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Hatch v. Berryhill

United States District Court, D. Utah

March 7, 2018

CRISTAL HATCH BLACK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security

          Jill N. Parrish, Judge

          REPORT AND RECOMMENDATION

          EVELYN J. FURSE, United States Magistrate Judge

         Judge Jill N. Parrish Magistrate Judge Evelyn J. Furse Plaintiff Cristal Hatch Black filed this action asking this Court[1] to remand the final agency decision denying her Disability Insurance Benefits and Social Security Income under Titles II and XVI of the Social Security Act. The Administrative Law Judge (“ALJ”) determined Ms. Black did not qualify as disabled within the meaning of the Social Security Act. (ECF No. 15, Tr. 37, the certified copy of the transcript of the entire record of the administrative proceedings relating to Cristal Hatch Black (hereafter “Tr. ”).) Having carefully considered the parties' memoranda and the complete record in this matter, the undersigned RECOMMENDS the District Judge REMAND the Commissioner's decision because, in general, it fails to provide sufficient analysis to permit Court review.[2]

         STANDARD OF REVIEW

         42 U.S.C. §§ 405(g) and 1383(c)(3) provide for judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”). The Court reviews the Commissioner's decision to determine whether the record as a whole contains substantial evidence in support of the Commissioner's factual findings and whether the SSA applied the correct legal standards. 42 U.S.C. §405(g); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The Commissioner's findings shall stand if supported by substantial evidence. 42 U.S.C. §§ 405(g) and 1383(c)(3).

         Adequate, relevant evidence that a reasonable mind might accept to support a conclusion constitutes substantial evidence, and “[e]vidence is insubstantial if it is overwhelmingly contradicted by other evidence.” O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).[3] The standard “requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084. “Evidence is not substantial if it is overwhelmed by other evidence-particularly certain types of evidence (e.g., that offered by treating physicians)-or if it really constitutes not evidence but mere conclusion.” Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). Moreover, “[a] finding of ‘no substantial evidence' will be found only where there is a conspicuous absence of credible choices or no contrary medical evidence.” Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). Although the reviewing court considers “whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, ” the court “will not reweigh the evidence or substitute [its] judgment for the Commissioner's, ” Lax, 489 F.3d at 1084 (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)), but will “review only the sufficiency of the evidence, ” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (emphasis in original). The court does not have to accept the Commissioner's findings mechanically but will “examine the record as a whole, including whatever in the record fairly detracts from the weight of the [Commissioner's] decision and, on that basis, determine if the substantiality of the evidence test has been met.” Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800-01 (10th Cir.1991)). “‘The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence, '” and the court may not “‘displace the agenc[y's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'” Lax, 489 F.3d at 1084 (quoting Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2004)).

         In addition to a lack of substantial evidence, the court may reverse where the Commissioner uses the wrong legal standards or fails to demonstrate reliance on the correct legal standards. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Thomson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993); Andrade v. Sec'y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993).

         APPLICABLE LAW AND SEQUENTIAL EVALUATION PROCESS

         The Social Security Act (“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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Moreover, the Act considers an individual disabled “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).

         In determining whether a claimant qualifies as disabled within the meaning of the Act, the SSA employs a five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750-53 (10th Cir. 1988); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process requires the ALJ to consider whether:

(1) The claimant presently engages in substantial gainful activity;
(2) The claimant has a medically severe physical or mental impairment or impairments;
(3) The impairment is equivalent to one of the impairments listed in the appendix of the relevant disability regulation which preclude substantial gainful activity;
(4) The impairment prevents the claimant from performing his or her past work; and
(5) The claimant possesses a residual functional capacity to perform other work in the national economy considering his or her age, education, and work experience.

20 C.F.R. §§ 404.1520, 416.920. The claimant has the initial burden of establishing the disability in the first four steps. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). At step five, the burden shifts to the Commissioner to show that the claimant retains the ability to perform other work existing in the national economy. Id.

         FACTUAL AND PROCEDURAL BACKGROUND

         Born February 18, 1980, Ms. Cristal Hatch Black alleges that migraines, lower back pain, major depressive disorder, panic disorder with agoraphobia, chronic pain syndrome, abdominal pain and nausea, insomnia, fibromyalgia, and Raynaud's syndrome in her right hand render her disabled. (Tr. 338, 474.) Ms. Black graduated from high school and previously worked as a bridal assistant, receptionist, retail clerk, and server. (Tr. 396, 412-18, 950.)

         Ms. Black filed applications for Disability Insurance Benefits and Supplemental Security Income benefits on November 16, 2012, alleging an onset date of disability of August 31, 2005-a few months after she gave birth to her first child. (Tr. 166, 338, 345-46.) She moved to amend her onset date to March 8, 2010-the day she gave birth to her second child. (Tr. 474, 346.) Specifically, Ms. Black asserted this amended onset date coincides with complications following an epidural during labor. (Tr. 474.)

         Following a February 2015 administrative hearing (Tr. 92-142), an ALJ issued a fully favorable decision on March 30, 2015 finding Ms. Black disabled. (Tr. 197-211.) The ALJ found Ms. Black's severe impairments included migraine headaches, degenerative disc disease in the lumbar spine, abdominal pain (etiology unknown), fibromyalgia, major depressive disorder, panic disorder with agoraphobia, and pain disorder associated with both psychological factors and a general medical condition. (Tr. 203.) He also concluded that Ms. Black had the residual functional capacity (“RFC”) to perform sedentary work with restrictions, including that she would have to lie down during the workday for more than one and a half hours to alleviate her pain, and that based on these limitations, no jobs existed in sufficient numbers in the national economy that she could perform. (Tr. 210-11.) Upon a subsequent review, the Appeals Council found substantial evidence did not support the March 2015 decision, and it contained errors of law. (Tr. 215.) Accordingly, the Appeals Council vacated the March 2015 decision and remanded this case for further proceedings. (Tr. 212-20.) Specifically, the Appeals Council instructed the ALJ to:

• Obtain additional evidence concerning Ms. Black's impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence;
• Further evaluate Ms. Black's subjective complaints and provide rationale in accordance with the disability regulations pertaining to the evaluation of symptoms;
• Further evaluate Ms. Black's alleged abdominal pain in accordance with Social Security Ruling 96-4p and alleged fibromyalgia pursuant to Social Security Ruling 12-2p;
• If necessary and available, obtain evidence from a medical expert to clarify the nature, severity and/or limiting effects of Ms. Black's impairments;
• Give further consideration to Ms. Black's maximum residual functional capacity and provide appropriate rationale with specific references to the evidence of record in support of the assessed limitations; and
• If warranted by the expanded record, obtain supplemental evidence from a vocational expert.

(Tr. 217-18.)

         Ms. Black and her attorney appeared at a second administrative hearing in February 2016, where a new ALJ heard testimony from Ms. Black and a vocational expert. (Tr. 44-91.) On March 14, 2016, the ALJ issued an unfavorable decision finding that Ms. Black was not disabled. (Tr. 16-37.) The ALJ's opinion followed the five-step sequential evaluation process. (Id.) At step one, the ALJ found Ms. Black had not engaged in substantial gainful activity since March 8, 2010, the alleged onset date of her disability. (Tr. 22.) At step two, the ALJ found Ms. Black's severe impairments included migraines, degenerative disc disease of the lumbar spine, major depressive disorder, panic with agoraphobia, and Raynaud's syndrome. (Tr. 22.) The ALJ stated, Ms. Black's “medical evidence of record shows that she has been diagnosed with fibromyalgia.” Id. However, he determined that “those diagnoses do not satisfy the requirements of Social Security Rule 12-2p, ” and, therefore, found “that fibromyalgia is not a medically determinable impairment in this case.” (Id.) The ALJ also concluded that “the medical evidence of record does not identify the cause of [Ms. Black's] abdominal pain, ” and, therefore, found that it is not “a medically determinable impairment.” (Id.) At step three, the ALJ found Ms. Black did not have an impairment that met or medically equaled a listed impairment. (Tr. 22-24.) The ALJ then assessed the following RFC:

After careful consideration of the entire record, I find that [Ms. Black] has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except the requirements of lifting/carrying/pushing/pulling would he accomplished with only the left hand. Handling and fingering with the right hand would be limited to occasional. In addition, this person would be limited to simple, routine, and repetitive tasks; in a work environment free of fast-paced production requirements; involving only simple, work-related decisions; and only occasional interaction with the public. Lastly, this person would have an average of two unscheduled absences from work per mouth due to the effects of migraine headaches.

(Tr. 25-34.)

         At step four, the ALJ concluded that Ms. Black was unable to perform past relevant work as a server, sales clerk, receptionist, or bridal assistant. (Tr. 34.) At step five, considering Ms. Black's age, education, work experience, and RFC, the ALJ found that jobs existed in significant numbers in the national economy that she could perform. (Tr. 34-36.) Specifically, the ALJ found she could perform the requirements of a surveillance-system monitor and that, given her RFC, Ms. Black could perform approximately 15, 000 jobs available in the national economy. (Id.) Consequently, the ALJ found Ms. Black not disabled, and accordingly, denied her application for benefits. (Tr. 36-37.)

         Ms. Black subsequently asked the Appeals Council to review the ALJ's decision. (Tr. 14-15.) The Appeals Council denied Ms. Black's request for review, (Tr. 1-6), thereby rendering the ALJ's decision the Commissioner's final administrative decision for purposes of judicial review. See 20 C.F.R. § 404.981 (explaining effect of Appeals Council denial).

         ANALYSIS

         Ms. Black alleges the ALJ made numerous errors in denying her disability benefits and supplemental security income. The undersigned addresses each of the alleged errors in turn.

         I. Fibromyalgia and Abdominal Pain Evaluation

         Ms. Black asserts the ALJ erred in evaluating her fibromyalgia and abdominal pain at step two, which also led to additional errors at later steps. (ECF No. 16 at 17- 18; ECF No. 21 at 1-3.) She contends the ALJ's minimal discussion of these conditions fails to meet the Appeals Council's remand requiring an analysis and does not allow the Court to review the ALJ's decision meaningfully. (Id.) The undersigned agrees.

         Step two of the sequential evaluation process requires the ALJ to decide whether the claimant has a severe impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments qualifies as severe when it significantly limits a person's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). If the ALJ finds no severe impairments at step two the inquiry ends, and the ALJ finds the claimant not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the ALJ finds any impairment severe, the inquiry continues. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Subsequently, in determining the RFC, the ALJ considers all medically determinable impairments, including non-severe impairments. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).

         By way of background, “[f]ibromyalgia, previously called fibrositis, is ‘a rheumatic disease that causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments and other tissue.'” Brown v. Barnhart, 182 Fed.Appx. 771, 773 n.1 (10th Cir. 2006) (unpublished) (quoting Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004)). “It is a chronic condition, causing ‘long-term but variable levels of muscle and joint pain, stiffness and fatigue.'” Id. (quoting Brosnahan v. Barnhart, 336 F.3d 671, 672 n.1 (8th Cir. 2003)). A claimant can establish that she has a medically determinable impairment of fibromyalgia by providing evidence from a licensed physician. Soc. Sec. Ruling (“SSR”) 12-2p, Titles II and XVI: Evaluation of Fibromyalgia, 2012 WL 3104869, at *2 (July 25, 2012). A physician must support a diagnosis of fibromyalgia with evidence meeting the criteria of either the 1990 ACR Criteria for the Classification of Fibromyalgia (set forth in Section I.A.) or the 2010 ACR Preliminary Diagnostic Criteria (set forth in Section II.A.). Id., at *2. Section I.A states that the ALJ may find a claimant has a medically determinable impairment of fibromyalgia if the claimant has all three of the following:

(1) A history of widespread pain that has persisted for at least three months (the pain may fluctuate and not always be present);
(2) At least 11 positive tender points on physical examination (found on all quadrants of the body); and
(3) Evidence that other disorders that could cause the symptoms or signs were excluded.

Id., at *2-*3.

         Section II.A. allows the ALJ to find a medically determinable impairment of fibromyalgia if the claimant meets the first and third prongs of the Section I.A. test, and instead of the positive tender points, has repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions, in particular, fatigue, cognitive or memory problems, waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome. SSR 12-2p, 2012 WL 3104869, at *3.

         “Signs” include “muscle pain, irritable bowel syndrome, fatigue or tiredness, thinking or remembering problems, muscle weakness, headache, pain or cramps in the abdomen, numbness or tingling, dizziness, insomnia, depression, constipation, pain in the upper abdomen, nausea, nervousness, chest pain, blurred vision, fever, diarrhea, dry mouth, itching, wheezing, Raynaud's phenomenon, hives or welts, ringing in the ears, vomiting, heartburn, oral ulcers, loss of taste, change in taste, seizures, dry eyes, shortness of breath, loss of appetite, rash, sun sensitivity, hearing difficulties, easy bruising, hair loss, frequent urination, or bladder spasms.” SSR 12-2p, 2012 WL 3104869, at *3 n.9. “Co-occurring conditions” include irritable bowel syndrome, depression, “anxiety disorder, chronic fatigue syndrome, irritable bladder syndrome, interstitial cystitis, temporomandibular joint disorder, gastroesophageal reflux disorder, migraine, or restless leg syndrome.” Id., at *3 n.10.

         At step two of the sequential evaluation process, the ALJ found Ms. Black had severe impairments consisting of migraines, degenerative disc disease of the lumbar spine, major depressive disorder, panic with agoraphobia, and Raynaud's syndrome. (Tr. 22.) With respect to fibromyalgia, the ALJ stated:

The claimant's medical evidence of record shows that she has been diagnosed with fibromyalgia. (Exh. 1F/34-35; 13F/2, 5). However, those diagnoses do not satisfy the requirements of Social Security Ruling 12-2p. Accordingly, I find that fibromyalgia is not a medically determinable impairment in this case.

(Id.)

         The ALJ did not explain his conclusion that Ms. Black's fibromyalgia diagnoses do not meet the requirements of SSR 12-2p. In addition, the ALJ concluded Ms. Black's abdominal pain did not constitute a medically determinable impairment. (Tr. 22.) He noted that Ms. Black testified she experienced abdominal pain but did not know the cause, that the “medical evidence of record does not identify the cause of [Ms. Black's] abdominal pain, ” that the abdominal pain was a symptom, and that “no symptom by itself can establish the existence of [a medically determinable] impairment.” (Id.) While true that a symptom does not constitute a medically determinable impairment, the ALJ did not acknowledge that abdominal pain is a symptom of fibromyalgia as set forth in SSR 12-2p, which is a medically determinable impairment. Given the lack of analysis, whether the ALJ considered the symptom of abdominal pain in determining whether fibromyalgia qualified as a medically determinable impairment in this case remains unclear.

         The ALJ's lack of discussion and analysis does not comply with the Appeals Council's mandate to evaluate Ms. Black's fibromyalgia and abdominal pain claims. Significantly, the ALJ's decision does not allow the undersigned the opportunity to assess whether the ALJ considered all relevant evidence, whether the relevant evidence supports the ALJ's decision, or whether he applied the correct standards to arrive at that conclusion, necessitating remand. See Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (“[B]are conclusion[s] [are] beyond meaningful judicial review.”); Gilbert v. Astrue, 231 Fed.Appx. 778, 784 (10th Cir. 2007) (unpublished) (remanding case for further proceedings where “the record [] fail[ed] to demonstrate that the ALJ considered all of the evidence with respect to [the claimant's] fibromyalgia.”); Mizell v. Colvin, No. 13-1206-JWL, 2014 WL 6453592, at *2-*4 (D. Kan. Nov. 17, 2014) (unpublished) (remanding case for further consideration where the ALJ failed to explain adequately the bases for his decision that the claimant's fibromyalgia was not a medically determinable impairment).

         Later in the ALJ's decision, he “noted that there was no medical exam to confirm [Ms. Black's] alleged fibromyalgia, and the doctors were not able to find exams with sufficient tender points documented.” (Tr. 30.) Ms. Black argues, however, that her medical records contain evidence that meets SSR 12-2p's criteria. (ECF No. 16 at 17.) She points to medical records noting multiple tender points, (see, e.g., Tr. 597 (“Multiple tender points in a fibromyalgia type distribution”), Tr. 859-61 (“diffuse muscle tender points”)), though concedes that Section I.A requires that the number and location of tender points be stated. (ECF No. 16 at 17.) However, Ms. Black correctly notes that SSR 12-2p allows the ALJ may to use the criteria in Section II.B. to determine a medically determinable impairment of fibromyalgia “if the case record does not include a report of the results of tender-point testing, or the report does not describe the number and location on the body of the positive tender points.” SSR 12-2p, 2012 WL 3104869, at *3 n.6. Ms. Black cites to medical records which she claims show repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions: muscle pain (Tr. 594, 597, 601, 613, 623), irritable bowel syndrome (Tr. 597), fatigue or tiredness (Tr. 597, 968), thinking or remembering problems (Tr. 597, 1011-16), headache (Tr. 611, 613, 784), pain or cramps in the abdomen (Tr. 578, 579, 597, 613), insomnia (Tr. 594, 613), depression (Tr. 597), nausea (Tr. 613), Raynaud's phenomenon (Tr. 1086, 1096, 1101, 1105, 1115, 1119), and loss of appetite (Tr. 1038). The Commissioner counters that most of the treatment notes date from 2005 through 2008, before the alleged onset of her disability, and that to the extent she cites evidence from the “relevant time period, ” her symptoms largely resulted from other conditions. (ECF No. 18 at 7).

         As an initial matter, the Commissioner's argument that Ms. Black's medical records pre-dating the alleged disability onset date lack relevance fails. The medical records Ms. Black cites form part of her case record, and the ALJ should consider them in determining whether she qualifies as disabled. See 42 U.S.C. § 423(d)(5)(B) (“[T]he Commissioner . . . shall consider all evidence available in [an] individual's case record . . .”); 20 C.F.R. §§ 404.1527(c), 416.927(c) (requiring Commission to evaluate every medical opinion received); Hamlin v. Barnhart, 365 F.3d 1208, 1223 n.15 (10th Cir. 2004) (holding that medical reports predating disability period “are nonetheless part of [the claimant's] case record, and should have been considered by the ALJ”). Further, SSR 12-2p recognizes the importance of the “longitudinal record” of symptoms in fibromyalgia cases because “the symptoms of [fibromyalgia] can wax and wane so that a person may have ‘bad days and good days.'” SSR 12-2p, 2012 WL 3104869, at *6.

         Additionally, enough record evidence exists to make the ALJ's failure to explain his evaluation of it harmful error. Ms. Black's doctor diagnosed her with fibromyalgia. (Tr. 1063-67.) At times, she exhibited “[m]ultiple tender points in a fibromyalgia distribution.” (Tr. 597, see also 861, 1066.) The ALJ found three co-occurring conditions identified in SSR 12-2p-migraines, depression, and Raynaud's syndrome- severe impairments. (Tr. 22.) Additionally, Ms. Black exhibited multiple other symptoms delineated in SSR 12-2p, including but not limited to abdominal pain, (Tr. 597), anxiety, (Tr. 597, 664), restless leg syndrome, (Tr. 601), fatigue, (Tr. 601, 651), insomnia, (Tr. 601, 664). Further, other testing including MRIs, CT scans, MS testing, GI workup, etc. came back normal. (Tr. 1219-1223.)

         Evidence also exists, as the Commissioner points out, suggesting that at least some of the symptoms may be attributable to conditions other than fibromyalgia. (ECF No. 18 at 7-8.) Unfortunately, the undersigned cannot resolve these issues given the ALJ's lack of analysis. Whether fibromyalgia constitutes one of Ms. Black's medically determinable impairments under the criteria set forth in SSR 12-2p remains for the ALJ to review, determine, and explain on remand.

         Finally, the Commissioner argues that even if the ALJ erred in assessing whether fibromyalgia is a medically determinable impairment, that error is harmless. (ECF No. 18 at 8.) The Commissioner correctly asserts that the failure to find a particular impairment severe at step two is not reversible error if the ALJ finds at least one other impairment severe. The Commissioner mistakenly argues that because the ALJ “evaluated all of the record evidence in assessing [Ms. Black's] RFC and accounted for the verifiable symptoms and limitations [she] asserted stemmed from all her conditions, including her alleged fibromyalgia and abdominal pain” the error remains harmless. (ECF No. 18 at 8.) These arguments are unavailing.

         First, the issue in this case is not that the ALJ failed to find fibromyalgia a severe impairment. The issue is the ALJ failed to find fibromyalgia a medically determinable impairment at all. The distinction is critical. In formulating the RFC, an ALJ must consider all medically determinable impairments, whether severe or not. See 20 C.F.R. §§ 404.1545(a)(2), 416.927(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.”); SSR 96-8p, Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184, at *5 (July 2, 1996) (requiring ALJ to “consider limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe.'”). But the ALJ may only consider medically determinable impairments in assessing the RFC. See SSR 96-8p, 1996 WL 374184, at *2 (ALJ “must consider only limitations and restrictions attributable to medically determinable impairments.”) Thus, the ALJ was supposed to disregard Ms. Black's fibromyalgia in determining her RFC.

         If, as the Commissioner argues, the ALJ considered Ms. Black's fibromyalgia in formulating the RFC after finding it not a medically determinable impairment, then he erred. However, the ALJ does not appear to have considered any limitations and restrictions fibromyalgia may cause Ms. Black in assessing the RFC. While the ALJ recited medical reports that reference fibromyalgia, (Tr. 28, 29, 32), he did not specifically discuss any limitations or restrictions that may result from that condition. See Brown v. Colvin, 205 F.Supp.3d 1269, 1274-75 (D. Kan. 2016) (finding error not harmless where the ALJ declined to find fibromyalgia a medically determinable impairment at step two, and “no evidence [showed] that Plaintiff's fibromyalgia was considered in the evaluation of Plaintiff's claim at any [later] step in the process.”). Further, the ALJ discounted many of Ms. Black's claims about her limitations that he may not have discounted had he found she had fibromyalgia as a ...


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