IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DONNA F., §

PLAINTIFF, §

 §

V. § CIVIL CASE NO. 3:22-CV-690-S-BK

 §

COMMISSIONER OF SOCIAL §

SECURITY ADMINISTRATION, §

DEFENDANT. §

FINDINGS, RECOMMENDATIONS, AND CONCLUSIONS 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, before the Court are Plaintiff’s

motion for summary judgment and Defendant’s responsive brief, Doc. 10; Doc. 11. For the 

reasons that follow, Plaintiff’s Motion for Summary Judgment should be GRANTED, the 

Commissioner’s decision should be REVERSED, and this case should be REMANDED for 

further proceedings consistent with the findings and conclusions herein.

I. BACKGROUND

A. Procedural and Factual Background

Plaintiff seeks judicial review of the Commissioner’s final decision denying her 

application for disability insurance benefits under Title II of the Social Security Act (“the Act”).

Plaintiff filed her application in January 2020, alleging disability beginning in December 2015

due to fibromyalgia,1arthritis, chronic migraines, lazy eye, and vision impairment. Doc. 7-1 at 

1

“Fibromyalgia is a disorder characterized by widespread musculoskeletal pain accompanied by 

fatigue, sleep, memory and mood issues.” FIBROMYALGIA, Mayo Clinic, http://www.

mayoclinic.org/diseases–conditions/fibromyalgia/basics/definition/con–20019243 (last visited 

Aug. 1, 2023). Social Security Ruling 12-2p provides that the “somatic symptoms” of 

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81, 231, 265. The Commissioner denied Plaintiff’s application at all administrative levels, and 

she now appeals to this Court pursuant to 42 U.S.C. § 405(g). Doc. 7-1 at 5-10; Doc. 7-1 at 27; 

Doc. 7-1 at 89; Doc. 7-1 at 105.

Plaintiff was born in January 1961 and was 54 years old at the time of her alleged 

disability onset date. Doc. 7-1 at 81, 90. Plaintiff has a high school education with vocational 

training and past relevant work experience as a mortgage clerk and checker II. Doc. 7-1 at 236; 

Doc. 7-1 at 27, 76-77.

B. Medical History

Plaintiff’s medical records include a history of fibromyalgia, widespread body pain, 

headaches, fatigue, osteoarthritis, gastroesophageal reflux disease (GERD), kidney stones, 

Hashimoto’s thyroiditis, rhinitis, eye problems, depression, and anxiety. Doc. 7-1 at 360, 389-

392, 401-407, 443-445, 465, 470-472, 586-580, 602-603, 613, 724, 730-731. 

After receiving a positive antinuclear antibody (ANA) test result, Plaintiff established 

care with Robert M. Miller, M.D., in December 2016. Doc. 7-1 at 456-457, 639. In January 

2017, Dr. Miller referred Plaintiff to a rheumatologist, Rosy Rajbhandary, M.D., at Texas Health 

Huguley (Huguley) for evaluation of musculoskeletal pain. Doc. 7-1 at 470. Dr. Rajbhandary 

noted that Plaintiff had a tail bone fracture, whiplash injury resulting from three automobile

wrecks, and reported constant fatigue, headaches, back pain, dry itchy eyes, dry mouth, 

Raynaud’s, diffuse whole body pain measuring a level 9 on a scale of 10, fibromyalgia fog, and 

fibromyalgia include, among other things, “muscle pain, irritable bowel syndrome, fatigue or 

tiredness, thinking or remembering problems, muscle weakness, headache, pain or cramps in the 

abdomen, numbness or tingling, dizziness, insomnia, depression, [and] constipation.” Titles II 

and XVI: Evaluation of Fibromyalgia, SSR 12-2p, 2012 WL 3104869, at *3 n.9 (July 25, 2012). 

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constipation. Doc. 7-1 at 471. Dr. Rajbhandary noted that on examination, Plaintiff had 14 of 18 

fibromyalgia tender points using 4 kg force and assessed multiple joint pain and primary 

fibromyalgia syndrome. Doc. 7-1 at 471-472.

In April 2018, Plaintiff returned to Dr. Miller and reported fatigue, diminished activity, 

facial swelling, mouth lesions, abdominal pain, joint stiffness and swelling, and myalgia. Doc. 

7-1 at 453. In May 2018, she revisited Dr. Rajbhandary, who noted she had 12 of 18 

fibromyalgia tender points and tenderness of all extremities. Doc. 7-1 at 465. Dr. Rajbhandary 

prescribed Cyclobenzaprine and Methocarbamol for fibromyalgia, as well as Protonix for 

GERD. Doc. 7-1 at 465.

On follow-up with Dr. Miller in December 2018, Plaintiff reported migraine headaches

with nausea, speech difficulty, decreased concentration, muscle weakness, vomiting, diarrhea, 

and blurry vision that worsened with noise and light. Doc. 7-1 at 443, 445. Dr. Miller 

assessed headache, ordered a head magnetic resonance imaging (MRI) scan, provided a 

neurology referral, and prescribed Ketorolac and Propranolol. Doc. 7-1 at 446. In late 

December 2018, when Plaintiff visited an emergency room related for kidney stones, she 

reported no headaches and no back or neck pain. Doc. 7-1 at 570. 

In February 2020, Plaintiff saw Michelle Nash, NP, at Huguley, for follow-up care 

related to her fibromyalgia and reported muscle aches and arthralgias/joint pain. Doc. 7-1 at 

389-390. On examination, Plaintiff had tenderness of her extremities, 12 of 18 fibromyalgia 

tender points, and Bouchard’s and Heberden’s nodes on both hands. Doc. 7-1 at 391-392. NP 

Nash prescribed Gabapentin and continued Plaintiff on Cyclobenzaprine and Methocarbamol. 

Doc. 7-1 at 391-392. 

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In June 2020, when Plaintiff reported worsening pain in her right shoulder, right elbow, 

and left hip that had lasted for three weeks, NP Nash increased Plaintiff’s dose of Gabapentin 

and prescribed Celebrex and Cymbalta. Doc. 7-1 at 730. Also in June 2020, on a follow-up visit 

with her internist, Stella T. Hecker, M.D., Plaintiff reported muscle aches, muscle weakness, 

arthralgias/joint pain, back pain, swelling of her joints, morning stiffness, right arm and left hip 

pain, and migraine headaches. Doc. 7-1 at 586. Dr. Hecter noted that Plaintiff again had 12 of 

18 fibromyalgia tender points, extremities tenderness, and Bouchard’s and Heberden’s nodes on

both hands. Doc. 7-1 at 587-588. 

At her next visit to Dr. Hecker in October 2020, Plaintiff reported feeling tired for the 

past four months, but denied any back pain, muscle pain, myalgias, or headaches. Doc. 7-1 at 

602, 604. In November 2020, at Plaintiff’s annual examination, Dr. Hecker noted the diagnoses 

of generalized anxiety disorder, Hashimoto’s thyroiditis, depressive disorder, fibromyalgia, 

headache, and rhinitis. Doc. 7-1 at 613.

In connection with her disability insurance benefits application, Plaintiff obtained an 

October 2020 medical source statement from Dr. Rajbhandary. Doc. 7-1 at 593-596. She

reported that, in addition to normal breaks, Plaintiff would require an additional two hours of rest 

breaks during an 8-hour workday. Doc. 7-1 at 595.

C. Administrative Hearing

Plaintiff testified at her administrative hearing in January 2021 that she had “pretty bad” 

migraine headaches, during which, she had to go to bed, turn off all lights, and block all noise. 

Doc. 7-1 at 54. She testified it could take up to two to four hours for her headaches to subside

and that she had these headaches at least two to three times per month and believed they were 

triggered by her fibromyalgia and Hashimoto’s disease. Doc. 7-1 at 54-55. 

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Plaintiff further testified that her Hashimoto’s disease affected her estrogen and 

testosterone levels and that she had to have treatments every four months. Doc. 7-1 at 57. She 

asserted that when her hormone levels got depleted, she felt tired, lacked energy, could have 

migraines, and had itchy and dry skin. Doc. 7-1 at 58. She averred that she had good days and 

bad days as to her energy levels but on bad days, sometimes had to go to bed. Doc. 7-1 at 58.

Plaintiff claimed she could not walk very well since her fibromyalgia affected her hips, 

and that she began seeing Dr. Miller after she woke up one morning and could not walk or get 

out of bed. Doc. 7-1 at 58. She stated that eight to ten days per month she had trouble walking 

and had to lie in bed, sometimes all day, and that she had a tingling feeling all over her body 

when she lay down to sleep at night and could have trouble sleeping. Doc. 7-1 at 59. She 

testified that, in addition to her hip pain, she also had fibromyalgia pain in her feet, hands, neck, 

and shoulder, she could not stand too long or her feet hurt “really bad,” and she had trouble with 

her grip. Doc. 7-1 at 60. She also averred that if she tried to type on a computer keyboard, her 

fingers would start cramping and hurting, that she had trouble gripping a hairbrush while trying 

to brush her hair, and if she extended her arms for more than five to ten minutes, her shoulders 

started hurting and her arms felt heavy. Doc. 7-1 at 61.

Plaintiff testified that about eight times a month, she experienced fibromyalgia fog that 

affected her ability to concentrate, and also trouble comprehending things she read, requiring her 

to re-read things. Doc. 7-1 at 62. According to Plaintiff, on days she had fibromyalgia fog, she 

scrambled her words, her vision got blurrier, and she had trouble reading her mail or the 

newspaper. Doc. 7-1 at 63, 65-66. Plaintiff testified that on a good day, she could walk about a 

block, stand 30 minutes before having to sit in her recliner and rest, sit upright for an hour, and 

carry five pounds on an occasional basis. Doc. 7-1 at 62.

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D. The ALJ’s Findings

In August 2021, the ALJ issued an unfavorable decision, applying the customary fivestep sequential analysis. Doc. 7-1 at 16-28. The ALJ found that, from Plaintiff’s alleged onset 

date of December 31, 2015 through December 31, 2020 (her date last insured), Plaintiff had the 

severe impairments of “fibromyalgia, migraine headaches, osteoarthritis of hands, Hashimoto’s 

thyroiditis, [and] right eye amblyopia,” but did not have an impairment or combination of 

impairments that met or medically equaled a listing for presumptive disability under the Code of 

Federal Regulations. Doc. 7-1 at 19, 21. 

The ALJ further found that, through her date last insured, Plaintiff retained the residual 

functional capacity (“RFC”) to perform a modified range of sedentary work, with the additional 

limitation that she “can be off task up to, but not greater than, 10% of time during the workday.” 

Doc. 7-1 at 23. With the help of a vocational expert (“VE”), the ALJ found that Plaintiff was 

able to return to her past work as a mortgage clerk and checker II. Doc. 7-1 at 27, 76-77. 

Accordingly, the ALJ determined that Plaintiff had not been under a disability, as defined by the 

Act, from her alleged onset date through her date last insured. Doc. 7-1 at 28.

II. APPLICABLE LAW

An individual is disabled under the Act if, inter alia, she is unable “to engage in any 

substantial gainful activity by reason of any medically determinable physical or mental 

impairment” which has lasted or can be expected to last for at least 12 months. 42 U.S.C. 

§ 423(d)(1)(A). The Commissioner uses the following sequential five-step inquiry to determine 

whether a claimant is disabled: (1) an individual who is working and engaging in substantial 

gainful activity is not disabled; (2) an individual who does not have a “severe impairment” is not 

disabled; (3) an individual who “meets or equals a listed impairment in Appendix 1” of the 

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regulations will be considered disabled without consideration of vocational factors; (4) if an 

individual is capable of performing her past work, a finding of “not disabled” must be made; and 

(5) if an individual’s impairment precludes her from performing her past work, other factors 

including age, education, past work experience, and RFC must be considered to determine if any 

other work can be performed. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (per curiam) 

(summarizing 20 C.F.R. §§ 404.1520(b)-(f), 416.920(b-(f)).

Under the first four steps of the analysis, the burden of proof lies with the claimant. 

Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). The analysis terminates if the 

Commissioner determines at any point during the first four steps that the claimant is or is not 

disabled. Id. If the claimant satisfies her burden under the first four steps, the burden shifts to 

the Commissioner at step five to show that there is other gainful employment available in the 

national economy that the claimant can perform. Greenspan v. Shalala, 38 F.3d 232, 236 (5th 

Cir. 1994). This burden may be satisfied either by reference to the Grid Rules, vocational expert 

testimony, or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). 

Judicial review of the Commissioner’s denial of benefits is limited to whether the 

Commissioner’s position is supported by substantial evidence and whether the Commissioner 

applied proper legal standards in evaluating the evidence. Greenspan, 38 F.3d at 236; 42 U.S.C. 

§§ 405(g), 1383(C)(3). Substantial evidence is more than a scintilla, less than a preponderance, 

and is such relevant and sufficient evidence as a reasonable mind might accept as adequate to 

support a conclusion. Leggett, 67 F.3d at 564. Under this standard, the reviewing court does not 

reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the 

record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236.

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In considering the parties’ summary judgment arguments, the Court has relied upon their 

assessment of and citation to the evidence of record. The Court is not under any obligation to 

probe the record to find supporting evidence for one side or the other. See FED. R. CIV. P. 

56(C)(1)(A) (the movant and opponent of a motion for summary judgment must support their 

positions by “citing to particular parts of materials in the record”); Adams v. Travelers Indem. 

Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006) (the court has no obligation under Rule 56 “to 

sift through the record in search of evidence to support a party’s opposition to summary 

judgment”) (quotation omitted).

III. ARGUMENT AND ANALYSIS

Plaintiff argues that the ALJ erred “failing to address whether [Plaintiff] could maintain, 

as well as obtain, competitive employment despite the waxing and waning nature of her 

fibromyalgia symptoms.”2 Doc. 10 at 32. The Commissioner responds that the ALJ found that 

Plaintiff could sustain work on a continuous basis when she determined Plaintiff’s RFC, which 

necessarily incorporates that finding. Doc. 11 at 19. Further, the Commissioner argues that 

Plaintiff did not demonstrate that her fibromyalgia waxes and wanes such that the ALJ was 

required to address her ability to sustain continual employment. Doc. 11 at 20. Upon review,

the Court disagrees with the Commissioner’s position.

An ALJ need not make a “finding regarding [a] claimant’s ability to maintain 

employment in every case.” Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003) (per curiam). 

Inherent in the definition of RFC is the understanding that the claimant has an ability to work on 

2 Because the Court concludes that remand is required on this issue alone, Plaintiffs other 

arguments are not reached here.

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a sustained basis. Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003). Thus, “[u]sually, the 

issue of whether the claimant can maintain employment for a significant period of time will be 

subsumed in the analysis regarding the claimant’s ability to obtain employment.” Frank, 326 

F.3d at 619. The ALJ only needs to make a specific finding regarding a claimant’s ability to 

maintain work where, “by its nature, the claimant’s physical ailment waxes and wanes in its 

manifestation of disabling symptoms.” Id. Further, “to support a finding of disability, the 

claimant’s intermittently recurring symptoms must be of sufficient frequency or severity to 

prevent the claimant from holding a job for a significant period of time.” Id. at 620.

The Frank court provided illustration of the circumstances under which a separate finding 

of whether a claimant was able to maintain employment could be required: “For example, if 

Frank had alleged that her degenerative disc disease prevented her from maintaining employment 

because every number of weeks she lost movement in her legs, this would be relevant to the 

disability determination.” Id. at 619. On the other hand, a claimant’s testimony that his back 

pain caused him to have both good and bad days “simply do[es] not rise to the level of 

impairment anticipated by the Court in Frank.” Perez v. Barnhart, 415 F.3d 457, 465 (5th Cir. 

2005) (citation omitted). Specifically, in Perez, (1) the plaintiff claimed that his pain waxed and 

waned between epidural injections, which were given over time; (2) he had “good days and bad 

days”; and (3) his expert witness testified that he did not believe the plaintiff could reliably work 

a 30-hour week. Id. at 465-66. The appellate court found that this was not sufficient to bring the 

claimant’s case within the scope of Frank because “[i]t is axiomatic that the pain from any type 

of ailment will vary in intensity, especially the farther one gets from treatment that alleviates 

pain.” Id. at 465; cf. Singletary v. Bowen, 798 F.2d 818, 821 (5th Cir. 1986) (finding that while a 

claimant may be capable of finding a job and working for short periods of time, it may be that 

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“[t]he nature of the mental impairment is such . . . that the claimant is unable to remain employed 

for any significant period of time.”).

“Fibromyalgia is a form of nonarticular rheumatism characterized by musculoskeletal 

pain, spasm and stiffness, fatigue, and severe sleep disturbance.” Pennington v. Astrue, No. H08-3616, 2010 WL 648413, at *1 n.2 (S.D. Tex. Feb. 23, 2010) (Rosenthal, J.) (citation and 

punctuation omitted); see also Titles II and XVI: Evaluation of Fibromyalgia, SSR 12-2p, 2012 

WL 3104869, at *5-6 (July 25, 2012) (“[T]he symptoms and signs of FM may vary in severity 

over time and may even be absent on some days,” and “symptoms of FM can wax and wane so 

that a person may have ‘bad days and good days.’”). 

In Pennington, the plaintiff sought judicial review of an ALJ’s final decision that she was 

not disabled under the Act, and therefore not entitled to disability insurance benefits, because, 

notwithstanding her “severe” impairment of fibromyalgia, she had the RFC to perform a variety 

of sedentary work, and that such jobs existed in significant number in the national economy. 

2010 WL 648413, at *1, 19-20. On appeal, the plaintiff argued that, given the nature of her 

fibromyalgia and evidence involving her symptoms, the ALJ had a responsibility to consider 

whether she would be able to maintain employment. Id. at *23. As a threshold matter, the 

district court recognized that the “Fifth Circuit has made clear that an ALJ is not required in 

every case to make a separate finding that a social security claimant who is capable of 

performing a job, will also be able to maintain that job.” Id. at 23 (citations omitted). The 

district court, however, considered the evidence that the plaintiff’s fibromyalgia “waxe[d] and 

wane[d]” in its manifestations of disabling symptoms, and that she could not get out of bed on 

bad days but had the ability to complete routine tasks on good days. Id. at *23-24. Given the 

“nature of fibromyalgia” and the evidence of the plaintiff’s waxing and waning symptoms, the 

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court concluded that the ALJ’s failure to explicitly address the plaintiff’s ability to sustain work 

on a continuing basis was reversible error. Id. at *24. 

Here, as in Pennington, Plaintiff’s diagnosis of fibromyalgia is similarly characterized by 

episodic features and “waxes and wanes in its manifestation of disabling symptoms.” Frank, 326 

F.3d at 619. Further, unlike in Perez, the evidence shows that Plaintiff’s symptoms went well 

beyond pain that lessened and returned in cycle with the efficacy of her treatment. See Perez, 

415 F.3d at 465-66 (plaintiff testified that his pain waxed and waned between his intermittent 

epidural injections). There is substantial evidence to support these features of Plaintiff’s 

fibromyalgia, including her medical records (previously summarized by the Court) that

document periods of increased symptoms and lessened symptoms over time3; Dr. Rajbhandary’s 

opinion (Doc. 7-1 at 595); and Plaintiff’s testimony, including her testimony that because of her 

fibromyalgia, she would have eight to ten days per month where she had trouble walking and had 

to lay in bed, sometimes all day. See Doc. 7-1 at 59; see also Doc. 1 at 50-51, 62-63. 

Under these circumstances, the ALJ was required to make a specific determination as to 

whether Plaintiff could maintain employment on a regular, continuing basis. See Frank, 326 

F.3d at 619-29; Singletary, 798 F.2d at 828. By failing to make that determination, the ALJ 

committed legal error. See Drake v. Colvin, No. 3:15-CV-2597-G-BK, 2016 WL 5793208, at *6 

(N.D. Tex. Sept. 6, 2016) (Toliver, J.), adopted by No. 3:15-CV-2597-G (BK), 2016 WL 

5661665 (N.D. Tex. Sept. 28, 2016) (Fish, J.) (reversing and remanding after finding that the 

3 The Court notes that the Commissioner, in her response brief, appears to recognize that 

Plaintiff’s fibromyalgia waxed and waned. See Doc. 11 at 6 (“Plaintiff reported experiencing 

pain coming from several [s]ites,” but “[t]here were also times when she denied having any pain 

or headaches.”). 

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ALJ erred in failing to determine whether the “[p]laintiff could maintain employment on a 

regular, continuing basis[,]” where the evidence established that the plaintiff’s rheumatoid 

arthritis was episodic and waxed and waned over time in its manifestations of disability); 

Natalie O. v. Comm’r of Soc. Sec. Admin., No. 3:19-CV-608-K-BK, 2020 WL 1015827, at *4 

(N.D. Tex. Feb. 14, 2020) (Toliver, J.), adopted by No. 3:19-CV-608-K, 2020 WL 999828 (N.D. 

Tex. Mar. 2, 2020) (Kinkeade, J.) (reversing and remanding after finding that the ALJ erred in 

failing to determine whether the “[p]laintiff could maintain employment on a regular, continuing 

basis[,]” where the evidence established that the plaintiff’s immunoglobin A deficiency “was 

characterized by episodic features that waxed and waned over time” in their manifestations of 

disability). 

Generally, an administrative appeal of a procedural error will not lead to a vacated 

judgment “unless the substantial rights of a party have been affected.” Anderson v. Sullivan, 887 

F.2d 630, 634 (5th Cir. 1989) (citation omitted). Here, the ALJ’s failure to specifically 

determine whether plaintiff could hold whatever job she found for a significant period of time is 

legal error that affects Plaintiff’s substantial rights. See Drake, 2016 WL 5793208, at *6; Natalie 

O., 2020 WL 1015827, at *4. When the Commissioner “has relied on erroneous legal standards 

in assessing the evidence, he must reconsider that denial.” Moore v. Sullivan, 895 F.2d 1065, 

1070 (5th Cir. 1990) (citation omitted). Accordingly, reversal and remand is warranted. While

based on this conclusion, the remaining issues Plaintiff raises need not be addressed in this 

Court, they may be raised on remand. 20 C.F.R. § 404.983 (providing that when a case is 

remanded from federal court, the ALJ may consider any issues relating to the claim).

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IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Summary Judgment should be

GRANTED, the Commissioner’s decision should be REVERSED, and this case should be

REMANDED for further proceedings consistent with the findings and conclusions herein.

SO RECOMMENDED on September 7, 2023.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner 

provided by law. Any party who objects to any part of this report and recommendation must file 

specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 

636(b)(1); FED. R. CIV. P. 72(b). An objection must identify the finding or recommendation to 

which objection is made, state the basis for the objection, and indicate where in the magistrate 

judge’s report and recommendation the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the magistrate judge is not specific. 

Failure to file specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted by the district 

court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 

1415, 1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending 

the time to file objections to 14 days).

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