Gregory M Kubis v. Michael J Astrue, No. 5:2012cv00287 - Document 22 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge John E. McDermott, IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding for further proceedings in accordance with this Memorandum Opinion and Order and with law. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 Plaintiff, 13 14 ) ) ) ) ) ) ) ) ) ) ) ) GREGORY M. KUBIS, v. MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. 17 18 19 Case No. EDCV 12-00287-JEM MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER PROCEEDINGS PROCEEDINGS On March 8, 2012, Gregory M. Kubis ( Plaintiff or Claimant ) filed a complaint seeking 20 review of the decision by the Commissioner of Social Security ( Commissioner ) denying 21 Plaintiff s application for Social Security Disability Insurance benefits. The Commissioner filed 22 an Answer on June 11, 2012. On December 17, 2012, the parties filed a Joint Stipulation 23 ( JS ). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate 25 Judge. After reviewing the pleadings, transcripts, and administrative record ( AR ), the Court 26 concludes that the Commissioner s decision must be reversed and remanded for further 27 proceedings in accordance with this Memorandum Opinion and Order and with law. 28 BACKGROUND 1 2 Plaintiff is a 49 year old male who applied for Social Security Disability Insurance 3 benefits on October 27, 2008, alleging disability beginning June 15, 2007. (AR 25.) The ALJ 4 determined that Plaintiff has not engaged in substantial gainful activity since June 15, 2007, the 5 alleged onset date. (AR 27.) 6 Plaintiff s claim was denied initially on February 5, 2009, and on reconsideration on April 7 9, 2009. (AR 25.) Plaintiff filed a timely request for hearing, which was held before 8 Administrative Law Judge ( ALJ ) Michael D. Radensky on April 9, 2010, in San Bernardino, 9 California. (AR 25.) Claimant appeared at the hearing and testified and was represented by 10 counsel. (AR 25.) Vocational expert ( VE ) Sandra M. Fioretti also appeared and testified at 11 the hearing. (AR 25.) 12 The ALJ issued an unfavorable decision on May 28, 2010. (AR 25-34.) The Appeals 13 Council denied review on February 2, 2012. (AR 1-7.) 14 DISPUTED ISSUES 15 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 16 grounds for reversal and remand: 17 1. factor. 18 19 2. 3. 4. 5. 28 Whether the ALJ erred as a matter of law by failing to make clear and convincing credibility findings. 26 27 Whether the ALJ erred as a matter of law by failing to include symptoms of chronic fatigue and chronic pain in his hypothetical. 24 25 Whether the ALJ erred as a matter of law by failing to find fibromyalgia a severe impairment. 22 23 Whether the ALJ erred as a matter of law by failing to find that Plaintiff refuted a finding of substance abuse. 20 21 Whether the ALJ erred as a matter of law by finding substance abuse a material 6. Whether the ALJ erred as a matter of law by failing to give adequate weight to the treating physician. 2 STANDARD OF REVIEW 1 2 Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 3 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 4 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 5 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 6 based on the proper legal standards). 7 Substantial evidence means more than a mere scintilla, but less than a 8 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 9 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 10 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. at 11 401 (internal quotation marks and citation omitted). 12 This Court must review the record as a whole and consider adverse as well as 13 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where 14 evidence is susceptible to more than one rational interpretation, the ALJ s decision must be 15 upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 16 However, a reviewing court must consider the entire record as a whole and may not affirm 17 simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 18 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 19 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 20 21 The Social Security Act defines disability as the inability to engage in any substantial 22 gainful activity by reason of any medically determinable physical or mental impairment which 23 can be expected to result in death or . . . can be expected to last for a continuous period of not 24 less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 25 established a five-step sequential process to determine whether a claimant is disabled. 20 26 C.F.R. §§ 404.1520, 416.920. 27 The first step is to determine whether the claimant is presently engaging in substantial 28 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 3 1 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 2 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 3 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 4 significantly limit the claimant s ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 5 1996). Third, the ALJ must determine whether the impairment is listed, or equivalent to an 6 impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d 7 at 746. If the impairment meets or equals one of the listed impairments, the claimant is 8 presumptively disabled. Bowen v. Yuckert, 482 U.S. at 141. Fourth, the ALJ must determine 9 whether the impairment prevents the claimant from doing past relevant work. Pinto v. 10 Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 11 Before making the step four determination, the ALJ first must determine the claimant s 12 residual functional capacity ( RFC ). 20 C.F.R. § 416.920(e). Residual functional capacity 13 ( RFC ) is the most [one] can still do despite [his or her] limitations and represents an 14 assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 15 The RFC must consider all of the claimant s impairments, including those that are not severe. 16 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. 17 If the claimant cannot perform his or her past relevant work or has no past relevant work, 18 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 19 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 20 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 21 consistent with the general rule that at all times the burden is on the claimant to establish his or 22 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 23 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 24 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support 25 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 26 demonstrating that other work exists in significant numbers in the national economy that the 27 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 28 4 1 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 2 entitled to benefits. Id. THE ALJ DECISION 3 4 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 5 not engaged in substantial gainful activity since June 15, 2007, the alleged onset date. (AR 6 27.) 7 At step two, the ALJ determined that Plaintiff has the following combination of medically 8 determinable severe impairments: narcotic addiction with chronic fatigue and chronic pain. (AR 9 27.) 10 At step three, the ALJ determined that Plaintiff does not have an impairment or 11 combination of impairments that meets or medically equals one of the listed impairments. (AR 12 28.) 13 The ALJ then found that Plaintiff has the RFC to perform a full range of work at all 14 exertional levels with the following nonexertional limitations: 15 . . . with his narcotic addition, the claimant is unable to perform any 16 sustained work activity on a regular and continuing basis for a full 8 hours 17 work day for 5 days a week. He is unable to maintain the attention and 18 concentration required in even unskilled work on a regular basis, and would 19 be absent well over 3 days a month with his narcotic addiction. 20 (AR 28.) 21 At step four, the ALJ found that Plaintiff is unable to perform his past relevant work as an 22 auto and diesel mechanic. (AR 30.) The ALJ also found that considering the Claimant s age, 23 education, work experience, and RFC, based on all of the impairments, including the substance 24 use disorder, there are no jobs that exist in significant numbers in the national economy that the 25 Claimant can perform. (AR 31.) 26 If an individual would not be disabled absent the effects of substance abuse, however, 27 then drug addiction is a contributing factor material to the determination of disability and Plaintiff 28 would be found not disabled. 20 C.F.R. § 404.1535(2). Here, the ALJ found that, if Claimant 5 1 stopped his substance abuse, his remaining limitations would not cause more than a minimal 2 impact on Claimant s ability to perform basic work activities and, thus, would not have a severe 3 impairment or combination of impairments. (AR 31-34.) In determining this RFC, the ALJ also 4 made an adverse credibility determination. (AR 32.) The ALJ concluded that, because 5 Claimant would not be disabled if he stopped the substance use, the Claimant s substance use 6 disorder is a contributing factor material to the determination of disability. (AR 34.) 7 Consequently, the ALJ found the Claimant not disabled within the meaning of the Social 8 Security Act at any time from the alleged onset date through the date of the ALJ s decision. 9 (AR 34.) 10 DISCUSSION 11 The ALJ decision must be reversed. The ALJ s finding that Plaintiff does not have 12 fibromyalgia or any impairment if he ceased his substance abuse is unsupported by substantial 13 evidence. The ALJ s non-disability determination is not supported by substantial evidence nor 14 free of legal error. 15 I. 16 17 18 19 20 21 22 23 24 25 26 THE ALJ S FIBROMYALGIA S DETERMINATIONS ARE ERRONEOUS All of the issues raised by Plaintiff concern his alleged fibromyalgia. Despite repeated findings of fibromyalgia by numerous physicians, the ALJ found that the record does not support any actual underlying impairment. (AR 29.) Indeed, the ALJ decision barely discusses Plaintiff s impairments, including fibromyalgia, attributing all impairments to narcotic addiction and finding that, if all narcotics use ceased, his impairments would not cause more than minimal impact on Plaintiff s ability to perform basic work activities. (AR 31.) A. Fibromyalgia Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous connective tissue components of muscles, tendons ligaments, and other tissue. Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). In Benecke, the Ninth Circuit determined that fibromyalgia can be disabling. It described fibromyalgia as follows: 27 28 6 1 Benecke suffers from fibromyalgia, previously called fibrositis, a 2 rheumatic disease that causes inflammation of the fibrous connective tissue 3 components of muscles, tendons, ligaments, and other tissue. See, e.g., 4 Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech, Inc., 5 125 F.3d 794, 796 (9th Cir. 1997); Brosnahan v. Barnhart, 336 F.3d 671, 6 672 n.1 (8th Cir. 2003). Common symptoms, all of which Benecke 7 experiences, include chronic pain throughout the body, multiple tender 8 points, fatigue, stiffness, and a pattern of sleep disturbance that can 9 exacerbate the cycle of pain and fatigue associated with this disease. See 10 Brosnahan, 336 F.3d at 672 n. 1; Cline v. Sullivan, 939 F.2d 560, 563 (8th 11 Cir. 1991). Fibromyalgia s cause is unknown, there is no cure, and it is 12 poorly-understood within much of the medical community. The disease is 13 diagnosed entirely on the basis of patients reports of pain and other 14 symptoms. The American College of Rheumatology issued a set of agreed- 15 upon diagnostic criteria in 1990, but to date there are no laboratory tests to 16 confirm the diagnosis. See Jordan v. Northrop Grumman Corp., 370 F.3d 17 869, 872 (9th Cir. 2004); Brosnahan, 336 F.3d at 672 n. 1. 18 Id. at 589-90; see also Harman v. Apfel, 211 F.3d 1172, 1179-81 (9th Cir. 2000) (reversing ALJ 19 decision denying benefits for fibromyalgia); Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 20 1991) (upholding benefits for fibrositis, now known as fibromyalgia). 21 Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 877 (9th Cir. 22 2004) (overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 970 23 (9th Cir. 2006) (en banc)), a case in which benefits were denied for fibromyalgia, recognized 24 that the accepted diagnostic test for fibromyalgia is that Plaintiff must have pain in 11 of 18 25 tender points. See also Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001). Objective 26 tests, such as myelograms, are administered to rule out other diseases and alternative 27 explanations for the pain, but do not establish the presence or absence of fibromyalgia. Jordan, 28 370 F.3d at 873, 877. It cannot be objectively proven. Id. at 877. The symptoms can be worse 7 1 at some times than others. Id. at 873. The Ninth Circuit recognizes fibromyalgia as a physical 2 rather than a mental disease. Id. The most appropriate specialty for evaluating fibromyalgia is 3 rheumatology. Benecke, 379 F.3d at 594 n.4 ( [r]heumatology is the relevant specialty for 4 fibromyalgia ). 5 B. Relevant Federal Law 6 In evaluating medical opinions, the case law and regulations distinguish among the 7 opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) 8 those who examine but do not treat the claimant (examining physicians); and (3) those who 9 neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20 10 C.F.R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In 11 general, an ALJ must accord special weight to a treating physician s opinion because a treating 12 physician is employed to cure and has a greater opportunity to know and observe the patient 13 as an individual. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If 14 a treating source s opinion on the issues of the nature and severity of a claimant s impairments 15 is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is 16 not inconsistent with other substantial evidence in the case record, the ALJ must give it 17 controlling weight. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 18 Where a treating doctor s opinion is not contradicted by another doctor, it may be 19 rejected only for clear and convincing reasons. Lester, 81 F.3d at 830. However, if the 20 treating physician s opinion is contradicted by another doctor, such as an examining physician, 21 the ALJ may reject the treating physician s opinion by providing specific, legitimate reasons, 22 supported by substantial evidence in the record. Lester, 81 F.3d at 830-31; see also Orn, 495 23 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Where a treating 24 physician's opinion is contradicted by an examining professional s opinion, the Commissioner 25 may resolve the conflict by relying on the examining physician s opinion if the examining 26 physician s opinion is supported by different, independent clinical findings. See Andrews v. 27 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Orn, 495 F.3d at 632. Similarly, to reject an 28 uncontradicted opinion of an examining physician, an ALJ must provide clear and convincing 8 1 reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining physician s 2 opinion is contradicted by another physician s opinion, an ALJ must provide specific and 3 legitimate reasons to reject it. Id. However, [t]he opinion of a non-examining physician cannot 4 by itself constitute substantial evidence that justifies the rejection of the opinion of either an 5 examining physician or a treating physician ; such an opinion may serve as substantial 6 evidence only when it is consistent with and supported by other independent evidence in the 7 record. Lester, 81 F.3d at 830-31; Morgan, 169 F.3d at 600. 8 C. Analysis 9 There is considerable medical evidence that Claimant has the impairment of 10 fibromyalgia, including multiple findings of 11 or more tender points, the standard diagnostic 11 measure for fibromyalgia. Plaintiff s treating rheumatologist Dr. Al Robert Franco presented a 12 disability evaluation dated February 20, 2009, stating that [t]he physical evaluation disclosed 13 tenderness of 18/18 tender points. (AR 270.) Dr. Franco made similar findings on other 14 examinations of Claimant. Dr. Franco s treating notes disclosed 11/18 tender points on August 15 13, 2008 (AR 276), 18/18 on September 30, 2008 (AR 276), 14/18 on March 25, 2008 (AR 16 278), and 18/18 on May 28, 2008. (AR 279.) Pain management physician Dr. Martinez 17 diagnosed fibromyalgia based on more than 11 of 18 tender points on July 8, 2009 (AR 483), 18 more than 14 of 18 tender points on August 10, 2009 (AR 481), and 18 of 18 on October 7, 19 2009 (AR 477), October 15, 2009 (AR 452), and November 4, 2009. (AR 475). Pain specialist 20 Dr. Suezle also diagnosed fibromyalgia and physicians at Cucamonga Valley Medical Group, 21 Inc., repeatedly diagnosed fibromyalgia and chronic fatigue syndrome, an impairment similar to 22 fibromyalgia. (AR 301, 317, 407, 417, 433, 442, 449, 455, 458, 460.) These physicians were 23 prescribing medications to address the pain caused by Claimant s diagnosed impairment of 24 fibromyalgia. 25 The ALJ, however, concluded that Plaintiff did not have fibromyalgia at all or any 26 impairment, based largely on the one time evaluation of internal medicine consultant Dr. Sandra 27 Eriks, dated January 7, 2009. (AR 242-45.) She stated, Claimant, in my opinion, does not 28 have fibromyalgia. I cannot speak specifically for his chronic fatigue. He has zero out of 18 9 1 tender points . . . . I suspect he has a non-organic cause for his discomfort in order to obtain 2 continued supplies of narcotics. (AR 245.) The ALJ attributed Claimant s alleged impairment 3 to narcotic addiction and found, The symptoms in the record do not support any actual 4 underlying impairment. (AR 29.) 5 The ALJ s finding that Claimant does not have a fibromyalgia impairment is unsupported 6 by substantial evidence. First, the ALJ s rejection of Dr. Franco s opinion is not supported by 7 specific, legitimate reasons. The ALJ cursorily dismisses Exhibit 5F (AR 270-290), which 8 contains the records of Dr. Franco and his partner Dr. Lallande. The ALJ says that 5F seems 9 to be a response to the internal medicine consultative examination and says he has all the 10 classic symptoms, but presents them in the form of anecdotal narrative (i.e., he has had, etc.) 11 but does not actually document current findings. (AR 29.) The ALJ s statement is plainly 12 contrary to the record. As 5F indicates, Dr. Franco made four multiple tender point findings in 13 2008 before Dr. Eriks January 7, 2009, evaluation. All of Dr. Franco s tender point findings, 14 moreover, were current and documented in his evaluation and in his progress notes. The 15 medical evidence of record (5F) also contains extensive lab testing conducted by Dr. Franco 16 (AR 282-290), which is consistent with rheumatologic practice to rule out alternate causes of 17 the alleged pain. The ALJ, moreover, does not discuss or even acknowledge the numerous 18 tender point examinations by Dr. Martinez and the opinions of physicians at Cucamonga Valley 19 Medical Group, who also diagnosed fibromyalgia. These examinations and diagnoses 20 constitute substantial evidence that supports Dr. Franco s opinion. 21 Second, the ALJ s reliance on Dr. Eriks is misplaced. The ALJ found that Dr. Eriks 22 noted no typical fibromyalgia findings and suspected narcotics addiction as the underlying 23 problem, and this is consistent with the record. (AR 29.) Dr. Eriks opinion that Claimant does 24 not have fibromyalgia is obviously in direct conflict with the opinions of Dr. Franco, Dr. Castillo 25 and the other physicians at Cucamonga Valley Medical Group. Dr. Eriks saw Claimant only 26 once, and she is not a rheumatologist, the most appropriate specialty for fibromyalgia. 27 Dr. Franco is. Dr. Eriks notes that she reviewed some accompanying medical records (AR 28 242), but does not mention or even seem aware of the tender point findings of other physicians. 10 1 Indeed, her January 7, 2009, report predates extensive additional medical records documenting 2 multiple tender points and diagnoses of fibromyalgia. Dr, Eriks one time examination without 3 review of relevant records is of questionable value. Reddick v. Chater, 157 F.3d 715, 727 (9th 4 Cir. 1998) (little weight given to an opinion based on a one time examination without review of 5 medical records). The ALJ, of course, has the responsibility of resolving ambiguities in the 6 medical evidence. Andrews, 53 F.3d at 1039. The ALJ s interpretation of the medical 7 evidence, if reasonable, should not be second-guessed. Rollins, 261 F.3d at 857. Here, 8 however, the ALJ s reliance on Dr. Eriks opinion that Claimant does not have fibromyalgia is 9 unreasonable. There is simply too much evidence of multiple tender point findings by treating 10 physicians, including a rheumatologist. The ALJ and Dr. Eriks do not even discuss much of that 11 evidence. Dr. Eriks opinion is not a specific, legitimate basis for rejecting Dr. Franco s opinion 12 or the extensive evidence of fibromyalgia. 13 Third, the ALJ s reliance on State agency reviewing physician Dr. Rose is misplaced. Dr. 14 Rose stated, Claimant only seen 1 time by Dr. Franco who gives description of fibromyalgia 15 from an article & does not give any objective findings or give a complete exam. (AR 291.) The 16 Court does not see anything inappropriate about citing an article, certainly nothing that would 17 invalidate Dr. Franco s opinion, and the record plainly contradicts Dr. Rose s assertion that Dr. 18 Franco does not make any objective findings or give a complete exam. Dr. Franco and Dr. 19 Martinez provided the only clinical findings possible or necessary, multiple tender point findings 20 that represent the accepted method of diagnosing fibromyalgia. Dr. Rose also faults Dr. Franco 21 for not responding to a call for additional information, but Dr. Franco s records were supplied 22 and are in the record. (AR 274-290.) There is no basis for Dr. Rose s claim that Dr. Franco s 23 opinion and advocacy for his patient is not consistent with mainstream medical care. Dr. 24 Rose s opinion also suffers from its failure to acknowledge or discuss the records and opinions 25 of Dr. Martinez. Dr. Rose s April 3, 2009, disability evaluation also predated significant medical 26 evidence of fibromyalgia. Dr. Rose s opinion does not constitute a specific, legitimate reason 27 for rejecting Dr. Franco s opinion. 28 11 Fourth, the linchpin of the ALJ s conclusion that Claimant has no underlying impairment, 1 2 including fibromyalgia, is the finding that narcotic addiction is the cause of Plaintiff s symptoms, 3 not fibromyalgia, chronic pain or chronic fatigue. (AR 30.) The ALJ relies in part on Dr. Eriks 4 opinion for this finding. Dr. Eriks, however, only suspected that Claimant has a non-organic 5 cause for his discomfort. (AR 245.) The ALJ says that [o]ther doctors noted narcotic 6 addiction as well (AR 29), but no other doctor made that diagnosis. There certainly was 7 evidence of drug-seeking behavior (AR 429), which the ALJ comprehensively documents (AR 8 29-30), but the drugs were all prescribed medications. Most importantly, the very doctors the 9 ALJ incorrectly cites for narcotic addiction, Dr. Martinez and Dr. Suelze, continued to opine that 10 Plaintiff had fibromyalgia despite any drug abuse. Dr. Franco also twice mentioned that 11 Claimant said only Vicodin helps (AR 274, 278), but nonetheless diagnosed fibromyalgia. 12 These doctors all believed that, notwithstanding any drug abuse, Claimant has fibromyalgia and 13 chronic fatigue syndrome. Only Dr. Eriks suspected a non-organic cause of Claimant s pain 14 and only Dr. Eriks and Dr. Rose opined that Claimant had no fibromyalgia or non-severe 15 fibromyalgia. The ALJ s interpretation of the evidence to find that Plaintiff has no underlying 16 impairment at all if he ceased his substance abuse is not reasonable or supported by 17 substantial evidence. Again, there is too much documented multiple tender point evidence, the 18 accepted diagnostic measure of fibromyalgia, a significant portion of which the ALJ does not 1 19 even address, as well as evidence of chronic fatigue. The ALJ s RFC is not supported by substantial evidence. The ALJ s non-disability 20 2 21 determination is not supported by substantial evidence nor free of legal error. 22 23 24 25 26 27 28 1 The Court is also concerned that Claimant did not have sufficient notice that the ALJ would make the contention that Claimant s symptoms were caused by narcotic addiction or that there were no underlying impairments. Claimant should have the opportunity to address that issue directly. 2 There is no need for the Court to address the issue of Plaintiff s credibility at this time, as much will turn on the resolution of the narcotic addiction issue on remand. Additionally, none of the numerous physicians suggested Plaintiff s symptoms were feigned. 12 ORDER 1 2 IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the 3 Commissioner of Social Security and remanding for further proceedings in accordance with this 4 Memorandum Opinion and Order and with law. 5 6 DATED: January 15, 2013 7 /s/ John E. McDermott JOHN E. MCDERMOTT 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 13

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