United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OF DECISION
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
Tina Marie Hodges (“Plaintiff” or
“Hodges”) brings this action pursuant to Sections
205(g) of the Social Security Act (“the Act”),
seeking review of the decision of the Commissioner of Social
Security (“Commissioner”) denying her claim for
disability insurance benefits (“DIB”).
See 42 U.S.C. §§ 405(g). Upon review of
the record and briefs submitted by the parties, the court
finds that the Commissioner's decision is due to be
August 14, 2014, Plaintiff protectively filed a Title II
application for disability insurance benefits alleging
disability beginning March 19, 2013. (R. at 53, 169, 249). The
claim was denied on November 3, 2014. (R. at 53, 175-79). On
November 13, 2014, Plaintiff filed a written request for a
hearing in front of an Administrative Law Judge
(“ALJ”). (R. at 53, 184-85, 188-90). ALJ Walter
Lassiter, Jr. conducted the requested hearing on February 19,
2016. (R. at 53, 75-115, 211, 218, 239). In his decision
dated July 28, 2016, the ALJ determined that Plaintiff was
not disabled under sections 216(i) and 223(d) of the Act. (R.
at 53, 70). The Appeals Council denied Plaintiff's
request for review on February 21, 2017. (R. at 1-6, 44).
This denial made the ALJ's decision the final decision of
the Commissioner and a proper subject for this court's
Tina Marie Hodges, born on August 17, 1965, was 51 years old
at the time of the hearing. (R. 82, 249, 362). She completed
high school and held positions with Liberty National
Insurance Company, What-A-Burger, Willy-T's, and Taco
Bell in capacities ranging from “callback
operator” with Liberty National to cashier and
managerial roles with the various fast food restaurants. (R.
at 57, 82-89, 268, 283). She left her position with Liberty
National in 2005 due to a traumatic injury arising out of
domestic violence. (R. at 57, 85, 283). Later, Plaintiff
worked for Willy T's, a fast food chicken restaurant, as
a cashier for about a year. (R. at 86). Plaintiff then worked
as a cashier at What-A-Burger, moving into a management
position. (R. at 57, 86). Plaintiff lost her job with
What-A-Burger due to her inability to maintain the night
shift. (R. at 87-88). Plaintiff then worked at Taco Bell,
again attaining a management position. (R. 57, 88-89).
However, Plaintiff missed excessive amounts of time at Taco
Bell and was subsequently fired. (R. at 57, 89). She cited
depression as the reason for consistently missing work.
has not worked since March 2011 and claims she has suffered
from suicidal thoughts, memory problems, concentration
problems, and depression. (R. at 57, 90-93, 249). She has
indicated she “mentally cannot be productive.”
(Id.). In the case before this court, Plaintiff
alleges onset of disability on March 19, 2013 due to the
medically determinable impairments of “obesity; distant
history of head trauma; history of fibromyalgia;
hypertension; bipolar disorder, not otherwise specified with
non-compliance; generalized anxiety disorder with
non-compliance; and possible personality
disorder.” (R. at 53, 55, 262).
the period of her alleged disability, Plaintiff was treated
and/or assessed by numerous physicians, two counselors, and
multiple nurse practitioners. (R. at 57-65, 336-689). She
received various diagnoses, including: obesity, fibromyalgia,
hypertension, pedal edema, pitting edema, bipolar disorder,
generalized anxiety disorder, major depressive disorder,
panic disorder, post-traumatic stress disorder
(“PTSD”), pineal cyst, and borderline personality
disorder. (R. at 58, 342, 368, 380-82, 385, 408, 412, 425,
441, 537, 540). Although Plaintiff consistently presented
with symptoms of musculoskeletal pain, tremor, anxiety, and
fatigue, it was frequently noted that she had normal range of
motion in all four extremities, no constitutional or
musculoskeletal issues besides pain and stiffness, no joint
involvement, and was otherwise physically
normal. (R. at 340, 345-48, 350, 368-74, 380-85,
405, 435, 465, 470, 546, 556, 559, 563, 569, 573, 576). It
was also noted that Plaintiff's tremor and gait
disturbances resulted either from her pineal gland cyst or
were “related to the extrapyramidal effects of Haldol,
” a drug Plaintiff was prescribed until treating
physicians discontinued it. (R. at 390-94, 397).
treating physicians performed extensive diagnostic testing
including several CT scans, MRIs, and a Transthoracic
Echocardiogram. (R. at 377, 397-99, 402, 423, 440, 441, 472,
485). The results of these tests were negative/unremarkable
except for a small cystic lesion involving the pineal gland
that did not require surgery, trace mitral regurgitation and
mild tricuspid regurgitation in the heart, nonspecific
subcortical white matter hypoattenuation in the frontal lobes
of the brain, mild retrolisthesis of L2 and 3, mild
levoscoliosis of the lumbar spine, and multilevel
degenerative changes most significant at ¶ 4-5 and
activities of daily living up to and at the time of the ALJ
hearing included interacting with her husband, watching
television, and cooking. (R. at 94-97). Plaintiff testified
that she only occasionally leaves the house, must be reminded
to bathe, often stays in her pajamas all day, and is
reluctant to interact with people besides her husband.
(Id.) Plaintiff clothes, bathes, and cooks for
herself. (R. at 95-96).
the hearing, when given hypotheticals with factors and
limitations similar to those indicated by Plaintiff's
residual functional capacity (“RFC”), the
Vocational Expert (“VE”) testified that someone
similarly situated to Plaintiff would be able to perform her
past work. (R. at 110-12). The VE further noted that
Plaintiff could perform all past fast food work, but not
insurance clerk work, if “impairment, limitation,
medication, medication side effects and even allowance for
fatigue . . . collectively or individually would limit this
individual to simple, routine and repetitive work
activity.” (R. at 112). However, the VE also noted that
Plaintiff would likely lose all of her previous jobs if she
was unable to interact with and respond appropriately to the
public. (R. at 113).
under the Act is determined using a five-step test. 20 C.F.R.
§ 404.1520(a)(4). First, the ALJ must determine whether
a plaintiff is engaging in substantial gainful activity.
Id. § 404.1520(a)(4)(i). “Substantial
work activity” is work activity that involves doing
significant physical or mental activities. Id.
§ 404.1572(a). “Gainful work activity” is
work that is done for pay or profit. Id. §
404.1572(b). If the ALJ finds that a plaintiff engages in
substantial gainful activity, then the plaintiff cannot claim
disability. Id. § 404.1520(b). Second, the ALJ
must determine whether a plaintiff has a severe medically
determinable impairment (“MDI”) or a combination
of medically determinable impairments that significantly
limits the plaintiff's ability to perform basic work
activities. Id. § 404.1520(a)(4)(ii). Absent
such impairment, a plaintiff may not claim disability.
Id. Third, the ALJ must determine whether a
plaintiff's impairment meets or medically equals the
criteria of an impairment listed in 20 C.F.R. § 404,
Subpart P, Appendix 1. See Id. §§
404.1520(d), 404.1525, and 404.1526. If such criteria are
met, the plaintiff is declared disabled. Id. §
plaintiff does not fulfill the requirements necessary to be
declared disabled under the third step, the ALJ may still
find disability under the next two steps of the analysis. The
ALJ must first determine a plaintiff's residual
functional capacity (“RFC”), which refers to the
plaintiff's ability to work despite her impairments.
Id. § 404.1520(e). In the fourth step, the ALJ
determines whether a plaintiff has the RFC to perform past
relevant work. Id. § 404.1520(a)(4)(iv). If the
ALJ determines that a plaintiff is capable of performing past
relevant work, then the plaintiff is deemed not disabled.
Id. If the ALJ finds a plaintiff unable to perform
past relevant work, then the analysis proceeds to the fifth
and final step. Id. § 404.1520(a)(4)(v). In the
last part of the analysis, the ALJ must determine whether a
plaintiff is able to perform any other work commensurate with
her RFC, age, education, and work experience. Id.
§ 404.1520(g). Here, the burden of proof shifts from the
plaintiff to the ALJ to prove the existence, in significant
numbers, of jobs in the national economy that the plaintiff
can do given her RFC, age, education, and work experience.
Id. §§ 404.1520(g), 404.1560(c).
12-2p is a regulation designed to “provide guidance on
how [to] develop evidence to establish . . . a Medically
Determinable Impairment (“MDI”) for fibromyalgia
. . . and how [to] evaluate [fibromyalgia] in disability
claims.” 77 Fed. Reg. 43640 (July 25, 2012).
Fibromyalgia may be the basis for disability if established
by appropriate medical evidence from an accepted medical
source, including but not limited to “longitudinal
records reflecting ongoing medical evaluation and
treatment.” Id. at 43642. A diagnosis alone
cannot serve as the basis for establishing a MDI of
fibromyalgia. Id. at 43641. Rather, the evidence
must document physician-reviewed medical history and physical
exams to determine whether “consistent with the
diagnosis of fibromyalgia . . . symptoms have improved,
worsened, or remained stable over time, and establish the
physician's assessment over time of the person's
strength and functional abilities.” Id.
Specifically, a claimant must not only be diagnosed with
fibromyalgia, but also must meet the criteria outlined in
either the 1990 American College of Rheumatology Criteria for
the Classification of Fibromyalgia or the 2010 ACR Preliminary
Diagnostic Criteria. Id. The five-step test outlined
in 20 C.F.R. § 404.1520(a)(4) is not altered under SSR
12-2p. Id. at 43643. Fibromyalgia is not a listed
impairment. So, under step three, fibromyalgia must medically
equal a listed impairment either on its own or in combination
with one or more other MDIs. Id. If a claimant's
fibromyalgia or combination of that condition and another MDI
does not medically equal a listed impairment, an RFC
assessment will be required. Id. Due to the waxing
and waning of fibromyalgia symptoms, the claimant's
longitudinal medical and treatment record is considered.
Id. The usual vocational considerations are applied
with the inclusion of symptoms typically associated with
fibromyalgia: widespread pain, fatigue, and/or other
fibromyalgia symptoms resulting in exertional limitations,
nonexertional physical or mental limitations, and/or
nonexertional environmental limitations. Id. at
43644. Adjudicators must specifically consider the
possibility of these limitations, which may “erode
[the] occupational base . . . precluding the use of a rule in
appendix 2 to direct decision, ” requiring the use of
rules in appendix 2 as a framework and/or a vocational
two-step process governs the evaluation of a claimant's
statements regarding symptoms and functional limitations.
Id. 43643. First, medical signs and findings must
show that a plaintiff has “a MDI(s) which could
reasonably be expected to produce the pain or other symptoms
alleged.” Id. As fibromyalgia is a MDI, this
first step is satisfied by a diagnosis of fibromyalgia.
Id. Second, the intensity and persistence of a
claimant's symptoms and the extent to which those
symptoms may restrict ability to work must be evaluated.
Id. If a claimant's statements are not
substantiated by objective medical evidence, “all of
the evidence in the case record, including the person's
daily activities, medications or other treatments the person
uses, or has used, to alleviate symptoms; the nature and
frequency of the person's attempts to obtain medical
treatment for symptoms; and statements by other people about
the person's symptoms, ” is considered.
Id. SSR 96-7p is utilized to determine the credibility
of a claimant's statements about the effects of her
symptoms on functioning. Id. SSR 96-7p requires the
ALJ to make “every reasonable effort to obtain
available information that could help . . . assess the
credibility” of a plaintiff's statements.
the ALJ determined that Plaintiff had not engaged in
substantial gainful activity from the amended alleged onset
date of March 19, 2013 through June 30, 2015, the date last
insured. (R. at 55). The ALJ also determined that Plaintiff
had the following non-severe medically determinable
impairments: obesity; distant history of head trauma; history
of fibromyalgia; hypertension; bipolar disorder, not
otherwise specified with non-compliance; generalized anxiety
disorder with non-compliance; and possible ...