                                                                        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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




                                          -4-
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...)

                                        -5-
         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.

                                             -6-
& 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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