Jiminez Gonzalez v. Kijakazi

BELJICA Y. JIMINEZ GONZALEZ, Plaintiff, v. KILOLO KIJAKAZI, ^[1] Acting Commissioner of Social Security, Defendant.

Civil Action No. 3:21-cv-00012

United States District Court, M.D. Pennsylvania

April 6, 2022

MEMORANDUM

JOSEPH F. SAPORITO, JR., United States Magistrate Judge.

In this matter, the plaintiff, Beljica Y. Jiminez Gonzalez, seeks judicial review of the final decision of the Commissioner of Social Security denying her application for disability insurance benefits, pursuant to 42 U.S.C. § 405(g). The matter has been referred to the undersigned United States magistrate judge on consent of the parties, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

I. Background

On February 6, 2019, Gonzalez protectively filed a claim for disability insurance benefits, asserting a disability onset date of January 31, 2019. The claim was initially denied by state agency reviewers on May 28, 2019, and upon reconsideration on September 27, 2019. The plaintiff then requested an administrative hearing.

A hearing was subsequently held on March 24, 2020, before an administrative law judge, Lawrence J. Neary (the “ALJ”). In addition to the plaintiff herself, the ALJ received testimony from an impartial vocational expert Andrew Caporale. The plaintiff was represented by counsel at the hearing.

On April 7, 2020, the ALJ denied Gonzalez's application for benefits in a written decision. The ALJ followed the familiar five-step sequential evaluation process in determining that Gonzalez was not disabled under the Social Security Act. See generally Myers v. Berryhill, 373 F.Supp.3d 528 534 (M.D. Pa. 2019) (describing the five-step sequential evaluation process). At step one, the ALJ found that Gonzalez had not engaged in substantial gainful activity since her alleged disability onset date. At step two, the ALJ found that Gonzalez had the severe impairments of:

myofascial cervical pain; chronic bilateral low back pain without sciatica; diabetes; obesity; major depressive disorder; and unspecified anxiety disorder.

At step three, the ALJ found that Gonzalez did not have an impairment or combination of impairments that meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ considered Gonzalez's limitations in four broad functional areas as a result of her mental disorders, finding moderate limitations in three functional areas-(1) understanding, remembering, or applying information, (2) interacting with others, and (3) concentrating, persisting, or maintaining pace-and mild limitations in the fourth area-adapting or managing oneself. See generally 20 C.F.R. § 404.1520a(c) (explaining functional limitation rating process for mental impairments); 20 C.F.R. pt. 404, subpt. P, app.1, § 12.00(E) (explaining the four areas of mental functioning); id. § 12.00(F) (explaining process for using paragraph B criteria to evaluate mental impairments).

Between steps three and four of the sequential evaluation process, the ALJ assessed Gonzalez's residual functional capacity (“RFC”). See generally Id. at 534 n.4 (defining RFC). After evaluating the relevant evidence of record, the ALJ found that Gonzalez had the RFC to perform “light work” as defined in 20 C.F.R. § 404.1567(b), ^[2] with the following limitations:

[S]he can occasionally kneel, crouch, crawl, and climb ramps and stairs; and can never climb ladders, ropes or scaffolds. She has a mental capacity limited to simple, routine tasks with only occasional changes in the work setting. She can occasionally interact with supervisors, coworkers, and the public.

(Tr. 23.)

In making these factual findings regarding Gonzalez's RFC, the ALJ considered her symptoms and the extent to which they could reasonably be accepted as consistent with the objective medical evidence and other evidence of record. See generally 20 C.F.R. § 404.1529; Soc. Sec. Ruling 16-3p, 2017 WL 5180304. The ALJ also considered and articulated how persuasive he found the medical opinions and prior administrative medical findings of record. See generally 20 C.F.R. § 404.1520c.

At step four, based on this RFC and on testimony by the vocational expert, the ALJ concluded that Gonzalez was capable of performing her past relevant work as a hand packager, DOT # 920.587-018, as actually performed.^[3] Based on this finding, the ALJ concluded that Gonzalez was not disabled for Social Security purposes.^[4]

The plaintiff sought further administrative review of her claims by the Appeals Council, but her request was denied on December 1, 2020, making the ALJ's April 2020 decision the final decision of the Commissioner subject to judicial review by this court.

Gonzalez timely filed her complaint in this court on January 5, 2021. The Commissioner has filed an answer to the complaint, together with a certified copy of the administrative record. Both parties have filed their briefs, and this matter is now ripe for decision.

II. Discussion

Under the Social Security Act, the question before this court is not whether the claimant is disabled, but whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See generally 42 U.S.C. § 405(g)(sentence five); Myers, 373 F.Supp.3d at 533 (describing standard of judicial review for social security disability insurance benefits administrative decisions).

Gonzalez asserts on appeal that the ALJ's decision is not supported by substantial evidence because: (1) the ALJ erred in determining that her fibromyalgia was a non-medically determinable impairment at step two of the five-step sequential evaluation process, and in failing to consider this impairment in later steps; (2) the ALJ erred in finding certain of her impairments “not severe” at step two of the five-step sequential evaluation process, despite compelling evidence to the contrary; (3) the ALJ failed to properly evaluate prior administrative findings, including the medical opinions of non-examining state agency medical and psychological consultants; and (4) the ALJ failed to properly evaluate the medical opinion of her treating physician.^[5]

A. Step Two Non-Medically Determinable Impairment

At step two, the ALJ considered whether Gonzalez had a medically determinable impairment of fibromyalgia. The ALJ reviewed the medical evidence of record, stating:

The record also shows that the claimant was assessed with fibromyalgia; however, the record fails to establish consistent findings of 11 out of 18 tender points, treatment by a rheumatologist, or a need for significant ongoing treatment for fibromyalgia. The undersigned has considered [Social Security Ruling] 12-2p, and finds the requirement that other disorders or co-occurring conditions that could cause the claimant's symptoms were excluded has not been met. Therefore, the undersigned finds fibromyalgia is not a medically determinable impairment.

(Tr. 21.) As a consequence, the ALJ did not consider any impairments as a result of fibromyalgia in his evaluation of Gonzalez's RFC.

A “medically determinable impairment” is one “that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). The plaintiff points to multiple references in the medical records noting a diagnosis of fibromyalgia, as well as evidence of potential symptoms of fibromyalgia, and she argues that the ALJ erred in failing to consider her fibromyalgia under Social Security Ruling 12-2p.^[6]

In Ruling 12-2p, the agency described “the evidence we need to establish [a medically determinable impairment] of [fibromyalgia]” and how it evaluates that evidence. Soc. Sec. Ruling 12-2p, 2012 WL 3104869, at*2. In particular, the ruling provides that an ALJ “cannot rely upon the physician's diagnosis alone.” Id. The medical record must include not only a diagnosis of fibromyalgia, but also evidence meeting specific criteria set forth in Ruling 12-2p: (1) “[a] history of widespread pain-that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)-that has persisted . . . for at least 3 months”; (2) either (A) at least 11 of 18 positive tender points on physical examination, or (B) repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions; and (3) evidence that other disorders that could cause the symptoms or signs were excluded. Id. at *2-*3. Finally, the diagnosis of fibromyalgia must also not be inconsistent with other evidence in the record. Id. at *2.

The plaintiff's claim of error is entirely without merit. As evidenced by the passage quoted above, the ALJ explicitly considered whether she had a medically determinable impairment of fibromyalgia, and he explicitly considered the provisions of Social Security Ruling 12-2p. The third criteria specified above was dispositive, with the ALJ finding that the medical evidence of record failed to satisfy the Ruling 12-2p requirement that other disorders that could cause the claimant's symptoms were excluded. (See Tr. 21.)

Thus in the absence of sufficient evidence to satisfy the Ruling 12-2p criteria, we find there is substantial evidence to support the ALJ's finding that Gonzalez's fibromyalgia was not a medically determinable impairment. Moreover, because the ALJ is only required to consider medically determinable impairments, see 20 C.F.R. §§ 404.1521, 404.1545(a)(2), the ALJ's failure to consider the plaintiff's alleged fibromyalgia in determining her RFC was not in error. See Switzer v. Comm'r...