Opinion
Civil Action 3:21-cv-621
02-28-2023
MARIE VALENTIN ROLDAN, Plaintiff, v. KILOLO KIJAKAZI,[1] Acting Commissioner of Social Security Defendant.
MARIANI, D.J.
REPORT AND RECOMMENDATION
PETER E. ORMSBY UNITED STATES MAGISTRATE JUDGE
Plaintiff Marie Valentin Roldan (Valentin) filed this action pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner of Social Security's denial of disability insurance benefits (DIB) and Supplemental Security Income (SSI). Her disability applications alleged multiple conditions that limited her ability to work, including fibromyalgia and depression. An Administrative Law Judge (ALJ) agreed that Valentin cannot perform her past work but also found she is not disabled because she still has the capacity to do a restricted range of light work. Valentin contends the ALJ erred in several ways, including by finding that Valentin's fibromyalgia was not a medically determinable impairment.
A federal court may review the Commissioner's denial of benefits only to determine whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence. See 42 U.S.C. § 405(g); Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2008). After carefully considering the record in the context of this deferential standard of review, the undersigned concludes that the ALJ failed to apply the correct legal standard in determining whether Plaintiff's fibromyalgia is a medically determinable impairment. The error is not harmless because it may have affected the ALJ's ultimate disability determination. Accordingly, for the reasons discussed further below, it is recommended that the Commissioner's decision be vacated and remanded.
This matter has been referred to the undersigned magistrate judge to prepare a report and recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.
I. BACKGROUND
Plaintiff Valentin filed DIB and SSI applications on May 30, 2017. (See Tr. 252-68.) She initially alleged she became disabled on January 16, 2016, but she later amended the onset date to March 30, 2017. (See Tr. 39.) Valentin was 44 years old as of the amended onset date. She listed 16 conditions that limit her ability to work, but she emphasized fibromyalgia and mental problems as the main causes of her alleged disability. (See Tr. 288 (list of conditions); see also Tr. 60-62 (counsel describing severe conditions).)
The Commissioner has filed a transcript of the record of the administrative proceedings (Doc. 15), which will be cited as “Tr.” The page numbers refer to the numbers in bold typeface located in the bottom right corner of the transcript pages. Throughout this report, “Doc. ” refers to the docket entry numbers assigned by the Court's electronic filing system (CM/ECF). Page cites included with docket numbers (“at ”) refer to the electronically assigned page numbers found on the top right of each page.
This is Valentin's second set of DIB and SSI applications. Her initial applications were denied on March 29, 2017, which was the day before her amended alleged onset date as to her new claims. (See Tr. 109-19.) The denial of her initial applications is not otherwise relevant to the issues Valentin raises in this appeal.
Valentin's applications were initially denied on November 1, 2017. She then requested a hearing, which was held on January 24, 2019, before ALJ Sharon Zanotto. The ALJ issued a written decision on May 14, 2019, finding that Valentin was not disabled. (Tr. 39-50.)
Valentin requested the Social Security Administration's Appeals Council to review the ALJ's adverse decision. The Appeals Council denied review, rendering the ALJ's decision the Commissioner's final decision for purposes of judicial review. In considering Valentin's challenge to the ALJ's decision, the evidence in the record will be summarized as it relates to the key issue raised.
The Court must “scrutinize” the record to determine whether the ALJ's decision is supported by substantial evidence. Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003) (citing Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)). The undersigned has reviewed the relevant medical records and other evidence. In this report, the record will be summarized to the extent it may be helpful in providing context for the issue Plaintiff raises regarding her fibromyalgia.
A. Education, Work Experience, and Activities
Valentin last worked in 2016. (Tr. 306.) Between 2009 and 2016, she had worked at several jobs that involved soldering and assembling electronic components. (Id.)
In support of her disability applications, Valentin submitted a “Function Report” and a supplemental function report describing her conditions and activities. (Tr. 296-305.) She stated that beginning in January 2016, she has had pain in her hips, upper and lower back, legs, arms, and hands. (Tr. 296, 304.) She also often feels depressed and anxious, and she has trouble sleeping, concentrating, and remembering things. (Tr. 296, 302.)
Valentin's daily activities are limited. She wakes up at 4:00 a.m., goes downstairs, turns on the TV, and mostly stays on the sofa all day. (Tr. 297, 303.) Her mother, husband, and daughter help her with her personal care. (Id.) She makes sandwiches for her own meals and occasionally makes other meals with the help of her mother. (Tr. 298.) Valentin does not do household chores due to pain in her legs and back. (Tr. 298-99.) She goes grocery shopping but uses a wheelchair in the store. (Tr. 299.) Since Valentin began having pain, she “stopped everything”: she has no interests or hobbies, and she does not socialize with others. (Tr. 300.)
B. Medical Records and Opinion Evidence: Fibromyalgia
The administrative record reflects that since about 2015, Valentin has sought treatment for a myriad of conditions from her primary care providers at WellSpan Internal Medicine (WellSpan) in York, Pennsylvania. For example, the WellSpan treatment notes for Valentin's visit on May 1, 2017, reflect that she had over 60 “active problems.” (Tr. 431-32.) Because the key issue Plaintiff raises in her appeal addresses fibromyalgia, the medical evidence will be summarized as it relates to that condition.
Beginning in 2015, Valentin reported chronic abdominal pain. (See Tr.1102 (summarizing medical history).) To address that pain, she had a hysterectomy in January 2016. After the surgery, however, she was “[s]till having pain ‘all over,'” including “pain in her abdomen and in her legs and lower back.” (Tr. 452.) Valentin was prescribed pain medications and referred to a pain clinic and physical therapy. Despite those steps, as of December 2016, Valentin was complaining of frequent pain in her neck, shoulders, hips, back, and hands, as well as “profound fatigue.” (Id.; see also Tr. 430.)
In February 2017, Valentin had laparoscopic surgery to remove adhesions related to her hysterectomy. (See Tr. 590, 598-99.) However, this surgery did not help with Valentin's pain symptoms.
On April 26, 2017, Valentin visited the pain clinic at the Milton S. Hershey Medical Center (Hershey) “for evaluation of her low back pain, abdominal pain, bilateral groin pain, left and right arm and hand pain.” (Tr. 670.) Valentin was examined by Darko Bijelic, CRNP, who, in collaboration with David Giampetro, M.D., prepared a report detailing the pain clinic's findings. (Tr. 670-72.)
The report noted that Valentin had “a history significant for chronic diffuse pain, depression, anxiety, history of thyroid disease and pelvic pain.” (Tr. 670.) During her most recent visit, she complained of “pain primarily located in her lower back, abdomen, bilateral groin, right and left arms, neck and hands.” (Id.) Valentin's medical chart “reveal[ed] numerous diagnostic tests,” but “no definitive etiology of her pain was isolated.” (Id.) On examination, Valentin appeared to be in “no acute distress,” but she had “generalized diffuse tenderness to palpation” at multiple locations, including the following: “cervical, thoracic and lumber spine”; “iliac crest, greater trochanter and SI joints bilaterally”; and “lower abdomen as well as shoulders and arms.” (Tr. 671.)
The report from the pain clinic concluded with the following principal impression: “Based on the review of the patient's records, medications and the patient's presentation, we are under the impression that the patient's diffuse pain is most likely fibromyalgia.” (Tr. 672.) They recommended (among other things) that Valentin try Cymbalta and that she be referred to “neurology and rheumatology for additional inputs and investigation of the possible fibromyalgia symptoms.” (Tr. 672.)
Fibromyalgia has been described as follows:
Fibromyalgia is a chronic (long-lasting) disorder that causes pain and tenderness throughout the body, as well as fatigue and trouble sleeping. Scientists do not fully understand what causes it, but people with the disorder have a heightened sensitivity to pain.
There is no cure for fibromyalgia, but doctors and other health care providers can help manage and treat the symptoms. Treatment typically involves a combination of exercise or other movement therapies, psychological and behavioral therapy, and medications.See https://www.niams.nih.gov/health-topics/fibromyalgia (last visited Jan. 23, 2023). This medical information is provided for background and context only, not as evidence. Such information in later footnotes is provided for the same purpose.
About a week later, on May 1, 2017, Valentin returned to her primary care providers at WellSpan and was examined by Elizabeth Blain, D.O. (Tr. 430-34.) Dr. Blain advised Valentin that she might have fibromyalgia, gave her a handout about it, and prescribed Lyrica. (Tr. 431.) Dr. Blain's examination findings were essentially normal. (See Tr. 434.) The doctor noted that Valentin would be seeing a rheumatologist regarding her possible fibromyalgia. (Tr. 430.)
Valentin returned WellSpan a few days later, on May 5, 2017, and she was seen by another treating doctor, Nivedita Boinapally, M.D. (Tr. 747-52.) On examination, Valentin appeared to be anxious and “in mild distress.” (Tr. 751.) Her lumbar spine was “tender to even [a] light touch,” and she “was almost crying with mild pressure.” (Tr. 752.) Valentin had “multiple tender points on her back and legs.” (Id.) Dr. Boinapally noted that results from Valentin's blood work, an MRI, and x-rays “were normal.” (Tr. 747.) Given those test results and her tenderness on examination, Dr. Boinapally told Valentin “she probably has fibromyalgia,” but unfortunately “there is no good treatment for this.” (Tr.747.) The doctor recommended “physical therapy and antidepressants.” (Id.)
“Tender points are areas of tenderness occurring in muscle, muscle-tendon junction, bursa, or fat pad. When tender points occur in a widespread manner, they are usually considered characteristic of fibromyalgia.” See https://pubmed.ncbi.nlm. nih.gov/8860801/ (last visited Jan. 23, 2023).
Later that month, on May 26, 2017, Dr. Boinapally saw Valentin “for follow up of her fibromyalgia in her low back pain and nausea and insomnia.” (Tr. 741.) Dr. Boinapally noted that Valentin appeared to be in “no distress,” but she again showed “[t]enderness all over the back to light touch.” (Tr. 745.)
In response to Valentin's complaints of diffuse pain, she was referred to the Hershey rheumatology clinic. Beginning in June 2017, Valentin was evaluated and treated at the clinic by rheumatologist Sowmya L. Surapaneni, M.D., and John K. Kearns, a certified physician assistant (PA-C). (See Tr. 1133.) During Valentin's initial evaluation and examination, she reported abdominal pain that had started in 2015 and more diffuse pain that had begun more recently. (Id.) Among other things, she described “burning pain” in her arms and legs, as well as pain in her neck, hip girdle, and hands. (Id.) To relieve her symptoms, she had unsuccessfully tried several medications, including Cymbalta (prescribed by the pain clinic). (Id.)
On examination, Valentin's gait was “[n]ormal,” and her muscle bulk was normal with no atrophy. (Tr. 1135.) But she showed diffuse lumbar and SI joint tenderness. (Id.) Examination of her soft tissue revealed “16/18 FM [fibromyalgia] tender points.” (Id.)
As one method of diagnosing fibromyalgia, doctors “check 18 specific points on a person's body to see how many of them were painful when pressed firmly.” See https://www.mayoclinic.org/diseases-conditions/fibromyalgia/diagnosis-treat ment/drc-20354785 (last visited Feb. 3, 2023); see also https://www.webmd.com/ fibromyalgia/guide/fibromyalgia-tender-points-trigger-points (“Tender points are areas of pain around joints, but not in the joints themselves. These places hurt when you press on them.”) (last visited February 3, 2023). “The 18 tender points associated with fibromyalgia occur in symmetrical pairs from the back of your head to your inner knees.” https://www.mayoclinic.org/tender-points/img-20007586 (diagramming the 18 tender point locations) (last visited Feb. 3, 2023).
Dr. Surapaneni's initial assessment included “[c]hronic pain with hypersensitivity, likely fibromyalgia.” (Tr. 1136; emphasis added.) The plan going forward was to do extensive testing, including a “full serologic investigation” and x-rays of “areas of pain” (back, pelvis, hands, and feet). (Id.) Valentin was also started on a new medication (prednisone) to see if that would help. (Tr. 1137.)
Valentin returned to the rheumatology clinic about a month later, on July 25, 2017. She again complained of diffuse pain, with the worst in her low back. (Tr. 1110-11.) A review of the x-rays taken since her last visit revealed “[n]o findings of inflammatory arthropathy involving the bilateral hand, lumbar spine or pelvis.” (Tr. 1116.) In other words, they were “completely normal.” (Tr. 1102.) On examination, Valentin's gait was again normal. (Tr. 1112.) She also again showed diffuse tenderness in her back and hips and had “16/18 FM tender points.” (Id.) Dr. Surapaneni and PA-C Kearns noted that there was a “[s]trong suggestion of fibromyalgia on examination.” (Tr. 1116; emphasis added.)
On October 2, 2017, a state agency medical consultant, Candelaria Legaspi, M.D., assessed Valentin's physical residual functional capacity (RFC) based on her medical records, including treatment notes from the rheumatology clinic. (See Tr. 145-49.) Among other things, Dr. Legaspi noted Dr. Surapaneni's examination finding that Valentin “had diffuse lumbar and SI joint tenderness with 16/18 fibromyalgia tender points.” (Tr. 149.) Dr. Legaspi also noted that Valentin's fibromyalgia was her primary impairment and found that it was “severe.” (Tr. 145.) But Dr. Legaspi concluded that Valentin's statements about the extent of her symptoms were “not consistent with the objective evidence in file.” (Tr. 149.) Dr. Legaspi found that Valentin could lift and carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk six hours during an eight-hour workday; and sit six hours during a workday. (Tr. 148.)
About three months after Dr. Legaspi's assessment, in January 2018, Valentin again visited the rheumatology clinic and reported the same symptoms of diffuse pain. (Tr. 1102-05.) Her physical examination was essentially normal, although she had tenderness in her back and pelvis. (Tr. 1103.) Also, she once again showed “16/18 FM tender points.” (Tr. 1103.) This time Dr. Surapaneni and PA-C Kearns concluded that Valentin “definitely has [a] fibromyalgia component” to her pain. (Tr. 1103; emphasis added.)
Several months later, on May 4, 2018, Dr. Surapaneni examined Valentin and reported her findings in a letter to Valentin's general practitioner, Dr. Boinapally. (Tr. 1122-24.) Valentin continued to report “ongoing significant pain all over her body.” (Tr. 1123.) During the examination, Valentin appeared to be well and “in no apparent distress.” (Tr. 1123.) She had a good range of motion. (Id.) Recent MRI studies of her back and sacroiliac (SI) joints resulted in no more than “mild” or “minimal” findings. (Id.) However, she “was diffusely tender all over including her spine.” (Id.)
Dr. Surapaneni concluded that Valentin “definitely seems to have a huge component of fibromyalgia.” (Id.; emphasis added.) He noted that various medications had been tried but none had helped. (Id.) Dr. Surapaneni's plan was to conduct additional testing to “rule out” various causes of her pain, including (among other things) doing an electromyography (EMG) and rechecking her “blood work.”(Id.)
“Electromyography (EMG) is a diagnostic procedure to assess the health of muscles and the nerve cells that control them (motor neurons). EMG results can reveal nerve dysfunction, muscle dysfunction or problems with nerve-to-muscle signal transmission.” https://www.mayoclinic.org/tests-procedures/emg/about/pac-20393913 (last visited February 5, 2023).
Two weeks later, on May 18, 2018, Dr. Surapaneni completed a “Fibromyalgia Medical Source Statement.” (Tr. 899-903.) She found that Valentin met the “1990 American College of Rheumatology Criteria for the Classification of Fibromyalgia.” (Tr. 899.) Dr. Surapaneni also noted multiple fibromyalgia symptoms Valentin experiences, including a “History of widespread pain > 3 months”; “11 of 18 specific tender points”; “Cognitive dysfunction (‘fibro fog')”; “Muscle pain”; and “Fatigue”. (Id.) The doctor also circled Valentin's tender points on a chart, which included all 18 tender point sites. (Tr. 901.) Valentin's prognosis was “poor/fair.” (Tr. 901.)
Dr. Surapaneni opined that Valentin lacks the stamina to work even an “easy” eight-hour day. (Id.) She would need a job that permitted her to shift positions at will from sitting, standing, or walking, and she would need to get up and walk every 30 minutes. (Tr. 902.) In addition to normal breaks, she would need to take other unscheduled breaks four to five times a day. (Id.) Dr. Surapaneni found that Valentin is incapable of even low stress jobs and that her impairment would cause her to miss work more than four days a month. (Tr. 903.)
About four months later, on September 14, 2018, Dr. Surapaneni sent Dr. Boinapally another letter regarding Valentin's “ongoing pain coming from fibromyalgia and osteoarthritis.” (Tr. 1143.) Dr. Surapaneni reported that Valentin “continues to have ongoing pain.” (Id.) She was taking Lyrica and Cymbalta for the pain. Lyrica was “helping,” but Cymbalta was causing “significant stomach pain.” (Id.) Dr. Surapaneni noted that Valentine “[a]ppears well, in no significant distress.” (Tr. 1144.) However, the doctor's exam showed “[f]ibromyalgia points 18/18 are positive with diffuse tenderness all over.” (Tr. 1144.)
Dr. Surapaneni's “impression” included the following: “At this point, her symptoms definitely seem to be coming from a combination of osteoarthritis, possibly affecting the lumbar spine, along with ongoing fibromyalgia.” (Id.; emphasis added.) Valentin's “inflammatory markers have always been on the higher end of normal,” but Dr. Surapaneni was “not sure what this could be coming from.” (Id.) The plan was to “keep a close eye” on those markers, continue Valentin on Lyrica, ween her off Cymbalta, try amitriptyline, and perform various additional tests (including an EMG of her left leg). (Id.)
D. The Evidentiary Hearing
The hearing was held January 24, 2019. (Tr. 56-105.) Two witnesses testified: Valentin and a vocational expert, Sheryl Bustin. Valentin was represented by counsel.
Before Valentin began her testimony, the ALJ noted that although Valentin alleged many conditions that prevented her from working, some of those were “symptoms rather than actual medical impairments.” (Tr. 59-60.) The ALJ asked Valentin's counsel “what specifically do you allege are the severe medically determinable impairments?” (Tr. 60.) Counsel responded that “fibromyalgia is the first one.” (Id.) Counsel explained that Valentin's doctor attributed her neck pain and various other symptoms “to the fibromyalgia.” (Tr. 60-61.) The other severe impairments counsel identified were mental impairments, specifically depression and anxiety. (Tr. 60.)
As with Valentin's medical records, this summary of the hearing testimony will focus on her alleged fibromyalgia.
Valentin was 37 years old at the time of the hearing. (Tr. 63.) She explained that her condition had changed over the previous two years in that she had been diagnosed with fibromyalgia and referred to the rheumatology clinic. (Tr. 64-65, 70.) Valentin described the constant, intense pain she experiences in her abdomen, back, and other areas. (Tr. 65-66, 68.) The pain is worse with activity, and the medicine she has tried does not help. (Tr. 67.) She received injections at the pain clinic and went to physical therapy, but “nothing [was] working.” (Tr. 69.)
Plaintiff's full name is Marie Valentin Roldan, and she goes by the surname Valentin. (Tr. 58.)
The ALJ asked Valentin what had changed since her prior disability application was denied in March 2017. (Tr. 64.) As noted earlier, Valentin's prior application is not otherwise relevant to her appeal in this case. See supra n. 4.
Valentin testified that her daily activities are very limited. After waking up in the morning, one of her sons helps her go down the stairs in their home. (Tr. 70.) She then lies on the sofa and watches TV. (Tr. 83.) Her son or daughter makes food for her, although Valentin sometimes makes herself a sandwich. (Tr. Tr. 83-84.) She does no housework, other than separating and hanging the laundry. (Tr. 84.)
Valentin explained she can no longer do her past work soldering small parts due to her pain and inability to sit for more than about 15 minutes. (Tr. 72-74.) When riding in a car, she must stop and get out after about 20 minutes. (Tr. 75.) Valentin also has problems standing and walking. She can stand or walk only about five minutes before needing to sit down. (Tr. 75-76.) She can lift or carry no more than about five pounds. (Tr. 76.)
The vocational expert, Sheryl Bustin, testified that Valentin's past work generally involved unskilled jobs at a light exertion level. (See Tr. 93-95.) The ALJ asked Bustin several hypothetical questions, including whether the claimant would be able to perform any of her past work assuming she could lift a maximum of ten pounds and frequently lift less than ten pounds, with the ability to alternate between sitting and standing, and assuming various postural and mental restrictions. (See Tr. 97-98.) Bustin responded that Valentin would be unable to perform any of her prior work but that she would be able to do other jobs, including: “Bakery Worker Conveyer Line” (with 230,000 jobs available nationally); “Small Parts Assembler” (with 100,000 jobs nationally); and “Cashiers” such as “Movie Theater Cashiers” and “Parking Garage Cashiers” (with 100,000 jobs nationally). (Tr. 97-100.) Bustin also testified that if the claimant was off task more than 25 percent of a workday or if she were absent more than four days a month, no work would be available. (Tr. 97.)
E. The ALJ's Decision
The ALJ issued her decision on May 14, 2019. (Tr. 39-50.) In deciding Valentin's DIB and SSI claims, the ALJ applied the five-step method for evaluating disability claims. See 20 C.F.R. §§ 404.1520, 416.920.
The five-step disability analysis will be explained further in the Standard of Review section of this report, infra Part II.A.
The ALJ first found (at step one) that Valentin had not engaged in substantial gainful activity since the alleged onset date, March 30, 2017. (Tr. 41.) In considering the severity of Valentin's impairments (step two), the ALJ determined that she had the following “severe” medical impairments: “myofascial pain syndrome, depressive disorder, and anxiety disorder.” (Tr. 42.) The ALJ found that numerous conditions alleged by Valentin were non-severe and that her “fibromyalgia cannot be medically determined. (Tr. 42.)
The ALJ next determined (at step three) that Valentin's impairments did not meet or medically equal, either singly or collectively, one of the listed impairments in the regulations. (Tr. 42-44.) In reaching this conclusion, the ALJ discussed listings addressing Valentin's various conditions. (Id.)
Before proceeding to the next step in the disability analysis, the ALJ assessed Valentin's residual functional capacity (RFC) to do physical and mental work activities. The ALJ made the following RFC finding:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(h) and 416.967(b) except the claimant could lift no more than 10 pounds occasionally. She could lift less than 10 pounds frequently, but would need to be able to alternate between sitting and standing. She could perform occasional reaching overhead, crouching, kneeling, and stooping, but must avoid climbing ladders, ropes, and scaffolds. She is limited to routine short cycle tasks with few changes and occasional decision making. The claimant could perform jobs that do not require adherence to precise limits, tolerances, standards or directing employment activities of other[s], influencing people's opinions, attitudes, and judgements. She could not perform production or pace work. The claimant could have occasional interaction with supervisors and co-workers.(Tr. 44.)
In making this finding, the ALJ “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p.” (Id.) As part of that assessment, the ALJ summarized Valentin's testimony, statements, and medical records. (Tr. 44-47.)
In reviewing the evidence, the ALJ also described and assessed the medical opinions, including Dr. Surapaneni's “Fibromyalgia Medical Source Statement.” (Tr. 47-48.) The ALJ noted Dr. Surapaneni's opinion that Valentin lacked the stamina to work an easy job eight hours a day. The ALJ found this opinion not persuasive because it was unsupported by “signs, lab findings, objective findings, and conservative treatment rendered.” (Tr. 47.)
The ALJ also addressed the opinion of the “State agency medical consultants,” presumably referring to Dr. Legaspi's physical RFC assessment. The ALJ found the medical consultant's opinion that Valentin could do medium exertion work was “generally consistent” with the medical evidence, but the ALJ limited Valentin to light work after considering her “subjective complaints.” (Tr. 48.)
The ALJ refers to the “State agency medical consultants” opinion “[i]nitially and on consideration.” (Tr. 48; emphasis added.) It is unclear what the ALJ meant by this since only one medical consultant, Dr. Legaspi, rendered an opinion regarding Valentin's applications at issue here, and there was no reconsideration assessment. (See Tr. 125-54.)
The ALJ also addressed several opinions regarding Valentin's mental RFC. (See Tr. 47-48.) Those assessments need not be discussed, given the recommendation in this report.
Next, the ALJ found (at step four) that Valentin “is unable to perform any past relevant work.” (Tr. 48-49.) In considering whether Valentin could perform any type of work (step five), the ALJ relied on the testimony of the vocational expert to find that Valentin could perform jobs that exist in significant numbers in the national economy. (Tr. 49-50.) From this, the ALJ concluded that Valentin is not disabled.
F. Request for Judicial Review
As noted earlier, Plaintiff sought administrative review of the ALJ's decision. After the Appeals Council denied that request, Plaintiff filed the instant action seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). (Doc. 1.) The issues raised by Plaintiff have been briefed by the parties and will be analyzed in light of the applicable standard of review. (Doc. 22, 27, 28.)
II. ANALYSIS
A. Standard of Review
To qualify for benefits under the Social Security Act (the “Act”), Plaintiff bears the burden of proving she is disabled. 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require.”); see also Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (noting the claimant's “burden to produce evidence supporting her disability claim”). The Act defines disability as the “inability 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 twelve months.” 42 U.S.C. § 423(d)(1)(A).
To determine whether a claimant is disabled within the meaning of the Act, the Commissioner applies the following five-step inquiry:
(1) whether the claimant is currently working in substantial gainful employment;
(2) whether the claimant suffers from a severe impairment;
(3) whether the claimant's severe impairment is sufficient under the pertinent regulations (“listings”) to support a finding of disability;
(4) whether the claimant is capable of returning to his or her past relevant work; and, if not,
(5) whether the impairment prevents the claimant from doing any other work.See 20 C.F.R. §§ 404.1520, 416.920.
At steps one through four, the burden of proof is on the claimant to show that she is disabled. Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). If the claimant satisfies this responsibility, the burden then shifts to the Commissioner at step five of the process to show that there is other gainful employment the claimant can perform despite her existing impairments. Id.
In this case, the ALJ applied the five-step evaluation process and found at step five that Valentin was not disabled because she could perform jobs existing in significant numbers in the national economy. The key issue raised by Valentin challenges the ALJ's step two analysis regarding her fibromyalgia.
A federal court's review of the Commissioner's decision is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence. See Chandler, 667 F.3d at 359. As the Supreme Court has emphasized, substantial evidence review is deferential:
Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). In applying this standard, “[c]ourts are not permitted to re-weigh the evidence or impose their own factual determinations.” Chandler, 667 F.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Although the substantial evidence standard is deferential, this does not mean a court may accept unsupported or unexplained findings. For meaningful judicial review to occur, the Third Circuit “requires an ALJ to set forth the reasons for his decision.” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000) (citing Cotter v. Harris, 642 F.2d 700, 704-06 (3d Cir. 1981)). The “ALJ must consider all evidence before him” and “must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence.” Burnett, 220 F.3d at 12122 (citing Plummer v. Apfel, 186 F.3d 422, (3d Cir. 1999) and Cotter, 642 F.2d at 705) (holding that the ALJ erred in failing to mention and explain contradictory medical and non-medical evidence).
B. Issues
Plaintiff Valentin raises the following issues on appeal:
I. The Plaintiff asserts that there was not substantial evidence supporting the Administrative Law Judge's finding that fibromyalgia was not a severe impairment.
II. The Plaintiff asserts that there was not substantial evidence supporting the Administrative Law Judge's findings on the Plaintiff's mental limitations.
III. The Plaintiff asserts that the Administrative Law Judge erred in failing to find any limitation in maintaining concentration, persistence and pace and in adapting or managing herself despite finding the opinion of the state agency psychologist to be consistent with the evidence in that regard.
IV. The Plaintiff asserts that the Administrative Law Judge erred in finding her statements not consistent with the evidence.(Doc. 22 at 20.) The Commissioner fully briefed these issues in arguing that the ALJ's decision should be affirmed. (Doc. 27.) For the reasons that follow,
Plaintiff's first issue is dispositive.
C. Step Two: The ALJ's Assessment of Plaintiff's Fibromyalgia
As described earlier in summarizing the hearing, the ALJ asked Valentin's counsel to state Plaintiff's alleged severe medically determinable impairments. (Tr. 60.) Counsel identified fibromyalgia as the “first one,” followed by her mental impairments. (Id.) Plaintiff contends that the ALJ “failed to apply SSR 12-2p” and erred in “finding that the Plaintiff had no medically determinable impairment of fibromyalgia.” (Doc. 22 at 21-22.) The Commissioner argues that substantial evidence supports the ALJ's finding that Plaintiff's fibromyalgia was not a medically determinable impairment. (Doc. 27 at 27-30.) The Commissioner further argues that any error at step two was harmless. (Id. at 30-33.)
In fact, counsel did not suggest any other severe physical impairments, instead attributing her various physical problems to her fibromyalgia. (See Tr. 6062.)
Step two of the disability analysis addresses whether the claimant has a “severe medically determinable impairment.” See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Deciding that question involves two separate inquiries: “an ALJ is required to determine (1) whether an impairment is medically determinable, and if so (2) whether that medically determinable impairment is severe or non-severe.” Robert E. v. Comm'r of Soc. Sec., No. 1:20-CV-06882-NLH, 2021 WL 5277193, at *6 (D.N.J. Nov. 12, 2021); see 20 C.F.R §§ 404.1521, 404.1522, 416.921, 416.922.
As to the first prong of the step two inquiry, the Commissioner's regulations describe how an ALJ determines whether a claimant has a medically determinable impairment:
If you are not doing substantial gainful activity, we will then determine whether you have a medically determinable physical or mental impairment(s) (see § 404.1520(a)(4)(ii)). Your impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source.20 C.F.R. §§ 404.1521, 416.921. As the regulation makes clear, a medically determinable impairment must be shown by “objective medical evidence.” Id.; see also Scipio v. Comm'r of Soc. Sec., 611 Fed.Appx. 99, 101-02 (3d Cir. 2015) (affirming ALJ's finding that there was no medically determinable impairment where, “although the record is replete with [claimant's] subjective complaints that she experienced strokes, there is simply no clinical or objective evidence to support her claims”). In Social Security Ruling (SSR) 96-4p, the Commissioner confirmed that “the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings.” SSR 96-4p, 1996 WL 374187 at *1 (July 2, 1996).
Determining whether a claimant's alleged fibromyalgia is a medically determinable impairment presents a special challenge. Fibromyalgia is “a disorder of unknown cause that is characterized by musculoskeletal pain and issues with fatigue, sleep, memory, and mood.” Wilson v. Comm'r of Soc. Sec., 783 Fed.Appx. 489, 491 (6th Cir. 2019). “What is unusual about the disease is that those suffering from it have ‘muscle strength, sensory functions, and reflexes [that] are normal.'” Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) (citations omitted). Thus, for fibromyalgia patients, “physical examinations will usually yield normal results-a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions.” Green-Younger v. Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003) (citation omitted).
All this makes fibromyalgia “an elusive diagnosis; ‘[i]ts cause or causes are unknown, there's no cure, and, of greatest importance to disability law, its symptoms are entirely subjective.'” Tilley v. Astrue, 580 F.3d 675, 681 (8th Cir. 2009) (quoting Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)). As a result, “[t]he condition is diagnosed ‘entirely on the basis of the patients' reports of pain and other symptoms.'” Revels, 874 F.3d at 656 (quoting Benecke v. Barnhart, 379 F.3d 587 (9th Cir. 2004)). “[T]here are no objective tests which can conclusively confirm the disease.” Green-Younger, 335 F.3d at 108 (citations omitted).
Recognizing the difficulties in assessing disability claims based on fibromyalgia, the Commissioner issued SSR 12-2p to provide “guidance on how we develop evidence to establish that a person has a medically determinable impairment (MDI) of fibromyalgia (FM), and how we evaluate FM in disability claims and continuing disability reviews under titles II and XVI of the Social Security Act.” SSR 12-2p, 2012 WL 3104869, at *1 (July 25, 2012). The ruling describes fibromyalgia as “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. at *2. SSR 12-2p confirms both that fibromyalgia is a medically determinable impairment “when it is established by appropriate medical evidence” and that it “can be the basis for a finding of disability.” Id. at *2.
“There used to be considerable skepticism that fibromyalgia was a real disease.” Kennedy v. Lilly Extended Disability Plan, 856 F.3d 1136, 1137 (7th Cir. 2017). Consistent with that skepticism, some courts “were reluctant to recognize fibromyalgia as an impairment that could render one disabled for Social Security purposes.” Revels, 874 F.3d at 656 (quoting Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)). However, “[a] sea-change occurred in 2012, when the SSA issued [SSR 12-2p] recognizing fibromyalgia as a valid ‘basis for a finding of disability.'” Revels, 874 F.3d at 656 (quoting SSR 12-2p, 2012 WL 3104869, at *2).
To establish a medically determinable impairment of fibromyalgia under SSR 12-2p, a physician must diagnose fibromyalgia and there must be evidence that meets either the 1990 or 2010 American College of Rheumatology (ACR) criteria. Id. at *2. The 1990 ACR criteria requires:
(1) “a history of widespread pain”;
(2) “[a]t least 11 [out of a possible 18] positive tender points on physical examination”; and
(3) “[e]vidence that other disorders that could cause the symptoms or signs were excluded.”See id. at *2-3.
The 2010 ACR criteria similarly requires:
(1) “a history of widespread pain”;
(2) “[r]epeated manifestations of six or more FM symptoms, signs, or cooccurring conditions, especially manifestations of fatigue, cognitive or memory problems (‘fibro fog'), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome”; and
(3) “evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded.”Id. at *3. In addition to meeting either the 1990 or 2010 ACR criteria, the fibromyalgia diagnosis must not be “inconsistent with the other evidence in the person's case record.” Id.
Here, the ALJ neither cited nor applied SSR 12-2p in determining whether Valentin's fibromyalgia is a medically determinable impairment. Instead, the ALJ's analyzed that issue as follows:
The undersigned has considered the claimant's allegations regarding asthma and fibromyalgia and finds that these are not medically determinable impairments because the objective medical evidence fails to establish any acceptable clinical or laboratory diagnostic techniques that would result in such diagnoses. Social Security Ruling 96-4p states that “no symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment.” Therefore, in the absence of laboratory or clinical findings or medical observations validating symptoms, the existence or asthma and fibromyalgia cannot be medically determined.(Tr. 42.)
The ALJ erred by applying the wrong legal standard in determining whether Valentin's fibromyalgia is a medically determinable impairment. Although the ALJ cited the general rule described in SSR 96-4p, she apparently ignored the specific standard that applies to fibromyalgia, as explained in SSR 12-2p.
The ALJ's failure to mention SSR 12-2p cannot be attributed to any failure by Valentin or her counsel. Valentin's pre-hearing brief emphasized that “[h]er fibromyalgia symptoms meet the requirements of SSR 12-2p.” (Tr. 342.)
The ALJ essentially nullifies SSR 12-2p by emphasizing the absence of “objective medical evidence” establishing the fibromyalgia diagnosis by “any acceptable clinical or laboratory diagnostic techniques.” (Tr. 42.) That analysis overlooks evidence that SSR 12-2p recognizes as sufficient to establish a medically determinable impairment. See SSR 12-2p, 2012 WL 3104869, at *3 n.8 (explaining that the Commissioner adopted the ACR criteria “because the Act and our regulations require a claimant for disability benefits to establish by objective medical evidence that he or she has a medically determinable impairment.”).
As relevant here, the 1990 ACR criteria specifies that a diagnosis of fibromyalgia is supported by (among other things) an examination finding that a claimant has “[a]t least 11 [of 18] tender points.” 2012 WL 3104869, at *3. As other courts have recognized, fibromyalgia is a “disease whose ‘symptoms are entirely subjective,' with the exception of trigger-point evidence.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 96 (4th Cir. 2020) (quoting Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)).
See also Johnson v. Astrue, 597 F.3d 409, 412 (1st Cir. 2009) (stating that “trigger points are the only ‘objective' signs of fibromyalgia”); Brosnahan v. Barnhart, 336 F.3d 671, 678 (8th Cir. 2003) (recognizing “trigger-point findings” as “objective medical evidence of fibromyalgia”).
Here, the tender-point evidence supported a finding that Valentin's fibromyalgia is a medically determinable impairment. Valentin's rheumatology specialists, Dr. Surapaneni and PA-C Kearns, performed multiple tender point examinations over the course of more than a year. Each time Valentin exhibited at least 16 of 18 positive tender points:
As reflected by the rulings in Arakas and some other cases, courts and medical providers sometimes use the terms “tender point” and “trigger point” interchangeably, although technically they refer to different conditions. See “Trigger points and tender points: one and the same?” https://pubmed.ncbi. nlm.nih.gov/8860801/ (last visited Feb. 16, 2023) (explaining that “[w]hen tender points occur in a widespread manner, they are usually considered characteristic of fibromyalgia,” while “[t]rigger points, which typically occur in a more restricted regional pattern, are indicative of myofascial pain syndrome”). In any event, whether called “tender-point findings” or “trigger-point findings,” it does not alter the analysis in this case.
• June 2017: “16/18 FM tender points” (Tr. 1135);
• July 2017: “16/18 FM tender points” (Tr. 1112);
• Jan. 2018: “16/18 FM tender points” (Tr. 1103);
• May 2018: chart showing 18 of 18 positive tender points (Tr. 901); and
• Sept. 2018: “Fibromyalgia points 18/18 are positive” (Tr. 1144).(See also Tr. 1103 (“18/18 FM tender points noted”).)
But the ALJ did not mention the tender point evidence in her decision. This suggests that-contrary to the guidance of SSR 12-2p-the ALJ did not believe the tender point findings supported a diagnosis of fibromyalgia. This was error. See Johnson v. Astrue, 597 F.3d 409, 412 (1st Cir. 2009) (“[S]ince trigger points are the only ‘objective' signs of fibromyalgia, the ALJ ‘effectively [was] requiring objective evidence beyond the clinical findings necessary for a diagnosis of fibromyalgia under established medical guidelines,' and this, we think, was error.”) (quoting Green-Younger, 335 F.3d 106-07).
See also Keener v. Saul, No. 5:19CV121-GCM, 2020 WL 1876060, at *2 (W.D. N.C. Apr. 15, 2020) (ordering remand where the “ALJ did not conduct the evaluation set forth in SSR 12-2p, nor did he even recognize the requirements of SSR 12-2p, but instead the ALJ improperly relied upon an alleged lack of reported objective medical findings”).
In concluding that Valentin's alleged fibromyalgia was not medically determinable, the ALJ also ignored two contrary medical opinions. First, the state agency medical consultant, Dr. Legaspi, found that Valentin's fibromyalgia was a “severe” impairment. (Tr. 145.) This necessarily means that Dr. Legaspi found Valentine's fibromyalgia to be medically determinable since such a finding is a precondition to finding it severe. See 20 C.F.R. §§ 404.1521, 416.921 (“After we establish that you have a medically determinable impairment(s), then we determine whether your impairment(s) is severe.”). The ALJ was required to consider Dr. Legaspi's finding, but there is no indication she did so as to this issue. See 20 C.F.R. §§ 404.1513a(b)(1), 416.913a(b)(1) (ALJs must consider administrative medical findings “because our Federal or State agency medical or psychological consultants are highly qualified and experts in Social Security disability evaluation”).
As part of Dr. Legaspi's review of the medical evidence, she noted that Valentin “had diffuse lumbar and SI joint tenderness with 16/18 fibromyalgia tender points.” (Tr. 149.)
Second, the ALJ gave no indication she considered Dr. Surapaneni's opinion in deciding whether Valentin's fibromyalgia is medically determinable. In completing a “Fibromyalgia Medical Source Statement,” Dr. Surapaneni opined that Valentin's condition met “the 1990 American College of Rheumatology Criteria for the Classification of Fibromyalgia (which includes tender point criteria).” (Tr. 899.) The ALJ did not address Dr. Surapaneni's conclusion that Valentin met the 1990 ACR criteria, and there is no contrary medical opinion on that issue.
In summarizing the evidence, the ALJ mentions that Dr. Surapaneni “provided a Fibromyalgia Medical Source Statement,” but the ALJ does not describe or discuss the doctor's findings regarding Valentin's fibromyalgia. (See Tr. 47.)
In sum, the ALJ failed to apply SSR 12-2p, failed to address the tender point evidence, and failed to address two medical opinions relevant to the step two issue.
The Commissioner nevertheless argues that remand is not warranted for two main reasons: 1) “substantial evidence supports the ALJ's finding that Plaintiff's fibromyalgia was not a medically determinable impairment”; and 2) any error at step two was harmless because the ALJ found that Valentin had other severe impairments and continued the disability analysis beyond step two. (See Doc. 27 at 27-33.) Neither argument has merit under the circumstances here.
1. Applying SSR 12-2p
The Commissioner contends there is substantial evidence to support the conclusion that Valentin's fibromyalgia did not meet the requirements for a medically determinably impairment under SSR 12-2p. (Id. at 27-30.) This is so, according to the Commissioner, because Valentin's treating rheumatologist, Dr. Surapaneni, and other medical providers “generally assessed only tentative diagnoses of fibromyalgia.” (Id. at 29; emphasis in original; citations omitted.) The Commissioner also argues that “it is not clear that evidence of other disorders were excluded,” as required by both the 1990 and 2010 ACR criteria. (Id. at 29-30.) Thus, the Commissioner reasons, “Plaintiff failed to meet her burden to prove that fibromyalgia was a medically determinable impairment.” (Id. at 30.)
The exclusion requirement is the third criteria for both the 1990 and 2010 ACR diagnostic criteria. See SSR 12-2p, 2012 WL 3104869, at *3.
There are two problems with the Commissioner's argument. First-and perhaps most importantly-nothing in the ALJ's decision can be construed to analyze Valentin's fibromyalgia in a way that is comparable to the requirements of SSR 12-2p. A court's “review of the ALJ's decision is limited to the ALJ's stated analysis.” Karstetter v. Kijakazi, No. 1:20-CV-01603, 2022 WL 16855565, at *8 (M.D. Pa. Nov. 10, 2022) (citations omitted). The Commissioner's attempt to supply the missing analysis is inconsistent with the applicable standard of review. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”); Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (noting that the district court “attempted to rectify” the ALJ's error “by relying on medical records found in its own independent analysis,” which “runs counter to the teaching of SEC v. Chenery”).
See also Thomas v. Colvin, 826 F.3d 953, 959 (7th Cir. 2016) (holding that the ALJ's failure to discuss the 2010 ACR fibromyalgia criteria was not harmless and explaining that the Commissioner's “conjecture that the ALJ would have reached the same conclusion had [the ALJ] explicitly addressed the alternative set of criteria invokes an overly broad conception of harmless error of the type we have criticized previously”) (citing Roddy v. Astrue, 705 F.3d 631, 637 (7th Cir. 2013), and Chenery Corp., 318 U.S. at 87-88).
Second, the Commissioner is mistaken in suggesting the evidence in the record does not support a finding that Valentin's fibromyalgia meets the requirements for a medically determinably impairment under SSR 12-2p. To begin with, the record reflects that Valentin was diagnosed with fibromyalgia. As described earlier, see supra Part II.B., Valentin's general practitioner, pain management specialists, and rheumatologist all indicated she suffers from fibromyalgia. Contrary to the Commissioner's suggestion that their diagnosis was “only tentative,” Dr. Boinapally's May 2017 assessment of Valentin's medical condition included “fibromyalgia.” (Tr. 741; see also Tr. 949 (Nov. 10, 2017, “fibromyalgia” assessment).)
It is true that after Valentin's first examination at the rheumatology clinic, Dr. Surapaneni's assessment was that Valentin's chronic pain was “likely fibromyalgia.” (Tr. 1136.) But after further examination and testing, Dr. Surapaneni concluded that Valentin “definitely seems to have a huge component of fibromyalgia.” (Tr. 1123; see also Tr. 1103 (finding that Valentin's chronic pain “definitely has [a] fibromyalgia component”).) Consistent with that diagnosis, Dr. Surapaneni's written opinion concluded that Valentin met the 1990 ACR criteria for fibromyalgia. (Tr. 899.)
In addition, as noted above, the state agency medical consultant, Dr. Legaspi, found that Valentin's fibromyalgia was a severe impairment. (Tr. 145.) Dr. Legaspi's finding further contradicts the Commissioner's argument that Valentin's fibromyalgia diagnosis was insufficiently “definitive” to satisfy SSR 12-2p. (Doc. 27 at 29.)
Similarly, there is little to commend the Commissioner's suggestion that Valentin's fibromyalgia does not meet the ACR requirement that “evidence of other disorders were excluded.” (Doc. 27 at 29-30.) Valentin's medical records show that she underwent numerous medical tests to identify the source (or sources) of her reported diffuse pain. For example, medical providers at the Hershey pain clinic noted that her “chart reveals numerous diagnostic tests,” but “no definitive etiology of her pain was isolated.” (Tr. 670.) Based on Valentin's medical records, the pain clinic concluded that her “diffuse pain is most likely fibromyalgia.” (Tr. 672.)
Dr. Surapaneni's treatment records and reports noted various types of medical testing that she reviewed and/or recommended to determine the source of Valentin's pain, including x-rays, MRIs, EMGs, and “blood work.” (See Tr. 1123, 1136.) For example, Dr. Surapaneni observed that multiple x-rays had been taken, which were “completely normal.” (Tr. 1102.) The absence of other identifiable sources of Valentin's pain presumably contributed to Dr. Surapaneni's opinion that her fibromyalgia met the 1990 ACR criteria. (Tr. 899.) As Dr. Surapaneni is no doubt well aware, the third 1990 ACR criterion is “[e]vidence that other disorders that could cause the symptoms or signs were excluded.” See SSR 12-2p, 2012 WL 3104869, at *3.
In completing the fibromyalgia assessment form, Dr. Surapaneni was also asked specifically about the third ACR criterion. (Tr. 900.) But she did not respond (by checking either yes or no) to the question asking whether other disorders that could have caused Valentin's symptoms were excluded. (Id.) It is unclear why Dr. Surapaneni did not respond to this question after indicating that Valentin's condition met all the 1990 ACR criteria. To the extent Dr. Surapaneni's questionnaire responses were ambiguous as to the third ACR criterion, the ALJ could have requested clarification. See 20 C.F.R. §§ 404.1520b(b)(2)(i), 416.920b(b)(2)(i) (providing that if evidence is insufficient or inconsistent, the ALJ may recontact the claimant's medical source). But there is no indication the ALJ considered the ACR criteria as required by SSR 12-2p.
In addition, Dr. Legaspi's implicit finding that Valentin's fibromyalgia was a medically determinable impairment suggests she found that other causes of Valentin's symptoms had been excluded. Such an assumption is warranted since State agency consultants are presumed to be experts in social security disability assessment. See 20 C.F.R. §§ 404.1513a(b)(1), 416.913a(b)(1) (stating that “State agency medical or psychological consultants are highly qualified and experts in Social Security disability evaluation”).
As can be seen, Valentin's medical records and the assessments of Dr. Surapaneni and Dr. Legaspi would have provided an ample basis for the ALJ to have found that other possible causes of Valentin's symptoms were excluded. If the ALJ did not think so, she should have said so and explained why. Unfortunately, she did not address the ACR criteria at all, and the Commissioner's attempt to fill that void lacks merit.
2. Harmless Error Analysis
In the alternative, the Commissioner argues that any error at step two regarding Valentin's fibromyalgia was harmless for essentially two reasons. (Doc. 27 at 30-33.) First, the Commissioner contends that “where, as here, an ALJ finds at step two that a claimant has even one severe impairment, any alleged ‘failure' to identify any other alleged conditions as being severe impairments does not compromise the integrity of the step two analysis.” (Doc. 27 at 30 (citing Salles v. Comm'r of Soc. Sec., 229 Fed.Appx. 140, 145 n. 2 (3d Cir. 2007).)
While the Commissioner's argument reflects a correct statement of the law, it does not apple here. The cases cited by the Commissioner hold that where an ALJ finds an impairment is not severe, any error is harmless if the ALJ finds one or more other impairments severe and “if the functional limitations associated with the impairment are accounted for in the RFC.” Guzman v. Berryhill, No. 17-1222, 2018 WL 746385 at *7 (M.D. Pa. Feb. 7, 2018) (citing Salles, 229 Fed.Appx. at 145 n.2). The primary rationale for this rule is that under the Commissioner's regulations, an ALJ must consider “all medically determinable impairments” in assessing a claimant's RFC, including non-severe impairments. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2) (“We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe,' . . . when we assess your residual functional capacity.”).
However, the same rule does not apply where, as here, the ALJ has found an impairment not medically determinable. Unlike a non-severe impairment, a non- medically determinable impairment is not considered in assessing the claimant's RFC. See Godwin v. Kijakazi, No. 3:20-CV-02421, 2022 WL 992736, at *5 (M.D. Pa. Apr. 1, 2022) (explaining that “[b]ecause the ALJ is only required to consider medically determinable impairments, . . . the ALJ's failure to consider the plaintiff's alleged degenerative disc disease and arthritis conditions in later determining her RFC was not in error”) (citations omitted). “[N]umerous courts have concluded that when a step-two error stems from the ALJ's decision that an impairment is not medically determinable the harmless error doctrine is inapplicable.” See Ann S v. Kijakazi, No. 2:20-CV-00841-JCB, 2022 WL 204596, at *5 (D. Utah Jan. 24, 2022) (ordering remand where the ALJ's error “stemmed not from a step-two severity conclusion but from the ALJ's conclusion that Plaintiff's fibromyalgia was not a medically determinable impairment”) (footnote citing cases omitted). Here, the ALJ's error was not harmless because the ALJ had no need to consider fibromyalgia in assessing Valentin's RFC, and there is no indication she did so. See id. (holding that “by not finding that fibromyalgia was medically determinable, the ALJ foreclosed fibromyalgia's associated impairments from his later RFC analysis”).
See also Danita F. v. Comm'r of Soc. Sec., No. CV 20-13285, 2022 WL 1165724, at *9 (D.N.J. Apr. 20, 2022) (“[B]ecause the ALJ determined that Plaintiff's mental health impairments were non-medically determinable, the ALJ was not required to consider such impairments in the residual functional capacity analysis.”); Diciano v. Comm'r of Soc. Sec., 2019 WL 6696523, at *4 n.6 (D.N.J. 2019) (rejecting claimant's argument that the ALJ erred in failing to consider impairments of lupus and rheumatoid arthritis because “an ALJ does not have to consider an alleged impairment if he does not find such an impairment is medically determinable”) (citing 20 C.F.R. § 404.1529; POMS, DI 25205.005 20 C.F.R. § 404.1545(a)(2)).
This is not to suggest that the ALJ necessarily erred in concluding that Valentine's fibromyalgia is not medically determinable. Rather, the ALJ committed legal error in failing to apply the correct standard in making that determination. That error is not harmless because-given the evidence in the record (discussed above)- the ALJ may have reached a different conclusion at step two had she applied SSR 12-2p. Had the ALJ applied SSR 12-2p and determined that Valentine's fibromyalgia was not medically determinable, then the issue would have been whether that finding was supported by substantial evidence.
The Commissioner's second harmless error argument is that “as part of the RFC analysis, the ALJ considered Plaintiff's pain and other somatic complaints, as well as the examination findings, treatment records, diagnostic tests, medications and other treatments Plaintiff received (Tr. 43-48).” (Doc. 27 at 32.) The Commissioner reasons that “the ALJ specifically classified Plaintiff's myofascial pain syndrome as severe, thereby accounting for a severe impairment that captured Plaintiff's pain complaints, regardless of what it was called (Tr. 41-42).” (Doc. 27 at 30-31; citing Knight v. Saul, No. 2:17-cv-0131, 2019 WL 4307130 (D.S.C. July 30, 2019).)
It is puzzling why the ALJ found that Valentin's myofascial pain syndrome is a severe impairment while her fibromyalgia is not even medically determinable. Myofascial pain syndrome was not one of the 16 disabling conditions Valentin listed in her applications. (See Tr. 288 (Valentin's list of disabling conditions); see also Tr. 59-60 (ALJ hearing remarks listing alleged disabling conditions).) Nor did her attorney mention it when asked at the hearing to identify her severe impairments. (See Tr. 60-62.) In addition, compared to the many medical treatment records addressing Valentin's fibromyalgia, there are few medical records-and no opinion evidence-mentioning myofascial pain. As one academic medical center has explained, there are differences between myofascial pain and fibromyalgia:
Myofascial pain syndrome is a common debilitating disease of the muscles and associated soft tissues. Pain radiates from one or more trigger points stimulated by pressure, or by nothing at all. Although frequently confused with fibromyalgia, it is not the same syndrome. . . .
Myofascial pain and fibromyalgia pain feel similar. Both have trigger points that emit pain. However, while myofascial pain is contained in one specific area (or, if more than one area, those areas are typically on the same side of the body), fibromyalgia pain is felt throughout the entire body. A patient with fibromyalgia has more trigger points, general pain, worse fatigue and sleep issues, headaches, an irritable bowel, a sensation of swelling and sometimes a burning, prickling or tingling feeling. Some researchers believe that myofascial pain syndrome can transition into fibromyalgia.https://my.clevelandclinic.org/health/diseases/12054-myofascial-pain-syndrome (last visited February 7, 2023). Of course, Valentin was not prejudiced to the extent the ALJ erred in her favor by finding that myofascial pain syndrome was a severe medically determinable impairment. But the ALJ's error in assessing her fibromyalgia was not harmless for the reasons discussed above.
The Commissioner's argument lacks merit. Had the ALJ applied the correct standard at step two and found Valentin's fibromyalgia was medically determinable, the ALJ would have-or at least should have-viewed the medical evidence and Valentin's subjective symptoms through a different lens in determining her RFC. As noted, SSR 12-2p recognizes that “FM is a complex medical condition characterized primarily by widespread pain.” 2012 WL 3104869, at *2. Where a medically determinable impairment of fibromyalgia is found, the ALJ “will consider it in the sequential evaluation process to determine whether the person is disabled.” Id. at *6. “For a person with FM, [the ALJ] will consider a longitudinal record whenever possible because the symptoms of FM can wax and wane so that a person may have ‘bad days and good days.'” Id. The ruling also notes that “[w]idespread pain and other symptoms associated with FM, such as fatigue, may result in exertional limitations” and that “[p]eople with FM may also have nonexertional or mental limitations because of their pain or other symptoms.” Id.
Here, there is no indication in the ALJ's decision that she considered Valentin's fibromyalgia and related symptoms under the proper standard either at step two or in assessing Valentin's RFC. Under such circumstances, it cannot be said that the result would have been the same had the ALJ not erred. See Dannette L. v. Comm'r of Soc. Sec., No. 3:21-CV-00281-GCS, 2022 WL 3701346, at *8 (S.D. Ill. Aug. 26, 2022) (ordering remand where “the ALJ failed to provide a sufficient reason to support a crucial finding in her decision, i.e., the Plaintiff's fibromyalgia was not a medically determinable impairment”); Vargas v. Saul, No. 1:19-CV-299, 2020 WL 5521039, *7 (D. Idaho Sept. 14, 2020) (ordering remand and explaining that “[i]f [claimant's] fibromyalgia had been properly considered, ‘the ALJ may have found [claimant's] testimony regarding her pain, fatigue, and ability to function more credible, which may have impacted the RFC determination”) (citation omitted).
See also Paula K. v. Saul, No. 1:20CV318, 2021 WL 2802575, at *8 (N.D. Ind. July 6, 2021) (rejecting the Commissioner's harmless error argument and holding that the ALJ's decision was not supported by substantial evidence because she “failed to properly evaluate the symptoms associated with Plaintiff's fibromyalgia”); Kim P. v. Comm'r, Soc. Sec. Admin., No. CV SAG-18-2056, 2019 WL 3413409, at *2 (D. Md. July 29, 2019) (holding that “without the benefit of an RFC analysis that complied with the specific guidance of SSR 12-2p, this Court is unable to say whether the ALJ supported her findings with substantial evidence”).
The Commissioner is correct in pointing out that what ultimately matters is the claimant's work-related functional ability, regardless of the diagnosis describing their condition. See McKean v. Colvin, 150 F.Supp.3d 406, 417 (M.D. Pa. 2015) (“Ultimately, the outcome of the case depends on the demonstration of the functional limitations of the disease or impairment rather than the mere diagnosis of the disease or name of the impairment.”) (citations omitted). But here the ALJ failed to apply- or failed to explain how she applied-the proper standard in evaluating Valentin's fibromyalgia. This leads to doubt about whether the ALJ's functional assessment would have been the same had she applied the correct standard. See Wheaton v. Saul, No. 3:19-CV-01920, 2021 WL 736164, at *7 (M.D. Pa. Feb. 25, 2021) (holding that substantial evidence did not support the ALJ's decision where “the ALJ failed to consider [the plaintiff's] fibromyalgia pursuant to SSR 12-2p, and instead concluded that . . . [the plaintiff] had a severe impairment of ‘chronic pain syndrome'”); Dunworth v. Comm'r of Soc. Sec., No. 19-CV-2, 2020 WL 4432570, at *4 (W.D.N.Y. July 30, 2020) (holding that “[e]ven if the ALJ considered similar symptoms when calculating [the plaintiff's] RFC, ‘remand is necessary for the ALJ to properly evaluate [plaintiff]'s fibromyalgia at step two and the remaining steps of the sequential evaluation process'”) (quoting Keller v. Colvin, No. 16-CV-6399P, 2017 WL 4112024, at *14 (W.D.N.Y. Sept. 18, 2017)); U. M.V. v. Berryhill, No. 181202, 2019 WL 2393165, at *4 (D. Kan. June 6, 2019) (holding that “although the ALJ considered Plaintiff's symptoms, including pain, in formulating the RFC, the court cannot find that the failure to consider fibromyalgia was harmless” because “[i]f such an impairment is medically determinable, it could impact the ALJ's assessment of Plaintiff's limitations”) (citation omitted). Because the ALJ's step two error in assessing Valentin's fibromyalgia was not harmless, remand is warranted.
The Knight case cited by the Commissioner does not support her position. See Knight v. Saul, No. 2:17-CV-3131, 2019 WL 4307130 (D.S.C. July 30, 2019), report and recommendation adopted, 2019 WL 4303271 (D.S.C. Sept. 11, 2019). In that case, the ALJ provided “an extensive discussion of Plaintiff's allegations regarding her fibromyalgia” and “properly applied Social Security Ruling 12-2p.” Id. at *7-8*. Specifically, the ALJ applied the ACR criteria to the relevant evidence and explained why the plaintiff did not meet either the 1990 or 2010 ACR criteria. Id. at *8. Because “the ALJ applied the proper legal standards” and because substantial evidence supported the ALJ's finding, the Knight court affirmed the ALJ's conclusion that the plaintiff's fibromyalgia diagnosis did “not comport with the requirements set forth in SSR 12-2p” and thus was “not a severe medically-determinable impairment.” Id. In stark contrast to the ALJ's analysis in Knight, here the ALJ did not mention SSR 12-2p, let alone properly apply it.
This does not mean that the ALJ would have been compelled to find Valentin disabled had she applied the proper standard in assessing Valentin's fibromyalgia. As the Seventh Circuit has observed, even if a claimant has fibromyalgia, it does not mean they are disabled: “Some people may have such a severe case of fibromyalgia as to be totally disabled from working, . . . but most do not and the question is whether [the claimant] is one of the minority.” Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996); see also Osborne v. Berryhill, 2017 WL 818846, at *3 (W.D. Pa. Mar. 2, 2017) (recognizing that “a claimant who has been diagnosed with fibromyalgia will not automatically be classified disabled under the Social Security Act”) (citations omitted).
D. Plaintiff's Other Claims
Valentin's remaining claims address the ALJ's RFC assessment regarding her mental limitations and the ALJ's finding that Valentin's statements about her symptoms are not consistent with the evidence. (See Doc. 22 at 20.) Under the circumstances here, the undersigned recommends the same approach taken by another Court in this District under similar circumstances:
Because the Court recommends vacatur of the ALJ's decision based on her failure to address [the plaintiff's] fibromyalgia pursuant to SSR 12-2p, the Court further declines to address [plaintiff's] remaining arguments, as “[a] remand may produce different results on these claims, making discussion of them moot.” Burns v. Colvin, 156 F.Supp.3d 579, 598 (M.D. Pa. 2016). The Court's evaluation of [the plaintiff's] additional contentions would be futile given that the ALJ's consideration of [the plaintiff's] fibromyalgia, in combination with her other impairments, may yield a different result.Wheaton v. Saul, No. 3:19-CV-01920, 2021 WL 736164, at *8 (M.D. Pa. Feb. 25, 2021); see also Steininger v. Barnhart, 2005 WL 2077375, at *4 (E.D. Pa. Aug.24, 2005) (declining to address plaintiff's other arguments because the ALJ may revise his findings after remand). For the same reason, Valentin's remaining issues need not be resolved.
If this matter is remanded, the ALJ should carefully reconsider the other issues Valentin raises on appeal. For example, Valentin challenges the ALJ's finding that she has no limitation in concentrating, persisting, or maintaining pace and no limitation in adapting or managing herself. (Doc. 22 at 24.) Valentin points out that “the state agency psychologist[] specifically found that the Plaintiff had moderate limitation in maintaining concentration, persistence and pace and mild limitation in adapting or managing herself.” (Id.) The ALJ's findings on those mental functional abilities are likewise less restrictive than the findings of the psychological consultant. (See Tr. 871-75.) While this issue need not be decided, the ALJ should consider whether a finding of no limitation as to those mental functional ability is supported by the record.
III. RECOMMENDATION
For the foregoing reasons, the undersigned respectfully recommends that the
Commissioner's decision be VACATED and that this matter be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this report. It is also recommended that the Clerk be directed to CLOSE this case.
Nothing in this report should be construed to suggest whether on remand Valentin should be found to be disabled.
NOTICE TO THE PARTIES
Any party may obtain review of this Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.