Martin v. Commissioner of Social Security Administration
Filing
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ORDER RULING ON REPORT AND RECOMMENDATION The Commissioners decision is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and this case is remanded to the Commissioner for further proceedings consistent with this Order. Signed by Chief Judge R Bryan Harwell on 03/11/2019. (cpeg, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Laura Martin,
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)
Plaintiff,
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v.
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Commissioner of the Social
)
Security Administration,
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Defendant.
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______________________________)
Civil Action No.: 9:17-cv-03321-RBH
ORDER
Plaintiff Laura Martin brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review
of the final decision of the Commissioner of Social Security denying her claim for supplemental security
income (“SSI”). This matter is now before the Court for review of the Report and Recommendation (“R
& R”) of United States Magistrate Judge Bristow Marchant, made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rules 73.02(B)(2)(a) and 83.VII.02 (D.S.C.). [ECF # 17]. The Magistrate
Judge recommends that the Court affirm the decision of the Commissioner. [ECF #17, p. 20]. This
Court has thoroughly reviewed the record in this case and now issues the following Order.
Statement of Facts and Procedural History
This Court is tasked with reviewing the denial of Plaintiff’s application for disability benefits.
Plaintiff applied for supplemental security income (“SSI”) on May 9, 2014, alleging a disability date
of January 28, 2013 due to diabetic retinopathy, spondylolysis, bipolar type I with depression,
spondylolisthesis, scoliosis, borderline personality disorder, and anxiety with panic attacks, as well as
a frozen left shoulder, MRSA infection, neuropathy, carpal tunnel syndrome, and issues with two
broken feet. [ECF #10-6, Ex. 1D; ECF #10-7, Ex. 3E]. Plaintiff has a history of diabetes mellitus type
I. In July of 2012, Plaintiff underwent an EMG which showed bilateral median neuropathy and
peripheral neuropathy. [ECF #10-12, Ex. 5F]. In May of the following year, an MRI of Plaintiff’s
shoulder revealed what appeared to be a small superficial labral tear, as well as a small infraspinatus
tendon defect on the articular side. [ECF #10-12, Ex. 7F]. In October of 2013, Plaintiff was diagnosed
with bipolar disorder, psychotic disorder, anxiety disorder and borderline personality disorder. [ECF
#10-12; Ex. 4F]. Plaintiff continued to experience left shoulder pain and left foot pain. She also
continued to experience neuropathy in her feet, and she reported frequent falls due to this condition.
[ECF #10-14, Ex. 11F]. She was evaluated in January of 2014 for her shoulder pain and was assessed
with left shoulder capsulitis and referred to physical therapy. [ECF #10-15, Ex. 13F]. In March, after
landing funny on her feet, an x-ray revealed fractures in both of her feet; however, the fractures were
inoperable. [ECF #10-10, Ex. 3F; ECF #10-12, Ex. 7F]. A bone scan on March 28, 2014 revealed she
suffers from osteopenia. [ECF #10-10, Ex. 3F]. Plaintiff continued to experience issues with
neuropathy, depression, and issues related to her foot fractures, as well as lingering effects of a MRSA
infection. [ECF #10-14, Ex. 12F].
On June 6, 2014, Dr. Julie Arellano completed an assessment form, indicating that Plaintiff had
been diagnosed with bipolar disorder, psychotic disorder not otherwise specified, post traumatic stress
disorder, and borderline personality disorder. Dr. Arellano opined that Plaintiff’s symptoms caused a
moderate severity of restriction of daily living, marked difficulties in maintaining social functioning and
moderate difficulties in maintaining concentration, persistence, or pace and would have repeated
episodes of decompensation. She also opined that Plaintiff would be absent from work more than 2 days
per month. [ECF #10-13, Ex. 8F]. She further opined that Plaintiff would have complete inability to
function independently outside the area of her home. [ECF #10-13, Ex. 8F].
Plaintiff’s problems persisted, and on September 6, 2015, Plaintiff was admitted to the hospital
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with a 1-2 week long history of hyperglycemia, polydipsia, polyuria, and nausea. She reported at this
time that she had fibromyalgia pain in her right arm and right foot. She was discharged with diagnosis
of hyperglycemia. [ECF #10-16; Ex. 19F]. Two months later, she presented again with fibromyalgia
pain. [ECF #10-17; Ex. 21F]. Plaintiff’s problems, including persistent complaints of issues related to
diabetes and mental issues continued through 2016.
Plaintiff applied for disability on May 9, 2014. Plaintiff’s claim was denied initially and upon
reconsideration. After she requested and was granted a hearing, the ALJ denied her claim on February
10, 2017. Plaintiff’s request for a review by the Appeals Council was eventually denied, making the
findings and determination of the ALJ the final decision of the Commissioner. The ALJ reviewed all
of the medical history in the record, as well as Plaintiff’s testimony at the hearing. The ALJ
subsequently came up with several findings.
The ALJ’s findings were as follows:
(1) The claimant has not engaged in substantial gainful activity since
May 9, 2014, the application date (20 CFR 416.971 et seq.).
(2) The claimant has the following severe impairments: diabetes
mellitus, peripheral neuropathy, bilateral shoulder adhesive capsulitis,
Duputyrens contractures, history or MRSA infection, anxiety,
borderline personality disorder and bipolar disorder (20 CFR
416.920(c)).
(3) 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).
(4) 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 404.967(a) except no climbing
ladders/scaffolds, occasional climbing ramps/stairs, balancing,
stooping, kneeling, crouching, crawling; frequent fingering and
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handling bilaterally and occasional overhead reaching. The claimant
can have no exposure to vibration or work hazards. She has the ability
to concentrate for two-hour increments in the performance of simple,
repetitive tasks, but should not work in a fast-paced production
environment.
(5) The claimant is unable to perform past relevant work. (20 CFR
416.925).
(6) The claimant was born on March 23, 1974 and was 40 years old,
which is defined as a younger individual age 18-44, on the date the
application was filed (20 CFR 416.963).
(7) The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964).
(8)Transferability of jobs skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferrable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).
(9) 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)).
(10) The claimant has not been under a disability, as defined in the
Social Security Act, since May 9, 2014, the date the application was
filed (20 CFR 416.920(g)).
On December 8, 2017, Plaintiff filed a complaint seeking judicial review of the Commissioner’s
decision. [ECF #1]. Both Plaintiff and Defendant filed briefs [ECF #13, ECF #14], and the Magistrate
Judge issued a Report and Recommendation (“R&R”) on December 21, 2018, recommending that the
Commissioner’s decision be affirmed [ECF #17]. Plaintiff filed objections on January 11, 2019. [ECF
#29]. Defendant responded to these objections on January 18, 2019. [ECF #21].
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Standard of Review
I. 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, 115758(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
at 1157-58.
II.
The Court’s Review of the Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
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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).
Applicable Law
Under the Act, Plaintiff’s eligibility for the sought-after benefits 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.” Id. § 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
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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.
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 the
“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 impairment meets or equals an impairment included in the Listings;1 (4) whether such
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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
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impairment prevents claimant from performing past relevant work;2 and (5) whether the impairment
prevents her from doing substantial gainful activity. See 20 C.F.R. § 404.1520. 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) (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 past relevant work
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); 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). Once an individual has made a prima facie showing of disability by establishing the inability
to return to past relevant work, 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 vocational expert demonstrating
the existence of jobs available in the national economy that claimant can perform despite the existence
of impairments that prevent the return to past relevant work. 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
prevent all gainful activity. 20 C.F.R. § 404.1525. 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). 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; 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).
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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).
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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).
Analysis
Plaintiff raises three objections to the Magistrate Judge’s recommendation that the
Commissioner’s decision be affirmed. First, Plaintiff argues that the Magistrate Judge erred in
determining that the ALJ adequately assessed Plaintiff’s complaints of fibromyalgia at the second step
of the sequential evaluation, as well as erred in finding no error in the ALJ’s subsequent RFC assessment
based on those findings. Second, Plaintiff argues that the Magistrate Judge erred in finding that the ALJ
adequately considered Plaintiff’s combination of impairments because Plaintiff asserts that the ALJ did
not explain how her multiple impairments affected and limited her in combination. Third, Plaintiff
asserts that the Magistrate Judge erred in finding that the ALJ properly supported his reasons for
rejecting the opinion of treating physician Dr. Julie Ann Arellano, who gave several opinions regarding
Plaintiff’s mental conditions and their impact on Plaintiff’s ability to do basic work activities.
In his order, the Magistrate Judge recommends finding that the ALJ did not err in assessing
Plaintiff’s complaints of fibromyalgia because the ALJ appropriately discussed Plaintiff’s complaints
of fibromyalgia pain as part of the overall RFC assessment, as well as made proper findings at step two
of the assessment. Plaintiff objects to the Magistrate Judge’s recommendation that the ALJ properly
analyzed Plaintiff’s fibromyalgia complaints as a “non-severe” impairment and its corresponding effect
on the RFC. Plaintiff argues that her fibromyalgia diagnosis meets the requirements at step two of the
analysis in finding an impairment “severe,” and that the ALJ did not cite to any medical evidence to
support the opposite finding. Plaintiff further argues that the ALJ did not evaluate how fibromyalgia
affects the RFC in accordance with SSR 12-2p.
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The RFC is a determination by the ALJ, based on all relevant medical and non-medical evidence,
of what a claimant can still do despite her impairments. See 20 C.F.R. § 416.945; SSR 96-8p, 1996 WL
374184 (July 2, 1996). Where as here, if more than one impairment is present, the ALJ must consider
all of these medically determinable impairments, including those which are not “severe,” when
determining the RFC. See See 20 C.F.R. § 416.945. While there is no medical listing for fibromyalgia,
Titles II and XVI of Social Security Ruling 12-2p provide guidance in deciding whether a person has
a medically determinable impairment. SSR 12-2p defines fibromyalgia as follows: “a complex medical
condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft
tissues that persisted for at least 3 months.” SSR 12-2p provides further guidance as to how a
Commissioner should consider fibromyalgia in the five-step sequential evaluation process to determine
disability. Specifically, in determining the RFC, the Ruling provides, “[f]or a person with FM
[fibromyalgia], 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 good days.’” SSR 12-2p. The Sixth Circuit
has noted that the absence of objective medical evidence to substantiate a fibromyalgia diagnosis is
essentially irrelevant. Kalmbach v. Commissioner, 409 Fed. Appx. 852, 864 (6th Cir. 2011). Numerous
other courts have recognized the subjective nature of fibromyalgia symptoms. Dowell v. Colvin, No.
1:12CV1006, 2015 WL 1524767, at *3 (M.D.N.C. April 2, 2015).
The Magistrate Judge determined that the ALJ did not commit reversible error in his assessment
of Plaintiff’s fibromyalgia diagnosis, in part because Plaintiff had other medical diagnoses that could
result in complaints similar to fibromyalgia. However, as pointed out by Plaintiff in her objections, the
ALJ did not give that specific justification in determining that fibromyalgia was not a severe
impairment. In fact, while the ALJ briefly mentions within the decision that Plaintiff “alleges pain in
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her shoulders, hands, upper and lower back, legs and feet that is caused by fibromyalgia and
neuropathy,” the ALJ does not otherwise specifically consider or assess Plaintiff’s complaints of
fibromyalgia in any other part of his decision. [ECF #10-2, p. 23]. Thus, not only did the ALJ
determine that Plaintiff’s fibromyalgia was not a severe disorder, the ALJ also did not specifically
consider a fibromyalgia diagnosis at step two of the evaluation. This is the case despite the fact that at
the hearing, Plaintiff testified that she was experiencing pain due to fibromyalgia and diabetic
neuropathy. [ECF #10-2, p. 42]. She further testified that her doctors have explained to her that her back
pain is caused by fibromyalgia, while explaining to her at another appointment that her pain was due
to scoliosis. [ECF #10-2, p. 47]. There are at least three instances (as indicated by the Magistrate Judge)
where Plaintiff’s medical records reference a diagnosis for fibromyalgia. As pointed out by the
Magistrate Judge, Plaintiff’s initial diagnosis of fibromyalgia appears in a medical record dated July
17, 2014. While this is over a year after her disability onset date, Plaintiff has had a long history of
complaints associated with chronic pain, tenderness, and fatigue, and as indicated in SSR 12-2p, this
particular impairment necessitates a consideration of a claimant’s longitudinal record. Further, while
Plaintiff complained of pain associated with fibromyalgia at the hearing and complaints with this
condition are indicated in her medical records, the ALJ does not offer any explanation as to why he
determined this impairment did not impact the RFC, aside from mentioning this testimony in discussing
the RFC.
SSR 12-2p sets forth an explanation as to how a claimant can establish whether fibromyalgia is
a medically determinable impairment. SSR 12-2p further explains how to properly evaluate
fibromyalgia under the Act. Because it does not appear that the ALJ considered in the first instance
whether fibromyalgia was a severe impairment at step two, along with the fact that the ALJ did not
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appear to explain why fibromyalgia would or would not have an impact on the RFC, this Court cannot
determine whether substantial evidence supports the ALJ’s findings in this case. Accordingly, this
Court finds that this case should be remanded to allow the ALJ to conduct an analysis of Plaintiff’s
issues with fibromyalgia and determine its impact, if any, on Plaintiff’s RFC. Because this Court is
remanding this matter back to the Commissioner, this Court also finds that the ALJ should take into
consideration the other allegations of error, and make appropriate findings as to the other allegations
of error as well, to the extent those determinations are impacted by the additional analysis performed
with respect to Plaintiff’s fibromyalgia.
Conclusion
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 [ECF #17], and remands this case for further fact finding consistent with this
Order. The Commissioner’s decision is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and
this case is remanded to the Commissioner for further proceedings consistent with this Order.
IT IS SO ORDERED.
Florence, South Carolina
March 11, 2019
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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