# Fons v. Acting Commissioner of Social Security

> District Court, S.D. Florida · August 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10117979

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** August 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10117979

## How later opinions describe it (automated extraction)

- holding that the reviewing court must not reweigh the evidence or substitute its discretion

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 19-cv-22250-UU

TAMMY FONS,

Plaintiff,

v.

ANDREW SAUL,
Commissioner of Social Security
Administration,

Defendant.
/

ORDER

THIS CAUSE comes before the Court upon Magistrate Judge O’Sullivan’s Report and
Recommendation (the “R&R”). D.E. 19.
THE COURT has reviewed the pertinent portions of the record and is otherwise fully
advised in the premises. For the reasons that follow, the R&R is respectfully REJECTED.
I. Background1
This case arises from Plaintiff’s application for Social Security Disability Insurance
Benefits, filed on July 17, 2015, in which Plaintiff alleged a disability due to fibromyalgia, myalgic
encephalomyelitis/chronic fatigue syndrome, and other impairments. D.E. 8, pp. 10–12.
Plaintiff’s claim was initially denied on February 10, 2016, and Plaintiff thereafter requested a
hearing before an Administrative Law Judge (“ALJ”), which was held on December 7, 2017. Id.
at 10. On September 4, 2018, upon review of Plaintiff’s application disability insurance benefits,
the ALJ decided that Plaintiff was not disabled under sections 216(i) and 223(d) of the Social

1 The facts of this case are well documented in the R&R. The Court, therefore, will
not provide an extensive recount of the facts.
Security Act. Id. at 21. On April 1, 2019, the Social Security Administration Appeals Council
denied Plaintiff’s request for review of the ALJ’s decision, finding “no reason under our rules to
review the [ALJ’s] decision.” Id. at 1. As such, the ALJ’s decision became the final decision of
the Commissioner of the Social Security Administration (the “Commissioner”). Id.
On May 31, 2019, Plaintiff commenced this action seeking judicial review of the final

decision of the Commissioner. D.E. 1. This matter was referred to Chief United States Magistrate
Judge O’Sullivan, who recommended that Defendant’s Motion for Summary Judgment (D.E. 15)
be granted and Plaintiff’s Motion for Summary Judgment (D.E. 14) be denied. D.E. 19. Plaintiff
timely filed objections to the R&R, specifically arguing that 1) Magistrate Judge O’Sullivan’s
recommendation to affirm the ALJ’s accordance of little weight to Dr. Vera Nunez should be
rejected; 2) Magistrate Judge O’Sullivan’s recommendation to affirm the ALJ’s reliance on Dr.
Bixler’s opinion should be rejected; 3) Magistrate Judge O’Sullivan’s recommendation to affirm
the ALJ’s evaluation of Ms. Fons’ subjective complaints should be rejected. D.E. 27. Defendant
elected not to file a response to Plaintiff’s objections. See D.E. 22.

II. Legal Standard
Upon receipt of specific objections, a “United States District Judge shall make a de novo
determination of those portions of the report.” Macort v. Prem, Inc., 208 F. App’x 781, 783 (11th
Cir. 2006). This Court’s review of factual findings in disability cases is limited to determining
whether the record contains substantial evidence to support the ALJ’s findings and whether the
correct legal standards were applied. 42 U.S.C. § 405(g) (2006); see Wolfe v. Chater, 86 F.3d
1072, 1076 (11th Cir. 1996) (holding that the reviewing court must not reweigh the evidence or
substitute its discretion). The Court “may not decide the facts anew, reweigh the evidence, or
substitute [its] judgment for that of the [ALJ].” Hacia v. Comm’r of Soc. Sec., 601 F. App’x 783,
786 (11th Cir. 2015) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 & n.8 (11th Cir. 2004)).
III. Analysis
A. Dr. Vera Nunez’s Opinion
As her first objection to the R&R, Plaintiff asserts that the “Magistrate Judge’s

recommendation to affirm the ALJ’s accordance of little weight to Dr. Vera Nunez should be
rejected.” D.E. 20, p. 1. As Plaintiff’s treating physician, the medical opinion of Dr. Vera Nunez
generally is entitled to “substantial or considerable weight.” Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1179 (11th Cir. 2011); see also 20 C.F.R. § 404.1527(c)(1) (“Generally, we give more
weight to the medical opinion of a source who has examined you than to the medical opinion of a
medical source who has not examined you.”). With good cause, however, “an ALJ may disregard
a treating physician’s opinion, but [the ALJ] must clearly articulate the reasons for doing so.”
Winschel, 631 F.3d at 1179 (internal quotation marks and citation omitted). Good cause exists
where: “(1) the treating physician’s opinion was not bolstered by the evidence; (2) the evidence

supported a contrary finding; or (3) the treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.” Id. A reviewing court should not “second guess the ALJ
about the weight the treating physician’s opinion deserves so long as he articulates a specific
justification for it.” Hunter v. Soc. Sec. Admin., 808 F.3d 818, 823 (11th Cir. 2015).
Dr. Vera Nunez provided a sworn statement regarding Plaintiff’s diagnosis and treatment
on November 7, 2017. D.E. 8, pp. 987–1031. Dr. Vera Nunez explained that Plaintiff “has a
diagnosis of chronic fatigue syndrome[/]myalgic encephalomyelitis,” along with “fibromyalgia
and autonomic dysfunction,” and that Plaintiff has “Esptein-Barr virus, viral reactivation, immune
dysfunction, and currently she’s being evaluated for hyper igG4 related disease.” Id. at 991. Dr.
Vera Nunez affirmatively testified that Plaintiff’s condition has been worsening and that Plaintiff
is “bed bound” and “only able to tolerate minimal amount of sitting up or standing up position, no
longer than five minutes at a time.” Id. at 1012.
In the ALJ’s decision, the ALJ stated that she “gave little weight to the opinions of Dr.
Vera Nunez” because Dr. Vera Nunez’s “statements are not supported or consistent with the

overall record.” Id. at 19. In ostensible support for this determination, the ALJ reasoned that “[f]or
the impairments [Plaintiff] has alleged and Dr. Vera-Nunez has evaluated, there exist very little in
terms of objective findings.” Id. As an addition basis for according little weight to Dr. Vera
Nunez’s opinion, the ALJ stated that Dr. Vera Nunez’s reports were “inconsistent with other
objective findings.” Id.
The Court finds that the ALJ failed to provide sufficient reasons for giving “little weight”
to Dr. Vera Nunez’s opinion. As for the ALJ’s first purported justification, the ALJ discounted
the testimony of Plaintiff’s treating physician due to a lack of objective evidence supporting her
diagnoses and opinion. But a “lack of objective clinical findings is, at least in the case of

fibromyalgia, . . . insufficient alone to support an ALJ’s rejection of a treating physician’s opinion
as to the claimant’s functional limitations.” Somogy v. Comm’r of Soc. Sec., 366 F. App’x 56, 64
(11th Cir. 2010); see also Sarchat 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.”). Indeed, an ALJ errs by relying “on the absence of objective evidence of
fibromyalgia to deny disability benefits.” Stewart v. Apfel, No. 99-6132, 245 F.3d 793, 2000 U.S.
App. LEXIS 33214 (11th Cir. Dec. 20, 2000); see also Smith v. Astrue, No. 10-CV-472, 2011 WL
5026218, at *20 (N.D. Fla. Sept. 16, 2011) (“It would be error to discount [the treating physician’s]
opinion in reliance upon a lack of objective medical evidence to support Plaintiff's description of
the degree of pain that she experiences from fibromyalgia.”).
As for the ALJ’s second basis for according little weight to Dr. Vera Nunez’s opinion, that
Dr. Vera Nunez’s reports were “inconsistent with other objective findings,” the ALJ offers only
one example of any such inconsistency. Specifically, the ALJ identifies that Dr. Vera Nunez’s

2016 report, which documented that Plaintiff “had decreased strength in her upper and lower
extremities and was not able to sustain physical activity for more than 5 seconds,” was “highly
inconsistent with [Plaintiff’s] physical exam from only one month earlier, which documented no
extremity weakness, gait disturbance or numbness, and normal – though painful – range of motion
throughout.” D.E. 8, p. 19. However, Dr. Vera Nunez’s report actually stated that Plaintiff could
not sustain a grip for more than 5 seconds, not that Plaintiff was unable to sustain physical activity
for more than 5 seconds. Id. at 579. This obvious mistake of fact undermines the ALJ’s analysis
as this is the single example the ALJ provides to illustrate apparent inconsistencies in Dr. Vera
Nunez’s reports.

Moreover, the Court is not persuaded that this one example provides the requisite good
cause to discount Dr. Vera Nunez’s opinion. Dr. Vera Nunez’s 2016 report is not directly
inconsistent with the physical exam, especially considering that fibromyalgia “can wax and wane
so that a person may have bad days and good days.” Kullman v. Berryhill, No. 17-CV-382, 2018
WL 4101009, at *9 (M.D. Fla. Aug. 12, 2018) (internal quotation marks and citation omitted).
The Court thus finds that this inconsistency does not constitute good cause for not giving
substantial weight to Dr. Vera Nunez’s opinion.
Accordingly, the ALJ did not articulate sufficient reasons for affording little weight to the
opinion of Plaintiff’s treating physician. On remand, the ALJ shall re-evaluate and either clearly
articulate sufficient justifications for discounting Dr. Vera Nunez’s opinion in light of the unique
nature of fibromyalgia, or in the alternative, the ALJ may accord Dr. Vera Nunez’s opinion the
substantial or considerable weight to which a treating physician’s opinion is generally entitled.
B. Dr. Bixler’s Opinion
Turning to Plaintiff’s second objection, Plaintiff argues that “the Magistrate Judge’s

Recommendation to affirm the ALJ’s reliance on Dr. Bixler’s opinion should be rejected.” D.E.
20, p. 3. In general, the opinion of an examining physician is “entitled to more weight than the
opinion of a non-examining physician.” Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985).
But it is not improper for an ALJ to rely on the opinion of a non-examining, non-treating physician,
such as Dr. Bixler, “as long as the opinion of the treating physician is accorded proper weight.”
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In other words, an ALJ does not err by
crediting the opinion of a non-examining physician over the opinion of a treating physician when
good cause is stated for discounting the treating physician’s opinion. Id.
Given the Court’s finding that the ALJ did not establish the requisite good cause for

discounting Dr. Vera Nunez’s opinion, the Court will sustain Plaintiff’s objection with respect to
Dr. Bixler’s opinion. On remand, the ALJ shall re-evaluate and accord proper weight to the
opinion of Dr. Bixler.
C. The ALJ’s Evaluations of Plaintiff’s Subjective Complaints
For her final objection, Plaintiff argues that “the Magistrate Judge’s recommendation to
affirm the ALJ’s evaluation of [Plaintiff’s] subjective complaints should be rejected.” D.E. 20, p.
3. When a plaintiff alleges “subjective complaints of disabling pain and other symptoms, . . . the
ALJ must clearly articulate explicit and adequate reasons for discrediting the [plaintiff’s]
allegations of disabling symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(internal quotation marks omitted). The Eleventh Circuit does not require an explicit finding as to
the plaintiff’s credibility, but “the implication must be obvious to the reviewing court.” Id. The
ALJ’s credibility determination “does not need to cite particular phrases of formulations but it
cannot merely be a broad rejection which is not enough to enable [the Court] to conclude that the
ALJ considered her medical condition as a whole.” Id. (internal quotation marks omitted).

In the decision, the ALJ stated that although Plaintiff “has medically determinable severe
impairments, these impairments do not cause the degree of limitations alleged by [Plaintiff],” and
that Plaintiff’s described limitations were “so extreme as to be implausible.” D.E. 8, p. 18. In
support of this determination, the ALJ found the “record contains substantial evidence of
[Plaintiff’s] subjective reporting regarding fibromyalgia, chronic fatigue and other symptoms, but
very little in terms of objective findings,” and that “the record regarding the degree of [Plaintiff’s]
limitations . . . appears based largely on [Plaintiff’s] own reporting.” Id. The ALJ noted that
Plaintiff’s “subjective complaints are found to be somewhat exaggerated.” Id. Further, the ALJ
stated that the inconsistencies in the record, “in combination with the minimal objective evidence

or physical exam findings render the extreme limitations less persuasive.” Id.
The Court finds that the ALJ failed to provide “explicit and adequate reasons” for
discrediting Plaintiff’s subjective complaints. The ALJ conceded that the record contained
substantial evidence of Plaintiff’s reporting of fibromyalgia and chronic fatigue syndrome, but
rejected Plaintiff’s subjective complaints due to a purported lack of objective evidence supporting
Plaintiff’s alleged limitations. As explained above, however, the “hallmark of fibromyalgia is . . .
a lack of objective evidence.” Somogy, 366 F. App’x at 63 (citing Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005)). And “[g]iven the nature of fibromyalgia, a claimant's subjective
complaints of pain are often the only means of determining the severity of a patient's condition
and the functional limitations caused thereby.” Id. at 64. As such, when evaluating fibromyalgia,
an “over-emphasis upon objective findings [is] inappropriate.” Rogers v. Comm’s Soc. Sec., 486
F.3d 234, 248 (11th Cir. 2007).
Other than a lack of objective medical findings, there is nothing in the record to suggest
that Plaintiff did not suffer the degree of impairment she reported. The ALJ’s broad rejection of

Plaintiff’s subjective complaints erroneously based on a lack of objective findings is therefore
inappropriate. On remand, the ALJ must re-assess Plaintiff’s subjective complaints and, if
appropriate, provide sufficient reasons and readily identifiable evidentiary support for discrediting
Plaintiff’s allegations of disabling symptoms.
IV. Conclusion
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that the R&R (D.E. 19) is respectfully REJECTED. It is
further
ORDERED AND ADJUDGED Defendant’s Motion for Summary Judgment (D.E. 15) is

DENIED, and Plaintiff’s Motion for Summary Judgment (D.E. 14) is GRANTED IN PART. It is
further
ORDERED AND ADJUDGED that this case is REMANDED to the ALJ for proceedings
consistent with this Order pursuant to 42 U.S.C. 405(g). Nothing in this Order shall be construed
as an opinion by this Court on the result that the ALJ should reach upon remand. It is further
ORDERED AND ADJUDGED that the Clerk of Court SHALL administratively close this
case. All pending hearings and deadlines are CANCELLED, and all pending motions are DENIED
AS MOOT.
DONE AND ORDERED in Chambers, Miami, Florida, this _25th_ day of August, 2020.
URSULA UNGARO
UNITED STATES DISTRICT JUDGE
Copies furnished:
All counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10117979. Public record. Not legal advice.