HALL v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CRYSTAL H., )

)

Plaintiff, )

)

v. ) 1:23CV733

)

MARTIN J. O’MALLEY, )

Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Crystal H., brought this action pursuant to the

Social Security Act (the “Act”) to obtain judicial review of the

final decision of Defendant, the Commissioner of Social Security

(the “Commissioner”), denying Plaintiff’s claim for Disability

Insurance Benefits (“DIB”). (Docket Entry 1.) The Commissioner

has filed the certified administrative record (Docket Entry 5

(cited herein as “Tr. __”)), and both parties have submitted

dispositive briefs in accordance with Rule 5 of the Supplemental

Rules for Social Security Actions under 42 U.S.C. § 405(g) (Docket

Entry 11 (Plaintiff’s Brief); Docket Entry 12 (Commissioner’s

Brief); Docket Entry 13 (Plaintiff’s Reply)). For the reasons that

1 On December 20, 2023, President Joseph R. Biden, Jr., appointed Martin

J. O’Malley as Commissioner of the Social Security Administration. Pursuant to

Rule 25(d) of the Federal Rules of Civil Procedure, Martin J. O’Malley should

substitute for Kilolo Kijakazi as Defendant in this suit. Neither the Court nor

the parties need take any further action to continue this suit by reason of the

last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

follow, the Court will enter judgment for Plaintiff remanding this

case for further administrative proceedings.2

I. PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 223-20), alleging a disability

onset date of November 1, 2018 (see Tr. 224). Upon denial of that

application initially (Tr. 48-64, 83-86) and on reconsideration

(Tr. 65-82, 90-98), Plaintiff requested a hearing de novo before an

Administrative Law Judge (“ALJ”) (Tr. 99-100). Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.

(Tr. 28-47.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 9-27.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,

210-12, 331-33), thereby making the ALJ’s ruling the Commissioner’s

final decision for purposes of judicial review.

Plaintiff then sought judicial review in this Court, see Hall

v. Kijakazi, No. 1:21CV966, Docket Entry 1 (M.D.N.C. Dec. 21,

2021), after which the Court granted the Commissioner’s consent

motion to remand the case under sentence four of 42 U.S.C. § 405(g)

for further administrative proceedings, see id., Docket Entries 17,

18 (M.D.N.C. Aug. 15, 2022). In turn, the Appeals Council entered

an order of remand to the ALJ (Tr. 1029-35), instructing the ALJ to

2 On consent of the parties, “this case [wa]s referred to the [undersigned]

United States Magistrate Judge . . . to conduct all proceedings . . ., to order

the entry of judgment, and to conduct all post-judgment proceedings []herein.”

(Docket Entry 9 at 1.)

2

1) “further consider[ ] whether a cane is medically necessary and,

if so, under what circumstances the cane is needed” (Tr. 1032); 2)

“provide a sufficient evaluation of [Plaintiff]’s alleged

fibromyalgia, as required by Social Security Ruling 12-2p[, Titles

II and XVI: Evaluation of Fibromyalgia, 2012 WL 3104869 (July 25,

2012) (‘SSR 12-2p’)]” (id.); 3) “[g]ive further consideration to

[Plaintiff]’s maximum residual functional capacity” (id.); and 4)

“[i]f warranted by the expanded record, obtain supplemental

evidence from a [VE]” (Tr. 1033).

The ALJ held a second hearing, attended by Plaintiff, her

attorney, and a different VE (Tr. 1008-26), and entered a new

decision denying Plaintiff’s claim for benefits (Tr. 981-1007). In

light of the Court’s previous remand of the case, Plaintiff opted

to forego review with the Appeals Council and initiated this

instant action for judicial review, thus rendering the ALJ’s

decision the Commissioner’s final decision for purposes of judicial

review.3

In rendering that decision, the ALJ made the following

findings later adopted by the Commissioner:

3 “When a case is remanded by a district court and, in turn, to an ALJ for

further proceedings, the decision of the ALJ constitutes the final decision of

the Commissioner unless the Appeals Council thereafter assumes jurisdiction (1)

at the claimant’s request, or, (2) absent such request, in its discretion within

60 days after the ALJ’s decision. See 20 C.F.R. § 404.984(a)-(d). Here,

[Plaintiff] did not request review of the ALJ’s decision by the Appeals Council,

and the Appeals Council chose not to exercise jurisdiction; hence, [Plaintiff]

returned directly to th[is C]ourt.” Jackson v. Astrue, No. 09CV1290, 2010 WL

3777732, at *1 (E.D.N.Y. Sept. 21, 2010) (unpublished).

3

1. [Plaintiff] meets the insured status requirements of

the . . . Act through December 31, 2024.

2. [Plaintiff] has not engaged in substantial gainful

activity since November 1, 2018, the alleged onset date.

. . .

3. [Plaintiff] has the following severe impairments:

osteoarthritis status post left ankle fracture,

fibromyalgia, diabetes mellitus, obesity, thyroid

disorder, depression, bipolar disorder, anxiety,

obsessive-compulsive disorder (OCD), and post-traumatic

stress disorder (PTSD).

. . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

5. . . . [Plaintiff] has the residual functional

capacity to perform sedentary work . . . with no exposure

to hazards such as unprotected heights or dangerous

moving machinery. She requires a cane for any standing

or walking. Mentally, she can understand and remember

simple instructions; maintain concentration for simple

tasks; adapt to routine changes in a work setting; and

have no more than occasional interaction with the public.

. . .

6. [Plaintiff] is unable to perform any past relevant

work.

. . .

10. [C]onsidering [Plaintiff]’s age, education, work

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [she] can perform.

. . .

4

11. [Plaintiff] has not been under a disability, as

defined in the . . . Act, from November 1, 2018, through

the date of this decision.

(Tr. 986-1000 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). Even given

those limitations, the Court will remand this case for further

administrative proceedings.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a

reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

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

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting

5

Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted). “If

there is evidence to justify a refusal to direct a verdict were the

case before a jury, then there is substantial evidence.” Hunter,

993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Commissioner].” Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

disabled, the responsibility for that decision falls on the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks

omitted). “The issue before [the Court], therefore, is not whether

[the claimant] is disabled, but whether the ALJ’s finding that [the

claimant] is not disabled is supported by substantial evidence and

was reached based upon a correct application of the relevant law.”

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means the “‘inability to

6

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).4 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

account a claimant’s age, education, and work experience in

addition to [the claimant’s] medical condition.” Id. “These

regulations establish a ‘sequential evaluation process’ to

determine whether a claimant is disabled.” Id. (internal citations

omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

4 The Act “comprises two disability benefits programs. [DIB] . . .

provides benefits to disabled persons who have contributed to the program while

employed. The Supplemental Security Income Program . . . provides benefits to

indigent disabled persons. The statutory definitions and the regulations . . .

for determining disability governing these two programs are, in all aspects

relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal

citations omitted).

7

other work.” Albright v. Commissioner of Soc. Sec. Admin., 174

F.3d 473, 475 n.2 (4th Cir. 1999).5 A finding adverse to the

claimant at any of several points in the SEP forecloses an award

and ends the inquiry. For example, “[t]he first step determines

whether the claimant is engaged in ‘substantial gainful activity.’

If the claimant is working, benefits are denied. The second step

determines if the claimant is ‘severely’ disabled. If not,

benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th

Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s [RFC].” Id. at 179.6 Step four

then requires the ALJ to assess whether, based on that RFC, the

5 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6 “RFC is a measurement of the most a claimant can do despite [the

claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative

regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and

continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an

equivalent work schedule” (internal emphasis and quotation marks omitted)). The

RFC includes both a “physical exertional or strength limitation” that assesses

the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy

work,” as well as “nonexertional limitations (mental, sensory, or skin

impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only

after [the ALJ] considers all relevant evidence of a claimant’s impairments and

any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

8

claimant can “perform past relevant work”; if so, the claimant

does not qualify as disabled. Id. at 179-80. However, if the

claimant establishes an inability to return to prior work, the

analysis proceeds to the fifth step, whereupon the ALJ must decide

“whether the claimant is able to perform other work considering

both [the RFC] and [the claimant’s] vocational capabilities (age,

education, and past work experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65. If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]

remains able to work other jobs available in the community,” the

claimant qualifies as disabled. Hines, 453 F.3d at 567.7

B. Assignment of Error

In Plaintiff’s first and only issue on review, she maintains

that “[t]he ALJ erred in his evaluation of Plaintiff’s fibromyalgia

by failing to apply the correct legal standard.” (Docket Entry 11

at 5 (bold font and block formatting omitted); see also Docket

Entry 13 at 1-2.) In particular, Plaintiff argues that “[t]he most

significant error made by the ALJ in evaluating [Plaintiff]’s

fibromyalgia is [the ALJ’s] reliance upon the objective evidence or

7 A claimant thus can qualify as disabled via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

in the claimant’s favor, whereas, on the second path, the claimant must prevail

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, e.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

process, review does not proceed to the next step.”).

9

normal examination findings to validate the degree of pain that

[Plaintiff] is experiencing.” (Docket Entry 11 at 6; see also id.

(providing examples of ALJ’s reliance on objective evidence in his

evaluation of Plaintiff’s fibromyalgia (citing Tr. 991-92, 996-

97)).) According to Plaintiff, the United States Court of Appeals

for the Fourth Circuit has held that “such normal examination

findings do not preclude disabling symptoms from fibromyalgia and

cannot be required to determine the severity of a claimant’s

fibromyalgia.” (Id. at 7 (citing Arakas v. Commissioner, Soc. Sec.

Admin., 983 F.3d 83 (4th Cir. 2020), for the proposition that

“‘ALJS may not rely on objective medical evidence (or the lack

thereof) - even as one of multiple facts - to discount a claimant’s

subjective complaints regarding symptoms of # £=fibromyalgia’”

(emphasis omitted)).) Plaintiff further faults the ALJ for

“‘fail[ing] to appreciate the waxing and waning nature of

fibromyalgia and to consider the longitudinal record’ as a whole.”

(Id. at 8 (quoting Arakas, 983 F.3d at 101).) Plaintiff’s

contentions regarding the ALJ’s improper reliance on objective

medical evidence to discount Plaintiff’s fibromyalgia-related

subjective symptom reports in violation of Arakas have merit and

warrant remand.

In Arakas, the Fourth Circuit deemed fibromyalgia a “unique”

disease, Arakas, 983 F.3d at 97, with “symptoms [that] are entirely

subjective,” id. at 96, and noted that “physical examinations of

10

patients with fibromyalgia will usually yield normal results — a

full range of motion, no joint swelling, as well as normal muscle

strength and neurological reactions,” id. (brackets omitted). The

Fourth Circuit thus held that “ALJs may not rely on objective

medical evidence (or the lack thereof) – even as just one of

multiple medical factors – to discount a claimant’s subjective

complaints regarding symptoms of fibromyalgia,” because

“[o]bjective indicators such as normal clinical and laboratory

results simply have no relevance to the severity, persistence, or

limiting effects of a claimant’s fibromyalgia, based on the current

medical understanding of the disease,” id. at 97 (emphasis added).

Here, at step two of the SEP, the ALJ found that Plaintiff’s

fibromyalgia constituted a severe impairment, because it

“significantly limit[ed her] ability to perform basic work

activities” (Tr. 987), but found, at step three, that her

fibromyalgia did not meet or medically equal the criteria of any of

the Commissioner’s listed impairments (see Tr. 987-88).8 As a

8 In making that step three finding, the ALJ provided the following

analysis:

In keeping with the Order of the Appeals Council, the [ALJ] further

considered [Plaintiff]’s allegation of fibromyalgia. Pain

management provider Janelle Grossman, N.P. observed that [Plaintiff]

had at least 11 positive tender points on physical examination found

bilaterally and both above and below the waist, consistent with the

requirements of SSR 12-2p ([Tr. 402-03]). Nurse Grossman also noted

that testing had ruled out other pathology ([Tr. 410]), consistent

with the requirements of SSR 12-2p, and she diagnosed [Plaintiff]

with fibromyalgia ([Tr. 402-03]). Therefore the [ALJ] finds that

[Plaintiff] has a severe impairment of fibromyalgia consistent with

the requirements of SSR 12-2p.

11

result, the ALJ proceeded to determine Plaintiff’s RFC and, as part

of that analysis, evaluated Plaintiff’s subjective symptom

reporting. (See Tr. 994-95.) In that regard, the ALJ acknowledged

Plaintiff’s testimony that “she [] has fibromyalgia with pain in

her lower neck, shoulders, elbows, hips, knees, feet, and toes, and

she has difficulty turning her head and reaching,” as well as that

“[s]he has pain in her hands up to her arms and elbows,” “spends

about 90 percent of her time during the day in a recliner,” and

“has trouble with memory and concentration.” (Tr. 991.)

After summarizing Plaintiff’s testimony, the ALJ expressly

stated that Plaintiff’s “subjective allegations must be compared

with the objective medical evidence of record” (id. (emphasis

added)), and did not indicate that he excluded his consideration of

Plaintiff’s fibromyalgia symptoms from that comparison with the

“objective medical evidence of record” (id.). Consistent with that

fact, the ALJ then provided the following evaluation of the record

evidence relating to Plaintiff’s fibromyalgia, which, as the

underscored passages below make clear, included impermissible

consideration of “normal” objective findings:

The medical record shows that [Plaintiff] has a history

of complaints of joint pain, body aches, fatigue, and

difficulty sleeping and was diagnosed with fibromyalgia

(Tr. 987-88.) The ALJ thus complied (albeit at step three of the SEP) with the

Appeals Council’s remand order insofar as it directed him, as part of the step-

two severity determination, to “provide a sufficient evaluation of [Plaintiff]’s

alleged fibromyalgia, as required by Social Security Ruling 12-2p.” (Tr. 1032.)

12

by rheumatology in 2014 ([Tr. 360, 363]). [Plaintiff]

was seen by Mary-Margaret Martin, N.P., her primary care

provider at Western Rockingham Family Medicine, in

November 2018 around the time of the alleged onset date,

and while [Plaintiff] had previously taken Neurontin and

Lyrica, she reported that she had not been taking any

medication for fibromyalgia for the last several years

and instead was using essential oils, she had done well

with this, and her pain had increased in the last two

months with pain in her fingers and feet ([Tr. 360]).

Nurse Martin gave [Plaintiff] a Depo-Medrol injection and

prescribed a five-day course of prednisone ([Tr. 361])

followed by gabapentin (Neurontin), and [Plaintiff]

reported that Neurontin was helping in January 2019 ([Tr.

363-64]). Nurse Martin observed tender points ‘up and

down’ [Plaintiff]’s spinal column on examination and

added duloxetine (Cymbalta) to her medication ([Tr.

364]). On March 13, 2019, [Plaintiff] was also seen by

pain management provider Janelle Grossman, N.P. at

Bethany Medical Center, and Nurse Grossman observed that

[Plaintiff] had at least 11 positive tender points on

physical examination found bilaterally and both above and

below the waist, consistent with the requirements of SSR

12-2p ([Tr. 402-03]). Nurse Grossman also noted that

testing had ruled out other pathology ([Tr. 410]),

consistent with the requirements of SSR 12-2p, and Nurse

Grossman diagnosed [Plaintiff] with fibromyalgia and

prescribed Belbuca ([Tr. 402-03]). . . . Nurse Grossman

also observed that [Plaintiff] walked with a normal gait

and had full range of motion with normal strength ([Tr.

402-03]). On June 18, 2019, Nurse Grossman prescribed

[Plaintiff] a cane ([Tr. 544, 860]). On September 13,

2019, [Plaintiff] reported that she did not feel like she

was being helped with her pain, and Nurse Grossman

observed [Plaintiff] to walk with an antalgic gait with

the use of a cane ([Tr. 550]). On examination,

[Plaintiff] had 4/5 strength in the right upper and right

lower extremity and 5/5 strength in the left upper and

left lower extremity, normal sensation throughout, and

impaired heel and toe walk, and Nurse Grossman continued

[Plaintiff]’s [g]abapentin and restarted Baclofen ([Tr.

550-51]). Since that time, [Plaintiff] has continued

follow-up for fibromyalgia with Nurse Martin every three

months for medication management ([Tr. 554-84, 866-902,

1154-1290, 1408-1544, 1837-1972]), and Nurse Martin

observed that [Plaintiff]’s gait was slow and steady with

a cane in December 2020 ([Tr. 871]). In July 2021,

13

[Plaintiff] reported that she did not take Ultram

regularly and only took it as needed for pain ([Tr.

1157]). [Plaintiff] also reported in August 2021 that

while she did not exercise, she was able to complete

light tasks around her home ([Tr. 1530]). Though

[Plaintiff] reported experiencing daily pain due to her

fibromyalgia in January 2022 ([Tr. 1461]), she also

reported that she had been walking daily ([id.]). The

[ALJ] has accounted for [Plaintiff]’s fibromyalgia in

limiting [her] to sedentary exertion with no concentrated

[sic] exposure to hazards.

(Tr. 991-92 (emphasis added).)?°

The ALJ then compounded his Arakas error by relying on normal

objective findings to discount portions of the opinion evidence

more restrictive than the RFC. In particular, the ALJ found the

state agency medical consultants’ “conclusion that [Plaintiff] has

a severe impairment of fibromyalgia . . . consistent with the

record overall and therefore persuasive” (Tr. 996 (emphasis added)

(citing Tr. 53, 72)), but found the consultants’ postural

limitations to frequent balancing, stooping, kneeling, crouching,

° The ALJ ultimately “flfound] that [Plaintiff]’s medically determinable

impairments [including fibromyalgia] could reasonably be expected to cause the

alleged symptoms,” but that her “statements concerning the intensity, persistence

and limiting effects of th[o]se symptoms [we]re not entirely consistent with the

medical evidence and other evidence in the record for the reasons explained in

thle ALJ’s] decision.” (Tr. 994.) In support of that latter finding, the ALJ

summarized the daily activities that Plaintiff described on a Function Report in

April 2019 (id. (citing Tr. 256-58)), and then noted that, “[t]hough [Plaintiff]

has fibromyalgia and subsequently received a prescription for a cane in 2019,

Nurse Grossman observed in September 2019 that [Plaintiff] was able to walk with

an _antalgic gait with the use of a cane ([Tr. 550])” (Tr. 994 (emphasis added)).

Although not argued by Plaintiff (see Docket Entries 11, 13), the Court does not

understand how the fact that Plaintiff “walk[ed] with an antalgic gait with the

use of a cane” (Tr. 994 (emphasis added) (citing Tr. 550)), absent further

explanation not provided by the ALJ, demonstrates that Plaintiff’s fibromyalgia

symptoms did not warrant further limitations in the RFC, i.e., additional

restrictions on Plaintiff’s ability to stand and walk and/or postural limitations

on climbing, balancing, stooping, kneeling, crouching, and crawling.

14

crawling, and climbing unpersuasive (see id. (citing Tr. 56-57,

75)), noting that those “limitations .. . [we]re inconsistent with

[Plaintiff]’s regularly normal range of motion, reflexes, and

sensation on examination” (id. (emphasis added)). Similarly, the

ALJ found a Functional Capacity Evaluation (“FCE”) “largely

persuasive to the extent it support[ed] the conclusion that

[Plaintiff wa]s limited to sedentary work with no exposure to

hazards such as unprotected heights or dangerous moving machinery

and use[d] a cane for any standing or walking” (Tr. 997 (citing Tr.

964-80)), but found, “[t]o the extent [the FCE] support[ed]

additional limitations, it [wa]s inconsistent with the record

overall and therefore unpersuasive,” noting that, “[Twlhile

[Plaintiff] ha[d] multiple tender trigger points, her range of

motion, reflexes, and sensation were otherwise normal on

examination over the course of the relevant period” (id. (emphasis

added)).

The Commissioner contends that “it was not error for the ALJ

to consider the normal clinical findings such as normal strength,

normal gait, and normal range of motion because he found other

severe impairments, including osteoarthritis status post left ankle

fracture and obesity.” (Docket Entry 12 at 8 (internal

parenthetical citation omitted) (citing Tr. 987, and Tanika W. v.

Kijakazi, No. 1:22CV3691, 2023 WL 6050446, at *16 (D.S.C. Aug. 23,

2023) (unpublished), recommendation adopted sub nom. Wallace v.

15

Kijakazi, 2023 WL 6049982 (D.S.C. Sept. 15, 2023) (unpublished),

for proposition that, “where [the] plaintiff had additional severe

impairments often characterized by abnormal objective medical

findings and the ALJ was not considering fibromyalgia in isolation,

he did not err in considering objective medical evidence findings

as one of multiple factors in evaluating [the p]laintiff’s

statements as to her other impairments”).)

As Plaintiff argues, however, the ALJ here relied on normal

objective findings “when obviously discussing only [Plaintiff]’s

fibromyalgia at several points in the record.” (Docket Entry 11 at

9 (emphasis in original) (citing Tr. 992, 996-97).) Moreover, the

Commissioner’s argument that the ALJ intended to analyze

Plaintiff’s symptoms arising from her fibromyalgia, osteoarthritis

status post left ankle fracture, and obesity together (see Docket

Entry 12 at 8) amounts to an impermissible post hoc

rationalization, see Radford v. Colvin, 734 F.3d 288, 294 (4th Cir.

2013) (rejecting Commissioner’s argument in part because it

consisted of “a post[-]hoc rationalization” (citing Christopher v.

SmithKline Beecham Corp., 567 U.S. 142, 155 (2012))); Bray v.

Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir.

2009) (“Long-standing principles of administrative law require us

to review the ALJ’s decision based on the reasoning and factual

findings offered by the ALJ — not post hoc rationalizations that

16

attempt to intuit what the [ALJ] may have been thinking.” (citing

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947))). Here, the ALJ 1)

clearly indicated that he considered only Plaintiff’s fibromyalgia

in his paragraph discussing the evidence relating to Plaintiff’s

fibromyalgia treatment (see Tr. 991-92), as well as in his

paragraph discounting the state agency medical consultants’

postural limitations (see Tr. 996); and 2) cited only evidence

relevant to fibromyalgia, i.e., Plaintiff’s “multiple tender

trigger points,” as evidence supporting the FCE’s restriction to

sedentary work, before citing normal objective findings to explain

why the evidence did not support any additional restrictions (Tr.

997 (emohasis added)). Accordingly, the facts of this case differ

materially from those in Tanika W., where “the record supported,

and the ALJ found, [the p]Jlaintiff had additional severe and

non-severe impairments often characterized by abnormal clinical

exam and laboratory findings, including [degenerative disc

disease], dysfunction of major joint (ankle), and carpal tunnel

syndrome” and the ALJ did “not consider[] fibromyalgia in

isolation,” Tanika W., 2023 WL 6050446, at *16.?°

10 Even if the ALJ had considered Plaintiff's fibromyalgia together with

her symptoms from her osteoarthritis status post left ankle fracture and obesity,

this Court has held, contrary to Tanika W., that, where “the ALJ analyzed [the

pljilaintiff’s [rheumatoid arthritis], fibromyalgia, and disc disease together and,

in doing so, relied on objective medical evidence to discount [her] subjective

symptom reporting, the Court c[ould] not rule out the possibility that the ALJ

impermissibly relied on objective evidence, even as just one factor, in

discounting the intensity, persistence, and limiting effects of [her] subjective

complaints of fibromyalgia pain and fatigue in violation of Arakas,” Cowan v.

17

As the foregoing analysis makes clear, the ALJ impermissibly

relied on objective evidence, even as just one factor, in

discounting the intensity, persistence, and limiting effects of

Plaintiff’s subjective complaints of fibromyalgia symptoms in

violation of Arakas. See Sandra _P. v. Commissioner of Social

Security, No. 2:21CV127, 2022 WL 815463, at *9 (E.D. Va. Mar. 1,

2022) (unpublished) (finding “Arakas prohibited” ALJ’s reliance on

“intact strength and a normal gait[]” in assessing the plaintiff’s

“complaints of pain related to her fibromyalgia”), recommendation

adopted sub nom. Sandra P. v. Kijakazi, 2022 WL 811295 (E.D. Va.

Mar. 16, 2022) (unpublished); India G. v. Kijakazi, Civ. No. 20-

1704, 2021 WL 3930430, at *1-2 (D. Md. Sept. 1, 2021) (unpublished)

(“It is clear . . . that the ALJ used normal, objective evidence as

a factor in discounting [the] plaintiff’s subjective complaints

about the limiting effects of her fibromyalgia. This is error

after Arakas.” (internal footnote and citation omitted)); Bryson v.

Berryhill, No. 1:20CV169, 2021 WL 2517682, at *6 (W.D.N.C. June 18,

2021) (unpublished) (“[T]he ALJ erred when he applied the incorrect

legal standard by considering objective evidence as a factor in

evaluating [the p]laintiff’s subjective symptoms of fibromyalgia,

which essentially required [the p]laintiff to prove her subjective

Kijakazi, No. 1:21CV196, 2022 WL 3446078, at *8 (M.D.N.C. Aug. 17, 2022)

(unpublished) (emphasis and internal parenthetical citations and quotation marks

omitted), recommendation adopted, 2022 WL 17831951 (M.D.N.C. Sept. 21, 2022)

(Osteen, J.).

18

symptoms of fibromyalgia with objective evidence.”); Midgett v.

Saul, No. 2:19CV46, 2021 WL 1230188, at *3 (E.D.N.C. Mar. 31, 2021)

(unpublished) (“[T]he ALJ’s opinion [] suggests an improper

reliance upon clinical findings to discredit fibromyalgia

complaints, contrary to the direction in Arakas.”).

Moreover, the ALJ’s error under Arakas does not qualify as

harmless under the circumstances presented here. As an initial

matter, the Commissioner did not develop any argument in brief that

the ALJ’s consideration of objective evidence in his analysis of

Plaintiff’s fibromyalgia amounted to harmless error. (See Docket

Entry 12 at 3-9.) More significantly, the Court cannot, on the

record before it, conclude that remand for the ALJ’s proper

consideration of Plaintiff’s alleged fibromyalgia symptoms under

Arakas would not lead to a favorable outcome in Plaintiff’s claim.

The ALJ already limited Plaintiff to the lowest exertional level of

work, i.e., sedentary exertion, and included the use of a cane for

standing and walking. (See Tr. 990.) If the ALJ’s further (and

proper) consideration of Plaintiff’s fibromyalgia symptoms resulted

in additional exertional, postural, manipulative, or environmental

limitations, a VE (and not this Court) must determine the impact of

those additional limitations on the sedentary occupational base,

see Social Security Ruling 96-9p, Policy Interpretation Ruling

Titles II and XVI: Determining Capability to Do Other Work –

Implications of a Residual Functional Capacity for Less Than a Full

19

Range of Sedentary Work, 1996 WL 374185, at * (July 2, 1996) (“SSR

96-9p”) (recognizing that, “[u]nder the regulations, ‘sedentary

work’ represents a significantly restricted range of work,” that

“[i]ndividuals who are limited to no more than sedentary work by

their medical impairments have very serious functional

limitations,” and that, where (as here) an individual requires a

cane “to aid in walking or standing[,] . . . it may be especially

useful to consult a [VE] in order to make a judgment regarding the

individual’s ability to make an adjustment to other work”).

III. CONCLUSION

Plaintiff has established an error warranting remand.

IT IS THEREFORE ORDERED that the Commissioner’s decision

finding no disability is VACATED, and that this matter is REMANDED

under sentence four of 42 U.S.C. 405(g) for further administrative

proceedings, to include re-evaluation of Plaintiff’s subjective

reports of fibromyalgia symptoms in compliance with Arakas.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

August 6, 2024

20