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Jacobsen v. Berryhill

United States District Court, N.D. Alabama, Southern Division

March 20, 2018

BOBBIE JO JACOBSEN Claimant,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Respondent.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On October 3, 2012, the claimant protectively applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. The claimant alleged disability beginning March 15, 2011, because of migraines, arthritis in her neck and back, fibromyalgia, blindness in her left eye, and vascular problems. The Commissioner denied these claims on December 27, 2012. On February 1, 2013, the claimant filed a written request for a hearing before an Administrative Law Judge, and he held a hearing on July 16, 2014. The ALJ held a second hearing on February 20, 2015 to hear additional medical testimony. (R. 23, 50-63, 65-87, 127, 132, 206, 214, 231, 234).

         In a decision dated August 2, 2015, the ALJ found the claimant not disabled as defined by the Social Security Act and, therefore, ineligible for disability benefits. (R. 23-37). On July 28, 2016, the Appeals Council denied the claimant's request for review; consequently, the ALJ's decision became the final decision of the Commissioner of the Social Security Administration. (R. 104). The claimant has exhausted her administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, the court REVERSES and REMANDS the decision of the ALJ because substantial evidence does not support his findings regarding the claimant's fibromyalgia.

         II. ISSUE PRESENTED

         Whether the ALJ's finding that the claimant did not have the medically determinable impairment of fibromyalgia lacks substantial evidence.

         III. STANDARD OF REVIEW

         The standard for reviewing the Commissioner's decision is limited. This court must affirm the ALJ's decision if he applied the correct legal standards and if substantial evidence supports his factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.1987).

         “No . . . presumption of validity attaches to the [ALJ's] legal conclusions, including determination of the proper standards to be applied in evaluating claims.” Walker, 826 F.2d at 999. This court does not review the ALJ's factual determinations de novo. The court will affirm those factual determinations that are supported by substantial evidence. “Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971).

         The court must keep in mind that opinions such as whether a claimant is disabled, the nature and extent of a claimant's residual functional capacity, and the application of vocational factors “are not medical opinions, . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d). Whether the claimant meets a Listing and is qualified for Social Security disability benefits is a question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ about the significance of certain facts, the court has no power to reverse that finding as long as substantial evidence in the record supports it.

         The court must “scrutinize the record in its entirety to determine the reasonableness of the [ALJ]'s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not only look to those parts of the record that support the decision of the ALJ, but also must view the record in its entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).

         IV. LEGAL STANDARD

         The Eleventh Circuit has recognized that “fibromyalgia, a chronic pain illness, is usually diagnosed based on an individual's described symptoms because the ‘hallmark' of the disease is a lack of objective evidence.” Brown-Gaudet-Evans v. Comm'r Soc. Sec., 673 F. App'x 902, 906 (11th Cir. 2016). The ALJ must “find that a person has a [medically determinable impairment] of [fibromyalgia] if the physician diagnosed [fibromyalgia] and provides the evidence described in II.A or section II.B, and the physician's diagnosis is not inconsistent with the other evidence in the [claimant's] case record.” SSR 12-2p.

         Sections II.A and II.B provide two sets of criteria for diagnosing fibromyalgia: the 1990 American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic Criteria. SSR 12-2p §§ II.A & II.B. The 1990 ACR Criteria requires that the claimant show (1) a history of widespread pain; (2) at least 11 positive tender points on physical examination, found bilaterally, on the left and right sides of the body and both above and below the waist; and (3) evidence that other disorders that could cause the symptoms or signs were excluded. SSR 12-2p § II.A. In testing the tender-point sites, “the physician should perform digital palpation with an approximate force of 9 pounds (approximately the amount of pressure needed to blanch the thumbnail of the examiner).” Id. at II.A.2.b.

         The 2010 ACR Criteria requires that the claimant demonstrate (1) a history of widespread pain; (2) repeated manifestations of six or more fibromyalgia symptoms, signs, or co-concurring conditions; and (3) evidence that other disorders that could cause the symptoms, signs, or co-concurring conditions were excluded. SSR 12-2p § II.B. Symptoms and signs of fibromyalgia include muscle pain, fatigue or tiredness, muscle weakness, headache, numbness or tingling, dizziness, insomnia, depression, nausea, chest pain, shortness of breath, and hair loss. See SSR 12-2p § II.B n. 9 (citing 20 C.F.R. 404.1528(b) and 416.928(b) and Table No. 4, “Fibromyalgia diagnostic criteria, ” 2010 ACR Preliminary Diagnostic Criteria). Some co-occurring conditions include depression, chronic fatigue syndrome, gastroesophageal reflux disorder, and migraines. SSR 12-2p § II.B n. 10.

         If an ALJ finds insufficient evidence to determine whether a claimant has a MDI of fibromyalgia, he “may recontact the person's treating or other source(s) to see if the information [the ALJ] need[s] is available” or order a consultative examination to determine if the claimant has a MDI of fibromyalgia when he needs that information to adjudicate the claim. SSR 12-2p III.C.1 & 2.

         V. FACTS

         The claimant was forty-three years old at the time of the ALJ's final decision. The claimant has an 8th grade education and past relevant work as a cashier, housekeeper, and dry cleaning presser. (R. 235-36). The claimant alleged disability beginning on March 15, 2011 because of migraines, arthritis in her neck and back, fibromyalgia, blindness in her left eye, and vascular problems. (R. 23, 234).

         Physical Limitations

         In March 2010, the claimant complained of arm and leg pain and fatigue to doctors at Baptist Shelby Emergency Department. On March 9, 2010, the claimant saw Dr. David Cox at Cardiovascular Associates for “unpredictable episodes of chest pain, ” “whole body tingling, ” and fatigue. Dr. Cox indicated at the March 23, 2010 follow-up that the claimant's stress test and echocardiogram were normal and that her chest pains were “noncardiac.” At that follow-up, the claimant reported chest pains the Friday before; continued fatigue; and dizziness. (R. 316, 346-49).

         The claimant sought treatment on June 30, 2010 with Dr. Kirschberg at Southern Neurology for a “very severe group of headaches that started in the last four or five months.” Dr. Kirschberg noted that the claimant has no medical insurance; she went to Shelby Baptist Emergency Department in May 2010 for one of her severe headaches, but a CT scan of the brain and spinal tap were normal; and the doctor at Shelby Baptist prescribed the claimant Fiorcit and Compazine, but she continued to have three or four severe headaches a week. The claimant reported that her hands and tongue go numb during a migraine; she cannot tolerate the Fioicit; and she uses the Compazine that helps relieve her nausea. Dr. Kirschberg noted that his physical examine revealed blindness in the claimant's left eye, which she had for fifteen years as the result of an accident, but all of her other systems appeared normal. He prescribed Anaprox for her migraines; ordered a head angiogram; and asked the claimant to follow-up the next month. (R. 339-40).

         At her follow-up on July 15, 2010, the claimant reported to Dr. Kirschberg that her “headaches are no better on Anaprox” and that it causes swelling. Dr. Kirschberg “put her on a little Elavil today”; told her to take Mobic; and asked her to follow up by phone in two to four weeks. (R. 335).

         By November 19, 2010, the claimant reported to Dr. Kirschberg that she could not tolerate the Elavil and that the Mobic was not helping. Dr. Kirschberg gave the claimant three-week's worth of samples of Savella, “the newest of the SNRIs for chronic pain”; continued the claimant on the Mobic; and asked her to follow-up by phone in the next couple weeks. (R. 334). The record contains no additional medical records from Dr. Kirschberg after November 2010.

         The claimant presented to Dr. Jonathan C. Merkle at Montevallo Family Medicine on March 10, 2011, complaining of fatigue and sinus issues. Dr. Merkle noted “Fibromyalgia/Fatigue” under his “Assessment/Plan.” (R. 359).

         On March 28, 2011, the claimant returned to Dr. Cox at Cardiovascular Associates, again complaining of worsening chest pains, fatigue, dizziness, and leg pain. The claimant also wanted to discuss taking Chantix to stop smoking. Dr. Cox noted that “[o]verall, she's doing well, but questions in a general way why she's so tired all the time. I don't have an explanation for this from a cardiac standpoint.” Between June 9, 2011 and September 22, 2011, the claimant sought treatment at the Community of Hope Health Clinic on four occasions. During those visits, the claimant reported chronic pain “all over” her joints, especially her left leg and hip; fatigue; dizziness; no energy; hair loss for the previous six to seven months; muscle weakness; poor sleep; and shortness of breath. Her range of motion in her neck and shoulders were normal during these visits. On June 16, 2011, the doctor at Hope Health Clinic indicated the difficulty with diagnosing her chronic pain, and listed “fibromyalgia?” as a possible cause. (R. 390-93, 397, 407).

         The claimant returned to the Hope Health Clinic on March 12, 2012, complaining of heartburn and neck and head pain on her left side. The claimant reported that she has three to four headaches a week; has suffered severe headaches for ten years; experiences tingling in her legs during the headaches; and gets “some” relief with Tylenol. The doctor ordered a CT scan of her cervical spine that produced normal results. She also reported heartburn; the doctor assessed gastroesophageal reflux disease (GERD) and prescribed Omeprazole. At her follow-up on March 19, 2012, she had limited range of motion in her neck and left shoulder and tenderness, and the doctor prescribed cyclobenzaprine as a muscle relaxer. (R. 387-88, 375, 404).

         At a follow-up at Hope Health Clinic on April 9, 2012, Dr. William Dunham treated the claimant, who complained of neck pain on her right side and lack of muscle function and coordination on her right and left sides. Dr. Dunham's physical examination of the claimant revealed a positive Spurling's Test possibly because of a herniated disc in the cervical spine. An MRI performed on April 16, 2012 revealed minimal right posterolateral disc protrusion and uncovertebral joint hypertrophy at ¶ 6-C7, but no stenosis or nerve root encroachment. At the ...


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