Karen E. Soper v. Michael J. Astrue, No. 2:2010cv04521 - Document 19 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. (mz)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 KAREN E. SOPER, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 10-04521-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on June 25, 2010, seeking review of the 19 denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for Disabled Widow s Benefits. 21 2010, the parties consented to proceed, pursuant to 28 U.S.C. § 636(c), 22 before the undersigned United States Magistrate Judge. 23 filed a Joint Stipulation on February 23, 2011, in which: 24 seeks an order reversing the Commissioner s decision and remanding this 25 case for the payment of benefits; and defendant requests that the 26 Commissioner s decision be affirmed or, alternatively, remanded for 27 further administrative proceedings. 28 Joint Stipulation under submission without oral argument. On August 2, The parties plaintiff The Court has taken the parties SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On November 9, 2006, plaintiff s husband passed away, and on March 4 8, 2007, plaintiff filed an application for benefits as a disabled 5 widow. (Administrative Record ( A.R. ) 12.) Plaintiff, who was born on 6 November 23, 1956 (A.R. 44),1 alleges an inability to work since June 19, 7 2006, due to arthritis and fibromyalgia (A.R. 46-49, 57-60). 8 has no past relevant work experience, because she had no earnings in the 9 past fifteen years that met the criteria for substantial gainful 10 activities. Plaintiff (A.R. 20.) 11 12 The Commissioner denied plaintiff s application initially on April 13 5, 2007 (A.R. 46-49), and upon reconsideration on August 31, 2007 (A.R. 14 57-61). 15 2007. 16 by counsel, appeared and testified at a hearing before Administrative 17 Law Judge Joseph D. Schloss (the ALJ ). 18 expert Corinne J. Porter and medical expert Arthur Lorber, M.D., an 19 orthopedic surgeon, also testified. 20 denied 21 subsequently denied plaintiff s request for review of the ALJ s decision 22 (A.R. 1-3). 23 /// 24 /// 25 /// Plaintiff filed a written request for a hearing on October 16, (A.R. 7.) On February 17, 2009, plaintiff, who was represented plaintiff s claim (A.R. (Id.) 9-21), (A.R. 23-43.) Vocational On June 25, 2009, the ALJ and the Appeals Council That decision is now at issue in this action. 26 1 27 28 On the alleged disability onset date, plaintiff was 49 years old, which is defined as a younger individual. (A.R. 20.) Plaintiff subsequently changed age category to closely approaching advanced age. (Id.; citing 20 C.F.R. § 404.153.) 2 SUMMARY OF ADMINISTRATIVE DECISION 1 2 3 The ALJ found that plaintiff has not engaged in substantial gainful 4 activity since June 19, 2006, the alleged onset date of plaintiff s 5 claimed disability. 6 has no past relevant work history (A.R. 19), is closely approaching 7 advanced age, and has at least a high school education (A.R. 20). 8 ALJ determined that plaintiff has the severe impairments of degenerative 9 joint disease of (A.R. 14.) the The ALJ further found that plaintiff shoulder, degenerative disc disease of The the 10 lumbar/cervical spine, and fibromyalgia. 11 determined that plaintiff does not have an impairment or combination of 12 impairments that meets or equals any impairment listed in 20 C.F.R. Part 13 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525 and 404.1526). 14 15.) (A.R. 14.) The ALJ also (A.R. 15 16 After reviewing the record, the ALJ determined that plaintiff has 17 the residual functional capacity ( RFC ) to perform less than a full 18 range of light work as defined in 20 C.F.R. 404.1567(b) and concluded 19 that plaintiff: 20 21 can occasionally lift and/or carry 20 pounds and frequently 22 10 pounds; she is limited to pushing and pulling within the 23 same weight restrictions; she can stand and/or walk six 24 hours in an eight-hour work day and sit for six hours with 25 a sit/stand/walk option; she can occasionally climb, bend, 26 stoop, 27 overhead with the right upper extremity; she is precluded 28 from crawling or climbing ladders, ropes or scaffolds; she squat, and balance; she 3 can occasionally reach 1 should not work in an environment with concentrated exposure 2 to extreme heat or cold; she should not work at unprotected 3 heights; 4 equipment. and she is precluded from using hazardous 5 6 (A.R. 15.) 7 8 9 The ALJ concluded that transferability of job skills is not an issue, because plaintiff does not have past relevant work. (A.R. 20.) 10 Having considered plaintiff s age, education, work experience, RFC, as 11 well as the testimony of the vocational expert, the ALJ found that jobs 12 exist in the national economy that plaintiff can perform, including 13 those of mail clerk, furniture rental consultant, and garment sorter. 14 (A.R. 20.) 15 under a disability within the meaning of the Social Security Act from 16 June 19, 2006, through the date of his decision. Accordingly, the ALJ concluded that plaintiff has not been (A.R. 21.) 17 18 STANDARD OF REVIEW 19 20 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 21 decision to determine whether it is free from legal error and supported 22 by substantial evidence in the record as a whole. 23 F.3d 625, 630 (9th Cir. 2007). 24 evidence as a reasonable mind might accept as adequate to support a 25 conclusion. 26 a mere scintilla but not necessarily a preponderance. 27 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 28 record can constitute substantial evidence, only those reasonably drawn Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). 4 The evidence must be more than Connett v. 1 from the record will suffice. Widmark v. Barnhart, 454 F.3d 1063, 2 1066 (9th Cir. 2006)(citation omitted). 3 4 Although this Court cannot substitute its discretion for that of 5 the Commissioner, the Court nonetheless must review the record as a 6 whole, weighing both the evidence that supports and the evidence that 7 detracts from the [Commissioner s] conclusion. 8 Health & Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones 9 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). Desrosiers v. Sec y of The ALJ is responsible 10 for determining credibility, resolving conflicts in medical testimony, 11 and for resolving ambiguities. 12 (9th Cir. 1995). Andrews v. Shalala, 53 F.3d 1035, 1039 13 14 The Court will uphold the Commissioner s decision when the evidence 15 is susceptible to more than one rational interpretation. 16 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 17 review only the reasons stated by the ALJ in his decision and may not 18 affirm the ALJ on a ground upon which he did not rely. 19 at 630; see also Connett, 340 F.3d at 874. 20 the Commissioner s decision if it is based on harmless error, which 21 exists only when it is clear from the record that an ALJ s error was 22 inconsequential to the ultimate nondisability determination. Robbins 23 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 24 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 25 at 679. 26 /// 27 /// 28 /// 5 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse DISCUSSION 1 2 Plaintiff alleges the following two issues: 3 (1) whether the ALJ 4 erred in his analysis of the medical and vocational evidence; and (2) 5 whether the ALJ erred in his evaluation of plaintiff s credibility and 6 subjective symptoms. 7 Court addresses these issues, in reverse order, below. (Joint Stipulation ( Joint Stip. ) at 2-3.) The 8 9 10 I. The ALJ Failed to Give Clear And Convincing Reasons For Finding Plaintiff s Testimony To Be Only Partially Credible. 11 12 Once a disability claimant produces objective evidence of an 13 underlying impairment that is reasonably likely to be the source of her 14 subjective symptom(s), all subjective testimony as to the severity of 15 the symptoms must be considered. 16 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 17 1991)(en banc); see also 20 C.F.R. § 404.1529(a)(explaining how pain and 18 other symptoms are evaluated). 19 malingering based on affirmative evidence thereof, he or she may only 20 find an applicant not credible by making specific findings as to 21 credibility 22 Robbins, 466 F.3d at 883. 23 claimant s credibility include: 24 truthfulness; (2) inconsistencies either in the claimant s testimony or 25 between the claimant s testimony and his conduct; (3) the claimant s 26 daily activities; (4) the claimant s work record; and (5) testimony from 27 physicians and third parties concerning the nature, severity, and effect 28 of the symptoms of which the claimant complains. and stating clear Moisa v. Barnhart, 367 F.3d 882, 885 [U]nless an ALJ makes a finding of and convincing reasons for each. The factors to be considered in weighing a (1) the claimant s reputation for 6 See Thomas v. 1 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. § 2 404.1529(c). 3 4 The ALJ found that after careful consideration of the evidence 5 . . . [plaintiff] s medically determinable impairments could reasonably 6 be expected to cause the alleged symptoms . . . . 7 the ALJ cited no evidence of malingering by plaintiff. Accordingly, the 8 ALJ s reason for rejecting plaintiff s credibility must be clear and 9 convincing. (A.R. 17.) Further, 10 11 The ALJ does not dispute that plaintiff has demonstrated objective 12 evidence of severe physical impairments. 13 plaintiff s subjective testimony regarding the severity of her pain 14 symptoms was not credible. 15 implied two others, for rejecting plaintiff s credibility about the 16 severity of her pain. 17 plaintiff s allegations about when her pain began were inconsistent; and 18 (2) plaintiff s allegations concerning the intensity, persistence, and 19 limiting effects of her symptoms were not supported by the clinical and 20 diagnostic medical evidence. 21 (3) plaintiff s daily activities appear to be inconsistent with her 22 alleged limitations; and (4) the fact that she admitted no doctor has 23 reported her to the Department of Motor Vehicles (DMV) to restrict her 24 driving 25 inconsistent with her alleged limitations. 26 while specific, do not constitute clear and convincing reasons based on 27 substantial evidence as required. privileges due However, the ALJ found that The ALJ generally stated two grounds, and (A.R. 15-19.) to The ALJ stated that: (A.R. 17.) physical 28 7 (1) The ALJ also implied that: impairments (A.R. 16.) appears to be These reasons, 1 The ALJ s first ground is not clear and convincing, because he 2 isolates three words -- no prior problems -- from a report by one 3 doctor 4 mischaracterize the record. See Reddick v. Chater, 157 F.3d 715, 722-23 5 (9th 6 characterization of the record was not entirely accurate regarding the 7 content or tone ); see also Gallant v. Heckler, 753 F.2d 1450, 1456 (9th 8 Cir. 1984)(holding that it was error for an ALJ to ignore or misstate 9 competent evidence in the record to justify his conclusion). -- Cir. Brent R. Davis, 1998)(reversing M.D., and an orthopedic remanding case, surgeon because -- to ALJ s The ALJ 10 asserts that plaintiff s allegations that her pain began as early as 11 2002 are inconsistent with her statements in the treatment record. 12 (A.R. 16.) This is not the case. 13 14 When, on March 6, 2007, plaintiff saw Dr. Davis for an orthopedic 15 surgery consultation as a result of her right shoulder pain, Dr. Davis 16 noted no prior problems in plaintiff s history. (A.R. 168.) However, 17 the consultation with Dr. Davis was only to examine the need for surgery 18 on her right shoulder; it was not for a general assessment of her 19 fibromyalgia, degenerative disc disease of the lumbar/cervical spine, or 20 any other condition that might cause plaintiff to experience pain. 21 Davis notation of no prior problems thus should be read in context as 22 referring only to her right shoulder about which she sought his opinion. 23 In fact, Dr. Davis noted plaintiff had a history of chronic pain in the 24 neck and shoulder area, and he noted a recent diagnosis of fibromyalgia 25 in plaintiff s medical history. (A.R. 168.) As plaintiff did not claim 26 to have pain in her shoulder before May 2006, Dr. Davis and plaintiff s 27 statements are not inconsistent. 28 8 Dr. 1 Plaintiff claimed to have pain in her foot and knee starting in 2 2002; in her neck, rib cage, and back starting in January 2005; in her 3 hips since January 2007; and in her hands since her 20s. 4 On 5 rheumatologist, for a consultation. 6 plaintiff developed knee, lower back, and neck pain with associated 7 stiffness several years ago. 8 specific as to the exact onset date of plaintiff s pain, plaintiff s 9 treatment records may not fairly be said to contradict plaintiff s November 21, 2006, plaintiff saw Dr. Pearly (A.R. 170.) (A.R. 170.) (A.R. 119.) Lim, M.D., a Dr. Lim noted that While Dr. Lim was not 10 statement that her pain began in 2002. 11 words from one doctor s opinion is a mischaracterization of the record 12 and, therefore constitutes error. The ALJ s isolation of three 13 14 The ALJ s second ground is not clear and convincing, because he 15 relies on a lack of clinical and diagnostic evidence to support his 16 disbelief in the severity of plaintiff s pain allegations when, by the 17 very nature of fibromyalgia, there generally is very little, if any, 18 objective clinical or diagnostic evidence upon which the fibromyalgia 19 diagnosis is based. 20 1996)( Fibromyalgia . . . [is an] elusive and mysterious disease ; 21 [it]s cause or causes are unknown, there is no cure, and, of great 22 importance to disability law, its symptoms are entirely subjective ). 23 Because of its nature, there are no laboratory tests for the presence 24 and severity of fibromyalgia. See Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. Id.2 The ALJ relies on physical 25 26 27 28 2 [T]he only symptom that discriminates between [fibromyalgia] and other diseases of a rheumatic character [are] multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient has to have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to 9 1 examinations of plaintiff performed by various doctors, which found only 2 limited or mild degenerative problems in the spine and moderate to 3 severe degenerative changes in the right shoulder, to assert that the 4 pain caused by plaintiff s fibromyalgia could not be as severe as 5 claimed. 6 discrediting plaintiff s credibility, because there are no objective 7 tests that could have been performed to prove plaintiff s subjective 8 claims regarding her degree of pain. (A.R. 17-18.) This is not a legitimate ground for 9 10 Further, the failure of the medical record to corroborate fully 11 plaintiff s subjective symptom testimony is not, by itself, a legally 12 sufficient basis for rejecting such testimony. 13 856; Bunnell, 947 F.2d at 347 (noting that [i]f an adjudicator could 14 reject a claim of disability simply because [plaintiff] fails to produce 15 evidence supporting the severity of the pain there would be no reason 16 for an adjudicator to consider anything other than medical findings ). 17 Accordingly, the ALJ s finding that the objective evidence does not 18 support the extent of plaintiff s symptoms cannot, by itself, constitute 19 a clear and convincing reason for discrediting plaintiff s testimony. 20 See Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988); Cotten v. 21 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Burch, 400 F.3d at 22 681. Rollins, 261 F.3d at 23 24 25 26 27 28 flinch. Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001)(quoting Sarchet, 78 F.3d at 306). On February 5, 2007, when examined by Dr. Thang T. Le, a rheumatologist, plaintiff exhibited tenderness in 14 out of the possible 18 fixed locations (A.R. 250); and on August 8, 2007, when examined by Dr. Parke King Chang, also a rheumatologist, plaintiff exhibited tenderness in 12 out of the possible 18 fixed locations (A.R. 243). 10 1 The ALJ s third ground is not clear and convincing, because 2 plaintiff s daily activities are not inconsistent with her reported pain 3 or limitations. 4 to support an adverse credibility determination when those activities do 5 not suggest that the claimant has the ability to perform work activities 6 on an ongoing and daily basis. 7 1201 (9th Cir. 1990). 8 must evaluate claimant s ability to work on a sustained basis. 9 Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995)(citing 20 C.F.R. § An ALJ may not rely on a plaintiff s daily activities Gonzalez v. Sullivan, 914 F.2d 1197, As the Ninth Circuit noted in Lester, the ALJ 10 404.1512(a)). A claimant need not be utterly incapacitated to be 11 eligible for benefits, . . . and many home activities are not easily 12 transferable to what may be the more grueling environment of the 13 workplace, where it might be impossible to periodically rest or take 14 medication. Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). 15 16 To support his adverse credibility finding on this ground, the ALJ 17 stated that plaintiff admitted her bedroom was on the second floor 18 where she lived and she had to walk down the stairs daily ; she 19 reported 20 laundry ; [she] admitted she fed her two cats and fish ; [and] she 21 conceded she was able to take care of her own personal hygiene. 22 16.) 23 activities were inconsistent with her subjective pain testimony, the 24 language used to describe plaintiff s statements, i.e. admitted and 25 conceded , along with their placement directly following his finding 26 that plaintiff is only partially credible, indicate that the ALJ used 27 plaintiff s daily activities, in part, as a ground to discredit her 28 statements. being able to wash dishes, wipe the counters, and sort (A.R. While the ALJ did not directly state that plaintiff s daily The Court finds this 11 ground unconvincing, because 1 plaintiff s limited daily activities do not show that she would be able 2 to work on a sustained basis in the workplace. 3 at 833. 4 may be able to perform these several tasks, she has to take breaks 5 every fifteen minutes, [cannot] clean the litter box, and drop[s] 6 things a lot. 7 ability to undertake basic activities and light household chores, with 8 frequent breaks, translates into the ability to perform full-time work. 9 See Fair, 885 F.3d 602. See Lester, 81 F.3d Indeed, as the ALJ noted, plaintiff testified that while she (A.R. 16.) The ALJ fails to explain how plaintiff s This constitutes error. 10 11 The ALJ s fourth ground also is not clear and convincing, because 12 the fact that upon further questioning, plaintiff admitted no doctor 13 has reported her to the Department of Motor Vehicles (DMV) to restrict 14 her driving privilege due to physical impairments (A.R. 16) is not a 15 factor which the ALJ is allowed to consider in weighing a claimant s 16 credibility. 17 2002); see also 20 C.F.R. § 404.1529(c). 18 did not specifically articulate that this was a ground on which he based 19 his 20 questioning of plaintiff in the record (A.R. 34); the language used in 21 his decision, i.e. she admitted ; and the placement of this ground 22 directly 23 credible, it is apparent that the ALJ considered this ground, at least 24 in part, in determining plaintiff s credibility. 25 error. decision See Thomas v. Barnhart, 278 F.3d at 958-59 (9th Cir. to discredit following his As with ground three, the ALJ plaintiff s finding that credibility, plaintiff is but only from his partially This constitutes 26 27 Accordingly, for the aforementioned reasons, the ALJ failed to give 28 clear and convincing reasons, as required, for discrediting plaintiff s 12 1 subjective pain testimony. 2 3 II. The ALJ Erred In His Analysis Of The Medical Evidence. 4 5 Plaintiff claims that the ALJ: (1) improperly discredited the 6 Functional Capacity Questionnaire completed by plaintiff s treating 7 physician, Jennifer Magalong, an internist; (2) improperly relied on the 8 medical expert, Dr. Lorber, because he is not qualified to testify 9 regarding the diagnosis of fibromyalgia; and, (3) went outside the 10 record and offered his own medical opinion about fibromyalgia.3 11 Stip. at 4.) (Joint 12 13 A. 14 On Remand, The ALJ Must Reconsider The Physical Residual Functional Capacity Questionnaire Completed By Plaintiff's Treating Physician. 15 16 It is the responsibility of the ALJ to resolve conflicts in medical 17 testimony and analyze evidence. 18 (9th Cir. 1989). Magallanes v. Bowen, 881 F.2d 747, 750 In the hierarchy of physician opinions considered in 19 20 21 22 23 24 25 26 27 28 3 While not raised by plaintiff, the Court notes that the ALJ must also consider all the side effects of plaintiff s pain medication and their impact on plaintiff s ability to work. See Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir.1993)(noting that an ALJ must consider all factors, including the side effects of medications, that might have a significant impact on an individual s ability to work )(citation omitted); see also Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2-*3, 1996 SSR LEXIS 4, at *7-*8 (noting that the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms should be considered in the disability evaluation); 20 C.F.R. § 404.1529(c)(3)(iv). The ALJ casually mentions that plaintiff had hot flashes from ibuprofen (A.R. 16), but plaintiff testified that she has severe hot flashes that cause her to wake up every 20 minutes all night long drenched in sweat . . . . (A.R. 37). Plaintiff also testified that the Amitrypilline will knock [her] out for maybe an hour or so. (A.R. 38.) The ALJ s failure to consider these side effects constitutes error. 13 1 assessing a social security claim, [g]enerally, a treating physician s 2 opinion carries more weight than an examining physician s, and an 3 examining physician s opinion carries more weight than a reviewing 4 physician s. 5 2001); 20 C.F.R. § 404.1527(d). The opinions of treating physicians are 6 entitled to the greatest weight, because the treating physician is hired 7 to 8 Magallanas, 881 F.2d at 751. When a treating physician s opinion is not 9 contradicted by another physician, it may be rejected only for clear cure and Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. has a better opportunity to observe claimant. 10 and convincing reasons. 11 another doctor, a treating physician s opinion may only be rejected if 12 the 13 substantial evidence in the record. ALJ provides Lester, 81 F.3d at 830. the specific and legitimate When contradicted by reasons supported by Id. 14 15 On February 4, 2009, plaintiff s treating physician, Dr. Magalong, 16 completed a Physical Residual Functional Capacity Questionnaire 17 ( questionnaire ) in which she diagnosed plaintiff with fibromyalgia and 18 cervical radiculopathy, with an onset date of 2005. 19 Significantly, Dr. Magalong opined that, as a result of plaintiff s 20 fibromyalgia, plaintiff would have numerous functional limitations in a 21 competitive work place.4 (A.R. 399-403.) (Id.) 22 23 24 25 26 27 28 4 Specifically, Dr. Magalong opined that: plaintiff was not a malingerer; her depression affected her physical condition; her impairments are reasonably consistent with the symptoms and functional limitations described in the questionnaire; her pain is frequently severe enough to interfere with attention and concentration needed to perform even simple work tasks; she is capable of low stress jobs; she can walk only half a city block without rest or severe pain; she can sit or stand for 15 minutes at a time; she can sit and stand/walk for 2 hours with normal breaks in an 8-hour workday; she must get up to walk every 15 minutes for 10 minutes; plaintiff needs a job at which she can shift positions from sitting to standing at will; she will have to take 14 1 The ALJ reviewed Dr. Magalong s questionnaire but discredited it, 2 because: (1) Dr. Magalong relied almost entirely on plaintiff s 3 subjective complaints, 4 credible; (2) the ALJ found the treating relationship between Dr. 5 Magalong and plaintiff to be brief; (3) the ALJ found the questionnaire 6 to be internally inconsistent; and (4) the ALJ found the questionnaire 7 to be without substantial support from the other evidence of record. 8 (A.R. 18.) The Court does not find these grounds to be specific and 9 legitimate reasons 10 to which the discredit ALJ found the to be questionnaire only partially completed by plaintiff s treating physician. 11 12 The ALJ s first ground is not legitimate, because as discussed 13 above, the ALJ s rejection of plaintiff s subjective testimony was not 14 well-founded, and the principle means of diagnosing fibromyalgia is 15 through subjective symptoms. 16 nature, there are no laboratory tests for the presence and severity of 17 fibromyalgia. Sarchet, 78 F.3d at 306. Because of its Id. 18 19 The ALJ s second ground is not legitimate, because he incorrectly 20 described the length and extent of the treating relationship between Dr. 21 Magalong and plaintiff. 22 treating 23 questionnaire on August 4, 2008. 24 actuality, Dr. Magalong did begin treating plaintiff on February 4, the claimant The ALJ stated that Dr. Magalong began on February 4, 2008, (A.R. 18.) and completed This is not the case. the In 25 26 27 28 unscheduled breaks every 2-4 hours for around 30 minutes each; she can rarely lift less than 10 pounds and should never lift more than 10; she can occasionally twist, but can only rarely bend, crouch, climb ladders, or climb stairs; she has significant limitations reaching, handling, or fingering; and she will likely miss more than four days of work a month. (A.R. 399-403.) 15 1 2008, but she completed the questionnaire on February 4, 2009, and she 2 stated on the questionnaire that plaintiff saw her every three months 3 during that period. 4 incorrectly 5 relationship between Dr. Magalong and plaintiff. (A.R. 266, 398, 403.) characterized the length and The ALJ erred when he extent of the treating 6 7 The ALJ's third ground is not legitimate, because the Court does 8 not find the questionnaire to be inconsistent. The ALJ states that Dr. 9 Magalong noted the [plaintiff] s symptoms as numbness/tingling from 10 neck into below arms [and] fingers and that Dr. Magalong did not even 11 mention [plaintiff] felt any pain, yet she diagnosed [plaintiff] as 12 having fibromyalgia . . . . 13 include pain as a symptom in her response to question four of the 14 questionnaire, which asked about symptoms, she included plaintiff s pain 15 symptoms directly below in response to question five, which specifically 16 asked about pain. 17 Dr. Magalong chose to write about plaintiff s pain only in response to 18 question five, and not also in response to question four, to be a 19 legitimate reason to find the questionnaire internally inconsistent and, 20 therefore, not credible. (A.R. 399.) (A.R. 18.) While Dr. Magalong did not The Court does not find the fact that 21 22 The ALJ's fourth ground is not legitimate, because plaintiff s lack 23 of objectively determinable physical ailments does not mean that Dr. 24 Magalong s opinion is not supported by the record. The ALJ asserts that 25 Dr. Magalong s opinion is without substantial support from the other 26 evidence of record, which obviously renders it less persuasive. 27 18-19.) 28 surgeons who had previously examined plaintiff and found only minimal (A.R. To support his finding, the ALJ lists findings of doctors and 16 1 objectively determinable physical ailments. (A.R. 17-18.) However, 2 fibromyalgia is a diagnosis of last resort. 3 its symptoms are subjective, and it is difficult to diagnose. 4 Jordan v. Northrop Grumman Corp. Welfare Plan, 370 F.3d 869, 872 (9th 5 Cir. 2004)(overruled on other grounds in Abatie v. Alta Health & Life 6 Ins., 458 F.3d 955, 970 (2006)(noting that fibromyalgia s cause or 7 causes are unknown, there is no cure, and of greatest importance to 8 disability law, its symptoms are entirely subjective ). 9 plaintiff has only minimal objectively determinable ailments does not It is not well-understood, See The fact that 10 mean that Dr. Magalong s opinion is unsupported. 11 there generally is very little, if any, objective clinical or diagnostic 12 evidence upon which the fibromyalgia diagnosis is based. As plaintiff's 13 treating physician, Dr. Magalong is in the best position to determine 14 the severity of plaintiff s fibromyalgia and is best situated to 15 determine plaintiff's limitations. 16 physician of record who diagnosed plaintiff with fibromyalgia. 17 Thang, 18 164-166), and Dr. Parke King Chang, M.D., also diagnosed plaintiff with 19 fibromyalgia 20 diagnoses, the lack of objective medical evidence is not a legitimate 21 reason to discredit plaintiff s treating physician s assessment. M.D., diagnosed in 2007 Also, Dr. Magalong is not the only plaintiff (A.R. As discussed above, 243). with fibromyalgia Given in plaintiff s Dr. Le 2007 (A.R. fibromyalgia 22 23 Furthermore, none of the doctors the ALJ listed opined about 24 plaintiff s ability to sustain employment. The ALJ examined the medical 25 records 26 plaintiff s limitations by Dr. Magalong was not credible, because he 27 thought the record only supported minimal limitations in her ability to 28 sustain employment. and came to his own (A.R. 17.) conclusion that the assessment of The ALJ is not a doctor, and he is not 17 1 qualified to make his own determinations on the physical capabilities of 2 plaintiff. His choice to do so constitutes error. 3 4 On remand, because the ALJ failed to give legitimate reasons to 5 discredit the questionnaire of plaintiff's treating physician, the ALJ 6 must provide such reasons or give the questionnaire controlling weight. 7 The ALJ must also refrain from asserting his own lay opinion about 8 plaintiff s physical abilities. 9 10 B. The ALJ Should Not Rely On The Opinions Of The Medical Expert And 11 Medical Consultant 12 Over The Opinion Of Plaintiff s Treating Physician. 13 14 In making his determination, and posing hypothetical questions to 15 the vocational expert, Ms. Porter, the ALJ relied on the opinions of the 16 medical expert, Dr. Lorber, and the RFC assessment by Dr. F. Kalmar, 17 M.D. (A.R. 24-43.) This constitutes error because: (1) the evaluation 18 by Dr. Magalong should have been given more weight than either Dr. 19 Lorber s 20 fibromyalgia 21 diagnosed with fibromyalgia by multiple treating physicians, because he 22 [does not] give much weight to the diagnosis of fibromyalgia 23 29); and, (3) the assessment by Dr. Kalmar was not based on plaintiff s 24 full medical record. or Dr. into Kalmar s his opinion; (2) Dr. Lorber assessment, even though did not plaintiff factor has been (A.R. 25 26 Regarding the first reason, as discussed above, the questionnaire 27 completed by Dr. Magalong should have been given controlling weight, or 28 the ALJ should have given specific and legitimate reasons for not doing 18 1 so. Neither Dr. Lorber nor Dr. Kalmar ever actually examined plaintiff. 2 The ALJ s reliance on their opinions rather than on the opinion of 3 plaintiff s treating physician, Dr. Magalong, without a specific and 4 legitimate reason for doing so, constitutes error. 5 6 Regarding the second reason, the ALJ relied almost exclusively on 7 the opinion of Dr. Lorber, largely because the ALJ appears to share Dr. 8 Lorber s skepticism about the legitimacy of a diagnosis of fibromyalgia. 9 During plaintiff s hearing before the ALJ, Dr. Lorber mentioned that 10 plaintiff had been diagnosed with fibromyalgia on multiple occasions, 11 and that he had seen the questionnaire submitted by plaintiff s treating 12 physician, but Dr. Lorber then proceeded to ignore those facts when 13 giving his assessment of plaintiff s limitations. 14 asked about fibromyalgia by plaintiff s attorney, Dr. Lorber said, I 15 don t give much weight to the diagnosis of fibromyalgia[,] and I ll 16 leave that decision up to the judge as to further consideration of 17 fibromyalgia. (A.R. 29.) (A.R. 27-28.) When 18 19 The ALJ expressed his belief that it was impossible for plaintiff 20 to have fibromyalgia along with other ailments, because fibromyalgia is 21 a garbage can disorder (A.R. 40), even though plaintiff had been 22 diagnosed with fibromyalgia several times by several doctors. 23 plaintiff s attorney asked him to consider plaintiff s diagnosis of 24 fibromyalgia the ALJ responded by saying, Well, let s argue about it. 25 Yeah, it s recognized as a syndrome. 26 don t need you to lecture me. 27 fibromyalgia. . . . 28 the journals just because of complaints. It s not a disease. . . . When And I I've read every website there is on Well, it s never there to start with according to 19 (A.R. 40-42.) 1 While the ALJ gives lip service to plaintiff s diagnosed 2 fibromyalgia by listing it as a severe impairment, he relies heavily on 3 the evaluation of a doctor who does not believe in fibromyalgia, and he 4 himself expresses hostility to the idea that plaintiff has fibromyalgia. 5 This is error. 6 legitimate disease, the existence of which is accepted by medical 7 professionals. 8 is a syndrome that has been widely recognized in the medical community 9 for only about 10 years ). and The Ninth Circuit has recognized that fibromyalgia is a See Rollins, 261 F.3d at 855 (stating that fibromyalgia 10 opinion, his 11 considering 12 constitutes error. the own The ALJ's use of the medical expert s opinion limitations about imposed fibromyalgia, by to plaintiff s justify not fibromyalgia, 13 14 Regarding the third reason, in posing questions to the vocational 15 expert, the ALJ greatly favored the RFC completed by a medical 16 consultant, Dr. Kalmar, who, it seems, did not actually treat plaintiff, 17 but completed the RFC in 2007, based on medical records then available. 18 (A.R. 189-94.) 19 it is clear from the transcripts of the proceedings that the ALJ used 20 Dr. Kalmar s assessment much more heavily than that of Dr. Magalong's in 21 posing hypothetical questions to the vocational expert and in making his 22 decision. 23 did not have the medical records for the period after April 4, 2007. 24 (A.R. 189-94.) 25 medical records. 26 over plaintiff s treating physician's assessment from 2009, constitutes 27 error. The ALJ did not mention Dr. Kalmar in his decision, but (A.R. 24-43.) Dr. Kalmar made his assessment in 2007, and so Therefore, Dr. Kalmar's RFC is based on incomplete The ALJ's use of Dr. Kalmar s assessment from 2007, 28 20 1 Accordingly, the Court finds that the ALJ should either use Dr. 2 Magalong s assessment over those of Dr. Lorber and Dr. Kalmar in posing 3 hypotheticals to the vocational expert, or he should give specific and 4 legitimate reasons for not doing so. 5 6 III. Remand Is Required. 7 8 The decision whether to remand for further proceedings or order an 9 immediate award of benefits is within the district court s discretion. 10 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 11 useful purpose would be served by further administrative proceedings, or 12 where the record has been fully developed, it is appropriate to exercise 13 this discretion to direct an immediate award of benefits. 14 ( [T]he decision of whether to remand for further proceedings turns upon 15 the likely utility of such proceedings. ). 16 outstanding issues that must be resolved before a determination of 17 disability can be made, and it is not clear from the record that the ALJ 18 would be required to find the claimant disabled if all the evidence were 19 properly evaluated, remand is appropriate. Id. at 1179 However, where there are Id. at 1179-81. 20 21 On remand, the ALJ must correct the above-mentioned deficiencies 22 and errors. The ALJ needs to reconsider plaintiff s testimony regarding 23 her pain and ability to work and, if appropriate, give clear and 24 convincing reasons for rejecting it. 25 plaintiff s treating physician s opinion its deserved weight or give 26 specific and legitimate reasons for not doing so. 27 from a vocational expert to determine what work, if any, plaintiff can 28 perform will likely be required. 21 In addition, the ALJ must give Additional testimony 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: July 26, 2011 13 14 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
