UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

AMANDA V. BUSH,

Plaintiff, Case No. 3:17-cv-333

vs.

COMMISSIONER OF SOCIAL SECURITY, District Judge Walter H. Rice

Magistrate Judge Michael J. Newman

Defendant.

______________________________________________________________________

REPORT AND RECOMMENDATION1 THAT: (1) THE NON-DISABILITY

FINDING AT ISSUE BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, 

AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER 

UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS 

CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED

______________________________________________________________________

This is a Social Security disability benefits appeal. At issue is whether the Administrative 

Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to 

Supplemental Security Income (“SSI”) and/or Disability Insurance Benefits (“DIB”).

2

 This case 

is before the Court upon Plaintiff’s Statement of Errors (doc. 11), the Commissioner’s 

memorandum in opposition (doc. 14), Plaintiff’s reply (doc. 15), the administrative record (doc. 

7), and the record as a whole.3

 

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and 

Recommendation.

2

“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are 

identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB 

regulations are made with full knowledge of the corresponding SSI regulations, and vice versa.

3 Hereafter, citations to the electronically-filed record will refer only to the PageID number. 
2

I.

A. Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of November 9, 2009. 

PageID 242-54. Plaintiff claims disability as a result of a number of alleged impairments 

including, inter alia, lumbosacral degenerative disc disease, fibromyalgia, depression, and anxiety. 

PageID 51. 

After initial denial of her applications, Plaintiff received a hearing before ALJ Gregory G. 

Kenyon on January 26, 2016. PageID 73-107. The ALJ issued a written decision on April 20, 

2016 finding Plaintiff not disabled. PageID 49-66. Specifically, the ALJ found at Step Five that, 

based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of 

sedentary work,4“there are jobs in that exist in significant numbers in the national economy that 

[she] can perform[.]” PageID 65. 

Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s 

non-disability finding the final administrative decision of the Commissioner. PageID 31-33. See 

Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then 

filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).

B. Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 51-66), 

Plaintiff’s Statement of Errors (doc. 11), the Commissioner’s memorandum in opposition (doc. 

 

4 Sedentary work “involves lifting no more than 10 pounds at a time and occasionally lifting or 

carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one 

which involves sitting, a certain amount of walking and standing is often necessary in carrying out job 

duties.” Id. § 404.1567(a).
3

14), and Plaintiff’s reply (doc. 15). The undersigned incorporates all of the foregoing and sets 

forth the facts relevant to this appeal herein.

II.

A. Standard of Review

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s nondisability finding is supported by substantial evidence, and (2) whether the ALJ employed the 

correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,745-46 

(6th Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner 

v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When 

substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if 

substantial evidence also exists in the record upon which the ALJ could have found Plaintiff 

disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of 

choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.

The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -- may 

result in reversal even if the ALJ’s decision is supported by substantial evidence in the record. 

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the 

Commissioner will not be upheld where the [Social Security Administration] fails to follow its 

own regulations and where that error prejudices a claimant on the merits or deprives the claimant 

of a substantial right.” Bowen, 478 F.3d at 746.
4

B. “Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined by 

the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a 

“disability” includes physical and/or mental impairments that are both “medically determinable” 

and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging 

in “substantial gainful activity” that is available in the regional or national economies. Id.

Administrative regulations require a five-step sequential evaluation for disability 

determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the 

ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential 

review poses five questions:

1. Has the claimant engaged in substantial gainful activity;

2. Does the claimant suffer from one or more severe impairments;

3. Do the claimant’s severe impairments, alone or in combination, meet or 

equal the criteria of an impairment set forth in the Commissioner’s Listing 

of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1;

4. Considering the claimant’s RFC, can he or she perform his or her past 

relevant work; and

5. Assuming the claimant can no longer perform his or her past relevant work 

-- and also considering the claimant’s age, education, past work experience, 

and RFC -- do significant numbers of other jobs exist in the national 

economy which the claimant can perform;

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818 (S.D. 

Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social 

Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
5

III.

On appeal, Plaintiff argues that the ALJ erred by: (1) not addressing Plaintiff’s request for 

a medical examination; (2) making unsupported findings regarding her lower extremity sensation 

and stability; (3) not reasonably considering or developing the record concerning her fibromyalgia 

diagnosis; and (4) improperly analyzing her daily activities in assessing her credibility. Finding 

error with regard to the ALJ’s consideration of Plaintiff’s fibromyalgia, the undersigned does not 

address Plaintiff’s other alleged errors and, instead, would direct that said errors be considered by 

the ALJ anew on remand.

In her third alleged error, Plaintiff contends that the ALJ committed reversible error by 

failing to reasonably consider her fibromyalgia in determining disability and further failed to 

adequately develop the record as it relates to such condition. PageID 1330-31. Certainly, there are 

a number of documents of record reflecting treatment for and diagnosis of fibromyalgia. See 

PageID 1276, 1282-84, 1286, 1291-97, 1302-03, 1307, 1309. Much of this evidence is reflected 

in more recent treatment records from treating physician Lawrence Udom, M.D. in 2015 and after, 

id., although records as early as 2009 reflect reported treatment for “suspected fibromyalgia” and 

note vague references to past medical diagnosis of such condition. PageID 419, 978, 1055.

The undersigned’s review of the ALJ’s analysis regarding fibromyalgia in this case begins 

at Step Two, the Step in the sequential evaluation where the ALJ must consider whether a 

claimant’s impairment constitutes a “medically determinable impairment,” i.e., an impairment that 

results from anatomical, physiological, or psychological abnormalities, which can be shown by 

medically acceptable clinical and laboratory diagnostic techniques. See 20 C.F.R. §§ 404.1505, 

404.1508, 404.1520(a)(4)(ii) and 404.1527(a)(1). If an alleged impairment is not medically 

determinable, an ALJ need not consider that impairment in assessing the RFC. See Rouse v. 
6

Comm’r of Soc. Sec., No. 2:16-CV-0223, 2017 WL 163384, at *4 (S.D. Ohio Jan. 17, 2017); 20 

C.F.R. §§ 404.1527(a)(1), 404.1545(a)(2).

“Consideration of whether a claimant’s fibromyalgia qualifies as a medically determinable 

impairment . . . is governed by SSR 12-2P, 2012 WL 3104869 (July 25, 2012).” Herzog v. Comm’r 

of Soc. Sec., No. 2:16-CV-244, 2017 WL 4296310, at *2 (S.D. Ohio Sept. 28, 2017). As set forth 

in SSR 12-2P, “a person can establish that he or she has [a medically determinable impairment] of 

[fibromyalgia] by providing evidence from an acceptable medical source[,]” i.e., “[a] licensed 

physician.” 2012 WL 3104869, at *2. However, in determining whether fibromyalgia is a 

medically determinable impairment, ALJs “cannot rely upon the physician's diagnosis alone” and 

medical evidence submitted in support “must document that the physician reviewed the person’s 

medical history and conducted a physical exam.” Id.

Here, the Commissioner argues that the ALJ did not err in declining to consider 

fibromyalgia because records failed to reflect “any positive tender points upon examination.” Doc. 

14 at PageID 1345. Certainly, under Soc. Sec. Ruling 12-2P, one of two ways an ALJ can find 

fibromyalgia to be a medically determinable impairment is if Plaintiff has all of the following:

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 (or that persisted) for at least 3 months. 

The pain may fluctuate in intensity and may not always be present.

2. At least 11 positive tender points on physical examination (see diagram 

below). The positive tender points must be found bilaterally (on the left 

and right sides of the body) and both above and below the waist. [and]

***

3. Evidence that other disorders that could cause the symptoms or signs 

were excluded.
7

2012 WL 3104869, at *2-3 (July 24, 2012). However, the Commissioner’s argument in this regard 

-- like the ALJ’s analysis5-- fails to “consider the other criteria for diagnosing fibromyalgia set 

forth in Ruling 12-2p, which does not require evidence of tender points.” Moser v. Berryhill, No. 

3:15CV00383, 2017 WL 525723, at *9 (S.D. Ohio Feb. 9, 2017), report and recommendation 

adopted, No. 3:15-CV-383, 2017 WL 1134774 (S.D. Ohio Mar. 24, 2017).

In fact, under Soc. Sec. Ruling 12-2P, a claimant can demonstrate she has a medically 

determinable impairment of fibromyalgia by showing, as an alternative to the requirement of 

documented “tender points,” that she has “[r]epeated manifestations of six or more FM symptoms, 

signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory 

problems (“fibro fog”), waking unrefreshed, depression, anxiety disorder, or irritable bowel 

syndrome[.]” SSR 12-2p, 2012 WL 3104869. The record here contains a number of such 

documented symptoms including, inter alia, fatigue and/or tiredness, memory problems, 

nervousness and/or anxiety, chest pain, depression, headaches, and vomiting.6 Despite such 

records, and despite Plaintiff’s recent treatment for, and recorded diagnosis of, fibromyalgia, the 

ALJ made no findings concerning whether Plaintiff’s alleged fibromyalgia was a medically 

determinable impairment at Step Two of the sequential analysis. See PageID 51-52. The 

undersigned finds error in this regard. Moser, 2017 WL 525723, at *10.

 

5

 In assessing Plaintiff’s credibility, the ALJ dismissed her alleged fibromyalgia outright solely 

because the recent treatment records reflecting its diagnosis note “no positive points” or “trigger points[.]” 

PageID 59-60.

6

 Some of these reported symptoms can be found at the following parts of the record: fatigue 

and/or tiredness (PageID 353, 990, 992, 996-97, 1006, 1008, 1010, 1012-13, 1016, 1017, 1056, 1219, 1221, 

1269, 1273); memory problems (PageID 1119, 112, 1124, 1136); insomnia (989-90, 991, 997, 1002, 1019, 

1120, 1135-36, 1268, 1273, 1276, 1282, 1284); nervousness and/or anxiety (PageID 997, 1019, 1057, 1267, 

1271, 1280-81, 1283-84, 1291, 1294, 1302, 1303, 1307, 1308); chest pain (535, 538, 542, 571, 662, 665-

66, 669, 997); depression (470, 989, 990-91, 997-99, 1009, 1018-19, 1054, 1058, 1120, 1154, 1255, 1259, 

1268, 1273, 1280-82); headaches (355, 360, 262, 264-65, 370, 535, 665, 669, 816, 821, 823, 826-28, 907, 

912, 916, 950); and vomiting (355, 536, 542, 662, 666, 993, 995, 996, 998, 1007, 1008, 1009, 1011, 1012, 

1015).
8

The Court must next consider whether such error is harmless, a burden the Commissioner 

bears. See Starcher v. Comm’r of Soc. Sec., No. 2:15-CV-3113, 2016 WL 5929048, at *6 (S.D. 

Ohio Oct. 12, 2016), report and recommendation adopted, No. 2:15-CV-3113, 2016 WL 6493427 

(S.D. Ohio Nov. 2, 2016). If an impairment is medically determinable, an ALJ must decide 

whether that impairment is severe or non-severe. 20 C.F.R. § 404.1520(a)(4)(ii). If all medially 

determinable impairments are non-severe, the ALJ’s analysis ends and Plaintiff is not disabled. 20 

C.F.R. § 404.1520(c). 

Where a plaintiff has one or more severe impairments, the ALJ must then consider the 

limiting effects of all impairments, severe and non-severe, in determining Plaintiff’s RFC at Step 

Four. 20 C.F.R. § 1523; White v. Comm’r of Soc. Sec., 312 F. App’x 779, 787 (6th Cir. 2009). If 

the ALJ considers the limiting effects of both severe and non-severe impairments in determining 

the RFC, any error in failing to find a particular impairment “severe” at Step Two is harmless. 

White, 312 F. App’x at 787.

In this case, the ALJ did mention fibromyalgia when summarizing the record evidence at 

Step Four, particularly when assessing Plaintiff’s credibility. PageID 59-60. In doing so, the ALJ 

appears to have dismissed the condition outright because Plaintiff’s recent treatment records 

reflecting the fibromyalgia diagnosis note “no positive points” or “trigger points” -- which, as set 

forth above, is not a complete analysis of the condition’s existence. PageID 59-60. As a result, 

the Court cannot conclude that the ALJ considered the limiting effects of fibromyalgia on 

Plaintiff’s ability to perform work-related activity when determining the RFC.7 Thus, the error at 

 

7 The undersigned recognizes that the ALJ would not have had to consider the limiting effects of 

fibromyalgia when determining Plaintiff’s RFC at Step Four if he had appropriately determined that it is 

not a medically determinable impairment. See supra.
9

Step Two is not harmless. On this basis alone, the ALJ’s decision is found unsupported by 

substantial evidence.

Further, the ALJ’s failure to recognize fibromyalgia also impacted the ALJ’s conclusion 

regarding Plaintiff’s credibility. Specifically, the ALJ found Plaintiff’s statements regarding her 

disability were “not supported by objective medical evidence” (PageID 55) and that certain 

findings on examination “were within normal limits” (PageID 59). See also PageID 56 (the ALJ 

noting normal strength and sensation in lower extremities); PageID 57 (the ALJ noting normal 

range of motion and strength, as well as normal gait and movements); PageID 58 (the ALJ noting 

normal range of motion, normal gait, normal strength and tone). However, as noted by the Sixth 

Circuit, “unlike medical conditions that can be confirmed by objective testing, fibromyalgia 

patients present no objectively alarming signs.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 243 

(6th Cir. 2007). 

The ALJ’s analysis in this regard “is problematic under the best of circumstances because 

the key findings in a doctor’s report are the examination results rather than more general comments 

about the patient's appearance.” Starcher, 2016 WL 5929048, at *6. Additionally, it “is especially 

troubling in a case involving fibromyalgia, where such comments are completely consistent with 

the way in which persons with that disease can appear when examined.” Id. (finding error and 

noting that “[t]he ALJ may well have been influenced to make these comments –- and to devalue 

Plaintiff’s testimony as well as some of the objective findings from his physicians –- because of 

his erroneous decision about whether Plaintiff’s fibromyalgia was a medically determinable 

impairment”).

Thus, because the ALJ gave no consideration to the limiting effects of Plaintiff’s 

fibromyalgia when determining her RFC, and the disregard of such condition appears to have 
10

impacted the ALJ’s credibility determination, the undersigned cannot conclude -- and the 

Commissioner has not demonstrated -- that such error is harmless. See id. The ALJ’s credibility 

analysis is thus also found unsupported by substantial evidence.

IV.

When, as here, the ALJ’s non-disability determination is unsupported by substantial 

evidence, the Court must determine whether to reverse and remand the matter for rehearing, or to 

reverse and order an award of benefits. The Court has authority to affirm, modify or reverse the 

Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C. § 

405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991). Generally, benefits may be awarded 

immediately “only if all essential factual issues have been resolved and the record adequately 

establishes a plaintiff’s entitlement to benefits.” Faucher v. Sec’y of Health & Human Servs., 17 

F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); 

Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987). In this instance, 

evidence of disability is not overwhelming, and remand for further proceedings -- as specifically 

set forth above and for reconsideration of Plaintiff’s other alleged errors -- is proper. 

V.

IT IS THEREFORE RECOMMENDED THAT: (1) the ALJ’s non-disability finding 

be found unsupported by substantial evidence, and REVERSED; (2) this matter be REMANDED 

to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for proceedings consistent 

with this opinion; and (3) this case be CLOSED.

Date: April 1, 2019 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge
11

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections 

to the proposed findings and recommendations within FOURTEEN days after being served with 

this Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if 

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, 

this Report and Recommendation was served upon you by mail, this deadline is extended to 

SEVENTEEN DAYS per Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to 

file objections by filing a motion for extension, which the Court may grant upon a showing of good 

cause. 

Any objections filed shall specify the portions of the Report and Recommendation objected 

to and shall be accompanied by a memorandum of law in support. If the Report and 

Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, 

the objecting party shall promptly arrange for the transcription of the record, or such portions of it 

as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District 

Judge otherwise directs. 

A party may respond to another party’s objections within FOURTEEN days after being 

served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. 

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If, 

however, this Report and Recommendation was served upon you by mail, this deadline is extended 

to SEVENTEEN DAYS per Fed. R. Civ. P. 6(d). 

Failure to make objections in accordance with this procedure may forfeit rights on appeal. 

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 

(6th Cir. 1981).