# Bowers v. Commissioner of Social Security

> District Court, S.D. Ohio · November 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10383535

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** November 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10383535

## How later opinions describe it (automated extraction)

- holding that it was not harmless error for the ALJ to fail to analyze Step Three as to an impairment found to be severe at Step Two where the claimant put forth evidence that could meet the relevant listing

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

LAURA B.,1

Plaintiff,

v. Civil Action 2:22-cv-4253
Magistrate Judge Chelsey M. Vascura

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

OPINION AND ORDER
Plaintiff, Laura B. (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of
a final decision of the Commissioner of Social Security (“Commissioner”) denying her
application for Social Security Period of Disability and Disability Insurance benefits. This
matter, in which the parties have consented to the jurisdiction of the Magistrate Judge pursuant to
28 U.S.C. § 636(c), is before the undersigned for a ruling on Plaintiff’s Statement of Errors (ECF
No. 13), Commissioner’s Memorandum in Opposition (ECF No. 16), and the administrative
record (ECF No. 9). Plaintiff did not file a reply memorandum. For the reasons that follow,
Plaintiff’s Statement of Errors is OVERRULED and the Commissioner’s decision is
AFFIRMED.

1 Pursuant to this Court’s General Order 22-01, any opinion, order, judgment, or other
disposition in Social Security cases shall refer to plaintiffs by their first names and last initials.
I. BACKGROUND
Plaintiff protectively filed her application for Title II period of disability and disability
insurance benefits on October 13, 2020, alleging that she became disabled on May 10, 2019.
After Plaintiff’s applications were denied at the initial and reconsideration levels, an
administrative law judge (“ALJ”) held a telephone hearing on October 6, 2021, and issued an

unfavorable determination on November 1, 2021. That unfavorable determination became final
on September 27, 2022, when the Appeals Council denied Plaintiff’s request for review.
Plaintiff seeks judicial review of that final determination. Plaintiff asserts two contentions
of error: (1) the ALJ’s residual functional capacity (“RFC”) determination is not supported by
substantial evidence (specifically related to Plaintiff’s ability to stand and walk); and (2) the ALJ
erred in his analysis of Plaintiff’s fibromyalgia under Social Security Ruling 12-2p. (Pl.’s
Statement of Errors 4–11, ECF No. 13.) The undersigned disagrees.
II. THE ALJ’S DECISION
On November 1, 2021, the ALJ issued a decision finding that Plaintiff was not disabled
within the meaning of the Social Security Act. (R. 199–215.) At step one of the sequential
evaluation process,2 the ALJ found that Plaintiff had not engaged in substantially gainful activity
since the alleged onset date of May 10, 2019. (Id. at 201–02.) At step two, the ALJ found that
Plaintiff had the following severe impairments: degenerative disc and joint disease of the lumbar
spine and sacroiliac joints; sacroiliitis of the spine; fibromyalgia; obesity; and an adjustment
disorder with mixed anxiety and depression. (Id. at 202.) The ALJ also found that Plaintiff had

the following non-severe impairments: tachycardia; hypertension, hordeolum of the left lower
eyelid; and high cholesterol. (Id.) At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 203–05.) The ALJ
set forth Plaintiff's residual functional capacity (“RFC”) as follows:
[Plaintiff] has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) except [Plaintiff] could occasionally climb ramps/stairs, but
would be precluded from climbing ladders/ropes/scaffolds. She could occasionally
stoop, kneel, crouch, and crawl. The claimant should avoid workplace hazards, such
as unprotected heights and machinery. The claimant could perform simple, routine
and repetitive tasks, involving only simple work related decisions, with few if any
work place changes. She could work in a setting without strict production quotas

2 Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant’s severe impairments, alone or in combination, meet or equal the
criteria of an impairment set forth in the Commissioner’s Listing of Impairments, 20
C.F.R. Subpart P, Appendix 1?
4. Considering the claimant’s residual functional capacity, can the claimant perform his
or her past relevant work?
5. Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?
See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
or fast paced work, such as on an assembly line. The claimant could have occasional
interaction with the general public, coworkers, and supervisors, with no customer
service responsibilities.
(Id. at 205.)
The ALJ then determined at step four that that Plaintiff would be unable to perform her
past relevant work as either a loss prevention worker or private investigator. (Id. at 214.) At step
five, the ALJ, relying upon a vocational expert, found that jobs exist in significant numbers in
the national economy that an individual with Plaintiff’s age, education, work experience, and
residual functional capacity can perform, with representative occupations being mail sorter,
garment sorter, or marker. (Id. at 214–15.) The ALJ therefore concluded that Plaintiff was not
disabled under the Social Security Act during the relevant period. (Id. at 215.)
III. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm a decision
by the Commissioner as long as it is supported by substantial evidence and was made pursuant to
proper legal standards.” DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014)
(cleaned up); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). While this

standard “requires more than a mere scintilla of evidence, substantial evidence means only such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Moats
v. Comm’r of Soc. Sec., 42 F.4th 558, 561 (6th Cir. 2022) (cleaned up) (quoting Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“examine[ ] the record as a whole and take[ ] into account whatever in the record fairly detracts
from the weight” of the Commissioner’s decision. Golden Living Ctr.-Frankfort v. Sec’y Of
Health And Hum. Servs., 656 F.3d 421, 425 (6th Cir. 2011) (citing Universal Camera Corp. v.
NLRB, 340 U.S. 474, 487 (1951)).
Nevertheless, where “substantial evidence supports the Secretary’s determination, it is
conclusive, even if substantial evidence also supports the opposite conclusion.” Emard v.
Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020) (quoting Crum v. Sullivan, 921 F.2d 642,

644 (6th Cir. 1990)). Finally, even if the ALJ’s decision meets the substantial evidence standard,
“a decision of the Commissioner will not be upheld where the SSA fails to follow its own
regulations and where that error prejudices a claimant on the merits or deprives the claimant of a
substantial right.” Rabbers v. Comm’r Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
IV. ANALYSIS
As set forth above, Plaintiff asserts two contentions of error: (1) the ALJ’s residual
functional capacity determination is not supported by substantial evidence; and (2) the ALJ
failed to properly evaluate Plaintiff’s fibromyalgia under Social Security Ruling 12–2p. (Pl.’s
Statement of Errors 4–11, ECF No. 13.) The undersigned considers each contention of error in

turn.
A. The ALJ’s residual functional capacity determination that Plaintiff can perform
light work is supported by substantial evidence.
1. Standards Governing RFC Assessment
The determination of a claimant’s RFC is an issue reserved to the Commissioner.
Shepard v. Comm’r of Soc. Sec., 705 F. App’x 435, 442 (6th Cir. 2017) (“An RFC is an
‘administrative finding,’ and the final responsibility for determining an individual’s RFC is
reserved to the Commissioner.”). Nevertheless, substantial evidence must support the
Commissioner’s RFC finding. Berry v. Astrue, No. 1:09-cv-411, 2010 WL 3730983, at *8 (S.D.
Ohio June 18, 2010). The Social Security Act and agency regulations require an ALJ to
determine a claimant’s RFC based on the evidence as a whole. 42 U.S.C. §§ 423(d)(5)(B).
Consistently, Social Security Ruling 96-8p instructs that the ALJ’s RFC assessment must be
based on all of the relevant evidence in the case record, including factors such as medical history,
medical signs and laboratory findings, the effects of treatment, daily activities, lay evidence,

recorded observations, medical source statements, effects of symptoms, and evidence from
attempts to work. SSR 96-8P, 1996 WL 374184, at *5 (July 2, 1996). An ALJ must explain how
the evidence supports the limitations that he or she sets forth in the claimant’s RFC:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in the
case record were considered and resolved.
Id. at *7 (internal footnote omitted).
2. The ALJ did not err in determining Plaintiff’s RFC.
The ALJ found that Plaintiff could perform light work, but with the limitations that
Plaintiff could “occasionally climb ramps/stairs, but would be precluded from climbing
ladders/ropes/scaffolds” and “could occasionally stoop, kneel crouch, and crawl” and “should
avoid workplace hazards.” (R. 205.) The physical exertion requirements of light work are
defined as:
involv[ing] lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing,
or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these activities.
20 C.F.R. § 416.967(b). SSR 83-10 further explains that the “full range of light work requires
standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.
Sitting may occur intermittently during the remaining time.” 1983 WL 31251, at *6 (Jan. 1,
1983).
Plaintiff contends that the ALJ’s conclusion that Plaintiff can perform light work as

defined by 20 C.F.R. § 416.967(b) is not supported by substantial evidence, because “as the
evidence documents, [Plaintiff] lacks the ability to stand and walk for 6 hours out of an 8-hour
workday on a consistent basis.” (Pl.’s Statement of Errors 5, ECF No. 13.) Plaintiff asserts that
the record “consistently documents [her] difficulties with standing and walking” and that she
“has a long history of degenerative disc disease, lumbar spine; lumbar spondylosis; sacroiliitis;
fibromyalgia and numbness and tingling in the bilateral feet.” (Id. at 6.) Plaintiff testified at the
hearing that “she could stand in one place for a couple of minutes and walk for about ten
minutes, before changing positions or resting.” (Id.) She asserts that these complaints “are
supported by the objective evidence of record, including years of medical records documenting

ongoing pain, even with treatment including pain medication, physical therapy, lidocaine, and
steroid injections and left and right lateral ablations.” (Id. at 6.) Plaintiff asserts that the records
“consistently document difficulty transitioning from sitting to standing; an antalgic gait;
tenderness over the bilateral sacral spine; limited range of motion; and abnormality in muscle
tome [sic] in the lumbosacral spine.” (Id. at 6–7.)
An ALJ must “consider an individual’s statements about the intensity, persistence, and
limiting effects of symptoms, and . . . evaluate whether the statements are consistent with
objective medical evidence and the other evidence.” Snyder v. Comm’r of Soc. Sec., 2023 WL
3673265, at *5 (6th Cir. May 26, 2023) (quoting SSR 16-3p, 2016 WL 1119029, at *6 (Mar. 16,
2016)). The Regulations list a variety of factors an ALJ must consider in evaluating the severity
of symptoms, including a claimant’s daily activities; the location, duration, frequency and
intensity of pain; factors that precipitate or aggravate symptoms; the effectiveness and side
effects of medications; treatments other than medication; and any measures used to relieve pain
or other symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 16–3p, 2016 WL 119029, at *7.

The ALJ here thoroughly discussed the record evidence and concluded that the objective
evidence did not support Plaintiff’s subjective complaints:
The claimant does have underlying medically determinable impairments that could
reasonably cause some symptomatology. However, the pivotal question is not
whether such symptoms exist, but whether those symptoms occur with such
frequency, duration, or severity as to reduce the claimant’s residual functional
capacity as set forth above or to preclude all work activity on a continuing and
regular basis. In this case, a careful review of the record does not document
sufficient objective medical evidence to substantiate the severity of the pain and
degree of functional limitations alleged by the claimant.
(Id. at 211.) The ALJ noted that although Plaintiff had back pain, the record showed no evidence
of any “radicular symptoms and the [Plaintiff] maintained intake sensation and 5/5 strength in
the lower extremities with negative straight leg testing.” (R. 213) (see also id. at 209 (“While the
claimant reported needing a cane, the record supported no objective weakness in either lower
extremity showing 5/5 strength consistently in the lower extremities, citing no trigger points, and
evidencing consistently intact sensation with negative straight leg testing.”)). As to Plaintiff’s
back pain symptoms, the ALJ noted that Plaintiff reported 80 percent improvement in symptoms
with the use of a combination treatment of pain medications and ablation therapies (id. at 209),
and that her fibromyalgia condition was found stable with a combination of medications,
including Mobic, gabapentin and cyclobenzaprine (id.), which support his determination that
Plaintiff is capable of light work. See Smith v. Comm’r Soc. Sec., 564 F. App’x 758, 763 (6th Cir.
2014) (citing Hardaway v. Secretary, 823 F.2d 922, 927 (6th Cir. 1987) (evidence that medical
issues can be improved when using prescribed drugs supports denial of disability benefits)). The
ALJ also found that Plaintiff’s reported symptom severity was “inconsistent with her own self-
reported routine activities of daily living” (R. 211), which included independently caring for her
own personal needs, including hygiene and grooming; preparing meals and performing routine
household chores, with breaks, including laundry, dishes, dusting and cleaning; watering plants;

and driving. (Id.)
The ALJ was “not required to accept [Plaintiff’s] subjective complaints,” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003), and the ALJ’s conclusion that Plaintiff
could perform light work was supported by substantial evidence from the record. And “[a]s long
as substantial evidence supports the Commissioner’s decision, we must defer to it, even if there
is substantial evidence in the record that would have supported an opposite conclusion.” Warner
v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (citation omitted). The undersigned
therefore finds no error in the ALJ’s conclusion that Plaintiff can perform light work.
B. The ALJ did not err in his analysis of Plaintiff’s fibromyalgia.
Plaintiff contends that the ALJ erred in his consideration of Plaintiff’s fibromyalgia

pursuant to Social Security Ruling 12-2p, resulting in his failure to include accommodations in
his RFC determination for Plaintiff or to consider her inability to perform substantial gainful
activity on a sustained basis. (Pl.’s Statement of Errors 8–9, ECF No. 13.) Plaintiff also argues
that the ALJ erred in finding Plaintiff’s fibromyalgia did not medically equal a listing in 20 CFR
Part 404, Subpart P, Appendix 1. (Id. at 9–11.) The undersigned disagrees on both points.
1. The ALJ did not err in considering Plaintiff’s fibromyalgia when
determining Plaintiff’s RFC.
In support of her argument that the ALJ erred in his consideration of Plaintiff’s
fibromyalgia, Plaintiff argues “[h]ere, there is substantial evidence of widespread pain
throughout [Plaintiff’s] medical record, despite ongoing treatment and medications. Additionally,
the record consistently documents six or more fibromyalgia symptoms, signs, or co-occurring
conditions.” (Id. at 8) (citations omitted). Plaintiff further asserts that “the record is replete with
evidence that satisfies the requirements of SSR 12-2p.” (Id.)
Plaintiff’s reliance on SSR 12-2p is misplaced. SSR 12-2p deals primarily with the ALJ’s

determination of whether fibromyalgia constitutes a “medically determinable impairment” at step
two of the sequential evaluation process. Here, the ALJ found Plaintiff’s fibromyalgia to be a
severe medically determinable impairment. (R. 202.) Therefore, SSR 12-2p requires only that the
ALJ consider Plaintiff’s fibromyalgia in the remaining steps of the sequential evaluation process,
which the ALJ subsequently did. As the Sixth Circuit has explained:
SSR 12-2p describes criteria for establishing that a person has a medically
determinable impairment [ ] of fibromyalgia, SSR 12-2p, at *2–3, the sources of
evidence the ALJ may look to, id. at *3–4, and how a claimant’s subjective
assertions of pain and functional limitations are evaluated, id. at *4. [SSR 12-2p]
also states that fibromyalgia should be analyzed under the traditional five-step
evaluation process used for analyzing other claims for SSI. Id. at *5–6. Importantly,
. . . SSR 12-2p . . . merely provides guidance on how to apply pre-existing rules
when faced with a claimant asserting disability based on fibromyalgia.
Luukkonen v. Comm’r of Soc. Sec., 653 F. App’x 393, 398–99 (6th Cir. 2016). “[A] diagnosis of
fibromyalgia does not automatically entitle [a claimant] to disability benefits; particularly so
here, where there is substantial evidence to support the ALJ’s determination that [plaintiff’s]
fibromyalgia was improving or, at worst stable.” Vance v. Comm’r of Soc. Sec., 260 F. App’x
801, 806 (6th Cir. 2008) (emphasis in original) (citing Sarchet v. Chater, 78 F.3d 305, 306–07
(7th Cir. 1996) (“Some people may have a severe case of fibromyalgia as to be totally disabled
from working . . . but most do not and the question is whether [claimant] is one of the minority.”)
(citations omitted)). Accordingly, in cases involving fibromyalgia, an ALJ must “decide . . . if
the claimant’s pain is so severe as to impose limitations rendering her disabled.” Swain v.
Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 990 (N.D. Ohio 2003).
In his RFC determination, the ALJ described in more detail his consideration of
Plaintiff’s fibromyalgia, stating that she “reported generalized pain, noting she hurt all over and
had trouble moving in the morning . . . [and] was diagnosed with fibromyalgia.” (R. 209.) The

ALJ further noted, however, that Plaintiff was prescribed “Mobic, gabapentin, and
cyclobenzaprine” for pain and with “the combinations of medications, [Plaintiff’s] fibromyalgia
condition was found stable” and “[g]enerally, [Plaintiff] demonstrated normal sensory
examination and normal strength in the extremities.” (Id.). The ALJ also explained that the
record did not show that Plaintiff “was routinely seen by a rheumatologist”; that Plaintiff “was
not treated with physical or occupational therapy”; and that the record did not show any specific
‘trigger point’3 presence.” (Id.) The ALJ also explained that he had “afforded [Plaintiff] the
benefit of the doubt in considering her diagnosis, as it was routinely treated by a medical
professional.” (Id.) (emphasis added).

The ALJ did include Plaintiff’s fibromyalgia as one of the factors he considered that
justified (1) his “general reduction to light work” (R. 213), and (2) the additional imitations on
light work that he determined were appropriate for Plaintiff. (Id.) (“The undersigned finds the
limitations on climbing, stooping, kneeling, and crouching are supported by claimant’s spinal
degeneration, body habitus, and reports of widespread pain associated with fibromyalgia.”)
Plaintiff may disagree with the ALJ’s determination of how her fibromyalgia impacted her RFC,

3 Cf. SSR 12-2p(II)(A)(2) (requiring “[a]t least 11 positive tender points on physical
examination” to make a determination that a person has an MDI of fibromyalgia under the 1990
ACR Criteria for the Classification of Fibromyalgia); Swain, 297 F. Supp. 2d at 990 (“The
presence of these tender spots are the primary diagnostic indicator of the disease.”).
but the ALJ did factor her fibromyalgia into that determination. For the reasons set forth above
and in Part IV.A.2. of this opinion, the ALJ’s RFC determination was supported by substantial
evidence. Cf. Luukkonen, 653 F. App’x at 399 (dismissing plaintiff’s argument that the ALJ
failed to properly apply SSR 12-2p because any resulting error would have been harmless where
the ALJ considered plaintiff’s fibromyalgia a severe impairment at step two).

2. The ALJ did not err in finding Plaintiff’s impairments, including
fibromyalgia, did not medically equal a listing
Further, the undersigned finds no error in the ALJ’s conclusion at step three that Plaintiff
had failed to establish that she met or medically equaled a listing.
The ALJ indicated that “although [Plaintiff] has impairments that are considered to be
‘severe,’ there is little to no medical evidence in the record to support a finding that [Plaintiff’s]
impairments, singly or in combination, meet or equal the requirements set forth in the Listing of
Impairments (Appendix I, Subpart P, 20 CFR, Part 404).” (R. 204.) The ALJ then specifically
discussed several different listings. The ALJ discussed how the listings address obesity,
explaining that “Sections 1.00Q, 3.00I and/or 4.00F … provide[] guidance about the potential
effects obesity has in causing or contributing to the impairments of the musculoskeletal,
respiratory, and/or cardiovascular systems.” (Id.) The ALJ then noted that he “considered
Plaintiff’s fibromyalgia in accordance with SSR 12-2p.” (Id.) The ALJ also analyzed whether
Plaintiff’s mental impairments, “considered singly or in combination” met or medically equaled
listing 12.04 or 12.06. (Id.).

The Social Security regulations require the ALJ to find a claimant disabled if he meets or
medically equals a listing. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Sullivan v.
Zebley, 493 U.S. 521, 532 (1990). But neither the listings nor the Sixth Circuit require the ALJ to
“address every listing” or “to discuss listings that the applicant clearly does not meet.” Sheeks v.
Comm’r of Soc. Sec., 544 F. App’x 639, 641 (6th Cir. 2013). The ALJ should discuss the
relevant listing, however, where the record raises “a substantial question as to whether [the
claimant] could qualify as disabled” under a listing. Abbott v. Sullivan, 905 F.2d 918, 925 (6th
Cir.1990); see also Sheeks, 544 F. App’x at 641. The Sixth Circuit has held that “[a] claimant
must do more than point to evidence on which the ALJ could have based his finding to raise a

‘substantial question’ as to whether he has satisfied a listing.” Smith-Johnson v. Comm’r of Soc.
Sec., 579 F. App’x 426, 432–33 (6th Cir. 2014) (citing Sheeks, 544 F. App’x at 641–42).
“Rather, the claimant must point to specific evidence that demonstrates he reasonably could meet
or equal every requirement of the listing.” Id. (citing Zebley, 493 U.S. at 530 (“For a claimant to
show that his impairment matches a listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of the criteria, no matter how severely, does not qualify.”)
and Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011) (holding that it was
not harmless error for the ALJ to fail to analyze Step Three as to an impairment found to be
severe at Step Two where the claimant put forth evidence that could meet the relevant listing)).

Absent such evidence, the ALJ does not commit reversible error by failing to evaluate a listing at
Step Three. Smith-Johnson, 579 F. App’x at 433.
Plaintiff asserts that she has “documented diagnoses of fibromyalgia; chronic fatigue; co-
occurring conditions of depression and anxiety; numbess/tingling; muscle pain; tender points
throughout her body; GERD; and symptoms of memory loss and lack of concentration.” (Pl’s
Statement of Errors 10, ECF No. 13.) But Plaintiff must direct the Court to evidence in the
record that raises “a substantial question” as to whether her fibromyalgia and other impairments
meet or equals a particular listing. As Plaintiff notes, (Pl’s Statement of Errors 9, ECF No. 13),
although there is no listing for fibromyalgia, SSR 12-2p uses Listing 14.09D (inflammatory
arthritis) as an example listing that might be relevant for claimants with fibromyalgia. See SSR
12-2p, 2012 WL 3104869, at *6. However, Plaintiff does not assert that her fibromyalgia, alone
on in combination with her other impairments, medically equals Listing 14.09D; nor does she
identify any other listing that her fibromyalgia, alone or in combination with her other
impairments, allegedly medically equals. Accordingly, she has failed to raise a “substantial

question” as to whether her fibromyalgia and other impairments medically equal a listing and has
not established any error by the ALJ on this point.
V. DISPOSITION
In sum, from a review of the record as a whole, the Court concludes that substantial
evidence supports the ALJ’s decision denying benefits and that the ALJ’s decision was made
pursuant to proper legal standards. For the foregoing reasons, the Plaintiff’s Statement of Errors
is OVERRULED and the Commissioner of Social Security’s decision is AFFIRMED.

IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10383535. Public record. Not legal advice.