Herzog v. Commissioner of Social Security
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
Case No. 2:16-cv-244
Plaintiff Robin Herzog brings this action under 42 U.S.C.
§§405(g) for review of a final decision of the Commissioner of
disability insurance benefits.
Plaintiff, who is now fifty-five
years old, was employed at Honda for thirty years as an auto
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
In a decision dated August 1, 2014, the
administrative law judge (“ALJ”) found at step two of the five-step
anxiety/panic disorder with agoraphobia, diverticulosis, gastritis,
pelvic pain status post vaginal mesh placement, and migraines.
The ALJ found that plaintiff’s residual functional
capacity (“RFC”) would permit her to do light work, with further
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.
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.
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
plaintiff’s alleged fibromyalgia.
Plaintiff has filed a reply to
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
§ 636(b)(1); see also Fed. R. Civ. P. 72(b).
Upon review, the
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
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
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).
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.’”
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)).
Defendant objects to the magistrate judge’s recommendation
consideration of whether plaintiff’s alleged fibromyalgia is a
medically determinable impairment and a severe impairment.
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.
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
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
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).
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).
case law which predates the ruling is still relevant.
diagnosis alone; rather, the evidence must document that the
physician reviewed the person’s medical history and conducted a
2012 WL 3104869 at *2.
To ensure that “there is
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”).
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.
2012 WL 3104869 at *2-*3.
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
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
stand/walk for two hours and sit for three hours in an eight-hour
environmental restrictions due to fibromyalgia and other physical
and mental conditions, and that she was capable of working zero
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
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.
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
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).
When asked to
plaintiff’s physical limitations, Dr. Herzog simply noted her
diagnoses of fibromyalgia and other conditions, with no further
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.
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,
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.
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
determinable.” PAGEID 74. The magistrate judge concluded that the
ALJ’s rejection of Dr. Herzog’s diagnosis of fibromyalgia because
Doc. 19, p. 16.
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.
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
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
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.
At step four of the
inconsistent statements concerning the frequency of her migraine
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 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.
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
The ALJ also noted plaintiff’s daily
activities, which included preparing simple meals, cleaning and
doing laundry, watching television, walking, visiting her mother at
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
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
qualifies as a medically determinable impairment.
In addition to
evidence that the physician reviewed the person’s medical history
and conducted a physical exam.
SSR 12-2P, 2012 WL 3104869 at *2-
Looking to the 1990 ACR diagnostic criteria, the court notes
that plaintiff’s medical records do document a long history of
Although the ALJ stated that there was no
evidence that other disorders that could cause the
signs of fibromyalgia were excluded, see PAGEID 68, that is not
For example, the ALJ himself noted that a 2013
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
The first fibromyalgia diagnosis in plaintiff’s
Plaintiff submitted additional evidence to the Appeals
Council consisting of the May 21, 2014, report of Shereen Hashmi,
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
plaintiff with fibromyalgia, but stated that there was no pain on
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
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).
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.
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
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
2012 WL 3104869 at *4.
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
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.
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).
The failure to exercise the
inadequate is a ground for reversal.
Ward v. Comm’r of Soc. Sec.,
198 F.Supp.3d 825, 830 (S.D. Ohio 2016).
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 physicians could have been contacted to flesh out the
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
alternative factor in the 2010 criteria, that being the existence
of repeated manifestations of six or more fibromyalgia symptoms,
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.
The medical records indicate, at minimum, that
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
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.
In light of the remand
magistrate judge did not discuss plaintiff’s other assignments of
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
impairment or a severe or nonsevere impairment.
These issues are
for the ALJ to decide on remand.
In accordance with the foregoing, the court adopts in part the
magistrate judge’s report and recommendation (Doc. 19).
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
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
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