Meza v. Commissioner of Social Security

Filing 28

OPINION AND ORDER reversing and remanding the decision of the Commissioner. The Clerk of Court is directed to enter judgment consistent with this opinion, terminate any motions and deadlines, and afterward close the file. Signed by Magistrate Judge Douglas N. Frazier on 8/1/2022. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ANGELINA MEZA,
Plaintiff,
v.

Case No.: 6:21-cv-222-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Angelina Meza seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for
a period of disability and disability insurance benefits. The Commissioner filed the
Transcript of the proceedings (hereinafter referred to as “Tr.” followed by the
appropriate page number), and the parties filed a joint legal memorandum setting
forth their respective positions. As explained below, the decision of the
Commissioner is REVERSED and REMANDED pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).

I.

Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
A.

Social Security Eligibility

The law defines disability as the inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death, or which 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(a), 416.905(a). The impairment must be
severe, making the claimant unable to do her previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
B.

Standard of Review

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 and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). In conducting this review, this Court may not reweigh the evidence or
substitute its judgment for that of the ALJ, but must consider the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.

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Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation
omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s
conclusions of law are not presumed valid and are reviewed under a de novo
standard. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2
(11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “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.” Keeton, 21 F.3d at 1066.
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.
§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant
is

currently

engaged

in

substantial

gainful

employment.

20

C.F.R.

§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must
determine whether the impairment or combination of impairments from which the
claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s
severe impairments meet or medically equal a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the
claimant’s severe impairments do not meet or medically equal a listed impairment,

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then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
If the claimant cannot perform past relevant work, the ALJ must determine at
step five whether the claimant’s RFC permits her to perform other work that exists
in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g).
At the fifth step, there are two ways in which the ALJ may establish whether the
claimant is capable of performing other work available in the national economy. The
first is by applying the Medical Vocational Guidelines, and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239-40 (11th Cir.
2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove she is unable
to perform these jobs. Atha, 616 F. App’x at 993.

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C.

Procedural History

Plaintiff filed an application for a period of disability and disability insurance
benefits on March 5, 2019, alleging disability beginning October 19, 2018. (Tr. 79,
181-82). The application was denied initially and on reconsideration. (Tr. 79, 98).
Plaintiff requested a hearing and a hearing was held on June 10, 2020, before
Administrative Law Judge (“ALJ”) Julio Ocampo. (Tr. 36-66). On June 25, 2020,
the ALJ entered a decision finding Plaintiff not disabled from October 19, 2018,
through the date of the decision. (Tr. 15-26).
Plaintiff requested review of the hearing decision, but the Appeals Council
denied Plaintiff’s request on December 11, 2020. (Tr. 1-6). Plaintiff initiated the
instant action by Complaint (Doc. 1) filed on February 2, 2021, and the case is ripe
for review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (Doc. 24).
D.

Summary of ALJ’s Decision

In this matter, the ALJ found Plaintiff meets the insured status requirements
of the Social Security Act through December 31, 2023. (Tr. 17). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since October 19, 2018, the alleged onset date. (Tr. 17). At step two,
the ALJ found that Plaintiff had the following severe impairments: “inflammatory
arthritis, fibromyalgia, plantar fasciitis, and migraines.” (Tr. 18). At step three, the

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ALJ found Plaintiff did not have an impairment or combination of impairments that
meets or medically equals the severity of any of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and
404.1526). (Tr. 20).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) except she
can only frequently reach overhead and in all other directions
bilaterally. She can frequently handle and finger bilaterally.
She can frequently climb ramps or stairs, stoop, kneel, crouch,
and crawl. She can occasionally climb ladders, ropes, or
scaffolds. She can occasionally work at unprotected heights
and around moving mechanical parts. She can have occasional
exposure to extreme cold and extreme heat.

(Tr. 20).
At step four, the ALJ found that Plaintiff was able to perform her past relevant
work as a payroll clerk and benefits manager as actually and generally performed.
(Tr. 25). The ALJ determined that this work does not require the performance of
work-related activities precluded by the RFC. (Tr. 35). The ALJ concluded that
Plaintiff had not been under a disability from October 19, 2018, through the date of
the decision. (Tr. 25-26).

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II.

Analysis
On appeal, Plaintiff raises two issues: (1) whether the ALJ applied the correct

legal standards to Plaintiff’s testimony regarding her pain limitations; and (2)
whether Plaintiff is entitled to a legitimate valid hearing before an ALJ who has
lawful authority to hear and decide her claim based on valid legal authority. (Doc.
26, p. 9, 19).
A.

Subjective Complaints, Including Fibromyalgia

While Plaintiff briefly discusses subjective complaints in general, Plaintiff’s
argument focuses on the standard to evaluate fibromyalgia, (Doc. 26, 9-10). She
argues that the ALJ erred in relying almost exclusively on the lack of objective
medical evidence to reject Plaintiff’s testimony about her pain and limitations,
especially those related to fibromyalgia. (Doc. 26, p. 11-12).
The Commissioner contends that the ALJ properly considered the objective
medical evidence along with Plaintiff’s treatment history and other evidence of
record when assessing Plaintiff’s subjective complaints and how they affected her
ability to work. (Doc. 26, p. 16). The Commissioner then discusses the objective
evidence. (Doc. 26, p. 16-17).
A claimant may establish that she is disabled through her own testimony of
pain or other subjective symptoms. Ross v. Comm’r of Soc. Sec., 794 F. App’x 858,

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867 (11th Cir. 2019) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
In such a case, a claimant must establish:
“(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged
pain.”

Id. (quoting Dyer, 395 F.3d at 1210).
When evaluating a claimant’s testimony, the ALJ should consider: (1) the
claimant’s daily activities; (2) the location, duration, frequency, and intensity of the
claimant’s pain or other symptoms; (3) precipitating and aggravating factors; (4) the
type, dosage, effectiveness, and side effects of any medication to alleviate pain or
other symptoms; (5) treatment other than medication for relief of pain or other
symptoms; (6) any measures a claimant uses to relieve pain or other symptoms; and
(7) other factors concerning a claimant’s functional limitations and restrictions due
to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Ross v.
Comm’r of Soc. Sec., 794 F. App’x 858, 867 (11th Cir. 2019).
The ALJ should consider these factors along with all of the evidence of record.
Ross, 794 F. App’x 867. If the ALJ discredits this testimony, then the ALJ “‘must
clearly articulate explicit and adequate reasons for’ doing so.” Id. (quoting Dyer, 395
F.3d at 1210). The ALJ may consider the consistency of the claimant’s statements
along with the rest of the record to reach this determination. Id. Such findings “‘are

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the province of the ALJ,’ and we will ‘not disturb a clearly articulated credibility
finding supported by substantial evidence.’” Id. (quoting Mitchell v. Comm’r of Soc.
Sec., 771 F.3d 780, 782 (11th Cir. 2014)). A decision will be affirmed as long as the
decision is not a “broad rejection which is not enough to enable [a reviewing court]
to conclude that the ALJ considered [the claimant’s] medical condition as a whole.”
Dyer, 395 F.3d at 1211 (quotation and brackets omitted).
The impairment of fibromyalgia is “characterized primarily by widespread
pain in the joints, muscles, tendons, or nearby soft tissue that has persisted for at
least 3 months. SSR 12-2p, 2012 WL 3104869, *2 (July 25, 2012). When
considering fibromyalgia, the Eleventh Circuit has recognized that fibromyalgia is a
unique impairment because it “‘often lacks medical or laboratory signs and is
generally diagnosed mostly on a[n] individual’s described symptoms.’” Horowitz v.
Comm’r of Soc. Sec., 688 F. App’x 855, 863 (11th Cir. 2017) (quoting Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)). “Because the ‘hallmark’ of
fibromyalgia is a ‘lack of objective evidence,’ a claimant’s subjective complaints
may be the only means of determining the severity of the claimant’s condition and
the functional limitations she experiences.” Id. (citing Moore, 405 F.3d at 1211). An
ALJ’s decision is subject to reversal when the ALJ relies on lack of objective
findings as a basis for an adverse decision. Id.

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The Social Security Administration promulgated SSR 12-2p to provide
guidance on how to determine whether a person has a medically determinable
impairment of fibromyalgia and how it will evaluate this impairment in a disability
claim. SSR 12-2p, 2012 WL 3104869 (July 25, 2012); Francis v. Saul, No. 8:18-cv2492-SPF, 2020 WL 1227589, *3 (M.D. Fla. Mar. 13, 2020). The ruling informs
ALJs in how to consider fibromyalgia in the five-step process. SSR 12-2p, 2012 WL
3104869 (July 25, 2012).
The ruling requires an ALJ to consider all relevant evidence in the case and
all of a claimant’s medically determinable impairments, including those that are not
severe when making an RFC determination. SSR 12-2p at *6. “For a person with
fibromyalgia, an ALJ must consider a longitudinal record whenever possible
because the symptoms of [fibromyalgia] can wax and wane so that a person may
have ‘bad days and good days.’” Id. An ALJ must consider widespread pain and
other symptoms associated with fibromyalgia such as fatigue that may result in
exertional and non-exertional limitations, which prevent a person from doing a full
range of unskilled work. Id. If the objective medical evidence does not support a
claimant’s statements about the intensity, persistence, and functionally limiting
effects of symptoms, then an ALJ must consider a claimant’s daily activities,
medications, or other treatments the person uses or used to alleviate symptoms, the

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nature and frequency of a claimant’s attempt to obtain medical treatment for the
symptoms, and statement by other people about the claimant’s symptoms. Id. at *5.
As to Plaintiff’s subjective symptoms, the ALJ found generally that her
medically determinable impairments could reasonably be expected to cause the
alleged symptoms, but her statements as to intensity, persistence and the limiting
effects of these symptoms are not entirely consistent with the medical and other
evidence of record. (Tr. 21). The ALJ summarized treatment notes from October
2018 through October 2019, acknowledging some evaluations when Plaintiff
appeared chronically ill with 8 out of 18 tender points, and others when she appeared
in no acute distress, her gait was stable, and there were no motor or sensory deficits.
(Tr. 21-22). The ALJ concluded that “while the claimant reported severe limitations
due to inflammatory arthritis, fibromyalgia, plantar fasciitis, and migraines, the
medical evidence viewed in its entirety shows that the claimant is capable of
performing work at the sedentary exertional level.” (Tr. 22). The ALJ then addressed
Plaintiff’s fibromyalgia:
With regard to the claimant's fibromyalgia, I have considered
Social Security Ruling 12-2p (SSR 12-2p), which provides that
fibromyalgia is a common but complex medical condition
characterized primarily by widespread pain in the joints,
muscles, tendons, or nearby soft tissues that has persisted for
at least three months. I considered that widespread pain and
other symptoms associated with fibromyalgia, such as fatigue,
may result in exertional limitations that prevent a person from
doing the full range of unskilled work in one or more of the
exertional categories in Appendix 2 of subpart P of part 404.
Furthermore, individuals with fibromyalgia may also have
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nonexertional physical or mental limitations, or environmental
restrictions, because of their pain or other symptoms. SSR 122p indicates that I cannot rely solely upon a physician’s
diagnosis alone but must evaluate objective findings on
physical examination and consistency through the entire
evidence of record.

(Tr. 22-23).
The ALJ then mentioned Plaintiff’s subjective complaints of migraine
headaches, fatigue, plantar fasciitis, and diffuse body pain. (Tr. 23). But then
discussed objective findings from an ultrasound, laboratory tests, and physical
examinations. (Tr. 23). The ALJ emphasized that Plaintiff was repeatedly not found
in acute distress, did not use an assistive device for ambulation, and her gait, motor
strength, and sensation “were frequently normal.” (Tr. 23). The ALJ went on to
discuss x-rays, MRIs, nerve conduction studies, and ultrasounds. (Tr. 23). And he
mentioned one treatment note from May 2019 that showed Plaintiff’s bilateral lower
extremity strength, balance, and flexibility improved. (Tr. 23). Next, the ALJ noted
that there was no evidence that Plaintiff had undergone surgery or prolonged
physical therapy for inflammatory arthritis, fibromyalgia, plantar fasciitis, and
migraines during the period at issue. (Tr. 23). Instead, he noted that Plaintiff had
mostly conservative treatment, like medication management. (Tr. 23). Finally, the
ALJ concluded: “Overall, the claimant’s allegations are not substantially supported
by the evidence to the extent that she would be precluded from all work activity.
While the claimant would require work at the sedentary exertional level with

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limitations in postural, manipulative, and environmental activities, those restrictions
would reasonably accommodate her symptoms.” (Tr. 23).
Under SSR 12-2p, once an ALJ determines that fibromyalgia is a medically
determinable impairment, if the objective evidence does not support the plaintiff’s
statements – as the ALJ found here – then an ALJ must “consider all of the evidence
in the case record, including the person’s daily activities, medications or other
treatments the person uses, or has used, to alleviate symptoms; the nature and
frequency of the person’s attempts to obtain medical treatment for symptoms; and
statements by other people about the person’s symptoms.” SSR 12-2p at *5. The
ALJ mentioned Plaintiff’s subjective complaints of pain and stiffness in her joints,
fatigue, poor concentration, and insomnia. (Tr. 20). The ALJ also mentioned
Plaintiff’s daily activities of living with her mother, husband, and three children, her
ability to drive and shop, and her difficulties with preparing meals, doing laundry,
and dressing. (Tr. 21). And the ALJ noted that Plaintiff’s medications cause
drowsiness and mood swings. (Tr. 21). The ALJ also considered the testimony of
Plaintiff’s husband, who testified about Plaintiff’s anxiety, headaches, fatigue, and
pain that would limit her ability to work. (Tr. 21). The ALJ discounted the husband’s
testimony because he was not medically trained, was not a disinterested third party,
and “[m]ost importantly, his opinions are inconsistent with the treatment records and
not supported by the findings on examinations. For example, the claimant repeatedly

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was not in acute distress, she did not use an assistive device for ambulation, and her
gait, motor strength, and sensation were frequently normal.” (Tr. 25).
While the ALJ mentioned Plaintiff’s daily activities, medications, treatments,
and statements from other people, the ALJ did not reconcile how the non-objective
medical evidence did not support Plaintiff’s statements about her fibromyalgia
impairment. The ALJ’s findings on Plaintiff’s other impairments may be supported
by the objective medical evidence, but fibromyalgia is different. The ALJ failed to
explain how Plaintiff’s minimal daily activities, subjective complaints, frequent
treatment for fibromyalgia, medications or other treatments, and her husband’s
statements are inconsistent with or do not support her subjective symptoms. The ALJ
focused on the objective medical evidence to discount or find conflicts with the other
evidence of record, stating many times that Plaintiff repeatedly was not in acute
distress, she did not use an assistive device for ambulation, and her gait, motor
strength, and sensation were frequently normal. (Tr. 21-25). But relying on the lack
of objective medical evidence to discount her subjective complaints as to
fibromyalgia is insufficient. See Horowitz, 688 F. App’x at 863. Thus, it is
impossible to determine whether the ALJ’s evaluation of fibromyalgia is supported
by substantial evidence and therefore warrants remand.

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B.

Validly Appointed Commissioner of Social Security

Plaintiff argues that the Commissioner of Social Security was not validly
appointed on the date of Plaintiff’s June 25, 2020 unfavorable decision. (Doc. 26, p.
19). Plaintiff claims that the Social Security Administration knowingly violated
Plaintiff’s constitutional rights and she is entitled to remand for a de novo hearing
before a new ALJ. (Doc. 26, p. 24). The Commissioner argues that she is not entitled
to a rehearing on her disability claim. Because the Court is remanding this case on a
different issue, the Court need not reach this issue.
III.

Conclusion

For the reasons discussed above, the decision of the Commissioner is
REVERSED and REMANDED such that this action is remanded under sentence
four of 42 U.S.C. § 405(g) for the Commissioner to reconsider Plaintiff’s
fibromyalgia. The Clerk of Court is directed to enter judgment consistent with this
opinion, terminate any motions and deadlines, and afterward close the file.
DONE and ORDERED in Fort Myers, Florida on August 1, 2022.

Copies furnished to:
Counsel of Record
Unrepresented Parties
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