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Arakas v. Berryhill

United States District Court, D. South Carolina, Florence Division

March 21, 2019

Esin E. Arakas, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          Timothy M. Cain United States District Judge

         The plaintiff, Esin E. Arakas (“Arakas”), brought this action pursuant to the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (“Commissioner”), denying her claim for Disability Insurance Benefits (“DIB”). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a), D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge's Report and Recommendation (“Report”), recommending that the court affirm the Commissioner's decision. (ECF No. 22).[1]In the Report, the magistrate judge sets forth the relevant facts and legal standards, which are incorporated herein by reference. Arakas filed objections to the Report (ECF No. 24), and the Commissioner responded to those objections (ECF No. 27). Accordingly, this matter is now ripe for review.

         BACKGROUND

         On April 22, 2010, Arakas applied for DIB, alleging a disability onset date of November 11, 1996. (ECF No. 6-2 at 23). Her claim was denied both initially and on reconsideration by the Social Security Administration (“SSA”). Id. Arakas then requested a hearing before an Administrative Law Judge (“ALJ”), and on June 15, 2012, the ALJ conducted a hearing on Arakas's claims for DIB, where Arakas was represented by counsel. Id. At the hearing, the claimant amended her alleged onset date of disability to January 1, 2010. Id. On August 28, 2012, the ALJ issued an opinion finding that Arakas was not disabled. Id. at 23-33. Arakas subsequently appealed to the Appeals Council, and it denied Arakas's request for review. Id. at 2-6. Arakas filed an action with the District Court, and on September 23, 2015, Magistrate Judge Thomas Rogers reversed and remanded the case based on new evidence that was first presented to the Appeals Council.[2] (ECF No. 6-11 at 31- 43). Upon receipt of Judge Roger's Order, the Appeals Council vacated the original ALJ decision and remanded the case to another ALJ for further proceedings and a new decision. (ECF No. 6-11 at 46).

         On February 24, 2017, Arakas appeared at another hearing before an ALJ.[3](ECF No. 6-10 at 5). On June 6, 2017, the ALJ issued an unfavorable decision, finding that Arakas was not disabled. Id. at 5 - 13. In that decision, the ALJ found that Arakas met the insured status requirements under the Social Security Act through December 31, 2014, and that Arakas had not engaged in any substantial gainful activity during the period from her alleged onset date through her date of last insured.[4] Id. at 7. The ALJ further found that Arakas suffered from severe impairments of fibromyalgia and degenerative disc disease. Id. at 7. The ALJ determined that Arakas's following impairments were not severe: carpal tunnel syndrome; degenerative joint disease; and a mental impairment. Id. at 7 - 8. In reviewing all of Arakas's impairments, the ALJ concluded that she did “not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” Id. at 8. Additionally, the ALJ calculated Arakas's residual functional capacity (“RFC”) and determined that she could perform light work with various limitations.[5] Id. at 9. Based on this RFC, the ALJ determined that Arakas is capable of performing her past relevant work as a dining room manager as actually and generally performed. Id. at 12. Accordingly, the ALJ determined that Arakas was not disabled as defined by the Act. Id. On August 31, 2017, Arakas filed this action. (ECF No. 1).

         STANDARD OF REVIEW

         The federal judiciary has a limited role in the administrative scheme established by the SSA. Section 405(g) of the Act provides, “the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). “Substantial evidence has been defined . . . as more than a scintilla, but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that substitutes the court's findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its review, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] own judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

         However, “[f]rom this it does not follow . . . that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative agency.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Rather, “the courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound foundation for the [Commissioner's] findings, and that this conclusion is rational.” Vitek, 438 F.2d at 1157-58.

         DISCUSSION

         The magistrate judge filed a Report recommending that the decision of the Commissioner be affirmed. (ECF No. 22). Arakas timely filed objections to the Report. (ECF No. 24). The Commissioner replied to those objections and further argued that Arakas's objections were simply a reiteration of arguments already before the magistrate judge. (ECF No. 27). The matter is now ripe for review.

         The court recognizes that Arakas's objections appear to largely be reiterations of the issues raised in her brief (ECF No. 14), and to extent that the objections are simply restatements of arguments already fully presented to the magistrate judge for review, they do not constitute specific objections to the Report. See Nichols v. Colvin, No. 2:14-cv-50, 2015 UL 1185894, at *8 (E.D. Va. Mar. 13, 2015) (finding that the rehashing of arguments raised to the magistrate judge does not comply with the requirement to file specific objections); Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004) (“An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as the term is used in this context.”). However, Arakas's objections do contain several specific reasons that she disagrees with the magistrate judge's assessment of those claims. Accordingly, the court will consider the following objections: (1) that the magistrate judge erred in evaluating Arakas's fibromyalgia because the magistrate judge “focused on the absence of objective findings” and did not focus on the long-term effects; and (2) that the magistrate judge erred in evaluating Arakas's subjective complaints. (ECF No. 24).

         As to Arakas's fibromyalgia, the magistrate judge determined that substantial evidence supported the ALJ's decision that her fibromyalgia caused some work limitations but was not disabling. (ECF No. 22 at 25-26). Arakas objects to this determination and states that the magistrate judge and ALJ erred in focusing on “the absence of objective findings” and in not considering the longitudinal record. (ECF No. 24 at 2-4). Pursuant to SSR 12-2p, the Social Security Ruling on evaluation of fibromyalgia, claims for disability benefits based on a claim of fibromyalgia are evaluated using the same 5-step sequential evaluation process as other claims for disability. Furthermore, SSR 12-2p makes it clear that before a person with a medically determinable impairment of fibromyalgia can be deemed disabled, there must be “sufficient objective evidence to support a finding that the person's impairment(s) so limits the person's functional abilities that it precludes him or her from performing any substantial gainful activity.” However, 12-2p also recognizes the subjective nature of fibromyalgia symptoms, noting that, when possible, the court should consider a “longitudinal record . . . because symptoms of [fibromyalgia] can wax and wane so that person may have ‘bad days and good days.'” SSR 12-2p; see also Smith v. Colvin, 1:14-cv-04400-RBH, 2016 WL 1089302, at *8 (D.S.C. Mar. 21, 2016) (finding that an ALJ's reliance exclusively on objective medical evidence “fail[ed] to account for the subjective nature of fibromyalgia” and stating that the longitudinal record should have been considered) (citing SSR 12-2p).

         Here, nowhere in the ALJ's decision did he state that he evaluated Arakas's fibromyalgia based solely on the absence of objective evidence. In fact, when calculating her RFC, the ALJ specifically stated that he had considered “all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” (ECF No. 6-10 at 9) (emphasis added). In particular, the ALJ considered Arakas's testimony regarding her symptoms, opinion evidence from a medical consultant, and opinion evidence from Arakas's treating physician in addition to relying on the objective medical evidence. Id. at 9 - 12. Accordingly, Arakas's objection arguing that the ALJ relied solely on the objective evidence is without merit and is overruled.

         Additionally, the court finds that the ALJ properly considered the longitudinal record that was before him in evaluating Arakas's fibromyalgia. In her objections, Arakas argues that the ALJ improperly considered “isolated notations” of periods when she responded to the medication well and that this did not account for the way that symptoms of fibromyalgia can wax and wane. (ECF No. 22 at 2 - 3). Arakas describes the periods when she responded positively to medication as “brief periods” that are likely to vary over time. Id. at 2. However, in considering Arakas's responses to medications over the years, the ALJ specifically noted that Arakas has not taken Loratab or any muscle relaxers for her pain since 2011 and has ...


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