Warfield v. Colvin , 134 F. Supp. 3d 11 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TERRI LYNETTE WARFIELD, )
)
Plaintiff, )
)
v. ) Civil Case No. 13-1357 (RJL)
)
CAROLYN W. COLVIN, )
)
Defendant. F I I. E D
SEP 22 2015
W Clerk. U.S. Dlstrict & Bankruptcy
Courts forth D‘ t' t .
Septemberzz,2015 [#10,#12] e '3’” “‘CO'UmbIa
Plaintiff Terri Lynette Warfield (“plaintiff”) brings this action against defendant
Carolyn W. Colvin, Acting Commissioner of the Social Security Administration
(“defendant”) pursuant to 42 U.S.C. § 405(g), seeking reversal of the denial of her
application for Social Security Disability Insurance (“DIB”) and Supplemental Security
Income (“SSI”) benefits. See Compl. [Dkt. #1]. This case comes before this Court on
plaintiff 5 Motion for Judgment of Reversal [Dkt. #10] and defendant’s Motion for
Judgment of Affirmance [Dkt. #12]. For the reasons set forth below, the Court GRANTS
in part and DENIES in part plaintiff’ s motion and DENIES defendant’s motion.
BACKGROUND
1. Statutory Background
Titles 11 and XVI of the Social Security Act provide benefits for “disabled”
claimants, 42 U.S.C. §§ 423(a), l382(a)(1), who demonstrate an inability “to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to last for a continuous period
of not less than 12 months,” id. §§ 423(d)(l)(A), l3820(a)(3)(A). In order to qualify, the
impairment must be “of such severity that [the claimant] is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.” Id. §§
423(d)(2)(A9Ll3820(a)(3)(B).
The Commissioner of the Social Security Administration (“Commissioner”)
assesses disability claims through a five-step sequential evaluation. See 20 CPR. §§
404.1520(a)(4), 416.920(a)(4). The burden of proof rests on the claimant in steps one
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combination of impairments that significantly limits her ability to perform basi_c work
activities. See id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If she does, step three requires
the Commissioner to determine whether the claimant’s impairments “meet” or
“functionally equal” one of the impairments listed in the relevant regulations, Appendix 1
to subpart P of 20 CPR. § 404 (“Listed Impairments”). Id. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If they do, the claimant “is deemed disabled and the inquiry is at an
end.” Butler, 353 F.3d at 997; 20 CPR. §§ 404.1520(d), 416.920(d).
Before moving from step three to step four, the Commissioner assesses a
9"
claimant’s “residual functional capacity” (“RFC”)—that is, the Commissioner must
2
post-dates the ALJ’s determination and therefore was not—indeed, could not—have been
the basis for his determination.
Of course, this Court’s review does include determining whether the Appeals
Council rightly refused to consider plaintiffs new evidence. Keeton v. Dep ’t of Health
and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Unfortunately for plaintiff, I
find that it did. The Council is required to consider “new and material evidence . . . only
where it relates to the period on or before the date of the [ALJ] hearing decision.” See 20
C.F.R. §§ 404.970(b), 416.1470(b).-'This includes evidence that (1) is dated before or on
the date of the"ALJ decision, or (2) post-dates the ALJ decision, but is reasonably related
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during that period, Pl.’s Mem. 12-14, there is simply nothing in the physician’s
documentation that indie-ates this to be the case. Pl.’s Notice Ex. 1-4 [Dkt. #11]. Further,
even if plaintiff is correct that the diagnosis indirectly relates backbecause she exhibited
some symptoms of fibromyalgia prior to January 2012, there is substantial evidence in
the record indicating that the new evidence shows a worsening of plaintiff’ 5 overall
condition. Def.’s Mem.‘ 15-16. For example, Dr. Artis-Trower’s assessment of plaintiff’s
functional abilities in February 2013—including that plaintiff experienced constant pain
and muscle weakness that limited her mobility and made it difficult for her to sit for more
than an hour, Pl.’s Notice Ex. 4—indicates marked decline from the period under the
n 11
ALJ’s review. Indeed, notes from a physical exam in 2009 state that plaintiff was “able
to walk with no disability,” AR at 466; in May 2010, plaintiff did not complain of muscle
aches, weakness, or joint pain in what was a normal physical examination, AR at 582;
and in January 2011 plaintiff presented with normal motor strength and tone, normal
reflexes, normal joints, bones, and muscles, and she moved all extremities'eWell, AR at
578. Accordingly, even assuming the evidence was “new and material,” I find that the
Appeals Council did not err in excluding it.1
11. The ALJ’s Step Three Determination
At step three, the ALJ must consider whether the combined effect50f all a
claimamfs impairmentsflbo‘gi-phfisical afidlnfntal, “meets” or “functionally
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proving equivalence at this step, the ALJ is required to “develop a comprehensive record
on which to base her decision,” Charles v. Astrue, 854 F. Supp. 2d 22, 28 (D.D.C. 2012),
and give the reviewing court an “indication not only of what evidence was credited, but
also whether other evidence was rejected rather than simply ignored,” Brown, 794 F.2d at
708. A singular statement by the ALJ that he considered the claimant’s impairments and
determined that they did not, individually or in combination, meet or' equal a listing is not
sufficient. See Davis v. Shalala, 862 F. Supp. 1, 7 (D.D.C. 1994).
‘ Of course, all is not lost for plaintiff. As the Appeals Council noted, she retains the right to file
a new application with the SSA. AR at 2. ' "r
12
Plaintiff advances two arguments as to why the ALJ’s step three determination
was procedurally defective: (l) the ALJ did not adequately consider whether her_
combined physical and mental impairments were equivalent to a listed impairment, P1.’s
Mem. 16-17, and (2) the ALJ erred by receiving into evidence the opinion of a
psychologist, but not of a physician, regarding the equivalence of plaintiff’s impairments,
including “several non-psychosomatic severe impairments,” Pl.’s Mem. 15. I agree.
Despite having concluded in step two that plaintiff suffers from myriad severe
physical impairments, inclu‘ding angina, hypertension, sleep apnea, migraines, and history
of seizure, AR at 30, at step three the ALJ does not appear to have considered plaintiff’s
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He goes on, however, to discuss only “claimant’s mental impairments” in de_tail. Id.
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Assuming the ALJ’s general statement was meant to signal his evaluation of plaintiff s
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physical impairments, it is altogether insufficient. See Davis, 862 F. Supp. at 7. Absent a
discussion of the evidence related to plaintiff’s physical impairments, this Court is unable
to evaluate whether the ALJ’s determination is supported by substantial evidence.
éonsistent with this narrow focus, plaintiff alleges that the ALJ erred by only
receiving into evidence a report by a psychologist, and not a physician, regarding whether
plaintiff’s impairments medically equal a listing. Pl.’s Mem. 15. Although an ALJ
rjetains ultimate responsibility to decide the legal question of equivalence, Social Security
13
Ruling 96—6P (“SSR 96—6P”) requires an ALl to obtain the opinion of a state agency
physician or psychologist on the issue of medical equivalence. See 61 Fed. Reg. 34466,
34468 (July 2, 1996) (“[L]ongstanding policy requires that the judgment of a physician
(or psychologist) designated by the Commissioner on the issue of equivalence on the
evidence before the administrative law judge or the Appeals Council must be received
into the record as expert opinion evidence and given appropriate weight”); Barnett v.
Barnhart, 381 F.3d 664, 670-71 (7th Cir. 2004) (“Whether a claimant’s'impairment
equals a listing is a medical judgment, and an AILJ must consider an expert’s opinion on
the issue”). Although the requirement allows for the opinion of psychologists, they are
limited to “evluat in |-. . .mental-impa'lnfll'e'fi ”-20 CPR. § 404. 616 a l .
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suggestion Iis misleading. Because this report found that plaintiff‘s physical impairments
were not severe; it only seems to evaluate them inethe context of her RFC. AR at 100.
Needless to say, a determination of a plaintiff‘s RFC is a separate inquiry from the step
three determination of equivalence. See Carbajal v. Astrue, No. 10-cv-02025-PAB, 2011
WL 2600984, at *2-3 (D. Colo. June 29, 2011) (“The lack of a required medical opinion
on this issue is not rendered harmless by the ALJ’s findings at step four and five”).
Although defendant is correct that the burden is on plaintiff to demonstrate her
impairments meet or equal a listing at step three, the ALJ is required to consider all of
.J,
14
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plaintiff’s impairments, both physical and mental, and to develop the record by receiving
a physician’s opinion on equivalence according to SSR 96—6P.
Plaintiff further argues that, even with respect to her mental impairments, the ALJ
did not adequately consider the equivalence of her combined impairments because he did
not specifically discuss Listing 12.04 relating to “affective disorders.” Pl.’s Mem. 16-17.
Defendant disagrees, noting that the record contains the report of Dr. Norman Kane, who
specifically concluded that plaintiff’s impairments were not equivalent to Listing 12.04.
Delf.’s Mem. 19. This opinion, however, was not discussed in the ALJ’s decision. AR at
31-32. Because the ALJ retains the ultimate responsibility of determining equivalence, it
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relating to his step three determination. See Adefiqakinwa, 696 F. Supp. 2d at 111
(finding that disability cases should be remanded when the ALJ has failed to explain his
or her reasoning); Carbajal, 2011 WL 2600984, at *3 (remanding where the ALJ made
his step three finding without any opinion from a medical source on the issue of
equivalence); Brunson v. Astrue, 850 F. Supp. 2d 1293, 1307 (MD. Fla. 2011)
(remanding fOr failure to consider a physician’s opinion as to equivalence of a physical
impairment). Specifically, the ALJ should expressly consider plaintiff’s physical
impairments, including receiving into evidence the medical opinion of a physician
regarding equivalence, and should further explain his reasoning regarding his conclusion
15
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‘ 2009 that plaintiff’s various medical conditions prevented her from working and, in
that plaintiff’s mental impairments are not equivalent to a Listed Impairment, expressly
considering Listing 12.04.
III. The ALJ’s Residual Functional Capacity Analysis
Plaintiff next argues that the ALJ erroneously discounted the testimony of her
treating physician, Dr. Samuels, when evaluating her RFC and concluding she can
perform “light work.” P1.’s Mem. 17-18. I disagree. In determining a claimant’s RFC,
an ALJ is required to give “substantial weight” to the opinions of the claimant’s treating
physicians, but he need not accept medical opinions that are internally inconsistent or
contradicted by substantial evidence in the record. See 20 CPR. §§ 404.1527(c)(2),
416.927(c)(2)g :Williams, 997 F.2d at 1498. Whejl an ALl disregam the opinion ofa
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medical observations and other evidence in the record. Dr. Samuels commented in May
particular, that her “severe migraines” “restrict her day to day activity.” AR at 425=28. i
To the contrary, the record shows-that plaintiff did not experience debilitating migraines
on a daily basis, but, by plaintiffs own account, only three times a month. AR at 526-27,
580. Moreover, the record reveals that by October 2009, at the latest, these migraines
- were “well controlled with medication,” AR at 459, 46l——a fact that plaintiff reconfirmed
in March 2011, AR at 544. Not to be deterred, in an attempt to persuade this Court that
the ALJ’s reading of the record is'erroneous, plaintiff extrapolates from a May 2010
16
episode—in which she was hospitalized for a migraine that had persisted for five days—
that plaintiff may spend up to “half of any given month incapacitated” from migraines.
Pl.’s Opp’n 10. That inference, to say the least, is a stretch. Were plaintiff’s migraines
truly causing such an extreme level of disruption, one would expect plaintiff to point to
evidence beyond this singular hospital stay. Thus, while plaintiff disagrees with the
ALJ’s determination as to the severity of her migraines, in light of the" record, I see no
reason to disturb the ALJ’s decision to afford Dr. Samuels’ opinion little weight. This
decision is supported by substantial evidence in the record and is adequately explained in
the ALJ’s decision as required by law. AR at 34; see Williams, 997 F.2d at 1498.
Likewise, the NL—J didmo - 'mjt error b_y, as.plain_ti_ff-ale_scri_es i_t, “faij[i_ng-] to
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but instead an opinion on an issue reserved to the Commissioner because of its
dispositive nature. See 20 C.F.R. §§ 404.1527(d), 416.927(d).
IV. The ALJ’s Step Five Determination
Finally, plaintiff argues that substantial evidence does not support the ALJ’s
determination that plaintiff is capable of working as a housekeeper or sorter. Sge Pl.’s
Mem. 18-19. This argument turns on the same contention as plaintiff’s disagreement
with the ALJ regarding his RFC determination—that is, that the ALJ’s assessment of the
severity of plaintiffs migraines is without support in the record. Specifically, plaintiff
argues that contrary to the ALJ’s conclusion that plaintiff could perform the duties of a
17
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housekeeper or sorter, the vocational expert testified in this matter that “if the record
supports the severity and frequency of the headaches experienced by [p1aintiff_|,” “it
would preclude [her from] work.” AR at 78. What plaintiff fails to mention is that “the
severity and frequency” to which the vocational expert points is plaintiff’s own testimony
that she suffers from migraines three to four times per week. AR at 74-75. This fact is
clearly not supported by the record. Rather, as discussed in the prior section, the record
supports a finding that plaintiff suffered migraines only three times per month and that
they were controlled with medication. AR at 526-27, 580. The vocational expert’s
opinion, therefore, says nothing about plaintiff‘s actual ability to work. Thus, plaintiff
has failed to point to evidence that would undermine the ALJ’s step five determination.
CONCLUSION
For the foregoing reasons, the Court finds that this case must be remanded to the
AL]. A separate Order consistent with this decision accompanies this Memorandum
Opinion.
United States District Judge
18
determine the most work the claimant can still do despite her limitations. Id. §§
404.1520(a)(4), 416.920(a)(4), 404.1545(a). At step four, the claimant must demonstrate
that she is incapable of performing her prior work based on her RFC. Id. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If she makes this showing, the burden shifts at
step .five to the Commissioner to demonstrate that, based on the claimant’s RFC, she can
“make an adjustment to other work” in the national economy. Id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the Commissioner concludes that the claimant can engage in “other
work,” then she is not disabled under the regulations. Id. §§ 404.1520(g), 416.920(g).
Otherwise, the claimant is disabled and entitled to benefits. Id.
II'flra claimant’s'app '
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determination. See Simms v. Sullivan, 877 F.2d 1047, 1050 QD.C. Cir. 1989). The ALF;
opinion must show that he “has analyzed all evidence and has sufficiently explai_ned the
weight he has given to obviously probative lexhibits,” id, including evidence that was
rejected, Brown v. Bowen, 794 F.2d 703, 708 (DC. Cir. 1986). In particular, the ALJ is
required to give controlling weight to the medical opinions presentedlby the claimant’s
treating physician “unless [they are] contradicted by substantial evidence,” Williams v.
Shalala, 997 F.2d 1494, 1498 (DC. Cir. 1993), and must “give good reasons” for
rejecting such an opinion. 20 CPR. §§ 404.1527(c)(2), 416.927(c)(2); see also Jones v.
Astrue, 647 F.3d 350, 355-57”(D.C. Cir. 2011) (remanding case to the ALJ to explain his
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‘ reasons for rejecting treating physician’s opinion). However, a treating physician’s
opinion that a claimant is “unable to wor ” is not accorded any special deference. 20
CPR. §§ 404.1527(d), 416.927(d).
A claimant may appeal the ALJ’s decision to the Appeals Council. 20 CPR. §
416.1470(a). As part of its review, the Council is required to consider any additional
evidence submitted by the claimant that is new, material, and reasonably related to the
period prior to the ALJ’s decision. See id. § 416.1470(b). Evidence is “new” when it is
not duplicative or cumulative and is “material” when there is a “reasonable possibility
that the new evidence would have changed the outcome.” Jefiries v. Astrue, 723 F. Supp;
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“evidence is not related to the period at issue when [it] shows . . . [a] worsening of the
condition or onset of a new condition after the date of the ALJ opinion.” Id.
II. Factual Background
Plaintiff first applied for DIB and 881 benefits on December 29, 2009, claiming
that she had been disabled since May 29, 2009. AR at 220. Her initial application was
denied in July 2010, AR at 114, 118, as was her request for reconsideration, AR at 126,
130. She challenged the Commissioner’s decision at a hearing before an ALJ in July
2011. AR at 28. The ALJ found that she was not disabled and therefore was ineligible
for benefits on January 24, 2012. AR at 25. The ALJ’s determination was based on a
4
lengthy record that indicates plaintiff has suffered from myriad physical and mental
conditions over the last fifteen years, resulting in a long and complex medical history. In
the interests of judicial economy, I offer an overview of those portions of this record most
relevant to the arguments now before the Court.
In April 2008, plaintiff sought emergency medical treatment for chest pain and left
arm numbness, at which time she was diagnosed with atypical chest pain, hypertension,
migraine headache, history of seizure, and urinary tract infection. AR at 385-87. In May
2009, plaintiff again sought treatment for chest pain, AR at 431, which was determined to
be non-cardiac in nature, IAR at 436. On May 29, 2009, Caroline Samuels, M.D.
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found that plaintiff had no restrictions in her ability to sit, bend, squat, ol_imb, reach, and
crawl, but provided no opinion on her ability to walk, climb, or carry. AR at 426. She
estimated that plaintiff could. carry less than ten pounds. Id. As to plairjitiff’ s mental
condition, Dr. Samuels noted that plaintiff‘s anxiety disorder caused here to suffer
moderate restriction in activities of daily living and maintaining social functioning and
that plaintiff frequently had difficulty maintaining concentration, persistence, or pace. AR
at 427. Overall, Dr. Samuels estimated that plaintiff was unable to work from May 29,
2009 through May 29, 2010. Id. Over the next several months, plaintiff complained of
lingering pain in her a'nkle stemming from a previous sprain, AR at 460, 465, but her
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hypertension and migraines continued to be well-controlled, AR at 459, 461. However,
by May 7, 2010, plaintiff denied muscle aches, muscle weakness, arthralgias, joint pain,
headaches, and fatigue. AR at 582.
This respite from physical ailments, however, proved to be short-lived. On May
18, 2010, plaintiff went to the emergency room with a headache that had persisted five
days and was associated with nausea and upper extremity weakness. AR at 494, 498. On
December 3, 2010, plaintiff complained of migraines three times a month, anxiety attacks
about three times a week, and joint pains. AR at 580. In March 2011, plaintiff sought '
medical treatment for several episodes of syncope and continuing dizziness. AR at 540,
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Alongside her physical ailments, plaintiff suffers from serious mental h_ea_lth
.-
problems. At a relatively young age, plaintiff was diagnosed with generalized anxiety]:
disorder, AR at 526-27. On May 19, 2010, Stinanda Mangraj, M.D., who saw plaintiff
every few months for this disorder, opined that plaintiff” s prognosis was good, and that
she was capable of managing benefits on her own behalf and that she could perform work
related activities normally. AR at 488. On July 11, 2010, state agency medical
consultant M. Prout agreed noting that plaintiff’s generalized anxiety disorder was not a
severe mental impairment. AR at 509. On February 2, 2011, Judith Ryan, Ph.D. oversaw
a psychiatric consultative examination and concluded from plaintiff’s myriad symptoms
'91
that. plaintiff suffered from mild depression and opined that her mental condition was
marked by symptoms of bipolar disorder with psychotic features, including auditory and
visual hallucinations. AR at 526-29. On March 4, 201 1, state agency medical consultant
Norman Kane, Phi). reviewed plaintiff” 5 file and determined that plaintiff’ 3 mental
condition did not meet or equal any listed impairment, specifically considering Listing
12.04 for affective disorders. AR at 99.
Applying the five-step sequential evaluation process to these facts, the ALJ found
that plaintiff satisfied the first two steps of the evaluation, stating specifically that
plaintiff had eight “severe impairments: angina, hypertension, sleep apnea, migraines,
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determined that plaintiff had the RFC to perform light work, subject to several physical
and working-environment limitations. AR at 32. The ALJ Ifurt_her concluded that
plaintiff had moderate difficulties in daily activities, in social functioning, and in
concentration, persistence, or pace, which limited her to performing simple, routine
unskilled tasks not involving significant stress and involving no more than minimal
contact with co-workers, supervisors, or the public. AR at 32. Based on this assessment,
the ALJ concluded at step four that plaintiff was not able to perform her past relevant
work. AR at 35. Nonetheless, the ALJ found at step five that.plaintiff could perform Iv
light, unskilled jobs, such as a housekeeper or sorter, existing “in significant numbers in
the national economy.” AR at 35-36. Based on this finding, the ALJ determined that
plaintiff was not disabled and therefore not entitled to benefits.
In May 2013 plaintiff sought review of the ALJ’s decision by the Appeals
Council. AR at 23. She submitted new evidence to the Council regarding her September
2012 diagnosis of fibromyalgia. Pl.’s Mem. of Law in Supp. of Mot. for J. of Reversal 5
[Dkt #10-1] (“Pl.’s Mem.”). On June 15, 2013, the Council found that plaintiff’s request
for review was without merit because the evidence as to plaintiff s fibromyalgia
diagnosis was “about-a later time” and therefore “[did] not affect the decision about
whether [she was] disabled beginning on or before January 24, 2012.” AR at 1-2. On
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In a Social Security disability case, a reviewing court must uphold an AL'J’s
7
determination if it correctly applies the governing legal standards and is based on
substantial evidence in the record. 42 U.S'.'C. §§ 405(g), 1383(c)(3). ISubstantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate-to
support [a] conclusion,” Smith v. Bowen, 826 F.2d 1120, 1121 (DC. Cir. 1987), and
demands, as a practical matter, evidence of “more than a scintilla, but less than a
preponderance of the evidence,” Aflum v. United States, 566 F.3d 1150, 1163 (DC. Cir.
2009) (internal quotation marks omitted). A reviewing court may not substitute its own
judgment for that of the ALJ or engage in independent fact-finding. See Martin viiApfel,
8
1'18 F. Supp. 2d 9, 13 (D.D.C. 2000). Bearing in mind this deferential standard, this
Court’s task on appeal is to carefully scrutinize the record to determine whether the
ALJ’s decision is supported by substantial evidence and to ensure that the ALJ has
adequate1y articulated the basis for the decision. See Simms, 877 F.2d at 1050. Remand
is appropriate where it is unclear if “the [Commissioner] considered . . . new and material
evidence[],” if the record is incomplete, or if the ALJ’s reasoning is not fully articulated.
Ademakinwa v. Astrue, 696 F. Supp. 2d 107, 111 (D.D.C. 2010).
DISCUSSION
Plaintiff asks this Court to reverse the ALJ’s decision and order the Commissioner
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advisor designated to provide an opinion on the issue of equivalence and by failing to
consider whether the combination of plaintiff’s impairments “meet or equal” an
applicable Listed Impairment; (3) the ALJ abused her discretion in giving “little weight”
to the opinion of plaintiff’s treating physician; and (4) the ALJ lacked substantial
evidence to conclude plaintiff is capable of work. Pl.’s Mem. 5-6. For the reasons
discussed below, I find plaintiff’s arguments in favor of reversal unconvincing, but find
that the ALJ did commit several errors of law at step three warranting remand.
1. Evidence of Plaintiff’s Diagnosis of Fibromyalgia
Plaintiff’s first, and indeed predominant, complaint is that the Commissioner
' 9
failed to consider new and material evidence relating to her diagnosis of fibromyalgia.
When plaintiff sought Appeals Council review of the ALJ’s January 24, 2012 decision,
she asked the Council to consider evidence of her September 2012 diagnosis of
fibromyalgia. Pl.’s Mem. 12-14. Although the diagnosis of fibromyalgia post-dated the
ALJ’s decision, plaintiff argued it was related to the period on or before it. Id. The
Council disagreed. Finding that the evidence was “about a later time,” the Council
concluded that the evidence was irrelevant to the ALJ’s determination of plaintiff’s I
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disability on or before January 24, 2012. AR at 2. Plaintiff now asks this Court to
consider, in the first instance, the evidence of her fib‘romyalgia diagnosis, to conclude that
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upon the medical evidence of her fibromyalgia, the Court declin_es such invitation. This
5" Court will not embark on such an impermissible independent fact-finding endeavor. See
Butler, 353 F.3d at 999. It is for the Commissioner, and the Commissioner alone, to
determine in the first instance whether plaintiff has a medically determinable impairment
of fibromyalgia and whether that illness renders her disabled under the law. This Court’s
authority in this respect is limited to reviewing the Commissioner’s determination in light
of “the evidence upon which the findings and decision complained of are based” to
ensure it is supported by substantial evidence. 42 U.S.C. § 405(g). It would be
..- inappropriate for this Court to base a reversal and award of benefits on evidence that
10