PATRICIA D. BARKSDALE, Magistrate Judge.
This is a case under 42 U.S.C. § 405(g) to review a final decision of the Commissioner of Social Security denying Tara Drury's claim for disability insurance benefits. Drury contends the Administrative Law Judge ("ALJ") erred by failing to apply the correct legal standards in evaluating medical opinions and in rejecting Drury's fibromyalgia diagnosis. Doc. 15. The Commissioner disagrees. Doc. 20.
The Social Security Administration ("SSA") uses an administrative review process a claimant ordinarily must follow to receive benefits or judicial review of a denial of benefits. Bowen v. City of New York, 476 U.S. 467, 471-72 (1986). A state agency acting under the Commissioner's authority makes an initial determination. 20 C.F.R. §§ 404.900-404.906. If dissatisfied with that determination, the claimant may ask for reconsideration. 20 C.F.R. §§ 404.907-404.918. If dissatisfied with the reconsideration determination, the claimant may ask for a hearing before an ALJ. 20 C.F.R. §§ 404.929-404.943. If dissatisfied with the ALJ's decision, the claimant may ask for review by the Appeals Council. 20 C.F.R. §§ 404.967-404.982. If the Appeals Council denies review, the claimant may file an action in federal district court seeking review of the ALJ's decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981.
To obtain benefits, a claimant must demonstrate she is disabled. 20 C.F.R. § 404.1512(a). A claimant is disabled if she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A).
To decide whether a person is disabled, the SSA uses a five-step sequential process, asking whether (1) she is engaged in "substantial gainful activity,"
Drury was born in 1969. Tr. 177. She has a college degree, Tr. 41, and has worked as a child caregiver, food-service worker, office manager, compliance officer, and customer-service representative, Tr. 276. Her brief details her medical history. Doc. 15 at 2-12.
Insured to June 30, 2018, Tr. 12, 200, Drury applied for benefits on April 11, 2014, alleging she had become disabled on January 17, 2013, from fibromyalgia, arthritis, cervicalgia, chronic pain, syncope and collapse, migraines, pancytopenia, and sleep apnea, Tr. 177, 214. She worked part-time as an Uber driver after the date she alleged her disability had started. Tr. 12, 63-64.
A non-examining state agency consultant, Edmund Molis, M.D., opined on September 16, 2014, Drury can perform "light work"
Drury proceeded through the administrative process, failing at each level. This case followed. Doc. 1.
The ALJ conducted a hearing on December 13, 2016, Tr. 37-79, and issued a decision on March 9, 2017, Tr. 10-23.
At step one, the ALJ found Drury had engaged in no substantial gainful activity from January 17, 2013 (the alleged onset date), to March 9, 2017 (the decision date). Tr. 12.
At step two, the ALJ found Drury "has the following severe impairments: a history of coronary artery disease with stent placement; a history of inflammatory polyarthropathy; a history of secondary adrenal insufficiency; a history of obesity; a history of extrinsic asthma and allergic rhinitis; a history of hypertension[;] and a history of obstructive sleep apnea." Tr. 12.
The ALJ found the record did not support a finding that Drury has fibromyalgia. Tr. 12. He explained:
Tr. 12-13.
At step three, the ALJ found Drury's impairments, individually or in combination, do not meet or medically equal the severity of any impairment in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, App'x 1. Tr. 13. He explained:
Tr. 13.
After stating he had considered the entire record, the ALJ found that Drury has the RFC "to perform less than the full range of light work":
Tr. 13.
The ALJ summarized Drury's testimony at the hearing:
Tr. 14.
The ALJ summarized Drury's testimony about her daily activities:
Tr. 15.
The ALJ observed Drury's Uber tax summary shows she drove 66 trip miles in April 2016, 408 trip miles in May 2016, 450 trip miles in June 2016, 580 trip miles in July 2016, 956 trip miles in August 2016, 393 trip miles in September 2016, and 456 trip miles in October 2016. Tr. 15.
The ALJ noted Drury's husband provided a statement indicating he helps Drury with household cleaning, cooking, driving, dressing, and remembering. Tr. 15. The ALJ noted Drury's husband indicated Drury's main complaints are "pain, headaches and fatigue." Tr. 15. The ALJ noted Drury's husband indicated "on good days, [Drury can] drive to the store for light shopping," Drury has "two to three bad days a week, during which she [sleeps]," and Drury cannot live alone because she would be unable "to facilitate arrangements to the hospital." Tr. 15.
The ALJ found Drury's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record" and that they affected Drury's "ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence." Tr. 15.
The ALJ summarized the medical evidence, including records from treating physician Sanjiv Kapil, M.D., Tr. 15-18; treating physician Hina Azmat, M.D., Tr. 16-18; Allergy and Asthma Consultants of Central Florida, Tr. 16; CORA Rehabilitation, Tr. 18; Central Florida Heart Associates, Tr. 18-19; Central Florida Pulmonary Consultants, Tr. 18-19; University of Michigan Endocrinology Clinic, Tr. 19; and independent medical examiner James Shea, M.D., Tr. 19-20.
After summarizing the medical evidence, the ALJ found:
Tr. 20 (some paragraph spacing added).
On the medical opinions, the ALJ found:
Tr. 21 (some paragraph spacing added).
At step four, the ALJ found Drury can perform no past relevant work, which the ALJ identified as account information clerk, child monitor, administrative clerk, cook, and account clerk. Tr. 21.
At step five, the ALJ considered Drury's age, education, work experience, and RFC and found there are jobs in significant numbers in the national economy she can perform. Tr. 22. The ALJ identified addresser, surveillance system monitor, and table worker. Tr. 22-23.
The ALJ thus found Drury not disabled from January 17, 2013, to March 9, 2017. Tr. 23.
A court reviews the Commissioner's factual findings for substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "less than a preponderance"; it is "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). The court may not decide facts anew, reweigh evidence, make credibility determinations, or substitute its judgment for the Commissioner's judgment. Id. If substantial evidence supports an ALJ's decision, a court must affirm, even if other evidence preponderates against the factual findings. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
"This restrictive standard of review applies only to findings of fact," and "no similar presumption of validity attaches to the [Commissioner's] conclusions of law, including determination of the proper standard to be applied in reviewing claims." Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991) (quoted authority omitted). "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
Drury first argues the ALJ failed to apply the correct legal standards to medical opinions. Doc. 15 at 14-22.
Regardless of its source, the SSA "will evaluate every medical opinion" it receives. 20 C.F.R. § 404.1527(c) (2012). "Medical opinions are statements from acceptable medical sources
The SSA generally will give more weight to the medical opinions of "treating sources" because they "are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations."
An ALJ need not give more weight to a treating source's opinion if there is good cause to do otherwise and substantial evidence supports the good cause. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). Good cause exists if the evidence does not bolster the opinion, the evidence supports a contrary finding, or the opinion is conclusory or inconsistent with the treating source's own medical records. Id. at 1240-41. "The law is clear that, although the opinion of an examining physician is generally entitled to more weight than the opinion of a non-examining physician, the ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion." Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985).
An ALJ "must state with particularity the weight given to different medical opinions and the reasons therefor." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). An ALJ's failure to do so is reversible error unless harmless. Caldwell v. Barnhart, 261 F. App'x 188, 190 (11th Cir. 2008) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.1983)). Failure to state the weight given to an opinion is harmless if the opinion is consistent with the decision and the decision is in-depth, shows thoughtful consideration of the findings, and does not leave the court wondering how the ALJ reached his decision. Colon v. Colvin, 660 F. App'x 867, 870 (11th Cir. 2016); see also East v. Barnhart, 197 F. App'x 899, 901 n.3 (11th Cir. 2006) (any error in failing to explicitly address consulting psychologist's report was harmless because observations in report were consistent with ALJ's determination).
An ALJ's finding may be implicit if the "implication [is] obvious." Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983).
For her argument the ALJ failed to apply the correct legal standards to medical opinions, Drury first points to opinions in the evaluation from Cora Rehabilitation Clinic and Dr. Azmat's concurrence with the evaluation. Doc. 15 at 14-17. The evaluation was done in October 2014 by Jaime Sigurdsson, a certified ergonomic assessment specialist. Tr. 699-725. Dr. Azmat was Drury's primary care physician, with treatment records beginning in October 2012. Tr. 443-517, 538-42, 727-93, 1042-46.
Sigurdsson's evaluation included tests and resulted in findings in these main categories: "Lifting Ability Summary," "Functional Restrictions & Limitations," "Recommendations & Accommodations," "Patient Demographics," "Employment Information," "Diagnosis, History & Mechanism of Injury," "Sincerity of Effort," "Job Demand Analysis," "Material Handling," "Non-Material Handling," "Sit/Stand Tolerance," "Cardiovascular Status," "Single Stage Treadmill Test," "Musculoskeletal Assessment," and "Disability Questionnaire."
Under "Lifting Ability Summary," Sigurdsson opined Drury can perform light work. Tr. 699. Under "Functional Restrictions & Limitations," Sigurdsson listed: "Limited cervical rotation to occasional; driving < 2 hours/day," "Walking, balancing, kneeling, crawling, bending, squatting, climbing, and reaching limited to occasional," "Standing and sitting limited to frequent," and "No lifting/carrying > 15 lbs." Tr. 699. Under "Recommendations & Accommodations," Sigurdsson opined Drury would need accommodations: "1) Be able to change positions at will (cannot tolerate sitting and or standing > 15-20 min intervals[)]. 2) Walk for up to 5 min every 20 min. 3) Be able to have flexible work days as pain and fatigue may interfere with work duties and therefore client would work better with a job that can accom[m]odate work flexibility from 4-8 hours/day." Tr. 699. In treatment notes dated February 5, 2015, Dr. Azmat states, "I have looked at the physical therapy evaluation . . . and concur with their evaluation." Tr. 729.
In giving "some weight" to the opinions of Dr. Molis (the state agency medical consultant), the ALJ explained the opinions were generally consistent with Dr. Azmat's and Dr. Kapil's "benign examination findings" and Drury's daily activities, but, in view of Sigurdsson's evaluation, greater limitations were necessary (lifting 15 pounds only occasionally and having the opportunity to change position at will every 15 to 30 minutes).
Drury focuses on that reason and the ALJ's failure to explicitly state the weight given to Dr. Azmat's concurrence with the evaluation. Doc. 15 at 14-17. Drury contends the ALJ's "one single reason" for rejecting the two suggested accommodations from Sigurdsson's evaluation is "vague and insufficient" because "many examinations supported the limitations in the evaluation." Doc. 15 at 17.
Drury shows no reversible error. The ALJ explicitly stated the weight given to Sigurdsson's evaluation ("partial weight," Tr. 21) and the reason for rejecting some of the evaluation (two suggested accommodations "are not supported by any examination finding," Tr. 21), and thereby implicitly stated and explained the weight given to Dr. Azmat's concurrence with the evaluation. See Winschel, 631 F.3d at 1179; Tieniber, 720 F.2d at 1255. The ALJ's reason—the absence of an examination finding to support the two suggested accommodations—constitutes good cause. See Phillips, 357 F.3d at 1240.
Substantial evidence ("such relevant evidence as a reasonable person would accept as adequate to support a conclusion") supports the ALJ's reason. See Moore, 405 F.3d at 1211 (quoted). Neither the evaluation nor medical records discuss examinations for a need to walk up to 5 minutes every 20 minutes or work a flexible 4-to-8-hour workday.
For her argument the ALJ failed to apply the correct legal standards to medical opinions, Drury next points to medical records of Dr. Kapil. Doc. 15 at 17-19. Dr. Kapil was Drury's treating rheumatologist beginning in October 2012 based on a referral from Dr. Azmat to determine if she had a rheumatologic condition. Tr. 48, 395-442, 518-31, 551-62, 726.
At Drury's first visit on October 31, 2012, Dr. Kapil summarized Drury's complaints, background, and history, and found normal conditions except a mild skin rash; positive tender points; and tenderness at her neck, shoulders, lower back, right-hand proximal interphalangeal ("PIP") (finger) joints, left-hand metacarpophalangeal ("MCP") joints (second and third fingers), knees, and ankles. Tr. 438.
At Drury's next visit on December 5, 2012, Dr. Kapil found normal conditions, including no tenderness in Drury's trochanteric (hip) region, except tenderness at her neck, shoulders, lower back, elbows, wrists, "I" carpometacarpal ("CMC") (wrist) joints, PIP (finger) joints, MCP (finger) joints, distal interphalangeal ("DIP") (finger) joints, knees, ankles, and metatarsophalangeal ("MTP") (toe) joints. Tr. 433.
Dr. Kapil's records of examinations of Drury over the next two years included similar notes:
Nurse Practitioner Theresa Zimmer saw Drury at the same office where Dr. Kapil works on
A note from the February 17, 2015, examination with Dr. Kapil provides, "Patient was again recommended a second opinion at Shands, for fibromyalgia vs seronegative inflammatory arthritis as she does feel better with DMARDs and Medrol PRN." Tr. 555. The administrative record does not include records from Shands. See generally Tr. 280-1046. There are other mentions of Shands in the administrative record, indicating Drury saw an endocrinologist at Shands in June 2015 for Addision's disease; Drury later went to Shands for a rheumatology workup; Drury later sought another opinion from the University of Michigan, where she obtained diagnoses of adrenal adenoma, secondary adrenal insufficiency, and fatigue; and Drury had worsening pain when Shands stopped Cyclosporine and Methotrexate. Tr. 558, 561, 569, 577, 580, 582, 584, 691, 1033. Notes from the May 19, 2016, visit with Nurse Zimmer provide, "Patient was advised we believe she has a seronegative inflammatory arthritis" based on clinical findings and restarted Drury on Methotrexate. Tr. 582.
On October 16, 2014, Drury's lawyer sent the results of Sigurdsson's October 7, 2014, evaluation to Dr. Kapil to "review and indicate whether [she] agree[d] or disagree[d] with the results and limitations of Ms. Drury." Tr. 726. Dr. Kapil responded, "I am not trained to assess disability. I will defer to IME [independent medical evaluation] for evaluation." Tr. 726. The evaluation ultimately was done by Dr. Shea in December 2016, more than two years after Sigurdsson's evaluation. Tr. 1032-41.
Drury correctly observes the ALJ did not explicitly state any weight given to "Dr. Kapil's opinion." Doc. 15 at 19. Drury appears to reference Dr. Kapil's statement he defers to the independent medical evaluation because he is not trained to assess disability. Doc. 15 at 19.
Drury shows no reversible error. Dr. Kapil's statement is not a medical opinion because it was given before the independent medical evaluation and, as a deferral to a yet-to-be-completed evaluation, does not "reflect judgments about the nature and severity of . . . impairment(s), including . . . symptoms, diagnosis and prognosis, what [one] can still do despite impairment(s), and . . . physical or mental restrictions." See 20 C.F.R. § 404.1527(a)(2) (2012) (quoted). To the extent Drury references general examination findings by Dr. Kapil, the ALJ implicitly accepted them by describing them as "benign," Tr. 21, finding them generally consistent with Dr. Molis's opinions, and including limitations in the RFC greater than those assessed by Dr. Molis. Compare Tr. 13 with Tr. 98-99. To the extent there was error, Drury has not shown how it was harmful.
Finally, for her argument the ALJ failed to apply the correct legal standards to medical opinions, Drury points to medical opinions of Dr. Shea in the independent medical examination. Doc. 15 at 17-22.
In the independent medical examination, Dr. Shea summarized Drury's complaints, background, and history (including the results of Sigurdsson's evaluation). Tr. 1032-35. He noted complaints of ongoing headaches (which made her "unable to perform any cognitive functional activities" and caused "8 days a month of absence from work on a nonpredictable basis"); twelve-year history of neck pain; "serious and disabling" polyinflammatory arthritis (in her elbows, wrists, fingers, hips, and ankles, but not her knees), which had led to Cushing's Syndrome "as a side effect of the chronic steroids previously prescribed to control her arthritis"; "fairly well controlled" asthma; and sleep apnea. Tr. 1034. He also noted a reported medical history of fibromyalgia and other ailments. Tr. 1034.
Through a physical examination, Dr. Shea found Drury had a degraded range of motion in her neck, with "[m]arked tenderness to palpation over the right rhomboids. Moderate tenderness to palpation over the cervical paraspinals, trapezius muscles and left rhomboids. Non-tender to palpation over the greater occipital nerves, supraspinous ligament, and spinous processes." Tr. 1036. For her upper extremities, Dr. Shea found "active synovial thickening over the dorsal MCP joints of both hands. Motor exam revealed generalized weakness of both upper extremities, mostly 4/5 to 4-/5. There was no inappropriate give[]way weakness. The only give way weakness was with right elbow flexion and it was related to right wrist pain which clinically fits her inflamed joint disease picture." Tr. 1036. For her back, Dr. Shea found "[c]omplete straightening of the cervical lordosis" and an across-the-board degraded lumbar range of motion. Tr. 1036. For her lower extremities, Dr. Shea found "[m]oderately severe bilateral trochanteric bursae tenderness" and "[m]ild to at most moderate iliotibial band tenderness." Tr. 1036.
Dr. Shea diagnosed Drury with migraine headaches, inflammatory polyarthropathy involving multiple joints, bilateral trochanteric bursitis, fibromyalgia, sleep apnea, sleep deprivation secondary to sleep apnea, and chronic pain. Tr. 1037. Dr. Shea opined:
Tr. 1037.
In a medical statement for Drury's disability claim, Dr. Shea noted inflammation in Drury's hands, wrists, ankles, feet, and spine. Tr. 1038. Dr. Shea noted Drury had significant fatigue and malaise; a periodic need for help in daily living; and moderate limitations in social functioning and completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. Tr. 1039. Dr. Shea opined Drury occasionally could bend and stoop, raise her arms over shoulder level, and manipulate her hands (both gross and fine manipulation). Tr. 1040. Dr. Shea opined Drury could not lift on a frequent basis but could lift five pounds occasionally. Tr. 1040. Dr. Shea opined Drury could stand for fifteen minutes at one time. Tr. 1040. Dr. Shea's note on her ability to sit is partly illegible: "Much less than the 15 min for standing [illegible] about 2-3 minutes due to lateral hip pain and bilateral ankle/foot pain." Tr. 1040. Dr. Shea did not state how many hours Drury could work each day. Tr. 1040. In a "comments" section, Dr. Shea stated:
Tr. 1040.
In giving "little weight" to Dr. Shea's opinions, the ALJ explained they were "internally inconsistent," inconsistent "with the examination findings of Dr. Kapil," and inconsistent with Drury's "daily activities or [her] good response to her prescribed therapy." Tr. 21.
Drury shows no reversible error. Substantial evidence supports that, despite the assessments of Dr. Shea, Tr. 1037-40: (1) Drury's "symptoms are fairly well managed on her prescribed therapy," Tr. 399 ("arthritis . . . feels controlled with her medications"), 401 ("less stiffness in neck with addition of Cyclosporine"), 599 ("less pains with restarting Methotrexate"); (2) she has few "complaints of or treatment for migraine headaches, outside of some prescription medication from Dr. Kapil," Tr. 400, 405, 410, 414, 419, 424, 429, 434, 439, 599-600; (3) "the functional capacity evaluation noted that she could perform a reduced range of light work," Tr. 699; and (4) examinations "with her primary care provider have shown no limitation of motion or joint swelling," and "examinations with Dr. Kapil have shown only some tenderness. Nothing in the record suggests that she could not function within the ordinary and customary breaks afforded by most employers," Tr. 443-517, 538-42, 727-93, 1042-46 (Dr. Azmat's examinations); Tr. 48, 395-442, 518-31, 551-62, 726 (Dr. Kapil's examinations).
Substantial evidence also supports that Drury's daily activities "are consistent with the ability to work within the assessed" RFC despite Dr. Shea's opinion to the contrary because she: (1) "works as an Uber driver," Tr. 63-64, 193-99; (2) has been "able to travel to Alabama and Michigan (more than once) and was able to visit Universal and stand in line," Tr. 523, 610; (3) is "able to grocery shop alone for short trips and perform housework in intervals," Tr. 61, 65, 1034; and (4) was "walking for exercise," Tr. 645, 649, 655, 660.
Drury argues the ALJ mischaracterized her daily activities, explaining her work as an Uber driver is part-time, her travel was brief and for medical treatment, her grocery shopping does not take long, she has trouble doing housework and has to frequently rest, and her walking is brief (and resulted in an injury). Doc. 15 at 21. Although the ALJ could have viewed the activities differently and in Drury's favor, the Court may not reweigh evidence or substitute its judgment for the ALJ's judgment. See Moore, 405 F.3d at 1211. It suffices that, when viewed together, the activities constitute substantial evidence to support the finding they are consistent with the ability to work within the RFC. See id.
To the extent the ALJ failed to explain how Dr. Shea's evaluation was "internally inconsistent," any error is harmless. Because of the other evidence supporting the ALJ's reasons for giving "little weight" to the evaluation, Drury has not shown that failing to explain internal inconsistencies would have led the ALJ to contradict his "ultimate findings" about the evaluation. See Caldwell, 261 F. App'x at 190 (quoted).
With no showing the ALJ failed to correctly apply the law or follow the procedures, and with substantial evidence to support the underlying factual findings, remand to reconsider the medical opinions is unwarranted. This conclusion does not change "even if other evidence preponderates against the factual findings." See Martin, 894 F.2d at 1529 (11th Cir. 1990) (quoted).
Drury next argues the ALJ erred by failing to apply the correct legal standards in rejecting her fibromyalgia impairment and resulting limitations. Doc. 15 at 22-25.
At step two of the sequential evaluation process, an ALJ considers whether a claimant has a severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii) (2012). A "severe" impairment significantly limits a claimant's ability to do basic work activities. See 20 C.F.R. § 404.1521(a) (2012) (defining "non-severe impairment").
"Step two is a threshold inquiry." McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). It is "a reasonable administrative convenience designed to screen out groundless claims." Stratton v. Bowen, 827 F.2d 1447, 1452 (11th Cir. 1987). It "acts as a filter" to eliminate claims involving no substantial impairment. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987).
A finding of any severe impairment satisfies step two. Id. Thus, an ALJ need not identify every severe impairment at step two. Tuggerson-Brown v. Comm'r of Soc. Sec., 572 F. App'x 949, 951 (11th Cir. 2014); Delia v. Comm'r of Soc. Sec., 433 F. App'x 885, 887 (11th Cir. 2011). Still, he must demonstrate he considered the claimant's impairments—severe and non-severe—in combination at step three and in assessing the RFC. Heatly v. Comm'r of Soc. Sec., 382 F. App'x 823, 825 (11th Cir. 2010).
Social Security Ruling ("SSR") 12-2p (2012) addresses fibromyalgia. The SSA may find a person has fibromyalgia if medical evidence from an acceptable medical source shows a diagnosis that "is not inconsistent with the other evidence in the person's case record" and the evidence meets at least one of "two sets of criteria for diagnosing [it]." SSR 12-2p, 2012 WL 3104869, at *2.
The first set of criteria, based on the 1990 American College of Rheumatology ("ACR") Criteria for the Classification of Fibromyalgia, requires:
SSR 12-2p, 2012 WL 3104869, at *2-3 (Section II.A).
The second set of criteria, based on the 2010 ACR Preliminary Diagnostic Criteria, requires:
SSR 12-2p, 2012 WL 3104869, at *3. The SSA emphasizes, "we need objective medical evidence to establish the presence of" fibromyalgia. Id.
The Eleventh Circuit recognizes that, "[g]iven the nature of fibromyalgia, 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." Somogy v. Comm'r of Soc. Sec., 366 F. App'x 56, 64 (11th Cir. 2010) (citing Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam)). Fibromyalgia "often lacks medical or laboratory signs," "is generally diagnosed mostly on an individual's described symptoms," and its "hallmark" is "a lack of objective evidence." Id. "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." Id.
For her argument the ALJ erred by failing to apply the correct legal standards in rejecting her fibromyalgia impairment and resulting limitations, Drury correctly observes the ALJ failed to consider both sets of criteria under SSR 12-2p, instead focusing only on the 1990 ACR criteria. Doc. 15 at 23; see Tr. 12-13.
On the first criterion ("history of widespread pain"), the ALJ found a lack of evidence
The third criterion is substantially the same in both sets of criteria under SSR 12-2p. Compare SSR 12-2p, 2012 WL 3104869, at *2-3 ("Evidence that other disorders that could cause the symptoms or signs were excluded.") with id. at *3 ("Evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded.").
Drury contends she satisfied the third criterion because she "underwent laboratory testing, imaging studies, and tried various medications before being diagnosed." Doc. 15 at 24. She observes her fibromyalgia diagnosis came with Dr. Shea's diagnosis of inflammatory polyarthropathy (Tr. 1037), the Central Florida Heart Associate's diagnoses of myalgia, myositis, and musculoskeletal/connective tissue disease (Tr. 545-49, 587-91), and Nurse Zimmer's diagnosis of inflammatory polyarthropathy (Tr. 577, 598-99). Doc. 15 at 24. The Commissioner responds Drury fails to present "the types of testing necessary to rule out other disorders" under SSR 12-2p, such as "imaging, . . . complete blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor." Doc. 20 at 13.
Substantial evidence, as explained by the Commissioner, Doc. 20 at 13, supports the ALJ's finding there was no evidence that other disorders that could cause the alleged symptoms were excluded. No medical records discuss taking any specific actions, such as conducting the tests described by the Commissioner, to determine if disorders other than fibromyalgia were excluded as causing her symptoms (or signs). Dr. Kapil's statement, "Patient was again recommended a second opinion at Shands, for fibromyalgia vs seronegative inflammatory arthritis as she does feel better with DMARDs and Medrol PRN," Tr. 555, the absence of Shands records, and Nurse Zimmer's statement following Shands visits, "Patient was advised we believe she has a seronegative inflammatory arthritis" based on clinical findings, Tr. 582, appear to indicate other disorders that could cause the alleged symptoms were not excluded. Without more, that other diagnoses accompanied the fibromyalgia diagnosis does not necessarily mean those disorders were excluded as the cause of the alleged symptoms. Because substantial evidence supports the ALJ's finding on the third criterion, and it is substantially the same in both sets of criteria, any error in failing to address both sets of criteria is harmless.
But even assuming error in failing to explicitly consider both sets of criteria, the error is harmless because the ALJ found other severe impairments at step two of the sequential evaluation process, Tr. 12, moved on to other steps, Tr. 13-23, and throughout considered "all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence," Tr. 13. See Heatly, 382 F. App'x at 825. In rejecting Drury's contention that pain made her unable to work or required limitations greater than those in the RFC, the ALJ focused on Drury's symptom management through medication and therapy, ability to be an Uber driver and perform activities of daily living (including traveling, shopping, and walking for exercise), and generally "benign" medical records of her treating physicians, which constituted substantial evidence for the decision. See generally Tr. 20-21.
Again, with no showing the ALJ failed to correctly apply the law or follow the procedures, and with substantial evidence to support the underlying factual findings, remand to reconsider whether Drury has fibromyalgia is unwarranted. This conclusion does not change "even if other evidence preponderates against the factual findings." See Martin, 894 F.2d at 1529 (11th Cir. 1990) (quoted).
The undersigned recommends:
