Linda Ostalaza v. Michael J Astrue, No. 2:2008cv02183 - Document 17 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agencys decision is reversed and the case is remanded for further proceedings consistent with this Opinion. (rp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LINDA OSTALAZA, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-2183 PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal of a decision by Defendant 19 Social Security Administration ( the Agency ), denying her application 20 for Supplemental Security Income benefits ( SSI ). 21 that the Administrative Law Judge ( ALJ ) erred in: (1) failing to 22 follow the directives of Social Security Ruling 99-2p in evaluating 23 Plaintiff s fibromyalgia; (2) failing to properly analyze the effect 24 of Plaintiff s obesity on her other impairments, as required under SSR 25 02-1p; (3) improperly rejecting the treating physicians opinions; (4) 26 improperly discrediting the testimony of Plaintiff and of her 27 daughter, Yolindita Abbott; and (5) failing to obtain testimony from a 28 Plaintiff claims (Joint Stip. at 16.1) 1 vocational expert. 2 below, the Court concludes that the ALJ did err and that remand is 3 warranted for further consideration. 4 5 For the reasons explained II. BACKGROUND On April 9, 2004, Plaintiff applied for SSI, claiming that she 6 had been disabled since March 3, 1992, due to osteoarthritis, knee, 7 fibromyalgia, shortness of breath, ulcer, chipped tailbone, 8 osteoporosis, depression, back, muscle spasm, tail bone, asthma. 9 (Administrative Record ( AR ) 49, 67-69.)2 The Agency denied the 10 application initially and on reconsideration. 11 then requested and was granted a hearing before an ALJ. 12 On May 17, 2007, Plaintiff appeared at the hearing without counsel and 13 testified. 14 denying the application. 15 4-6), Plaintiff filed the instant action. (AR 382-413.) (AR 49-60.) Plaintiff (AR 34, 61.) On July 16, 2007, the ALJ issued a decision (AR 15-27.) Following denial of review, (AR 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court has presented Plaintiff s claims in the order that it will address them herein. It is not the same order that Plaintiff presented them in the Joint Stipulation. 2 Plaintiff first applied for SSI on June 29, 1998, but, after her application was denied by the Agency on October 28, 1999, she did not appeal. (AR 36-43.) Though the Agency applied a presumption of continuing non-disability to Plaintiff s second SSI application in 2004, the ALJ found that Plaintiff had successfully rebutted that presumption. (AR 18-19, 138.) The Court notes that the ALJ s finding was based, in part, on an alleged disability onset date of March 3, 2004, whereas the record shows that the onset date in Plaintiff s SSI application was amended, in handwriting, from March 2004 to March 1992. (AR 67.) Regardless, this discrepancy has no bearing on the issues raised in the current proceeding. 2 1 III. ANALYSIS 2 A. Application of Social Security Ruling 99-2p 3 Plaintiff contends that the ALJ failed to follow the directives (Joint Stip. at 32-37.)3 4 of Social Security Ruling ( SSR ) 99-2p. 5 Plaintiff argues that, under SSR 99-2p, the ALJ could not reject the 6 functional limitations opined by Plaintiff s treating physician, Dr. 7 Bora Kim, without first recontacting Dr. Kim for further 8 clarification of the severity of her fibromyalgia and what functional 9 restrictions would reasonably be expected to result therefrom[.] 10 11 (Joint Stip. at 35.)4 For the following reasons, the Court disagrees. SSR 99-2p, which ostensibly addresses the evaluation of cases 12 involving chronic fatigue syndrome but also appears to be applicable 13 to cases involving fibromyalgia, provides guidance for developing and 14 evaluating [disability] claims . . . on the basis of Chronic Fatigue 15 Syndrome (CFS)[.] 16 provides guidelines to aid the adjudicator in determining whether CFS 17 is a medically-determinable impairment at step two of the sequential 18 disability analysis. 19 adjudicator finds that the evidence is inadequate to determine whether 20 the individual is disabled . . . she must first recontact the The ruling sets forth a definition of CFS and The ruling also states that [i]f the 21 22 23 24 25 26 27 28 3 The SSR s are not published in the federal register and do not have the force of law. Quang Van Han v. Bowen, 882 F.2d 1453, 1457 & n.6 (9th Cir. 1989). The Court does, however, defer to the Agency s interpretation of its regulations unless they are plainly erroneous or inconsistent with [the Social Security] Act or regulations. Id. at 1457. 4 Plaintiff also argues that the ALJ violated the precepts of SSR 99-2p more generally by failing to provide sufficient and legitimate grounds for rejecting the treating physician s opinion. (Joint Stip. at 36-37.) The Court separately addresses that contention below. 3 1 individual s treating or other medical source(s) before arranging for 2 a consultative examination to obtain additional information. 3 SSR 99-2p, and case authority, suggests that the most common 4 issue in CFS or fibromyalgia cases is establishing whether a medically 5 determinable impairment exists in the first place. 6 v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) (noting that 7 [f]ibromyalgia s cause is unknown, there is no cure, and it is 8 poorly-understood within much of the medical community , and that to 9 date there are no laboratory tests to confirm the diagnosis. ) 10 11 See, e.g., Benecke That is not the issue here. In her decision, the ALJ accepted, without discussion, that 12 Plaintiff s fibromyalgia was a severe impairment. 13 the ALJ clearly rejected examining physician Leoni s opinion that 14 Plaintiff had no signs of fibromyalgia and no functional restrictions 15 at all. 16 however, the ALJ rejected Plaintiff s subjective account of her 17 limitations, some of which were allegedly caused by her fibromyalgia. 18 (AR 23-26.)5 19 SSR 99-2p is whether it imposed a separate and additional obligation 20 on the ALJ to recontact Dr. Kim or other physicians before determining 21 that, while Plaintiff s fibromyalgia was a severe impairment, she 22 would be able to work. 23 such an obligation, and the Court finds that it does not. (AR 24.) (AR 21.) Indeed, In determining her residual functional capacity, Thus, the only issue raised specifically with respect to Plaintiff has not shown that SSR 99-2p imposes 24 The governing regulations provide that the Agency must recontact 25 an applicant s treating physician where the evidence is inadequate to 26 27 5 28 As discussed below, the ALJ also rejected Dr. Kim s opinion regarding Plaintiff s functional limitations. 4 1 make a disability determination or is ambiguous. 2 §§ 404.1512(e), 416.912(e), 416.927(c)(3).6 3 those provisions, requiring the adjudicator to recontact medical 4 sources if the evidence of CFS is inadequate, in accordance with 20 5 C.F.R. 404.1512 and 416.912. 6 ALJ s interpretation of the evidence, Plaintiff fails to show that the 7 evidence was inadequate or ambiguous. 8 9 See 20 C.F.R. SSR 99-2p incorporates Here, though she disagrees with the Further, the ALJ did not reject Dr. Kim s opinion because it was ambiguous or inadequate. She rejected it because it was inconsistent 10 with the greater objective record and Plaintiff s subjective 11 complaints and because it was based on a single visit. 12 Because the records were neither inadequate or ambiguous, there was no 13 need to recontact Dr. Kim under SSR 99-2p. 14 claim does not warrant remand. (AR 24-25.) For this reason, this 15 B. 16 In her next claim, Plaintiff contends that the ALJ failed to 17 Application of Social Security Ruling 02-1p follow the directives of SSR 02-1p. Plaintiff argues that the ALJ 18 19 6 20 When the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled, we will need additional information to reach a determination of a decision . . . (1) . . . We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. 21 22 23 24 25 26 27 20 C.F.R. §§ 404.1512(e) and 416.912(e) provide: 20 C.F.R. § 416.927(c)(3) provides that if the ALJ does not have sufficient evidence to make a disability determination, he will try to obtain additional evidence under the provisions just cited. 28 5 1 failed to perform a full and complete analysis of the effects of her 2 obesity, as required by SSR 02 01p, first, by failing to explain why 3 her obesity was not medically equivalent to a listed impairment and, 4 second, by failing to specifically address the effect of her obesity 5 on her functional limitations. 6 following reasons, this claim does not warrant remand, either. 7 (Joint Stip. at 42-44.) For the SSR 02-01p directs the adjudicator to consider a claimant s 8 obesity in determining whether the claimant has a medically 9 determinable impairment; whether that impairment is severe; whether 10 the impairments meets a listing; and whether the impairment prevents 11 the claimant from doing past relevant work or any other work. 12 ruling also provides that [w]e may also find that obesity, by itself, 13 is medically equivalent to a listed impairment . . . [and] [w]e will 14 also find equivalence if an individual has multiple impairments, 15 including obesity, no one of which meets or equals the requirements of 16 a listing, but the combination of impairments is equivalent in 17 severity to a listed impairment. 18 however, that we will not make assumptions about the severity or 19 functional effects of obesity combined with other impairments. 20 Obesity in combination with another impairment may or may not increase 21 the severity or functional limitations of the other impairment. 22 will evaluate each case based on the information in the case record. 23 SSR 02-1p. 24 SSR 02-01p. This The ruling cautions, We Here, the ALJ found that Plaintiff s obesity was a severe 25 impairment. 26 that none of Plaintiff s impairments met or equaled a listed 27 impairment. 28 residual functional capacity to perform a full range of light work, (AR 21.) (AR 21.) The ALJ also found, without further discussion, The ALJ then determined that Plaintiff had the 6 1 but [a]s a result of her obesity and knee problems, she cannot climb 2 ladders, ropes, or scaffolds, but she can occasionally climb ramps and 3 stairs, and occasionally balance, stoop, kneel, crouch, and crawl. 4 (AR 21-22.) 5 extent of Plaintiff s subjective complaints. 6 Plaintiff s obesity, the ALJ stated that, [w]hile [it] could impact 7 her back and knee pain, she continues to receive only conservative 8 care for those problems, as she has for the last fifteen years, with 9 the exception of right knee surgery in August, 2006. 10 In reaching this determination, the ALJ rejected the full With respect to (AR 23.) Plaintiff has not shown how the ALJ failed to comply with SSR 02- 11 01p. 12 Plaintiff s impairments did not combine to equal a listed impairment, 13 SSR 02-01p does not require her to do so. 14 Plaintiff offered no theory as to how her obesity, which the ALJ found 15 did not impact her other physical impairments, combined with those 16 other impairments to equal a listed impairment, the ALJ s failure to 17 consider the combined effect of the impairments was not error. 18 Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001)(finding no error 19 where claimant offered no theory, plausible or otherwise, as to how 20 his [impairments] combined to equal a listed impairment[.] ). 21 Likewise, because the ALJ found that Plaintiff s obesity was a severe 22 impairment, and specifically determined that it would restrict her 23 ability to climb, balance, stoop, kneel, crouch, and crawl, Plaintiff 24 has failed to show that the ALJ ignored the directives of SSR 02-01p 25 in determining her residual functional capacity. 26 the Court finds that this claim is without merit. Though the ALJ did not provide an explanation as to why 27 28 7 Moreover, where, as here, See For these reasons, 1 C. Rejection of Treating Physician s Opinion 2 Plaintiff next contends that the ALJ improperly rejected the 3 opinion of her treating physician, Dr. Bora Kim, who opined on a 4 functional capacity evaluation form that Plaintiff would be severely 5 impaired in her ability to work. 6 following reasons, the Court concludes that the ALJ did not provide an 7 adequate justification for rejecting Dr. Kim s opinion. For the Dr. Kim treated Plaintiff from March 2003 until November 2004. 8 9 (Joint Stip. at 46-49.) (AR 203-23.) On March 4, 2004, Dr. Kim diagnosed Plaintiff with 10 fibromyalgia and prescribed Pamelor, an antidepressant.7 11 On March 18, 2003, Plaintiff complained of chronic pain all over. 12 (AR 223.) 13 reports she s applying for disability. 14 to fibromyalgia again on April 1 and 29, 2004, and mentioned 15 Plaintiff s complaints of chronic pain with muscle spasms. 16 221.) 17 (AR 222.) In the same progress record, Dr. Kim noted that Plaintiff (AR 222.) Dr. Kim referred (AR 220, On June 18, 2004, Dr. Kim stated that Plaintiff had come in with 18 her daughter, who reported that her mother was in constant pain, 19 [complaining of] muscle spasms at night, and can t sleep at night. 20 (AR 219.) 21 here to have disability paperwork filled out. 22 day, Dr. Kim completed a Medical Source Statement - Physical, in 23 which she indicated that Plaintiff could lift no more than ten pounds 24 occasionally; stand or walk no more than two hours in an eight-hour 25 workday; sit no more than six hours in an eight-hour workday; and 26 could never climb, stoop, kneel, crouch, or crawl, and only Dr. Kim also stated, however, that [Plaintiff] is really 27 28 7 See www.drugs.com/mtm/pamelor.html. 8 (AR 219.) That same 1 occasionally balance. 2 basis for these limitations: [Plaintiff] has morbid obesity, 3 previously [diagnosed with] fibromyalgia, has chronic low back pain 4 and osteoarthritis of lumbar spine, chronic knee pain, [illegible], 5 [history of] anxiety and depression - all of these conditions 6 contribute to [Plaintiff] s impairment to do work. 7 (AR 253-54.) Dr. Kim described the following (AR 253.) In her decision, the ALJ noted that Dr. Kim s June 18, 2004 8 functional capacity assessment place[d] [Plaintiff] at a less than 9 sedentary exertion level. (AR 24.) But she gave this assessment 10 less weight because it is inconsistent with the greater objective 11 record and because Dr. Kim said he relied on [Plaintiff] s reported 12 subjective complaints such as requiring alternate sitting and standing 13 every five minutes, which is not an objective measure of her 14 functional capacity and because this assessment was based on a one- 15 time visit with [Plaintiff]. 16 Kim s opinion regarding Plaintiff s mental impairments because Dr. Kim 17 is not a mental health practitioner, and both the State agency s 18 reviewing psychologist and psychiatrist found [Plaintiff] s mental 19 impairments were non-severe. 20 (AR 24-25.) The ALJ also rejected Dr. (AR 25.) The ALJ also rejected Dr. Kim s October 4, 2005 opinion that 21 Plaintiff had been unable to work since 1992 due to a history of 22 chronic back, neck, and joint pains secondary to osteoarthritis, 23 conditions which Dr. Kim stated were permanent. 24 noted that Dr. Kim also stated that Plaintiff s condition had improved 25 and that her chronic pain was controlled with Celebrex, which 26 contradicted his opinion that she was permanently disabled. 27 28 9 (AR 301.) The ALJ (AR 25.) 1 By rule, the [Agency] favors the opinion of a treating physician 2 over non-treating physicians. 3 Cir. 2007). 4 favor of a non-treating physician s opinion, the ALJ must set forth 5 specific and legitimate reasons. 6 Chater, 81 F.3d 821, 830 (9th Cir. 1995). 7 Orn v. Astrue, 495 F.3d 625, 631 (9th In order to reject a treating physician s opinion in Id. at 632; see also Lester v. The ALJ offered three reasons for rejecting Dr. Kim s physical 8 limitations assessment. First, she found that the opinion was 9 inconsistent with the greater objective record. (AR 25.) The ALJ 10 did not explain what she meant by the greater objective record, and 11 failed to specify what part of that record was in conflict with Dr. 12 Kim s assessment.8 13 the ALJ s rejection of the opinion. 14 Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999). 15 of the unique evidentiary difficulties associated with the diagnosis 16 and treatment of fibromyalgia, opinions that focus solely upon 17 objective evidence are not particularly relevant. 18 Soc. Sec. Admin., 486 F.3d 234, 245 (6th Cir. 2007); see also Sarchet 19 v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) (noting that fibromyalgia 20 symptoms are entirely subjective ). 21 a legitimate reason for discounting the opinion. This generalized finding is not enough to support See Regennitter v. Comm r, Soc. Further, in light Rogers v. Comm r, Thus, this justification was not 22 23 24 25 26 27 28 8 To the extent the ALJ intended to contrast examiner Leoni s findings that Plaintiff had no functional limitations at all with the more restrictive findings of Dr. Kim, such a rationale would not be legitimate. The ALJ expressly discounted Dr. Leoni s opinion because the greater objective medical record fails to support a finding that [Plaintiff] has no signs of fibromyalgia and no functional restrictions at all. (AR 24.) The ALJ thus appeared to accept that Plaintiff had some restrictions as a result of her fibromyalgia, yet, as further discussed below, she did not include any in her residual functional capacity assessment. 10 1 Second, the ALJ rejected Dr. Kim s opinion on the ground that it 2 was premised on Plaintiff s subjective complaints, rather than on an 3 objective measure of her functional capacity. 4 speaking, the ALJ is entitled to reject a treating physician s opinion 5 for this reason. 6 (9th Cir. 2001); Morgan v. Comm r, Soc. Sec. Admin., 169 F.3d 595, 602 7 (9th Cir. 1999) (affirming ALJ s rejection of treating physicians 8 unsupported and inconsistent opinions that relied on claimant s own 9 testimony). 10 different. 11 purely on a patient s subjective complaints. 12 v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (reversing where the ALJ 13 effectively required objective evidence for a disease [i.e., 14 fibromyalgia] that eludes such measurement. ); Glenn v. Apfel, 102 F. 15 Supp. 2d 1252, 1260 (D. Kan. 2000) (finding that ALJ improperly 16 rejected treating doctors opinions regarding claimant s functional 17 limitations based on the lack of objective medical evidence and the 18 doctors reliance on [the claimant] s subjective complaints where 19 there was ample evidence that claimant suffered from fibromyalgia). 20 Thus, this justification, too, was not a legitimate basis standing on 21 its own to reject the treating doctor s opinion. 22 (AR 25.) Generally See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 But, in the world of fibromyalgia, the story is slightly In such cases, a treating doctor s opinion may be based See, e.g., Green-Younger The ALJ s third reason for discounting Dr. Kim s assessment was 23 that it was based on a one-time visit with claimant. 24 Though literally true, in the sense that any individual assessment is 25 based on a one-time visit, the ALJ apparently failed to give any 26 weight to Dr. Kim s treatment history with Plaintiff, which the record 27 28 11 (AR 25.) 1 shows began in March 2003 and continued to at least June 2004, when he 2 filled out the form that contained his opinion. 3 is not supported by substantial evidence in the record.9 4 Thus, this rationale In sum, the ALJ did not provide specific and legitimate reasons, 5 supported by substantial evidence in the record, to reject the opinion 6 of Plaintiff s treating doctor that her fibromyalgia resulted in 7 significant limitations on her ability to work. 8 to allow the ALJ the opportunity to discuss the medical evidence 9 regarding Plaintiff s fibromyalgia in accordance with the proper legal 10 Remand is appropriate standards. 11 D. 12 Plaintiff contends that the ALJ failed to provide specific, Testimony of Plaintiff and Plaintiff s Daughter 13 clear, and convincing reasons for rejecting her testimony regarding 14 the pain and other symptoms she claims to experience. 15 49-55.) 16 legitimate reasons for rejecting the testimony of her daughter, 17 Yolindita Abbott. 18 the Court agrees. (Joint Stip. at Moreover, she contends that the ALJ failed to provide (Joint Stip. at 55-56.) For the following reasons, 19 ALJ s are tasked with judging the credibility of witnesses. 20 making a credibility determination, an ALJ may take into account In 21 9 22 23 24 25 26 27 28 Furthermore, the Court notes that the ALJ did not appear to assign any particular weight to the opinion of rheumatologist Dr. Alan Peter--who diagnosed Plaintiff with fibromyalgia on several occasions in 2006, and noted specific areas of tenderness -merely recounting his findings without adopting or rejecting them. (AR 25, 346, 351-54.) Rheumatology is the relevant specialty for fibromyalgia[,] Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th Cir. 2004), and the opinion of a specialist about medical issues related to his specialization is given more weight than the opinion of a non-specialist. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); 20 C.F.R. § 416.927(d)(5). On remand, the ALJ should indicate the weight to be given Dr. Peter s opinion. 12 1 ordinary credibility evaluation techniques. 2 Where, as here, the ALJ accepted that the claimant s medically 3 determinable impairments could reasonably be expected to produce the 4 symptoms alleged and found no evidence of malingering, (AR 23), the 5 ALJ could only reject her testimony for specific, clear, and 6 convincing reasons. 7 Smolen, 80 F.3d at 1284. Smolen, 80 F.3d at 1283-84. Here, the ALJ noted that Plaintiff allegedly could do very 8 little during an average day. 9 bed or in a recliner. She spends much of her time either in She frequently cries due to pain. Her 10 medications allegedly help a little, but do not provide long-term 11 pain relief. 12 need help bathing and dressing, wears adult diapers because she is 13 incontinent, cannot lift anything due to pain, weakness, and swelling 14 in her hands, has difficulty climbing stairs, and cannot sit or stand 15 for longer than two minutes. 16 Plaintiff alleges she wakes up throughout the night, coughs all of the 17 time, finds it hard to breathe, and experiences daily headaches. 18 23.) (AR 23.) The ALJ also noted that Plaintiff claims to (AR 23.) Additionally, she found that (AR 19 The ALJ offered a long list of reasons why Plaintiff was not 20 credible: (1) Plaintiff received only conservative care for her back 21 and knee pain, with the exception of her knee surgery in 2006; (2) no 22 evidence supported Plaintiff s allegations regarding the limited use 23 of her hands and hand X-rays taken in April 2006 were negative; (3) 24 Plaintiff s medications did not appear to cause drowsiness; (4) no 25 evidence of weakness or muscle wasting supported Plaintiff s 26 allegation that she was limited to sedentary activity; (5) Dr. Kim 27 reported that Celebrex improved Plaintiff s arthritis symptoms; (6) 28 there was no evidence of emergency room or hospital treatment for any 13 1 breathing impairment, and Plaintiff continues to smoke half a pack of 2 cigarettes a day; and (7) Plaintiff s blood sugar is controlled, and 3 there is no evidence of any impairments caused by diabetes. 4 24.) 5 respect to the specific ailments addressed. 6 record supports the ALJ s findings that Plaintiff s arthritis and 7 diabetes appear to be controlled, that hand x-rays were negative, and 8 that her breathing impairment does not result in functional 9 limitations. (AR 23- The Court finds that these reasons are largely adequate with (AR 270, 296, 307, 318-19). Thus, for example, the And there is no objective 10 medical evidence to establish that Plaintiff s incontinence or 11 headaches cause any specific limitations. 12 credibility analysis is inadequate in two respects. Nevertheless, the ALJ s 13 First, the ALJ s finding that Plaintiff had received only 14 conservative care for her back and knee pain is belied by her knee 15 surgery in August 2006, surgery that the ALJ acknowledged but 16 seemingly gave no weight to. 17 did not consider Plaintiff s testimony that she was denied Medi-Cal 18 insurance in 2004 and, in fact, married in order to get medical 19 insurance. 20 Blue Cross doctors moved to Kaiser. 21 to address this testimony before discounting her credibility on the 22 ground that she had received only conservative care. 23 F.3d at 638 (reaffirming that disability benefits may not be denied 24 because of the claimant s failure to obtain treatment he cannot obtain 25 for lack of funds. ) (quotation omitted); see also SSR 96-7p ( [T]he 26 adjudicator must not draw any inferences about an individual s 27 symptoms and their functional effects from a failure to seek or pursue 28 regular medical treatment without first considering any explanations (AR 392-93.) (AR 23, 362-69.) In addition, the ALJ She also testified that in 2006 and 2007 her 14 (AR 393.) The ALJ was required See Orn, 495 1 that the individual may provide . . . that may explain infrequent or 2 irregular medical visits or failure to seek medical treatment. ) 3 Second, the ALJ did not discuss Plaintiff s fibromyalgia and the 4 extent to which it caused her complaints of generalized pain, 5 weakness, and postural limitations. 6 specifically rejected examiner Leoni s opinion that Plaintiff had no 7 signs of fibromyalgia and no functional restrictions at all, and 8 accepted that Plaintiff s fibromyalgia was a severe impairment. 9 24.) As noted above, the ALJ (AR Moreover, as just discussed, the ALJ failed to offer specific 10 and legitimate reasons for rejecting Dr. Kim s functional assessment, 11 and failed to either adopt or reject the opinion of specialist Dr. 12 Peter. 13 fibromyalgia, but implicitly found that the condition would impose no 14 additional functional limitations above and beyond those imposed by 15 Plaintiff s physical impairments and obesity. 16 In short, the ALJ accepted that Plaintiff suffers from In the end, the Court is left to guess the extent to which the 17 ALJ considered how Plaintiff s fibromyalgia might cause any of the 18 symptoms she alleges. 19 credibility analysis is inadequate and remand is required for further 20 clarification. 21 that ALJ s credibility determination was not supported by record where 22 ALJ accepted that claimant suffered from fibromyalgia and where her 23 complaints of pain and fatigue were supported by treating physicians); 24 see also Rogers, 486 F.3d at 248 ( [G]iven the nature of fibromyalgia, 25 where subjective pain complaints play an important role in the 26 diagnosis and treatment of the condition, providing justification for 27 discounting a claimant s statements is particularly important. ). For this reason, the Court finds that the See, e.g., Glenn, 102 F. Supp. 2d at 1258-59 (holding 28 15 1 The ALJ also failed to properly address the testimony of 2 Plaintiff s daughter Yolindita Abbott. 3 Ms. Abbott testified that her mother really can t do nothing during 4 the day. 5 recliner. . . . She s always in pain. 6 medications, it helps for a little bit, but it s not helping her long- 7 term and that s a bad thing. 8 that Plaintiff has to keep her legs up, but she can t lay flat on the 9 bed because it hurts her back. She s in pain constantly. At the administrative hearing, She s from the bed to the She s crying. (AR 408.) And the Ms. Abbott also testified She wakes up with sweats. (AR 408.) 10 In addition to her testimony at the hearing, Ms. Abbott submitted 11 written reports documenting Plaintiff s difficulties. 12 114-30.) 13 (AR 99-107, An ALJ is required to consider the testimony of a lay witness. 14 Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 15 2006). 16 e.g., Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) (holding 17 that ALJ must give germane reasons to discount written testimony and 18 affidavits of lay witnesses). 19 constitutes error. 20 This requirement applies equally to written testimony. See, Failure to consider such testimony Stout, 454 F.3d at 1055-56. In her decision, the ALJ specifically discounted the written 21 reports that Ms. Abbott had submitted in support of Plaintiff s 22 application, finding that their perceptions of [Plaintiff] s 23 limitations are adversely influenced by that very concern for [her] 24 well being. 25 objective examination, the subjective complaints of loved ones. 26 26.) 27 28 Close relatives most often accept, without critical and (AR The ALJ did not address Ms. Abbott s hearing testimony. Even were the Court to construe the ALJ s comments regarding Ms. Abbott s written reports as applying equally to her hearing testimony, 16 1 it would still find that the ALJ erred in discounting the testimony 2 order remand. 3 based solely on the fact that the testimony came from a relative, who 4 might be inclined to see things the claimant s way. 5 Regennitter, 166 F.3d at 1298 (explaining that the fact that a lay 6 witness is a family member cannot be a ground for rejecting his or her 7 testimony. 8 claimant everyday is of particular value . . . such lay witnesses will 9 often be family members. ) (quoting Smolen, 80 F.3d at 1289); Johnson It is not proper to discount a relative s testimony See, e.g., To the contrary, testimony from lay witnesses who see the 10 v. Astrue, 2008 WL 4553141, at *6 (C.D. Cal. Oct. 9, 2008) (noting 11 that the Ninth Circuit has consistently held that bias cannot be 12 presumed from a familial relationship. ). 13 justification for rejecting Ms. Abbott s testimony was inadequate, her 14 testimony must be reconsidered on remand. Because the ALJ s 15 E. 16 Finally, Plaintiff contends that her non-exertional limitations 17 precluded the ALJ from relying exclusively on the Medical-Vocational 18 Guidelines (the Grids ) at step five of the sequential disability 19 analysis and required the ALJ to obtain the testimony of a vocational 20 expert. 21 Plaintiff s claims that the ALJ failed to properly consider the 22 medical evidence and the testimony of Plaintiff and her daughter, as 23 discussed above. 24 must be remanded for further consideration of the treating doctors 25 opinions and the testimony of Plaintiff and her daughter, the ALJ may 26 well need to make a new residual functional capacity analysis to 27 determine the extent to which Plaintiff s fibromyalgia and her alleged Failure to Obtain Vocational Expert Testimony (Joint Stip. at 16-25.) This claim is contingent on In light of the Court s conclusion that the matter 28 17 1 pain and fatigue stemming from it limit her ability to work, and then 2 conduct a new step-five analysis. 3 To provide additional guidance on remand, however, the Court 4 notes that the postural limitations, as found by the ALJ in her 5 decision, and the mild and moderate mental limitations assessed by the 6 examining psychologist, (AR 22, 251), would not necessarily preclude 7 use of the Grids, nor would the impairments that Plaintiff testified 8 to but which lacked support in the record. 9 there are nonexertional limitations or restrictions which have very See SSR 85-15 (noting that 10 little or no effect on the unskilled light occupational base, such as 11 climbing and crawling); Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th 12 Cir. 2007) (holding that step-two findings that claimant was 13 moderately limited in several areas of mental functioning did not 14 preclude ALJ s reliance on Grids without use of vocational expert); 15 Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999) (holding that 16 the fact that a non-exertional limitation is alleged does not 17 automatically preclude application of the grids. ). 18 F. 19 Plaintiff seeks reversal for an award of benefits. Plaintiff s Request For An Award Of Benefits (Joint Stip. 20 at 62). The decision whether to remand for further proceedings is 21 within this Court's discretion. 22 1177-1178 (9th Cir. 2000). 23 further administrative proceedings, or where the record has been fully 24 developed, the Court can remand with instructions to award benefits. 25 Id. at 1179 ("[T]he decision of whether to remand for further 26 proceedings turns upon the likely utility of such proceedings"). 27 Where, as here, however, there are outstanding issues that must be 28 resolved before a determination of disability can be made and it is Harman v. Apfel, 211 F.3d 1172, Where no useful purpose would be served by 18 1 not clear from the record that Plaintiff is disabled, remand for 2 further proceedings is appropriate. 3 v. Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003). 4 remains undeveloped with respect to the treating doctors opinions and 5 the testimony of Plaintiff and her daughter, the Court is not in a 6 position to say with certainty whether the medical and other evidence 7 of record compels the conclusion that Plaintiff is or is not disabled 8 under the regulations. 9 appropriate. 10 11 Id. at 1180-81; see also Bunnell Because the record Thus, remand for further proceedings is For these reasons, the Agency s decision is reversed and the case is remanded for further proceedings consistent with this Opinion. 12 IT IS SO ORDERED. 13 DATED: September 30 , 2009. 14 15 16 17 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\OSTALAZA, L 2183\Memo_Opinion.wpd 19
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