Malave Sanchez v. Commissioner of Social Security

Filing 14

DECISION AND ORDER granting in part and denying in part the plaintiff's motion for judgment on the pleadings, Docket Item 8 , and denying the Commissioner's motion for judgment on the pleadings, Docket Item 11 . The decision of the Commissioner is VACATED, and the matter is REMANDED for further administrative proceedings consistent with this decision. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 1/14/2022. (WMH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILMA M.S., 1
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,

20-CV-6383-LJV
DECISION & ORDER

Defendant.

On June 8, 2020, the plaintiff, Wilma M.S. (“Wilma”), brought this action under
the Social Security Act (“the Act”). She seeks review of the determination by the
Commissioner of Social Security (“Commissioner”) that she was not disabled. Docket
Item 1. On December 2, 2020, Wilma moved for judgment on the pleadings, Docket
Item 8; on March 2, 2021, the Commissioner responded and cross-moved for judgment
on the pleadings, Docket Item 11; and on March 23, 2021, Wilma replied, Docket Item
12.
For the reasons stated below, this Court grants Wilma’s motion in part and
denies the Commissioner’s cross-motion. 2

To protect the privacy interests of Social Security litigants while maintaining
public access to judicial records, this Court will identify any non-government party in
cases filed under 42 U.S.C. § 405(g) only by first name and last initial. Standing Order,
Identification of Non-government Parties in Social Security Opinions (W.D.N.Y. Nov. 18,
2020).
1

This Court assumes familiarity with the underlying facts, the procedural history,
and the decision of the Administrative Law Judge (“ALJ”) and refers only to the facts
necessary to explain its decision.
2

STANDARD OF REVIEW
“The scope of review of a disability determination . . . involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [the Commissioner] applied the correct legal principles in making the
determination.” Id. This includes ensuring “that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Social
Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (alterations omitted)
(quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s]
whether the determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at
985 (quoting 42 U.S.C. § 405(g)). “Substantial evidence” means “more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Where there is a
reasonable basis for doubt whether the ALJ applied correct legal principles, application
of the substantial evidence standard to uphold a finding of no disability creates an
unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to the correct legal principles.” Johnson, 817 F.2d at
986.
DISCUSSION
Wilma argues that the ALJ erred in two ways. Docket Item 8-1. First, she argues
that the ALJ erred in concluding that her fibromyalgia was not a medically determinable
impairment and improperly excluded it when constructing her residual functional
2

capacity (“RFC”). 3 Id. More specifically, she argues that the ALJ incorrectly applied
only one of the two possible sets of criteria for determining fibromyalgia and did not
consider the other. Id. Second, she argues that the ALJ improperly rejected opinion
evidence, instead relying on his own lay judgment to formulate her RFC. Id. This Court
agrees with Wilma and, because the ALJ’s errors were to Wilma’s prejudice, remands
the matter to the Commissioner.
I.

FIBROMYALGIA
The ALJ determined that Wilma’s fibromyalgia was not a medically determinable

impairment, Docket Item 5 at 27, and therefore did not consider fibromyalgia in
formulating Wilma’s RFC, id. at 29-35. Wilma argues that this was error, Docket Item 81, and this Court agrees. In fact, the ALJ erred in two ways when determining whether
fibromyalgia was a medically determinable impairment.
Social Security Ruling (“SSR”) 12-2p “sets forth the following requirements for
finding that fibromyalgia is a medically determinable impairment: (1) a physician has
diagnosed fibromyalgia; (2) the physician has provided evidence described either by the
1990 American College of Rheumatology [(“ACR”) Criteria for the Classification of
Fibromyalgia] or the 2010 ACR Preliminary Diagnostic Criteria; and (3) the physician’s
‘diagnosis is not inconsistent with other evidence in the person’s case record.’”
Casselbury v. Colvin, 90 F. Supp. 3d 81, 94 (W.D.N.Y. 2015) (quoting SSR 12-2p, 2012

A claimant’s RFC “is the most [she] can still do despite [her] limitations,” 20
C.F.R. § 416.945(a)(1), “in an ordinary work setting on a regular and continuing basis,”
see Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8P, 1996 WL
374184, at *2 (July 2, 1996)). “A ‘regular and continuing basis’ means 8 hours a day,
for 5 days a week, or an equivalent work schedule.” Id.
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WL 3104869, at *2 (July 25, 2012)). Under the 1990 criteria, a claimant must show a
history of widespread pain, at least eleven positive tender points out of eighteen
identified tender-point sites, and evidence that other disorders that could cause the
symptoms or signs were excluded. See id. at *2-3. Under the 2010 criteria, a claimant
must show a history of widespread pain; repeated manifestations of six or more
fibromyalgia symptoms, signs, or co-occurring conditions; and evidence that other
disorders that could cause those symptoms, signs, or co-occurring conditions were
excluded. See id. at *3.
If a claimant satisfies the other requirements of SSR 12-2p, meeting either the
1990 or the 2010 criteria is sufficient to establish that the claimant has a medically
determinable impairment of fibromyalgia. See Selian v. Astrue, 708 F.3d 409, 419 n.3
(2d Cir. 2013) (per curiam); Cooper v. Comm’r of Soc. Sec., 2019 WL 1109573, at *4
(W.D.N.Y. Mar. 11, 2019). Therefore, before deciding that a claimant does not have
fibromyalgia, an ALJ must analyze both the 1990 and the 2010 criteria. See Kirah D. v.
Berryhill, 2019 WL 587459, at *6-7 (N.D.N.Y. Feb. 13, 2019).
Here, the ALJ did not specify the criteria he used to conclude that Wilma did not
have a medically determinable impairment of fibromyalgia, but his analysis appears to
have followed the 1990 criteria. And the ALJ’s first error was in misapplying those
criteria. More specifically, the ALJ stated that “the record does not include evidence of
the necessary number of positive tender points[ 4] along with evidence that other

The terms “tender points” and “trigger points” are used at various times
throughout the medical record and pleadings to describe sensitive areas of pain. And
courts have used both terms in the Social Security context. See, e.g., Diaz v. Comm’r
of Soc. Sec., 2019 WL 2401593, at *4 (W.D.N.Y. June 7, 2019) (finding ALJ erred by
failing to “discuss whether th[e] evidence satisfied at least eleven out of the eighteen
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disorders that could cause the symptoms were excluded.”5 Docket Item 5 at 27. But
the record indeed included evidence of that number—that is, eleven under the 1990
criteria—of positive tender points.
Beatrice Deshommes, M.D., observed “[m]ultiple tender trigger points” in an
examination of Wilma on October 23, 2018. Id. at 511. The ALJ should have at least
acknowledged that finding and analyzed whether “multiple” meant at least eleven and
therefore whether it met the 1990 criteria. See Dillon v. Astrue, 2010 WL 2850910, *6
(C.D. Cal. July 19, 2010)) (finding error where the record noted the plaintiff had
“multiple” trigger points and the ALJ did not explain how the failure of the physician to
state “the number of [] trigger points reflected that [the] plaintiff had [fewer] than eleven
such points”); see also John, 2019 WL 2314620, at *2 (same where the claimant’s
doctors identified “at least ten trigger points” and “tender points ‘all over’” (emphasis
removed)). And even more to the point, Trevor Litchmore, M.D., appreciated and

tender point sites”); Casselbury, 90 F. Supp. 3d at 94 (finding ALJ erred in evaluating
whether a claimant had a medically determinable impairment of fibromyalgia where he
“improperly state[d] that the medical record did not identify the requisite trigger points”);
John v. Berryhill, 2019 WL 2314620, at *2 (W.D.N.Y. May 31, 2019) (considering
findings of both trigger and tender points).
The ALJ also did not explain his conclusion that there was no evidence “that
other disorders . . . were excluded.” See Docket Item 5 at 27. And because the 1990
and 2010 criteria both require the exclusion of other disorders to diagnose fibromyalgia,
the physicians who diagnosed it here presumably excluded other disorders as the
cause of Wilma’s symptoms. In any event, the ALJ’s conclusory finding does not permit
this Court to understand the reasons behind his conclusion or to evaluate whether that
conclusion had adequate support in the record. See Craft v. Astrue, 539 F.3d 668, 673
(7th Cir. 2008) (“The ALJ is not required to mention every piece of evidence but must
provide an ‘accurate and logical bridge’ between the evidence and the conclusion that
the claimant is not disabled, so that . . . a reviewing court[] . . . may assess the validity
of the agency’s ultimate findings and afford the claimant meaningful judicial review.”
(alterations omitted) (quoting Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004)).
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named “[e]leven trigger points” in his examination of Wilma on March 28, 2017. Docket
Item 5 at 410. So contrary to the ALJ’s finding, there indeed was at least some
evidence of “the necessary number of positive tender points.” 6 See id. at 27.
In analyzing whether Wilma’s fibromyalgia was a medically determinable
impairment, the ALJ did not even acknowledge those findings about positive tender or
trigger points by Dr. Deshommes and Dr. Litchmore, let alone explain whether—and, if
so, why—he discounted them. 7 See id. Nor did he otherwise address why he rejected

The ALJ later assigned “no weight” and “little weight” to Dr. Deshommes’s
opinions and “little weight” to Dr. Litchmore’s. See Docket Item 5 at 32-34. But
discrediting their opinions does not address their examination findings. Moreover, the
ALJ never even mentioned Dr. Deshommes’s finding of “[m]ultiple tender trigger points,”
id. at 511, or Dr. Litchmore’s finding of “[e]leven trigger points,” id. at 410. And so this
Court has no way to know whether the ALJ rejected these findings for some reason,
ignored them, or simply missed them.
6

The ALJ acknowledged that “the record includes a diagnosis of [fibromyalgia]
based on reported history,” but he apparently discounted that diagnosis because “a
treating source indicated that it was unclear how and when the diagnosis was made.”
Docket Item 5 at 27. The ALJ apparently was referring to Dr. Deshommes, who indeed
noted fibromyalgia by history and said that the diagnosis had been made by an
unknown source. See id. at 507, 513. But Dr. Deshommes certainly was not
suggesting that she did not agree with that diagnosis; on the contrary, she explicitly
noted that she suspected fibromyalgia as the cause of many of Wilma’s problems. See,
e.g., id. at 514. And Dr. Litchmore explicitly diagnosed fibromyalgia, id. at 411,
something the ALJ did not even mention. What is more, if the ALJ questioned the
diagnosis of fibromyalgia because it had been made by an unknown source, it was
incumbent on him to get another opinion—not simply to reject the diagnosis. See Rick
v. Comm’r of Soc. Sec., 2020 WL 4344844, at *3 (W.D.N.Y. July 29, 2020) (an ALJ is
obligated to take remedial steps, “such as re-contacting the plaintiff's treating physician
or requesting a consultative examination,” when the record lacks information sufficient
to determine whether a claimant “has a medically determinable impairment of
fibromyalgia”). So the ALJ should have contacted Wilma’s medical providers, or
otherwise obtained additional medical opinions, to clarify what might have been unclear.
See SSR 12-2p, 2012 WL 3104869, at *4; see also Villar v. Comm’r of Soc. Sec., 2020
WL 1131225, at *4 (W.D.N.Y. Mar. 9, 2020).
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the explicit diagnoses of fibromyalgia. 8 So the ALJ’s analysis under the 1990 criteria
clearly was inadequate.
The ALJ’s second error was not analyzing the 2010 criteria after he determined
that Wilma did not have a medically determinable impairment of fibromyalgia under the
1990 criteria. As this Court has found, because there are two sets of criteria that might
establish a medically determinable impairment of fibromyalgia, an ALJ must analyze
both before deciding that a claimant does not suffer from that impairment. See Grubbs
v. Comm’r of Soc. Sec., 2019 WL 1298481, at *4-5 (W.D.N.Y. Mar. 21, 2019); see also
Kirah D., 2019 WL 587459, at *6-7. And the ALJ’s failure to do that here was error as
well.
Moreover, the record here includes medical evidence that may well show that
Wilma had a medically determinable impairment of fibromyalgia under the 2010 criteria.
For example, the record repeatedly documents Wilma’s history of widespread pain.
See Docket Item 5 at 316, 329, 338, 341, 373, 377, 436, 503, 506, 548. Likewise, the
record includes evidence of mental health problems such as anxiety and depression, as
well as other cognitive issues. See id. at 322, 326, 416-17, 419, 666, 908. So there is
at least some medical evidence that Wilma met the 2010 criteria, and the failure to
apply and analyze those criteria was another error.
The Commissioner argues that even if the ALJ erred in his medicallydeterminable-impairment analysis, that error was harmless and remand is not required.
Dr. Litchmore diagnosed Wilma with fibromyalgia on March 28, 2017. Docket
Item 5 at 411. In addition, Dr. Deshommes observed that she “suspect[ed] most of
[Wilma’s] limitations physical disability [sic] are from fibromyalgia which was diagnosed
by [a] different provider” and she “suspect[ed the] component of fibromyalgia [was]
contributing to her back pain.” Id. at 514.
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7

Docket Item 11-1 at 18. Although an ALJ’s failure to consider an impairment to be
severe may be harmless error, that is so only if the ALJ found other severe impairments
and considered the nonsevere impairment in formulating the claimant’s RFC. See
Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d Cir. 2013) (summary order) (citing
Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010)). Here, however, the ALJ did not
even consider fibromyalgia to be a medically determinable impairment in the first place
and therefore did not consider limitations arising from fibromyalgia when determining
the combined effect of Wilma’s impairments on her RFC. Courts repeatedly have
remanded for that error. See Keller v. Colvin, 2017 WL 4112024, *14 (W.D.N.Y. Sept.
18, 2017) (collecting cases); see also Cooper, 2019 WL 1109573, at *5 (“[B]ecause the
ALJ concluded that [the claimant’s] fibromyalgia [was] not a medically determinable
impairment, she had no basis to credit [her] statements regarding her fibromyalgiarelated symptoms in the remainder of her decision.”).
Furthermore, the ALJ’s errors were not cured when the ALJ considered some
symptoms of fibromyalgia in formulating Wilma’s RFC. For example, widespread pain is
a symptom of fibromyalgia, see SSR 12-2p, 2012 WL 3104869, at *2-3, and the ALJ
referred to body pain in his RFC analysis, Docket Item 5 at 30. But the ALJ addressed
that pain only in the context of osteoarthritis and did not consider the limitations that
fibromyalgia-based pain might cause. See id. at 30-31. And as this Court has
previously held, the failure to explicitly consider each impairment in determining a
claimant’s RFC is an error that is not cured by mentioning shared symptoms in the
context of another condition. Szefler v. Berryhill, 2018 WL 6831156, at *6 n.3.
(W.D.N.Y. Dec. 28, 2018).

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In sum, the ALJ’s failure to appropriately consider and analyze Wilma’s possible
fibromyalgia was error, and that error was not harmless. For that reason, remand is
required.
II.

LAY OPINION
Wilma also argues that the ALJ improperly discounted all medical opinion

evidence and therefore based her RFC on his own lay judgment. Docket Item 8-1.
Again, this Court agrees.
An ALJ may not substitute his or her lay judgment for the opinions of medical
professionals, and when there is no medical opinion to support a claimant’s ability to
perform a certain function, the ALJ cannot create an RFC from whole cloth. See
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“In the absence of a medical opinion
to support [an] ALJ’s finding as to [a claimant’s] ability to perform [a certain level of]
work, it is well-settled [sic] that the ALJ cannot arbitrarily substitute his own judgment for
competent medical opinion.” (citation and internal quotation marks omitted)). In other
words, “an ALJ is not qualified to assess a claimant’s RFC on the basis of bare medical
findings, and as a result an ALJ’s determination of [a claimant’s] RFC without a medical
advisor’s assessment is not supported by substantial evidence.” Ortiz v. Colvin, 298 F.
Supp. 3d 581, 586 (W.D.N.Y. 2018) (citation omitted).
Here, the ALJ found that Wilma had the RFC to perform light work with certain
specific limitations. 9 Docket Item 5 at 29-30. In formulating that RFC, however, the ALJ
The ALJ determined that Wilma could “perform light work as defined in 20
[C.F.R. §] 416.967(b)” except that she could occasionally balance, crouch, kneel, crawl,
and stoop; could occasionally climb ramps, stairs, ladders, and scaffolds; could
frequently push, pull, reach, handle, finger, and feel bilaterally; could occasionally push,
pull, and operate foot controls with her lower extremities; needed to avoid work involving
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gave little or no weight to every medical opinion in the record. 10 And because the ALJ
relied on no medical opinion to support his specific findings, the RFC necessarily was a
product of his own lay judgment. That is another error requiring remand.
The Commissioner argues that “the Second Circuit has never held that an ALJ
must rely on a medical source opinion in assessing RFC” and that this Court therefore
should not require it. Docket Item 11-1 at 25. And the Commissioner is correct that an
ALJ need not base an RFC on a formal medical opinion when the record “otherwise
contains a useful assessment of a claimant’s functional abilities from a medical source.”
Gulczewski v. Comm’r of Soc. Sec., 464 F. Supp. 3d 490, 497 (W.D.N.Y. 2020). But
that is not the case here. Here, the record is “devoid of any assessment of [Wilma’s]
exertional limitations and d[id] not even contain any useful discussion of such
limitations.” Bartha v. Comm’r of Soc. Sec., 2019 WL 4643584, at *2 (W.D.N.Y. Sept.
24, 2019). So the ALJ’s specific limitations here necessarily came from whole cloth.

crowds, extreme temperatures, wetness, humidity, vibrations, fumes, dusts, odors,
gases, poor ventilation, and other pulmonary irritants; needed to avoid hazards such as
unprotected heights, machines with moving mechanical parts, and driving employer
vehicles; could understand, remember, and carry out simple instructions; could
occasionally interact appropriately with supervisors, coworkers, and the public; could
make simple work-related decisions; could tolerate few changes in a routine work
setting; and would be off task 10 percent of the day due to alternating between sitting
and standing and/or lapses in attention or concentration. Docket Item 5 at 29-30.
The ALJ assigned little weight to the opinion of the “[s]tate agency
consultants”; “to the opinion of Dr. Litchmore”; “to the severely limiting opinion of Dr.
Lin”; “to the opinion of Aquella Deskor, LMHC”; “to the opinion of Karen Mazza, FNP”;
“to the form completed by Dr. Deshommes”; and to some of the “ [global assessment of
functioning (“GAF”)] opinions in the record.” Docket Item 5 at 32-34. He “assign[ed] no
weight to the opinion form completed by Dr. [] Deshommes” and “to the [GAF] scores
. . . . related to a non-relevant period.” Id. at 33-34.
10

10

For example, without any medical opinion to support his judgment the ALJ found
that Wilma could occasionally “balance, crouch, kneel, crawl, [and] stoop, [and] climb
ramps, stairs, ladders, and scaffolds.” Docket Item 5 at 29. Other than reciting bare
medical data, the ALJ provided no reason for his conclusion that Wilma could perform
these tasks occasionally—as opposed to always or seldom or frequently. So those
highly specific limitations must have been the product of his lay judgment—and
therefore beyond his expertise. See, e.g., Timothy S. v. Comm’r of Soc. Sec., 2021 WL
661392, at *2 (W.D.N.Y. Feb. 19, 2021) (ALJ improperly opined on claimant’s ability to
climb ladders and scaffolds even though “the medical evidence the ALJ cited
contain[ed] no reference” to that equipment).
Similarly, the ALJ found that Wilma would be “off task 10 percent of the day due
to alternating between sitting and standing and/or lapses in attention or concentration,”
Docket Item 5 at 30, but he did not tie that specific limitation to the finding of any
provider or, indeed, even suggest where it came from. Perhaps the ALJ took the low
end of the “10 to 25 percent of the time” that Mental Health Counselor Deskor opined
that Wilma would be unable to function in certain areas. See id. at 33 (assigning little
weight to Mr. Deskor’s opinion because even though “Mr. Deskor has a treating
relationship” with Wilma, “Mr. Deskor provided minimal support for the severe limitations
in his opinion”). Perhaps he credited Wilma’s testimony that she needed to alternate
between sitting and standing and had lapses in attention, id. at 51, 54, 56, 60-61, and
thought that “10 percent of the day” was a reasonable estimate of the time she would
have to spend off task. Or perhaps he came up with that number—as opposed to, say,
five percent or twenty percent—some other way. Without any clue as to which of those

11

provided the basis for the ALJ’s limitation, this Court can conclude only that the basis for
the number was the ALJ’s own surmise. And that was error.
In sum, because the ALJ based specific limitations in Wilma’s RFC on his own
lay opinion and nothing more, his decision is not supported by substantial evidence, and
remand is required. See Sherry v. Berryhill, 2019 WL 441597, at *5 (W.D.N.Y. Feb. 5,
2019) (“The Court cannot conclude that there was substantial evidence to support the
ALJ’s RFC determination that [the] plaintiff was capable of light work with restrictions
and is left without a clear indication of how the ALJ reached the RFC determination
without resorting to impermissible interpretation of raw medical data.”)
CONCLUSION
The Commissioner’s motion for judgment on the pleadings, Docket Item 11, is
DENIED, and Wilma’s motion for judgment on the pleadings, Docket Item 8, is
GRANTED in part and DENIED in part. The decision of the Commissioner is
VACATED, and the matter is REMANDED for further administrative proceedings
consistent with this decision.

SO ORDERED.
Dated:

January 14, 2022
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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