MOSHER v. SAUL

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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

HEATHER M. MOSHER,

Plaintiff,

vs. Case No.: 5:18cv109/EMT

ANDREW SAUL,

Commissioner of Social Security,1

Defendant.

______________________________/

MEMORANDUM DECISION AND ORDER

This case has been referred to the undersigned magistrate judge for disposition

pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the

parties’ consent to magistrate judge jurisdiction (see ECF Nos. 8, 9). It is now before

the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”), for

review of a final decision of the Commissioner of the Social Security Administration

(“Commissioner”) denying Plaintiff’s application for supplemental security income

(“SSI”) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381–83.

1 Andrew Saul became the Commissioner of Social Security on June 17, 2019. Pursuant to

Fed. R. Civ. P. 25(d), he is therefore automatically substituted for Nancy A. Berryhill as the

Defendant in this case.

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Upon review of the record before this court, it is the opinion of the undersigned

that the findings of fact and determinations of the Commissioner are not supported by

substantial evidence; thus, the decision of the Commissioner should be reversed and

remanded for additional administrative proceedings.

I. PROCEDURAL HISTORY

On February 24, 2015, Plaintiff filed an application for SSI, and in the

application she alleged disability beginning January 1, 2007 (tr. 11).2 She later

amended the onset date to April 30, 2015 (tr. 11, 29). Her application was denied

initially and on reconsideration, and thereafter she requested a hearing before an

administrative law judge (“ALJ”). A hearing was held on February 27, 2017, and on

June 14, 2017, the ALJ issued a decision in which she found Plaintiff “not disabled,”

as defined under the Act, at any time from February 24, 2015, through the date of her

decision (tr. 11–20).3 The Appeals Council subsequently denied Plaintiff’s request

2 All references to “tr.” refer to the transcript of Social Security Administration record filed

on August 6, 2018 (ECF No. 12). Moreover, the page numbers refer to those found on the lower

right-hand corner of each page of the transcript, as opposed to those assigned by the court’s

electronic docketing system or any other page numbers that may appear.

3 As noted, Plaintiff amended her onset date to April 30, 2015, but the ALJ considered her

claim as though the relevant period commenced two months earlier, on February 24, 2015, the date

Plaintiff filed her application for SSI. The undersigned will do the same, see Moore v. Barnhart, 405

F.3d 1208, 1211 (11th Cir. 2005) (indicating that SSI claimant becomes eligible to receive benefits

in the first month in which she is both disabled and has an SSI application on file), but notes that the

minor discrepancy has no bearing on the court’s analysis or conclusions.

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for review. Thus, the decision of the ALJ stands as the final decision of the

Commissioner, subject to review in this court. Ingram v. Comm’r of Soc. Sec.

Admin., 496 F.3d 1253, 1262 (11th Cir. 2007). This appeal followed.

II. FINDINGS OF THE ALJ

In denying Plaintiff’s claims, the ALJ made the following relevant findings (see

tr. 11–20):

(1) Plaintiff has not engaged in substantial gainful activity since February 24,

2015, the application date;

(2) Plaintiff has the following severe impairments: fibromyalgia, L4-5 disc

herniation with foraminal encroachment, lumbosacral radiculitis, lumbar disc

degeneration, cervicalgia, plantar fasciitis (left foot), and obesity;

(3) Plaintiff has no impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1;

(4) Plaintiff has the residual functional capacity (“RFC”) to perform light

work as defined in 20 C.F.R. § 416.967(b) except Plaintiff must be able to alternate

between sitting and standing at thirty-minute intervals as needed; she can never climb

ladders, ropes, or scaffolds; she can occasionally climb ramps and stairs, balance,

stoop, and crouch but never kneel or crawl; she can occasionally be exposed to heat,

wetness, and humidity but should avoid all exposure to excessive vibration and

workplace hazards such as unprotected heights and moving machinery; and she would

be absent from work one day monthly due to her impairments;

(5) Plaintiff is unable to perform any past work;

(6) Plaintiff was born on October 11, 1975, and was 39 years of age, which

is defined as a younger individual aged 18–49, on the date the application was filed;

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(7) Plaintiff has at least a high school education and is able to communicate

in English;

(8) Transferability of job skills is not an issue because Plaintiff has no past

relevant work;

(9) Considering Plaintiff’s age, education, work experience, and RFC, there

are light jobs that exist in significant numbers in the national economy that Plaintiff

can perform, including office clerk assistant, ticket taker, and mail sorter;

(10) Plaintiff has not been under a disability, as defined in the Act, since

February 24, 2015, the date the application was filed.

III. STANDARD OF REVIEW

Review of the Commissioner’s final decision is limited to determining whether

the decision is supported by substantial evidence from the record and was a result of

the application of proper legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218

(11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only

when convinced that it is not supported by substantial evidence or that proper legal

standards were not applied.”); see also Lewis v. Callahan, 125 F.3d 1436, 1439 (11th

Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A determination

that is supported by substantial evidence may be meaningless . . . if it is coupled with

or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th

Cir. 1983), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd.,

921 F.2d 1210, 1214 (11th Cir. 1991). As long as proper legal standards were applied,

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the Commissioner’s decision will not be disturbed if in light of the record as a whole

the decision appears to be supported by substantial evidence. 42 U.S.C. § 405(g);

Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998); Lewis, 125 F.3d at 1439; Foote

v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a

scintilla, but not a preponderance; it is “such relevant evidence as a reasonable person

would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison

Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)); Lewis, 125

F.3d at 1439. The court may not decide the facts anew, reweigh the evidence, or

substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d

1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates

against the Commissioner’s decision, the decision must be affirmed if supported by

substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

The Act defines a disability as an “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). To qualify

as a disability the physical or mental impairment must be so severe that the claimant

is not only unable to do her previous work, “but cannot, considering [her] age,

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education, and work experience, engage in any other kind of substantial gainful work

which exists in the national economy.” Id. § 423(d)(2)(A). Pursuant to 20 C.F.R.

§ 404.1520(a)–(g),4 the Commissioner analyzes a disability claim in five steps:

1. If the claimant is performing substantial gainful activity, she is not

disabled.

2. If the claimant is not performing substantial gainful activity, her

impairments must be severe before she can be found disabled.

3. If the claimant is not performing substantial gainful activity and she has

severe impairments that have lasted or are expected to last for a continuous period of

at least twelve months, and if her impairments meet or medically equal the criteria of

any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is

presumed disabled without further inquiry.

4. If the claimant’s impairments do not prevent her from doing her past

relevant work, she is not disabled.

4 In general, the legal standards applied are the same regardless of whether a claimant seeks

disability insurance benefits (“DIB”) or SSI, but separate, parallel statutes and regulations exist for

DIB and SSI claims (see 20 C.F.R. §§ 404, 416). Therefore, citations in this Order should be

considered to refer to the appropriate parallel provision. The same applies to citations of statutes

or regulations found in quoted court decisions.

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5. Even if the claimant’s impairments prevent her from performing her past

relevant work, if other work exists in significant numbers in the national economy that

accommodates her RFC and vocational factors, she is not disabled.

The claimant bears the burden of establishing a severe impairment that keeps

her from performing her past work. 20 C.F.R. § 404.1512. If the claimant establishes

such an impairment, the burden shifts to the Commissioner at step five to show the

existence of other jobs in the national economy which, given the claimant’s

impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052

(11th Cir. 1986). If the Commissioner carries this burden, the claimant must then

prove she cannot perform the work suggested by the Commissioner. Hale v. Bowen,

831 F.2d 1007, 1011 (11th Cir. 1987).

IV. PLAINTIFF’S PERSONAL, EMPLOYMENT, AND MEDICAL HISTORY

A. Personal and Employment History

When Plaintiff applied for SSI in 2015, she was thirty-nine years of age, stood

at five feet and two inches, and weighed two-hundred pounds (tr. 49). She testified

at her hearing in February of 2017 that she last worked in 2007 as a cashier and quit

because the job caused her “stress” and because its physical requirements, namely,

lifting pallets, caused pain (tr. 32; see also tr. 160). She also previously worked as a

cook and a housekeeper (tr. 160).

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Plaintiff testified that she “feel[s]” she cannot work because her pain would

cause her to miss too many work days (tr. 32). She claimed that on “bad days” she

has to force herself to get out of bed, is unable to leave the house, and cannot trust

herself to drive or do anything properly (tr. 33). Plaintiff rated her pain at an eight or

a nine on a ten-point scale (hereinafter “[reported pain level]/10”) and noted it makes

her “nauseated” (tr. 35). Plaintiff stated that she has “about two” bad days per week

and that when her fibromyalgia “flares-up” the symptoms last a few hours to a few

days (tr. 36). Plaintiff reported “shooting pain” in her back, upper leg, and upper arm

that occurs “for no reason” (tr. 40). She also reported having “severe” headaches two

or three times per month that last a few hours to most of the day, and she noted that

medication does not help “very much” (tr. 40–41). Plaintiff stated she needs a cane

for assistance five to six times per month due to pain and numbness (tr. 39). Plaintiff

also has problems sleeping “most nights” and wakes up tired and fatigued (tr. 40).

She has three to four “good days” per week, during which her worst pain is at a 4/10;

however, she is able to “ignore [the pain] and work a little bit through it” (tr. 35–36).

On good days Plaintiff is able to do smaller loads of laundry, cook “a little,” do some

dishes, and perform other small chores (tr. 34).

B. Relevant Medical History

Evidence that Predates the Relevant Period

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Plaintiff first complained of back and neck pain during a visit with treating

physician John A. Spence, M.D., on August 25, 2011 (tr. 230). Thereafter, she was

seen periodically over the next several years by various providers, but despite her

regular complaints of pain in her neck and back and numbness in her extremities, her

examinations were largely unremarkable (see, e.g., tr. 231–32 (normal cervical and

musculoskeletal range of motion (“ROM”), to include in the right upper extremity),

tr. 256 (normal cervical ROM), tr. 259 (normal cervical ROM, mildly reduced lumbar

ROM, no instability), tr. 286 (normal ROM, negative straight leg test), tr. 305–06

(some pain and tenderness but normal ROM), tr. 316–17 (no abnormalities noted), tr.

319 (normal ROM and strength, negative straight leg test), tr. 218–219 (steady gait,

no abnormalities), tr. 216–17 (full motor strength in three extremities, normal ROM,

no instability), tr. 214–215 (normal gait, negative straight leg test, motor and sensory

examination normal/intact)).

Plaintiff was first assessed with fibromyalgia on December 13, 2012, at which

time Dr. Spence reported “11/18” tender points (tr. 286). On May 2, 2013, Dr. Spence

reported “16/18” tender points (tr. 295).

An MRI of the cervical spine from May 15, 2013, was largely normal and

revealed only minimal disc degeneration at C5-6, and an MRI of the lumbar spine

from March 17, 2014, revealed “minimal” and “slight” findings, including right near

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lateral disc herniation at L4-5 associated with foraminal encroachment (tr. 300, 211).

Plaintiff was diagnosed with lumbosacral radiculitis and cervicalgia (tr. 213, 260).

Overall, Plaintiff’s treatment was conservative, consisting of physical therapy

(tr. 236), injections (tr. 220), water therapy, and recommendations for lifestyle

changes (e.g., good nutrition, exercise program) (tr. 342).

Evidence from the Relevant Period (February 24, 2015–June 14, 2017)

At a visit with Dr. Spence on April 30, 2015, Plaintiff reported worsening back

and neck pain which caused problems with walking and sleeping, and she claimed to

be “miserable” (tr. 349). Dr. Spence again assessed fibromyalgia and reported

“15/18” tender points which were painful to light touch (tr. 350). In June of 2015,

Plaintiff reported trouble walking occasionally and felt she needed a cane at those

times (tr. 370). Despite Plaintiff’s complaints, Dr. Spence continued to document

normal ROM, normal strength in her back and extremities, and negative straight leg

tests (tr. 371, 374).

On January 19, 2016, Plaintiff reported that her pain had progressed to her heels

(left worse than right), but Dr. Spence found no decreased ROM, joint crepitations,

or pain on motion in the lower left extremity (tr. 379–80). Plaintiff was assessed with

lumbago, lumbar degenerative disc disease, fibromyalgia, and plantar fasciitis of the

left foot (tr. 380). Dr. Spence continued to treat Plaintiff conservatively, including by

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administering injections in June of 2015 and suggesting a Butrans patch in September

of 2015 (tr. 371, 375).

C. Other Information Within Plaintiff’s Claim File

A treating source orthopedic questionnaire addressed to Panhandle Family Care

Associates (“PFCA”) was completed on September 14, 2014 (tr. 209–10). The

provider’s signature is not legible, but the questionnaire indicates that Plaintiff had

last been examined on July 23, 2014 (id.).5 The provider assessed lumbago and

lumbar disc disease without myelopathy and reported that Plaintiff had limited ROM

only with forward flexion of the spine, as well as chronic pain (id.). Plaintiff was

noted to have full “5/5” strength in her grip and lower extremities (tr. 210).

According to the provider, she did not require an assistive device to ambulate and was

able to perform fine and gross manipulation on a sustained basis (id.).

On March 30, 2015, a physician at PFCA completed a treating source

fibromyalgia questionnaire (tr. 347–48). Again, the signature is illegible, but it

appears to have been completed by Dr. Spence. He reported that Plaintiff had a

history of chronic pain, malaise, and eleven positive tender points (tr. 347). Despite

5 It appears that Dr. Spence completed the questionnaire, as he is the primary provider

affiliated with PFCA, and he treated Plaintiff on July 23, 2014 (see tr. 333).

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this, she had 5/5 grip strength, 5/5 lower extremity strength, and did not require an

assistive device or frequent periods of rest (tr. 348).

On July 13, 2015, a non-examining agency physician, Efren Baltazar, M.D.,

assessed Plaintiff’s physical limitations (tr. 68–70). Dr. Baltazar’s opinions generally

correlate with a finding that Plaintiff could perform light work but with environmental

restrictions, to include no concentrated exposure to extreme heat, humidity, fumes,

odors, dusts, gases, poor ventilation, or hazards (see tr. 69–70).

A Vocational Expert (“VE”), Ron Mayne, testified at Plaintiff’s hearing (tr. 42–

46). He classified Plaintiff’s past work as a convenience store clerk, prep cook, and

housekeeper as either “medium” or “medium as performed” (tr. 43–44). Thus, he

found that a hypothetical person with Plaintiff’s RFC (i.e., light work but with

postural and environmental conditions) could not perform Plaintiff’s past work;

however, the person could perform other light jobs in the national economy such as

office work assistant, ticket taker, and mail sorter (tr. 44–45). With respect to “entry-

level positions,” the VE stated that an employee is “usually not allowed to miss any”

days during a “probationary period,” which is the first thirty to ninety days on the job

(tr. 45) (emphasis added). The VE also testified that if the person would be absent

“more than two days per month,” she could not maintain employment (tr. 45). Lastly,

the VE testified that a person who, on half of the days during the month, would be off

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task fifteen to twenty percent on unscheduled breaks, would not be employable in a

full-time position (tr. 46).

V. DISCUSSION

Plaintiff raises two grounds for relief: (1) the ALJ erred in relying upon the

VE’s testimony to find Plaintiff “not disabled” at step five, and (2) the ALJ erred in

evaluating Plaintiff’s subjective complaints of pain and other symptoms.

A. Vocational Expert Testimony

Plaintiff contends the ALJ erred by overlooking the VE’s testimony that an

individual who would be expected to be absent from work during a probationary

period would be unemployable (ECF No. 18 at 18).

In performing the five-step, sequential evaluation process, an examiner who

concludes that a claimant is unable to do her past relevant work must then proceed to

the “final step of the evaluation process to determine whether in light of ‘[RFC],’ age,

education, and work experience the claimant can perform other work.” Brown v.

Commissioner of Social Security, 680 F. App’x 822, 827 (11th Cir. 2017) (citing

Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002)). At this step, the ALJ is

responsible for providing evidence that demonstrates that other work exists in

significant numbers in the national economy that the claimant can do, given the

claimant’s RFC, age, education, and work experience. See 20 C.F.R. § 416.912(f); 20

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C.F.R. § 416.960(c). “There are two avenues by which the ALJ may determine

whether the claimant has the ability to adjust to other work in the national economy.”

Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). The ALJ may either apply

the Grids or she may consult a VE and pose hypothetical questions to establish

whether an individual with the claimant’s impairments would be able to find

employment. Id. at 1239–40.

Here, in determining Plaintiff’s RFC, the ALJ found that she was capable of

light work with added environmental and postural limitations, and the ALJ further

qualified that Plaintiff would be absent from work one day per month (tr. 15). Given

these limitations, the ALJ concluded that Plaintiff could not perform her past work.

Thus, the burden of showing the existence of other jobs in the national economy that

Plaintiff could perform shifted to the ALJ. MacGregor v. Bowen, 786 F.2d 1050,

1052 (11th Cir. 1986) (citing Gibson v. Heckler, 762 F.2d 1516, 1518 (11th Cir.

1985)).

To meet this burden, the ALJ first received testimony from the VE that a

hypothetical person with Plaintiff’s RFC could perform the three light jobs of office

work assistant, ticket taker, and mail sorter. The ALJ then elicited the following

testimony from the VE:

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ALJ: Now, if an individual had to miss work from time to time, what

—how many days could they miss work and still maintain their

job?

VE: No more than two days per month, your Honor.

ALJ: And then what if someone was consistently absent two days a

month?

VE: Well, actually, if you’re in a probationary period, in entry-level

positions, which is a 30 to 90 day period, the employee is usually

not allowed to miss any. After they have accrued some time,

following the probationary period, if it’s consistent, unscheduled

two days off each month, that would preclude full-time

employment.

(tr. 45).

Thus, in effect, the VE testified that a person with Plaintiff’s RFC—particularly

the requirement that she miss one day of work per month—would not be able to

sustain employment in entry-level positions that have probationary periods, because

no absences are permitted during the probationary periods of such jobs. Relying on

the VE’s testimony, the ALJ found Plaintiff not disabled at step five because she could

perform the “representative jobs” of office work assistant, ticket taker, and mail sorter

(tr. 19).

The ALJ’s finding at step five cannot be upheld. Although the VE did not

definitively state that the three jobs at issue are in fact “entry-level positions,” or that

each entails a probationary period, such is the implication when the exchange between

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the ALJ and VE is placed in context and considered as a whole.6 It thus appears that

Plaintiff cannot perform the “representative occupations” identified by the VE because

she would not be able to maintain employment during the probationary period(s) for

these occupations, due to the requirement in her RFC that she miss one day of work

per month.

The ALJ did not recognize, consider, or resolve this issue during the VE’s

testimony or later in her written opinion—and by failing to do so, the ALJ erred. See,

e.g., Social Security Ruling “SSR” 96-8p, 1996 WL 374184 (July 2, 1996) (in

determining a claimant’s RFC, the ALJ “must also explain how any material

inconsistencies or ambiguities in the evidence in the case record were considered and

resolved”); SSR 82-62, 1982 WL 31386 (Jan. 1, 1982) (“The rationale for a disability

decision must be written so that a clear picture of the case can be obtained. The

rationale must follow an orderly pattern and show clearly how specific evidence leads

to a conclusion.”); Allen v. Barnhart, 357 F.3d 1140, 1145–45 (10th Cir. 2004)

6 The VE did note that each of the three jobs has a Specific Vocational Preparation, or

“SVP,” of two, but SVP levels do not categorize jobs as to whether they are entry-level or whether

they have probationary periods. “[SVP] is the amount of lapsed time required by a typical worker

to learn the techniques, acquire the information, and develop the facility needed for average

performance in a specific job-worker situation.” See Dictionary of Occupational Titles (online, at

https://occupationalinfo.org/appendxc_1.html) (last visited Aug. 5, 2019). There are nine SVP

levels, with level-one jobs requiring the least amount of time to learn job skills (i.e., a “[s]hort

demonstration only”) and level-ten jobs requiring the most time (“[o]ver 10 years”). Id. Level-two

jobs require “[a]nything beyond short demonstration up to and including 1 month” to learn job skills.

Id.

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(district courts should not draw factual conclusions on behalf of an ALJ or create

post-hoc rationalizations to explain the Commissioner’s treatment of evidence when

that treatment is not apparent from the Commissioner’s decision itself) (citing SEC

v. Chenery Corp., 318 U.S. 80 (1943)); Green v. Shalala, 51 F.3d 96, 101 (7th Cir.

1995) (to permit an informed review, ALJ must articulate her analysis of the evidence;

“[o]nly then may a reviewing court track the ALJ’s reasoning and be assured that the

ALJ considered the important evidence”).

In Social Security cases, the role of this court is to determine whether the law

has been properly applied and whether substantial evidence supports the

Commissioner’s findings, not to find facts. Because of this limited role, the general

rule is to reverse and remand for additional proceedings when errors occur. See, e.g.,

Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (referring to general practice).

A case may be remanded for an award of disability benefits, however, where the

Commissioner has already considered the essential evidence and it is clear that the

cumulative effect of the evidence establishes disability without any doubt. Davis v.

Shalala, 985 F.2d 528, 534 (11th Cir. 1993); see also Bowen v. Heckler, 748 F.2d

629, 636 (11th Cir. 1984) (if the Commissioner’s decision is in clear disregard of the

overwhelming weight of the evidence, Congress has empowered the courts to modify

or reverse the decision with or without remanding the case for a rehearing); Carnes v.

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Sullivan, 936 F.2d at1219 (“The record . . . is fully developed and there is no need to

remand for additional evidence.”). In the instant case it is not clear that the

cumulative effect of the evidence establishes disability without a doubt, and thus the

ALJ’s error requires a remand for additional administrative proceedings.

B. Subjective Complaints of Pain and Other Symptoms

Although the undersigned has already determined that this case must be

remanded, the court will briefly discuss Plaintiff’s contention regarding the ALJ’s

alleged error in rejecting her subjective complaints of disabling pain and limitations.

When a claimant attempts to establish disability through her own testimony

about her pain or other subjective symptoms, a two-part “pain standard” applies.

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The pain standard requires

the claimant to show “(1) evidence of an underlying medical condition; and (2) either

(a) objective medical evidence confirming the severity of the alleged pain; or (b) that

the objectively determined medical condition can reasonably be expected to give rise”

to the claimed symptoms. Wilson, 284 F.3d at 1225; see also 20 C.F.R.

§ 404.1529(a)–(b).

If the ALJ determines that the claimant has a medically determinable

impairment that could reasonably produce the claimant’s pain or other symptoms, then

the ALJ evaluates the extent to which the intensity and persistence of those symptoms

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limit the claimant’s ability to work. 20 C.F.R. § 404.1529(b)–(c). See also SSR

16-3p, 2016 WL 1237954 (Mar. 28, 2016). An ALJ must “articulate explicit and

adequate reasons” for discrediting a claimant’s allegations of disabling symptoms.

Foote, 67 F.3d at 1561–62. “Although this circuit does not require an explicit finding

as to credibility, . . . the implication must be obvious to the reviewing court.” Id., 67

F.3d at 1562 (quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983)).

Here, the ALJ generally concluded that while Plaintiff’s impairments would

reasonably be expected to cause the alleged symptoms, her allegations regarding the

intensity, persistence, and limiting effects of these symptoms were not entirely

consistent with the evidence of record (tr. 16). In pertinent part, the ALJ considered:

(1) that Plaintiff’s treatment was conservative throughout the period of review,

consisting of pain management and recommended lifestyle modifications (tr. 213); (2)

that she had no joint crepitations, and while she reported using a cane at times, the

overall medical evidence revealed no walking limitations (tr. 380); (3) that various

examinations revealed steady gait, negative straight leg tests, and ROMs that were

largely within normal limits despite her persistent claims of moderate to severe pain

(tr. 213, 215, 217, 219, 371, 374); and (4) that the opinions of Dr. Baltazar and/or

those in the PFCA questionnaires noted full strength in Plaintiff’s grip and

extremities, an ability to perform fine and gross manipulative maneuvers on a

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sustained basis, and no need for an assistive device or frequent rest periods (tr. 68–70,

209–10, 347–48).

The foregoing shows that the ALJ evaluated Plaintiff’s subjective complaints

according to the appropriate pain standard. Nevertheless, Plaintiff contends the ALJ

erred in evaluating her fibromyalgia symptoms (ECF No. 18 at 18–26, citing SSR 12-

2p). Pared to its essence, Plaintiff’s argument is that fibromyalgia symptoms “wax

and wane” over time, so a normal physical examination and lack of disabling

symptoms on one day does not mean that she would have normal examinations and

no symptoms on other days (id.). But the regulation cited by Plaintiff addresses this

very point. See SSR 12-2P, 2012 WL 3104869, at *4–5 (July 25, 2012) (“Because the

symptoms and signs of [fibromyalgia] may vary in severity over time and may even

be absent on some days, it is important that the medical source who conducts the CE

[consultative evaluation] has access to longitudinal information about the person.”).

Here the ALJ considered the opinions of Dr. Spence, who, as Plaintiff’s treating

physician, had access to his own treatment records which cover an extended period

of time. Likewise, Dr. Baltazer reviewed multiple records before forming his opinions

in July of 2015, to include records from the PFCA, Tallahassee Orthopedic Clinic, and

Plaintiff’s primary care physician (tr. 63–67), as well as the results of physical

examinations and MRIs obtained in 2011, 2013, and/or 2014 (tr. 66). Thus, both

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physicians offered opinions regarding Plaintiff’s overall functional limitations after

considering the progression of Plaintiff’s condition and symptoms over time. As such,

the court finds no apparent error with regard to the ALJ’s consideration of Plaintiff’s

fibromyalgia-related complaints.

However, because the case is being remanded on other grounds, the

undersigned will direct the ALJ to reconsider Plaintiff’s fibromyalgia in determining

her RFC and in deciding whether the intensity and persistence of any fibromyalgia-

related symptoms limit her ability to perform work-related activities—in light of the

claim of error raised herein by Plaintiff.

VI. CONCLUSION

As explained above, the Commissioner’s final decision is not supported by

substantial evidence and cannot be affirmed. 42 U.S.C. § 405(g); Lewis, 125 F. 3d

at 1439; Foote, 67 F.3d at 1560. This action will therefore be remanded for additional

administrative proceedings. In particular, the ALJ should determine Plaintiff’s RFC

anew, including the effect of any fibromyalgia-related symptoms on the RFC, and

ensure that any findings at step five (or elsewhere) are consistent with the RFC.

Accordingly, it is hereby ORDERED:

1. That the clerk of court is directed to substitute Andrew Saul for Nancy

A. Berryhill as Defendant.

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2. That the Commissioner is directed to remand this case to an

Administrative Law Judge for further proceedings consistent with this Order.

3. That JUDGMENT is entered, pursuant to sentence four of 42 U.S.C.

§ 405(g), REVERSING the Commissioner’s decision and REMANDING this case

for further administrative proceedings.

4. That the Clerk is directed to close the file.

At Pensacola, Florida this 12th day of August 2019.

/s/ Elizabeth M. Timothy

ELIZABETH M. TIMOTHY

CHIEF UNITED STATES MAGISTRATE JUDGE