Opinion
Civil Action 1:20-cv-01555-SKC
10-26-2023
M.S.S., Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION & ORDER
S. Kato Crews United States Magistrate Judge
This action is before the Court under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq., for review of the Commissioner of Social Security's (“Commissioner” or “Defendant”) final decision denying Plaintiff M.S.'sapplications for disability insurance benefits (DIB) and supplemental security income (SSI). The parties have consented to the Magistrate Judge's jurisdiction. Dkt 17.
This Opinion & Order identifies Plaintiff by initials only per D.C.COLO.LAPR 5.2.
The Court uses “Dkt.__ ” to refer to specific docket entries in CM/ECF and uses “AR:__ ” to refer to documents in the administrative record. The administrative record may be found at Dkt. 14.
The Court has carefully considered the parties' briefs, the social security administrative record, and applicable law. No hearing is necessary. Because the ALJ misapplied SSR 12-2p and in a manner that renders the Final Decision internally inconsistent, the Court VACATES the Final Decision and REMANDS the matter for further proceedings.
BACKGROUND
In August 2017, Plaintiff filed applications for DIB and SSI under the Social Security Act claiming she became disabled beginning October 14, 2016. She later appeared and testified at an administrative hearing on May 23, 2019, before Administrative Law Judge Bryan Henry (ALJ). Attorney Larry R. Daves represented Plaintiff.
The ALJ issued his written Decision on June 17, 2019. Dkt. 14-2. He determined Plaintiff had not been under a disability from the October 14, 2016, onset date through the date of his Decision. Plaintiff then requested review by the Appeals Council, which denied her request, and in doing so, the ALJ's Decision became the Final Decision of the Commissioner of Social Security. 20 C.F.R. § 404.981; Nelson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff then timely filed this action. The Court has jurisdiction to review the Final Decision under 42 U.S.C. § 405(g).
Throughout this Opinion, while the Court may cite relevant sections of Part 404 of Title 20 of the Code of Federal Regulations (which contain the Commissioner's regulations relating to disability insurance benefits), identical, parallel regulations can be found in Part 416 of that same title, relating to supplemental security income benefits.
A person is disabled within the meaning of the Social Security Act “only if [her] physical and/or mental impairments preclude [her] from performing both [her] previous work and any other ‘substantial gainful work which exists in the national economy.'” Wilson v. Astrue, No. 10-CV-00675-REB, 2011 WL 97234, at *1 (D. Colo. Jan. 12, 2011) (citing 42 U.S.C. § 423(d)(2)). “The mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Social Security Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months.” Id. “[F]inding that a claimant is able to engage in substantial gainful activity requires more than a simple determination that the claimant can find employment and that he can physically perform certain jobs; it also requires a determination that the claimant can hold whatever job he finds for a significant period of time.” Fritz v. Colvin, 15-cv-00230-JLK, 2017 WL 219327, at *8 (D. Colo. Jan. 18, 2017) (emphasis original) (quoting Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994)).
The Social Security Regulations outline a five-step process to determine whether a claimant is disabled:
1. The ALJ must first ascertain whether the claimant is engaged in substantial gainful activity. A claimant who is working is not disabled regardless of the medical findings.
2. The ALJ must then determine whether the claimed impairment is “severe.” A “severe impairment” must significantly limit the claimant's physical or mental ability to do basic work activities.
3. The ALJ must then determine if the impairment meets or equals in severity certain impairments described in Appendix 1 of the regulations.
4. If the claimant's impairment does not meet or equal a listed impairment, the ALJ must determine whether the claimant can perform her past work despite any limitations.
5. If the claimant does not have the residual functional capacity to perform her past work, the ALJ must decide whether the claimant can perform any other gainful and substantial work in the economy. This determination is made based on the claimant's age, education, work experience, and residual functional capacity.Wilson, 2011 WL 9234, at *2 (citing 20 C.F.R. § 404.1520(b)-(f)); see also 20 C.F.R. § 416.920; Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988). Impairments that meet a “listing” under the Commissioner's regulations (20 C.F.R. § Pts. 404 and 416, Subpt. P, App. 1) and a duration requirement are deemed disabling at Step Three with no need to proceed further in the five-step analysis. 20 C.F.R. § 416.920(a)(4) (“If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step.”). Between the Third and Fourth steps, the ALJ must assess the claimant's residual functional capacity (RFC). Id. § 416.920(e). The claimant has the burden of proof in Steps One through Four. The Commissioner bears the burden of proof at Step Five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
The ALJ's Decision tracks the five-step process. At Step One, he found Plaintiff had not engaged in substantial gainful activity since the onset date of October 14, 2016. AR: 20. At Step Two, he found Plaintiff has the following severe, medically determinable impairments: fibromyalgia and depressive disorder. Id. At Step Three, he found Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 21. He then found Plaintiff had the RFC
He also found Plaintiff has the following impairments, which he determined are nonsevere: somatic symptom disorder; attention deficit disorder; osteopenia with a remote history of metatarsal fracture in the right lower extremity; degenerative disc disease; and gastroesophageal reflux disease. AR: 20. He also found Plaintiff's hand pain a nonmedically determinable impairment. Id. at 21.
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: the claimant can occasionally lift and carry 20 pounds, frequently 10 pounds. She can sit for six hours in an eight-hour day, and walk for six hours in an eight-hour day. She can occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. She can occasionally stoop, crouch, kneel, and crawl. She can never work at unprotected heights or around moving and/or dangerous machinery. She is able to work in proximity to coworkers throughout the day, having only occasional interactions. She can have only occasional interactions with supervisors. The claimant is limited to simple, routine, repetitive tasks.Id. at 23.
At Step Four, the ALJ determined Plaintiff was unable to perform any past relevant work. And at Step Five, he found there are other jobs that exist in significant numbers in the national economy that Plaintiff can perform, including routing clerk, housekeeping, and garment sorter. Id. at 32. Accordingly, the AL J determined Plaintiff was not disabled during the relevant period. Id. at 33.
STANDARD OF REVIEW
In reviewing the Commissioner's Final Decision, the Court's review is limited to determining whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is more than a scintilla, but less than a preponderance.Lee v. Berryhill, 690 Fed.Appx. 589, 590 (10th Cir. 2017) (internal quotations and citations omitted, citing inter alia Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014)); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive”).
A court may not reverse an ALJ just because the court may have reached a different result based on the record; the question instead is whether there is substantial evidence showing the ALJ's decision was justified. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “We review only the sufficiency of the evidence, not its weight .... Although the evidence may also have supported contrary findings, we may not displace the agency's choice between two fairly conflicting views.” Lee, 690 Fed.Appx. at 591-92. Nevertheless, “[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (internal citation omitted). A reviewing court must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). In addition, “if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (internal citation omitted).
ANALYSIS
Plaintiff makes several arguments in this appeal, claiming the ALJ erred by: (1) failing to consider Plaintiff's fatigue, osteopenia, metatarsal fractures, and degenerative disc disease severe at Step Two; (2) failing to consider all the medically determinable impairments in formulating the RFC; (3) failing to determine that Plaintiff's fibromyalgia and related symptoms met or medically equaled a listing; (4) determining that Plaintiff has the RFC for light duty; (5) assessing Plaintiff's credibility; and (6) failing to find Plaintiff disabled.
The Court, however, does not reach these arguments. As mentioned above, the Court finds the ALJ misapplied SSR 12-2p in such a manner that the error is not harmless and which renders the Final Decision internally inconsistent. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (“We review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.”).
Social Security Regulation 12-2p provides guidance for determining when a person's fibromyalgia is a medically determinable impairment (MDI) and how fibromyalgia is evaluated in disability claims. See generally SSR 12-2p, 2012 WL 3104869. The guidance was developed because fibromyalgia is a “complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” Id. Fibromyalgia may support a finding of disability only when it is found to be an MDI as established by appropriate medical evidence. Id. The exercise requires the ALJ to evaluate a person's fibromyalgia against criteria set out in Sections II.A. and II.B. of SSR 12-2p.
The Section II.A. criteria are: (1) a history of widespread pain; (2) at least 11 positive tender points on physical exam; and (3) evidence that other disorders that could cause the symptoms or signs were excluded. The Section II.B. criteria are: (1) a history of widespread pain; (2) repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions; and (3) evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded.
And herein is the problem with the Final Decision. On the one hand, at Step Two of the sequential steps, and without reference to SSR 12-2p, the ALJ found Plaintiff's fibromyalgia to be a severe, medically determinable impairment, as follows:
3. The claimant has the following severe impairments: fibromyalgia and depressive disorder (20 CFR 404.1520(c) and 416.920(c)).
The above medically determinable impairments significantly limit the ability to perform basic work activities as required by SSR 85-28.AR: 20. But on the other hand, under his Step Three analysis of whether Plaintiff's impairments meet or medically equal a listed impairment, he analyzed Plaintiff's fibromyalgia under SSR 12-2p and found she failed to establish the criteria under Sections II.A. and II.B. AR: 21. The inherent conclusion from that analysis is that Plaintiff's fibromyalgia, therefore, is not an MDI. See SSR 12-2p.
The ALJ's Step Three determination that Plaintiff's fibromyalgia is not an MDI under SSR 12-2p conflicts with his Step Two finding that her fibromyalgia is an MDI. Compare AR: 20 (Section 3) with AR: 21 (Section 4). What the ALJ should have done was first determine whether Plaintiff's fibromyalgia is an MDI under the guidance of SSR 12-2p, and if so, only then proceed with considering that condition in the sequential-step analysis. See SSR 12-2p (“Once we establish that a person has an MDI of [fibromyalgia], we will consider it in the sequential evaluation process to determine whether the person is disabled.”); Wendy F. v. Kijakazi, No. 1:22-cv-00021-CMR, 2023 WL 2586211, at *2 (D. Utah Mar. 21, 2023) (“Under SSR 12-2p, once an ALJ finds that fibromyalgia is a medically determinable impairment, the ALJ must continue through the agency's five-step sequential evaluation process as in any other disability case.”); Wein v. Comm'r of Soc. Sec., No. 16-cv-11816, 2017 WL 4211048, at *6 (E.D. Mich. Aug. 7, 2017), report and recommendation adopted, 2017 WL 4176740 (E.D. Mich. Sept. 21, 2017) (“Prior to evaluating fibromyalgia under the sequential evaluation process . . . the Commissioner must first determine whether a person's fibromyalgia is a medically determinable impairment.”).
The Court has considered whether this error is harmless. Cf. Wendy F., 2023 WL 2586211, at *2 (“[A]lthough the ALJ did not discuss the two criteria from SSR 122p for establishing that fibromyalgia is a medically determinable impairment, any omission was harmless error because the ALJ went on to find that Plaintiff's fibromyalgia was a severe medically determinable impairment[.]”); Aragon v. Kijakazi, CIV No. 21-977 KK, 2023 WL 1990485, at *8 (D.N.M. Feb. 14, 2023) (“Despite some ambiguity as to a fibromyalgia diagnosis, the ALJ explained that she gave Plaintiff ‘the benefit of the doubt' in finding that her fibromyalgia was a severe medically determinable impairment.... Having done so, she went on to consider whether Plaintiff's fibromyalgia medically equaled a listing ....”). But it is clear to the Court that the internal inconsistency prejudiced subsequent steps of the sequential-step process. For example, in finding Plaintiff's fibromyalgia to be an MDI at Step Two, the ALJ failed to make a finding of whether her fibromyalgia medically equals a listing at Step Three. See AR: 21-23; SSR 12-2p (“[Fibromyalgia] cannot meet a listing in appendix 1 because [it] is not a listed impairment. At step 3, therefore, we determine whether [fibromyalgia] medically equals a listing (for example, listing 14.09D in the listing for inflammatory arthritis), or whether it medically equals a listing in combination with at least one other medically determinable impairment.”). Instead, at Step Three the ALJ inconsistently determined Plaintiff's fibromyalgia was not an MDI, and he then focused solely on whether the severity of Plaintiff's mental impairments met or medically equaled a listed impairment. AR: 21-23.
The error is too conflicting to be harmless. See, e.g., Chavez v. Berryhill, No. 1:16-cv-01376-KRS, 2018 WL 1224447, at *4 (D.N.M. Mar. 8, 2018) (“[H]armless error does not save the ALJ's deficient analysis at step three.”); Marney v. Berryhill, No. 3:15-CV-01759-JE, 2017 WL 4391716, at *5 (D. Or. Sept. 12, 2017), report and recommendation adopted, 2017 WL 4369480 (D. Or. Sept. 29, 2017) (“Furthermore, the ALJ's dismissal of fibromyalgia at Step Two likely prejudiced the Step Three analysis.”); Milano v. Astrue, No. CV 08-0823 WPL, 2009 WL 10708194, at *4, n.13 (D.N.M. May 21, 2009) (“The requirement that the agency consider the combined effect of all impairments presumes that a medically determinable impairment has been found. Thus, an erroneous determination that a claimant's complaint is not a medically determinable impairment could be reversible error, regardless of whether the ALJ proceeds past step two. The ALJ's treatment of fibromyalgia in this case is equivocal on that point.”).
The Court finds the ALJ's misapplication of SSR 12-2p warrants remand. Fowler v. Comm'r, Soc. Sec. Admin., No. 17-cv-01622-MSK, 2018 WL 2455054, at *3 (D. Colo. June 1, 2018) (ordering remand where the ALJ misapplied the de minimus legal standard at Step Two); Chavez, 2018 WL 1224447, at *3 (“Although the ALJ did consider Chavez's anxiety and depression in combination when independently evaluating whether those conditions were severe at step two, the ALJ misapplied the applicable legal standard, which is reversible error.”).
For the reasons shared above, the Final Decision is VACATED and this matter is REMANDED for further proceedings consistent with this Opinion & Order. Plaintiff is awarded her costs, to be taxed by the Clerk of Court pursuant to Fed.R.Civ.P. 54(d)(1).
The Court declines to address Plaintiff's remaining or additional contentions of error because they may be impacted on remand. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the remaining issues raised by appellant because they may be affected by the [administrative law judge's] treatment of the case on remand.”).