Herzog v. Commissioner of Social Security

Filing 22

ORDER adopting Report and Recommendations re 19 Report and Recommendations.. Signed by Judge James L. Graham on 9/28/2017. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robin Herzog,
Plaintiff,
v.

Case No. 2:16-cv-244

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Robin Herzog brings this action under 42 U.S.C.
§§405(g) for review of a final decision of the Commissioner of
Social

Security

(“Commissioner”)

disability insurance benefits.

denying

her

application

for

Plaintiff, who is now fifty-five

years old, was employed at Honda for thirty years as an auto
manufacturing coordinator.

She left her employment in December of

2012 due to major depressive disorder and panic disorder with
agoraphobia, as well as various physical conditions, including
migraine headaches.

In a decision dated August 1, 2014, the

administrative law judge (“ALJ”) found at step two of the five-step
analysis

required

plaintiff

had

under

severe

the

social

impairments

security
consisting

regulations
of

that

depression,

anxiety/panic disorder with agoraphobia, diverticulosis, gastritis,
pelvic pain status post vaginal mesh placement, and migraines.
PAGEID 68.

The ALJ found that plaintiff’s residual functional

capacity (“RFC”) would permit her to do light work, with further
restrictions that
the claimant is 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.
The
claimant 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 interaction
with the public, supervisors, and coworkers.
PAGEID 70. After considering the testimony of a vocational expert,
the ALJ decided that there were jobs which plaintiff could perform
and that plaintiff was not disabled.
This

matter

is

before

the

PAGEID 77-78.
court

for

consideration

of

defendant’s June 12, 2017, objections to the May 31, 2017, report
and recommendation of the magistrate judge recommending that the
plaintiff’s first assignment of error be sustained and that the
case

be

remanded

to

the

Commissioner

plaintiff’s alleged fibromyalgia.

for

reconsideration

of

Plaintiff has filed a reply to

the objections.
I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations

to

which

objection

is

made.”

§ 636(b)(1); see also Fed. R. Civ. P. 72(b).

28

U.S.C.

Upon review, the

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

U.S.C. § 636(b)(1).
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.’”

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

2

Security as to any fact, if supported by substantial evidence,
shall be conclusive.”).

Put another way, a decision supported by

substantial evidence is not subject to reversal, even if the
reviewing court might arrive at a different conclusion.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

Mullen v.

Even if supported by

substantial evidence, however, “‘a decision of the Commissioner
will not be upheld where the [Commissioner] fails to follow its own
regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial right.’”

Rabbers

v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
II. Objection
Defendant objects to the magistrate judge’s recommendation
that

this

case

be

remanded

to

the

Commissioner

for

further

consideration of whether plaintiff’s alleged fibromyalgia is a
medically determinable impairment and a severe impairment.

In her

first assignment of error, plaintiff asserted that the ALJ erred in
failing to classify her fibromyalgia as a severe medical impairment
at step two of the five-step analysis required under 20 C.F.R.
§404.1520(a)(4)(ii).

Step

two

is

the

means

by

which

the

Commissioner screens out totally groundless claims, see Farris v.
Sec’y of Health & Human Servs., 773 F.2d 85, 89 (6th Cir. 1985),
and is a “de minimis hurdle,” see Higgs v. Bowen, 880 F.2d 860, 862
(6th Cir. 1988).1

Plaintiff bears the burden at step two of

1

Defendant argues that the failure to categorize
fibromyalgia as a severe impairment was not prejudicial error
because the ALJ found other severe impairments at step two. See
Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir.
2009)(where ALJ finds at least one severe impairment and
considers all of claimant’s impairments in the remaining steps of
3

proving

the

impairment.

existence

of

a

severe,

medically

determinable

See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474

(6th Cir. 2003).
Consideration of whether a claimant’s fibromyalgia qualifies
as a medically determinable impairment, that is, one which can be
the basis for a disability finding under 42 U.S.C. §423(d)(1)(A),
is governed by SSR 12-2P, 2012 WL 3104869 (July 25, 2012).

SSR 12-

2P does not establish new law; rather, it “merely provides guidance
on how to apply pre-existing rules when faced with a claimant
asserting disability based on fibromyalgia.”

Luukkonen v. Comm’r

of Soc. Sec., 653 F. App’x 393, 399 (6th Cir. 2016).

Therefore,

case law which predates the ruling is still relevant.
Under

SSR

12-2P,

the

ALJ

cannot

rely

on

a

physician’s

diagnosis alone; rather, the evidence must document that the
physician reviewed the person’s medical history and conducted a
physical exam.
sufficient

2012 WL 3104869 at *2.

objective

evidence

to

To ensure that “there is

support

a

finding

that

the

person’s impairment(s) so limits the person’s functional abilities
that it precludes him or her from performing any substantial
gainful activity[,]” the ALJ must apply at least one of the
following: (1) the 1990 American College of Rheumatology (ACR)
Criteria for Classification of Fibromyalgia; or (2) the 2010 ACR
Preliminary Diagnostic Criteria. 2012 WL 3104869 at *2. Under the
1990 ACR criteria, fibromyalgia may be found to constitute a

the disability determination, ALJ’s failure to find additional
severe impairments at step two does not constitute reversible
error). However, this rule does not apply here, where the ALJ
stated that fibromyalgia “has not been considered in the residual
functional capacity assessment discussed below”).
4

medically determinable impairment if the claimant has: (1) a
history of widespread pain in all quadrants of the body for at
least three months; (2) at least eleven positive tender points
found bilaterally on the left and right sides of the body on
physical examination; and (3) evidence that other disorders that
could cause the symptoms were excluded.
Under

the

2010

ACR

criteria,

2012 WL 3104869 at *2-*3.

fibromyalgia

is

a

medically

determinable impairment where the following is shown: (1) a history
of widespread pain; (2) repeated manifestations of six or more
fibromyalgia symptoms or signs, such as fatigue, cognitive or
memory problems, waking unrefreshed, depression, anxiety disorder,
or irritable bowel syndrome; and (3) evidence that other disorders
that could cause the symptoms were excluded.

2012 WL 3104869 at

*3.
In challenging the ALJ’s step two determination, plaintiff
relied on the April 17, 2014, medical assessment completed by Delia
Herzog, M.D., who has been plaintiff’s primary care physician since
August

of

2006.

Dr.

Herzog

indicated

that

plaintiff

could

stand/walk for two hours and sit for three hours in an eight-hour
work

day,

that

she

would

have

various

other

physical

and

environmental restrictions due to fibromyalgia and other physical
and mental conditions, and that she was capable of working zero
days.

PAGEID 725-28.

Plaintiff argued that Dr. Herzog’s opinion

supported a finding at step two that her fibromyalgia was a severe
impairment, and that the ALJ’s three reasons for giving this
evaluation little weight were not valid.
The ALJ observed that Dr. Herzog’s opinion was on a preprinted
form,

and

concluded

that

the

form

5

was

intended

to

further

plaintiff’s litigation interests. PAGEID 74. The magistrate judge
found that it was error for the ALJ to reject the opinion on this
ground, citing a Ninth Circuit case.

Doc. 19, p. 16.

point, the court disagrees with the magistrate judge.

On this
Although

there is no per se rule regarding this type of evidence, the Sixth
Circuit has cast doubt on the usefulness of check-box forms where
the

physician

findings.

fails

to

give

any

explanation

for

his

or

her

See Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468,

474-75 (6th Cir. 2016)(ALJ’s erroneous consideration of treating
physician’s check-box analysis was harmless error where the form
was unaccompanied by any explanation and was weak evidence at best
that “meets our patently deficient standard”); Walters v. Comm’r of
Soc. Sec., 127 F.3d 525, 530 (6th Cir. 1997)(treating physician’s
mere documentation of impairments was not sufficient to support his
opinion that claimant could not perform past job).
provide

medical

findings

which

supported

her

When asked to
assessment

of

plaintiff’s physical limitations, Dr. Herzog simply noted her
diagnoses of fibromyalgia and other conditions, with no further
explanation.

Dr.

Herzog’s

reasoning

regarding

plaintiff’s

functional limitations is not supplied in her treatment notes. The
ALJ did not err in discounting Dr. Herzog’s opinion on this ground.
The ALJ also commented that it was inconsistent for Dr. Herzog
to state that plaintiff could work zero hours but could stand/walk
for two hours and sit for three hours in an eight-hour day.
74.

PAGEID

Apparently the ALJ read the latter part of the evaluation as

suggesting that plaintiff was capable of working at least five
hours per day.

Although this is a good example of how check-box

forms can be a source of confusion,

6

the court agrees with the

observation of the magistrate judge that Dr. Herzog’s findings are
not necessarily inconsistent.

See Doc. 19, pp. 16-17.

Plaintiff

could be capable of standing/walking and sitting for five hours,
yet still be unable to work due to her various impairments.
Further, plaintiff’s ability to stand/walk and sit for only a total
of five hours in an eight-hour work day would preclude her from
sustaining full-time employment, and therefore, for disability
purposes, she could work zero hours.
Plaintiff also challenges the ALJ’s decision to give Dr.
Herzog’s opinion less weight “because she based her opinion in part
on

the

claimant’s

fibromyalgia,

which

is

not

medically

determinable.” PAGEID 74. The magistrate judge concluded that the
ALJ’s rejection of Dr. Herzog’s diagnosis of fibromyalgia because
Dr.

Herzog

diagnosed

circular reasoning.

plaintiff

with

Doc. 19, p. 16.

fibromyalgia

was

invalid

The ALJ’s discussion of Dr.

Herzog’s opinion is included in his step four evaluation, where he
was required to determine the impact of plaintiff’s impairments on
her ability to work.

In that context, the statement makes sense.

By

ALJ

step

four,

the

had

found

that

plaintiff’s

alleged

fibromyalgia was not a medically determinable impairment, which
meant that he was not required to consider it in making the RFC
determination. However, the court agrees with the magistrate judge
that the mere fact that Dr. Herzog diagnosed plaintiff as having
fibromyalgia would not be a valid reason for discounting her
opinion

at

step

two

of

the

evaluation

in

deciding

whether

plaintiff’s fibromyalgia was a medically determinable impairment.
In short, plaintiff’s arguments concerning the ALJ’s reasons for
assigning Dr. Herzog’s evaluation little weight are well taken in

7

part.
Defendant also argued that the ALJ’s step two decision is
supported by his findings regarding plaintiff’s lack of credibility
concerning the severity of her symptoms.
decisional

process,

the

ALJ

noted

At step four of the

that

plaintiff

provided

inconsistent statements concerning the frequency of her migraine
headaches.

PAGEID 71.

The ALJ also found that plaintiff’s

allegations concerning her functional limitations were inconsistent
with her daily activities and with objective medical evidence in
the record.

The ALJ did not expressly incorporate this analysis

into his step two discussion, so it is not clear to what extent it
may have influenced his step two decision. The possibility that it
did is a cause for concern, as some of his stated reasons for
discounting the severity of plaintiff’s symptoms run counter to the
nature of fibromyalgia.
The Sixth Circuit has noted that “unlike medical conditions
that can be confirmed by objective testing, fibromyalgia patients
present no objectively alarming signs.”

Rogers, 486 F.3d at 243.

The ALJ noted records indicating that plaintiff had a normal range
of motion and normal muscle strength.

PAGEID 73.

However,

fibromyalgia patients demonstrate normal muscle strength and can
have a full range of motion.

Minor v. Comm’r of Soc. Sec., 513 F.

App’x 417, 434 (6th Cir. 2013).

Evidence that plaintiff walks

normally without the use of an assistive device, see PAGEID 71,
while relevant to the degree of impairment, does not preclude a
fibromyalgia diagnosis.

The ALJ also noted plaintiff’s daily

activities, which included preparing simple meals, cleaning and
doing laundry, watching television, walking, visiting her mother at

8

a retirement center, driving, reading and using the computer.
However, as the Sixth Circuit has noted in cases involving similar
activities, these daily functions are not comparable to typical
work activities.

See Kalmbach v. Comm’r of Soc. Sec., 409 F. App’x

852, 864 (6th Cir. 2011); Rogers, 486 F.3d at 248.
Defendant also contends that, regardless of whether the ALJ
erred in his consideration of Dr. Herzog’s opinion, he correctly
found that the evidence in the record fails to satisfy the 1990 ACR
criteria

for

finding

that

plaintiff’s

alleged

fibromyalgia

qualifies as a medically determinable impairment.

In addition to

evidence

also

satisfying

these

criteria,

SSR

12-2P

requires

evidence that the physician reviewed the person’s medical history
and conducted a physical exam.

SSR 12-2P, 2012 WL 3104869 at *2-

*3.
Looking to the 1990 ACR diagnostic criteria, the court notes
that plaintiff’s medical records do document a long history of
widespread pain.

Although the ALJ stated that there was no

evidence that other disorders that could cause the

symptoms or

signs of fibromyalgia were excluded, see PAGEID 68, that is not
entirely accurate.
cervical

spine

MRI

For example, the ALJ himself noted that a 2013
was

normal,

see

PAGEID

73,

and

that

Dr.

Richardson did not include arthritis as a diagnosis in her March
19. 2014, report, see PAGEID 74.

As to the remaining factor in the

1990 ACR criteria, the ALJ correctly noted that there was no
evidence of at least eleven positive tender points on physical
examination.2

The first fibromyalgia diagnosis in plaintiff’s

2

Plaintiff submitted additional evidence to the Appeals
Council consisting of the May 21, 2014, report of Shereen Hashmi,
9

treatment records is found in Dr. Herzog’s progress notes for
February 19, 2014, which do not indicate whether Dr. Herzog
conducted a physical exam.

The record also includes the report of

Jennifer Richardson, M.D., a rheumatologist who examined plaintiff
on

March

19,

2014.

Exhibit

20F.

Dr.

Richardson

diagnosed

plaintiff with fibromyalgia, but stated that there was no pain on
inspection.3

Exhibit 20 F, pp. 7-8.

The court agrees with

defendant that the evidence in the record does not clearly indicate
that the SSR 12-2P 1990 ACR criteria are satisfied in this case.
The next issue is whether the magistrate judge correctly
concluded that remand was appropriate because the ALJ should have
employed the mechanisms available for supplementing the record.
Doc. 19, p. 19.

SSR 12-2P states that “[i]n cases involving

[fibromyalgia], as in any case, we will make every reasonable
effort

to

obtain

all

available,

relevant

evidence

to

ensure

M.D., a rheumatologist, who diagnosed plaintiff as having
fibromyalgia, noting “[f]ibromyalgia tender points.” Exhibit
26F, PAGEID 768-69. Because this evidence was submitted to the
Appeals Council after the ALJ’s decision, it cannot be considered
part of the record for purposes of determining whether the ALJ’s
decision is supported by substantial evidence. Foster v. Halter,
279 F.3d 348, 357 (6th Cir. 2001). However, where new evidence
is made a part of the record by the Appeals Council, it is
appropriate for the ALJ to consider it when reevaluating evidence
on remand. Cox v. Comm’r of Soc. Sec., 615 F. App’x 254, 263
(6th Cir. 2015).
3

This lack of positive tender points during Dr.
Richardson’s examination does not preclude a fibromyalgia
diagnosis. SSR 12-2P recognizes that “the symptoms and signs of
[fibromyalgia] may vary in severity over time and may even be
absent on some days” and cautions that it is important that a
medical source who conducts a consultative examination have
access to longitudinal information about the claimant. SSR 122P, 2012 WL 3104869 at *5.
10

appropriate and thorough evaluation.”

SSR 12-2P, 2012 WL 3104869

at *3. The ruling further provides that when there is insufficient
evidence to determine whether a person has fibromyalgia, the agency
“may

take

one

or

more

actions

to

try

to

resolve

the

insufficiency[,]” including contacting the treating physician and
other medical sources to see if more information is available,
requesting additional existing records, asking the claimant or
others

for

more

examination.
The

information,

and

purchasing

a

consultative

2012 WL 3104869 at *4.

court

recognizes

that

the

ruling

is

phrased

in

discretionary terms, and that the “ALJ has discretion to determine
whether further evidence, such as additional testing or expert
testimony, is necessary.”

Foster, 279 F.3d at 355.

The ALJ had no

“special, heightened duty to develop the record” in this case
because plaintiff was represented by counsel.

See Nabours v.

Comm’r of Soc. Sec., 50 F. App’x 272, 275 (6th Cir. 2002)(emphasis
supplied).

It is not error to fail to obtain additional evidence

where the record contains a “considerable amount of evidence”
pertaining to the claimant’s limitations.

Culp v. Comm’r of Soc.

Sec., 529 F. App’x 750, 751 (6th Cir. 2013).

However, the ALJ has

the ultimate responsibility to ensure that a claimant receives a
full and fair hearing.
(1971).

Richardson v. Perales, 402 U.S. 389, 411

That responsibility includes a duty to fully and fairly

develop the record. See Johnson v. Sec’y of Health & Human Servs.,
794 F.2d 1106, 1111 (6th Cir. 1986).
discretion

to

obtain

additional

The failure to exercise the

evidence

inadequate is a ground for reversal.

the

record

is

Ward v. Comm’r of Soc. Sec.,

198 F.Supp.3d 825, 830 (S.D. Ohio 2016).

11

when

The court agrees with the magistrate judge that the ALJ should
have employed one or more of the options available under SSR 12-2P
for supplementing the record, and that his failure to do so in this
case was an abuse of discretion warranting remand. The court notes
that although there is medical evidence in the record relating to
plaintiff’s treatment for her various symptoms, including pain,
fatigue, depression, and anxiety disorder, which could be symptoms,
signs, or co-occurring conditions of fibromyalgia, the fibromyalgia
diagnosis was a fairly recent one.

Dr. Herzog first recorded the

fibromyalgia diagnosis in her February 19, 2014, treatment notes,
and Dr. Richardson, a specialist in rheumatology, conducted a
physical examination and diagnosed plaintiff with fibromyalgia on
March 19, 2014.

These records should have alerted the ALJ to the

fact that plaintiff’s physicians were just beginning to evaluate
plaintiff’s

conditions

through

the

lens

of

fibromyalgia.

Plaintiff’s physicians could have been contacted to flesh out the
records

concerning

this

new

diagnosis,

including

information

concerning the existence of positive tender points.

On May 21,

2014, plaintiff was also diagnosed with fibromyalgia by Dr. Hashmi,
who noted “[f]ibromyalgia tender points” upon physical examination.
If the ALJ had asked plaintiff for additional records bearing on
his step two analysis, plaintiff could have provided Dr. Hashmi’s
report, which was an “existing record” predating the ALJ’s August
1, 2014, decision.

See 2012 WL 3104869 at *4.

The court also notes that if the record does not include a
report

of

tender-point

testing,

SSR

12-2P

permits

using

the

alternative factor in the 2010 criteria, that being the existence
of repeated manifestations of six or more fibromyalgia symptoms,

12

signs, or co-occurring conditions.
*3, n. 6.

SSR 12-2P, 2012 WL 3104869 at

The ALJ did not perform this alternative analysis under

the 2010 criteria.
plaintiff
disorder,

has

The medical records indicate, at minimum, that

suffered

which

could

from

fatigue,

potentially

depression,
qualify

as

and

anxiety

co-occurring

conditions in her case. The ALJ should have asked plaintiff and/or
her physicians for additional information or for clarification of
the existing records which may have assisted him in applying the
alternative criteria.
The court concludes that this case should be remanded to the
Commissioner so that additional evidence can be requested by and
presented to the ALJ on the issue of whether plaintiff’s alleged
fibromyalgia is a medically determinable impairment, and, if it is,
whether it is a severe impairment.
recommendation

based

on

the

first

In light of the remand
assignment

of

error,

the

magistrate judge did not discuss plaintiff’s other assignments of
error.

Because this case will be remanded, this court will not

address the remaining claims of error.

The court emphasizes that

in remanding this case, it has made no ruling on the merits of
whether

plaintiff’s

fibromyalgia

is

a

medically

impairment or a severe or nonsevere impairment.

determinable

These issues are

for the ALJ to decide on remand.
III. Conclusion
In accordance with the foregoing, the court adopts in part the
magistrate judge’s report and recommendation (Doc. 19).

Pursuant

to 42 U.S.C. §405, sentence four, the decision of the Commissioner
is reversed, and this matter is remanded to the Commissioner. Upon
remand, the ALJ shall solicit and receive additional evidence and

13

shall

give

fibromyalgia.

further

consideration

to

plaintiff’s

alleged

The clerk shall enter final judgment remanding this

case to the Commissioner.
It is so ordered.

Date: September 28, 2017

s/James L. Graham
James L. Graham
United States District Judge

14