KIRTAN KHALSA, Magistrate Judge.
Plaintiff alleges that she became disabled on August 17, 2009, at the age of 41
Plaintiff earned a bachelor's degree in human resources management, and served in the army for nearly twelve years until 1998, when she was discharged at the rank of staff sergeant. (AR. 43-44.) Thereafter, Plaintiff worked as a production planner for a company that manufactured conveyor systems for paper companies, as an assistant librarian, as a substitute teacher, as a sandwich maker at a Subway restaurant, and in the bakery and deli departments of a grocery store. (AR. 44-50.) Plaintiff stopped working in June 2009 because of her medical conditions. (AR. 50, 235.)
On June 25, 2013, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (AR. 11.) Plaintiff's application was denied initially on September 11, 2013 (AR. 73-83), and upon reconsideration on June 12, 2014 (AR. 85-101). On August 12, 2014, Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (AR. 121.) ALJ David Bruce conducted a hearing on July 8, 2016. (AR. 39.) Plaintiff appeared in person at the hearing with her Attorney, Robert Gray.
An individual is considered disabled if she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:
See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).
This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by "substantial evidence" or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court "neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'" Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported by "relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion." Langley, 373 F.3d at 1118. A decision "is not based on substantial evidence if it is overwhelmed by other evidence in the record[,]" Langley, 373 F.3d at 1118, or "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must "provide this court with a sufficient basis to determine that appropriate legal principles have been followed." Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, "the record must demonstrate that the ALJ considered all of the evidence," and "the [ALJ's] reasons for finding a claimant not disabled" must be "articulated with sufficient particularity." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10
The ALJ made his decision that Plaintiff was not disabled at step five of the sequential evaluation. Specifically, the ALJ found that Plaintiff met the insured status requirements through June 30, 2015, and had not engaged in substantial gainful activity from the alleged onset date of August 17, 2009 through her date last insured of June 30, 2015. (AR. 13.) The ALJ determined at step two that Plaintiff had severe impairments of depressive and post-traumatic stress disorders, an ethanol use disorder, degenerative changes to the cervical spine, chronic obstructive pulmonary disease, a seizure disorder, and benign paroxysmal positional vertigo. (AR. 14.) The ALJ also found that Plaintiff had the following non-severe impairments: hyperlipidemia, a hiatal hernia, gastroesophageal reflux disease, anemia, irritable bowel syndrome, hypertension, allergic rhinitis and rhinosinusitis, impaired hearing, a history of impaired liver function, neuropathy of the bilateral lower extremities, and thyroid dysfunction. (AR. 14.) The ALJ determined at step three that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, specifically, 20 C.F.R. 404.1520(d), 404.1525 and 404.1526. (AR. 18.) The ALJ found that Plaintiff had the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b)
(AR. 21.) Based on the RFC and the testimony of the VE, the ALJ concluded that Plaintiff was unable to perform past relevant work, but that there were jobs in significant numbers in the national economy that she could perform. (AR. 29-30.) As such, the ALJ determined that Plaintiff was not disabled. (AR. 31.)
In the Motion, Plaintiff argues (1) that the ALJ erred in failing to find that fibromyalgia was among Plaintiff' severe impairments at step two of the sequential evaluation, and (2) that the ALJ erred in his RFC because he did not attribute Plaintiff's complaints of disabling knee, hip, and shoulder pain to fibromyalgia. (Doc. 23 at 10-11; Doc. 30 at 2-3.) The Commissioner argues that the ALJ's failure to address Plaintiff's fibromyalgia was harmless error, and that the ALJ's RFC analysis appropriately accounted for Plaintiff's limitations. (Doc. 25 at 8-12.)
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." SSR 12-2P, 2012 WL 3104869, *2 (July 25, 2012). State agency medical consultant, Pat Chan, M.D., reviewed Plaintiff's records and concluded, in June 2014, that Plaintiff had a severe impairment of fibromyalgia. (AR. 93.) Plaintiff's medical records reflect that she has a history of joint pain that began as early as 1994. (Ar. 491, 1323.
"It is beyond dispute that the burden to prove disability in a social security case is on the claimant." Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997); see Bowen, 482 U.S. at 146, n.5 (stating that the claimant bears the burden at steps one through four of the sequential evaluation of establishing a disability). And an ALJ is generally entitled to rely on claimant to allege impairments, and to rely on the claimant's counsel to structure and present the claimant's case in a way that ensures her claims are adequately explored. Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009). Here, not only did Plaintiff fail to include fibromyalgia among her list of alleged impairments in her disability application, but neither she nor her counsel raised the issue of Plaintiff's fibromyalgia before the ALJ. (AR. 85, see AR. 39-72.) Moreover, there is sparse evidence in the record pertaining to Plaintiff's fibromyalgia. And there is an absence of evidence pertaining to the origin of Plaintiff's fibromyalgia diagnosis, Plaintiff's treatment for the condition, or opinions from any treating physicians regarding Plaintiff's fibromyalgia-related limitations. Under these circumstances, the fact that the ALJ did not address fibromyalgia is neither surprising nor erroneous. See id. at 1062 ("ALJs are not required to exhaust every possible line of inquiry in an attempt to pursue every potential line of questioning. The standard is one of reasonable good judgment."); Hawkins, 113 F.3d at 1167 ("Ordinarily, the claimant must in some fashion raise the issue sought to be developed" and "to make sure there is, in the record, evidence sufficient to suggest a reasonable possibility that a severe impairment exists.").
Although she failed to identify fibromyalgia among her disabling conditions in her application for disability benefits or in her hearing testimony, Plaintiff argues that the ALJ erred at step two of the sequential evaluation by not considering fibromyalgia as the cause of her knee, hip, and shoulder pain. (Doc. 23 at 10.) Defendant argues that the ALJ would have found Plaintiff's allegations of pain credible had he considered that fibromyalgia produces "real pain that cannot be proven through objective medical evidence." (Doc. 23 at 11.) However, this argument is not rationally or evidentiarily supported.
As an initial matter, the ALJ's decision does not suggest that he disbelieved that Plaintiff has "real" knee, hip, and shoulder pain. Instead, his credibility determination was focused on the degree to which this pain limited Plaintiff's ability to engage in basic work activity. (AR. 18.) In that regard, the ALJ noted that Plaintiff testified that she could not stand on her feet for any amount of time, and that the pain that she experienced significantly impacted her ability to move about and manipulate objects.
The Court is not persuaded that the ALJ erred in failing to include fibromyalgia among Plaintiff's severe impairments at step two of the sequential evaluation. However, even were the Court to agree with Plaintiff's contention that the ALJ erred in that regard, it is well established that any error at step two becomes harmless where the ALJ proceeds to the next step instead of conclusively denying benefits at step two. (Doc. 23 at 10.) Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008); Hill v. Astrue, 289 F. App'x 289, 292 (10th Cir. 2008) ("Once the ALJ finds that the claimant has any severe impairment, he has satisfied the analysis for purposes of step two."); Oldham v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2007) (rejecting the claimant's argument that the ALJ erred in failing to determine that she had certain severe impairments at step two because the ALJ made an explicit finding that the claimant suffered from severe impairments, and nothing further was required). Here, the ALJ found that Plaintiff had several severe impairments at step two, and appropriately proceeded to the next steps of the sequential evaluation. Assuming that his failure to find that fibromyalgia was a severe impairment constituted error, the error does not require reversal. Hill, 289 F. App'x at 292.
Plaintiff argues, further, that the ALJ committed reversible error by failing to include an explicit function-by-function analysis of the sitting, standing, walking, pushing, pulling, kneeling, stooping or bending limitations caused by Plaintiff's fibromyalgia condition. (Doc. 23 at 11; Doc. 30 at 3.) In support of this argument, Plaintiff cites SSR 96-8P, which provides, in part, that
1996 WL 374184, at *3 (italics added). Relying on the italicized portion of this ruling, taken out of context, Plaintiff argues that the ALJ erred in summarily concluding that Plaintiff was limited to "light work." (Doc. 23 at 11.) She maintains that if the ALJ had conducted a proper analysis, "he would have caught that Plaintiff's allegations of limitation in these domains were easily explained by her fibromyalgia diagnosis." (Doc. 30 at 3.) These arguments do not demonstrate grounds for reversal.
First, the Court is not persuaded that the ALJ's decision was inconsistent with SSR 96-8P. The ALJ found that Plaintiff was limited to "light work as defined in 20 CFR 404.1567(b)" subject to enumerated limitations including, among others: no climbing of ladders, ropes, or scaffolds, avoiding unprotected heights, moving mechanical parts, and operating a motor vehicle. (AR. 21.) "Light work" is defined in 20 C.F.R. § 404.1567(b) as work that "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." Such jobs may require "a good deal of walking or standing" or "sitting most of the time with some pushing and pulling of arm or leg controls." Id. And someone who can do light work can also do "sedentary work" as defined in subsection (a) of the same regulation. Id. The ALJ, having assessed that Plaintiff is capable of "light work" as defined by regulation, also identified and enumerated several specific additional exertional limitations. (AR. 21.) In his analysis, the ALJ considered each of Plaintiff's symptoms to the extent that they were consistent with the evidence of record, and ultimately determined that Plaintiff was unable to perform any past relevant work because the work that Plaintiff performed in her past jobs exceeded her exertional capacity. (AR. 22-30.) The ALJ's analysis of Plaintiff's RFC included a discussion of Plaintiff's "joint pain."
The Court is not persuaded that the ALJ's failure to identify Plaintiff's fibromyalgia diagnosis affected the outcome of his decision. Plaintiff's argument to the contrary rests primarily on the fact that state agency medical consultant, Dr. Chan, found Plaintiff's fibromyalgia to be a severe impairment. (Doc. 23 at 11.) However, in assessing Plaintiff's RFC, the ALJ gave Dr. Chan's opinion "great weight"; and Dr. Chan, having considered Plaintiff's "severe" fibromyalgia impairment, did not opine that Plaintiff had exertional limitations beyond those identified by the ALJ. (AR. 21, 92-93.) Because Plaintiff's exertional limitations as assessed by Dr. Chan were reflected in the ALJ's RFC assessment, Plaintiff's assertion of error is essentially based upon a technicality of drafting—i.e., that the ALJ omitted the term "fibromyalgia" from his decision.
For the reasons stated above, the Court recommends Plaintiffs Motion to Reverse or Remand (Doc. 23) be
Timely objections may be made pursuant to 28 U.S.C. § 636(b)(1)(c). Within fourteen (14) days after a party is served with a copy of these proposed findings and recommended disposition that party may, pursuant to Section 636(b)(1)(c), file written objections to such proposed findings and recommended disposition with the Clerk of the United States District Court for the District of New Mexico. A party must file any objections within the fourteen-day period allowed if that party wants appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.
