms is the total inaccuracy regarding medication
side effects. Dr. Freij’s opinions regarding the significant adverse impact
that the claimant’s “medication side effects” would have on her level of
functioning is inconsistent with information contained in his treatment
records. First, in June 2009, the claimant reported having no side effects
from her medications. Second, when the claimant did begin reporting
medication side effects, they consisted only of weight gain, breast
swelling, and elevated Prolactin levels, not distraction, inattention, or
drowsiness. Third, in September 2009, one month after Dr. Freij completed
the first Clinical Assessment of Pain form, the claimant reported that she
was not taking any medications. The record shows that four months
earlier, in May 2009, the claimant told the examining psychologist Dr.
Brantley that she was not taking any pain management medications. The
undersigned points out that it is impossible for the claimant to experience
medication side effects if she is not taking any medications.
The claimant’s documented level of activities of daily living is also
inconsistent with Dr. Freij’s opinions of her level of pain. Although the
claimant testified that her pain limits her ability to perform routine daily
activities such as cooking, cleaning, and shopping, she reported that she is
able to care for her own personal needs without assistance, able to handle
money and pay bills, and able to drive an automobile. She also reported
that she visits with others on a daily basis, either on the telephone or in
person, and that she enjoys reading and watching television. The
information provided by the claimant also reflects that she is able to
appropriately manage her own household, which includes caring for her
two teenage sons. It is also noteworthy that the record reflects that there is
a significant gap of almost three years in the claimant’s treatment with Dr.
Freij, from April, 2006 to June 2009.
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.

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After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
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statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.

6.
The claimant is unable to perform any of her past relevant work.
(20 CFR 404.1565 ).
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.

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7.
The claimant was born on April 8, 1959 and was 49 years old on
the alleged disability onset date, which is defined as a younger
individual age 18-49. The claimant is currently 51 years old and
subsequently changed age category to that of closely approaching
advanced age. (20 CFR 404.1563).
8.
The claimant has at least a high school education and is able to
communicate in English. (20 CFR 404.1564).
9.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills. (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform. (20
CFR 404.1569 and 404.1569(a)).
.

.

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If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.21 and Rule 202.14. However, the claimant’s
ability to perform all or substantially all of the requirements of this level of
work has been impeded by additional limitations. To determine the extent
to which these limitations erode the unskilled light occupational base, the
Administrative Law Judge asked the vocational expert whether jobs exist
in the national economy for an individual with the claimant’s age,
education, work experience, and residual functional capacity as set out
above in this decision. The vocational expert testified that given all of
these factors the individual would be able to perform the requirements of
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the following representative light, unskilled occupations: (1) Cafeteria
Attendant, DOT Classification Number 311.677-010, with approximately
172,000 jobs in the national economy and approximately 1,200 such jobs in
the state economy; (2) School Bus Monitor, DOT Classification Number
372.667-042, with approximately 142,000 jobs in the national economy and
approximately 2,800 jobs in the state economy; and (3) Production
Assembler, DOT Classification Number 706.687-010, with approximately
488,000 jobs in the national economy and approximately 7,300 jobs in the
state economy.
Pursuant to SSR 00-4p, the vocational expert’s testimony is consistent with
the information contained in the Dictionary of Occupational Titles. Other
hypothetical questions were asked that elicited other responses from the
vocational expert. Those questions contained residual functional
capacities and hypothetical information that are inconsistent with the
residual functional capacity of this decision and, accordingly, the
vocational expert’s responses thereto are of no probative value.
Based on the testimony of the vocational expert and, based upon the entire
record evidence, the undersigned concludes that, considering the
claimant’s age, education, work experience, and residual functional
capacity, the claimant is capable of making a successful adjustment to
other work that exists in significant numbers in the national economy. A
finding of “not disabled” is therefore appropriate under the framework of
the above-cited rules.
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from January 9, 2009, through the date of this
decision. (20 CFR 404.1520(g)).
(Tr. 19-21, 22, 23, 24-26, 28, 28-29 & 29-30 (most internal citations omitted).) The
Appeals Council affirmed the ALJ’s decision (Tr. 1-3) and thus, the hearing decision
became the final decision of the Commissioner of Social Security.
DISCUSSION
In all Social Security cases, the claimant bears the burden of proving that she is
unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the examiner must consider the
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following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; and (4) the claimant’s age, education and
work history. Id. at 1005. Once the claimant meets this burden, as here, it becomes the
Commissioner’s burden to prove that the claimant is capable, given her age, education
and work history, of engaging in another kind of substantial gainful employment which
exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform those light jobs
identified by the vocational expert at the hearing, is supported by substantial evidence.
Substantial evidence is defined as more than a scintilla and means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining
whether substantial evidence exists, we must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the Commissioner’s] decision.”
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).2
In this case, the plaintiff contends that the ALJ made the following errors: (1) she
erred in both rendering a residual functional capacity assessment which is not
supported by the medical opinion of any treating or examining medical source and in

This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
2

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failing to adequately develop the administrative record; and (2) she erred in rejecting
the opinion of Dr. Walid Freij regarding the severity of pain.
The undersigned will consider these issues, in combination, but prior to doing so
it is necessary for the Court to set forth the proper analysis for consideration of RFC
“issues” raised in cases like the instant one, given the defendant’s consistent stance in
numerous cases presently pending before this Court that in past cases this Court has
conflated the fourth and fifth steps of the sequential evaluation process with respect to
who has the burden of developing the evidence necessary to determine residual
functional capacity. (See Doc. 16, at 9-13.)
The Eleventh Circuit has made clear that “[r]esidual functional capacity, or RFC,
is a medical assessment of what the claimant can do in a work setting despite any
mental, physical or environmental limitations caused by the claimant’s impairments
and related symptoms.” Peeler v. Astrue, 400 Fed.Appx. 492, 493 n.2 (11th Cir. Oct. 15,
2010), citing 20 C.F.R. § 416.945(a). Stated somewhat differently, “[a] claimant’s RFC is
‘that which [the claimant] is still able to do despite the limitations caused by his . . .
impairments.’” Hanna v. Astrue, 395 Fed.Appx. 634, 635 (11th Cir. Sept. 9, 2010), quoting
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). “In making an RFC
determination, the ALJ must consider all the record evidence, including evidence of
non-severe impairments.” Hanna, supra (citation omitted); compare 20 C.F.R. §§
404.1545(a)(1) & 416.945(a)(1) (2011) (“We will assess your residual functional capacity
based on all the relevant evidence in your case record.”) with 20 C.F.R. §§ 404.1545(a)(3)

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& 416.945(a)(3) (“We will assess your residual functional capacity based on all of the
relevant medical and other evidence.”).
From the foregoing, it is clear that the ALJ is responsible for determining a
claimant’s RFC, a deep-seated principle of Social Security law, 20 C.F.R. § 404.1546(c)
(“If your case is at the administrative law judge hearing level under § 404.929 or at the
Appeals Council review level under § 404.967, the administrative law judge or the
administrative appeals judge at the Appeals Council (when the Appeals Council makes
a decision) is responsible for assessing your residual functional capacity.”); see also 20
C.F.R. § 416.946(c) (same), that this Court has never taken issue with. See, e.g., Hunington
ex rel. Hunington v. Astrue, No. CA 08-0688-WS-C, 2009 WL 2255065, at *4 (S.D. Ala. July
28, 2009) (“Residual functional capacity is a determination made by the ALJ[.]”) (order
adopting report and recommendation of the undersigned). The regulations provide,
moreover, that while a claimant is “responsible for providing the evidence [the ALJ] . . .
use[s] to make a[n] [RFC] finding[,]” the ALJ is responsible for developing the
claimant’s “complete medical history, including arranging for a consultative
examination(s) if necessary,” and helping the claimant get medical reports from her
own medical sources. 20 C.F.R. §§ 404.1545(a)(3) & 416.945(a)(3). In assessing RFC, the
ALJ must consider any statements about what a claimant can still do “that have been
provided by medical sources,” as well as “descriptions and observations” of a
claimant’s limitations from her impairments, “including limitations that result from []
symptoms, such as pain[.]” Id.

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In determining a claimant’s RFC, the ALJ considers a claimant’s “ability to meet
the physical, mental, sensory, or other requirements of work, as described in
paragraphs (b), (c), and (d) of this section.” 20 C.F.R. §§ 404.1545(a)(4) & 416.945(a)(4).
(b) Physical abilities. When we assess your physical abilities, we
first assess the nature and extent of your physical limitations and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking, lifting,
carrying, pushing, pulling, or other physical functions (including
manipulative or postural functions, such as reaching, handling, stooping
or crouching), may reduce your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first
assess the nature and extent of your mental limitations and restrictions
and then determine your residual functional capacity for work activity on
a regular and continuing basis. A limited ability to carry out certain
mental activities, such as limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to supervision,
coworkers, and work pressures in a work setting, may reduce your ability
to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically
determinable impairment(s), such as skin impairment(s), epilepsy,
impairment(s) of vision, hearing or other senses, and impairment(s) which
impose environmental restrictions, may cause limitations and restrictions
which affect other work-related abilities. If you have this type of
impairment(s), we consider any resulting limitations and restrictions
which may reduce your ability to do past work and other work in
deciding your residual functional capacity.
20 C.F.R. §§ 404.1545(b), (c) & (d) and 416.945(b), (c) & (d).
Against this backdrop, this Court starts with the proposition that an ALJ’s RFC
determination necessarily must be supported by substantial evidence. Compare Figgs v.
Astrue, 2011 WL 5357907, *1 & 2 (M.D. Fla. Oct. 19, 2011) (“Plaintiff argues that the ALJ’s
residual functional capacity (‘RFC’) determination is not supported by substantial

14

evidence. . . . [The] ALJ’s RFC Assessment is [s]upported by substantial record
evidence[.]”), report & recommendation approved, 2011 WL 5358686 (M.D. Fla. Nov. 3,
2011), and Scott v. Astrue, 2011 WL 2469832, *5 (S.D. Ga. May 16, 2011) (“The ALJ’s RFC
Finding Is Supported by Substantial Evidence[.]”), report & recommendation adopted, 2011
WL 2461931 (S.D. Ga. Jun. 17, 2011) with Green v. Social Security Administration, 223
Fed.Appx. 915, 923 & 923-924 (11th Cir. May 2, 2007) (per curiam) (“Green argues that
without Dr. Bryant’s opinion, there is nothing in the record for the ALJ to base his RFC
conclusion that she can perform light work. . . . Once the ALJ determined that no weight
could be placed on Dr. Bryant’s opinion of [] Green’s limitations, the only documentary
evidence that remained was the office visit records from Dr. Bryant and Dr. Ross that
indicated that she was managing her respiration problems well, that she had controlled
her hypertension, and that her pain could be treated with over-the-counter medication.
Thus, substantial evidence supports the ALJ’s determination that Green could perform
light work.”). And while, as explained in Green, supra, an ALJ’s RFC assessment may be
supported by substantial evidence even in the absence of an opinion by an examining
medical source about a claimant’s residual functional capacity, specifically because of
the hearing officer’s rejection of such opinion,3 223 Fed.Appx. at 923-924; see also id. at

An ALJ’s articulation of reasons for rejecting a treating source’s RFC assessment
must, of course, be supported by substantial evidence. Gilabert v. Commissioner of Social Security,
396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010) (“Where the ALJ articulated specific reasons for
failing to give the opinion of a treating physician controlling weight, and those reasons are
supported by substantial evidence, there is no reversible error. In this case, therefore, the critical
question is whether substantial evidence supports the ALJ’s articulated reasons for rejecting
Thebaud’s RFC.”) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)); D’Andrea v.
3

(Continued)
15

923 (“Although a claimant may provide a statement containing a physician’s opinion of
her remaining capabilities, the ALJ will evaluate such a statement in light of the other
evidence presented and the ultimate determination of disability is reserved for the
ALJ.”), nothing in Green can be read as suggesting anything contrary to those courts—
including this one—that have staked the position that the ALJ must link the RFC
assessment to specific evidence in the record bearing upon the claimant’s ability to
perform the physical, mental, sensory, and other requirements of work.4 Compare, e.g.,

Commissioner of Social Security Admin., 389 Fed.Appx. 944, 947-948 (11th Cir. Jul. 28, 2010) (per
curiam) (same).
In Green, supra, such linkage was easily identified since the documentary
evidence remaining after the ALJ properly discredited the RFC opinion of the treating physician
“was the office visit records from Dr. Bryant and Dr. Ross that indicated that [claimant] was
managing her respiration problems well, that she had controlled her hypertension, and that her
pain could be treated with over-the-counter medication.” 223 Fed.Appx. at 923-924. Based upon
such nominal clinical findings, the court in Green found “substantial evidence support[ing] the
ALJ’s determination that Green could perform light work.” Id. at 924; see also Hovey v. Astrue,
Civil Action No. 1:09CV486-SRW, 2010 WL 5093311, at *13 (M.D. Ala. Dec. 8, 2010) (“The
Eleventh Circuit’s analysis in Green, while not controlling, is persuasive, and the court finds
plaintiff’s argument . . . that the ALJ erred by making a residual functional capacity finding
without an RFC assessment from a physician without merit. In formulating plaintiff’s RFC in
the present case, the ALJ—like the ALJ in Green—relied on the office treatment notes of
plaintiff’s medical providers.”).
4

Therefore, decisions, such as Stephens v. Astrue, No. CA 08-0163-C, 2008 WL 5233582
(S.D. Ala. Dec. 15, 2008), in which a matter is remanded to the Commissioner because the “ALJ’s
RFC determination [was not] supported by substantial and tangible evidence” still accurately
reflect the view of this Court, but not to the extent that such decisions are interpreted to require
that “substantial and tangible evidence” must—in all cases—include an RFC or PCE from a
physician. See id. at *3 (“[H]aving rejected West’s assessment, the ALJ necessarily had to point
to a PCE which supported his fifth-step determination that Plaintiff can perform light work
activity.”) (emphasis added). But, because the record in Stephens
contain[ed] no physical RFC assessment beyond that performed by a disability
examiner, which is entitled to no weight whatsoever, there [was] simply no basis
upon which this court [could] find that the ALJ’s light work RFC determination

(Continued)
16

Saunders v. Astrue, 2012 WL 997222, *5 (M.D. Ala. Mar. 23, 2012) (“It is unclear how the
ALJ reached the conclusion that Plaintiff ‘can lift and carry up to fifty pounds
occasionally and twenty-five pounds frequently’ and sit, stand and/or walk for six
hours in an eight hour workday, [] when the record does not include an evaluation of
Plaintiff’s ability to perform work activities such as sitting, standing, walking, lifting,
bending, or carrying.”) with 20 C.F.R. §§ 404.1545(b), (c) & (d) and 416.945(b), (c) & (d).
Indeed, the Eleventh Circuit appears to agree that such linkage is necessary for
federal courts to conduct a meaningful review of an ALJ’s decision. For example, in
Hanna, supra, the panel noted that
[t]he ALJ determined that Hanna had the RFC to perform a full range of
work at all exertional levels but that he was limited to ‘occasional hand
and finger movements, overhead reaching, and occasional gross and fine
manipulation.’ In making this determination, the ALJ relied, in part, on
the testimony of the ME. . . .
The ALJ’s RFC assessment, as it was based on the ME’s testimony,
is problematic for many reasons. . . . [G]iven that the ME opined only that
Hanna’s manipulation limitations were task-based without specifying
how often he could perform such tasks, it is unclear how the ALJ
concluded that Hanna could occasionally engage in all forms of hand and
finger movements, gross manipulation, and fine manipulation. . . .

[was] supported by substantial evidence. [That] record [did] not reveal evidence
that would support an inference that Plaintiff [could] perform the requirements
of light work, and certainly an ALJ’s RFC determination must be supported by
substantial and tangible evidence, not mere speculation regarding what the
evidence of record as a whole equates to in terms of physical abilities.
Id. (citing Cole v. Barnhart, 293 F. Supp.2d 1234, 1242 (D. Kan. 2003) (“The ALJ is responsible for
making a RFC determination, and he must link his findings to substantial evidence in the record
and explain his decision.”)).

17

The ALJ also agreed with the VE’s testimony that, under the RFC
determination, Hanna could return to his past work. But this conclusion
is not clear from the record. The VE answered many hypothetical
questions and initially interpreted the ME’s assessment to mean that
Hanna’s gross manipulation abilities were unlimited and so, with only a
restriction to fine manipulation, he could perform his past relevant work.
In a separate hypothetical, the VE stated that a claimant could not return
to his past work as a packaging supervisor if restricted to occasional
fingering, handling, and gross and fine manipulation. The ALJ also did
not include the ME’s steadiness restriction in the RFC assessment; and the
VE testified that a person restricted to handling that required steadiness
would not be able to return to Hanna’s past work.
The ALJ must state the grounds for his decision with clarity to
enable us to conduct meaningful review. The ALJ has not done so here.
To the extent the ALJ based Hanna’s RFC assessment on hearing
testimony by the ME and VE, the assessment is inconsistent with the
evidence. The ALJ did not explicitly reject any of either the ME’s or VE’s
testimony or otherwise explain these inconsistencies, the resolution of
which was material to whether Hanna could perform his past relevant
work. Absent such explanation, it is unclear whether substantial
evidence supported the ALJ’s findings; and the decision does not
provide a meaningful basis upon which we can review Hanna’s case.”
395 Fed.Appx. at 635-636 (emphasis added and internal citations and footnotes
omitted); see also Ricks v. Astrue, No. 3:10–cv–975–TEM, 2012 WL 1020428, at *9 (M.D.
Fla. Mar. 27, 2012) (“‘The existence of substantial evidence in the record favorable to the
Commissioner may not insulate the ALJ’s determination from remand when he or she
does not provide a sufficient rationale to link such evidence to the legal conclusions
reached.’ Where the district court cannot discern the basis for the Commissioner’s
decision, a sentence-four remand may be appropriate to allow him to explain the basis
for his decision.”) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D. Fla. 2005))
(emphasis added); cf. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th

18

Cir. 1994) (“The [Commissioner’s] failure to apply the correct law or to provide the
reviewing court with sufficient reasoning for determining that the proper legal analysis
has been conducted mandates reversal.”) (citation omitted).
Such linkage, moreover, may not be manufactured speculatively by the
Commissioner—using “the record as a whole”—on appeal, but rather, must be clearly
set forth in the ALJ’s decision. See, e.g., Durham v. Astrue, Civil Action No. 3:08CV839SRW, 2010 WL 3825617, at *3 (M.D. Ala. Sep. 24, 2010) (rejecting the Commissioner’s
request to affirm an ALJ’s decision because, according to the Commissioner, overall, the
decision was “adequately explained and supported by substantial evidence in the
record”; holding that affirming that decision would require that the court “ignor[e]
what the law requires of the ALJ[; t]he court ‘must reverse [the ALJ’s decision] when the
ALJ has failed to provide the reviewing court with sufficient reasoning for determining
that the proper legal analysis has been conducted’”) (quoting Hanna, 395 Fed. App’x at
636 (internal quotation marks omitted)); see also id. at *3 n.4 (“In his brief, the
Commissioner sets forth the evidence on which the ALJ could have relied . . . . There
may very well be ample reason, supported by the record, for [the ALJ’s ultimate
conclusion]. However, because the ALJ did not state his reasons, the court cannot
evaluate them for substantial evidentiary support. Here, the court does not hold that
the ALJ’s ultimate conclusion is unsupportable on the present record; the court holds
only that the ALJ did not conduct the analysis that the law requires him to conduct.”).
The Court now considers the issues raised by plaintiff, namely whether the ALJ
erred both in rendering a residual functional capacity assessment not supported by the
19

medical opinion of any treating or examining medical source and in failing to
adequately develop the administrative record and also whether the ALJ erred in
rejecting the opinion of Dr. Walid Freij with regard to the severity of plaintiff’s pain.
Based upon the previous legal analysis set forth above, the Court need reject
plaintiff’s argument that the Commissioner, through the ALJ, cannot render an RFC
assessment that is not supported by the medical opinion of a treating or examining
medical source. Through its decision in Green, supra, the Eleventh Circuit has expressly
rejected this argument. See 223 Fed.Appx. at 923-924. Indeed, the Eleventh Circuit
indicated in Green that where an ALJ articulates specific reasons, supported by
substantial evidence, for failing to give the RFC opinion of a treating physician
controlling weight, and the ALJ properly links the remaining evidence of record (after
such rejection) to the RFC assessment, such assessment can be found to be supported by
substantial evidence. See id.5
Based upon the Green decision, this Court need also reject the alternative
argument that the ALJ erred in failing to develop the record in this case specifically by not
ordering a consultative examination and obtaining a physical residual functional capacity
assessment from a consultative physician. (See Doc. 13, at 13-14.) As noted, as long as the ALJ
properly links her RFC determination—a determination admittedly reserved to the ALJ, 20
C.F.R. §§ 404.1546(c) & 416.946(c)—to evidence in the record bearing upon the claimant’s ability
to perform the physical, mental, sensory, and other requirements of work, there is no
requirement that the ALJ obtain a consultative examination to obtain a better picture of the
claimant’s RFC, 20 C.F.R. §§ 404.1519a(b) & 416.919a(b) (“A consultative examination may be
purchased when the evidence as a whole, both medical and nonmedical, is not sufficient to
support a decision on your claim.”). Compare Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir.
2001) (“The regulations ‘normally require’ a consultative examination only when necessary
information is not in the record and cannot be obtained from the claimant’s treating medical
sources or other medical sources.”) with Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997)
(“Here, the record as a whole is neither incomplete nor inadequate. Instead, the record was
sufficient for the ALJ to evaluate Graham’s impairments and functional ability, and does not
show the kind of gaps in the evidence necessary to demonstrate prejudice.”).    
5

20

The opinion of a treating physician “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause is shown
when the: “(1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004).
Where the ALJ articulated specific reasons for failing to give the opinion
of a treating physician controlling weight, and those reasons are
supported by substantial evidence, there is no reversible error. Moore [v.
Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert, supra, 396 Fed.Appx. at 655.
In this case, the ALJ accorded no weight to Dr. Walid Freij’s two pain assessment
forms, one completed on August 3, 2009 and the other on October 3, 2010, which reflect
the presence of pain to such an extent as to be distracting to the adequate performance
of work activities and that medication side effects can be expected to be severe and to
limit plaintiff’s effectiveness due to distraction, inattention, drowsiness, etc. (Tr. 333 &
376; compare id. with Tr. 25-26). The ALJ’s analysis of the opinion evidence offered by
Dr. Freij consists of the following:
The undersigned Administrative Law Judge finds that, in the present case,
good cause exists to justify not assigning any evidentiary weight to Dr.
Freij’s statements in the Clinical Assessment of Pain forms he completed
on the claimant’s behalf on August 9, 2009 and October 3, 2010. Dr. Freij’s
opinions in the Questionnaires are vague and conclusory, inasmuch as he
did not provide a diagnostic basis for his responses to the questions
propounded therein. The undersigned acknowledges that, in his treatment
notes, Dr. Freij stated his diagnostic assessments of the claimant’s
condition as muscular pain and fibromyalgia. The undersigned must,
therefore, assume that those are the impairments that Dr. Freij concluded
caused the claimant’s alleged symptomatology. However, the objective
medical evidence of record does not contain clinical examination findings
or objective diagnostic evidence of impairments of such severity to
support Dr. Freij’s opinions that the claimant’s pain resulting from those

21

impairments is so severe as to be distracting to the adequate performance
of work activities.
Another factor that undermines the credibility of and, therefore, the
evidentiary weight to be given to, Dr. Freij’s opinions in the Clinical
Assessment of Pain forms is the total inaccuracy regarding medication
side effects. Dr. Freij’s opinions regarding the significant adverse impact
that the claimant’s “medication side effects” would have on her level of
functioning is inconsistent with information contained in his treatment
records. First, in June 2009, the claimant reported having no side effects
from her medications. Second, when the claimant did begin reporting
medication side effects, they consisted only of weight gain, breast
swelling, and elevated Prolactin levels, not distraction, inattention, or
drowsiness. Third, in September 2009, one month after Dr. Freij completed
the first Clinical Assessment of Pain form, the claimant reported that she
was not taking any medications. The record shows that four months
earlier, in May 2009, the claimant told the examining psychologist Dr.
Brantley that she was not taking any pain management medications. The
undersigned points out that it is impossible for the claimant to experience
medication side effects if she is not taking any medications.
The claimant’s documented level of activities of daily living is also
inconsistent with Dr. Freij’s opinions of her level of pain. Although the
claimant testified that her pain limits her ability to perform routine daily
activities such as cooking, cleaning, and shopping, she reported that she is
able to care for her own personal needs without assistance, able to handle
money and pay bills, and able to drive an automobile. She also reported
that she visits with others on a daily basis, either on the telephone or in
person, and that she enjoys reading and watching television. The
information provided by the claimant also reflects that she is able to
appropriately manage her own household, which includes caring for her
two teenage sons. It is also noteworthy that the record reflects that there is
a significant gap of almost three years in the claimant’s treatment with Dr.
Freij, from April, 2006 to June 2009.
(Tr. 25-26.) Thus, based on the foregoing, the ALJ rejected Dr. Freij’s consistent
assessments of plaintiff’s pain for the following three reasons: (1) they were vague and
conclusory because he did not provide a diagnostic basis for his responses to the
questions; (2) the objective medical evidence of record does not contain clinical

22

examination findings or objective diagnostic evidence of impairments of such severity
to support his opinions that the claimant’s pain resulting from those impairments is so
severe as to be distracting to the adequate performance of work activities; and (3) the
claimant’s documented level of activities of daily living is inconsistent with Freij’s
opinions of pain level.6 This Court agrees with plaintiff that the ALJ’s statements
regarding the failure to place a “diagnostic basis” on his responses to the questions on
the pain form do not provide an adequate reason to reject Dr. Freij’s “pain” responses
because this somehow makes those opinions vague and conclusory (see Doc. 13, at 15),
particularly in light of the ALJ’s concession in the following sentences that Dr. Freij had
clearly indicated in his treatment notes that his diagnostic assessments of plaintiff’s
condition were muscular pain and fibromyalgia. Moreover, the ALJ’s unequivocal
finding that plaintiff’s severe impairment is fibromyalgia (Tr. 19) establishes that this
was not an adequate basis upon which to reject Dr. Freij’s pain assessments.
With respect to the ALJ’s second reason for rejecting the treating neurologist’s
pain assessments, namely lack of clinical examination findings or objective diagnostic
evidence of impairments of such severity to support his opinions that the claimant’s
pain resulting from those impairments is so severe as to be distracting to the adequate
performance of work activities, the undersigned need recognize that fibromyalgia by its
nature lacks objective evidence and, as a consequence, a treating physician’s testimony
Because plaintiff makes no argument that the ALJ improperly rejected Dr. Freij’s
medication side effects assessment (see Doc. 13, at 14-19), the undersigned considers only
whether the reasons for her rejection of Dr. Freij’s pain assessment is supported by substantial
evidence.
6

23

can be particularly valuable. Cf. Moore v. Barnhart, 405 F.3d 1208, 1211 & 1212 (11th Cir.
2005) (“Because the impairment’s hallmark is thus a lack of objective evidence, [in
Stewart v. Apfel, 245 F.3d 793 (11th Cir. Dec. 20, 2000)] we reversed an ALJ’s
determination that a fibromyalgia claimant’s testimony was incredible based on the lack
of objective evidence documenting the impairment. . . . [A] treating physician’s
testimony can be particularly valuable in fibromyalgia cases, where objective evidence
is often absent[.]”). Starting from this point and recognizing further that “[t]he lack of
objective clinical findings is, at least in the case of fibromyalgia, [] insufficient alone to
support an ALJ’s rejection of a treating physician’s opinion as to the claimant’s
functional limitations[,]” Somogy v. Commissioner of Social Security, 366 Fed.Appx. 56, 64
(11th Cir. Feb. 16, 2010), the Court in this case is compelled to find that the “lack of
clinical examination findings or objective diagnostic evidence” reason is alone
insufficient to support the ALJ’s rejection of Freij’s pain assessments.
The justification for finding that the foregoing reason stands alone is because the
ALJ’s final basis for rejecting Freij’s pain assessments, namely that same are inconsistent
with “claimant’s documented level of daily activities of daily living” (Tr. 26), amounts
to no reason at all given that “in the context of a fibromyalgia case . . . the ability to
engage in activities such as cooking, cleaning, and hobbies, does not constitute
substantial evidence of the ability to engage in substantial gainful activity.” Brosnahan v.
Barnhart, 336 F.3d 671, 677 (8th Cir. 2003) (citation omitted); see also Somogy, supra, 366
Fed.Appx. at 64 n.12 (favorably citing Brosnahan and noting the following: “Somogy’s
complaints of disabling pain are also supported by her testimony regarding her daily
24

activities. Although Somogy testified that she was able to do laundry, shop for
groceries, bake, and do other chores around the house, she also testified that these
activities only could be done on her ‘good days.’ On her ‘bad days,’ of which she had
three for every one ‘good day,’ she was unable to leave her bed because of her
debilitating pain.”). This is particularly an apt statement/finding in this case since the
report relied upon by the ALJ to establish plaintiff’s activities of daily living (see Tr. 26
(ALJ cites to Exhibit 3E and states that plaintiff “reported that she is able to care for her
own personal needs without assistance, able to handle money and pay bills, and able to
drive an automobile. She also reported that she visits with others on a daily basis, either
on the telephone or in person, and that she enjoys reading and watching television.”))
was completed in February of 2009 (see Tr. 125-132), some seven to nine months before
plaintiff was diagnosed with fibromyalgia (compare id. with Tr. 337 & 340), eight months
before Dr. Freij completed his first clinical assessment of pain (compare Tr. 125-132 with
Tr. 333), and twenty-two (22) months before the hearing (compare Tr. 125-132 with Tr.
35). Even discounting the ALJ’s sole reporting of the items in the report favorable to her
ultimate conclusion,7 the reliance upon evidence contained in a daily activities report
completed long before the impairment about which a disability claim is based came into
existence cannot serve as an adequate reason to reject a treating physician’s assessment

In this regard, the ALJ neglected to point out, for instance, that plaintiff reported
that her older children helped her take care of the younger children, cook, and clean; that she
cannot sleep long because of her back condition; that she does not prepare any meals; that she
cannot stand long; that she does not drive due to pain in her legs and back; and that she does
not shop. (Tr. 126-128; compare id. with Tr. 26.)
7

25

regarding pain associated with that impairment. Based upon the foregoing, therefore,
this Court finds that the ALJ committed reversible error in failing to accord Dr. Freij’s
pain assessments any weight.
Even if this Court had concluded that the ALJ offered adequate reasons for
failing to accord Dr. Freij’s pain assessments any weight, the undersigned would still be
unable to affirm the ALJ’s decision denying benefits in light of her failure to sufficiently
link her RFC assessment to specific evidence in the record bearing upon the claimant’s
ability to perform the physical, mental, sensory, and other requirements of work,
namely light work. This case is in no manner similar to Green where the documentary
evidence remaining after the ALJ properly discredited the RFC opinion of the treating
physician “was the office visit records from Dr. Bryant and Dr. Ross that indicated that
[claimant] was managing her respiration problems well, that she had controlled her
hypertension, and that her pain could be treated with over-the-counter medication.” 223
Fed.Appx. at 923-924. Here, in contrast, even if viewing Dr. Freij’s pain assessments as
properly discredited, what is left is the following: (1) the office notes of Dr. Freij
reflecting tenderness over the shoulders, upper and lower back, arms, and legs (Tr. 336337, 340-341 & 345); (2) physical therapy notes reflecting plaintiff’s pain complaints due
to her chronic condition (Tr. 365-375); (3) medical records documenting an emergency
room visit by plaintiff on September 5, 2010 due to “fibromyalgia exacerbation” (Tr.
352-356); and (4) the April 15, 2009 office notes of one-time examiner and family
practitioner, Dr. Huey Kidd, reflecting a diagnosis of low back pain and numerous
clinical findings which included full range of motion and 5/5 strength in upper and
26

lower extremities (Tr. 315). Because clinical findings such as those made by Dr. Kidd are
not at all uncommon in fibromyalgia patients, see, e.g., Preston v. Secretary of Health &
Human Services, 854 F.2d 815, 820 (6th Cir. 1988) (noting that fibromyalgia patients
“manifest normal muscle strength and neurological reactions and have a full range of
motion.”), and the ALJ did nothing to specifically link plaintiff’s uncontroverted
tenderness over the shoulders, upper and lower back, arms, and legs with “the residual
functional capacity to perform light work . . . except . . . performing any overhead
work, including overhead lifting and carrying” (Tr. 23; see also Tr. 24 (“Based on the
claimant’s physical impairments, the undersigned finds that the claimant is capable of
lifting and/or carrying up to 20 pounds occasionally and 10 pounds frequently,
standing and/or walking for a total of about six hours in an eight-hour workday, and
sitting for a total of about six hours in an eight-hour workday.”)),8 this Court cannot
find that the ALJ’s RFC assessment is supported by substantial evidence. Accordingly,
To be sure, the ALJ did link her RFC assessment to Dr. Kidd’s clinical findings
(Tr. 24 (“The undersigned notes that based on his physical examination of the claimant in April
2009, Dr. Kidd reported that the claimant had full range of motion of her upper and lower
extremities, that her strength in the upper and lower extremities was full and normal, that she
was able to squat and stand without difficulty, and that she ambulated without any difficulty.
These objective clinical examination findings support a residual functional capacity for light
work.”)), and if this Court was to simply look at these pre-fibromyalgia-diagnosis clinical
findings in isolation it would necessarily have to agree with the ALJ that such findings are
consistent with the ability to perform light work. However, this Court cannot consider Dr.
Kidd’s clinical findings in isolation in trying to link the pertinent evidence of record to an
appropriate RFC assessment particularly since, as aforesaid, such findings are not unusual in
fibromyalgia patients, plaintiff’s fibromyalgia had yet to be diagnosed, and the ALJ failed to
link any of the evidence generated after the fibromyalgia diagnosis to the RFC assessment
contained in the hearing decision. Thus, the ALJ’s RFC assessment is not supported by
substantial evidence. Stated differently, without any linkage by the ALJ of the evidence of
record generated after the diagnosis of fibromyalgia to the RFC assessment contained in the
hearing decision, no inference arises that plaintiff can perform the requirements of light work.
8

27

the fifth-step denial of benefits in this case is due to be reversed and remanded for
further proceedings not inconsistent with this decision.9
CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. §
405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625,
125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 2nd day of May, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

On remand, the ALJ can better explain how difficulty in organizing information,
sequencing tasks, remembering tasks, and performing tasks in a timely manner (see Tr. 21 & 24)
correlates to an ability to perform “simple, routine, repetitive tasks and . . . [to] adapt [] to
minimal changes in the work setting[]” (Tr. 24).
9

28