South Carolina Cases September 20, 2021: Kemo H. v. Kijakazi

Case Description

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REPORT AND RECOMMENDATION

Shiva V. Hodges, United States Magistrate Judge.

This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the

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undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.

I. Relevant Background

A. Procedural History

On July 25, 2018, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on October 1, 2017. Tr. at 104, 105, 178-81, 182-89. Her applications were denied initially and upon reconsideration. Tr. at 106-09, 113-18. On August 28, 2020, Plaintiff had a telephonic hearing before Administrative Law Judge (“ALJ”) Ronald Sweeda. Tr. at 27-43 (Hr'g Tr.). The ALJ issued an unfavorable decision on September 9, 2020, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 9-26. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on January 19, 2021. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 38 years old at the time of the hearing. Tr. at 31. She completed high school. Tr. at 32. Her past relevant work (“PRW”) was as a certified nursing assistant (“CNA”) and a call center representative. Tr. at

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39-40. She alleges she has been unable to work since July 20, 2018. Tr. at 32.

2. Medical History

Plaintiff complained of dull, aching joint pain and stiffness on September 13, 2017. Tr. at 331. She described constant symptoms with moderate and worsening pain. Id. She reported joint pain “all over [her] body” with the worst pain in her back on most days and her right arm over the prior few days. Id. Plaintiff weighed 216 pounds. Tr. at 332. Nurse practitioner Victoria R. Reynolds (“NP Reynolds”) noted full active range of motion (“ROM”) of all joints with no joint swelling, redness, or increased warmth, but indicated Plaintiff endorsed pain with movement of the right shoulder, elbow, and wrist. Id. She prescribed a six-day burst of Prednisone, Meloxicam 15 mg daily, and Tramadol HCl 50 mg every six hours as needed for pain. Id.

Plaintiff presented to rheumatologist Alan N. Brown, M.D. (“Dr. Brown”), for a consultation on October 3, 2017. Tr. at 287. She described low back pain that radiated to her shoulders and hips and arthralgias in her elbows, wrists, hands, knees, and feet. Id. She endorsed morning stiffness and denied joint swelling. Id. She complained of diffuse myalgias, fatigue,

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and poor and nonrestorative sleep. Id. Dr. Brown noted routine lab studies and serologies were normal, except for positive antinuclear antibody (“ANA”) test. Id. He observed Plaintiff to be obese and to have widespread soft tissue tender points above and below the waist, but indicated she had no active synovitis and full ROM in her joints. Tr. at 289. He suspected Plaintiff's symptoms were caused by fibromyalgia, but ordered further studies to determine whether her positive ANA was associated with a systemic inflammatory or connective tissue disease. Tr. at 290. He encouraged regular aerobic exercise and proper sleep hygiene. Id.

On October 11, 2017, Plaintiff endorsed widespread pain, generalized fatigue, joint stiffness, morning stiffness, and sleep disturbance. Tr. at 323. She rated her current pain as an eight on a 10-point scale and her average pain as a nine. Id. She described dull, aching, and burning pain in her neck, left low back, right low back, and right lower extremity (“RLE”)/hip area. Id. She endorsed poor symptom control, despite good compliance with treatment. Id. She weighed 232 pounds. Tr. at 324. NP Reynolds observed Plaintiff to have full active ROM of all joints, but to endorse pain with movement of her right shoulder, elbow, right thumb, and wrist and to have pain in her upper arms and thighs. Id. She noted Plaintiff had no joint swelling, redness, or increased warmth. Id. She assessed fibromyalgia, prescribed Cymbalta 60 mg

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and 400 units of vitamin D, and continued Tramadol HCl 50 mg every six hours, as needed. Tr. at 325.

On November 22, 2017, Plaintiff complained of arthralgias affecting her shoulders, wrists, hands, hips, ankles, feet, and back, with her bilateral hands and left wrist being the most symptomatic areas. Tr. at 281. She noted her symptoms were exacerbated after prolonged rest. Id. She had puffiness in her right thumb that mostly affected the first interphalangeal (“IP”) joint. Id. She denied pain relief with Tramadol and Cymbalta. Id. Rheumatologist Colin Edgerton, M.D. (“Dr. Edgerton”), noted recent x-rays had shown arthritis in Plaintiff's back. Id. He recorded normal findings on musculoskeletal exam, aside from tenderness to palpation (“TTP”) at the right wrist and right first IP joint. Tr. at 283. He noted musculoskeletal ultrasound imaging of several joints in Plaintiff's hands had shown synovial hypertrophy in the left second metacarpophalangeal (“MCP”) joint and mild synovial hypertrophy in the right second MCP joint. Tr. at 284. He stated an ultrasound of Plaintiff's right wrist was normal. Tr. at 285. Dr. Edgerton explained the imaging showed mild synovial hypertrophy bilaterally in the second MCP joints consistent with noninflammatory proliferative changes, given the absence of effusions and color power Doppler flow. Id. He encouraged Plaintiff to continue Tramadol and Cymbalta and reviewed nonpharmacologic analgesic strategies for hand and wrist pain. Id.

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Plaintiff continued to complain of neck, back, shoulder, and hand pain and endorsed no significant improvement on November 28, 2017. Tr. at 277. She rated her pain as an eight-and-a-half. Tr. at 278. Dr. Brown noted Plaintiff was obese, had full ROM throughout her joints, showed no active synovitis in any joint, and had widespread soft tissue tender points above and below the waist. Tr. at 279. He stated Plaintiff had fibromyalgia and no evidence of rheumatoid arthritis, an inflammatory arthritis, or connective tissue disease. Id. He indicated he would obtain an extractable nuclear antigen (“ENA”) panel for “completeness' sake and to finalize the workup.” Id. He noted Plaintiff had a rather profound vitamin D deficiency that likely played some role in her symptoms. Id. He recommended regular aerobic exercise and sleep hygiene, continued a course of Ergocalciferol, and continued Meloxicam. Id. He recommended several treatment options to NP Reynolds and returned Plaintiff to her care. Tr. at 279-80.

Plaintiff described pain in her neck, left shoulder girdle, left upper extremity, left lower extremity (“LLE”), right upper extremity, and RLE and rated it as an eight on December 15, 2017. Tr. at 315. NP Reynolds noted Plaintiff was obese and endorsed pain in muscles “all over” during a physical exam. Tr. at 316. She assessed fibromyalgia, increased Cymbalta to twice a day, and added Gabapentin 300 mg three times a day. Tr. at 317.

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On July 23, 2018, Plaintiff reported worsened mood due to physical issues resulting from fibromyalgia. Tr. at 306. She endorsed emotional lability, high irritability, depression, insomnia, decreased effectiveness/ productivity, and decreased energy. Id. She rated fibromyalgia-related joint and muscle pain as a six, but noted it often escalated to a 10. Id. She endorsed fatigue and insomnia. Id. She described pain as mostly in her lower back and legs and said she was tired of “hurting all day, every day.” Id. She weighed 245 pounds and had a body mass index (“BMI”) of 43.4 kg/m.2 Tr. at 305. NP Reynolds observed Plaintiff to be obese and to appear depressed. Tr. at 307. She increased Gabapentin from 300 mg three times a day to 600 mg three times a day and prescribed Bupropion HCl SR 150 mg twice a day. Id. She refilled Duloxetine and Tramadol and referred Plaintiff to pain management. Id.

On October 3, 2018, Plaintiff complained of thoracic back pain. Tr. at 311. She described the pain as located in her bilateral lateral posterior thoracic areas, vacillating between sharp and dull, and interfering with sleep. Tr. at 312. She noted it ranged in severity from a one when dull to a nine when sharp. Id. She weighed 249.5 pounds and had a BMI of 44.2 kg/m.2 Tr. at 311. She also complained of worsening insomnia, stable depression, generalized pain due to fibromyalgia, and urinary frequency. Tr. at 312-13. NP Reynolds observed Plaintiff to be overweight, to have mild TTP over the

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mid-lateral back and sides, and to demonstrate full active ROM of the spine with painful movements. Tr. at 313. She prescribed Trazodone 50 mg for sleep and continued Tramadol for pain. Id. She ordered urinalysis, which was normal. Id.

On November 9, 2018, NP Reynolds completed a mental condition form at the request of the state agency. Tr. at 345. She identified Plaintiff's mental diagnoses as depression and anxiety. Id. She stated Plaintiff's medications included Duloxetine 60 mg twice daily and Bupropion SR 150 mg twice daily. Id. She indicated the medications had helped Plaintiff's condition. Id. She denied having recommended psychiatric care. Id. She provided the following mental status impressions: oriented to time, person, place, and situation; intact thought process; appropriate thought content; anxious and depressed mood/affect; good attention/concentration; and good memory. Id. She felt Plaintiff had adequate ability to complete complex tasks and good abilities to complete basic activities of daily living (“ADLs”), relate to others, and complete simple, routine tasks. Id. She considered Plaintiff capable of managing her own funds. Id. She wrote: “She does struggle with ADLs at times but this is due to pain from fibromyalgia-not depression or anxiety.” Id.

On November 19, 2018, state agency psychological consultant Blythe Farish-Ferrer, Ph.D. (“Dr. Farish-Ferrer”), reviewed the evidence and

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considered listings 12.04 for depressive, bipolar, and related disorders and 12.06 for anxiety and obsessive-compulsive disorders. Tr. at 48-49, 61-62. She rated Plaintiff as having mild difficulties in her abilities to understand, remember, or apply information and adapt or manage oneself and moderate difficulties in her abilities to interact with others and concentrate, persist, or maintain pace. Id. She completed a mental residual functional capacity (“RFC”) assessment, indicating Plaintiff was moderately limited as to the following abilities: to carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to work in coordination with or proximity to others without being distracted by them; to interact appropriately with the general public; and to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 53-54, 66-67.

Plaintiff presented to physical medicine and rehabilitation specialist Kerri Kolehma, M.D. (“Dr. Kolehma”), for a consultative orthopedic exam on November 27, 2018. Tr. at 355-59. She reported increased left foot pain upon standing for long periods with a history of bilateral foot surgeries to correct a flat-foot deformity during her childhood and a 2001 surgery to remove screws and hardware and insert a bone graft in her left foot. Tr. at 355. She described fibromyalgia-related pain in her back and hips that increased with

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activity-particularly bending and lifting-and occasional pain in her shoulders, wrists, and elbows. Id. She reported abilities to sit for 90 minutes, stand for 35 minutes, walk for 30 minutes, ascend and descend stairs without difficulty, perform ADLs independently, and drive. Tr. at 356. She endorsed memory changes and dizziness. Id. She weighed 251 pounds and had a BMI of 44.5, which Dr. Kolehma noted was consistent with extreme obesity. Id. Dr. Kolehma indicated Plaintiff sat comfortably, had no problems getting in or out of a chair and on and off the exam table, demonstrated normal gait, and performed tandem, heel, and toe walk without difficulty. Id. She observed: pes planus of the left foot with scars across the medial foot and by the Achilles tendon; pes planus of the right foot with ankle valgus; limited ROM of the bilateral hips and knees due to body habitus; 5/5 motor testing in all muscle groups; normal squat; increased lumbar lordosis with protuberant abdomen; no trigger points in the spine; normal joints and fine and gross manipulation in the hands; 5/5 grip and pincer strength in the hands; negative seated and supine straight-leg raising (“SLR”); intact sensation; equal and symmetrical reflexes; tender spots with palpation in the low back area; lumbar extension to 10/25 degrees; bilateral knee flexion to 110/150 degrees; bilateral hip abduction to 10/40 degrees, adduction to 0/20 degrees, flexion to 90/100 degrees, internal rotation to 30/40 degrees, external rotation to 40/50 degrees, and extension to 10/30 degrees; bilateral ankle dorsiflexion

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to 5/10 degrees; and otherwise normal ROM testing. Tr. at 356-57, 358. Dr. Kolehma noted the exam was negative for tender spots in 11 of 18 areas. Tr. at 357. She recommended Plaintiff decrease her weight to address foot problems and take pressure off her weightbearing joints. Id. She indicated Plaintiff would be limited to standing and walking for 30 minutes at one time and should be allowed changes of position. Id.

On November 30, 2018, state agency medical consultant Diana Collins, M.D. (“Dr. Collins”), reviewed the record and assessed Plaintiff's physical RFC as follows: occasionally lift and/or carry 10 pounds; frequently lift and/or carry less than 10 pounds; stand and/or walk for a total of three hours; sit for a total of about six hours in an eight-hour workday; frequently stoop, kneel, crouch, crawl, and climb ramps and stairs; occasionally climb ladders, ropes, or scaffolds; and avoid even moderate exposure to hazards. Tr. at 50-53, 63- 66.

Plaintiff presented to pain management physician Walter Schuyler, M.D. (“Dr. Schuyler”), for an initial consultation on December 17, 2018. Tr. at 489. She complained of fibromyalgia and arthritis in her back, hip, and right foot and noted pain in her bilateral lumbar spine, bilateral lower extremities (“LEs”), bilateral cervical spine, and bilateral upper extremities. Id. She reported initial onset of pain in August 2017, rated her pain as a 10, and noted it was exacerbated by standing, walking, and too much activity. Id. Dr.

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Schuyler noted pain with flexion and extension of the lumbar spine, paraspinal and vertebral spine tenderness, limited ROM of the lumbar spine due to pain and stiffness, and reported radicular pain in the right L4-5 distribution. Tr. at 491. He assessed radiculopathy of the lumbar region, fibromyalgia, long-term use of opiate analgesic, and chronic pain syndrome. Tr. at 492. He referred Plaintiff to physical therapy, entered into a narcotics contract with her, ordered magnetic resonance imaging (“MRI”) of the lumbar spine and right transforaminal epidural steroid injections (“ESIs”) at ¶ 3-4 and L4-5, and scheduled a seven-day follow up visit. Id. He prescribed Norco 5-325 mg three times a day and Tizanidine HCL 4 mg three times a day. Tr. at 493.

On December 20, 2018, a second state agency psychological consultant, Annette Brooks-Warren, M.D. (“Dr. Brooks-Warren”), reviewed the record, considered Listings 12.04 and 12.06, and assessed mild difficulties in understanding, remembering, or applying information and adapting or managing oneself and moderate difficulties in interacting with others and concentrating, persisting, or maintaining pace. Tr. at 83-84, 97-98. She completed a mental RFC assessment noting Plaintiff was moderately limited in her abilities to maintain attention and concentration for extended periods; work in coordination with or proximity to others without being distracted by them; interact appropriately with the general public; and get along with

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coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 85-87, 99-101.

Plaintiff described pain in her lumbar spine, right hip, and bilateral knees on January 24, 2019. Tr. at 363. She rated her pain as a five and indicated her pain medication was providing 80-90% relief for three to four hours. Id. She endorsed headache, insomnia, weakness, difficulty lying flat, swelling in hands/feet, joint stiffness, leg cramps, muscle aches, painful joints, balance difficulty, tingling/numbness, anxiety, depression, and difficulty sleeping. Id. Nurse practitioner Heather Barnard (“NP Barnard”) assessed chronic pain syndrome, lumbar radiculopathy, and long-term use of opiate analgesic. Tr. at 364. She resubmitted a request for lumbar MRI and refilled Tizanidine, Norco, and Cymbalta. Id.

On February 20, 2019, Plaintiff described her pain as most severe in her right lumbar spine. Tr. at 362. She rated her pain as a seven and indicated her pain medication was providing 70-80% relief and lasting three to four hours. Id. She reported headache, insomnia, weakness, difficulty lying flat, swelling in her hands/feet, joint stiffness, leg cramps, muscle aches, painful joints, balance difficulty, tingling/numbness, anxiety, depression, and difficulty sleeping. Id. Dr. Schuyler assessed lumbar radiculopathy, chronic pain syndrome, and long-term use of opiate analgesics. Tr. at 363. He noted an MRI had been approved and Plaintiff needed to have it done by February 24.

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Id. He indicated he might provide injection therapy if the MRI findings suggested it would be helpful. Id. He refilled Gabapentin, Norco, Tizanidine, and Cymbalta. Id.

On March 5, 2019, Plaintiff complained of worsened mood, increased anxiety, hypersensitivity, depression, insomnia, restlessness/agitation, muscle tension, social withdrawal, decreased effectiveness/productivity, headaches, shortness of breath, decreased energy, feeling tired all the time, poor concentration at times, diminished activity due to pain and fatigue, and soft tissue pain in her lower back and legs. Tr. at 572-73. She said she was tired of “hurting all day, every day.” Tr. at 573. NP Reynolds noted Plaintiff was obese and appeared anxious and depressed. Id. She increased Bupropion SR to 200 mg twice a day and prescribed Clonazepam 0.5 mg. Id. She ordered lab studies to check Plaintiff's vitamin D level and assess for other possible sources of fatigue. Id.

Plaintiff followed up with NP Barnard for medication management on March 20, 2019. Tr. at 360. She endorsed fibromyalgia-related pain in her back and hip, rated it as a six, and indicated her medication was providing 70-80% relief and lasting four to five hours. Id. She endorsed headache, insomnia, weakness, joint stiffness, leg cramps, muscle aches, painful joints, weakness, balance difficulty, tingling/numbness, anxiety, depression, and difficulty sleeping. Id. NP Barnard assessed chronic pain syndrome, long-

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term use of opiate analgesic, and lumbar radiculopathy. Tr. at 361. She noted the MRI was negative for L5-S1 sensory complaints and referred Plaintiff for electromyography. Id. She refilled Norco, Tizanidine, Gabapentin, and Cymbalta and requested authorization for injections. Id.

Plaintiff complained of leg pain, dizziness, and rash on April 16, 2019. Tr. at 567. She also endorsed frequent sharp and throbbing pain in her right hip that was exacerbated by sitting for too long and lying down. Tr. at 569. She described numbness, tingling, and radiation down her leg. Id. She also endorsed diminished activity, fatigue, myalgia, temperature intolerance, and being hot all the time. Id. NP Reynolds assessed a pruritic rash to Plaintiff's face, arthritis, and lightheadedness. Tr. at 570. She instructed Plaintiff to use hydrocortisone cream and gave her a glucometer to test her blood glucose. Id. She noted Plaintiff's blood glucose was 79 mg/dL in the office. Id. Plaintiff reported sleepiness after taking Norco, and NP Reynolds instructed her to take Aleve during the day and Norco at night, as needed for pain. Id.

On April 17, 2019, Plaintiff described back pain as a five and indicated her pain medication was providing 80-90% relief for four to five hours. Tr. at 387. She reported recent onset of burning pain in her lower back that failed

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to respond to her medication. Id. Dr. Schuyler refilled Plaintiff's prescriptions for Norco, Tizanidine, Gabapentin, and Cymbalta. Tr. at 390.

Plaintiff presented to NP Reynolds with lightheadedness on April 18, 2019. Tr. at 565. NP Reynolds ordered a glucose fingerstick and a hemoglobin A1C test. Id. Plaintiff's blood glucose was 242 mg/dL and her hemoglobin A1C was 5.8%. Tr. at 566. NP Reynolds assessed diabetes and ordered a glucometer, lancets, and blood glucose test strips for Plaintiff to monitor her blood glucose at home. Tr. at 565.

Dr. Schuyler administered transforaminal epidural steroid injections (“ESIs”) at Plaintiff's right L3-4 and L4-5 levels on April 29, 2019. Tr. at 393. Plaintiff rated her pain as a seven prior to the procedure. Id.

On May 7, 2019, Plaintiff followed up with NP Reynolds as to possible diabetes and complained of constipation, dizziness, rash, right hip pain, and nasal congestion. Tr. at 560-61. She described numbness, tingling, and radiating pain down her right leg, but indicated her pain had improved after she received an injection the prior week. Tr. at 561. NP Reynolds indicated Plaintiff had pre-diabetes and was doing well with diet and mild walking, although her exercise was limited due to L4-5 hypertrophy and fibromyalgia. Tr. at 570. She refilled Trazodone and Clonazepam, prescribed Ducosate Sodium for constipation, referred Plaintiff to a general surgeon for a lipoma

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on her back, and encouraged her to monitor her blood glucose at home. Tr. at 562-63.

Plaintiff rated her back pain as a four on May 14, 2019. Tr. at 396. She reported her pain medication was providing 80-90% relief for three to four hours. Id. Dr. Schuyler refilled Plaintiff's medications. Tr. at 398.

Dr. Schuyler administered transforaminal ESIs at Plaintiff's right L3-4 and L4-5 areas on May 16, 2019. Tr. at 402.

Plaintiff rated her low back pain as a five on June 17, 2019. Tr. at 406. She reported the ESIs had provided 80% relief and her pain medication provided 80-90% relief for three to four hours at a time. Id. She described new pain in her right arm she rated as a six and indicated she had been experiencing severe headaches. Id. Dr. Schuyler referred Plaintiff for an MRI of the cervical spine and refilled her medications. Tr. at 410. He noted: “Patient exhibits functional improvement (sitting, standing, walking longer) with current narcotic regimen vs. waning lifestyle/quality of life without narcotic regimen.” Id. He declined to decrease her opioid medication. Id.

On June 26, 2019, Plaintiff presented to physician assistant Paul M. Linnert (“PA Linnert”) for evaluation of bilateral knee pain. Tr. at 374. She described progressive throbbing pain in her bilateral knees over the prior two years that was most significant at night and in the morning. Id. She endorsed some weakness and instability, but no catching or locking of her knees with

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ambulation. Id. She rated her pain as a seven. Tr. at 372. She noted her pain management physician had recommended she see an orthopedist for bone pain. Id. She weighed 246 pounds and had a BMI of 43.6 kg/m.2 Id. PA Linnert observed Plaintiff to have full terminal extension of both knees and about 100 degrees of flexion of the bilateral knees. Tr. at 374. He noted medial joint line TTP of both knees, with the left being worse than the right. Id. He found no lateral joint line TTP. Id. He stated Plaintiff had positive medial and negative lateral McMurray's test in both knees, positive patellar grind test bilaterally, negative balloon test, no laxity with medial collateral ligament (“MCL”) or lateral collateral ligament (“LCL”) testing, negative anterior and posterior drawer, and positive SLR and crossover test of the bilateral LEs. Id. X-rays showed medial joint line degradation with subchondral sclerosis in the tibial plateau and lateral tilt to the patella bilaterally. Tr. at 375. PA Linnert assessed primary osteoarthritis of the bilateral knees, prescribed Voltaren gel, and administered bilateral knee injections. Tr. at 375-76.

Plaintiff followed up with PA Linnert on July 10, 2019. Tr. at 378. She reported “doing way better” and rated her bilateral knee pain as a two. Id. PA Linnert prescribed a 12-day course of Prednisone 10 mg and Diclofenac Sodium 75 mg twice a day. Tr. at 381.

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Plaintiff reported constant pain in her lumbar spine and bilateral knees on July 17, 2019. Tr. at 412. She rated her pain as a seven and indicated it was aggravated by sitting, standing, and walking. Id. She endorsed 80-90% pain relief for three to four hours with medication. Id. Internal and occupational medicine specialist John B. Tomarchio, M.D. (“Dr. Tomarchio”), observed TTP over the bilateral greater trochanteric bursal (“GTB”) area, tightness over the right and left iliotibial (“IT”) bands, and a horizontal scar with soft mass over Plaintiff's lumbar spine that was consistent with her report of recent lipoma removal. Tr. at 413. He refilled Norco, Tizanidine, Gabapentin, and Cymbalta. Tr. at 414.

Plaintiff complained of increased anxiety and depression on July 26, 2019. Tr. at 556-57. She reported her symptoms were interfering with her sleep and ability to perform household activities. Tr. at 556. She endorsed decreased energy, feeling tired all the time, and poor concentration at times. Tr. at 557. She indicated her medications were helpful, but failed to completely control her symptoms, and noted she had started seeing a counselor. Id. NP Reynolds observed Plaintiff to be dressed nicely and to show signs of anxious and depressed mood. Id. She increased Trazodone from 50 to 100 mg and refilled Clonazepam 0.5 mg for Plaintiff to take as needed. Id.

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On August 14, 2019, Plaintiff rated constant pain in her lumbar spine and bilateral knees as a seven. Tr. at 416. She noted her pain was exacerbated by sitting, standing, and walking. Id. She indicated pain medication provided 80-90% relief for three to four hours at a time. Id. She felt that physical therapy was worsening her pain and reported new onset of shaking in her bilateral hands. Id. Plaintiff complained of a burning feeling in her lower back, despite relief from injections. Tr. at 418. Dr. Tomarchio observed TTP over the bilateral GTB area, tightness over the right and left IT bands, and limited ROM due to pain and stiffness. Tr. at 417. He assessed cervical radiculopathy, nicotine dependence, chronic pain syndrome, lumbar radiculopathy, and long-term use of opiate analgesic. Tr. at 418. He increased Gabapentin to 600 mg three times a day and refilled Plaintiff's other medications. Id.

On August 27, 2019, Plaintiff reported increased anxiety and worsened mood due to her husband's unfaithfulness. Tr. at 552. She indicated her emotional problems were interfering with her ability to perform household activities and endorsed emotional lability, decreased effectiveness/ productivity, decreased energy, loss of appetite, and some passive suicidal ideation. Tr. at 552-53. She also reported fatigue, anxiety-related chest pain, myalgia, and fibromyalgia. Tr. at 553. NP Reynolds described Plaintiff as nicely dressed, but appearing anxious and depressed. Id. She increased

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Bupropion HCl SR from 150 mg to 200 mg twice a day for depression and indicated she should continue to take Clonazepam for anxiety. Tr. at 553-54.

Plaintiff rated constant pain in her lumbar spine and bilateral knees as a seven on September 11, 2019. Tr. at 421. She reported her medication provided 80-90% pain relief for three to four hours. Id. She complained of increased pain with physical therapy and shaking of her bilateral hands. Id. She indicated she had one more week of physical therapy scheduled and had been satisfied with the increased dose of Gabapentin, although she felt a burning sensation in her thighs when she would lie flat. Tr. at 423. She noted she was having a hard time emotionally due to her father's recent death. Id. Dr. Tomarchio observed TTP over the bilateral GTB area, tightness over the right and left IT bands, and limited ROM due to pain and stiffness. Tr. at 422. He prescribed Amitriptyline 10 mg at bedtime and refilled Plaintiff's other medications. Tr. at 423.

On September 27, 2019, Plaintiff reported increased anxiety due to her father's sudden, unexpected death. Tr. at 548. She endorsed emotional lability, anxiety, depression, grief, decreased effectiveness/productivity, and decreased energy. Tr. at 549. She also complained of dysuria, intermittent swelling in her LEs, a rash across her cheeks and the bridge of her nose, chronic fatigue, myalgia and fibromyalgia, depression, stress, and loss of interest. Id. She weighed 241 pounds and had a BMI of 42.7 kg/m.2 Tr. at 547.

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NP Reynolds observed that Plaintiff appeared anxious and depressed and had edema and a rash. Tr. at 549-50. She noted urinalysis was negative and advised Plaintiff to drink plenty of fluids and stop drinking soda. Tr. at 550. She ordered lab studies to rule out lupus and check Plaintiff's hemoglobin A1C and vitamin D levels. Id.

On October 22, 2019, Plaintiff reported constant pain in her lumber spine and bilateral knees that was exacerbated by standing, walking, and sitting. Tr. at 425. She rated her pain as a seven and indicated pain medication was providing 60-70% relief for three to four hours at a time. Id. She indicated she had tried and failed a home exercise plan and had not benefitted from physical therapy. Id. Dr. Schuyler noted pain with flexion and extension, paraspinal tenderness and spasm, vertebral spine tenderness, limited ROM of the lumbar spine due to pain and stiffness, and 4/5 strength/mild weakness. Tr. at 428. Plaintiff reported some benefit with the addition of Amitriptyline and indicated injections had improved knee pain on the left, but not the right. Id. She endorsed increased burning pain in her back. Id. Dr. Schuyler increased Gabapentin to 800 mg three times a day and refilled Norco, Cymbalta, Tizanidine, and Amitriptyline. Id.

On October 30, 2019, Plaintiff presented to John C. Whitley, III, Ph.D. (“Dr. Whitley”), for a consultative psychological evaluation. Tr. at 383-86. She endorsed consistent pain in most of her joints and muscles that she rated

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as a three with medication. Tr. at 383. She indicated she had been seeing a counselor for four months for treatment of depression and anxiety. Tr. at 384. She endorsed mild to moderate anxiety, feeling self-conscious around strangers in public, once-a-week panic attacks, and worrying over her health, bills, caring for her children, and the future. Id. She reported moderate depression and noted her pain greatly affected her mood. Id. She indicated her depression was also affected by the death of her father one month prior and her financial situation. Id. She endorsed symptoms that included sadness, hopelessness, difficulty sleeping, concentrating, and making decisions, loss of interest in usual activities, and mild impairment to short-term memory and focus. Id. She described activities that included getting her children ready for school, performing some household chores, picking up her children from school, performing basic hygiene, taking medication, and attending appointments. Id. She said she required episodic support with dressing, attended church once every two to three months, and had no close friends. Id. She indicated the household chores she performed included preparing meals in the microwave and washing and folding clothes. Id. She noted pain affected her sleep such that she had difficulty falling and staying asleep and might sleep for four hours at a time. Tr. at 384-85. She reported driving only short distances only during daylight hours due to anxiety and vision problems. Tr. at 385.

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Dr. Whitley noted Plaintiff's activity level appeared to be below average. Id. He stated Plaintiff “appeared to be in mild pain ambulating.” Id. He described Plaintiff's emotional state as “mildly depressed and anxious.” Id. He stated Plaintiff had “somewhat limited” remote, recent, and immediate memory, recalling two of four items after a 15-minute delay and two of four items after a two-minute delay with interference task. Id. He noted Plaintiff could not subtract seven from 11 or spell “world” backward, could perform serial sevens to 21, and subtract by seven from 100 to 79. Id. He stated Plaintiff's affect was mildly depressed and anxious, she was mildly tearful, and she had mild low energy. Id. Aside from the abnormalities noted above, Dr. Whitley assessed normal findings on mental status exam. Id. His diagnostic impressions were adjustment disorder with mixed anxiety and depressed mood and depressive disorder due to consistent pain with depressive features. Tr. at 386. He wrote:

The patient is a 37-year-old female who was cooperative. She understood conversational speech. She appears capable of understanding and following 2- and 3-step work instructions. In light of her observed pain and secondary mental health issues, she may function more efficiently with simple and routine type of task. Her ability to interact with coworkers, public, and supervisors in a stable manner will be minimally impaired. She puts forth effort towards family. She understands concepts of caution and danger. She should not decompensate under basic levels of change and expectations. Her ADLs are compromised by her health. She requires some oversight with dressing and bathing, although she can feed herself. It is felt she can organize a work schedule as well as her own personal finances.

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Id.

On November 12, 2019, x-rays showed triple arthrodesis and otherwise stable left ankle. Tr. at 495. X-rays of Plaintiff's left foot showed old triple arthrodesis with early midfoot arthritis. Tr. at 496.

Plaintiff complained of edema and knee pain on November 19, 2019. Tr. at 544. She endorsed chronic fatigue and myalgia and having gained 15 pounds over the prior week. Tr. at 545. She weighed 256 pounds and had a BMI of 45.3 kg/m.2 Tr. at 544. NP Reynolds observed 2.5+ pitting edema to Plaintiff's bilateral feet, ankles, and lower legs and slower than usual gait due to LE pain. Tr. at 545. She prescribed Lasix 20 mg. Id.

On November 20, 2019, Plaintiff rated constant pain in her lumbar spine and bilateral knees as a seven. Tr. at 431. She reported 60-70% pain relief for three to four hours at a time. Id. Dr. Tomarchio observed pain with lumbar extension and flexion, paraspinal and vertebral tenderness, paraspinal spasm, 4/5 strength, and limited ROM of the lumbar spine due to pain and stiffness. Tr. at 432. He indicated Plaintiff's medications were not providing relief, stopped Norco, prescribed Percocet 10-325 mg, increased Gabapentin to 1200 mg three times a day, and refilled Cymbalta, Tizanidine, and Amitriptyline. Tr. at 433.

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Plaintiff complained of slightly-painful, bilateral LE edema on December 2, 2019. Tr. at 541. She noted gaining weight since her last visit. Tr. at 542. She also endorsed chronic fatigue and myalgia. Id. She weighed 263 pounds and had a BMI of 46.6 kg/m.2 Tr. at 540. NP Reynolds observed 2+ pitting bilateral edema in Plaintiff's feet, ankles, and lower legs and noted her gait was slower than usual due to pain in her LEs. Tr. at 542. She discontinued Lasix, prescribed Bumex 2 mg, and instructed Plaintiff to elevate her LEs as much as possible and avoid salt. Id. She instructed Plaintiff to taper down Gabapentin, as she feared it might be causing her edema. Id.

On December 11, 2019, Plaintiff described painful LE edema that had started eight weeks prior, fatigue, and myalgia. Tr. at 537-38. She weighed 262 pounds. Tr. at 536. NP Reynolds noted non-pitting edema in Plaintiff's LEs and slower than usual gait due to LE pain. Tr. at 538. She noted Plaintiff's edema was slightly improved and instructed her to take Bumex daily and continue decreasing Gabapentin and limiting her salt intake. Id. She ordered lab studies. Tr. at 538-39.

On December 18, 2019, Plaintiff described constant pain in her lumbar spine and bilateral knees as aggravated by walking, sitting, and standing. Tr. at 435. She rated her pain as a seven, noting her medication provided 60- 70% pain relief for three to four hours at a time. Id. She complained of

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tingling in her bilateral legs that extended to her thighs, but indicated it had been relieved by ESIs in the past. Tr. at 437. Dr. Tomarchio observed pain with flexion and extension of the lumbar spine, paraspinal spasm, paraspinal and vertebral tenderness, 4/5 strength, shuffling and slouching gait, and limited ROM due to stiffness and pain. Tr. at 436. He stopped Gabapentin due to swelling, increased Amitriptyline to 25 mg, and refilled Percocet. Tr. at 437. He noted Plaintiff's insurance provider would not approve Lyrica or Gralise. Id.

On January 15, 2020, Plaintiff rated constant pain in her lumbar spine and bilateral knees as a six. Tr. at 440. She indicated her pain was worse in the evening and was exacerbated by lifting/pulling and prolonged sitting, standing, and walking. Id. She reported her pain medication was 80-90% effective and provided three to four hours of relief. Id. She described a new tingling sensation in her left arm and leg. Tr. at 442. Dr. Tomarchio noted limited ROM of the lumbar spine secondary to stiffness and pain, but otherwise normal physical exam findings. Tr. at 441. He indicated Plaintiff's insurance provider had approved a transforaminal ESI. Id. He refilled Plaintiff's medications and referred her for an MRI of her cervical spine. Tr. at 442.

Plaintiff presented with LE edema and an eight-pound weight gain on February 12, 2020. Tr. at 534. She endorsed chronic fatigue and myalgia. Id.

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She weighed 270 pounds. Tr. at 533. NP Reynolds observed 3+ pitting edema from Plaintiff's knees to her feet and negative Homan's sign. Tr. at 535. She administered an intramuscular injection of Lasix 40 mg and instructed Plaintiff to use Bumex daily. Id.

Plaintiff complained of LE edema and a four-pound weight gain over the prior five days on February 27, 2020. Tr. at 531. She weighed 266 pounds. Tr. at 530. She endorsed chronic fatigue and myalgia. Tr. at 532. NP Reynolds observed 2+ pitting edema from Plaintiff's knees to her feet and negative Homan's sign. Id. She stopped Bumex, prescribed Lasix, and instructed Plaintiff to follow up in 10 days. Id.

On February 25, 2020, Plaintiff rated pain in her lumbar spine and bilateral knees as a six and reported 80-90% pain relief for three to four hours with medication. Tr. at 444. She endorsed pain in her posterior neck and indicated her primary care provider was working her up for LE edema. Tr. at 446. Dr. Tomarchio noted limited ROM of the lumbar spine due to pain and general stiffness, diffuse TTP of the knees, and decreased ROM of the knees secondary to pain. Tr. at 445. He indicated Plaintiff had cancelled the appointment for transforaminal ESIs because she was not certain that she wanted to go through with them. Tr. at 446. He refilled Cymbalta, Tizanidine, and Percocet and increased Amitriptyline to 50 mg. Id.

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Plaintiff complained of LE edema and difficulty falling asleep on February 27, 2020. Tr. at 527-28. She endorsed chronic fatigue and myalgia. Tr. at 528. NP Reynolds observed 1.5+ pitting edema in Plaintiff's LEs and negative Homan's sign. Id. She instructed Plaintiff to continue Lasix, watch her salt intake, and attempt to exercise. Id. She increased Trazodone from 50 to 100 mg for insomnia and ordered lab studies. Tr. at 528-29.

On March 25, 2020, Plaintiff rated pain in her knees and lumbar spine as a six and indicated medication was providing 80-90% pain relief for three to four hours. Tr. at 448. Dr. Tomarchio observed limited ROM of the lumbar spine secondary to pain and general stiffness, diffuse TTP of the knees, decreased ROM of the knees secondary to pain, and ligamentous guarding on exam. Tr. at 449. He recommended Plaintiff taper off and discontinue benzodiazepine medications due to risk of death when used in combination with opioids. Tr. at 450. He refilled Cymbalta, Tizanidine, Amitriptyline, and Percocet. Id.

Plaintiff rated lumbar spine and knee pain as a six on April 29, 2020. Tr. at 452. She endorsed 80-90% pain relief for three to four hours with medication. Id. Dr. Tomarchio noted limited ROM of the lumbar spine due to pain and generalized weakness, diffuse TTP of the knees, decreased ROM of the knees, and guarding on knee exam. Tr. at 453. He refilled Cymbalta, Tizanidine, Amitriptyline, and Percocet. Tr. at 454.

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Plaintiff also followed up with NP Reynolds on April 29, 2020. Tr. at 522. She had oral thrush of moderate severity and indicated she had developed symptoms for the second time in six weeks. Tr. at 524. NP Reynolds noted a white coating on Plaintiff's tongue and buccal mucosa, 1+ edema in her LLE, 0.5+ edema in her RLE, and negative Homan's sign. Id. She assessed candidiasis of the mouth most likely due to prediabetes status and prescribed Nystatin. Id. She also prescribed Metformin ER 500 mg for prediabetes and refilled Clonazepam for mixed anxiety and depressive disorder. Tr. at 524-25.

On June 10, 2020, Plaintiff rated her pain as an eight in her lumbar spine, a two in her cervical spine, and a five in her bilateral knees. Tr. at 456. She reported her pain medication was providing 80-90% relief for three to four hours. Id. Dr. Tomarchio noted limited ROM of the lumbar spine due to pain and general stiffness, decreased ROM of the knees secondary to pain, diffuse TTP of the knees, guarding on knee exam, and slight tenderness in point over the right basilar occiput. Tr. at 457. He indicated Plaintiff planned to appeal her insurer's denial of a request for an MRI. Tr. at 458. He refilled Plaintiff's medications. Tr. at 459.

On July 16, 2020, Plaintiff presented to registered dietician Amanda Peterson (“Ms. Peterson”) for a nutrition assessment for metabolic/bariatric surgery. Tr. at 460. She was 5'3” tall, weighed 269 pounds, and had a BMI of

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47.54 kg/m.2 Id. Ms. Peterson instructed Plaintiff to continue to wean off soda, limit chocolate to once a week, eat a lean protein source with each meal, measure portions of starch to prevent overeating, and eat vegetables once a day. Tr. at 462. She ordered lab studies, indicated Plaintiff would be required to attend a preoperative class, and referred her for a pre-surgical psychological assessment and a gastrointestinal surgery assessment. Tr. at 463.

Plaintiff presented to Thomas Karl Byrne, M.D. (“Dr. Byrne”), for a bariatric surgery consultation the same day. Tr. at 463. Dr. Byrne noted Plaintiff's comorbidities included pre-diabetic status and weightbearing arthritis. Tr. at 466. He described and explained various surgical treatment options and indicated Plaintiff was a candidate for laparoscopic sleeve gastrectomy. Tr. at 468. He noted Plaintiff's file would be presented at the interdisciplinary case conference, a specific plan of care would be determined, and the case would be submitted for insurance approval. Id.

Plaintiff followed up with NP Reynolds for a preoperative evaluation on July 20, 2020. Tr. at 518. She reported being motivated to improve her diet, reducing her portions, no longer drinking soda, and eating mostly low-fat meat and fresh vegetables. Tr. at 520. NP Reynolds observed 1+ pitting edema to Plaintiff's LEs that was improved since her prior visit. Id. She considered Plaintiff to be a good candidate for gastric sleeve surgery. Id. She

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noted Plaintiff's vitamin D level remained low and increased her vitamin D supplement to four times a week. Id.

C. The Administrative Proceedings

1. The Administrative Hearing a. Plaintiff's Testimony

At the hearing, Plaintiff testified she was 5'3” tall and weighed 258 pounds. Tr. at 31. She stated she was married, but separated. Id. She said she had a driver's license and continued to drive. Tr. at 32. She denied having worked since July 20, 2018. Id.

Plaintiff testified she stopped working as a CNA due to pain. Id. She said her doctors initially thought she had lupus, but subsequently diagnosed fibromyalgia and degenerative disc disease at ¶ 3 and L4 and degenerative joint disease (“DJD”) in her knees. Id. She confirmed having previously worked as a call center representative full-time for two years. Tr. at 32-33.

Plaintiff testified her pain prevented her from working. Tr. at 33. She said she experienced pain, pins-and-needles sensation, and swelling in her left foot, particularly when she was on her feet for too long. Id. She indicated she had undergone five left foot surgeries. Id. She said she had difficulty walking. Id. She stated she experienced pain in her knees, back, hip, and cervical spine. Id. She indicated she had arthritis and experienced a lot of joint pain. Id. She described her pain as constant. Id. She testified she was

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taking Oxycodone, Tizanidine, and Amitriptyline for pain, Duloxetine for inflammation, and Trazodone, Clonazepam, and Bupropion for sleep and anxiety. Id. She said Clonazepam made her feel dizzy. Id. She indicated she had been taking opioid pain medication for two years and claimed it was not effective for long periods. Id. She stated she was only allowed to take the opioid medications two to three times a day and it would wear off between doses. Tr. at 33-34. She said she would sit with a heating pad or lie down when her medication wore off. Tr. at 34.

Plaintiff estimated she could sit for up to an hour at a time while raising and lowering her legs from a footrest to reduce swelling. Id. She said she had to get up and move around after sitting for an hour because her legs would tingle and she would start to lose circulation. Id. She stated she could stand for no more than an hour because the pressure on her foot would cause her ankle and foot to hurt and swell. Id. She indicated she could walk for about 15 minutes prior to taking a break. Id. She said she had carpal tunnel syndrome in her hands that affected her ability to use them. Id. She stated she was scheduled to receive injections to her wrist the following week. Id. She noted her pain management doctor had diagnosed carpal tunnel syndrome, but admitted he had not ordered testing to confirm the diagnosis. Tr. at 34-35. She said she visited her pain management physician once a

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month. Tr. at 35. She indicated she had undergone imaging studies of her back at the hospital in Hampton. Id.

Plaintiff admitted she experienced problems with depression and anxiety. Tr. at 36. She said her medication was effective, although she continued to have increased symptoms on some days due to her inability to do her former activities. Id. She indicated she had been receiving counseling treatment every two weeks for about a year. Id. She confirmed that counseling had been helpful. Id. She said she remained in her home most of the time due to weight gain and inability to do the activities she used to do. Id. She indicated she had no difficulty interacting with others, but said she preferred to be by herself. Tr. at 37. She admitted she could visit places like Walmart. Id. She said she experienced panic attacks about twice a month. Id. She indicated her panic attacks were exacerbated by increased pain and financial stressors. Id.

Plaintiff testified she lived in a mobile home with her two children, ages 11 and 12. Id. She admitted she had been able to assist her children with their schoolwork during the pandemic. Tr. at 38. She said she could care for her personal hygiene, but sometimes required assistance from her mother and daughter to get in and out of the shower and dress from the waist down. Id. She stated she would perform household chores when she was able to do so. Id. She said her hip pain prevented her from standing to wash dishes for a

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long period. Id. She indicated her mother and children helped her clean most of the time. Id. She testified she spent a typical day reading and alternating between sitting down and getting up, doing what she could do. Id. She denied visiting the grocery store and said her mother shopped for her. Id.

Plaintiff stated she had recently consulted with a doctor about potential weight loss surgery. Tr. at 38-39. She said she intended to follow through with the surgery, but it had not yet been scheduled. Tr. at 39. She indicated she felt that her weight exacerbated her knee problems, caused increased edema in her lower legs, and caused increased pain in her left foot. Id.

b. Vocational Expert Testimony

Vocational Expert (“VE”) Robert Brabham reviewed the record and testified at the hearing. Tr. at 39-42. The VE categorized Plaintiff's PRW as a CNA, Dictionary of Occupational Titles (“ DOT ”) No. 355.674-014, as requiring medium exertion and a specific vocational preparation (“SVP”) of 4, and a call center representative, DOT No. 299.357-014, as requiring sedentary exertion and an SVP of 3. Tr. at 39-40. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift and carry 20 pounds occasionally and 10 pounds frequently; engage in unlimited sitting; stand and walk for two hours in an eight-hour workday; occasionally crawl, kneel, and crouch; frequently stoop; never climb ladders, ropes, or scaffolds; never be exposed to work hazards; concentrate sufficiently in two-

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hour increments to perform simple, repetitive tasks; have less than continuous contact with the general public; and deal with occasional changes in work setting and procedure. Tr. at 40. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs in the economy the hypothetical person could perform. Id. The VE identified sedentary jobs with an SVP of 2 as an assembler, DOT No. 739.684-094, a bench hand/packer, DOT No. 715.684-026, and a machine tender, DOT No. 731.685-014, with 350, 000, 84, 000, and 275, 000 positions in the national economy, respectively. Tr. at 40-41.

For a second hypothetical question, the ALJ asked the VE to consider the same conditions in the first question, but to further assume the individual would be limited to sedentary work. Tr. at 41. He asked if the same jobs would be available in the same numbers. Id. The VE confirmed they would. Id.

For a third hypothetical question, the ALJ asked the VE to consider the individual described in the second question, but to add a limitation that the individual would require extraordinary breaks of unpredictable duration and frequency due to symptoms like needing to elevate the legs. Id. He asked if there were any jobs that would allow an individual to take breaks as needed. Id. The VE testified that most employers would allow a worker to be off-task for eight to 10 percent of a workday, in addition to a 15-minute morning

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break, a 15-minute afternoon break, and a 30- to 60-minute mid-shift meal break, but any breaks exceeding 10 percent of the workday would not be allowed. Tr. at 41-42.

The ALJ asked the VE if his testimony had been consistent with the DOT . Tr. at 42. The VE testified the DOT did not break down climbing restrictions or address time off-task. Id. He stated those portions of his testimony were based on his experience in the field of rehabilitation counseling. Id.

2. The ALJ's Findings

In his decision, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2023. Tr. at 14.

2. The claimant has not engaged in substantial gainful activity since July 20, 2018, the alleged onset date (20 CFR 404.1571 et seq. , and 416.971 et seq. ).

3. The claimant has the following severe impairments: obesity, fibromyalgia, degenerative joint disease, anxiety and depression (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a limited range of light work as defined in 20 CFR 404.1567(b) and 416.967(b) except with no climbing ladders, ropes or scaffolds. She has no limits on sitting, able to lift and/or carry 20 pounds occasionally and 10 pounds frequently, and able to stand and/or

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walk for two hours in an eight-hour workday. The claimant can occasionally crawl, kneel and crouch, and frequently stoop. The claimant can have no exposure to work hazards. She can concentrate sufficiently in two-hour increments to perform simple, repetitive tasks, have less than continuous contact with the general-public and have occasional changes in work setting/procedure.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on August 1, 1983 and was 35 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from July 20, 2018, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. at 14-22.

II. Discussion

Plaintiff alleges the Commissioner erred for the following reasons:

1) the ALJ failed to consider the combined effect of Plaintiff's impairments;

2) the ALJ's evaluation of Plaintiff's subjective allegations is invalid because he solely relied on objective evidence in assessing her RFC.

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The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.

A. Legal Framework

1. The Commissioner's Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:

the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.

42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell , 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that

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impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

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A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart , 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris , 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert , 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a

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party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales , 402 U.S. 389, 390 (1971); Walls , 296 F.3d at 290 ( citing Hays v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch , 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen , 849 F.2d 846, 848 (4th Cir. 1988) ( citing Smith v. Schweiker , 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson , 402 U.S. at 390, 401; Johnson v. Barnhart , 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek , 438 F.2d at 1157-58; see also Thomas v. Celebrezze , 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson , 483 F.2d 773, 775 (4th Cir. 1972).

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B. Analysis

1. Combined Effect of Impairments

Plaintiff argues the ALJ discussed how each of her individual impairments affected her, but failed to consider their combined effect. [ECF No. 17 at 14]. She maintains her individual impairments were negatively affected by each other, such that obesity worsened DJD, pain worsened depression, depression worsened fibromyalgia, and vice versa. Id. at 15.

The Commissioner argues the ALJ considered Plaintiff's impairments singly and in combination in assessing her RFC. [ECF No. 19 at 14-16]. She maintains the ALJ specifically indicated he had considered the combined effect of Plaintiff's impairments in assessing her mental conditions and the effects of obesity. Id. at 15-16.

An ALJ must “consider the combined effect of all [the claimant's] impairments without regard to whether any such impairments, if considered separately would be of sufficient severity.” 20 C.F.R. § 404.1523(c), 416.923(c). Addressing an ALJ's failure to consider the combined effect of a claimant's impairments, the Fourth Circuit wrote:

After finding that claimant failed to meet a listing, the ALJ went on to discuss each of claimant's impairments but failed to analyze the cumulative effect the impairments had on the claimant's ability to work. He simply noted the effect or noneffect of each and found that the claimant could perform light and sedentary work. It is axiomatic that disability may result from a number of impairments which, taken separately, might not be disabling, but

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whose total effect, taken together, is to render claimant unable to engage in substantial gainful activity. In recognizing this principle, this Court has on numerous occasions held that in evaluating the effect[] of various impairments upon a disability benefit claimant, the Secretary must consider the combined effect of a claimant's impairments and not fragmentize them.

As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.

Walker v. Bowen , 889 F.2d 47, 49-50 (4th Cir. 1989) (citing Reichenbach v. Heckler , 808 F.2d 309 (4th Cir. 1985); DeLoatche v. Heckler , 715 F.2d 148 (4th Cir. 1983); Oppenheimer v. Finch , 495 F.2d 396 (4th Cir. 1974); Hicks v. Gardner , 393 F.2d 299 (4th Cir. 1968); Griggs v. Schweiker , 545 F.Supp. 475 (S.D.W.V. 1982)).

It must be “clear from the decision as a whole that the Commissioner considered the combined effect of a claimant's impairments.” Brown v. Astrue , C/A No. 0:10-1584-RBH, 2012 WL 3716792, at *6 (D.S.C. Aug. 29, 2012) (citing Green v. Chater , 64 F.3d 657 (Table), 1995 WL 478032, at *3 (4th Cir. 1995) (unpublished). However, absent evidence to the contrary, the court should accept the ALJ's representation that he considered the combined effect of the claimant's impairments. See Reid v. Commissioner of Social Sec. , 769 F.3d 861, 865 (4th Cir. 2014) (citing Hackett v. Barnhart , 395 F.3d 1168, 1173 (10th Cir. 2005) (“[O]ur general practice, which we see no reason to depart from here, is to take a lower tribunal at its word when it declares that it has considered a matter”)). Despite the court's language in Reid that courts

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should take the ALJ at his word, absent evidence to the contrary, it did not rely on mere boilerplate language or an assertion without explanation in affirming the ALJ's decision. It cited to the following excerpt from the ALJ's decision:

[T]he undersigned has considered the combined effects of the claimant's impairments, both severe and non-severe, and has determined that the findings related to them are not at least equal in severity to those described in Listings 1.00, 4.00, 11.00, and 12.00. In this consideration, the undersigned has specifically considered the cumulative effects of the impairments on the claimant's ability to work. See also Walker v. Bowen , 889 F.2d 47 (4th Cir. 1989). The undersigned notes that the claimant's heart condition was asymptomatic despite his history of obesity. Even with consideration of the combined effects of the claimant's obesity, treatment records fail to indicate that the claimant's degenerative disc disease status post fusion resulted in an inability to ambulate or perform fine or gross motor movements effectively. The claimant's physical impairments obviously affected his mental health condition. Nevertheless, when considered in conjunction , no further limitation in the claimant's mental health condition, other than those discussed above, are warranted.

Reid , 769 F.3d 861, 866 (emphasis added by court). Not only did the ALJ in Reid state that he had considered the combined effect of the claimant's impairments, he also explicitly considered the effect of the claimant's obesity on his heart condition, his obesity on his degenerative disc disease, and his physical impairments on his mental health condition. See Id. Thus, it is unclear from Reid whether boilerplate language indicating that an ALJ has considered the combined effects of a claimant's impairments is sufficient.

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Here, at step two, the ALJ found Plaintiff's severe impairments included obesity, fibromyalgia, DJD, anxiety, and depression. Tr. at 14. He indicated that, in accordance with SSR 19-2p, he had considered “whether the combined effects of obesity with any other impairment(s) may be greater than the effects of each of the impairments considered separately.” Tr. at 15. He found “obesity had not had a negative effect upon the claimant's ability to perform routine movement beyond the residual functional capacity stated below or upon her ability to sustain function over an 8-hour day.” Id. He noted “[t]he severity of the claimant's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of Listing 12.04 and 12.06.” Tr. at 16.

Given the Fourth Circuit's holding in Reid , this court must accept the ALJ's assertion that he considered the combined effect of Plaintiff's impairments, absent evidence to the contrary. However, such evidence exists in this case. Although the ALJ represented that he considered the combined effect of Plaintiff's impairments at earlier steps, he did not specifically maintain he did so in assessing her RFC. See Tr. at 17-21. In discussing the RFC assessment, the ALJ wrote the following:

With the diagnosis of fibromyalgia, I have limited the claimant to a limited range of light work with postural restrictions. I have included a work hazards limitation due to the use of opiate pain medication. I have limited the claimant to simple tasks with somewhat reduced social interaction in accordance with the

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psychological opinions noted above. I have also placed the claimant in a stable work environment secondary to her depression and anxiety.

Tr. at 20-21. He engaged in a method akin to that the Fourth Circuit found unacceptable in Walker , 889 F.2d at 49-50, “discuss[ing] each of” Plaintiff's impairments, but “fail[ing] to analyze the cumulative effect” and fragmentizing her impairments.

An ALJ is required to resolve conflicting evidence in assessing a claimant's RFC. See SSR 96-8p, 1996 WL 374184, at *7 (1996) (“The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.”). The record contained evidence in the form of Plaintiff's assertions and the medical professionals' impressions that fibromyalgia symptoms worsened her mental functioning and obesity placed greater strain her joints and increased her pain. See Tr. at 39, 306, 357, 384, 386. The ALJ's decision does not reflect that he considered this evidence in assessing Plaintiff's RFC. The ALJ also failed to indicate what, if any, functional limitations he attributed to DJD and whether the combined effect of fibromyalgia and DJD imposed greater restrictions than either would alone. See Tr. at 20-21. Given these insufficiencies, the undersigned recommends the court find the ALJ failed to consider the combined effect of Plaintiff's impairments in accordance

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with 20 C.F.R. § 404.1523(c) and § 416.923(c), SSR 96-8p, and the Fourth Circuit's holding in Walker .

2. Evaluation of Subjective Allegations in Assessing RFC

Plaintiff argues the ALJ dismissed her allegations as to symptoms and limitations imposed by fibromyalgia and substituted his judgment for that of the medical providers. [ECF No. 17 at 16]. She maintains the ALJ rejected the state agency consultants' assessment that she would be limited to lifting 10 pounds, as well as her statements, based on an absence of objective evidence. Id. She contends the ALJ failed to consider the subjective nature of fibromyalgia and its impact on her functional abilities. Id. at 20. She claims the ALJ ignored the consistency of her reports as to widespread pain, fatigue, and other fibromyalgia-related symptoms in assessing her RFC. Id. at 21-22.

The Commissioner argues the ALJ appropriately considered effects of fibromyalgia in assessing Plaintiff's RFC. [ECF No. 17 at 16]. She maintains the ALJ complied with the requirements of SSR 12-2p in evaluating fibromyalgia. Id. at 16-17. She contends the ALJ conceded positive findings somewhat supported Plaintiff's subjective symptoms and reported limitations, but concluded the objective evidence was not very compelling and did not confirm that her impairments produced the disabling pain and functional limitations she alleged. Id. at 18-19. She also pointed out the ALJ's reliance on Plaintiff's statement that she was doing “way better” in

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July 2019, her general reports of significant relief with lumbar spine injections, her providers' impressions that her symptoms had improved with medication, and her ADLs. Id. at 19. She claims the ALJ also credited Plaintiff's subjective allegations in including mental restrictions in the RFC assessment. Id. at 20. She maintains the ALJ was not required to adopt any medical opinion in assessing Plaintiff's RFC and that, even if he had erred in failing to include the 10-pound lifting restriction Dr. Collins indicated, such error would be harmless, as he relied on sedentary jobs to meet the burden at step five. Id. at 20-21.

The Social Security Administration provides guidance for how it develops evidence to establish a medically-determinable impairment of fibromyalgia and how it evaluates the impairment in disability claims in SSR 12-2p. Once fibromyalgia is established as a medically-determinable impairment, the adjudicator is to evaluate the intensity, persistence, and limiting effects of the claimant's pain and other symptoms using the same method he would with any other impairment. Compare SSR 12-2p, 2012 WL 3104869, at *5 (2012), with 20 C.F.R. §§ 404.1529(c), 416.929(c).

“[A]n ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill , 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. § 404.1529(b), (c)). “First, the ALJ looks for objective medical evidence showing a condition that

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could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. § 404.1529(b)). If the ALJ concludes the claimant's impairments could reasonably produce the symptoms she alleges, he proceeds to the second step. Id. At the second step, the ALJ is required to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit [her] ability to perform basic work activities.” Id. (citing 20 C.F.R. § 404.1529(c)). He must “evaluate whether the [claimant's] statements are consistent with objective medical evidence and the other evidence.” SSR 16-3p, 2016 WL 1119029, at *6 (2016). His consideration of the claimant's symptoms cannot be “based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled.” Id. at *4; see also Arakas v. Commissioner, Social Security Administration , 983 F.3d 83, 98 (4th Cir. 2020) (“We also reiterate the long-standing law in our circuit that disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms.”). Citing Lewis , 858 F.3d at 866, the Fourth Circuit recently stated in Arakas , 983 F.3d at 96, that the ALJ “‘improperly increased [the claimant's] burden of proof' by effectively requiring her subjective descriptions of her symptoms to be supported by objective medical evidence.”

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In addition to medical evidence, ALJs are to consider other evidence as to the intensity, persistence, and limiting effects of a claimant's symptoms. SSR 16-3p, 2016 WL 1119029, at *5 (2016); 20 C.F.R. §§ 404.1529(c), 416.929(c). “Other evidence that we will consider includes statements from the individual, medical sources, and any other sources that might have information about the individual's symptoms, including agency personnel, as well as the factors set forth in our regulations.” Id. ALJs must consider factors relevant to the claimant's symptoms, including evidence of daily activities; the location, duration, frequency, and intensity of pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of the claimant's medications; any measures the claimant uses or has used to relieve pain or other symptoms; and any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). They are required to determine “whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence.” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4).

The ALJ determined Plaintiff's severe impairments included obesity, fibromyalgia, DJD, anxiety, and depression. Tr. at 14. He found “the claimant's medically determinable impairments could reasonably be expected

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to cause some of the alleged symptoms, ” but her “statements concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Tr. at 18. He wrote: “While the claimant has received medical treatment since her alleged onset date, the medical evidence of record does not reflect any objective abnormalities to suggest that she is incapable of performing the above residual functional capacity assessment.” Id. In discussing fibromyalgia, he cited Dr. Kolehma's November 2018 observations that Plaintiff “sat comfortably in the chair and had no problems getting in or out of the chair and no problems getting on or off the exam table”; “had a normal gait”; “was able to tandem, heel and toe walk without difficulty”; had “some decreased range of motion in the knee and hip”; had no trigger points; and “was negative for tender spots in 11 of 18 areas.” Tr. at 18-19. He noted “the lack of positive objective findings on physical examinations” as contrary to the state agency medical consultant's opinion that Plaintiff was limited to lifting 10 pounds. Tr. at 20. He also wrote:

There are no medical findings of sufficient severity to suggest that the claimant is unable to perform all work activity. There are positive findings that somewhat support the claimant's subjective symptoms and reported limitations. The claimant's medical record is positive for obesity, fibromyalgia, degenerative disc disease, anxiety and depression. While the medical evidence of record establishes the existence of the above-mentioned impairments, the objective evidence is not very impressive, and do not confirm that these impairments are of such severity that

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they could reasonably be expected to produce the degree of debilitating pain and functional limitations alleged.

Id.

The Fourth Circuit recently addressed the particularized detriment of ALJs' reliance on objective evidence to support claimants' subjective reports of symptoms in claims involving fibromyalgia, explaining:

This type of legal error is particularly pronounced in a case involving fibromyalgia-a disease whose “symptoms are entirely subjective, ” with the exception of trigger-point evidence, as described below. Sarchet [ v. Chater ], 78 F.3d [305] 306 [(7th Cir. 1996)]. “[P]hysical examinations [of patients with fibromyalgia] will usually yield normal results-a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions.” Green-Younger v. Barnhart , 335 F.3d 99, 108-09 (2d Cir. 2003) (quoting Lisa v. Sec. of Dep't of Health & Human Servs. , 940 F.2d 40, 45 (2d Cir. 1991); see also Sarchet , 78 F.3d at 307 (“Since swelling of the joints is not a symptom of fibromyalgia, its absence is no more indicative that the patient's fibromyalgia is not disabling than the absence of headache is an indication that the patient's prostate cancer is not advanced.”).

Arakas , 983 F.3d 83 at 96.

As in this case, the Commissioner argued in Arakas that the ALJ did not err because he had considered other evidence. See Arakas , 983 F.3d at 97. Although the court recognized the ALJ had considered other evidence, including Arakas's ADLs, it concluded he had “‘effectively required' objective evidence by placing undue emphasis on Arakas's normal clinical and laboratory results.” Id. (citing Green-Younger , 335 F.3d at 108). It further wrote: “Thus, while the ALJ may have considered other evidence, his opinion

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indicates that the lack of objective medical evidence was his chief, if not definitive, reason for discounting Arakas's complaints. Id. (citing Rogers v. Comm'r of Soc. Sec. , 486 F.3d 234, 248 (6th Cir. 2007) (noting that “the nature of fibromyalgia itself renders . . . overemphasis on objective findings inappropriate”). The court joined the first, second, third, sixth, seventh, and eighth circuits in holding that “ALJs may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” Id.

Here, the ALJ's explanation for his findings, as recited above, shows that the lack of objective medical evidence was his primary reason for discounting Plaintiff's subjective allegations. See Tr. at 18-20. The ALJ cited even less evidence aside from the objective evidence he maintained was contrary to Plaintiff's allegations than did the ALJ in Arakas . While the Commissioner cites Plaintiff's and her pain management providers' impressions that her pain improved with medication and lumbar spine injections, ECF No. 19 at 19, the ALJ did not reference this evidence. See generally Tr. at 17-21. Also, contrary to the Commissioner's assertion, the ALJ did not find that Plaintiff's allegations were inconsistent with her ADLs. He merely summarized her testimony without explaining whether her ADLs supported or contradicted her allegations. See Tr. at 18.

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Although the ALJ's rejection of Dr. Collins's assessment of a 10-pound lifting restriction was harmless to the extent that the ALJ relied on sedentary jobs to meet the Commissioner's burden at step five, his explanation that “the lack of positive objective findings on physical examinations, ” Tr. at 20, was insufficient given the nature of fibromyalgia.

The ALJ's reference to Plaintiff's indication that she was doing “way better” during a treatment visit in July 2019, Tr. at 19, reflects his cherrypicking of the evidence. See Lewis , 858 F.3d at 869 (providing “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.”) (quoting Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010)). He pointed out this singular reference to improvement and ignored Plaintiff's complaints throughout most of the record, her physicians' ongoing efforts to control her pain through various measures, and her providers' observations of decreased ROM of the lumbar spine and knees due to pain, TTP, slowed gait, significant LE edema, and other symptoms that were consistent with her alleged functional limitations. See, e.g. , 317, 421, 428, 433, 445, 449453, 457, 489, 532, 538, 542, 545, 572- 73. The ALJ ignored that, although Plaintiff endorsed 60-90% relief from pain medications, she consistently reported to her doctors that her pain medications, which where prescribed three times a day, provided relief for

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three to five hours at a time. See, e.g. , Tr. at 360, 362, 387, 425, 431, 444. This was consistent with her testimony that the effects of her pain medication wore off between doses. See Tr. at 33-34. He also failed to address her frequent reports of fatigue throughout the record. See, e.g. , Tr. at 287, 306, 323, 528, 534, 545, 553, 572.

Overall, the ALJ's decision fails to reflect his adequate consideration of Plaintiff's subjective allegations in light of the entire record and indicates his inappropriate emphasis on objective findings, particularly given her fibromyalgia diagnosis. Therefore, the undersigned recommends the court find that substantial evidence does not support the ALJ's evaluation of Plaintiff's subjective allegations in assessing her RFC.

III. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.

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IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

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Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

901 Richland Street

Columbia, South Carolina 29201

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn , 474 U.S. 140 (1985); Wright v. Collins , 766 F.2d 841 (4th Cir. 1985); United States v. Schronce , 727 F.2d 91 (4th Cir. 1984).

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Notes:

The Committee on Court Administration and Case Management of the Judicial Conference of the United States has recommended that, due to significant privacy concerns in social security cases, federal courts should refer to claimants only by their first names and last initials.

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Fed.R.Civ.P. 25(d), she is substituted for former Commissioner Andrew Saul as the defendant in this action.

Although Plaintiff alleged an onset date of October 1, 2017 in her application, she subsequently indicated in a work activity report that she had worked until July 20, 2018. Tr. at 212.

The record does not contain a copy of the MRI report. As the recommendation is one for remand, the undersigned suggests Plaintiff complete the record by obtaining a copy of this and any other missing records for the ALJ to review.

The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley , 493 U.S. 521, 530 (1990); see Bowen v. Yuckert , 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).

In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).

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