The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRENDAN H., )
)
Plaintiff )
)
v. ) No. 2:22-cv-00340-LEW
)
KILOLO KIJAKAZI, )
Acting Commissioner of )
Social Security, )
)
Defendant )
REPORT AND RECOMMENDED DECISION
The Plaintiff in this Social Security Disability appeal contends that the
Administrative Law Judge (ALJ) erred in concluding that his alleged fibromyalgia
was not a medically determinable impairment. See Plaintiff’s Brief (ECF No. 17)
at 7-10. For the reasons that follow, I recommend that the Court affirm the
Commissioner’s decision.
I. Background
The ALJ found, in relevant part, that the Plaintiff (1) had a severe impairment
of ankylosing spondylitis, see Record at 56; (2) retained the residual functional
capacity (RFC) to perform light work except that he could frequently balance and
occasionally climb, stoop, kneel, crouch, and crawl, see id. at 57; (3) could perform jobs
existing in significant numbers in the national economy, see id. at 68; and
(4) therefore had not been disabled at any time from March 1, 2019, his alleged onset
date of disability, through the date of the decision, September 16, 2021, see id. at 53,
68-69. The Appeals Council denied the Plaintiff’s request to review the ALJ’s
decision, see id. at 28-31, making that decision the final determination of the
Commissioner, see 20 C.F.R. § 404.981.
II. Standard of Review
A final decision of the Commissioner is subject to judicial review to determine
whether it is based on the correct legal standards and supported by substantial
evidence. See 42 U.S.C. § 405(g); Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).
Substantial evidence in this context means evidence in the administrative record that
a reasonable mind could accept as adequate to support an ALJ’s findings. See Biestek
v. Berryhill, 139 S. Ct. 1148, 1154 (2019). If an ALJ’s findings are supported by
substantial evidence, they are conclusive even if the record could arguably support a
different result. See Irlanda Ortiz v. Sec’y of Health & Hum. Servs., 955 F.2d 765,
769 (1st Cir. 1991). But an ALJ’s findings “are not conclusive when derived by
ignoring evidence, misapplying the law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
III. Discussion
The ALJ acknowledged that the Plaintiff “was noted to have issues of
fibromyalgia/chronic tendinitis” but found no medically determinable impairment
(MDI) of fibromyalgia pursuant to Social Security Ruling (SSR) 12-2P. See Record
at 56. The Plaintiff challenges that finding, see Plaintiff’s Brief at 7-10, which the
Commissioner defends as supported by substantial evidence, see Commissioner’s
Response (ECF No. 18) at 2-7. The Plaintiff also asserts, and the Commissioner
contests, that evidence presented for the first time to the Appeals Council
demonstrates either harmful error or the ALJ’s failure to adequately develop the
record. See Plaintiff’s Brief at 6, 9-10; Commissioner’s Response at 6. As to both
points, the Commissioner has the better argument.
A. Challenge to ALJ’s Finding of No Fibromyalgia MDI
SSR 12-2P provides, in relevant part, that the Commissioner will find that a
claimant has a medically determinable impairment of fibromyalgia when a licensed
physician has diagnosed fibromyalgia and the claimant has provided evidence that
the condition meets either the 1990 American College of Rheumatology (ACR)
Criteria or the 2010 ACR Criteria. SSR 12-2P, 2012 WL 3104869, at *2-3 (July 25,
2012). Both the 1990 and 2010 ACR criteria also require a showing that “other
disorders that could cause” the symptoms, signs, and, in the case of the 2010 ACR
Criteria, co-occurring conditions, “were excluded.” Id. at *3.1
The ALJ found that the Plaintiff’s “primary care provider only vaguely noted
multiple trigger points involving the upper back and all 4 extremities,” which did not
“describe the tender points” required by SSR 12-2P. Record at 56. He added that
there was “no evidence other causes of alleged pain were ruled out and[,] notably, the
1 To satisfy the 1990 ACR Criteria, a claimant must also show (i) “[a] history of widespread pain”
(defined as “pain in all quadrants of the body” and “axial skeletal pain”) that “has persisted (or that
persisted) for at least 3 months,” and (ii) “[a]t least 11 [of 18 specified] positive tender points on
physical examination.” SSR 12-2P, 2012 WL 3104869, at *2-3. To satisfy the 2010 ACR Criteria, a
claimant must also show (i) “[a] history of widespread pain” and (ii) “[r]epeated manifestations of six
or more FM symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive
or memory problems (‘fibro fog’), waking unrefreshed, depression, anxiety disorder, or irritable bowel
syndrome.” Id. at *3 (footnotes omitted).
[Plaintiff] was treating with a rheumatologist for ankylosing spondylitis which would
account for the alleged symptoms.” Id.
The Plaintiff challenges this finding on the basis that the ALJ ignored evidence
that he underwent an extensive workup that failed to identify the cause of pain
symptoms that his providers believed were not fully explained by his ankylosing
spondylitis. See Plaintiff’s Brief at 8.2 He points to a March 4, 2021, note in which
treating physician Spiros P. Lazos, M.D., listed “fibromyalgia” among “Problem List
Items Addressed This Visit,” explaining:
Unstable – issues of chronic pain with current diagnosis of ankylosing
spondylitis followed by rheumatology. Continues to have periodic spasm
of multiple muscle groups, recurrent tendinopath[ie]s of the feet and
hands with periods of swelling. Extensive work-up thus far without
cause.
Record at 779; Plaintiff’s Brief at 8-9. Dr. Lazos also separately listed ankylosing
spondylitis as a problem addressed, describing it as “[p]rimary” and “[u]nstable,” with
the Plaintiff continuing “close followup with rheumatology.” Record at 780. He noted
that the Plaintiff had “[i]ssues of fibromyalgia/chronic tendinitis also.” Id.
As the Commissioner observes, see Commissioner’s Response at 5, the Lazos
note cannot fairly be read to exclude causes of specific symptoms other than
fibromyalgia. On the contrary, it indicates that at least some of the Plaintiff’s chronic
pain symptoms were or might be attributable to ankylosing spondylitis and/or
tendinitis. Thus, it stops short of demonstrating a medically determinable
2 The Plaintiff separately challenges the ALJ’s failure to find that he had six or more of the somatic
symptoms of fibromyalgia set forth in the 2010 ACR Criteria. See Plaintiff’s Brief at 8-9. I need not
reach that point because a failure to demonstrate the exclusion of alternative causes of a claimant’s
symptoms is fatal under both the 1990 and 2010 ACR criteria.
impairment of fibromyalgia. See, e.g., SSR 12-2P, 2012 WL 3104869, at *3 (requiring
“[e]vidence that other disorders that could cause” fibromyalgia symptoms, signs, or
co-occurring conditions “were excluded”); Sara J. H. v. Kijakazi,
No. 2:20-cv-00304-GZS, 2021 WL 4742708, at *4 (D. Me. Oct. 11, 2021) (rec. dec.)
(holding that a claimant’s reliance on a treating physician’s rule-out of four conditions
as causes for her symptoms did not suffice to show that causes other than
fibromyalgia had been ruled out when the physician noted that he felt the claimant
was suffering from as many as three other conditions at once), aff’d, 2021 WL 5041220
(D. Me. Oct. 27, 2021); Brown v. Berryhill, No. 1:17-cv-00104-MAT, 2018 WL 3996426,
at *3-4 (W.D.N.Y. Aug. 20, 2018) (holding that an ALJ supportably relied on the
testimony of a medical expert that a claimant could not have simultaneous diagnoses
of fibromyalgia and osteoarthritis when both diagnoses were predicated on the same
“one-time examination of [the claimant] and [the claimant’s] self-reported medical
history” and thus inconsistent with “fibromyalgia’s status as a diagnosis of
exclusion”).3
B. Reliance on Evidence Submitted to Appeals Council
The Plaintiff also seeks remand on the basis that evidence submitted for the
first time to the Appeals Council—a note of a November 11, 2021, visit to treating
rheumatologist Edward Fels, M.D., that postdated the ALJ’s decision by nearly two
3 At oral argument, the Plaintiff’s counsel further faulted the ALJ for overlooking the finding of agency
nonexamining consultant Sharon Hogan, M.D., on reconsideration that the Plaintiff had a medically
determinable impairment of “Disorders of Muscle, Ligament and Fascia,” which counsel posited
alluded to fibromyalgia. Record at 168. As the Commissioner’s counsel noted, Dr. Hogan explained
that her RFC finding was based on her acceptance of the Plaintiff’s diagnosis of ankylosing spondylitis.
See id. at 169-70. In any event, any error was rendered harmless by the ALJ’s adoption of the Hogan
RFC opinion. See id. at 66-67.
months—demonstrates both harmful error and the ALJ’s failure to adequately
develop the record by contacting Dr. Fels. See Plaintiff’s Brief at 9-10; Record
at 44-49.
To demonstrate harmful error based on evidence submitted for the first time
to the Appeals Council, a claimant must show either that (1) the evidence is new and
material and there is good cause for its belated submission or (2) the Appeals Council
gave an “egregiously mistaken ground” for its action in refusing review based on the
late-tendered evidence. Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001). The Plaintiff
does not attempt to make either showing, see Plaintiff’s Brief at 9-10, rendering this
point of error unpersuasive.
IV. Conclusion
For the foregoing reasons, I recommend that the Commissioner’s decision be
AFFIRMED.
NOTICE
A party may file objections to those specified portions of a Magistrate
Judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the District
Court is sought, together with a supporting memorandum, within fourteen
(14) days after being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the District Court and to appeal the District Court’s
order.
Dated: September 22, 2023
/s/ Karen Frink Wolf
United States Magistrate Judge