Vickie L Kidwell v. Carolyn W Colvin, No. 2:2012cv08822 - Document 23 (C.D. Cal. 2013)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton. The Decision of the Commissioner is reversed, and this matter will be remanded for calculation of benefits. IT IS SO ORDERED. (rh)
Download PDF
<![CDATA[
1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 VICKIE L. KIDWELL, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-08822-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred when he 1 did not find Plaintiff s obesity, depression, anxiety, 2 bilateral carpal tunnel syndrom and migraine headaches to be 3 severe medically determinable impairments; 4 2. 5 and 6 7 Whether the ALJ properly assessed Plaintiff s fibromyalgia; 3. Whether the ALJ properly assessed Plaintiff s credibility. (JS at 4.) 8 9 This Memorandum Opinion will constitute the Court s findings of 10 fact and conclusions of law. After reviewing the matter, the Court 11 concludes 12 Commissioner must be reversed and the matter remanded for calculation 13 of benefits. that for the reasons set forth, the Decision of the 14 15 INTRODUCTION 16 Plaintiff s Title II disability application was originally filed 17 on November 7, 2000, and alleged an onset date of June 10, 2000 due to 18 chronic fatigue syndrome. (AR 94-96, 109.) 19 resulted in four hearings before two ALJs, two grants of Plaintiff s 20 Requests for Review by the Appeals Council, and two Opinions by this 21 Court, both of which reversed the Decisions of the Commissioner and 22 remanded the matter for new hearings. 23 guidance by both the Appeals Council and this Court, and despite the 24 assignment of a new ALJ to the matter, basically the same errors 25 been repeated for over a decade. 26 herein, the Decision of the Commissioner is reversed, and the matter 27 will be remanded for calculation of benefits. 28 // This application has Despite these attempts at have For the reasons to be set forth 2 1 I 2 THE ALJ FAILED TO PROPERLY ASSESS PLAINTIFF S FIBROMYALGIA 3 The current ALJ Decision, dated March 31, 2011 (AR 510-521) does 4 find that Plaintiff suffers from severe impairments which include 5 fibromyalgia, diabetes, and a history of spine and right shoulder 6 surgeries. 7 carefully, it is apparent that the ALJ either did not really believe 8 that Plaintiff suffers from fibromyalgia, or, believed that Plaintiff 9 did not have any disabling effects from this disease. (AR 51.) Nevertheless, when the Decision is read 10 In its second Opinion in this case, issued on October 25, 2007 11 (AR 529-526), the Court indicated its concern with the relative 12 dearth 13 [fibromyalgia], and in particular, whether and to what extent it 14 impacts her residual functional capacity ( RFC ). (AR 534.) 15 Court further indicated that it would be necessity on remand to obtain 16 an objective report by a rheumatologist as to the effect of her 17 fibromyalgia 18 components (pain and fatigue) which must be evaluated on remand. (AR 19 535.) 20 obtain a consultative examination ( CE ) from a rheumatologist the 21 third time around, instead obtaining an Internal Medicine CE. 22 Appeals 23 rheumatological CE (AR 787), which was finally conducted on December 24 13, 2010 by Dr. Zamiri. (AR 879-883.) of analysis on in this Plaintiff s record RFC, concerning including Plaintiff s the CFS The non-exertional Despite this painstakingly clear directive, the ALJ failed to Council reversed and directed the ALJ to obtain The a 25 After conducting an examination, Dr. Zamiri diagnosed Plaintiff 26 as suffering from chronic pain syndrome, fibromyalgia, osteoarthritis, 27 degenerative disc disease of the lumbar and cervical spine, and a 28 history of irritable bowel syndrom, 3 hyperthyroidism, anxiety, 1 diabetes, and hyperlipidemia. (AR 880.) In rendering a functional 2 assessment, Dr. Zamiri noted, in pertinent part, that: 3 The patient is a 56-year-old female with chronic pain 4 associated to her back problem who is now receiving high 5 dose narcotic pain medication and claims to continus [sic] 6 to 7 fibromyalgia, her diffuse pain is not explained only by 8 fibromyalgia. 9 recommend being evaluated by a pain management group or an have pain. Although she has characteristics of For further evaluation of disability, I 10 orthopedic surgeon. 11 however, I have provided my answers to the questionnaires 12 below. 13 From the standpoint of fibromyalgia, (Id.) 14 15 With regard to the referenced questionnaire, this is a Social 16 Security 17 Statement of Ability to Do Work-Related Activities (Physical). 18 it, Dr. Zamiri rendered the following opinions as to exertional and 19 non-exertional restrictions: 20 21 Administration ( SSA ) form entitled Medical Source Occasional ability to lift up to ten pounds, no ability to lift more; 22 Ability to carry up to ten pounds, never more; 23 Ability to sit two hours at one time without 24 interruption, stand for 30 minutes, and walk for 15 minutes. 25 In an eight-hour day, ability to sit for six hours, stand 26 for one hour, and walk for one hour; 27 28 Requirement of a cane to ambulate more than five feet as a medical necessity; 4 In 1 No ability to ambulate without using a wheelchair, 2 walker, or two canes or two crutches; or to walk a block at 3 a reasonable pace on rough or uneven surfaces; or to climb 4 a few steps at a reasonable pace with the use of a single 5 handrail; 6 7 Problems with balance. (AR 881-883.) 8 9 In rendering his Decision, the ALJ determined that Plaintiff has 10 the RFC to perform light work, with certain occasional exertional 11 limitations, and no non-exertional limitations. (AR 514.) 12 rejected Dr. Zamiri s central conclusion that Plaintiff would be 13 capable of no more than sedentary exertion. (AR 517.) Despite finding 14 that Plaintiff has fibromyalgia as a severe impairment, the ALJ 15 concluded that there was no deleterious effect from this disease, 16 finding that Plaintiff has been treated only on a conservative basis 17 for various subjective symptoms related to fibromyalgia, and that 18 there have been few, if any, supporting objective findings to account 19 for these symptoms. (AR 518.) 20 basically a reiteration of what two ALJs have mistakenly concluded 21 regarding Plaintiff s condition in four Decisions over a decade-long 22 period despite objective support documenting that condition, and a 23 treatment regimen which has been administered to Plaintiff, to which 24 she has adhered scrupulously. He thus Without belaboring the point, this is 25 Plaintiff has consistently been diagnosed as suffering from 26 chronic fatigue syndrome, sometimes designated as fibromyalgia or 27 arthralgia. (AR 199, 209, 424, 427, 577, 583, 660.) These diagnoses 28 have been based upon accepted diagnostic methods. Indeed, as this 5 1 Court previously pointed out, SSA has promulgated Social Security 2 Ruling ( SSR ) 99-2p as a methodology to evaluate cases involving 3 chronic fatigue syndrome. Subsequently, SSR 12-2p has been provided to 4 assist in a determination of evaluation of fibromyalgia and to provide 5 guidance 6 conditions. 7 having an unknown cause, without cure, and as a disease which is 8 diagnosed 9 symptoms. See Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). 10 Both SSR 99-2p and 12-2p provide a description of the requisite 11 medical signs and laboratory findings which must be present to 12 establish the existence of this disease. 13 reproduceable muscle tenderness on repeated examinations, including 14 the presence of positive tender points; ... 15 report of rheumatologist Dr. Sussman in December 2000, there is 16 consistent documentation of widespread muscle and joint pain (AR 568, 17 577, 18 interpretation given to Dr. Sussman s report is that there were no 19 significant objective medical findings which definitively diagnosed 20 her condition. (AR 515.) 21 in evaluation of disability claims involving these In 2004, the Ninth Circuit discussed fibromyalgia as on 579, the 588); basis of however, patients even in reports the of pain and other These include persistent, latest Looking back to the ALJ Decision, the The guidance provided by SSR 12-2p, post-dated the latest ALJ 22 Decision, but did not materially change the analysis. 23 that fibromyalgia may be determined as a medically determinable 24 impairment 25 manifestations of six or more fibromyalgia symptoms, and evidence of 26 other disorders that could have caused the repeated manifestation of 27 symptoms, 28 Plaintiff s if there signs case, or is a history co-occurring there is not 6 of widespread conditions just ample It provides pain, repeated are excluded. but consistent In and 1 substantial evidence as to all of these factors. Going back as far as 2 2000, Plaintiff has complained of widespread body pain. (AR 162, 387, 3 440, 568, 577, 583, 586, 589, 658, 661, 819.) 4 records indicate persistent fatigue (AR 568, 577, 588, 589, 593, 702); 5 depression (AR 427, 440, 577, 635); anxiety (AR 430, 432, 436, 576- 6 77); irritable bowel syndrome (AR 436, 441, 584, 753-54); headaches 7 (AR 429, 432, 572, 734); and dizziness (AR 583, 585, 615-17). 8 these impairments are identified as symptoms of fibromyalgia by SSR 9 12-2p. Next, Plaintiff s All of In May 2008, a medical examination documented 16 out of 18 10 tender points. 11 (AR 812), and in December 2010, 14 of 18 trigger points were located 12 (AR 13 requirements of the American College of Rheumatology which requires at 14 least 15 diagnosis of fibromyalgia. (SSR 12-2p.) 880). 11 In August 2009, 11 out of 18 tender points were found Thus, positive Plaintiff s tender objective points upon examinations examination to meet the satisfy a 16 Moreover, as to the question of whether other disorders could 17 have caused these repeated manifestations of symptoms, it appears not. 18 X-rays of Plaintiff s lumbar spine revealed only mild degeneration (AR 19 403), and x-rays of the cervical spine showed, again, only minimal 20 degenerative changes. (AR 709.) There is no other medical explanation 21 for Plaintiff s lightheadedness and fatigue. (AR 617-618.) 22 The ALJ essentially rejected all of Plaintiff s treating source 23 medical opinions as being unsupported by objective evidence. 24 Court has indicated, this is an erroneous finding with regard to Dr. 25 Sussman. 26 Plaintiff s primary care physician, Dr. Tanedo, who opined as to 27 Plaintiff s migraine headaches, muscle pain, bone pain, abdominal 28 cramping, and diabetes. (AR 596.) The ALJ incorrectly determined that Similarly, the As the ALJ improperly rejected the opinions of 7 1 Dr. Tanedo s opinions were based on Plaintiff s subjective complaints, 2 not objective findings. (AR 516.) The Court finds that the ALJ failed 3 to articulate specific and legitimate reasons to reject the opinions 4 of these treating physicians, in violation of the clear direction 5 provided by the Ninth Circuit in its decisions. See Lester v. Chater, 6 81 F.3d 821, 828 (9th Cir. 1995). 7 the ALJ is charged with evaluating competing medical opinions, there 8 is no legitimate basis for him to have relied upon the one-time 9 examination of internal medicine examiner Dr. Singh in May 2008. (AR The Court further finds that while 10 519.) This was a brief examination which, in any event, resulted in 11 Dr. Singh s confirmation of the diagnosis of fibromyalgia based on 12 notation of 16 out of 18 tender points. (AR 602.) 13 As to Dr. Zamiri, while the ALJ s Decision referenced his report 14 (AR 517), it failed to indicate what weight (if any) might have been 15 given to Dr. Zamiri s findings. 16 existence of pain and fatigue based on examination is critical with 17 regard 18 individual s RFC. 19 chronic pain and noted also that Plaintiff s current medications 20 included very serious pain relief formulas, including Vicodin and 21 morphine. (AR 879.) The record further indicates that even before the 22 date last insured, Plaintiff was consistently taking pain reduction 23 medications; thus, the Court finds it difficult, at the least, to 24 understand 25 fibromyalgia based on his conclusion that Plaintiff had only been 26 prescribed conservative measures to treat her condition. 27 28 to The possible the almost Certainly the confirmation of the non-exertional limitations in determining an Dr. Zamiri in fact did confirm the existence of ALJ s total rejection of misanalysis of the the effect effect of of Plaintiff s Plaintiff s fibromyalgia on her exertional and non-exertional abilities, and the 8 1 fact that the Commissioner has had four opportunities to make a proper 2 evaluation, are enough to reverse and remand for benefits. 3 Medical Expert ( ME ) Dr. Alpern testified that if all of Plaintiff s 4 subjective testimony was accepted, and including the medical diagnoses 5 in the record, Plaintiff would not be able to work a full workday. 6 (AR 487.) 7 credible and is consistent with the medical diagnoses in the record. 8 Consequently, she is disabled. 9 touch upon the remaining issues, which concern the lack of finding of 10 certain impairments as severe, and asserted error in the credibility 11 analysis. 12 In 2009, It is the Court s conclusion that Plaintiff s testimony is Thus, the Court will only briefly Turning first to the credibility analysis, the ALJ again relied 13 largely upon 14 Plaintiff s consistent complaints of pain. (AR 518.) Plaintiff did 15 not example, 16 testified she had surgery on both wrists for tendinitis, and that the 17 pain improved after that surgery, but she still experienced weakness 18 in her hands. (AR 49.) 19 was very detailed, and very much to the point, and was consistent with 20 the reports of her treating physicians. 21 and convincing evidence to support the rejection by the ALJ of 22 Plaintiff s pain complaints. blanketly a supposed complain lack of of objective unrelenting evidence pain. For to reject she Indeed, Plaintiff s testimony at her hearings There is an absence of clear 23 With regard to the omission of certain impairments as severe, the 24 Court need not address that issue, since it would only be relevant if 25 this matter were to be remanded for a new hearing. 26 // 27 // 28 // 9 1 On the basis of the foregoing, the Decision of the Commissioner 2 is reversed, and this matter will be remanded for calculation of 3 benefits. 4 IT IS SO ORDERED. 5 6 7 DATED: August 21, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
]]>
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.
