Jesus Komiyama v. Michael J. Astrue, No. 5:2009cv00159 - Document 16 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JESUS KOMIYAMA, 12 Plaintiff, 13 14 15 vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 09-00159 (RZ) MEMORANDUM OPINION AND ORDER 17 Plaintiff Jesus Komiyama seeks to overturn the decision of the Social Security 18 Commissioner denying his application for disability benefits. He is a former letter carrier 19 for the U.S. Postal Service, and asserts that he has not been able to work for several years. 20 The Administrative Law Judge accepted the analysis of a consulting medical expert over 21 that of the treating physician, and ruled that Plaintiff could perform a number of jobs in the 22 light-work category. 23 Administrative Law Judge committed error. The Ninth Circuit has summarized the law concerning a treating physician s 24 25 In declining to accept the treating physician s opinion, the opinions: 26 27 Generally, a treating physician s opinion carries more weight 28 than an examining physician s, and an examining physician s 1 opinion carries more weight than a reviewing physician s. Lester 2 [v. Chater], 81 F.3d at 830; 20 C.F.R. § 404.1527(d). In 3 addition, the regulations give more weight to opinions that are 4 explained than to those that are not, see 20 C.F.R. 5 § 404.1527(d)(3), and to the opinions of specialists concerning 6 matters relating to their specialty over that of nonspecialists, see 7 id. § 404.1527(d)(5). 8 In disability benefits cases, physicians typically provide 9 two types of opinions: medical opinions that speak to the nature 10 and extent of a claimant s limitations, and opinions concerning 11 the ultimate issue of disability, i.e., opinions about whether a 12 claimant is capable of any work, given her or his limitations. 13 Under the regulations, if a treating physician s medical opinion 14 is supported by medically acceptable diagnostic techniques and 15 is not inconsistent with other substantial evidence in the record, 16 the treating physician s opinion is given controlling weight. 20 17 C.F.R. § 404.1527(d)(2); see also Social Security Ruling (SSR) 18 96-2p. An ALJ may reject the uncontradicted medical opinion 19 of a treating physician only for clear and convincing reasons 20 supported by substantial evidence in the record. Reddick v. 21 Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotation 22 marks and citation omitted). If the treating physician s medical 23 opinion is inconsistent with other substantial evidence in the 24 record, [t]reating source medical opinions are still entitled to 25 deference and must be weighted using all the factors provided in 26 20 CFR [§ ] 404.1527. SSR 96-2p; see id. ( Adjudicators must 27 remember that a finding that a treating source medical opinion 28 is ... inconsistent with the other substantial evidence in the case -2- 1 record means only that the opinion is not entitled to controlling 2 weight, not that the opinion should be rejected.... In many cases, 3 a treating source s medical opinion will be entitled to the 4 greatest weight and should be adopted, even if it does not meet 5 the test for controlling weight. ). An ALJ may rely on the 6 medical opinion of a non-treating doctor instead of the contrary 7 opinion of a treating doctor only if she or he provides specific 8 and legitimate reasons supported by substantial evidence in the 9 record. Lester, 81 F.3d at 830. (internal quotation marks and 10 citation omitted). Similarly, an ALJ may reject a treating 11 physician s uncontradicted opinion on the ultimate issue of 12 disability only with clear and convincing reasons supported by 13 substantial evidence in the record. Reddick, 157 F.3d at 725 14 (quoting Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) 15 (internal quotation marks omitted)). If the treating physician s 16 opinion on the issue of disability is controverted, the ALJ must 17 still provide specific and legitimate reasons in order to reject 18 the treating physician s opinion. Id. 19 20 Holohan v. Massanari, 246 F.3d 1195,1201-1203 (9th Cir. 2001) (footnotes omitted). 21 The treating physician here saw the Plaintiff for more than seven years, and 22 struggled to come up with an appropriate diagnosis. He stated that he had treated Plaintiff 23 presumptively for several possible maladies [AR 634] and the record reflects his attempts 24 to find a solution to Plaintiff s symptoms. [e.g., AR 318,492, 493] Ultimately, he settled 25 on a diagnosis of fibromyalgia. [AR 634] 26 The Administrative Law Judge rejected this diagnosis, however, stating that 27 it was a catch-all diagnosis used in the absence of other impairments, and that it was 28 -3- 1 unsupported by treatment notes and the opinions of the other specialists. [AR 35] The 2 Ninth Circuit, however, takes a different view of fibromyalgia: 3 4 [F]ibromyalgia, previously called fibrositis, [is] a rheumatic 5 disease that causes inflammation of the fibrous connective tissue 6 components of muscles, tendons, ligaments, and other tissue. 7 [citations omitted] Common symptoms . . . include chronic pain 8 throughout the body, multiple tender points, fatigue, stiffness, 9 and a pattern of sleep disturbance that can exacerbate the cycle 10 of pain and fatigue associated with this disease. [citations 11 omitted] Fibromyalgia s cause is unknown, there is no cure, and 12 it is poorly understood within much of the medical community. 13 The disease is diagnosed entirely on the basis of patients reports 14 of pain and other symptoms. 15 Rheumatology issued a set of agreed upon diagnostic criteria in 16 1990, but to date there are no laboratory tests to confirm the 17 diagnosis. [citations omitted] The American College of 18 19 Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). It is clear from this description 20 that the treating physician s diagnosis of fibromyalgia was plausible, not a catch-all. The 21 symptoms are ones which Plaintiff experienced. Everyone, even the Administrative Law 22 Judge, acknowledged that Plaintiff had chronic pain throughout the body, and the treating 23 physician also addressed Plaintiff s complaints of stiffness, exploring whether Plaintiff had 24 stiff man disease, but ultimately rejecting that diagnosis. Fibromyalgia was not a catch- 25 all; it was the treating physician s judgment, after attempting many palliative measures 26 which failed. 27 The Administrative Law Judge rejected the treating physician s diagnosis, 28 saying that it was unsupported by treatment notes and the opinions of other specialists. -4- 1 [AR 35] As indicated, the doctor s records reflect a treatment history which is consistent 2 with the diagnosis he ultimately settled on. As for lack of support from the opinions of 3 other specialists, this is just another way of saying that the Administrative Law Judge 4 preferred the opinions of other doctors to those of the treating physician. Such preference 5 cannot be justified by merely invoking it; that is circular. More to the point, fibromyalgia is a disease that defies objective measurement 6 7 and, in that situation, objective measurement cannot be demanded. As Benecke 8 acknowledged, fibromyalgia is a disease or syndrome which relies on a patient s self- 9 reporting. Benecke, supra, 379 F.3d at 589. It is enough that there be a medically accepted 10 diagnosis. Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985); Rodriguez v. Bowen, 876 11 F.2d 759, 762 (9th Cir. 1989). As noted, the diagnosis of fibromyalgia has been approved 12 by the Ninth Circuit. 13 The treating physician thought, on the basis of his diagnosis and treatment of 14 Plaintiff over a period of many years, that Plaintiff could not work. [AR 535, 634; see also 15 AR 377] 16 assessments. [AR 34] He rejected the opinions because they simply parrot the claimant s 17 exaggerated assertions of incapacity and because they were not backed by credible clinical 18 or diagnostic findings. [Id.] In part, this simply reflects the difficulty in pinpointing 19 Plaintiff s diagnosis, as the treating physician tried, a number of times, to figure out the 20 problem. In part, the Administrative Law Judge, in criticizing the treating physician for 21 accepting Plaintiff s assessment of his capacity, demanded more than is medically available 22 when fibromyalgia is involved; in effect, he sought objective verification of a disease that 23 defies such objective verification. Benecke, supra, 379 F.2d at 594. The Administrative Law Judge did not give significant weight to such 24 This case demonstrates the wisdom of the treating physician rule that a 25 doctor who has treated a patient over a long period of time, and whose goal is to treat, not 26 just assess based on a one-time examination, has a better handle on a patient s status. 27 Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). In a case where objective data 28 simply cannot be had easily and where self-reporting plays an important role in diagnosis -5- 1 and assessment, there is wisdom in preferring the opinion of a doctor who has treated a 2 patient over a sustained period of time, to that of a physician who merely has examined the 3 patient in a limited setting. 4 The Administrative Law Judge erred in rejecting the opinions of the treating 5 physician. The vocational expert testified that, if those opinions were accepted, then 6 Plaintiff could not work. [AR 106 ] Under those circumstances, nothing is to be gained 7 by a further hearing. Benecke, supra. Accordingly, the Commissioner s decision is 8 reversed, and the matter is remanded to the Commissioner for an award of benefits. 9 10 11 As a result of this disposition, the Court need not consider the alternative arguments asserted by Plaintiff. IT IS SO ORDERED. 12 13 DATED: December 4, 2009 14 15 16 17 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 -6-
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