AMIEL

v.

COMMISSIONER OF SOCIAL SECURITY

Order Cynthia Amiel brings this action under 42 U.S.C. § 405(g) to review a final decision of the Acting Commissioner of Social Security denying her application for disability insurance benefits. Doc.

1. Under review is a decision

by an Administrative Law Judge (ALJ) signed on October 22, 2019. Tr. 43–62. Amiel argues the ALJ erred in determining her narcolepsy was nonsevere and in failing to adequately consider her fibromyalgia. Doc.

28. The

Acting Commissioner contends there is no error. Doc.

29. The procedural

history, administrative record, and law are summarized in the briefs, Docs. 28, 29, and not fully repeated here. The Social Security Administration (SSA) uses a five-step sequential process to decide if a person is disabled, asking whether (1) she is engaged in substantial gainful activity, (2) she has a severe impairment or combination of impairments, (3) the impairment or combination of impairments meets or equals the severity of anything in the regulatory listings, 20 C.F.R. Part 404, Subpart P, App’x 1, (4) she can perform any of her past relevant work given of jobs in the national economy she can perform given her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4).

Here, the ALJ conducted a hearing in September 2019, at which Amiel— who was represented by counsel—and a vocational expert (VE) testified. Tr. 70–110. Afterward, the ALJ issued the decision under review, proceeding through the five-step sequential process. At step one, the ALJ found Amiel had not engaged in “substantial gainful activity since August 4, 2017, the alleged onset date.” Tr. 45 (emphasis omitted).

At step two, the ALJ found Amiel has severe impairments of fibromyalgia, spinal stenosis, Hashimoto thyroiditis, lupus, migraine headaches, and depression. Tr. 45. The ALJ found other impairments, including narcolepsy, nonsevere. Tr. 45–46. At step three, the ALJ found Amiel has no impairment or combination of impairments that meet or medically equal the severity of any impairment in the regulatory listings. Tr. 46. The ALJ found Amiel has the RFC to perform “less than the full range of light work”:

The claimant remains able to lift up to 20 pounds occasionally, lift or carry up to 10 pounds frequently. Stand or walk approximately 6 hours per 8-hour workday, and sit for approximately 6 hours per 8-hour workday with normal breaks. Never climb ladders, ropes, or scaffolds. Frequent all the other postural limitations including climbing ramps or stairs, balancing, stooping, crouching, kneeling, and crawling. The claimant must avoid concentrated exposure to extreme cold, excessive wetness, excessive vibration, and hazards. The claimant is limited to only understanding, remembering, and carrying out, and performing simple, routine tasks and instructions. Tr. 47 (emphasis omitted).

At step four, the ALJ found Amiel cannot perform any “past relevant work.” Tr. 60 (emphasis omitted).

At step five, the ALJ relied on the VE’s testimony and found Amiel can perform jobs that exist in significant numbers in the national economy and thus is not disabled. Tr. 60–61.

A court’s review of a decision by the Acting Commissioner is limited to whether substantial evidence supports the factual findings and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F. 3d 1219, 1221 (11th Cir. 2002).

Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoted authority omitted).

The “threshold for such evidentiary sufficiency is not high.” Id. At step two, an ALJ considers whether a claimant has a severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii).

A severe impairment significantly limits a claimant’s ability to do basic work activities. See 20 C.F.R. § 404.1522(a) (defining “non-severe impairment”).

Basic work activities are the abilities and aptitudes necessary to do most jobs. Id. § 404.1522(b).

An impairment is nonsevere “only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience.” Schink v. Comm’r of Soc. Sec., 935 F. 3d 1245, 1265 (11th Cir. 2019).

To be severe, an impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. § 404.1509. A claimant has the burden of proving an impairment is severe. Schink, 935 F. 3d at 1265. Step two is a “threshold inquiry and allows only claims based on the most trivial impairments to be rejected.” Id. (internal quotation marks omitted).

It “acts as a filter” to eliminate claims involving no substantial impairment. Jamison v. Bowen, 814 F. 2d 585, 588 (11th Cir. 1987).

A finding of any severe impairment satisfies step two. Id.

Thus, an ALJ need not identify every severe impairment at step two. Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949, 951 (11th Cir. 2014); Delia v. Comm’r of Soc. Sec., 433 F. App’x 885, 887 (11th Cir. 2011).

A claimant’s RFC is the most she can still do despite her limitations. 20 C.F.R. § 404.1545(a)(1).

The RFC is used to decide whether the claimant can perform past relevant work and, if not, to decide whether there are other jobs in significant numbers in the national economy she can perform. Id. § 404.1545(a)(5).

The “mere existence” of an impairment does not reveal its effect on a claimant’s ability to work or undermine RFC findings. Moore v. Barnhart, 405 F. 3d 1208, 1213 n.6 (11th Cir. 2005).

In assessing the RFC, the ALJ must consider all impairments—severe and nonsevere. Schink, 935 F. 3d at 1268. To determine disability, the SSA considers a claimant’s symptoms and the extent to which they “can reasonably be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(a).

Statements about symptoms alone cannot establish disability. Id. § 404.1529(a), (b).

Objective medical evidence from an acceptable medical source must show a medical impairment that “could reasonably be expected to produce the … symptoms” and, when considered with the other evidence, would lead to a finding of disability. Id. The finding that an impairment could reasonably be expected to produce the symptoms does not involve a finding on the intensity, persistence, or functionally limiting effects of the symptoms. Id. § 404.1529(b).

For that finding, the ALJ considers all available evidence, including medical history, medical signs, laboratory findings, and statements about how the symptoms affect the claimant. Id. § 404.1529(a), (c).

The ALJ then determines the extent to which “alleged functional limitations and restrictions due to … symptoms can reasonably be accepted as consistent with the medical signs and laboratory findings and other evidence to decide how” the symptoms affect the ability to work. Id. § 404.1529(a).

The ALJ’s “subjective symptom evaluation is not an examination of an individual’s character.” SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017) (republished).

Factors relevant to evaluating the claimant’s symptoms include: daily activities; the location, duration, frequency, and intensity of the symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication to alleviate the symptoms; treatment for the symptoms other than medication; and measures used to relieve the symptoms. 20 C.F.R. § 404.1529(c)(3).

To determine the extent to which the claimant’s symptoms affect her capacity to perform basic work activities, the ALJ considers statements about the intensity, persistence, and limiting effects of the symptoms; the statements in relation to the objective medical and other evidence; any inconsistencies in the evidence; and any conflicts between the statements and other evidence, including history, signs, laboratory findings, and statements by others. Id. § 404.1529(c)(4).

An ALJ must clearly articulate explicit and adequate reasons for rejecting a claimant’s testimony about symptoms. Foote v. Chater, 67 F. 3d 1553, 1561–62 (11th Cir. 1995).

A court will not disturb a clearly articulated finding about the claimant’s symptoms if it is supported by substantial evidence. Mitchell v. Comm’r, Soc. Sec. Admin., 771 F. 3d 780, 782 (11th Cir. 2014). “Narcolepsy is a chronic neurological disorder characterized by recurrent periods of an irresistible urge to sleep” that range from a few seconds to thirty minutes. Soc. Sec. Admin., Program Operations Manual System, DI 24580.005. Other common symptoms are cataplexy attacks (loss of muscle tone that sometimes causes collapse and unconsciousness), hypnagogic hallucinations (hallucinations between sleep and wakening), and sleep paralysis. Id. Narcolepsy has no physical abnormalities, and except for sleep studies, laboratory studies will be normal. Id. Narcolepsy is “most frequently treated by the use of drugs[.]” Id. Here, the ALJ found at step two that Amiel’s narcolepsy was nonsevere, stating Amiel “did receive treatment for narcolepsy, but there is no evidence of persistent symptomatology or ongoing treatment with respect to this condition.” Tr.

45.

At the hearing, Amiel testified she stopped working primarily due to fatigue. Tr. 81–83, 86, 92. She was diagnosed with narcolepsy. Tr.

82. When

asked to describe the effects of narcolepsy on her functioning, she testified she never feels rested waking up. Tr.

86. She wakes up feeling like she is “drugged.” Tr.

92. Despite trying to stay awake during the day, she typically naps for at least two or three hours a day. Tr.

87. She worries about driving because of the

fatigue. Tr.

92. She drives “[v]ery rarely” and only about two miles. Tr. 95–96. She stated, “I could literally be in the car at a stop light and close my eyes and take cat naps, just severe, severe fatigue.” Tr.

83. She lacks the “stamina” to walk around the grocery store and load the groceries. Tr.

96. As to household

chores, she testified, “I’m so weak and my stamina is so bad right now, I can’t do very much without having to take breaks.” Tr.

96. She may load the

dishwasher on a “good” day and unload it on a “fantastic” day. Tr.

96. On a bad

day, she is usually in bed or on the couch. Tr.

96. From March to June 2019,

she kept a journal describing her “daily struggles.” Tr. 94; see Tr. 312–17 (journal). The journal repeatedly references fatigue. See Tr. 312–17. Contrary to the ALJ’s finding, the record shows Amiel persistently exhibited narcolepsy symptoms and received ongoing treatment for it. She has been treated for her narcolepsy or fatigue by multiple doctors, including Dr. Robert Bevis, Dr. Mohamad Shahrour, Dr. Ann Winny, and Dr. Eric Lipson.

The record shows Amiel began having “excessive daytime sleepiness” in 2016. Tr.

457.

In April 2017, she told Dr. Shahrour the fatigue was “getting worse” and that she could “fall asleep anytime” and never feels refreshed. Tr.

457. In May 2017, she underwent a sleep study that showed frequent leg movements and poor sleep efficiency (55 percent efficiency) caused by frequent arousals (73 awakenings). Tr. 627–34.

In June 2017, she told Dr. Winny the fatigue was “still significant.” Tr.

472. Dr. Winny diagnosed her with “[s]evere fatigue of unknown etiology.” Tr.