Svendsen v. Kijakazi

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
FILED
JUL 1 "i 2022
TANYA SVENDSEN, 1:2I-CV-1029-CBK
Petitioner,
vs.
KILOLO KIJAKAZI, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
MEMORANDUM AND ORDER
Respondent.
Tanya Svendsen ("petitioner," "claimant") moved for summary judgment pursuant
to Federal Rule of Civil Procedure 56 and 42 U.S.C. § 405(g), for judgment as a matter of
law concerning her denial of Social Security Disability Income benefits. Doc. 10. As
this Memorandum and Order will explain, the petitioner raises a host of issues, namely:
(1) Whether the Administrative Law Judge("ALJ")properly identified all
impairments and their severity;
(2) Whether the administrative judge properly evaluated fibromyalgia and
headaches within the context of their medically equivalent Listings;
(3) Whether the Residual Functional Capacity ("RFC")found by the ALJ
was supported by substantial evidence on the record, specifically within
the context of fibromyalgia, two separate treating source opinions,
manipulative limitations, and sit/stand option determinations;
(4) Whether the ALJ properly evaluated Ms. Svendsen's subjective
symptoms; and
(5) Whether the ALJ erred in solely looking at available jobs related to
petitioner's RFC within the national economy, and not delving into a
more specific regional analysis.
Acting Commissioner Kilolo Kijakazi("Commissioner,""respondent") argues the
ALJ below was proper in her denial of benefits and that this Court should affirm her
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decision. This Memorandum and Order will explain why petitioner's claim should be
granted in part and denied in part.
I. BACKGROUND
Ms. Svendsen is a 46-year-old resident of Aberdeen, South Dakota, suffering from
a host of ailments, including degenerative disc disease to the cervical spine, degenerative
joint disease to the right shoulder, obesity, fibromyalgia, headaches, type 2 narcolepsy,
lumbar spondylosis, anxiety, and depression. The claimant protectively filed her Title II
application on October 4, 2018, for a period of disability and disability insurance
benefits, alleging disability beginning on September I, 2018. Ms. Svendsen's claim was
first reviewed at the initial stage by a State agency physician on March 1, 2019, who
found she had severe disorders of her back-(discogenic and degenerative), migraines, and
fibromyalgia. The State review also found non-severe impairments of"other disorders of
the nervous system," "depressive bipolar and related disorders," and "anxiety and
obsessive-compulsive disorders." See Administrative Record ("A.R.") 1354-70.
Further, the State physician concluded that the claimant could occasionally lift and/or
carry 20 pounds; frequently lift and/or carry 10 pounds; and stand and/or walk for a total
of six hours in an eight-hour workday, with no inhibition on her ability to lift and/or carry
or crawling. The physician also found that Svendsen had limited reaching ability
overhead for both arms, chronic neck pain, and non-severe narcolepsy. No sit/stand
option opinion was offered.
Next, the petitioner's claim was reviewed by another State agency physician at the
reconsideration stage on November 19, 2019. See id. at 1372-78. There, the
reconsideration stage physician made markedly similar findings, parting ways with the
initial review by finding Svendsen had severe ehronic fatigue syndrome and could only
crawl occasionally.
On December 17, 2020, Judge Brenda Rosten, a North Dakota-based ALJ, issued
her decision denying Svendsen's application for disability benefits. See id. at 15-28.
Accordingly, the proper inquiry for serutinizing whether petitioner is statutorily disabled
is from September 1, 2018, to December 17, 2020.
2
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Specifically, the ALJ concluded that Ms. Svcndscn met the insured status
requirements through September 30, 2021, and that she has not engaged in substantial
gainfiil activity since September 1, 2018 (the alleged onset date). Further, the
administrative judge determined that the claimant had severe impairments of
degenerative disc disease to the cervical spine, degenerative joint disease to the right
shoulder, obesity, and fibromyalgia. She did not find any other impairments to be severe.
Next, the administrative judge found that Svendsen did not have an impairment, or
combination of impairments, that meet or medically equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Next, we consider the RFC. The ALJ held that the claimant has a RFC to perform
a range of sedentary work as delineated in 20 C.F.R. § 404.1567(a). The judge concluded
that Svendsen can lift and/or carry ten pounds occasionally and less than ten pounds
fi"equently; that she can sit for approximately six hours in an eight-hour workday (with
the ability to stand up and/or change position for roughly two to three minutes after
sitting for an hour); and can stand and/or walk for a combined four hours in an eight-hour
workday, among other findings. In making these determinations Judge Rosten found
Svendsen's treating physician Dr. Jacob Miller's conclusions - which were presented in a
checklist style form -"unpersuasive," and treating physician Dr. Richard Hardie's
findings "less persuasive." Id. at 26.
Having determined the petitioner's RFC,the ALJ concluded that she is unable to
perform any past relevant work. Classified as a younger individual (within the range 18-
44 at the time ofthe ALJ's opinion), the ALJ noted Ms. Svendsen has at least a high
school education and ultimately concluded that the transferability of pastjob skills was
immaterial since the Medical-Vocational Rules framework supported a finding that the
claimant was not disabled, negating the need to tackle whether past skills were in fact
transferable. Finally, the ALJ turned to a Vocational Expert("VE")to discern whether
there were significantjobs in the national economy that the petitioner could perform,
given her age, education, work experience, and RFC. Looking only to national numbers,
the VE found in the Dictionary of Occupational Titles three such positions;(1)a
3
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microfilm document preparer;(2)an addresser for envelopes or typewriters; and (3)a
cutter and paster of press clippings.
The Social Security Administration("SSA")Appeals Council denied the
petitioner's request for review on September 14, 2021, thus making the ALJ's findings
the Commissioner's final decision. Id at 1-4. See generallv Smith v. Berrvhill, 139
S.Ct. 1765, 1775-76(2019). Svendsen timely challenged the Commissioner's decision
in her motion for summary judgment to this Court. More than three and a half years have
passed since Ms. Svendsen first filed for disability benefits.
II. DISCUSSION
A. Standard of Review
To receive disability insurance benefits, a claimant primarily bears the burden of
establishing the existence of a disability under the Social Security Act. King v. Astrue,
564 F.3d 978, 979 n.2(8th Cir. 2009); 42 U.S.C. § 423(a)(1)(D). Judicial review ofthe
Commissioner's decision that the claimant has failed to establish by a preponderance of
the evidence that she is disabled within the meaning ofthe Act- or when the impairment
became sufficiently disabling - is limited to determining whether the Commissioner's
decision is supported by substantial evidence in the record as a whole. Schmitt v.
Kiiakazi, 27 F.4th 1353, 1358 (8th Cir. 2022). "Substantial evidence is less than a
preponderance, but enough so that a reasonable mind might find it adequate to support
the conclusion." Grindlev v. Kiiakazi,9 F.4th 622,627 (8th Cir. 2021)(internal
quotation marks omitted). This Court "must consider evidence in the record that fairly
detracts from, as well as supports, the ALJ's decision." Koch v. Kiiakazi, 4 F.4th 656,
663 (8th Cir. 2021)(internal quotation marks omitted). "If, after reviewing the entire
record, it is possible to draw two inconsistent positions, and the Commissioner has
adopted one ofthose positions, we must affirm." Bovd v. Colvin, 831 F.3d 1015, 1020
(8th Cir. 2016)(internal quotation marks omitted).
The familiar five-step inquiry to determine disability eligibility is:
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(1)Is the claimant currently performing substantial gainful activity(SGA)?
(2)Does the claimant have a severe impairment?(3)Does the impairment
meet or equal an impairment listed in Appendix I?(4)Does the impairment
prevent the claimant from performing past relevant work?(5)Does the
impairment prevent the claimant from doing any other work?
Twvford V. Comm'r. Soc. Sec. Admin., 929 F.3d 512, 515 n.2(8th Cir. 2019)
(intemal quotation marks omitted); 20 C.F.R. § 404.1520(a).
B. Whether ALJ Failed to Properly Identify All Svendsen's Impairments and
Determine Their Severity
The first substantive issue raised by the petitioner is whether the ALJ properly
categorized all her impairments as either severe or non-severe. Initially, Ms. Svendsen
contends that the ALJ failed to properly categorize her narcolepsy, headaches, and
chronic fatigue. However, as briefing continued, petitioner acknowledged that the ALJ
did in fact list her narcolepsy as non-severe. Reply Memorandum of Law in
Support of Plaintiff's Motion for Summary Judgment, doc. 18 at I n.I. While
Svendsen's reply brief solely focuses on her headaches, the Court nevertheless still
considers whether the ALJ did in fact categorize her chronic fatigue as well.
This Court will reverse the administrative proceedings below only when the ALJ
failed to properly identify a medically determinable impairment. See Gilbertson v.
Colvin. 2014 WL 795770, at *6(D.S.D. Feb. 27, 2014)("We note at the outset that the
ALJ failed to consider plaintiffs vision loss in conducting the step four inquiry. This
failure, alone, would be grounds for reversal."){quoting in parenthetical Washington v.
Shalala, 37 F.3d 1437, 1440(10th Cir. 1994)). Properly identifying all impairments, both
severe and non-severe, is crucial when formulating the petitioner's RFC, which is "often
[] the most important issue in a social security claim." McDonald v. Schweiker. 698 F.2d
361, 364(8th Cir. 1983)(intemal citation omitted). This is because the RFC assessment
only considers symptoms related to a medically determinable impairment. SSR 96-
8P, 1996 WL 374184(SSA July 2, 1996). The relevant regulations go so far as to note it
would be "incorrect to find that an individual has limitations beyond those caused by his
or her medically determinable impairment[s] and any related symptoms." Id. at *1. The
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ALJ is presumed to have properly diseharged her duties below when she claims to have
considered and reviewed all relevant evidence. See generallv Wilburn v. Astrue, 626
F.3d 999, 1003-04(8th Cir. 2010).
Here, the ALJ explicitly listed petitioner's degenerative disc disease to the cervical
spine, degenerative joint disease to the right shoulder, obesity, and fibromyalgia as severe
impairments. A.R. 17. While stepping into the realm of over-generalization, the ALJ
then holds that "any other condition, not specifically mentioned in this decision, but that
may be mentioned briefly in the record is not considered severe." Id. While Ms.
Svendsen rightly notes that such broad assertions could hamper subsequent judicial
review, the ALJ proceeds to properly lay out the reasoning why such other conditions are
not severe. The ALJ carefully explained that Svendsen's mild lumbar spondylosis,
narcolepsy, anxiety, and depression as "impairments [that] are non-severe." Id. at 18.
But further digging is required to discern the judge's categorization of headaches and
chronic fatigue.
Claimant is correct in noting that the ALJ's categorization of each medically
determinable impairment was not a model of clarity. However, when parsing the
substance of her opinion below, the ALJ properly categorized both the headaches and
chronic fatigue as non-severe impairments.
The administrative record is rife with reports of headaches allegedly troubling Ms.
Svendsen. See, e.g.. id. at 1155, 1362, 1374, 1539, 1572, 1578, 1582, 1601, 1607, 1753,
1760, 1768.' While the ALJ did not pair headaches in her listing of which ailments were
non-severe, the substance of her analysis requires this Court to find they were categorized
as non-severe in the proceedings below. See id. at 22, 25-26. The ALJ acknowledged
the claimant's complaints of"daily headaches," while noting "she takes no headache
medication" before proceeding to assess the value of her treating physician Jacob Miller's
'The Commissioner rightly notes that some of these records are from before Svendsen's alleged onset date of
September 1, 2018. Respondent is also correct in acknowledging that this evidence "may be helpful for historical
purposes." Defendant's Memorandum in Support of the Commissioner's Decision and in Response to
Plaintiff's Motion for Summary Judgment, doc. 16 at 4. The Court only cites to these records here to show the
wide array of evidence before the ALJ when she made her determination on whether the headaches were severe.
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notes concerning the petitioner's "frequent headaches." Id,at 22, 25. However, despite
Dr. Miller treating Ms. Svendsen "every four months for two years for . .. frequent
headaches," the ALJ clearly explained that she found the physician's opinion
"unpersuasive" because ofthe checklist style box on which his conclusions were
presented. See id. at 25-26. And the ALJ did not stop there. She found Dr. Miller's
conclusions - which clearly included the headaches - as "overly restrictive" without
"detailed support or rationale for those conclusions." Id at 26. Finally, on the same page
of her opinion, the ALJ lists why Svendsen's headaches, among other listed maladies'
asserted severity was "not consistent with the medical evidence ofthe record." Id. While
it would have been apt for the ALJ to have simply stated that "the headaches are non-
severe," she nevertheless provided the needed substance to indicate such a conclusion
was made at the proceedings below. It is undisputed that claims of headaches are entirely
subjective. One cannot prove or disprove that another person has a headache.
Similar rationale forces petitioner's allegations ofthe ALJ's purported failure to
categorize her chronic fatigue to fail. Ample evidence was presented to the ALJ
concerning purported severe chronic fatigue. See, e.g., at 255, 868-69, 917, 942-43,
1017-18, 1116, 1158, 1374, 1572, 1605, 1607, 1753, 1768, 1778-80.^ When the ALJ
analyzed Dr. Miller's checklist form, she explicitly noted the physician's opinions
concerning chronic fatigue, conclusions that were ultimately found "unpersuasive." Id at
25-26. While straddling the line of insufficiency, the ALJ did categorize the chronic
fatigue as non-severe - in substance over form - when explaining her divergence in
conclusions from the physician review on the reconsideration stage in agency
proceedings below. Id at 1374. While the ALJ could have been more explicit in
tackling whether each purported impairment was severe, there is sufficient evidence in
the record to show each alleged malady was analyzed. It is irrelevant whether this Court
would come out differently on classifying any of these impairments as severe at this
^ Like above, supra, some ofthese records are before the alleged onset date and are presented here as indicia of what
was before the ALJ when she categorized chronic fatigue as non-severe.
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stage. Instead, this Court will only "disturb the ALJ's decision [] if it falls outside the
available zone of choice." Krause v. Saul, 988 F.3d 1019, 1024 (8th Cir. 2021)(internal
quotation marks omitted). Here, the ALJ provided substantial evidence on the record
below as to why she found the headaches and chronic fatigue to be non-severe. These
decisions should not be disturbed.
C. Whether Administrative Judge Erred to Properly Evaluate Petitioner's
Headaches and Fibromvalgia at Step 3
Next, Ms. Svendsen contends the ALJ erred by failing to properly evaluate
whether her fibromyalgia and headaches were medically equivalent to a listed
impairment. She is partially correct.
At Step Three, the ALJ must determine whether the petitioner's impairment- or
combination of impairments - meet or equal the criteria of an impairment proscribed in
20 C.F.R. Part 404, Subpart P, Appendix 1 (a "Listing"). ^20 C.F.R. § 404.1520(d).
If any ofthe petitioner's impairments meet or medically equal a Listing, the analysis can
stop: The "finding of disability is automatic." Ortman v. Saul. 2019 WL 6829207, at *10
(D.S.D. Dec. 13, 2019)(citing id.. Shontos v. Bamhart. 328 F.3d 418,424(8th Cir.
2003)). However, in matters such as here, where the impairments are not on the Listings,
the Commissioner - through the ALJ - must assess whether any of the petitioner's
impairments are "closely analogous" to a Listing. 20 C.F.R. § 404.1526(b)(2). See
generallv Clarambeau v. Saul. 2020 WL 3097771, at *14(D.S.D. June 11, 2020).
Svendsen carries the burden to show her impairments meet or medically equal a Listing.
Schmitt. 27 F.4th at 1358. To prevail, Ms. Svendsen must show that her "unlisted
impairment, or combination of impairments, is 'equivalent' to a listed impairment,[she]
must present medical findings equal in severity to all the criteria for the one most similar
listed impairment." Id (alteration and emphasis in original)(quoting Sullivan v. Zeblev,
493 U.S. 521, 531 (1990)). Both headaches and fibromyalgia are addressed in turn.
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1. Headaches
First, the petitioner argues that her headaches were not properly listed. But this
can readily be disposed of; the ALJ did categorize the headaches as non-severe. See
supra II.B. The Court can stop its analysis here because Svendsen's headaches were not
categorized as severe and post no further scrutiny at step three.
2. Fibromvalsia
Next, the Court turns to whether the ALJ erred in her analysis of fibromyalgia
against the applicable Listings. Like headaches, fibromyalgia is not a Listed impairment.
SSR 12-2p requires ALJ's to assess whether a ease of fibromyalgia is medically
equivalent to Listing 14.09D for inflammatory arthritis, or, if a claimant cannot meet
14.09D, another relevant Listing, or whether it medically equals a Listing when
combined with another medically determinable impairment. See Wheeler v. Berrvhilk
2017 WL 4271428, at *3-4(D.S.D. Sept. 26, 2017). See also SSR 12-2p, Section 11(B)
(explaining how the rule is "provid[ing] guidance on how we develop evidence to
establish that a person has a medically determinable impairment(MDI)of fibromyalgia
(FM), and how we evaluate FM in disability claims and continuing disability reviews
under titles II and XVI of the [Act]".). "This provision is an inclusive analysis, that is
fibromyalgia will be medically equal to a listing if it meets the criteria of Listing 14.09D
or another listing within Appendix 1." Wheeler. 2017 WL 4271428, at *3. Put simply,
the ALJ must assess whether a claimant's fibromyalgia is medically equivalent to Listing
14.09D.
The ALJ below failed to adequately compare Svendsen's fibromyalgia against
Listing 14.09D. Listing 14.09D requires several requirements, specifically:(1)
inflammatory arthritis as described in Listing 14.00D6;(2)repeated manifestations of
inflammatory arthritis, with at least two of the constitutional symptoms or signs (severe
fatigue, fever, malaise, or involuntary weight loss), and (3)one of the following at the
marked level:(a)limitation of activities of daily living;(b)limitation in maintaining
social functioning; or(c) limitation in completing tasks in a timely manner due to
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deficiencies in eoncentration, persistence, or pace. While the ALJ noted she "applied
Social Security Ruling 12-2p," she simply did not show any work from which this Court
can affirm on review. A.R. 20. At this stage, simply stating that she "considered [SSR]
12-2p, in conjunetion with all other relevant listings," falls far short of what is required
when assessing medically equivalent listings for fibromyalgia. Id. at 21.
The Commissioner now eontends that the ALJ is not required to "reference any
specific listing in cases involving fibromyalgia." Defendant's Memorandum in
Support of the Commissioner's Decision and in Response to Plaintiff's Motion
FOR Summary Judgment, doc. 16 at 10. However, this Court has repeatedly held that
the administrative judge does hold sueh an obligation. See Clarambeau, 2020 WL
3097771, at *14-17; Ortman. 2019 WL 6829207, at *10-12; Wheeler. 2017 WL
4271428, at *3^. A sister district court has also arrived at the same result. See Sturgeon
V. Saul. 2020 WL 6822489, at *2(E.D. Ark. Nov. 19, 2020). True, Svendsen carries the
burden to show that her ailments are medically equivalent to a Listing. But the
Commissioner also "carries the responsibility of reviewing [petitioner's] severe
impairments for medieal equivalence under the appropriate listing and agency
regulations." Sunderman v. Colvin. 2017 WL 473834, at *7(D.S.D. Feb. 3, 2017). "The
Listings prong of disability benefits determinations is fundamental, and an ALJ must
"show [her] work." Kemnow v. Kiiakazi. 2022 WL 855369, at *3(E.D. Ark. March 22,
2022){quoting Chunn v. Bamhart. 397 F.3d 667,672(8th Cir. 2005)). The ALJ's error
in not properly analogizing Ms. Svendsen's fibromyalgia to Listing 14.09D requires a
remand for further limited adjudication.
D. Whether RFC is Supported by Substantial Evidence
Petitioner next argues that the RFC was not supported by substantial evidence
because:(1)the ALJ focused on solely traditional objective findings that are inapplicable
in the fibromyalgia eontext;(2)treating physieians' weights were improperly discounted;
and (3)purported improper inferences were made concerning Svendsen's medical records
concerning manipulative limitations and a sit/stand option. Each argument is addressed
in turn.
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The ALJ must "determine^ a claimant's RPC based on all the relevant evidence,
including the medical records, observations of treating physicians and others, and an
individual's own descriptions of[her] limitations." Koch,4 F.4th at 667(intemal
quotation marks omitted)(second alteration in original). See 20 C.F.R. § 404.1520(e).
The "RFC finding will often be the most important issue in a social security claim."
McDonald,698 F.2d at 364 (citation omitted). "Although medical source opinions are
considered in assessing RFC,the final determination of RFC is left to the
Commissioner." Lawrence v. Saul, 970 F.3d 989, 995 (8th Cir. 2020)(intemal quotation
marks omitted). There must be some medical evidence that supports the ALJ's
determination; administrative judges cannot conjure their own medical opinions.
Masterson v. Bamhart, 363 F.3d 731, 738 (8th Cir. 2004). Finally, the ALJ must
consider pertinent "regulations set forth ... that may help shed light on the intensity,
persistence, and limiting effects ofsymptoms." Lawrence, 970 F.3d at 995.
1. Fibromval2ia
First, the claimant argues that the ALJ erred by not properly considering all
relevant factors related to the unique challenges surrounding fibromyalgia. She is
correct.
"Fibromyalgia is an elusive diagnosis; '[i]ts cause or causes are unknown, there's
no cure, and, of greatest important to disability law, its symptoms are entirely
subjective.'" Tillev v. Astme, 580 F.3d 675, 681 (8th Cir. 2009)(alteration in original)
(quotins Sarchet v. Chater, 78 F.3d 305, 306(7th Cir. 1996)(Posner, J.)). As this Court
has previously noted,"the musculoskeletal and neurological examinations are normal in
fibromyalgia patients, and there are no laboratory abnormalities." Clarambeau, 2020 WL
3097771, at *24(quotins Johnson v. Astme,597 F.3d 409,410 (1st Cir. 2010)(per
curiam){quoting Stedman's Med.DICTIONARY (27th ed. 2000))). Particularly in the
fibromyalgia context, a "patient's report of complaints, or history, is an essential
diagnostic tool." Id (quotins Green-Younger v. Bamhart, 335 F.3d 99, 107(2nd Cir.
2003)). This Court has favorably cited before to the United States Court of Appeals for
the Sixth Circuit's analysis of fibromyalgia in Rogers v. Commissioner of Social
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Security. 486 F.3d 234, 250(6th Cir. 2007). See, e.g.. Outour v. Saul. 2020 WL
1663358, at *29-30(D.S.D. Apr. 3, 2020). In Rogers, the Court noted that "[ujnlike
medical conditions that can be confirmed by objective medical testing,[FJibromyalgia
patients present no objectively alarming signs ... fibromyalgia is an elusive and
mysterious disease which causes severe musculoskeletal pain... Fibromyalgia patients
manifest normal muscle strength and neurological reactions and have a full range of
motion." Rogers. 486 F.3d at 243^4. Crucially, the Rogers Court held that "in light of
the unique evidentiary difficulties associated with the diagnosis and treatment of
fibromyalgia, opinions that focus solely on objective evidence are not particularly
relevant." Id,, at 245. It is sometimes called a "diagnosis of last resport."
As previously explained, supra 1I.C.2., the SSA promulgated SSR 12-2p, which
lays out binding instructions on how to properly conduct analyses surrounding
fibromyalgia, a disease with particularly challenging contours to assess. SSR 12-2p
mandates ALJs to parse the record for "widespread pain and other symptoms associated
with [fibromyalgia]."(emphasis added). These associated symptoms include:(1) history
of widespread pain;(2)repeated manifestations of six or more fibromyalgia symptoms,
signs, or co-occurring conditions, with particular focus on manifestations of fatigue,
eognitive or memory problems ("fibro fog"), waking unrefreshed, depression, anxiety
disorder, or irritable bowel syndrome; and (3) evidence that other disorders could cause
these repeated manifestations ofsymptoms, signs, or co-occurring conditions were
excluded. SSR 12-2p. See also id. at n.9 (directing reader to 20 C.F.R. §§ 404.1528(b),
416.928(b) for relevant "somatie symptoms" for fibromyalgia signs). Because of the
inherent difficult in assessing the severity of one's fibromyalgia, these associated
symptoms are crucial to tackle in any ALJ's RFC analysis. See Forehand v. Bamhart.
364 F.3d 984, 987(8th Cir. 2004)(explaining how fibromyalgia is "chronic, and
[djiagnosis is usually made after eliminating other conditions, as there are no confirming
diagnostic tests .. . We have long recognized that fibromyalgia has the potential to be
disabling")(first alteration in original)(internal quotation marks omitted). While "not
every diagnosis offibromyalgia warrants a finding that a claimant is disabled," Perkins v.
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Astrue, 648 F.3d 892, 900(8th Cir. 2011), the Eighth Circuit has reversed and remanded
where the ALJ "misunderstood fibromyalgia" when it materially affected her ultimate
RFC analysis. See Garza v. Bamhart. 397 F.3d 1087, 1089 (8th Cir. 2005)(per curiam).
The crux of Svendsen's claim is that the ALJ failed to properly analyze these associated
symptoms as part of her wider fibromyalgia consideration, which would be reversible
error.
The Commissioner centers her argument on the ALJ's explicit assertion that she
applied SSR 12-2p to her evaluation of Svendsen's fibromyalgia. See A.R. 20. While
the respondent also argues ALJ's are not bound by SSR 12-2p, this Court has already
explained why that is false. Within the backdrop of SSR 12-2p's binding nature on the
ALJ below, the Court must discern whether associated symptoms were properly
scrutinized within the wider fibromyalgia examination.
Here, the ALJ erred by not properly considering the petitioner's well-documented
bouts of chronic fatigue and headaches in her ultimate RFC determination within the
fibromyalgia context. While the ALJ "found the claimant has a severe medically
determinable impairment for fibromyalgia," it was clear she was ambivalent on this
ultimate disposition by noting Svendsen was being awarded the "benefit of the doubt."
A.R. 20. This on its own would not necessarily be erroneous, but it becomes reversible
error when documented associated symptoms were not properly discussed. The ALJ
wrote that she "considered and applied [SSR] 12-2p," but her analysis points to the
contrary. Id.
In her analysis of Svendsen's fibromyalgia, the ALJ siloed her discussion on the
"objective examination[s]," examinations that binding regulations and precedent alert us
are not the end-all be-all in these circumstances. Id at 22. The ALJ's singular focus on
traditional objective findings were inappropriate here where "musculoskeletal
examinations reveal[ing] normal upper and lower extremity range of motion, stability,
and normal muscle strength and tone bilaterally" cannot be the endpoint for RFC
determinations surrounding fibromyalgia. Id. at 23. While Svendsen's "physical exam
findings were generally unremarkable," it belies the realization that museuloskeletal and
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neurological testing can oftentimes appear normal in fibromyalgia patients. See
Clarambeau. 2020 WL 3097771, at *24 {citing Johnson. 597 F.3d at 410){citing
Harrison's Principles of Internal Med.(16th ed. 2005)); Ortman. 2019 WL
6829207, at * 16 {citing Rogers. 486 F.3d at 243^4). Here, the ALJ ought to have
compared pertinent associated symptoms within her fibromyalgia RFC analysis,
primarily located at A.R. 20, 22-23, specifically addressing Svendsen's chronie fatigue
and headaches. See SSR 12-2p, Section 11(B).
This Court takes no stance on how the ALJ's ultimate disposition of her RFC
analysis within the context of fibromyalgia must turn on remand. The Commissioner
rightly notes that it is up to the ALJ to determine what weight to give Ms. Svendsen's
alleged headaches and chronic fatigue. Perhaps the ALJ will nevertheless arrive at the
same conclusion as before. That is her prerogative. See Swarthout v. Kiiakazi. 35 F.4th
608,611 (8th Cir. 2022)("[N]ot every diagnosis of fibromyalgia warrants a finding that a
claimant is disabled.")(internal quotation marks omitted). But she can only do so once
she clearly and explicitly factored in associated symptoms to fibromyalgia, namely in this
instanee, headaches and chronic fatigue as reported by the petitioner. Only then can the
ALJ's decision stand on substantial evidence on the record.
2. Treating Physicians' Opinions
Next, the petitioner takes issue with the ALJ finding treating physicians Jacob
Miller and Richard Hardies' opinions unpersuasive and less persuasive, respeetively.
Contentions regarding the ALJ's analysis of both doctors' opinions are addressed in turn.
Claims filed after March 27, 2017(such as Svendsen's) provide new standards for
weighing treating physicians' opinions. See 20 C.F.R. § 404.1520c. SSA revised its
regulations to "provide individuals with a better understanding of[administrative judges']
determinations and decisions." REVISIONS TO Rules Regarding the Evaluation of
Medical Evidence, 82 Fed. Reg. 5844-01, 5854(Jan. 18, 2017). Now,the Agency
"will not defer or give any specific weight, including controlling weight, to any medical
opinion(s)." 20 C.F.R. § 404.1520c(a). "Instead, ALJs will determine the persuasiveness
of each medical source or prior administrative medical findings based on supportability;
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consistency; relationship with the claimant; specialization; and any other factor that tends
to support or contradict a medical opinion. Boettcher v. Kiiakazi. 2022 WL 2068243, at
*8(D. Neb. June 8, 2022){citing id). It is critical that ALJs carefully explain the two
most important factors: supportability and consistency. 20 C.F.R. § 404.1520c(b)(2).
The ALJ need not use the magic words of"supportability" and "consistency," but it must
be clear they were addressed. See Goss v. Kijakazi. 2022 WL 1511521, at *3(E.D. Ark.
May 12, 2022). The other factors, while important, need not be explained in detail. See,
e.g.. Joseph R.L. v. Kiiakazi. 2022 WL 1720930, at *4(D. Minn. May 27, 2022).
However,the new regulations do not offer a blank check for ALJs to arbitrarily
assign weight to treating physicians. Rather, they remain bound to offer "good reasons"
for "giv[ing] a treating physician's opinion little weight." Pierce v. Kiiakazi. 22 F.4th
769, 772(8th Cir. 2022). See also Despain v. Berrvhill. 926 F.3d 1024, 1028 (8th Cir.
2019)("A conclusory report from a treating physician may still be entitled to controlling
weight if it is accurate when viewed in the context ofthe medical record."). "The 'more
relevant the objective medical evidence and supporting explanations presented' and the
'more consistent' a medical opinion is with evidence from other medical and non-medical
sources, the more persuasive the opinion should be." Boettcher. 2022 WL 2068243, at *8
{citing!^ C.F.R. §§ 404.1520c(c)(l),(2)).
ALJ's are right to be wary of checkbox-style forms offering unsubstantiated
conclusions by physicians. Recently, the Eighth Circuit reaffirmed prior precedent which
cautioned courts and ALJs on checklist style prognoses comprising "nothing more than
vague, conclusory statements - checked boxes, circled answers, and brief fill-in-the-
blank responses. Such forms,[the Court] explained, provide little to no elaboration, and
so they possess little evidentiary value." Swarthout. 35 F.4th at 611 (internal quotation
marks omitted). So, the Swarthout Court held,"[wjhen a treating physician's opinion
appears on such a form, an ALJ permissibly may rely more heavily on other opinions in
the record." Id (internal quotation marks omitted). However, an ALJ cannot simply
"discount[] the [treating physician's] opinion because it was on a 'check-the-box' form."
Boettcher. 2022 WL 2068243, at *9. Rather, what is critical is whether the physician's
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opinion was "fully supported by medical reports, objective evidence, and assessments in
the record." Id. In sum, if a conclusory checklist style form is amply backed up by clear
support in the record, such as through consistent past reports ofthe same treating
physician who filled out the checklist, then the ALJ must carefully parse the greater
record and its support for the underlying conclusions presented on the cursory form. See
also Laber v. Kiiakazi. 2022 WL 884589, at *5 (D.S.D. March 25, 2022)("[EJven when a
checkbox or conclusory medical source opinion does not provide extensive explanations,
the ALJ is required to view the medical source opinion in the context ofthe claimant's
medical record.")(internal quotation marks omitted).
a) Dr. Jacob Miller
First, Ms. Svendsen takes issue with the ALJ finding her treating physician Dr.
Jacob Miller's conclusions on his checklist style form "unpersuasive." A.R. 26. On his
checklist form, A.R. 1753-59, Dr. Miller noted that he has treated the petitioner every
four months for two years. Specifically, Dr. Miller's focus was on Svendsen's shoulder,
hip, neck, back pain, chronic fatigue, and headache issues. Id at 1753. On the checklist
form, where Miller checked the applicable boxes and offered barebones notes, he opined
that the claimant could sit for one hour before alternating postures; stand and/or walk for
approximately 15 minutes before returning to a seated position; and stand and/or walk for
around 30 minutes before alternating postures through sitting, lying down, or reclining in
a supine position. Id at 1755-57. Additionally, Dr. Miller noted, he believed Svendsen
could sit for a total of four hours in an eight-hour workday; stand and/or walk for up to
three hours in an eight-hour workday; and would need to rest, lie down, or recline in a
supine position for two hours in an eight-hour workday. Id. at 1757.
Ultimately, though, the ALJ found this "unpersuasive." Id at 26. Crucially for
this Court's review, the administrative judge explicitly tackled "supportability" and
"consistency" in her analysis while also providing detailed support for her findings.
First, the ALJ held that the checklist style form which Dr. Miller used was not backed by
"[djetailed support or rationale for those conclusions." Id at 26. The judge continued,
finding that Miller's conclusions were "inconsistent with treatment records, which show
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non-labored respirations, elear lungs bilaterally, and or regular heart rate and rhythm
without murmurs or gallops." Id. She also noted normal musculoskeletal range of
motion, no cyanosis or edema to extremities, normal movement to lower extremity and
gait, normal coordination, and reflexes. Id. So, the ALJ concluded,"the above opinion is
overly restrictive and the claimant is capable of sedentary exertion with a sit, stand option
and as described in the residual functional capacity." Id.
Miller diagnosed Svendsen with right lateral spondylitis, right rotator cuff tear,
cervical disc disease with radiculopathy, and chronic headaches on his checklist form. Id
at 1753. But the ALJ is right to note that prior treatments and records, including those
from Miller himself, do not show the overly restrictive workplace limitations discussed
for the first time on the barebones checklist. Additionally, the ALJ noted other relevant
diagnoses and observations from medical professionals that do show normal
musculoskeletal range of motion, as well as other indicia of less inhibitions on
Svendsen's abilities in the workplace than first presented by Miller on the checklist.^
While Svendsen is correct in noting that the findings related to cyanosis and edema do
not necessarily discredit Dr. Miller's checklist form's list of diagnoses, the ALJ carefully
combed the record to make elear that the degree to Miller's barebones findings do not
find significant support in past treatment. Even if this Court disagrees with the ALJ's
finding below on the value of Dr. Miller's diagnoses and conclusions on the checklist
form, it cannot and will not supplant the properly documented findings by the ALJ that
secure her conclusions through careful analysis and ultimate conclusion that the form was
not properly supported and consistent with the wider record.
The Commissioner directs this Court's attention to the Eighth Circuit's recent
opinion in Swarthout. where the Court analyzed similar questions under the SSA's prior
rule, 20 C.F.R. § 404.1527(e), not § 404.1520e. Swarthout aptly explains prior ease law
on the matter, cautioning courts to be leery of unsubstantiated checklist forms which can
^ Petitioner rightly notes that some of these citations to Exhibit 14F of the Administrative Record relate to kidney
stone issues not relevant to the finding of disability below. Memorandum of Law in Support of Plaintiff's
Motion for Summary Judgment, doc. 11 at 33. However, part of Exhibit 14F does acknowledge normal
musculoskeletal range of motion, and other relevant matters for this stage of adjudication. See, e.g.. A.R. 1905.
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consist of"nothing more than vague, conclusory statements - ehecked boxes, circled
answers, and brief fill-in-the-blank response." Swarthout, 35 F.4th at 611 (internal
quotation marks omitted). "Such forms, we explained, provide little to no elaboration,
and so they possess little evidentiary value." Id.(intemal quotation marks omitted).
Critically, in Swarthout, the checklist form authored by the treating physician was "in
tension with her own treatment notes." Id. There,"[t]he more severe limitations that
would prevent Swarthout from working appear for the first time in the check-box form,"
as well as the fact "[ojther objective medical evidence in the record contradict[ed][the
treating physician's] evaluation of Swarthout's physical limitations. Id. While Dr.
Miller's conelusions on the checklist form do not necessarily contradict past treatment
notes like in Swarthout. Miller's "more severe limitations that would prevent [petitioner]
from working appear for the first time in the check-box form." Id. The ALJ was within
her purview to be dubious ofthese significant impingements on Svendsen's ability to
work when not clearly embraced in the record. The ALJ determined the persuasiveness
of Dr. Miller based on supportability and consistency in the record; this Court must
respect the ATI's findings below. See Boettcher. 2022 WL 2068243, at *8.
Courts must be leery of ALJs "playing doctor" and cherry-picking from the
record. Pate-Fires v. Astrue, 564 F.3d 935, 946-47(8th Cir. 2009). But this is no such
case. Here, the ALJ found Dr. Miller's severe restrictions on Svendsen's ability to work,
first presented in such drastic detail on the barebones checklist, inconsistent with prior
treatment notes from Miller and other providers. The ALJ is backed by substantial
evidence on the record as a whole and her finding related to Miller will not be disturbed.
b) Dr. Richard Hardie
Next, Dr. Richard Hardie. Hardie examined Ms. Svendsen in January 2019 for
"[m]oderate hypersomnia due to nareolepsy without cataplexy and/or idiopathic
hypersomnia improved on Dexedrine." A.R. 1769.'* He went on to recommend
'* "Narcolepsy that occurs without cataplexy is known as type 2 narcolepsy." Narcolepsy, Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/narcolepsy/symptoms-causes/syc-20375497 (last visited July 13,
2022). See E.S. v. Sec'v of Health & Hum. Servs.. 2020 WL 9076620, at *24(C.O.F.C. Nov. 13, 2020)("Type 2
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"therapeutic napping during the day" as well as at least six hours of sleep a night. Id.
The ALJ found Hardie's conclusions "less persuasive." Id. at 26. The ALJ did not give
Hardie's findings much weight because of their "vague" nature and because he did "not
identify when or how long the claimant should nap." Id. Further,"[t]here is no
indication that the claimant could not take a nap after coming home from work." Id.
And, in terms of consistency, the ALJ properly noted that it is "inconsistent with the
record, which shows her narcolepsy [] stable or well controlled with medication." Id.
True, Dr. Hardie noted in January 2019 that Svendsen took one to two naps a day. See
id. at 1792. But only several months prior, Hardie wrote in May 2018 (before the alleged
onset date)that "[a]s long as she remembers to take [her medication,] her drowsiness is
well controlled." Id. at 1580. See Cronin v. Saul. 945 F.3d 1062, 1069(8th Cir. 2019)
("Conditions that are controlled with treatment are not considered disabling.")(internal
citation omitted).
The ALJ was correct to note such a split in the record:(I)that Svendsen could
benefit fi-om sporadic and brief napping; but that(2) her drowsiness could be well-
contained through medication; as well as(3)unclear answers on whether such naps could
occur after the workday. Because Dr. Hardie's four-sentence "Impression and
Recommendations" does not go into significant detail on the nature of Svendsen's
sleepiness, any detail on the duration or need of mid-day naps(and whether these could
occur after the workday), as well as inconsistent support with his prior records, the ALJ
was well within her purview to consider the perfunctory conclusion "less persuasive." Id
at 26.
3. Physical Limitations
Next, the parties dispute whether(1)the ALJ's findings concerning no
manipulative limitations were applicable - against the recommendations of both state
agency physicians as well as Svendsen's treating physician - as well as(2)whether her
narcolepsy is "a less severe form not accompanied by cataplexy, and not also believed to be autoimmune-driven.")
(internal citations omitted).
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conclusions concerning sitting and standing was supported by substantial evidence on the
whole. Each argument is addressed.
a) Manipulative Limitations
Before reaching the ALJ's conelusions, a delve into what the varying state
physicians found in their reviews concerning petitioner's purported manipulative
limitations is necessary. The first State medical expert reviewed Ms. Svendsen's file in
February 2019, finding some manipulative limitation at hand, specifically that petitioner
could only occasionally life and/or carry 20 pounds, but concluding that she could
frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-
hour workday; and sit for more than six hours on a sustained basis in an eight-hour
workday. Id. at 1366.
At the reconsideration level in November 2019, the State agency physician also
found that Ms. Svendsen could only occasionally lift and/or carry 20 pounds; frequently
lift and/or carry 10 pounds; stand and/or walk (with normal breaks) for roughly six hours
in an eight-hour workday; as well as sit (with normal breaks) for a total of about six hours
in an eight-hour workday. Id at 1376. The physician explained that his prescribed
limitations were based on "cervical DDD [degenerative disc disease] with chronic
neck/shoulder pain." Id. The reconsideration physician found near identical conclusions
to postural limitation as the initial review expert, but parted ways by finding Svendsen
could only crawl "occasionally," compared to the initial review's finding of unlimited
crawling, as well as concluding Svendsen suffered from chronic fatigue syndrome.
Compare id. at 1376, 1374, with id. at 1366, 62. Further, both physicians found that
petitioner had only "limited" reach over her head. Id at 1366, 1376. In his analysis, the
reconsideration physician noted that "thorough physical exams are negative for severe
and significant problems," after considering claimant's chronic neck pain, headaches, hip
impingements, fibromyalgia, chronic fatigue, and narcolepsy. Id. at 1377. So, both State
agency medical experts, as well as treating physician Miller, found apparent manipulative
limitations on Svendsen. The ALJ did not.
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As previously explained, the ALJ ultimately found Miller's checklist style form
(but not his prior reports), unpersuasive. Here, the ALJ also tossed aside both State
medical experts' findings concerning manipulative limitations offering these two experts'
conclusions only as "somewhat persuasive." Id at 25. The ALJ held that "manipulative
limitations are not warranted as physical exam findings revealed full strength with elbow
flexion and extension, wrist flexion and extension, finger flexion and extension, and
thumb opposition, as well as generally full active and passive shoulder range of motion
with flexion, extension, abduction, and rotation." Id. Despite the consistency among
these three physicians. Dr. Miller and the two state experts, the ALJ tossed aside their
repeated assertions of existing manipulative limitations. But this is within the ALJ's
prerogative, so long as there is "some medical evidence" before her to depart from these
three medical opinions. Koch,4 F.4th at 667 (internal quotation marks omitted). See
Schmitt. 27 F.4th at 1360 ("[TJhere is no requirement that an RFC finding be supported
by a specific medical opinion.")(internal quotation marks omitted); see also Roggentien
V. Colvin. 2017 WL 325827, at *2(N.D. Iowa Jan. 23, 2017)("Instead, the ALJ may rely
upon a variety of opinions, or even the medical records themselves.")(internal citations
omitted).
The ALJ rested on three exhibits for her finding of no manipulative limitation.
First, Exhibit 6F-8.^ Here, the judge cited to Exhibit 6F for the proposition that there was
"normal upper and lower extremity range of motion, stability, and muscle strength and
tone bilaterally." A.R. 25. In Exhibit 6F, Dr. Lisa Wumig-Johnson of Avera St. Luke's
Hospital noted that Svendsen claimed her "range of motion" as "fine." Id at 1760. In
another portion of6F-8 not explicitly cited by the ALJ,treating physician Miller notes
that, when assessing the bilateral shoulder claims, Svendsen's range of motion was: "Full
AROM [active range of motion] and PROM [passive range of motion] with flexion,
abduction, adduction, internal/external rotation. Strength: 5/5 with flexion/extension,
abduction, adduction, internal/external rotation." Id at 1767. Next, Exhibit 14F. There,
^ The relevant portion of Exhibit 7F-8 cited by the ALJ mirrors Exhibit 6F-8 and is thus not discussed.
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Svendsen notes that she feels aggravated when raising the arm above the level of her
head. Id. at 1823. This reeord also indieates that the right elbow had full and painless
AROM and PROM. But see id.(finding that bilateral shoulder's range of motion is
"[f]ull and painful AROM and PROM with flexion/extension.").
Ultimately,"[a] claimant's RFC is a medical question." Koch. 4F.4th at 667.
While this may be a medical question, the ALJ is the one tasked with making the final
determination on Svendsen's RFC, after adequately explaining which records and experts
were awarded what weight. See Lawrence, 970 F.3d at 995 ("[A]lthough medical source
opinions are considered in RFC,the final determination ofRFC is left to the
Commissioner.")(alteration in original)(internal quotation marks omitted). The
Commissioner rightly notes that "there is no requirement that an RFC finding be
supported by a specific medical opinion," meaning the ALJ was not bound by the
persuasive conclusions offered by both State medical experts as well as Dr. Miller.
Henslev v. Colvin, 829 F.3d 926, 932(8th Cir. 2016).
The ALJ was clear in awarding greater weight to those limited records that
supported a full range of motion, such as Dr. Wuming-Johnson's notes and some of the
notes in Exhibits 6F and 14F. She was also explicit in tossing aside manipulative
limitation-related findings of the two State agency medical experts. Despite greater
weight indicating some manipulative limitation, the ALJ could still be supported by the
generous threshold of substantial evidence on the reeord review. See Swink v. Saul. 931
F.3d 765, 770(8th Cir. 2019)("The mere fact that some evidence may support a
conclusion opposite to that reached by the Commissioner, however, does not allow this
Court to reverse the decision ofthe ALJ.")(intemal quotation marks omitted). What this
Court must ascertain is whether the ALJ followed the proper steps in forming her finding
of no manipulative limitation; if so, she is able to toss aside the work of the State
physicians and treating physician Miller. See Diekson v. Berrvhill. 2017 WL 1152038, at
*7(E.D. Mo. March 28, 2017)("Express consideration of state agency physicians is
sufficient to satisfy this standard."). The applicable standard of review asks if this was
within the applicable "zone of choice." Kraus. 988 F.3d at 1024 (intemal quotation
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marks omitted). While this finding would typieally fall within the applicable zone of
choice, it cannot in this instance because of previously explained failures in properly
analyzing fibromyalgia.
As articulated above,supra, fibromyalgia is a tricky ailment to fully tackle. Dr.
Miller noted in August 2020 that petitioner was suffering from "[f]ibromyalgia affecting
multiple joints." A.R. 1826. Remember, the ALJ found Miller's checklist style form as
"not persuasive," but she did not make any such finding for the more elaborate records
Miller supplied in prior visits. So, if fibromyalgia is one (if not a driving) factor in
Svendsen's joint pain, and with it, possible manipulative limitations, then the ALJ cannot
find that that no manipulative limitations are at hand without first following the proper
steps of assessing whether the claimant's fibromyalgia is medically equivalent to Listing
14.09D. The ALJ must "show [her] work" by first explicitly referencing Listing 14.09D
in reviewing Svendsen's fibromyalgia. Kemnow.2022 WL 855369, at *3 (internal
quotation marks omitted. Then, and only then, can this Court uphold the ALJ's
determinations. This does not mean the ALJ must reverse opinion on remand. Rather,
after fulfilling the regulatory commands of SSR 12-2p, she may arrive at the same
conclusion. Or not. But until then, this conclusion cannot stand and the petitioner's
claim should be granted.
b) Sit/Stand Option
Next, the sit/stand conclusion. The ALJ found that petitioner would "need an
opportunity to stand up and or change position at her workstation for approximately two
to three minutes after sitting for an hour;" often referred to as the "sit/stand option." A.R.
21. However, the administrative judge had no applicable evidence to make a sit/stand
option determination after discrediting Dr. Miller's checklist style conclusions.
The only source within the record for the length of a sit/stand option was within
Dr. Miller's barebones cheek marks on the form discredited by the ALJ(which was
within her purview to discredit). On this form. Miller opined that Svendsen would need
to stand or walk about 15 minutes before she must return to a seated position. Id at
1755. Detrimental to the ALJ,though, is that there were no sit/stand option conclusions
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offered by either State medieal expert. See id. at 1365-68, 1375-78. Without further
information in the record on what sort of sit/stand option could be applicable to
Svendsen, the ALJ strayed too far into doctor over judge.
In a roughly analogous matter examined by a sister district court where the
medieal expert's "opinion [was] silent on a specific interval, and no other record evidence
mentions or supports an interval (besides evidence the ALJ properly discounted), the ALJ
was required to 'seek additional clarifying statements'" to further develop the "'crucial
issue' ofthe sit/stand interval," which remained undeveloped. Orduna-Solorzano v.
Kiiakazi, 2022 WL 503731, at *7(E.D. Mo. Feb. 18, 2022)(quotim Goff v. Barnhart,
521 F.3d 785, 731 (8th Cir. 2005)). See Grindlev. 9 F.4th at 629-30("[T]he ALJ is not
required to seek additional clarifying statements from a treating physician unless a crucial
issue is undeveloped. Undeveloped statements may exist when the report from [a]
medical source contains a conflict or ambiguity that must be resolved, the report does not
contain all the necessary information, or does not appear to be based on medically
acceptable clinical and laboratory diagnostic techniques.")(internal quotation marks and
citations omitted)(second alteration in original). Like in Orduna-Solorzano, the only
opinion concerning a sit/stand option was from a discounted physician (which again, was
within the ALJ's purview). Without further support in the record, the crucial issue of a
sit/stand option interval remains undeveloped and caimot stand on substantial evidence
on the record.
Similarly, there is no narrative bridge between the two-to-three minute stand up
and change position every hour conclusion and evidence which has not been discounted.
"SSR 96-8p requires that, '[if] the RPC assessment conflicts with an opinion from a
medical source, the adjudicator must explain why the opinion was not adopted.'" Paula
G.S. V. Saul. 2021 WL 1599229, at *32(D.S.D. Apr. 23, 2021)(alteration in original)
{quoting SSR 96-8p). Here, the ALJ properly explained why she discounted Dr. Miller's
barebones checklist style conclusions. But in discounting it, she had no anchor for the
two-to-three minute per hour sit/stand option when the State medical experts offered no
sit/stand option conclusion themselves. Without the State experts' offering such a
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sit/stand option, or other physicians or notes within the record, there is no bridge between
the two-to-three minute per hour option and the evidence before the ALJ. See John B.
R,2021 WL 1192930, at *29(D.S.D. March 30, 2021)("Although SSR 96-8p does not
require an itemized discussion of each limitation in the RFC and the record support
therefor, it does require that the ALJ discuss the medical and non-medical evidence in a
way that supports each conclusion.").
Additionally, and independently, the sit/stand option determination requires a
remand for similar reasons as stated above in terms of manipulative limitations. Because
the ALJ must assess whether the claimant's fibromyalgia is medically equivalent to
Listing 14.09D and step further into a fibromyalgia-centric analysis with differing
weighting of objective and subjective symptoms, fiirther development is required below.
"A physician's opinion that a claimant is incapable of gainful employment is often
not entitled to significant weight." Fentress v. Berrvhill. 854 F.3d 1016, 1020 (8th Cir.
2017), as corrected Apr. 25, 2017 (internal citation omitted). The ALJ was well within
her bounds to discredit the short, conclusory opinions on Dr. Miller's checklist style
form. Further, she was proper in finding Dr. Hardie's short "Impressions and
Recommendations" form only somewhat persuasive when considered against partially
conflicting prior records and also its brief nature. And while the ALJ did not initially err
in finding no manipulative limitation, despite evidence to the contrary, it requires a
remand because of the unique requirements of analysis for fibromyalgia-related cases and
its comparison against Listing 14.09D. Finally, the ALJ erred in not having evidence
within the record to anchor her two-to-three minute per hour sit/stand option for
Svendsen when the only medical opinion concerning a sit/stand option was discredited,
as well as for errors in not engaging in the unique inquiries surrounding fibromyalgia.
E. Whether the ALJ Properly Evaluated Petitioner's Subjective Symptoms
With similar threads to arguments discussed above, Ms. Svendsen argues that the
ALJ did not properly weigh her subjective symptoms of fibromyalgia-related pain. She is
right.
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While the Commissioner did not specifically address this contention in her
briefing, arguments made elsewhere in briefing support resistance to purported mis-
weighing of subjective symptoms within the context offibromyalgia. "We defer to the
ALJ's evaluation of[] credibility provided that the determination is supported by good
reasons and substantial evidence." Turpin v. Colvin. 750 F.3d 989, 993 (8th Cir. 2014)
(internal quotation marks omitted).® The ALJ is tasked with weighing the petitioner's
subjective complaints against the well-worn Polaski factors. Grindlev. 9 F.4th at 630.
See Polaski v. Heckler. 739 F.2d 1320, 1322(8th Cir. 1984). These include "the
claimant's prior work history; daily activities; duration, frequency, and intensity of pain;
dosage, effectiveness and side effects of medication; precipitating and aggravating
factors; and functional restrictions." Grindlev, 9 F.4th at 630 (internal quotation marks
omitted). See also Brvant v. Colvin. 861 F.3d 779, 782(8th Cir. 2017)("The adjudicator
is not required to discuss each Polaski factor as long as [she] acknowledges and considers
the factors before discounting a claimant's subjective complaints.")(internal quotation
marks omitted)(alteration in original).
The ALJ is also tasked with assessing whether the petitioner has been seeking
regular medical treatment on her purported disabling ailments. Turpin. 750 F.3d at 993.
And "we do not consider impairments controllable by treatment or medication to be
disabling." Id (internal citation omitted). Further,"[a]n ALJ may decline to credit a
claimant's subjective complaints if the evidence as a whole is inconsistent with the
claimant's testimony." Swink. 931 F.3d at 771 (internal quotation marks omitted). See
also Partee v. Astrue. 638 F.3d 860, 865 (8th Cir. 2011). ALJs should also look to daily
activities performed by claimants: "While daily activities alone do not disprove disability.
® In 2017,the Social Security Administration supplanted SSR 96-7p with SSR 16-3p. In doing so, the
Administration removed the term "credibility," to make clear that "subjective symptom evaluation is not an
examination of an individual's character." SSR 16-3p, 2017 WL 5180304, at *3(Oct. 25,2017). See Lawrence v.
Saul. 970 F.3d 989, 995 n.6(8th Cir. 2020)(explaining how "SSR 16-3p eliminates use ofthe term 'credibility' and
clarifies that the Commissioner's review of subjective assertions of the severity ofsymptoms is not an examination
of a claimant's character, but rather, is an examination for the level of consistency between subjective assertions and
the balance of the record as a whole. SSR 16-3p ... largely changes terminology rather than the substantive
analysis to be applied.") Thus, prior case law under SSR 96-7p remains relevant and analogous to matters under
SSR 16-3p.
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they are a factor to consider in evaluating subjective complaints of pain." Swarthout, 35
F.4th at 612(internal quotation marks omitted). Fibromyalgia cases, though, pose unique
challenges that must be uniquely addressed.
The Eighth Circuit has "held, in the context of a fibromyalgia case, that the ability
to engage in activities such as cooking, cleaning, and hobbies, does not constitute
substantial evidence of the ability to engage in substantial gainful activity." Brosnahan v.
Bamhart, 336 F.3d 671,677(8th Cir. 2003). Again, this is because of the uniquely
subjective nature of fibromyalgia and the difficulty in discerning objective indicia of its
effects. See Tillev, 580 F.3d at 681 ("[Petitioner's] ability to complete light housework
and short errands does not mean that she has the ability to perform the requisite physical
acts day in and day out, in the sometimes competitive and stressful condition in which
real people work in the real world.")(internal quotation marks omitted). So, in
fibromyalgia cases, an additional step is set upon ALJs: they must specifically consider
subjective assertions of disabling pain by claimants within the particular context of
fibromyalgia, where typical activities such as cooking and cleaning are not offered as
significant weight as in other impairments, and carefully explain on the record why
subjective claims are being discounted within this specific context of fibromyalgia. To do
any less would contradict clear precedential demands of an additional step of analysis in
fibromyalgia-related matters.
Here, the ALJ properly listed the myriad of subjective claims of serious pain
offered by Svendsen. These included "daily headaches"(although Svendsen admitted
she does not take medication for it), inability to follow recipes, and to "lift, squat, bend,
stand, reach, walk, sit, kneel, talk, hear, climb stairs, see, remember, complete tasks,
concentrate, understand, follow instructions,[and] use her hands." A.R. 22. One could
well be suspicious of such a conclamation of complaints. Additionally, the ALJ looked
to Svendsen's day-to-day living, such as her ability to care for household pets, partially
attend to personal hygiene,"prepar[e] simple or frozen meals, complet[e] light household
chores, driv[e] short distances, shop[] in stores or online, operat[e] a computer, and
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spend[] time with family." Id.^ This list of common activities was the anchor for the
ALJ's finding that "the medical evidence, signs and findings upon objective examinations
simply do not reflect the degree of limitations alleged by the claimant." Id (emphasis
added). But at the risk ofsounding like a broken record, fibromyalgia poses unique
challenges distinguishable from most other impairments, specifically its near exclusively
subjective nature.
The ALJ could have reached the same conclusion that the record "simply do[es]
not reflect the degree of limitations alleged by the claimant," but only after properly
discounting the typical weight awarded to light household activities and analyzing them
within the fibromyalgia-specific lens. Id. In sum, the ALJ must perform the additional
step of explaining on the record this different weighing of subjective assertions versus
objective findings when fibromyalgia is a critical crux of the inquiry. See Davis v.
Astrue. 2012 WL 5902401, at *6(W.D. Ark. Nov. 5, 2012)("[PJerhaps of greatest
importance to disability law, its symptoms are entirely subjective. There are no
laboratory [or other] tests for the presence or severity of fibromyalgia."). Only then can
the administrative judge be affirmed on review.
F. Determining Proper Scope of Inquiry for Jobs in the "National Economy"
Finally, the petitioner argues that the ALJ erred by constraining her analysis of
available jobs that she could perform at the national level, opposed to a more regional
focus. She is right. This portion of the ALJ's analysis also and independently must be
remanded so that the ALJ can tackle available jobs in the regional economy within the
context of petitioner's fibromyalgia, as exhaustively explained above.
At Step 5, the ALJ turned to testimony from a vocational expert in determining the
number ofjobs available in the economy that the claimant could perform with her RFC to
warrant, on the administrative judge's path to an ultimate finding of no disability. In
'	The petitioner pushes against the ALJ's findings on her ease in performing household tasks as substantiated by
evidence in the record. See MEMORANDUM OF Law in Support of Plaintiff's Motion for Summary Judgment,
doc. 11 at 40-41. Because this matter is disposed on an error in not performing the extra step critical in
fibromyalgia-related questions of subjective pain, the Court does not delve into claimant's counter on the actual
extent of such household chores.
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turn, the VE consulted - as is typically done - the Department of Labor's Dictionary of
Occupational Titles("DOT"), a document that egregiously has not been updated since
1991 and is comfortably divorced from reality in 2022. Here, the VE looks for jobs
within the petitioner's RFC and whether they exist in ample numbers so that the ALJ can
conclude that there are in fact sufficient jobs in the economy for a claimant to pursue.
See Dictionary ofOccupational Titles -Fourth Edition, Revised 1991, OFF. Of Admin.
Law Judges,U.S. Dep't Lab., https://www.dol.gov/agencies/oalj/topics/libraries//-
LIBDOT (last visited July 13, 2022). See also Poole v. Kiiakazi. 28 F.4th 792, 795 (7th
Cir. 2022)("Needless to say, the fact that the DOT was last revised before the Internet
revolution means that it is a resource that must be used with care.").
The ALJ found Svendsen unable to perform her past work as either(1)an office
worker or(2)as an owner/operator of a bar and grill. A.R. 26-27.^ Next, the ALJ turned
to the VE, who characterized petitioner's past work as(1) a general clerk(DOT 209.562-
010), and(2)as a manager of a liquor establishment(DOT 187.167-126). at 27. The
administrative judge noted that this past work was "substantial gainful activity" and
performed "long enough for the claimant to achieve average performance and was
performed within the relevant period." Id. See SSR 82-62. In this instance the VE
testified that "an individual with the claimant's hypothetical limitation could not perform
her past relevant work." Id at 27. This conclusion was adopted by the ALJ.
Based on findings that the petitioner could not perform her past work and faced
limitations on her ability to perform the entire range of sedentary work, see Medical-
Vocational Rule 201.28, the VE testified as to whatjobs the petitioner could perform.
The expert posited she could be:(1)a microfilm document preparer(DOT 249.587-018),
with approximately 18,000 jobs in the national economy,(2)an envelope or typewriter
addresser(DOT 209.587-010), with roughly 3,000 jobs in the national economy, and a
"cutter and paster of press clippings"(DOT 249.587-014), with about 2,000 jobs in the
' Frankly, these two occupations would seem to require little by way of strenuous activity.
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national economy. Id at 28. All three jobs are sedentary and unskilled (as well as
divoreed from the modem era).
The parties disagree on what exactly the proper field of inquiry is: must the ALJ
(and thus, the VE)look at approximate number of available and applicable jobs within
the framework of the country writ large, or within a more specific analysis of a claimant's
specific region? The plain meaning ofthe text demands the latter.
"As always, we begin with the text." Sw. Airlines Co. v. Saxon, — S.Ct. —,2022
WL 1914099, at *5 (June 6, 2022). See also United States v. Raiburn, 20 F.4th 416,422
(8th Cir. 2021). 42 U.S.C. § 423(d) states:
(d)"Disability" defined
(1)The term "disability" means -
(A)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 eontinuous period of not less than 12 months;
(2)For purposes of paragraph (1)(A)-
(A)An individual shall be determined to be under a disability only if
[her] physical or mental impairment or impairments are of such
severity that [she] is not only unable to do [her] previous work btu
cannot, considering [her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the
immediate area in which [she] lives, or whether a specific job
vacancy exists for [her], or whether [she] would be hired if[she]
applied for work. For purposes of the preceding sentenee (with
respect to anv individual),"work which exists in the national
eeonomv" means work which exists in sisnificant numbers either in
the resion where such individual lives or in several re2ions ofthe
country.
(emphasis added). As this Court has previously explained:"What is clear from the above
emphasized language is that 'work which exists in the national economy' is a term of art
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in Social Security law. It does not mean work in the entire United States. Instead, it
means 'work which exists in significant numbers either in the region where such
individual lives or in several regions of the country.'" Porter v. Berrvhill, 2018 WL
2138661, at *63(D.S.D. May 9, 2018)(emphasis in original)(quoting A2 U.S.C. §
423(d)(1)(A)). The text could not be clearer: nationwide numbers do not suffice. See
Heather R. v. Saul. 2021 WL 3080331, at *24(D.S.D. July 21, 2021)("Whatever the
preeise definition of region is, it does not mean nationally, nor does it mean the
claimant's immediate area.")(internal quotation marks omitted). True, at first glance,
this may seem illogical: how can "work which exists in the national economy" not mean
a survey of the nation writ large? But the text clearly provides the answer: within this
specific context,"national economy" is undoubtedly a term of art with two separate
definitions,(1)those jobs with significant numbers in the specific "region" where a
claimant lives; or(2)jobs in several regions of the country (i.e., several subdivisions of
the country as a whole). "Region" is undefined. To argue that this carefully defined
term,"national economy," means a generalist overview of national numbers is in clear
contradiction ofthe statute's text. This Court has time and time again arrived at this
conclusion. See Melvin W v. Kiiakazi, 2022 WL 540274, at *3-10(D.S.D. Feb. 23,
2022), Heather R.. 2021 WL 3080331, at *23-26, Benthin v. Saul. 2021 WL 2982719, at
*7-9(D.S.D. July 15, 2021), Flateaual v. Saul 2019 WL 4857585, at *26-27(D.S.D.
Oct. 2, 2019), Spring v. Saul. 2019 WL 4855186, at *33-39,(D.S.D. Oct. I, 2019).
Here, the VE only supplied the ALJ with national numbers for the three (outdated)
positions for which Svendsen qualified; accordingly, the findings below cannot withstand
its deferential standard of review.
True, other sister district courts have used a more "pragmatic" approach in
discerning what exactly work in the nationwide eeonomy means. See Evert v. Kiiakazi,
2022 WL 1749611, at *6-7(D.N.D. Feb. 17, 2022), Alice T. v. Kiiakazi. 2021 WL
5302141, at *16-17(D. Neb. Nov. 15, 2021), Havden v. Saul. 2020 WL 888002, at *10-
11 (E.D. Mo. Feb. 24, 2020). And so have some circuit courts. See Ravmond v. Astrue,
621 F.3d 1269, 1274 (10th Cir. 2009)(Gorsuch, J.), Harmon v. Apfel 168 F.3d 289,
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292-93 (6th Cir. 1999). However, this Court is bound by the meaning ofthe text and will
not go astray in the face of statutory commands, regardless of policy reasons offered by
other courts.
The Commissioner overstates the breadth of circuit analysis antithetical to the
repeated holdings ofthis District. Respondent cites to circuit court opinions where the
regional vs. national debate does not appear to be briefed or argued. See Purdv v.
Berrvhill 887 F.3d 7 (1st. Cir. 2018)(Souter, J.), Sanchez v. Comm'r of Soc. Sec., 705 F.
App'x 95 (3rd Cir. 2017)(unpublished). The Commissioner also cites to a per curiam
opinion void of meaningfiil analysis on the issue. See Lirlev v. Bamhart, 124 F. App'x
283 5th Cir. 2005)(per euriam)(unpublished). Additionally, she cites to the Ninth
Circuit's opinion in Gutierrez v. Commissioner of Social Security, which predominately
focused on the proper classification ofregions, not whether the ALJ can disregard §
423(d)(l)(A)'s commands altogether. S^ 740 F.3d 519, 523-29(9th Cir. 2014). These
opinions do not trump what the statute demands of this Court.
The Commissioner's well-researched briefing on relevant legislative history
cannot rescue her argument. See Defendant's Memorandum in Support of the
Commissioner's Decision and in Response to Plaintiff's Motion for Summary
Judgment,doc. 16 at 24-25. True, the Eighth Circuit has noted in dicta that "[t]he
legislative history shows that the intent of the [amendment including § 423(d)(2)(A)] is to
provide a definition of disability which can be applied uniformly throughout the nation,
without regard to local hiring practices or employer preferences." Dressel v. Califano,
558 F.2d 504, 509(8th Cir. 1977)(citing S.Rep.No. 744, 90th Cong., 1st Sess. 49(1967),
reprinted, 1967 USCCAN,2834, 2880-82). But Senate Reports do not trump text. See
Azar V. Allina Health Servs.. 139 S.Ct. 1804, 1814(2019)(reaffirming that "legislative
history is not the law.")(quotins Epic Svs. Corp. v. Lewis. 138 S.Ct. 1612, 1631 (2018)).
Further, the legislative history is not fully divorced from the text itself. To reiterate, there
are two definitions of"work which exists in the national economy;" while the first is the
claimant's specific region, the second is "several regions of the country." 42 U.S.C. §
423(d)(2)(A). So, there remains the option for the VE and ALJ to ignore "local hiring
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practices or employer preferenees [of the elaimant's specific region], or to the state ofthe
local . .. economy [such as only looking to South Dakota]," if they elect to provide
numbers for the second definition of"several regions ofthe eountry." HOUSE Ways &
Means Comm.Report 30(Aug. 7, 1967), H.Rep.No. 544, 90th Cong., 1st Sess. True,
the ALJ and VE would still have to compile numbers of specific regions, but they would
not be constrained to only look at a claimant's exclusive region, and thus be an additional
step detached from the unique eharacter of any one specific economy or area. While
legislative history is "informative" and should be eonsidered in disseeting ambiguous
statutory provisions, "it does not override the plain meaning of the unambiguous text."
Downs V. Holder. 758 F.3d 994,997(8th Cir. 2014). See id.("Congress's authoritative
statement is the statutory text, not the legislative history."){quoting Chamber of Com, of
U.S. V. Whiting. 563 U.S. 582, 599(2011)). However, as previously noted, what exactly
is a "region" for this analysis?
There remains debate on what specifieally eonstitutes a "region." The SSA has
not offered a meaningful definition, except to relatedly note that it is not equal to
"immediate area." See 20 C.F.R. § 404.1566(a)(1). Courts have also offered differing
answers. See generallv Barrett v. Bamhart, 368 F.3d 691,691-92(7th Cir. 2004)(per
curiam)(explaining that proper inquiry is "whether [elaimant] is so disabled that there are
no jobs in reasonable proximity to where she lives that she is physically able to do.")
(internal quotation marks omitted), Melvin W.2022 WL 540274, at *5-6, 10 ("[T]he
term 'region ... is flexible' and ean refer to 'the entire state' or to 'a particular area of the
state.'")(alterations in original)(quotins Vargas v. Colvin. 2013 WL 6254784, at *4
(C.D. Cal. Dee. 4, 2013)(citing Soc. Sec. Law & Practice § 43:137(Dec. 2013)),
Heather R.. 2021 WL 3080331, at *24. At minimum,"it does not mean nationally, nor
does it mean the claimant's immediate area." Heather R.. 2021 WL 3080331, at *24
(emphasis in original)(internal quotation marks omitted). Ultimately, though, this Court
need not decide the specific contours of"region" because the VE failed to proffer
numbers below the national number at all. On remand, the VE must supply approximate
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job numbers at a regional scale so that the ALJ can determine if there are ample available
jobs for the claimant either in her region or in other regions of the country.
Finally, the Commissioner throws the Hail Mary of arguing that the VE did not
identify "uncommon jobs, such as a shrimp boat worker or tobacco farmer, which may
not exist in many parts ofthe country," to seemingly contend any error below was
harmless. Defendant's Memorandum in Support of the Commissioner's Decision
AND IN Response to Plaintiff's Motion for Summary Judgment, doc. 16 at 27.
The absurdity of the specific jobs offered by the VE bears discussion.
Again, the three jobs presented by the VE are microfilm document preparer, a
mail/typewriter addresser, and a cutter and paster of press-clippings. This Court wonders
how many today could pick microfilm out of a lineup, putting aside any discussion of its
irrelevance today. Other courts have found microfilm document preparers as "plainly
obsolete positions." Zacharopoulos v. Saul, 516 F. Supp. 3d 211, 223(E.D.N.Y. 2021).
The Court also finds this position "plainly obsolete" and not tethered to modern day
America.
Next, the addresser. The addresser specifically relates to "[ajddresses by hand or
typewriter ... May sort mail." DOT 209.587-010. No reasonable person can say with a
straight face that addressing typewriters - yes, typewriters - is a position well-saddled in
the 21st century. See Skinner v. Berrvhill, 2018 WL 1631275, at *6(C.D. Cal. Apr. 2,
2018)("[I]t is not unreasonable to assume that the occupation of'addresser,' which - as
described by the DOT - provides for addressing envelops by hand or by typewriters, an
occupation that has significantly dwindled in number since 1991 in light oftechnological
advances. That being the case, a reasonable mind would not accept the VE's testimony
that there are over 3,000 such positions in the region of California alone")(emphasis in
original). See also Alaura v. Colvin. 797 F.3d 503, 508 (7th Cir. 2015)(Posner, J.)("And
does anyone use a typewriter any more?"). Not even the U.S. Postal Service sorts mail
by hand.
Finally, the cutter and paster. Courts have consistently found that this position is
"obsolete and [that] the DOT numbers [are] not believable." Hardv v. Comm'r of Soc.
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Sec., 2021 WL 2695354, at *3(N.D. Miss. June 30,2021)(internal citation omitted).
See also Read v. Comm'r, Soc. Sec.. 2016 WL 2610117, at *4(D. Md. May 6,2016)
(noting that cutter and paster is "patently obsolete."). Print newspapers continue to
decline in circulation, and with it, the few remaining cutter and paster jobs (if any still
actually exist). The Census Bureau recently noted that total estimated weekday
circulation of American daily newspapers was 55.8 million in 2000. Adam Grundy,
Service Annual Survey Shows Continuing Decline in Print Publishing Revenue, UNITED
States Census B., https://www.census.gov/library/stories/2022/06/intemet-crushes-
traditional-media.html(June 7, 2022). In 2020, the total circulation was 24.2 million.^
How,then, can one say 3,000 cut and paste jobs remain in 2022? The answer is easy:
you cannot. In 2022, the positions presented by the VE - such as a microfilm document
preparer - are as ludicrous in Aberdeen as a circus supervisor(DOT 969.138-010), a
fishing vessel dockhand(DOT 922.687-062), or a banana cutter(DOT 929.687-010). To
argue there are ample jobs as a cutter and paster of press clippings is as nonsensical as
arguing that "there are 3,600 head dance hail hostess positions in the [California-area]
economy and 342,000 in the national economy." Farias v. Coivin, 519 F. App'x 439,440
(9th Cir. 2013)(unpublished). Even the SSA itself has admitted "[i]t is doubtful that
these jobs [including cutter and paster] as described in the DOT,currently exist in
significant numbers in our economy. Mark Trapani & Deborah Harkin, Occupational
and Medical-Vocational Claims Review Study 7, Soc. SEC. Admin.(May 2011).
Not only did the ALJ err by not properly considering available jobs within the
specific analysis explained above for fibromyalgia, but also by failing to examine
relevant regional job numbers. On remand, such specificity is required. "[W]e are not
'free to pave over bumpy statutory texts in the name of more expeditiously advancing a
policy goal.'" Sw. Airlines Co.. — S.C.t—,2022 WL 1914099, at *8 (quoting New
'Circulation hits close to home for the petitioner: recently the claimant's hometown newspaper announced further
restrictions to its print edition, eliminating Monday print delivery as of April 2022. See American News will Cease
Monday Home Delivery in April, ABERDEEN AM.NEWS, https://www.aberdeennews.com/story/lifestyle/columns/-
2022/03/2l/aberdeen-american-news-stop-monday-home-delivery-april/7059482001/(March 21, 2022). In
addition, the local newspaper provides no paper at all on Sundays.
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Prime Inc. v. Oliveria., 139 S.Ct. 532, 543 (2019)). Perhaps legislative history indicates a
possible intent of looking for available jobs at the national scale divorced from regional
analyses. But this Court cannot adopt legislative history at the cost of ignoring
unambiguous text demanding the contrary. See Bostock v. Clavton Cntv. Georgia, 140
S.Ct. 1731, 1738(2020)("Ifjudges could add to, remodel, update, or detract from old
statutory terms inspired only by extratextual sources and our own imaginations, we
would risk amending statutes outside the legislative process reserved for the people's
representatives."). Had Congress ultimately meant a broader reading,"they 'easily could
have drafted language to that effect.'" Kemp v. United States, — S.Ct. —,2022 WL
2111354, at *5 (June 13, 2022)(quotim Mississippi ex rel. Hood v. AU Optronics Corp..
571 U.S. 161, 169(2014)). However, these days, Congress mostly takes time off and
raises money. Instead, this Court reaffirms its (repeated) past holdings that specificity is
required beyond sheer national numbers. Rather, the ALJ(and the VE)must look to
either(1)the approximate number of relevant jobs within Ms. Svendsen's specific region,
or(2)the approximate number within several regions ofthe country. Only then (and
after reconsidering its findings within the nuanced analyses required for fibromyaigia),
can the findings below withstand this Court's review.
III. REMAND
For the reasons explained above, the Commissioner's denial of benefits is not
supported by substantial evidence in the record. Petitioner requests reversal ofthe
Commissioner's decision with remand and instruction for an award of benefits, or, in the
alternative, reversal with remand and instructions to reconsider her case. The latter is
appropriate in this instance. The former is not.
Section 405(g) of Title 42 of the United States Code governs judicial review of
final decisions made by Commissioner Kijakazi. Namely, it authorizes two types of
remand orders:(1)a "sentence four" remand and (2)"sentence six" remand. See Travis
V. Astrue, 477 F.3d 1037, 1039-40(8th Cir. 2007). Sentence four remands authorize this
Court to enter a judgment "affirming, modifying, or reversing the decision ofthe
Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
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See Buckner v. Apfel, 213 F.3d 1006, 1010(8th Cir. 2000). In contrast, a sentence six
remand is authorized in only two situations;(1) where the Commissioners requests
remand before answering the Complaint; and (2)where new and material evidence is
presented that for good cause was not presented during the administrative proceedings
below. 42 U.S.C. § 405(g); Shalala v. Schaefer. 509 U.S. 292, 297 n.2(1993). Neither
route under sentence six is applicable here.
Instead, a "sentence four" remand is appropriate. However, a remand with
instructions to award benefits is appropriate "only ifthe record overwhelming supports
such a finding." Buckner, 213 F.3d at 1011 (internal quotation marks omitted). Here,
while there is an improper denial of benefits, there is an absence of the necessary
overwhelming evidence to support a finding of disability. Rather, out of"an abundance
of deference to the agency's authority to make benefits determinations," this Court leaves
it to the ALJ to conduct further administrative findings and reexamine the record
consistent with this Memorandum and Order. Ingram v. Bamhart, 303 F.3d 890, 895 (8th
Cir. 2002)(internal citation omitted).
IV. CONCLUSION
This Memorandum and Order carefully explains why the petitioner's motion for
summary judgment should be granted in part and denied in part. The Court emphasizes
that nothing in this opinion mandates the ALJ to ultimately conclude a finding of
disability or not. Rather, it simply tasks the ALJ below to reconsider the record before
her within the proper statutory and regulatory framework. Specifically, this Court holds
that:
(1) The ALJ properly identified all of Svendsen's impairments and determined their
severity;
(2) The ALJ properly evaluated her headaches at Step Three to a medically equivalent
listing;
(3) The ALJ erred in not properly scrutinizing fibromyalgia alongside the relevant
medically equivalent listing;
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(4) The ALJ erred in not properly considering all relevant factors related to the unique
challenges surrounding fibromyalgia when determining the RFC;
(5) The ALJ was within her purview to find Dr. Jacob Miller's conclusions
"unpersuasive;"
(6)The ALJ was well within her bounds to conclude Dr. Richard Hardie's findings were
"less persuasive;"
(7) The ALJ's findings related to manipulative limitations cannot stand when specific
extra analysis is required related to the complexities surrounding fibromyalgia;
(8) The ALJ's findings on the sit/stand option cannot stand when void of support in the
record and for not performing the additional analysis necessary for unique challenges
in fibromyalgia matters;
(9)The claimant's subjective symptoms, specifically within regards to fibromyalgia-
related pain, were not properly weighed; and
(10) The ALJ and VE erred by not considering available jobs applicable to Svendsen at
a more granular level than the nation writ large.
This Court is cautious to avoid "playing doctor." Pate-Fires. 564 F.3d at 946-47.
However, in matters where errors in properly considering disability applications warrant
remand, courts can and must require order adjudication by ALJs below. Nothing in this
Memorandum and Order requires the ALJ to hold differently on remand; rather, the ALJ
must tackle these specifically listed steps necessary to properly tackle fibromyalgia-
related claims, as well as a more specific study of regional jobs within the larger national
economy. Only then can the findings below be supported by substantial evidence on the
record as a whole. As an aside, I fully recognize the tremendous demand on ALJs faced
with increasing caseloads and inadequate support.
IT IS HEREBY ORDERED that petitioner's motion for summary judgment. Doc.
10, is granted in part and denied in part.
IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly
identifying all impairments and determining their severity, is denied.
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IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly
evaluating whether headaches were medically equivalent to a Listing, is denied.
IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly
evaluating whether fibromyalgia was medically equivalent to a Listing, is granted.
IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly
determining the RFC in relation to fibromyalgia, is granted.
IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly
determining the RFC in relation to finding Dr. Jacob Miller's conclusions as
unpersuasive, is denied.
IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly
determining the RFC in relation to finding Dr. Richard Hardie's conclusions as less
persuasive, is denied.
IT IS FURTHER ORDERED that petitioner's claim that the ALJ erred in properly
determining the RFC in relation to manipulative limitations, is granted.
IT IS FURTHER ORDERED that petitioner's claim that the ALJ erred in properly
determining the RFC in relation to the sit/stand option, is granted.
IT IS FURTHER ORDERED that petitioner's claim that the ALJ erred in properly
evaluating her subjective symptoms, is granted.
39
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IT IS FURTHER ORDERED that petitioner's claim that the ALJ and VE failed to
properly identify available jobs at one or more regional levels, is granted.
DATED this / <y ^av of July, 2022
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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Case 1:21-cv-01029-CBK Document 19 Filed 07/14/22 Page 40 of 40 PageID #: <pageID>