The opinion
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Tampa Division
CYNTHIA ROSAS AMIEL,
Plaintiff,
v. NO. 8:20-cv-1658-PDB
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Order
Cynthia Amiel brings this action under 42 U.S.C. § 405(g) to review a
final decision of the Acting Commissioner of Social Security denying her
application for disability insurance benefits. Doc. 1. Under review is a decision
by an Administrative Law Judge (ALJ) signed on October 22, 2019. Tr. 43–62.
Amiel argues the ALJ erred in determining her narcolepsy was
nonsevere and in failing to adequately consider her fibromyalgia. Doc. 28. The
Acting Commissioner contends there is no error. Doc. 29. The procedural
history, administrative record, and law are summarized in the briefs, Docs. 28,
29, and not fully repeated here.
The Social Security Administration (SSA) uses a five-step sequential
process to decide if a person is disabled, asking whether (1) she is engaged in
substantial gainful activity, (2) she has a severe impairment or combination of
impairments, (3) the impairment or combination of impairments meets or
equals the severity of anything in the regulatory listings, 20 C.F.R. Part 404,
Subpart P, App’x 1, (4) she can perform any of her past relevant work given
of jobs in the national economy she can perform given her RFC, age, education,
and work experience. 20 C.F.R. § 404.1520(a)(4).
Here, the ALJ conducted a hearing in September 2019, at which Amiel—
who was represented by counsel—and a vocational expert (VE) testified. Tr.
70–110. Afterward, the ALJ issued the decision under review, proceeding
through the five-step sequential process.
At step one, the ALJ found Amiel had not engaged in “substantial gainful
activity since August 4, 2017, the alleged onset date.” Tr. 45 (emphasis
omitted).
At step two, the ALJ found Amiel has severe impairments of
fibromyalgia, spinal stenosis, Hashimoto thyroiditis, lupus, migraine
headaches, and depression. Tr. 45. The ALJ found other impairments,
including narcolepsy, nonsevere. Tr. 45–46.
At step three, the ALJ found Amiel has no impairment or combination of
impairments that meet or medically equal the severity of any impairment in
the regulatory listings. Tr. 46.
The ALJ found Amiel has the RFC to perform “less than the full range
of light work”:
The claimant remains able to lift up to 20 pounds occasionally, lift or
carry up to 10 pounds frequently. Stand or walk approximately 6 hours
per 8-hour workday, and sit for approximately 6 hours per 8-hour
workday with normal breaks. Never climb ladders, ropes, or scaffolds.
Frequent all the other postural limitations including climbing ramps or
stairs, balancing, stooping, crouching, kneeling, and crawling. The
claimant must avoid concentrated exposure to extreme cold, excessive
wetness, excessive vibration, and hazards. The claimant is limited to
only understanding, remembering, and carrying out, and performing
simple, routine tasks and instructions.
Tr. 47 (emphasis omitted).
At step four, the ALJ found Amiel cannot perform any “past relevant
work.” Tr. 60 (emphasis omitted).
At step five, the ALJ relied on the VE’s testimony and found Amiel can
perform jobs that exist in significant numbers in the national economy and
thus is not disabled. Tr. 60–61.
A court’s review of a decision by the Acting Commissioner is limited to
whether substantial evidence supports the factual findings and whether the
correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart,
284 F.3d 1219, 1221 (11th Cir. 2002). Substantial evidence means “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoted authority
omitted). The “threshold for such evidentiary sufficiency is not high.” Id.
At step two, an ALJ considers whether a claimant has a severe
impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A
severe impairment significantly limits a claimant’s ability to do basic work
activities. See 20 C.F.R. § 404.1522(a) (defining “non-severe impairment”).
Basic work activities are the abilities and aptitudes necessary to do most jobs.
Id. § 404.1522(b). An impairment is nonsevere “only if the abnormality is so
slight and its effect so minimal that it would clearly not be expected to interfere
with the individual’s ability to work, irrespective of age, education or work
experience.” Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1265 (11th Cir.
2019). To be severe, an impairment must have lasted or be expected to last for
a continuous period of at least 12 months. 20 C.F.R. § 404.1509. A claimant
has the burden of proving an impairment is severe. Schink, 935 F.3d at 1265.
Step two is a “threshold inquiry and allows only claims based on the most
trivial impairments to be rejected.” Id. (internal quotation marks omitted). It
“acts as a filter” to eliminate claims involving no substantial impairment.
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). A finding of any severe
impairment satisfies step two. Id. Thus, an ALJ need not identify every severe
impairment at step two. Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x
949, 951 (11th Cir. 2014); Delia v. Comm’r of Soc. Sec., 433 F. App’x 885, 887
(11th Cir. 2011).
A claimant’s RFC is the most she can still do despite her limitations. 20
C.F.R. § 404.1545(a)(1). The RFC is used to decide whether the claimant can
perform past relevant work and, if not, to decide whether there are other jobs
in significant numbers in the national economy she can perform. Id.
§ 404.1545(a)(5). The “mere existence” of an impairment does not reveal its
effect on a claimant’s ability to work or undermine RFC findings. Moore v.
Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005). In assessing the RFC, the
ALJ must consider all impairments—severe and nonsevere. Schink, 935 F.3d
at 1268.
To determine disability, the SSA considers a claimant’s symptoms and
the extent to which they “can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(a).
Statements about symptoms alone cannot establish disability. Id.
§ 404.1529(a), (b). Objective medical evidence from an acceptable medical
source must show a medical impairment that “could reasonably be expected to
produce the … symptoms” and, when considered with the other evidence,
would lead to a finding of disability. Id.
The finding that an impairment could reasonably be expected to produce
the symptoms does not involve a finding on the intensity, persistence, or
functionally limiting effects of the symptoms. Id. § 404.1529(b). For that
finding, the ALJ considers all available evidence, including medical history,
medical signs, laboratory findings, and statements about how the symptoms
affect the claimant. Id. § 404.1529(a), (c).
The ALJ then determines the extent to which “alleged functional
limitations and restrictions due to … symptoms can reasonably be accepted as
consistent with the medical signs and laboratory findings and other evidence
to decide how” the symptoms affect the ability to work. Id. § 404.1529(a). The
ALJ’s “subjective symptom evaluation is not an examination of an individual’s
character.” SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017) (republished).
Factors relevant to evaluating the claimant’s symptoms include: daily
activities; the location, duration, frequency, and intensity of the symptoms;
precipitating and aggravating factors; the type, dosage, effectiveness, and side
effects of any medication to alleviate the symptoms; treatment for the
symptoms other than medication; and measures used to relieve the symptoms.
20 C.F.R. § 404.1529(c)(3).
To determine the extent to which the claimant’s symptoms affect her
capacity to perform basic work activities, the ALJ considers statements about
the intensity, persistence, and limiting effects of the symptoms; the statements
in relation to the objective medical and other evidence; any inconsistencies in
the evidence; and any conflicts between the statements and other evidence,
including history, signs, laboratory findings, and statements by others. Id.
§ 404.1529(c)(4).
An ALJ must clearly articulate explicit and adequate reasons for
rejecting a claimant’s testimony about symptoms. Foote v. Chater, 67 F.3d
1553, 1561–62 (11th Cir. 1995). A court will not disturb a clearly articulated
finding about the claimant’s symptoms if it is supported by substantial
evidence. Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir.
2014).
“Narcolepsy is a chronic neurological disorder characterized by recurrent
periods of an irresistible urge to sleep” that range from a few seconds to thirty
minutes. Soc. Sec. Admin., Program Operations Manual System, DI 24580.005.
Other common symptoms are cataplexy attacks (loss of muscle tone that
sometimes causes collapse and unconsciousness), hypnagogic hallucinations
(hallucinations between sleep and wakening), and sleep paralysis. Id.
Narcolepsy has no physical abnormalities, and except for sleep studies,
laboratory studies will be normal. Id. Narcolepsy is “most frequently treated
by the use of drugs[.]” Id.
Here, the ALJ found at step two that Amiel’s narcolepsy was nonsevere,
stating Amiel “did receive treatment for narcolepsy, but there is no evidence of
persistent symptomatology or ongoing treatment with respect to this
condition.” Tr. 45.
At the hearing, Amiel testified she stopped working primarily due to
fatigue. Tr. 81–83, 86, 92. She was diagnosed with narcolepsy. Tr. 82. When
asked to describe the effects of narcolepsy on her functioning, she testified she
never feels rested waking up. Tr. 86. She wakes up feeling like she is “drugged.”
Tr. 92. Despite trying to stay awake during the day, she typically naps for at
least two or three hours a day. Tr. 87. She worries about driving because of the
fatigue. Tr. 92. She drives “[v]ery rarely” and only about two miles. Tr. 95–96.
She stated, “I could literally be in the car at a stop light and close my eyes and
take cat naps, just severe, severe fatigue.” Tr. 83. She lacks the “stamina” to
walk around the grocery store and load the groceries. Tr. 96. As to household
chores, she testified, “I’m so weak and my stamina is so bad right now, I can’t
do very much without having to take breaks.” Tr. 96. She may load the
dishwasher on a “good” day and unload it on a “fantastic” day. Tr. 96. On a bad
day, she is usually in bed or on the couch. Tr. 96. From March to June 2019,
she kept a journal describing her “daily struggles.” Tr. 94; see Tr. 312–17
(journal). The journal repeatedly references fatigue. See Tr. 312–17.
Contrary to the ALJ’s finding, the record shows Amiel persistently
exhibited narcolepsy symptoms and received ongoing treatment for it. She has
been treated for her narcolepsy or fatigue by multiple doctors, including Dr.
Robert Bevis, Dr. Mohamad Shahrour, Dr. Ann Winny, and Dr. Eric Lipson.
The record shows Amiel began having “excessive daytime sleepiness” in 2016.
Tr. 457. In April 2017, she told Dr. Shahrour the fatigue was “getting worse”
and that she could “fall asleep anytime” and never feels refreshed. Tr. 457. In
May 2017, she underwent a sleep study that showed frequent leg movements
and poor sleep efficiency (55 percent efficiency) caused by frequent arousals (73
awakenings). Tr. 627–34. In June 2017, she told Dr. Winny the fatigue was
“still significant.” Tr. 472. Dr. Winny diagnosed her with “[s]evere fatigue of
unknown etiology.” Tr. 473. In February 2018, she told Dr. Shahrour she was
still having severe fatigue and “fighting hypersomnolence all day.” Tr. 339; see
also Tr. 334 (February 2018 medical records by Dr. Winny showing fatigue was
“present”). A few months later, she also told him she has had hypnagogic
hallucinations and sleep paralysis. Tr. 349.
In April 2018, she underwent another sleep study and a multiple sleep
latency test (MSLT). Tr. 635–39, 342–44 (sleep study); Tr. 640 (MSLT). The
sleep study showed a sleep efficiency of 67.5 percent, her “REM was severely
delayed,” and she experienced “[s]evere leg movements … throughout, with
frequent associated arousals” (30 awakenings). Tr. 635, 639. The MSLT
showed a short sleep latency (4.7 minutes). Tr. 402, 640. The polysomnographic
technologist recommended caution when driving. Tr. 343.
A few days later, Amiel told Dr. Shahrour she was still “very tired” and
hypersomnolent. Tr. 349. He diagnosed her with severe restless leg syndrome
and narcolepsy without cataplexy. Tr. 350. In May 2018, she “was still having
some hallucinations and occasional sleep paralysis.” Tr. 363. Dr. Shahrour
prescribed her armodafinil presumably for narcolepsy. Tr. 364. Shortly after,
Dr. Bevis diagnosed her with “[n]arcolepsy due to underlying condition without
cataplexy.” Tr. 380 (emphasis omitted). In July 2018, she told Dr. Winny her
fatigue was worse and sleep was poor. Tr. 383.
Despite taking medication, she continued to experience severe fatigue
with generally no improvement. See Tr. 398 (December 2018 medical records
showing that although treatment “seems to help,” Amiel does not sleep well,
she is “always fatigued,” her sleep is “not restful,” she “tosses in bed a lot,” and
her sleep is “always interrupted”); Tr. 663 (April 2019 medical records showing
Amiel appeared tired and reported being tired); Tr. 313 (April 2019 journal
entry stating, “Extremely tired and fatigued. I’m pretty much sleeping when
I’m not working”); Tr. 313–16 (May 2019 journal entries stating, “Called out
sick. I slept almost the entire 2 days I had off (Thursday/Friday). And still have
no energy and feel lethargic. Just don’t feel good. Not feeling it’s safe to drive
into work by myself”; “[F]eeling exhausted”; “Struggling today, Extreme
exhaustion”; “Extremely fatigued again today. Seems to be normal for me”;
“Sleeping 14–16 hours a day still. … There has to be something better to help
with Narcolepsy”); Tr. 665 (May 2019 medical records showing Amiel “sleeps
well” but “has not been feeling well [and] is fatigued”); Tr. 317 (June 2019
journal entries stating, “Very tired and weak today” and “still feeling very
weak and like I could pass out”; “Weak and shaky”). In June 2019, she stopped
taking armodafinil and told Dr. Lipson she still felt fatigued, “despite taking
medications.” Tr. 687.
Dr. Bevis opined in August 2018 that Amiel is “unable to hold any
meaningful position due to her profound fatigue and significant arthralgias
and myalgias and poor concentration.” Tr. 387. He added, “While we continue
to treat her condition and hope for improvement I feel it is unrealistic to believe
there will be a dramatic change in her status.” Tr. 387. Dr. Bevis and Dr. James
Shea (a physician who examined her in July 2019) both diagnosed her with
narcolepsy and opined she exhibits “severe fatigue,” defined as “a frequent
sense of exhaustion that results in significantly reduced physical activity or
mental function.” Tr. 698–701 (Dr. Bevis); Tr. 703–07 (Dr. Shea); see also Tr.
709–14 (Dr. Shea’s examination report).
Substantial evidence does not support the ALJ’s finding that Amiel’s
narcolepsy is nonsevere. Remand is warranted because the ALJ failed to
adequately consider Amiel’s fatigue in assessing the RFC and evaluating her
symptoms.
The ALJ determined that Amiel’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms,” but that her
“statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in th[e ALJ’s] decision.” Tr.
49. In summarizing the evidence, the ALJ references Amiel’s statements about
fatigue. See Tr. 48–51, 53–54, 57. In explaining why Amiel’s statements are
inconsistent with the evidence, the ALJ focused on the exertional limitations
caused by her physical impairments and the mental limitations caused by her
depression. See Tr. 59–60. The ALJ identified no inconsistencies between her
statements about fatigue and the evidence, and none are apparent. See
generally Tr. 48–60.*
Regarding Amiel’s remaining argument, fibromyalgia is 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, 2012 WL 3104869, at *2 (July 25, 2012). Symptoms of
fibromyalgia also include fatigue and “waking unrefreshed.” Id. at *3. “[T]he
symptoms and signs ... may vary in severity over time and may even be absent
on some days.” Id. at *5. Fibromyalgia “often lacks medical or laboratory signs”
and “is generally diagnosed mostly on [an] individual’s described symptoms.”
Moore, 405 F.3d at 1211. “Widespread pain and other symptoms associated
with [fibromyalgia], such as fatigue, may result in exertional limitations that
prevent a person from doing the full range of unskilled work in one or more of
the exertional categories[.]” SSR 12-2p, 2012 WL 3104869, at *6.
Considering that fatigue is a common symptom of fibromyalgia,
reevaluation of Amiel’s fatigue may affect the ALJ’s evaluation of her
*As the Acting Commissioner asserts, any issue the plaintiff fails to raise or fully brief
is waived. Doc. 29 n.3. Although Amiel did not specifically challenge the ALJ’s assessment of
her symptoms, she challenged the ALJ’s finding at step two, which requires an evaluation of
the RFC. A challenge to the RFC was thus implied and sufficiently raised. See Henry v.
Comm’r of Soc. Sec., 802 F.3d 1264, 1269 (11th Cir. 2015) (“Though Henry does not
specifically argue that the ALJ failed to develop a full and fair record, this argument falls
within our review of his substantial evidence claim. Our jurisdiction encompasses not only
those issues that a party expressly referred to but also those impliedly intended for appeal.
It is impossible to review whether the ALJ’s decision is supported by substantial evidence if
the record is not fully and fairly developed.” (internal quotation marks and citations
omitted)).
fibromyalgia. The Court thus need not address Amiel’s remaining argument
that the ALJ failed to adequately consider her fibromyalgia.
The Court reverses the Acting Commissioner’s decision under sentence
four of 42 U.S.C. § 405(g) and remands the case to the Acting Commissioner
to reconsider Amiel’s narcolepsy and statements about fatigue, reconsider
Amiel’s fibromyalgia as necessary, and take any other appropriate action.
The Court directs the clerk to enter judgment for Cynthia Amiel and
against the Acting Commissioner of Social Security and close the file.
Ordered in Jacksonville, Florida, on March 22, 2022.
PATRICIA D. BARKSDALE
United States Magistrate Judge
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