Oder v. Commissioner of Social Security

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KAREN O., Case No. 1:21-cv-738

Plaintiff,

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

MEMORANDUM OPINION AND ORDER1

Plaintiff Karen O. filed this Social Security appeal in order to challenge the

Defendant’s finding that she is not disabled. See 42 U.S.C. §405(g). Proceeding through

counsel, Plaintiff presents three claims of error. For the reasons explained below, the

ALJ’s finding of non-disability is REVERSED because it is not supported by substantial

evidence in the record as a whole.

I. Summary of Administrative Record

The above-captioned case represents Plaintiff’s second appeal in this Court of the

Defendant’s adverse finding that she is not disabled. The administrative record begins in

April 2016, when Plaintiff filed an application for Disability Insurance Benefits (“DIB”),

alleging she became disabled on October 12, 2015 primarily due to fibromyalgia and

chronic fatigue syndrome. After her application for benefits was denied initially and upon

reconsideration, Plaintiff requested an evidentiary hearing before an Administrative Law

Judge (“ALJ”). At a hearing held on July 10, 2018, Plaintiff appeared with former counsel

1The parties have consented to disposition by the undersigned magistrate judge. See 28 U.S.C. § 636(c).

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42-81). On December 13, 2018, the ALJ issued her first adverse written decision,

concluding that Plaintiff was not disabled. (Tr. 24-37). Through new counsel, Plaintiff

sought further review before the Appeals Council. The Appeals Council denied review,

and Plaintiff filed her first judicial appeal. See Case No. 1:19-cv-1093-DRC-KLL

After Plaintiff filed her Statement of Errors in this Court, the parties jointly agreed

to remand for further review. In their joint motion, the parties agreed:

The Administrative Law Judge will re-evaluate Plaintiff’s mental

impairments at Step Two. The ALJ will re-weigh the treating source opinions

and reconsider Plaintiff’s physical and mental RFCs pursuant to both 20

C.F.R. § 404.1527(c) and SSR 96-2p. The ALJ will also re-evaluate the

credibility of Plaintiff’s subjective complaints of pain and chronic fatigue in

accordance with SSR 12-2p and 14-1p. The Commissioner will develop the

administrative record as necessary to determine whether Plaintiff is

disabled within the meaning of the Social Security Act, hold a new hearing,

and then issue a new decision.

(Id., Doc 16 Filed: 07/28/20). The Court granted the motion to remand without the

incorporation of any specific instructions. (Id., Doc. 17).

Following remand, the Appeals Council entered a detailed order that elaborated

upon numerous deficiencies it found with the ALJ’s first opinion. (Tr. 1011-1019). On

January 28, 2021, the same ALJ conducted a new telephonic hearing,2 (Tr. 940-966). On

April 28, 2021, the ALJ issued a second adverse decision. The Appeals Council declined

further review, leaving the ALJ’s second decision intact as the final decision of the

Commissioner. (Tr. 910-940). Plaintiff then filed this second judicial appeal.

Plaintiff was considered a “younger individual,” at 46 years old on her alleged

disability onset date, but had progressed to the “closely approaching advanced age“

2Proceedings were conducted telephonically due to the ongoing Covid-19 pandemic.

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education and worked in the Human Resources field for more than 25 years. Her prior

semi-skilled and skilled positions ranged from specific vocational profiles (“SVP”) of four

(data entry clerk and personnel clerk) up to seven (HR administrator). (Tr. 931).

The ALJ determined that Plaintiff has severe impairments of fibromyalgia (“FM”),

chronic fatigue syndrome (“CFS”), chronic pain syndrome and obstructive sleep apnea,

as well as non-severe impairments of obesity, a mood disorder, and an adjustment

disorder. (See Tr. 26; Tr. 917). Plaintiff does not dispute the ALJ’s determination that

none of her impairments, either alone or in combination, met or medically equaled any

Listing in 20 C.F.R. Part 404, Subpart P, Appendix 1, such that Plaintiff would be entitled

to a presumption of disability. (See Tr. 920). Considering all of Plaintiff’s impairments,

the ALJ found that Plaintiff retains the residual functional capacity (“RFC”) to perform a

restricted range of light work, subject to the following limitations:

[T]he claimant could occasionally climb ramps and stairs, but never climb

ladders, ropes, or scaffolds. She could occasionally balance, stoop, kneel,

crouch, and crawl. The claimant should avoid concentrated exposure to

extreme cold and wetness. She should avoid even moderate exposure to

fumes, odors, dusts, gases, and poor ventilation. Finally, the claimant

should avoid all unprotected heights, heavy machinery, and commercial

driving.

(Tr. 921; see also Tr. 35-36).3

Based upon the RFC as determined, the ALJ held that Plaintiff could perform all of

her past relevant semi-skilled and skilled HR jobs. (Tr. 932). In the alternative, the ALJ

found that Plaintiff could perform a substantial number of unskilled jobs in the national

economy, including the representative positions of office worker, assembler, and

3The RFC assessed after the second evidentiary hearing was identical to the prior RFC except for the

limitation to avoid “extreme cold and wetness.”

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not under a disability. The Appeals Council declined further review.

In this judicial appeal, Plaintiff asserts closely related errors: (1) the ALJ failed to

consider the record as a whole when determining Plaintiff’s RFC; (2) the ALJ failed to

consider the nature of fibromyalgia (“FM”) and chronic fatigue syndrome (“CFS”); and (3)

the ALJ improperly evaluated the medical opinion evidence. Plaintiff further argues that

the ALJ failed to comply with the detailed instructions of the Appeals Council on remand.

For the convenience of the Court, the undersigned discusses the alleged errors in a

different order than presented.

II. Analysis

A. Judicial Standard of Review

To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C.

§1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or

mental impairments that are both “medically determinable” and severe enough to prevent

the applicant from (1) performing his or her past job and (2) engaging in “substantial

gainful activity” that is available in the regional or national economies. See Bowen v. City

of New York, 476 U.S. 467, 469-70 (1986).

When a court is asked to review the Commissioner’s denial of benefits, the court’s

first inquiry is to determine whether the ALJ’s non-disability finding is supported by

substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation

omitted). In conducting this review, the court should consider the record as a whole.

Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports

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evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35

F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary’s findings are not subject to reversal merely because

substantial evidence exists in the record to support a different conclusion....

The substantial evidence standard presupposes that there is a ‘zone of

choice’ within which the Secretary may proceed without interference from

the courts. If the Secretary’s decision is supported by substantial evidence,

a reviewing court must affirm.

Id. (citations omitted); see also Biestek v. Com’r of Soc. Sec., 139 S. Ct. 1148, 1154

(2019) (explaining that “the threshold for such evidentiary sufficiency is not high.”)

In considering an application for supplemental security income or for disability

benefits, the Social Security Agency is guided by the following sequential benefits

analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial

gainful activity; at Step 2, the Commissioner determines if one or more of the claimant’s

impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant’s

impairments, singly or in combination, meet or equal a Listing in the Listing of

Impairments; at Step 4, the Commissioner determines whether or not the claimant can

still perform his or her past relevant work; and finally, at Step 5, if it is established that

claimant can no longer perform his or her past relevant work, the burden of proof shifts to

the agency to determine whether a significant number of other jobs which the claimant

can perform exist in the national economy. See Combs v. Com’r of Soc. Sec., 459 F.3d

640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.

A plaintiff bears the ultimate burden to prove by sufficient evidence that she is

entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must

present sufficient evidence to show that, during the relevant time period, she suffered an

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left her unable to perform any job. 42 U.S.C. § 423(d)(1)(A).

B. Plaintiff’s Claims

1. This Court Lacks Jurisdiction to Consider the ALJ’s Alleged Failure

to Comply with the Appeals Council’s Remand Order

Before turning to Plaintiff’s specific claims, the Court must address a preliminary

issue concerning the jurisdictional scope of this case. Throughout her 45-page Statement

of Errors, Plaintiff argues repeatedly that the ALJ ignored and/or failed to comply with the

Appeals Council’s remand order. (See, e.g., Doc. 9 at 4-8, 14-16, 18-21, 29, 36-37, 43-

44). The Commissioner does not respond to these arguments.

Even if the ALJ disregarded the Appeals Council, this Court lacks jurisdiction to

review the ALJ’s compliance with its order of remand. “Plainly stated, this Court's scope

of review is limited to an analysis of the ALJ's decision and not a review of the ALJ's

compliance with the Appeals Council's Order of Remand.” Amber R. v. Com’r of Soc.

Sec., 2022 WL 3966676, at *2 (S.D. Ohio Aug. 31, 2022) (quoting Prichard v. Astrue, No.

2:08-0055, 2011 WL 794997, at *15 (M.D. Tenn. Feb. 28, 2011) (internal quotation

omitted)). The Sixth Circuit has not yet addressed the issue, but the “overwhelming

majority of courts in this circuit…have determined that federal courts lack jurisdiction to

consider whether an administrative law judge complied with the Appeals Council's

instructions on remand.” Shope v. Com’r of Soc. Sec., 2015 WL 3823165, at *8 (S.D.

Ohio June 19, 2015), adopted at 2015 WL 6155919 (Oct. 20, 2015); see also Hubbard v.

Com’r of Soc. Sec., 2019 WL 4593624, at *2 (E.D. Mich. Sept. 23, 2019); but see Kaddo

v. Com’r of Soc. Sec., 238 F.Supp.3d 939, 943-44 (E.D. Mich. 2017) (adopting minority

view that jurisdiction exists).

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ALJ’s decision following a remand order, as occurred in this case, constitutes an implicit

finding that the Appeals Council found the second decision to comply with its prior remand

order. See Amber R., 2022 WL 3966676, at *2; Hubbard, 2019 WL 4866733, at *3

(same); Brown v. Com'r of Soc. Sec., 2009 WL 465708, at *6 (W.D. Mich. Feb. 24, 2009).

Moreover, the actual directives of the Appeals Council did not dictate any particular

outcome. See generally, Foster v. Halter, 279 F.3d 348, 356 (6th Cir. 2001).

2. The ALJ’s Erred in the Evaluation of the Medical Opinion Evidence

and Failure to Fully Consider the Longitudinal Record

Plaintiff argues that the ALJ erred when she failed to give controlling weight to her

treating physician and gave the greatest weight to the opinions of non-examining agency

physicians when she assessed Plaintiff’s RFC. Notwithstanding this Court’s inability to

review the ALJ’s compliance with the Appeals Council’s Order, the Court agrees that the

ALJ committed multiple reversible errors when she evaluated the medical opinion

evidence and failed to consider the longitudinal record in the context of FM and CFS.

This case is governed by social security regulations applicable to claims filed

before March 27, 2017. Those regulations provide for the opinions of treating physicians

to be given the most weight, and the opinions of examining consultants to be given greater

weight than the opinions of non-examining consultants.4 20 C.F.R. § 404.1527(c)(1). The

treating physician regulation specifies in relevant part that:

If we find that a treating source's medical opinion on the issue(s) of the

nature and severity of your impairment(s) is well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in your case record, we will

give it controlling weight. When we do not give the treating source's medical

4Effective March 27, 2017, many long-standing regulations have been revised or rescinded. A new rule

entirely replaces the treating physician rule. See 20 C.F.R. § 404.1520c.

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and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3)

through (c)(6) of this section in determining the weight to give the medical

opinion. We will always give good reasons … for the weight we give your

treating source's medical opinion.

20 C.F.R. § 404.1527(c)(2); see also Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *2

(July 2, 1996). Only if an ALJ determines that the treating physician’s opinions are not

entitled to controlling weight should the ALJ consider additional factors to determine how

much weight should be afforded to the opinion, such as “the length of the treatment

relationship and the frequency of examination, the nature and extent of the treatment

relationship, supportability of the opinion, consistency of the opinion with the record as a

whole, and any specialization of the treating physician.” Blakley v. Com’r of Soc.

Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1527(c)(2) - (c)(6).

While an ALJ must always provide “good reasons,” it is permissible “[i]n

appropriate circumstances” to give greater weight to the opinions of state agency medical

consultants. Blakley, 581 F.3d at 409, quoting Soc. Sec. Rul. 96-6p, 1996 WL 374180, at

*3 (July 2, 1996). In Blakley, the Sixth Circuit reversed because the non-examining

sources on whom the ALJ relied did not have the opportunity to review “much of the over

300 pages of medical treatment ... by Blakley's treating sources,” and the ALJ failed to

indicate that he had “at least considered [that] fact before giving greater weight” to the

consultants’ opinions. Id. In this case, the ALJ committed a similar error,

Without elaboration, the ALJ gave the most weight to two agency physicians on

grounds that they are “familiar with Social Security Rules and Regulations,” and that their

opinions are “well supported” with ““no subsequent evidence to warrant a departure” from

their conclusions. (Tr. 926-927). Contrary to that cursory statement, the consulting

opinions, rendered in 2016 after review of approximately six months’ worth of post-onset

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subsequent records, including a definitive diagnosis of CFS. And, while Plaintiff’s

profound fatigue from CFS represents her primary symptom, neither agency physician

even listed CFS as a “medically determinable impairment.” (Tr. 87, 103). Both consultants

also discounted Plaintiff’s subjective reports of “severe fatigue/pain” based upon an

(incorrect) view that “she isn’t noted to be tired at doctors[‘] visits,” and “did not seem to

have low energy at CE [psychological exam].” (Tr. 90; Tr. 105). Notably, after the

consultants’ review, Plaintiff’s treating physician submitted 5 separate opinion letters that

included the CFS diagnosis and addressed the issue of fatigue. In fact, many of the

subsequent records contain references by treating physicians that reflect Plaintiff’s

consistent complaints of extreme fatigue,6 as well as notes that record the treating

physician’s clinical observations of exhaustion, including yawning.

Considering their failure to consider Plaintiff’s CFS and extremely limited access

to the longitudinal record, the ALJ’s acceptance of the consulting opinions as “well

supported” makes little sense. And the record flatly refutes the ALJ’s dismissive

statement concerning the absence of relevant evidence after their 2016 opinions were

rendered. As in Blakley, the ALJ’s analysis gives overly short shrift to the significant body

of evidence that post-dated the review by agency physicians and undermined their RFC

findings. Accord, Engel v. Com’r of Soc. Sec., 2014 WL 1818187, at *13 (S.D. Ohio May

7, 2014), adopted at 2014 WL 2452995 (June 2, 2014). In contrast to her cursory

5Dr. Indira Jasti reviewed a function report dated May 10, 2016, records through April 8, 2016 from Mercy

Health, and records through April 26, 2016 from Dr. Pretorius. (Tr. 86). On reconsideration, Dr. Diane

Manos reviewed the same evidence plus minimal additional medical evidence, through August 25, 2016,

from Mercy Health. (Tr. 100).

6For example, by early 2016, Plaintiff was complaining of increased fatigue to her treating pain specialist.

(Tr. 375).

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of Plaintiff’s treating physician, which in itself constitutes legal error. See Gayheart v.

Com’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013).

Most of the relevant evidence in this case is from Dr. Duell, a family physician who

frequently treated Plaintiff over an 8+ year period beginning in October 2012, 3 years prior

to her disability onset date. Dr. Duell diagnosed both FM and CFS.7 (Tr. 1258). She

provided five opinions between 2016 and 2020, both on questionnaires and in narrative

letters, concerning Plaintiff’s limitations. Dr. Duell’s opinions contain the following work-

preclusive limitations: (1) fatigue-related postural limitations in standing/walking and

sitting that limit Plaintiff to 3 hours per day; (2) pain and fatigue-related exertional

limitations that preclude sustained activity for more than a few hours per day; and (3)

frequent and unpredictable symptoms that are severe enough to require absences from

work on a weekly basis.

On November 18, 2016, Dr. Duell first opined upon Plaintiff’s postural limitations,

stating that Plaintiff can only stand/walk for up to 1 hour and sit for up to 2 hours total in

an 8-hour day. (Tr. 504-508). In narrative form, she explains in relevant part that

Plaintiff’s endurance is “generally decreased due to fatigue,” that her myalgias and pain

are “constant” despite treatment, and that the “frequency [of] her symptoms” would cause

her to “miss several days of work weekly.” (Tr. 507, 510).

On February 5, 2018, Dr. Duell opined that Plaintiff was disabled due to multiple

limitations from FM and CFS for which medications provided “only modest improvement.”

7Dr. Duell refers to the diagnosis as “CFS/“ME.” The full name of the diagnosis is sometimes referred to as

“Myalgic Encephalomyelitis/Chronic Fatigue Syndrome.” See https://www.cdc.gov/me-cfs (accessed on

10/18/2022).

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“inability to work is entirely the result of her …physical symptoms.” (Id.) Dr. Duell

describes “marked impairment of her daily activities” including difficulty getting “out of bed

or off the couch most days.” (Id.) Dr. Duell attributes Plaintiff’s limitations to extreme

fatigue and explains that when Plaintiff engages in any exertion such as running an

errand, she needs to “rest by laying down the remainder of the day.” (Id.) Dr. Duell opines

that restricting activity “is the only way to prevent exacerbation” of her CFS. She reiterates

the postural limitations stated in her November 2016 letter, (Tr. 896), and concludes that

Plaintiff is limited to only “mild intermittent activity,” with an “unpredictable” ability to

“sustain any activity for even a few hours a day.” (Tr. 893). In support of her diagnoses

of FM and CFS, Dr. Duell lists more than 50 rule-out tests that Plaintiff has undergone

over a 4-year period. (Tr. 894-895).

In a lengthy letter dated July 2, 2018,8 Dr. Duell again focused on Plaintiff’s CFS

and fatigue. Dr. Duell emphasizes that she has “personally witnessed her physical and

emotional struggles that come with the many symptoms associated with both fibromyalgia

and CFS/ME.” (Tr. 1258). Dr. Duell states that Plaintiff has “consistently indicated that

her fatigue is the most devastating symptom,” and that clinical notes document her

“appearing exhausted and yawning during the majority of her visits.” (Id.) Dr. Duell writes:

Diagnosis [of CFS] requires that the patient have the following three

symptoms: 1. A substantial reduction or impairment in the ability to engage

in pre-illness levels of occupational, educational, social, or personal

activities, that persists for more than 6 months and is accompanied by

fatigue, which is often profound, is of new or definite onset (not lifelong), is

not the result of ongoing excessive exertion, and is not substantially

alleviated by rest, and 2. Post-exertional malaise,* and 3. Unrefreshing

sleep* At least one of the two following manifestations is also required: 1.

8The July 2018 letter was written after Cigna initially denied Plaintiff private disability benefits. Cigna

awarded full benefits on November 2, 2018.

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main symptoms in which 4 out of 5 should be present, Karen exhibits all five

symptoms.

(Tr. 1258).

In addition to treatment records, Dr. Duell cites to symptom information from the

CDC and to a Functional Capacity Evaluation (“FCE”) dated June 2018 to support her

RFC opinions that Plaintiff cannot engage in any sustained activity. Dr. Duell also cites

to Plaintiff’ “orthostatic intolerance.”

This disease is characterized by profound fatigue, cognitive dysfunction,

sleep abnormalities, autonomic manifestations, pain, and other symptoms

that are made worse by exertion of any sort. ME/CFS can severely impair

patients' ability to conduct their normal lives.

As noted above, one of the core symptoms of CFS/ME is post-exertional

malaise which is the worsening of symptoms after even minor physical or

mental activity. The symptoms typically get worse 12 to 48 hours after the

activity and can last for days or even weeks. Please see the enclosed CDC

symptoms page which supports this outcome.

I have reviewed the Functional Capacity Evaluation Karen completed … at

Oxford Physical Therapy which shows post-exertional malaise was present

toward the end of day one and all of day two. This is evidenced by the

increase in heart rate noted as well as the examiner's visual exam of Karen.

This demonstrates that post-exertional malaise is exacerbating Karen's

symptoms.

Karen reports that a typical day is mostly spent laying down on her couch

because sitting in an upright position exerts too much energy. This is in

response to the orthostatic intolerance symptom that is present with

CFS/ME.

(Tr. 1259).

Dr. Duell concludes with an endorsement of the FCE report:

[A]ccording to the results she demonstrated poor function and system

exacerbation post exertion which severely limits her ability to engage in

normal activities of daily living. Her metabolic responses, workload,

cardiovascular responses, respiratory responses and recovery response

were all abnormal. The evidence in the report on heart rate, respiration,

oxygen consumption and work in watts supports the conclusion that Karen’s

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mental activity will demand more energy than can be aerobically generated.

The report found that Karen’s ventilator/anaerobic threshold was such that

merely engaging in normal activities of daily living will demand more energy

than Karen is able to generate aerobically. Performing such tasks on a

consistent basis is a challenge that will likely precipitate the

onset/exacerbation of symptoms, including excessive fatigue and pain. This

is both a demonstration of physical impairment and a quantifiable limitation

of her ability to function in a work environment.

(Tr. 1260-1261) (minor typographical errors corrected). On August 15, 2018, Dr. Duell

wrote a fourth, virtually identical RFC opinion letter. (Tr. 1262-1263).

On December 8, 2020, Dr. Duell wrote a fifth letter reiterating that Plaintiff

“continues to experience significant daily pain” and “excessive daytime sleepiness and

fatigue” on her medications. (Tr. 1264). Dr. Duell again opines that Plaintiff is limited to

“only mild intermittent activity,” and expresses “doubt that [Plaintiff] would be able to

sustain any sort of productive activity for an entire day.” (Id., emphasis added).

If somehow she could, she would unquestionably pay for it the next couple

of days. As I have also said in prior reports, Karen in my opinion would not

be able to maintain any sort of reliable schedule because she never knows

one day to the next just how bad things will be in terms of her pain or her

fatigue or both. This makes planning virtually impossible for her. At the

same time, Karen continues to have cognitive dysfunction (what some

people would term "fibro fog") which very definitely affects her ability to

comprehend, to retain information, and to focus or concentrate.

(Tr. 1264).

The ALJ rejected all of Dr. Duell’s opinions as entitled to “little weight.” The ALJ’s

reasons for rejecting the treating physician’s RFC opinions are not “good reasons” and

her analysis is not substantially supported.”9 For example, the ALJ first criticizes Dr.

Duell’s opinions as “extreme.” (Tr. 928). But any opinion that includes restrictions to less

9However, the ALJ properly rejected Dr. Duell’s conclusions that Plaintiff is “disabled.” Such conclusions

are legal determinations, not medical opinions, and are reserved to the Commissioner. (Tr. 927).

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permit an ALJ to disregard an opinion from a treating physician unless it is not “well

supported” or is “inconsistent with other substantial evidence.”

Here, the ALJ implies that Dr. Duell’s opinions are not well supported due to a lack

of corroborative “objective” testing and the fact that Plaintiff had “minimal objective

abnormalities” upon examination. (Tr. 928; see also id., repeatedly noting a lack of muscle

wasting or other “objective medical evidence of record” aside from trigger points and

tenderness). However, the ALJ’s focus on “objective” evidence and lack of “abnormal”

musculoskeletal results suggests a fundamental misunderstanding of FM and CFS that

runs contrary to the guidance offered in Social Security Rulings 12-2p and 14-1p. The

referenced rulings recognize that FM and CFS are conditions for which there are few

“objective” tests or “abnormal” physical findings. See e.g., SSR 14-1p, 2014 WL 1371245,

at *4 (“[S]tandard laboratory test results in the normal range are characteristic for many

people with CFS, and they should not be relied upon to the exclusion of all other clinical

evidence in decisions regarding the presence and severity of” the condition of CFS).

“Unlike medical conditions that can be confirmed by objective testing, fibromyalgia

patients present no objectively alarming signs.” Rogers v. Com’r of Soc. Sec., 486 F.3d

234, 243 (6th Cir. 2007). “Rather, fibromyalgia patients ‘manifest normal muscle strength

and neurological reactions and have a full range of motion.’ ” Id. (quoting Preston v. Sec'y

of Health & Human Servs., 854 F.2d 815, 820 (6th Cir. 1988)). In short, unlike more

traditional musculoskeletal impairments, the nature of both FM and CFS render an

“overemphasis upon objective findings inappropriate.” Rogers, 486 F.3d at 249.

For instance, the ALJ focused on the lack of “palpably swollen or tender lymph

nodes [or] non-exudative pharyngitis” which the ALJ believed to be “typically associated

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specified by SSR 14-1p. Instead, both are listed among possible symptoms, meaning

their absence was not a basis to discount Dr. Duell’s opinions. Like FM, CFS also can

be diagnosed by tender points found on clinical examination. “There is considerable

overlap of symptoms between CFS and FM…. People with impairments that fulfill the

American College of Rheumatology criteria for FM … may also fulfill the criteria for CFS.”

SSR 14-1p at n.21, 2014 WL 1371245, at *4. In addition, “[u]nder the CDC case definition,

a physician can make the diagnosis of CFS based on a person's reported symptoms

alone after ruling out other possible causes for the person's symptoms.” SSR 14-1p; 79

FR 18750-02. “For a [treating source’s] medical opinion to be well-supported by medically

acceptable clinical and laboratory diagnostic techniques, it is not necessary that the

opinion be fully supported by such evidence....” Social Sec. Ruling 96-2p, 1996 WL

374188, *2 (July 2, 1996) (emphasis added).

To be fair, objective evidence is not wholly irrelevant. SSR 12-2p, for example,

still requires “sufficient objective evidence to support a finding that the person's

impairment(s) so limits the person's functional abilities that it precludes him or her from

performing any substantial gainful activity.” 2012 WL 3104869 at *2 (emphasis added).

With respect to both FM and CFS, however, the nature of the “objective evidence” or

“signs” may vary. See Swain v. Com'r of Soc. Sec., 297 F. Supp. 2d 986, 990 (N.D. Ohio

2003) (noting that, due to the “elusive” and “mysterious” nature of FM, medical evidence

confirming the alleged severity of the impairment almost never exists).

With both FM and CFS, a longitudinal record is paramount. “For a person with FM,

we will consider a longitudinal record whenever possible because the symptoms of FM

can wax and wane so that a person may have ‘bad days and good days.’” SSR 12-2p,

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“[l]ongitudinal clinical records,” especially from treating sources, that reflect “functional

status over time” such as improvement or worsening of symptoms, along with “physical

strength and functional abilities.” 2012 WL 3104869 at *2; see also 2014 WL 1371245 at

*4-5. In the case presented, records spanning more than 8 years from Dr. Duell and from

specialists on whom Dr. Duell relied, in combination with her very detailed opinions from

2016-2020, satisfy that requirement.

Despite appropriately finding Plaintiff’s FM and CFS to be severe impairments, the

ALJ was highly critical of Dr. Duell’s failure to personally document the requisite tender

points. This was error because Dr. Duell was entitled to rely upon the opinions of multiple

specialists to whom she referred Plaintiff, and who found tender points and confirmed the

diagnosis of FM between December 2013 and 2017. The subsequent diagnosis of CFS

was subsequently confirmed in 2016 and 2017 based on the same tender points, the

administration of more than 50 rule-out tests over a four-year period, and Plaintiff’s

consistent and persistent subjective reports over many years.

The record reflects that Dr. Duell began treating Plaintiff for FM symptoms on

January 3, 2013. (Tr. 1258; see also Tr. 521-522). Although Dr. Duell’s clinical records

provide little objective support for the initial diagnosis, the longitudinal record provides

ample support. In December of 2013, Dr. Duell referred Plaintiff to a rheumatologist to

confirm the diagnosis of “possible fibromyalgia.” (Tr. 274). At that exam, Dr. Greenblatt

noted multiple tender points consistent with FM in Plaintiff’s “buttock and trochanteric

region, mild tender points lateral epicondyles, tender points occiput and trapezius areas.”

(Id.) At a second pre-disability-onset referral appointment on November 5, 2014, Plaintiff

was examined by Dr. Minhas, a pain management specialist. Dr. Minhas also

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“tender spots of fibromyalgia.” (Tr. 352). At a follow-up examination on December 3.

2014, Dr. Minhas again found bilateral tenderness in Plaintiff’s paralumbar region and

over her extremities. (Tr. 358-359). Dr. Minhas confirmed the FM diagnosis based upon

“tender spots of fibromyalgia” and also diagnosed chronic pain syndrome, insomnia,

anxiety disorder and fatigue. (Tr. 359-60).

On 10/31/16, Plaintiff was examined by a third specialist, Dr. Danko. (Tr. 721-724).

Dr. Danko documented tenderness in trapezius and presence of myofascial trigger points

along with bilateral paraspinal muscle tenderness. (Id.) Like Drs. Greenblatt and Minhas,

Dr. Danko diagnosed Plaintiff with FM, but also assessed chronic fatigue, myofascial

muscle pain and arthralgia, unspecified joint. (Tr. 723, emphasis added). Dr. Danko

recommended trigger point injections but Plaintiff did not at first proceed due to insurance

authorization issues. (Tr. 732). He also advised Plaintiff to continue with the Vicoprofen

prescribed by Dr. Duell. (Tr. 721). On a subsequent visit in September 2017, Dr. Danko’s

staff again documented trapezius and paraspinal tenderness bilaterally. (Tr. 729, 732).

In light of the longitudinal record, the ALJ erred to the extent that she failed to give

“controlling weight” to Dr. Duell’s RFC opinions based upon her failure to personally

document Plaintiff’s tender points. (Tr. 926, 928). No treating or examining physician

ever questioned Dr. Duell’s diagnoses. Even if Dr. Duell’s initial diagnosis was not fully

supported, Dr. Duell’s subsequent diagnoses of FM and CFS are not open to the same

10In another example of “selective” focus that mischaracterized the record, the ALJ stated that Dr. Minhas

found ”no evidence of tenderness.” (Tr. 925, 928, citing Tr. 377). The cited record, dated 1/13/16, is from a

follow-up appointment after Dr. Minhas and others had established Plaintiff’s diagnosis and tender points.

Plaintiff sought follow-up treatment due to an increase in her pain and fatigue at that time. Although Dr.

Minhas did not record tender points that day, he nevertheless confirmed his prior diagnoses..

17

findings on repeated examinations by three specialists, including a rheumatologist. No

legal authority requires a primary care physician to “continuously” document the same

tender points once FM and CFS have been conclusively established. See Delver v. Com’r

of Soc. Sec., 2008 WL 520624, at *12 (S.D. Ohio Feb. 26, 2008) (noting consistent

treatment of FM by primary care physician and that “the consensus of doctors who agree

on that diagnosis is more convincing than a map of trigger points.”).

The ALJ also was wrong to suggest that Dr. Duell’s opinions were not well

supported because some of her clinical records failed to document objective signs of

fatigue despite every record containing subjective complaints of fatigue. As the ALJ

concedes, however, Dr. Duell stated that Plaintiff appeared “’exhausted and yawning’

during the majority of her visits.” (Tr. 928, emphasis added). The ALJ’s overly selective

focus on certain records in which Dr. Duell did not record objective clinical signs of fatigue

ignores both the requirement that an ALJ consider the longitudinal record as a whole and

the reality that Plaintiff’s conditions “wax and wane.” SSR 12-2P, 2012 WL 3104869, at

*5 (emphasizing that symptoms and signs of fibromyalgia “may vary in severity …and

may even be absent on some days.”); accord Foster v. Com’r of Soc. Sec., 382 F.Supp.3d

709, 715-16 (S.D. Ohio 2019) (reversing because ALJ selectively “focused on the ‘normal’

(i.e., non-disabling) aspects of Plaintiff's treatment notes to the exclusion of evidence

supportive of” the treating physician’s opinion); Hawthorne v. Com'r of Soc. Sec., 2014

WL 1668477, at *11 (S.D. Ohio Apr. 25, 2014) (same).

The ALJ further erred in ignoring Plaintiff’s frequent and consistent reports over

many years of treatment. To the extent that Dr. Duell relied upon Plaintiff’s subjective

reports of unrelenting pain and profound fatigue in formulating her opinions, she was

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to confirm its severity, a physician must necessarily rely on his or her patient's self-

reported pain and other symptoms as an ‘essential diagnostic tool’ in determining the

plaintiff's limitations.” Engel, 2014 WL 1818187, at *12 ; see also Foster (same). In short,

Dr. Duell’s treatment over many years, along with the consistency of her opinions and

treatment records, entitle that physician’s opinions to controlling weight. See Hill v.

Berryhill, 2017 WL 1593476, at *6 (S.D. Ohio May 2, 2017), adopted at 2017 WL 3332238

(S.D. Ohio Aug. 4, 2017) (holding that ALJ erred by failing to discuss a lengthy period of,

and frequency of treatment, consistency of treating physician’s opinions over time, and

lengthy and well-reasoned explanation for the signs, symptoms, and limitations caused

by chronic fatigue syndrome); accord, Engel, 2014 WL 1818187, at *11 (ALJ's reliance

on the lack of “objective” evidence to discount her treating physician’s opinions was

inconsistent with plaintiff's diagnosis of fibromyalgia).

The ALJ mischaracterized the record when she stated Plaintiff was “stable on

medication with no side effects.” (Tr. 925-926, 928, citing 2018 and 2019 records).

Likewise, the ALJ questioned Dr. Duell’s failure to continuously change Plaintiff’s

treatment. (Tr. 924, 926). Although earlier records reflect multiple referrals to specialists

and medication changes; there is nothing in the record to suggest that some other

treatment would be more effective than the particular combination of narcotic pain

medications, muscle relaxers, and stimulants that Dr. Duell landed upon. SSR 16-3p

explains that when considering treatment history, an ALJ should consider that an

individual has not altered “periodic treatment or evaluation for refills of medications

because …her symptoms have reached a plateau.” Id., 2017 WL 5180304, at *9. Dr.

Duell clearly opined that despite medications, Plaintiff’s condition has plateaued at a level

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Plaintiff’s fatigue was “control[led” is wholly unsupported.11

Based on the record presented, Dr. Duell’s well-supported opinions were entitled

to controlling weight. A June 201812 Functional Capacity Exam that was ordered by and

specifically endorsed by Dr. Duell only adds to that conclusion.. The FCE was

administered by Roche Croy, the Director of Industrial Rehabilitation at Oxford Physical

Therapy. However, the ALJ rejected the opinions on grounds that Mr. Croy was not a

physician and therefore “not an acceptable source.” The ALJ also stated that his opinions

were “not entirely consistent with the record.” (Tr. 928-929, emphasis added).13 In

Hargett v. Com’r of Social Security, 964 F.3d 546 (6th Cir. 2020), the Sixth Circuit held

that when an FCE ordered by a physician but prepared by a physical therapist is later

reviewed and co-signed by a treating physician, that FCE must be considered as an

opinion of the treating physician even when the source who prepared the FCE is not part

of the same treatment team. See id. at 553 (noting that treating physician referred plaintiff

for FCE and signed off on the results and therefore “the ALJ should have considered the

FCE as a treating-source opinion.”). As in Hargett, Dr. Duell was the referring physician.

(Tr. 898). While Dr. Duell did not co-sign the FCE report, Dr. Duell explicitly endorsed

and relied upon its findings.

11The ALJ stated that Plaintiff’s fatigue was controlled by Ritalin. (Tr. 928; see also Tr. 924). The ALJ cited

to a single record, dated 4/14/15 prior to Plaintiff’s disability onset date, that was authored by an

endocrinologist from whom Plaintiff sought additional treatment for fatigue. At that visit, Plaintiff reported

that Ritalin only “helps a little with energy.” (Tr. 313). Neither at that visit nor on any other post-onset date

did Plaintiff ever suggest that her fatigue was “controlled.”

12The FCE form contains a typographical error concerning the date. The Court understands that the two

consecutive days of the exam occurred in June of 2018.

13The ALJ does not define the nature of any inconsistency. The undersigned can only infer that the ALJ’s

statement refers to objective findings that do not relate to FM and CFS, and/or to the RFC reports of the

consulting physicians, which are not substantially supported for the reasons previously discussed.

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rejection of the FCE report ignores its level of detail. The FCE assessed the reliability of

Plaintiff’s reports. Testing demonstrated “a considerable deterioration in functional

tolerances and endurance during the second half of day one and all but the first 30

minutes of her second day of testing.” (Tr. 899). Whereas Plaintiff reported low (1-2/10)

pain levels prior to testing on the first day, pain symptoms increased to a 6/10 at the

conclusion of the first day, reduced overnight to a 4/10 at the beginning of day two, and

again quickly elevated to 6/10 on day two. Clinically,“[a] significant deterioration in

strength and functional endurance was witnessed after about two hours of testing day

one,” which deterioration “continued through the second half of day one testing and all of

day two testing.” (Id.) Plaintiff also demonstrated reduced tolerances with successive

lifting or handling tasks. And “within a couple hours of either physical activity or sustained

postures including sitting and standing, fatigue and pain begins to set in,” with her “ability

to resume sustained postures and physical activity” increasingly impaired. (Id.) Testing

showed elevated heart rates “consistent with reports of pain and/or maximum effort as

evidenced by more than a 25% increase in heart rate during the PILE shoulder lift.” (Tr.

901). She also demonstrated “competitive behaviors throughout testing,” and the “Hoover

Test” was negative for self-limiting behavior. Last, the FCE compared Plaintiff’s

subjective reports of pain and dysfunction with actual observed behaviors through a

combination of questionnaires. (Tr. 902). The report concluded that Plaintiff’s “endurance

deteriorates rapidly with sustained physical activity.” (Tr. 902). Based upon both postural

and exertional fatigue tolerances, the FCE concluded Plaintiff was limited to no more than

two to four hours of daily exertion or activity over two consecutive days. Although the ALJ

was justified in rejecting the report’s ultimate “disability” conclusion, the ALJ’s dismissal

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conclusory.

3. The ALJ Erred in Evaluating Plaintiff’s Subjective Complaints

The ALJ also erred in her evaluation of Plaintiff’s subjective complaints. In general,

it is the province of the ALJ and not the reviewing court to assess subjective complaints

about the impact of a claimant's symptoms with the record as a whole. See Rogers v.

Com'r, 486 F.3d at 247. The assessment of such symptoms, formerly referred to as the

“credibility” determination, was clarified in SSR 16-3p to remove the word “credibility” and

refocus the ALJ's attention on the “extent to which the symptoms can reasonably be

accepted as consistent with the objective medical and other evidence in the individual's

record.” SSR 16-3p, 2017 WL 5180304 at *2 (October 25, 2017) (emphasis added).

However, SSR 16-3p did not substantially change existing law. See Banks v. Com'r of

Soc. Sec., Case No. 2:18-cv-38, 2018 WL 6060449 at *5 (S.D. Ohio Nov. 20, 2018)

(quoting language in SSR 16-3p that states intention to “clarify” and not to substantially

“change” existing SSR 96-7p), adopted at 2019 WL 187914 (S.D. Ohio Jan. 14, 2019).

Thus, “an ALJ's findings based on the credibility of the applicant are to be accorded great

weight and deference, particularly since an ALJ is charged with the duty of observing a

witness's demeanor and credibility.” Walters v. Com'r of Soc. Sec., 127 F.3d 525, 531

(6th Cir. 1997).14 A credibility/consistency determination cannot be disturbed “absent a

compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). This represents

14But see Patrick S. v. Kijakazi, 2022 WL 6257804, at *6 (S.D. Ind. April 26, 2022) (finding it noteworthy

that in a telephonic hearing held during the COVID-19 pandemic, an ALJ could not see the claimant or

observe his demeanor).

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not substantially supported.

Plaintiff alleges she cannot work due to chronic pain and profound fatigue, and

maintains that her postural and exertional fatigue require her to lie down most of the day.15

She also alleges cognitive impairment. To evaluate her subjective complaints, the ALJ

was required to first determine whether a medically determinable impairment exists that

could reasonably be expected to produce the alleged symptoms. The ALJ appropriately

found that severe FM and CFS could produce Plaintiff’s symptoms. However, the ALJ

committed reversible error at the second step – the assessment of “the intensity and

persistence of those symptoms to determine the extent to which the symptoms limit an

individual's ability to perform work-related activities,” see SSR 16-3p, 2017 WL 5180304,

at *3; see also SSR 12-2p (providing guidance for the evaluation of FM) and SSR 14-1p

(providing guidance for the evaluation of CFS).

Plaintiff’s primary complaint of fatigue – like Plaintiff’s alleged muscle pain – is

nearly impossible to measure through objective testing. Yet the ALJ rejected Plaintiff’s

overwhelmingly consistent subjective complaints based solely upon the lack of “objective”

findings. “[I]n October of 2015, the claimant stopped working…. However, the objective

medical evidence of record does not a reflect a worsening physical condition when

compared to her symptoms while still employed.” (Tr. 924, emphasis added; see also Tr.

924, “Her tender points notwithstanding, the claimant ambulated normally, she

maintained normal muscle strength throughout, and there was no evidence of overt

muscle wasting.”). The ALJ’s entire analysis focused on the frequency of “normal,”

15Dr. Duell states that Plaintiff suffers from orthostatic intolerance, which SSR 14-1p lists as a symptom of

CFS.

23

or muscle wasting, good range of motion, and normal gait and muscle strength. (Tr. 924-

925).

But objective evidence can never the sole determinative factor for discounting a

plaintiff’s subjective symptoms. “We will not evaluate an individual's symptoms based

solely on objective medical evidence unless that objective medical evidence supports a

[disability] finding.” SSR 16-3p, 2017 WL 5180304, at *5 (emphasis added). Thus, an ALJ

must consider “the person's daily activities, medications or other treatments the person

uses, or has used, to alleviate symptoms; the nature and frequency of the person's

attempts to obtain medical treatment for symptoms; and statements by other people about

the person's symptoms.” SSR 12-1p, 2012 WL 314869 at *5; SSR 14-1p, 2014 WL

1371245 at *7; see also SSR 16-3p. The ALJ committed reversible error by singularly

focusing on the lack of “objective” evidence available to prove fatigue as outcome-

determinative.16

Contrary to the ALJ’s focus “objective” findings, all other relevant factors support

Plaintiff’s subjective complaints. For example, the record strongly supports Plaintiff’s

report that worsening symptoms led up to her leaving her longstanding employment.

Having worked continuously in the HR field for the same employer for more than 20 years,

Plaintiff continued to work for two years after her diagnosis. During that time, she sought

16The ALJ’s refence to the lack of “muscle wasting” is only minimally supported by language in SSR 16-3p

that states that a claimant who alleges being limited by muscle weakness to “standing and walking … no

more than a few minutes a day would be expected to have some signs of muscle wasting.” Here, Plaintiff

complains of exertional fatigue rather than constant muscle weakness. SSR 16-3p explains that muscle

weakness without muscle wasting may be consistent based “on the other evidence in the record.” Id., 2017

WL 5180304, at *5. The FCE report confirmed and quantified Plaintiff’s severe post-exertional fatigue,

24

absence under the Family Medical Leave Act, (Tr. 956-57), and transfer to a less stressful

position as a “way to hold onto my job.” (Tr. 50). Plaintiff also requested a 4-day work

schedule to allow a mid-week day of rest. (Tr. 58).18 Even with that schedule, she testified

to worsening symptoms including cognitive impairment and fatigue that caused her to fall

asleep at her desk. (Tr. 57). She fell asleep behind the wheel in September 2015. (Tr.

57, 60). Her symptoms led to anxiety and she began noticing “cognition issues” where

she could not recall HR “policies that I used to know.” (Tr. 57). Concluding that her

profound fatigue was a danger and that she could no longer sustain a consistent

schedule, she left work permanently in October 2015.

The longitudinal record demonstrates that, consistent with her testimony, Plaintiff

reported her increasingly severe symptoms to her treating physicians. The nature and

frequency of treatment provided by Dr. Duell over time is consistent with her complaints.

For example, close in time to her disability onset, Plaintiff sought additional treatment from

Dr. Duell every few weeks. At those visits, Dr. Duell noted objective clinical observations

that closely align with Plaintiff’s subjective reports. (See, e.g., Tr. 401, 11/5/15 note that

Plaintiff appears “very fatigued,” “[y]awining frequently”; Tr. 400, 12/3/15 note that Plaintiff

is “yawning constantly” and having “[d]ifficult[y] keeping her eyes open” during exam).

Both prior to and after her disability onset date, she complied with prescribed treatment

and followed up on multiple referrals.

17Although the ALJ was not required to explicitly discuss every factor, Plaintiff’s exemplary work history

supports her subjective reports. See France v. Com’r of Soc. Sec., 2022 WL 465680, at *23 (N.D. Ohio

Jan. 24, 2022) (“[W]ork history is an appropriate factor to consider in assessing her subjective complaints

under SSR 16-3p.”); see also 20 C.F.R. § 404.1529(c)(3) (version applicable to claims filed prior to 3/27/17,

stating that SSA “will consider… information about your prior work record.”).

18Despite her reduced schedule, Plaintiff’s earnings remained at the substantial gainful activity level.

25

clinical record as “inconsistent” with Plaintiff’s complaint of worsening fatigue and a need

to lie down. (Tr. 924, stating that “the claimant indicated that her symptoms were

aggravated by laying down, which contradicts her testimony.” ). In the cited 10/12/15

record, Plaintiff presented with a new complaint of cough that Dr. Duell diagnosed as

bronchitis and congestion. (Tr. 402). While the cited record does report that Plaintiff’s

symptoms were aggravated by lying down, the only reasonable contextual interpretation

is that her acute cough symptoms increased with lying down, not her chronic FM and

CFM symptoms. Contrary to that single record taken out of context, the rest of the clinical

record overwhelmingly supports her complaints that profound fatigue and chronic pain

limit her ability to maintain and sustain a regular work schedule.19

Other factors are also consistent with Plaintiff’s subjective complaints that her

chronic pain and profound fatigue preclude sustained activities of any kind. Beginning

with her 2016 function report, to her testimony at both hearings, to the referenced clinical

records, Plaintiff consistently reported that even short exertional activities exhaust her.

Of note, the ALJ did not point to and this Court has not found any internal inconsistencies

throughout the record among Plaintiff’s multiple subjective accounts of her limited daily

activities. (See Tr. 922-23, ALJ’s summary of daily activities).

SSR 14-1p explains that in the evaluation of CFS as well as under SSR 16-3p,

“we… may consider evidence from medical sources we do not consider ‘acceptable

19See. e.g. Tr. 643-444, 7/15/16 report to Dr. Duell that “all she does is sit all day due to extreme fatigue”

and note that she is “yawning and appears very sleepy” during exam; Tr. 721, 10/31/16 report to Dr. Danko

that pain improves with “rest lying down changing positions” and worsens with “sitting standing walking

running kneeling”; Tr. 654, 11/18/16 report to Dr. Duell that despite medications, “continues to be very

difficult for her to do much” and “cannot stand much…due to fatigue”; Tr. 726. 7/17/17 report that pain

improves with rest and lying down, worsens with sitting standing walking etc.; Tr. 886, 9/7/17 report to pain

clinic that she “[h]urts everywhere. Hard to get out of bed.”

26

relatives, neighbors and friends. Id. Here, the ALJ discounted the FCE report as from

someone who was not an “acceptable” medical source without additional consideration

of SSR 14-1p.20 Plaintiff also submitted four third-party statements from nonmedical

sources that also strongly supported her subjective complaints. Rather than

acknowledging the overwhelming consistency of those statements under SSR 14-1p, the

ALJ summarily dismissed them as “lack[ing] substantial support from the objective

findings” including “objective…testing.” (Tr. 929; see also Tr. 923). The ALJ’s relentless

focus on the lack of “objective findings” to prove the severity of Plaintiff’s fatigue and pain

– to the exclusion of virtually all other evidence in the record – was error.

4. The ALJ’s Assessment of Plaintiff’s Mental Impairments

The last error the Court will briefly address concerns the ALJ’s assessment of

Plaintiff’s mental impairments. The examining agency psychologist, two non-examining

agency consultants and Dr. Duell all offered opinions that Plaintiff suffers from “severe”

mental impairments of anxiety and depression that cause her to have “mild” to “moderate”

mental limitations in multiple areas. Disregarding all opinions, the ALJ found Plaintiff’s

anxiety and depression to be non-severe and assessed no mental or cognitive functional

limitations. Plaintiff argues that if the limitations assessed by agency reviewers been

adopted, she would have been restricted to (at most) a lower level of unskilled work.

Despite some concern with the ALJ’s analysis as it pertains to possible cognitive

impairment,21 the alleged error presents a closer issue than do the errors concerning her

20As discussed, the FCE was expressly adopted by Dr. Duell.

21Although Plaintiff has not argued this specific point, the Court notes one anomaly given the ALJ’s selective

focus on the lack of objective data to prove Plaintiff’s complaints of fatigue: the ALJ failed to discuss

27

usually require reversal where an ALJ has determined the existence of other severe

impairments and progressed through the sequential analysis. See Maziarz v. Secretary

of Health and Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); 20 C.F.R. § 404.1520.

Here, Plaintiff concedes that her claim is not dependent upon her mental

impairment, because she alleges disability primarily due to physical symptoms from FM

and CFS. In addition, Plaintiff has undergone no significant mental health treatment.

While Dr. Duell initially prescribed medications to treat her anxiety and depression,

Plaintiff discontinued those medications. Ultimately, the Court finds no need to decide

whether an alleged error in the assessment of Plaintiff’s mental or cognitive impairments

would require remand, because the record overwhelmingly supports remand based on

errors in the ALJ’s assessment of Plaintiff’s physical impairments.

C. An Immediate Award of Benefits is Warranted

Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,

modify, or reverse the Commissioner’s decision “with or without remanding the cause for

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand under

sentence four may result in the need for further proceedings or an immediate award of

benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir.

1994). The latter is warranted “only where the evidence of disability is overwhelming or

where the evidence of disability is strong while contrary evidence is lacking.” Felisky, 35

objective testing concerning Plaintiff’s alleged cognitive impairment. The ALJ discredited Plaintiff’s

complaint of “fibro fog,” a symptom endorsed by Dr. Duell in both 2016 and 2020 opinions, on grounds that

her mental status exams did “not note any cognitive issues.” (Tr. 928). But an endocrinologist assessed

mild cognitive impairment on testing. (See Tr. 283, noting impairment “bordering on early dementia,” and a

SPECT brain scan that was “abnormal consistent with nonspecific cerebral inflammation that could be the

source of chronic fatigue”; see also Tr. 296, noting cortical deficits and other imaging evidence consistent

with amnestic mild cognitive impairment).

28

Cir. 1994)).

Here, the evidence establishes that remand for an award of benefits is warranted.

The record contains overwhelming evidence of disability, and/or strong evidence with an

absence of contrary “substantial evidence” that could support a non-disability finding on

remand. Dr. Duell’s well-explained and well-supported opinions about the disabling

impact of Plaintiff’s FM and CFS in particular strongly support her inability to engage in

either her past relevant work or any other sustained unskilled work activity at the SGA

level. Accord Hill v. Berryhill, 2017 WL 1593476, at *7-8.

III. Conclusion and Order

For the reasons explained herein, IT IS ORDERED THAT the decision of the

Commissioner to deny Plaintiff DIB benefits be REVERSED and REMANDED for an

immediate award of benefits.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

29