Cason v. Commissioner of Social Security

Filing 25

OPINION AND ORDER affirming in part and reversing and remanding in part the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Mac R. McCoy on 2/15/2017. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LLOYD CASON,
Plaintiff,
v.

Case No: 2:16-cv-170-FtM-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Lloyd A. Cason’s Complaint (Doc. 1) filed on March 1,
2016. Plaintiff seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying his claim for a period of disability, disability insurance
benefits, and supplemental security income. The Commissioner filed the Transcript of the
proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and the
parties filed legal memoranda in support of their positions. For the reasons set out herein, the
decision of the Commissioner is AFFIRMED IN PART and REVERSED AND REMANDED
IN PART pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A.

Eligibility

The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do his previous work or any other

substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step five. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.

Procedural History

On July 7, 2011, Plaintiff filed an application for disability insurance benefits (“DIB”).
(Tr. at 84, 140-46). Plaintiff asserted an onset date of October 4, 2010. (Tr. at 140). Plaintiff’s
application was denied initially on September 23, 2011, and on reconsideration on November 30,
2011. (Tr. at 84, 94). 1 A hearing was held before Administrative Law Judge (“ALJ”) M.
Dwight Evans on March 13, 2014. (Tr. at 30-74). The ALJ issued an unfavorable decision on
July 17, 2014. (Tr. at 14-24). The ALJ found Plaintiff not to be under a disability from October
4, 2010, the alleged onset date, through December 31, 2012, the date last insured. 2 (Tr. at 24).
On January 29, 2016, the Appeals Council reviewed the ALJ’s decision and issued the
Decision of the Appeals Council. (Tr. at 4-7). The Appeals Council adopted the ALJ’s
statements regarding the pertinent provisions of the Social Security Act, Social Security
Administration Regulations, Social Security Rulings and Acquiescence Rulings, the issues in the
case, and the evidentiary facts, as applicable. (Tr. at 4). In addition, the Appeal Council adopted
the ALJ’s findings or conclusions regarding whether Plaintiff was disabled. (Tr. at 4). The
Appeals Council agreed with the ALJ’s findings under steps one, two, three, four, and five of the

1

Although not mentioned by the parties, a second Disability Determination and Transmittal
document was in the record regarding reconsideration dated April 25, 2012. (See Tr. at 95).
2

As explained next, the ALJ incorrectly found that Plaintiff’s date last insured was December
31, 2012. (Tr. at 24). The Appeals Council granted Plaintiff’s request for review, determining,
inter alia, that Plaintiff date last insured was December 31, 2013. (Tr. at 4-7).

2

sequential evaluation process with the exception that the ALJ’s decision indicated Plaintiff’s date
last insured was December 31, 2012 and the Appeals Council determined that the date last
insured was actually December 31, 2013. (Tr. at 5).
The Appeals Council found that even though the ALJ’s decision included the wrong date
last insured, the ALJ had nonetheless considered all evidence found in Plaintiff’s file, including
evidence dated during the unadjudicated period from December 31, 2012 to December 31, 2013.
(Tr. at 5). Therefore, the Appeals Council adopted the ALJ’s decision as far as the steps in the
sequential evaluation and applied the findings in the ALJ’s decision from the alleged onset date
of October 4, 2010 through the date last insured of December 31, 2013. (Tr. at 5). The Appeals
Council afforded some weight to a third-party report from Plaintiff’s wife, Judi Cason. (Tr. at 5).
In all other respects, the Appeals Council adopted the ALJ’s findings. (Tr. at 5). Plaintiff filed a
Complaint (Doc. 1) in the United States District Court on March 1, 2016. This case is ripe for
review. The parties consented to proceed before a United States Magistrate Judge for all
proceedings. (See Doc. 19).
C.

Summary of the ALJ’s Decision

An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that he is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 3 An ALJ must determine
whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.

3

Unpublished opinions may be cited as persuasive on a particular point. The Court does not
rely on unpublished opinions as precedent. Citation to unpublished opinions on or after January
1, 2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.

3

Part 404, Subpart P, Appendix 1; (4) can perform her past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (11th Cir. 2004). The claimant has the burden of proof through step four and then the burden
shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913,
915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through December 31,
2012. 4 (Tr. at 16). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity from his alleged onset date of October 4, 2010 through the
date last insured of December 31, 2012. 5 (Tr. at 16). At step two, the ALJ found that Plaintiff
suffered from the following severe impairments: neck pains, back pains, and myalgias. (Tr. at
16). At step three, the ALJ determined that through the date last insured Plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (20 C.F.R. §§ 404.1520(d),
404.1525, and 404.1526). (Tr. at 18). At step four, the ALJ determined that through the date last
insured, Plaintiff has the residual functional capacity (“RFC”) to perform light work with the
following additional limitations:
may only frequently (between one-third and two-thirds of the workday) climb
ladders, ropes, and scaffolds, kneel, or crawl. Claimant may only occasionally
(up to one-third of the workday) stoop or crouch.

4

As stated above, the Appeals Council corrected the date last insured to December 31, 2013.
(Tr. at 5).
5

See supra at n.4.

4

(Tr. at 18). The ALJ determined that Plaintiff is capable of performing his past relevant work as
an excavator operator and this work does not require the performance of work-related activities
precluded by Plaintiff’s residual functional capacity. (Tr. at 22).
Even though the ALJ determined that Plaintiff is capable of performing his past relevant
work, the ALJ made the alternative step five finding that there are other jobs that exist in the
national economy that Plaintiff is also able to perform. (Tr. at 23). At step five, the ALJ found
that considering Plaintiff’s age, education, work experience, residual functional capacity, and
vocational expert testimony, the ALJ determined that Plaintiff is capable of performing the
following jobs: (1) outside deliverer, DOT # 230.663-010, light exertional level, SVP of 2; (2)
flagger, DOT # 372.667-022, light exertional level, SVP 2; (3) signaler, DOT # 869.667-014,
light exertional level, SVP 2; and (4) parking lot signaler, DOT # 915.667-014, light exertional
level, SVP 2. (Tr. at 24). 6 The ALJ concluded that Plaintiff was not under a disability from
October 4, 2010, the alleged onset date, through December 31, 2012, the date last insured. 7 (Tr.
at 24).
D.

Standard of Review

The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. §405(g). Substantial evidence is more than a scintilla; i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such

6

“DOT” refers to the Dictionary of Occupational Titles.

7

See infra at n.4.

5

relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); and Barnes v. Sullivan,
932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at
1560; accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the
entire record to determine reasonableness of factual findings).
II.

Analysis
On appeal, Plaintiff raises three issues. As stated by Plaintiff they are:
1) The ALJ committed harmful error when he found that Plaintiff’s digestive
impairment/abdominal pain and mental impairment were non-severe and trivial
within the meaning of 20 C.F.R. § 404.1521(a).
2) The residual functional capacity (“RFC”) assessment is not supported by
substantial evidence because the ALJ failed to account for Plaintiff’s fibromyalgia
and neuropathy in evaluating his work capacity, in violation of 20 C.F.R. §
404.1545(b).
3) The ALJ’s assessment of Plaintiff’s credibility is not supported by substantial
evidence because the ALJ misconstrued the evidence of record and did not
articulate valid rationale for discrediting Plaintiff in violation of 20 C.F.R. §
404.1529(c) and Social Security Ruling (“SSR”) 16-3p.

(Doc. 21 at 2-3). 8

8

Plaintiff frames his arguments as to the ALJ’s decision. (See Doc. 21, e.g., at 8-9). In this
case, the Appeals Council entered the final decision of the Commissioner of Social Security.
(See Tr. at 1-7). Based upon the Appeals Council’s adoption of the majority of the ALJ’s

6

A.

Step Two Analysis

Plaintiff argues that the ALJ erred in failing to find Plaintiff’s impairments of (1)
hepatitis and chronic abdominal pains, and (2) depression, not severe at step two of the
sequential evaluation. (Doc. 21 at 7). Plaintiff claims that the medical records support that
Plaintiff’s digestive impairments, hepatitis, and depression are more than mild and trivial. (Doc.
21 at 8-9). The Commissioner argues in response that the ALJ is not required to identify every
severe impairment at step two as long as the ALJ has identified at least one severe impairment.
(Doc. 23 at 5). Further, the Commissioner contends that substantial evidence supports the
Appeals Council’s and ALJ’s decisions that Plaintiff’s hepatitis, chronic abdominal pains, and
depression were not severe at step two of the sequential evaluation.
At step two of the sequential evaluation, the severity of a claimant’s impairments is
analyzed. At this step, “[a]n impairment is not severe only if the abnormality is so slight and its
effect so minimal that it would clearly not be expected to interfere with the individual’s ability
to work, irrespective of age, education or work experience.” McDaniel v. Bowen, 800 F.2d
1026, 1031 (11th Cir. 1986). A severe impairment must bring about at least more than a
minimal reduction in a claimant’s ability to work, and must last continuously for at least twelve
months. See 20 C.F.R. §§ 404.1505(a). This inquiry “acts as a filter” so that insubstantial
impairments will not be given much weight. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.
1987). While the standard for severity is low, the severity of an impairment “must be measured
in terms of its effect upon ability to work, and not simply in terms of deviation from purely

decision, including those parts that relate to the issues raised here by Plaintiff, the Court will
apply Plaintiff’s arguments as if they incorporate the Appeals Council’s decision as well.

7

medical standards of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544,
1547 (11th Cir. 1986).
In the Eleventh Circuit, “[n]othing requires that the ALJ must identify, at step two, all
of the impairments that should be considered severe.” Heatly v. Comm’r of Soc. Sec., 382 F.
App’x 823, 825 (11th Cir. 2010). Rather, the ALJ is required to consider a claimant’s
impairments in combination, whether severe or not. Id. If any impairment or combination of
impairments qualifies as “severe,” step two is satisfied and the claim advances to step three.
Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013) (citing Jamison v. Bowen,
814 F.2d 585, 588 (11th Cir. 1987)).
In the instant case, the ALJ found other severe impairments, including neck pains, back
pains, and myalgias. (Tr. at 16). Even though the ALJ did not find Plaintiff’s hepatitis, chronic
abdominal pains, and depression to be severe impairments, the record is clear that he considered
them in combination with Plaintiff’s other severe and non-severe impairments. Accordingly,
even if the ALJ erred, the error was harmless.
The ALJ considered Plaintiff’s hepatitis and chronic abdominal pains and the records
containing references to these impairments. (Tr. at 16). The ALJ noted that Plaintiff never
received treatment for hepatitis and worked for many years with his abdominal condition. (Tr. at
16). Further, the ALJ noted that Plaintiff’s abdominal pains improved after a cholecystectomy.
(Tr. at 16). In addition, the ALJ considered the records concerning Plaintiff’s mental impairment
of depression. (Tr. at 17). The ALJ also considered the four broad functional areas in section
12.00C of the Listing of Impairments. (Tr. at 17). Moreover, the ALJ considered all of
Plaintiff’s symptoms and considered Plaintiff’s hepatitis, abdominal pains, and mental condition
in combination with Plaintiff’s other impairments. (See Tr. at 18, 19, 20, 21).

8

Upon consideration of the portions of the ALJ’s decision that were adopted by the
Appeals Council in its decision, the Court finds that the ALJ and the Appeals Council found
Plaintiff to have severe impairments. Thereafter, the ALJ and the Appeals Council considered
Plaintiff’s severe and non-severe impairments in combination. (See Tr. at 19, 20, 21). Some of
the non-severe impairments considered by the ALJ and the Appeals Council were hepatitis,
abdominal pains, and depression. Thus, even if the ALJ and Appeals Council erred in failing to
find hepatitis, abdominal pains and depression severe impairments at step two of the sequential
evaluation, the error was harmless because the ALJ and the Appeals Council found other severe
impairments at step two and considered Plaintiff’s severe impairments and non-severe
impairments – including hepatitis, abdominal pain, and depression – in combination. Therefore,
the Court finds that the ALJ’s and the Appeals Council’s decision at step two was supported by
substantial evidence.
B.

Residual Functional Capacity

Plaintiff argues that the RFC assessment was not supported by substantial evidence
because the ALJ failed to account for Plaintiff’s fibromyalgia and neuropathy in determining
Plaintiff’s RFC. (Doc. 21 at 10). 9 Plaintiff also claims that the hypothetical posed to the

9

Plaintiff mentions in one sentence that the ALJ failed to consider Plaintiff’s neuropathy at step
two of the sequential evaluation. As stated above in section II.A, entitled “Step Two Analysis,”
if the ALJ considered Plaintiff’s neuropathy in combination with Plaintiff’s other severe and
non-severe impairments, then even if the ALJ erred in failing to find neuropathy a severe
impairment, the error was harmless. See Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 825
(11th Cir. 2010); Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013). In this
case, the ALJ and the Appeals Council considered Plaintiff’s subjective complaints of pain and
difficulties in his feet. (Tr. at 19). The ALJ noted that specific testing for neuropathy was
normal in January 2013. (Tr. at 21, 22). Thus, the ALJ and the Appeals Council considered
Plaintiff’s neuropathy in combination with Plaintiff’s other severe and non-severe impairments.
Therefore, even if the ALJ and the Appeals Council erred in failing to list neuropathy as a severe
impairment at step two of the sequential evaluation, the error was harmless.

9

vocational expert did not include all of Plaintiff’s limitations associated with fibromyalgia and
neuropathy. (Doc. 21 at 11). The Commissioner argues in response that the ALJ and the
Appeals Council properly considered the relevant evidence in assessing Plaintiff’s RFC during
the relevant time period. (Doc. 23 at 16).
“The residual functional capacity is an assessment, based upon all of the relevant
evidence, of a claimant’s remaining ability to do work despite his impairments.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). An individual’s RFC is his ability to do
physical and mental work activities on a sustained basis despite limitations secondary to his
established impairments. Delker v. Comm’r of Soc. Sec., 658 F. Supp. 2d 1340, 1364 (M.D. Fla.
2009). In determining a claimant’s RFC, the ALJ must consider all of the relevant evidence of
record. Barrio v. Comm’r of Soc. Sec., 394 F. App’x 635, 637 (11th Cir. 2010). However, the
Eleventh Circuit has consistently held that “the claimant bears the burden of proving that [he] is
disabled, and consequently, [he] is responsible for producing evidence in support of [his] claim.”
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
Specifically, Plaintiff argues that he was diagnosed with fibromyalgia causing symptoms,
including pain, fatigue, and poor concentration. (Doc. 21 at 11). Plaintiff asserts that he was
prescribed Cymbalta for treatment, and his mental status examination was positive for confusion
and decreased concentration and near the end of the relevant period he suffered from fatigue and
“brain fog.” (Doc. 21 at 11). Plaintiff acknowledges that the ALJ found “myalgias” as a severe
impairment, but contends that myalgia refers to muscle pain and not fibromyalgia. (Doc. 21 at
12). In addition, Plaintiff asserts that he was assessed with neuropathy causing severe pain,
burning, and numbness bilaterally in his feet. (Doc. 21 at 12). Plaintiff argues that the ALJ
failed to consider that Plaintiff was prescribed Gabapentin for neuropathic pain and only cited to

10

some general objective testing concerning Plaintiff’s pain. (Doc. 21 at 12). The Commissioner
argues in response that the ALJ properly considered the relevant evidence in assessing Plaintiff’s
RFC and, further, the mere diagnosis of fibromyalgia and/or neuropathy does not establish that
Plaintiff was more limited in his ability to work than found in his RFC. (Doc. 23 at 16).
In the decision, the ALJ noted that in November and December 2011, Plaintiff was
diagnosed with myalgias of unknown origin and in February 2012, he experienced pain all over,
but his examination was essentially unremarkable. (Tr. at 20). The ALJ also noted that Plaintiff
was diagnosed with fibromyalgia. (Tr. at 21). The ALJ indicated that Plaintiff continued to be
treated by medication for his symptoms. (Tr. at 21). In addition, the ALJ noted that in June and
September 2012, Plaintiff returned to his doctor with complaints of both fatigue and foot pain,
and again these symptoms were treated with medication. (Tr. at 21). The ALJ reviewed the
January 2013 treatment notes and found that Plaintiff sought treatment for foot pain, but specific
testing for fibromyalgia and neuropathy was normal at that time. (Tr. at 21, 22). The ALJ
mentioned this medical record twice, but did not discuss any other medical records from 2013
concerning Plaintiff’s medical conditions of fibromyalgia and neuropathy.
Turning to the medical records, on February 14, 2012, Plaintiff visited Lee Physicians
Group – United Way with the chief complaint of pain. (Tr. at 315). After examination, Carrie
A. Gittings, M.D. diagnosed and assessed Plaintiff with fibromyalgia as the likely cause for
Plaintiff’s ongoing myalgias, anthropathies, fatigue, and poor concentration. (Tr. at 316).
Plaintiff returned on June 11, 2012, complaining of fatigue, foot pain, and other problems. (Tr.
at 310). Even though the medications were helping somewhat to clear his thoughts, Plaintiff
complained of a great deal of fatigue. (Tr. at 310). Plaintiff was diagnosed with, inter alia,
fibromyalgia and prescribed medication. (Tr. at 311-12). Plaintiff returned on September 18,

11

2012 complaining of pain and reporting that the Cymbalta did not help with the pain, but he was
a bit more active. (Tr. at 306). Plaintiff reduced his intake of Gabapentin stating that it did help
with the pain, but he could not take three in one day because it made him too sleepy. (Tr. at
306). Dr. Gittings continued Plaintiff on Cymbalta for the fibromyalgia and Gabapertin. (Tr. at
307). On January 25, 2013, Plaintiff saw Dr. Gittings for foot pain and abdominal pain. (Tr. at
406). Plaintiff was diagnosed with, inter alia, fibromyalgia and neuropathy. (Tr. at 409). Dr.
Gittings determined that all of the results from the testing for Plaintiff’s pain were normal and
there were no additional tests to be ordered at that time. (Tr. at 409). Dr. Gittings could not
determine the cause of Plaintiff’s pain and changed focus from continued testing to treating
Plaintiff’s symptoms and to helping him cope with chronic pain. (Tr. at 409). Dr. Gittings
continued Plaintiff on his medications. (Tr. at 409). Near the end of the relevant period on
November 26, 2013, Plaintiff saw Dr. Gittings complaining of pain “all over,” reported “brain
fog,” and numbness in his feet. (Tr. at 423). Plaintiff stated that his fatigue and poor
concentration remained unchanged. (Tr. at 423). Upon examination, Dr. Gittings found Plaintiff
exhibited tenderness diffusely to light touch relating to his musculoskeletal region. (Tr. at 423).
Dr. Gittings added a prescription for Tramadol to help with the continuing pain. (Tr. at 424).
The Commissioner argues that even though Plaintiff was diagnosed with fibromyalgia
and neuropathy, these diagnoses alone do not establish functional limitations. (Doc. 23 at 16).
The Court agrees that a “diagnosis [ ] is insufficient to establish that a condition caused
functional limitations.” Wood v. Astrue, 2012 WL 834137, at *5 (M.D. Fla. Feb. 14, 2012)
(citing Moore v. Barnhart, 405 F.3d 1207, 1213 n.6 (11th Cir. 2005)). In this case, however, Dr.
Gittings found Plaintiff to have diffuse pain and extreme fatigue as evidenced by Dr. Gittings
prescribing medication for the pain and symptoms and finding diffuse tenderness in the

12

musculoskeletal region. (See, e.g., Tr. at 307, 409, 423). The ALJ and Appeals Council mention
twice that Plaintiff’s fibromyalgia and neuropathy were normal. (Tr. at 21, 22). Contrary to the
ALJ’s and Appeals Council’s conclusion that Plaintiff’s tests for fibromyalgia and neuropathy
were normal, the records reflect that the results of the tests for cause of the pain were normal, but
the cause for Plaintiff’s pain was unknown. (Tr. at 409). Moreover, the decision does not
specifically mention the medical reports from Dr. Gittings in late 2013, which reference
Plaintiff’s continuing issues as to his fibromyalgia and neuropathy pain, including fatigue, and
poor concentration. (See Tr. at 422-23). 10
Further, fibromyalgia has been treated differently than other diseases by the Eleventh
Circuit. Fibromyalgia is a unique disease and “often lacks medical or laboratory signs, and is
generally diagnosed mostly on an individual’s described symptoms.” Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005) (per curiam). Courts have held that a lack of objective findings
alone is not sufficient to support an ALJ’s rejections of a treating physician’s findings as to a
claimant’s functional limitations. See Daniel v. Colvin, No. 2:12-cv-53-VEH, 2013 WL
5434571, at *4 (N.D. Ala. Sept. 27, 2013) (citing Somogy v. Comm’r of Soc. Sec., 366 Fed.
App’x 56, 64 (11th Cir. 2010)). Here, the ALJ and the Appeals Council relied on the testing for
fibromyalgia and neuropathy being normal to discount Plaintiff’s symptoms. However, at least
as to the fibromyalgia, this testing is not conclusive as to Plaintiff’s symptoms or limitations.
After Dr. Gittings could not determine the cause of Plaintiff’s pain, Dr. Gittings treated Plaintiff
for his symptoms of pain, fatigue, and poor concentration with medications. (Tr. at 424). As late

10

The ALJ was under the misapprehension that the date last insured was December 31, 2012
and not December 31, 2013. (Tr. at 5). Based on the considerations in the decision, the Court
finds that the ALJ may not have properly considered the import of the medical records in 2013.

13

as November 2013, Dr. Gittings added an additional medication to try to control Plaintiff’s pain.
(See Tr. at 424).
In this case, medical records during the relevant time period showed evidence of
Plaintiff’s limitations associated with his diagnoses of fibromyalgia and neuropathy. The Court
is unable to determine if the ALJ and the Appeals Council considered these medical records and
limitations when formulating Plaintiff’s RFC. Therefore, the Court is unable to conduct a
meaningful judicial review of the ALJ’s and the Appeals Council’s decision concerning
Plaintiff’s RFC. See Robinson v. Astrue, No. 8:08-CV-1824-T-TGW, 2009 WL 2386058, at *4
(M.D. Fla. Aug. 3, 2009). Thus, the Court finds that the decision of the ALJ and the Appeals
Council as to Plaintiff’s RFC is not supported by substantial evidence.
C.

Credibility

Plaintiff’s remaining argument alleges that the ALJ erred in his credibility finding. This
issue is intertwined with the issue concerning Plaintiff’s RFC. Because the Court finds that on
remand, the Commissioner must reevaluate Plaintiff’s RFC in light of all of the evidence of
record, the disposition of the issues concerning credibility would, at this time, be premature.
III.

Conclusion
Upon consideration of the submission of the parties and the administrative record, the

Court finds that the decision of the ALJ and the Appeals Council is supported by substantial
evidence as to the step two analysis but is not supported by substantial evidence as to Plaintiff’s
RFC determination.
IT IS HEREBY ORDERED:
1) The decision of the Commissioner is AFFIRMED IN PART and REVERSED
AND REMANDED IN PART pursuant to sentence four of 42 U.S.C. § 405(g).

14

The decision is affirmed as to the step two issue and reversed and remanded for
the Commissioner to reevaluate Plaintiff’s RFC in light of all of the evidence of
record and reconsider Plaintiff’s credibility determination.
2) If Plaintiff prevails in this case on remand, Plaintiff must comply with the Order
(Doc. 1) entered on November 14, 2012, in Misc. Case No. 6:12-mc-124-Orl-22.
3) The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the file.
DONE AND ORDERED in Fort Myers, Florida on February 15, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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