Smith v. Commissioner of Social Security Administration
ORDER RULING ON REPORT AND RECOMMENDATION rejecting 16 Report and Recommendation, reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the case to the Commissioner with instructions that the Commissioner reevaluate the severity of Plaintiff's fibromyalgia and how it affects her residual functional capacity. Signed by Honorable R. Bryan Harwell on 03/21/2016. (bshr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Larissa A. Smith,
Carolyn W. Colvin, Acting
Commissioner of the Social
Civil Action No.: 1:14-cv-04400-RBH
Plaintiff Larissa A. Smith seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a final
decision of the Commissioner of the Social Security Administration (the Commissioner) denying her
claim for supplemental security income (SSI) benefits under the Social Security Act (the Act). The
matter is before the Court for consideration of Plaintiff’s objections to the Report and Recommendation
(R & R) of United States Magistrate Judge Shiva V. Hodges, made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02(B)(2)(a) for the District of South Carolina. See R & R, ECF
No. 16; Pl.’s Objs., ECF No. 17.
The Magistrate Judge recommends the Court affirm the
Commissioner’s decision. R & R at 1, 45.
Factual Findings and Procedural History
Plaintiff applied for SSI benefits on February 17, 2011, alleging disability as of February 1,
2005.1 See Administrative Transcript (Tr.) at 18, 151-57; see also ECF No. 6. The Commissioner
denied Plaintiff’s application initially and on reconsideration, so Plaintiff requested a hearing before
As the M agistrate Judge notes, a claimant cannot receive SSI benefits for any period prior to the month in
which she files her application. See 20 C.F.R. §§ 416.330, 416.335, 416.501. Thus, the correct period for
determining whether Plaintiff was disabled is February 2011 through the date of the ALJ’s hearing decision, June
an administrative law judge (ALJ). Tr. at 86-89, 95-96. The ALJ held a hearing on April 9, 2013, and
he heard testimony from Plaintiff and a vocational expert. Tr. at 34-56. The ALJ issued an unfavorable
decision on June 13, 2013, finding Plaintiff was not disabled. Tr. at 15-32. The ALJ made the
The claimant has not engaged in substantial gainful activity
since February 17, 2011, the application date (20 CFR
416.971 et seq.).
The claimant has the following severe impairments: obesity,
fibromyalgia, post-traumatic stress disorder, diabetes mellitus,
sarcoidosis, and degenerative disc disease. (20 CFR
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 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform sedentary work as defined in 20 CFR
416.967(a). Specifically, the claimant is able to lift and carry
up to 10 pounds occasionally and lesser amounts frequently,
sit for 6 hours in an 8-hour day, and stand and walk
occasionally except that the claimant can never balance or
climb and can occasionally crawl, kneel, and crouch. She can
have no exposure to temperature extremes, high humidity,
pulmonary irritants, unprotected heights, or dangerous
machinery. The claimant is limited to simple, repetitive,
routine tasks and cannot work in a fast-paced production
The claimant is unable to perform any past relevant work (20
The claimant was born on November 24, 1974 and was 36
years old, which is defined as a younger individual age 18-44,
on the date the application was filed (20 CFR 416.963).
The claimant has at least a high school education and is able
to communicate in English (20 CFR 416.964).
Transferability of job skills is not an issue in this case because
the claimant’s past relevant work is unskilled (20 CFR
Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant
can perform (20 CFR 416.969 and 416.969(a)).
The claimant has not been under a disability, as defined in the
Social Security Act, since February 17, 2011, the date the
application was filed (20 CFR 416.920(g)).
Tr. at 20-27.
The ALJ’s findings became the final decision of the Commissioner when the Appeals Council
denied Plaintiff’s request for further review on September 9, 2014. Tr. 1-3. Plaintiff filed this action
on November 13, 2014, seeking judicial review of the Commissioner’s decision. ECF No. 1. Both
Plaintiff and the Commissioner filed briefs, and the Magistrate Judge issued an R & R on September
21, 2015, recommending that the Court affirm the Commissioner’s decision. ECF Nos. 12, 14, & 16
(R & R). Plaintiff filed timely objections on October 8, 2015. ECF No. 17 (Pl.’s Objs.). Defendant
filed a reply to Plaintiff’s objections but did not specifically address Plaintiff’s arguments. ECF No.
Judicial Review of the Commissioner’s Findings
The federal judiciary has a limited role in the administrative scheme established by the Act,
which provides the Commissioner’s findings “shall be conclusive” if they are “supported by substantial
evidence.” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times as more than
a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
This statutorily mandated standard precludes a de novo review of the factual circumstances that
substitutes the Court’s findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157, 1157-58
(4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court must uphold the
Commissioner’s factual findings “if they are supported by substantial evidence and were reached
through application of the correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (stating that even if the Court
disagrees with the Commissioner’s decision, the Court must uphold the decision if substantial evidence
supports it). This standard of review does not require, however, mechanical acceptance of the
Commissioner’s findings. Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). The Court “must not
abdicate [its] responsibility to give careful scrutiny to the whole record to assure that there is a sound
foundation for the [Commissioner]’s findings, and that [her] conclusion is rational.” Vitek, 438 F.2d
The Court’s Review of the Magistrate Judge’s R & R
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983).
Determination of Disability
Under the Act, Plaintiff’s eligibility for the benefits she is seeking hinges on whether she is
under a “disability.” 42 U.S.C. § 423(a). The Act 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 a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant bears the ultimate burden
to prove disability. Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985). The claimant may
establish a prima facie case of disability based solely upon medical evidence by demonstrating that her
impairments meet or equal the medical criteria set forth in Appendix 1 of Subpart P of Part 404 of Title
20 of the Code of Federal Regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d).
If such a showing is not possible, a claimant may also establish a prima facie case of disability
by proving she could not perform her customary occupation as the result of physical or mental
impairments. See Taylor v. Weinberger, 512 F.2d 664, 666-68 (4th Cir. 1975). This approach is
premised on the claimant’s inability to resolve the question solely on medical considerations, and it is
therefore necessary to consider the medical evidence in conjunction with certain vocational factors. 20
C.F.R. §§ 404.1560(a), 416.960(a). These factors include the claimant’s (1) residual functional
capacity, (2) age, (3) education, (4) work experience, and (5) the existence of work “in significant
numbers in the national economy” that the individual can perform. Id. §§ 404.1560(a), 404.1563,
404.1564, 404.1565, 404.1566, 416.960(a), 416.963, 416.964, 416.965, 416.966. If an assessment of
the claimant’s residual functional capacity leads to the conclusion that she can no longer perform her
previous work, it then becomes necessary to determine whether the claimant can perform some other
type of work, taking into account remaining vocational factors. Id. §§ 404.1560(c)(1), 416.960(c)(1).
Appendix 2 of Subpart P governs the interrelation between these vocational factors. Thus, according
to the sequence of evaluation suggested by 20 C.F.R. §§ 404.1520 and 416.920, it must be determined
(1) whether the claimant currently has gainful employment, (2) whether she suffers from a severe
physical or mental impairment, (3) whether that impairment meets or equals the criteria of Appendix
1, (4) whether, if those criteria are met, the impairment prevents her from returning to previous work,
and (5) whether the impairment prevents her from performing some other available work.
Regarding SSI disability benefits, the standard “consists of a two-fold test which it is a
claimant’s burden to satisfy: First, there must be a medically determinable physical or mental
impairment, and second, the impairment must be such as to render her unable to engage in substantial
gainful employment.” Walker v. Harris, 642 F.2d 712, 714 (4th Cir. 1981) (citing 42 U.S.C § 423(d);
20 C.F.R. § 404.1501(b)).
Plaintiff has raised three issues in appealing from the ALJ’s decision denying her claim for SSI
benefits, arguing the ALJ erred by (1) not explaining his findings regarding Plaintiff’s residual
functional capacity (hereinafter, “RFC”), (2) not adequately considering and weighing the medical
opinions of two of Plaintiff’s treating physicians, and (3) failing to properly evaluate Plaintiff’s
credibility. ECF No. 12 at 19-35. The Magistrate Judge recommends affirming the Commissioner’s
decision on all three issues.
R & R at 1, 45.
Plaintiff objects to the Magistrate Judge’s
recommendation. Pl.’s Objs at 1-11. For the following reasons, the Court concludes remand is
necessary for the ALJ to reevaluate the severity of Plaintiff’s fibromyalgia and how it affects her RFC.2
RFC is a determination, based on all the relevant medical and non-medical evidence, of what
a claimant can still do despite her impairments; the assessment of a claimant’s RFC is the responsibility
of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; SSR 96-8p, 1996 WL 374184, at *2. If
more than one impairment is present, the ALJ must consider all medically determinable impairments,
including medically determinable impairments that are not “severe,” when determining Plaintiff’s RFC.
20 C.F.R. §§ 404.1545(a), 416.945(a). The ALJ must consider the combined effect of all impairments
without regard to whether any such impairment, if considered separately, would be of sufficient
severity. 20 C.F.R. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating
the effect of various impairments upon a disability benefit claimant, the [Commissioner] must
consider the combined effect of a claimant’s impairments and not fragmentize them.”).
Social Security Ruling 96-8p explains how the Commissioner assesses RFC. See SSR 96-8p.
“The Ruling instructs that the residual functional capacity ‘assessment must first identify the
individual’s functional limitations or restrictions and assess his or her work-related abilities on a
Because the Court concludes reversal and remand is necessary regarding the RFC issue, the Court does not
specifically address Plaintiff’s second and third issues.
function-by-function basis, including the functions’ listed in the regulations.” Mascio v. Colvin, 780
F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p, 61 Fed. Reg. 34,474, 34,475 (July 2, 1996),
available at 1996 WL 362207). “‘Only after that may [RFC] be expressed in terms of the exertional
levels of work[:] sedentary, light, medium, heavy, and very heavy.’” Id. (quoting SSR 96-8p). Ruling
96-8p requires that the RFC assessment “‘include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations).’” Id. (quoting SSR 96-8p).
The ALJ found at step two that Plaintiff’s fibromyalgia constituted a severe impairment;3
however, the ALJ determined at step three that Plaintiff’s fibromyalgia did not meet or medically equal
the severity of any one of impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, and he
assigned Plaintiff an RFC to perform sedentary work.4 Tr. at 20, 22. As Plaintiff points out, this RFC
determination is very narrow in scope and only slightly above an RFC assessment that would support
The ALJ also found that Plaintiff had other severe impairments— namely, degenerative disc disease, obesity,
post-traumatic stress disorder, diabetes mellitus, and sarcoidosis— but that none of these impairments or combination
of impairments met or medically equaled the severity of any one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Tr. at 20. In her objections, Plaintiff focuses her argument on the ALJ’s RFC assessment
as it relates to her fibromyalgia. See Pl.’s Objs. at 1-4.
In full, the RFC determination made by the ALJ was as follows:
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform sedentary work as
defined in 20 CFR 416.967(a). Specifically, the claimant is able to lift and carry
up to 10 pounds occasionally and lesser amounts frequently, sit for 6 hours in an 8hour day, and stand and walk occasionally except that the claimant can never
balance or climb and can occasionally crawl, kneel, and crouch. She can have no
exposure to temperature extremes, high humidity, pulmonary irritants, unprotected
heights, or dangerous machinery. The claimant is limited to simple, repetitive,
routine tasks and cannot work in a fast-paced production environment.
Tr. at 22.
a finding of total disability. See Pl.’s Objs. at 1. Plaintiff argues the ALJ failed to adequately account
for her fibromyalgia when assessing her RFC. In making this argument, Plaintiff contends the ALJ
failed to properly account for her medically determinable impairment of fibromyalgia in accordance
with Social Security Ruling 12-2p.5 Id. at 2-4. The Court agrees.
“Although there is no medical listing for fibromyalgia, Titles II and XVI of Social Security
Ruling 12-2p provide guidance on how the Commissioner develops evidence to establish that a person
has a medically determinable impairment of fibromyalgia, and how to evaluate fibromyalgia in
disability claims and continuing disability reviews.” Smith v. Colvin, No. 2:14CV00042, 2015 WL
7571946, at *7 (W.D. Va. Nov. 24, 2015) (citing SSR 12-2p, 77 Fed. Reg. 43,640 (July 25, 2012),
available at 2012 WL 3104869). Ruling 12-2p defines fibromyalgia as a “complex medical condition
characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that
has persisted for at least 3 months.” SSR 12-2p, 77 Fed. Reg. at 43,641. Ruling 12-2p explains how
the Commissioner considers fibromyalgia in the five-step sequential evaluation process—including the
RFC assessment—for determining disability:
How do we consider FM [fibromyalgia] in the sequential evaluation
process? As with any adult claim for disability benefits, we use a
5-step sequential evaluation process to determine whether an adult
with an MDI [medically determinable impairment] of FM is disabled.
At step 1, we consider the person’s work activity. If
Plaintiff did not specifically address Ruling 12-2p in her brief; rather, the Magistrate Judge cited Ruling 122p (in passing reference) for the first time in the R & R. See R & R at 37. The Court will address Plaintiff’s
argument concerning Ruling 12-2p in light of its duty to consider all arguments directed to an issue, regardless of
whether the arguments were presented to the Magistrate Judge. See generally United States v. George, 971 F.2d
1113, 1118 (4th Cir. 1992) (“W e believe that as part of its obligation to determine de novo any issue to which proper
objection is made, a district court is required to consider all arguments directed to that issue, regardless of whether
they were raised before the magistrate. By definition, de novo review entails consideration of an issue as if it had
not been decided previously. It follows, therefore, that the party entitled to de novo review must be permitted to raise
before the court any argument as to that issue that it could have raised before the magistrate.” (footnote omitted)).
a person with FM is doing substantial gainful activity,
we find that he or she is not disabled.
At step 2, we consider whether the person has a
“severe” MDI(s). If we find that the person has an
MDI that could reasonably be expected to produce the
pain or other symptoms the person alleges, we will
consider those symptom(s) in deciding whether the
person’s impairment(s) is severe. If the person’s pain
or other symptoms cause a limitation or restriction
that has more than a minimal effect on the ability to
perform basic work activities, we will find that the
person has a severe impairment(s).
At step 3, we consider whether the person’s
impairment(s) meets or medically equals the criteria
of any of the listings in the Listing of Impairments in
appendix 1, subpart P of 20 CFR part 404 (appendix
1). FM cannot meet a listing in appendix 1 because
FM is not a listed impairment. At step 3, therefore,
we determine whether FM medically equals a listing
(for example, listing 14.09D in the listing for
inflammatory arthritis), or whether it medically equals
a listing in combination with at least one other
medically determinable impairment.
Residual Functional Capacity (RFC) assessment:
In our regulations and SSR 96-8p, we explain that
we assess a person’s RFC when the person’s
impairment(s) does not meet or equal a listed
impairment. We base our RFC assessment on all
relevant evidence in the case record. We consider
the effects of all of the person’s medically
determinable impairments, including impairments
that are “not severe.” For a person with FM, we
will consider a longitudinal record whenever
possible because the symptoms of FM can wax and
wane so that a person may have “bad days and
At steps 4 and 5, we use our RFC assessment to
determine whether the person is capable of doing any
past relevant work (step 4) or any other work that
exists in significant numbers in the national economy
(step 5). If the person is able to do any past relevant
work, we find that he or she is not disabled. If the
person is not able to do any past relevant work or does
not have such work experience, we determine whether
he or she can do any other work. The usual vocational
Id. at 43,643-44 (bold emphasis added) (internal footnotes omitted). Ruling 12-2p further provides that
the Commissioner may find a claimant has a medically determinable impairment of fibromyalgia if the
claimant meets all three of the following criteria: (1) a history of widespread pain, (2) repeated
manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions,6 and (3)
evidence that other disorders could cause these repeated manifestations were excluded.7 Id. at 43,642.
The Court finds the ALJ failed to adequately examine the severity of Plaintiff’s fibromyalgia
in determining Plaintiff’s RFC and failed to properly evaluate Plaintiff’s fibromyalgia as required by
Social Security Ruling 12-2p. In its decision denying Plaintiff’s claim for SSI benefits, the ALJ devoted
a single paragraph to Plaintiff’s fibromyalgia:
The claimant has presented with positive tender points and received
a diagnosis of fibromyalgia.
musculoskeletal and neurological examinations have generally
been within normal limits. Images taken of the claimant’s lumbar
spine in October 2009 showed mild to moderate foraminal narrowing
with no definite impingement at L4-L5. As mentioned above, she has
had normal musculoskeletal examinations with no diminished range
These manifestations “especially” include “fatigue, cognitive or memory problems (‘fibro fog’), waking
unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.” SSR 12-2p, 77 Fed. Reg. at 43,642 (internal
“Other physical and mental disorders may have symptoms or signs that are the same or similar to those
resulting from FM. Therefore, it is common in cases involving FM to find evidence of examinations and testing that
rule out other disorders that could account for the person’s symptoms and signs.” SSR 12-2p, 77 Fed. Reg. at 43,64142 (internal footnote omitted). “Some examples of other disorders that may have symptoms or signs that are the same
or similar to those resulting from FM include rheumatologic disorders, myofacial pain syndrome, polymyalgia
rheumatica, chronic Lyme disease, and cervical hyperextension-associated or hyperflexion-associated disorders.”
Id. at 43,642 n.7.
of motion noted. (Exhibit C10F).
Tr. at 25 (emphases added). Elsewhere in his decision, the ALJ noted, “While the claimant has received
medical treatment since her alleged onset date, the medical evidence of record does not reflect any
objective abnormalities to suggest that she is incapable of performing the above residual functional
capacity assessment.” Tr. at 24 (emphasis added). The ALJ’s erroneous reliance on a lack of objective
medical evidence to support Plaintiff’s fibromyalgia symptoms shows a misunderstanding of the nature
of Plaintiff’s fibromyalgia diagnosis and the severity of her symptoms.
“[T]he absence of objective medical evidence to substantiate the diagnosis of fibromyalgia or
its severity is basically irrelevant.” Kalmbach v. Comm’r of Soc. Sec., 409 F. App’x 852, 864 (6th Cir.
2011). “Numerous courts have recognized that fibromyalgia’s symptoms are entirely subjective and
[that] there are no laboratory tests that can confirm the presence or severity of the syndrome.” Dowell
v. Colvin, No. 1:12CV1006, 2015 WL 1524767, at *3 (M.D.N.C. Apr. 2, 2015) (alteration in original)
(internal quotation marks omitted) (collecting cases).8 “The primary symptom of fibromyalgia is
chronic, widespread pain. Moreover, as the Second Circuit explained, ‘physical examinations will
usually yield normal results—a full range of motion, no joint swelling, as well as normal muscle
strength and neurological reactions.’” Id. (internal citation omitted) (quoting Green-Younger v.
Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003)).
Significantly, “the nature of fibromyalgia means that a patient’s ability to perform certain tasks
or postural maneuvers on a given day does not necessarily reflect an ability to perform those tasks and
maneuvers on a sustained basis.” Winkler v. Comm’r, Soc. Sec. Admin., No. CIV. SAG-14-2720, 2015
WL 4069334, at *4 (D. Md. July 2, 2015). Courts in this circuit and others have “noted that
The Court follows the well-articulated reasoning from Dowell in conducting the analysis in this case.
fibromyalgia ‘poses particular challenges to credibility analyses due to the limited available objective
medical evidence.’” Elburn v. Comm’r, Soc. Sec., No. CIV. CCB-14-0887, 2014 WL 7146972, at *3
(D. Md. Dec. 12, 2014) (quoting Gavigan v. Barnhart, 261 F. Supp. 2d 334, 340 (D. Md. 2003)); see,
e.g., Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) (“[Fibromyalgia’s] cause or causes are
unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely
subjective. There are no laboratory tests for the presence or severity of fibromyalgia.”).
In this case, the ALJ found at step two that Plaintiff’s fibromyalgia was a severe impairment.
Despite this finding, the ALJ relied exclusively on objective medical evidence—namely,
“musculoskeletal and neurological examinations”—to evaluate Plaintiff’s fibromyalgia as it related to
her residual functional capacity. Tr. at 25. The ALJ’s analysis fails to account for the subjective nature
of fibromyalgia. As explained above, fibromyalgia has symptoms that are wholly subjective, and
neither its presence nor severity can be confirmed by laboratory tests. Dowell, 2015 WL 1524767, at
*3. Ruling 12-2p recognizes the difficulty of objectively establishing the severity of fibromyalgia, given
the Ruling’s emphasis on considering the “longitudinal record whenever possible because the symptoms
of FM [fibromyalgia] can wax and wane so that a person may have ‘bad days and good days.’” 77 Fed.
Reg. at 43,644. Thus, the mere lack of objective medical evidence (i.e., MRIs and X-rays) does not in
itself preclude a finding of disability when a claimant suffers from fibromyalgia.
Additionally, the ALJ’s reliance on “musculoskeletal and neurological examinations [that] have
generally been within normal limits” in assigning Plaintiff’s RFC is inconsistent with his finding at step
two that Plaintiff’s fibromyalgia was a severe impairment. Tr. at 25 (emphasis added). “To be a severe
impairment at step two, the ALJ must have concluded that [Plaintiff]’s fibromyalgia significantly
limited her ability to perform basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c).”
Dowell, 2015 WL 1524767, at *3. Although a finding at step two that a claimant has a severe
impairment does not automatically require a corresponding restriction in the RFC determination, the
Court in the instant case cannot deduce whether the ALJ considered Plaintiff’s subjective complaints
of fibromyalgia pain in determining her RFC. See id.
Finally, “while the ALJ does not have to discuss every piece of evidence, the ALJ cannot
cherry-pick the evidence that supports his decision to the exclusion of evidence favorable to the
claimant. This is particularly troubling in cases of fibromyalgia where the symptoms are subjective in
nature.” Id. At the administrative hearing, the ALJ asked Plaintiff the following questions:
Where do you experience pain?
All over, sir.
Is it constant? Does it come and go?
Does it vary in intensity? Sometimes it’s worse than others?
Tr. at 40. Although Plaintiff’s testimony accentuates those symptoms consistent with fibromyalgia, the
ALJ failed to specifically account for this testimony detailing Plaintiff’s subjective complaints of pain.
The record also contains the treatment notes of Dr. Mitch Twining, a rheumatologist. Tr. at 38095, 529-82. Plaintiff regularly met with Dr. Twining—who, according to the administrative record, was
Plaintiff’s sole rheumatologist—over a multi-year period; from her first visit onward, Plaintiff saw Dr.
Twining to receive treatment for her fibromyalgia. See id. Dr. Twining’s treatment notes comprise a
hefty longitudinal record—documenting Plaintiff’s fibromyalgia—that the ALJ essentially ignored. As
Plaintiff points out, Ruling 12-2p indicates the treating physician’s opinion is the best evidence for
determining the extent of a claimant’s fibromyalgia symptoms. See SSR 12-2p, 77 Fed. Reg. at 43,642
(“When a person alleges FM [fibromyalgia], longitudinal records reflecting ongoing medical evaluation
and treatment from acceptable medical sources are especially helpful in establishing both the existence
and severity of the impairment.” (emphasis added)). Dr. Twining’s opinions are particularly relevant
given the fact that he is a rheumatologist, “[f]ibromyalgia is a rheumatic disease[,] and the relevant
specialist is a rheumatologist.” Sarchet, 78 F.3d at 307 (criticizing the ALJ for rejecting the value of
the medical opinions of the plaintiff’s treating rheumatologist).
Although the Court is mindful that the ALJ retains the authority to make the RFC determination,
the ALJ’s decision must still provide specific reasons supported by evidence in the record to clarify to
the Court the weight afforded to Plaintiff’s subjective complaints of fibromyalgia pain. See Dowell,
2015 WL 1524767, at *3. It is legally insufficient for the ALJ to merely recite some facts—but not the
relevant ones—and make conclusory statements in support of the RFC determination. Id. “A necessary
predicate to engaging in substantial evidence review is a record that adequately explains the ALJ’s
findings and reasoning. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). This requires that the
ALJ build a logical bridge between the evidence and his conclusions.” Id.; see id. at n.3 (concluding
“there is simply a lack of analysis on why the ALJ discredited [the plaintiff]’s fibromyalgia
symptoms”).9 Given the particular administrative decision in this case, the Court cannot ascertain
whether the ALJ accounted for Plaintiff’s fibromyalgia symptoms in making the RFC determination.
Accordingly, the Court must remand this case for further administrative review of Plaintiff’s claim for
See also Eller v. Colvin, No. 1:14-cv-00493-LCB-JLW , 2015 W L 4489479, at *5-6 (M.D.N.C. July 22,
2015) (applying the analysis from Dowell and noting the reason “for remand may actually be stronger in this case
because SSR 12-2p was available to the ALJ in this case, but not to the ALJ in Dowell”), report and recommendation
adopted by No. 1:14-cv-00493-LCB (M.D.N.C. Aug. 13, 2015).
Also on remand, the ALJ will have to reevaluate Plaintiff’s credibility by reconsidering Plaintiff’s subjective
complaints of pain as it relates to her fibromyalgia. See Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996) (stating
the Commissioner’s credibility evaluation of a claimant must account for not only the claimant’s statements about
The Court has thoroughly considered the entire record as a whole, including the administrative
transcript, the briefs, the Magistrate Judge’s R & R, Plaintiff’s objections, and the applicable law. For
the above reasons, the Court respectfully REJECTS the Magistrate Judge’s recommendation to affirm
the Commissioner’s decision. The Court REVERSES the Commissioner’s decision pursuant to
sentence four of 42 U.S.C. § 405(g) and REMANDS the case to the Commissioner with instructions
that the Commissioner reevaluate the severity of Plaintiff’s fibromyalgia and how it affects her residual
IT IS SO ORDERED.
Florence, South Carolina
March 21, 2016
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
her pain, but also for all available evidence, “including the claimant’s medical history, medical signs, and laboratory
findings . . . ; any objective medical evidence of pain . . . ; and any other evidence relevant to the severity of the
impairment, such as evidence of the claimant’s daily activities, specific descriptions of the pain, and any medical
treatment taken to alleviate it” (internal quotation marks and citations omitted)); id. (stating the Commissioner may
not disregard or discredit a claimant’s statements about pain solely because the statements are not substantiated by
objective medical evidence). The Court expresses no opinion on whether Plaintiff’s subjective complaints of pain
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