Herzog v. Commissioner of Social Security
REPORT AND RECOMMENDATION re 4 Complaint filed by Robin Herzog in that it is RECOMMENDED that the Court REVERSE the Commissioner's nondisability finding and REMAND this case to the Commissioner and the Administrative Law Judge. Objections to R&R due by 6/14/2017. Signed by Magistrate Judge Kimberly A. Jolson on 5/31/17. (sem)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Civil Action 2:16-cv-244
Judge James L. Graham
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION
Plaintiff, Robin Herzog, brings this action under 42 U.S.C. § 405(g) seeking review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying her application
for disability insurance benefits. For the reasons that follow, it is RECOMMENDED that the
Court REVERSE the Commissioner’s nondisability finding and REMAND this case to the
Commissioner and the Administrative Law Judge (“ALJ”) under Sentence Four of § 405(g).
Plaintiff protectively applied for benefits on May 13, 2013, alleging disability since
December 3, 2012, due to a number of ailments. (See generally Doc. 13, Tr. 182–88, 199, 214,
273). Plaintiff’s last-insured date is December 31, 2017. (Id., Tr. 27).
After initial administrative denials of Plaintiff’s claims, an ALJ heard her case on April
23, 2014. (Id., Tr. 44–78). On August 1, 2014, the ALJ issued a decision finding that Plaintiff
was not disabled within the meaning of the Social Security Act. (Id., Tr. 23–42). On January
21, 2016, the Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s
decision as the Commissioner’s final decision. (Id., Tr. 1–6).
Plaintiff filed this case on March 18, 2016, and the Commissioner filed the administrative
record on July 11, 2016. (Doc. 13). Plaintiff filed a Statement of Specific Errors on August 14,
2016 (Doc. 14), the Commissioner responded on October 14, 2016 (Doc. 17), and Plaintiff
replied on November 3, 2016 (Doc. 18).
Plaintiff was born in April 1961 (Doc. 13, Tr. 182), and she was 50-years-old on the
alleged onset date of disability. (Id., Tr. 37). She has a high school education and work
experience with Honda as an associate, production staff member, and coordinator. (Id., Tr.
Testimony at the Administrative Hearing
Plaintiff testified at the administrative hearing that she stopped working in December
2012, due to being “overwhelmed.” (Id., Tr. 49). Specifically, Plaintiff testified that she has
migraines, insomnia, and hormone issues. All this caused her to miss “quite a bit of work,” and
she found it difficult to perform her supervisor position. (Id.). She testified she was also
dealing with her son returning from military service with PTSD, and she has a vaginal mesh,
which prolapsed in 2005, needed repair in 2008, and still causes her pain. (Id., Tr. 49–50). She
additionally testified that she has all-over body pain that has been diagnosed as fibromyalgia or
maybe rheumatoid arthritis. As to these two ailments, she testified that she was going to obtain
a second opinion from Dr. Shereen Hashmi. (Id., Tr. 50). She described her pain as “so bad
that I have to take Percocet every . . . six hours.” She also takes Lyrica but noted “it’s not
working at all.” (Id., Tr. 50, 68).
Plaintiff had radial tunnel surgery in 2010. She testified that while the “nerve situation”
from this surgery has improved, she still has weakness and difficulty performing tasks that
require fine motor skills. (Id., Tr. 67). She wakes up with stiffness and pain in her fingers on a
daily basis, and fibromyalgia causes pain in her wrists, fingers, elbow, lower back, knees, and
ankles. (Id., Tr. 68). She noted, “I can’t hardly do anything now. The pain is just too much.”
The vocational expert (“the VE”) testified that a hypothetical person of similar age and
education as Plaintiff with a limitation of light exertional work could not perform Plaintiff’s past
job but could perform other jobs available in the national economy such as a mail clerk, laundry
worker, and injection molding machine tender. (Id., Tr. 74–75). In addition, the VE testified
that a hypothetical person of similar age and education as Plaintiff with an exertional level
changed to sedentary work would have no transferable skills. (Id., Tr. 75–76). Additionally,
the VE testified that if an employee were to miss three days per month or would be off task
twenty percent of the time, no sustainable substantially gainful employment would be available.
(Id., Tr. 76).
Relevant Medical Evidence
Primary Care Physician Delia J. Herzog, M.D.
Plaintiff began treating with her primary care physician, Dr. Delia J. Herzog, in August
2006, with complaints of chronic neck pain, migraine headaches, stress, and anxiety. (Id., Tr.
366). Plaintiff continued to treat with Dr. Herzog past the administrative decision. (Id., Tr. 7,
12, 329–77, 552–74, 658, 719, 724–26). Plaintiff’s complaints during her treatment included:
body aching all over (id., Tr. 364, 556); “tired all the time,” pain around her ankles and wrists
(id., Tr. 362); hiatal hernia (id., Tr. 354); headaches/migraines (id., Tr. 12, 331, 335, 340, 348,
354, 458, 462); anxiety, increased due to her son serving in the military (id., Tr. 352); pain in her
right arm despite having gone through therapy (id., Tr. 346); irregular menses (id., Tr. 342, 349);
insomnia and sleep disturbances (id., Tr. 472); diarrhea, depression, and headaches (id., Tr. 464);
neck pain (id., Tr. 456); pelvic pain (id., Tr. 567); low back pain and diarrhea (id., Tr. 558).
Dr. Herzog diagnosed insomnia, depression, and situational anxiety (id., Tr. 333–34);
epigastric pain, insomnia, depression, situational anxiety, and migraine (id., Tr. 329–30); cervical
radiculopathy (id., Tr. 457); and fibromyalgia (id., Tr. 12, 556–57). She prescribed medications
such as Wellbutrin for Plaintiff’s depression, Amerge for migraines (id., Tr. 335); melatonin for
sleep issues (id., Tr. 473); Percocet (id., Tr. 457, 567); and medication for diarrhea (id., Tr. 558).
On April 27, 2014, Dr. Herzog opined that Plaintiff could work no hours in a day and
would likely be absent due to medical impairments or treatment 31 days per month. (Id., Tr.
679). Plaintiff could walk 2 hours during an 8-hour day, for 20 minutes at a time, secondary to
pelvic pain, fibromyalgia, and osteoarthritis. (Id.). Plaintiff could sit for 45 minutes at a time,
up to 3 hours total in a workday, secondary to pelvic pain. (Id., Tr. 680). Plaintiff could carry
one to two pounds frequently and eight pounds occasionally, secondary to radial tunnel disease
Plaintiff could occasionally balance, stoop, and kneel, but never
climb, crouch, or crawl, secondary to pelvic pain, low back pain, and osteoarthritis. (Id., Tr.
Dr. Herzog reported that Plaintiff also suffers from fatigue and depression due to
fibromyalgia and being diagnosed with major depressive disorder. (Id., Tr. 682).
Innovative Therapy: Jennifer Errington, L.I.S.W.
Plaintiff sought mental health counseling with social worker, Jennifer Errington, a
licensed independent social worker, on December 11, 2012. Plaintiff reported symptoms of
depression, PTSD, and acute stress disorder, and reported a multitude of physical health issues.
(Id., Tr. 668). Ms. Errington diagnosed Acute Stress Disorder and Major Depressive Disorder
(with anxious distress). (Id., Tr. 668).
Ms. Errington completed a Mental Status Questionnaire in August 2013, where she
reported that she had seen Plaintiff for 12 sessions, from December 2012 through August 2013.
She found that Plaintiff was generally anxious and depressed, with rapid conversation and
pressured speech. Plaintiff was hypervigilant, perseverated on physical disorders and issues, and
was easily overwhelmed and prone to tangents. Plaintiff’s judgment was generally good when
expectations were low to moderate; and her ability to remember, understand, and follow
directions was generally good unless she was overwhelmed. Ms. Errington thought Plaintiff
would do best in a simple, supportive environment. (Id., Tr. 502-03).
On November 7, 2013, Ms. Errington completed a Mental Residual Functional Capacity
assessment in which she listed Plaintiff’s diagnoses as PTSD and major depression.
Errington opined that Plaintiff would have moderate to extreme limitations in understanding,
memory, and sustained concentration and persistence; and mild to extreme limitations in social
interaction and adaptation; and she would be unable to work on a sustained basis due to anxiety.
(Id., Tr. 671–74).
Smitha Patel, M.D.
Psychiatrist Smitha Patel evaluated Plaintiff on March 13, 2013. (Id., Tr. 482–84).
During the evaluation, Plaintiff complained of depression and anxiety for the past few months,
noting that she had been off work since December due to depression, insomnia, and stress.
Plaintiff claimed she was forgetful and no longer able to do simple tasks. Plaintiff said her
problems began in the middle of 2012, when she experienced two family deaths, was caring for
her sick mother, had a stressful new job, and was worried about her son’s safety. (Id., Tr. 482).
Dr. Patel found Plaintiff exhibited a depressed mood, intact thought processes, and fair judgment
and insight. Dr. Patel diagnosed major depressive disorder and panic disorder with agoraphobia.
Dr. Patel assigned a Global Assessment of Functioning (GAF) score of 30 upon evaluation. He
continued Plaintiff’s medications, prescribed Viibryd for depression, and recommended
counseling. (Id., Tr. 483).
Plaintiff continued to see Dr. Patel monthly until November 2013 for medication
management. (Id., Tr. 479–81, 576–78). Her mental status examination generally revealed a
depressed mood, with coherent speech, logical thought processes, average attention and
concentration and good memory. (See id., Tr. 479, 480, 576). Plaintiff told Dr. Patel on July
24, 2013, that she resigned from work the day before, after Cigna denied her disability claim.
Plaintiff complained of daily headaches, memory problems, and racing thoughts.
examination, Dr. Patel observed that Plaintiff was alert and oriented, with good memory and fair
insight. He increased Plaintiff’s dosage of Viibryd. (Id., Tr. 578).
Memorial Hospital - Physical Therapy
Plaintiff was evaluated for physical therapy on March 7, 2013, due to her complaints of
neck pain and headaches. (Id., Tr. 395). On examination, Plaintiff exhibited some weakness in
the shoulder muscles. (Id., Tr. 395–97). The therapist recommended a cervical stabilization
program to improve Plaintiff’s upper back strength and posture.
(Id., Tr. 398).
participated in three physical therapy sessions and was discharged upon “Patient request,” telling
the therapist her doctor told her to stop until she gets an MRI. (Id., Tr. 409).
Plaintiff again attended physical therapy in January and February 2014, complaining of
muscle spasms. (Id., Tr. 623–35).
Jennifer Richardson, M.D.
Plaintiff first saw rheumatologist, Dr. Richardson, on March 19, 2014, complaining of
chronic pain for years, a history of migraines, and significant stress that required her to resign
from her job after 30 years. (Id., Tr. 660–62). Findings on physical examination were generally
normal, with normal range of motion, normal muscle strength, stability in all extremities, and no
pain or abdominal tenderness on inspection. Plaintiff was oriented, with normal insight and
judgment, intact memory, and appropriate mood and affect. (Id., Tr. 665). Dr. Richardson
diagnosed fibromyalgia and recommended Lyrica. (Id., Tr. 666).
CIGNA - Long Term Disability Insurance Carrier
On July 11, 2013, Cigna informed Plaintiff that it had denied her long-term disability
claim, finding no evidence showing a mental impairment that would prevent Plaintiff from
working in her regular occupation. (Id., Tr. 684–65). Attached to the letter were forms from
Dr. Herzog indicating that Plaintiff would be absent due to treatment and or illness one to four
days each month from June 2008 through December 2012, and she would be absent on a
full-time basis during portions of February, November, and December 2012, and January,
February, May, June, and July 2013; and pay records documenting her absences. (Id., Tr.
George Schulz, Ph.D.
Dr. Schulz evaluated Plaintiff for disability purposes on May 12, 2014.
702–13). Plaintiff reported that she was disabled due to depression, anxiety, panic attacks, and
PTSD induced by her son’s deployment to Iraq. (Id., Tr. 703). Plaintiff also reported suffering
from migraines, neck spasms, jaw pain, insomnia, fibromyalgia, ulcers, rectal prolapse, nausea,
overall pain, osteoarthritis, a history of vaginal mesh surgeries, and a history of childhood abuse.
(Id.). She claimed her mental condition began to interfere with her work in 2002, and she left
her job at Honda in December 2012, after a mental breakdown. (Id., Tr. 705).
As to her daily activities, Plaintiff reported getting up at 8:00 a.m., stretching, feeding her
fish, going to appointments, and going to bed at 11:00 p.m. She participated in on-line social
networking and could do word processing and spreadsheets on a computer. She also reported
reading the newspaper and books regularly, and watching television. She did not socialize
much, but she got along well with neighbors and others. Plaintiff said her stressors include her
health, her marriage because of the vaginal mesh, her veteran son, and her mother. She reported
managing stress by reading alone. (Id., Tr. 709).
Upon examination, Dr. Schulz found that Plaintiff had a normal gait and posture. She
was alert, oriented, and responsive, with no evidence of confusion or lack of awareness. She
was cooperative and calm, with a euthymic mood; clear, organized speech; normal memory; and
no indications of anxiety.
(Id., Tr. 709–11).
unspecified depressive disorder.
(Id., Tr. 711).
Dr. Schulz diagnosed panic disorder and
He opined that although Plaintiff may
experience a subjective sense of reduced effectiveness in the area of maintaining attention and
concentration, and in maintaining persistence and pace, to perform simple tasks and to perform
multi-step tasks, objective changes at a level prompting concerns by employers are not to be
expected. (Id., Tr. 712). Dr. Schulz also opined that Plaintiff would likely have some difficulty
responding appropriately to work pressure. (Id., Tr. 713).
State Agency Assessments
Two state agency reviewers commented on Plaintiff’s mental impairments.
Rabold, Ph.D. reviewed the record On September 7, 2013, and opined that Plaintiff had mild
restrictions in her activities of daily living, moderate difficulties in maintaining social
functioning, and in maintaining concentration, persistence, or pace; with no episodes of
decompensation of an extended duration. (Id., Tr. 85). She opined that Plaintiff could perform
mildly complex tasks without fast pace or high production rates, although she would be limited
to occasional superficial interactions with coworkers, supervisors, and the general public, and she
would perform best in a predictable setting where duties are relatively static and changes can be
easily explained. (Id., Tr. 89). Dr. Rabold found Plaintiff to be only partially credible, noting
even though plaintiff reported that she has concentration and memory problems, the medical
evidence of record indicates that Plaintiff has average attention/concentration and a good
memory. She does have issues and they do interfere with her ability to work; however, they do
not render her totally disabled. (Id., Tr. 86). Tonnie Hoyle, Psy.D. made essentially the same
findings upon reconsideration of the record. (Id., Tr. 103–04).
Appeals Council Exhibits
Plaintiff submitted additional evidence to the Appeals Council following the ALJ’s
decision. (Id., Tr. 715–36). The additional evidence includes records from Shereen Hashmi,
M.D., who saw Plaintiff on May 21, 2014, for a second opinion regarding fibromyalgia and
arthritis. On examination, Dr. Hashmi noted Plaintiff appeared well, with a normal gait. She
had carpometacarpal joint osteoarthritis and a few osteophytes at the fingers. There was no joint
inflammation. Dr. Hashmi agreed that Plaintiff had fibromyalgia, noting“[f]ibromyalgia tender
points,” but found no evidence of inflammatory arthritis. (Id., Tr. 722–23).
Plaintiff saw Dr. Pulvino on March 10, 2015, due to pelvic pain and dyspareunia. (Id.,
Tr. 727). After discussing treatment options, Plaintiff declined any intervention, noting that her
issues at this point were “fairly mild.” (Id., Tr. 728–29).
On March 27, 2015, Nancy Renneker, M.D. a physical medicine and rehabilitation
specialist, examined Plaintiff pursuant to a workers’ compensation claim.
included right forearm strain, right radial nerve tunnel syndrome, and right elbow epicondylitis.
(Id., Tr. 731).
Plaintiff said that while employed at Honda, she was placed on medical
restriction due to inability to use her right arm. (Id., Tr. 732). Dr. Renneker rated Plaintiff with
a 19% whole person impairment for her right arm injury, based on decreased right arm and grip
strength. (Id., Tr. 733).
The Administrative Decision
On August 1, 2014, the ALJ issued an unfavorable decision. (Id., Tr. 26-43). The ALJ
determined that Plaintiff had the following severe impairments: depression; anxiety/panic
disorder with agoraphobia; diverticulosis; gastritis; pelvic pain status post mesh placement; and
migraines. (Id., Tr. 28). The ALJ found that she did not, however, meet the requirements of an
impairment listed in 20 CFR Subpart P, Appendix 1. (Id., Tr. 28).
The ALJ ultimately found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work.
Specifically, the ALJ found Plaintiff able to lift/carry 20 pounds
occasionally and 10 pounds frequently; stand/walk 6 hours in an 8-hour workday; and sit 6 hours
in an 8-hour workday. Plaintiff is limited to only occasional climbing of stairs and no climbing
of ladders. She is limited to frequent, as opposed to constant, crawling. She is limited to
simple, routine tasks with only occasional changes in a routine work setting, no production rate
pace, and only occasional interaction with the public, supervisors, and coworkers. (Id., Tr. 30).
The ALJ opined that because Plaintiff is limited to unskilled work, she is unable to perform her
past relevant work as an auto manufacturing coordinator. (Id., Tr. 37). The ALJ next found
that there are jobs that Plaintiff can perform such as a mail clerk, laundry worker, and molding
machine tender, which were not precluded despite his RFC finding. (Id., Tr. 37). He therefore
concluded that Plaintiff was not disabled under the Social Security Act at any time since she
attained age 18. (Id., Tr. 37–38).
STANDARD OF REVIEW
The Court’s review “is limited to determining whether the Commissioner’s decision is
supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g).
“[S]ubstantial evidence is defined as ‘more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The
Commissioner’s findings of fact must also be based upon the record as a whole. Harris v.
Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To this end, the Court must “take into account
whatever in the record fairly detracts from [the] weight” of the Commissioner’s decision.
Rhodes v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17,
On appeal, Plaintiff alleges that the ALJ erred by: (1) failing to evaluate her alleged
impairment of fibromyalgia; (2) “completely” failing to evaluate the medical source opinions and
evidence contained in the CIGNA Insurance Disability claim; (3) failing to evaluate Plaintiff’s
treating sources’ opinions from Delia Herzog, M.D., Smitha Patel, M.D., Rebecca Kelly, PT, and
Jennifer Errington, LISW-S; and (4) in failing to consider the combined impact of Plaintiff’s
impairments. (See generally Docs. 14, 18).
A. Step-Two Analysis of Fibromyalgia
In her first assignment of error, Plaintiff challenges the ALJ’s consideration of her
fibromyalgia at step two of the sequential evaluation. (Doc. 14 at 11–16). On this issue, the
ALJ noted that Plaintiff’s “doctor assessed that [she] has fibromyalgia, but there is no evidence
of at least eleven positive tender points on physical examination and there is no evidence that
other disorders that could cause the symptoms or signs were excluded, as required by SSR 12-p.”
(Id., Tr. 28). The ALJ thus concluded that Plaintiff’s “alleged fibromyalgia is not medically
determinable and has not been considered in the residual functional capacity assessment.” (Id.).
Plaintiff maintains that the ALJ’s failure to classify her fibromyalgia as a severe medical
impairment is not supported by substantial evidence.
The Commissioner responds that
Plaintiff’s diagnosis of fibromyalgia does not comport with the requirements of SSR 12-2p.
(Doc. 17 at 21–22). In particular, the Commissioner asserts that the diagnosis is unsupported by
any objective medical findings. (Id.).
SSR 12-2p and the Treating Physician Rule
The Sixth Circuit has recognized that fibromyalgia may be a “severe impairment.” See,
e.g., Preston v. Sec’y of Health and Human Servs., 854 F.2d 815, 818 (6th Cir. 1988). It is,
however, an “elusive” and “mysterious” disease without a known cause or cure. Sarchet v.
Chater, 78 F.3d 305, 306 (7th Cir. 1996). Its symptoms include severe musculoskeletal pain,
stiffness, fatigue, and multiple acute tender spots at various fixed locations on the body.
Preston, 854 F.2d at 817. The presence of these tender spots is the primary diagnostic indicator
of the disease, but there is no laboratory test for the disease’s presence or severity. Indeed,
physical examinations usually yield normal findings in terms of full range of motion, no joint
swelling, normal muscle strength, and normal neurological reactions. Id. at 818. Because
fibromyalgia is elusive, the Social Security Administration provided additional guidance on the
disease in 2012. See SSR 12-2p, 2012 SSR LEXIS 1.
Social Security Ruling 12-2p provides that the Social Security Administration “will find
that a person has an MDI of FM if the physician diagnosed FM and provides the evidence we
describe in section II.A. or section II.B., and the physician’s diagnosis is not inconsistent with the
other evidence in the person’s case record.” Id. at *4–5. Sections II.A. and II.B. include two
sets of criteria for diagnosing fibromyalgia, the 1990 American College of Rheumatology
(“ACR”) Criteria for the Classification of Fibromyalgia and the 2010 ACR Preliminary
Diagnostic Criteria. Id. The first set of criteria requires that the claimant demonstrate: (1) a
history of widespread pain; (2) at least 11 positive tender points on physical examination and the
positive tender points must be found bilaterally, on the left and right sides of the body and both
above and below the waist; and (3) evidence that other disorders, which could cause the
symptoms or signs were excluded. SSR 12-2p, 2012 SSR LEXIS 1 at *5-7 (§ II.A.1.-3. criteria).
The second set of criteria requires that the claimant demonstrate: (1) a history of widespread
pain; (2) repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring
conditions; and (3) evidence that other disorders that could cause these repeated manifestations
of symptoms, signs, or co-occurring conditions were excluded. SSR 12-2p, 2012 SSR LEXIS 1
In addition, Social Security Ruling 12-2p provides guidance regarding the documentation
needed, other sources of evidence, and what can be done if the evidence regarding fibromyalgia
is insufficient. In particular, it states:
C. When There Is Insufficient Evidence for Us To Determine Whether the Person
Has an MDI of FM or Is Disabled
1. We may take one or more actions to try to resolve the insufficiency:
a. We may recontact the person’s treating or other source(s) to see if the
information we need is available;
b. We may request additional existing records;
c. We may ask the person or others for more information; or
d. If the evidence is still insufficient to determine whether the person has an MDI
of FM or is disabled despite our efforts to obtain additional evidence, we may
make a determination or decision based on the evidence we have.
Id. at *4.
Also relevant here, the Regulations state, “[g]enerally, we give more weight to opinions
from your treating source, since these sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical impairments . . . .”
The treating physician rule “is based on the assumption that a medical
professional who has dealt with a claimant and has his [or her] maladies over a long period of
time will have a deeper insight into the medical condition of the claimant than will a person who
has examined a claimant but once, or who has only seen the claimant’s medical records.”
Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994); see Lane v. Astrue, 839 F.Supp.2d 952, 969
(6th Cir. 2012) (citing Walker v. Secretary of Health & Human Servs., 980 F.2d 1066, 1070 (6th
Cir. 1992)). An ALJ may discount a treating source opinion if she provides good reasons for the
weight assigned. See SSR 96-2p; Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir.
Plaintiff’s primary care physician, Dr. Dalia Herzog, diagnosed Plaintiff with
fibromyalgia. Plaintiff began treating with Dr. Herzog in August 2006 (id., Tr. 366), and, on
April 27, 2014, Dr. Herzog completed a “Medical Assessment of Ability to Do Work-Related
Activities (Physical).” (Id., Tr. 679–82). Dr. Herzog opined that Plaintiff could work no hours
in a day and would likely be absent due to medical impairments or treatment 31 days per month.
(Id., Tr. 679). Plaintiff could walk 2 hours during an 8-hour day, for 20 minutes at a time,
secondary to pelvic pain, fibromyalgia, and osteoarthritis. (Id.). Plaintiff could sit for 45
minutes at a time, up to 3 hours total in a workday, secondary to pelvic pain. (Id., Tr. 680).
Plaintiff could carry one to two pounds frequently and eight pounds occasionally, secondary to
radial tunnel disease and osteoarthritis. (Id.). Plaintiff could occasionally balance, stoop, and
kneel, but never climb, crouch, or crawl, secondary to pelvic pain, low back pain, and
osteoarthritis. (Id.). Plaintiff also is environmentally restricted due to radial tunnel disease,
osteoarthritis, and fibromyalgia. (Id. at 681). Dr. Herzog reported that Plaintiff also suffers
from fatigue and depression due to fibromyalgia and being diagnosed with major depressive
disorder. (Id., Tr. 682). In short, Dr. Herzog found Plaintiff’s work abilities extremely limited
and identified fibromyalgia as a partial cause.
The ALJ assigned Dr. Herzog’s opinion “little weight” for three primary reasons. First,
he discredited it because Dr. Herzog “based her opinion in part on the claimant’s fibromyalgia,
which is not medically determinable.”
(Id., Tr. 34).
This is circular reasoning—the ALJ
seemingly rejected Dr. Herzog’s diagnosis of fibromyalgia because Dr. Herzog diagnosed
Plaintiff with fibromyalgia. Second, the ALJ gave little weight to the opinion because it “is the
product of pre-printed form questionnaires, submitted to Dr. Herzog by the claimant’s attorney.”
(Id., Tr. 34). Courts have rejected this rationale for undermining a treating physician’s opinion.
See, e.g., Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1996) (“The purpose for which medical
reports are obtained does not provide a legitimate basis for rejecting them. An examining
doctor’s findings are entitled to no less weight when the examination is procured by the claimant
than when it is obtained by the Commissioner . . . .The [Commissioner] may not assume that
doctors routinely lie in order to help their patients collect disability benefits.”) (citation and
Third, the ALJ rejected Dr. Herzog’s opinion because he found the
following inconsistent: “[T]he doctor opined that the claimant could work zero hours in an
8-hour workday and would miss 31 days of work per month, but she also stated that the claimant
can stand/walk a total of 2 hours in an 8-hour day and sit for a total of 3 hours in an 8-hour
day.” (Id., Tr. 34). Those two concepts are not necessarily incompatible because Dr. Herzog
found Plaintiff limited in a variety of ways—not just in her ability to stand/walk and sit.
Accordingly, the undersigned finds the ALJ’s reasons for discounting Dr. Herzog’s opinion
Further, Dr. Herzog’s opinion does not stand alone.
In March 2014, Dr.
Richardson, a rheumatologist, also diagnosed fibromyalgia. (Id., Tr. 660). 1
Moreover, courts have been somewhat skeptical when treating physician opinions
regarding fibromyalgia have been rejected. The Second Circuit in Green–Younger v. Barnhart,
335 F.3d 99, reversed a district court decision in a fibromyalgia case because the ALJ failed to
give controlling weight to the assessment of a treating physician.
The Court rejected the
Commissioner’s arguments that the treating physician’s opinion regarding the limitations caused
by the claimant’s fibromyalgia constituted an opinion on the ultimate issue of legal disability, an
issue for determination by the ALJ. Id. Rather, the Court concluded that the assessment
regarding the claimant’s inability to function at normal levels because of persistent severe pain,
notably the limitation on her ability to sit or stand for long periods of time, constituted an opinion
on the issue of the nature and severity of the claimant’s impairments. Id. 106–07. Under the
Regulations, such an opinion by the treating physician could be afforded controlling weight. Id.
The Court then went on to reject the ALJ’s finding that the treating physician’s opinion did not
have the support of sufficient medical evidence. In doing so, the court acknowledged that the
medically acceptable clinical and laboratory diagnostic techniques for fibromyalgia are different
from those applicable to other impairments. Id.
Shereen Hashmi, M.D., confirmed the diagnoses in May 2014, and noted “[f]ibromyalgia tender points.” (Id., Tr.
722–23). The parties dispute, however, whether this Court may consider Dr. Hashmi’s opinion. The undersigned
Of note, the Second Circuit’s Green–Younger decision relies heavily upon the decision of
the Sixth Circuit in an earlier fibromyalgia case, also relied by Plaintiff in this case, Preston v.
Secretary of Health and Human Services, 854 F.2d 815 (6th Cir. 1988). The Sixth Circuit in
Preston was one of the first courts to recognize that fibrositis, now more commonly known as
fibromyalgia, defies diagnosis or assessment by traditional medical diagnostic techniques. Id. at
819–20. In Preston, as in Green–Younger, the Sixth Circuit reversed the district court because it
found that the ALJ’s rejection of the treating physician’s opinion constituted reversible error.
Given the nature of the disease, the Court concluded that the treating physician “had done all that
can be medically done to diagnosis Preston’s fibrositis and to support his opinion of disability.”
Id. at 820; see also Kalmbach v. Comm’r of Soc. Sec., 409 F. App’x 852, 861–62, (6th Cir. 2011)
(finding that the ALJ erred by rejecting “the treating physicians’ opinions as unsupported by
objective evidence in the record” and noting that the ALJ had a “fundamental misunderstanding
of the nature of fibromyalgia”).
The Commissioner seems to attempt to distinguish such cases by arguing that the record
here insufficiently showed that Plaintiff has fibromyalgia. (Doc. 17 at 23). Specifically, the
Commissioner states that “there are medically-accepted and recognized signs of fibromyalgia,
including tenderness at focal points, complaints of fatigue, and importantly, evidence showing
that other alternative explanations have been eliminated.” (Id. (citing Rogers v. Comm’r. of Soc.
Sec., 486 F.3d 234 (6th Cir. 2007)). The Commissioner argues that the record here is devoid of
such objective evidence.
concludes Dr. Hashmi’s opinion is not critical to the resolution of this case and consequently does not consider it
even though it supports the undersigned’s ultimate decision.
As an initial matter, the Court rejects the Commissioner’s conclusion. The record is full
of reports of pain and fatigue. But even assuming a slighter record of fibromyalgia in this case
than in the cases cited above, the undersigned concludes that the ALJ should have used the
mechanism provided for in Social Security Ruling 12-2p to resolve any insufficiency.
explained, the Regulations make clear that an ALJ can—and should—seek additional evidence
when the record on fibromyalgia is too thin.
Dr. Herzog, who specifically included the
diagnosis and treatment of fibromyalgia, treated Plaintiff continuously for over eight years.
Time and again, her examinations revealed pain. (See, e.g., id., Tr. 7, 12, 329–77, 552-74, 658,
719, 724-26). Dr. Herzog treated Plaintiff’s fibromyalgia with physical therapy and medication
to no avail—the treatments gave Plaintiff no more than short-term relief.
Consequently, Dr. Herzog’s records and Dr. Richardson’s confirmatory opinion were enough for
the ALJ to need to consider fibromyalgia more completely.
The Commissioner additionally argues that Plaintiff’s lack of credibility supports the
ALJ’s decision to classify fibromyalgia as non-severe.
That, however, was not the ALJ’s
rationale. He made no mention of Plaintiff’s credibility at step two, instead reserving that
discussion for his RFC analysis. (Id. at 28; id. at 31–32). Indeed, the ALJ found Plaintiff not
credible at step four, in part, because he found her allegations of physical pain inconsistent with
the “objective and clinical evidence.” (Id. at 32). By that point, however, the ALJ already had
concluded that Plaintiff’s fibromyalgia was non-severe. Moreover, considering the record as a
whole, the undersigned finds the attacks on Plaintiff’s credibility inadequate to save the ALJ’s
step-two analysis regarding fibromyalgia.
For these reasons, the ALJ’s consideration of Plaintiff’s fibromyalgia is inconsistent with
the legal standards applicable for determining the weight to be given to treating physicians’
opinions in fibromyalgia cases and lacks the support of substantial evidence. Consequently, the
undersigned recommends remand.
B. Remaining Assignments of Error
Plaintiff raises three additional assignments of error. The Court’s decision to reverse and
remand on Plaintiff’s first assignment of error alleviates the need for analysis of Plaintiff’s
remaining assignments of error. Nevertheless, on remand, the ALJ may consider Plaintiff’s
remaining assignments of error if appropriate.
For the foregoing reasons, the undersigned RECOMMENDS that Plaintiff’s Statement
of Errors be SUSTAINED and the case be REMANDED to the Commissioner pursuant to 42
U.S.C. § 405(g), Sentence Four for reconsideration of Plaintiff’s alleged fibromyalgia.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed finding or recommendations to which objection is made, together with
supporting authority for the objection(s). A District Judge of this Court shall make a de novo
determination of those portions of the Report or specific proposed findings or recommendations
to which objection is made. Upon proper objection, a District Judge of this Court may accept,
reject, or modify, in whole or in part, the findings or recommendations made herein, may receive
further evidence or may recommit this matter to the Magistrate Judge with instructions. 28
U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: May 31, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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