Mix v. Commissioner of the Social Security Administration

UNITED STATES DISTRICT COURT November 21, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

JESSICA M.,1 §

Plaintiff, §

§

v. § Case No. 4:23-cv-3702

§

MARTIN O’MALLEY, §

COMMISSIONER OF THE SOCIAL §

SECURITY ADMINISTRATION, §

Defendant. §

MEMORANDUM AND ORDER

Plaintiff Jessica M. (“Plaintiff”) filed this suit seeking judicial review of an

administrative decision. Pl.’s Compl., ECF No. 1. Jurisdiction is predicated upon

42 U.S.C. § 405(g).2 Plaintiff appeals from the decision of the Commissioner of the

Social Security Administration (“the Commissioner”) denying Plaintiff’s claim for

disability insurance benefits under Title II of the Social Security Act (“the Act”).

Plaintiff filed a brief, which the Court construes as a motion for summary judgment,

ECF No. 12, and the Commissioner filed a cross-motion for summary judgment,

ECF No. 20. Plaintiff seeks an order rendering benefits or remand for further

1 Pursuant to the May 1, 2018 “Memorandum Re: Privacy Concern Regarding Social Security and

Immigration Opinions” issued by the Committee on Court Administration and Case Management

of the Judicial Conference of the United States, the Court uses only Plaintiff’s first name and last

initial.

2 On December 15, 2023, based on the parties’ joint consent, the case was transferred to this Court

to conduct all proceedings pursuant to 28 U.S.C. § 636(c). Order, ECF No. 9.

consideration, arguing that the Administrative Law Judge (“ALJ”) failed to properly

analyze Plaintiff’s fibromyalgia at Step Two. ECF No. 12. The Commissioner

counters that substantial evidence supports the ALJ’s decision. ECF No. 20. Based

on the briefing, the record, and the applicable law, the Court finds that the ALJ failed

to properly evaluate Plaintiff’s fibromyalgia at Step Two. Therefore, Plaintiff’s

motion for summary judgment is granted, the Commissioner’s cross-motion is

denied, and this case is remanded to the Commissioner.

I. BACKGROUND

Plaintiff is 34 years old. R. 86. 3 Plaintiff attended some college, and

previously worked as a receptionist and a licensed practical nurse (“LPN”). R. 89,

93. Plaintiff alleges a disability onset date of August 31, 2019. R. 18, 86. Plaintiff

claims to suffer from physical limitations. R. 86.

On June 29, 2021, Plaintiff filed an application for disability insurance

benefits under Title II of the Act.4 R. 16, 200–01. Plaintiff based her application on

3 “R.” citations refer to the electronically filed Administrative Record, ECF No. 10.

4 For Plaintiff’s disability insurance benefits, the relevant period is August 31, 2019—Plaintiff’s

alleged onset date—through December 31, 2022—Plaintiff’s last insured date. R. 18. The Court

will consider medical evidence outside this period to the extent it demonstrates whether Plaintiff

was under a disability during this timeframe. See Williams v. Colvin, 575 F. App’x 350, 354 (5th

Cir. 2014); Loza v. Apfel, 219 F.3d 378, 396 (5th Cir. 2000).

primary immune deficiency, 5 inappropriate sinus tachycardia, 6 chronic

pancreatitis.7 R. 86. The Commissioner denied Plaintiff’s claim initially, R. 86–103,

and on reconsideration. R. 121–30.

An administrative hearing was held before an ALJ where Plaintiff was

represented by an attorney. Plaintiff and a vocational expert (“VE”) testified. R. 42–

84. The ALJ issued a decision finding Plaintiff not disabled and denied his request

for benefits.8 R. 13–33. The Appeals Council denied Plaintiff’s request for review,

5 Primary immunodeficiency disorders — also called primary immune disorders or primary

immunodeficiency — weaken the immune system, allowing infections and other health problems

to occur more easily. https://www.mayoclinic.org/diseases-conditions/primary-

immunodeficiency/symptoms-causes/syc-20376905 (last visited on September 19, 2024).

6 Inappropriate sinus tachycardia (IST) occurs when the heart beats very quickly without a good

reason. https://www.cedars-sinai.org/health-library/diseases-and-conditions/i/inappropriate-

sinus-tachycardia.html (last visited on September 19, 2024).

7 Chronic pancreatitis is a progressive disorder associated with the destruction of the pancreas.

https://pancreasfoundation.org/pancreas-disease/chronic-pancreatitis/ (last visited on September

19, 2024).

8 An ALJ must follow five steps in determining whether a claimant is disabled. 20 C.F.R.

§ 404.1520(a)(4). The ALJ here determined Plaintiff was not disabled at step four. R. 24. At step

one, the ALJ found that Plaintiff did not engage in substantial gainful activity since her alleged

onset date. R. 18 (citing 20 C.F.R. §§ 404.1571 et seq.). At step two, the ALJ found that Plaintiff

has the following severe impairments: asthma, allergic rhinitis, endometriosis, and common

variable immunodeficiency. R. 19 (citing 20 C.F.R. § 404.1520(c)). At step three, the ALJ

determined that Plaintiff did not have an impairment or combination of impairments that met or

medically equaled the severity of one of the listed impairments in the regulations that would lead

to a disability finding. R. 23 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). The ALJ then

found that Plaintiff had the RFC to perform sedentary work as defined in 20 CFR § 404.1567(a),

except she could occasionally climb ramps and stairs, balance, stoop, crouch, kneel, and crawl,

had to avoid concentrated exposure to environmental irritants (such fumes, odors, dusts, and

gases), poorly ventilated areas, chemicals, unprotected heights, and avoid concentrated use of

moving machinery. R. 22. At step four, the ALJ determined that Plaintiff was able to perform past

relevant work as a receptionist. R. 28 (citing 20 C.F.R. § 404.1565). The ALJ concluded that

Plaintiff was not disabled. R. 28.

upholding the ALJ’s decision to deny benefits. R. 3–8. Plaintiff appealed the

Commissioner’s ruling to this Court. ECF No. 1.

II. STANDARD OF REVIEW

The Social Security Act provides for district court review of any final decision

of the Commissioner that was made after a hearing in which the claimant was a

party. 42 U.S.C. § 405(g). In performing that review:

The court shall have power to enter, upon the pleadings and transcript

of the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner . . . , with or without remanding the cause

for a rehearing. The findings of the Commissioner . . . as to any fact, if

supported by substantial evidence, shall be conclusive[.]

Id. Judicial review of the Commissioner’s decision denying benefits is limited to

determining whether that decision is supported by substantial evidence on the record

as a whole and whether the proper legal standards were applied. Id.; Boyd v. Apfel,

239 F.3d 698, 704 (5th Cir. 2001); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).

“Substantial evidence” means “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019) (quotations omitted). It is “more than a scintilla but less than a

preponderance.” Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). The “threshold

for such evidentiary sufficiency is not high.” Biestek, 139 S. Ct. at 1154.

The Court weighs four factors to determine “whether there is substantial

evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of

treating and examining physicians; (3) subjective evidence of pain and disability;

and (4) the claimant’s age, education, and work history.” Conley-Clinton v. Saul,

787 F. App’x 214, 216 (5th Cir. 2019) (citing Martinez v. Chater, 64 F.3d 172, 174

(5th Cir. 1995)).

A reviewing court may not reweigh the evidence in the record, try the issues

de novo, or substitute its judgment for that of the Commissioner, even if the evidence

preponderates against the Commissioner’s decision. Brown v. Apfel, 192 F.3d 492,

496 (5th Cir. 1999). Even so, judicial review must not be “so obsequious as to be

meaningless.” Id. (quotations omitted). The “substantial evidence” standard is not a

rubber stamp for the Commissioner’s decision and involves more than a search for

evidence supporting the Commissioner’s findings. Singletary v. Brown, 798 F.2d

818, 822–23 (5th Cir. 1986); Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985).

Rather, a reviewing court must scrutinize the record as a whole, taking into account

whatever fairly detracts from the substantiality of evidence supporting the

Commissioner’s findings. Singletary, 798 F.2d at 823. “Only where there is a

‘conspicuous absence of credible choices or no contrary medical evidence’ will we

find that the substantial evidence standard has not been met.” Qualls v. Astrue, 339

F. App’x 461, 464 (5th Cir. 2009) (quotation omitted).

III. APPLICABLE LAW

A. Disability Insurance Benefits Under the Act.

The Act permits the payment of insurance benefits to persons who have

contributed to the program and who suffer a physical or mental disability. 42 U.S.C.

§ 423(a)(1)(D). These payments are referred to as disability insurance benefits.

Applicants must prove “disability” to qualify for benefits. Id. § 423(d)(1)(A).

“Disability” is defined 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.” Id. A physical or mental

impairment is defined as “an impairment that results from anatomical, physiological,

or psychological abnormalities which are demonstrable by medically acceptable

clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). “The suffering of

some impairment does not establish disability; a claimant is disabled only if he is

‘incapable of engaging in any substantial gainful activity.’” Anthony v. Sullivan, 954

F.2d 289, 293 (5th Cir. 1992) (quoting Milam v. Bowen, 782 F.2d 1284, 1286 (5th

Cir. 1987)).

B. The Shifting Burden of Proof.

The Act places the burden of establishing disability on the claimant. Perez v.

Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). To be entitled to disability insurance

benefits, a claimant “must show that he was disabled on or before the last day of his

insured status.” Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981).

The Commissioner applies a five-step sequential process to determine

disability status. Torres v. Colvin, No. 4:13-cv-2571, 2014 WL 4064002, at *6 (S.D.

Tex. Aug. 15, 2014). The claimant bears the burden of proof at the first four steps to

establish that a disability exists. Farr v. Astrue, No. G-10-205, 2012 WL 6020061,

at *2 (S.D. Tex. Nov. 30, 2012). The burden shifts to the Commissioner at step five

to show that the claimant can perform other work. Id. The burden then shifts back to

the claimant to rebut this finding. Id. If at any step in the process the Commissioner

determines that the claimant is or is not disabled, the evaluation ends. Id.

IV. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IS

GRANTED.

Plaintiff argues that the ALJ erroneously analyzed whether Plaintiff’s

fibromyalgia was a medically determinable impairment. ECF No. 12 at 15.

Specifically, the ALJ improperly dismissed Dr. Ko’s evaluation of Plaintiff’s tender

points and did not meaningfully evaluate the 2010 ACR criteria, which requires

repeated manifestations of six or more fibromyalgia symptoms, unlike the required

eleven in the 1990 ACR criteria. ECF No. 12 at 17–18. The Commissioner contends

that the ALJ properly considered Plaintiff’s fibromyalgia and found it was not a

medically determinable impairment. ECF No. 20 at 14. The Court agrees with

Plaintiff.

A. The ALJ Failed to Properly Analyze Plaintiff’s Fibromyalgia at Step

Two.

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).

Before this, the ALJ must decide whether claimants have a “medically determinable

physical or mental impairment,” because without a medically determinable

impairment, the claimants are deemed nondisabled. Id. § 404.1520(c).

SSR 12-2p9 delineates the process for determining whether a claimant’s

fibromyalgia is a severe medically determinable impairment. 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 *2.10 SSR 12-2p requires

evidence from a licensed “medical or osteopathic doctor,” but the ALJ looks for

evidence that aligns with a fibromyalgia diagnosis, rather than “rely[ing] upon the

9 Social Security Rulings (“SSR”) “are binding on all components of the Social Security

Administration” and they “represent precedent final opinions and orders and statements of policy

and interpretations that [the Social Security Administration] ha[s] adopted.” Davis v. Comm’r of

Soc. Sec., No. 6:21CV288-KNM, 2022 WL 16559140, at *9 (E.D. Tex. Oct. 31, 2022) (quoting

20 C.F.R. § 402.35(b)(2)). “The Commissioner issued SSR 12-2p in 2012 to provide guidance on

the evaluation of fibromyalgia.” Id. (citing SSR 12-2p, 2012 WL 3104869 (2012)).

10 Symptoms 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, 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. Id. at *3 n.9.

physician’s diagnosis alone,” and considers whether the physician reviewed the

claimant’s medical history, conducted a physical exam, and assessed the claimant’s

symptoms over time. Id. at *2.

SSR 12-2p outlines two tests: 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 involve three factors,

sharing the first and third factors: a “history of widespread pain” and “[e]vidence

that other disorders11 that could cause the [fibromyalgia] symptoms . . . were

excluded.” Id. at *2–3. 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 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. Campbell v. Saul,

No. 2:21-CV-00010, 2022 WL 17729261, at *14–15 (S.D. Tex. Aug. 10, 2022),

11 “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, myofascial pain syndrome,

polymyalgia rheumatica, chronic Lyme disease, and cervical hyperextension-associated or

hyperflexion-associated disorders.” Moreno v. Comm’r of Soc. Sec. Admin., No. EP-22-CV-358-

KC, 2023 WL 6621582, at *7 (W.D. Tex. Oct. 11, 2023) (quoting 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. (quoting SSR 12-2p, 2012 WL 3104869, at *3).

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).

Here, the ALJ detailed Dr. Ko’s examination findings over several months,

including multiple tender points, widespread pain, nonrestorative sleep, and chronic

insomnia, and noted: “[t]hough Dr. Ko was of the impression that claimant has

fibromyalgia, the identification of six tender points is not enough to establish

fibromyalgia under SSR 12-2p.” R. 20–21.12 Based on the above, the ALJ dismissed

Plaintiff’s fibromyalgia as not medically determinable. Id. But, under the 2010 Test,

“[r]epeated manifestations of six or more symptoms” satisfies the second factor.

SSR 12-2p (emphasis added). Arguably, the manifestations of six symptoms over a

couple of months, such as is described above, could meet this factor, but the ALJ did

not consider that in his written opinion. Moreover, the ALJ did not discuss the first

and third factors: a history of widespread pain and evidence that other disorders that

could cause the symptoms were excluded. See R. 20–21.13 Accordingly, the ALJ

failed to conduct the necessary analysis under SSR 12-2p, which is error. See

12 Dr. Ko’s examination notes from October 20, 2019, documented as ongoing problems: acute

and chronic abdominal pain, ANA positive, breast pain, chronic pancreatitis, constipation,

diarrhea, dysphasia, fatigue, fibrocystic breast disease, fibromyalgia, heart burn, IBS with

constipation, loss of appetite, nausea and vomiting, rectal bleeding. R. 772. On December 1, 2019,

Dr. Ko listed the same issues as ongoing problems. R. 775. Most of these ongoing problems are

symptoms of fibromyalgia. See footnote 10.

13 Notably, the Commissioner’s motion for summary judgment does not respond to the ALJ’s

failure to discuss these factors, but instead discusses Plaintiff’s medical records related to her

fibromyalgia diagnosis and attempts to undertake the missing SSR 12-2p analysis. See ECF No. 20

at 13–16.

Moreno v. Comm’r of Soc. Sec. Admin., No. EP-22-CV-358-KC, 2023 WL 6621582,

at *6–8 (W.D. Tex. Oct. 11, 2023) (finding error where ALJ did not discuss whether

the claimant met the first and third factors of SSR 12-2p, and inaccurately described

the record regarding the claimant’s symptoms).

B. The ALJ’s Error was Harmful.

If an ALJ determines that a claimant suffers from one or more severe

medically determinable impairments, then he moves on in the evaluation process.

See 20 C.F.R. § 404.1520(a)(4). At Step Three, an ALJ considers 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 the

severity of a claimant’s impairment matches the severity of an enumerated

impairment, the claimant is statutorily disabled. Id.; see also § 404.1520(d).

If, however, 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 her limitations. Id. § 404.1545(a)(1). Then, 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). In determining a

claimant’s RFC, an ALJ can only factor in symptoms objectively arising from

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 a claimant’s RFC,

considered along with her age, education, and work experience, renders her unable

to work, then she is disabled and eligible for benefits. Id. § 404.1520(a)(4)(v).

Here, the ALJ found Plaintiff had the following severe medically

determinable impairments: asthma, allergic rhinitis, endometriosis, and common

variable immunodeficiency. R. 19. At the same time, the ALJ erroneously decided

Plaintiff’s fibromyalgia did not meet the requirements for a medically determinable

impairment. R. 20–21. At Step Three, the ALJ found that Plaintiff did not have an

impairment or combination of impairments that met or medically equaled the

severity of a qualifying statutory disability. R. 22. Then, the ALJ determined

Plaintiff’s RFC, noting 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.” R. 22. 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. 22. 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. 23. The

ALJ then reviewed Plaintiff’s medical history and found that she had a sedentary

RFC. R. 22.

The ALJ’s failure to properly analyze Plaintiff’s fibromyalgia was a harmful

error for two reasons. First, if the ALJ found Plaintiff’s fibromyalgia was a medically

determinable impairment, then 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 Moreno,

2023 WL 6621582, at *3 (citing 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)). Other courts have found it is

reversible error to not consider whether a medically determinable diagnosis of

fibromyalgia qualifies a claimant for benefits because a claimant can establish

fibromyalgia is a qualifying disability at Step Three. See id. (citing Audler, 501 F.3d.

at 448–49; McCurry v. Kijakazi, No. 1:21-CV-731-RP-SH, 2022 WL 3135753, at

*4 (W.D. Tex. Aug. 5, 2022), 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), 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.”)). Therefore, 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. See id.

Second, the ALJ’s error 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. 22; 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.”). Prior to

this, the ALJ determined that Plaintiff’s fibromyalgia was not medically

determinable. R. 20 – 21. It necessarily follows that the RFC determination—which

was predicated upon the finding that Plaintiff’s statements about the intensity and

severity of her symptoms were inconsistent “with the medical evidence,” R. 23—

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 Moreno, 2023 WL 6621582, at *4 (citing 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),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”). By erroneously analyzing Plaintiff’s fibromyalgia and

subsequently finding it not medically determinable, the ALJ materially altered the

rest of the disability analysis. See id.

Accordingly, it is entirely plausible “that a different administrative conclusion

would have been reached” if the ALJ properly considered whether Plaintiff’s

fibromyalgia was medically determinable. Id. (citing Keel v. Saul, 986 F.3d 551, 556

(5th Cir. 2021) (citing Frank v. Barnhart, 326 F.3d 618, 622 (Sth Cir. 2003) (per

curiam))). The ALJ’s error was harmful."

Vv. CONCLUSION

It is therefore ORDERED that Plaintiff's motion for summary judgment, ECF

No. 12, is GRANTED, and the Commissioner’s cross-motion for summary

judgment, ECF No. 20, is DENIED. The Commissioner’s determination denying

Plaintiff disability benefits is VACATED and this case is REMANDED for further

proceedings consistent with this opinion.

IT IS SO ORDERED.

Signed at Houston, Texas, on November 20, 2024.

Dena Hanovice Palermo

United States Magistrate Judge

Plaintiff also argues that the ALJ failed to account for Plaintiffs mental impairments in his RFC

determination and the corresponding finding that Plaintiff could perform semi-skilled work. ECF

No. 12 at 9. Because the Court finds remand is appropriate on Plaintiff’s first point of error, it does

not address Plaintiff's remaining argument. These issues can be addressed on rehearing before the

ALJ.

16