Brown v. Commissioner of Social Security Administration

Filing 27

ORDER reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the action for further administrative proceedings. Signed by Magistrate Judge Shiva V. Hodges on 07/06/2015. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Trenisha Shetah Brown,
Plaintiff,
vs.
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:14-3472-SVH

ORDER

This appeal from a denial of social security benefits is before the court for a final

order pursuant to 28 U.S.C. § 636(c), Local Civ. Rule 73.01(B) (D.S.C.), and the order of
the Honorable Joseph F. Anderson, Jr., dated September 3, 2014, referring this matter for
disposition. [ECF No. 11]. The parties consented to the undersigned United States
Magistrate Judge’s disposition of this case, with any appeal directly to the Fourth Circuit
Court of Appeals.
Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act
(“the Act”) to obtain judicial review of the final decision of the Commissioner of Social
Security (“Commissioner”) denying the claim for disability insurance benefits (“DIB”)
and Supplemental Security Income (“SSI”). The two issues before the court are whether
the Commissioner’s findings of fact are supported by substantial evidence and whether
she applied the proper legal standards. For the reasons that follow, the court reverses and
remands the Commissioner’s decision for further proceedings as set forth herein.

I.

Relevant Background
A.

Procedural History

On August 3, 2011, Plaintiff filed applications for DIB and SSI in which she
alleged her disability began on February 6, 2011. Tr. at 77, 150–51. Her applications
were denied initially and upon reconsideration. Tr. at 85–89, 93–95. On May 1, 2013,
Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Frances W. Williams.
Tr. at 28–65 (Hr’g Tr.). The ALJ issued an unfavorable decision on June 27, 2013,
finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 9–27.
Subsequently, the Appeals Council denied Plaintiff’s request for review, making the
ALJ’s decision the final decision of the Commissioner for purposes of judicial review.
Tr. at 1–5. Thereafter, Plaintiff brought this action seeking judicial review of the
Commissioner’s decision in a complaint filed on August 28, 2014. [ECF No. 1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 38 years old at the time of the hearing. Tr. at 32. She completed high
school and a little over a year of college. Tr. at 34. Her past relevant work (“PRW”) was
as a customer service representative, a group leader, and a customer complaint clerk. Tr.
at 60–61. She alleges she has been unable to work since February 6, 2011. Tr. at 35.
2.

Medical History

Plaintiff was diagnosed with Graves disease and underwent thyroid radiation
therapy at age 22. Tr. at 454.

2

Plaintiff visited David H. Hammett, M.D. (“Dr. Hammett”), for intractable
headaches on November 18, 2009. Tr. at 356. Dr. Hammett diagnosed intractable
migraines and cervical muscle spasms and pain, including occipital neuralgia. Id. He
recommended Triptan medications and Phenergan or Zofran, as needed, for nausea. Id.
Plaintiff presented to John F. Mattei, M.D. (“Dr. Mattei”), for neck pain and
shoulder spasms on July 7, 2010. Tr. at 370. Dr. Mattei assessed discogenic cervical pain.
Id. He used electrical muscle stimulation, myofascial release, joint mobilization, and
mechanical traction. Id.
On July 20, 2010, Plaintiff presented to Stephen Tuel, M.D. (“Dr. Tuel”), with
neck pain, numbness, and tingling radiating to her bilateral upper extremities. Tr. at 290.
Foraminal compression test and Spurling’s test were abnormal bilaterally. Id. Plaintiff
had hypesthesia bilaterally at C6-7. Id. Her deep tendon reflexes were intact and equal.
Id. She had positive Tinel’s and Phalen’s tests. Id. Electrodiagnostic testing revealed
decreased amplitude of the right median and bilateral ulnar motor nerves. Id. Her left
median sensory nerve showed decreased conduction velocity. Id. Dr. Tuel indicated the
testing revealed evidence of bilateral median nerve entrapment at the wrist (carpal tunnel
syndrome) and ulnar neuropathy. Id. He recommended conservative treatment to include
manual medicine and possible injection therapy. Id.
Plaintiff underwent diagnostic laparoscopy with lysis of adhesions and right partial
oophorectomy on August 4, 2010, after experiencing severe abdominal pain. Tr. at 264–
65.

3

Plaintiff presented to Dr. Mattei for cervical pain and cervical brachial syndrome
on August 26, 2011. Tr. at 321. Dr. Mattei noted bilateral trap spasm, levator scapular
spasm, and cervical paraspinal spasm. Id. He observed Plaintiff to have positive Phalen’s,
Tinel’s, and carpal pressure. Id. Plaintiff demonstrated reduced cervical range of motion
(“ROM”). Id. Dr. Mattei indicated Plaintiff was scheduled for a breast reduction surgery
and that he would inject her wrists after the surgery. Id.
On January 31, 2011, Plaintiff presented to Michael S. Green, M.D. (“Dr. Green”),
for bilateral wrist pain and numbness and tingling in her fingers. Tr. at 283–84. Dr. Green
indicated an electromyography (“EMG”) and nerve conduction studies (“NCS”) were
difficult to interpret because they showed very low amplitudes with normal latencies. Tr.
at 283. Plaintiff had full ROM of her interphalangeal (“IP”) joints, no thenar eminence
atrophy, negative Tinel’s sign, and positive Phalen’s sign. Tr. at 284. Dr. Green injected
Plaintiff’s carpal tunnel with Celestone and Xylocaine. Id. He assessed bilateral carpal
tunnel syndrome. Id.
On February 9, 2011, Plaintiff presented to Sean Fuller, M.D. (“Dr. Fuller”), for
neck pain. Tr. at 278–79. Dr. Fuller referred her for an MRI. Tr. at 279. The MRI
indicated very mild degenerative disc disease of the cervical spine without significant
compressive sequela; no more than minimal central canal stenosis and no more than mild
bilateral foraminal stenosis at any level; and a mild diffuse disc bulge at T1-2 resulting in
mild stenosis and mild bilateral foraminal stenosis. Tr. at 280–81.

4

An EMG on February 23, 2011, showed no sign of left or right carpal or cubital
tunnel syndrome and did not suggest generalized polyneuropathy or cervical
radiculopathy. Tr. at 286–87.
Plaintiff presented to Brett C. Gunter, M.D. (“Dr. Gunter”), for a neurosurgical
consultation on March 2, 2011. Tr. at 273–74. She complained of left neck, shoulder, and
arm pain, bilateral hand numbness, and daily headaches. Tr. at 273. Dr. Gunter observed
Plaintiff to have loss of ROM in her neck and back. Id. Plaintiff had normal muscle
strength in her bilateral upper and lower extremities, intact sensation to light touch, and
symmetric and intact reflexes. Tr. at 274. A cervical MRI showed a left herniated nucleus
pulposis in a large foramen at C6-7. Id. Dr. Gunter diagnosed presumed left C7
radiculopathy with significant additional neurological symptoms. Id. He recommended
pain management and cervical epidural steroid injection. Id.
Plaintiff was examined by Eva Jane Rawl, M.D. (“Dr. Rawl”), at Carolina Spine
Center on March 8, 2011. Tr. at 271–72. She complained of chronic neck pain that
radiated between her shoulder blades, across her left shoulder, and into her left arm. Tr. at
271. She endorsed neck pain with extension, flexion, and lateral rotation of her neck. Tr.
at 272. Plaintiff demonstrated point tenderness to deep palpation in her paraspinous
muscles. Id. An MRI indicated minimal disc bulge that was slightly asymmetric to the
right, but did not compress the cord or cause stenosis. Id. Dr. Rawl discussed with
Plaintiff possible epidural steroid injections and Plaintiff expressed a desire to proceed
with them. Id.

5

Plaintiff followed up with Dr. Green on March 25, 2011, to discuss the EMG and
NCS results. Tr. at 288–89. Dr. Green assured Plaintiff that she did not have carpal tunnel
syndrome and indicated no need for surgery. Tr. at 289. He recommended Plaintiff
pursue cervical rehabilitation and physical therapy. Id.
Plaintiff presented to Dr. Fuller with lower back pain on May 3, 2011. Tr. at 319.
On June 8, 2011, Dr. Fuller indicated Plaintiff had positive results for chronic fatigue
syndrome. Tr. at 317. On June 14, 2011, Plaintiff presented to Dr. Fuller with an elevated
temperature of 100.4 degrees. Tr. at 315. Dr. Fuller diagnosed chronic fatigue, other
malaise and fatigue, and myalgia and myositis. Tr. at 316. He noted Plaintiff had a
positive ANA test and referred her to a rheumatologist. Id.
Plaintiff presented to Dr. Hammett with migraine headaches and neck and back
pain on July 29, 2011. Tr. at 340. She stated her headaches occurred daily and lasted for
four or more hours. Id. Dr. Hammett prescribed 50 milligrams of Cambia and 10
milligrams of Diazepam. Id. He administered a greater occipital nerve block and
scheduled Plaintiff for a Botox injection. Tr. at 340–42.
An MRI of Plaintiff’s brain showed no abnormalities on August 4, 2011. Tr. at
343.
On August 11, 2011, Plaintiff presented to Dr. Fuller for follow up. Tr. at 309–10.
Dr. Fuller assessed chronic migraine, fibromyalgia, insomnia, and cervicalgia. Tr. at 310.
Plaintiff presented to Dr. Hammett to review her MRI results on August 19, 2011.
Tr. at 338–39. She indicated her headaches had improved since she received the occipital

6

nerve block. Tr. at 338. Dr. Hammett assessed chronic common migraine (without aura)
with intractable migraine, muscle spasm, and torticollis. Id.
On August 29, 2011, Plaintiff complained to Dr. Fuller of being tired and having a
fever for over a week. Tr. at 353. Dr. Fuller indicated Plaintiff’s temperature was slightly
elevated at 99.6 degrees. Id. Dr. Fuller assessed unspecified fever and fibromyalgia. Tr. at
354.
On September 7, 2011, Plaintiff reported to Dr. Hammett that she experienced
severe migraines that lasted for several hours on a near-daily basis. Tr. at 336. Dr.
Hammett administered Botox injections to several areas in Plaintiff’s head and neck. Tr.
at 336–37. Plaintiff followed up with Dr. Hammett for a greater occipital nerve block on
September 29, 2011. Tr. at 335.
Plaintiff presented to rheumatologist Bruce Goeckeritz, M.D. (“Dr. Goeckeritz”),
for pain and fatigue on October 26, 2011. Tr. at 324–25. Dr. Goeckeritz noted no
abnormalities on examination. Id. He indicated Plaintiff had unexplained arthralgias and
fatigue with an elevated ANA and recommended further testing for Sjogren’s syndrome
and other possible autoimmune diseases. Tr. at 325.
On November 7, 2011, Plaintiff presented to Palmetto Ophthalmology
complaining of dry and burning eyes with excessive watering. Tr. at 327–28. Kenal
Kenitkeur, M.D., diagnosed Sjogren’s syndrome and Graves disease. Tr. at 328.
Dr. Hammett administered a Botox injection to treat Plaintiff’s severe chronic
migraines on November 30, 2011. Tr. at 334.

7

Dr. Goeckeritz followed up with Dr. Fuller on December 4, 2011. Tr. at 374–75.
He indicated Plaintiff was unable to tolerate Cymbalta because of fatigue. Tr. at 374. Dr.
Goeckeritz indicated he had performed comprehensive lab work that was all negative,
including ANA test. Id. However, he indicated Plaintiff’s vitamin D level was deficient.
Id. He indicated Sjogren’s should be ruled out as a possible diagnosis and that pain and
fatigue were consistent with fibromyalgia and should be managed as such. Tr. at 375.
Plaintiff presented to Dr. Fuller with fever and lower back pain on December 5,
2011. Tr. at 347. Her temperature was elevated at 100.1 degrees. Id. She had very dry
eyes. Tr. at 348. Dr. Fuller noted that Dr. Goeckeritz said all the tests were negative, but
that the ophthalmologist was sure Plaintiff had Sjogren’s syndrome. Id. He indicated he
would refer Plaintiff to MUSC. Id.
On December 19, 2011, state agency medical consultant Robert Kukla, M.D.,
assessed Plaintiff as having the following limitations: occasionally lift and/or carry 50
pounds; frequently lift and/or carry 25 pounds; stand and/or walk about six hours in an
eight-hour workday; sit about six hours in an eight-hour workday; frequently climb
ramps/stairs,

stoop,

kneel,

crouch,

and

crawl;

and

occasionally

climb

ladders/ropes/scaffolds. Tr. at 72–74.
On December 20, 2011, state agency consultant Anna P. Williams, Ph. D.,
indicated Plaintiff had no medically-determinable mental impairment. Tr. at 71.
Plaintiff presented to Dr. Hammett with severe headaches, neck pain, and fatigue,
on December 29, 2011. Tr. at 332–33. Dr. Hammett administered a greater occipital

8

nerve block and indicated Plaintiff should follow up for a Botox injection in February. Tr.
at 330–31, 333.
Plaintiff presented to Dr. Fuller on January 5, 2012, with pink eye and lower back
pain. Tr. at 345. Her temperature was elevated at 100 degrees. Id.
On January 25, 2012, an MRI of Plaintiff’s lumbar spine indicated minor
spondylotic changes and minimal broad protrusion at T12-L1, L4-5, and L5-S1, without
significant spinal canal or foraminal compromise. Tr. at 397–98.
Plaintiff presented to MUSC’s rheumatology department for a consultation on
January 27, 2012. Tr. at 377–79. Edwin A. Smith, M.D. (“Dr. Smith”), assessed
fibromyalgia and an autoimmune condition with positive SSA, ANA, and Graves disease.
Tr. at 379. He indicated Plaintiff’s dry eyes may be due to Sjogren’s and to medications.
Id. However, on January 31, 2012, Dr. Smith received Plaintiff’s rheumatology lab
results and MRI results and called Plaintiff to inform her that all tests were negative. Tr.
at 380, 381.
Plaintiff followed up with Dr. Fuller on February 6, 2012, to discuss the MRI
results.1 Tr. at 382. Her temperature was slightly elevated at 99.7 degrees. Id.
Dr. Hammett administered Botox injections on February 22, 2012. Tr. at 436.
On February 23, 2012, state agency consultant Timothy Laskis, Ph. D., found that
Plaintiff did not have a medically-determinable mental impairment. Tr. at 83.
Plaintiff presented to Dr. Fuller on April 30, 2012, complaining of jaw pain, neck
pain, headache, and fever. Tr. at 384–86. Plaintiff complained of joint pain, muscle pain,

1

Treatment notes from this visit are mostly illegible.
9

and joint swelling, particularly in her temporomandibular joints. Tr. at 384. Dr. Fuller
indicated Plaintiff had “fairly severe fibromyalgia,” but no back pain. Id. He assessed
chronic fatigue syndrome, irritable bowel syndrome, fever of unknown origin, migraine,
and primary fibromyalgia. Tr. at 386.
On May 14, 2012, Dr. Hammett administered a greater occipital nerve block. Tr.
at 437–38. On May 25, 2012, he injected Plaintiff’s facial nerves and neck muscles with
Botox. Tr. at 439–40.
Plaintiff presented to Spencer J. Jenkins, M.D. (“Dr. Jenkins”), for abdominal pain
on June 14, 2012. Tr. at 409–10. Plaintiff complained of constipation, bloating, nausea,
and early satiety. Tr. at 409. Dr. Jenkins explained to Plaintiff that he felt her abdominal
symptoms resulted from a combination of factors, including adhesions, tight skin from
her history of tummy tuck surgery, subcutaneous and intraperitoneal adipose tissue, and
constipation. Tr. at 410. He recommended exercise and gradual weight loss; encouraged
her to keep her bowels moving with Miralax and a low dose of Benefiber; and ordered an
esophagogastroduodenoscopy (“EGD”). Id.
The EGD indicated a normal esophagus; diffuse mildly erythematous mucosa in
the stomach; and a normal duodenum. Tr. at 433. However, a stomach biopsy revealed
Heliobacter pylori (“H. pylori”) chronic active gastritis. Tr. at 434.
On July 3, 2012, Dr. Fuller noted the H. pylori finding and suggested it may be the
source of Plaintiff’s chronic pain and fevers. Tr. at 387. Plaintiff’s temperature was
elevated at 100 degrees. Tr. at 388. Dr. Fuller indicated diagnoses of chronic fatigue,
gastroesophageal reflux disease (“GERD”), migraine, osteoarthritis, and primary
10

fibromyalgia and indicated Plaintiff’s course was worsening. Tr. at 389. Plaintiff
followed up with Dr. Fuller on August 1, 2012, complaining of headache, back pain, and
achiness in her fingers. Tr. at 390. She endorsed muscle and joint pain, including new
pain in her finger joints and knees. Id. Her temperature was slightly above normal at 99.5
degrees. Tr. at 391.
Plaintiff followed up with Dr. Hammett for Botox injections on August 24, 2012.
Tr. at 441.
On August 28, 2012, Plaintiff reported to Dr. Jenkins that she was much better, but
had some mild reflux symptoms, constipation, and bloating. Tr. at 411. Dr. Jenkins
assessed Plaintiff as having H. pylori, GERD, and constipation and indicated he
suspected irritable bowel disease, as well. Tr. at 412.
Plaintiff followed up with Dr. Fuller on August 29, 2012. Tr. at 392. Dr. Fuller
noted Plaintiff had fever and fatigue and indicated the following “[a]t times, her notes on
our new EMR suggest that she has not had fever, but the actual temperature reading
always shows as HI. If any previous note has suggested no fever, she always has one, this
is an error of omission due to the new EMR.” Id. Plaintiff complained of severe, radiating
lower back pain. Id. Dr. Fuller indicated he questioned the reading of the most recent
MRI as normal because previous MRIs indicated chronic degenerative processes, which
would not have improved. Id. Plaintiff’s temperature was 99.4 degrees. Tr. at 393.
On September 25, 2012, Plaintiff presented to Dr. Hammett to review the results
of her cervical MRI. Tr. at 442. She reported improvement in her headaches with Botox
injections, but continued to report an average of two headaches per week. Id. Plaintiff’s
11

cervical ROM was mildly limited and she had some moderate dystonic muscle activity in
her cervical region. Id. Dr. Hammett prescribed Diazepam for muscle spasms. Tr. at 443.
Plaintiff complained to Dr. Spencer of bloating and early satiety on October 4,
2012. Tr. at 413. Dr. Spencer indicated he would again treat the H. pylori using
Amoxicillin, Levaquin, and Omeprazole. Tr. at 414.
On October 22, 2012, Plaintiff indicated to Dr. Fuller that the neurologist
reviewed the MRI and felt the reading was wrong. Tr. at 394. She indicated the
neurologist felt the level of arthritis in her neck and low back had increased. Id. She also
reported joint pain and swelling in her hands. Id.
Plaintiff presented to the emergency department at Providence Hospital with
abdominal pain on November 2, 2012. Tr. at 429. The source of her pain was not
identified, and Plaintiff was instructed to follow up with her gastroenterologist. Id.
Plaintiff again presented to Dr. Jenkins for abdominal pain on November 6, 2012.
Tr. at 415. He recommended an abdominal ultrasound and a possible CT scan. Tr. at 416.
Dr. Hammett prepared a residual functional capacity (“RFC”) assessment form on
November 16, 2012, which is detailed below. Tr. at 403–05.
Plaintiff followed up with Dr. Jenkins on December 6, 2012. Tr. at 418. Dr.
Jenkins indicated the abdominal ultrasound revealed no problems. Id. Plaintiff reported
feeling better and having no significant reflux, abdominal pain, or constipation. Id. Dr.
Jenkins ordered a urea breath test to determine whether H. pylori had been eradicated. Tr.
at 419.
On December 7, 2012, Dr. Hammett administered Botox injections. Tr. at 444.
12

Plaintiff followed up with Dr. Fuller on January 2, 2013. Tr. at 447. She reported
pain in her neck, low back, and various joints and muscles. Id.
Plaintiff underwent greater occipital nerve blocks on January 18, 2013. Tr. at 445–
46.
On February 6, 2013, Plaintiff reported fever, fatigue, decreased energy, joint pain
muscle pain, headache, anxiety, depression, and difficulty sleeping. Tr. at 450. Dr. Fuller
indicated Plaintiff’s course was worsening. Tr. at 452.
Plaintiff presented to Odette Anderson, M.D., (“Dr. Anderson”) for an initial
psychiatric consultation on March 4, 2013. Tr. at 453. She complained of feeling stressed
over the prior six-month period and reported forgetfulness, irritability, anger, depressed
mood, anxiety, and nervousness. Id. She also endorsed occasional bilateral hand tremors
and pulling out her eyelashes. Id. Dr. Anderson provisionally diagnosed Plaintiff with
adjustment disorder and indicated a need to rule out adjustment disorder with mixed
anxiety and depressed mood, major depressive disorder, anxiety disorder, impulse-control
disorders, and undifferentiated somatoform disorder. Tr. at 455. She indicated Plaintiff’s
prognosis was expected to be good given her intelligence, psychological mindedness,
motivation, and previous apparent high functioning. Id.
Plaintiff followed up with Dr. Anderson on March 26, 2013. Tr. at 460. Dr.
Anderson prescribed Percocet and Prilosec and instructed Plaintiff to follow up in one
week. Tr. at 461. On April 15, 2013, Dr. Anderson prescribed Escitalopram and Vistaril
and indicated a diagnosis of adjustment disorder. Tr. at 463.

13

C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on May 1, 2013, Plaintiff testified she was 5’3” and weighed 160
pounds. Tr. at 32. She stated she was right-handed. Id. She indicated she lived in a twostory house with her three children, ages 17, 15, and 11. Tr. at 32–33. Plaintiff denied
having difficulty climbing stairs. Tr. at 33. She confirmed she had a driver’s license and
stated she drove to the hearing. Id.
Plaintiff testified she was initially denied short-term disability benefits and
attempted to return to work, but was unsuccessful. Tr. at 35. She stated she received
short-term disability benefits from June to November 2011, but was subsequently denied
long-term disability benefits. Id.
Plaintiff testified she worked for Bank of America from 1997 to 2006 as a
customer service representative, a specialized services representative, and a claims
department representative. Tr. at 36–37. She indicated she worked as a counselor and
supervisor at a girls’ home from 2007 to 2009. Tr. at 37. She stated she moved to South
Carolina in 2009 and worked in customer service and technical support for Verizon. Id.
Plaintiff indicated she had been promoted by all of her former employers. Tr. at 51.
Plaintiff testified she stopped working in February 2011 because of a combination
of muscle spasms, migraines, fatigue, fever, and back pain. Tr. at 41. She stated she had
extreme and unexplainable exhaustion. Id. She indicated she continued to experience that
exhaustion and estimated she rested for three to four hours during the day. Tr. at 42.
14

Plaintiff testified that, at the time she stopped working, she had daily headaches with
visual disturbance that caused her to be unable to see. Id. She indicated Dr. Hammett
treated her headaches with Botox injections every three months. Tr. at 43. Plaintiff
endorsed continued headaches twice weekly, but stated the Botox had helped
tremendously. Id. Plaintiff indicated she was having muscle spasms in her neck,
shoulders, arms, and back around the time she stopped working. Tr. at 43–44. She stated
she had a breast reduction in September 2010. Tr. at 44. She indicated her recent
treatment for muscle spasms included cortisone injections and Valium. Id. She testified
she had back pain that radiated down the sides of her legs. Tr. at 45. She indicated she
had chronic dry eye and that her eyes became painful, watery, and gritty. Tr. at 46.
Plaintiff testified she was seeing a psychiatrist for depression, anxiety, and mood
disorders. Tr. at 50. She indicated that her treatment was helping to improve her
symptoms. Id. She stated she received treatment every one to two weeks. Tr. at 52. She
indicated her doctor prescribed Vistaril and another medication for her mental health
symptoms. Id.
Plaintiff testified she was prescribed Percocet for pain, which made her tired and
woozy. Tr. at 46. She indicated she could stand for no longer than 15 minutes at a time
and could walk for five to 15 minutes. Id. She stated she experienced pain in her back,
hands, arms, neck, and shoulders when attempting to lift. Tr. at 47. She indicated she had
difficulty falling asleep and often awoke because of numbness in her hands and dryness
in her eyes. Id.

15

Plaintiff testified she had seen Dr. Goeckeritz twice. Tr. at 53. She stated the first
visit was to rule out Sjogren’s and the second was to discuss lab work. Id. She indicated
her primary care physician was treating her for fibromyalgia with Savella. Tr. at 54.
Plaintiff testified she transported her children to and from activities, but was not
involved in their activities. Tr. at 57. She indicated she checked her children’s homework
to be sure they completed it correctly. Tr. at 48. She stated her children performed many
of the household chores, but she performed some light chores, as well. Tr. at 48, 57. She
testified she prepared small meals twice a week and shopped for groceries, but was
unable to perform yard work. Tr. at 57–58.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Carey A. Washington reviewed the record and testified
at the hearing. Tr. at 60–64. The VE categorized Plaintiff’s PRW as a customer service
representative as sedentary with a specific vocational preparation (“SVP”) of five and a
Dictionary of Occupation Titles (“DOT”) number of 239.362-014; a group leader as light
with a SVP of six and a DOT number of 195.227-010, and a customer complaint clerk as
sedentary with an SVP of five and a DOT number of 241.367-014. Tr. at 60–61. The ALJ
described a hypothetical individual of Plaintiff’s vocational profile who could perform
sedentary work involving lifting no more than 10 pounds occasionally and less than 10
pounds frequently and standing and walking no more than two hours out of an eight-hour
workday. Tr. at 61. She asked the VE to further assume the individual could occasionally
stoop, crouch, climb stairs and ramps, crawl, and work overhead with both upper
extremities and could never climb ladders, ropes, or scaffolds. Tr. at 60–61. The VE
16

testified that the hypothetical individual could perform Plaintiff’s PRW as a customer
service representative and a customer complaint representative. Tr. at 61. The ALJ next
asked the VE to assume that individual could not climb, stoop, kneel, crouch, or crawl;
could perform frequent, but not constant reaching, handling, fingering, and feeling; and
could not perform jobs requiring acute fine vision. Tr. at 62. The ALJ asked if such an
individual could perform Plaintiff’s PRW. Tr. at 63. The VE testified that those
limitations would allow for performance of Plaintiff’s PRW. Id. The ALJ asked the VE to
further assume the hypothetical individual would miss at least two days of work per week
because of headaches. Id. She asked if the individual could perform any jobs. Id. The VE
testified there were no jobs in the competitive labor market that an individual could
perform with such restrictions. Id.
Plaintiff’s attorney asked the VE if the jobs of customer complaint clerk and
customer service representative required above average persistence and pace. Tr. at 63.
The VE testified that the supervisors at Verizon asked employees to meet certain
specifications so there would have to be sustained concentration and the individual would
be required to meet the pace of the supervisors. Tr. at 64. Plaintiff’s attorney asked the
VE to assume the hypothetical individual would have difficulty looking at a screen on a
reliable and continuous basis. Id. He asked if that would affect the individual’s ability to
perform the jobs of customer complaint clerk and customer service representative. Id.
The VE testified that such a restriction would limit performance of Plaintiff’s PRW. Id.
Plaintiff’s attorney asked if Plaintiff’s PRW required almost constant and continuous use
of the eyes. Id. The VE testified it did. Id.
17

2.

The ALJ’s Findings

In her decision dated June 27, 2013, the ALJ made the following findings of fact
and conclusions of law:
1.
2.
3.

4.

5.

6.

7.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2016 (Ex. 4D).
The claimant has not engaged in substantial gainful activity since February
6, 2011, the alleged onset date (20 CFR 404.1571 et seq.) (Ex. 2D).
The claimant has the following severe impairments: Grave’s disease,
migraine headaches, fibromyalgia, chronic fatigue syndrome, and cervical
degenerative disc disease with brachial syndrome (20 CFR 404.1520(c)).
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
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) with no standing or walking longer than two hours out of
an eight-hour workday. The claimant can occasionally stoop, crouch, and
crawl, as those terms are defined by the Dictionary of Occupational Titles
and the Selected Characteristics of Occupations. She can occasionally
climb stairs and ramps. The claimant should never climb of ladders, ropes,
or scaffolds. She can do only occasional overhead work with both upper
extremities.
The claimant is capable of performing past relevant work as a customer
service representative and a customer complaint worker. This work does
not require the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565).
The claimant has not been under a disability, as defined in the Social
Security Act, from February 6, 2011, through the date of this decision (20
CFR 404.1520(f)).

Tr. at 14–22.
II.

Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1)

the ALJ declined to follow the treating physician rule;

18

2)

the ALJ failed to assess autoimmune and connective tissue diseases as
severe impairments and made inconsistent findings regarding Graves
disease;

3)

the ALJ did not evaluate symptoms of pain and fatigue in accordance with
SSR 96-7p;

4)

the ALJ did not assess Plaintiff’s RFC in accordance with SSR 96-8p; and

5)

the ALJ failed to perform the function-by-function analysis essential to find
that Plaintiff was able to perform PRW.

The Commissioner counters that substantial evidence supports the ALJ’s findings
and that the ALJ committed no legal error in her decision.
A.

Legal Framework
1.

The Commissioner’s Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
“disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in 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
at least 12 consecutive months.
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations
promulgated under the Act have reduced the statutory definition of disability to a series
of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983)
(discussing considerations and noting “need for efficiency” in considering disability
claims). An examiner must consider the following: (1) whether the claimant is engaged
in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that
19

impairment meets or equals an impairment included in the Listings;2 (4) whether such
impairment prevents claimant from performing PRW;3 and (5) whether the impairment
prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520,
416.920. These considerations are sometimes referred to as the “five steps” of the
Commissioner’s disability analysis. If a decision regarding disability may be made at any
step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)
(providing that if Commissioner can find claimant disabled or not disabled at a step,
Commissioner makes determination and does not go on to the next step).
A claimant is not disabled within the meaning of the Act if she can return to PRW
as it is customarily performed in the economy or as the claimant actually performed the
work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security
Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing her inability
to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

2

The Commissioner’s regulations include an extensive list of impairments (“the
Listings” or “Listed impairments”) the Agency considers disabling without the need to
assess whether there are any jobs a claimant could do. The Agency considers the Listed
impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to
prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence
shows a claimant meets or equals all criteria of any of the Listed impairments for at least
one year, she will be found disabled without further assessment. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the
claimant must establish that her impairments match several specific criteria or be “at least
equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526, 416.926;
Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146
(1987) (noting the burden is on claimant to establish his impairment is disabling at Step
3). 
3
In the event the examiner does not find a claimant disabled at the third step and does not
have sufficient information about the claimant’s past relevant work to make a finding at
the fourth step, he may proceed to the fifth step of the sequential evaluation process
pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
20

Once an individual has made a prima facie showing of disability by establishing
the inability to return to PRW, the burden shifts to the Commissioner to come forward
with evidence that claimant can perform alternative work and that such work exists in the
regional economy. To satisfy that burden, the Commissioner may obtain testimony from
a VE demonstrating the existence of jobs available in the national economy that claimant
can perform despite the existence of impairments that prevent the return to PRW. Walls v.
Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden,
the claimant must then establish that she is unable to perform other work. Hall v. Harris,
658 F.2d 260, 264–65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987) (regarding burdens of proof).
2.

The Court’s Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the
Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The
scope of that federal court review is narrowly-tailored to determine whether the findings
of the Commissioner are supported by substantial evidence and whether the
Commissioner applied the proper legal standard in evaluating the claimant’s case. See
Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court’s function is not to “try these cases de novo or resolve mere conflicts in
the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir. 1971); see Pyles v.
Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345
(4th Cir. 1986)). Rather, the court must uphold the Commissioner’s decision if it is
21

supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court
must carefully scrutinize the entire record to assure there is a sound foundation for the
Commissioner’s findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157–
58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is
substantial evidence to support the decision of the Commissioner, that decision must be
affirmed “even should the court disagree with such decision.” Blalock v. Richardson,
483 F.2d 773, 775 (4th Cir. 1972).
B.

Analysis
1.

Treating Physician Rule

Plaintiff argues the ALJ erred in failing to accord controlling weight to the
opinions of her treating physicians. [ECF No. 22 at 2]. She maintains that the opinions of
Dr. Hammett and Dr. Fuller were supported by their treatment records, as well as the
treatment notes of other providers. Id. at 2–8. She contends the ALJ gave inadequate
reasons for discounting Dr. Hammett’s and Dr. Fuller’s opinions. Tr. at 8–14. She
maintains that the ALJ must cite persuasive contradictory evidence to justify a decision
not to accord controlling weight to a treating physician’s opinion. Id. at 16. She argues
that 20 C.F.R. § 404.1527(d)(2) requires an ALJ to accept a treating physician’s opinion
that is “well-supported by medically acceptable techniques” and is “not inconsistent with
other evidence” in the record. Id. Finally, Plaintiff contends that, even if the ALJ
provided substantial evidence to support her conclusion that the opinions of the treating
22

physicians were not entitled to controlling weight, he neglected to consider the factors
required for evaluating all medical opinions under 20 C.F.R. § 404.1527(c).4 Id. at 17–
18.5
The Commissioner argues the ALJ reasonably weighed the medical opinions of
record. [ECF No. 24 at 7]. She maintains the ALJ is not required to accept a treating
physician’s opinion. Id. She contends the ALJ adequately weighed the relevant factors
and concluded that Dr. Hammett’s opinion was not supported by the record. Id. at 8. She
argues Dr. Fuller’s letter is merely a generalized statement with no specific functional
limitations; concerns an issue reserved to the Commissioner; and is not supported by his
treatment notes. Id.
Medical opinions are “statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do
despite impairment(s), and your physical or mental restrictions.” SSR 96-5p, quoting 20
C.F.R. §§ 404.1527(a)(2). “An opinion that a claimant is ‘disabled’ or ‘unable to work’ is

4

Although Plaintiff cites 20 C.F.R. § 404.1527(d)(2), it is likely that this citation was
made in error. The language Plaintiff references is that found in 20 C.F.R. § 404.1527(c).
5
Plaintiff also argues the ALJ violated the provision of 20 C.F.R. § 404.1512(e) that
required her to recontact Dr. Hammett and Dr. Fuller for additional evidence and
clarification. [ECF No. 22 at 14–15]. The court declines to address this argument because
20 C.F.R. § 404.1512(e) no longer states such a requirement. Plaintiff cites the version of
20 C.F.R. § 404.1512(e) applicable prior to March 26, 2012. However, the version of 20
C.F.R. § 404.1512(e) applicable at the time of the ALJ’s decision did not include a
requirement to recontact treating physicians and other medical sources. The Social
Security Administration’s (SSA’s) duties were modified to require the agency to develop
a claimant’s medical history for at least the 12 months preceding the month in which the
application was filed; to request evidence with the claimant’s permission; and to obtain
consultative examinations if the medical record is insufficient to make a disability
determination. 20 C.F.R. § 404.1512(d), (e).
23

not a medical opinion but an administrative finding, and a physician’s opinion on this
ultimate issue is not entitled to special weight.” Dowdle v. Astrue, C/A No. 2:10-2308MBS, 2012 WL 887471, at *8 (D.S.C. March 15, 2012), citing 20 C.F.R. § 416.927(d);
see also SSR 96-5p. Although treating physicians’ opinions on issues reserved to the
Commissioner are never entitled to controlling weight, they must still be evaluated. SSR
96-5p.
The opinion of a treating physician is entitled to deference. SSR 96-2p. If a
treating source’s medical opinion is “well-supported and not inconsistent with the other
substantial evidence in the case record, it must be given controlling weight[.]” SSR 962p; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If persuasive contradictory
evidence exists, the ALJ may decline to accord controlling weight to the treating
physician’s opinion. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). However,
even if the ALJ determines a treating physician’s opinion is not entitled to controlling
weight, the treating physician’s opinion may still support a finding that the claimant is
disabled and the ALJ is required to consider the opinion, along with all other medical
opinions in the record, based on the factors set forth in 20 C.F.R. §§ 404.1527(c) and
416.927(c). SSR 96-2p. The factors to be considered include the following: examining
relationship; treatment relationship, including length of treatment relationship and
frequency of examination and nature and extent of treatment relationship; supportability
of the opinion based on the provider’s treatment record; consistency with the record as a
whole; specialization of the medical source; and other factors. 20 C.F.R. §§ 404.1527(c,
416.927(c); see also Johnson, 434 F.3d at 654. In all unfavorable and partially-favorable
24

decisions and in fully-favorable decisions based in part on treating sources’ opinions, the
ALJ must specify the weight accorded to the treating source’s opinion, cite reasons for
the weight accorded, and support her decision with evidence in the case record. SSR 962p.
a.

Dr. Hammett’s Opinion

On December 29, 2011, Dr. Hammett wrote the following:
Patient is unable to walk for more than 10 minutes without complete
exertion. She is unable to stand for more than 20 minutes and unable to sit
for longer than an hour before she becomes very fatigued. She complains
that she “hurts all over” and thinks that she is so fatigued from her
threshold of pain being reached daily. She is depressed and unable to cope
with her medical conditions and her lack of ability to perform physically.
She is unable to lift/carry greater than 20 lbs. She can not bend/reach/climb
any extended distance due to her lack of strength, moderate-severe muscle
and joint pain that is relentless in frequency. The patient is unable to work
and should be eligible for disability. She has tried and failed multiple
physical and occupational therapies. She has also participated in a
comprehensive pain management program without sufficient results.
Tr. at 332.
The ALJ indicated she granted little weight to this opinion because it was outside
Dr. Hammett’s scope of treatment. Tr. at 19. She wrote that Dr. Hammett’s opinion
centered around limitations resulting from chronic pain due to autoimmune disorder, but
he treated Plaintiff for headaches. Id. She pointed out that Dr. Hammett’s opinion was
inconsistent with Dr. Goeckeritz’s and Dr. Smith’s findings. Id. Finally, she indicated
that “rendering a claimant disabled and eligible for benefits is reserved to the
Commissioner.” Id.
On November 16, 2012, Dr. Hammett indicated Plaintiff’s basic strength was
compromised as follows: lift and/or carry 10 pounds; frequently lift and/or carry less than
25

10 pounds; unable to lift and/or carry any weight for two hours in an eight-hour day;
stand and/or walk for a total of less than two hours in an eight-hour day; sit for less than
six hours; unable to reach above shoulder level; occasionally balance; never climb, stoop,
kneel, crouch, and crawl; and limited reaching, handling, fingering, feeling, seeing, and
hearing. Tr. at 403. He described Plaintiff’s impairments as follows:
Patient has chronic pain and reaching (7), Handling (8), Fingering ([9),]
Feeling (10) are impacted and cause increased pain with repetitive and
consistant [sic] movement. Patient is extremely fatigued with minimal
exertion. Vision is often blurred, sensitive to light. Sensitive to loud noises.
(cont.) Patient is sensitive to dust, molds, pollens, trees, animal dander. Has
allergic Rhinitis and upper respiratory bronco spasm (SOB) when exposed
to these environmental allergens.
Patient has dry mouth and dry eyes secondary to Sjogren and interferes
with vision.
Tr. at 403–04. Dr. Hammett also described the principal clinical and laboratory findings
and syndrome that supported his opinion as follows:
Patient has chronic pain related to an autoimmune disorder that is
evidenced by a positive ANA and SSA. She is seeing an Rheumatologist
for treatment and has been diagnosed with Fibromyalgia and Sjogrens. We
are treating patient for Chronic Migraine with Intractable Migraine and
patient has less headache-free days than headache days. Patient has severe
neck pain and muscle spasms in the neck and shoulders with moderate to
severe dystonic muscle spasms. She has been diagnosed with Spasmotic
Torticollis. Active range of motion is limited. These diagnoses complicate
patients functioning normally. She has decreased strength and tone in upper
and lower extremities 3/5 x 4. Overcame with minimal resistance.
Tr. at 404. Dr. Hammett indicated Plaintiff has limited ability to sustain the following
mental activities and demands: understand, remember, and carry out an extensive variety
of technical and/or complex job instructions; understand, remember, and carry out
detailed but uncomplicated job instructions; understand, remember, and carry out simple
26

one- or two-step job instructions; interact with supervisors and coworkers, deal with the
public; and maintain concentration and attention. He described the effect of Plaintiff’s
mental functioning on her capacity to perform work-related activities as follows: “Patient
is only able to engage in very limited stress situations and engage in very limited
Interpersonal relations due to ineffective coping skills secondary to chronic pain,
Fatigue[,] decreased functional capacity and side effects/sedation of medications use to
manage patient’s symptoms effectively.” Tr. at 405. He indicated the medical findings
that supported his conclusions regarding Plaintiff’s mental abilities were Plaintiff’s
emotional incontinence, chronic pain secondary to fibromyalgia, chronic fatigue,
depression, and anxiety. Id.
The ALJ granted little weight to Dr. Hammett’s November 2012 opinion because
she found it to be inconsistent with the medical evidence of record as a whole and
Plaintiff’s function report. Tr. at 20.
The ALJ failed to provide sufficient reasons for her decision to grant little weight
to Dr. Hammett’s opinion. Plaintiff argues that the ALJ was required to give controlling
weight to Dr. Hammett’s opinion because it is not refuted by persuasive contradictory
evidence. [ECF No. 22 at 16]. However, the ALJ cited sufficient persuasive and
contradictory evidence by pointing out that Dr. Hammett’s opinion was outside the scope
of his treatment and inconsistent with other evidence in the record, including the findings
of both rheumatologists who examined Plaintiff. See Tr. at 19–20. While the ALJ
provided sufficient reasons for declining to accord controlling weight to Dr. Hammett’s

27

opinion statements, she did not accord to them appropriate deference under the provisions
of SSR 96-2p.
The ALJ also failed to proceed to the next required step of analyzing Dr.
Hammett’s opinions under the provisions of 20 C.F.R. §§ 404.1527(c) and 416.927(c).
While the ALJ pointed out that Dr. Hammett provided opinions on evidence outside the
scope of the treatment he provided to Plaintiff for her migraine headaches, she failed to
acknowledge the part of Dr. Hammett’s opinion that specifically referenced Plaintiff’s
limitations resulting from migraine headaches. See Tr. at 404. She also neglected to
consider the supportability of Dr. Hammett’s indication that Plaintiff continued to have
fewer headache-free days than days in which see had headaches with his records and the
consistency of his documentation of the effects of Plaintiff’s headaches with the records
of Plaintiff’s other medical providers. Compare id., with Tr. at 273 (reported daily
headaches to Dr. Gunter on March 2, 2011), 340 (informed Dr. Hammett of daily
headaches that lasted for four or more hours on July 29, 2011), 384 (complained of
headaches to Dr. Fuller on April 30, 2012), 390 (reported headaches to Dr. Fuller on
August 1, 2012), 442 (continued to report to Dr. Hammett an average of two headaches
per week on September 25, 2012), 450 (complained of headaches to Dr. Fuller on
February 6, 2013). She did not consider the nearly three-and-a-half year length of
Plaintiff’s treatment relationship with Dr. Hammett or the fact that Plaintiff visited him
for treatment every one to three months during the relevant period. Tr. at 329–43, 355–
56, 372–73, 402–07, 436–46. The ALJ also neglected to consider Dr. Hammett’s
specialization, which lends particular support to elements of his opinion having to do
28

with the effects of the impairments he treated. Plaintiff submitted evidence identifying
Dr. Hammett as a neurologist and describing his specialties as vascular neurology and
stroke, memory disorders and dementia, headache disorders, spasticity, and movementbased disorders. Tr. at 407. The SSA accords greater weight to the opinions of specialists
about medical issues relating to their areas of specialty. 20 C.F.R. §§ 404.1527(c)(5),
416.927(c)(5). Therefore, the ALJ erred in failing to consider Dr. Hammett’s field of
practice and his particular specialty in treating headache disorders. In light of the ALJ’s
failure to consider the relevant factors under 20 C.F.R. §§ 404.1527(c) and 416.927(c),
the court finds the ALJ did not properly evaluate Dr. Hammett’s opinion statements.
b.

Dr. Fuller’s Opinion

On July 6, 2011, Dr. Fuller wrote the following:
I have been Ms. Trenisha Brown’s family physician since 07/08/10. She
has had a problem since then with chronic neck pain and shoulder pain. She
has been seen by Dr. Bethea and has done physical therapy, which actually
made the pain worse. Dr. Bethea’s office notes are in her chart and can be
viewed from her previous visits there. She has also been diagnosed by
myself with fibromyalgia, chronic fatigue syndrome, chronic insomnia and
chronic recurring fevers. She is being treated for all of this right now, and at
this point I respectfully submit that she be allowed any disability time that
she had been asked for as above, it has been clearly documented and should
be clearly allowed.
Tr. at 371.
The ALJ accorded little weight to Dr. Fuller’s opinion because she considered it to
be a generalized statement with no specific limitations tied to specific impairments. Tr. at
20. She pointed out that determinations of disability are reserved to the Commissioner.
Id. She also found that Dr. Fuller’s opinion was inconsistent with his treatment notes. Id.

29

As with Dr. Hammett’s opinion, the ALJ provided sufficient reasons for declining
to accord Dr. Fuller’s opinion controlling weight. She appropriately pointed out that Dr.
Fuller specified no particular limitations, but instead offered a general opinion that
Plaintiff was disabled. See Tr. at 20. Such opinions are not entitled to special weight. See
Dowdle at *8; see also 20 C.F.R. § 416.927(d). However, the ALJ did not provide a
sufficient enough basis for discounting Dr. Fuller’s opinion because she neglected to
proceed to the next step, which was to analyze the opinion using the factors in 20 C.F.R.
§§ 404.1527(c) and 20 C.F.R. 416.927(c). The ALJ found Dr. Fuller’s opinion was not
consistent with his treatment notes that suggested Plaintiff had full ROM, normal
strength, and normal gait and complained of no back pain or joint swelling on August 1,
2012. See Tr. at 20. However, in reaching this conclusion, the ALJ ignored Dr. Fuller’s
treatment notes that supported his opinion that Plaintiff’s impairments and chronic pain
would require she be allowed “disability time.” See Tr. at 315 (Plaintiff presented with
fever on June 14, 2011), 317 (Dr. Fuller diagnosed chronic fatigue syndrome on June, 8,
2011), 319 (Plaintiff reported lower back pain on May 19, 2011), 345 (Plaintiff had fever
and lower back pain on January 5, 2012), 347 (Plaintiff reported fever and lower back
pain on December 5, 2011), 353 (Plaintiff complained of being tired and had a fever on
August 29, 2011), 384–86 (Plaintiff reported jaw pain, neck pain, headache, and fever
and had joint pain, muscle pain, and swelling on April 30, 2012), 387 (Dr. Fuller noted
Plaintiff had chronic pain and fevers on July 3, 2012), 390 (Plaintiff complained of
headache, back pain, and achiness on August 1, 2012), 392 (Plaintiff noted fever, fatigue,
and lower back pain on August 29, 2012), 447 (Plaintiff reported pain in her neck, low
30

back, joints, and muscles on January 2, 2013), 450 (Plaintiff’s symptoms included fever,
fatigue, decreased energy, joint pain, muscle pain, headache, anxiety, depression, and
difficulty sleeping on February 6, 2013). She did not consider Plaintiff’s nearly three-year
treatment relationship with Dr. Fuller, that he treated her approximately every one to
three months, or that he referred her to specialists and reviewed their reports. See Tr. at
308–22, 344–54, 371, 382–401, 447–52. The ALJ also neglected to consider the
consistency between Dr. Fuller’s opinion and that of Dr. Hammett. Although Plaintiff
saw a number of specialists for consultations, she was generally treated by two physicians
throughout the relevant period—Dr. Fuller and Dr. Hammett. Both of these treating
doctors indicated that Plaintiff’s impairments were so severe as to preclude her from
working. See Tr. at 332, 371, 402–05. Despite consistent opinions from the only two
doctors who treated Plaintiff throughout the period, the ALJ failed to address the
consistency factor under 20 C.F.R. §§ 404.1527(c) and 416.927(c). In light of the
foregoing, the court finds that the ALJ did not adequately consider the opinion evidence.
2.

Autoimmune Disease, Connective Tissue Disease, and Graves
Disease

Plaintiff argues the ALJ neglected to adequately address her severe impairments.
[ECF No. 22 at 18–21]. She maintains the ALJ erred in finding she did not have an
autoimmune disease. Id. at 19. She maintains that, while the ALJ found Graves disease to
be a severe impairment, she conversely found that the record was “devoid of such
evidence as it related to Plaintiff’s allegation of Graves disease” and failed to include any
restrictions in the RFC pertaining to Graves disease. Id. at 19–20, citing Tr. at 16.

31

Plaintiff contends her treating physicians diagnosed autoimmune diseases that included
Graves disease, connective tissue disorder, and Sjogren’s syndrome. Id. at 19.
The Commissioner argues the ALJ’s conclusion that Plaintiff did not have an
autoimmune or connective tissue disease was supported by the findings of Dr. Smith and
Dr. Goeckeritz. [ECF No. 24 at 9].
A severe impairment is one that “significantly limits [a claimant’s] physical or
mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c); see
also SSR 96-3p. A non-severe impairment “must be a slight abnormality (or a
combination of slight abnormalities) that has no more than a minimal effect on the ability
to do basic work activities.” SSR 96-3p, citing SSR 85-28; see also 20 C.F.R. §§
404.1521(a), 416.921(a) (“An impairment or combination of impairments is not severe if
it does not significantly limit your physical or mental ability to do basic work activities).
Basic work activities include physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing,
and speaking; understanding, carrying out, and remembering simple instructions; use of
judgment; responding appropriately to supervision, co-workers and usual work situations;
and dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b),
416.921(b).
The presence of symptoms alone, such as pain, fatigue, shortness of breath,
weakness, or nervousness, does not establish the existence of a severe impairment. SSR
96-3p. For an impairment to be severe, the impairment must be established by objective

32

medical evidence (i.e., signs and laboratory findings) and must reasonably be expected to
produce the alleged symptoms. Id.; see also 20 C.F.R. §§ 404.1508, 416.908.
The ALJ found Plaintiff to have severe impairments of Graves disease, migraine
headaches, fibromyalgia, chronic fatigue syndrome, and cervical degenerative disc
disease with brachial syndrome. Tr. at 14.
a.

Autoimmune and Connective Tissue Disease

The ALJ did not err in failing to consider autoimmune6 and connective tissue
disease in light of a lack of objective medical evidence to corroborate such diagnoses. See
SSR 96-3p; see also 20 C.F.R. §§ 404.1508, 416.908. Although some evidence in the
record suggests Plaintiff was diagnosed with these impairments, a thorough review of the
record indicates these diagnoses were ruled out. On June 8, 2011, Dr. Fuller noted
Plaintiff had elevated temperature, malaise, fatigue, myalgia, myositis, and positive ANA
test and referred Plaintiff to a rheumatologist. Tr. at 315–16. Plaintiff again had a fever
when she saw Dr. Fuller on August 29, 2011. Tr. at 353. Plaintiff visited rheumatologist
Bruce Goeckeritz on October 26, 2011, who noted Plaintiff had unexplained arthralgia
and fatigue and had a positive ANA test. Tr. at 325. He referred her for testing for
Sjogren’s syndrome and other possible autoimmune diseases. Id. On November 7, 2011,

6

The ALJ recognized Graves disease as a severe impairment. Tr. at 14. Graves disease is
an autoimmune disorder that leads to overactivity of the thyroid gland. A.D.A.M.
Medical Encyclopedia [Internet]. Bethesda (MD): A.D.A.M., Inc.; ©1997–2015. Graves
disease; [updated 2014 May 10; cited 2014 July 3]. Available from:
www.nlm.nih.gov/medlineplus/ency/article/00358.htm. A court may take judicial notice
of factual information located in postings on government websites. See Philips v. Pitt
Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (court may “properly take judicial
notice of matters of public record”).  
33

Plaintiff saw ophthalmologist Dr. Kenitkeur, who diagnosed Sjogen’s syndrome and
Graves disease. Tr. at 328. However, in December, Dr. Goeckeritz informed Dr. Fuller
that Plaintiff’s lab work was all negative, including the ANA test, and that Sjogren’s
could be ruled out. Tr. at 374–75. He diagnosed fibromyalgia. Id. Plaintiff saw Dr. Fuller
the next day, and Dr. Fuller indicated that he had received differing diagnoses from Dr.
Goeckeritz and Dr. Kenitkeur. Tr. at 348. Dr. Fuller referred Plaintiff to MUSC for a
second rheumatology evaluation. Id. On January 27, 2012, Dr. Smith assessed
fibromyalgia and an autoimmune condition with positive SSA, ANA, and Graves disease.
Tr. at 379. He indicated it was possible that Plaintiff had Sjogren’s syndrome. Id.
However, Plaintiff’s rheumatology lab tests returned on January 31, 2012, and all were
negative, including ANA. Tr. at 380. Subsequent notes from Dr. Fuller indicate Plaintiff
had “fairly severe fibromyalgia” and that he felt the diagnosis of H. pylori gastritis may
explain Plaintiff’s chronic pain and fever. Tr. at 387. In light of the foregoing, the ALJ
reasonably concluded, based on the available evidence, that autoimmune diseases, wktht
he exception of Graves disease, and connective tissue diseases were effectively ruled out
as sources of Plaintiff’s symptoms.
b.

Graves Disease

The ALJ indicated at step two that she found Graves disease7 to be a severe
impairment. Tr. at 14. At step three, she found the record did not support a finding that

7

Possible symptoms of Graves disease include anxiety, difficulty concentrating, double
vision, bulging eyeballs, eye irritation and tearing, fatigue, frequent bowel movements,
goiter, heat intolerance, increased appetite, increased sweating, irregular menstrual
periods, muscle weakness of the hips and shoulders, moodiness, nervousness, rapid or
irregular heartbeat, restlessness and difficulty sleeping, shortness of breath with activity,
34

Plaintiff’s Graves disease met the criteria for autoimmune disorders under Listing
14.00D. Tr. at 16.
The ALJ did not err in concluding that Plaintiff’s Graves disease did not meet a
Listing at step three. The record indicates Plaintiff was diagnosed with Graves disease
many years before she stopped working and that it was effectively treated with
radioactive iodine therapy. Tr. at 454. The record does not suggest Plaintiff had any
significant thyroid problems during the relevant period. Therefore, the ALJ’s conclusion
that Graves disease did not meet Listing 14.00D for autoimmune disorders was supported
by substantial evidence.
However, the ALJ did not adequately consider Plaintiff’s diagnosis of Graves
disease to the extent that she neglected to find Plaintiff’s ability to perform basic work
activities to be compromised. Plaintiff endorsed eye-related symptoms that appeared to
be directly related to her diagnosis of Graves disease. Because an individual’s capacity to
see is a basic work activity, the ALJ should have considered the effect of Plaintiff’s
Graves disease on her vision. See 20 C.F.R. §§ 404.1521(b), 416.921(b).
3.

Remaining Allegations of Error

Plaintiff argues the ALJ failed to follow the provisions of SSR 96-7p in evaluating
her complaints of pain and fatigue. [ECF No. 22 at 22]. She maintains the ALJ ignored

tremor, weight gain or loss, chest pain, memory loss, weakness, and fatigue. Id.
A.D.A.M. Medical Encyclopedia [Internet]. Bethesda (MD): A.D.A.M., Inc.; ©1997–
2015. Graves disease; [updated 2014 May 10; cited 2014 July 3]. Available from:
www.nlm.nih.gov/medlineplus/ency/article/00358.htm. Treatment for Graves disease
may include radioactive iodine treatment or surgery, which destroy the thyroid gland. Id.
After treatment, the individual often has an underactive thyroid, which should be treated
with medication. Id. Most symptoms of Graves disease respond to treatment, but eye
problems may worsen after radioactive iodine treatment. Id.
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the requirements of SSR 96-8p in assessing her RFC. Id. at 24–25. She contends the ALJ
did not follow the requirements of SSRs 82-62 and 96-8p, in finding that she could
perform her PRW. [ECF No. 22 at 27].
In light of the court’s decision that the case be remanded based on the ALJ’s
failure to adequately consider the treating physicians’ opinions and Plaintiff’s diagnosis
of Graves disease and in consideration of the interconnectedness between these errors and
the remaining allegations of error, Plaintiff’s credibility, RFC, and ability to perform
PRW should be reevaluated upon remand.
III.

Conclusion
The court’s function is not to substitute its own judgment for that of the ALJ, but

to determine whether the ALJ’s decision is supported as a matter of fact and law. Based
on the foregoing, the court cannot determine that the Commissioner’s decision is
supported by substantial evidence. Therefore, the undersigned reverses and remands this
matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. §
405(g).
IT IS SO ORDERED.

July 6, 2015
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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