Bernhardt v. Social Security Administration

Filing 32

Proposed Findings and Recommended Disposition by Magistrate Judge Kirtan Khalsa. Objections to R&R due by 3/11/2019. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (tkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LISA BERNHARDT,
Plaintiff,
v.

USDC Civ. No. 17-1201 KG/KK

SOCIAL SECURITY ADMINISTRATION,
NANCY BERRYHILL, Acting Commissioner
of Social Security Administration,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION1
THIS MATTER is before the Court on the Social Security Administrative Record (Doc.
10) filed May 9, 2018, in support of Plaintiff Lisa Bernhardt’s (“Plaintiff”) Complaint (Doc. 1)
seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the
Social Security Administration (“Defendant” or “Commissioner”) denying Plaintiff’s claim for
Title II disability insurance benefits. On August 7, 2018, Plaintiff filed her Motion to Reverse or
Remand. (Doc. 23.) The Commissioner filed a Response in opposition on October 5, 2018
(Doc. 25), and Plaintiff filed a Reply on November 29, 2018 (Doc. 30).

The Court has

jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c).
Having meticulously reviewed the entire record and the applicable law and being fully advised in
the premises, the Court finds that the Motion is not well taken and recommends that it be
DENIED.
I.

Background and Procedural Record

1

United States District Judge Kenneth Gonzales entered an Order of Reference referring this case to the undersigned
to conduct hearings, if warranted, including evidentiary hearings and to perform any legal analysis required to
recommend to the Court an ultimate disposition of the case. (Doc. 15)

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Plaintiff alleges that she became disabled on August 17, 2009, at the age of 412 because
of post traumatic stress disorder (PTSD), irritable bowel syndrome (IBS), and seizure disorder.
(AR. 74) Although she did not allege fibromyalgia as a disabling condition in her application,
Plaintiff’s appeal centers on the Administrative Law Judge’s failure to address this condition in
determining that Plaintiff was not disabled. (Doc. 23 at 10-11.)
Plaintiff earned a bachelor’s degree in human resources management, and served in the
army for nearly twelve years until 1998, when she was discharged at the rank of staff sergeant.
(AR. 43-44.)

Thereafter, Plaintiff worked as a production planner for a company that

manufactured conveyor systems for paper companies, as an assistant librarian, as a substitute
teacher, as a sandwich maker at a Subway restaurant, and in the bakery and deli departments of a
grocery store. (AR. 44-50.) Plaintiff stopped working in June 2009 because of her medical
conditions. (AR. 50, 235.)
On June 25, 2013, Plaintiff filed an application for a period of disability and disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (AR. 11.)
Plaintiff’s application was denied initially on September 11, 2013 (AR. 73-83), and upon
reconsideration on June 12, 2014 (AR. 85-101). On August 12, 2014, Plaintiff requested a
hearing before an Administrative Law Judge (ALJ). (AR. 121.) ALJ David Bruce conducted a
hearing on July 8, 2016. (AR. 39.) Plaintiff appeared in person at the hearing with her Attorney,
Robert Gray.3 (AR. 39.) The ALJ took testimony from Plaintiff (AR. 42-61), and from an
impartial vocational expert (VE), Matthew Sprong (AR. 61-72.) On October 20, 2016, ALJ
Bruce issued an unfavorable decision. (AR. 11-31.) On October 25, 2017, the Appeals Council

2
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The alleged onset date was twelve days before Plaintiff’s forty-first birthday. (AR. 74)
Plaintiff is represented in this proceeding by Attorney Benjamin Decker. (Doc. 23 at 12.)

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denied Plaintiff’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner from which Plaintiff now appeals. (AR. 1.)
II. Applicable Law
A.

Disability Determination Process

An individual is considered disabled if she is unable “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.” 42 U.S.C. § 423(d)(1)(A) (pertaining to disability insurance
benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income
disability benefits for adult individuals). The Social Security Commissioner has adopted the
familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria
as follows:
(1)

At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”4 If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of his medical condition.

(2)

At step two, the ALJ must determine the severity of the claimed physical
or mental impairment(s). If the claimant does not have an impairment(s)
or combination of impairments that is severe and meets the duration
requirement, he is not disabled.

(3)

At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of
the regulations and meets the duration requirement. If so, a claimant is
presumed disabled.

(4)

If, however, the claimant’s impairments do not meet or equal in severity
one of the listings described in Appendix 1 of the regulations, the ALJ
must determine at step four whether the claimant can perform his “past
relevant work.” Answering this question involves three phases. Winfrey v.

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Substantial work activity is work activity that involves doing significant physical or mental activities. 20
C.F.R. §§ 404.1572(a), 416.972(a). Work may be substantial even if it is done on a part-time basis or if you do less,
get paid less, or have less responsibility than when you worked before. Id. Gainful work activity is work activity
that you do for pay or profit. 20 C.F.R. §§ 404.1572(b), 416.972(b).

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Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all
of the relevant medical and other evidence and determines what is “the
most [claimant] can still do despite [her physical and mental] limitations.”
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant’s
residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3),
416.945(a)(3). Second, the ALJ determines the physical and mental
demands of claimant’s past work. Third, the ALJ determines whether,
given claimant’s RFC, the claimant is capable of meeting those demands.
A claimant who is capable of returning to past relevant work is not
disabled.
(5)

If the claimant does not have the RFC to perform his past relevant work,
the Commissioner, at step five, must show that the claimant is able to
perform other work in the national economy, considering the claimant’s
RFC, age, education, and work experience. If the Commissioner is unable
to make that showing, the claimant is deemed disabled. If, however, the
Commissioner is able to make the required showing, the claimant is
deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has
the initial burden of establishing a disability in the first four steps of this analysis. Bowen v.
Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden
shifts to the Commissioner at step five to show that the claimant is capable of performing work
in the national economy. Id. A finding that the claimant is disabled or not disabled at any point
in the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of Health &
Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).
B.

Standard of Review

This Court must affirm the Commissioner’s denial of social security benefits unless
(1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the
proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004);
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Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the
evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v. Astrue, 511 F.3d
1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported
by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed
by other evidence in the record[,]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide
this court with a sufficient basis to determine that appropriate legal principles have been
followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an
ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the
ALJ considered all of the evidence,” and “the [ALJ’s] reasons for finding a claimant not
disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996).
III.

Analysis

The ALJ made his decision that Plaintiff was not disabled at step five of the sequential
evaluation.

Specifically, the ALJ found that Plaintiff met the insured status requirements

through June 30, 2015, and had not engaged in substantial gainful activity from the alleged onset
date of August 17, 2009 through her date last insured of June 30, 2015. (AR. 13.) The ALJ
determined at step two that Plaintiff had severe impairments of depressive and post-traumatic
stress disorders, an ethanol use disorder, degenerative changes to the cervical spine, chronic
obstructive pulmonary disease, a seizure disorder, and benign paroxysmal positional vertigo.
(AR. 14.)

The ALJ also found that Plaintiff had the following non-severe impairments:

hyperlipidemia, a hiatal hernia, gastroesophageal reflux disease, anemia, irritable bowel

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syndrome, hypertension, allergic rhinitis and rhinosinusitis, impaired hearing, a history of
impaired liver function, neuropathy of the bilateral lower extremities, and thyroid dysfunction.
(AR. 14.) The ALJ determined at step three that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1, specifically, 20 C.F.R. 404.1520(d), 404.1525 and
404.1526. (AR. 18.) The ALJ found that Plaintiff had the residual functional capacity to
perform light work as defined in 20 C.F.R. 404.1567(b)
except that [Plaintiff] was further limited to work requiring no climbing of ladders
ropes, or scaffolds, which avoided any exposure to unprotected heights, moving
mechanical parts, and operating a motor vehicle as part of the job, which did not
require concentrated exposure to dust, fumes, odors, gases, pulmonary irritants,
weather, or extremes of heat and cold, and which was comprised of simple tasks
and simple work-related decisions with no more than occasional contact with coworkers and supervisors and no more than frequent contact with the public.
(AR. 21.) Based on the RFC and the testimony of the VE, the ALJ concluded that Plaintiff was
unable to perform past relevant work, but that there were jobs in significant numbers in the
national economy that she could perform. (AR. 29-30.) As such, the ALJ determined that
Plaintiff was not disabled. (AR. 31.)
In the Motion, Plaintiff argues (1) that the ALJ erred in failing to find that fibromyalgia
was among Plaintiff’ severe impairments at step two of the sequential evaluation, and (2) that the
ALJ erred in his RFC because he did not attribute Plaintiff’s complaints of disabling knee, hip,
and shoulder pain to fibromyalgia. (Doc. 23 at 10-11; Doc. 30 at 2-3.) The Commissioner
argues that the ALJ’s failure to address Plaintiff’s fibromyalgia was harmless error, and that the
ALJ’s RFC analysis appropriately accounted for Plaintiff’s limitations. (Doc. 25 at 8-12.)
Medical Evidence of Fibromyalgia5

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Because Plaintiff’s arguments are limited to the issue of the ALJ’s failure to address fibromyalgia, the Court limits
its discussion of Plaintiff’s medical records to those that pertain to this condition.

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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.” SSR 12-2P, 2012 WL 3104869, *2 (July 25, 2012). State agency medical consultant,
Pat Chan, M.D., reviewed Plaintiff’s records and concluded, in June 2014, that Plaintiff had a
severe impairment of fibromyalgia. (AR. 93.) Plaintiff’s medical records reflect that she has a
history of joint pain that began as early as 1994. (Ar. 491, 1323.6) In July 2010, the Department
of Veterans Affairs (VA) granted Plaintiff disability and unemployability benefits based on
“fatigue, joint pains, muscle pains and cramps as due to a qualifying chronic disability” among
other conditions. (AR. 207, 219.) This condition accounted for 20% of Plaintiff’s 100%
disability rating. (AR. 207.) And VA records from 2011 through 2014 reflect that fibromyalgia
accounted for 20% of Plaintiff’s “rated disabilities.” (AR. 420-21, see AR. 367, 377, 380, 38485, 387, 390, 397-403, 408-09, 417-18, 420-21, 1109-10, 1270-71.) However, treatment notes
from Plaintiff’s VA medical providers from 2011-2013 do not reflect a fibromyalgia or a joint
pain diagnoses among Plaintiff’s enumerated medical problems, nor do they reflect that Plaintiff
had any limitations arising from these conditions. (See e.g., AR. 997-99 (5/9/2011), 990-91
(5/17/2011), 859 (4/12/2012), 796-97 (8/14/2012), 1112-13 (8/21/2013), 1200-04 (10/4/2013),
1154 (12/9/2013), 722-24 (4/15/2013), 1472-73 (11/12/2013).) “Primary fibromyalgia
syndrome” appears in a “computerized problem list” generated as part of the progress notes
related to a mental health residential rehabilitation program that Plaintiff entered in February
2014, and treatment notes from Plaintiff’s group therapy sessions during that program reflect that
Plaintiff has a fibromyalgia diagnosis. (AR. 1800, 1829, 1860-63.) However, these notes do not
indicate that fibromyalgia caused Plaintiff any limitations, nor do they reflect that Plaintiff was

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These records indicate that Plaintiff’s joint pain is not related to any activity, it happens spontaneously, and that
Plaintiff was treating the pain with ibuprofen, and sometimes chiropractic care. (AR. 491,1323)

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receiving treatment for that condition.

In sum, medical evidence related to Plaintiff’s

fibromyalgia condition is scant; and insofar as the record reveals, none of Plaintiff’s treating or
examining medical providers opined that fibromyalgia limits Plaintiff’s work-related capabilities.
Plaintiff Has Not Demonstrated that the ALJ’s Failure to Address Fibromyalgia is
Reversible Error
“It is beyond dispute that the burden to prove disability in a social security case is on the
claimant.” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997); see Bowen, 482 U.S. at
146, n.5 (stating that the claimant bears the burden at steps one through four of the sequential
evaluation of establishing a disability). And an ALJ is generally entitled to rely on claimant to
allege impairments, and to rely on the claimant’s counsel to structure and present the claimant’s
case in a way that ensures her claims are adequately explored. Wall v. Astrue, 561 F.3d 1048,
1062 (10th Cir. 2009). Here, not only did Plaintiff fail to include fibromyalgia among her list of
alleged impairments in her disability application, but neither she nor her counsel raised the issue
of Plaintiff’s fibromyalgia before the ALJ. (AR. 85, see AR. 39-72.) Moreover, there is sparse
evidence in the record pertaining to Plaintiff’s fibromyalgia.

And there is an absence of

evidence pertaining to the origin of Plaintiff’s fibromyalgia diagnosis, Plaintiff’s treatment for
the condition, or opinions from any treating physicians regarding Plaintiff’s fibromyalgia-related
limitations. Under these circumstances, the fact that the ALJ did not address fibromyalgia is
neither surprising nor erroneous. See id. at 1062 (“ALJs are not required to exhaust every
possible line of inquiry in an attempt to pursue every potential line of questioning. The standard
is one of reasonable good judgment.”); Hawkins, 113 F.3d at 1167 (“Ordinarily, the claimant
must in some fashion raise the issue sought to be developed” and “to make sure there is, in the
record, evidence sufficient to suggest a reasonable possibility that a severe impairment exists.”).

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The ALJ Did Not Commit Reversible Error at Step Two
Although she failed to identify fibromyalgia among her disabling conditions in her
application for disability benefits or in her hearing testimony, Plaintiff argues that the ALJ erred
at step two of the sequential evaluation by not considering fibromyalgia as the cause of her knee,
hip, and shoulder pain. (Doc. 23 at 10.) Defendant argues that the ALJ would have found
Plaintiff’s allegations of pain credible had he considered that fibromyalgia produces “real pain
that cannot be proven through objective medical evidence.” (Doc. 23 at 11.) However, this
argument is not rationally or evidentiarily supported.
As an initial matter, the ALJ’s decision does not suggest that he disbelieved that Plaintiff
has “real” knee, hip, and shoulder pain. Instead, his credibility determination was focused on the
degree to which this pain limited Plaintiff’s ability to engage in basic work activity. (AR. 18.) In
that regard, the ALJ noted that Plaintiff testified that she could not stand on her feet for any
amount of time, and that the pain that she experienced significantly impacted her ability to move
about and manipulate objects.7 (AR. 18.) However, the ALJ observed that Plaintiff’s allegations
of pain-related limitations were unsupported by objective medical evidence, and that x-rays from
2010, 2011, and 2012 showed no significant degenerative changes. (AR. 17-18.) The ALJ also
noted that the absence of more recent objective medical evidence to support her allegations of
pain was the result of Plaintiff’s failure to pursue treatment. (AR. 18.) Additionally, the ALJ
noted, and the record reflects that in 2014, Plaintiff was able to perform several activities that
belied her contention about the severity of her limitations. For example, in 2014, Plaintiff was
able to do tai chi, yoga, and sixty-minute fitness walks. (AR. 18, 1841, 1866, 1882, 1883-85.)
The record also reflects that Plaintiff reported in 2011 that she was “exercising a lot” and

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Plaintiff also testified at the hearing that she has pain in “all different parts of [her] body” that she treats with
Tylenol. (AR. 50-51.)

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walking on a treadmill for 45 minutes at a time until her gynecologist advised her to stop losing
weight” (AR. 425); and that in 2012 Plaintiff was regularly walking 3-4 miles each day. (AR.
382.) In sum, the record does not reflect that any treating physician opined that Plaintiff’s knee,
shoulder or hip pain caused the significant limitations alleged by Plaintiff; and the ALJ’s
credibility determination regarding the severity of Plaintiff’s pain is supported by the evidence of
record.

Under these circumstances, the Court will not disturb the ALJ’s credibility

determination. White v. Barnhart, 287 F.3d 903, 909-10 (10th Cir. 2001) (recognizing that the
Court is compelled to accept an ALJ’s credibility determinations regarding a claimant’s
subjective description of pain symptoms when the determination is linked to specific findings of
fact and supported by substantial evidence); Butler v. Astrue, 410 F. App’x 137, 140 (10th Cir.
2011) (holding that an “absence of medical entries reflecting complaints as severe as [the
claimant’s] testimony at the hearing support[ed] the ALJ’s credibility determination” regarding
the extent of the claimant’s pain).
The Court is not persuaded that the ALJ erred in failing to include fibromyalgia among
Plaintiff’s severe impairments at step two of the sequential evaluation. However, even were the
Court to agree with Plaintiff’s contention that the ALJ erred in that regard, it is well established
that any error at step two becomes harmless where the ALJ proceeds to the next step instead of
conclusively denying benefits at step two. (Doc. 23 at 10.) Carpenter v. Astrue, 537 F.3d 1264,
1266 (10th Cir. 2008); Hill v. Astrue, 289 F. App’x 289, 292 (10th Cir. 2008) (“Once the ALJ
finds that the claimant has any severe impairment, he has satisfied the analysis for purposes of
step two.”); Oldham v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2007) (rejecting the claimant’s
argument that the ALJ erred in failing to determine that she had certain severe impairments at
step two because the ALJ made an explicit finding that the claimant suffered from severe

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impairments, and nothing further was required). Here, the ALJ found that Plaintiff had several
severe impairments at step two, and appropriately proceeded to the next steps of the sequential
evaluation.

Assuming that his failure to find that fibromyalgia was a severe impairment

constituted error, the error does not require reversal. Hill, 289 F. App’x at 292.
The ALJ’s RFC Analysis Does Not Reflect Reversible Error
Plaintiff argues, further, that the ALJ committed reversible error by failing to include an
explicit function-by-function analysis of the sitting, standing, walking, pushing, pulling,
kneeling, stooping or bending limitations caused by Plaintiff’s fibromyalgia condition. (Doc. 23
at 11; Doc. 30 at 3.) In support of this argument, Plaintiff cites SSR 96-8P, which provides, in
part, that
[t]he RFC assessment is a function-by-function assessment based upon all of the
relevant evidence of an individual’s ability to do work-related activities. At step 4
of the sequential evaluation process, the RFC must not be expressed initially in
terms of the exertional categories of ‘sedentary,’ ‘light,’ ‘medium,’ ‘heavy,’ and
‘very heavy’ work because the first consideration at this step is whether the
individual can do past relevant work as he or she actually performed it.
RFC may be expressed in terms of an exertional category, such as light, if it
becomes necessary to assess whether an individual is able to do his or her past
relevant work as it is generally performed in the national economy. However,
without the initial function-by-function assessment of the individual’s physical
and mental capacities, it may not be possible to determine whether the individual
is able to do past relevant work as it is generally performed in the national
economy because particular occupations may not require all of the exertional and
nonexertional demands necessary to do the full range of work at a given
exertional level.
1996 WL 374184, at *3 (italics added). Relying on the italicized portion of this ruling, taken out
of context, Plaintiff argues that the ALJ erred in summarily concluding that Plaintiff was limited
to “light work.” (Doc. 23 at 11.) She maintains that if the ALJ had conducted a proper analysis,
“he would have caught that Plaintiff’s allegations of limitation in these domains were easily

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explained by her fibromyalgia diagnosis.” (Doc. 30 at 3.) These arguments do not demonstrate
grounds for reversal.
First, the Court is not persuaded that the ALJ’s decision was inconsistent with SSR 968P. The ALJ found that Plaintiff was limited to “light work as defined in 20 CFR 404.1567(b)”
subject to enumerated limitations including, among others: no climbing of ladders, ropes, or
scaffolds, avoiding unprotected heights, moving mechanical parts, and operating a motor vehicle.
(AR. 21.) “Light work” is defined in 20 C.F.R. § 404.1567(b) as work that “involves lifting no
more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds.”

Such jobs may require “a good deal of walking or standing” or “sitting most of the

time with some pushing and pulling of arm or leg controls.” Id. And someone who can do light
work can also do “sedentary work” as defined in subsection (a) of the same regulation. Id. The
ALJ, having assessed that Plaintiff is capable of “light work” as defined by regulation, also
identified and enumerated several specific additional exertional limitations. (AR. 21.) In his
analysis, the ALJ considered each of Plaintiff’s symptoms to the extent that they were consistent
with the evidence of record, and ultimately determined that Plaintiff was unable to perform any
past relevant work because the work that Plaintiff performed in her past jobs exceeded her
exertional capacity. (AR. 22-30.) The ALJ’s analysis of Plaintiff’s RFC included a discussion
of Plaintiff’s “joint pain.” 8 Insofar as the ALJ’s decision clearly reflects his reasoning regarding
Plaintiff’s exertional limitations vis a vis her ability to perform past relevant work, Plaintiff’s

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While the ALJ did not identify fibromyalgia in his RFC evaluation, he observed that as of May 6, 2010, the VA
included “joint pain” among the conditions contributing to Plaintiff’s disability rating. (AR. 28.) As to the VA
disability rating, the ALJ reasoned that “[t]he system used to assess disability by the Veterans Administration is
inherently different than that used by the Social Security Administration. While the totality of the evidence does
indicate that the claimant’s . . . physical impairments did impede her ability to perform . . . all work that existed in
the national economy . . . the impairments did not so limit her as to preclude performance of work activity entirely.
As such the [VA’s] assessments are given weight only to the extent that they are consistent with the” RFC
assessment. (AR. 28.)

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argument that the ALJ committed reversible error by “summarily” concluding that Plaintiff was
limited to “light work” in violation of SSR 96-8P is not persuasive. See Hendron v. Colvin, 767
F.3d 951, 957 (10th Cir. 2014) (stating that if the Court can follow an ALJ’s reasoning and
discern that he has applied the correct legal standards, his failure to include an explicit functionby-function analysis of a claimant’s RFC does not constitute reversible error).
The Court is not persuaded that the ALJ’s failure to identify Plaintiff’s fibromyalgia
diagnosis affected the outcome of his decision.

Plaintiff’s argument to the contrary rests

primarily on the fact that state agency medical consultant, Dr. Chan, found Plaintiff’s
fibromyalgia to be a severe impairment. (Doc. 23 at 11.) However, in assessing Plaintiff’s RFC,
the ALJ gave Dr. Chan’s opinion “great weight”; and Dr. Chan, having considered Plaintiff’s
“severe” fibromyalgia impairment, did not opine that Plaintiff had exertional limitations beyond
those identified by the ALJ. (AR. 21, 92-93.) Because Plaintiff’s exertional limitations as
assessed by Dr. Chan were reflected in the ALJ’s RFC assessment, Plaintiff’s assertion of error
is essentially based upon a technicality of drafting—i.e., that the ALJ omitted the term
“fibromyalgia” from his decision.9 To the extent that this omission was error, it was harmless.
See Anderson v. Colvin, 514 F. App’x 756, 760 (10th Cir. 2013) (holding that to the extent that
the ALJ erred in using the phrase “cognitive disorder” instead of “Alzheimer’s disease” to
discuss an alleged impairment, the error was harmless because “the focus of the analysis is on
the functional limitations caused by the impairment, not on the label attached to the
impairment”).
IV. Conclusion

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Indeed, Plaintiff argues that “Defendant’s own medical consultant, Dr. Chan, found that Plaintiff suffered from
fibromyalgia that was severe. Fibromyalgia appears sixty-six (66 times in the record and zero (0) times in the ALJ’s
unfavorable decision.” (Doc. 23 at 10.)

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For the reasons stated above, the Court recommends Plaintiffs Motion to Reverse or
Remand (Doc. 23) be DENIED.
Timely objections may be made pursuant to 28 U.S.C. § 636(b)(1)(c). Within fourteen
(14) days after a party is served with a copy of these proposed findings and recommended
disposition that party may, pursuant to Section 636(b)(1)(c), file written objections to such
proposed findings and recommended disposition with the Clerk of the United States District
Court for the District of New Mexico. A party must file any objections within the fourteen-day
period allowed if that party wants appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.

_____________________________________
KIRTAN KHALSA
United States Magistrate Judge

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