Evans v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LINDA EVANS, )

)

Plaintiff )

)

vs. ) Case No. 2:19-cv-01237-HNJ

)

COMMISSIONER, SOCIAL SECURITY )

ADMINISTRATION, )

)

Defendant )

MEMORANDUM OPINION AND ORDER

Plaintiff Linda Evans seeks judicial review pursuant to 42 U.S.C. § 405(g) of an

adverse, final decision of the Commissioner of the Social Security Administration

(“Commissioner”), regarding her claim for supplemental security income. The

undersigned carefully considered the record, and for the reasons expressed herein, the

court REVERSES the Commissioner’s decision and REMANDS for further

consideration of the medical opinion evidence and Evans’s subjective complaints of

pain.1

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the

parties have voluntarily consented to have a United States Magistrate Judge conduct any and all

proceedings, including the entry of final judgment.

LAW AND STANDARD OF REVIEW

To qualify for benefits, the claimant must be disabled as defined by the Social

Security Act and the Regulations promulgated thereunder. The Regulations define

“disabled” as the “inability to do 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 twelve (12) months.” 20 C.F.R. § 416.905(a). To establish an entitlement to

disability benefits, a claimant must provide evidence of a “physical or mental

impairment” which “results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques.” 42 U.S.C. § 423(d)(3).

In determining whether a claimant suffers a disability, the Commissioner,

through an Administrative Law Judge (ALJ), works through a five-step sequential

evaluation process. See 20 C.F.R. § 416.920(a)(4). The burden rests upon the claimant

at the first four steps of this five-step process; the Commissioner sustains the burden

at step five, if the evaluation proceeds that far. Washington v. Comm’r of Soc. Sec., 906 F.3d

1353, 1359 (11th Cir. 2018).

In the first step, the claimant cannot be currently engaged in substantial gainful

activity. 20 C.F.R. § 416.920(b). Second, the claimant must prove the impairment is

“severe” in that it “significantly limits [the] physical or mental ability to do basic work

activities . . . .” Id. at § 416.920(c).

At step three, the evaluator must conclude the claimant is disabled if the

impairments meet or medically equal one of the impairments listed at 20 C.F.R. Part

404, Subpart P, Appendix 1, §§ 1.00–114.02. Id. at § 416.920(d). If a claimant’s

impairment meets the applicable criteria at this step, that claimant’s impairment would

prevent any person from performing substantial gainful activity. 20 C.F.R. §§

416.920(a)(4)(iii), 416.925. That is, a claimant who satisfies steps one and two qualifies

automatically for disability benefits if the claimant suffers a listed impairment. See

Williams v. Astrue, 416 F. App’x 861, 862 (11th Cir. 2011) (“If, at the third step, [the

claimant] proves that [an] impairment or combination of impairments meets or equals

a listed impairment, [the claimant] is automatically found disabled regardless of age,

education, or work experience.”) (citing 20 C.F.R. § 416.920; Crayton v. Callahan, 120

F.3d 1217, 1219 (11th Cir. 1997)).

If the claimant’s impairment or combination of impairments does not meet or

medically equal a listed impairment, the evaluation proceeds to the fourth step, where

the claimant demonstrates an incapacity to meet the physical and mental demands of

past relevant work. 20 C.F.R. § 416.920(e). At this step, the evaluator must determine

whether the claimant has the residual functional capacity (“RFC”) to perform the

requirements of past relevant work. See id. § 416.920(a)(4)(iv). If the claimant’s

impairment or combination of impairments does not prevent performance of past

relevant work, the evaluator will determine the claimant is not disabled. See id.

If the claimant succeeds at the preceding step, the fifth step shifts the burden to

the Commissioner to provide evidence, considering the claimant’s RFC, age, education

and past work experience, that the claimant is capable of performing other work. 20

C.F.R. § 416.920(g). If the claimant can perform other work, the evaluator will not find

the claimant disabled. See id. § 416.920(a)(4)(v); see also 20 C.F.R. § 416.920(g). If the

claimant cannot perform other work, the evaluator will find the claimant disabled. 20

C.F.R. §§ 446.920(a)(4)(v), 416.920(g).

The court reviews the ALJ’s “decision with deference to the factual findings and

close scrutiny of the legal conclusions.” Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin.,

783 F.3d 847, 850 (11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th

Cir. 1991)). The court must determine whether substantial evidence supports the

Commissioner’s decision and whether the Commissioner applied the proper legal

standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Although

the court must “scrutinize the record as a whole . . . to determine if the decision reached

is reasonable . . . and supported by substantial evidence,” Bloodsworth v. Heckler, 703 F.2d

1233, 1239 (11th Cir. 1983) (citations omitted), the court “may not decide the facts anew,

reweigh the evidence, or substitute [its] judgment” for that of the ALJ. Winschel, 631

F.3d at 1178 (citations and internal quotation marks omitted). “Substantial evidence is

more than a scintilla and is such relevant evidence as a reasonable person would accept

as adequate to support a conclusion.” Id. (citations omitted). Nonetheless, substantial

evidence exists even if the evidence preponderates against the Commissioner’s decision.

Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).

FACTUAL AND PROCEDURAL HISTORY

Ms. Evans, age 53 at the time of the ALJ hearing, protectively filed an application

for supplemental security income on July 28, 2016, alleging disability as of August 1,

2008.2 (Tr. 232–37). The Commissioner denied her claim, and Evans timely filed a

request for a hearing. (Tr. 157–64). The Administrative Law Judge (“ALJ”) held a

hearing on July 12, 2018, during which Evans amended her alleged onset date to July

28, 2016. (Tr. 30–72, 35). The ALJ issued an opinion denying Evans’s claim on

October 10, 2018. (Tr. 15–24).

Applying the five-step sequential process, the ALJ found at step one that Evans

had not engaged in substantial gainful activity since July 28, 2016, her alleged onset and

application date. (Tr. 17). At step two, the ALJ found Evans had the severe

impairments of obesity, osteoarthritis of the bilateral shoulders, fibromyalgia, and left

hip bursitis.3 (Tr. 17–18). At step three, the ALJ found that Evans’s impairments, or

2 Evans previously applied for supplemental security income and disability insurance benefits on May

3, 2013. (Tr. 108). The Commissioner denied Evans’s applications on October 30, 2014. (Tr. 108–

18).

3 Bursitis refers to “a painful condition that affects the small, fluid-filled sacs. . . that cushion the bones,

tendons and muscles near [one’s] joints.” https://www.mayoclinic.org/diseases-

conditions/bursitis/symptoms-causes/syc-20353242 (last visited June 8, 2020). “Pain, swelling, and

tenderness near a joint are the most common signs of bursitis.”

https://www.hopkinsmedicine.org/health/conditions-and-

diseases/bursitis#:~:text=The%20major%20bursae%20(this%20is,generally%20does%20not%20ca

use%20deformity. (last visited June 8, 2020). Bursitis and fibromyalgia “are sometimes seen

combination of impairments, did not meet or medically equal any impairment for

presumptive disability listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 19).

Next, the ALJ found that Evans exhibited the residual functional capacity

(“RFC”) to perform light work, except that she could occasionally stoop; crouch; reach

overhead with her bilateral upper extremities; and climb ramps and stairs. She could

never kneel or crawl, or climb ladders, ropes, or scaffolds. In addition, she could sustain

occasional exposure to extremes of cold and heat; though, she should never be exposed

to hazards such as unprotected heights and dangerous machinery. Furthermore, she

should perform all work inside with no exposure to direct sunlight. Finally, she would

need to alternate from standing to sitting every hour for one to three minutes, but she

would remain on task. (Tr. 19).

At step four, the ALJ determined that Evans did not retain the ability to perform

her past relevant work as a hotel inspector. (Tr. 22).4 At step five, the ALJ determined

that, considering Evans’s age, education, work experience, and RFC, a significant

number of other jobs exist in the national economy that she could perform. (Tr. 23–

concomitantly.” https://www.news-medical.net/health/Fibromyalgia-with-

Bursitis.aspx#:~:text=Fibromyalgia%20is%20a%20condition%20that,be%20confused%20for%20o

ne%20another. (last visited June 8, 2020).

4 In addition to “hotel inspector”, the VE (Vocational Expert) testified that Evans’s past relevant work

includes “housekeeper.” (Tr. 67). The ALJ’s decision does not discuss the VE’s testimony that

Evans’s past relevant work includes housekeeping, and does not address whether Evans retains the

RFC to work as a housekeeper.

24). Accordingly, the ALJ determined that Evans has not suffered a disability, as

defined by the Social Security Act, since July 28, 2016. (Tr. 24).

Evans timely requested review of the ALJ’s decision. (Tr. 218). On May 30,

2019, the Appeals Council denied review, which deems the ALJ’s decision as the

Commissioner’s final decision. (Tr. 1–3). On August 2, 2019, Evans filed her complaint

with the court seeking review of the ALJ’s decision. (Doc. 1).

ANALYSIS

In this appeal, Evans argues substantial evidence does not support the ALJ’s

decision. Specifically, Evans avers the ALJ (1) failed to properly assess the medical

opinion evidence regarding her fibromyalgia; and (2) improperly discredited her

subjective complaints of pain and lay witness testimony regarding her fibromyalgia.

For the reasons discussed herein, the court agrees.

I. The ALJ Failed to Properly Assess the Medical Opinion Evidence

Evans contends the ALJ erred by according little weight to the opinions of her

treating physician, Dr. Ramy J. Toma of the Simon-Williamson Clinic, vis-à-vis her

fibromyalgia. According to Evans, the medical evidence of record buttresses Dr.

Toma’s opinions regarding the severity of her fibromyalgia, and the ALJ improperly

“require[ed] additional ‘objective’ findings to substantiate Dr. Toma’s opinions.” (Doc.

10 at 5). Relatedly, Evans avers the ALJ erred by according great weight to the opinions

of state agency consultant Dr. Robert H. Heilpern. The court will discuss the ALJ’s

evaluation of Dr. Toma’s and Dr. Heilpern’s opinions in turn.

A. The ALJ Failed to Properly Weigh Dr. Toma’s Opinion

The ALJ must give “substantial or considerable weight” to the opinion of a

treating physician “unless ‘good cause’ is shown.” Phillips v. Barnhart, 357 F.3d 1232,

1240 (11th Cir. 2003) (citing Lewis v. Callahan, 125 F.3d 1436 1440 (11th Cir. 1997)).

Good cause exists when: (1) the evidence did not bolster the treating physician’s

opinion; (2) the evidence supported a contrary finding; or (3) a treating physician’s

opinion was conclusory or inconsistent with the doctor’s own medical records. Id. An

ALJ must clearly articulate the reasons for affording less weight to a treating physician’s

opinions. Id. An ALJ does not commit reversible error when (1) she articulates specific

reasons for declining to give the treating physician’s opinion controlling weight, and (2)

substantial evidence supports these findings. Moore v. Barnhart, 405 F.3d 1208, 1212

(11th Cir. 2005) (per curiam).

It remains settled in the Eleventh Circuit that “a lack of objective evidence”

constitutes the “hallmark” of fibromyalgia. Moore, 405 F.3d at 1211 (11th Cir. 2005);

accord Horowitz v. Comm’r of Soc. Sec., 688 F. App’x. 855, 863 (11th Cir. 2017) (per curiam);

Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673 F. App’x. 902, 906 (11th Cir. 2016) (per

curiam); Hernandez v. Comm’r of Soc. Sec., 523 F. App’x. 655, 657 (11th Cir. 2013) (per

curiam); Somogy v. Comm’r of Soc. Sec., 366 F. App’x. 56, 63 (11th Cir. 2010) (per curiam).

Fibromyalgia “often lacks medical or laboratory signs, and is generally diagnosed mostly

on a[n] individual’s described symptoms.”5 Moore, 405 F.3d at 1211. Thus, “a claimant’s

subjective complaints of pain are often the only means of determining the severity of a

patient’s condition and the functional limitations caused

thereby[,] . . . ‘render[ing] . . . over-emphasis upon objective findings inappropriate.’”

Somogy, 366 F. App’x at 64 (fourth alteration in original) (quoting Rogers v. Comm’r of Soc.

Sec., 486 F.3d 234, 248 (11th Cir. 2007)). Accordingly, “a treating physician’s

determination that a patient is disabled due to fibromyalgia is even more valuable

because there are no objective signs of severity.” Stewart v. Apfel, No. 99-6132, 2000

U.S. App. LEXIS 33214, at *9 (11th Cir. Dec. 20, 2000).

In the instant case, Dr. Toma opined, in relevant part:

Ms. Linda Evans is a patient of mine with several chronic medical

conditions, including: Lupus, osteoarthritis, Fibromyalgia, lumbar

degenerative disk disease, carpal tunnel syndrome, obstructive sleep

apnea, Restless leg syndrome, and iron anemia. Due to her conditions,

5 As recognized in Stewart v. Apfel, No. 99-6132, 2000 U.S. App. LEXIS 33214 (11th Cir. Dec. 20, 2000):

The American College of Rheumatology has described fibromyalgia as:

‘[A] syndrome [that] is a common form of generalized muscular pain

and fatigue. The name “fibromyalgia” means pain in the muscles and

the fibrous connective tissues (the ligaments and tendons). . . .

Fibromyalgia is especially confusing and often misunderstood because

almost all its symptoms are also common in other conditions. In

addition, it does not have a known cause . . . .Unfortunately, because

certain syndromes lack physical and laboratory findings (signs), but

depend mostly on a person’s report of complaints and feelings

(symptoms), these syndromes are often viewed as not being real or

important.’

Stewart, 2000 U.S. App. LEXIS 33214, at *7–8 (quoting Arthritis Foundation & American College of

Rheumatology, Arthritis Information: Fibromyalgia (1992)).

she requires several medications, and sees different specialists for her

conditions. She is scheduled to see her Rheumatologist every 3 months

with labwork to monitor her illnesses and organ function. Due to her

conditions, she has chronic musculoskeletal pain and weakness, and she

requires asssitance [sic] with her activities of basic living. She also has

been unable to drive since 2013 due to her medical conditions.

Tr. 672.6

The ALJ accorded Dr. Toma’s opinions little weight.7 According to the ALJ,

Dr. Toma’s opinions remain “[un]supported by any objective evidence in his treatment

6 Dr. Toma’s opinion remains undated.

7 The court notes that the ALJ cited two “opinions” by Dr. Toma in addition to the afore-quoted,

undated opinion. The ALJ’s first citation corresponds to a March 2, 2016, letter in which Dr. Toma

stated: “Ms. Linda Evans is a patient of mine with several chronic medical conditions, including:

Lupus, osteoarthritis, Fibromyalgia, obstructive sleep apnea, Restless leg syndrome, and iron anemia.

Due to her conditions, she requires several medications, and sees different specialists for her

conditions.” (Tr. 390). This letter duplicates the first two statements in the afore-quoted, undated

opinion, and thus remains superfluous. Accordingly, the court will not assess Dr. Toma’s March 2,

2016, letter as a treating physician’s opinion.

The second citation corresponds to a July 24, 2017, letter, in which Dr. Toma stated: “LINDA

EVANS is currently under my medical care and may not return to work at this time. Please excuse

MIKE EVANS for 1 day[.] He may return to work on 07/25/2017.” (Tr. 639). The court does not

heed this letter as an opinion, but rather as a form excuse letter. Mike Evans constitutes Evans’s

spouse, (tr. 50), and, given his reference in the letter, presumably did not attend work on July 24, 2017,

to accompany Evans to her appointment with Dr. Toma that day. Moreover, Evans ceased working

in 2008, (tr. 41), five years prior to establishing treatment with Dr. Toma. (Tr. 445) (Evans presented

to Simon-Williamson on October 18, 2013, “for establishment” with Dr. Toma). Accordingly, despite

Dr. Toma stating Evans “may not return to work at this time”, the court does not construe his July

24, 2017 letter, as a treating physician’s opinion. In any event, to the extent Dr. Toma’s letter

constitutes an opinion that Evans lacks the ability to work, it sustains no dispositive weight. See Pate

v. Comm’r, Soc. Sec. Admin., 678 F. App’x. 833, 834 (11th Cir. 2017) (“According to 20 C.F.R. §

404.1527(d), the determination of whether an individual is disabled is reserved to the Commissioner,

and no special significance will be given to an opinion on issues reserved to the Commissioner.

Section (d)(2) provides that although the Commissioner will consider opinions from medical sources

on issues such as the RFC and the application of vocational factors, the final responsibility for deciding

those issues is reserved to the Commissioner.”); Robinson v. Astrue, 365 F. App’x. 993, 999 (11th Cir.

2010) (“[T]he task of determining a claimant’s . . . ability to work is within the province of the ALJ,

not of doctors.”).

records and are not consistent with the totality of the other evidence.” (Tr. 22). The

ALJ maintained that Dr. Toma’s opinion that Evans required assistance with her daily

living activities “is not supported by any objective evidence in the medical evidence of

record.” (Id.) Further, the ALJ noted, “Dr. Toma’s treatment notations generally

indicate that [Evans] was doing well. Some of his treatment records document multiple

tender points. However, [Evans] generally had 5/5 muscle strength and full range of

motion of her extremities, including her hip.” (Id.) (internal citation omitted). The

ALJ’s assessment does not rest upon substantial evidence.

At the outset, the court discerns a critical ambiguity in the ALJ’s discussion of

Dr. Toma’s opinion. The ALJ twice observed that objective evidence fails to support

Dr. Toma’s opinion. However, as elaborated previously, a lack of objective evidence

constitutes fibromyalgia’s hallmark, rendering an ALJ’s over-emphasis thereupon

improper. See Moore, 405 F.3d at 1211; Somogy, 366 F. App’x at 64. Here, nevertheless,

the ALJ found that Evans’s severe impairments also include obesity, osteoarthritis of

the bilateral shoulders, and left hip bursitis – impairments which may engender

objective evidence. Indeed, a claimant must present objective evidence of these

impairments to establish a disability. See Hennes v. Comm’r of Soc. Sec., 130 F. App’x 343,

348 (11th Cir. 2005) (substantial evidence supported the ALJ’s decision to deny benefits

because the claimant failed to present objective evidence that his obesity reasonably

caused her alleged pain); Blankenship v. Soc. Sec. Admin., No. 6:18-cv-01827-SGC, 2020

U.S. Dist. LEXIS 63980, at *17 (N.D. Ala. Apr. 13, 2020) (the ALJ properly discounted

a treating physician’s opinion based upon a lack of objective evidence of the claimant’s

osteoarthritis); Jones v. Berryhill, No. 2:15-cv-167, 2017 U.S. Dist. LEXIS 83080, at *11

(S.D. Ga. May 31, 2017) (the ALJ’s RFC formulation rested upon substantial evidence

because the objective evidence failed to portray that the claimant’s right hip bursitis

caused greater limitations than those the ALJ ascertained).

The ALJ did not articulate whether she discredited Dr. Toma’s opinion based

upon the purported lack of objective evidence regarding Evans’s fibromyalgia, left hip

bursitis, or osteoarthritis of the bilateral shoulders. This distinction bears significance

because, of course, any lack of objective evidence vis-à-vis Evans’s left hip bursitis and

osteoarthritis may constitute a valid basis for discrediting Dr. Toma’s opinion.8

Contrariwise, any lack of objective evidence of Evans’s fibromyalgia cannot constitute

good cause to discredit Dr. Toma’s opinion. Thus, to the extent the ALJ relied upon a

lack of objective evidence of Evans’s fibromyalgia to discount Dr. Toma’s opinion, the

ALJ improperly failed to observe the “the fact that fibromyalgia by its very nature lacks

objective evidence.” Stewart, 2000 U.S. App. LEXIS 33214, at *9 n.4; see Somogy, 366 F.

App’x at 64 (“The lack of objective clinical findings is, at least in the case of

fibromyalgia, therefore insufficient alone to support an ALJ’s rejection of a treating

physician’s opinion as to the claimant’s functional limitations.”).

8 As elaborated in the following discussion, however, the court discerns that the record does contain

objective evidence of these impairments.

Despite this ambiguity, however, the ALJ’s final remarks regarding Dr. Toma’s

opinion suggest she confused the evidence relevant to Evans’s fibromyalgia with the

evidence pertaining to her other impairments. The ALJ concluded: “Some of [Dr.

Toma’s] treatment records document multiple tender points. However, [Evans]

generally had 5/5 muscle strength and full range of motion of her extremities, including

her hip.” (Tr. 22).

By beginning the second sentence with “however”, the ALJ juxtaposes Evans’s

multiple tender points with her muscle strength and range of motion, thus, delineating

that the latter contradicts or undermines the former. But crucially, while the presence

of tender points constitutes a “paradigmatic symptom[]” of fibromyalgia, Harrison v.

Comm’r of Soc. Sec., 569 F. App’x 874, 877 (11th Cir. 2014), “fibromyalgia patients

‘manifest normal muscle strength and neurological reactions[,] and have a full range of

motion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 244 (6th Cir. 2007) (quoting Preston

v. Sec’y of Health & Human Servs., 854 F.2d 815, 820 (1988)); see also Moore, 405 F.3d at

1211; Steiner v. Berryhill, No. 16-cv-1280-JPG-CJP, 2017 U.S. Dist. LEXIS 138142, at

*24 (S.D. Ill. Aug. 28, 2017) (“Fibromyalgia is characterized by widespread pain and not

a decreased range of motion.”). Accordingly, Evans’s muscle strength and range of

motion bear no relevance to her fibromyalgia and associated tender points. And if, as

the court surmises, the ALJ did not perceive the particularities of fibromyalgia – namely,

its lack of objective evidence and distinguishing symptoms – the court cannot conclude

her assessment rests upon substantial evidence. See Woods v. Berryhill, No. 15-81277-

CIV-HOPKINS, 2017 U.S. Dist. LEXIS 50699 at *9–21 (S.D. Fla. Mar. 30, 2017) (the

case warranted remand because the ALJ improperly discredited the treating physician’s

opinion vis-à-vis the claimant’s fibromyalgia based upon irrelevant evidence and a lack

of objective findings); Burroughs v. Massanari, 156 F. Supp. 2d 1350, 1366 (N.D. Ga.

2001) (“Apart from muscle and soft tissue pain, both of which are “defining symptoms”

of [fibromyalgia], ‘the most common symptoms, present in more than two-thirds of

patients, are undue fatigue, trouble sleeping (insomnia), and joint pains. Slightly less

frequent but present in half or more of patients are recurrent headaches, jerky leg

movements (“restless leg”), and numbness and tingling in various parts of the

body.’ . . . Given this description of the disease, the undersigned is unable to discern

any relevance to the ALJ’s finding that plaintiff did not suffer from joint swelling.”)

(internal citations omitted) (citing 6 Roscoe N. Gray & Louise J. Gordy, Attorneys’

Textbook of Medicine, 25.01, 25.35 (3d ed. 2000)).

Even assuming the ALJ did not conflate Evans’s fibromyalgia and other

impairments, the record belies the ALJ’s assertion that Dr. Toma’s opinions are “not

supported by any objective evidence in his treatment records” and do not accord “with

the totality of the other evidence.” (Tr. 22) (emphasis added). To recount, Dr. Toma

opined that Evans suffers “chronic musculoskeletal pain and weakness, and . . . requires

asssitance [sic] with her activities of basic living.” (Tr. 672). Contrary to the ALJ’s

statement, Dr. Toma’s opinions find support in his own treatment records and in the

other medical evidence of record.9

As for Dr. Toma’s opinion that Evans suffers from chronic musculoskeletal pain,

supporting evidence abounds. To be sure, the ALJ correctly observed that Dr. Toma’s

treatment notes periodically indicate that Evans “was doing well,” or contain similar

positive remarks.10 (Tr. 94, 406, 415, 437, 442). Notwithstanding these records,

however, Dr. Toma consistently documented11 and treated Evans’s pain.

In March 2016 – three months before Evans’s alleged onset date – Dr. Toma

noted that Evans complained of “recurrent [left] hip pains and stiffness”, and reported

it was “constant[ly] painful to walk or lie on [her left] side.” (Tr. 608). Dr. Toma

9 The record contains limited evidence that Evans suffers from weakness. During a May 2018

appointment with Dr. Toma, Evans reported that her “[l]eft leg gives out at times.” (Tr. 86).

However, Evans denied experiencing weakness at her October 2014, March 2016, and July 2017

appointments with Dr. Toma. (Tr. 405, 437, 635). In addition, Evans exhibited normal muscle

strength during her March 2014 appointment with Dr. Toma, (tr. 440), and during her October 2016

evaluation with Dr. Parish. (Tr. 458). Evans reported experiencing “weakness and giving way” during

her May 2017 evaluation by Dr. Featheringill; however, her right shoulder exhibited “good external

rotation and abduction strength”, and her left hip exhibited “good . . . abduction and flexion power.”

(Tr. 675–76). Accordingly, the ALJ possessed good cause to discount Dr. Toma’s opinion that Evans

suffers from weakness.

10 To support her observation, however, the ALJ incorrectly cited to a record bearing the name of Dr.

Ashima Malik, who also treated Evans at the Simon-Williamson Clinic. (Tr. 495). Nevertheless, Dr.

Malik indicated in this record that Evans’s “overall pain [is] doing ok”, (id.), and noted similar positive

remarks in various other records. (Tr. 412, 423, 495, 640).

11 Again, Evans’s subjective complaints of pain constitute a valid “means of determining the severity

of a [her] [fibromyalgia] and the functional limitations caused thereby.” Somogy v. Comm’r of Soc. Sec.,

366 F. App’x. 56, 64 (11th Cir. 2010 (per curiam).

observed tenderness in Evans’s left hip and administered her an anti-inflammatory hip

injection. (Tr. 609–10).12 He also increased Evans’s muscle relaxer dosage. (Tr. 610).

In January 2017, Dr. Toma administered Evans another anti-inflammatory hip

injection and assessed her with chronic trochanteric bursitis of the left hip,13 chronic

left shoulder pain, chronic radiculopathy of the lumbosacral region,14 and “[o]ther

chronic pain.” (Tr. 628). Dr. Toma referred her to an orthopedist for her chronic left

shoulder pain, and prescribed her various pain medications. (Tr. 628–29). Similarly, in

July 2017, Dr. Toma noted that Evans “continues to have left hip and shoulder pain

that is chronic.” (Tr. 634). Dr. Toma administered Evans an anti-inflammatory hip

injection and prescribed her an additional medication to treat her fibromyalgia. (Tr.

636–37). Finally, in May 2018, Dr. Toma observed that Evans’s abdomen exhibited

tenderness. (Tr. 94).

12 Dr. Toma also recorded Evans’s complaints of “chronic insomnia”, (tr. 609), which constitutes a

symptom of fibromyalgia. See Burroughs v. Massanari, 156 F. Supp. 2d 1350, 1366 (N.D. Ga. 2001)

(“Apart from muscle and soft tissue pain, both of which are ‘defining symptoms’ of the [fibromyalgia],

‘the most common symptoms, present in more than two-thirds of patients, are undue fatigue, trouble

sleeping (insomnia), and joint pains.’”) (citing 6 Roscoe N. Gray & Louise J. Gordy, Attorneys’

Textbook of Medicine, 25.01, 25.35 (3d ed. 2000)).

13 Trochanteric bursitis refers to “hip pain caused by inflammation of the fluid-filled sac, or bursa, on

the outer edge of [the] hip.” “The main symptom of trochanteric bursitis is pain in the outer part of

the hip. [One] may feel soreness [upon] press[ing] on the outside of [the] hip or l[ying] on that side.”

https://www.healthline.com/health/trochanteric-bursitis#symptoms (last visited June 9, 2020).

14 Lumbosacral radiculopathy refers to “a pain syndrome caused by compression or irritation of nerve

roots in the lower back.” https://www.ncbi.nlm.nih.gov/books/NBK430837/ (last visited June 15,

2020).

The foregoing records portray that Dr. Toma consistently assessed and treated

Evans for her hip, shoulder, and fibromyalgia-related pain. Accordingly, substantial

evidence fails to buttress the ALJ’s assertion that Dr. Toma’s opinion vis-à-vis Evans’s

chronic musculoskeletal pain lacks any evidentiary support in his treatment records. See

Somogy, 366 F. App’x at 64 (“[T]he record shows that [the claimant] consistently

reported symptoms of fibromyalgia, . . . and that [her] physicians consistently noted and

credited these complaints.”); Reliford v. Barnhart, 444 F. Supp. 2d 1182, 1187 (N.D. Ala.

2006) (“Objective, clinical support for a diagnosis of fibromyalgia may . . . be present if

injections of pain medication to the trigger points are prescribed.”) (citing Kelley v.

Callahan, 133 F.3d 583, 589 (8th Cir. 1998); Rutledge v. Barnhart, 391 F. Supp. 2d 1057,

1062 (N.D. Ala. 2005) (“In spite of its elusive nature, the presence of fibromyalgia can

be objectively verified in some cases. As noted in Sarchet, identifiable tender areas or

‘trigger points’ are well defined and cause pain upon palpation. Objective, clinical

support for a diagnosis of fibromyalgia may also be present if injections of pain

medication to the trigger points are prescribed.”) (citing Kelley, 133 F.3d at 598; Sarchet

v. Chater, 78 F.3d 305 (7th Cir. 1996)); SSR 16-3p, 2016 WL 1237954, at *8 (Mar. 16,

2016) (“Persistent attempts to obtain relief of symptoms, such as increasing dosages

and changing medications, trying a variety of treatments, referrals to specialists, or

changing treatment sources may be an indication that an individual’s symptoms are a

source of distress and may show that they are intense and persistent.”).

Likewise, the remaining medical evidence of record undermines the ALJ’s

assertion that Dr. Toma’s opinion regarding Evans’s pain does not accord “with the

totality of the other evidence.” (Tr. 22). Dr. Malik, for example, routinely documented

and treated Evans’s pain – despite the aforenoted positive remarks appearing in some

of her records.

In January 2015, Dr. Malik noted that Evans was “hurting all over.” (Tr. 431).

Evans scored her pain level at 10/10 and reported that it “lasts all day.” (Id.) Dr. Malik

observed “[b]one/joint symptoms, [and] [m]yalgia”, as well as “multiple tender points

present all over consistent w[ith] [fibromyalgia].” (Tr. 433). She also prescribed Evans

a pain medication and muscle relaxer. (Tr. 429). At a May 2015 follow-up appointment,

Evans scored her pain level at 8/10 and Dr. Malik administered her an anti-

inflammatory hip injection. (Tr. 420–21). Furthermore, in July 2015, Dr. Malik noted

that Evans’s left hip pain remained “out of proportion . . . to other tender points.” (Tr.

412). Dr. Malik administered Evans an anti-inflammatory hip injection and prescribed

her a muscle relaxer. (Id.)

Similarly, in May 2017, Dr. Malik indicated that Evans exhibited “multiple diffuse

tender points present all over, [and] significantly worsening tenderness over her left

[hip].” (Tr. 640). Dr. Malik advised Evans to continue taking her pain medication and

muscle relaxer. (Tr. 461). Likewise, in February 2018, Dr. Malik indicated that Evans

exhibited “[b]one/[j]oint symptoms” and “multiple diffuse tender points present all

over.” (Tr. 496–97). Again, Dr. Malik advised Evans to continue taking her pain

medication and muscle relaxer. (Tr. 496). Dr. Malik’s records depict that she routinely

assessed and treated Evans’s pain, and thus, they buttress Dr. Toma’s opinion that

Evans suffers from chronic musculoskeletal pain. See Somogy, 366 F. App’x at 64;

Reliford, 444 F. Supp. 2d at 1187; Rutledge, 391 F. Supp. 2d at 1062.

Dr. Parish’s and Dr. Featheringill’s evaluations likewise support Dr. Toma’s

opinion. Dr. Parish observed the presence of tenderness or trigger points at various

locations on Evans’s hands, back, knees, left hip, and shoulders. (Tr. 461–62).

Furthermore, Evans’s elevation and abduction of both shoulders measured only ninety

degrees.15 (Tr. 460, 462). Dr. Parish diagnosed Evans, in relevant part, with chronic

upper, mid, and lower back pain with possible degenerative joint disease and

fibromyalgia; chronic left hip pain with possible degenerative joint disease; chronic

bilateral knee pain with possible degenerative joint disease; chronic bilateral shoulder

pain with possible degenerative joint disease, probable supraspinatus tendonitis, and

possible anterior/posterior rotator cuff dysfunction; and “[t]otal body fibromyalgia.”

(Tr. 463).

Similarly, Dr. Featheringill discerned that Evans’s right shoulder exhibited

“limited motion in all planes” and “diffuse tenderness”, despite “seem[ing] to have good

external rotation and abduction strength.” (Tr. 676). He also observed that Evans “has

15 A normal shoulder elevation and abduction achieves 150 degrees. (Tr. 460, 462). Aside from pain,

“a loss of range of motion in the shoulder” constitutes a symptom of shoulder arthritis.

https://www.hopkinsmedicine.org/health/conditions-and-diseases/shoulder-arthritis (last visited

June 9, 2020).

better motion in the left shoulder[,] but it is still limited.” (Id.) In addition, although

Evans’s left hip manifested normal, painless rotational movement, and

“good . . . abduction and flexion power”, she nonetheless exhibited “point tenderness

over the area of the trochanteric bursa.” (Id.) Dr. Featheringill diagnosed Evans with

bursitis of her shoulders and left hip. (Tr. 677). Based upon Dr. Parish’s and Dr.

Featheringill’s findings, the ALJ erroneously concluded that the record lacks any

evidence supporting Dr. Toma’s opinion that Evans suffers from chronic

musculoskeletal pain – whether arising from her fibromyalgia, left hip bursitis, or

osteoarthritis of the shoulders.

In sum, the record contains considerable evidence regarding Evans’s

musculoskeletal pain. Consistent with Evans’s fibromyalgia and left hip bursitis, Dr.

Toma and Dr. Malik routinely recorded Evans’s complaints of pain, observed the

presence of tender points, prescribed her pain medication, and administered her anti-

inflammatory hip injections. Likewise, consistent with her osteoarthritis of the

shoulders, Evans’s shoulders exhibited a reduced range of motion upon examination

by Dr. Parish and Dr. Featheringill. Dr. Parish and Dr. Featheringill also located tender

points along Evans’s left hip, and Dr. Parish observed tender points on her shoulders.

Substantial evidence thus fails to support the ALJ’s assertion that Dr. Toma’s opinion

as to Evans’s pain lacks any evidentiary support.

Finally, contrary to the ALJ’s assertion, the record contains objective evidence

supporting Dr. Toma’s opinion that Evans requires assistance with daily living activities.

Dr. Parish indicated in his October 2016 evaluation that Evans could dress, cook, and

maneuver slip-on shoes. (Tr. 455). However, he noted that Evans brushed her teeth

“with difficulty due to nerve pain on [her] head”; and she used the toilet “with difficulty

due to back pain[,] [and] muscle spasms in her [right] arm . . . [and] chest.” (Id.)

Moreover, and significantly, Dr. Parish indicated that Evans could not bathe or

shower, button clothes, lace shoes, wash dishes, lift pots and pans, lift greater than five

pounds, vacuum, sweep, mop, perform yard work, push or ride a lawn mower, drive,

or buy groceries “due to back pain[,] [and] muscle spasms in her [right] arm . . . [and]

chest.” (Id.) Similarly, Dr. Parish indicated that Evans can use her dominate hand only

with “difficulty” to sign her name, open doors, lift books, pick up coins, maneuver

paper clips, and hold cups. (Tr. 461). In addition, Dr. Parish noted that Evans “receives

assistance performing physical tasks from[] [her] nephew/nephew’s wife.” (Id.) Dr.

Parish’s notations bolster Dr. Toma’s opinion that Evans requires assistance with her

daily living activities, and thus undermine the ALJ’s assessment thereof. See Moreno v.

Berryhill, No. 16-CV-61550-DPG, 2017 U.S. Dist. LEXIS 189050, at *14 (S.D. Fla. July

17, 2017) (The ALJ properly discounted a treating physician’s opinion based upon a

consultative physician’s “determin[ation] that [the claimant] was independent in

activities of daily living[;] . . . she independently took her medication, paid bills, worked

on the weekends, took care of her nephew, took public transportation, and used the

computer.”).

Based upon the foregoing discussion, the ALJ erroneously asserted that the

record lacks any evidence supporting Dr. Toma’s opinions vis-à-vis Evans’s chronic

musculoskeletal pain and need for living assistance. Furthermore, the ALJ’s discussion

of Dr. Toma’s opinion portrays a possible misunderstanding of fibromyalgia and the

evidence relevant to its assessment. The ALJ thus failed to articulate good cause to

discredit Dr. Toma’s opinion, particularly as “a treating physician’s determination that

a patient is disabled due to fibromyalgia is even more valuable because there are no

objective signs of severity.” Stewart v. Apfel, 2000 U.S. App. LEXIS 33214, at *9.

Therefore, Evans’s case warrants remand to permit the ALJ to reweigh Dr. Toma’s

opinion.

B. The ALJ Failed to Properly Weigh the Non-Examining

Physician’s Opinion

Social Security regulations provide that the opinions of state agency physicians

are entitled to substantial consideration. See 20 C.F.R. §§ 404.1527(e), 404.1513a(b)(1)

(stating that, while the ALJ is not bound by the findings of a state agency physician, the

ALJ should consider such a reviewing physician to be both “highly qualified” and an

“expert” in Social Security disability evaluation). Nevertheless, the opinions or findings

of a non-examining physician are generally entitled to little weight when they contradict

the opinions or findings of a treating or examining physician, and “standing alone do

not constitute substantial evidence.” Putman v. Soc. Sec. Admin., Comm’r, 705 F. App’x

929, 932 (11th Cir. 2017) (quoting Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)).

To determine the weight given to a medical opinion, an ALJ must consider

several factors, including the examining relationship, the treatment relationship, the

evidence presented to support the opinion, the consistency of the opinion with other

evidence, and the specialization of the medical professional. 20 C.F.R. §404.1527(c); see

Davis v. Comm’r of Soc. Sec., 449 F. App’x 828, 832 (11th Cir. 2011) (stating that the ALJ

will give more weight to the medical opinions of a source who has examined the plaintiff

and opinions that are supported by medical signs and findings and are consistent with

the overall “record as a whole”). The ALJ may reject the opinion of any physician when

the evidence supports a contrary conclusion. Hearn v. Comm’r of Soc. Sec., 619 F. App’x

892, 895 (11th Cir. 2015) (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir.

1983)).

In the instant case, state agency physician Dr. Robert H. Heilpern16 opined on

October 28, 2016, that Evans retained the RFC to perform her past relevant work as a

housekeeper. (Tr. 150). The ALJ accorded great weight to Dr. Heilpern’s opinion that

16 The relevant portion of Evans’s brief does not explicitly reference Dr. Heilpern’s opinion, but rather

that of state agency physician Dr. Richard Whitney. (Doc. 10 at 7) (“Reliance on the non-examining

consultant was particularly misplaced here. That consultant, pediatrician Richard Whitney, M.D.,

reviewed the file on October 26, 2016 . . . .”). However, the ALJ’s opinion does not reference or cite

to Dr. Whitney’s opinion. Nevertheless, Dr. Whitney and Dr. Heilpern reviewed the same evidence,

excepting Dr. Parish’s October 24, 2016, evaluation – which Dr. Heilpern, but not Dr. Whitney,

analyzed – and rendered identical opinions. Compare Tr. 130–37 with Tr. 142–151. Accordingly, the

court presumes Evans mistakenly referenced Dr. Whitney’s opinion instead of Dr. Heilpern’s.

In addition, the court notes the ALJ accorded “only some weight” to Dr. Timothy Parish’s

examination of Evans, (tr. 21), though Evans does not raise any issue therewith. Accordingly, the

court will not assess the ALJ’s weighing of Dr. Parish’s opinion.

Evans “could perform a reduce[d] range of light exertion work,” stating that Dr.

Heilpern’s opinion accords “with the totality of the medical evidence of record,

including the limited treatment that the claimant has received for her conditions since

the date of alleged onset of disability.” (Tr. 21). Substantial evidence fails to support

the ALJ’s assessment of Dr. Heilpern’s opinion.

As a preliminary matter, Dr. Heilpern did not explicitly opine that Evans “could

perform a reduce[d] range of light work”, but rather that she retained the RFC to

perform her past relevant work despite “limitations in the performance of certain work

activities.” (Tr. 150). However, the housekeeper occupation – which represents the

occupation Dr. Heilpern assessed – constitutes light work, see Dictionary of

Occupational Titles 323.687-014, and Dr. Heilpern opined that Evans has exertional,

postural, and environmental limitations. (Tr. 148–50). Thus, however slightly, the ALJ

nonetheless mischaracterized Dr. Heilpern’s opinion. Furthermore, seemingly contrary

to Dr. Heilpern’s opinion and the ALJ’s accordance of great weight thereto, the ALJ

did not opine as to whether Evans’s past relevant work includes housekeeping or

whether she retained the RFC to perform such work.17 (Tr. 22). Similarly, Dr. Heilpern

opined that Evans could occasionally kneel and crawl; though, the ALJ concluded

17 To be sure, as aforenoted, the ALJ ultimately found that Evans lacked the RFC to perform her past

relevant work as a hotel inspector. (Tr. 22). Though the hotel inspector occupation also constitutes

light work, it remains distinct from the housekeeper occupation. See Dictionary of Occupational Titles

321.137-014.

Evans could never kneel or crawl. (Id.) Given these incongruities, the manner and

extent to which the ALJ heeded Dr. Heilpern’s opinion manifests ambiguity.

In any event, given the ALJ failed to articulate good cause to discount Dr. Toma’s

opinion – and therewith seemingly conflated the evidence vis-à-vis Evans’s fibromyalgia

and other impairments – the court does not find substantial evidence supports the ALJ’s

weighing of Dr. Heilpern’s opinion. Dr. Heilpern’s RFC formulation included a finding

that Evans could occasionally lift and/or carry twenty pounds; frequently lift and/or

carry ten pounds; stand and/or walk roughly six hours in an eight-hour work day; and

sit roughly six hours in an eight-hour work day. (Tr. 148).

As previously elaborated, Evans’s treatment records portray that Dr. Toma and

Dr. Malik consistently treated Evans’s fibromyalgia and left hip bursitis, and Dr. Parish

and Dr. Featheringill assessed Evans with hip and shoulder pain. Based upon the ALJ’s

failure to acknowledge these records vis-à-vis Dr. Toma’s opinion, and her apparent

misperception of fibromyalgia, the court cannot ascertain whether her assessment of

Dr. Heilpern’s opinion rests upon substantial evidence. See Cowart v. Schweiker, 662 F.2d

731, 735 (11th Cir. 1981) (“Unless the [ALJ] has analyzed all evidence and has sufficiently

explained the weight he has given to obviously probative exhibits, to say that his

decision is supported by substantial evidence approaches an abdication of the court’s

‘duty to scrutinize the record as a whole to determine whether the conclusions reached

are rational.’”) (quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1981)); Williams

v. Saul, No. 8:18-cv-2402-T-AEP, 2020 U.S. Dist. LEXIS 55988, at *14–15 (M.D. Fla.

Mar. 31, 2020) (the court could not conclude substantial evidence supported the ALJ’s

decision because the ALJ failed to address medical evidence contrary to her decision);

Tobin v. Acting Comm’r of Soc. Sec. Admin., No. 6:18-cv-1426-Orl-MCR, 2019 U.S. Dist.

LEXIS 137224, at *17–21 (M.D. Fla. Aug. 14, 2019) (the ALJ erred in according more

weight to the non-examining physician’s opinion than to the treating physician’s

opinion because he discounted or ignored relevant evidence); Burch v. Berryhill, No. 8:16-

cv-3524-T-24AAS, 2018 U.S. Dist. LEXIS 16853, at *17–18 (M.D. Fla. Jan. 16, 2018)

(the court could not discern whether substantial evidence supported the ALJ’s

credibility determination because the ALJ failed to discuss the treating physicians’

opinions which, if entitled to considerable weight, could affect such determination),

report and recommendation adopted, Burch v. Berryhill, No. 8:16-cv-3524-T-24AAS, 2018 U.S.

Dist. LEXIS 15565 (M.D. Fla. Jan. 31, 2018).

Moreover, Dr. Heilpern’s opinion that Evans could perform her past relevant

work – or that she could perform a “reduce[d] range of light work,” as perhaps

construed by the ALJ – invades the province of the ALJ and sustains no dispositive

weight.

According to 20 C.F.R. § 404.1527(d), the determination of whether an

individual is disabled is reserved to the Commissioner, and no special

significance will be given to an opinion on issues reserved to the

Commissioner. Section (d)(2) provides that although the Commissioner

will consider opinions from medical sources on issues such as the RFC

and the application of vocational factors, the final responsibility for

deciding those issues is reserved to the Commissioner.

Pate v. Comm’r, Soc. Sec. Admin., 678 F. App’x. 833, 834 (11th Cir. 2017). That is, “the

task of determining a claimant’s . . . ability to work is within the province of the ALJ,

not of doctors.” Robinson v. Astrue, 365 F. App’x. 993, 999 (11th Cir. 2010). Accordingly,

the ALJ erred in according Dr. Heilpern’s opinion great weight. See id; see also Johnson v.

Barnhart, 138 F. App’x. 266, 271 (11th Cir. 2005) (“Dr. Maloy’s RFC evaluation is not

dispositive, as its conclusions are from a non-treating, non-examining physician, and

the other medical records express no indication of [the claimant’s] ability to perform

her past work.”).

Based upon the foregoing discussion, the court does not find substantial

evidence buttresses the ALJ’s assessment of Dr. Heilpern’s opinion. Upon remand, the

ALJ should reassess Dr. Heilpern’s opinion in light of the principles and evidence

discussed vis-à-vis Dr. Toma’s opinion.

II. The ALJ Improperly Discredited Evans’s Subjective Complaints of

Pain

Evans contends the ALJ erroneously discounted her subjective complaints of

pain based upon the absence of “objective abnormalities beyond the presence of trigger

points and associated fibromyalgia symptoms.” (Doc. 10 at 10–11). In addition, Evans

avers the ALJ improperly failed to provide “a cogent reason” for discounting the

testimony of her neighbor and mother-in-law. (Id. at 12). For the reasons discussed

below, the court finds merit in Evans’s contention that the ALJ evaluated improperly

her subjective complaints of pain. The court will remand the case to the ALJ to further

evaluate her testimony.

Because remand is warranted on this basis, the court will not address Evans’s

allegations regarding the ALJ’s assessment of the third-party testimony. See Demenech v.

Sec’y of the Dep’t of HHS, 913 F.2d 882, 884 (11th Cir. 1990) (per curiam) (because one

issue plaintiff raised warranted remand, the court need not consider the remaining

issues); accord Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per curiam); Hall

v. Astrue, No. CV-11-S-3540-J, 2012 U.S. Dist. LEXIS 86838, at *12 n.8 (N.D. Ala. June

22, 2012).

To establish disability based on testimony of pain and other symptoms,

the claimant must satisfy two parts of a three-part test by showing: “(1)

evidence of an underlying medical condition; and (2) either (a) objective

medical evidence confirming the severity of the alleged pain; or (b) that

the objectively determined medical condition can reasonably be expected

to give rise to the claimed pain.”

Zuba-Ingram v. Comm’r of Soc. Sec., 600 F. App’x 650, 656 (11th Cir. 2015) (quoting Wilson

v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per curiam)). A claimant’s testimony

coupled with evidence that meets this standard “is itself sufficient to support a finding

of disability.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citation omitted).

Social Security Ruling (“SSR”) 16-3p, effective March 28, 2016, and republished

October 25, 2017, eliminated the use of the term “credibility” as it relates to assessing

the claimant’s complaints of pain and clarified that the ALJ “will consider any personal

observations of the individual in terms of how consistent those observations are with

the individual’s statements about his or her symptoms as well as with all of the evidence

in the file.” SSR 16-3p, 2017 WL 5180304, *6 (Oct. 25, 2017). An ALJ rendering

findings regarding a claimant’s subjective symptoms may consider a variety of factors,

including: the claimant’s daily activities; symptom location, duration, frequency, and

intensity; precipitating and aggravating factors; type, dosage, effectiveness, and side

effects of medication taken to alleviate the symptoms; and other factors concerning

functional limitations and restrictions due to symptoms. See 20 C.F.R. §§

404.1529(c)(3)-(4), 416.929(c)(3)-(4).

SSR 16-3p further explains that the ALJ’s decision “must contain specific reasons

for the weight given to the individual’s symptoms, be consistent with and supported by

the evidence, and be clearly articulated so the individual and any subsequent review can

assess how the adjudicator evaluated the individual’s symptoms.” SSR 16-3p, at *10; see

also Wilson, 284 F.3d at 1225 (if an ALJ discredits a claimant’s subjective testimony, the

ALJ “must articulate explicit and adequate reasons for doing so.”).

As previously discussed, fibromyalgia often lacks objective medical findings and

“is generally diagnosed mostly on a[n] individual’s described symptoms.” Moore, 405

F.3d at 1211. Accordingly, the court may “reverse an ALJ’s determination that a

fibromyalgia claimant’s testimony was incredible where the lack of objective findings

provided the basis for the adverse credibility determination.” Horowitz, 688 F. App’x at

863 (citing Moore, 405 F.3d at 1211).

Evans testified at the hearing that she suffers from carpal tunnel syndrome in

both hands, causing numbness in her wrists, hands, and fingertips.18 (Tr. 44). Evans

stated that “a lot of times” the numbness causes her fingertips to turn blue, and that

Dr. Malik advised her to drink half-cups of water from non-glass vessels in the event

she loses her grip thereof. (Id.) In addition, Evans testified that she avoids wearing

buttoned shirts because her wrist numbness interferes with her ability to manipulate

buttons. (Tr. 44–45).

Evans further testified that she began taking Lyrica for her fibromyalgia in 2014,

and that “[w]hen it’s a good day,” she “can get up and walk around, [and] [p]ut

something in the microwave.” (Tr. 45–46). Evans averred she lives with her nephew,

who does her laundry and drives her to medical appointments. (Tr. 47, 49). In addition,

Evans testified that her neighbors often help with household cleaning and drive her to

medical appointments. (Tr. 47, 49). Evans stated she used to care for her young

grandson, but that she “can’t even do for [her]self now” that which she used to do for

him, such as cooking and bathing him. (Tr. 51–52). Evans further stated that she walks

with a cane as needed and that her condition has “[m]ost definitely” worsened in the

last years. (Tr. 52).

Evans testified that she feels tired and lacks energy daily, which negatively affects

her fibromyalgia. (Tr. 56). According to Evans, her fibromyalgia pain becomes so

18 Carpal tunnel syndrome constitutes “a common symptom and associated condition of [fibromyalgia]

patients.” https://pubmed.ncbi.nlm.nih.gov/12070678/ (last visited June 4, 2020).

intense that she does not want to lie down. (Id.) She further averred that the pain

affects her entire body, such that she only wants to sit still to prevent anything from

touching her body. (Tr. 57). Evans stated that she avoids moving because movement

incites “very intense” pain. (Id.) In addition, Evans averred that she lies down two to

three hours at a time during the day, and that she “might be [awake] for two, three days

at a time.” (Tr. 58). Evans testified that when she sleeps, she typically gets up around

noon and, her pain permitting, tries to wash her face. (Tr. 59). Evans stated she had

not taken a bath in four or four and a half years. (Id.) She further testified that she

watches television for several hours before lying back down again, as she feels “just so

exhausted all the time.” (Tr. 60).

Finally, Evans testified she experiences persistent lesions on her head and often

experiences mouth ulcers. Evans averred that she cannot tolerate sunlight because of

her lesions, and that she forgoes family functions to protect her immune system from

the risk of flu or pneumonia. (Tr. 61–62).

In her Function Report, Evans stated she cares for her grandchild, but that her

impairments preclude her from caring for herself or her grandchild as she once did.

(Tr. 263). Evans indicated her impairments affect her ability to dress, bathe, care for

her hair, feed herself, use the toilet, walk, bend, and stand. (Id.) She further stated that

she sometimes requires reminders vis-à-vis taking medication, caring for her personal

needs, and grooming. (Tr. 264). Evans averred that her cooking habits have changed

since the onset of her impairments; she now spends a few minutes each day preparing

frozen meals. (Id.) In addition, Evans stated that she does “very little cleaning” and

“very little laundry”, and that she requires help doing both. (Id.) Evans stated that she

goes only to medical appointments, and cannot go alone due to fatigue and pain. (Tr.

265). Similarly, Evans averred that her sister or nephew shops for her. (Id.)

Furthermore, Evans stated that her pain causes her to stay in bed and that she

has become withdrawn since the onset of her impairments. (Tr. 266–67). Evans

indicated that her impairments affect her ability to lift, squat, bend, stand, reach, walk,

sit, kneel, climb stairs, see, remember, complete tasks, concentrate, and use her hands.

In addition, Evans stated she could walk only next door, and could not lift a gallon of

milk, or, sometimes, a full glass of water. (Tr. 267). Evans further averred she cannot

walk far before needing to rest for five to ten minutes. Finally, Evans stated she walked

with a prescribed cane as needed. (Tr. 268).

In her Pain Questionnaire, Evans stated she experiences “full body pain.” (Tr.

325). She specifically indicated she experiences pain in her hands, right wrist, hip, back,

shoulder, head, face, and forearm. (Id.) Evans averred that standing, walking, heat,

cold, and her lupus incite her pain, which persists throughout the day. (Id.) She further

stated that she cannot get out of bed most of the time, and cannot take narcotic pain

medications due to their negative side effects. (Id.) In addition, Evans indicated she

walked with a cane and wore wrist braces for her carpal tunnel syndrome. (Tr. 326).

Finally, Evans stated that because of her pain, she cannot stand or walk for long

durations, and that someone must accompany her when she goes out. (Id.)

In her opinion, the ALJ summarized Evans’s hearing testimony, but did not

discuss her Function Report or Pain Questionnaire. (Tr. 20). The ALJ found that

Evans’s medically determinable impairments could reasonably be expected to cause her

alleged symptoms. (Tr. 19). The ALJ further found, however, that Evans’s statements

concerning the intensity, persistence, and limiting effects of these symptoms did not

fully accord with the medical and other evidence “for the reasons explained in [the]

decision.” (Id.) Aside from the ALJ’s assessment of Dr. Toma’s and Dr. Heilpern’s

opinions, the decision proceeds to discuss solely the following evidence: Dr. Malik’s

September 2016, May 2017, and February 2018 treatment records; Dr. Featheringill’s

May 2017 and June 2017 treatment records; and Dr. Parish’s October 2016 evaluation

of Evans. (Tr. 20–22). Substantial evidence fails to support the ALJ’s assessment of

Evans’s subjective complaints of pain.

The ALJ relied upon Dr. Malik’s September 2016, May 2017, and February 2018

treatment records to discredit Evans; however, these records depict typical fibromyalgia

symptoms and Evans’s complaints thereof. See Rutledge, 391 F. Supp. 2d at 1062. The

ALJ correctly noted that Dr. Malik indicated Evans was “doing ok” in May 2017 and

February 2018. However, as the ALJ observed, Dr. Malik noted in September 2016

and May 2017 that Evans “had multiple diffuse tender points present all over with

significantly worsening tenderness over her left trochanteric bursa with iliotibial band

tightening”, and administered her an anti-inflammatory hip injection during both

appointments. (Tr. 20, 21). The ALJ similarly acknowledged that Dr. Malik’s February

2018 treatment records noted Evans “had multiple diffuse tender points present all

over.” (Tr. 21). Furthermore, the ALJ noted that Dr. Malik prescribed Evans Lyrica

and muscle relaxers during all three appointments. (Tr. 20, 21).

Given that Dr. Malik consistently assessed Evans with multiple tender points,

administered her anti-inflammatory hip injections, and prescribed her pain medications,

the court fails to discern how Dr. Malik’s treatment records undermine Evans’s

testimony. Somogy, 366 F. App’x at 64 (“Other than a lack of objective medical findings,

there is nothing in the record to suggest that [the claimant] did not suffer the degree of

pain she reported or that her doctors should have disbelieved her complaints. . . . [T]he

credibility of [plaintiff’s] complaints of disabling pain are bolstered by evidence that she

made numerous visits to her doctors over the course of several years, underwent

numerous diagnostic tests, and was prescribed numerous medications.”); Rutledge, 391

F. Supp. 2d at 1062 (“Objective, clinical support for a diagnosis of fibromyalgia may

also be present if injections of pain medication to the trigger points are prescribed.”).

As for Dr. Featheringill’s May 2017 and June 2017 treatment records, the ALJ

noted that Evans displayed “point tenderness over the area of the left trochanteric

bursa” during both appointments. (Tr. 20, 21). The ALJ then highlighted Dr.

Featheringill’s other findings:

On exam, the right shoulder had diffuse tenderness, but there was good

external rotation and abduction strength. The left shoulder had better

motion. Dr. Featherinfill [sic] noted that some of the decreased range of

motion might be due to the claimant’s body habitus. His exam found that

the claimant was quite stocky and thick about the

shoulders. . . [R]otational movement of the hip was normal without any

pain. Straight leg raise testing was negative on the left. There was good

left hip abduction power. Bilateral shoulder x-rays showed . . . no

glenohumeral problem of significant [sic]. The left hip x-rays looked

good. . . . [Evans’s] left hip magnetic resonance imaging was basically

completely normal.

(Tr. 20).

The ALJ did not specify whether she discerned that Dr. Featheringill’s evaluation

notes undermine Evans’s testimony vis-à-vis her fibromyalgia, left hip bursitis, or

osteoarthritis of the bilateral shoulders. However, Dr. Featheringill’s treatment notes

buttress Evans’s complaints of pain as to all three impairments.

Dr. Featheringill’s observation of point tenderness on Evans’s left hip and

diffuse tenderness on her right shoulder supports Evans’s complaints of pain arising

from her fibromyalgia and left hip bursitis. And because “fibromyalgia patients

‘manifest normal muscle strength and neurological reactions[,] and have a full range of

motion’”, Evans’s normal rotation and abduction strength does not undermine this

conclusion. Rogers, 486 F.3d at 244 (quoting Preston, 854 F.2d at 820); see also Moore, 405

F.3d at 1211; Steiner, 2017 U.S. Dist. LEXIS 138142, at *24. Similarly, “x-ray scans are

meaningless in fibromyalgia cases,” Reliford, 444 F. Supp. 2d at 1190, and cannot

“positively establish the diagnosis of bursitis.” Bursitis, MAYOCLINIC.COM,

https://www.mayoclinic.org/diseases-conditions/bursitis/diagnosis-treatment/drc-

20353247#:~:text=X%2Dray%20images%20can't,Lab%20tests. (last visited June 12,

2020). Thus, the normality portrayed in Evan’s left hip x-ray bears no relevance to her

complaints of pain vis-à-vis fibromyalgia and left hip bursitis. To be sure, Dr.

Featheringill assessed Evans with left hip bursitis.

Finally, as for Evans’s osteoarthritis of the bilateral shoulders, Dr. Featheringill

diagnosed Evans with bursitis of both shoulders despite her “good external rotation

and abduction strength.”19 (Tr. 676). Accordingly, substantial evidence fails to buttress

the ALJ’s assessment that Dr. Featheringill’s records undermine Evans’s subjective

complaints of pain.

The ALJ’s assessment of Dr. Parish’s evaluation remains likewise improper. The

ALJ observed that Dr. Parish located various tender areas and trigger points throughout

Evans’s body, which accords with her fibromyalgia-related complaints. (Tr. 21). The

ALJ further noted that Evans’s

[c]oordination and cranial nerve exams were normal. There was no loss

of muscle tone or muscle wasting present. Reflexes were normal

throughout. Muscle power was 5/5 throughout. Sensation was intact.

Straight leg raise testing was negative. [Evans] had midline and

paravertebral tenderness throughout the spine. She had some sacroiliac

joint tenderness on the left. Range of motion was decreased in all planes

of the dorsolumbar spine. [Evans] also had decreased range of motion on

flexion of the left hip and abduction . . . and forward elevation of the

bilateral shoulders. Otherwise, range of motion was normal

throughout. . . . X-rays of the left hip were normal.

(Tr. 21).

19 As aforenoted, bursitis and fibromyalgia may arise concomitantly. See https://www.news-

medical.net/health/Fibromyalgia-with-

Bursitis.aspx#:~:text=Fibromyalgia%20is%20a%20condition%20that,be%20confused%20for%20o

ne%20another. (last visited June 8, 2020).

To recount, fibromyalgia patients retain normal muscle strength and manifest

normal x-ray findings. X-rays likewise do not reveal indicators of bursitis. Accordingly,

Evans’s normal muscle power and left hip x-ray fail to undermine her complaints of

pain vis-à-vis fibromyalgia and left hip bursitis. Indeed, Dr. Parish assessed Evans with

chronic left hip pain and “[t]otal body fibromyalgia.” (Tr. 463). Furthermore, Dr.

Parish indicated that Evans’s shoulders exhibited reduced abduction and elevation, and

diagnosed her with chronic bilateral shoulder pain. Dr. Parish’s records thus bolster

Evans’s complaints of pain arising from her osteoarthritis of the bilateral shoulders.

Moreover, as elaborated previously, Dr. Parish recorded Evans’s limitations vis-

à-vis her daily living activities and noted that she requires her family’s assistance

therewith. Dr. Parish’s notes parallel, and therefore bolster, Evans’s testimony as to the

same. Dr. Parish’s evaluation notes thus fail to buttress the ALJ’s discrediting Evans’s

testimony with substantial evidence.

Finally, as previously discussed, Dr. Toma consistently documented Evans’s

complaints of pain, (tr. 94, 608, 628, 634), administered her anti-inflammatory hip

injections, (tr. 610, 628, 636), and prescribed her pain medication. (Tr. 610, 637). Dr.

Toma’s treatment records thus further undermine the ALJ’s discrediting of Evans’s

testimony, as they portray her complaints and treatment for pain arising from

fibromyalgia and left hip bursitis.

In sum, the treatment records the ALJ relied upon in discrediting Evans’s

testimony portray that she received anti-inflammatory injections, took prescription pain

medications, and displayed tenderness or trigger points consistent with fibromyalgia

and left hip bursitis. Dr. Featheringill’s and Dr. Parish’s records further buttress

Evans’s testimony regarding pain arising from her impairments, including osteoarthritis

of the bilateral shoulders. The ALJ’s assessment of Evans’s subjective complaints of

pain thus lacks support in substantial evidence.

CONCLUSION

For the foregoing reasons, the court REVERSES the Commissioner’s decision

and REMANDS the case for further consideration of the medical opinion evidence

and Evans’s subjective complaints of pain.20

The court GRANTS Evans an extension of time in which to file a petition for

authorization of attorney’s fees pursuant to 42 U.S.C. § 406(b) until the later of:

20 Evans beseeches the court to award her attorney’s fees pursuant to 28 U.S.C. § 2412(d). (Doc. 13

at 10). Section 2412(d)(1)(B) provides:

A party seeking an award of fees and other expenses shall, within thirty days of final

judgment in the action, submit to the court an application for fees and other expenses

which shows that the party is a prevailing party and is eligible to receive an award under

this subsection, and the amount sought, including an itemized statement from any

attorney or expert witness representing or appearing in behalf of the party stating the

actual time expended and the rate at which fees and other expenses were computed.

The party shall also allege that the position of the United States was not substantially

justified.

§ 2412(d)(1)(B). Evans does not specify the amount sought, the time expended, or the computation

of rates pursuant to § 2412(d)(1)(B). The court thus denies Evans’s request without prejudice. See id.

Evans may renew her application for attorney’s fees pursuant to the procedures set forth in

§ 2412(d)(1)(B).

In addition, Evans beseeches the court to “extend the time frame specified in [Federal Rule of Civil

Procedure] 54(d)(2)(B) in which [she] may file an application for 42 U.S.C.A. § 406(b) attorney’s fees

so as to allow the Commissioner to calculate [her] past-due benefits.” (Doc. 13 at 10). Section 406(b)

provides:

1) THIRTY (30) DAYS subsequent to the resolution of the request by Evans’s

attorney to the Social Security Administration for authorization to charge a fee

for proceedings before the Commissioner; or

Whenever a court renders a judgment favorable to a [social security] claimant . . . who

was represented before the court by an attorney, the court may determine and allow

as part of its judgment a reasonable fee for such representation, not in excess of 25

percent of the total of the past-due benefits to which the claimant is entitled by reason

of such judgment.

§ 406(b). Furthermore, pursuant to Federal Rule of Civil Procedure 54(d)(2)(B)(i), “[a] claim for

attorney’s fees and related nontaxable expenses must be made by motion . . . no later than 14 days

after the entry of judgment.” Fed. R. Civ. P. 54(d)(2)(B)(i). Rule 54(d)(2)(B)’s fourteen-day filing

period governs motions for attorney’s fees under § 406(b). See Bergen v. Comm’r of Soc. Sec., 454 F.3d

1273, 1277 (“Fed. R. Civ. P. 54(d)(2) applies to a § 406(b) attorney’s fee claim.”).

As the Commissioner has yet to determine that it owes Evans past-due benefits, and may not do so

before the Rule 54(d)(2)(B) fourteen-day filing period elapses, the court extends Evans’s time to move

for § 406(b) attorney fees to the later of:

1) THIRTY (30) DAYS subsequent to the resolution of the request by Evans’s attorney to

the Social Security Administration for authorization to charge a fee for proceedings before the

Commissioner; or

2) THIRTY (30) DAYS subsequent to receipt by Evans’s attorney of the closeout letter

required under the Program Operations Manual System GN 03930.91.

See id. n.2 (“[T]he claimants could have avoided the confusion about integrating [Rule] 54(d)(2)(B) into

the procedural framework of a fee award under 42 U.S.C. § 406(b) by moving the district court for an

extension of the 14 day period described in [Rule] 54(d)(2)(B) when the district court remanded their

case.”); Mercer v. Comm’r of Soc. Sec. Admin., No. 2:17-cv-02158-JHE, 2019 U.S. Dist. LEXIS 53539, at

*26–27 (N.D. Ala. Mar. 29, 2019) (the court extended the Rule 54(d)(2)(B) filing deadline upon

remanding the case to the Commissioner); accord Chancy v. Berryhill, No. 6:16-cv-00735-JEO, 2018 U.S.

Dist. LEXIS 8005, at *52–53 (N.D. Ala. Jan. 18, 2018); Hill v. Berryhill, No. 5:16-CV-597-VEH, 2017

U.S. Dist. LEXIS 122329, at *23–24 (N.D. Ala. Aug. 3, 2017).

2) THIRTY (30) DAYS subsequent to receipt by Evans’s attorney of the

closeout letter required under the Program Operations Manual System GN

03930.91.

DONE this 17" day of June, 2020.

N. fo (ot JR.

UNITED STATES MAGISTRATE JUDGE

40