IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA ORANGEBURG DIVISION Amy O’Berry, ) ) Plaintiff, ) Civil Action No. 5:21-2443-RMG ) vs. ) ) Kilolo Kijakazi, Acting Commissioner ) of Social Security, ) ORDER ) Defendant. ) ) ____________________________________) This matter comes before the Court for judicial review of the final decision of the Commissioner of Social Security denying Plaintiff’s application for Disability Insurance Benefits (“DIB”). In accordance with

(b) and Local Rule 73.02, D.S.C., this matter was referred to the United States Magistrate Judge for pretrial handling. The Magistrate Judge issued a Report and Recommendation (“R & R”) on July 11, 2022, recommending that the decision of the Commissioner be reversed and remanded to the agency because the Administrative Law Judge improperly relied upon objective medical evidence to discredit Plaintiff’s fibromyalgia related subjective symptoms. (Dkt. No. 13). Despite the fact that the ALJ recognized Plaintiff’s severely compromised physical condition due to her fibromyalgia, the claimant’s subjective complaints of severe, disabling pain and other fibromyalgia related symptoms were discounted because there were various entries in the record suggesting some days were better than others. Thus, the ALJ concluded that the Plaintiff’s statements were “inconsistent” with the “objective medical evidence.” (Dkt. No. 4-2 at 23, 26, 29). The -1- discounting of the subjective complaints of a claimant with the severe impairment of fibromyalgia because of the lack of “objective evidence” plainly violates the Fourth Circuit’s holding in Arakas v. Commissioner, Social Security Administration,

(4th Cir. 2020). The Magistrate Judge was clearly correct in finding that the Commissioner’s decision

was inconsistent with the holding in Arakas and required reversal. The Commissioner has advised the Court she does not intend to file an objection to the R & R. (Dkt. No. 14). Based on the foregoing, the Court ADOPTS the Report and Recommendation as the order of this Court, REVERSES the decision of the Commissioner pursuant to Sentence Four of

(g), and REMANDS the matter to the Commissioner for further proceedings consistent with this order. Further, this application for disability has now been pending for nearly six years and the administrative review following reversal and remand must be expedited. Consequently, the Commissioner is directed to conduct another administrative hearing in this

matter within 120 days and to issue a final Agency decision within 180 days. AND IT IS SO ORDERED.

s/ Richard M. Gergel Richard M. Gergel United States District Judge

July 13, 2022 Charleston, South Carolina

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