F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 25, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ELZO RA BR OWN ,
Plaintiff-Appellant,
No. 05-5143
v. (D.C. No. 04-CV-485-FHM )
(N.D. Okla.)
JO A NN E B. BA RN HA RT,
Commissioner, Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before L UC ER O, EBEL, and M U RPH Y, Circuit Judges.
Elzora Brown appeals a district court’s order affirming the decision of the
Commissioner of Social Security to deny her application for social security
disability benefits. W e have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
§ 405(g), and REV ER SE the district court and REM AND for further
proceedings.
Brown applied for disability insurance benefits and supplemental security
income payments due to pain in her neck, shoulders, back and legs, headaches,
chronic fatigue syndrome, fibromyalgia, asthma, and depression. Brown’s request
for disability benefits was denied. After a hearing, an Administrative Law Judge
(ALJ) affirmed the denial of benefits and the Appeals Council ultimately denied
her request for review. Brown filed this action in federal court, seeking review of
the Commissioner’s decision. The district court dismissed her complaint because
it found that the ALJ’s decision was supported by substantial evidence in the
record. Brown now appeals this decision.
W e review the C ommissioner’s decision to determine “whether [her]
findings are supported by substantial evidence in the record and whether [she]
applied the correct legal standards.” Emory v. Sullivan, 936 F.2d 1092, 1093
(10th Cir. 1991). The “[f]ailure to apply the correct legal standard or to provide
this court with a sufficient basis to determine that appropriate legal principles
have been followed is grounds for reversal.” Byron v. Heckler, 742 F.2d 1232,
1235 (10th Cir. 1984) (quotation omitted).
The Secretary has established a five-step sequential evaluation for
determ ining w hether an applicant is disabled. 20 C.F.R. §§ 404.1520. As we
explained in Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005):
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Step one requires a claimant to establish she is not engaged in
substantial gainful activity. Step two requires the claimant to
establish she has a medically severe impairment or combination of
impairments. Step three asks whether any medically severe
impairment, alone or in combination with other impairments, is
equivalent to any of a number of listed impairments so severe as to
preclude substantial gainful employment. If listed, the impairment is
conclusively presumed disabling. If unlisted, the claimant must
establish at step four that her impairment prevents her from
performing work she has previously performed. If the claimant is not
considered disabled at step three, but has satisfied her burden of
establishing a prima facie case of disability under steps one, two, and
four, the burden shifts to the Commissioner to show the claimant has
the residual functional capacity (RFC) to perform other work in the
national economy in view of her age, education, and work
experience.
(citations and quotations omitted). In this case, the A LJ reached step four,
concluding that Brow n could return to her past relevant work as a housekeeper,
fast food worker, and newspaper assembler. On appeal, Brown argues that,
although the A LJ determined that Brow n did suffer from the medically severe
impairments of obesity and post-cervical diskectomy at step two, he wrongly
concluded that her fibromyalgia w as not a severe impairment. This, she argues, is
reversible error and infected the rest of the ALJ’s analysis.
In step two of the sequential evaluation process, the claimant bears the
burden of making “a threshold showing that [her] medically determinable
impairment or combination of impairments significantly limits [her] ability to do
basic work activities.” W illiams v. Bowen, 844 F.2d 748, 752 (10th Cir. 1988).
The step two determination is based on medical factors alone. Id. at 750. The
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claimant must make a “de minimis showing of medical severity” or the evaluation
process ends, and benefits are denied. Id. at 751.
Although the ALJ determined that Brown has post-cervical diskectomy and
obesity which are severe impairments, he refused to accord severe-impairment
status to Brown’s diagnosed fibromyalgia because the condition had been
identified only seven months prior to the ALJ’s decision. The ALJ wrongly
excluded Brown’s fibromyalgia on the ground that the condition had not met the
12 month duration test at the time of hearing to be considered a severe
impairment. This is contrary to the statute, which defines disability 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.” 42 U.S.C. § 423(d)(1) (emphasis added). Thus, Brow n’s
fibromyalgia need not have lasted for twelve months prior to the hearing, as long
as it could be expected to last for at least another five months after the hearing.
The ALJ clearly erred in failing to properly apply 42 U.S.C. § 423(d)(1).
The district court excused this error on the ground that it w as harmless.
For us to conclude that error in a disability hearing is harmless, it must be clear
that, had the ALJ considered the appropriate material – here the medical evidence
of fibromyalgia – “no reasonable administrative factfinder, following the correct
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analysis, could have resolved the factual matter in any other way.” Allen v.
Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).
The ALJ’s legal error was not harmless. Based on our review of the record,
we cannot conclusively say that no reasonable administrative fact-finder would
have found that Brown’s fibromyalgia could be expected to last more than twelve
months. Further, a reasonable administrative fact-finder could find that her
fibromyalgia was a severe medical impairment. 1
1
Fibromyalgia, previously called fibrositis, is “a rheumatic disease that
causes inflammation of the fibrous connective tissue components of muscles,
tendons, ligaments and other tissue.” Benecke v. Barnhart, 379 F.3d 587, 589
(9th Cir. 2004). It is a chronic condition, causing “long-term but variable levels
of muscle and joint pain, stiffness and fatigue.” Brosnahan v. Barnhart, 336 F.3d
671, 672 n.1 (8th Cir. 2003). The disease is “poorly-understood within much of
the medical community [and] . . . is diagnosed entirely on the basis of patients’
reports and other symptoms.” Benecke, 378 F.3d at 590. Clinical signs and
symptoms supporting a diagnosis of fibromyalgia under the American College
of Rheumatology Guidelines include “primarily widespread pain in all four
quadrants of the body and at least 11 of the 18 specified tender points on the
body.” G reen-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003).
Fibromyalgia can be disabling. Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.
1998).
W hat makes fibromyalgia difficult to analyze in the social security
disability context is the lack of objective symptoms:
Its cause or causes are unknown, there is no cure, and, of greatest
importance to disability law, its symptoms are entirely subjective.
There are no laboratory tests for the presence or severity of
fibromyalgia. The principal symptoms are pain all over, fatigue,
disturbed sleep, stiffness, and–the only symptom that discriminates
between it and other diseases of a rheumatic character–multiple
tender spots, more precisely 18 fixed locations on the body (and the
(continued...)
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The ALJ’s failure to consider Brown’s fibromyalgia impaired his analysis
at step three and step four. He did not take Brown’s possibly severe fibromyalgia
into account when determining Brown’s residual functional capacity or whether
her severe impairments, alone or in combination with other impairments, were
equivalent to any of a number of listed impairments so severe as to preclude
substantial gainful employment. Further, the ALJ’s determination that Brown
was not totally credible with respect to her physical limitations is made
problematic by his refusal to consider her fibromyalgia. As support for finding
Brown not entirely credible, the ALJ identified evidence that Brown had full
muscle strength in her arms and legs and exhibited only mild abnormalities from
various diagnostic tests. However, normal muscle strength and a lack of results
from objective laboratory tests for the presence or severity of fibromyalgia do not
rule out the possible existence of the condition. Green-Y ounger, 335 F.3d at 109.
The mere fact that fibromyalgia cannot be “conclusively diagnosed in a laboratory
setting” does not exclude it from coverage per se. Sisco v. U. S. Dep't of Health
1
(...continued)
rule of thumb is that the patient must have at least 11 of them to be
diagnosed as having fibromyalgia) that when pressed firmly cause
the patient to flinch.
Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). Of course, the difficulty of
analyzing the effect of fibromyalgia is not reason to ignore its presence. On
remand, the subjective symptoms of fibromyalgia must be considered.
Green-Younger, 335 F.3d at 109.
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& Human Servs., 10 F.3d 739, 744 (10th Cir. 1993) (discussing claimant’s
chronic fatigue syndrome). Upon remand, Brown’s credibility must be reassessed
in light of all the evidence in the record possibly supporting the existence of
fibromyalgia as a disabling impairment.
The decision of the district court is REVERSED and this case is
REM AND ED to that court with instructions to remand the case to the
Commissioner for further proceedings.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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