Esin Arakas v. Commissioner, Social Security ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1540
ESIN E. ARAKAS,
Plaintiff - Appellant,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of South Carolina, at Florence.
Timothy M. Cain, District Judge. (4:17−cv−02338−TMC)
Submitted: September 11, 2020 Decided: December 14, 2020
Before GREGORY, Chief Circuit Judge, and WYNN and HARRIS, Circuit Judges.
Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which
Chief Judge Gregory and Judge Harris joined.
ON BRIEF: Robertson H. Wendt, Jr., FINKEL LAW FIRM, LLC, North Charleston,
South Carolina; Sarah H. Bohr, BOHR & HARRINGTON, LLC, Atlantic Beach, Florida,
for Appellant. Eric Kressman, Regional Chief Counsel, Victor Pane, Supervisory
Attorney, Annie Kernicky, Special Assistant United States Attorney, Corey Fazekas,
Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia,
Pennsylvania; Sherry A. Lydon, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
2
WYNN, Circuit Judge:
Plaintiff Esin Arakas appeals from the district court’s order affirming the Social
Security Administration’s denial of her application for disability insurance benefits. Arakas
argues that the administrative law judge (“ALJ”) made several errors in discrediting her
subjective complaints of pain and fatigue and in according little weight to the opinion of
her treating physician.
We agree that the ALJ erred and conclude, based on our review of the record, that
Arakas was legally disabled during the relevant period. Accordingly, we reverse and
remand for a calculation of disability benefits.
I.
On April 23, 2010, Arakas filed an application for Social Security Disability
Insurance (“SSDI”) benefits, alleging disability based on various conditions including
fibromyalgia, carpal tunnel syndrome, and degenerative disc disease. After her claim was
denied initially in 2010 and upon reconsideration in 2011, she requested a hearing, which
was held on June 15, 2012 before an ALJ. Arakas originally alleged that her disability
began on November 11, 1996, but she later amended the onset date to January 1, 2010.
On August 28, 2012, the ALJ denied Arakas’s claim. The Social Security
Administration (“SSA”)’s Appeals Council summarily denied review. Arakas then filed
suit in the United States District Court for the District of South Carolina pursuant to 42
U.S.C. § 405(g).
On September 23, 2015, the district court reversed and remanded the case,
instructing the Commissioner to make findings of fact regarding an opinion letter submitted
3
to the Appeals Council by Dr. Frank Harper, Arakas’s long-time treating physician, in
support of her application. See Arakas v. Colvin, No. 4:14-CV-457-TER, 2015 WL
5602577, at *6–7 (D.S.C. Sept. 23, 2015). Accordingly, the Appeals Council ordered a
remand, and another ALJ held a second hearing on February 24, 2017. That ALJ again
denied Arakas’s claim.
On August 31, 2017, Arakas commenced the instant suit in the District of South
Carolina. On January 24, 2019, a magistrate judge issued a Report and Recommendation,
which recommended affirming the Commissioner’s decision.
On February 6, 2019, Arakas filed objections to the magistrate judge’s conclusions
that the ALJ’s findings regarding her fibromyalgia and subjective complaints were made
through proper analysis and supported by substantial evidence. On March 21, 2019, the
District Court adopted the magistrate judge’s Report and Recommendation and affirmed
the Commissioner’s decision. See Arakas v. Berryhill, No. 4:17-CV-02338-TMC, 2019
WL 1292458, at *5 (D.S.C. Mar. 21, 2019). Arakas timely appealed.
A.
The Social Security Act 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 a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To
determine whether a claimant is disabled, ALJs use the “five-step sequential evaluation
process” set forth in 20 C.F.R. § 404.1520(a)(4).
4
At step 1, the ALJ must determine whether the claimant has been working. 20 C.F.R.
§ 404.1520(a)(4). Step 2 asks whether the claimant’s medically determinable impairments
meet the regulations’ severity and duration requirements. If the claimant has been working,
or if the claimant’s impairments do not meet the severity and duration requirements, the
ALJ must find the claimant not disabled. Id. Otherwise, the ALJ proceeds to step 3—
determining whether any of the claimant’s impairments, independently or in combination,
meets or equals an impairment listed in the regulations, in terms of severity. If any of the
claimant’s impairments matches a listed impairment, the claimant is disabled. Id.
If unable to make a conclusive determination at the end of step 3, the ALJ must then
assess the claimant’s Residual Functional Capacity, which is the most work-related activity
the claimant can do despite all of her medically determinable impairments and the
limitations they cause. See Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015); 20 C.F.R.
§ 404.1545(a). To assess the claimant’s Residual Functional Capacity, the ALJ must first
identify the claimant’s “functional limitations or restrictions” and assess the claimant’s
“ability to do sustained work-related” activities “on a regular and continuing basis”—i.e.,
“8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL
374184, at *1 (July 2, 1996). The ALJ may then express the claimant’s Residual Functional
Capacity “in terms of the exertional levels of work[:] sedentary, light, medium, heavy, and
very heavy.” Id.
After the Residual Functional Capacity assessment, the ALJ proceeds to step 4,
which asks whether the claimant can still perform past relevant work despite the limitations
5
identified. 20 C.F.R. § 404.1520(a)(4). If the claimant is capable of doing so, she is not
disabled. Id. Otherwise, the ALJ proceeds to step 5.
At this final step, the ALJ must determine whether the claimant can perform other
work considering her Residual Functional Capacity, age, education, and work experience.
Id. Here, the ALJ typically relies on a vocational expert’s testimony. Mascio, 780 F.3d at
635. If able to perform other work, the claimant is not disabled. If unable, the claimant is
disabled. 20 C.F.R. § 404.1520(a)(4).
The burden of proof lies with the claimant during the first four steps but shifts to the
Commissioner at step 5. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017).
B.
Arakas was 50 years old when she first applied for disability insurance benefits in
2010. She has a high school degree, and she completed specialized job training in real
estate sales in 2005. Between 1997 and 2009, Arakas worked full-time as a dining room
manager at a restaurant. She has also worked briefly as a real estate salesperson and a
caterer. Due to her alleged disability, Arakas stopped working full-time as of January 1,
2010, although she performed some part-time work for a catering company in 2010 and as
a cashier at a restaurant in 2017.
1.
For many years, Arakas has suffered from several medical conditions that limit her
ability to perform gainful work activity. The most significant is fibromyalgia, “a disorder
of unknown cause” characterized by “chronic widespread soft-tissue pain” particularly in
“the neck, shoulders, back, and hips, which is aggravated by use of the affected muscles”
6
and “accompanied by weakness, fatigue, and sleep disturbances.” Stedman’s Medical
Dictionary 331870 (2014). Fibromyalgia “symptoms are entirely subjective. There are no
laboratory tests for the presence or severity of fibromyalgia.” Sarchet v. Chater, 78 F.3d
305, 306 (7th Cir. 1996).
Dr. Harper, a rheumatologist, treated Arakas for her fibromyalgia and other pain-
causing conditions from November 11, 1996 to February 24, 2017. In 1996, Dr. Harper
diagnosed her with fibromyalgia, based on his findings of “exquisitely tender trigger
points” throughout her neck and shoulder muscles, hips, knees, and upper, mid, and lower
back—“in accordance with the diagnostic criteria of the American College of
Rheumatology.” A.R. 357–58, 502. 1 He found no other abnormalities, such as muscle
weakness, abnormal reflexes, or limited range of motion—a finding consistent with
fibromyalgia.
Dr. Harper’s treatment notes indicate that since 1996, Arakas has suffered from
chronic, diffuse myalgias (muscle pain), stiffness, and fatigue—particularly in her neck,
back, hips, and legs—with waxing and waning severity. He observed that physical exertion
and lack of sleep aggravated her symptoms. He also consistently noted that she showed a
full range of motion of the joints and no signs of active joint inflammation, both of which
are typical of fibromyalgia. Over the years, Dr. Harper prescribed physical therapy and
various medications for Arakas’s fibromyalgia, including antidepressants that help control
neuropathic pain (imipramine and Cymbalta) and narcotic painkillers (Darvocet and
1
Citations to “A.R. __” refer to the administrative record in this case.
7
Lorcet/Lortab). He also provided tender-point injections and referred her for a cervical
epidural block when her pain symptoms were severe.
For many years, Arakas has also suffered from degenerative disc disease in her
cervical spine, which has caused persistent and often severe neck and shoulder pain. She
was diagnosed with the condition in 2009 based on an MRI, which showed hypolordosis
(loss of the normal curve) of the cervical spine, bulging discs, and mild right foraminal
narrowing (tightening or narrowing of the small openings along the spine that nerves pass
through). Dr. Charles Jervey, a neurologist who examined Arakas after Dr. Harper’s
referral, found tenderness in her neck and considerable tightness of the right posterolateral
muscles, as well as signs of cervical dystonia (muscle spasm). Over the years, Dr. Harper
also documented severe pain, muscle spasms, and tenderness in Arakas’s neck and
shoulder muscles caused by degenerative disc disease. According to Arakas, medications
offered minimal relief, and daily activities tended to aggravate the pain.
In 2007, Arakas was diagnosed with carpal tunnel syndrome in both hands—more
severe in the right (her dominant hand)—after an electrodiagnostic study. She complained
of stiffness, pain, swelling, and numbness in her right hand, and stated that she could not,
at times, bend her fingers enough to type on the computer. Dr. David Everman, who made
the diagnosis, injected her right carpal tunnel. In February 2015, Dr. Harper also
documented Arakas’s carpal tunnel syndrome symptoms and prescribed regular use of
wrist splints. Sometime between 2010 and 2012, Arakas also developed osteoarthritis in
her extremities, which has exacerbated the pain in her hands.
8
While fibromyalgia, degenerative disc disease, and carpal tunnel syndrome have
been the primary sources of Arakas’s symptoms, she has also suffered from other pain-
causing conditions such as bursitis in her right shoulder and internal knee derangement. 2
2.
During the course of Arakas’s SSA proceedings, Dr. Harper provided three opinion
letters in support of her application. In June 2012, he submitted an opinion letter to the
agency, explaining that Arakas had been “under [his] care for many years carrying the
diagnosis of fibromyalgia syndrome.” A.R. 502. Based on his observations and findings,
he opined that Arakas had been “unable to sustain full-time work activity of 8 hours per
day, 5 days a week . . . since January 2010.” Id.
After an ALJ denied Arakas’s claim in August 2012, Dr. Harper provided another
opinion letter in November 2012 in support of her appeal. He emphasized that fibromyalgia
typically did not produce laboratory abnormalities, disagreeing with the ALJ’s reliance on
the lack thereof. He also explained that degenerative disc disease and carpal tunnel
syndrome were “comorbid conditions which aggravate[d] long-standing fibromyalgia” and
that Arakas’s cervical MRI showed “clear evidence of chronic cervical spasm . . .
associated with chronic pain that ha[d] been so disabling for the patient.” A.R. 503. In
addition, he noted that fibromyalgia was associated with chronic cognitive dysfunction and
that prescription medications required for treatment also impaired her concentration—both
2
The administrative record contains Arakas’s treatment records from other medical
providers. We do not discuss those records here as they mostly concern medical issues
unrelated to Arakas’s alleged disability.
9
of which prevented her from sustaining an 8-hour workday. Based on his observations and
medical findings, Dr. Harper again opined that despite many attempts at intervention,
Arakas had been unable to “sustain work even at a light exertional level full time since
January of 2010.” Id.
Finally, in 2017, Dr. Harper submitted an opinion letter in support of Arakas’s
second ALJ hearing. He again described the chronic pain and fatigue caused by Arakas’s
fibromyalgia and stressed her inability to sustain work activity.
3.
As part of SSA’s disability determination process, multiple state agency consultants
provided assessments of Arakas’s physical and mental limitations. On December 2, 2010,
Dr. William Cain, a non-examining medical consultant, evaluated Arakas’s physical
Residual Functional Capacity based on his review of her medical records available at the
time. He concluded she had “the required findings for fibromyalgia” but could still perform
the following functions: lifting 20 pounds occasionally and 10 pounds frequently; standing,
walking, or sitting for 6 hours in an 8-hour workday; pushing or pulling with no limits;
occasionally stooping, kneeling, crouching, crawling, or climbing ramps or stairs; never
climbing ladders, ropes, or scaffolds; and frequently balancing. A.R. 410–13. Upon
reconsideration in March 2011, Dr. Tom Brown, another non-examining medical
consultant, concurred with Dr. Cain’s conclusions.
In 2010 and 2011, respectively, state agency consultants Jonathan Simons, Ph.D.,
and Kathleen Broughan, Ph.D., assessed Arakas’s psychological condition and limitations.
Each psychologist found that Arakas suffered from non-severe impairments, including
10
mild depression, which would not affect her ability to work. Notably, the evaluations also
suggested that chronic pain and fatigue produced by fibromyalgia could be causing
Arakas’s depression and her problems with attention and concentration, and that her
fibromyalgia might interfere with her ability to work full-time.
4.
Arakas’s testimony at her two ALJ hearings offers additional insight as to the
severity, persistence, and limiting effects of her fibromyalgia and other medical conditions.
At her first ALJ hearing in 2012, Arakas testified that she suffered from severe neck
pain and could not sleep without a neck brace. She detailed the constant pain she
experienced in her neck, shoulders, legs, hips, feet, ankles, and knees, and described the
pain in her lower body as an “extreme deep burn”—as if someone was sticking a searing
iron down in her bone. A.R. 52. Lifting, writing, and sitting in one position for 45 minutes
or longer aggravated the pain. She reported that the heaviest amount of weight she could
lift was a gallon of milk. She had difficulty buttoning her blouse or picking up a coin or a
paper clip from a table, and when her pain symptoms became aggravated, she could not
even lift a gallon of milk or write her name with a pen. She wore a wrist brace on her right
hand at all times due to the pain.
Arakas further testified that her pain waxed and waned, but that she experienced
periods of flare-ups that could recur on and off for at least half a month, with each flare-up
lasting up to a week. During flare-ups, the pain was bad enough to miss work, and she had
trouble concentrating due to brain fog. She had tried different medications but did not react
well to some, including Lortab. Although she had to take Lortab at times to control her
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severe pain, the side effects made it difficult to stay alert and made her groggy. She did not
experience any significant improvement from treatment.
Finally, Arakas testified about how her symptoms limited her ability to perform
daily activities. Although she tried to do housework whenever possible and would dust the
house if feeling up to it, she relied heavily on her daughter, who lived with her. And while
she could go grocery shopping once a week if her symptoms were mild, she did not cook
much, as standing and cutting were difficult. She attended church once a week, but sitting
for 45 minutes was very difficult at times. She tried to walk in the mornings, maybe twice
a week if possible, but afterward, she would be “done for the rest of the day.” A.R. 59.
Arakas again testified at the second ALJ hearing in 2017. She relayed that in the
few months prior to the hearing, she had been helping out at her sister-in-law’s restaurant
as a cashier for four hours or more per week. While working at the restaurant, she had
trouble using her right hand, and she had to wear a wrist splint and be very slow because
she could not feel the money. She was unable to work full-time due to pain and
overwhelming fatigue. Her symptoms had worsened since the 2012 hearing.
Arakas testified that she experienced pain all over, including in her thighs, feet,
back, neck, and right hand, and that she had trouble going up and down stairs. She had
difficulty sitting and could remain standing for two hours at most. She took Ibuprofen for
pain, as narcotic painkillers caused poor concentration and grogginess. She could take care
of personal needs, such as showering and dressing, but had to cut her hair because drying
it was too difficult. As for household tasks, she had “learned to let go [of] a lot of things”
and her ability to do chores depended on her symptoms. A.R. 533. Mopping and vacuuming
12
were difficult. She tried to get up early and go for a walk as part of her therapy, but she had
to turn around and go home at times due to burning in her legs and fatigue. After noon, she
could hardly do anything due to her symptoms.
C.
After reviewing the evidence in the record, the ALJ who presided over the 2017
hearing concluded that Arakas was not disabled during the relevant period (January 1, 2010
to December 31, 2014) and denied her claim for disability insurance benefits. The ALJ
found at steps 1 and 2 that Arakas did not engage in substantial work activity during the
relevant period, and that she suffered from the severe medical impairments of fibromyalgia
and degenerative disc disease. At step 3, the ALJ determined that none of Arakas’s
impairments met or equaled one of the impairments listed in the SSA regulations.
The ALJ then proceeded to assess Arakas’s Residual Functional Capacity. He
determined that despite her impairments, she retained the ability to perform light work 3
with the following restrictions: no climbing ladders or scaffolds; occasional stooping,
kneeling, crouching, crawling, and climbing ramps or stairs; frequent balancing; and no
exposure to work hazards. In reaching this conclusion, the ALJ found that Arakas’s
3
“Light work” is defined in 20 C.F.R. § 404.1567(b):
Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves sitting most of the time
with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, [a claimant] must
have the ability to do substantially all of these activities.
13
subjective complaints regarding the severity, persistence, and limiting effects of her
symptoms were “not reliable” and not “completely consistent with the objective evidence.”
A.R. 514–15. The ALJ also questioned the credibility of Dr. Harper’s opinions and
accorded “little weight” to them while assigning “significant weight” to the state agency
consultants’ opinions. Id.
Based on the Residual Functional Capacity assessment, the ALJ concluded that
Arakas was capable of performing her past relevant work as a dining room manager, which
the vocational expert described as light work, and thus that she was not disabled.
II.
We uphold a Social Security disability determination if (1) the ALJ applied the
correct legal standards and (2) substantial evidence supports the ALJ’s factual findings.
See Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015); 42 U.S.C. § 405(g).
“In reviewing for substantial evidence, we do not undertake to re-weigh conflicting
evidence, make credibility determinations, or substitute our judgment” for the ALJ’s. Craig
v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Yet even under this deferential standard, we
do not “reflexively rubber-stamp an ALJ’s findings.” Lewis, 858 F.3d at 870. To pass
muster, ALJs must “build an accurate and logical bridge” from the evidence to their
conclusions. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v.
Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
III.
Arakas contends that the ALJ erred by failing to properly assess her subjective
complaints of pain and fatigue. Specifically, she argues that: (1) the ALJ applied an
14
incorrect legal standard when he discounted her complaints as inconsistent with the
objective medical evidence; and (2) substantial evidence does not support the ALJ’s other
findings related to her subjective complaints.
We agree with Arakas on both points. A close examination of the ALJ’s decision
reveals not only errors of law and fact, but also a failure to understand and consider the
unique nature of fibromyalgia.
A.
When evaluating a claimant’s symptoms, ALJs must use the two-step framework
set forth in 20 C.F.R. § 404.1529 and SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). First,
the ALJ must determine whether objective medical evidence presents a “medically
determinable impairment” that could reasonably be expected to produce the claimant’s
alleged symptoms. 20 C.F.R. § 404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.
Second, after finding a medically determinable impairment, the ALJ must assess the
intensity and persistence of the alleged symptoms to determine how they affect the
claimant’s ability to work and whether the claimant is disabled. See 20 C.F.R.
§ 404.1529(c); SSR 16-3p, 2016 WL 1119029, at *4. At this step, objective evidence is not
required to find the claimant disabled. SSR 16-3p, 2016 WL 1119029, at *4–5. SSR 16-3p
recognizes that “[s]ymptoms cannot always be measured objectively through clinical or
laboratory diagnostic techniques.” Id. at *4. Thus, the ALJ must consider the entire case
record and may “not disregard an individual’s statements about the intensity, persistence,
and limiting effects of symptoms solely because the objective medical evidence does not
substantiate” them. Id. at *5.
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 The Fourth Circuit “has battled the [Commissioner] for many years over how to
evaluate a disability claimant’s subjective complaints of pain.” Lewis, 858 F.3d at 865
(alteration in original) (quoting Mickles v. Shalala, 29 F.3d 918, 919 (4th Cir. 1994) (Hall,
J., concurring)). In fact, the two-step process that SSA uses to evaluate symptoms was born
out of a long history of disagreements between this Court and the agency over this very
issue. See Hines v. Barnhart, 453 F.3d 559, 564–65 (4th Cir. 2006). Since the 1980s, we
have consistently held that “while there must be objective medical evidence of some
condition that could reasonably produce the pain, there need not be objective evidence of
the pain itself or its intensity.” Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989); see also
Craig, 76 F.3d at 592–93; Hines, 453 F.3d at 563–65. Rather, a claimant is “entitled to rely
exclusively on subjective evidence to prove the second part of the test.” Hines, 453 F.3d at
565.
Here, the ALJ disregarded this longstanding precedent and the agency’s own policy
by improperly discounting Arakas’s subjective complaints of pain and fatigue, based
largely on the lack of objective medical evidence substantiating her statements. The ALJ
concluded that Arakas’s medically determinable impairments “could reasonably be
expected to cause some of the alleged symptoms,” thus satisfying the first step of the
symptom-evaluation framework. A.R. 513.
But at the second step, the ALJ improperly discredited Arakas’s statements about
the severity, persistence, and limiting effects of her symptoms because he did not find them
to be “completely consistent with the objective evidence.” A.R. 513, 515. In doing so, he
emphasized that the doctors’ reports “fail[ed] to reveal the type of significant clinical and
16
laboratory abnormalities one would expect if the claimant were disabled.” A.R. 514. He
also repeatedly noted that Arakas’s exam results generally showed a “full range of motion
of the joints/extremities” and “no signs of active joint inflammation.” A.R. 513–14.
Because Arakas was “entitled to rely exclusively on subjective evidence to prove”
that her symptoms were “so continuous and/or so severe that [they] prevent[ed] [her] from
working a full eight hour day,” the ALJ “applied an incorrect legal standard” in discrediting
her complaints based on the lack of objective evidence corroborating them. Hines, 453 F.3d
at 563, 565. Thus, he “improperly increased her burden of proof” by effectively requiring
her subjective descriptions of her symptoms to be supported by objective medical evidence.
Lewis, 858 F.3d at 866.
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, 78 F.3d at 306. “[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
the 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 a patient’s prostate cancer is not advanced.”). But here, the
ALJ relied principally on those very results—i.e., a full range of motion and the lack of
joint inflammation—in discounting Arakas’s complaints as inconsistent with the objective
17
evidence. Thus, he “effectively required ‘objective’ evidence for a disease that eludes such
measurement,” which was doubly erroneous. Green-Younger, 335 F.3d at 108. 4 And this
error was particularly egregious given that Dr. Harper’s November 2012 opinion letter had
explicitly emphasized that fibromyalgia typically did not produce clinical and laboratory
abnormalities.
Moreover, while objective medical evidence is unnecessary at the second step of the
symptom-evaluation framework, such objective evidence was present in this case. Dr.
Harper made “consistent trigger-point findings”—i.e., tenderness in specific sites on the
body—which courts have recognized as “objective medical evidence of fibromyalgia.”
Brosnahan v. Barnhart, 336 F.3d 671, 678 (8th Cir. 2003). Indeed, the First Circuit has
noted that “trigger points are the only ‘objective’ signs of fibromyalgia.” Johnson v.
Astrue, 597 F.3d 409, 412 (1st Cir. 2010). Whichever way we look at it, the ALJ’s error
reflects “a pervasive misunderstanding of the disease.” Sarchet, 78 F.3d at 307.
The Commissioner argues the ALJ did not err because he also considered other
evidence. It emphasizes that under 20 C.F.R. § 404.1529(c) and SSR 16-3p, ALJs may not
evaluate or reject a claimant’s subjective complaints based solely on the objective medical
evidence or the lack thereof, but may consider such evidence as one of multiple factors.
4
Although no published Fourth Circuit case has yet addressed how fibromyalgia symptoms
should be evaluated in SSA proceedings, we have previously held that an ALJ’s reliance
on the lack of objective medical evidence was improper in other cases where the claimant
suffered from a disease that, like fibromyalgia, does not produce symptoms that can lead
to such evidence. See, e.g., Hines, 453 F.3d at 560–61, 563 (sickle cell disease); Brown v.
Comm’r Soc. Sec. Admin., 873 F.3d 251, 272 (4th Cir. 2017) (somatoform disorder).
18
The Commissioner is correct that the ALJ did also consider other evidence,
including Arakas’s daily activities. But our review of the record leads us to conclude that
the ALJ “effectively required” objective evidence by placing undue emphasis on Arakas’s
normal clinical and laboratory results. Green-Younger, 335 F.3d at 108. And we have
previously held that ALJs apply an incorrect legal standard by requiring objective evidence
of symptoms even when they also consider other evidence in the record. See, e.g., Hines,
453 F.3d at 563, 565–66; Lewis, 858 F.3d at 866, 868 n.3.
In his three-page Residual Functional Capacity analysis, the ALJ referred at least
five times to the supposed lack of objective medical evidence supporting Arakas’s
complaints and repeatedly highlighted the ways in which he believed her statements were
inconsistent with the objective medical evidence. Particularly telling is his statement that
the doctors’ reports “fail[ed] to reveal the type of significant clinical and laboratory
abnormalities one would expect if the claimant were disabled.” A.R. 514. Thus, while the
ALJ may have considered other evidence, his opinion indicates that the lack of objective
medical evidence was his chief, if not definitive, reason for discounting Arakas’s
complaints. See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 248 (6th Cir. 2007) (noting
that “the nature of fibromyalgia itself renders . . . overemphasis upon objective findings
inappropriate”).
A growing number of circuits have recognized fibromyalgia’s unique nature and
have accordingly held that ALJs may not discredit a claimant’s subjective complaints
regarding fibromyalgia symptoms based on a lack of objective evidence substantiating
them. See, e.g., Johnson, 597 F.3d at 412, 414 (1st Cir.); Green-Younger, 335 F.3d at 108
19
(2d Cir.); Rogers, 486 F.3d at 248 (6th Cir.); Sarchet, 78 F.3d at 307 (7th Cir.); Brosnahan,
336 F.3d at 677–78 (8th Cir.); Revels v. Berryhill, 874 F.3d 648, 666 (9th Cir. 2017).
Today, we join those circuits by 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. Objective indicators such as normal clinical
and laboratory results simply have no relevance to the severity, persistence, or limiting
effects of a claimant’s fibromyalgia, based on the current medical understanding of the
disease. 5 If considered at all, such evidence—along with consistent trigger-point
findings—should be treated as evidence substantiating the claimant’s impairment. 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.
Because the ALJ’s evaluation of Arakas’s symptoms was based on an incorrect legal
standard as well as a critical misunderstanding of fibromyalgia, we conclude that it was
erroneous.
B.
The ALJ’s discrediting of Arakas’s subjective complaints was not only legally
erroneous, but also unsupported by substantial evidence. Specifically, the ALJ erred by (1)
selectively citing evidence from the record as well as misstating and mischaracterizing
5
To the extent that our unpublished opinion in Moore v. Saul, 822 F. App’x 183 (4th Cir.
2020), can be interpreted to suggest otherwise, today’s opinion controls.
20
material facts; (2) finding Arakas’s complaints to be inconsistent with her daily activities;
and (3) failing to consider fibromyalgia’s unique characteristics when reviewing Arakas’s
medical records. Each of these factual errors undermines the ALJ’s conclusion that Arakas
was not disabled.
1.
In evaluating a disability claim, “[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.” Lewis, 858 F.3d at 869 (quoting
Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).
Arakas argues that the ALJ erred by making “several misstatements of material facts
and selectively cit[ing] from the evidence of record.” Opening Br. at 30. We agree.
For example, while the ALJ decision stated that Arakas “recently ha[d] been
working helping her sister in a restaurant twice a week for 4 hours a day,” Arakas actually
testified that she had been working “about four hours plus a week,” A.R. 513, 529
(emphases added). The ALJ also omitted Arakas’s qualifying statements that she had “a
lot of problems using [her] right hand” and “ha[d] to wear [her] wrist brace” while working
at the restaurant, as well as that she had to work “very slow[ly]” because she could not
“feel the money anymore.” A.R. 532.
Similarly, the ALJ stated that “[i]n August 2010, Dr. Harper [had] noted that the
claimant [had been] responding well to drug therapy.” A.R. 513 (emphasis added). But Dr.
Harper’s August 18, 2010 treatment notes were more nuanced, indicating that Arakas
21
“ha[d] responded to combination drug therapies reasonably well, but ha[d] continued to
suffer substantially with breakthrough pain,” A.R. 393. (emphasis added).
Along the same lines, the ALJ asserted that although Arakas “reported significantly
worsening pain in her right shoulder and hand in December 2011, she reported
improvement in her pain following a steroid injection at her next appointment.” A.R. 513.
But this characterization did not accurately represent Dr. Harper’s April 17, 2012 treatment
notes. Dr. Harper recorded that Arakas “did benefit temporarily from a Sterapred
dosepak”—not an injection—“and d[id] feel a little better than she [ha]d [felt] previous
visits,” but that she nevertheless “continue[d] to experience persistent pain associated with
fibromyalgia.” A.R. 492. And while the ALJ stated broadly that “Dr. Harper’s treatment
notes fail[ed] to document . . . complaints of ‘brain fog’ or decreased concentration,” A.R.
513, Dr. Harper’s treatment notes from April 26, 2012 and March 29, 2016 in fact indicated
respectively that Arakas “ha[d] been unable to concentrate” and had “[d]ifficulty
concentrating.” A.R. 490, 759.
Finally, the ALJ stated that “[i]n November 2014, Dr. Harper [had] assessed the
claimant’s fibromyalgia symptoms as moderate.” A.R. 513. However, the ALJ failed to
mention Dr. Harper’s observation from the same day (November 6, 2014) that Arakas’s
fibromyalgia symptoms were “continued,” and also that she “ha[d] developed persistent
right shoulder pain, worse with abduction and extension,” which made her shoulder
movement “markedly restricted.” A.R. 765–66. Moreover, the ALJ mischaracterized the
severity of Arakas’s fibromyalgia symptoms as “moderate” by citing the November 2014
22
assessment in isolation while omitting any mention of Dr. Harper’s various treatment notes
from the relevant period indicating Arakas’s severe or worsening pain and fatigue.
In Lewis, we vacated an ALJ decision in part because the ALJ improperly
“cherrypick[ed] facts that support[ed] a finding of nondisability.” 858 F.3d at 869 (quoting
Denton, 596 F.3d at 425). For instance, “[i]n the same medical records containing the
‘normal’ findings relied upon by the ALJ, the physician also noted that Lewis presented
with ‘stabbing, burning[,] throbbing and tingling, [and] constant pain’” among other
symptoms, and that she was “given a steroid injection into her shoulder.” Id.
Here, the ALJ not only similarly erred by cherry-picking certain facts, but also
misstated or mischaracterized other material facts. As a decision based on such errors can
hardly be supported by substantial evidence, we cannot uphold the ALJ’s disability
determination.
2.
The ALJ further erred by discrediting Arakas’s subjective complaints as
inconsistent with her daily activities. In evaluating the intensity, persistence, and limiting
effects of a claimant’s symptoms, ALJs may consider the claimant’s daily activities. 20
C.F.R § 404.1529(c)(3)(i). But the ALJ’s analysis of Arakas’s activities was erroneous in
two ways. First, he improperly disregarded her qualifying statements regarding the limited
extent to which she could perform daily activities. Second, the ALJ failed to adequately
explain how her limited ability to carry out daily activities supported his conclusion that
she could sustain an eight-hour workday.
23
“An ALJ may not consider the type of activities a claimant can perform without also
considering the extent to which she can perform them.” Woods v. Berryhill, 888 F.3d 686,
694 (4th Cir. 2018).
In Woods, the claimant argued that the ALJ erred in finding her daily activities to
be inconsistent with her pain-related complaints. Id. We agreed, holding that the ALJ
improperly failed to consider the extent to which she could perform those activities. Id. at
694–95. Specifically, while “the ALJ noted that Woods c[ould] ‘maintain her personal
hygiene, cook, perform light household chores,’ ‘shop,’ ‘socialize with family members,
and attend church services on a regular basis,’” the ALJ failed to account for significant
other evidence demonstrating her limited physical capacities. Id. at 694. The record
included testimony that Woods could not “button her clothes, ha[d] trouble drying herself
after bathing, and sometimes need[ed] help holding a hairdryer,” and that “it t[ook] her all
day to do laundry.” Id. Moreover, while Woods could “prepare simple meals,” she “ha[d]
trouble cutting, chopping, dicing, and holding silverware or cups” and “shop[ped] only for
necessities,” a process that “t[ook] longer than normal.” Id. at 694–95. Finally, “when
[Woods] read[] to her grandchildren, they ha[d] to turn the pages because of severe pain in
her hands,” and on “some days, she spen[t] the entire day on the couch.” Id. at 695.
The ALJ evaluating Arakas’s case made the same error. He concluded that Arakas
had “described activities, including carrying out tasks of independent living, using a
computer, performing household chores, driving, shopping, walking for exercise, cooking,
making her bed, doing laundry, doing yard work, and painting, which are not limited to the
24
extent one would expect, given her complaints of disabling symptoms and limitations.”
A.R. 514. But he failed to account for significant other testimony from Arakas.
Specifically, the ALJ did not mention or address Arakas’s testimony that she had
difficulty mopping, vacuuming, cooking, cutting, or standing, and that her daughter had to
do most of the housework; she had to cut her hair because it was too difficult to dry it; she
had trouble buttoning her blouse or picking up a coin or a paper clip from a table; she could
not write her name with a pen when her pain symptoms became aggravated; she might go
grocery shopping once a week if she was feeling up to it, or otherwise her daughter would
go; she tried to walk for exercise but had difficulty due to fatigue and burning pain in her
legs; on a good day, she was able to walk for 30 minutes, but after that, she was “done” for
the rest of the day; she could not sleep without a neck brace due to pain; she had difficulty
sitting through a church service which lasted 45 minutes; and she was too tired to do
anything after noon due to her worsening fatigue.
Substantial evidence does not support the ALJ’s conclusion that Arakas’s subjective
complaints were inconsistent with her daily activities, “because the record, when read as a
whole, reveals no inconsistency between the two.” Hines, 453 F.3d at 565. “The ALJ
selectively cited evidence concerning tasks which [Arakas] was capable of performing”
and improperly disregarded her qualifying statements. Id. Thus, he failed to “build an
accurate and logical bridge” from the evidence to his conclusion. Monroe, 826 F.3d at 189.
The ALJ’s analysis of Arakas’s activities also suffers from another critical error.
SSR 96-8p explains that the Residual Functional Capacity analysis is “an assessment of an
individual’s ability to do sustained work-related” activities “on a regular and continuing
25
basis”—i.e., “8 hours a day, for 5 days a week, or an equivalent work schedule.” 1996 WL
374184, at *1. Even assuming, as the ALJ noted, that Arakas’s “daily activities have, at
least at times, been somewhat greater than [she] . . . generally reported,” A.R. 514, he
“provided no explanation as to how those particular activities . . . showed that [s]he could
persist through an eight-hour workday.” Brown v. Comm’r Soc. Sec. Admin., 873 F.3d 251,
263 (4th Cir. 2017); see also Woods, 888 F.3d at 694 (holding that the ALJ erred in failing
to explain how the evidence supported his conclusion that the claimant “could actually
perform the tasks required by ‘medium work’”). Instead, the ALJ merely stated in a
conclusory manner that Arakas’s activities were “fully consistent” with his Residual
Functional Capacity assessment. A.R. 515. 6
For years, courts around the country have bemoaned the tendency of ALJs to
overstate claimants’ Residual Functional Capacities and ability to work based on their daily
activities. See, e.g., Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); Nowling v.
Colvin, 813 F.3d 1110, 1122 (8th Cir. 2016); Garrison v. Colvin, 759 F.3d 995, 1016 (9th
Cir. 2014). We too have encountered case after case where an ALJ improperly exaggerated
a claimant’s Residual Functional Capacity although the claimant could engage in only
limited activities. See, e.g., Brown, 873 F.3d at 263; Lewis, 858 F.3d at 868 n.3.
6
While the ALJ stated that Arakas’s part-time work at her sister-in-law’s restaurant
indicated her ability to maintain some degree of concentration, the record shows that she
worked at the restaurant as little as four hours per week. That evidence provides no basis
for concluding that she could maintain concentration for ten times that amount of time,
which full-time work would require.
26
A claimant’s inability to sustain full-time work due to pain and other symptoms is
often consistent with her ability to carry out daily activities. As one of our sister circuits
aptly observed, “[t]he critical differences between activities of daily living and activities in
a full-time job are that a person has more flexibility in scheduling the former than the latter,
can get help from other persons . . . , and is not held to a minimum standard of performance,
as she would be by an employer.” Bjornson, 671 F.3d at 647. Furthermore, as we
emphasized in Lewis, “disability claimants should not be penalized for attempting to lead
normal lives in the face of their limitations.” Lewis, 858 F.3d at 868 n.3 (quoting Reddick
v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). Being able to live independently and
participate in the everyday activities of life empowers people with disabilities and promotes
their equal dignity. In pursuing those ends, disability claimants should not have to risk a
denial of Social Security benefits.
If Arakas’s qualifying statements are properly considered, it becomes clear that she
could perform only minimal daily activities that in no way suggested any ability to engage
in full-time work on a sustained basis. See Rogers, 486 F.3d at 248 (finding that being able
to “drive, clean [the] apartment, care for two dogs, do laundry, read, do stretching exercises,
and watch the news” is not comparable to having the ability to perform typical work
activities); Brosnahan, 336 F.3d at 677 (noting that in a fibromyalgia case, “the ability to
engage in activities such as cooking, cleaning, and hobbies, does not constitute substantial
evidence of the ability” to work full-time). Thus, substantial evidence does not support the
ALJ’s conclusion that Arakas’s activities were inconsistent with her subjective complaints
but consistent with his Residual Functional Capacity assessment.
27
3.
The ALJ’s decision also contains other errors based on his failure to understand and
properly consider the unique characteristics of fibromyalgia.
SSR 12-2p recognizes that “symptoms of [fibromyalgia] can wax and wane so that
a person may have ‘bad days and good days.’” 2012 WL 3104869, at *6 (July 25, 2012).
Accordingly, the Ruling requires ALJs to “consider a longitudinal record whenever
possible” when evaluating a disability claim based on fibromyalgia. Id.
Here, however, the ALJ failed to appreciate the waxing and waning nature of
fibromyalgia and to consider the longitudinal record of Arakas’s symptoms as a whole. In
explaining his reasons for discrediting Arakas’s subjective complaints, the ALJ pointed to
Dr. Harper’s November 2014 treatment notes, which described her fibromyalgia symptoms
as moderate.
Yet this single, isolated assessment of Arakas’s symptoms on one particular day
does not mean that Arakas’s fibromyalgia was moderate generally. Rather, it is necessary
to consider the full picture of her symptoms. And indeed, Dr. Harper’s notes indicate that
at various other times during the relevant period, Arakas experienced “persistent pain
associated with fibromyalgia,” “intractable cervical pain,” “exquisite tenderness,” and “a
significant worsening of pain symptoms,” which made her physical capacities “extremely
limited.” A.R. 281, 419, 492, 494. The ALJ, however, never mentioned any of these other
assessments of Arakas’s fibromyalgia and its severity. His failure to conduct a holistic
review of Arakas’s longitudinal record indicates that he did not properly consider the
waxing and waning nature of fibromyalgia.
28
Substantial evidence also does not support the ALJ’s conclusion that Arakas’s
“conservative course of treatment [wa]s inconsistent with a level of severity that would
preclude [her] from sustaining any work activity.” A.R. 513. Actually, her course of
treatment was typical for fibromyalgia. “In general, treatments for fibromyalgia include
both medication and self-care strategies. The emphasis is on minimizing symptoms and
improving general health.” Mayo Clinic, Fibromyalgia Diagnosis & Treatment (Oct. 7,
2020), https://www.mayoclinic.org/diseases-conditions/fibromyalgia/diagnosis-
treatment/drc-20354785. Appropriate medications for fibromyalgia include pain relievers,
antidepressants, and anti-seizure drugs. Id. Notably, narcotic painkillers “are not
recommended, because they can lead to significant side effects and dependence and will
worsen the pain over time.” Id.
Here, the ALJ discredited Arakas’s subjective complaints based partly on her
“conservative course of treatment” and the fact that she no longer took narcotic painkillers
after 2011, but only antidepressants and nonsteroidal anti-inflammatory pain relievers. But
her doctors’ treatment decisions were wholly consistent with how fibromyalgia is treated
generally. Arakas cannot be faulted “for failing to pursue non-conservative treatment
options where none exist.” Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010).
Moreover, SSR 16-3p states that “[p]ersistent attempts to obtain relief of symptoms,
such as increasing dosages and changing medications, trying a variety of treatments, [or]
referrals to specialists, . . . may be an indication that an individual’s symptoms are a source
of distress and may show that they are intense and persistent.” 2016 WL 1119029, at *8.
Arakas has made each of those very attempts over the years. Thus, the ALJ’s finding of
29
inconsistency between Arakas’s subjective complaints and her treatment record was
erroneous.
In sum, the ALJ made several errors in his assessment of Arakas’s subjective
complaints regarding her symptoms. He applied the wrong legal standard by effectively
requiring Arakas to provide objective medical evidence of her symptoms. He improperly
cherry-picked, misstated, and mischaracterized facts from the record. He drew various
conclusions unsupported by substantial evidence and failed to explain them adequately.
Finally, his decision exhibits a pervasive misunderstanding of fibromyalgia. Thus, we
reverse the ALJ’s determination that Arakas was not disabled during the relevant period. 7
IV.
Arakas also argues on appeal that substantial evidence does not support the ALJ’s
reasons for according “little weight” to Dr. Harper’s opinion. As the Commissioner
correctly points out, however, Arakas has waived appellate review of this issue by failing
to raise it as a specific objection to the magistrate judge’s Report and Recommendation.
Despite the waiver, we deem it proper to exercise our discretion to review the issue in the
interest of justice, and we conclude that the ALJ erred by according little weight to Dr.
Harper’s opinion.
A.
Under 28 U.S.C. § 636(b)(1), “any party may serve and file written objections” to a
magistrate judge’s Report and Recommendation within 14 days of being served with a
7
We explain our reasons for reversing, rather than vacating and remanding, the ALJ
decision in Part V of this opinion.
30
copy of the report. A failure to make a timely objection to a Report and Recommendation
constitutes a waiver of appellate review. United States v. Schronce, 727 F.2d 91, 93–94
(4th Cir. 1984). “[A] party also waives a right to appellate review of particular issues by
failing to file timely objections specifically directed to those issues.” United States v.
Midgette, 478 F.3d 616, 621 (4th Cir. 2007). “[T]o preserve for appeal an issue in a
magistrate judge’s report, a party must object to the finding or recommendation on that
issue with sufficient specificity so as reasonably to alert the district court of the true ground
for the objection.” Id. at 622.
Arakas has waived appellate review of her argument by failing to assert it as a
specific objection to the Report and Recommendation. In her brief to the magistrate judge,
Arakas made four distinct arguments, one of which was that substantial evidence did not
support the ALJ’s reasons for according little weight to Dr. Harper’s opinion. Accordingly,
the magistrate judge addressed this argument directly and concluded that the ALJ did not
err in assigning little weight to Dr. Harper’s opinion. See J.A. 44–47. 8 But Arakas did not
raise this issue at all in her objections to the Report and Recommendation; in fact, she never
even mentioned the ALJ’s weighing of Dr. Harper’s opinion. Hence, the district court did
not address it either. Because Arakas failed to make an objection with sufficient specificity,
she has waived appellate review of this issue. 9
8
Citations to “J.A. ___” refer to the Joint Appendix filed by the parties in this appeal.
9
Arakas suggests that her objection regarding Dr. Harper’s opinion was implied in her
objection concerning the ALJ’s evaluation of her fibromyalgia symptoms. This argument
lacks merit. Our precedent requires parties to raise any objection to a Report and
31
B.
The fact that Arakas has waived review of this issue does not end our analysis. She
alternatively asks us to exercise our discretion to address the issue in the interest of justice.
The Supreme Court has held that “because the rule [that a failure to file timely
objections to the magistrate judge’s report constitutes a waiver of appellate review] is a
nonjurisdictional waiver provision, the Court of Appeals may excuse the default in the
interests of justice.” Thomas v. Arn, 474 U.S. 140, 155 (1985). But, while this Court has
recognized that the failure-to-object waiver rule “is not absolute,” Wright v. Collins, 766
F.2d 841, 845 (4th Cir. 1985), our precedents provide only limited guidance on the scope
of any discretionary exception to the rule.
To date, we have exercised discretionary review only in the context of “procedural
ambush”—i.e., where a pro se litigant receives inadequate notice of the possible
consequences of the failure to file timely objections to the magistrate judge’s Report and
Recommendation. 10 See, e.g., id. at 845–47; see also Wells v. Shriners Hosp., 109 F.3d
198, 200 (4th Cir. 1997) (refusing to extend Wright to represented parties). 11 We conclude
Recommendation explicitly and with sufficient specificity to preserve the right to appeal.
See Midgette, 478 F.3d at 622.
10
This exception is inapplicable here, as it is undisputed that Arakas was represented by
counsel throughout the district court proceedings and that she received adequate notice
regarding the consequences of failing to timely file specific written objections to the
magistrate judge’s Report and Recommendation.
11
Relatedly, we have also held that a pro se inmate’s attachment of an “Amended
Complaint,” which restated most of his claims, to his objection to the magistrate judge’s
Report and Recommendation “sufficiently alerted the district court that he believed the
magistrate judge erred in recommending dismissal of those claims.” Martin v. Duffy, 858
32
today that in some cases, such as this one, we may also “excuse the default in the interests
of justice.” Thomas, 474 U.S. at 155.
Our conclusion accords with the positions taken by our sister circuits on this issue
since Thomas. Several circuits do not impose a strict waiver of appellate review, as we do,
on a party who fails to timely object to a magistrate judge’s report. See, e.g., Nara v. Frank,
488 F.3d 187, 194 (3d Cir.), as amended (June 12, 2007); Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); Nash v. Black, 781 F.2d 665, 667 (8th
Cir. 1986); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012); Dupree v. Warden,
715 F.3d 1295, 1300 (11th Cir. 2013). And even those circuits with a strict waiver rule akin
to ours have generally recognized an “interest of justice” exception based on the Supreme
Court’s pronouncement in Thomas. See, e.g., Spence v. Superintendent, Great Meadow
Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000); Souter v. Jones, 395 F.3d 577, 585 (6th
Cir. 2005); United States v. Charles, 476 F.3d 492, 496 (7th Cir. 2007); Duffield v. Jackson,
545 F.3d 1234, 1237 (10th Cir. 2008). 12 Accordingly, we too acknowledge our discretion
to excuse a failure-to-object waiver of appellate review in the interest of justice.
F.3d 239, 246 (4th Cir. 2017). This holding was based on our duty to construe pro se filings
liberally. Martin could be understood as an “interest of justice” exception to (or at least a
flexible application of) the waiver rule set forth in Midgette, where we held that a party
“waives a right to appellate review of particular issues by failing to file timely objections
specifically directed to those issues.” Midgette, 478 F.3d at 621.
12
Although the First Circuit has not explicitly recognized an “interest of justice” exception,
its opinion in Santiago v. Canon U.S.A., Inc. seems to imply that a waived issue could be
reviewed for plain error—an exception presumably intended to serve the interest of justice.
See Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 n.4 (1st Cir. 1998).
33
To determine whether such an exception should apply in this case, we must first
consider what factors may be relevant to making that determination. Our cases dealing with
discretionary review of issues raised for the first time on appeal provide useful guidance.
After all, in our circuit, a litigant who raises an issue before the magistrate judge but fails
to make a timely objection directed to that issue before the district judge is in a position
similar to that of a litigant who fails to raise the issue at all prior to appeal. Compare
Midgette, 478 F.3d at 621 (holding that a party “waives a right to appellate review of
particular issues by failing to file timely objections specifically directed to those issues”),
with Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999) (“Generally,
issues that were not raised in the district court will not be addressed on appeal.”).
“The matter of what questions may be taken up and resolved for the first time on
appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the
facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121 (1976). Generally, parties
waive appellate review of any issue not raised below. Id. at 120. However, Supreme Court
and Fourth Circuit case law has recognized a few discretionary exceptions to this rule. In
Singleton, the Supreme Court described two circumstances where an appellate court may
resolve an issue not passed on below: (1) “where the proper resolution is beyond any
doubt”; or (2) “where injustice might otherwise result.” Id. at 121 (internal quotation marks
and citations omitted). In Liberty University, Inc. v. Lew, we noted two additional such
circumstances: (3) “when refusal to [review] would constitute plain error”; or (4) “where
there is an intervening change in the case law.” 733 F.3d 72, 104 (4th Cir. 2013).
34
In deciding whether to exercise our discretion in this regard, we have considered
factors such as (1) whether both parties had ample opportunity to develop facts pertaining
to the issue; (2) whether the issue is primarily a question of law 13; (3) whether the issue
was briefed and argued on appeal; (4) whether the proper outcome is beyond doubt,
rendering a remand pointless 14; and (5) whether a discretionary remand to the district court
for consideration of the waived issue in the first instance would produce injustice for a
party. See, e.g., Garnett v. Remedi Seniorcare of Va., LLC, 892 F.3d 140, 142–43 (4th Cir.
2018), cert. denied, 139 S. Ct. 605 (2018); Runnebaum v. NationsBank of Md., N.A., 123
F.3d 156, 165–66 n.4 (4th Cir. 1997) (en banc), overruled on other grounds by Bragdon v.
Abbott, 524 U.S. 624 (1998); Nealon v. Stone, 958 F.2d 584, 591 n.6 (4th Cir. 1992);
Childers v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1263–64 n.1 (4th Cir. 1989).
Here, each of these factors weighs in favor of discretionary review. 15 First, no
prejudice or procedural unfairness would result from reviewing whether substantial
evidence supports the ALJ’s decision to accord little weight to Dr. Harper’s opinion, as the
Commissioner has had ample opportunity to address it (and has addressed it) before both
the district court and this Court. Second, the issue is a legal one whose resolution does not
13
This factor’s relevance to the failure-to-object context is bolstered by some of our sister
circuits’ approach of applying the waiver rule to only factual findings, but not legal
conclusions. See, e.g., Nash, 781 F.2d at 667 (8th Cir.); Miranda, 684 F.3d at 848 (9th
Cir.); Dupree, 715 F.3d at 1300 (11th Cir.).
14
At least some of the other circuits that apply a strict failure-to-object waiver rule consider
“whether the defaulted argument has substantial merit” as a factor in deciding whether to
exercise discretionary review in the interest of justice. Spence, 219 F.3d at 174 (2d. Cir.);
see also Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1268 (10th Cir. 1999).
15
Arakas raises similar arguments for discretionary review in her reply brief.
35
require additional factfinding. Third, the issue was adequately briefed by both parties.
Fourth, as we explain below, the proper disposition of the issue is beyond doubt, as the
ALJ’s decision to accord little weight to Dr. Harper’s opinion was unquestionably
erroneous. Finally, a remand would produce significant injustice for Arakas. She has been
fighting to obtain disability benefits for over ten years, and another remand at this stage
would only delay justice further, should Arakas ultimately be found eligible for benefits—
which, as we hold below, is the proper outcome.
Accordingly, we conclude that discretionary review of the waived issue is warranted
here. As the Supreme Court has rightly noted, “[r]ules of practice and procedure are devised
to promote the ends of justice, not to defeat them.” Hormel v. Helvering, 312 U.S. 552, 557
(1941).
C.
Having determined that we will exercise our discretion to review whether the ALJ
properly gave little weight to Dr. Harper’s opinion, we now turn to that issue. We conclude
that the ALJ’s treatment of Dr. Harper’s opinion contains several errors and is not
supported by substantial evidence. Perhaps most importantly, the ALJ legally erred by
failing to adhere to the “treating physician rule” clearly established by both SSA policy
and Fourth Circuit precedent.
1.
The ALJ’s conclusion that “[t]he lack of substantial support from the other objective
evidence of record render[ed] [Dr. Harper’s] opinion less persuasive,” A.R. 514, was
erroneous for multiple reasons. To start, it is vague and conclusory, as the ALJ “did not
36
specify what ‘objective evidence’ . . . he was referring to.” Monroe, 826 F.3d at 191. The
ALJ’s cursory explanation fell far short of his obligation to provide “a narrative discussion
[of] how the evidence support[ed] [his] conclusion,” and “[a]s such, the analysis is
incomplete and precludes meaningful review.” Id. at 190–91 (quoting Mascio, 780 F.3d
at 636). Moreover, as discussed above, a lack of support from objective medical evidence
means very little in fibromyalgia cases. The ALJ’s insistence on objective medical
evidence, again, reveals his misunderstanding of fibromyalgia, which does not produce
such evidence other than trigger points. And here, the record contained ample evidence of
consistent trigger-point findings.
2.
More importantly, the ALJ disregarded agency policy and this Court’s precedent by
applying an incorrect legal standard in evaluating the weight to be accorded to Dr. Harper’s
opinion. In Social Security disability cases, the “treating physician rule” is well-
established. SSA instructs claimants that “[g]enerally,” SSA will “give more weight to
medical opinions from your treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations.” 20 C.F.R. § 404.1527(c)(2).
Accordingly, the treating physician rule requires that ALJs give “controlling
weight” to a treating physician’s opinion on the nature and severity of the claimant’s
impairment if that opinion is (1) “well-supported by medically acceptable clinical and
37
laboratory diagnostic techniques” and (2) “not inconsistent with the other substantial
evidence” in the record. Id. Upon deciding not to give controlling weight to a treating
physician’s opinion, ALJs must determine the appropriate weight to be accorded to the
opinion by considering “all of . . . the factors” listed in the regulation, which include the
length of the treatment relationship, consistency of the opinion with the record, and the
physician’s specialization. Id. § 404.1527(c)(2)–(6). SSR 96-2p further notes that “[i]n
many cases, a treating [physician’s] medical opinion will be entitled to the greatest weight
and should be adopted, even if it does not meet the test for controlling weight.” 1996 WL
374188, at *4 (July 2, 1996) (emphases added).
We have emphasized that the treating physician rule is a robust one: “[T]he opinion
of a claimant’s treating physician [must] be given great weight and may be disregarded
only if there is persuasive contradictory evidence.” Coffman v. Bowen, 829 F.2d 514, 517
(4th Cir. 1987). In Coffman, the ALJ discredited a treating physician’s opinion regarding
the claimant’s ability to work by stating that “[t]he weight to be given such [a]
conclusionary statement depends on the extent to which it is supported by specific and
completed clinical findings and other evidence. I find that this conclusionary statement
does not have the required support in the record.” Id. at 517–18. We held that the ALJ
misstated the legal standard because a “treating physician’s testimony is ignored only if
there is persuasive contradictory evidence.” Id. at 518 (quoting Foster v. Heckler, 780 F.2d
1125, 1130 (4th Cir. 1986)).
Here, the ALJ made the same legal error. While he reasoned that the “lack of
substantial support from the other objective evidence of record” rendered Dr. Harper’s
38
opinion “less persuasive,” A.R. 514, the law makes it clear that such support is not
necessary for according controlling or great weight to a treating physician’s opinion.
Rather, the opinion must be given controlling weight unless it is based on medically
unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other
substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Coffman, 829 F.2d at 517.
Therefore, the ALJ applied an incorrect legal standard, contravening both agency policy
and Fourth Circuit law. See Hines, 453 F.3d at 561 (holding that ALJ applied an “improper
standard to disregard the treating physician’s opinion that [claimant] was fully disabled”).
Under the correct legal standard, Dr. Harper’s opinion regarding the severity,
persistence, and limiting effects of Arakas’s impairments was entitled to controlling
weight. He diagnosed Arakas’s fibromyalgia based on consistent findings of diffuse trigger
points, in accordance with the diagnostic criteria of the American College of
Rheumatology. Thus, his opinion was well-supported by “the clinical and laboratory
diagnostic techniques . . . generally accepted within the medical community as the
appropriate techniques to establish the existence and severity of” fibromyalgia. SSR 96-
2p, 1996 WL 374188, at *3; see also SSR 12-2p, 2012 WL 3104869, at *2 (stating that
SSA will deem a claimant’s fibromyalgia to be a medically determinable impairment if it
was diagnosed under either the 1990 or 2010 American College of Rheumatology criteria).
Moreover, Dr. Harper’s opinion was not contradicted by other substantial evidence in the
record. Rather, as described below, it was consistent with his twenty years’ worth of
treatment notes, other physicians’ medical findings, and Arakas’s testimony.
39
Additionally, after (erroneously) determining that controlling weight was not
appropriate for Dr. Harper’s opinion, the ALJ failed to apply the factors listed in 20 C.F.R.
§ 404.1527(c) to decide how much weight it should be accorded. 16 He also disregarded
SSR 96-2p’s mandate that generally, a treating physician’s opinion, even if not controlling,
should be entitled to the greatest weight and adopted. See 1996 WL 374188, at *4. Thus,
substantial evidence does not support the ALJ’s decision to accord little weight to Dr.
Harper’s opinion.
Persuasive authority further bolsters the conclusion that Dr. Harper’s opinion was
entitled to controlling weight. In a case involving a claimant with fibromyalgia, the Second
Circuit held that her treating rheumatologist’s opinion regarding her impairments “should
have been accorded controlling weight.” Green-Younger, 335 F.3d at 106. The court cited
several factors that led to this conclusion. First, at the time of the ALJ hearing, the physician
had coordinated the claimant’s care for over three years, “during which time she underwent
numerous physical examinations and diagnostic procedures.” Id. at 107. Second, her
fibromyalgia diagnosis was well-supported by medically acceptable diagnostic techniques
under the American College of Rheumatology guidelines—i.e., chronic widespread pain
and multiple tender points. Id. Third, “MRIs showed some bulging in [the claimant’s] discs
16
The ALJ seemingly did consider the consistency of Dr. Harper’s medical opinion with
the record as a whole, which is one of the factors listed in the regulation. However, 20
C.F.R. § 404.1527(c) requires ALJs to consider all of the enumerated factors in deciding
what weight to give to a medical opinion. 20 C.F.R. § 404.1527(c). Here, the ALJ failed to
address the other factors. Those factors include the nature and length of the treatment
relationship and Dr. Harper’s specialization as a rheumatologist, both of which support
giving greater weight to Dr. Harper’s opinion regarding Arakas’s fibromyalgia.
40
and several doctors concurred that [she] had a history of degenerative disc disease.” Id.
Fourth, the rheumatologist ordered various treatments, including medications, epidural
blocks, steroid injections, and physical therapy, but found that “they failed to provide any
significant improvement” in the claimant’s condition. Id.
Importantly, every single one of these factors is also present in Arakas’s case. If
anything, there is more reason to accord controlling weight to the treating physician’s
opinion in this case than there was in Green-Younger, as Dr. Harper had coordinated
Arakas’s care for over twenty years by the time of the 2017 ALJ hearing. Thus, we conclude
that the ALJ erred in denying controlling weight to Dr. Harper’s opinion. “For this reason,
if for no other, the denial of benefits must be reversed.” Coffman, 829 F.2d at 518.
3.
The treating physician rule instructs that Dr. Harper’s opinion should have been
given controlling weight. But additionally, substantial evidence does not support the ALJ’s
decision to accord little weight to Dr. Harper’s opinion.
First, the ALJ accorded little weight to Dr. Harper’s opinion in part because it was
“based primarily on the claimant’s subjective symptoms,” which the ALJ deemed
unreliable. A.R. 514. As explained above, however, the ALJ’s reasons for discrediting
Arakas’s subjective complaints were erroneous. And Dr. Harper’s reliance on Arakas’s
subjective complaints “hardly undermines his opinion as to her functional limitations, as
‘[a] patient’s report of complaints, or history, is an essential diagnostic tool’” in
fibromyalgia cases. Green-Younger, 335 F.3d at 107 (alteration in original) (quoting
Flanery v. Chater, 112 F.3d 346, 350 (8th Cir. 1997)).
41
Second, the ALJ improperly substituted his own opinion for Dr. Harper’s. An ALJ
may not substitute his own lay opinion for a medical expert’s when evaluating the
significance of clinical findings. See Wilson v. Heckler, 743 F.2d 218, 221 (4th Cir. 1984).
Of particular relevance here, ALJs may not draw their own conclusions from medical
imaging, as they lack the expertise to interpret it. See Hoyt v. Colvin, 553 F. App’x 625,
627 (7th Cir. 2014) (holding that ALJ erred “by interpreting [claimant’s] electromyography
exam and lumbar MRI as inconsistent with his complaints of pain”); Kelly v. Berryhill, 732
F. App’x 558, 561 (9th Cir. 2018) (noting that ALJ erred by asserting that “objective
medical imaging did not indicate disabling impairment”).
Yet that is precisely what the ALJ did in Arakas’s case. He wrote that, “[w]hile Dr.
Harper reported that a cervical MRI showed clear evidence of chronic cervical spasm and
degenerative disc disease, I note that an MRI would not document a chronic condition of
spasm.” A.R. 514. 17 Because the ALJ lacked the medical expertise to interpret a cervical
MRI, he erred in discounting Dr. Harper’s opinion based on his own lay views of what an
MRI could demonstrate.
The Commissioner seeks to frame the ALJ’s statement as an attempt to resolve the
alleged inconsistency between Dr. Harper’s assertion that the MRI showed evidence of
chronic muscle spasm and the fact that the radiologist who read the MRI did not note such
evidence. We reject this argument as a meritless post-hoc justification. See Radford v.
17
Dr. Jervey—the neurologist who ordered the cervical MRI for Arakas and did an initial
read of the films—also found “evidence of cervical dystonia [spasm].” A.R. 476. The ALJ
did not account for this evidence.
42
Colvin, 734 F.3d 288, 294 (4th Cir. 2013) (rejecting the Commissioner’s attempt to justify
the ALJ’s denial of disability benefits as a post-hoc rationalization); see also Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962) (“[C]ourts may not accept
appellate counsel’s post hoc rationalizations for agency action.”) (citing SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947)); Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (applying
Burlington Truck in a Social Security disability case).
Here, the ALJ decision never even mentioned the radiologist, and his statement that
“an MRI would not document” chronic cervical spasm is a blanket claim based on his own
lay assumption, contradicted by Dr. Harper’s medical opinions, and unsupported by
anything in the record. A.R. 514 (emphasis added).
Third, the ALJ erred in concluding that Dr. Harper’s opinions were “more
vocational” than “medical,” and thus “not worthy of great weight.” A.R. 514. Although the
ALJ failed to specify which opinions he deemed vocational, he was likely referring to Dr.
Harper’s opinion that Arakas had been “unable to sustain full-time work activity of 8 hours
per day, 5 days a week”—“even at a light exertional level”—since January 1, 2010. A.R.
502–03.
However, we have previously held that ALJs may not disregard such opinions when
offered by a treating physician. See, e.g., Hines, 453 F.3d at 563 (holding that the “ALJ
improperly refused to credit [the treating physician’s] medical opinion that his long term
patient . . . was totally disabled”). Our sister circuits agree. See Hill v. Astrue, 698 F.3d
1153, 1160 (9th Cir. 2012) (finding that the ALJ erred by disregarding the treating
physician’s opinion that the claimant’s “combination of mental and medical problems
43
makes . . . sustained full time competitive employment unlikely”); Kelley v. Callahan, 133
F.3d 583, 589 (8th Cir. 1998) (concluding that the ALJ’s rejection of the treating
physician’s “four-hour [work] day restriction” was “wrong” because “medical opinions on
how much work a claimant can do are not only allowed, but encouraged”). Moreover, Dr.
Harper substantiated his opinion with medical findings and objective evidence such as the
cervical MRI results.
Fourth, the ALJ’s decision to accord little weight to Dr. Harper’s opinion relied on
material misstatements of fact. For example, the ALJ gave “little weight to Dr. Harper’s
assessment that [Arakas’s] fibromyalgia [wa]s associated with chronic cognitive
dysfunction,” because Dr. Harper’s “own treatment notes [did] not document any
complaints of ‘brain fog,’ decreased concentration, or similar symptoms.” A.R. 514.
Contrary to the ALJ’s assertion, however, Dr. Harper recorded that Arakas was “unable to
concentrate” and had “[d]ifficulty concentrating” in his treatment notes from April 26,
2012 and March 29, 2016, respectively. A.R. 490, 759. Similarly, the ALJ stated that Dr.
Harper did not record any complaints of sedation or daytime somnolence. This was error.
See A.R. 759 (Dr. Harper’s March 29, 2016 notes documenting “[s]omnolence”). 18
Fifth, the ALJ erred in finding that Arakas’s part-time work in 2017 contradicted
Dr. Harper’s conclusion regarding her inability to perform any work activity on a sustained
18
The Commissioner’s brief too contains misstatements of fact. For example, it states that
Arakas was “never prescribed” hydrocodone. Appellee’s Br. at 31. But the record shows
that she was in fact sometimes prescribed painkillers containing hydrocodone (Lorcet or
Lortab) to control severe pain. See Drug Enf’t Admin., Hydrocodone (Oct. 2019),
https://www.deadiversion.usdoj.gov/drug_chem_info/hydrocodone.pdf (listing Lortab and
Lorcet as trade names for pain medications containing hydrocodone and acetaminophen).
44
basis. No inconsistency exists here. Again, being able to help out at her sister-in-law’s
restaurant for about 4 hours per week (and with significant difficulty) in no way suggests
that Arakas could sustain full-time work of 40 hours a week. See Larson v. Astrue, 615
F.3d 744, 752 (7th Cir. 2010) (“There is a significant difference between being able to
work a few hours a week and having the capacity to work full time.”).
Finally, the ALJ’s decision to accord “significant weight” to the opinions of the non-
treating, non-examining state agency consultants was erroneous. ALJs must provide a
narrative discussion of how specific evidence supports the “varying degrees of weight”
assigned to different opinions. Monroe, 826 F.3d at 190. The ALJ’s mere conclusory
explanation that the medical consultants’ opinions were “generally consistent with the
other evidence of record” fell far short of this requirement. A.R. 515.
Moreover, under the factors listed in 20 C.F.R. § 404.1527(c), the ALJ’s decision
to assign greater weight to the non-examining, non-treating consultants’ opinions than to
Dr. Harper’s makes little sense. Under the regulation, greater weight is generally accorded
to the medical opinion of a source who has examined the claimant; a source who has treated
the claimant; and a specialist in the relevant area of medicine. 20 C.F.R. § 404.1527(c)(1),
(2), (5). Under each of these factors, the ALJ should have given more weight to Dr.
Harper’s opinions than to those of the state agency consultants. 19 His failure to do so was
19
“Fibromyalgia is a rheumatic disease and the relevant specialist is a rheumatologist.”
Sarchet, 78 F.3d at 307. Whereas Dr. Harper is a board-certified rheumatologist, the two
state agency consultants’ specialties are surgery and gynecology, respectively. See A.R.
416, 455; Soc. Sec. Admin., Policy Operations Manual System, DI 24501.004 (May 5,
2015), https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004.
45
particularly improper because, given the unique nature of fibromyalgia, its symptoms
cannot be properly assessed and verified by a non-treating or non-examining source. See
Rogers, 486 F.3d at 245. Therefore, the ALJ erred by according significant weight to the
state agency consultants’ opinions.
V.
For the foregoing reasons, we hold that the ALJ erred in discrediting Arakas’s
subjective complaints regarding her symptoms and in according little weight to Dr.
Harper’s opinion. The ALJ’s denial of disability benefits was based on erroneous legal
standards and not supported by substantial evidence. We simply cannot uphold a decision
plagued by so many errors.
This Court has the authority to affirm, modify, or reverse the Commissioner’s final
decision “with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Federal
courts, including this Court, have awarded disability benefits without remand where the
record clearly establishes the claimant’s entitlement to benefits and another ALJ hearing
on remand would serve no useful purpose. See, e.g., Hines, 453 F.3d at 567; Crider v.
Harris, 624 F.2d 15, 17 (4th Cir. 1980); Revels, 874 F.3d at 668–69; Green-Younger, 335
F.3d at 109; Kalmbach v. Comm’r of Soc. Sec., 409 F. App’x 852, 865 (6th Cir. 2011). For
example, in Hines, we awarded benefits to the claimant after finding, based on the
“undisputed evidence in the record,” that he did “not have the capacity to function at any
[Residual Functional Capacity] level that require[d] an eight hour work day or its
equivalent on a continual basis.” 453 F.3d at 566–67.
46
Here too, the undisputed evidence in the record compels us to conclude that Arakas
was unable to sustain full-time work—eight hours a day, five days a week 20—during the
relevant period. 21 For many years, Arakas has suffered chronic, debilitating pain and
fatigue caused by a combination of comorbid conditions including fibromyalgia,
degenerative disc disease, and carpal tunnel syndrome. According to her testimony, her
symptoms were severe enough that she had trouble cooking, drying her hair, buttoning her
blouse, picking up a coin, performing household chores, walking even short distances, or
sitting for 45 minutes. And she could barely do anything after noon on most days due to
her symptoms. She experienced flare-ups on and off for at least half a month at a time,
during which the pain was bad enough to miss work. She had difficulty working for even
four hours a week. Arakas’s extensive medical records corroborate the severity,
20
Ordinarily, Residual Functional Capacity is an “individual’s maximum remaining ability
to do sustained work activities in an ordinary work setting on a regular and continuing
basis,” which means “8 hours a day, for 5 days a week, or an equivalent work schedule.”
SSR 96-8P, 1996 WL 374184, at *2. Although the ability to work eight hours a day for
five days a week is not required if the claimant’s past relevant work was part-time
employment that amounted to “substantial gainful activity,” id. at *2 n.2, that is not the
case here. Arakas’s past relevant work was her full-time employment as a dining room
manager. See A.R. 515.
21
In a case involving a claimant with fibromyalgia, arthritis, and carpal tunnel syndrome,
the Sixth Circuit reversed the Commissioner’s decision and granted benefits without
remanding because, “[i]n view of the plaintiff’s treating physician[’s] opinions and the
plaintiff’s own assertions of disabling pain, stiffness, fatigue, and inability to concentrate,
there exists strong evidence that the plaintiff’s combined impairments meet or exceed a
listed impairment under the Social Security regulations”—which mandated a finding of
disability without even a need for a Residual Functional Capacity assessment. Kalmbach
v. Comm’r of Soc. Sec., 409 F. App’x 852, 865 (6th Cir. 2011). We do not address whether
we would reach a similar result here since Arakas has made no argument to that effect.
47
persistence, and limiting effects of her impairments. And based on his twenty years of
examining and treating Arakas, Dr. Harper concluded that she was incapable of performing
full-time work on a sustained basis—an opinion that must be accorded controlling weight.
In sum, once Arakas’s testimony and Dr. Harper’s opinion regarding her
impairments are properly credited, it becomes evident that Arakas could not sustain any
type of full-time work, including her past work as a dining room manager. Notably, during
the 2017 hearing, the vocational expert stated that an individual of Arakas’s age, education,
work experience, and Residual Functional Capacity could not work as a dining room
manager unless she could sustain full-time hours. 22
Accordingly, we hold that the record as a whole clearly establishes Arakas’s
disability and thus her legal entitlement to disability benefits. See Revels, 874 F.3d at 669
(awarding benefits to claimant suffering from fibromyalgia because, based “on the record
as a whole,” there was no “serious doubt” that she was disabled); Green-Younger, 335 F.3d
at 109 (awarding benefits to claimant with fibromyalgia because her inability to perform
past relevant work became clear when her treating rheumatologist’s opinion was given
controlling weight).
Given our finding of Arakas’s disability, remanding the case for yet another ALJ
hearing would be not only pointless, but also unjust. Despite having a meritorious claim,
22
Moreover, at the first ALJ hearing, a different vocational expert testified that such an
individual could not perform any jobs in the national economy even at the sedentary
level—which is less exertional than light work—if she had to take unscheduled breaks
throughout the workday and/or miss work more than two days per month due to her
symptoms. The record demonstrates that Arakas, at minimum, would need such breaks.
48
Arakas has been denied disability benefits and forced to undergo costly litigation for ten
years, solely because of the agency’s errors. After multiple denials and reconsideration
requests, two ALJ hearings, and two federal suits, we simply cannot delay justice any
longer. Therefore, we reverse and remand the case to the Commissioner for a calculation
of disability benefits.
VI.
Based on a full review of the record, we hold that the ALJ erred in discrediting
Arakas’s subjective complaints and in according little weight to her treating physician’s
opinion. The ALJ’s non-disability finding was based on incorrect legal standards and not
supported by substantial evidence. Because we conclude, based on the undisputed evidence
in the record, that Arakas was legally disabled during the relevant period, we reverse the
Commissioner’s decision and remand the case for a calculation of disability benefits.
REVERSED AND REMANDED
WITH INSTRUCTIONS
49