Janeda v. Commissioner of Social Security
OPINION AND ORDER reversing and remanding 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. See Opinion and Order for further details. Signed by Magistrate Judge Mac R. McCoy on 3/13/2018. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:16-cv-803-FtM-MRM
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Before the Court is Plaintiff Dezarae Janeda’s Complaint (Doc. 1) filed on October 28,
2016. Plaintiff seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying her 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 REVERSED AND REMANDED pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
Social Security Act Eligibility, the ALJ Decision, and Standard of Review
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 her 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).
On April 8, 2014, Plaintiff filed an application for disability insurance benefits and
supplemental security income. (Tr. at 94, 225-32). Plaintiff asserted an onset date of March 17,
2013. (Id. at 225). Plaintiff’s applications were denied initially on May 23, 2014 and on
reconsideration on September 16, 2014. (Id. at 94, 95, 128, 129). A hearing was held before
Administrative Law Judge (“ALJ”) Hope G. Grunberg on August 10, 2015. (Id. at 31-72). The
ALJ issued an unfavorable decision on October 14, 2015. (Id. at 12-23). The ALJ found
Plaintiff not to be under a disability from March 17, 2013, through the date of the decision. (Id.
On October 13, 2016, the Appeals Council denied Plaintiff’s request for review. (Id. at
1-5). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on October 28,
2016. This case is ripe for review. The parties consented to proceed before a United States
Magistrate Judge for all proceedings. (See Doc. 23).
Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she 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)). 1 An ALJ must determine
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
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.
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 March 31,
2017. (Tr. at 14). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since March 17, 2013, the alleged onset date. (Id.). At
step two, the ALJ determined that Plaintiff had the following severe impairments: slow transit
constipation with a history of June 2014 colectomy; distal right ureterocele; and carpel tunnel
syndrome with a history of right carpel tunnel release surgery. (Id. at 15). At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled 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, 404.1526, 416.920(d), 416.925, and 416.926). (Id.
At step four, the ALJ found the following:
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
[C.F.R. §§] 404.1567(b) and 416.967(b) except the claimant may not climb ladders,
ropes, or scaffolds, and should avoid workplace hazards such as unprotected heights
and dangerous moving machinery. She can frequently handle and finger with the
bilateral upper extremities. Due to the totality of her symptoms, the claimant is
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.
limited to understanding, remembering and carrying out simple, routine[,] and
(Id. at 17).
The ALJ determined that Plaintiff was unable to perform her past relevant work as a
waitress, jewelry store manager, jewelry sales associate, receptionist, and executive assistant.
(Id. at 21). The ALJ considered Plaintiff’s age, education, work experience, and residual
functional capacity, and found that there were jobs that existed in significant numbers in the
national economy that Plaintiff could perform. (Id. at 22-23). The ALJ noted that the vocational
expert identified the following representative occupations that Plaintiff was able to perform at
the light exertional level: (1) small parts assembler, DOT # 706.684-022, unskilled, SVP 2; (2)
assembly machine tender, DOT # 754.685-014, unskilled, SVP 2; and (3) mail clerk/sorter, DOT
# 209.687.026, unskilled, SVP 2. (Id. at 22-23). 2 The vocational expert further testified that if
Plaintiff were limited to sedentary work, Plaintiff was able to perform the following
representative occupations: (1) food order clerk, DOT # 209.567.014, unskilled, SVP 2; (2)
sorting machine operator, DOT # 681.685-030, unskilled, SVP 2; and (3) polishing machine
operator, DOT # 690.685-194, unskilled, SVP 2. (Id. at 23). The ALJ concluded that Plaintiff
was not under a disability at any time from March 17, 2013, through the date of the decision.
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
“DOT” refers to the Dictionary of Occupational Titles.
(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
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); 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).
On appeal, Plaintiff raises three issues. As stated by Plaintiff, they are:
The residual functional capacity (“RFC”) assessment is not supported by
substantial evidence because the ALJ failed to account for Plaintiff’s
fibromyalgia and associated pain symptoms in evaluating her work capacity
when she found fibromyalgia was not a medically determinable impairment,
in violation of 20 C.F.R. §§ 404.1545(b), 416.945(b).
The ALJ committed reversible error when she failed to give weight to the
opinion of treating physician Dr. Maria Espinoza and when she relied upon
on the dated and incomplete opinion of a non-examining medical
consultant, in violation of 20 C.F.R. §§ 404.1527, 416.927 and SSR 96-2p.
The RFC assessment is not supported by substantial evidence because the
ALJ failed to account for Plaintiff’s digestive/intestinal disorders and non-
exertional limitations in the RFC assessment, in violation of 20 C.F.R. §§
(Do. 19 at 2). The Court addresses each issue in turn.
ALJ’s Evaluation of Fibromyalgia
Plaintiff asserts that because the ALJ did not find fibromyalgia a medically determinable
impairment, as a result, the ALJ did not consider any of Plaintiff’s symptoms or limitations
arising from her fibromyalgia in assessing Plaintiff’s residual functional capacity (“RFC”).
(Doc. 19 at 9). Thus, Plaintiff argues that the ALJ’s findings are inconsistent with the record and
not supported by substantial evidence. (Id.). The Commissioner argues in response that Plaintiff
failed to meet her burden of proving that her fibromyalgia imposed additional limitations on her
ability to work. (Doc. 24 at 9).
“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).
Plaintiff argues that the ALJ erred in her analysis pursuant to SSR 12-2p. (Doc. 19 at 9).
Plaintiff claims that SSR 12-2p provides two separate sets of criteria that a claimant may utilize
to establish the presence of fibromyalgia as a medically determinable impairment. (Id.).
Plaintiff asserts that the first set of criteria stems from the 1990 American College of
Rheumatology (“ACR”) Criteria for the Classification of Fibromyalgia, and the second stems
from the 2010 ACR Preliminary Diagnostic Criteria. (Id.). Plaintiff argues that the ALJ erred in
her analysis pursuant to the 1990 ACR and failed to consider whether Plaintiff met the
requirements of the 2010 ACR criteria. (Id. at 9-10).
SSR 12-2p, entitled, “Titles II and XVI: Evaluation of Fibromyalgia” provides “guidance
on how we develop evidence to establish that a person has a medically determinable impairment
of fibromyalgia, and how we evaluate fibromyalgia in disability claims and continuing disability
reviews under titles II and XVI of the Social Security Act.” SSR 12-2p, 2012 WL 3104869, *1
(July 25, 2012). 3 SSR12-2p sets forth two separate criteria, “which we generally base” on the
1990 ACR Criteria for Classification of Fibromyalgia (Section II.A.), or the 2010 ACR
Preliminary Diagnostic Criteria (Section II.B.). Id. at *2. The criteria for both the 2009 ACR
and the 2010 ACR are as follows:
A. The 1990 ACR Criteria for the Classification of Fibromyalgia. Based on these
criteria, we may find that a person has an MDI of FM if he or she has all three of
1. A history of widespread pain—that is, pain in all quadrants of the body (the right
and left sides of the body, both above and below the waist) and axial skeletal pain
(the cervical spine, anterior chest, thoracic spine, or low back)—that has persisted
(or that persisted) for at least 3 months. The pain may fluctuate in intensity and
may not always be present.
2. At least 11 positive tender points on physical examination (see diagram below).
The positive tender points must be found bilaterally (on the left and right sides of
the body) and both above and below the waist. . . .
Social Security Rulings “are agency rulings ‘published under the authority of the
Commissioner of Social Security and are binding on all components of the Administration.’”
Miller v. Comm’r of Soc. Sec., 246 F. App’x 660, 662 (11th Cir. 2007) (quoting Sullivan v.
Zebley, 493 U.S. 521, 530 n.9 (1990)). While binding on the agency, these agency rulings, do
not bind the Court. Id. (citation omitted).
3. Evidence that other disorders that could cause the symptoms or signs were
excluded. Other physical and mental disorders may have symptoms or signs that
are the same or similar to those resulting from FM. Therefore, it is common in
cases involving FM to find evidence of examinations and testing that rule out other
disorders that could account for the person’s symptoms and signs. Laboratory
testing may include imaging and other laboratory tests (for example, complete
blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid
function, and rheumatoid factor).
B. The 2010 ACR Preliminary Diagnostic Criteria. Based on these criteria, we
may find that a person has an MDI of FM if he or she has all three of the following
1. A history of widespread pain (see section II.A.1.);
2. Repeated manifestations of six or more FM symptoms, signs, or co-occurring
conditions, especially manifestations of fatigue, cognitive or memory problems
(“fibro fog”), waking unrefreshed, depression, anxiety disorder, or irritable bowel
3. Evidence that other disorders that could cause these repeated manifestations of
symptoms, signs, or co-occurring conditions were excluded (see section II.A.3.).
SSR 12-2p, 2012 WL 3104869, at *2-3.
The ALJ found that Plaintiff’s fibromyalgia “is not documented with the correct (11/18)
number of tender points required by Social Security Ruling 12-2p and all of the impairments lack
sufficient diagnostic testing and examination evidence to confirm the diagnoses represent
medically determinable impairments.” (Tr. at 16). Thus, the ALJ only considered SSR 12-2p,
Section II.A. criteria and did not consider SSR 12-2p, Section II.B. criteria in determining that
Plaintiff’s fibromyalgia impairment was not a medically determinable impairment.
The Court begins its analysis with the 2010 ACR Preliminary Diagnostic Criteria of
Section II.B. Plaintiff argues that the ALJ failed to consider whether Plaintiff’s fibromyalgia
satisfied Section II.B. of SSR 12-2p. (Doc. 19 at 10). Plaintiff claims that she meets the criteria
of this section and, thus, the ALJ should have considered her fibromyalgia as a medically
determinable impairment. (Id. at 11). Plaintiff states that the medical evidence demonstrates the
following: (1) a well-documented history of widespread pain; (2) repeated complaints of and
treatment for fatigue, sleep problems, depression, anxiety, bowel problems, and “other hallmark
symptoms of fibromyalgia;” and (3) testing showing that other causes of Plaintiff’s symptoms
were ruled out. (Doc. 19 at 10-11). The Commissioner does not dispute that the ALJ failed to
evaluate Plaintiff under the Section II.B. criteria of SSR 12-2p, but argues that Plaintiff fails to
meet the first element, namely a history of widespread pain. (Doc. 24 at 7-8). The Court
examines the three criteria to determine if Plaintiff is able to satisfy SSR 12-2p, Section II.B.
A History of Widespread Pain
To satisfy the first criteria under Section II.B., Plaintiff must demonstrate a history of
widespread pain that must include pain in all quadrants of the body and axial skeletal pain that
has persisted for at least 3 months, but the pain may fluctuate in intensity and may not always be
present. SSR 12-2p, 2012 WL 3104869, at *2-3. Plaintiff asserts that Plaintiff has a “welldocumented history of widespread pain complaints.” (Doc. 19 at 10-11). The Commissioner
responds that Plaintiff failed “to demonstrate either pain in all quadrants of the body and/or axial
skeletal pain for a continuous three months.” (Doc. 24 at 8). A brief summary of a sampling of
the progress notes follows.
On May 20, 2013, Plaintiff went to Maria Espinoza, M.D. with complaints of low back
pain. (Tr. at 441). As to the cervical spine, Dr. Espinoza found muscle spasms at the trigger
point of the cervical muscles. (Id. at 443). Dr. Espinoza also found: “Trigger point was positive
at the trapezius muscle. Trigger point was positive at the gluteal muscles. Trigger point was
positive at the greater trochanter.” (Id. (bullet points omitted)).
On July 1, 2013, Plaintiff returned to Dr. Espinoza, complaining that her symptoms were
not controlled with medication. (Tr. at 434). Plaintiff complained of pain in arms, muscle spasm
in upper back, pain in thigh muscle, foot pain, soft tissue pain in toes, and intermittent pains.
(Id.). Dr. Espinoza prescribed, inter alia, hydrocodone-acetaminophen for severe pain. (Id.).
On a review of systems, Dr. Espinoza noted that Plaintiff was “feeling fine,” but also noted a
pain level of 6 with pain in Plaintiff’s neck and back. (Id. at 435). As to Plaintiff’s
musculoskeletal system, Dr. Espinoza found “General/bilateral: Trigger point was positive at the
occipital muscle. Trigger point was positive al the supraspinatus muscle. Trigger point was
positive at the trapezius muscle. Trigger point was positive at the lateral epicondyle. Typical
myofascial tender points.” (Id. at 436 (bullet points omitted)). Dr. Espinoza assessed Plaintiff
with, inter alia, “chronic pain vs. fibromyalgia component” and “myofascial pain syndrome” and
her plan as to chronic pain was to prescribe medication. (Id.).
On March 26, 2014, Plaintiff returned to Dr. Espinoza with complaints of feeling tired
and weak all of the time as well as complaints of soft tissue pain, leg pain, and myalgias in the
neck and shoulder. (Id. at 401). According to Dr. Espinoza, one of Plaintiff’s active problems is
fibromyalgia. (Id.). Dr. Espinoza found Plaintiff systemically feeling fine and in no acute
distress. (Id. at 402). Upon examination, Dr. Espinoza found the following: “General/bilateral:
Trigger point was positive at the occipital muscle. Trigger point was positive at the trapezius
muscle. Trigger point was positive at the greater trochanter. Trigger point was positive at the
lateral epicondyle. Trigger point was positive at the medial knee.” (Id. at 403(bullet points
omitted)). Further, Dr. Espinoza noted that Plaintiff’s mood was “[o]ne of pain.” (Id.). Dr.
Espinoza assessed Plaintiff with fibromyalgia and changed medication because her prior
medication was not effective. (Id.). Dr. Espinoza recommended that Plaintiff increase her
aerobic activity. (Id.).
On December 27, 2013, Plaintiff complained, inter alia, of muscle spasm in the right side
of her mid-back. (Id. at 397). Dr. Espinoza noted one of Plaintiff’s active problems was
The Court finds that upon a review of just a few of the progress notes from Dr. Espinoza,
Plaintiff shows a history of widespread pain in all quadrants of the body and axial skeletal pain
that persisted for a period of at least three months. The Commissioner argues that no widespread
pain was reported. (Doc. 24 at 8). This sampling of progress notes indicates that Plaintiff
complained of widespread pain and, upon examination, was positive at many trigger points
bilaterally. (See Tr. at 397, 401-403, 434-36, 441-43). Thus, the Court finds that Plaintiff’s
fibromyalgia medical records arguably satisfy the first criteria of SSR 12-2p, Section II.B.
Repeated Manifestation of Six or More Fibromyalgia Symptoms
The second criteria under SSR 12-2p, Section II.B. requires repeated manifestations of
six or more fibromyalgia symptoms, signs, or co-occurring conditions, such as fatigue, cognitive
or memory problems, waking unrefreshed, depression, anxiety disorder, or irritable bowel
syndrome. SSR 12-2p, 2012 WL 3104869, at *3. Plaintiff asserts that the medical records
reflect that she complained of and was treated for fatigue, sleep problems, depression, anxiety,
bowel problems, and other hallmark symptoms of fibromyalgia. (Doc. 19 at 11). The
Commissioner did not respond to this argument.
The medical records include, inter alia, signs of depression (see e.g., Tr. at 397, 399, 401,
405, 407, 409); fatigue (see e.g., id. at 390, 422, 459); anxiety (see e.g., id. at 350, 389, 391,
393); bowel issues (see e.g., id. at 389, 397, 399); non-refreshing sleep and difficulty awakening
(see e.g., id. at 502-503); and memory problems and difficulty concentrating (see e.g., id.) Thus,
the Court finds that Plaintiff’s fibromyalgia medical records arguably satisfy the second criteria.
Evidence of Exclusions of Other Disorders
The third criteria under SSR 12-2p, Section II.B. requires that evidence of other disorders
that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions
were excluded. SSR 12-2p, 2012 WL 3104869, at *3. Plaintiff claims that she has undergone
testing to rule out her symptoms. (Doc. 19 at 11). The Commissioner did not respond on this
point. The medical records include testing to rule out other medical problems. (See Tr. at 705,
773, 777, 788). Thus, the Court finds that Plaintiff’s fibromyalgia medical records arguably
satisfy the third criteria.
For the foregoing reasons, the Court finds that Plaintiff’s fibromyalgia medical records
arguably satisfy the three criteria of SSR 12-2p, Section II.B. Thus, without the ALJ evaluating
Plaintiff’s claim of fibromyalgia pursuant to SSR 12-2p, Section II.B., the Court is unable to
determine “whether the ultimate decision on the merits of the claim by the ALJ is rational and
supported by substantial evidence.” Morgan v. Comm’r of Soc. Sec., No. 8:14-CV-305-T-DNF,
2015 WL 1311062, at *7 (M.D. Fla. Mar. 24, 2015) (finding the ALJ’s failure to evaluate the
plaintiff’s claim of fibromyalgia pursuant to the SSR 12-2p criteria warranted remand). Further,
because the ALJ did not find Plaintiff’s fibromyalgia to be a medically determinable impairment,
the ALJ did not consider any of Plaintiff’s symptoms arising from fibromyalgia (e.g., pain,
fatigue, difficulty concentrating) when determining Plaintiff’s RFC. (See Doc. 19 at 9; Tr. at 1721). Thus, the Court finds that the ALJ erred in failing to consider Plaintiff’s fibromyalgia under
Section II.B. of SSR 12-2p and, consequently, may have erred in failing to consider Plaintiff’s
symptoms that arise from her fibromyalgia in determining Plaintiff’s RFC. The Court concludes
that the ALJ’s decision is not supported by substantial evidence.
Plaintiff’s Remaining Arguments
Plaintiff’s remaining issues focus on the weight afforded Dr. Espinoza’s opinion and the
RFC assessment failing to consider all of Plaintiff’s disorders and non-exertional limitations.
(Doc. 19 at 2). Because the Court finds that on remand, the Commissioner must reevaluate
Plaintiff’s medical records relating to Plaintiff’s fibromyalgia in light of all of the evidence of
record, the disposition of these remaining issues would, at this time, be premature.
Upon consideration of the submission of the parties and the administrative record, the
Court finds that the decision of the Commissioner is not supported by substantial evidence.
IT IS HEREBY ORDERED:
The decision of the Commissioner is REVERSED and REMANDED pursuant
to sentence four of 42 U.S.C. § 405(g) for the Commissioner to reconsider the
medical evidence relating to Plaintiff’s fibromyalgia, the weight afforded Dr.
Espinoza’s opinion, and Plaintiff’s RFC in light of the medical evidence of
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.
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 March 13, 2018.
Copies furnished to:
Counsel of Record
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