MORENO v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION (2023)

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION

On this day, the Court considered the case. Pursuant to Paragraph 2(c) of the Court's May 1, 2012, Standing Order, this case was referred to United States Magistrate Judge Robert F. Castaneda. On July 17, 2023, the Magistrate Judge filed a Report and Recommendation (“R&R”), ECF No. 18, recommending the Court affirm the denial of Plaintiff Yolanda Moreno's application for disability insurance benefits by Defendant Commissioner of the Social Security Administration. Id. at 15. On July 24, 2023, Plaintiff filed her Objections to the R&R, ECF No. 19. For the reasons below, the R&R is ADOPTED IN PART and REJECTED IN PART. The Commissioner's decision is REVERSED, and this matter is REMANDED to the agency.

I. BACKGROUND

In February 2020, Plaintiff filed a disability insurance benefits application alleging she suffered from several qualifying disabilities, including carpal tunnel and nerve trauma in her left arm; osteoarthritis; fibromyalgia; hypertension; stomach problems; depression; anxiety; and throat polyp. R&R 1. Plaintiff's application was first denied in September 2020 and again denied upon reconsideration in October 2020. Id. The application was then considered by Administrative Law Judge (“ALJ”) Robert McPhail who conducted a telephonic hearing and issued a written decision denying benefits in November 2021.¹ Id.

In determining whether Plaintiff qualified as disabled, the ALJ used the five-step evaluation process outlined in 20 C.F.R. § 404.1520(a). First, the ALJ found Plaintiff had not engaged in “substantial gainful activity” since her disability onset date of December 13, 2016. R&R 4. Second, the ALJ found Plaintiff suffered from severe impairments of osteoarthritis and carpal tunnel syndrome and nonsevere impairments of hypertension, gastroesophageal reflux disease, vocal polyps, asthma, depression, and anxiety. Id. The ALJ also found that one of Plaintiff's asserted impairments, fibromyalgia, was not a medically determinable impairment and therefore the ALJ did not consider its severity. See id. Third, the ALJ found Plaintiff did not have an impairment that matched a statutory disability. Id. In between the third and fourth steps, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work. Id. And finally, at step four, the ALJ found Plaintiff was not disabled because her RFC would allow her to continue past work as an appointment clerk or a telemarketer. R&R 5.

Plaintiff timely sought review of the ALJ's decision. Administrative Record (“R.”) 1.²

II. DISCUSSION

A. Standard

1. Report and Recommendations

When reviewing portions of a report and recommendation the parties did not object to, courts apply a “clearly erroneous, abuse of discretion and contrary to law” standard of review. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). However, federal district courts conduct de novo review of those portions of a report and recommendation to which a party has objected. See 28 U.S.C. § 636(b)(1)(C) (“A judge ․ shall make a de novo determination of those portions of the report ․ to which objection is made ․”).

2. Social Security Appeals

When reviewing the denial of social security benefits, courts consider whether “the final decision is supported by substantial evidence” and whether “the Commissioner used the proper legal standards to evaluate the evidence.” Keel v. Saul, 986 F.3d 551, 555 (5th Cir. 2021) (quoting Whitehead v. Colvin, 820 F.3d 776, 779 (5th Cir. 2016)). Substantial evidence exists if “a reasonable mind would support the conclusion.” Id. (quoting Taylor v. Astrue, 706 F.3d 600, 602 (5th Cir. 2012)). In making this determination, courts review the administrative record to determine whether sufficient evidence supports the agency's decision. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Courts “may affirm only on the grounds” provided by the ALJ, Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (citation omitted), and may not reweigh evidence because “[c]onflicts of evidence are for the Commissioner, not the courts, to resolve,” Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). Reversal is inappropriate if the agency's error was harmless—if “it is inconceivable that a different administrative conclusion would have been reached even if the ALJ did not err.” Keel, 986 F.3d at 556 (citing Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)).

B. Analysis

Plaintiff argues the ALJ's decision should be reversed because (1) the ALJ committed legal error in deciding Plaintiff's fibromyalgia was not a medically determinable impairment, and (2) the RFC did not include all the limitations opined by a medical expert, Dr. Robles. R&R 5; Pl.’s Br. 7, ECF No. 14. Regarding the first argument, the Magistrate Judge recommends finding that, while the ALJ erroneously analyzed whether Plaintiff's fibromyalgia qualifies as a medically determinable impairment, R&R 5–9, this error was harmless because the ALJ considered symptoms of fibromyalgia while making the RFC determination. R&R 9–10. Regarding the second argument, the Magistrate Judge recommends finding the ALJ's decision to not include all limitations identified by Dr. Robles within the RFC is not erroneous and is supported by substantial evidence. R&R 11–15. Plaintiff objects only to the Magistrate Judge's recommended finding of harmless error on the first issue. Pl.’s Objs. R&R 2. Defendant did not file any objections nor respond to Plaintiff's Objections.

1. The Court adopts the Magistrate Judge's unobjected-to findings.

The Court has reviewed the Magistrate Judge's finding that the ALJ did not properly consider whether Plaintiff's diagnosis of fibromyalgia was a medically determinable impairment. R&R 8–9. The Court has also reviewed the Magistrate's finding that the ALJ's partial reliance on Dr. Robles's opinion when assessing Plaintiff's RFC was supported by substantial evidence. R&R 11–15. Because neither finding is clearly erroneous nor contrary to law, the Court adopts both unobjected-to findings. See Wilson, 864 F.2d at 1221.

2. The ALJ's erroneous fibromyalgia analysis is a reversible error.

Turning to Plaintiff's Objections, the Magistrate Judge recommends finding the ALJ's erroneous fibromyalgia analysis to be harmless because the ALJ considered some symptoms of fibromyalgia when making the RFC determination. R&R 10 (collecting cases that show “[a] step two error is harmless if the ALJ considers symptoms of the impairment in question at subsequent steps”). Specifically, the ALJ considered Plaintiff's “symptoms of pain, tingling, numbness, and capacities of memory and cognition,” as well as her depression, anxiety, and fatigue when determining her RFC. Id.; see also R. 63 (stating the ALJ had “considered all symptoms”). Thus, the Magistrate Judge finds it improbable that “the outcome of the case would have been different” if the ALJ had properly assessed Plaintiff's fibromyalgia. R&R 10.

The second step in the five-step evaluation process requires ALJs to consider “the medical severity of [claimants’] impairment(s).” 20 C.F.R. § 404.1520(a)(4)(ii). A prerequisite to this consideration is deciding whether claimants have a “medically determinable physical or mental impairment,” because claimants are deemed nondisabled if they cannot prove that an impairment is medically determinable. Id. § 404.1520(c). If ALJs determine that one or more severe medically determinable impairments are present, they then move on to subsequent steps in the evaluation process. See id. § 404.1520(a)(4). At step three, ALJs consider whether the severity of a claimant's medically determinable impairment “meets or equals one of” various impairments enumerated in the statute. Id. § 404.1520(a)(4)(iii). If an ALJ decides the severity of a claimant's impairment matches the severity of an enumerated impairment, the claimant is deemed statutorily disabled and thus eligible for benefits. Id.; see also id. § 404.1520(d).

But if a claimant's impairments do not match any statutory impairments, the ALJ assesses the claimant's RFC, determining “the most [the claimant] can still do despite [the claimant's] limitations.” Id. § 404.1545(a)(1). Using the RFC, the ALJ decides at steps four and five whether the claimant can engage in past relevant work or other types of work. Id. § 404.1520(a)(4)(iv)–(v). While determining a claimant's RFC, an ALJ can only factor in symptoms objectively arising from the claimant's medically determinable impairments, id. § 404.1545(a)(2)—asserted impairments found to not be medically determinable “will not be found to affect [a claimant's] ability to do basic work activities,” id. § 404.1529(b). If claimants’ RFC, considered in light of their age, education, and work experience, renders them unable to work, they are disabled and thus eligible for benefits. Id. § 404.1520(a)(4)(v).

The ALJ in this case followed the above process. At step two, the ALJ found Plaintiff had two severe medically determinable impairments: osteoarthritis and carpel tunnel syndrome. R. 60. At the same time, the ALJ erroneously decided Plaintiff's asserted impairment of fibromyalgia did “not meet the requirements set forth by the Social Security Administration needed for the determination that fibromyalgia is a medically determinable impairment.” Id. Then at step three the ALJ concluded Plaintiff's two medically determinable impairments did not “meet[ ] or medically equal[ ] the severity” of a qualifying statutory disability. R. 63.

The ALJ then determined Plaintiff's RFC. Id. In making this determination, the ALJ first stated that when a medically determinable physical or mental impairment “could reasonably be expected to produce [Plaintiff's] pain or other symptoms,” the ALJ would “evaluate the intensity, persistence, and limiting effects of [Plaintiff's] symptoms to determine the extent to which they limit [Plaintiff's] work-related activities.” Id. However, the ALJ also stated that Plaintiff's statements concerning “the intensity, persistence, or functionally limiting effects of pain or other symptoms” would only be considered so far as they were supported by objective medical evidence. R. 63–64. Using this analytical framework, the ALJ found that although Plaintiff's “medically determinable impairments could reasonably be expected to cause some of [her] alleged symptoms,” her “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” R. 64. The ALJ then reviewed Plaintiff's medical history and found she had a sedentary RFC. R. 64–66.

The ALJ's failure to properly analyze Plaintiff's fibromyalgia was not a harmless error for two independent reasons.

a. The error was not harmless because the ALJ could have found Plaintiff's fibromyalgia was a statutory disability at step three.

First, if the ALJ had found the fibromyalgia diagnosis was a medically determinable impairment, the ALJ would have considered at step three whether the severity of Plaintiff's fibromyalgia equaled that of a statutorily listed disability, which could automatically establish Plaintiff to be disabled. See Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (finding that “[b]y the explicit terms of [42 U.S.C. § 405], the ALJ was required to discuss the evidence offered in support of [the] claim for disability” at step three and explain why a claimant was found not disabled). Because a claimant can establish fibromyalgia is a qualifying disability at step three, courts have repeatedly found it is reversible error to not consider at step three whether a medically determinable diagnosis of fibromyalgia qualifies a claimant for benefits. See, e.g., id. at 448–49; McCurry v. Kijakazi, No. 1:21-CV-731-RP-SH, 2022 WL 3135753, at *4 (W.D. Tex. Aug. 5, 2022), report and recommendation adopted, 2022 WL 17732696 (W.D. Tex. Sept. 26, 2022) (“The ALJ's consideration of Plaintiff's fibromyalgia could have altered his determination at step three and in subsequent steps. Accordingly, the ALJ's error was not harmless.”); Waterman v. U.S. Comm'r, Soc. Sec. Admin., No. 15-CV-02699, 2017 WL 1238042, at *11 (W.D. La. Jan. 18, 2017), report and recommendation adopted, 2017 WL 1238038 (W.D. La. Mar. 30, 2017) (“Because the ALJ failed to compare the claimant's symptoms with those of relevant listings, remand is required.”). By failing to properly analyze Plaintiff's fibromyalgia and finding it was not medically determinable, the ALJ foreclosed the possibility of finding it was a basis for disability at step three.

b. The error was not harmless because it skewed the ALJ's RFC determination.

In addition to the improper step-three analysis caused by the ALJ's error, the ALJ's error was not harmless because it prevented the ALJ from considering whether Plaintiff's fibromyalgia provided an objective medical basis for her statements about the severity of her symptoms. The ALJ only gave weight to Plaintiff's subjective “statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms” to the extent they were “substantiated by objective medical evidence.” R. 63–64; see also 20 C.F.R. § 404.1529(b) (“[A claimant's] symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect your ability to do basic work activities unless medical signs or laboratory findings show that a medically determinable impairment(s) is present.”). And the ALJ had determined at step two that Plaintiff's fibromyalgia was not medically determinable. R. 60. It necessarily follows that the RFC determination—which was predicated upon the finding that Plaintiff's statements about the severity of her symptoms were inconsistent “with the medical evidence,” R. 64—was skewed by the ALJ's inability to consider whether Plaintiff's fibromyalgia provided an objective basis for Plaintiff's statements about the severity of her symptoms. See, e.g., Patrick v. Comm'r of Soc. Sec. Admin., No. 3:20-CV-333-TSL-MTP, 2022 WL 2813751, at *4 (S.D. Miss. June 30, 2022), report and recommendation adopted, 2022 WL 2813047 (S.D. Miss. July 18, 2022) (finding reversible error when an ALJ failed to evaluate a claimant's fibromyalgia at step two because “[a]ll medically determinable impairments, including [nonsevere] impairments, must be taken into account in determining a claimant's RFC”); Jones v. Astrue, 821 F. Supp. 2d 842, 850 (N.D. Tex. 2011) (noting it is reversible error when an ALJ “explicitly rejects one or more of the claimant's impairments ․ and proceeds to the later steps of the sequential analysis only with respect to other claimed impairments”).

The ALJ's error here—erroneously analyzing whether an impairment is medically determinable—is distinct from cases in which an ALJ erroneously classifies a severe medically determinable impairment as nonsevere. For example, in a case considering an ALJ's mischaracterization of a severe fibromyalgia impairment as nonsevere, the court found the error was harmless “because all impairments were considered in the ALJ's formulation of [the claimant's] RFC.” Enriquez v. Acting Comm'r of Soc. Sec. Admin., No. 3:17-CV-00329-RFC, 2018 WL 2293967, at *3 (W.D. Tex. May 18, 2018). Thus, because the ALJ had considered severe and nonsevere impairments when determining the RFC, the misclassification error did not affect the subsequent RFC determination. Id.; see also 20 C.F.R. § 404.1545(a)(2) (stating the agency considers all “medically determinable impairments of which [it is] aware, including medically determinable impairments that are not ‘severe,’ ” when formulating the RFC). But the Enriquez Court distinguished such a case of mischaracterized severity from “a case where the ALJ failed to consider the impairments at all.” Enriquez, 2018 WL 2293967, at *3. The error here is of the latter variety: By erroneously analyzing Plaintiff's fibromyalgia and finding it not medically determinable, the ALJ materially altered the subsequent analysis.

For both reasons described above, it is entirely conceivable “that a different administrative conclusion would have been reached” if the ALJ had properly considered whether Plaintiff's diagnosis of fibromyalgia was medically determinable. See Keel, 986 F.3d at 556 (citing Frank, 326 F.3d at 622). Therefore, the error was not harmless, and the agency's decision must be reversed.

III. CONCLUSION

Accordingly, the Court ADOPTS the R&R in part and REJECTS it in part. The Court ORDERS that the Commissioner's decision is REVERSED and this matter is REMANDED to the agency.

SO ORDERED.

REPORT AND RECOMMENDATION

Plaintiff Yolanda Moreno appeals from the decision of the Acting Commissioner of the Social Security Administration, denying her claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act. For the following reasons, the Court recommends that the Commissioner's decision be AFFIRMED.

I. PROCEDURAL HISTORY

On or about February 14, 2020, Moreno filed a DIB application alleging disability beginning on January 31, 2017, due to carpal tunnel and nerve trauma in left arm; osteoarthritis; fibromyalgia; hypertension; stomach problems; depression; anxiety; and throat polyp. (R:183–84, 296–302.) The disability onset date was later amended to December 13, 2016. (R:57–58.)

Moreno's application was initially denied on or about September 16, 2020 (R:57, 183–94, 208–11) and again upon reconsideration on or about October 29, 2020 (R:57, 195–207, 224–26). Administrative Law Judge (“ALJ”) Robert McPhail conducted a telephonic hearing on June 15, 2021. (R:57, 135–63.) On November 4, 2021, the ALJ issued an unfavorable decision. (R:54–72.) The Appeals Council denied Moreno's request for review on July 20, 2022. (R:23–29.) Thus, the ALJ's decision became the Commissioner's final decision in Moreno's case. (R:23); see 42 U.S.C. § 405(g).

II. DISCUSSION

A. Standard of Review

Judicial review of the Commissioner's decision is limited to a determination of whether (1) the Commissioner's final decision is supported by substantial evidence on the record and (2) the Commissioner applied the proper legal standards. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014).

Substantial evidence is more than a scintilla but less than a preponderance and is “sufficient for a reasonable mind to accept as adequate to support a conclusion.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). To determine whether substantial evidence supports the Commissioner's decision, courts weigh “four elements of proof”: “(1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) his age, education, and work history.” Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). A court must “scrutinize the record” but “may not reweigh the evidence, try the issues de novo, or substitute [the court's] judgment for that of the [Commissioner].” Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989) (per curiam); see also Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (“Conflicts of evidence are for the Commissioner, not the courts, to resolve.”). “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (internal quotes and citations omitted). If substantial evidence supports the Commissioner's findings, they are conclusive and must be affirmed. Perez, 415 F.3d at 461.

A court's finding of legal error requires either automatic reversal or harmless error analysis, depending on the steps taken by the ALJ to reach the final decision. Keel v. Saul, 986 F.3d 551, 556 (5th Cir. 2021); see infra Section II.B. Broadly, “[h]armless error exists when it is inconceivable that a different administrative conclusion would have been reached ․ if the ALJ did not err.” Keel, 986 F.3d at 556. Courts apply harmless error analysis “to preserve judgments and avoid waste of time.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per curiam) (“Procedural perfection in administrative proceedings is not required.”).

B. Evaluation Process

Under the Social Security Act, disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ․ 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); see 42 U.S.C. § 416(i). An ALJ evaluates disability claims according to a five-step sequential process: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe medically determinable impairment; (3) whether the claimant's impairment meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work. 20 C.F.R. § 404.1520(a)(4).

Between steps three and four, the ALJ determines the claimant's “residual functional capacity” (“RFC”). Id. § 404.1520(e). The RFC “is the most [the claimant] can still do” despite the limitations caused by her physical and mental impairments. Id. § 404.1545(a)(1). The ALJ then considers the RFC to make the step four and step five determinations. Id. § 404.1520(e).

At the first four steps, the claimant bears the burden of proving that she is disabled. Fraga v. Bowen, 810 F.2d 1296, 1301 (5th Cir. 1987). If the claimant meets this burden, at step five the burden shifts to the Commissioner “to show that there is other substantial gainful employment available that the claimant is capable of performing.” Id. at 1301–02. If the Commissioner satisfies this burden, “the burden then shifts back to the claimant to prove that [s]he is unable to perform the alternate work.” Id. at 1302.

C. The ALJ's Findings

In this case, at step one, the ALJ found that Moreno had not engaged in substantial gainful activity since December 13, 2016, the amended disability onset date. (R:59.) At step two, the ALJ found that Moreno had severe impairments of osteoarthritis and carpal tunnel syndrome, with other non-severe impairments including hypertension, gastroesophageal reflux disease (“GERD”), vocal polyps, asthma, depression, and anxiety. (R:60–62.) The ALJ also concluded that Moreno's fibromyalgia was not medically determinable. (R:60.) At step three, the ALJ found that Moreno did not have an impairment that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R:63.)

For Moreno's RFC, the ALJ determined that Moreno could perform sedentary work with the following limitations:

lift and carry up to 10 pounds occasionally, and less than 10 pounds frequently; stand and walk 2 hours, but sit for 6 hours; never climb ropes, ladders or scaffolds; unlimited balancing, occasional stooping, kneeling, crouching and crawling, climbing ramps and stairs; occasionally reach, handle and finger with the left upper extremity, frequently handle and finger with the right upper extremity, no limitations with reaching on the right upper extremity and no limitations with feeling, bilaterally.

(Id.) (citing 20 C.F.R. § 404.1567(a)); see also (R:65–67) (describing the RFC as sedentary).¹

At step four, the ALJ found that Moreno's RFC did not preclude her from performing her past relevant work as an appointment clerk and telemarketer. (R:67.) Therefore, the ALJ concluded, Moreno was not disabled from the amended disability onset date through the date of the ALJ's decision. (Id.)²

D. Analysis

Moreno makes two arguments for reversal of the ALJ's decision: (1) the ALJ improperly applied the legal standard for determining whether Moreno's fibromyalgia was a medically determinable impairment; and (2) the ALJ's RFC failed to account for all of Moreno's limitations opined by Dr. Robles. (ECF No. 14:8.)

1. Fibromyalgia as a Medically Determinable Impairment

As step two, the ALJ determines whether the claimant has a severe medically determinable impairment. Social Security Ruling 12-2p (“SSR 12-2p”) clarifies the process for determining whether a claimant's fibromyalgia is medically determinable. SSR 12-2p, 2012 WL 3104869 (July 25, 2012).

Fibromyalgia is “a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” Id. at *2. Symptoms of fibromyalgia include, inter alia, “muscle pain, ․ fatigue or tiredness, thinking or remembering problems, muscle weakness, headache, pain or cramps in the abdomen, numbness or tingling, ․ depression, ․ [and] nervousness.” Id. at *3 n.9. Broadly, SSR 12-2p requires that evidence of fibromyalgia come from a licensed “medical or osteopathic doctor.” Id. at *2. The ALJ looks for evidence that aligns with a fibromyalgia diagnosis, rather than “rely[ing] upon the physician's diagnosis alone.” Id. The ALJ also considers whether “the physician reviewed the person's medical history and conducted a physical exam” and assessed the claimant's symptoms over time. Id.

More specifically, SSR 12-2p outlines two tests for deciding whether a claimant's fibromyalgia is a medically determinable impairment: the 1990 American College of Rheumatology (“ACR”) Criteria for the Classification of Fibromyalgia (“1990 Test”) and the 2010 ACR Preliminary Diagnostic Criteria (“2010 Test”). Id. Both tests consist of three factors and share the same first and third factors: a “history of widespread pain” and “[e]vidence that other disorders that could cause the [fibromyalgia] symptoms ․ were excluded.” Id. at *2–3.³ For the second factor, the 1990 Test requires evidence of “[a]t least 11 positive tender points on physical examination,” while the 2010 Test requires evidence of “[r]epeated manifestations of six or more [fibromyalgia] symptoms ․, especially manifestations of fatigue, cognitive or memory problems ․, waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.” Id. at *3 (footnotes omitted). A claimant must satisfy at least one of these two tests to show that her fibromyalgia is a medically determinable impairment. Patrick v. Comm'r of Soc. Sec. Admin., No. 3:20-cv-333-TSL-MTP, 2022 WL 2813751, at *3 (S.D. Miss. June 30, 2022) (“The record must contain a physician's diagnosis of fibromyalgia and evidence to satisfy one of two tests ․”), report and recommendation adopted, 2022 WL 2813047 (S.D. Miss. July 18, 2022); Campbell v. Saul, No. 2:21-CV-00010, 2022 WL 17729261, at *14–15 (S.D. Tex. Aug. 10, 2022) (“Here, the ALJ failed to apply the proper legal standard because he did not consider both sets of criteria to determine whether [plaintiff's] fibromyalgia was a medically determinable impairment.”), report and recommendation adopted, 2022 WL 17722666 (S.D. Tex. Aug. 25, 2022); Hills v. Comm'r of Soc. Sec., No. 17-46-RLB, 2018 WL 1914291, at *3 (M.D. La. Apr. 23, 2018) (“The record must contain all three prongs of at least one of the two paths laid out in SSR 12-2p.”).

Moreno claims that the ALJ failed to properly apply SSR 12-2p when he determined that her fibromyalgia was not medically determinable. (ECF No. 14:11–12.) Specifically, Moreno argues that three of the ALJ's reasons for finding her fibromyalgia not medically determinable are incorrect. First, the ALJ stated that “the medical record contains no evidence showing that the claimant exhibits the symptoms associated with [fibromyalgia].” (Id. at 11) (quoting R:60). Moreno counters that “[t]he record is replete with symptoms associated with fibromyalgia.” (Id. at 12); see (id. at 12–14) (collecting record citations indicating symptoms of pain, depression, anxiety, tingling, numbness, and difficulties with memory and cognition).

Second, the ALJ found that “the record does not confirm that the claimant has the requisite number of tender point findings.” (Id. at 11) (quoting R:60). Moreno counters that the 2010 Test does not require such a finding—“[o]nly the 1990 [Test] in SSR 12-2p requires a certain number of tender points.” (Id. at 14.) She also points to “numerous occasions” in the record “where Plaintiff was found to have positive tender points on examination.” (Id.); see (id. at 14–15) (citing R:633, 644–46, 989). She argues that it can be presumed that she met the tender point requirements, or alternatively, the ALJ should have more fully developed the record to clarify whether she met the requirement. (Id. at 14–15.)

Third, the ALJ found “no evidence that medical doctors have excluded other impairments as required in SSR 12-2p.” (Id. at 12) (quoting R:60). Moreno points to examples of evidence in the record that, she says, rule out other impairments and “confirm[ ] fibromyalgia.” (Id. at 15) (citing R:451, 571, 600, 637, 814).

Overall, Moreno argues that the ALJ erred because the “overwhelming weight of the evidence” shows that she met both SSR 12-2p tests for fibromyalgia as a medically determinable impairment. (Id.); see (id. at 16); see also (id. at 8) (“Every physician who evaluated the Plaintiff opined that the Plaintiff has fibromyalgia.”).

In response, the Commissioner emphasizes that, under SSR 12-2p, “[a] claimant cannot establish fibromyalgia as a medically determinable impairment simply because a physician diagnoses it,” and “[a] physician's treatment notes must be consistent with a fibromyalgia diagnosis and show the physician's assessment over time of the claimant's strength and functional abilities.” (ECF No. 17:4) (citing SSR 12-2p, 2012 WL 3104869, at *2). But beyond restating the standard, the Commissioner does not address Moreno's SSR 12-2p error allegations. Rather, the Commissioner broadly argues, “[t]o the extent that the ALJ erred in this case by concluding that Plaintiff's fibromyalgia was not a medically determinable impairment,” Moreno has not shown harmful error. (Id. at 5.)

The Court finds that the ALJ spoke inaccurately when he stated that “the medical record contains no evidence showing that the claimant exhibits the symptoms associated with [fibromyalgia]”⁴ and that “there is no evidence that medical doctors have excluded other impairments [resembling fibromyalgia].”⁵ (R:60) (emphasis added). The record contains evidence of Moreno's symptoms of pain, depression, anxiety, tingling, numbness, and difficulties with memory and cognition. See (ECF No. 14:12–14) (collecting record citations).⁶ Regarding exclusions by doctors, although the ALJ discussed the deficiencies of Dr. Mark Francis's examinations, he did not address other doctors’ exclusions of impairments that could cause the same symptoms as fibromyalgia. (R:60); see (ECF No. 14:15) (citing R:451, 571, 600, 637, 814 to indicate evidence ruling out systemic lupus erythematosus, rheumatoid arthritis, inflammatory arthritis, and “other conditions”). Nor did the ALJ state that Moreno failed to meet the first prong of both tests, “history of widespread pain.” For these reasons, the ALJ's decision lacks an adequate analysis of either SSR 12-2p test, and the Court finds error. However, as discussed next, Moreno fails to show that such error is harmful.

a. Harmless Error

Moreno argues that the ALJ's SSR 12-2p error is prejudicial because, “had the ALJ properly included limitations arising from Plaintiff's fibromyalgia such as sever [sic] fatigue and widespread pain, she likely would have been found incapable of performing the job duties of her past relevant work as an appointment clerk or telemarketing representative.” (ECF No. 14:17.)⁷

The Commissioner responds that any such error is harmless because “Plaintiff has not shown that her fibromyalgia caused specific, work-related functional limitations beyond the ALJ's RFC finding.” (ECF No. 17:5–6.) Additionally, the Commissioner notes that medical examiners acknowledged Moreno's fibromyalgia but nonetheless deemed her capable of light or medium work, yet the ALJ more strictly limited Moreno to sedentary work. (Id. at 6) (citing R:63, 190–91, 203–04, 994–95).⁸

Moreno fails to show harmful error. A step two error is harmless if the ALJ considers symptoms of the impairment in question at subsequent steps. See Jones v. Bowen, 829 F.2d 524, 526 & n.1 (5th Cir. 1987) (per curiam); Herrera v. Comm'r of Soc. Sec., 406 F. App'x 899, 903 & n.2 (5th Cir. Dec. 30, 2010); Garcia v. Berryhill, 880 F.3d 700, 705 n.6 (5th Cir. 2018). Here, when the ALJ assessed Moreno's RFC, he considered Moreno's fibromyalgia symptoms of pain, tingling, numbness, and capacities of memory and cognition. See (R:64–66.) He also assessed symptoms of depression, anxiety, and fatigue at step two, without objection from Moreno. See (R:61–62.) Overall, Moreno has not convinced the Court that, had the ALJ properly assessed her fibromyalgia at step two pursuant to SSR 12-2p, the outcome of the case would have been different. Keel, 986 F.3d at 556. Thus, the error is harmless and does not warrant remand.⁹

2. Dr. Robles's Opinion

Additionally, Moreno states that the ALJ erred because, despite finding Dr. Robles's medical opinion persuasive, the ALJ failed to account for one of Dr. Robles's opined limitations in the RFC—i.e., that Moreno “would be ‘unable to grip things for prolonged periods of time’ ” due to carpal tunnel. (ECF No. 14:18) (quoting R:990).¹⁰ Moreno claims that such omission is prejudicial because “[a]ny significant manipulative limitation of an individual's ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base.” (Id.) (quoting SSR 96-9p, 1996 WL 374185, at *8 (July 2, 1996)). Further, Moreno points out that her past jobs of appointment clerk and telemarketer “each require good use of the hands” according to the U.S. Department of Labor's “Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles” (“SCO”). (Id.) (citing U.S. Dep't of Labor, Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles 336, 355 (1993)). Moreno also says that “[b]ecause gripping is not a category listed in the [Dictionary of Occupational Titles (“DOT”)] and the SCO, a vocational source must be contacted to determine what effect, if any, such limitation would have on the ability to work.” (Id. at 19.)¹¹

Moreno acknowledges Dr. Robles's statement that she “would have no limitations with reaching, grasping, handling, fingering, and feeling.” (Id.) (citing R:991). She also observes that “he checked that she would be restricted in performing all of these activities” in the later checkbox portion of the opinion. (Id.) (citing R:996). Moreno argues that “the ALJ should have resolved these inconsistencies” before deeming the opinion persuasive. (Id.) (citing Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000) for the ALJ's duty to “fairly and fully develop the record,” and Kneeland v. Berryhill, 850 F.3d 749, 760 (5th Cir. 2017) to say that the ALJ impermissibly “rejected portions of Dr. Robles’[s] opinion, specifically the gripping limitation”).

In response, the Commissioner notes that the ALJ need not speak to every limitation in a medical opinion. (ECF No. 17:8) (citing 20 C.F.R. § 404.1520c(a), (b)(1); Miller v. Kijakazi, No. 22-60541, 2023 WL 234773, at *4 (5th Cir. Jan. 18, 2023); Webster v. Kijakazi, 19 F.4th 715, 719 (5th Cir. 2021)). The Commissioner also states that “the ALJ provided a sufficient explanation for the persuasiveness of Dr. Robles’[s] opinion and incorporated most of his recommended restrictions into the RFC finding.” (Id.) (citing R:63, 66). Further, the Commissioner argues that “[t]he ALJ properly compensated for” the inconsistencies in Dr. Robles's opinion “by limiting Plaintiff to frequent handling and fingering with her right upper extremity and no more than occasional handling and fingering with her left upper extremity.” (Id. at 9) (citing R:63, 990, 996). Finally, the Commissioner claims that Moreno is asking the Court to reweigh the evidence, which it cannot do. (Id.) (citing Garcia, 880 F.3d at 704 and Miller, 2023 WL 234773, at *4).

Upon review of Dr. Robles's opinion and the ALJ's assessment of it, the Court finds that the ALJ did not err in his formulation of the RFC. The ALJ acknowledged that Dr. Robles's diagnoses of carpal tunnel and osteoarthritic pain were supported by objective evidence. (R:66) (citing R:552, 569, 644, 945–46, 977). The ALJ acknowledged Dr. Robles's statements about Moreno's limited ability to grip objects for prolonged periods of time, but instead framed the RFC to include limitations on reaching, handling, and fingering. (R:63, 65.) This is appropriately within his duty and discretion, so long as substantial evidence supports his decision. Webster, 19 F.4th at 718; Taylor v. Astrue, 706 F.3d 600, 602–03 (5th Cir. 2012).

The ALJ's decision is supported by substantial evidence. First, the Court notes that in Robles's checkbox form, he “restricted” Moreno to “frequent” use of both hands for reaching, handling, fingering, feeling, and pushing or pulling, which is less strict than the RFC in the disputed respects. (R:996); see (R:63); (ECF No. 14:18–19). Additionally, as the ALJ noted,

[t]here is no evidence of a documented need for any assistive device involving the use of both hands, inability to use one upper extremity for work activities requiring fine and gross movements with a documented need for a one-handed assistive device, or the inability to use both upper extremities to the extent that neither can be used independently for work-related activities involving fine and gross movements.

(R:63.) The ALJ further observed that “claimant is not under surgical management and has not lost major function of the upper extremities.” (Id.) Broadly, the ALJ recounted specific evidence as follows: Dr. Shrilekha Sairam's November 25, 2019, findings mainly concerning Moreno's pain (R:64) (citing R:566, 569, 571); emergency room records from March 12, 2020, showing minimal pain, no swelling or acute distress, and normal range of motion, strength, and sensation (R:64–65) (citing R:954–55); records from March 17, 2021, reflecting Moreno's complaints of pain in the leg, shoulder, hand, and wrist, denials of various joint issues, and examination results including a negative Romberg, “normal symmetrical strength, rapid alternating movements, symmetrical deep tendon reflexes[,] and intact symmetrical sensation” (R:65) (citing R:850, 852); and records from a July 2021 visit with Dr. Robles, during which Moreno described her symptoms and, upon examination, Dr. Robles found, inter alia, “no palpable muscle spasms and no atrophy,” “5/5 strength of the upper and lower extremities and normal sensory examination to light touch throughout,” “no joint swelling or effusion,” “mild hand DIP and PIP bony enlargements, but no overt effusion, erythema, or warmth to any of the affected joints,” and ability to “lift, carry, and handle light objects ․, turn a doorknob, shuffle papers, use a pen, manipulate a coin, button/unbutton a button, and use a zipper with both hands.” (Id.) (citing R:985–86, 989–90). The ALJ cited additional evidence of “normal range of motion” (R:881, 936, 968), “normal strength, normal posture, and gait” (R:845), and “no swelling” (R:843, 856, 879, 945, 947–48). (R:65.) “Despite complaints of carpal tunnel, she is able to prepare simple meals, do the laundry[,] and mop.” (Id.) (citing R:368). “When seen in March 2021, for medication review, she had a zero pain score.” (Id.) (citing R:927).

At Moreno's hearing, the VE testified that for the telemarketer position, DOT # 299.357-014, “[r]eaching is occasional, handling is occasional, [and] fingering is frequent.” (R:161.) For the appointment clerk position, DOT # 237.367-010, “reaching [and] handling [are] frequent,” with “fingering occasional.” (Id.) Based on the ALJ's RFC, the VE testified that Moreno could still work as an appointment clerk or telemarketer. (Id.; R:157.)

The foregoing constitutes “more than a mere scintilla” of evidence to support the ALJ's decision. Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (“Substantial evidence is defined as ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971))). With substantial evidence, there was no need for the ALJ to further develop the record, e.g., to resolve the alleged inconsistencies of Dr. Robles's opinion. Oderbert v. Barnhart, 413 F. Supp. 2d 800, 805 (E.D. Tex. 2006) (“Essentially, the [ALJ's] duty to re-contact [medical sources] is triggered when the evidence is insufficient to make an informed determination. No regulation, ruling, or court holding imposes a duty to re-contact a treating or other medical source simply because existing evidence is inadequate for a favorable determination.”). Because the ALJ did not err in his formulation of the RFC and his decision is supported by substantial evidence, remand is not warranted.

III. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that the decision of the Commissioner be AFFIRMED pursuant to 42 U.S.C. § 405(g).

SIGNED this 17th day of July, 2023.

NOTICE

FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THE FOREGOING REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.

FOOTNOTES

1.   The ALJ's decision is the final agency decision in Moreno's case because the Appeals Council denied Moreno's request for review in July 2022. R&R 1–2.

2.   A hard copy of the administrative record was submitted to the Court, but no copy is available through the Court's Electronic Case Filing System, CM/ECF.

1.   “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties.” 20 C.F.R. § 404.1567(a).

2.   The ALJ determined that Moreno would remain insured through December 31, 2021, so for DIB purposes, Moreno had to establish disability on or before that date. (R:58.)

3.   “Some examples of other disorders that may have symptoms or signs that are the same or similar to those resulting from [fibromyalgia] include rheumatologic disorders, myofacial pain syndrome, polymyalgia rheumatica, chronic Lyme disease, and cervical hyperextension-associated or hyperflexion-associated disorders.” SSR 12-2p, 2012 WL 3104869, at *3 n.7. Methods of ruling out such other disorders “may include imaging and other laboratory tests (for example, complete blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor).” Id. at *3.

4.   The Court presumes that the ALJ was referencing the second prong of the 2010 Test with this point, since he separately referenced the second prong of the 1990 Test by stating that “the record does not confirm that the claimant has the requisite number of tender point findings.” (R:60.)

5.   The Court presumes that the ALJ was referencing the third prong of both tests with this point.

6.   Indeed, the ALJ himself acknowledged some of this evidence in other parts of his opinion. See infra Sections II.D.1.a. and II.D.2.

7.   Moreno cites to case law in which the court found harmful error due to the ALJ's failure to properly evaluate fibromyalgia symptoms against appropriate listings at step three. (ECF No. 14:16) (citing McCurry v. Kijakazi, No. 1:21-CV-731-RP-SH, 2022 WL 3135753, at *4 (W.D. Tex. Aug. 5, 2022), report and recommendation adopted, No. 1:21-CV-731-RP, 2022 WL 17732696 (W.D. Tex. Sept. 26, 2022); Waterman v. U.S. Comm'r, Soc. Sec. Admin., No. 6:15-cv-02699, 2017 WL 1238042, at *10 (W.D. La. Jan. 18, 2017), report and recommendation adopted, 2017 WL 1238038 (W.D. La. Mar. 30, 2017)). However, the case here is different because Moreno does not allege a step three error—instead, she argues that the ALJ failed to consider fibromyalgia symptoms “in assessing the RFC.” (Id.); see McCurry, 2022 WL 3135753, at *2 (indicating that plaintiff argued step three error); Waterman, 2017 WL 1238042, at *10–11 (construing the argument as that of a step three error).

8.   A “light work” job “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds” and either “a good deal of walking or standing” or “sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b). A “medium work” job “involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” Id. § 404.1567(c).

9.   See, e.g., Hills, 2018 WL 1914291, at *5 n.2 (“[E]ven were the ALJ to have committed error at step two when he concluded that fibromyalgia was not a medically determinable impairment, any physical limitations in the record appear to have been incorporated into the ultimate RFC regardless.”); Enriquez v. Acting Comm'r of Soc. Sec. Admin., No. EP-3-17-CV-00329-RFC, 2018 WL 2293967, at *3 (W.D. Tex. May 18, 2018) (“The ALJ committed harmless error. Because this case does not turn upon a step two determination ․, and because all impairments were considered in the ALJ's formulation of Plaintiff's RFC, even if the ALJ erred in his finding that fibromyalgia was non-severe at step two, such error is harmless ․ In essence, this is not a case where the ALJ failed to consider the impairments at all.”); Eubanks v. Berryhill, No. 1:17-cv-161-MTP, 2018 WL 3520131, at *4 (S.D. Miss. July 20, 2018) (“After making her determination, the ALJ stated: ‘Nevertheless, should the [fibromyalgia] impairment be deemed medically determinable, the placement of the claimant at the sedentary exertional demand level accommodates any possible limitations associated with her alleged fibromyalgia.’ Because the ALJ considered Plaintiff's symptoms, including those associated with fibromyalgia, in formulating Plaintiff's RFC, any error committed at step two was harmless.” (citation omitted)); cf. Patrick, 2022 WL 2813751, at *4 (finding step two error harmful where ALJ made no mention at all of fibromyalgia).

10.   What the parties refer to as Dr. Robles's opinion (R:984–1000) consists of a few components: a “medical report” (R:985–91), a “Range of Joint Motion Evaluation Chart” (R:992–93), and a “Medical Source Statement of Ability to Do Work-Related Activities (Physical)” (R:994–99), as well as a few administrative forms (R:984, 1000). For simplicity and to align with the parties’ language, the Court refers to the documents as Dr. Robles's “opinion” generally. But the Court clarifies that, for purposes of 20 C.F.R. § 404.1520c compliance, “[n]ot all statements by medical providers are considered medical opinions.” William T. v. Comm'r of Soc. Sec., No. 6:18-CV-0055-BU, 2020 WL 6946517, at *3 (N.D. Tex. Nov. 25, 2020). “A medical opinion is a statement from a medical source about what [the claimant] can still do despite [her] impairment(s) and whether [she has] one or more impairment-related limitations or restrictions” in the ability to perform physical, mental, or other demands of work, or to adapt to environmental conditions. 20 C.F.R. § 404.1513(a)(2). By contrast, “[o]bjective medical evidence is medical signs, laboratory findings, or both.” Id. § 404.1513(a)(1). And “other medical evidence” includes “judgments about the nature and severity of” the claimant's impairments, her medical history, “clinical findings, diagnosis, treatment prescribed with response, or prognosis.” Id. § 404.1513(a)(3).

11.   Moreno provides no legal authority for this statement. She does, however, point out that “[t]ypically, it could be asserted that gripping is included with the vocational activity of handling objects, which is described as ‘[s]eizing, holding, grasping, turning, or otherwise working with the hand or hands. Fingers are involved only to the extent that they are an extension of the hand.’ ” (ECF No. 14:19) (quoting the Social Security Administration's Program Operations Manual System (“POMS”), Disability Insurance (“DI”) Section 25001.001(A)(36)).

KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE