# HALL v. O'MALLEY

> District Court, M.D. North Carolina · August 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10653753

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10653753

## How later opinions describe it (automated extraction)

- 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))

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653753. Public record. Not legal advice.