The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KIMBERLY C., )
)
Plaintiff, )
)
v. ) 1:25CV231
)
FRANK BISIGNANO,! )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Kimberly C. (“Plaintiff”) brought this action pursuant to Sections 205(g) and
1631(c)3) of the Social Security Act (the “Act’’), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying her claims for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under, respectively, Titles II and XVI of the Act. The parties have filed cross-
motions for judgment, and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed an application for DIB on August 26, 2021, and later an
application for SSI, alleging a disability onset date of December 1, 2017 in both applications.
' The United States Senate confirmed Frank Bisignano as the Commissioner of Social Security on May 6, 2025,
and he took the oath of office on May 7, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
Frank Bisignano should be substituted as the 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(2).
(Tr. at 17, 266-67, 282-87.)? Her applications were denied initially (Ir. at 78-107, 156-65) and
upon reconsideration (I'r. at 108-37, 167-75). Thereafter, Plaintiff requested an administrative
hearing de novo before an Administrative Law Judge (‘ALJ’). (Tr. at 177.) On August 30,
2023, Plaintiff, along with her attorney, attended the subsequent telephone heating, at which
Plaintiff and an impattial vocational expert testified. (Ir. at 17, 38-77.) Following the hearing,
the ALJ concluded that Plaintiff was not disabled within the meaning of the Act (Tr. at 31),
and on January 29, 2025, the Appeals Council denied Plaintiffs request for review, thereby
making the ALJ’s ruling the Commissionet’s final decision for purposes of judicial review (Ir.
at 1-6).
Tl. LEGALSTANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’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). “The courts ate not to try the 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 if they are supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation 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 Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mete
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
P.3d 171, 176 (4th Cir. 2001) (internal citations 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 court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” 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 ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
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).
In undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). In this context, “disability” means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A))3
3 “The Social Security Act comprises two disability benefits programs. The Social Secutity Disability Insurance
Program (SSDD), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Security Income
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; 3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant
is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a clatmant clears steps one and two,
but falters at step three, ie., “[i]f.a claimant’s impairment is not sufficiently severe to equal or
exceed a listed impairment,” then “the AL] must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179.4 Step four then requires the ALJ to assess whether, based on
Program (SSD, established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F.R. pt. 404 (SSDD; 20 C.E-R. pt. 416 (SSD, governing these two programs ate,
in all aspects relevant here, substantively identical.” Craio, 76 F.3d at 589 n.1.
+ “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-
telated 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
that REC, the 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
wotk, the analysis proceeds to the fifth step, which “requires the [Government] to prove that
a significant number of jobs exist which the claimant could perform, despite the claimant’s
impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the clatmant’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.
II. DISCUSSION
In the present case, the ALJ determined that Plaintiff engaged in “substantial gainful
activity” since December 1, 2017, her alleged onset date.> Specifically, the ALJ found that
Plaintiffs “work through January 31, 2018 constituted substantial gainful activity.” (T'r. at 19.)
However, the ALJ further determined that Plaintiffs “work since then has not risen to the
level of substantial gainful activity,’ and she therefore concluded that Plaintiff met her burden
at step one of the sequential evaluation process after that date. (I'r. at 19.)
“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 1s to be determined by the ALJ only after
[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g., pain).”
Hines, 453 F.3d at 562-63.
> Notably, Plaintiff's was last insured for purposes of DIB on June 30, 2023. ‘Thus, the relevant period for her
DIB claim extends from December 1, 2017 to June 30, 2023. In contrast, the period at issue for purposes of
SSI runs from the date of her Application, September 7, 2021, through the date of the AL]’s decision, January
30, 2024.
At step two, the ALJ found that Plaintiff suffered from the following severe
impairments:
seizure disotder, migraines, asthma, obesity, fibromyalgia, depression, anxiety,
posttraumatic stress disorder, and alcohol use disorder[,]
(Tr. at 20.) The ALJ determined at step three that none of these impairments, individually or
in combination, met or equaled a disability listing. (I'r. at 20-22.) Therefore, the ALJ assessed
Plaintiffs RFC and concluded that she could perform light work, but with the following, non-
exertional limitations:
[Plaintiff can] sit for 6 hours in an 8-hour workday; stand and walk for 4 hours
in an 8-hour workday; occasionally climb ladders, topes, and scaffolds; have
occasional exposure to dusts, fumes, odors, gases, and poor ventilation; and
have no exposute to hazardous machinery and unprotected height{[s]. [Plaintiff]
is limited to understanding, remembering, and carrying out simple instructions;
can use judgment to make simple work-related decisions; and can sustain
concentration, attention, and pace sufficient to carry out simple, routine,
repetitive tasks for two-hour intervals over the course of an 8-hour work day.
She is limited to work in occupations that require no more than occasional
contact with co-workers and supervisors and no contact with the general public
as an essential function of the job. [Plaintiff] is limited to work in a low stress
setting, which is defined to mean work involving: no paced production
requirements, such as on an assembly line, where the worker does not control
the pace of production, occasional changes in the work setting or routine, and
no dealing with crisis situations as an essential function of the job.
(Tr. at 22.) At step four of the analysis, the ALJ determined, based on the testimony of the
vocational expert, that all of Plaintiffs past relevant work exceeded the above RFC. (Ir. at
29.) However, the ALJ concluded at step five that, given Plaintiffs age, education, work
experience, and RFC, along with the testimony of the vocational expert regarding those
factors, Plaintiff could perform other jobs available in the national economy and therefore was
not disabled under the Act. (Tr. at 29-30.)
Plaintiff now raises four challenges to the RFC assessment. Specifically, Plaintiff
contends that the RFC does not adequately account for (1) her fibromyalgia symptoms, (2)
her need fot an emotional support animal, (3) her headaches symptoms, or (4) her need to
miss work to attend medical appointments. After a thorough review of the record, the Court
considers Plaintiff's first, third, and fourth contentions together and finds that the AL] failed
to consider the combined effect of Plaintiffs symptoms and treatment on her ability to
maintain a work schedule.
Although Plaintiff parses the issues in her brief into separate arguments, a holistic
reading reveals that she primarily challenges the ALJ’s failure to adequately consider potential
absences caused by Plaintiffs migraine headaches, fibromyalgia, and medical appointments.
At the hearing, Plaintiff testified that she has good days and bad days, and the primary issues
with maintaining employment ate her need to “call out” on bad days and her inability to work
full days or more than one day ina row. (T'r. at 52, 59, 61, 62-63; see also I'r. at 326.) Regarding
headaches, the ALJ recounted Plaintiffs testimony that she has been on different medications
for migtaines, including monthly injections of Emgality, but that “{t]hey still happen once or
twice a week.” (Ir. at 23, 61.) When Plaintiff experiences a migraine, “i]t feels like the room
is spinning, she cannot tolerate lights, and she is nauseous. They can last an[] hour or
sometimes all day.” (T't. at 23, 61.) In 2021, despite several medical changes, Plaintiff reported
to her neurologist that she continued to experience “about 3 migraines per month.” (I'r. at
24.) Records from March 2022 likewise teflect that she continued to have 3 migraines per
month, even with medication. (Tr. at 1369.) A year later, in June 2023, Plaintiff reported that
her headaches remained the same. (Tr. at 2173.) Specifically, she described migraines
occutting two to three times a month in addition to “a major headache once a week, typically
triggered by stress.” (Ir. at 2173.) The ALJ discounted the impact of these headaches, noting
that Plaintiff remained able to care for herself, her child, and her household, as well as work
part time in a public-facing job. (T'r. at 25.) “Nevertheless,” noted the ALJ, “given [Plaintiffs]
mental impairments, as well as her migtaines, it is reasonable to limit her to understanding,
remembering, and cattying out simple instructions” as well as simple, work-related decisions,
low-stress work, and limited social interactions. (Ir at 25.) Similarly, the ALJ found that,
“b]ased on the evidence of seizures ot pseudoseizures, as well as migtaines, it is reasonable to
impose hazard and stress restrictions.” (Tr. at 26.)
Notably, the ALJ failed to include any RFC limitations regarding absences or time off-
task. As Plaintiff correctly notes, the vocational expert testified that “being off task 15% of
the time would be work preclusive,” as would “having any more than one unscheduled absence
month.” (Tr. at 72.) In an unpublished opinion, the Fourth Circuit held that such testimony,
when unaddtessed by the ALJ, may require demand. See Woody v. Kijakazi, No. 22-1437,
2023 WL 5745359, at *1 (4th Cir. Sept. 6, 2023) (holding that “the ALJ etred by not making
specific findings regarding how often [the plaintiff] would be absent from work due to the
frequency and severity of her headaches” where the “vocational expert testified a hypothetical
petson would be precluded from maintaining full time employment if she were absent more
than once a month” and the record showed that, “even after receiving treatment that reduced
the frequency of her headaches, [the plaintiff] still reported getting headaches about once a
week.”’).
In the present case, Plaintiff testified that some of het headaches “can last all day.” (I't.
at 61.) Moreover, as set out above, Plaintiff also regularly reported to het providers that she
continued to have migraines and/or other major headaches “at least once or twice a week.”
(See Tr. at 23, 61, 1369, 2173, 2174.) Although some more tecent records, including those
cited by the ALJ, demonstrate that Plaintiff reported improvement in headache frequency and
symptoms since starting Emgality injections, reducing her reported headaches to three or four
a month during 2022 and 2023 (see, eg., Tr. at 24, 2163-65, 2173-74), this number of
headaches still potentially exceeds the one absence a month allowed for competitive, unskilled
work.
The AL]’s failure to sufficiently consider and address this possibility is compounded
by her related failures to address Plaintiffs absences due to (1) fibromyalgia symptoms and (2)
medical appointments. As recounted in the ALJ’s decision, Plaintiff testified as follows:
She is currently working at Safari Nation at the front desk. Her employer
accommodates her by giving her a chair so that she does not have to stand. She
started the job in February 2023 and works 15 to 18 hours per week. Her
biggest ptoblems ate her fibromyalgia and seizures. She was diagnosed with
fibromyalgia in college. She has had chiropractic treatment and physical
therapy. She also takes medication prescribed to her by her primary care
ptovider and a pain clinic. Both medications ate for fibromyalgia. She has good
and bad days. At first the medication helped a little[,] but the past few months,
she has not been able to get out of bed. Physical therapy seemed to help over
that time. They gave het home exercises. She started physical therapy about a
yeat ago. Her fibromyalgia makes it so that some days she cannot get out of
bed. Other days, she cannot walk a few minutes. She calls out of work most
days. She almost lost her job because of it. Each day is different.... The pain
from fibromyalgia is in [her] back. It is constant and stays at a pain level of 7
ot 8. She uses a back brace once ot twice a week. Sitting, standing, and walking
make[] the pain worse. She can sit for about 45 minutes before needing to get
up and stretch and move around. She would need to move around for a few
minutes and then she can sit back down.
(Tr. at 23.)
The ALJ ultimately minimized Plaintiffs statements regarding the limiting effects of
her fibromyalgia, noting that they were not supported by the evidence of record. Nevertheless,
the ALJ acknowledged that Plaintiff attended pain management and continued to experience
pain due to her fibromyalgia which caused limitation beyond those opined by the State agency
consultants. In light of this pain, the AL] limited Plaintiff to light, rather than medium, work,
reduced her ability to stand and walk to four hours, rather than six, and included extensive
additional postural and mental limitations. (Tr. at 22, 26.) The ALJ did not, however,
meaningfully address why she dismissed evidence that fibromyalgia flares would cause Plaintiff
to miss work. Notably, the July 2023 letter from Plaintiffs employer, Lilly Merga, supports
Plaintiffs testimony on this point. As recounted by the ALJ, “Ms. Merga reported [that
Plaintiff] was an exemplary employee and was quickly promoted but is not dependable as she
calls out sick when she cannot get out of bed and noted [that Plaintiff] comes to work using a
cane and in ‘obvious’ pain.” (I'r. at 28) (citing Tr. at 376). Ms. Merga explained that:
[Plaintiff] has been working at our Greensboro location since February of 2023.
She was initially hired as a staff member, but she was quickly promoted to an
opener and closer. She is an exemplary staff member at our company.
Unlike our normal openers and closers, I don’t schedule [Plaintiff] by herself
because if/when she gets sick, she can’t get out of bed, so she is forced to call
out. This has put me in a predicament before, so I was forced to schedule her
with someone else.
As I stated above, I schedule an extra person with her just to be safe. I have
noticed that if I schedule [Plaintiff] for 3 days in a row, with 4 hours each day,
she would likely call out the 4 day. If she doesn’t call out, she would come to
work using her cane and it is obvious that she is in pain.
10
We made some accommodations for her by placing a chair at the register. We
are now making accommodations to the schedule, by scheduling her with a day
ot two off in between her work days. As this helps her rest before another shift.
We do not make her do the normal opening or closing duties besides counting
the register, as it hurts her doing any type of strenuous activity.
We have been very short staffed but I cannot work her more than 15+ houts a
week due to the amount of pain/strain it puts on her. It does put us in a vety
difficult place. When she is able [to work] she does an amazing job. I just wish
we could have her work more.
(Tr. at 376-77.)
The ALJ dismissed the need for greater limitations outlined in Ms. Merga’s letter,
noting that the letter “does not support greater mental limitations” and “[w]hile it may suggest
eteater physical limitations, those greater limitations are not supported by the record evidence,
as discussed herein.” (Ir. at 28.) However, it is not clear how “the record evidence” fails to
support Plaintiffs testimony and Ms. Merga’s letter on the need for reduced hours, rest days,
and unexpected absences. Plaintiffs medical records, including counseling records and
physical therapy tecords for the six months from her starting part-time work in February 2023
to the hearing in August 2023, reflect these same concerns. Specifically, the medical records
reflect that Plaintiffs headaches and fibromyalgia improved some with medication beginning
in March 2022, and a few months later she reported that she was considering looking for a
patt-time job since things were going better. (Tr. at 1485, 1439, 1467, 1504, 1648, 1649, 1650,
1652, 1654, 2173-74.) However, she still continued to experience headaches and fibromyalgia-
telated pain. (Tr. at 2107, 1516, 1522, 1528, 1534, 1710, 1738, 1745, 1868, 1850, 2101.) She
interviewed for her part-time position in January 2023 and started in February 2023. Notably,
the records reflect periods of crying from pain at her job (Tr. at 1675, 1676), calling out of
11
work due to pain (Ir. at 1809, 1688, 1692, 1695, 1717), significant pain requiring a rest day
after working an 8-hour shift (I'r. at 1816), flares of back pain after working over the weekend
even if sitting (Ir. at 1823), adjustments to her work schedule for shorter shifts spread through
the week to accommodate her pain (I'r. at 1801), significant ongoing fibromyalgia pain in her
back (Ir. at 1794, 1752, 1759, 1766), pain flares after trying to work four days in a tow (Ir. at
1704), and the owners at her job working around her schedule due to her pain (Tr. at 1680,
1685, 1690, 1691, 1692, 1697).
Thus, it is not clear how these limitations are “not supported by the record evidence,
as discussed herein.” (Tr. at 28.) In the briefing, Defendant notes that the AL] “appropriately
relied on Plaintiffs relatively effective treatment regimen.” (Def.’s Br. [Doc. #9] at 8.)
However, while the records certainly reflect some improvement over time, there are several
years of almost daily headaches or headaches at least three times per week earlier in the relevant
period in 2018, 2019, and 2020, (Tr. at 700, 707, 714, 408, 722, 739, 901). Moreover, even after
there was some improvement, the AL] acknowledged that she was still experiencing three
migraines per month and several seizures per week, with ongoing pain management (Tr. at
24), and the records reflect continued fatigue and flares after attempting to work as well as
unexpected absences, as outlined above, which the AL] did not address. Defendant also cites
to the AL]’s reliance on Plaintiffs daily activities, including part-time work, without addressing
the evidence of her limitations 1n those activities, particularly the evidence of her need for
shorter shifts, rest days, and unexpected absences noted above, and the evidence throughout
the record of relationship issues with her boyfriend because all of the household tasks fell on
him due to Plaintiff's pain and limitations. (Ir. at 1287, 1095). In Woods v. Berryhill, the
12
Fourth Circuit explained that “[ajn AL] may not consider the type of activities a claimant can
perform without also considering the extent to which she can perform them.” Woods v.
Berryhill, 888 F.3d 686, 694 (4th Cir. 2018); see also Arakas v. Comm’s of Soc. Sec., 983 F.3d
83, 100 (4th Cir. 2020) “Even assuming, as the AL] noted, that Arakas’s daily activities have,
at least at times, been somewhat greater than [she] ... generally reported, he provided no
explanation as to how those particular activities ... showed that [s]he could persist through an
eight-hour workday.”’) (internal citations omitted); Lewis v. Berryhill, 858 F.3d 858, 868, n.3
(4th Cir. 2017) (“The ALJ points to Lewis’ ability to perform incremental activities interrupted
by petiods of rest, such as “driv[ing] short distances of up to 30 miles, shop for groceries with
the assistance of her mother or roommate, handle her finances, and watch television.’ The
ALJ’s conclusion that Lewis’ activities demonstrate she is capable of work is unsupported by
the record.”) (citation omitted); Brown v. Comm’r, 873 F.3d 251, 263 (4th Cir. 2017) (“[I]he
ALJ noted that Brown testified to daily activities of living that included ‘cooking, driving, doing
laundry, collecting coins, attending church and shopping.’ The ALJ did not acknowledge the
extent of those activities as described by Brown, e.g., that he simply prepared meals in his
microwave, could dtive only short distances without significant discomfort, only occasionally
did laundty and looked at coins, and, by the time of the second ALJ hearing, had discontinued
regular attendance at church and limited his shopping to just thirty minutes once a week.
Moteover, the AL] provided no explanation as to how those particular activities—or any of
the activities depicted by Brown—showed that he could persist through an eight-hour
workday.”); see also Fletcher v. Colvin, No. 1:14CV380, 2015 WL 4506699 at *5-8 (M.D.N.C.
Jul. 23, 2015).
13
Finally, Defendants note that the ALJ relied on the examination by PA Seitz, which
reflected no observed functional limitations, and the normal examinations in the record.
(Def.’s Br. at 8-10; see Tr. at 25, 27.) However, as noted by Plaintiff, in Arakas, the Fourth
Citcuit explained that some conditions, such as fibromyalgia, simply do not manifest
themselves in objective signs and symptoms. Arakas, 983 F.3d at 97. As noted in Atakas, “[a]
gtowing number of citcuits have recognized fibromyalgia’s unique natute and have accordingly
held that ALJs may not discredit a claimant’s subjective complaints regarding fibromyalgia
symptoms based on a lack of objective evidence substantiating them.” Id. The Fourth Circuit
“Soin[ed] those circuits” and held that:
ALJs may not tely on objective medical evidence (or the lack thereof)—-even as
just one of multiple factors—to discount a claimant’s subjective complaints
tegatding symptoms of fibromyalgia or some other disease that does not
produce such evidence. Objective indicators such as normal clinical and
laboratory results simply have no televance to the severity, persistence, ot
limiting effects of a claimant’s fibromyalgia, based on the current medical
understanding of the disease. If considered at all, such evidence—along with
consistent ttigger-point findings—should be treated as evidence substantiating
the claimant’s impairment. We also reiterate the long-standing law in our circuit
that disability claimants are entitled to rely exclusively on subjective evidence to
prove the severity, persistence, and limiting effects of their symptoms.
Id. at 97-98.
Mote recently, the Court of Appeals for the Fourth Circuit decided Hultz v. Bisignano,
162 F.4th 111, 115 4th Cir. 2025), which reiterated that “[i]n Arakas, this Circuit held that
ALJs may not tely on objective medical evidence even as just one of multiple factors to
discount a claimant’s subjective complaints regarding symptoms of fibromyalgia. |. . .]
[F]ibromyalgia is a serious and mysterious condition, disproportionately affecting women, that
our cutrent science is incapable of observing through objective medical testing.” Hultz v.
14
Bisignano, 162 F.4th 111, 115 (4th Cir. 2025). The Hultz court “reiterated that claimants are
‘entitled to rely exclusively on subjective evidence to prove that [their] symptoms were so
continuous and/or severe that they prevented [the claimant] from working a full eight-hour
Hultz, 162 F.4th at 121 (citing Arakas, 983 F.3d at 96) (cleaned up).
We found that the ALJ in Arakas failed to adhere to this standard when he
required that her subjective descriptions of her symptoms to be supported by
objective medical evidence. Arakas, 983 F.3d at 96. We noted that this “type of
legal error is particularly pronounced in a case involving fibromyalgia—a disease
whose symptoms ate entitely subjective.” Id. (cleaned up). As both Arakas's
rheumatologist and other circuit courts have observed, physical examinations
of fibromyalgia patients did not produce clinical and laboratory abnormalities,
and usually yielded a full range of motion, no joint swelling, and normal muscle
strength and neurological reactions. Id. Accordingly, we held that “ALJs may
not tely on objective medical evidence (or the lack thereof)—even as just one
of multiple factors—to discount a claimant’s subjective complaints regarding
symptoms of fibromyalgia or some other disease that does not produce such
evidence.” Id. at 97.
Id. Notably, in Hultz, the Fourth Circuit found that “when discounting Ms. Hultz and her
grandmothet’s testimony under the step four RFC analysis, the ALJ stated—in language that
is neatly identical to the reversed ALJ decision in Arakas—that the AL] did so because ‘the
claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms ate not entirely consistent with the medical evidence and other evidence in the
record.’ This is in clear contravention of Arakas.” Id. at 122. In the present case, the ALJ
likewise reviewed Plaintiffs symptoms but held that “[Plaintiffs] statements concerning the
intensity, petsistence and limiting effects of these symptoms are not entitely consistent with
the medical evidence and other evidence in the record.” (TI't. at 23.) This is the same language
15
that the Fourth Circuit in Hultz found was “in cleat contravention of Arakas.” Hultz, 162
F.4th at 122.6
As explained in another case from this District, Arakas explains that fibromyalgia is a
“unique’ disease with symptoms [that] are entirely subjective.” Cowan v. Kijakazi, No.
1:21CV196, 2022 WL 3446078, at *8 (M.D.N.C. Aug. 17, 2022), report and recommendation
adopted, No. 1:21CV196, 2022 WL 17831951 (M.D.N.C. Sept. 21, 2022) (quoting Arakas, 983
F.3d at 97.) In Cowan, the Coutt specifically considered a situation where, as here, the AL]
analyzed the plaintiffs fibromyalgia together with other impairments and “in doing so, relied
on objective medical evidence to discount a Plaintiff's subjective symptom reporting,” and in
that scenario “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, 2022 WL 3446078 at *8; see also Crystal H. v. O’Malley, No. 1:23CV733,
2024 WL 3677338 at *7 (M.D.N.C. Aug. 6, 2024) (collecting cases).
Here, the AL] (1) improperly relied on a lack of objective evidence in discounting
Plaintiffs fibromyalgia symptoms in contravention of Arakas and Hultz; (2) improperly relied
on Plaintiffs activities of daily living without considering the extent of her ability to do those
activities and her limitations in those activities reflected in the record, in contravention of
Hultz, the Fourth Circuit also considered the AL)’s analysis of the other factors, and found that:
The AL] discounted [the plaintiffs and her grandmother’s testimony] without adequate
explanation. And this Court cannot identify evidence in the record that contradicts Ms.
Hultz’s testimony about her conditions. Her off-and-on treatment and taking of medications,
het occasional ability to engage in daily activity, and even her marked improvement on her
other medical issues all remain consistent with debilitating fibromyalgia symptoms.
Hultz, 162 F.Ath at 124.
16
Woods and Arakas, and (3) most notably here, failed to address Plaintiff's need for short shifts,
rest days, and unexpected absences, or explain how those limitations, reflected in her
testimony, her employet’s letter, and her medical records, was “not supported by the record
evidence.” (I'r. at 28.)’ As set out above, the RFC measures a claimant’s ability to do sustained
work-related physical and mental activities in a work setting “on a regular and continuing
basis,” 20 C.F.R. §§ 404.1545(b) and (c) (emphasis added). ‘This “‘means 8 hours a day, for 5
days a week, or an equivalent work schedule,” Hines, 453 F.3d at 562 (emphasis omitted)
(quoting Social Security Ruling 96-8p, ‘Titles I] and XVI: Assessing Residual Functional
Capacity in Initial Claims, 1996 WL 374184, at *2 july 2, 1996) (“SSR 96-8p”)). As previously
noted, the vocational expert in the present case testified that “an individual who had more
than one unscheduled absence a month would be unable to sustain employment.” (Pl’s Br.
[Doc. #8] at 22) (citing Tr. at 72). Because the ALJ did not address Plaintiffs primary
contention, which is the combined impact of Plaintiffs impairments and treatment on her
ability to attend work regularly, including her ongoing unscheduled absences due to
fibromyalgia flares, muscle seizures, and headaches, and her need for reduced hours and rest
days due to fibromyalgia-related fatigue, the Court cannot follow the AL]’s reasoning,
rendering the decision unsupported by substantial evidence. See Woods, 888 F.3d at 694
(holding that an ALJ must “both identify evidence that supports his conclusion and build an
7 The ALJ also implied that Ms. Merga’s statements were of limited value because she and Plaintiff had become
friends outside of work. (Tr. at 28.) However, it is not clear if the ALJ therefore concluded that Ms. Merga
was being untruthful in her assessment as Plaintiffs boss, or how the ALJ then analyzed whether Plaintiff
would have any unexpected absetices or any need for rest days or shorter shifts.
17
accurate and logical bridge from that evidence to his conclusion.” (internal brackets, emphases,
and quotation omitted)). Accordingly, this matter requires remand.
IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding
no disability be REVERSED, and that the matter be REMANDED to the Commissioner
under sentence four of 42 U.S.C. § 405(g). To this extent, it is further RECOMMENDED
that Defendant’s Dispositive Brief [Doc. #9] be DENIED, and Plaintiffs Dispositive Brief
[Doc. #8] be GRANTED to the extent set forth herein.
This, the 31st day of August, 2026.
0 □□□
nited States Magistrate Judge
18