JOHN W. LUNGSTRUM, District Judge.
Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits pursuant to sections 1602 and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 1381a and 1382c(a)(3)(A) (hereinafter the Act). Finding error in the Administrative Law Judge's (ALJ) finding fibromyalgia is not one of Plaintiff's medically determinable impairments, the court ORDERS that the Commissioner's final decision shall be reversed and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this decision.
Plaintiff argues the ALJ "erroneously concluded [Ms.] Folsom's fibromyalgia was not a medically determinable impairment." (Pl. Br. 11) (bolding and underline omitted).
The court's review is guided by the Act.
The court may "neither reweigh the evidence nor substitute [its] judgment for that of the agency."
The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. § 416.920;
The Commissioner next evaluates steps four and five of the sequential process— determining at step four whether, considering the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy.
At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed.
Plaintiff argues the ALJ erred in finding at step two of the sequential evaluation process that fibromyalgia is not a medically determinable impairment (MDI) in this case because, contrary to the ALJ's findings, the record demonstrates that all the requirements to establish the MDI of fibromyalgia are present in this case. She argues the ALJ's statement that "comprehensive findings establishing a diagnosis of fibromyalgia are not included in detail in this record" (R. 16) is an application of the incorrect legal standard because "there is no requirement in the regulations or SSR [(Social Sec. Ruling)] 12-2p that `comprehensive findings' are required to establish fibromyalgia as a medically determinable impairment." (Pl. Br. 15-16). Plaintiff argues that the ALJ's error prejudiced her because limitations resulting from an alleged impairment which is not medically determinable are precluded from the ALJ's consideration when assessing RFC.
The Commissioner responds that the ALJ correctly found a lack of documented tender points which justified her finding fibromyalgia is not an MDI, and that finding justified her not assessing limitations allegedly resulting from fibromyalgia. She points out "that `under no circumstances may the existence of an impairment be established on the basis of symptoms alone.'" (Comm'r Br. 5) (quoting SSR 96-4p, 1996 WL 374187, at *1). Based on SSR 12-2p she argues that to establish an MDI of fibromyalgia a claimant must demonstrate she has at least eleven of eighteen positive tender points on examination, and that no physician documented "exactly how many tender points Plaintiff had or the locations of any such tender points." (Comm'r Br. 5-6). She argues that "the ALJ was correct in noting that no provider diagnosed fibromyalgia based on the requisite number of tender points."
In her Reply Brief, Plaintiff points out SSR 12-2p has two tests for determining if fibromyalgia is an MDI, and only one requires eleven positive tender points. (Reply 1). She argues that in any case the record shows her case meets the second test.
At step two of the sequential evaluation, the ALJ found that Plaintiff has severe impairments of "degenerative disc disease; trigeminal neuralgia; major depressive disorder; panic disorder with agoraphobia; posttraumatic stress disorder (PTSD); chronic fatigue; and obesity." (R. 14) (finding no. 2) (bolding omitted). She also found that Plaintiff has other MDIs which are not severe within the meaning of the Act and the regulations; including peripheral neuropathy, mild carpal tunnel syndrome, essential hypertension, sinus tachycardia, chronic headaches, and blood in the stool following antibiotics.
An impairment is not considered severe if it does not significantly limit a claimant's ability to do basic work activities such as walking, standing, sitting, carrying, understanding simple instructions, responding appropriately to usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. § 416.921. The Tenth Circuit has interpreted the regulations and determined that to establish a "severe" impairment or combination of impairments at step two of the sequential evaluation process, plaintiff must make only a "
The Commissioner has provided "guidance on how [the Social Security Administration (SSA)] develop[s] evidence to establish that a person has a medically determinable impairment of fibromyalgia." Social Security Ruling, SSR 12-2p; Titles II and XVI: Evaluation of Fibromyalgia, 77 Fed. Reg. 43,640-01, 2012 WL 3017612 (July 25, 2012). SSR 12-2p provides that
The ruling provides two sets of specific evidence, either of which might establish the MDI of FM acceptable to the SSA so long as "the physician's diagnosis is not inconsistent with the other evidence in the person's case record."
The first set of evidence requires as criterion #2, "[a]t least 11 positive tender points on physical examination" out of 18 specifically identified tender point sites "located on each side of the body."
The second set of evidence differs by requiring at criterion #2: "Repeated manifestations of six or more FM symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems ("fibro fog"), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome."
Plaintiff argues that all three criteria of both sets of evidence are met, the Commission does not argue that the first and third criteria are not met, and the court finds that there is record evidence from which it might be inferred those criteria are met. Therefore, the question for the court is whether the record evidence supports the ALJ's apparent finding that the second criterion of neither set of evidence is met. It does not.
As quoted above, the ALJ found that "although there is reference to tender points and symptoms supportive of the diagnosis, comprehensive findings establishing a diagnosis of fibromyalgia are not included in detail in this record." (R. 15). Plaintiff argues that there is no statute, regulation, or ruling which requires "comprehensive findings establishing a diagnosis of fibromyalgia." However, the ALJ's finding can be understood to constitute a finding both that the evidence does not show 11 positive tender points, and that the evidence does not show "[r]epeated manifestations of six or more FM symptoms, signs, or co-occurring conditions." While the record evidence does contain bare "diagnoses" of fibromyalgia, Plaintiff points only to "physical examinations that yielded `a lot' and a `good majority' of the fibromyalgia tender points," and does not point to record evidence of an examination establishing 11 or more positive tender points. (Reply 1) (citing Comm'r Br. 6, which quoted R. 669-70, and R. 817-18). The ALJ found Plaintiff has not shown evidence of fibromyalgia in accordance with the first set of criteria for establishing fibromyalgia as a MDI, and the record evidence supports that finding.
However, as to the second set of criteria, neither the decision nor the record is so clear. While the decision can be read to find that the evidence does not show "[r]epeated manifestations of six or more FM symptoms, signs, or co-occurring conditions," the decision does not show how (or even if) the ALJ definitively reached that conclusion. Moreover, the decision itself suggests that Plaintiff might have had such symptoms, signs, or co-occurring conditions. For example, the ALJ found that Plaintiff has severe impairments of major depressive disorder, PTSD (an anxiety disorder), and chronic fatigue. (R. 14). These might be manifestations of depression, anxiety, and chronic fatigue syndrome—which can be FM symptoms, signs, or co-occurring conditions. The ALJ also noted "a number of tentative diagnoses raised in records of treatment that include numerous efforts to assess the origin of multiple symptoms reported by the claimant, including, for example, extremity weakness and numbness, intermittent unsteady gait, chronic fatigue, diffuse pain, myalgias, headaches, short-term memory loss and facial pain and droop." (R. 15). Of these muscle weakness, numbness, myalgias, headaches, and memory problems can also be FM symptoms, signs, or co-occurring conditions. Finally, the ALJ noted that Plaintiff "kept a log of `seizures'" (R. 15), which might also be a FM symptom, sign, or co-occurring condition. Since criterion #2 of the second set of evidence required for finding an MDI of FM requires "Repeated manifestations of six or more FM symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems ("fibro fog"), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome," these facts require specific discussion of whether the second set of evidence is met in this case. The court does not mean hereby to suggest that the evidence requires a finding that FM is an MDI in the facts and circumstance of this case, but that issue must be specifically addressed by more than a conclusory finding.