Rebecca Somogy v. Commissioner of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 16, 2010
No. 09-12067 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00269-CV-J-TEM
REBECCA SOMOGY,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 16, 2010)
Before TJOFLAT, BIRCH and ANDERSON, Circuit Judges.
PER CURIAM:
Rebecca Somogy appeals the district court’s order affirming the Social
Security Commissioner’s (“Commissioner”) denial of disability benefits, 42 U.S.C.
§ 405(g). Because the Administrative Law Judge (“ALJ”) improperly discredited
the residual functional capacity (“RFC”) assessment of Somogy’s treating
physician, we VACATE the judgment of the district court and REMAND to the
district court with instructions to remand the case to the Secretary for
reconsideration of Somogy’s request for benefits.
I. BACKGROUND
Somogy applied for social security disability insurance benefits on 7
December 2004, alleging a disability onset date of 21 May 2002. Administrative
Record (“AR”) at 53, 55-65, 67.1 In her 20 January 2005 disability report, Sogomy
alleged that she was unable to work due to fibromyalgia and restless leg syndrome
(“RLS”). Id. at 66-67. The Commissioner denied both her application and her
motion for reconsideration in April and June 2005, respectively. Id. at 40-41, 45-
46. On appeal from the initial denial of her request for benefits, Somogy stated
that her condition had changed since her original disability report and that she was
experiencing “tingly, burning, and painful” sensations in her legs and hips, “more
frequent attacks,” increasing pain, and “exhaustion 90% of the time.” Id. at 86.
1
The record does not appear to include a copy of Somogy’s original application.
2
Somogy thereafter requested and received a hearing before an ALJ, which was held
on 20 March 2007. Id. at 382-442.
At her hearing, Somogy testified as follows. She was previously employed
as a secretary and administrative assistant at various medical facilities. Id. at 388-
93. She also worked as a cake decorator in 1986 and 1987, but had to quit this job
due to an injury that caused paralysis in two of her fingers. Id. at 393, 419-20.
Somogy sought medical treatment when she began experiencing muscle weakness
“from head to toe” and a constant “flu feeling [that] . . . just hurt everywhere.” Id.
at 399. She suffers from fibromyalgia and RLS and has been unable to work since
2002. Id. at 394-95, 397-98, 402.
Somogy can drive and do housework, including laundry, baking, making her
bed, and dishwashing, however she must take frequent breaks when washing
dishes to sit down, and is in “about three to four days a week.” Id. at 419-21, 430.
She is able to sit for between twenty and thirty minutes, but must stand after that
point because her legs go numb and she experiences pain in her hip. Id. at 402,
420-21. She has never had any epidurals, facet blocks, or steroid injections in her
hip or back, however. Id. at 421. Somogy was prescribed a cane, but had been
using a walker for several weeks because weakness in her right leg was causing her
to fall frequently. Id. 397-98, 424-26. She is able to shop for groceries, with the
3
assistance of her daughter, about three or four times a week. Id. at 423-24. She
can lift a gallon of milk and stand in the check-out line for five to seven,
sometimes ten, minutes, after which her legs get “very weak” and “wobbly.” Id. at
424. The pain caused by grocery shopping is often so severe that she has to spend
the entire day in bed after a trip to the store. Id. at 430-31. Somogy does not visit
family and friends because she “do[esn’t] have the energy to,” and she is not
involved in any social groups, although she attends church “when [she] can” Id. at
426, 428. She is chronically tired and in pain and generally has three “bad days,”
marked by an inability to leave her bed or do any work around the house, for every
one “good” day when she is not in debilitating pain. Id. at 431-33. She does not
have the stamina to perform even an easy sedentary job on a full-time basis due to
her “weakness, tiredness, [and] cramping.” Id. at 429. She feels as though she has
the flu “all the time,” and described her pain as a “six” on a scale of one to ten,
with one being no pain. Id. at 429, 432.
The medical records of Somogy’s primary care physician, Dr. Susan Salehi,
who has treated Somogy since 2000, reflect that Somogy first complained of
“aching all over” in September 2000. Id. at 122. After Somogy reported pain and
tenderness in her right shoulder in April 2002, Dr. Salehi noted that Somogy’s
range of movement was decreased in all directions. Id. at 115. Somogy
4
complained again of pain and aching “all over her joints [and] body” in May 2002.
Id. at 113-14. Dr. Salehi noted during an August 2002 examination that Somogy
was experiencing pain upon palpation of occipital trigger points in her neck and
was suffering from “fibromylagia vs. depression.” Id. at 157. Dr. Salehi noted
“myalgia/fibromyalgia,” indicated by achiness and fatigue, in September and
October 2002, and in December she noted chronic lower back pain, head and chest
congestion, and bilateral ear pain. Id. at 152-55.2 Dr. Salehi’s progress notes
further indicate that Somogy complained during separate visits of pain in her calf
muscle, occasional dizziness, stiffness, and severe tenderness in her jaw.3 Id. at
117-119.
Dr. Salehi referred Somogy to Dr. Mirna Barakat, a rheumatologist, for
treatment of her fibromyalgia, in October 2003. Id. at 168. Dr. Barakat treated
Somogy from 2003 until 2007. See id. at 164-67, 288-96, 380. During this period,
Dr. Barakat diagnosed Somogy with fibromyalgia, fatigue, restless leg pain, sleep
disorder, and bursitis. See id. In particular, Dr. Barakat noted subjective leg
2
Between 2000 and 2002, Somogy complained of numerous ailments, including itchy
eyes, chronic cough, fatigue, sleeplessness, and achy pain. She was prescribed several
medications, including Paxil, Prizide, Atenolol, Premarin, Prometriu, Antivert, Phenergan with
Codein, Marifed DM, Zyrtec, Wellbutrin, Toradol, and Nasacort. Id. at 113-17, 120-23, 152-55,
157.
3
The date stamps on these progress notes are illegible.
5
weakness and parasthesia4 in April 2005, episodic diffuse fatigue and weakness in
October 2005, increased falling and tripping in June 2006, and swelling and giving
way of the right knee in March 2007. Id. at 288, 291, 293-94. Dr. Barakat
prescribed medications, including Flexeril and Celebrex,5 and physical therapy to
treat these conditions. See id. at 164-67, 289-90, 292-95.
Dr. William Choisser, a consulting physician, performed a physical
examination of Somogy on 29 March 2005. Id. at 177. He found that Somogy’s
grip and fine dexterity were “5/5 and equal bilaterally”; she was able to perform
leg raises to thirty degrees on the right and fifty degrees on the left, when both
seated and lying face up; her pulses and reflexes were 5/5 and equal in all
extremities; and there was no major pain, swelling, heat, or redness in or of any
joints or extremities. Id. Dr. Choisser noted that while the range of movement of
the lumbar spine was within normal limits, Somogy had a “mild paravertebral
muscle spasm” along her lumbar spine. Id. Dr. Choisser further found that
although Somogy was able to walk a short distance without the use of an assistive
4
Parasthesia, which often is a symptom of fibromyalgia, is an abnormal sensation,
particularly in the hands and/or feet, that can be described as crawling, prickling, tingling,
burning, itching or numbness.
5
Flexeril is a muscle relaxant that is often used together with physical therapy to treat
muscle pain. Celebrex is a nonsteroidal anti-inflammatory used to treat pain or inflammation
caused by conditions such as arthritis.
6
device, “[h]eel to toe walking [was] impossible.” Id. at 177. He emphasized that
while Somogy could sit, stand, walk, and engage in some occasional lifting, “she
[could not] do this on any predictable basis.” Id. Dr. Choisser diagnosed Somogy
with RLS and progressive fibromyalgia. Id.Somogy saw Dr. Victor Maquera, a neurologist, in May 2005, for treatment
of her subjective leg weakness. During a 12 May 2005 examination, Somogy
reported numbness and tingling along with burning in both lower extremities, and
“constant and unremitting” pain in her right leg, radiating to her right hip. Id. at
221. Somogy explained that she experienced weakness in her legs that caused her
to fall frequently, which resulted in back pain. Id. Dr. Maquera noted a moderate
decrease in sensation in the right and left feet and in the legs from the knees down
as well as diminished ankle reflexes. Id. at 222. Somogy’s stress and tandem gaits
were normal. Id. The following day, Somogy underwent electrodiagnostic testing,
which revealed normal nerve conduction in the bilateral lower extremities. Id. at
230. Dr. Maquera further noted that “H-reflex studies were within normal range.”
Id. Magnetic resonance imaging (“MRI”) of the thoracic spine on 17 May 2005
revealed mild thoracic scoliosis, but “no other significant abnormalities” were
identified. Id. at 220. An MRI of the lumbar spine performed the same day
showed “very mild lumbar scoliosis,” but was otherwise unremarkable. Id. at 219.
7
During an 8 June 2005 examination, Somogy reported difficulty sleeping due to
burning pain in her right leg; “stabbing pain” in her neck, radiating down the right
side of her body; and occasional blurry vision. Id. at 217. Dr. Maquera noted that
Somogy’s neck pain, which was exacerbated by sitting for long periods, was not
typical of the pain generally associated with fibromyalgia. Id. Dr. Maquera further
noted “severe tenderness” upon “very light palpation in the right cervical
paraspinous and trapezious muscle regions with mild spasm” and decreased
sensation in a glove and stocking distribution on Somogy’s left side.6 Id. An MRI
of Somogy’s cervical spine done on 18 June 2005 showed “mild cervical scoliosis,
which may be positional in nature.” Id. at 246.
State agency consultants prepared RFC assessments in April and July 2005.
Id. at 180-216, 232-39. The first RFC form stated that although Somogy would
never be able to climb ramps or stairs, she could: (1) lift twenty pounds
occasionally7 and ten pounds frequently; (2) stand, walk, and sit for a total of six
hours in an eight-hour work day; (3) climb ladders, ropes, or scaffolds
occasionally; (4) balance, stoop, and crouch occasionally; and (4) kneel and crawl
6
Symptoms related to peripheral neuropathy, including pain and numbness, are generally
stronger in the distal hands and feet and are therefore referred to as having a “glove-stocking
distribution.”
7
“Occasionally” was defined on the RFC form as at least one-third, but less than two-
thirds, of the time. Id. at 196, 234.
8
frequently. Id. at 197. The form noted that Somogy had no manipulative,
communicative, or visual limitations, but should “avoid concentrated exposure” to
extreme temperatures, vibrations, and hazards such as machinery and heights. Id.
at 198-99. The second RFC form was similar to the first, except that it stated that
Somogy could stand or walk for two to four, rather than six, hours in an eight-hour
day. Id. at 233. The form also reflected that Somogy’s physical examination was
normal with the exception of mild lumbar scoliosis and decreased sensation in the
right and left feet and legs. Id. It also concluded that Somogy could climb,
balance, stoop, kneel, crouch, and crawl occasionally. Id. at 234.
On 1 June 2006, Dr. Barakat recommended that Somogy undergo another
neurological evaluation after observing that Somogy still showed symptoms of
fibromyalgia and was experiencing increased tripping and falling. Id. at 290-91.
Dr. Barakat described Somogy’s fibromyalgia as “stable” on 27 June 2006, but
noted that Somogy’s RLS symptoms persisted, and recommended that Somogy
“continue past exercise.” Id. at 290. Dr. Barakat referred Somogy to Dr. Maquera
again in October 2006 after Somogy complained of numbness in her feet and legs
accompanied by headaches. Id. at 256.
On 18 October, Dr. Maquera noted that Somogy’s feet become numb if she
sits or is prone for more than five minutes. Id. Somogy also indicated that she was
9
tripping and falling frequently and experiencing “overwhelming” feelings of
fatigue and generalized weakness. Id. Dr. Maquera observed that while Somogy’s
tandem gait was abnormal, she was able to walk heel-to-toe with support. Id. An
MRI of the brain on 21 October was unremarkable and electrodiagnostic tests
performed on 27 October “reveal[ed] a normal nerve conduction of the bilateral
lower extremities,” which Dr. Maquera noted was “unchanged” from the
diagnostic nerve conduction studies performed in May 2005. Id. at 266. Dr.
Maquera’s treatment notes from 31 October reflect that Somogy was experiencing
almost daily headaches, numbness in her feet, and pain in her right knee, radiating
up the front of her thigh. Id. at 254. Somogy reported that both knees occasionally
gave way, but that the pain was confined to her right knee and unaccompanied by
any swelling or redness. Id. Dr. Barakat noted during a 15 December 2006
examination that Somogy’s fibromyalgia appeared to be “stable” and
recommended that she exercise and continue to walk and stretch. Id. at 289.
Dr. Maquera completed a physical RFC assessment on 13 February 2007.
See id. at 268-72. With respect to Somogy’s ability to deal with work-related
stress, he stated that he “suspect[ed] moderate limitation,” though the degree of her
limitation was “unknown.” Id. at 270. He concluded that she was able to sit
continuously and stand intermittently for more than two hours, but noted that these
10
findings were based on Somogy’s subjective complaints of pain and knee
weakness and not on objective testing. Id. He further concluded that Somogy
would need to be able to (1) walk for five minutes every hour during an eight hour
day, (2) shift positions at will from sitting, standing, or walking, and (3) take
unscheduled breaks of up to fifteen minutes at least one to two times in an eight
hour day. Id. at 270. In addition to these limitations, Dr. Maquera found that
Somogy could lift fewer than ten pounds frequently and ten pounds only
occasionally and could never lift twenty pounds or more. Id. at 271. Although
Somogy was not significantly limited in her ability to do repetitive reaching,
handling, or fingering, Dr. Maquera concluded that Somogy’s impairments were
likely to produce “good days and bad days” and that she was likely to miss more
than three days of work in any given month. Id. at 271-72. Dr. Maquera
emphasized that his RFC findings were based on “significant subjective
symptomology” and that Somogy’s neurological exam was normal. Id. at 272.
Dr. Choisser examined Somogy again on 7 March 2007 and found that
Somogy: (1) had a “contracture deformity in the proximal joint of each of the last
[two] fingers of the right hand”; (2) was able to raise both legs thirty to forty
degrees; (3) had a normal gait with a fall to the right on heel to toe walking; and
(4) was able to stand “weakly” on her heels and toes, squat fifty percent of the way
11
to the floor, and stand up without assistance. Id. at 274-75. He concluded that
Somogy suffered from “chronic and severe pain from fibromylagia which is
exacerbated by ordinary activities such as sitting, standing, and walking.” Id.That same day, Dr. Choisser completed an RFC questionnaire, in which he
diagnosed Somogy with fibromylagia, knee pain, “possible torn cartilage,” RLS,
and panic disorder. Id. at 276-78. He noted that Somogy: (1) suffered pain when
flexing her knee; (2) experienced drowsiness and memory loss as a result of her
RLS medication; (3) was “moderate[ly] limit[ed]” in her ability to deal with
work-related stress; (4) could sit or stand continuously for thirty minutes, but could
sit, stand, or walk only for fewer than two hours total in an eight-hour day;
(5) would need to “walk around” for ten minutes every thirty minutes over the
course of an eight-hour day; (6) required the use of a hand-held cane; (7) could lift
fewer than ten pounds occasionally, but could never lift anything weighing ten
pounds or more; and (8) was able to use her right hand and fingers only five
percent of an eight hour workday. Id. at 277-80. He indicated that Somogy would
not have “good days and bad days” because her days would be “mostly bad,” and
that she was likely to miss more than three days of work a month because of her
impairment. Id. at 280.
On 8 March 2007, Dr. Salehi also prepared an RFC Questionnaire, in which
12
she stated that she saw Somogy every three months for fibromyalgia, characterized
by constant “severe fatigue, body pain, [and] weakness.” Id. at 282-83. Dr. Salehi
noted that, as a result of this condition, Somogy also suffered from depression,
anxiety, and “somatoform disorder”8 and was “severe[ly] limit[ed]” in her ability
to cope with work-related stress. Id. at 283-84. Dr. Salehi determined that
Somogy was able to sit for only thirty minutes at a time and to stand for only ten
minutes at a time and that she had to get up and walk every thirty minutes for a
five-minute interval. Id. at 284. Dr. Salehi further concluded that Somogy:
(1) would have “significant limitations doing repetitive reaching, handling, or
fingering”; (2) would be able to use her hands, fingers, and arms during zero
percent of a normal work day; (3) was sensitive to “temperature [and] noise”; and
(4) was likely to be absent from work more than three times per month due to her
impairments. Id. at 285-86.
On 9 March 2007, Dr. Barakat completed a physical RFC questionnaire, in
which she concluded that Somogy suffered from fibromyalgia, indicated by
“tender points” along her spine and on her elbows, knee, hips, and shoulders. Id. at
298. Dr. Barakat stated that Somogy’s pain was severe enough to interfere
“frequently” or “constantly” with her attention and concentration and that she had a
8
A “somatoform disorder” is a mental disorder characterized by physical symptoms that
mimic physical disease or injury for which there is no identifiable physical cause.
13
“marked limitation” in her ability to handle work-related stress. Id. at 299-300.
Dr. Barakat further found that Somogy: (1) was able to sit for between five and ten
minutes and stand for ten minutes, and would need to walk every ten minutes for
five to ten minutes at a time; (2) would need to be able to shift positions at will; (3)
would need to take unscheduled breaks of at least ten or more minutes every fifteen
to thirty minutes; (4) would need to use a walker to engage in “occasional
standing/walking”; (5) would need to have her legs elevated 100% of an eight hour
day; (6) was only occasionally able to lift fewer than ten pounds; (7) had
“significant limitations in doing repetitive reaching, handling, or fingering” and
was able to use her right hand for repetitive motion only ten percent of the day;
(8) would experience “good days and bad days”; and (10) would likely be absent
from work more than three times per month because of her impairments. Id. at
298-302 (emphasis added). Dr. Barakat concluded that, based on these limitations,
Somogy was “unable to work.” Id. at 300.
In addition to Somogy’s medical records, the ALJ also considered the
testimony of a vocational expert (“VE”), who testified that an individual of
Somogy’s age, education, and other vocational factors, who had no manipulative
limitations and who could: (1) sit, stand, and walk for at least six hours in a normal
day; (2) lift twenty pounds up to one-third of the work day and ten pounds less
14
frequently; and (3) bend, stoop, crouch, crawl, kneel, and climb occasionally,
would be able to perform the sedentary work that Somogy had performed in the
past. Id. at 436-38.
The ALJ denied disability benefits after concluding that, while Somogy had
several severe impairments, including, inter alia, a history of fibromyalgia, RLS,
degenerative disc disease, and lumbar scoliosis, she did not have an impairment or
combination of impairments that meets or equals one of the impairments listed in
20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526. He further determined,
“[a]fter careful consideration of the entire record,” that Somogy “has the residual
functional capacity to li[f]t and carry up to 20 pounds occasionally and up to 10
pounds frequently, sit [for] up to 6 hours in an 8 hour workday, stand/walk for up
to 6 hours in an 8 hour workday, with occasional bending, stooping, crouching,
crawling, kneeling and climbing, [and] work in a temperature controlled
environment.” Id. at 15-16. He also found that although Somogy required a hand-
held cane when walking, she “has no manipulative, communicative or mental
impairments.” Id. at 16. The ALJ concluded that Somogy was able to perform her
past relevant work, which did not require her to engage “work-related activities
precluded by [her] credible residual functional capacity.” Id. at 21. In making this
determination, the ALJ found that Somogy’s testimony regarding the intensity and
15
limiting effects of her fibromyalgia were “not entirely credible,” and accorded little
or no weight to the RFC determinations of Drs. Maquera, Choisser, Barakat, and
Salehi on the grounds that they were based on Somogy’s subjective complaints, not
supported by their clinical findings, and/or inconsistent with the medical record in
general.9 Id. at 20-21.
After the Appeals Council denied Somogy’s request for review, Somogy
appealed to the district court, arguing that the ALJ erred in: (1) discrediting her
testimony regarding the frequency of her headaches10 and (2) discounting the
opinions of Drs. Salehi, Barakat, and Choisser in determining her RFC. See id. at
4-6; R1-1; R1-13 at 9-14. The SSA and Somogy both consented to a ruling by a
magistrate judge, who affirmed the ALJ’s denial of benefits. R1-7, 16.
II. DISCUSSION
We review a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and whether the correct legal
standards were applied. See Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir.
9
The ALJ did not identify what medical evidence he was relying on in determining
Somogy’s RFC.
10
Somogy has abandoned this claim by failing to raise it in her initial brief on appeal.
See North Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 n. 4 (11th Cir. 2008)
(noting that “issues not raised on appeal are abandoned”).
16
1997). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Id.; see
Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986) (per curiam) (stating
that while the ALJ’s decision need not be supported by a preponderance of the
evidence, “it cannot stand with a ‘mere scintilla’ of support”). On appeal, Somogy
argues that neither the ALJ’s decision to discount the opinions of Drs. Barakat and
Choisser nor the ALJ’s RFC determination were supported by substantial evidence.
When evaluating an applicant’s claim for social security disability benefits,
the ALJ must give “substantial weight” to the opinion of the applicant’s treating
physician “unless good cause exists for not heeding the treating physician’s
diagnosis.” Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991) (emphasis
added); see also Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985) (per
curiam) (“[I]t is not only legally relevant but unquestionably logical that the
opinions, diagnosis, and medical evidence of a treating physician whose familiarity
with the patient’s injuries, course of treatment, and responses over a considerable
length of time, should be given considerable weight.” (quotation marks and citation
omitted)); see also Donato v. Sec’y of Dep’t of Health and Human Services, 721
F.2d 414, 419 (2d Cir. 1983) (“The ALJ’s apparent rejection of the treating
physicians’ medical conclusions must be evaluated under the rule that the expert
17
opinions of a treating physician as to existence of a disability are binding on the
fact finder unless contradicted by substantial evidence to the contrary.” (quotation
marks, alterations, and citation omitted)).
We have held that “good cause” exists where: (1) the treating physician’s
opinion was not bolstered by the evidence; (2) the evidence supported a contrary
finding; or (3) the treating physician’s opinion was conclusory or inconsistent with
the doctor’s own medical records. Lewis, 125 F.3d at 1440 (quotation marks and
citations omitted). “[E]ven if the evidence preponderates against the Secretary’s
decision, we must affirm if substantial evidence supports the disability
determination.” Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir. 1984) (per
curiam). If the ALJ disregards or accords less weight to the opinion of a treating
physician, the ALJ must clearly articulate his reasons, and the failure to do so is
reversible error. Lewis, 125 F.3d at 1440.
The ALJ accorded little weight to Dr. Barakat’s RFC assessment on the
grounds that it was based on Somogy’s subjective complaints rather than objective
medical evidence and because “[Somogy] may not have seen Dr. Barakat from
October 2003 until March of 2007 when the RFC questionnaire was completed.”
AR at 20. We first note that the ALJ’s latter determination is flatly contradicted by
the record, which reflects that Somogy visited Dr. Barakat at least ten times
18
between October 2003 and March 2007. See id. at 164-66, 287-88, 290-91, 293-
95. To the extent that the ALJ’s decision was based on this clearly erroneous
finding of fact, it is not supported by substantial evidence.
We also find unpersuasive the ALJ’s only other stated reason for
discounting Dr. Barakat’s RFC, namely, that the limitations imposed therein “are
based primarily upon [Somogy’s] subjective complaints.” Id. at 20. We, along
with several other courts, have recognized that fibromyalgia “often lacks medical
or laboratory signs, and is generally diagnosed mostly on an individual’s described
symptoms,” and that the “hallmark” of fibromyalgia is therefore “a lack of
objective evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)
(per curiam); see also Rogers v. Comm’r of Social Sec., 486 F.3d 234, 243 (6th
Cir. 2007) (stating that “fibromyalgia patients present no objectively alarming
signs”); Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (explaining
that “there are no objective tests which can conclusively confirm [fibromyalgia]”
(quotation marks and citation omitted)); Sarchet v. Chater, 78 F.3d 305, 306 (7th
Cir. 1996) (noting that “[t]here are no laboratory tests for the presence or severity
of fibromyalgia”). 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
19
treating physician’s opinion as to the claimant’s functional limitations.11 See
Green-Younger, 335 F.3d at 105-08 (holding that because fibromyalgia is “a
disease that eludes [objective] measurement,” ALJ improperly discredited treating
physician’s disability determination based upon lack of objective evidence).
Given 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. See id. at 107. In this case, the record
shows that Somogy consistently reported symptoms of fibromyalgia, including,
inter alia, chronic muscle pain, severe fatigue, pain upon palpation of tender points,
insomnia, jaw pain/tenderness, numbness in the legs and feet, dizziness, and
depression, both before and after diagnosis, and that Somogy’s physicians
consistently noted and credited these complaints. Other than a lack of objective
medical findings, there is nothing in the record to suggest that Somogy did not
suffer the degree of pain she reported or that her doctors should have disbelieved
11
We note, moreover, that contrary to the ALJ’s assertion that “no objective findings
fully consistent with fibromyalgia such as . . . diffuse muscle and joint pain, trigger points, etc.”
had been made, Dr. Barakat’s notes include clinical findings of “episodic diffuse fatigue” and
her RFC states that Somogy’s impairment is indicated by “tender points” in the paraspinals,
elbows, knee, hips, and shoulders. AR at 298. Although the SSA emphasizes that “tender
points” were not noted earlier in Dr. Barakat’s records, we fail to see how this undermines Dr.
Barakat’s RFC assessment, especially given that this clinical finding is consistent with Drs.
Salehi’s and Maquera’s treatment notes, which show, respectively, that Somogy experienced
pain upon “palpation of occipital trigger points” in 2002 and “severe tenderness” upon “very
light palpation in the right Cervical paraspinous and Trapezious muscle regions with mild
spasm” in 2005. Id. at 157, 217.
20
her complaints. See, e.g., Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994) (ALJ’s
finding that claimant’s fatigue did not significantly affect his RFC was not
supported by substantial evidence where “examining physicians’ reports, over a
period of more than 18 months, consistently noted (and credited) claimant’s
complaints of persistent fatigue” and the record contained no “meaningful evidence
to support a finding that claimant did not suffer from a significant level of fatigue
on a regular basis”). As we have already explained, however, “the nature of
fibromyalgia itself renders . . . over-emphasis upon objective findings
inappropriate.” Rogers, 486 F.3d at 248; see also Green-Younger, 335 F.3d at
108-09 (lack of physical abnormalities did not undercut claimant’s complaints of
pain since physical examinations of fibromyalgia patients “will usually yield
normal results”).
Rather, the credibility of Somogy’s complaints of disabling pain are
bolstered by evidence that she made numerous visits to her doctors over the course
of several years, underwent numerous diagnostic tests, and was prescribed
numerous medications.12 See Rogers, 486 F.3d at 248 (ALJ erred in discrediting
12
Somogy’s complaints of disabling pain are also supported by her testimony regarding
her daily activities. Although Somogy testified that she was able to do laundry, shop for
groceries, bake, and do other chores around the house, she also testified that these activities only
could be done on her “good days.” On her “bad days,” of which she had three for every one
“good day,” she was unable to leave her bed because of her debilitating pain. See Benecke v.
Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (ALJ’s finding that claimant, who could perform
certain daily activities, testified incredibly about the severity of her fibromyalgia, was not
21
claimant’s complaints of pain where ALJ “focus[ed] on purely objective evidence”
and failed “to discuss or consider the lengthy and frequent course of medical
treatment or the nature and extent of that treatment, the numerous medications
Rogers has been prescribed, the reasons for which they were prescribed, or the side
effects Rogers testified she experiences from those medications); see also Kelley v.
Callahan, 133 F.3d 583, 589 (8th Cir. 1998) (ALJ erred in discrediting claimant’s
allegations of disabling pain where claimant made “numerous visits to doctors,”
was prescribed many different medications, “availed herself of many pain
treatment modalities,” and underwent “many diagnostic tests, including X-rays, CT
scans, DNA tests, MRIs, and blood work”). The fact that Dr. Barakat relied on
Somogy’s complaints, which the ALJ discredited without adequate reason, in no
way renders her opinion unreliable and thus cannot constitute substantial evidence
to support the ALJ’s decision.13 See Green-Younger, 335 F.3d at 107.
supported by substantial evidence because “the mere fact that a plaintiff has carried on certain
daily activities does not in any way detract from her credibility as to her overall disability”
(quotation marks, alteration, and citation omitted)); see also Brosnahan v. Barnhart, 336 F.3d
671, 677 (8th Cir. 2003) (“[I]n the context of a fibromyalgia case, . . . the ability to engage in
activities such as cooking, cleaning, and hobbies, does not constitute substantial evidence of the
ability to engage in substantial gainful activity.”)
13
Although Dr. Barakat was Somogy’s treating physician for well over three years and,
as a rheumatologist, is a specialist in the diagnosis and treatment of rheumatic diseases,
including fibromyalgia, the ALJ does not appear to have considered these important factors in
deciding how much weight to accord her opinion. See 20 C.F.R. §§ 404.1527(d)(2), (5); see also
Benecke, 379 F.3d at 594 n.4 (noting that “[s]pecialized knowledge may be particularly
important with respect to a disease such as fibromyalgia that is poorly understood within much
of the medical community,” and thus rheumatologists’ opinions were entitled to greater weight
22
Finally, the ALJ’s decision was also unsupported by substantial evidence to
the extent that it was based on a finding that Dr. Barakat’s RFC assessment was
inconsistent with the medical record in general. Dr. Barakat’s RFC assessment is,
as previously discussed, consistent with Somogy’s repeated reports of debilitating
pain as well as with the other physicians’ treatment notes, which indicate, inter
alia, a limited range of motion, pain upon palpation of tender points, episodic
diffuse fatigue, decreased sensation in the feet and legs, diminished ankle reflexes,
mild thoracic, lumbar, and cervical scoliosis, abnormal tandem gait, and an
inability to heel-to-toe walk. Based on the record before us, we cannot conclude
that Dr. Barakat’s RFC determination is “contradicted by substantial evidence to
the contrary.”14 See Donato, 721 F.2d at 419. Because the ALJ failed to articulate
good cause for discrediting Dr. Barakat’s RFC determination and we remand on
that basis, we need go no further.
III. CONCLUSION
Somogy appeals the Commissioner’s denial of social security benefits.
than those of other physicians); cf. Elder v. Astrue, 529 F.3d 408, 416 (7th Cir. 2008) (ALJ did
not err in declining to accord controlling or even substantial weight to opinion of physician who
was not a specialist in fibromyalgia).
14
Even if we were to conclude that the ALJ properly accorded no weight to Dr.
Choisser’s RFC assessment, the ALJ’s improper rejection of Dr. Barakat’s opinion is sufficient
to warrant remand since, as Somogy’s treating physician, her opinion is due “substantial” or
“considerable” weight.
23
Based on the foregoing, we VACATE the judgment of the district court and
REMAND to the district court with instructions to remand the case to the
Commissioner for further findings and/or proceedings consistent with this opinion.
24