Ruggiero v. Kijakazi et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LISA RUGGIERO,
Plaintiff,
v.
FRANK J. BISIGNANO, 1
Commissioner, 	Social 	Security
Administration,
Defendant.
No. 23-cv-12245-DLC
MEMORANDUM AND ORDER
CABELL, U.S.M.J.
I. 	INTRODUCTION
Plaintiff Lisa Ruggiero began receiving Supplemental Security
Income 	(“SSI”) 	in 	1989, 	after 	the 	Social 	Security 	Administration
(“SSA”) 	found 	her 	to 	be 	disabled 	due 	to 	a 	degenerative 	back
condition. 	In 	2020, 	some 	thirty 	years 	later, 	she 	applied 	on
similar grounds for additional SSA benefits known as Disabled Child
Benefits (“CDB”). 2 	Her application was denied for lack of proof,
1 The complaint originally named former SSA Commissioner Kilolo Kijakazi as the
defendant, but Frank Bisignano became the Commissioner in May 2025 and is thus
automatically substituted for Kijakazi as the defendant in this action. 	Fed.
R. Civ. P. 25(d).
2 Disabled Child Benefits were previously known as Disabled Adult Child (DAC)
benefits, but the SSA now refers to them as Childhood Disability Benefits, hence
the “CDB” abbreviation. 	CDB is income from the SSA for individuals that were
determined 	to 	be 	disabled 	prior 	to 	their 	22nd 	birthday 	and 	moreover 	were
dependent on an individual entitled to disability insurance benefits. 	42 U.S.C.
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chiefly 	because 	records 	detailing 	her 	medical 	history 	up 	to 	1989
had 	been 	lost. 	An 	Administrative 	Law 	Judge 	(“ALJ”) 	subsequently
convened a hearing on Ruggiero’s application and indicated that he
would 	try 	before 	reaching 	a 	decision 	to 	locate 	the 	lost 	records,
but 	he 	thereafter 	issued 	a 	written 	decision 	denying 	Ruggiero’s
application 	without 	commenting 	on 	what 	efforts 	if 	any 	had 	been
made 	to 	locate 	the 	lost 	records. 	Ruggiero 	moves 	to 	reverse 	the
Commissioner’s 	decision 	and 	to 	remand 	the 	matter 	for 	further
proceedings. 	(D. 	8). 	The 	Commissioner 	disagrees 	and 	seeks 	an
order affirming his decision. 	(D. 18).
This 	case 	presents 	a 	very 	close 	call. 	On 	the 	one 	hand, 	the
court 	finds 	no 	real 	basis 	to 	question 	the 	ALJ’s 	conclusion 	that
the 	evidence 	in 	the 	record 	did 	not 	support 	the 	plaintiff’s 	CDB
claim. 	Moreover, 	the 	record 	reflects 	that 	there 	previously 	have
been numerous attempts by others to find the missing records, and
it 	thus 	would 	not 	be 	unreasonable 	to 	infer 	that 	the 	records 	at
this 	point 	may 	simply 	be 	lost 	for 	good. 	That 	said, 	the 	ALJ’s
failure to even mention the issue at all in his decision raises at
least a question as to whether he conducted the search he signaled
he 	would 	conduct. 	And, 	because 	it 	is 	not 	known 	whether 	the
records, 	if 	they 	exist, 	might 	benefit 	the 	plaintiff’s 	claim, 	a
§ 402(d)(1). 	The plaintiff’s claim is associated with her father’s account.
(Tr. 267, 303). 	The CDB determination in this case does not affect Ruggiero’s
SSI.
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remand 	for 	greater 	clarity 	is 	appropriate. 	The 	court 	will
accordingly 	grant 	the 	plaintiff’s 	motion 	to 	reverse 	and 	deny 	the
Commissioner’s motion to affirm.
II. 	PROCEDURAL BACKGROUND
Ruggiero was born on August 23, 1965, and turned 22 on August
23, 1987. 	(Tr. 85). 	Following an application dated November 14,
1989, 	the 	SSA 	found 	her 	to 	be 	disabled 	based 	on 	a 	degenerative
back 	condition 	and 	awarded 	her 	SSI. 	(Tr. 	35). 	The 	file 	related
to 	Ruggiero’s 	1989 	SSI 	application 	was 	subsequently 	lost 	and 	has
been missing since at least April 19, 2011. 	(Tr. 91).
On 	May 	29, 	2020, 	Ruggiero 	filed 	an 	application 	for 	CDB 	with
an 	alleged 	onset 	date 	of 	July 	31, 	1983. 	(Tr. 	195-96). 	In
connection 	with 	the 	CDB 	application, 	Ruggiero 	claimed 	disability
due 	to 	fibromyalgia 	and 	Lyme 	disease. 	(Tr. 	271). 	The 	CDB
application 	was 	denied 	twice, 	first 	on 	September 	25, 	2020, 	and
then again on December 15, 2020, following Ruggiero’s request for
reconsideration. 	(Tr. 117-19, 127-29).
On June 28, 2022, an administrative law judge (“ALJ”) issued
a 	written 	opinion 	finding 	that 	Ruggiero 	was 	not 	entitled 	to 	CDB
because she was not able to prove that she was disabled within the
meaning 	of 	the 	Social 	Security 	Act 	(the 	“Act”) 	prior 	to 	turning
age 22 on August 23, 1987. 3 	(Tr. 29-38); see 42 U.S.C. § 1382c(a).
3 For some of his analysis, the ALJ stated that Ruggiero used the alleged onset
date 	of 	July 	31, 	1983. 	(Tr. 	31-32). 	This 	is 	immaterial, 	as 	his 	final
determination was that Ruggiero “ha[d] not been under a disability, as defined
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On 	July 	31, 	2023, 	the 	Appeals 	Council 	denied 	Ruggiero’s 	request
for 	review 	of 	the 	ALJ’s 	decision, 	making 	the 	ALJ’s 	opinion 	the
final 	decision 	of 	the 	Commissioner 	for 	purposes 	of 	this 	appeal.
(Tr. 	1-6); 	see 	Sims 	v. 	Apfel, 	530 	U.S. 	103, 	106-07 	(2000).
Ruggiero filed a timely appeal on September 30, 2023. 	(D. 1).
III. 	STATUTORY AND REGULATORY FRAMEWORK
To obtain disability benefits, a claimant must prove that she
is 	disabled, 	meaning 	that 	she 	is 	unable 	“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)(A). 	A claimant bears the burden of proving that she is
disabled and is responsible for producing evidence to support that
claim. 	Bowen v. Yuckert, 482 U.S. 137, 146 & n.5 (1987).
Claims 	for 	disability 	benefits 	are 	evaluated 	by 	an 	ALJ
following 	a 	mandated 	five-step 	process, 	although 	the 	ALJ 	can 	end
the inquiry at any step if he definitively finds that the claimant
is 	not 	disabled. 	20 	C.F.R. 	§ 	404.1520 	(a)(4). 	For 	claimants
applying 	for 	CDB, 	the 	ALJ 	must 	make 	this 	inquiry 	for 	the 	period
prior to the claimant’s 22nd birthday. 	20 C.F.R. § 404.350(a)(5).
in the Social Security Act, at any time prior to August 22 [sic], 1987, the
date she attained age 22.” 	(Tr. 37).
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At 	step 	one, 	the 	ALJ 	determines 	whether 	the 	claimant 	is
engaged 	in 	“substantial 	gainful 	activity.” 	20 	C.F.R. 	§
404.1520(a)(4)(i). 	If 	the 	claimant 	is 	engaged 	in 	substantial
gainful activity, then she is not disabled. 	If she is not engaged
in such activity the ALJ moves on to step two. 	Id.
At 	step 	two, 	the 	ALJ 	“consider[s] 	the 	medical 	severity 	of
[the claimant’s] impairment(s).” 	20 C.F.R. § 404.1520(a)(4)(ii).
If 	the 	claimant 	does 	not 	have 	at 	least 	one 	severe 	medically
determinable 	impairment 	or 	a 	combination 	of 	impairments 	that 	are
collectively severe, or if her severe impairments are not expected
to last for a continuous period of at least 12 months, then she is
not disabled. 	20 C.F.R. §§ 404.1520(a)(4)(ii); 404.1509. 4 	If she
does 	have 	such 	an 	impairment, 	or 	combination 	of 	impairments, 	the
ALJ moves on to step three.
At step three, the ALJ determines whether one or more of the
claimant’s impairments “meets or equals” one of the listings in 20
C.F.R. Pt. 404, Subpt. P, App’x 1, for the required length of time.
20 C.F.R. § 404.1520(a)(4)(iii). 	If an impairment, or combination
of impairments, “meets or equals” a listed condition, the claimant
is disabled. 	Id. 	If not, the ALJ moves on to step four.
At 	step 	four, 	the 	ALJ 	determines 	the 	claimant’s 	residual
functional 	capacity 	(“RFC”) 	to 	do 	her 	past 	relevant 	work 	or 	any
4 As discussed below, the ALJ determined Ruggiero was not disabled at step two
and therefore did not proceed to the other steps.
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work at all. 	20 C.F.R. § 404.1520(a)(4)(iv). 	If the claimant has
the 	RFC 	to 	do 	her 	previous 	relevant 	work, 	she 	is 	not 	disabled.
Id. 	If she does not, the ALJ moves on to step five to determines
whether the claimant can perform other specific jobs that exist in
the 	national 	economy. 	20 	C.F.R. 	§ 	404.1520(a)(4)(v). 	If 	the
claimant 	can 	perform 	another 	such 	job, 	then 	she 	is 	not 	disabled.
Id. If she cannot, then she is disabled. 	Id.
IV. 	FACTS
A. 	RELEVANT MEDICAL HISTORY
None of Ruggiero’s medical providers were able to locate any
pertinent records dating before her alleged onset date of July 31,
1983, 	and 	the 	records 	closest 	in 	time 	to 	that 	date 	postdate 	her
22nd 	birthday 	(August 	23, 	1987) 	and 	consist 	of 	disability 	forms
related to Ruggiero’s student loans, filled out by Fred Kantrowitz,
M.D. 	(“Dr. 	Kantrowitz”), 	and 	treatment 	notes 	from 	James
Gronemeyer, 	a 	Doctor 	of 	Osteopathic 	Medicine 	(“Dr. 	Gronemeyer”).
(Tr. 113, 566-70, 576-676).
Dr. 	Kantrowitz 	began 	treating 	Ruggiero 	for 	fibromyalgia 	in
March of 1988. 	(Tr. 566-570, 768). 	On a form dated June 1, 1992,
in a box titled “when did the borrower’s present illness or injury
start,” Dr. Kantrowitz noted that Ruggiero was “initially seen in
1988” 	and 	had 	a 	five-year 	history 	of 	fibromyalgia 	and 	low 	back
pain 	symptoms. 	(Tr. 	566). 	In 	another 	box 	on 	the 	same 	form, 	and
in 	two 	other 	documents 	dated 	February 	14 	and 	October 	1, 	1992,
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respectively, 	Dr. 	Kantrowitz 	indicated 	that 	Ruggiero 	became
“unable 	to 	attend 	work 	and 	earn 	money” 	in 	March 	1988, 	after 	her
August 1987 birthday. 	(Tr. 566-69).
Dr. 	Gronemeyer’s 	notes 	begin 	on 	January 	27, 	1989. 	On 	that
date, he mentioned that Ruggiero suffered pain from a motor vehicle
that occurred on “March 4th”, presumably March 4, 1988. 	(Tr. 577).
He 	also 	noted 	that 	Ruggiero 	began 	experiencing 	ankle 	swelling 	in
1983, discussed an event “in 1987” where Ruggiero fell and injured
her wrists and knees, and noted that Ruggiero reported a headache
she 	could 	feel 	in 	her 	“eyes, 	[and] 	frontal 	temple.” 	(Tr. 	576-
577).
The record also consists of the reports of those who evaluated
Ruggiero’s 	records 	in 	connection 	with 	her 	CDB 	application. 	In
June 	of 	2020, 	John 	Jao, 	M.D. 	(“Dr. 	Jao”) 	reviewed 	Ruggiero’s
record. 	(Tr. 85-93). 	Dr. Jao found for purposes of the five-step
mandated 	review 	process 	that 	Ruggiero 	did 	not 	(at 	step 	two) 	have
a 	medically 	determinable 	impairment, 	because 	there 	was
“insufficient 	evidence” 	to 	establish 	a 	disability 	for 	the 	period
between July 31, 1983, and Ruggiero’s 22nd birthday. 	(Tr. 92-93).
Dr. Jao stated more specifically that there was “[n]o evidence to
support 	allegations 	of 	fibromyalgia 	and 	[L]yme 	disease 	during
th[at] period.” 	(Tr. 92). 	Dr. Jao’s report noted that Ruggiero’s
1989 SSI file “is lost and unable to be obtained.” 	(Tr. 91).
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In December 2020 Uma Chelvan, M.D. (“Dr. Chelvan”) evaluated
Ruggiero’s record following Ruggiero’s request for reconsideration
of 	the 	denial 	of 	her 	claim 	for 	CDB. 	(Tr. 	105-15). 	Dr. 	Chelvan
similarly found that Ruggiero did not have a medically determinable
impairment 	between 	July 	31, 	1983 	and 	her 	22nd 	birthday, 	stating
that “[t]here [wa]s insufficient evidence to evaluate the claim.”
(Tr. 	113-114). 	Dr. 	Chelvan 	tried 	to 	obtain 	Ruggiero’s 	medical
record 	from 	her 	physicians 	but 	noted 	that 	“all 	sources 	prior 	to
[the 	alleged 	onset 	date] 	w[ere] 	sent 	requests 	and 	the 	responses
came back that no records [were] available.” 	(Tr. 113).
B. 	CORRESPONDENCE IN THE RECORD
Ruggiero 	also 	submitted 	a 	letter 	dated 	June 	15, 	2020 	in
support of her application. 5 	(Tr. 297-98). 	Ruggiero reported she
experienced 	her 	first 	symptoms 	of 	fibromyalgia 	“just 	before
college” but pushed through the pain to graduate. 	(Tr. 297). 	She
wrote that she had to leave her job as a senate aide in 1987, just
prior 	to 	turning 	22, 	due 	to 	debilitating 	“pain 	in 	[her] 	joints,
connective 	tissue, 	muscles, 	and 	back.” 	(Tr. 	297). 	Ruggiero
additionally noted that the pain she experienced in 1987 “and the
eventual ramifications of being hit by a drunk driver in March of
1988 	at 	the 	age 	of 	22, 	which 	caused 	a 	spinal 	injury 	of 	L5S1 	that
5 The ALJ summarized the letter including Ruggiero’s reported symptoms relative
to fibromyalgia in his decision. 	(Tr. 34). 	As noted below, the ALJ concluded
that 	Ruggiero’s 	fibromyalgia 	caused 	no 	“more 	than 	a 	minimal 	work 	related
limitation” prior to August 23, 1987. 	(Tr. 35).
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kept [her] unable to use [her] legs, made the situation that much
worse.” 	(Tr. 297).
Ruggiero, 	through 	counsel, 	also 	requested 	on 	at 	least 	three
occasions 	that 	her 	1989 	SSI 	file 	be 	obtained 	and 	considered,
including: 	(1) 	on 	November 	25, 	2020, 	while 	petitioning 	for
reconsideration of the denial of the claim for CDB; (2) on February
12, 2021, in requesting an administrative hearing; and (3) on May
9, 2022, in anticipation of the scheduled administrative hearing.
(Tr. 	326-27, 	333, 	335-36, 	383-85). 	In 	this 	last 	request,
Ruggiero’s 	counsel 	noted 	that 	the 	effort 	to 	locate 	records
predating her 22nd birthday had been “challenging” because few of
her 	treating 	physicians 	“retained 	records 	for 	that 	long.” 	(Tr.
384).
On May 7, 2022, Ruggiero’s mother wrote a letter, similar to
Ruggiero’s 	June 	15, 	2020 	letter, 	which 	described 	Ruggiero’s
conditions. 	She noted various injuries that Ruggiero had sustained
prior 	to 	turning 	22 	but 	specified 	that 	“slip[ping] 	on 	the 	stairs
when 	she 	was 	21 	finally 	caused 	[Ruggiero’s] 	illness 	to 	become
vocationally 	unmanageable.” 	Ruggiero’s 	mother 	stated 	that
Ruggiero received a fibromyalgia diagnosis “after college from Dr.
Fred Kantrowitz,” and her “symptoms got even worse” after she was
struck by a drunk driver in March 1988. 	(Tr. 365-368).
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C. 	THE ADMINISTRATIVE HEARING
The 	ALJ 	convened 	an 	administrative 	hearing 	on 	May 	16, 	2022,
and 	addressed 	the 	lost 	file 	at 	the 	outset. 	He 	noted 	that 	he 	did
not 	know 	“how 	much 	the 	bushes 	were 	beaten” 	or 	“what 	efforts 	were
made” 	to 	find 	the 	file, 	and 	mused 	that 	“sometimes 	records 	get
destroyed, sometimes they just haven’t been found.” 	The ALJ noted
that 	any 	records 	could 	be 	relevant 	there 	could 	be 	“information
about 	earlier 	medical 	issues” 	that 	preceded 	the 	onset 	date. 	The
ALJ stated that he would “leave the record open after the hearing”
because 	he 	was 	“inclined 	to 	go 	back 	and 	see” 	what 	efforts 	were
made to secure Ruggiero’s 1989 SSI file. 	Ruggiero’s counsel added
that 	he 	had 	tried 	to 	obtain 	Ruggiero’s 	medical 	records 	but 	“the
physicians[,] 	if 	they 	haven’t 	retired 	or 	passed 	away, 	you 	know,
even 	the 	ones 	that 	she’s 	continued 	to 	treat 	with[,] 	don’t 	have
records back that far.” 	(Tr. 47-50).
Ruggiero 	testified 	at 	the 	hearing 	about 	her 	background 	and
medical 	history 	prior 	to 	turning 	22. 	She 	testified 	specifically
about 	several 	instances 	throughout 	her 	childhood 	where 	she
experienced 	health 	issues. 	When 	she 	was 	around 	seven 	years-old,
Ruggiero experienced pain in her right hip from an unknown source.
(Tr. 	52). 	When 	she 	was 	twelve, 	Ruggiero 	fell 	off 	a 	horse 	and
injured 	her 	tailbone, 	but 	the 	pain 	associated 	with 	both 	injuries
“eventually quieted down” and “just went away.” 	(Tr. 52).
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Ruggiero 	noted 	that 	she 	was 	“very 	active 	in 	sports” 	leading
up to her high school years. 	(Tr. 51). 	In eighth grade, Ruggiero
was put in a cast after injuring her ankle playing softball. 	(Tr.
52). 	No 	X-rays 	or 	other 	images 	were 	taken 	and 	“after 	about 	two
months 	or 	so” 	the 	swelling 	went 	away. 	(Tr. 	52). 	When 	Ruggiero
was 	fifteen, 	she 	dislocated 	her 	coccyx. 	(Tr. 	52-53). 	Ruggiero
also 	testified 	that 	before 	she 	turned 	seventeen 	her 	friend
“accidently 	twisted 	[her] 	wrist” 	which 	caused 	it 	to 	swell,
requiring 	her 	to 	wear 	a 	brace. 	(Tr. 	53). 	After 	graduating 	high
school, 	while 	spending 	a 	weekend 	in 	the 	Catskills, 	Ruggiero
experienced 	an 	ankle 	injury. 	(Tr. 	53). 	According 	to 	Ruggiero,
she saw specialists in relation to her ankles who could not figure
out 	what 	was 	wrong 	with 	her 	outside 	of 	“kn[owing] 	[she] 	had 	some
sort of swelling arthritic problem.” 	(Tr. 53). 	Ruggiero further
testified 	that 	was 	likely 	“when 	the 	possible 	tick 	bite 	happened
that 	may 	have 	caused 	the 	fibro[myalgia].” 	(Tr. 	54). 	Due 	to 	the
swelling 	in 	her 	ankles, 	Ruggiero 	indicated 	she 	wore 	two 	walking
casts, used crutches, and was accommodated at her work with a job
that required less standing. 	(Tr. 53-54). 	She eventually started
using 	a 	wheelchair 	because 	of 	her 	ankle 	swelling 	but 	stopped
shortly 	before 	going 	to 	college. 	(Tr. 	56-57). 	A 	“special 	diet”
also helped reduce her inflammation. 	(Tr. 57).
Ruggiero started at Skidmore College in September of 1983 and
was a double major in English and Theater Arts. 	(Tr. 54-56, 361).
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She 	testified 	she 	was 	still 	bothered 	by 	ankle, 	wrist, 	and 	back
pain while she attended Skidmore. 	(Tr. 56-57). 	Ruggiero received
a 	note 	from 	her 	doctor 	modifying 	her 	work 	study 	job 	and 	allowing
her 	to 	sit. 	(Tr. 	57-58). 	Ruggiero 	testified 	that 	she 	could 	not
play 	sports 	while 	at 	Skidmore 	and 	that 	she 	was 	given 	an
accommodation 	by 	the 	school 	to 	do 	a 	less 	physically 	demanding
senior 	project. 	(Tr. 	58-60). 	Ruggiero 	testified 	that 	two
photographs in the record with her wearing a wrist brace were taken
while she was attending Skidmore. 	(Tr. 60-61, 381-82). 	Ruggiero
stated she “got[] so bad physically” during the summer before her
senior 	year 	at 	Skidmore 	that 	her 	doctor 	said 	she 	could 	no 	longer
live off campus. 	(Tr. 61-62).
Ruggiero 	graduated 	from 	Skidmore 	in 	May 	of 	1987 	and 	started
working 	as 	an 	intern 	for 	a 	state 	senator. 	(Tr. 	62-63). 	During
the summer of 1987, towards the end of July, Ruggiero slipped while
walking down a flight of stairs, “went down a couple steps on [her]
ankles” 	and 	her 	tailbone 	before 	landing 	“really 	hard 	on 	[her]
ankles 	with 	[her] 	shoulder 	and 	[her] 	wrists 	just 	twisted.” 	(Tr.
65). 	Ruggiero 	stated 	she 	could 	barely 	move 	and 	was 	not 	able 	to
return 	to 	work 	due 	to 	the 	pain 	and 	swelling 	associated 	with 	the
injury. 	(Tr. 	65-66). 	She 	also 	stated 	she 	could 	not 	put 	her
sneakers on to go to the doctor because her feet were too swollen.
(Tr. 	66). 	At 	the 	time 	of 	the 	fall, 	Ruggiero 	“had 	done 	most 	of
[the 	internship].” 	(Tr. 	68). 	An 	article 	published 	by 	a 	local
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newspaper 	on 	August 	9, 	1987 	noted 	that 	Ruggiero 	was 	unable 	to
complete 	her 	internship 	because 	she 	“suffered 	an 	injury 	in 	an
accident.” 6 	(Tr. 	66-67, 	379). 	She 	testified 	that 	the 	fall
exacerbated her fibromyalgia symptoms in her wrists, ankles, back,
and tailbone. 	(Tr. 73-74). 	Ruggiero did not work in any capacity
after 	July 	of 	1987. 	(Tr. 	68). 	Ruggiero 	also 	testified 	that,
sometime 	after 	the 	incident 	in 	July 	1987 	but 	before 	March 	1988,
she 	started 	seeing 	a 	doctor 	in 	Brookline 	who 	diagnosed 	her 	with
fibromyalgia. 	(Tr. 	74-76). 	The 	doctor 	was 	located 	either 	on
“Longwood Drive or Beacon Street at that time.” 	(Tr. 75).
In 	March 	of 	1988, 	Ruggiero 	was 	involved 	in 	a 	motor 	vehicle
accident 	that 	injured 	her 	neck 	and 	back. 	(Tr. 	68-69). 	She
underwent 	imaging 	for 	injuries 	akin 	to 	whiplash. 	(Tr. 	69).
Ruggiero testified that the car accident exacerbated her arthritis
and fibromyalgia. 	(Tr. 69). 	She further testified that the “car
accident just made everything, you know, worse but [the pain] had
gotten so much worse, you know, because of the [1987] fall.” 	(Tr.
80). 	Relatedly, Ruggiero explained that she applied for SSI when
the “delayed effects” from both the 1988 car accident and the 1987
fall left her unable to walk. 	(Tr. 80-81). 	In 2020, “Ms. Martinez
6 The ALJ acknowledged this injury and the newspaper article in his decision
but did not find the evidence to be convincing to show Ruggiero was disabled
because of the fall. 	(Tr. 35). 	First, he noted the lack of medical records
indicative 	of 	work-related 	limitations. 	Second, 	he 	noted 	Dr. 	Kantrowitz’s
finding 	that 	Ruggiero’s 	“fibromyalgia 	did 	not 	become 	disabling 	until 	March
1988.” 	(Tr. 35; 567).
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called” Ruggiero to let her know that there was “something in some
notes 	in 	[her] 	record” 	that 	indicated 	she 	should 	apply 	for 	CDB,
and she did so shortly thereafter. 	(Tr. 50-51). 	At the hearing,
the 	alleged 	onset 	date 	of 	Ruggiero’s 	disability 	was 	amended 	from
July 31, 1983, to “July of [19]87.” 	(Tr. 81-82).
At the close of the hearing, the ALJ forthrightly stated that
“[t]he 	problem 	with 	the 	case 	is 	just 	a 	lack 	of 	information” 	and
that he was going to “leave the record open for 30 days to sort of
see if we can find any more records.” 	(Tr. 82). 	The ALJ indicated
he would “make an attempt to get the file, you know, to see if --
shake 	the 	tree 	at 	the 	agency 	to 	see 	if 	something 	will 	come 	out”
and 	that 	he 	would 	decide 	the 	case 	once 	he 	had 	everything. 	(Tr.
82). 	The 	ALJ 	stated 	that 	Ruggiero 	and 	her 	counsel 	would 	be
notified if he found any records that could be added to Ruggiero’s
file. 7 	(Tr. 83). 	The ALJ further noted that if they were able to
find 	additional 	records 	and 	“things 	change,” 	he 	“may 	have 	a
supplemental 	hearing.” 	(Tr. 	83). 	No 	vocational 	testimony 	was
taken in the hearing. 	(Tr. 82).
D. 	THE ALJ’S FINDINGS
On June 28, 2022, the ALJ issued a decision denying Ruggiero’s
application on the ground that she had not been under a disability
prior to her 22nd birthday. 	(Tr. 29). 	In so finding, the record
7 The transcript misattributes this statement to Ruggiero’s attorney.
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does not reflect one way or the other whether the ALJ searched for
or 	made 	any 	inquiries 	regarding 	the 	lost 	file 	following 	the
administrative hearing, although it is clear that the ALJ did not
convene a supplemental hearing.
The 	ALJ’s 	review 	was 	fairly 	truncated 	here 	given 	the
information 	before 	him. 	The 	ALJ 	found 	at 	step 	one 	that 	Ruggiero
had 	not 	engaged 	in 	substantial 	gainful 	activity 	since 	July 	31,
1983, 	but 	found 	at 	step 	two 	that 	she 	was 	not 	suffering 	from 	a
severe medical impairment or combination of impairments during the
relevant 	period, 	and 	thus 	was 	not 	disabled 	within 	the 	meaning 	of
the Social Security Act.
In 	determining 	that 	the 	plaintiff 	was 	not 	suffering 	from 	a
severe 	medical 	impairment, 	the 	ALJ 	first 	considered 	the
impairments 	the 	plaintiff 	testified 	to, 	including 	her 	fatigue,
swollen 	ankles, 	fractured 	coccyx 	or 	tailbone, 	wrist 	pain, 	Lyme
disease, 	and 	chronic 	benzodiazepine 	use. 	(Tr. 	32-33). 	The 	ALJ
found none of these impairments was medically determinable, noting
that medical and psychological impairments need to be established
by 	“medical 	evidence 	consisting 	of 	signs 	symptoms 	and 	laboratory
findings, 	not 	only 	the 	claimant’s 	statement 	of 	symptoms.” 	(Tr.
32-33). 8 	Unsurprisingly given the loss of the 1989 file, the ALJ
8 Pertinent to the above, a medically determinable impairment “must result from
anatomical, physiological, or psychological abnormalities that can be shown by
medically 	acceptable 	clinical 	and 	laboratory 	diagnostic 	techniques” 	and
therefore “must be established by objective medical evidence from an acceptable
medical source. [The ALJ] will not use [the claimant’s] statement of symptoms,
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found no record of Ruggiero testing positive for Lyme disease prior
to 	August 	22, 	1987, 9 	and 	similarly 	found 	no 	medical 	evidence 	in
the record (outside of subjective statements of the plaintiff and
her 	supporters) 	to 	support 	Ruggiero’s 	allegations 	of 	fatigue,
chronic 	benzodiazepine 	use, 	spine, 	ankle, 	wrist, 	and 	tailbone
impairments 	before 	she 	turned 	22. 	The 	ALJ 	acknowledged 	the
plaintiff 	and 	others 	offered 	subjective 	statements 	supporting
these 	conditions 	but 	found 	that 	these 	allegations 	alone 	were 	not
enough to establish the conditions as medically determinable. 	(Tr.
32-33); see 20 C.F.R. § 404.1521.
By 	contrast, 	the 	ALJ 	found 	the 	plaintiff’s 	claimed
impairments 	of 	fibromyalgia 	and 	migraines 	to 	be 	medically
determinable 	because 	“[Dr. 	Gronemeyer’s] 	progress 	notes 	in 	1988,
Dr. 	Kantrowitz’s 	statements, 	and 	record 	as 	a 	whole” 	reflected 	a
finding that Ruggiero’s migraines and fibromyalgia were medically
determinable 	prior 	to 	her 	22nd 	birthday. 	(Tr. 	37) 	(citing 	Tr.
566, 576, 768).
The ALJ then considered whether those impairments would have
significantly 	limited 	Ruggiero’s 	ability 	to 	perform 	basic 	work
prior to her 22nd birthday. 	(Tr. 33); see 20 C.F.R. § 404.1522(a)
a diagnosis, or a medical opinion to establish the existence of [the claimant’s]
impairment(s).” 	20 C.F.R. § 404.1521.
9 The ALJ incorrectly noted several times in his decision that Ruggiero’s 22nd
birthday was August 22 instead of August 23, 1987. 	(Tr. 32-37). 	This one-day
difference is of no consequence.
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(“[A]n 	impairment 	or 	combination 	of 	impairments 	is 	not 	severe 	if
it does not significantly limit your physical or mental ability to
do basic work activities.”). 	The ALJ found Ruggiero’s statements
regarding “the intensity, persistence and limiting effects” of her
fibromyalgia 	and 	migraine 	symptoms 	“[were] 	not 	entirely
consistent.” 	(Tr. 	34). 	As 	such, 	the 	ALJ 	determined 	there 	was
insufficient 	evidence 	to 	support 	that 	either 	Ruggiero’s
fibromyalgia 	or 	her 	migraines 	caused 	more 	than 	minimal 	work-
related limitations prior to her 22nd birthday. 10 	(Tr. 35-36).
Specific 	to 	Ruggiero’s 	fibromyalgia, 	the 	ALJ 	found 	that 	the
record 	contained 	no 	evidence 	of 	“at 	least 	11 	out 	of 	18 	total
tender-points 	by 	an 	acceptable 	medical 	source” 	to 	indicate
Ruggiero’s fibromyalgia was disabling prior to her 22nd birthday. 11
(Tr. 	35). 	The 	ALJ 	further 	noted 	that 	the 	record 	did 	not
“consistently 	show 	six 	or 	more 	constitutional 	symptoms 	closely
correlated to fibromyalgia, such as, fatigue, cognitive or memory
10 Specific to migraines, the ALJ found no evidence in the record showing that
migraines caused “dizziness, nausea, photophobia, or sound sensitivity” that
would significantly limit Ruggiero’s ability to perform basic work. 	(Tr. 36).
The lack of evidence combined with the fact Ruggiero was a “full-time college
student from 1983-1987 in addition to the summer jobs and/or work study she
held” led the ALJ to find that the migraines did not constitute a severe medical
impairment. 	(Tr. 36).
11 See SSR 12-2p, 77 Fed. Reg. 143, at 43641-42 (July 25, 2012) (describing “The
1990 	[American 	College 	of 	Rheumatology] 	Criteria 	for 	the 	Classification 	of
Fibromyalgia,” which is one of two sets of criteria the SSA uses to find if a
claimant has a medically determinable impairment of fibromyalgia by determining
“if he or she has all three of the following: . . . [a] history of widespread
pain[,] . . . [a]t least 11 positive tender points on physical examination[,]
. . . [and] [e]vidence that other disorders that could cause the symptoms or
signs were excluded”). 	The ALJ cited SSR 12-2p in his decision. 	(Tr. 34).
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impairment, dizziness, anxiety disorder, or depression during the
period 	at 	issue.” 12 	(Tr. 	35). 	The 	ALJ 	pointed 	out 	that, 	while
Ruggiero did report pain throughout her body, there was “little to
no evidence that other disorders that could cause the same symptoms
or 	signs 	were 	excluded,” 	which 	the 	ALJ 	found 	noteworthy 	given
Ruggiero’s history of acute injuries causing pain symptoms. 	(Tr.
35); see SSR 12-2p, 77 Fed. Reg. at 43641-42. 	The ALJ also noted
that there were statements from Ruggiero’s treating physician, Dr.
Kantrowitz, 	indicating 	Ruggiero’s 	fibromyalgia 	“did 	not 	become
disabling until March 1988,” that is, after her alleged onset date
of 	disability. 	(Tr. 	35). 	The 	ALJ 	found 	these 	statements 	to 	be
persuasive in determining Ruggiero’s fibromyalgia “caused no more
than 	a 	minimal 	work-related 	limitation 	prior 	to 	August 	22, 	1987”
as they were “somewhat supported by contemporaneous progress notes
and 	the 	claimant’s 	spinal 	injuries 	from 	her 	motor 	vehicle
accident.” 	(Tr. 	37). 	The 	ALJ 	further 	indicated 	there 	were 	“no
medical records showing abnormalities on physical examinations to
support work related limitations” as a result of the 1987 incident
where Ruggiero fell down the stairs. 	(Tr. 35).
12 See SSR 12-2p, 77 Fed. Reg. at 43642 (describing “The 2010 [American College
of Rheumatology] Preliminary Diagnostic Criteria” which is the second of two
sets of criteria the SSA uses to find if a claimant has a medically determinable
impairment of fibromyalgia by determining if the claimant “has all three of the
following criteria: . . . [a] history of widespread pain[,] . . . [r]epeated
manifestations of six or more [fibromyalgia] symptoms, signs, or co-occurring
conditions[,] . . . [and] [e]vidence that other disorders that could cause these
repeated 	manifestations 	of 	symptoms, 	signs, 	or 	co-occurring 	conditions 	were
excluded”)
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The ALJ also considered the findings of both Dr. Jao and Dr.
Chelvan 	and 	concluded 	they 	were 	consistent 	with 	the 	record 	as 	a
whole. 	(Tr. 	36). 	Of 	note, 	the 	ALJ 	noted 	that 	Dr. 	Chelvan 	had
asked 	Ruggiero’s 	physicians 	for 	additional 	records 	and 	had 	been
told that no additional records were available. 	(Tr. 36).
The 	ALJ 	accordingly 	found 	on 	the 	record 	before 	him 	that
Ruggiero 	was 	not 	suffering 	from 	a 	severe 	medical 	impairment 	or
combination 	of 	impairments 	during 	the 	relevant 	period, 	and 	for
that reason correspondingly found that she was not disabled prior
to her 22nd birthday. 	(Tr. 36).
V. 	STANDARD OF REVIEW
The 	court 	has 	the 	power 	to 	affirm, 	modify, 	or 	reverse 	a
decision made by the Commissioner. 	42 U.S.C. § 405(g). 	Generally,
the 	court 	reviews 	findings 	of 	the 	Commissioner 	only 	to 	determine
if 	the 	Commissioner’s 	decision 	is 	based 	on 	the 	correct 	legal
standard and is supported by substantial evidence. 	See Teague v.
Colvin, 	151 	F. 	Supp. 	3d 	223, 	226 	(D. 	Mass. 	2015). 	Substantial
evidence is “more than a mere scintilla[,] [i]t means such relevant
evidence as a reasonable mind might accept as adequate to support
[the Commissioner’s] conclusion.” 	Richardson v. Perales, 402 U.S.
389, 401 (1971) (citation omitted); see also Roman–Roman v. Comm'r
of 	Soc. 	Sec., 	114 	F. 	App'x 	410, 	411 	(1st 	Cir. 	2004) 	(per 	curiam)
(holding decision is supported by substantial evidence if there is
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“evidence rationally adequate on the record as a whole to justify
the [Commissioner’s] conclusion”).
VI. 	DISCUSSION
Under 	20 	C.F.R. 	§ 	404.900(b), 	the 	SSA 	conducts 	“the
administrative 	review 	process 	in 	an 	informal, 	non-adversarial
manner.” 	Because of this non-adversarial review, it is the ALJ's
duty 	to 	develop 	the 	record. 	Sims 	v. 	Apfel, 	530 	U.S. 	103, 	104
(2000). 	If there is insufficient evidence to determine whether a
claimant 	has 	a 	disability, 	the 	ALJ 	may 	recontact 	the 	claimant’s
medical 	sources, 	request 	additional 	existing 	evidence, 	ask 	the
claimant to undergo a consultative examination, or ask the claimant
or 	others 	for 	more 	information. 	20 	C.F.R. 	§ 	404.1520b(b)(2)
(noting 	the 	action 	taken 	will 	“depend 	on 	the 	nature 	of 	the 	. 	. 	.
insufficiency”). 	If 	“despite 	efforts 	to 	obtain 	additional
evidence, 	the 	evidence 	is 	insufficient 	to 	determine 	whether 	[the
claimant] 	is 	disabled, 	[the 	ALJ] 	will 	make 	a 	determination 	or
decision 	based 	on 	the 	evidence 	[he] 	has.” 	20 	C.F.R. 	§
404.1520b(b)(3). 	When 	an 	ALJ 	does 	not 	fully 	develop 	the 	factual
record, 	the 	ALJ 	commits 	legal 	error, 	and 	a 	remand 	may 	be
appropriate. 	See e.g., Tegan S. v. Saul, 546 F. Supp. 3d 162, 171
(D.R.I. 2021) (holding that remand was required because ALJ erred
in not exercising duty to develop the record pursuant to 20 C.F.R.
§ 404.1520b(b)(2) when faced with insufficient evidence to decide
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whether 	claimant's 	fibromyalgia 	was 	a 	medically 	determinable
impairment).
The 	Commissioner 	argues 	that 	the 	ALJ 	reached 	a 	sound
determination 	based 	on 	the 	evidence 	before 	him, 	but 	the 	critical
issue 	is 	whether 	the 	ALJ 	properly 	developed 	the 	record 	before
making that determination. 	Ruggiero contends that the ALJ failed
to 	adequately 	develop 	the 	record 	by 	not 	locating 	and 	considering
her 	1989 	records. 	Again, 	due 	to 	the 	“inquisitorial 	rather 	than
adversarial” 	nature 	of 	Social 	Security 	proceedings, 	an 	ALJ 	has 	a
duty “to investigate the facts and develop the arguments both for
and against granting benefits,” see Sims, 530 U.S. at 110-11, and
to “consider all evidence available” in the case record. 	42 U.S.C.
§ 423(d)(5)(B) (emphasis added).
As 	noted 	above, 	the 	ALJ 	unquestionably 	acknowledged 	at 	the
administrative 	hearing 	that 	potentially 	relevant 	records 	were
missing, 	and 	he 	indicated 	he 	would 	“make 	an 	attempt 	to 	get 	the
file, you know, to see if --shake the tree at the agency to see if
something 	will 	come 	out,” 	and 	then 	decide 	the 	case 	or 	maybe 	even
convene 	further 	proceedings. 	It 	is 	also 	clear 	that 	the 	ALJ 	then
proceeded 	to 	render 	a 	decision 	without 	mentioning 	whether 	any
efforts had been made to locate the missing information.
It 	arguably 	would 	not 	be 	unreasonable 	to 	infer 	that 	the 	ALJ
did 	cause 	a 	search 	to 	be 	made 	for 	the 	lost 	records 	and 	that 	the
search simply turned up nothing new. 	After all, the ALJ signaled
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he might convene further proceedings if additional information was
located, and the fact that he ruled without doing so could be seen
as 	consistent 	with 	his 	proceeding 	to 	rule 	after 	having 	conducted
an 	unfruitful 	search. 	At 	the 	same 	time, 	though, 	it 	is 	somewhat
curious 	and 	concerning 	given 	its 	potential 	significance 	that 	the
ALJ 	did 	not 	at 	least 	mention 	the 	lost 	records 	issue 	and 	what 	if
anything 	happened 	following 	the 	administrative 	hearing. 	This 	at
least raises the possibility that the ALJ may have simply forgotten
to 	make 	an 	inquiry 	into 	the 	missing 	records, 	or 	for 	some 	other
reason 	chose 	not 	to 	do 	so. 	Whatever 	the 	reason, 	it 	leaves 	the
court 	unable 	to 	readily 	agree 	that 	the 	ALJ 	made 	the 	requisite
“reasonable effort” to affirmatively develop the record and obtain
missing information that he was aware was not in the record. 	See
20 	C.F.R. 	§ 	404.1512(b) 	(stating 	that 	the 	Social 	Security
Administration 	agency 	must 	make 	“every 	reasonable 	effort” 	to
obtain 	all 	medical 	evidence 	including 	an 	initial 	request 	for
records 	and 	a 	follow-up 	request 	within 	ten 	to 	twenty 	days 	if
records are not received).
The ALJ’s decision itself tends to underscore that the failure
to try and obtain these records (assuming there was a failure) was
not 	harmless 	where 	the 	decision 	to 	deny 	the 	plaintiff’s 	claim 	is
based 	ultimately 	on 	the 	plaintiff’s 	failure 	to 	marshal 	enough
supportive 	evidence, 	including 	in 	particular 	medical 	treatment
notes 	during 	the 	critical 	1987-1998 	time-period. 	See 	Viega 	v.
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Colvin, 5 F. Supp. 3d 169, 176-77 (D. Mass. 2014). 	Assuming such
records 	exist, 	it 	is 	at 	least 	plausible 	that 	they 	might 	have
provided some support for the plaintiff’s claim. 	A remand is thus
warranted to determine whether the ALJ made a reasonable effort to
develop the record before deciding the plaintiff’s application.
Without deigning to dictate the mechanics of any proceedings
that should follow on remand, the court presumes that if reasonable
efforts 	were 	not 	made 	following 	the 	administrative 	hearing 	to
locate the missing records, they will now be made. 	However, should
the 	ALJ 	indicate 	that 	he 	did 	make 	a 	reasonable 	but 	ultimately
unsuccessful 	effort 	to 	locate 	the 	missing 	records, 	the
determination 	in 	this 	case 	might 	well 	remain 	unchanged. 	See 	20
C.F.R. § 404.1520b(b)(3) (If “despite efforts to obtain additional
evidence, 	the 	evidence 	is 	insufficient 	to 	determine 	whether 	[the
claimant] 	is 	disabled, 	[the 	ALJ] 	will 	make 	a 	determination 	or
decision 	based 	on 	the 	evidence 	[he] 	has.”). 	In 	this 	regard, 	the
court 	takes 	no 	position 	on 	the 	plaintiff’s 	contention 	that 	the
“obvious 	gap 	in 	the 	medical 	record” 	would 	“require[] 	further
development 	of 	the 	record,” 	including 	possibly 	consultation 	with
a medical expert to determine disability onset.
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VII. CONCLUSION
For the foregoing reasons, the plaintiff’s motion to reverse
the 	Commissioner’s 	decision 	(D. 	8) 	is 	GRANTED 	and 	the
Commissioner’s 	motion 	to 	affirm 	the 	decision 	(D. 	18) 	is 	DENIED.
The matter is remanded to the Commissioner for further proceedings
consistent with this opinion.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED: 	March 31, 2026
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