Irene Melendez v. Michael J Astrue, No. 5:2008cv01834 - Document 22 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is reversed and this matter is remanded for further proceedings in accord with the law and with this Memorandum and Opinion. LET JUDGMENT BE ENTERED ACCORDINGLY. (san)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 IRENE BARBARA MELENDEZ, Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-1834-JEM MEMORANDUM OPINION AND ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS PROCEEDINGS On December 12, 2008, Irene Barbara Melendez ( Plaintiff or Claimant ) filed a 20 complaint seeking review of the decision by the Commissioner of Social Security 21 ( Commissioner ) denying plaintiff s application for Disability Insurance benefits. Pursuant to 22 28 U.S.C. § 636(c), both parties filed consents to proceed before this Magistrate Judge. On 23 September 14, 2009, the parties filed a Joint Stipulation ( JS ). The matter is now ready for 24 decision. 25 After reviewing the pleadings, transcripts, and administrative record ( AR ), the Court 26 concludes that the Commissioner s decision should be reversed and remanded for further 27 proceedings in accordance with law and with this Memorandum Opinion and Order. 28 BACKGROUND 1 2 Plaintiff applied for Disability Insurance benefits on October 6, 2005, alleging that she 3 has been unable to work due to a herniated disc and fibromyalgia, among other things.1 (AR 4 86.) Plaintiff alleges an onset date of December 16, 2003. (AR 509.) 5 Plaintiff s claims were denied initially by the Social Security Administration ( SSA ) on 6 December 30, 2005, and on reconsideration on March 16, 2006. (AR 46-50, 59.) Claimant 7 filed a timely request for hearing, which was held on March 20, 2008, in San Bernardino, 8 California, before Administrative Law Judge ( ALJ ) Mason Harrell, Jr. (AR 505-523.) Plaintiff 9 testified at the hearing and was represented by counsel. (AR 507.) An unfavorable decision written by ALJ F. Keith Varni was issued on April 11, 2008. 10 11 (AR 15-22.) The ALJ concluded that Claimant has not been under a disability within the 12 meaning of the Social Security Act from December 16, 2003, through the date of the decision. 13 (AR 15.) The ALJ determined that the Claimant suffers from a severe impairment in the 14 musculoskeletal system from degenerative changes in the spine. (AR 17.) However, the ALJ 15 found that Claimant has the residual functional capacity to perform the full range of light work 16 as defined in 20 C.F.R. § 404.1567(b). (AR 19.) In particular, the ALJ found that Claimant is 17 capable of performing her past relevant work as a billing administrator. (AR 22.) Plaintiff timely filed a request for review of the ALJ s unfavorable decision, which was 18 19 denied by the Appeals Council on October 23, 2008 (JS 2, AR 507), making the ALJ s written 20 decision the final decision of the Commissioner. 21 Plaintiff then instituted this action. DISPUTED ISSUES 22 As reflected in the Joint Stipulation, the disputed issues that Plaintiff is raising as 23 24 grounds for reversal and remand are as follows: 25 26 27 28 1 Although Plaintiff indicated in her initial application for benefits that she also suffered from phlebitis, skin lupus, acid reflux, and a possible problem with her left kidney (AR 86), it appears that she no longer contends that these conditions are disabling for purposes of this appeal. 2 1 1. Whether the finding that Plaintiff can perform the full range of exertionally light work is 2 based on an adequate consideration of her fibromyalgia? 3 2. Whether the ALJ erred in rejecting the residual functional capacity assessment of 4 treating internist Dr. Salwan and in ostensibly granting controlling weight to that of non5 examining State agency reviewer Dr. Taylor-Holmes? 6 3. Whether the ALJ s finding that Plaintiff s claim of disability is not credible is based on 7 a proper application of the relevant legal standards and is otherwise supported by substantial 8 evidence? 9 STANDARD OF REVIEW 10 Under 42 U.S.C. Section 405(g), this Court reviews the ALJ s decision to determine 11 whether the ALJ s findings are supported by substantial evidence and whether the proper legal 12 standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial 13 evidence means more than a mere scintilla but less than a preponderance. Richardson v. 14 Perales, 402 U.S. 389, 401 (1971); Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996). 15 Substantial evidence is such relevant evidence as a reasonable mind might accept as 16 adequate to support a conclusion. Richardson, 402 U.S. at 401 (internal quotations and 17 citations omitted). This Court must review the record as a whole and consider adverse as well 18 as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 19 Where evidence is susceptible to more than one rational interpretation, the ALJ s decision must 20 be upheld. Morgan v. Comm r, 169 F.3d 595, 599 (9th Cir. 1999). DISCUSSION 21 22 A. The Sequential Evaluation 23 The Social Security Act defines disability as the inability to engage in any substantial 24 gainful activity by reason of any medically determinable physical or mental impairment which 25 can be expected to result in death or . . . can be expected to last for a continuous period of not 26 less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 27 established a five-step sequential process to determine whether a claimant is disabled. 20 28 C.F.R. §§ 404.1520, 416.920. 3 1 The first step is to determine whether the claimant is presently engaging in substantially 2 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 3 in substantially gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 4 137, 140 (1987). Second, the ALJ must determine whether the claimant has a severe 5 impairment or combination of impairments. Parra, 481 F.3d at 746. Third, the ALJ must 6 determine whether the impairment is listed, or equivalent to an impairment listed, in Appendix I 7 of the regulations. Id. If the impediment meets or equals one of the listed impairments, the 8 claimant is presumptively disabled. 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). If the claimant cannot perform his or her past 11 relevant work, the ALJ proceeds to the fifth step and must determine whether the impairment 12 prevents the claimant from performing any other substantial gainful activity. Moore v. Apfel, 13 216 F.3d 864, 869 (9th Cir. 2000). 14 The claimant bears the burden of proving steps one through four, consistent with the 15 general rule that at all times the burden is on the claimant to establish his or her entitlement to 16 benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the claimant, the 17 burden shifts to the Commissioner to show that the claimant may perform other gainful activity. 18 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 19 Here, at step one the ALJ accepted the Plaintiff s assertion that she has not engaged in 20 substantial gainful activity at any time since her alleged onset date. (AR 17.) At step two, the 21 ALJ rejected Plaintiff s claim that she suffers from the severe physical impairment of 22 fibromyalgia. (AR 17-18.) Although he acknowledged that Plaintiff had been diagnosed with 23 and received treatment for fibromyalgia, he found that [t]he record does not support a finding 24 that the claimant s diagnosed fibromyalgia causes even more than minimal limitations in her 25 ability to sustain employment, nor does it rule out the other diagnosed severe impairments as 26 being responsible for the symptomology with which she presented. (AR 18.) The ALJ 27 determined only that Plaintiff has a severe impairment in the musculoskeletal system from 28 degenerative changes in the spine. (AR 17.) At step three, the ALJ found that Plaintiff s 4 1 identified impairment did not meet or equal a listing in Appendix I of the regulations. (AR 18.) 2 At step four, the ALJ found that Plaintiff has the residual functional capacity to perform the full 3 range of light work as defined in 20 CFR § 404.1567(b), and that Plaintiff is capable of 4 performing her past relevant work as a billing administrator. (AR 18-19, 22.) Accordingly, the 5 ALJ concluded that Plaintiff was not disabled. 6 7 8 B. The ALJ Erred at Step Two in Determining That Plaintiff s Fibromyalgia Is Not a Medically Severe Impairment. Plaintiff challenges the ALJ s determination at step two of the sequential evaluation 9 process. At step two, the ALJ must determine if the claimant has a medically severe 10 impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 11 1996) (citing Yuckert, 482 U.S. at 140-41). Pursuant to the Commissioner s regulations, [a]n 12 impairment or combination of impairments is not severe if it does not significantly limit [the 13 claimant s] physical or mental ability to do basic work activities. 20 C.F.R. § 416.921(a). The 14 severity regulation serves to identify[] at an early stage those claimants whose medical 15 impairments are so slight that it is unlikely they would be found to be disabled even if their age, 16 education, and experience were taken into account. Yuckert, 482 U.S. at 153. An impairment 17 or combination of impairments may be found not severe only if the evidence establishes a 18 slight abnormality that has no more than a minimal effect on an individual s ability to work. 19 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Smolen, 80 F.3d at 1290) 20 (emphasis added). If such a finding is not clearly established by medical evidence, however, 21 adjudication must continue through the sequential evaluation process. Social Security Ruling 22 ( SSR ) 85-28, 1985 WL 56856 at *3. Step two, then, is a de minimis screening device [used] 23 to dispose of groundless claims[.] Webb, 433 F.3d at 687 (quoting Smolen, 80 F.3d at 1290); 24 see also Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). 25 Here, The ALJ determined that Plaintiff has a severe impairment in the musculoskeletal 26 system from degenerative changes in the spine. (AR 17-18.) Although the ALJ acknowledged 27 that Plaintiff alleged fibromyalgia as a physical impairment and that fibromyalgia is a 28 medically determinable severe impairment (AR 18), he questioned the validity of Plaintiff s 5 1 fibromyalgia diagnosis, found that her fibromyalgia does not impose more than minimal 2 limitations in her ability to sustain employment, criticized Plaintiff s lack of follow up treatment 3 for the condition, and noted that most people complaining of fibromyalgia . . . are not totally 4 disabled from working because of their condition. (AR 18-19.) The ALJ failed to apply properly 5 the de minimis screening standard at step two of the sequential evaluation process and his 6 rejection of Plaintiff s fibromyalgia as a severe impairment was legally and factually 7 unsupported. 8 9 1. Diagnostic Framework for Fibromyalgia The Ninth Circuit has determined that fibromyalgia can be disabling. See Benecke v. 10 Barnhart, 379 F.3d 587, 589-90 (9th Cir. 2004). In Benecke, the Ninth Circuit described 11 fibromyalgia as follows: 12 Benecke suffers from fibromyalgia, previously called fibrositis, a rheumatic disease that 13 causes inflammation of the fibrous connective tissue components of muscles, tendons, 14 ligaments, and other tissue. See, e.g., Lang v. Long-Term Disability Plan of Sponsor 15 Applied Remote Tech, Inc., 125 F.3d 794, 796 (9th Cir. 1997); Brosnahan v. Barnhart, 16 336 F.3d 671, 672 n. 1 (8th Cir. 2003). Common symptoms, all of which Benecke 17 experiences, include chronic pain throughout the body, multiple tender points, fatigue, 18 stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and 19 fatigue associated with this disease. See Brosnahan, 336 F.3d at 672 n. 1; Cline v. 20 Sullivan, 939 F.2d 560, 563 (8th Cir. 1991). Fibromyalgia's cause is unknown, there is 21 no cure, and it is poorly understood within much of the medical community. The disease 22 is diagnosed entirely on the basis of patients' reports of pain and other symptoms. The 23 American College of Rheumatology issued a set of agreed-upon diagnostic criteria in 24 1990, but to date there are no laboratory tests to confirm the diagnosis. See Jordan v. 25 Northrop Grumman Corp., 370 F.3d 869, 872 (9th Cir. 2004); Brosnahan, 336 F.3d at 26 672 n. 1. 27 28 6 1 Id.; see also Harman v. Apfel, 211 F.3d 1172 (9th Cir. 2000) (affirming reversal of ALJ s 2 decision denying benefits for fibromyalgia); Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) 3 (upholding benefits for fibrositis, now known as fibromyalgia). 4 Jordan v. Northrop Grumman Corp., 370 F.3d 869, 877 (9th Cir. 2003), a case in which 5 benefits were denied for fibromyalgia, recognized that the accepted diagnostic test is that 6 Plaintiff must have pain in 11 of 18 tender points. See also Rollins v. Massanari, 261 F.3d 853, 7 855 (9th Cir. 2001) (11 of 18 tender points). Objective tests such as myelograms are 8 administered to rule out other diseases and alternative explanations for the pain but do not 9 establish the presence or absence of fibromyalgia. Jordan, 370 F.3d at 873, 877. It cannot be 10 objectively proven. Id. at 877. The symptoms can be worse at some times than others. Id. at 11 873. The Ninth Circuit recognizes fibromyalgia as a physical rather than a mental disease. Id. 12 13 2. Diagnosis of Fibromyalgia by Plaintiff s Treating Physicians In October 2003, Plaintiff was in a car accident, in which she injured her back. (AR 178.) 14 On January 5, 2004, Plaintiff saw Dr. Patel for pain in her neck, low back, and legs, and for right 15 arm weakness and numbness. (AR 178-79.) Dr. Patel did not test Plaintiff for fibromyalgia at 16 that time, but he did find limited ranges of motion of her cervical spine and tenderness over her 17 rhomboids, trapezius, elbow, wrist, hips, and spine. (AR 178-79.) Dr. Patel suspected a touch 18 of fibromyalgia and noted that her back and neck pain appeared to be myofascial. (AR 179.) 19 Plaintiff then followed up with her primary treating internist, Dr. Rasin, on March 31, 2004. Dr. 20 Rasin noted her complaints of pain all over, which he diagnosed as myofascial pain. (AR 21 217.) He also noted her fatigue and frequent headaches, and prescribed Pamelor, an 22 antidepressant. (Id.) Dr. Rasin referred Plaintiff to the fibromyalgia clinic for further 23 examination. (AR 217.) Plaintiff again saw Dr. Rasin on May 26, 2004. (AR 212.) She 24 complained of pain, headaches, and nausea after stopping the Pamelor. (Id.) Her upcoming 25 appointment with the fibromyalgia clinic was noted. (Id.) On June 14, 2004, Plaintiff was 26 evaluated in the fibromyalgia clinic by Ms. Smith, a nurse practitioner, on June 14, 2004. (AR 27 209.) Ms. Smith found 18 of 18 tender points and noted, very tender and mild spasms in the 28 upper and lower back. (AR 209, 241-42, 249 (emphasis in original).) That same day, Plaintiff 7 1 was examined by rheumatologist Dr. Yee. (AR 172-73.) Dr. Yee noted Plaintiff s complaints of 2 generalized aches and pains and found all 18 of the 18 tender points diagnostic of fibromyalgia. 3 (AR 172-73.) He noted that, [c]linically, the patient does have fibromyalgia. (AR 173.) On 4 September 14, 2004, Ms. Smith again examined Plaintiff, found the points to be very tender, 5 and noted mild spasms in the upper and lower back regions. (AR 207.) Plaintiff returned to 6 Dr. Rasin on November 15, 2004, to discuss the symptoms of her fibromyalgia, along with her 7 carpal tunnel syndrome and depression. (AR 205.) She followed up with Dr. Yee on 8 September 22, 2005, who evaluated her positive antinuclear antibody ( ANA ) test but found no 9 signs of Lupus or any other disorder stemming from that finding. (AR 198.) Plaintiff returned to 10 Dr. Rasin on September 28, 2005, after unsuccessfully attempting to return to work, having quit 11 after five days due to pain, weakness, and poor sleep. (AR 197.) Dr. Rasin increased Plaintiff s 12 dosage of Pamelor. (Id.) On October 11, 2005, Plaintiff saw Dr. Rasin, who noted that 13 Plaintiff s fibromyalgia points had not changed. (AR 196.) In February 2006, Dr. Rasin 14 reaffirmed Plaintiff s fibromyalgia diagnosis and again increased her Pamelor. (AR 193.) 15 Plaintiff did not see Dr. Rasin again until February 7, 2007. (AR 471-72.) She explained, 16 however, that her lack of interim treatment was due to no longer having health insurance. (AR 17 171-72.) On April 8, 2007, Plaintiff saw Dr. Patel again for pain, which was attributed to a flare 18 up of her fibromyalgia. (AR 455-56.) Dr. Patel found tenderness at 11 of the 18 tender points, 19 which is also indicative of fibromyalgia. (Id.) 20 21 3. The ALJ s Step Two Analysis The ALJ based his finding that Plaintiff s fibromyalgia was not a severe impairment on 22 the following: (1) although Plaintiff was examined by Ms. Smith, the nurse practitioner, on June 23 14, 2004, and found to have 18 of 18 very tender points consistent with fibromyalgia, the 24 specifics of this examination are lacking in the record (AR 17); (2) although Dr. Yee, the 25 rheumatologist, also found 18 of 18 tender points associated with fibromyalgia, Plaintiff did not 26 27 28 8 1 meet the diagnostic criteria for fibromyalgia2 because Dr. Yee characterized these as tender 2 as opposed to painful (id.); and (3) after Dr. Yee s initial finding, there is no evidence of follow 3 up care or subsequent examination by Dr. Yee related to the fibromyalgia. (AR 18.) The ALJ 4 then concluded: The evidence of record does not support a finding that the claimant s 5 diagnosed fibromyalgia caused even more than minimal limitations in her ability to sustain 6 employment, nor does it rule out the other diagnosed severe impairments as being responsible 7 for the symptomology with which she presented. (Id.) The ALJ noted that most people 8 complaining of fibromyalgia, even those who are properly and accurately diagnosed, are not 9 totally disabled from working. (Id.) 10 The ALJ s conclusions are factually and legally erroneous. First, to the extent that the 11 ALJ found that he could not credit Ms. Smith s finding of fibromyalgia because the specifics of 12 her examination were lacking in the record, he should have developed the record further. In 13 Social Security cases, the ALJ has a special, independent duty to develop the record fully and 14 fairly to assure that the claimant s interests are considered. Tonapetyan v. Halter, 242 F.3d 15 1144, 1150 (9th Cir. 2001); Smolen, 80 F.3d at 1288; Brown v. Heckler, 713 F.2d 441, 443 (9th 16 Cir. 1983). The ALJ has a basic duty to inform himself about facts relevant to his decision. 17 Heckler v. Campbell, 461 U.S. 458, 471 n. 1 (1983) (Brennan, J., concurring). The ALJ s duty 18 to develop the record exists even when the claimant is represented by counsel. Tonapetyan, 19 242 F.3d at 1150. Ambiguous evidence or the ALJ s own finding that the record is inadequate 20 to allow for proper evaluation of the evidence triggers the ALJ s duty to conduct an appropriate 21 inquiry. Smolen, 80 F.3d at 1288; Tonapetyan, 242 F.3d at 1150. The ALJ may discharge this 22 duty by subpoenaing the claimant s physicians, submitting questions to them, continuing the 23 hearing, or keeping the record open after the hearing to allow supplementation of the record. 24 25 26 27 28 2 The ALJ stated: According to the official diagnostic criteria developed for fibromyalgia by the American College of Rheumatology in 1990, a person with this condition would have a history of widespread pain and pain in 11 of 18 specific trigger point sites on digital palpitation. Both criteria must be satisfied, and they specify that tender is not to be considered painful. (JS 17.) 9 1 Smolen, 80 F.3d at 1288; Tonapetyan, 242 F.3d at 1150. Thus, rather than rejecting Ms. 2 Smith s diagnosis, it was the ALJ s duty to develop the record regarding her findings. 3 Second, contrary to the ALJ s characterization, Dr. Yee explicitly concluded that Plaintiff 4 had fibromyalgia. (AR 173 ( Clinically, the patient does have fibromyalgia. ).) Dr. Yee found 5 that Plaintiff has 18 out of 18 tender points associated with fibromyalgia in addition to the 6 requisite history of whole body aches and pains, worse in the upper and lower back area. (AR 7 172-73.) He did not state that the palpated points elicited only tenderness, nor did he expressly 8 state that they were painful. Rather, he stated that Plaintiff has 18 out of 18 tender points, 9 and that the test was clinically indicative of fibromyalgia. (AR 172-73.) 10 Dr. Yee s notes clearly establish a diagnosis of fibromyalgia. The ALJ s own 11 interpretation of Dr. Yee s notes cannot supersede the clinical conclusions of the physician 12 himself. See, e.g., Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999); Day v. Weinberger, 13 522 F.2d 1154, 1156 (9th Cir. 1975) (the ALJ is forbidden from making his own medical 14 assessment beyond that demonstrated by the record); Banks v. Barnhart, 434 F. Supp. 2d 800, 15 805 (C.D. Cal. 2006) (the ALJ must not succumb to the temptation to play doctor and make 16 [his] own independent medical findings ) (citing Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 17 1996)). The finding of generalized body pain since approximately 2003 in conjunction with 18 clinical evidence of 18 of 18 tender points from treating rheumatologist Yee and nurse 19 practitioner Smith (AR 172-73, 207, 209), the finding of 11 of 18 tender points by treating 20 physiatrist Patel (AR 455-56), and the finding by internist Rasin that Plaintiff s tender points 21 remain unchanged (AR 190) are more than sufficient to establish the fibromyalgia diagnosis. 22 Moreover, even if the ALJ found Dr. Yee s fibromyalgia diagnosis to be ambiguous, such a 23 finding triggered his duty to conduct an appropriate inquiry. Smolen, 80 F.3d at 1288; 24 Tonapetyan, 242 F.3d at 1150 25 The ALJ s conclusion that there is no evidence of follow up care or subsequent 26 examination by Dr. Yee related to the fibromyalgia (AR 18) is factually erroneous. After Dr. 27 Yee s initial diagnostic evaluation on June 14, 2004, he again examined Plaintiff again in 28 September 2005. (AR 198.) Moreover, the ALJ s implication that Plaintiff was not seeking 10 1 treatment for her fibromyalgia following her initial evaluation by Dr. Yee also is factually 2 erroneous. In the period between examinations by Dr. Yee, Plaintiff saw Ms. Smith in the 3 fibromyalgia clinic on September 14, 2004 (AR 207), Dr. Rasin in November 2004 (AR 205), 4 September 26, 2005 (AR 197), October 11, 2005 (AR 196), February 2006 (AR 193), and 5 February 7, 2007 (AR 471-74), and Dr. Patel in April 2007. (AR 455-56.) While it is true that 6 there was a one year gap in Plaintiff s treatment between February 2006 and February 2007, 7 Plaintiff explained that this gap was due to her lack of health insurance. (AR 471-72.) A 8 claimant s explained failure to seek medical care does not itself constitute a valid reason to 9 discount her claim. See, e.g., Smolen, 80 F.3d at 1284 (inability to afford treatment is a good 10 reason for not obtaining it); Regennitter v. Comm r of Social Sec. Admin., 166 F.3d 1294, 1297 11 (9th Cir. 1999) (error to reject examining doctor s opinion where claimant failed to seek 12 treatment from mental health professionals because of his poverty). The ALJ s reliance on 13 Plaintiff s alleged lack of follow up in finding that her fibromyalgia was not a severe impairment 14 is both factually and legally unfounded. 15 The ALJ also broadly asserted that most people complaining of fibromyalgia . . . are not 16 totally disabled from working. (AR 18.) His position is not supported by the cases he cites. In 17 Preston v. Sec y of Health and Human Svcs., 854 F.2d 815, 818 (6th Cir. 1988), the court 18 acknowledged that patients with fibrositis (now known as fibromyalgia) typically have severe 19 musculoskeletal pain accompanied by unremitting pain, stiffness, and fatigue due to sleep 20 disturbances, and fibrositis patients, like [the claimant], cannot sit, stand, or maintain any one 21 position for any length of time. Id. at 817-18. In Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 22 1996), the court stated that, while [s]ome people may have such a severe case of fibromyalgia 23 as to be totally disabled from working . . . most do not, and the question is whether [the 24 claimant] is one of the minority. Id. at 307. The Seventh Circuit s comment that most 25 people s fibromyalgia is not disabling is unsupported by any citation. The ALJ s reliance on this 26 comment regarding the statistical prevalence of non-disabling fibromyalgia is simply unfounded 27 and without factual support in the record. Even if it were true that fibromyalgia is usually not 28 disabling, it does not answer the question of whether this Claimant suffers from disabling 11 1 fibromyalgia. See Sarchet, 78 F.3d at 309 (reversing the finding of non-disabling fibromyalgia 2 and remanding to a different ALJ due to the previous ALJ s apparently unshakable 3 commitment to the denial of this applicant s claim ). 4 At step two of the sequential evaluation process, [a]n impairment or combination of 5 impairments may be found not severe only if the evidence establishes a slight abnormality that 6 has no more than a minimal effect on an individual s ability to work. Webb, 433 F.3d at 686 7 (quoting Smolen, 80 F.3d at 1290) (emphasis added). The ALJ was justified in rejecting 8 Plaintiff s fibromyalgia as a severe impairment only if it was so slight that it was unlikely [she] 9 would be found to be disabled even if [her] age, education, and experience were taken into 10 account. Yuckert, 482 U.S. at 153. However, in considering the evidence of Plaintiff s 11 fibromyalgia, the ALJ failed to develop the record adequately, improperly rejected or 12 mischaracterized the opinions of Plaintiff s treating physicians, and substituted his own medical 13 judgment for those of the treating physicians. The ALJ simply did not consider the evidence 14 properly so as to allow him to conclude that Plaintiff s fibromyalgia was not a severe 15 impairment. Accordingly, the ALJ s decision must be reversed and remanded for a valid 16 consideration of the evidence of Plaintiff s alleged severe medical impairments and assessment 17 of the functional limitations stemming from those impairments or combination of impairments.3 18 /// 19 /// 20 /// 21 /// 22 /// 23 24 25 26 27 28 3 Upon remand, the ALJ must properly consider at step two the evidence regarding Plaintiff s fibromyalgia and conduct the five-step sequential evaluation again. Accordingly, the Court does not address the parties second and third disputed issues, which go to the ALJ s findings at step four. 12 1 2 ORDER IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is 3 reversed and this matter is remanded for further proceedings in accord with the law and with 4 this Memorandum and Opinion. 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 7 DATED: March 30, 2010 8 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 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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