IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

LINDA C. DURBIN, 

 

 Plaintiff, 

 Civil Action 2:17-cv-896 

 v. JUDGE SARAH D. MORRISON 

 Chief Magistrate Judge Elizabeth P. Deavers 

COMMISSIONER OF SOCIAL SECURITY, 

 

 Defendant. 

 

OPINION AND ORDER 

 Plaintiff, Linda C. Durbin, brings this action under 42 U.S.C. § 405(g) for review of a 

final decision of the Commissioner of Social Security (“Commissioner”) denying her application 

for social security disability insurance benefits. Pending before the Court is Plaintiff’s Statement 

of Errors (ECF No. 8), the Commissioner’s Memorandum in Opposition (ECF No. 11), 

Plaintiff’s Reply (ECF No. 12), and the administrative record (ECF No. 7). For the reasons that 

follow, the Court REVERSES the Commissioner’s decision and REMANDS this case to the 

Commissioner and the ALJ under Sentence Four of § 405(g) for further consideration consistent 

with this Opinion and Order. 

I. BACKGROUND

 Plaintiff protectively filed her application for benefits in June 2010, alleging that she has 

been disabled since January 15, 2010, due to loss of hearing in her left ear, possible epilepsy, 

poor balance, possible heart condition, major memory loss - short and long term, dizzy spells, 

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seizure activity, and loss of focus /ability to stay on task. (R. at 107–08, 121.) Plaintiff’s 

application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing 

before an administrative law judge. (R. at 9–10.) After presiding over a hearing on April 17, 

2012, Administrative Law Judge Timothy G. Keller (“ALJ Keller”) issued a decision on May 11, 

2012, finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 

11–31, 32–57.) AJL Keller’s determination became the final decision of the Commissioner when 

the Appeals Council denied review on July 24, 2013. (R. at 1–6.) Plaintiff thereafter timely 

commenced a civil action docketed in this Court. (Durbin v. Commissioner of Social Security, 

Case Number: 2:13-cv-00910 (ECF Nos. 1 and 3)). This Court remanded Plaintiff’s claim to the 

Appeals Counsel. (Id., ECF No. 14 and 16, R. at 558–77.) On July 25, 2014, the Appeals Council 

vacated and remanded ALJ Keller’s decision. (R. at 627–29.) ALJ Keller presided over a second 

administrative hearing on December 2, 2014. (R. at 638.) On December 17, 2014, ALJ Keller 

issued a second decision finding that Plaintiff was not disabled within the meaning of the Social 

Security Act. (R. at 635–57.) On November 27, 2015, the Appeals Council vacated the hearing 

decision and remanded to a new ALJ. (R. at 658–62.) Administrative Law Judge Jeffrey 

Hartranft (“ALJ”) presided over a third hearing on August 9, 2016, and issued a decision finding 

that Plaintiff was not disabled within the meaning of the Social Security Act on September 21, 

2016. (R. at 458–94.) On August 18, 2017, the Appeals Council denied Plaintiff’s request for 

review and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at 444–50.) 

Plaintiff timely commenced this action. 

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II. RELEVANT RECORD EVIDENCE1 

A. Relevant Medical History and Records 

1. Plaintiff’s Auditory and Vestibular Issues 

 On January 15, 2010, Plaintiff sought treatment from her primary care physician, Caryn 

Theobald, M.D., because she experienced sudden hearing loss, earache, headache, pressure and 

fullness in her ears, tinnitus, and mild dizziness. (R. at 364.) An audiogram confirmed that 

Plaintiff had acute hearing loss in the left ear. (R. at 365, 322.) A CT scan of Plaintiff’s head 

showed no acute brain abnormality but did show evidence of chronic sinusitis. (R. at 365, 186.) 

Dr. Theobald instructed Plaintiff not to drive or operate machinery and referred her to an E.N.T. 

(R. at 365.) 

 Plaintiff treated with providers at Toledo E.N.T., including neurotologist, Aaron G. 

Benson, M.D., from January 19, 2010 until March 17, 2010. (R. at 307–08, 310.) During this 

period, testing was conducted including audiograms on January 19, 2010, and January 29, 2010, 

which confirmed that Plaintiff had profound hearing loss in her left ear; an MRI of Plaintiff’s 

brain and internal auditory canal on January 22, 2010, which revealed normal, unremarkable 

results, with no lesions or masses; and an ENG on February 3, 2010, which revealed no 

abnormalities. (R. at 320–21, 302–03, 316, 309.) Plaintiff was prescribed Prednisone and she 

received steroid injections in her left ear at several office visits. (R. at 307–08, 311–12, 313, 305, 

314.) Dr. Benson’s clinical impression was “left sudden sensorineural hearing loss, active 

1

 Because the ALJ did not review medical records related to Plaintiff’s conditions and 

treatment after the date last insured, March 31, 2013, the Court has not summarized those 

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smoking, tinnitus, vertigo, and dizziness.” (R. at 312, 309, 306, 310.) He wrote that instructed 

Plaintiff to cease smoking on more than one occasion, but she continued to smoke. (R. at 309, 

305.) Dr. Benson also referred Plaintiff to physical therapy for her balance problems. (R. at 309.) 

Notes from Plaintiff’s physical therapy sessions indicated that Plaintiff’s prognosis was 

good, and that she reported doing better. (R. at 362–63, 359, 310.) Plaintiff also reported, 

however, loss of vision when her neck was extended. (R. at 304, 310.) Because that was 

inconsistent with an otologic problem, an MRI of Plaintiff’s head was ordered to investigate the 

possibility of a vertebrobasilar insufficiency. (R. at 306, 310.) The results of that test, done on 

March 11, 2010, were normal. (R. at 306, 315.) To investigate further, a rotary chair and 

posturography were also done, but the results of both of those procedures showed essentially no 

abnormalities although Plaintiff did have low gain on her rotary chair and a slight phase lead 

with no asymmetry noted. (R. at 310.) An audiogram on March 17, 2010, indicated that 

Plaintiff’s hearing in her right ear was within normal limits; that she had sensorineural hearing 

loss in her left ear; and that compared to prior testing, Plaintiff’s hearing in her left ear had 

improved “significantly (50%+).” (R. at 317–19.) Dr. Benson wrote that Plaintiff was “doing 

quite well” from an otologic standpoint but he noted that she continued to smoke. (R. at 310.) He 

also noted that Plaintiff continued to complain about instability despite a normal ENG. (Id.) He 

referred her to neurologist, Mark Loomis, M.D. at Toledo Neurological Association, because her 

complaints about occasional vision loss were unrelated to her original problem. (Id.) Plaintiff 

was supposed to continue with physical therapy. (R. at 358.) Records indicate that Plaintiff 

records. (R. at 465.) 

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stopped attending sessions when her insurance stopped covering them in April of 2010, but that 

she did not believe that they had helped. (R. at 354.) 

Plaintiff’s primary care physician also referred her to otolaryngologist Robert H. Mathog, 

M.D. on March 25, 2010. (R. at 189.) His physical examination revealed normal findings. (Id.) 

He opined that an insult to her left ear had impacted her vestibular and cochlear portions; that 

vestibular exercises were important; and that there was a good chance that there would be 

compensation and that her balance would return in time. (Id.) He did not recommend antivertiginous drugs. (Id.) 

2. Plaintiff’s Neurological Treatment and Cardiological Testing 

Plaintiff began treating with neurologist Dr. Loomis on March 31, 2010. (R. at 204–07, 

190–91, 259–60.) His physical examination of Plaintiff revealed normal results except for 

hearing loss in the left ear, slight vibratory loss in both ankles, and subjective numbness to 

pinprick on her left external ear or pinna. (R. at 204–07.) Dr. Loomis opined that Plaintiff 

appeared to have had a stroke or a vascular event of the left vestibular artery or left cochlea. 

(Id.) Dr. Loomis told Plaintiff that she needed to control her cholesterol and to “stop smoking 

forever.” (Id.) He indicated that he would order additional testing. (Id.) An April 5, 2010, 

electroencephalogram ordered by Dr. Loomis was normal for a mostly awake adult. (R. at 221–

22, 261–62, 391–92.) 

On May 14, 2010, Plaintiff told Dr. Loomis that she still had trouble climbing steps 

because of her dizziness and poor balance and that she sometimes lost her balance when bending 

forward. (R. 212–18.) Plaintiff also reported that about two weeks prior to that appointment she 

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had drank alcohol as usual through Saturday but after she stopped drinking on Sunday, she had a 

seizure while sleeping in the back of her husband’s truck. (Id.) She had no incontinence or 

injury, did not visit a doctor, and she did not learn about the event until she woke up and her 

husband told her about it. (Id.) Dr. Loomis wrote that he could not determine if the event was an 

alcohol withdrawal seizure or not but noted that Plaintiff reported drinking one to six beers daily 

for several years. (Id.) He advised Plaintiff to gradually taper off drinking alcohol and eventually 

stop altogether. (Id.) He wrote again: “You must stop smoking forever!” (Id.) He also instructed 

Plaintiff to refrain from driving from three months. (Id.) Although Dr. Loomis’ physical 

examination of Plaintiff revealed generally normal results, with regard to her gait and station, her 

wide-based and tandem walking was unsteady “but she did do it.” (Id.) Dr. Loomis ordered a 

sleep deprived EEG. (Id.) The results of that test, done on May 18, 2010, were within normal 

limits for an awake, drowsy, and sleepy patient. (R. at 219–20, 265–66, 269–70.) 

Dr. Loomis also referred Plaintiff to a cardiologist to rule out a cardiac cause for the 

nighttime seizure incident. Notes from Thomas M. Pappas, M.D. and Mark Richards, PhD, at 

Northwest Ohio Cardiology Consultants indicated normal findings for Plaintiff on a stress test 

and an echocardiogram but that her EKG showed an RSR prime/wimpy right bundle-branch 

block pattern with ST elevation at V1 and V2. (R. at 252, 273–75, 327–28.) Dr. Richards wrote 

that Plaintiff’s physical examination was normal and that she had appropriate mood, memory, 

and judgment. (R. at 273–75.) He also wrote that Brugada syndrome was a concern and he 

recommended an electrophysiology study. (Id.) That study was done on July 8, 2010. (R. at 334–

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40, 374–75.) It revealed a very low likelihood of Brugada syndrome. (R. at 341–44, 374–75.) 

An EKG done on November 4, 2010, was also normal. (R. at 376–81, 434–35.) 

Plaintiff saw Dr. Loomis again on August 6, 2010, and November 11, 2010. His physical 

examinations revealed normal results including normal gait and station. (R. at 386–89, 382–85.) 

In August, Dr. Loomis indicated that it was safe for Plaintiff to begin driving provided she had 

no more seizures or losses of consciousness. (R. at 386–89.) In November, Plaintiff presented 

with mild to moderate dizziness, intermittent vertigo produced by movement, and chronic 

insomnia. (R. at 382–85.) Dr. Loomis prescribed nortriptyline for Plaintiff’s insomnia. (Id.) 

3. Plaintiff’s Back Pain 

On July 19, 2010, Plaintiff’s primary care physician, Dr. Theobald, wrote that Plaintiff 

reported mild thoracic pain that did not always respond to Celebrex and Tylenol. (R. at 354–55.) 

Upon examination, Plaintiff’s back was mildly tender to palpitation in the mid thoracic spine. 

(Id.) Dr. Theobald ordered thoracic spine X-rays. (Id.) Those X-rays, done on July 19, 2010, 

revealed mild decreased height of the vertebral body of T6 suggesting a mild compression 

fracture of undetermined age as well as degenerative changes in the disks in the mid and lower 

spine. (R. at 1181.) 

On September 3, 2010, Plaintiff reported ongoing pain in her back and pain at times in 

her buttocks that had not responded to conservative measures. (R. at 352–53.) Dr. Theobald 

wrote that bone density testing on July 23, 2010, revealed evidence of osteopenia. (Id.) Upon 

examination, Plaintiff was tender on palpitation of the mid thoracic and lumbar spine. (Id.) Dr. 

Theobald prescribed Fosamax and ordered MRI studies. (Id.) An MRI of Plaintiff’s thoracic 

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spine, done on September 10, 2010, showed mild to moderate scoliosis with associated arthritis 

but was otherwise unremarkable. (R. at 368–69.) There was no indication of a compression 

fracture. (Id.) An MRI of Plaintiff’s lumbar spine appeared normal except for a Tarlov cyst at the 

level of S1 on the left. (Id.) 

In October of 2010, Plaintiff treated with James R. Wolfe, M.D. at MedCentral PainCare 

Consultants. (R. at 372–73, 371.) On October 7, 2010, Dr. Wolfe examined Plaintiff and found 

that she had extensive paraspinal tenderness mostly in the paraspinal muscles but perhaps in the 

facets with extension. (R. at 372–73.) He prescribed tramadol and low dose Robaxin. (Id.) On 

October 22, 2010, Dr. Wolf reviewed Plaintiff’s MRIs and wrote that Plaintiff had some lowgrade degenerative disc bulge and a little bit of facet arthritis. (R. at 371.) Upon examination, 

Plaintiff had extensive thoracic and lumbar paraspinal tenderness aggravated by range of motion 

especially extension. (Id.) Dr. Wolfe’s clinical impression was thoracolumbar spondylosis/facet 

arthritis with mechanical back pain. (Id.) For treatment, Plaintiff was to try soaking, stretching, 

and home exercises. (Id.) Dr. Wolf continued to prescribe tramadol and Robaxin. (Id.) 

4. Plaintiff’s Depression, Anxiety, and Memory Loss 

The records reflect that Plaintiff sought treatment for depression, anxiety, and mood 

swings from her primary care physician, Dr. Theobaldt. (R. at 360–61, 422–23, 864–66, 350–

51.) Dr. Theobald prescribed Plaintiff Prozac and Cymbalta. (Id.) At several office visits Plaintiff 

told Dr. Theobald that she had concerns about her short and long-term memory and that she 

believed she had memory issues since 2002 that had gotten dramatically worse after her sudden 

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hearing loss in January of 2010. (R. at 356–57, 350–51.) On January 14, 2011, Dr. Theobald 

referred Plaintiff for a neurological consultation. (R. at 422–23.) 

Notes from OSU Neurology Center indicate that Plaintiff was examined by Meena S. 

Khan, M.D., on June 9, 2011. (R. at 427–31.) Plaintiff related that she had memory loss since a 

stroke in January of 2010 that caused hearing loss and balance issues and a seizure episode while 

sleeping. (Id.) Plaintiff also reported that her balance issues were better but that she smoked 

about two packs of cigarettes a day and drank up to four alcoholic drinks a day. (Id.) Upon 

physical examination Plaintiff had normal tone and bulk in all extremities, 5/5 strength 

throughout, although her upper left extremity slightly gave way initially but had full strength 

once re-tested, and she had slight postural and action tremors bilaterally. (Id.) Her station was 

within normal limits, and her gait was within normal limits although she had issues with tandem 

gait and she swayed but did not fall during rhomberg testing. (Id.) A cognitive examination 

revealed normal results for language (naming, reading, and repeating word) and comprehension 

(following 1-2-3 step commands). (Id.) With regard to memory, Plaintiff’s semantic memory and 

procedural memory were normal. (Id.) She had, however, issues with episodic memory (she 

could not recall what she ate for breakfast) and working memory (she could not recall a 7-digit 

phone number given to her). (Id.) With regard to executive function, she scored 4 on a digit span 

forward test; named 8 animals in one minute; and could recite 8 months backwards in order 

although she skipped October. (Id.) She erred on a clock drawing test. (Id.) She was not oriented 

to date, day, and place without prompting. (Id.) Dr. Khan wrote that the testing revealed that 

Plaintiff had issues with memory and executive function. (Id.) Dr. Khan indicated that she would 

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order a reversible dementia work up, repeat an MRI, and review prior MRI results. (Id.) Dr. 

Khan noted that a stroke of the inner ear should not produce Plaintiff’s symptoms. (Id.) Dr. Khan 

asked Plaintiff to reduce the amount of alcohol she drank and consider stopping smoking. (Id.) 

5. Plaintiff’s Fibromyalgia 

On June 14, 2011, Plaintiff began seeking treatment from rheumatologist Salem Foad, 

M.D. (R. at 411–12.) Plaintiff presented with pain in the mid-back, neck, and scapula regions of 

38 years duration; lower back pain of over 30 years duration; and pain and swelling in her 

fingers on both hand of 15 years duration. (Id.) Dr. Foad noted that Plaintiff smoked and drank 

beer. (Id.) Upon examination, Dr. Foad found tenderness in Plaintiff’s neck and suprascapular 

areas, both side of her medial scapular border, her midthoracic spines at the T7-T8 level, both 

sides of her costchondrial joints, and her lower back at L4-6. (Id.) Plaintiff’s shoulders were not, 

however, swollen or limited in rotation; her neck was not limited in rotation; and there was no 

synovitis present in her fingers, wrists, elbows, knees, ankles, or MTP toe joints. (Id.) She had 

flexion of the lumbar spine to 70 degrees and no hip pain or limitation with external or internal 

rotation or flexion. (Id.) Dr. Foad wrote that X-rays of Plaintiff’s cervical spine revealed only 

mild degenerative changes but no narrowing of the disc spaces or bony spurring. (Id.) X-rays of 

the thoracic spine showed mild degenerative changes but no compression collapse of vertebral 

bodies. (Id.) X-rays of the lumbar spine showed mild calcification of the abdominal aorta and 

mild degenerative changes but no significant narrowing of the hips or SI joints. (Id.) Results 

from laboratory blood work were normal. (Id.) Dr. Foad’s impression was fibromyalgia and mild 

osteoarthritis of the spine. (Id.) His treatment plan included stretching exercises for Plaintiff’s 

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neck and upper and lower back. (Id.) She was allowed to continue taking Celebrex, trazadone, 

and fluoxetine. (Id.) 

Plaintiff treated with Dr. Foad on July 11, 2011. (R. at 410.) She did not believe that the 

Celebrex was helping her pain. (Id.) Upon examination, there was tenderness in the scapular 

areas and medial scapular border but more so on the right side. (Id.) Plaintiff’s right shoulder was 

tender and painful but not swollen or limited. (Id.) She was also tender in the right side of her 

lower back at L5 but she had flexion of the lower spine to 70 degrees. (Id.) Her right hip was 

painful but not limited in internal or external rotation or flexion. (Id.) Plaintiff had no swelling 

in her knees or ankles, no rash, and no muscle weakness. (Id.) Dr. Foad diagnosed Plaintiff with 

fibromyalgia and osteoarthritis of the cervical and thoracic spine. (Id.) He assessed that 

Plaintiff’s pain related mainly to fibromyalgia. (Id.) He wrote that her pain in her upper right was 

referred from trigger points in the scapular region and the right shoulder and that the pain in her 

right hip was referred from trigger points in her right side lower back. (Id.) His treatment plan 

was steroid injections in the right side lower back and Xylocaine. (Id.) He discontinued her 

Celebrex and prescribed meloxicam. (Id.) 

During an examination on September 27, 2011, Dr. Foad found that Plaintiff had 

tenderness in her right scapular area and medial scapular border. (R. at 409.) (Id.) Plaintiff’s right 

shoulder was tender and painful but not swollen or limited, and her neck was not limited in 

rotation. (Id.) She also had no swelling in her fingers, wrists, or elbows, no rash, and no muscle 

weakness. (Id.) He treated her again with steroid injections and xylocaine in the right shoulder. 

(Id.) He prescribed Cymbalta. (Id.) 

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On November 29, 2011, Dr. Foad examined Plaintiff and found that she had slight 

tenderness in the lateral epicondyle area of her right elbow but no swelling or limitation. (R. at 

408.) She also had pain with movement in her right shoulder although it was not limited in 

internal or external rotation or abduction. (Id.) She also had pain anteriorly in her shoulder and in 

the trigger points in her right suprascapular area and medial scapular border. (Id.) Plaintiff had 

no synovitis or suffusion in either shoulder, her fingers, wrists, or flexor tendon. (Id.) X-rays of 

her right elbow showed no narrowing of the joint space, bony spurring, erosive changes, or 

calcific deposits. (Id.) X-rays of her right shoulder showed no narrowing of the joint space or 

calcific deposits. (Id.) Dr. Foad wrote that it was possible that the pain in Plaintiff’s forearm 

related to tendonitis in her right elbow, or, alternatively, it could have been referred pain from 

the trigger points in the scapular area of her right shoulder. (Id.) He also wrote that she might 

have tendinitis in her right shoulder. (Id.) Dr. Foad replaced Plaintiff’s meloxicam with 

diclofenac and additionally prescribed Robaxin. (Id.) 

On February 28, 2012, Dr. Foad’s examination revealed that Plaintiff had had tenderness 

in the lateral epicondyle of the right elbow but no synovitis, nodules or limited range of motion. 

(R. at 862.) She also had no synovitis in her fingers or wrists, no thenar atrophy, and no objective 

evidence of carpal tunnel syndrome. (Id.) Plaintiff had tenderness in her lower back at L4-L5 

with more tenderness on her right side but she had flexion of the lumbar spine to 70 degrees. 

(Id.) Her hips and shoulders were not painful or limited and she had no rash, muscle weakness, 

or oral ulcers. (Id.) X-rays of the right elbow showed no narrowing of the joint space, erosive 

changes, or abnormal calcifications. (Id.) Dr. Foad assessed that Plaintiff’s elbow pain was 

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related to tendinitis; that she might have right carpal tunnel syndrome; and that her back pain 

might be related to fibromyalgia and/or early osteoarthritis. (Id.) Plaintiff was given an injection 

in her right elbow and short-acting steroids. (Id.) She was also prescribed Vicodin, her Celebrex 

was increased. She was also told that she could continue taking trazodone and fluoxetine. (Id.) 

On May 14, 2012, Dr. Foad wrote that Plaintiff was feeling better and that the number of 

bad days was decreasing. (R. at 860.) Upon examination, a Tinel and Phalen test were negative. 

(Id.) Plaintiff had no thenar atrophy and no synovitis in her fingers and wrists. (Id.) She did have 

tenderness in her right elbow but no synovitis or nodules in her elbow joint and her range of 

motion was not limited. (Id.) Plaintiff’s shoulders and hips were not painful or limited in flexion, 

abduction, or internal or external rotation. (Id.) She had no swelling in her knees or ankles. (Id.) 

She did have tenderness and pain in her low back at the L5, but she had flexion of the lumbar 

spine to 70 degrees, negative straight leg test, and no weakness in her legs, and no rash, oral 

ulcers, or muscle weakness. (Id.) Dr. Foad assessed that Plaintiff might have carpal tunnel 

syndrome and that her elbow pain might be related to tendinitis. (Id.) 

On September 10, 2012, Dr. Foad examined Plaintiff and wrote that she had tenderness in 

the trigger points in the lower back at L4-L5 and flexion of the lumbar spine to 50 degrees 

associated with pain. (R. at 859.) Her hips were painful but not limited in flexion, or internal or 

external rotation, and her straight leg raising was negative. (Id.) She had no synovitis or effusion 

in her knees or ankles and no synovitis in her fingers, wrists, or elbows. (Id.) Her shoulders and 

neck were painful but not limited. (Id.) She had tenderness and trigger points in the scapular 

areas on both sides. (Id.) She had no rash, oral ulcers, or muscle weakness. (Id.) Dr. Foad 

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assessed that Plaintiff’s pain was related to fibromyalgia. (Id.) He prescribed her Neurontin 

instead of Cymbalta and renewed her prescriptions for Celebrex, trazadone, fluoxetine, and 

Vicodin. (Id.) Plaintiff also received steroid injections and Xylocaine in trigger points on both 

sides of her lower back. (Id.) 

On December 4, 2012, Dr. Foad wrote that he examined Plaintiff and found that she had 

tenderness in the trigger points in the scapular areas of both her shoulders, and that her neck and 

shoulders were painful although they were not limited. (R. at 858.) Plaintiff also had tenderness 

in the trigger points in her lower back at L4-L5 and flexion of the lumbar spine to 50 degrees. 

(Id.) Her hips were painful although they were not limited in flexion, abduction, or rotation. (Id.) 

Her straight leg raising was negative. (Id.) X-rays of the cervical spine showed no narrowing of 

the disc spaces or spurring. (Id.) X-rays of the lumbar spine showed no abnormality in the hips, 

SI joints, lumbar vertebrae, or disc spaces. (Id.) He noted calcification of the abdominal aorta. 

(Id.) Dr. Foad wrote that Plaintiff’s pain related to fibromyalgia and he prescribed Celebrex, 

trazadone, Robaxin, fluoxetine, and Vicodin. (Id.) 

On February 25, 2013, Dr. Foad wrote that Plaintiff reported shoulder pain that started 

about four weeks prior to her office visit and that she had fallen approximately two months prior 

to her visit although her shoulder did not hurt immediately after that fall. (R. at 857.) Upon 

examination, Plaintiff’s shoulder was painful, tender, and limited in abduction and rotation 

although she had no synovitis or effusion. (Id.) Plaintiff had tenderness in trigger points in the 

scapular areas, more so on the right side, but her neck was not painful or limited. (Id.) Plaintiff 

also had tenderness and pain in the lower back at L4-L5 and flexion of the lumbar spine to 50 

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degrees. (Id.) Her straight leg raising was negative. (Id.) Although she had a slight bony swelling 

in the CM joint of her thumb and PIP joints, she had no synovitis in her fingers or wrists. (Id.) 

Plaintiff’s hips were not painful or limited in flexion or rotation, and she had no swelling in her 

knees or ankles, and no weakness or rash. (Id.) X-Rays of the right shoulder showed no 

narrowing of the joint space, bony spurring, or abnormal calcification. (Id.) Dr. Foad wrote that 

Plaintiff’s pain related to tendinitis and fibromyalgia. (Id.) Her shoulder was injected with 

steroids and Xylocaine. (Id.) 

B. Medical Opinions: Plaintiff’s Physical Functional Limitations 

1. State Agency Reviewing Doctors (Drs. Albert and Holbrook) 

 On August 21, 2010, state agency reviewer Nick Albert, M.D., reviewed Plaintiff’s file 

and opined that she had no exertional limitations. (R. at 66.) Dr. Albert also opined that Plaintiff 

could frequently climb ramps/stairs, stoop, kneel, crouch and crawl; occasionally balance; and 

never climb ladders/ropes/scaffolds. (Id.) Dr. Albert opined that Plaintiff had a communicative 

limitation because of her limited hearing in her left ear. (Id.) That hearing disorder, which was 

not at a listing level, would limit her to no work with loud noises, unprotected heights or hazards, 

including with industrial machinery and commercial driving. (Id.) He also opined that Plaintiff 

should avoid concentrated exposure to noise or vibration and all exposure to hazards (machinery, 

heights, etc.) (R. at 67.) On January 22, 2011, state agency reviewer Walter Holbrook, M.D., 

reviewed Plaintiff’s file upon reconsideration. Dr. Holbrook affirmed Dr. Albert’s opinions with 

additional limitations in that Plaintiff could perform a range of medium work, including 

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occasionally lifting 50 pounds, frequently lifting 25 pounds, standing and/or walking about 6 

hours in 8-hour work day, and sitting about 6 hours in an 8-hour work day. (R. at 78–80.) 

2. Plaintiff’s Treating Physician, Dr. Theobald 

On March 29, 2012, Dr. Theobald completed a physical capacity evaluation. In it, he 

opined that Plaintiff could only stand for two to three hours, walk for two hours, and sit for two 

to three hours during an eight-hour workday. (R. at 439.) Dr. Theobald further opined that 

Plaintiff could only lift 10 pounds occasionally and that she could not use her hands for repetitive 

pushing and pulling. (Id.) Dr. Theobald opined that Plaintiff could occasionally climb steps but 

never bend, squat, crawl, or climb ladders. (R. at 440.) Plaintiff could reach above shoulder level 

but could not do so repetitively. (Id.) Dr. Theobald answered “yes” when asked if Plaintiff’s 

condition was likely to deteriorate if she was placed under stress and if Plaintiff was likely to 

have partial or full-day unscheduled absences from work occurring five or more days per month 

due to her diagnosed conditions, pain and/or side effects of her medication. (Id.) Dr. Theobald 

wrote that Plaintiff had vertigo and presumed infarction of her left ear and that this had caused 

fall risks and issues with vertigo. (Id.) Dr. Theobald also wrote that Plaintiff had chronic back 

pain which had been evaluated by pain specialists. (Id.) Dr. Theobald noted that she had also 

treated Plaintiff for depression and anxiety. (Id.) Dr. Theobald indicated that Plaintiff had a 

seizure of unclear etiology that had been witnessed by her husband and that Plaintiff had been 

seen by neurology at OSU Medical Center and recommended reference to their notes for 

specifics. (Id.) 

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C. Medical Opinions: Plaintiff’s Mental Functional Limitations 

 

1. State Agency Consultative Examiner Dr. Johnson 

 On August, 11, 2010, Plaintiff was evaluated by state agency consultative psychologist, 

K. Roger Johnson, M.D. (R. 345–49.) Dr. Johnson assessed an Adjustment Disorder and 

assigned Plaintiff a Global Assessment of Functioning score of 75. (Id.) Dr. Johnson opined that 

Plaintiff’s ability to relate to others including coworkers and supervisors was not impaired and 

that she could relate to co-workers and supervisors for simple, repetitive tasks and for some 

complicated or detailed verbal instructions and procedures. (R. at 349.) Dr. Johnson also opined 

that Plaintiff’s ability to understand, remember, and follow instructions was not impaired. (Id.) 

Dr. Johnson noted that Plaintiff’s delayed memory was weak but not impaired and that she was 

capable of completing routine activities of daily living at home and in the community. (Id.) Dr. 

Johnson wrote that Plaintiff was mentally capable to understand, remember and follow 

instructions. (Id.) Dr. Johnson opined that Plaintiff’s ability to maintain attention, concentration, 

persistence and pace to perform simple, repetitive tasks was weak but not impaired. (Id.) Dr. 

Johnson opined that Plaintiff’s ability to withstand stress and pressure associated with day-to-day 

work activity was mildly impaired in that she exhibited some limitations in the form of work 

inhibition and physical complaints. (Id.) 

2. State Agency Reviewers (Drs. Umana and Deitz) 

 On August 21, 2010, state agency reviewer Roseann Umana, Ph.D. reviewed Plaintiff’s 

file and opined that it did not contain evidence of a severe psychological impairment noting that 

Plaintiff’s activities of daily living were not impaired and that her performance on memory tests 

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was largely within normal limits. (R. at 64.) Dr. Umana further opined that Plaintiff had mild 

impairments with regard to difficulties maintaining concentration, persistence, or pace. (Id.) On 

January 7, 2011, state agency reviewer David Deitz, Ph.D. reviewed Plaintiff’s file upon 

reconsideration and affirmed Dr. Umana’s assessment. (R. at 77.) 

3. Plaintiff’s Treating Physician, Dr. Theobald 

 On March 29, 2012, Dr. Theobald completed a mental residual functional capacity 

questionnaire. Dr. Theobald opined that Plaintiff was mildly impaired in her ability to work in 

coordination with or in proximity to others without distracting them or exhibiting behavioral 

extremes; to relate to the general public and maintain socially appropriate behavior; and maintain 

personal appearance and hygiene. (R. at 441–42.) Dr. Theobald further opined that Plaintiff was 

moderately impaired with regard to the following: her ability to accept instructions from 

supervisors; respond appropriately to coworkers or peers; perform and complete tasks in a 

normal work day or week at a consistent pace; work in cooperation with or proximity to others 

without being distracted by them; process subjective information accurately and exercise 

judgment; carry through instructions and complete tasks independently; maintain attention and 

concentration for more than brief periods; perform at production levels expected by most 

employers; respond appropriately to changes in a work setting; be aware of normal hazards and 

take necessary precautions; behave predictably, reliably, and in an emotionally stable manner; 

and to tolerate customary work pressures. (Id.) Dr. Theobald opined that Plaintiff was 

moderately to markedly impaired with regard to her ability to remember locations, workday 

procedures and instructions. (R. at 442.) Dr. Theobald also noted that Plaintiff’s condition was 

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likely to deteriorate if she was placed under the stress of a job and noted that she had a history of 

anxiety, and that stress could cause her symptoms to worsen. (R. at 443.) 

 D. Plaintiff’s Testimony 

 Plaintiff, represented by counsel, testified at the August 9, 2016, administrative hearing. 

(R. at 495–532.) Plaintiff indicated that her problems began after she had a stroke in the 

beginning of 2010 that had impacted her balance and hearing in both ears although she had since 

regained hearing in her right ear. (R. at 509.) Plaintiff also indicated that she began experiencing 

short and long-term memory problems immediately after her stroke. (R. at 510.) She had severe 

headaches and constant ringing in her ears. (R. at 514.) She could use a telephone on speaker, but 

people would get frustrated when she had to ask them to repeat things. (Id.) 

 After her stroke, Plaintiff’s concentration and focused changed and she found performing 

her job duties at Wal-Mart difficult because she was required to know how to do several 

procedures just to complete one process. (R. at 516–17.) Plaintiff had difficulties completing 

tasks at home and simple tasks might take all day to complete. (R. at 517.) She cooked using a 

timer or writing a note on a whiteboard on her refrigerator and mainly made food that she could 

“heat and eat,” like sandwiches or cereal. (R. at 518.) Relatives and friends checked on her 

regularly and helped her cook. (R. at 502, 518.) She could not read for pleasure because she 

would experience headache and have trouble remembering what she read. (R. at 519.) She had 

difficulties cleaning her house. (R. at 520.) 

 After her stroke, Plaintiff’s balance problems prevented her from walking anywhere 

without holding onto something. (R. at 513–14.) After therapy, she now walked with a much 

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“wider stance to offset feeling out of balance.” (R at 514.) Plaintiff testified that she walked 

“sometimes with a cane depending on the day and how my balance is doing that day.” (Id.) In 

approximately 2013, Plaintiff felt she could walk the two blocks to her neighbor’s house. (R. at 

514–15.) However, someone assisted her, she used a cane, and she normally sat down and rested. 

(R. at 521–22.) At the time of the hearing, she could only walk on flat, level ground. (R. at 523.) 

The most she could walk is one block and only if she did so slowly and cautiously. (Id.) 

 Plaintiff also testified that since 2000, she had suffered back problems including 

scoliosis, lordosis, and spina bifida that had gotten progressively worse. (R. at 511.) She stated 

that she could only walk for short periods of time without having to rest and could not lay or sit 

or stay in any position for very long without having to move. (Id.) Her back hurt when she had to 

walk while working at Walmart but that her back had been worse since her stroke because she 

could no longer push through the pain. (R. at 511–12.) Plaintiff attended the hearing in a 

wheelchair noting she was recovering from double foot surgery. (R. at 512.) She noted that she 

could not walk from the parking lot to the hearing room without having to stop and sit. (R. at 

512–13.) Plaintiff testified that she had been using a wheelchair for approximately three to four 

years when she would go grocery shopping or to places like the zoo with her grandchildren. (R. 

513.) The wheelchair was not prescribed by a physician. (Id.) 

 When asked about her depression and anxiety, Plaintiff testified that she would become 

depressed after having discussions with people who told her about events that she could not 

remember. (R. at 512.) She had taken medication for her depression two years prior to the 

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hearing but stopped after she could no longer afford the copays and had looked into homeopathic 

ways to treat it. (R. at 515.) Her medication had been effective sometimes. (R. at 516.) 

III. SUMMARY OF THE ADMINISTRATIVE DECISION 

 On September 21, 2016, the ALJ issued his decision. (R. at 461–87.) The ALJ found that 

Plaintiff last met the insured status requirements of the Social Security Act on March 31, 2013. 

(R. at 465.) At Step One2 of the sequential evaluation process, the ALJ found that Plaintiff had 

not engaged in substantially gainful employment during the period from her alleged onset date of 

January 15, 2010, through her date last insured of March 31, 2013. (Id.) At Step Two, the ALJ 

found that through the date last insured, Plaintiff had the severe impairments of degenerative 

changes of the cervical, lumbar, and thoracic spine, right elbow epicondylitis and rotator cuff 

tear, left sensorineural hearing loss, status post left vestibular artery vascular event and T6 

2

 Social Security Regulations require ALJs to resolve a disability claim through a fivestep sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a 

dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 

727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five 

questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet or 

equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant's residual functional capacity, can the claimant 

 perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the national 

economy? 

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

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compression fracture, and affective and anxiety disorders. (Id.) He further found at Step Three 

that through the date last insured, Plaintiff did not have an impairment or combination of 

impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. 

Part 404, Subpart P, Appendix 1. (R. at 465.) 

 Before proceeding to Step Four, the ALJ set forth Plaintiff’s residual functional capacity 

(“RFC”) as follows: 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 

After careful consideration of the entire record, the [ALJ] find[s] that from 

the alleged onset date of disability through the date last insured, the 

claimant has the residual functional capacity to perform light . . . work as 

defined in 20 CFR 404.1567(b). Climbing ramps and stairs, crawling, 

crouching, kneeling, and stooping are each limited to no more than 

frequently. Balancing and overhead reaching with the right upper 

extremity are each limited to no more than occasionally. She cannot climb 

ladders, ropes, and scaffolds, engage in commercial driving, and must 

avoid all exposure to workplace hazards such as unprotected heights and 

machinery. She is limited to work in environments no louder than a typical 

office environment. Mentally, the claimant retains the capacity to perform 

simple repetitive routine tasks involving only simple work-related 

decision, with few if any workplace changes. 

(R. at 474.) When devising this RFC, the ALJ accorded “no weight” to Dr. Theobald’s opinions 

about Plaintiff’s physical functional limitations and restrictions because they were inconsistent 

with the totality of the record evidence. (R. at 480.) The ALJ accorded “significant” weight to 

the opinions of the State Agency reviewing physicians’ opinions about Plaintiff’s physical 

limitations and restrictions because they were consistent with the totality of the evidence. (R. at 

478–79.) The ALJ also stated that evidence submitted after the State Agency physicians 

performed their review did not provide any credible or objectively new and material information 

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that would “alter these findings concerning [Plaintiff’s] functional limitations and restrictions.” 

(R. at 479.) The ALJ also assigned partial weight overall to Dr. Theobald’s opinions about 

Plaintiff’s mental limitations and restrictions because some of the limitations that she opined 

were supported by the record while others were not. (R. at 483.) The ALJ also accorded partial 

weight to the opinions from the state psychological consultative examiner, Dr. Johnson, and the 

State Agency reviewers, Dr. Umana and Dr. Deitz, regarding Plaintiff’s mental limitations 

because they were generally consistent with the totality of the evidence although the evidence 

could demonstrate that Plaintiff was less limited than they had opined. (R. at 482–83.) 

 At Step Four, the ALJ relied upon testimony provided by a Vocational Expert (“VE”) at 

the hearing to find that Plaintiff’s limitations preclude her ability to do past relevant work. (R. at 

525.) At Step Five, the ALJ relied again on the VE’s testimony and concluded that through the 

date last insured, Plaintiff could perform other jobs that existed in significant numbers in the 

national economy such as an office helper, mail sorter or sales assistant. (R. at 527–28, 485–87.) 

Thus, he concluded that Plaintiff was not disabled under the Social Security Act. (R. at 487.) 

IV. STANDARD OF REVIEW 

 When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is 

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant 

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evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

 Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley v. 

Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 

1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision 

of the Commissioner will not be upheld where the SSA fails to follow its own regulations and 

where that error prejudices a claimant on the merits or deprives the claimant of a substantial 

right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th 

Cir. 2007)). 

V. ANALYSIS

 Plaintiff alleges that the ALJ committed several reversible errors including that the ALJ 

erred at Step Two when he analyzed Plaintiff’s fibromyalgia and determined that it did not 

constitute a medically determinable impairment.3

 The Court agrees and finds that the ALJ’s 

determination is not supported by substantial evidence. 

3

 The Court notes that Plaintiff did not list fibromyalgia when she applied for benefits in 

June of 2010. (R. at 107–08, 121.) Plaintiff, however, was not diagnosed with fibromyalgia until 

2011. (R. at 411–12, 410.) 

 

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 At Step Two, an ALJ must consider whether a claimant’s impairment constitutes a 

“medically determinable impairment,” i.e., an impairment that results from anatomical, 

physiological, or psychological abnormalities that can be shown by medically acceptable clinical 

and laboratory diagnostic techniques. 20 C.F.R. §§ 404.1521, 404.1505, 404.1520(a)(4)(ii). 

Social Security Ruling (“SSR”) 12-2p provides guidance on “how [the Commissioner will] 

develop evidence to establish that a person has a medically determinable impairment (MDI) 

of fibromyalgia (FM), and how [the Commissioner will] evaluate [fibromyalgia] in disability 

claims and continuing disability reviews under titles II and XVI of the Social Security Act 

(Act).” Titles II & XVI: Evaluation of Fibromyalgia, SSR 12-2p, 2012 WL 3104869, at *1 

(S.S.A. July 25, 2012); see also Herzog v. Comm’r. of Soc. Sec., No. 2:16-cv-244, 2017 WL 

4296310, at *2 (S.D. Ohio Sept. 28, 2017). To establish a medically determinable impairment 

of fibromyalgia under SSR 12-2p, a claimant must have a positive diagnosis of fibromyalgia 

from an acceptable medical source and produce documented evidence that meets either: 1) the 

1990 American College of Rheumatology Criteria for the Classification of Fibromyalgia (“1990 

ACR Criteria”) or 2) the 2010 American College of Rheumatology Preliminary Diagnostic 

Criteria (“2010 ACR Criteria”). 2012 WL 3104869, at *2. 

Under the 1990 ACR criteria, fibromyalgia may be found to constitute a medically 

determinable impairment if the claimant has documented evidence of the following three issues: 

1. A history of widespread pain— that is pain in all quadrants of the body 

(the right and left sides of the body both above and below the waist) and 

axial skeletal pain (the cervical spine, anterior chest, thoracic spine or low 

back)— that has persisted (or that persisted) for at least 3 months. The 

pain may fluctuate in intensity and may not always be present. 

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2. At least 11 positive tender points on physical examination . . . . The 

positive tender points must be found bilaterally (on the left and right sides 

of the body) and both above and below the waist . . . . 

3. Evidence that other disorders that could cause the symptoms were 

excluded . . . . 

Id. at *2–*3. Under the 2010 ACR criteria, fibromyalgia may be found to constitute a medically 

determinable impairment if a claimant has documented evidence of the following three issues: 

1. A history of widespread pain (as defined in the 1990 ACR criteria above). 

2. Repeated manifestations of six or more fibromyalgia symptoms, signs, or 

co-occurring conditions, especially manifestations of fatigue, cognitive or 

memory problems (“fibro fog”), waking unrefreshed, depression, anxiety 

disorder, irritable bowel syndrome, and or signs, such as fatigue, 

cognitive or memory problems, waking unrefreshed, depression, anxiety 

disorder, or irritable bowel syndrome . . . 

3. Evidence that other disorders that could cause the symptoms were 

excluded . . . . 

Id. at *3. 

In this case, the ALJ appears to have concluded that Plaintiff’s fibromyalgia did not 

constitute a medically determinable impairment under the 1990 ACR Criteria because the record 

did not reflect 11 positive tender points on physical examination. (R. at 467.) The ALJ also 

appears to have concluded that Plaintiff’s fibromyalgia did not constitute a medically 

determinable impairment under either the 1990 ACR Criteria or the 2010 ACR Criteria because 

Plaintiff did not have a pain in all four quadrants of her body, and thus, did not have a history of 

wide-spread pain. (R. at 467.) The ALJ explained his Step Two analysis of Plaintiff’s 

fibromyalgia as follows: 

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The evidence also contains references to the possible diagnoses of fibromyalgia . . 

. The claimant’s possible clinical diagnosis of fibromyalgia was carefully 

considered within the parameters of SSR 12-2p. However, there is no objective 

medical evidence establishing that the claimant’s fibromyalgia is a medically 

determinable impairment within the meaning of SSR 12-2p, as the record does not 

reflect at least 11 positive tender points on physical examination or pain in all 

quadrants of the body (the right and left sides of the body, both above and below 

the waist) persisting for at least three months. In light of the objective medical 

evidence, I find that the references to the possible diagnoses of fibromyalgia . . . 

do not constitute medically determinable impairments within the meaning of the 

Regulations from the alleged onset date of disability through the date last insured, 

and cannot be established as such based on the claimant’s subjective complaints 

alone in this case. 

 

(Id.) 4

 Plaintiff asserts that even if the ALJ concluded that Plaintiff’s fibromyalgia did not 

constitute a medically determinable impairment under the 1990 ACR Criteria because the record 

did not reflect 11 positive tender points on physical examination, the ALJ erred when finding 

that Plaintiff’s fibromyalgia did not constitute a medically determinable impairment under the 

2010 ACR criteria. (Pl’s Statement of Errors, ECF 8, at PAGE ID # 1387–88.) Specifically, 

Plaintiff contends that the ALJ erred when he found that the record did not demonstrate that 

Plaintiff had pain in all four quadrants of her body for at least three months. 

The Court agrees. The records reflect that Plaintiff had pain in all four quadrants of her 

body that persisted for at least three months. On June 4, 2011, Dr. Foad physically examined 

Plaintiff and found that she had tenderness in her supra scapular areas on both sides of her 

medial scapular border and on both sides of her costchondrial joints. (R. at 411–12.) On July 11, 

4

 Although the ALJ stated that the record reflected a “possible” fibromyalgia diagnosis, 

the records reflect that Plaintiff’s treating rheumatologist, Dr. Foad, routinely indicated that he 

had diagnosed Plaintiff with fibromyalgia. (R. at 410, 409, 408, 862, 860, 859, 858, 857.) 

Notably, the previous ALJ found that Plaintiff’s fibromyalgia was a severe impairment. (R. at 

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2011, Dr. Foad examined Plaintiff and again found that she had tenderness in her scapular areas 

and medial scapular border and that she additionally had tenderness and pain in her right 

shoulder and right hip. (R. at 410.) On September 27, 2011, Dr. Foad’s examination revealed that 

Plaintiff had tenderness in her scapular areas and medial scapular border and that her right 

shoulder was tender and painful. (R. at 409.) On November 29, 2011, Dr. Foad wrote that upon 

examination, Plaintiff had slight tenderness in her right elbow; pain with movement in her right 

shoulder; pain anteriorly in her shoulder; and pain in trigger points in her right supra scapular 

area and medial scapular border. (R. at 408.) On September 10, 2012, Dr. Foad examination 

found that Plaintiff’s hips and shoulders were painful and that she had tenderness and trigger 

points in both sides of her scapular area. (R. at 859.) On December 4, 2012, Dr. Foad wrote that 

his examination of Plaintiff revealed that she had tenderness in trigger points in the scapular 

areas of both shoulders and that her shoulders and hips were painful. (R. at 858.) In short, the 

records reflect examination results substantiating that Plaintiff had pain in all four quadrants of 

her body. The ALJ’s contrary conclusion is not supported by substantial evidence. 

The records also reflect that Plaintiff had axial skeletal pain (the cervical spine, anterior 

chest, thoracic spine, or low back) for at least three months. Physical examinations at office visit 

from 2010 until 2013 found that Plaintiff had tenderness or pain in her neck (R. at 411–12, 859, 

858, 857); tenderness or pain in her thoracic spine (R. at 344–45, 352–53, 371, 411–12); and 

tenderness or pain in her lower back or lumbar spine (R. at 352–53, 862, 860, 859, 858, 857). 

Because the record reflects that Plaintiff had pain in all four quadrants of her body plus axial 

16.) 

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skeletal pain, and that both persisted for at least three months, the records reflect that Plaintiff 

had a history of wide-spread pain. 

Defendant does not refute Plaintiff’s assertion that the record reflects a history of widespread pain. (Mem. in Opp., ECF No. 11, at PAGE ID # 1407–08.) Instead, Defendant correctly 

asserts that the record does not reflect 11 tender points upon physical examination. (Id.) Even so, 

that tender point requirement only pertains to the 1990 ACR criteria. It does not, however, 

pertain to the 2010 ACR criteria. 

Defendant also asserts that even if the ALJ erred when finding that Plaintiff’s 

fibromyalgia was not a medically determinable impairment, that error was harmless. (Id. at 

PAGE ID # 1408.) Defendant reasons that because the ALJ determined that Plaintiff had other 

severe impairments, he continued with the remaining steps in the disability determination, and 

thus any error that he made at Step Two was legally irrelevant. Defendant’s position, and the 

cases cited in support, conflates the analysis of whether an impairment is medically determinable 

with the analysis of whether a medically determinable impairment is severe. See 20 C.F.R. § 

404.1521 (“After we determine that you have a medically determinable impairment(s) then we 

determine if your impairment(s) is severe.”) When a claimant has one or more medically 

determinable impairments that are severe, an ALJ must consider the limiting effects of all the 

claimant’s medically determinable impairments, severe and not, when assessing a claimant’s 

RFC. 20 C.F.R. § 404.1545(e). Therefore, an ALJ’s mischaracterization of an impairment as not 

severe can be harmless in such circumstances because the disability determination continues and 

the mischaracterized impairment is still included in the ALJ’s RFC assessment. See See Pompa 

v. Comm’r of Soc. Sec., 73 Fed. App’x. 801, 803 (6th Cir. 2003) (“Because the ALJ found that 

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Pompa had a severe impairment at step two of the analysis, the question of whether 

the ALJ characterized any other alleged impairment as severe or not severe is of little 

consequence”); Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) 

(“Since the Secretary properly could consider claimant’s cervical condition 

in determining whether claimant retained sufficient residual functional capacity to allow him to 

perform substantial gainful activity, the Secretary’s failure to find that claimant’s cervical 

condition constituted a severe impairment could not constitute reversible error”). But an ALJ 

does not consider impairments that are not medically determinable when assessing a claimant’s 

RFC. Thus, even though an ALJ’s severity error may be harmless in the way that Defendant 

describes, an error in an ALJ’s medically determinable analysis is not, at least in this case, where 

the ALJ did not indicate that he considered Plaintiff’s fibromyalgia when he assessed her RFC at 

Step Four. 

Indeed, at Step Four, the ALJ wrote that he “considered all symptoms” when he assessed 

Plaintiff’s RFC. (R. at 474.) Nevertheless, the pertinent regulations make it clear that certain 

symptoms, including pain and fatigue, will not be found to affect a claimant’s ability to work 

unless medical signs or laboratory findings show the presence of a medically determinable 

impairment that could reasonably expected to produce those symptoms. 20 C.F.R. § 404.1529. 

Therefore, the Court cannot assume that the ALJ considered Plaintiff’s fibromyalgia symptoms, 

such as pain, in the absence of a finding that her fibromyalgia was a medically determinable 

impairment. Accordingly, the Court reject’s Defendant’s contention that any error was harmless. 

Plaintiff also urges the Court to find that there is documented evidence that she can meet 

the second requirement for the 2010 ACR Criteria, specifically repeated manifestations of six or 

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more fibromyalgia symptoms, signs, or co-occurring conditions. To be sure, the record contains 

evidence of depression (R. at 360–61, 422–23, 860), anxiety (R. at 422–23, 427–31, 864–66, 

439, 433), memory issues (R. at 427–31, 349), insomnia (R. at 382–85, 360), waking from sleep 

unrefreshed (R. at 384), fatigue (R. at 360), and disturbed sleep (R. at 859). The Court, does not, 

however, decide whether Plaintiff can meet that second requirement or the third requirement of 

the 2010 ACR Criteria requiring elimination of other causes. Instead, the Court finds only that 

the reason that the ALJ gave for finding that Plaintiff could not meet that criteria— that the 

record did not reflect that Plaintiff had pain in all four quadrants of her body for at least three 

months— is not substantially supported by the record. Upon remand, the ALJ can consider if 

Plaintiff can satisfy those requirements. 

Nor does the Court reach Plaintiff’s other allegations of error. The Court’s finding that 

the ALJ’s Step Two analysis was flawed obviates the need to analyze and resolve Plaintiff’s 

remaining contentions of error. Nevertheless, on remand, the ALJ may consider Plaintiff’s 

remaining assignments of error if appropriate. 

VI. CONCLUSION

For all the foregoing reasons, the Court REVERSES the Commissioner’s decision and 

REMANDS this case for further consideration under Sentence Four of § 405(g). The Clerk is 

DIRECTED to enter judgment in favor of Plaintiff. 

IT IS SO ORDERED. 

Date: May 27, 2020 /s/ Sarah D. Morrison___________

 SARAH D. MORRISON 

 UNITED STATES DISTRICT JUDGE 

 

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