Donna Tomlinson v. Michael J Astrue, No. 2:2011cv07705 - Document 18 (C.D. Cal. 2012)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. See order for details. (jy)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DONNA TOMLINSON, 12 13 Plaintiff, v. 14 MICHAEL J. ASTRUE, Commissioner of the Social 15 Security Administration 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-7705 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Donna Tomlinson ( Plaintiff ) brings this action seeking to reverse 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter the Commissioner or the Agency ) denying her application 24 for Disability Insurance Benefits. The parties consented, pursuant to 25 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States 26 Magistrate Judge. For the reasons stated below, the decision of the 27 Commissioner is REVERSED and REMANDED for further proceedings. 28 \\ 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for a period of disability and 5 disability insurance benefits on February 20, 2008, (Administrative 6 Record AR 87), with a protective filing date of February 19, 2008. 7 (AR 124). Plaintiff alleged a disability onset date of September 28, 8 2007. (AR 128). Plaintiff based her claim on fibromyositis, arthritis, 9 Sjogren s syndrome, peripheral neuropathy, extreme fatigue, pain and 10 weakness. 11 24). (AR 128, 139). Plaintiff also alleged depression. (AR 23- The Agency denied Plaintiff s claim for benefits on June 3, 2008. 12 (AR 40). 13 14 Plaintiff then requested a hearing, (AR 46), which was held before 15 Administrative Law Judge ( ALJ ) Dennis Bennett on January 19, 2010. 16 (AR 15-25). 17 13). Plaintiff appeared and was represented by counsel. No Medical Expert or Vocational Expert testified. (AR (AR 14-25). 18 19 On January 28, 2010, the ALJ issued a decision denying benefits. 20 (AR 28-39). Plaintiff sought review of the ALJ s decision before the 21 Appeals Council, (AR 178-80), which denied her request on July 18, 2011. 22 (AR 1). Plaintiff sought review by this Court on September 23, 2011. 23 (Compl. at 1). 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 2 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was born on May 14, 1953 and was fifty-six years old at 5 the time of the last hearing. (AR 15). She holds a Master s degree in 6 business management and human resources. 7 reads and writes English. (Id.). Plaintiff speaks, (AR 127). 8 9 A. Plaintiff s Medical History 10 11 On October 30, 2007, Dr. Dhia Al-Wardi, a neurologist, diagnosed 12 Plaintiff with weakness, tiredness, lack of energy, excessive sleepiness 13 related to depression 14 hypothyroidism. and peripheral neuropathy related to (AR 202-03). 15 16 On March 26, 2008, Plaintiff s treating rheumatologist, Dr. Richard 17 Hollcraft, diagnosed her with chronic fatigue/chronic fibromyalgia 18 syndrome ( CFS ), insomnia, massive obesity, and lumbar spondyosis. (AR 19 221-22). On April 17, 2008, he confirmed his diagnosis and noted that 20 spinal disc degeneration could explain her low back pain. (AR 218-19). 21 22 On November 11, 2008 Plaintiff began receiving treatment from Dr. 23 Chong-hao Zhao, who is board-certified in pain medicine, psychiatry and 24 neurology. (AR 289-90). Dr. Zhao diagnosed Plaintiff with chronic 25 bilateral neck pain and chronic bilateral low back pain. (AR 290). He 26 noted that Plaintiff s left buttock and leg pain score decreased from 27 five out of ten to zero. (AR 287-88). On December 13, 2008, he 28 performed a C3 medial branch, C4 medial branch, C5 medial branch, nerve 3 1 block on left side, which reduced Plaintiff s left neck pain score from 2 6.5 out of 10 to 0. (AR 284-85). On January 3, 2009, Dr. Zhao 3 performed a L3, L4, L5 medial branch nerve block on Plaintiff s left 4 side, which reduced her left low back pain score from six out of ten to 5 two. (AR 281-82). He also prescribed tramadol for pain. (AR 283). 6 7 On April 25, 2009, Dr. Zhao diagnosed new impairments of right neck 8 and upper extremity pain, with paresthesia, 9 radiculopathy secondary to herniated disc. 10 Plaintiff s back pain had improved, 11 increased to eight out of ten. (AR 279). but (Id.). due her neck to cervical He noted that pain score had Dr. Zhao recommended three 12 cervical epidural steroidal injections, which Plaintiff underwent on May 13 18, June 1 and June 13, 2009. (AR 270, 273, 276). These injections 14 reduced her pain score from seven, five and six, to zero, respectively. 15 (Id.). On June 27, 2009, because Plaintiff had neck and right upper 16 back pain that scored eight out of ten, Dr. Zhao performed a C3 medial 17 branch, C4 medial branch, C5 medial branch, nerve block on right side, 18 which reduced her pain to zero. (AR 267-68). On August 12, 2009, Dr. 19 Zhao noted that Plaintiff had relapsed, with a pain score of six on the 20 neck and seven on the low back, bilaterally, despite taking painkillers. 21 (AR 265). Plaintiff also attended physical therapy approximately once 22 per week from November 2008 to August 2009. (AR 268, 272, 283, 290). 23 24 On October 3, 2009, Dr. Zhao noted that Plaintiff could possibly 25 work part-time if the work environment were customized to her physical 26 condition. (AR 262-64). Dr. Zhao found that Plaintiff s sitting, 27 standing and walking should each be limited to twenty minutes at a time, 28 with a total of two hours and forty minutes in an eight-hour workday; 4 1 Plaintiff could lift zero to five pounds occasionally but never more 2 than five pounds; Plaintiff should never bend, squat or climb; Plaintiff 3 should reach only occasionally; Plaintiff s fine manipulation should be 4 limited to 40 minutes out of every 320 minutes because pushing and 5 pulling would aggravate her pain; Plaintiff cannot use her legs or feet 6 for repetitive movements like pushing and pulling because it would 7 aggravate her pain; Plaintiff s ability to turn her head or bend her 8 neck was moderately restricted; and Plaintiff would miss at least three 9 days of work per month due to her condition. (Id.). 10 11 From May 6, 2009 to December 17, 2009, Plaintiff had weekly 12 psychotherapy treatments with Dr. Trudy E. Martin. (AR 322). Starting 13 in the last week of July 2009, Plaintiff s sessions were increased to 14 twice a week due to the severity of her psychological conditions. 15 (Id.). Dr. Martin diagnosed Plaintiff with Major Depressive Disorder, 16 Single Episode, Severe, Without Psychotic Features, an Anxiety Disorder, 17 Not Otherwise Specified, and a Mood Disorder Due to Fibromyalgia. 18 315). (AR Dr. Martin noted that Plaintiff s low self-esteem has caused 19 severe psychomotor retardation on a daily basis. (Id.). Dr. Martin 20 rated Plaintiff s current Global Assessment of Functioning ( GAF ) at 47 21 and her highest GAF in the past year as a 52. (AR 321). Dr. Martin 22 stated that Plaintiff had a fair ability to understand, remember and 23 carry out simple instructions. (AR 322). Her ability to follow complex 24 instructions was poor, as was her ability to maintain concentration, 25 maintain a regular schedule, respond appropriately to workplace changes 26 or complete a normal workday without interruptions from psychologically27 based symptoms. (Id.). Dr. Martin assessed Plaintiff as having extreme 28 functional limitations on her activities of daily living, difficulties 5 1 in maintaining social functioning, and deficiencies of concentration, 2 persistence or pace. (Id.). 3 4 On June 6, 2009, a psychiatrist working for MetLife Insurance 5 Company stated that Plaintiff is unable to engage in stress situations 6 and engage in interpersonal relations. 1 (AR 255-56). 7 8 Dr. Alan Karbelnig conducted a comprehensive psychological 9 evaluation of Plaintiff on August 11, 12, and September 3, 2009. (AR 10 291). Dr. Karbelnig diagnosed Plaintiff with Major Depressive Disorder, 11 Recurrent, Severe with Psychotic Features and Mental Disorder Affecting 12 Musculoskeletal Pain and Fatigue. (AR 305). He rated Plaintiff s 13 highest GAF within the past year as 45, which was also her current GAF. 14 (Id.). Dr. Karbelnig cautioned that, because his interpretations are 15 computer-generated predictions based on response patterns, the reader 16 should examine the test interpretations for general trends and put 17 limited confidence in any one specific statement. (AR 299-300). Dr. 18 Karbelnig found Plaintiff s extreme answers to demonstrate Plaintiff s 19 intense distress, not a lack of credibility. (AR 300). 20 21 B. Consultative Examinations 22 23 On April 29, 2008, Plaintiff saw Dr. Sean To for a consulting 24 examination. (AR 245). Dr. To is board-eligible in internal medicine, 25 but he is not board-certified. (Id.). Dr. To did not review any of 26 Plaintiff s medical records. (AR 244). Dr. To diagnosed Plaintiff with 27 28 1 This doctor s name is illegible. 6 (AR 256). 1 fibromyalgia/CFS, noting that she does have tenderness in the pressure 2 point of the shoulders and knees, however, the condition appears to be 3 mild. (AR 244). He found Plaintiff reliable and noted her complaints 4 of constant pain, which worsened with strenuous activities. (AR 241). 5 Regarding Plaintiff s back and neck, he found no evidence of abnormal 6 spinal curvature and noted that [p]alpation along the paravertebral 7 muscles and midline along the spinous process did elicit mild tenderness 8 in the C-spine and lumbar spine. (AR 243). Dr. To found that 9 Plaintiff could lift and carry fifty pounds occasionally and twenty-five 10 pounds frequently; could walk six hours a day without assistive devices; 11 and had no limitations regarding sitting, activities regarding agility, 12 fine or gross manipulation with her hands, postural limitations or 13 environmental limitations. (AR 244-45). 14 15 On May 8, 2008, Plaintiff saw Dr. Rosa Colonna for a psychological 16 evaluation. (AR 246, 250). 17 medical records. 18 euthmymic. (AR 247). (AR 248). Dr. Colonna did not review Plaintiff s Dr. Colonna described Plaintiff s mood as Dr. Colonna rated Plaintiff s GAF at 70 and 19 opined that Plaintiff does not present with any mood or affective 20 disturbance. (AR 249-50). Dr. Colonna observed that Plaintiff s 21 memory, attention and concentration span were slightly diminished. 22 248). Dr. Colonna found no evidence of malingering. (AR (Id.). 23 24 C. Non-Consultative Examinations 25 26 On May 22, 2008, Dr. Joseph Hartman reviewed Plaintiff s medical 27 records regarding physical impairments. (AR 181-87). Dr. Hartman 28 summarized Plaintiff s medical records up to that point, (AR 186-87), 7 1 and, without citing any 2 conclusions as Dr. To. 3 partially credible. evidence or (AR 181-185). (AR 187). reasoning, reached the same Dr. Hartman found Plaintiff He also noted that there were no 4 inconsistencies between any report and Plaintiff s allegations. (AR 5 187). 6 7 On May 28, 2008, Dr. Vinod Sodha reviewed Plaintiff s mental health 8 records. (AR 189-99). He reached the same conclusions as Dr. Colonna 9 and found Plaintiff not severely impaired. (AR 189, 199). He did not 10 explain how or why the evidence supported his conclusions. (AR 180-99). 11 12 D. Plaintiff s Testimony 13 14 On January 19, 2010, Plaintiff testified that she was fifty-six 15 years old; she received a Masters degree in business management and 16 human resources; she last worked as an office manager for Caltech; that 17 job involved sitting, standing and lifting ten pounds frequently and 18 twenty pounds occasionally; prior to that job she had been an 19 administrative assistant since 1990, which also involved standing, 20 sitting and lifting; she stopped working in 2007 because she began 21 feeling flu symptoms, vertigo, extreme tiredness, achiness and pain; her 22 symptoms continued after she stopped working. (AR 15-21). Her days 23 consist of letting her dogs out in the backyard, feeding her dogs, 24 taking her medicine, sleeping, reading, watching television, doing small 25 errands and napping. (AR 21). She described having difficulty in 26 staying awake and said, [i]f I feel much better, then I try and go like 27 to the grocery store or, you know, go pick up my prescriptions or do 28 small errands to get out because I try really hard to get out if I can. 8 1 (Id.). If she stays up, she then has to nap, which usually lasts 2 between two and four hours. (AR 22). She also described pain related 3 to fibromyalgia and pinched nerves in her low back. (Id.). 4 5 Regarding her mental impairment, Plaintiff testified that she was 6 still seeing Dr. Martin. (AR 24). She said, 7 8 I used to be this gigantic multi-tasker and now it is like, if 9 I can do one or two things in a day, I feel like hey, that s 10 a good day! I think it is a matter of not being able to just 11 tell myself, okay, you have got to get up and get with it. 12 It just doesn t work anymore, but I am trying still. 13 14 (Id.). 15 16 IV. 17 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 18 19 To qualify for disability benefits, a claimant must demonstrate a 20 medically determinable physical or mental impairment that prevents him 21 from engaging in substantial gainful activity2 and that is expected to 22 result in death or to last for a continuous period of at least twelve 23 months. 24 U.S.C. § Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 423(d)(1)(A)). The impairment must render the claimant 25 incapable of performing the work he previously performed and incapable 26 27 2 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. §§ 404.1510, 416.910. 9 1 of performing any other substantial gainful employment that exists in 2 the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 3 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 4 5 To decide if a claimant is entitled to benefits, an ALJ conducts a 6 five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 7 8 (1) 9 activity? If so, the claimant is found not disabled. If 10 11 Is the claimant presently engaged in substantial gainful not, proceed to step two. (2) Is the claimant s impairment 12 claimant is found not disabled. 13 severe? If not, the three. 14 (3) Does the claimant s If so, proceed to step impairment meet or equal the 15 requirements of any impairment listed at 20 C.F.R. Part 16 404, Subpart P, Appendix 1? If so, the claimant is found 17 disabled. 18 (4) If not, proceed to step four. Is the claimant capable of performing her past work? 19 so, the claimant is found not disabled. 20 If to step five. 21 (5) If not, proceed Is the claimant able to do any other work? If not, the 22 claimant is found disabled. If so, the claimant is found 23 not disabled. 24 25 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 26 949, 953-54 (9th Cir. 2001) (citations 27 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 28 10 omitted); 20 C.F.R. §§ 1 The claimant has the burden of proof at steps one through four, and 2 the Commissioner has the burden of proof at step five. 3 F.3d at 953-54. Bustamante, 262 If, at step four, the claimant meets his burden of 4 establishing an inability to perform past work, the Commissioner must 5 show that the claimant can perform some other work that exists in 6 significant numbers in the national economy, taking into account the 7 claimant s residual functional capacity ( RFC ),3 age, education, and 8 work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 9 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). The Commissioner may 10 do so by the testimony of a vocational expert or by reference to the 11 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 12 P, Appendix 2 (commonly known as the Grids ). 13 F.3d 1157, 1162 (9th Cir. 2001). 14 (strength-related) and Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional limitations, the Grids are 15 inapplicable and the ALJ must take the testimony of a vocational expert. 16 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 17 18 Under 42 U.S.C. § 405(g), a district 19 Commissioner s decision to deny benefits. court may review the The court may set aside the 20 Commissioner s decision when the ALJ s findings are based on legal error 21 or are not supported by substantial evidence in the record as a whole. 22 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 23 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 24 25 26 3 Residual functional capacity is what [one] can still do despite 27 [his] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 28 11 1 Substantial evidence is more than a scintilla, but less than a 2 preponderance. 3 which a Reddick, 157 F.3d at 720. reasonable 4 conclusion. Id. person might accept It is relevant evidence as adequate to support a To determine whether substantial evidence supports a 5 finding, the court must consider the record as a whole, weighing both 6 evidence that supports and evidence that detracts from the 7 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 8 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can 9 reasonably support either affirming or reversing that conclusion, the 10 court may not substitute its judgment for that of the Commissioner. 11 Reddick, 157 F.3d at 720-21. 12 13 V. 14 THE ALJ S DECISION 15 16 The ALJ employed the five-step sequential evaluation process and 17 concluded that Plaintiff was not disabled within the meaning of the 18 Social Security Act. (AR 31-39). At the first step, the ALJ found that 19 Plaintiff has not engaged in substantial gainful activity since her 20 onset date. (AR 33). 21 22 At step two, the ALJ found that Plaintiff had the following severe 23 impairments: massive obesity, mild fibromyalgia/CFS with tenderness in 24 the pressure points of the shoulders and knees, degenerative change of 25 the lumbar spine, mild degenerative change of the hands and feet, 26 chronic neck and low back pain and hypothyroidism. (AR 33). The ALJ 27 found that Plaintiff did not have a severe mental impairment and adopted 28 Dr. Sodha s conclusions regarding Plaintiff s mental limitations. 12 (AR 1 35). The ALJ reasoned that Plaintiff s activities, such as taking care 2 of pets and running errands, rendered the opinions of Drs. Martin and 3 Karbelnig inconsistent with the record. (AR 34-35). 4 5 At step three, the ALJ found that Plaintiff s physical impairments 6 did not meet or medically equal one of the listed impairments in 20 7 C.F.R. Part 404, Subpart P, Appendix 1. (AR 35). 8 9 At step four, the ALJ found that Plaintiff had the RFC to perform 10 the full range of medium work as defined in 20 C.F.R. 404.1567(c). 11 (Id.). The ALJ adopted Dr. To s opinion regarding Plaintiff s physical 12 limitations. (AR 38). The ALJ reasoned that it was based on a careful 13 examination of Plaintiff and her documentation, and it was consistent 14 with the objective evidence and Dr. Hartman s assessment. 15 ALJ found that Plaintiff was not credible because (Id.). her The household 16 activities of daily living and her extensive pet care are not consistent 17 with allegations of debility. (Id.). The ALJ declined to give 18 significant because his weight to Dr. Zhao assessments were not 19 consistent with the fairly normal and robust activities of daily living 20 described by Dr. Martin. (Id.). The ALJ did not make a finding as to 21 the credibility of Drs. Al-Wardi or Hollcraft, though the ALJ did say, 22 Dr. Hollcraft stated that all of her laboratory results were completely 23 normal. Her X-rays showed minimal objective findings, and Dr. Al- 24 Wardi noted that the claimant s excessive sleepiness was related to 25 depression. (Id.). The ALJ also said, Dr. Hollcraft noted 26 improvement in [Plaintiff s] diffuse aching stiffness and profound 27 tiredness with symptoms suggestive of sleep deprivation and sleeping 28 frequently during the day. (Id.). 13 1 Consequently, the ALJ found that Plaintiff could perform her past 2 relevant work. (AR 39). 3 Vocational Expert. 4 not disabled. The ALJ did not call a Medical Expert or a (AR 33-39). The ALJ concluded that Plaintiff was (AR 31). 5 6 VI. 7 DISCUSSION 8 9 Plaintiff contends that the ALJ erred for three reasons. First, 10 Plaintiff argues that the ALJ erred in his analysis of the medical 11 evidence by misunderstanding the nature of fibromyalgia. 12 Compl. at 8-10). (Mem. Supp. Second, Plaintiff argues that the ALJ erred by not 13 identifying specific, legitimate reasons for rejecting the treating 14 physicians opinions. (Id. at 10-13). Third, Plaintiff argues that the 15 ALJ failed to comply with Social Security Ruling ( SSR ) 96-7p and 20 16 C.F.R. section 404.1529 17 subjective complaints. in evaluating (Id. at 14-17). Plaintiff s credibility and For the reasons discussed 18 below, the Court agrees that remand is required. 19 20 A. The ALJ Erred By Finding That Plaintiff s Mental Impairment Was 21 Non-Severe At Step Two 22 23 Plaintiff argues that a fair reading of the evidence of record 24 reveals an individual who is severely limited. (Mem. Supp. Compl. at 25 17). Specifically, Plaintiff points out that the ALJ accepted Dr. Al- 26 Wardi s finding that Plaintiff s sleepiness was related to depression 27 but considered neither fatigue nor depression as functional limitations. 28 (Id. at 16). Plaintiff also argues that [r]ather than engaging in the 14 1 two-step analysis of Plaintiff s pain and subjective complaints, as 2 required by law, the ALJ merely made conclusory statements. 3 15). (Id. at The Court agrees. 4 5 By its own terms, the evaluation at step two is a de minimis test 6 intended to weed out the most minor of impairments. See Bowen v. 7 Yuckert, 482 U.S. 137, 153-154, 107 S. Ct. 2287, 96 L. Ed. 2d 119 8 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) 9 (quoting Smolen, 80 F.3d at 1290) (stating that the step two inquiry is 10 a de minimis screening device to dispose of groundless claims). 11 12 A GAF score is the clinician s judgment of the individual s overall 13 level of functioning. It is rated with respect only to psychological, 14 social, and occupational functioning, without regard to impairments in 15 functioning due to physical or environmental limitations. See American 16 Psychiatric Association, Diagnostic and Statistical Manual of Mental 17 Disorders, 32 (4th ed. 2000) (hereafter, DSM IV ). A rating of 41-50 on 18 the GAF scale indicates [s]erious symptoms (e.g., suicidal ideation, 19 severe obsessional rituals, frequent shoplifting) OR any serious 20 impairment in social, occupational, or school functioning (e.g., no 21 friends, unable to keep a job). See DSM IV, at 34. A rating of 61-70 22 on the GAF scale indicates [s]ome mild symptoms (e.g., depressed mood 23 and mild insomnia) OR some difficulty in social, occupational, or school 24 functioning (e.g., occasional truancy, or theft within the household), 25 but generally functioning pretty well, has some meaningful interpersonal 26 relationships). See DSM IV, at 34. While the GAF score itself cannot 27 determine the ultimate question of disability, the GAF score should not 28 be entirely ignored, either. 15 1 Here, the ALJ applied more than a de minimis test at step two when 2 determining that Plaintiff s mental health impairments were not severe. 3 (AR 34). Moreover, the ALJ failed to follow the Secretary s regulations 4 governing the evaluation of mental impairments, as described below. 5 6 Dr. Trudy and Dr. Karbelnig both diagnosed Plaintiff as depressed. 7 (AR 305, 321). They assessed Plaintiff s GAF at 45 and 47, both of 8 which indicate a severe impairment. (Id.). Moreover, Dr. Al-Wardi, who 9 the ALJ did credit, found that Plaintiff was depressed. (AR 38, 203). 10 11 These objective medical findings indicate that Plaintiff suffered 12 from a severe mental health impairment. See 20 C.F.R. § 416.927(a)(2) 13 ( Medical opinions . . . that reflect judgments about the nature and 14 severity of [a plaintiff s] impairment(s), including symptoms, diagnosis 15 and prognosis, are evidence that a plaintiff may submit in support of 16 his disability claim). It appears that the ALJ applied more than a de 17 minimis test and his conclusion at step two that Plaintiff does not 18 suffer from a severe mental impairment was error. See 20 C.F.R. § 19 416.920a(b)(1). 20 21 In sum, the ALJ failed to properly assess Plaintiff s severe 22 impairments at step two of the evaluation process. On remand, the ALJ 23 must reconsider Plaintiff s RFC after finding that Plaintiff s mental 24 impairment is severe and must apply the Secretary s applicable 25 regulations after a determination of a severe mental impairment. 26 27 28 16 1 B. The ALJ Erred By Finding That Plaintiff Could Perform Her Past 2 Relevant Work At Step Four 3 4 1. The ALJ Failed To Properly Consider The Evidence Of Fibromyalgia 5 6 7 Plaintiff contends that the ALJ improperly interpreted evidence 8 because he misunderstood fibromyalgia/CFS. (Mem. Supp. Compl. at 8). 9 Specifically, Plaintiff argues that there are currently no laboratory 10 findings capable of showing fibromyalgia/CFS, and so it was error to 11 require on objective medical evidence. (Id.). The Court agrees. 12 13 The Ninth Circuit has recognized that objective symptoms do not 14 establish the presence or absence of fibromyalgia. Jordan v. Northrop 15 Grumman Corp. Welfare Plan, 370 F.3d 869, 872 (9th Cir. 2004) (overruled 16 on other grounds in Abatie v. Alta Health & Life Insurance, 458 F.3d 17 955, 970 (2006)). As stated in Jordan: [F]ibromyalgia s cause or 18 causes are unknown, there is no cure, and, of greatest importance to 19 disability law, its symptoms are entirely subjective. There are no 20 laboratory tests for the presence or severity of fibromyalgia. Id. 21 Instead, a fibromyalgia diagnosis can only be confirmed by a specific 22 test where a patient reports pain in five parts of the body and when at 23 least eleven of eighteen points cause pain when palpated by an 24 examiner s thumb. Id. 25 26 Furthermore, activities that are sporadic or punctuated with rest 27 may be consistent with fibromyalgia/CFS because disability claimants 28 should not be penalized for attempting to lead normal lives. 17 Reddick, 1 157 F.3d at 722. The Ninth Circuit has held that the mere fact that 2 a plaintiff has carried on certain daily activities, such as grocery 3 shopping, driving a car or limited walking for exercise, does not in any 4 way detract from, or make a plaintiff s daily activities inconsistent 5 with, fibromyalgia/CFS. 6 Cir. 2001). Vertigan v. Halter, 260 F. 3d 1044, 1050 (9th Activities such as walking and swimming may be consistent 7 with the record if they are done for therapeutic reasons. Id. 8 9 In this case, the ALJ discredited both Plaintiff and her treating 10 physicians for inconsistency with the record. (AR 34, 38). 11 Specifically, the ALJ found that Plaintiff s robust activities, (AR 12 38), were inconsistent with fibromyalgia because she 13 14 drives, takes care of her animals, takes care of personal 15 hygiene, handles money, takes walks, reads her mystery books 16 and fiction novels, gets take out food, does Sudoku puzzles, 17 reads a mystery or inspirational book, watches television, 18 uses her computer, runs some errands such as grocery shopping 19 or picking up medications from the pharmacy, attends all 20 scheduled appointments for her physicians, takes care of her 21 pets, and sometimes calls family members. 22 23 (AR 34-35). In light of the totality of the medical evidence, the 24 activities above are not grounds to reject Plaintiff s treating doctors 25 opinions or Plaintiff s own testimony. These activities are consistent 26 with suffering from fibromyalgia because they were quite sporadic and 27 punctuated with rest. Reddick, 157 F.3d at 722. 28 18 Plaintiff s walking 1 and swimming do not indicate a lack of credibility because they were 2 ordered by a doctor. Vertigan, 260 F.3d at 1050. 3 4 In addition, because negative medical tests are consistent with 5 fibromyalgia, the ALJ erred by requiring objective medical findings to 6 support the evidence. Jordan, 370 F.3d at 872; (AR 35, 38). Therefore, 7 remand is required. 8 9 2. The ALJ Erred By Failing To Provide Specific, Legitimate 10 Reasons 11 For Rejecting Plaintiff s Treating Physicians Opinions 12 13 Plaintiff contends that the ALJ erred by failing to provide 14 specific, legitimate reasons for rejecting the treating physicians 15 opinions. (Mem. Supp. Compl. at 10-13). The Court agrees. 16 17 Even if a treating doctor s opinion is contradicted by another 18 doctor, the ALJ may not reject this opinion without providing specific, 19 legitimate reasons, supported by substantial evidence in the record. 20 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). The 21 opinions of treating physicians are entitled to special weight because 22 the treating physician is hired to cure and has a better opportunity to 23 know and observe the claimant as an individual. Magallanes v. Bowen, 24 881 F.2d 747, 751 (9th Cir. 1989). Specialists are accorded more weight 25 than non-specialists. 20 C.F.R. § 404.1527(c)(5). 20 C.F.R. § 26 404.1527(c)(3) also provides, [t]he more a medical source presents 27 relevant evidence to support an opinion, particularly medical signs and 28 laboratory findings, the more weight 19 we will give that opinion. 1 Familiarity with the plaintiff s record is another factor. 2 404.1527(c)(6). 20 C.F.R. § Additionally, selectively focusing on aspects of the 3 treating doctor s report that tend to suggest non-disability will not 4 suffice. See Edlund, 253 F.3d at 1159. 5 6 Here, the ALJ rejected the assessments of Drs. Karbelnig and 7 Martin, Plaintiff s treating physicians for her mental health, in favor 8 of consulting physicians Dr. Colonna, who examined Plaintiff, and Dr. 9 Sodha, who did not. (AR 34). Likewise for Plaintiff s fibromyalgia, 10 the ALJ rejected the opinion of treating physician Dr. Zhao in favor of 11 those of examining physician Dr. To and non-examining physician Dr. 12 Hartman. (AR 38). The ALJ reasoned that the treating physician s 13 opinions were not consistent with the objective evidence. (AR 34-35, 14 38). 15 16 The ALJ accepted the findings of treating rheumatologist Dr. 17 Hollcraft. (AR 38). The ALJ s comments were limited to (i) Dr. 18 Hollcraft stated that all of her laboratory results were completely 19 normal and (ii) Dr. Hollcraft noted improvement. . . . This seemed to 20 be related to the fact that she was now exercising, both swimming in a 21 heated pool and power walking for 30 minutes pretty much every day. 22 (Id.). The ALJ did not note Dr. Hollcraft s finding that [o]n careful 23 evaluation the patient truly has 18 out of a possible 18 fibromyalgia 24 trigger points. (AR 221). 25 26 The ALJ s only stated reason for rejecting the treating physicians 27 testimony was that they were inconsistent with the record. (AR 38). 28 However, as discussed above, the ALJ s conclusion in this regard is 20 1 undermined by the totality of the record. Reddick, 157 F.3d at 722. 2 Thus, the ALJ erred in rejecting Dr. Zhao s opinion in favor of Dr. 3 To s. (Id.). Whereas Dr. Zhao is board-certified, Dr. To is merely 4 board-eligible. (AR 245, 289); see also 20 C.F.R. § 404.1527(c)(5) 5 (giving more weight to experts). Dr. Zhao s specialties, pain medicine 6 and neurology, are more relevant than Dr. To s specialty, internal 7 medicine. Id. Dr. To s recommendations demonstrate that he did not 8 take into account Plaintiff s fibromyalgia or her subjective complaints 9 because he concluded that Plaintiff can lift 50 pounds occasionally and 10 25 pounds frequently, walk up to six hours a day and have no 11 restrictions on sitting or activities requiring agility at all. (AR 12 244-45). (AR Dr. To found did not review Plaintiff s medical records. 13 244); see also 20 C.F.R. § 404.1527(c)(6) ( [T]he extent to which an 14 acceptable medical source is familiar with the other information in your 15 case record is a relevant factor.). Additionally, Dr. To examined 16 Plaintiff more than six months before Dr. Zhao diagnosed her. (AR 243, 17 290). It is unclear whether the tests Dr. To conducted were specific 18 enough to address the causes of Plaintiff s back pain, especially given 19 that Dr. To did find tenderness in Plaintiff s back. (Id.). Dr. 20 Hartman merely reiterated Dr. To s findings, providing no evidence for 21 his conclusions. (AR 182); see also 20 C.F.R. § 404.1527(c)(3) (giving 22 more weight to well-supported opinions). 23 24 The ALJ also improperly rejected treating Drs. Martin and Karbelnig 25 in favor of consulting Drs. Colonna and Sodha. (AR 34-35). Whereas Dr. 26 Colonna met with Plaintiff once, Dr. Martin saw Plaintiff regularly for 27 seven months. (AR 246, 322). Dr. Sodha is not entitled to greater 28 weight because he concluded that Plaintiff had no impairment based only 21 1 on Dr. Colonna s opinion and the same 2 improperly relied on, as discussed above. daily activities (AR 199). the ALJ He did not include 3 any further evidence or reasoning. (Id.); see also 20 C.F.R. § 4 404.1527(c)(3) to (giving more weight well-supported opinions). 5 Additionally, Dr. Colonna saw Plaintiff almost a year before Dr. Martin 6 diagnosed her with depression. (AR 246, 322). 7 8 The ALJ selectively reviewed Dr. Hollcraft s opinion, citing Dr. 9 Hollcraft s findings 10 improvement. of (AR 38). normal laboratory results and Plaintiff s Plaintiff s normal laboratory results and 11 exercise are consistent with fibromyalgia, as discussed above. 12 370 F.3d at 872; Reddick, 157 F.3d at 722. Jordan, These were not legitimate 13 reasons to reject Plaintiff s treating physicians opinions. Remand is 14 required. 15 16 17 3. The ALJ Erred By Rejecting Plaintiff s Testimony Without Providing Clear And Convincing Reasons 18 19 Plaintiff argues that the ALJ erred by not providing specific, 20 clear and convincing reasons for discrediting Plaintiff s testimony. 21 (AR 14-17). Plaintiff argues that it was error for the ALJ to reject 22 Plaintiff s subjective complaints based on a lack of objective medical 23 evidence to corroborate the severity of pain without engaging in a 24 credibility analysis. (AR 14). The Court agrees. 25 26 Whenever an ALJ s disbelief of a plaintiff s testimony is a 27 critical factor in a decision to deny benefits, as it is here, the ALJ 28 must make explicit credibility findings. 22 Rashad v. Sullivan, 903 F.2d 1 1229, 1231 (9th Cir. 1990). Once a plaintiff demonstrates a medical 2 condition, the ALJ may not require that all the symptoms be corroborated 3 by objective medical evidence. Bunnell v. Sullivan, 947 F.2d 341, 3464 47 (9th Cir. 1991). Unless there is affirmative evidence showing that 5 the plaintiff is malingering, the ALJ s reasons for rejecting the 6 plaintiff s testimony must be clear and convincing. Lester, 81 F.3d 7 at 834. 8 9 Here, the ALJ s only reason for rejecting Plaintiff s testimony was 10 that her daily activities and medical history were purportedly 11 inconsistent with the record. (AR 38). As discussed above, negative 12 medical tests do not refute a finding of fibromyalgia, nor do Jordan, 370 F.3d at 872; 13 Plaintiff s sporadic daily activities. Moreover, the ALJ found that Plaintiff s 14 Reddick, 157 F.3d at 722. 15 credibility is poor, but neither the ALJ nor any doctor found any 16 evidence that Plaintiff was malingering. (AR 33-39, 181-85, 189-99, 241, Therefore, neither medical tests nor Plaintiff s daily 17 248, 300). 18 activities provided the ALJ a clear and convincing reasons for rejecting 19 Plaintiff s testimony. 20 21 4. Because The ALJ Failed To Properly Evaluate Plaintiff s Severe 22 Impairments, The ALJ Erred In His Assessment Of Plaintiff s 23 RFC And In His Conclusion That Plaintiff Could Return To Her 24 Past Relevant Work 25 26 The ALJ s failure to consider all of Plaintiff s impairments 27 caused him to give Plaintiff an improper RFC. (AR 35, 39). As there 28 was substantial evidence in the record of Plaintiff s significant 23 1 exertional and non-exertional impairments, it was error to conclude that 2 she could return to her past relevant work. 3 A claimant s RFC reflects an assessment of what a claimant can 4 still do despite existing exertional and nonexertional limitations. 5 Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). SSR 96-8p 6 provides in relevant part: RFC is an assessment of an individual s 7 ability to do sustained work-related physical and mental activities in 8 a work setting on a regular and continuing basis. SSR 96-8p, 1996 WL At Step 5, [a] regular and 9 374184, at *1 (SSA July 2, 1996). 10 continuing basis means 8 hours a day, for 5 days a week, or an 11 equivalent work schedule. Id. at *2 (footnote omitted). 12 13 In evaluating RFC, the ALJ must consider subjective symptoms such 14 as fatigue and pain. Smolen, 80 F.3d at 1291 (citing SSR 88-13 and 20 SSR 96-8p defines a claimant s RFC as an 15 C.F.R. § 404.1529(d)). 16 assessment of an individual s ability to do sustained work-related 17 physical and mental activities in a work setting on a regular and 18 continuing basis. The term regular and continuing basis is further 19 defined as meaning 8 hours a day, for 5 days a week, or an equivalent Smolen, 80 F.3d at 1288. In determining residual 20 work schedule. 21 functional capacity, the ALJ must consider subjective symptoms such as 22 fatigue and pain. Smolen, 80 F.3d at 1291 (citing SSR 88-13 and 20 23 C.F.R. § 404.1529(d)). 24 25 Here, the ALJ determined that Plaintiff retained the RFC to perform 4 26 medium work. (AR 35). Medium work is defined as lifting no more than 27 4 Defendant contends that Plaintiff attempted to go back to work 28 and [a]lthough the school did not allow Plaintiff to return to her old 24 1 50 pounds at a time with frequent lifting or carrying of objects 2 weighing up to 25 pounds. 20 C.F.R. § 404.1567(c). 3 4 Based upon the undisputed medical evidence, the Court concludes 5 that the ALJ erred in concluding that Plaintiff could perform medium 6 work without limitation. Such a determination was not supported by the 7 record. The ALJ did not include any restrictions based upon back pain, 8 neck pain, fatigue or mental impairment. (AR 35). This was error. As 9 the ALJ noted, Dr. To diagnosed Plaintiff with fibromyalgia/CFS, and Dr. 10 Al-Wardi diagnosed Plaintiff as depressed. (AR 37-38). 11 12 Remand is appropriate where additional proceedings could remedy 13 defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 14 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Because the ALJ improperly evaluated the evidence of 15 Cir. 1984). 16 mental-health impairment and fibromyalgia along with improperly 17 discounting the credibility of both the Plaintiff and her treating 18 physicians, the case must be remanded. 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 26 employment because her job no longer existed, the fact that she felt well enough to return to her old job demonstrates that she could resume 27 work. (Mem. Supp. Answer at 4). However, she was only testing to see if she would be able to work by [returning] to work part time for a 28 month to see if she was well enough to go back full time. (AR 318). 25 1 \\ 2 \\ 3 VII. 4 CONCLUSION 5 6 Consistent with the foregoing, IT IS ORDERED that judgment be 7 entered REVERSING the decision of the Commissioner and REMANDING this 8 matter for further proceedings consistent with this decision. IT IS 9 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 10 and the Judgment on counsel for both parties. 11 12 DATED: August 31, 2012. 13 14 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26

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.