# Mix v. Commissioner of the Social Security Administration

> District Court, S.D. Texas · November 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10748410

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** November 20, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10748410

## How later opinions describe it (automated extraction)

- 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
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10748410. Public record. Not legal advice.