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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

Harrisonburg Division

PAULA JEAN KISLING, ) Plaintiff, ) Civil Action No. 5:15-cv-84 )

v. ) REPORT AND RECOMMENDATION )

NANCY A. BERRYHILL,1 ) By: Joel C. Hoppe Defendant. ) United States Magistrate Judge

Plaintiff Paula Jean Kisling asks this Court to review the Commissioner of Social

Security’s (“Commissioner”) final decision denying her applications for disability insurance

benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social

Security Act (the “Act”), 42 U.S.C. §§ 401–434, 1381–1383f. The case is before me by referral

under 28 U.S.C. § 636(b)(1)(B). Having considered the administrative record, the parties’ briefs

and oral arguments, and the applicable law, I find that the Commissioner’s decision is not

supported by substantial evidence. Therefore, I recommend that the Court GRANT Kisling’s

Motion for Summary Judgment, ECF No. 14, DENY the Commissioner’s Motion for Summary

Judgment, ECF No. 16, and REMAND this case for further administrative proceedings.

I. Standard of Review

The Social Security Act authorizes this Court to review the Commissioner’s final

decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court’s role, however, is limited—it may not

“reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for

that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court

asks only whether the Administrative Law Judge (“ALJ”) applied the correct legal standards and 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security and will be substituted for Carolyn W. Colvin as the defendant in this case pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

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whether substantial evidence supports the ALJ’s factual findings. Meyer v. Astrue, 662 F.3d 700,

704 (4th Cir. 2011).

“Substantial evidence” means “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is

“more than a mere scintilla” of evidence, id., but not necessarily “a large or considerable amount

of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes

into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera

Corp. v. NLRB, 340 U.S. 474, 487–89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir.

1984). Ultimately, this Court must affirm the ALJ’s factual findings if “conflicting evidence

allows reasonable minds to differ as to whether a claimant is disabled.” Johnson v. Barnhart, 434

F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir.

1996)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an

improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.

1987).

A person is “disabled” if he or she is unable to engage in “any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last for a continuous period of not less

than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a),

416.905(a). Social Security ALJs follow a five-step process to determine whether an applicant is

disabled. The ALJ asks, in sequence, whether the applicant (1) is working; (2) has a severe

impairment; (3) has an impairment that meets or equals an impairment listed in the Act’s

regulations; (4) can return to his or her past relevant work based on his or her residual functional

capacity; and, if not (5) whether he or she can perform other work. See Heckler v. Campbell, 461

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U.S. 458, 460–62 (1983); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The applicant bears the

burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden

shifts to the agency to prove that the applicant is not disabled. See id.

II. Procedural History

Kisling protectively filed applications for DIB on December 5, 2011, and for SSI on

December 31, 2011, Administrative Record (“R.”) 21, ECF No. 9, alleging disability caused by

fibromyalgia, panic attacks, depression, bipolar disorder, heart problems, and possible cancer, R.

89, 102. At the time of her alleged onset date of July 16, 2011,2 she was forty-three years old. R.

89, 102. Disability Determination Services (“DDS”), the state agency, denied her claims at the

initial, R. 89–101, 102–14, and reconsideration stages, R. 117–30, 131–44. On May 14, 2014,

Kisling appeared with counsel and testified at an administrative hearing before ALJ Marc Mates.

R. 44–67. A vocational expert (“VE”) also testified at this hearing regarding the nature of

Kisling’s past work and her ability to perform other jobs in the national and local economies. See

R. 61–66.

ALJ Mates denied Kisling’s claim in a written decision issued on June 26, 2014. R. 21–

36. ALJ Mates found that Kisling had severe impairments of degenerative disc disease,

fibromyalgia, obesity, mood disorder, and history of substance abuse. R. 24. As to her residual

functional capacity (“RFC”),3 he found that she could perform light work4 further limited to

2 Kisling initially alleged an onset date of April 24, 2009, R. 89, 102, but amended the date to July 16, 2011, at the hearing before ALJ Marc Mates, R. 47, to reflect the fact that ALJ R. Neely Owen denied her previous DIB and SSI applications in a written decision on July 15, 2011, R. 71–80. 3 A claimant’s RFC is the most he or she can do on a regular and continuing basis despite his or her impairments. 20 C.F.R. §§ 404.1545(a), 416.945(a); SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). 4 “Light” work involves lifting no more than twenty pounds at a time, but frequently lifting objects weighing ten pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). A person who can meet these lifting requirements can perform light work only if she also can “do a good deal of walking or standing, or do

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frequently performing postural activities. R. 26–33. Additionally, she could perform simple,

repetitive tasks, concentrate on such tasks for two-hour segments with normal breaks, respond

appropriately to change in a routine work setting, and interact with coworkers and supervisors as

needed to complete tasks, but generally have minimal social interaction demands with no

significant public contact. Id. Relying on the RFC and the testimony of the VE, the ALJ found

that Kisling could perform her past relevant work as a candy inspector. R. 34. Alternatively, ALJ

Mates found that she could also perform both light and sedentary jobs existing in the national

and local economies, including housekeeper, marker, inspector, and semi-conductor worker. R.

34–35. Therefore, ALJ Mates determined that Kisling was not disabled. R. 35. The Appeals

Council denied her request for review, R. 1–4, and this appeal followed.

III. Facts

A. Previous Factual Findings

On July 15, 2011, ALJ R. Neely Owen issued an opinion regarding Kisling’s prior DIB

and SSI applications. R. 71–80. He found that she had severe impairments of fibromyalgia,

depressive disorder, and substance abuse disorder, R. 73, but concluded that none of these

impairments, alone or in combination, met or medically equaled a listed impairment, R. 74. As

for her RFC, ALJ Owen determined that Kisling could perform light work, specifically that she

could lift and carry twenty pounds occasionally and ten pounds frequently; stand or walk for six

hours and sit for more than six hours in an eight-hour workday; frequently balance, stoop, kneel,

crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds; and engage in simple,

repetitive tasks. R. 76. ALJ Owen found that Kisling was capable of performing her past relevant

work as a deli worker and a poultry processor and thus found her not to be disabled. R. 79–80.

some pushing and pulling of arm or leg controls while sitting.” Hays v. Sullivan, 907 F.2d 1453, 1455 n.1 (4th Cir. 1999).

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B. Relevant Medical Evidence

After her alleged onset date, Kisling treated with multiple different providers in addition

to her three main treating providers discussed infra. She checked into the emergency department

at RMH Healthcare on August 5, 2011, because of back and abdominal pain. R. 390–96.

Findings on exam showed lumbar paraspinal muscle spasm, and straight leg raise testing

produced bilateral pain. R. 391. An electrocardiogram (“EKG”) was mostly normal. Id.

Radiographic studies showed mild degenerative disc disease from T7-T8 through T10-T11 and at

L4-L5 and moderate degenerative changes at L5-S1 and L4-L5 on the right, but no other

significant findings. R. 394–95. She returned on July 13, 2012, had slurred speech, and

complained of mental “spells.” R. 475–79. Findings on physical examination were normal, a CT

scan of her head showed no evidence of intracranial pathology, and the treating doctor stated that

he saw no need for any direct intervention at that time. R. 475–76.

On July 3, 2013, Kisling visited neurologist Fouzia Siddiqui, M.D., for a new patient

consultation regarding her syncope. R. 561–70. Dr. Siddiqui described her syncope as episodic

with symptoms lasting one to four minutes. R. 563. Kisling also relayed that she had been

diagnosed with fibromyalgia and described pain in her lower back and both feet, which she rated

10/10. Id. On examination, Kisling had an unsteady gait, but 5/5 strength in all upper and lower

extremities. R. 568. She displayed normal mental status, registration was 3 out of 3, recall was 0

out of 3, attention was 0 out of 5, and she did not have any cranial motor or coordination deficits.

R. 569. Dr. Siddiqui attributed her cognitive slowing and delayed processing to her excessive

narcotic use and disturbed sleep. Id. Kisling followed up with Dr. Siddiqui on November 18 with

the same complaints of pain. R. 666. Dr. Siddiqui noted that Kisling requested narcotics,

expressed a desire for disability benefits, and conveyed her unwillingness to try physical therapy

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or visit a psychiatrist. Id. He indicated that a lumbosacral MRI revealed mild degenerative disc

disease, id., and an electromyogram/nerve conduction study taken that day was normal, R. 680–

82.

On October 30, 2013, Christopher Joel Hess, M.D., examined Kisling regarding her

lumbar pain. R. 605–11. Kisling reported 10/10 pain. R. 610. Dr. Hess found normal signs on

exam. Id. He also found diffuse pain and tenderness that he opined was consistent with

fibromyalgia. Id. After reviewing her lumbar MRI, he described Kisling’s degenerative changes

as “relatively mild.” Id. Dr. Hess instructed Kisling to take Tylenol and Aleve, discontinued

savella, prescribed baclofen for myofascial pain and topamax for neuropathic pain, and referred

her to physical therapy. R. 610–11.

Kisling visited the Harrisonburg-Rockingham Community Services Board (“HRCSB”)

on April 3, 2014, and saw L. Feight, L.P.C. R. 713–15. She described panic attacks and issues

with short-term memory and explained her history of alcohol and marijuana use, specifically

noting that marijuana helped her pain, but claimed she had not consumed alcohol in two years

and had last used marijuana a few months prior. R. 713–14. LPC Feight assessed mood disorder

not otherwise specified, alcohol dependence in full remission, and cannabis dependence in

sustained partial remission, and she assigned Kisling a Global Assessment of Functioning

(“GAF”) score of 53.5 R. 715. Kisling returned to the HRCSB three more times over the next

5 GAF scores represent a “clinician’s judgment of the individual’s overall level of functioning.” Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed. 2000) (DSM-IV). The GAF scale is divided into ten 10-point ranges reflecting different levels of symptoms or functioning, with 1–10 being the most symptomatic or least functional, and 91–100 being the least symptomatic or most functional. See id. The ranges do not distinguish between symptoms and functional impairments. See id. Thus, when “the individual’s symptom severity and level of functioning are discordant, the final GAF [score] always reflects the worse of the two.” Id. at 32–33. A GAF score of 51–60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).” DSM-IV at 34.

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month and a half. Progress notes for each of these sessions document Kisling’s requests for

narcotics, which she had been unable to obtain from her other providers, and discussions about

her disability case. See R. 718–21.

Kisling also visited the University of Virginia (“UVA”) Epilepsy Clinic on April 25 for

an initial consultation to determine if her fainting spells were seizures. R. 626. She endorsed

symptoms of generalized fatigue, poor night sleep, joint and muscle pain, and headaches. R. 627.

On examination, Scott Otallah, M.D., noted mostly normal findings, but also diffuse pain and

tenderness to palpation of her back, neck, arms, and feet. R. 628–29. On April 28, Kisling

returned to UVA and saw Jennifer Langer, M.D., who noted normal findings on examination,

including normal reflexes, strength in extremities, coordination, and gait, but Dr. Langer noted

that Kisling had decreased sensation in her toes and she reported experiencing pain

“everywhere” upon palpation. R. 634–35. Her mental status exam was normal. R. 634. Dr.

Langer recommended that she treat her pain with Tylenol and baclofen, but not narcotics or

nonsteroidal anti-inflammatory drugs (“NSAID”), and that she visit the pain management clinic.

R. 636. Kisling was then admitted to the Epilepsy Monitoring Unit from April 28 through May 1

for video electroencephalogram monitoring, which revealed normal findings and no evidence of

seizures. R. 648–49.

On May 4, Kisling visited the UVA Pain Center on account of her fibromyalgia. R. 722.

Kisling complained of back and leg pain at 10/10 severity. Id. She reported experiencing sleep

The American Psychiatric Association now cautions that GAF scores do not adequately convey the information needed to assess an individual’s mental state, functional capacities, or treatment needs over time, and it recommends that clinicians cease using them for assessment. See Am. Psychiatric Ass’n, Frequently Asked Questions About DSM-5 Implementation—For Clinicians (Aug. 1, 2013), http://www.dsm5.org/Documents/FAQ%20for%20Clinicians%208-1-13.pdf. Though GAF scores may be questionable diagnostic tools, changes in assessed scores may still reflect a clinician’s observation of improvement or deterioration in their patient.

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disturbances, but not fatigue. R. 724–25. Findings on physical examination were normal, she had

negative straight leg raise testing, and she displayed 5/5 strength and intact sensation throughout,

but exhibited tenderness. R. 726. Kisling also spent a great deal of time questioning why she was

no longer being provided opiates, as she was adamant that nothing else helped. R. 722, 726.

Alicia Wheeler, RN, and Karen Eagle, NP, noted that conservative measures, such as physical

therapy, activity, nutrition changes, weight loss, smoking cessation, and medications that treated

the source of pain (e.g., inflammation, neuropathic, myofascial) rather than the symptoms could

provide pain relief. R. 726, 733.

C. Treating Providers’ Findings and Opinions

1. Dr. Brobby

On July 11, 2012, Kisling saw Vivian L. Wireko Brobby, M.D., at RMH South Main

Health Center for a routine follow-up. R. 516. Kisling reported a constant aching and dull, sharp

pain with associated tenderness because of her fibromyalgia. R. 518. Dr. Brobby conducted a

physical exam, which yielded normal findings. R. 520. Kisling returned to Dr. Brobby on August

21 with a chief complaint of back pain, which she rated 9/10. R. 512. Kisling requested that Dr.

Brobby refill her alprazolam and increase her dosage or frequency of Vicodin, which had been

relieving her pain with “fair success,” and she reported that she quit taking Lyrica because she

did not feel it helped. Id. A physical exam showed posterior tenderness of her spine and

paravertebral muscle spasm, but psychiatric findings were normal, both sitting and supine

straight leg raise tests were negative, and her extremities were normal. R. 514.

On March 11, 2013, Dr. Brobby completed a mental RFC questionnaire. R. 529–33. Dr.

Brobby indicated that Kisling’s prognosis was fair, but also noted that her fibromyalgia caused

fatigue, drowsiness, and lethargy and that the pain medications were not helping with that. R.

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529. As to her functioning, Kisling was “unable to meet competitive standards” in performing at

a consistent pace without an unreasonable number and length of rest periods and was “seriously

limited, but not precluded” in maintaining attention for two-hour segments, sustaining an

ordinary routine without special supervision, completing a normal workday and workweek

without interruptions from psychologically based symptoms, dealing with normal work stress,

and carrying out detailed instructions. R. 531–32. Kisling rated as either “unlimited or very

good” or “limited but satisfactory” in all other areas of functioning, including maintaining

regular attendance and being punctual within customary strict tolerances, getting along with

coworkers or peers without unduly distracting them or exhibiting behavioral extremes,

understanding and remembering detailed instructions, and interacting appropriately with the

general public. Id. The only explanation Dr. Brobby provided for these opinions was that

Kisling’s fibromyalgia exacerbated her depression and vice versa. R. 532. As a result, Dr.

Brobby concluded that Kisling would miss more than four days of work per month. R. 533.

Kisling visited Dr. Brobby twice more, on May 14, R. 705–11, and on July 8, R. 699–

704. During both visits, Kisling reported significant pain that she described as aching, burning,

piercing, and sharp and that was aggravated by movement, walking, and standing. R. 700, 707.

Physical examinations revealed mostly normal findings, except for moderate pain with motion in

unspecified areas. R. 702–03, 710. Dr. Brobby also reported that medications relieved Kisling’s

pain. R. 700, 707. Although in May Dr. Brobby noted that Kisling exhibited a depressed affect

and felt hopeless, she also found that Kisling was not anxious and had normal insight, judgment,

attention span, and concentration. R. 710. In July, Kisling had intact memory, normal mood, and

appropriate affect. R. 703. Dr. Brobby also noted that she encouraged Kisling to go to the

HRCSB, but that Kisling refused. R. 703, 710.

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2. PA-C Johnston

On May 4, 2012, Kisling saw Paul Johnston, PA-C, at the RMH South Main Health

Center for a follow-up regarding her fibromyalgia and bipolar disorder. R. 461. A physical exam

yielded normal results, and PA-C Johnston continued Kisling on Xanax, paroxetine, and lithium

carbonate, but he discontinued Prednisone. R. 463–64. She saw PA-C Johnston again on May 24

with elevated blood pressure and back pain. R. 452. The findings on examination were again

normal, and he assessed hypertension, fibromyalgia, depression, and anxiety. R. 453–54. Kisling

did not see PA-C Johnston again until October 9, 2013, when she returned for a follow-up

regarding her fibromyalgia, anxiety, and bipolar disorder. R. 693. Examination revealed normal

physical and mental findings although PA-C Johnston did note that she was tearful. R. 697. He

referred Kisling to the HRCSB for her bipolar disorder, refilled her Percocet with strict

instructions that she would follow any weaning protocol established by himself or the treating

doctor, and suggested that she establish a better plan to get back to work rather than seeking

disability benefits, which she had discussed during this appointment. Id. Kisling last saw PA-C

Johnston on January 13, 2014, with the primary goal of having him fill out a mental RFC

questionnaire, R. 618–23, which he completed at her request, R. 689–91. PA-C Johnston

assessed limitations similar to those identified by Dr. Brobby, R. 620–21, and he also opined that

she would miss more than four days of work per month, R. 623.

3. Dr. Martin

Kisling treated with Don Martin, M.D., a rheumatologist with the RMH Medical Group,

on at least six occasions. The earliest treatment record is from August 2010. R. 548. During that

visit, Dr. Martin noted symptoms of disrupted sleep, generalized pain, and pan-positive tender

points (10 out of 18). R. 550. Dr. Martin prescribed Gabapentin and explained that he does not

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prescribe narcotics to treat fibromyalgia in part because they can exacerbate the pain. Id. During

two visits in 2012, Kisling rated her pain at a 10/10, R. 503, 508, and said she had difficulty

sleeping, R. 505. On physical examination, Dr. Martin’s findings were normal, as Kisling

displayed intact balance and gait, no posterior tenderness in the spine, and a negative sitting

straight leg raise test in October. R. 508–09. Dr. Martin, however, did find 16/18 tender points in

October, R. 509, and 18/18 tender points in December, but cool joints throughout, R. 503. Dr.

Martin prescribed a rheumatic regimen consisting of various medications and a gradually

escalating program of no- or low-impact aerobic exercise. R. 506, 509.

Kisling returned to Dr. Martin on March 22, 2013, and requested he complete a

fibromyalgia RFC questionnaire. R. 534. On the questionnaire, Dr. Martin indicated that he saw

Kisling first in May 2010, and irregularly since then. R. 556. Kisling met the American College

of Rheumatology criteria for fibromyalgia and her prognosis included chronic debility. Id. Her

pain was severe enough to interfere frequently with attention and concentration required to

perform even simple work tasks, and she was incapable of handling even “low stress” jobs. R.

557. As to her physical limitations, she could walk only half a city block; could sit for fifteen

minutes and stand for five minutes at a time; sit for less than two hours and stand/walk for less

than two hours in an eight-hour workday; would need a job that permitted shifting positions at

will; would need to take an unscheduled, five-minute break every five to ten minutes during the

workday; could never climb ladders or use her arms for reaching; could rarely lift and carry less

than ten pounds, twist, stoop, bend, crouch, squat, climb stairs, and look up; could occasionally

look down, turn her head left or right, and hold her head in a static position; and could use her

hands to grasp, turn, and twist objects and her fingers for fine manipulations less than 5% of the

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time. R. 558–59. Kisling’s insomnia and pan-positive tender points were the clinical findings

supporting these limitations. R. 556.

Kisling treated with Dr. Martin once more on October 21, 2013, when she followed up

for her fibromyalgia. R. 656. Dr. Martin’s findings on physical exam were similar to those in

October 2012, except that Kisling was now positive for posterior tenderness of the spine and was

tender over the length of the axial skeleton in both the midline and bilateral sacroiliac joints. R.

660. Dr. Martin also found 18/18 tender points during this visit. Id.

D. Opinion Evidence from Non-Treating Sources

1. Dr. Leen

On July 11, 2012, Kisling presented to David S. Leen, Ph.D., for a consultative mental

status exam. R. 482–85. During the interview, Dr. Leen observed over-controlled affect,

depressed mood, and logical thought process, and Kisling’s clinical behavior suggested a less

that average level of functioning in terms of her recall and concentration. R. 483. He assessed

mood disorder not otherwise specified, cannabis abuse currently in remission per Kisling’s self-

report, panic disorder without agoraphobia, and a GAF score of 53. R. 484. Kisling needed

psychiatric treatment for her mood disorder symptoms, but her prognosis for significant

improvement was fair. Id. Although she was unable to complete complex or challenging work

activities regardless of supervision and would have difficulty dealing with the public in an

employment setting, she could perform relatively simple and repetitive work activities in a

timely and appropriate manner, maintain reliable attendance in the work place, accept

instructions from supervisors regularly, complete a normal workweek without interruptions, and

generally handle the usual stresses of competitive work so long as she has a well-structured and

supportive employment setting. R. 484–85.

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2. DDS Physicians’ Opinions

On July 23, 2012, as part of the initial review of Kisling’s claim, DDS expert Leslie

Montgomery, Ph.D., A.B.P.P., assessed Kisling’s mental functioning. R. 89–98, 102–11. Dr.

Montgomery found Kisling moderately limited in her ability to understand and remember

detailed instructions; carry out detailed instructions; maintain attention and concentration for

extended periods; complete a normal workday and workweek without interruptions from

psychologically based symptoms and perform at a consistent pace without an unreasonable

number and length of rest periods; interact appropriately with the general public; and accept

instructions and respond appropriately to criticism from supervisors. Id. Kisling’s physical

functioning was not assessed during the initial review because the DDS reviewers found her

physical impairments to be non-severe. See R. 94, 107.

On reconsideration in an opinion dated January 31, 2013, Nicole Sampson, Ph.D.,

reaffirmed Dr. Montgomery’s findings regarding Kisling’s mental functioning except that she

found no understanding and memory limitations. R. 117–30, 131–44. Also on reconsideration in

an opinion dated January 28, 2013, R.S. Kadian, M.D., assessed Kisling’s physical functioning.

R. 125–26, 139–40. Dr. Kadian found that Kisling’s fibromyalgia was non-severe. R. 123, 137.

Despite evidence showing normal range of motion, strength, and gait, Dr. Kadian opined that

Kisling’s pain from back problems and fibromyalgia would limit her to lifting and carrying

twenty pounds occasionally and ten pounds frequently and sitting for about six hours and

standing or walking about six hours in an eight-hour workday. R. 125, 139. As to her postural

limitations, Kisling could frequently stoop, kneel, crouch, crawl, and climb ladders, ropes,

scaffolds, ramps, and stairs, and she was unlimited in her balancing. R. 125–26, 139–40.

E. Kisling’s Submissions and Testimony

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Kisling submitted two function reports as part of her disability application. R. 307–14,

341–48. She noted that she lived alone in a camper, R. 307, 341, and described a limited daily

routine of sometimes getting dressed, eating meals, watching television, and going to sleep, R.

341. She did not take care of any people or pets and had no trouble with her personal care, but

did have difficulty sleeping. R. 308, 342. Kisling’s mother prepared her meals, and she

sporadically performed limited chores such as sweeping and dusting. R. 309–10, 343–44. She

went outside alone daily, could drive a car, and shopped for groceries and medicine once or

twice a month. R. 310, 344. Her ability to engage in hobbies such as sports was diminished

because of her conditions, and she occasionally socialized, but often avoided most contact with

others. R. 311–12, 345–46. Kisling experienced problems with lifting, squatting, bending,

walking, standing, sitting, kneeling, stair climbing, remembering, completing tasks,

concentrating, and getting along with others. R. 312, 346. Her ability to walk dwindled from fifty

yards, R. 312, to twenty feet, R. 346. She struggled to pay attention for any significant amount of

time, did not finish what she started, and handled written, but not spoken, instructions alright. R.

312, 346. Additionally, she avoided authority figures, did not handle stress well, and did not like

changes in routine. R. 313, 347.

At the administrative hearing before ALJ Mates, Kisling testified that she could sit

comfortably for five to ten minutes before needing to stand and walk for fifteen to twenty

minutes. R. 50. She could not bend at the waist very well or squat and would need help getting

back up. R. 51. She had no trouble with her hands, but could lift only five to ten pounds. Id.

Loud voices and loud noises triggered her panic attacks, but she acknowledged that the study at

UVA revealed no evidence of seizures. R. 52. As for her activities of daily living, Kisling did a

little bit of cleaning and laundry, but did not watch much television because it was hard to

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concentrate. R. 52–53. She interacted primarily with her parents, her former husband, and a

friend with whom she talked on the phone. Id. She was an alcoholic, but had not consumed

alcohol in two years. R. 54. She had difficulty sleeping and was fatigued and tired all the time,

which caused her to have little interest in doing much of anything. See R. 53, 54–57.

IV. Discussion

Kisling challenges ALJ Mates’s conclusion that she could perform light work with

additional postural, mental, and social limitations. See Pl. Br. 11–19, ECF No. 15. In attacking

his evaluation of the opinion evidence, Kisling argues that ALJ Mates did not properly consider

the opinions of her treating providers, which, if he had, would have dictated a finding of

disability. Id. at 13–19. She further contends that ALJ Mates erred by effectively giving

controlling weight to ALJ Owen’s prior opinion despite a clear worsening of her condition. Id. at

11–13.

A. Dr. Martin’s Opinion

An ALJ must consider and evaluate all opinions6 from “medically acceptable sources,”

such as doctors, in the case record. 20 C.F.R. §§ 404.1527, 416.927. The regulations classify

medical opinions by their source: those from treating sources and those from non-treating

sources, such as examining physicians and state-agency medical consultants. See id.

§§ 404.1527(c), 416.927(c). A treating physician’s opinion “is entitled to controlling weight if it

is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is

not inconsistent with the other substantial evidence in the record.” Mastro v. Apfel, 270 F.3d 171,

178 (4th Cir. 2001); see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Conversely, opinions

6 “Medical opinions are statements from . . . acceptable medical sources that reflect judgments about the nature and severity of [the applicant’s] impairment(s),” including: (1) the applicant’s symptoms, diagnosis, and prognosis; (2) what the applicant can still do despite his or her impairment(s); and (3) the applicant’s physical or mental restrictions. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).

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from non-treating sources are not entitled to any particular weight. See 20 C.F.R. §§ 404.1527(c),

416.927(c).

An ALJ may reject a treating physician’s opinion in whole or in part if there is

“persuasive contrary evidence” in the record. Hines, 453 F.3d at 563 n.2; Mastro, 270 F.3d at

178. The ALJ must “give good reasons” for discounting a treating physician’s medical opinion.

20 C.F.R. §§ 404.1527(c), 416.927(c). Furthermore, in determining what weight to afford a

treating source’s opinion, the ALJ must consider all relevant factors, including the relationship—

in terms of length, frequency, and extent of treatment—between the doctor and the patient, the

degree to which the opinion is supported or contradicted by other evidence in the record, the

consistency of the opinion with the record as a whole, and whether the treating physician’s

opinion pertains to his or her area of specialty. Id. The ALJ must consider the same factors when

weighing medical opinions from non-treating sources. 20 C.F.R. §§ 404.1527(c), 404.1527(e)(2),

416.927(c), 416.927(e)(2).

ALJ Mates considered and weighed each opinion from Kisling’s treating providers,7 as

well as the opinions of the DDS physicians and the consulting examiner Dr. Leen. R. 32–33. ALJ

Mates afforded limited weight to Dr. Martin’s opinion because the extreme limitations he

identified were inconsistent with his own treatment notes and the other medical evidence in the

record. Id. In support of this decision, ALJ Mates points to Dr. Martin’s treatment notes showing

intact balance and gait and no evidence of sensory loss or motor weakness, as well as his

recommendations that Kisling exercise. Id. (citing R. 509, 660).

The ALJ’s stated reasons for discrediting Dr. Martin’s opinion do not withstand scrutiny.

Dr. Martin, a rheumatologist, treated Kisling for fibromyalgia. This impairment “is defined as

7 Because the ALJ’s inadequate treatment of Dr. Martin’s opinion merits remand, I do not discuss his consideration of the opinions of Dr. Brobby and PA-C Johnston.

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‘[a] syndrome of chronic pain of musculoskeletal origin but uncertain cause.’” Johnson v. Astrue,

597 F.3d 409, 410 (1st Cir. 2009) (per curiam) (quoting Stedman’s Medical Dictionary, at 671

(27th ed. 2000)). It is, by definition, a diagnosis of exclusion, see SSR 12-2P, 2012 WL

3104869, at *2–3 (July 25, 2012), and is typically not accompanied by objective findings, see

Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) (“[Fibromyalgia]’s symptoms are entirely

subjective.”). “The musculoskeletal and neurological examinations are normal in fibromyalgia

patients, and there are no laboratory abnormalities.” Johnson, 597 F.3d at 410 (quoting

Harrison’s Principles of Internal Medicine, at 2056 (16th ed. 2005)). As a result, “[s]everal

courts of appeals have held that ALJs may not rely on the lack of objective findings in

discrediting a treating doctor’s opinion regarding the severity of a patient’s fibromyalgia,” and

“district courts in this circuit have recognized that a lack of objective findings is not a good

reason to discount a treating physician’s opinion regarding the existence or severity of a patient’s

fibromyalgia.” Ellis v. Colvin, No. 5:13cv43, 2014 WL 2862703, at *8 (W.D. Va. June 24, 2014)

(collecting cases).

Here, Dr. Martin saw Kisling for treatment at irregular intervals for three years. He

consistently noted her reports of diffuse pain and difficulty sleeping, and he observed tender

points of 16/18, R. 509, and 18/18, R. 503, 660. See Stahlman v. Astrue, No. 3:10cv475, 2011

WL 2471546, at *6 (E.D. Va. May 17, 2011) (noting fibromyalgia is characterized by

“significant pain and fatigue, tenderness, stiffness of joints, and disturbed sleep”). Other

treatment providers noted similar findings and symptoms relevant to fibromyalgia of disturbed

sleep, diffuse joint and muscle pain, and generalized fatigue. R. 569, 627. The ALJ cited Dr.

Martin’s findings that Kisling did not exhibit motor weakness or sensory loss and had intact gait

as evidence contradicting his finding of limitations. These reasons do not detract from Dr.

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Martin’s assessment or otherwise provide grounds for questioning his opinion as fibromyalgia

patients “manifest normal muscle strength and neurological reactions and have a full range of

motion.” Preston v. Sec’y of Health & Human Servs., 854 F.2d 815, 820 (6th Cir. 1988)

(discussing fibrositis). Contrary to the ALJ’s conclusion, Dr. Martin’s findings of pan-positive

tender points provide objective evidence in support of his opinion. See Johnson, 597 F.3d at 412

(noting tender points “are the only ‘objective’ signs of fibromyalgia”). Because Dr. Martin

observed these tender points and used them to inform his RFC opinion, the mere lack of other

objective findings that have no bearing on fibromyalgia does not support the ALJ’s decision to

reject Dr. Martin’s opinion.

Additionally, Dr. Martin’s recommendations that Kisling engage in light exercise do not

undermine his opinion, as such activity is generally considered proper treatment for fibromyalgia

patients. See Johnson, 597 F.3d at 412 (explaining that physical therapy and aerobic exercise are

appropriate treatments for fibromyalgia). To the extent that ALJ Mates meant for this reason to

infer that Dr. Martin only recommended a conservative course of treatment, thus indicative of a

less than disabling injury, this too is flawed. Every treatment option available for fibromyalgia is

conservative in nature. Ellis, 2014 WL 2862703, at *9. As such, “many courts have appropriately

viewed with skepticism ALJ decisions citing conservative treatment to discredit a claimant or her

treating physicians.” Id. at *10 (collecting cases).

The ALJ did not specify what other medical evidence in the record he deemed

inconsistent with Dr. Martin’s assessment of limitations. The DDS physicians provided a

contrary assessment of Kisling’s limitations, but they also found that her fibromyalgia was not a

severe impairment, indicating that it caused less than minimal limitations. They offered no

meaningful reason to contradict Dr. Martin’s findings, and in his step two determination, the ALJ

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parted from the DDS physicians’ assessment by finding that Kisling’s fibromyalgia was a severe

impairment. Thus, their opinions provide no support for the ALJ’s analysis of Dr. Martin’s

opinion. Furthermore, no other physician, much less a rheumatologist, specifically assessed

Kisling’s fibromyalgia or the limitations that it caused. Accordingly, I find that ALJ Mates’s

reasons for giving Dr. Martin’s opinion limited weight are not supported by substantial evidence.

B. Credibility

As part of his RFC analysis, the ALJ assessed the credibility of Kisling’s complaints. A

proper credibility assessment of a claimant’s subjective report of symptoms is essential in

fibromyalgia cases because objective findings, aside from tender points, provide little insight into

the severity of a person’s fibromyalgia. See Johnson, 597 F.3d at 413. In assessing the credibility

of a claimant’s symptoms, the ALJ should review other evidence in the record, such as a

claimant’s subjective statements, to assess her pain and other symptoms. See Craig, 76 F.3d at

595; 20 C.F.R. §§ 404.1529, 416.929. In fact, “‘a patient’s report of complaints, or history, is an

essential diagnostic tool’ in fibromyalgia cases.” Johnson, 597 F.3d at 412 (quoting Green-

Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003)).

Although ALJ Mates offered numerous reasons for discounting Kisling’s credibility,

most do not apply to her fibromyalgia symptoms. For example, ALJ Mates referenced the limited

objective evidence, generally conservative treatment history and recommendations, and lack of

hospitalizations to discredit Kisling’s claims of severe pain.8 R. 30–31. None of these reasons is

appropriate in the fibromyalgia context. As noted above, fibromyalgia does not produce

objective signs other than tender points, and treatment options are always conservative. 8 In his credibility analysis, ALJ Mates assessed Kisling’s report of symptoms for all of her impairments, including degenerative disc disease. Accordingly, I do not fault him for discussing objective medical evidence as that discussion would be relevant to her other impairments. But it still leaves gaps in his assessment of the credibility of Kisling’s complaints about her fibromyalgia symptoms.

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Moreover, given the available treatments for fibromyalgia, the lack of hospitalizations has no

bearing on the severity of Kisling’s symptoms. Some of the ALJ’s other reasons are contradicted

by the record or suffer from a lack of explanation. For example, the ALJ’s finding that

medications appeared to have been relatively effective in controlling Kisling’s symptoms, R. 30,

is belied by Kisling’s regular reports that she received little to no benefit from her pain

medications, see, e.g., R. 462, 501, 512. Where Kisling did say that medications relieved her

pain, she also reported severe symptoms, including pain, which were aggravated by movement,

walking, and standing. R. 512, 707. The ALJ may not cherry-pick one portion of a report of

symptoms while ignoring the rest. Furthermore, the record does not contain unequivocal

statements from Kisling or her medical providers that medications adequately controlled her

pain. Additionally, the ALJ did not explain how inconsistencies in Kisling’s reports of mental

health “spells” and her substance abuse have any bearing on the severity of her pain from

fibromyalgia.9 Neurological testing showed that Kisling’s “spells” were not seizures, but treating

physicians still attributed them to panic attacks. Kisling’s inability to diagnose the etiology of

these “spells” does not diminish the credibility of her fibromyalgia complaints.

9 To be sure, some of the ALJ’s reasoning finds support in the record. For example, Kisling repeatedly declined to follow the recommendations of her treating providers, see R. 666 (refusing to go to physical therapy), R. 710 (declining to attend HRCSB meetings), as the ALJ aptly points out, R. 30. The ALJ also found that treatment notes routinely documented Kisling’s requests that her medical providers complete disability paperwork for her. R. 30–31. This observation is accurate. Kisling saw some treating medical providers only a few times, and the notes of those sessions frequently referenced her desire to obtain functional assessments for use in her disability case. See, e.g., R. 501, 665, 689, 719. Moreover, after she obtained these functional assessments, she often severed the treatment relationship. Based on this evidence, the ALJ could reasonably question whether Kisling’s primary purpose in visiting these providers was to pursue her disability case, rather than obtain treatment. R. 30–31. These two reasons alone, however, do not provide substantial evidence to support the ALJ’s credibility assessment of Kisling’s fibromyalgia symptoms in light of the other deficiencies in his analysis. Furthermore, the ALJ’s reasons for questioning Kisling’s treatment motivations mostly miss the mark regarding her treating relationship with Dr. Martin because his treatment history, although irregular, lasted for more than three years and continued after he provided a functional assessment.

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To properly assess Kisling’s subjective statements, the ALJ must “‘build an accurate and

logical bridge from the evidence to his conclusion’ that [her] testimony was not credible.”

Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863,

872 (7th Cir. 2000)). Here, ALJ Mates did not analyze Kisling’s statements in light of her

fibromyalgia, and most of the reasons he offers do not apply to a claimant in her position.

Accordingly, I cannot find that ALJ Mates’s assessment of Kisling’s reported symptoms is

supported by substantial evidence.

C. ALJ Owen’s Opinion

Kisling also asserts that her condition worsened, both physically and mentally, after ALJ

Owen’s opinion issued, and as such, ALJ Mates’s RFC finding was erroneous because he

assigned the most weight to ALJ Owen’s opinion. Pl. Br. 11–13. The Social Security

Administration (“SSA”) “treats a claimant’s second or successive application for disability

benefits as a claim apart from those earlier filed, at least to the extent that the most recent

application alleges a previously unadjudicated period of disability.” Albright v. Comm’r of Soc.

Sec., 174 F.3d 473, 476 (4th Cir. 1999). Although findings made by the SSA in a claimant’s

earlier application for benefits will not have preclusive effect as to subsequent applications, id. at

476–78, an ALJ must “consider such finding[s] as evidence and give [them] appropriate weight

in light of all relevant facts and circumstances” in the record before him, SSAR 00-1(4), 2000

WL 43774, at *4 (Jan. 12, 2000) (interpreting Albright); see also Dailey v. Colvin, No. 4:14cv5,

2015 WL 877376, at *7–8 (W.D. Va. Mar. 2, 2015). In determining the weight to give to a prior

finding, the ALJ must consider (1) whether a fact on which the prior finding was based is subject

to change over time; (2) the likelihood that such a change took place, taking into account “the

length of time that has elapsed between the period previously adjudicated and the period being

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adjudicated in the subsequent claim;” and (3) the extent to which evidence not considered in the

prior claim “provides a basis for making a different finding with respect to the period being

adjudicated in the subsequent claim.” SSAR 00-1(4), 2000 WL 43774, at *4; see also Dailey,

2015 WL 877376, at *7.

Although ALJ Mates cited the proper standard under Albright, he did not analyze any of

the factors as to Kisling’s physical impairments and functioning.10 He offered no explanation for

why he afforded ALJ Owen’s opinion regarding Kisling’s physical limitations considerable

weight, see R. 31, despite the additional treatment and opinion evidence from Dr. Martin and

others. Accordingly, I cannot find that the ALJ’s reliance on ALJ Owen’s prior opinion is

supported by substantial evidence.

On remand, the ALJ must consider and explain the weight he gives to ALJ Owen’s

opinion, taking into account the entire record. He also must make findings specific to Kisling’s

fibromyalgia and any related functional limitations.

V. Conclusion

For the foregoing reasons, I find that substantial evidence does not support the

Commissioner’s final decision. Accordingly, I respectfully recommend that Kisling’s Motion for

Summary Judgment, ECF No. 14, be GRANTED, the Commissioner’s Motion for Summary

Judgment, ECF No. 16, be DENIED, the Commissioner’s final decision be REMANDED for

further administrative proceedings, and this case be DISMISSED from the Court’s active

docket.

Notice to Parties

Notice is hereby given to the parties of the provisions of 28 U.S.C. § 636(b)(1)(C):

10 ALJ Mates did note that treatment notes received after ALJ Owen issued his decision documented mental impairments and related limitations. R. 31.

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Within fourteen days after being served with a copy [of this Report and Recommendation], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Failure to file timely written objections to these proposed findings and recommendations

within 14 days could waive appellate review. At the conclusion of the 14 day period, the Clerk is

directed to transmit the record in this matter to the Honorable Elizabeth K. Dillon, United States

District Judge.

The Clerk shall send certified copies of this Report and Recommendation to all counsel

of record.

ENTER: March 8, 2017

Joel C. Hoppe United States Magistrate Judge