Jodey Galvan v. Michael J Astrue, No. 5:2009cv01310 - Document 15 (C.D. Cal. 2010)

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. (dhl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JODEY GALVAN, 12 Plaintiff, 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. NO. EDCV 09-01310 SS MEMORANDUM DECISION AND ORDER 17 INTRODUCTION 18 19 20 Plaintiff Jodey Galvan ( Plaintiff ) brings this action seeking to 21 reverse 22 Administration 23 application for Disability Insurance Benefits ( DIB ). 24 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 25 undersigned United States Magistrate Judge. 26 below, the decision of the Agency is REVERSED and REMANDED for further 27 proceedings. 28 the decision (the of the Commissioner Commissioner or the of the Social Agency ) Security denying her The parties For the reasons stated PROCEDURAL HISTORY 1 2 3 On February 6, 2004, Plaintiff filed an application for DIB 4 benefits claiming that she became disabled on December 19, 2003. 5 (Administrative 6 application and she submitted a request for reconsideration on September 7 14, 2004. (AR 95). 8 5, 2005. (AR 98-102). 9 held before Administrative Law Judge ( ALJ ) Keith F. Varni on April 14, 10 2006. 11 Record (AR 45-66). ( AR ) 156-58). The Agency denied her The Agency denied her application again on January Plaintiff then requested a hearing, which was Plaintiff appeared with counsel and testified. (AR 47-65). 12 13 On September 15, 2006, the ALJ issued a decision denying benefits. 14 (AR 38-44). Plaintiff sought review before the Appeals Council, which 15 vacated the decision on June 8, 2007 and remanded the matter for a new 16 hearing. 17 failed to adequately evaluate the medical opinion evidence, failed to 18 adequately consider the Plaintiff s obesity, and failed to adequately 19 consider lay testimony. (AR 127-31). The Appeals Council determined that the ALJ had (AR 129-30). 20 21 On January 23, 2008, the ALJ held a remand hearing. (AR 67-87). 22 Plaintiff was again represented by counsel and testified. (AR 69-81). 23 Joseph Mooney, a vocational expert, also testified at the hearing. 24 81-84). 25 benefits. 26 council, which denied her request on March 18, 2009. 27 Plaintiff filed the instant action on July 10, 2009. (AR On March 10, 2008, the ALJ issued a decision again denying (AR 19-32). Plaintiff sought review before the Appeals 28 2 (AR 8-11). Pursuant to the 1 Court s Case Management Order, the parties filed a Joint Stipulation 2 ( Jt. Stip. ) on December 30, 2009. 3 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 4 5 6 To qualify for disability benefits, a claimant must demonstrate a 7 medically determinable physical or mental impairment that prevents him 8 from engaging in substantial gainful activity1 and that is expected to 9 result in death or to last for a continuous period of at least twelve 10 months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 11 42 U.S.C. § 423(d)(1)(A)). 12 incapable of performing the work he previously performed and incapable 13 of performing any other substantial gainful employment that exists in 14 the national economy. 15 1999) (citing 42 U.S.C. § 423(d)(2)(A)). The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 16 17 18 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 19 20 (1) Is the claimant presently engaged in substantial gainful 21 activity? 22 If not, proceed to step two. 23 (2) Is the If so, the claimant is found not disabled. claimant s impairment 24 claimant is found not disabled. 25 severe? If not, the If so, proceed to step three. 26 27 1 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. § 416.910. 3 1 (3) Does the claimant s impairment meet or equal the 2 requirements of any impairment listed at 20 C.F.R. Part 3 404, Subpart P, Appendix 1? 4 found disabled. 5 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 6 so, the claimant is found not disabled. 7 If to step five. 8 (5) 9 Is the claimant able to do any other work? claimant is found disabled. 10 If not, proceed If not, the If so, the claimant is found not disabled. 11 12 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 13 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. § 416.920(b)- 14 (g)(1). 15 16 The claimant has the burden of proof at steps one through four, and 17 the Commissioner has the burden of proof at step five. Bustamante, 262 18 F.3d at 953-54. 19 establishing an inability to perform the past work, the Commissioner 20 must show that the claimant can perform some other work that exists in 21 significant numbers in the national economy, taking into account the 22 claimant s residual functional capacity ( RFC ),2 age, education and 23 work experience. 24 The Commissioner may do so by the testimony of a vocational expert or 25 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 26 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). 27 2 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based on all 28 the relevant evidence. 20 C.F.R. § 416.945(a). 4 1 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 2 claimant 3 limitations, the Grids are inapplicable and the ALJ must take the 4 testimony of a vocational expert. 5 (9th Cir. 2000). has both exertional (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 6 THE ALJ S DECISION 7 8 The ALJ employed the five-step sequential evaluation process. 9 At 10 step one, the ALJ found that Plaintiff had not engaged in substantial 11 gainful employment since her alleged onset date. (AR 21). At step two, 12 the ALJ found that Plaintiff had a very questionable severe impairment 13 in the musculoskeletal system from minimal degenerative changes and from 14 a presumption of fibromyalgia. 15 Plaintiff s medically determinable mental impairments of depression 16 considered singly and in combination do not cause more than minimal 17 limitation in the claimant s ability to perform basic mental work 18 activities and are nonsevere. (Id.). The ALJ explained that Plaintiff 19 has no restrictions in activities of daily living, mild limitations in 20 social functioning, . . . no limitations in concentration, persistence, 21 and pace[,] and has experienced no episodes of decompensation. 22 (Id.). (Id.). The ALJ further concluded that 23 24 At step three, the ALJ found that Plaintiff s impairments, either 25 singly or in combination, do not meet or equal the requirements of any 26 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 27 22). 28 physical RFC for medium work, except [that] she is able to frequently (AR At step four, the ALJ determined that Plaintiff retained a 5 1 climb, balance, stoop, kneel, 2 crouch, and crawl. (AR Specifically, the ALJ found: 3 4 The claimant s subjective complaints do not credibly 5 establish a residual functional capacity less than that found 6 herein. 7 impairment which would cause extreme pain or pain which would 8 compromise the claimant s ability to perform work-related 9 activities. There is a lack of medical documentation of an Furthermore, this is based on more than a lack 10 of objective evidence, but rather the entire record as a 11 whole does not reveal that the claimant is precluded from 12 performing all 13 claimant s treatment 14 conservative and objective diagnostic evidence show only mild 15 degenerative 16 persistent 17 stigmata. 18 wasting commonly associated with severe pain. 19 no 20 cognitive deficits. Furthermore, the claimant s treating and 21 examining doctors all found the claimant noncompliant with 22 treatment with suggestions of drug seeking behavior and any 23 exacerbation caused by noncompliance is an additional basis 24 for 25 claimant s allegations of pain and limitation are not fully 26 credible and not consistent with the medical record (20 CFR 27 404.1529, Social Security Ruling 96-7p). Although it appears 28 that the claimant experiences some pain due to degenerative regular, disease spasms, sustained generally with no neurological work has activity. been significant deficits, routine evidence or The and of arthritic There is no evidence of disuse muscle atrophy or evidence denying of significant benefits. attention, Consequently, 6 Also there is concentration, I find that or the 22). 1 disease and fibromyalgia, it is not of the degree she 2 alleges. 3 she sees Dr. Frausto only once a month and she sees Dr. 4 Katsaros every 6 to 8 weeks. 5 Dr. Mohr is her primary care physician, but she has not seen 6 Dr. Mohr in a while. 7 consistent with any debilitating condition or the alleged 8 level of pain asserted by the claimant. In fact, the claimant testified at the hearing that The claimant also stated that Certainly, such treatment is not 9 10 (AR 31). 11 12 At step five, the ALJ found that based on Plaintiff s age, 13 educational background, work experience, RFC and the vocational expert s 14 testimony, Plaintiff was capable of performing past relevant work as 15 a fiscal analyst. (AR 32). 16 was not disabled. (Id.). Accordingly, the ALJ found that Plaintiff 17 STANDARD OF REVIEW 18 19 20 Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner s decision to deny benefits. The court may set aside the 22 Commissioner s decision when the ALJ s findings are based on legal error 23 or are not supported by substantial evidence in the record as a whole. 24 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 25 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 26 27 28 Substantial evidence is more than a scintilla, but less than a preponderance. Reddick, 157 F.3d at 720. 7 It is relevant evidence 1 which a reasonable person might accept as adequate to support a 2 conclusion. 3 a finding, the court must consider the record as a whole, weighing 4 both 5 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 6 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 7 reasonably support either affirming or reversing that conclusion, the 8 court may not substitute its judgment for that of the Commissioner. 9 Reddick, 157 F.3d at 720-21. evidence Id. To determine whether substantial evidence supports that supports and evidence that detracts from the If the evidence can 10 DISCUSSION 11 12 Plaintiff contends that the ALJ erred for two reasons. 13 First, she 14 argues that the ALJ failed to adequately consider the evidence from 15 treating psychiatrist Dr. Theresa Frausto in finding that she suffers 16 no legally severe mental impairments. 17 Plaintiff 18 limitations stemming from her fibromyalgia into her RFC. 19 15-16). For the reasons discussed below, the Court finds that the ALJ s 20 decision should be reversed and this action remanded for further 21 proceedings. asserts that the ALJ (Jt. Stip. at 5-12). failed to adequately Second, incorporate (Jt. Stip. at 22 23 24 A. The ALJ Failed To Properly Assess Plaintiff s Mental Health Impairment At Step Two Of The Evaluation Process 25 26 Plaintiff argues that the ALJ erred by finding that her mental 27 impairment was not severe. (Jt. Stip. at 5-12). 28 Plaintiff complains that the ALJ s characterization of her symptoms as 8 Specifically, 1 being no more than transient to mild, . . . flies in the face of the 2 ongoing, significant findings on mental status examinations. 3 Stip. at 9). 4 Dr. Frausto s notes contain no evidence to support the working diagnoses 5 of bipolar disorder, ADHD, an eating disorder, or obsessive compulsive 6 traits . . . is unsupported by any actual medical evidence other than 7 the ALJ s lay opinion that the above-noted findings are somehow, from 8 a psychiatric point of view, insufficient. (Jt. Plaintiff further contends that the ALJ s finding that (Jt. Stip. at 9-10). 9 10 By its own terms, the evaluation at step two is a de minimis test 11 intended to weed out the most minor of impairments. 12 Yuckert, 482 U.S. 137, 153-54, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); 13 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (quoting 14 Smolen, 80 F.3d at 1290) (stating that the step two inquiry is a de 15 minimis 16 impairment is not severe only if the evidence establishes a slight 17 abnormality that has no more than a minimal effect on an individuals 18 ability to work. 19 citations omitted). screening device to dispose of groundless See Bowen v. claims). An Smolen, 80 F.3d at 1290 (internal quotations and 20 21 The ALJ here applied more than a de minimis test when he determined 22 that Plaintiff s mental impairment was not severe. Moreover, he failed 23 to follow the Secretary s own regulations governing the evaluation of 24 mental impairments, as described below. 25 26 Where there is evidence of a mental impairment that allegedly 27 prevents the plaintiff from working, the Agency has supplemented the 28 9 1 five-step sequential evaluation process with additional regulations.3 2 Maier v. Comm r of the Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 3 1998) (per curiam) (citing 20 C.F.R. § 416.920a). 4 determine the presence or absence of certain medical findings relevant 5 to the plaintiff s ability to work. 6 Second, when the plaintiff establishes these medical findings, the ALJ 7 must rate the degree of functional loss resulting from the impairment 8 by considering four areas of function: (a) activities of daily living; 9 (b) social functioning; (c) concentration, persistence, or pace; and (d) First, the ALJ must 20 C.F.R. § 416.920a(b)(1). 10 episodes of decompensation. 20 C.F.R. § 416.920a(c)(2)-(4). 11 after rating the degree of loss, the ALJ must determine whether the 12 claimant has a severe mental impairment. 13 Fourth, when a mental impairment is found to be severe, the ALJ must 14 determine if it meets or equals a listing in 20 C.F.R. Part 404, Subpart 15 P, Appendix 1. 16 not met, the ALJ must then assess the plaintiff s RFC, and the ALJ s 17 decision must incorporate the pertinent findings and conclusions 18 regarding he plaintiff s mental impairment, including a specific 19 finding as to the degree of limitation in each of the functional areas 20 described in [§ 416.920a(c)(3)]. 20 C.F.R. § 416.920a(d)(2). Third, 20 C.F.R. § 416.920a(d). Finally, if a listing is 20 C.F.R. § 416.920a(d)(3), (e)(2). 21 22 The regulations describe an impairment as follows: 23 24 A physical or mental impairment must result from anatomical, 25 physiological, or psychological abnormalities which can be 26 3 These additional steps are intended to assist the ALJ in determining the severity of mental impairments at steps two and three. 27 The mental RFC assessment used at steps four and five of the evaluation 28 process, on the other hand, require a more detailed assessment. Social Security Ruling 96-8P, 1996 WL 374184 at * 4. 10 1 shown by medically 2 diagnostic techniques. 3 be established by medical evidence consisting of signs, 4 symptoms, 5 plaintiff s] statements of symptoms. and acceptable clinical and laboratory A physical or mental impairment must laboratory findings, not only by [a 6 7 20 C.F.R. § 416.908; see also Ukolov v. Barnhart, 420 F.3d 1002, 1005 8 (9th Cir. 2005) (noting that the existence of a medically determinable 9 physical or mental impairment may only be established with objective 10 medical findings) (citing Social Security Ruling 96-4p, 1996 WL 374187 11 at *1-2). 12 13 Here, Plaintiff s medical records show that she has obtained 14 psychiatric care from Dr. Frausto approximately monthly since June of 15 2003. 16 Plaintiff had symptoms suggestive of severe Major Depression and bulemia 17 with 18 distractibility, rumination, impaired ability to manage daily living 19 activities, and impaired ability to plan ahead and see consequences. 20 (AR 542-43). 21 Frausto assessed Plaintiff with a GAF of 50, which indicates severe 22 social and/or occupational function. 23 months, Dr. Frausto made clinical findings that Plaintiff continued to 24 suffer from depression and anxiety. 25 Plaintiff s GAF at 50 and 65 during this time period. (AR 528-43, 748). mental status On June 11, 2003, Dr. Frausto noted that examination showing a suspicious Dr. Frausto prescribed Lexapro and Klonopin. (AR 543). (AR 537-40). attitude, (Id.). Dr. Over the next two Dr. Frausto assessed (Id.). 26 27 28 On November 26, 2003, Dr. Frausto increased Plaintiff s dosage of Lexapro and Neurontin. (AR 536). 11 On March 3, 2004, Dr. Frausto 1 described Plaintiff as look[ing] better and not fatigued after she 2 successfully discontinued MS Contin, but noted that Plaintiff continued 3 to complain of fatigue and trouble sleeping. 4 2004, Dr. Frausto noted that Plaintiff had lost 45 pounds after 5 undergoing gastric bypass surgery, but that she continued to suffer from 6 pain, fatigue, and poor sleep. 7 Frausto described Plaintiff as having lots of energy, but with 8 increased purging related to Plaintiff s bulemia. 9 Frausto further noted that she suspected bipolar disorder because 10 Plaintiff had maxed out all her credit cards and either gambles too much 11 or eats too much. 12 Plaintiff was tearful and prescribed Lexapro and Abilify. (Id.). (AR 532). (AR 533). On June 25, On November 3, 2004, Dr. (AR 529). Dr. On November 17, 2004, Dr. Frausto noted that (AR 528). 13 14 On March 14, 2005, Dr. Frausto noted that Plaintiff continued to 15 show symptoms of bipolar disorder and had been binging and purging. (AR 16 568-72). 17 looking and noted that she was mourning the pope. 18 the next two months, Dr. Frausto continued to indicate that Plaintiff 19 suffered from bipolar disorder. 20 Frausto diagnosed Plaintiff with bipolar disorder, ADHD, and OCD. 21 641). In November and December of 2005, Dr. Frausto diagnosed Plaintiff 22 with bipolar disorder, OCD, ADHD, and fibromyalgia. 23 January 9, 2006, Dr. Frausto noted that Plaintiff was more anxious, more 24 depressed, and [could not] put sentences together. On April 4, 2005, Dr. Frausto described Plaintiff as tired (AR 603-05). (AR 606). Over On October 10, 2005, Dr. (AR 639-40). (AR On (AR 636). 25 26 In a summary report dated January 23, 2006, Dr. Frausto diagnosed 27 Plaintiff with bipolar disorder, ADHD, OCD, and bulemia. (AR 624). Dr. 28 Frausto noted that Plaintiff was compliant with all appointments and 12 1 with her medications, which included Depakote, Abilify, Cymbalta, and 2 Concerta. 3 have persisted despite the medications: (Id.). However, Dr. Frausto noted that Plaintiff s symptoms 4 5 The symptoms have become worse over the last five years. 6 is either very depressed or irritable. 7 preoccupied with death, fear of dying or suicidal. 8 poor 9 disorganized. concentration and her She She gets obsessed and thoughts She has become She has difficulty making decisions. easily She is 10 anxious and gets panic attacks if she goes into stores or in 11 public places where there are a lot of people. 12 the assistance of her husband for daily activities of living. 13 Her husband manages the checkbook because of [Plaintiff s] 14 poor judgment, impulse control and hyper-spending. 15 husband also does all the cooking and shopping for food. 16 [Plaintiff] will often requires assistance with bathing due 17 to depression, lack of energy and chronic pain. She requires Her 18 19 (Id.). 20 21 On February 6, 2006, Dr. Frausto noted that Plaintiff had completed 22 an inpatient detoxification program for reliance on opioid medications, 23 but that Plaintiff continued to show signs of bipolar disorder, OCD, and 24 ADHD. (AR 637). On February 27, 2006, Dr. Frausto noted that Plaintiff 25 continued to show signs of bulemia, had a [b]lunted affect, and was 26 preoccupied with food. 27 noted that Plaintiff s sleep cycle was fluctuating dramatically from 28 only a few hours on some nights to more than twelve hours on other (AR 635). 13 On March 20, 2006, Dr. Frausto 1 nights. (AR 696). On June 26, 2006, Dr. Frausto noted that Plaintiff 2 was tired looking and had a sad blunted affect. 3 October and November of 2006, Dr. Frausto noted that Plaintiff was 4 feeling hopeless and admitted to suicidal and homicidal thoughts. (AR 5 692-93). (AR 694). In 6 These objective medical findings indicate that Plaintiff suffered 7 8 from a mental health impairment. 9 ( Medical opinions . . . that reflect judgments about the nature and 10 severity of [a plaintiff s] impairment(s), including symptoms, diagnosis 11 and prognosis, are evidence that a plaintiff may submit in support of 12 his 13 Secretary s regulations for evaluating mental impairments. 14 the ALJ found that Plaintiff had no restrictions in activities of daily 15 living, mild limitations in social functioning, and no limitations in 16 concentration, persistence, and pace. 17 the basis for these conclusions and as set forth above, they are 18 directly contradicted by the great weight of objective medical evidence. disability claim). The ALJ, See 20 C.F.R. § 416.927(a)(2) however, failed (AR 21). to follow the Moreover, The ALJ did not state 19 20 Remand for further proceedings is appropriate where additional 21 proceedings could remedy defects in the Commissioner s decision. See 22 Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 23 722 F.2d 1496, 1497 (9th Cir. 1984). 24 evaluated Plaintiff s mental health impairment at step two, the case 25 must be remanded to remedy this defect. Because the ALJ improperly 26 27 28 Upon remand, the ALJ must conduct the supplemental evaluation of mental impairment evidence. Normally, the ALJ must first determine the 14 1 presence or absence of certain medical findings 2 plaintiff s ability to work. 20 C.F.R. § 416.920a(b)(1). However, this 3 Court has determined that there is objective medical evidence that 4 Plaintiff suffers from a mental impairment relevant to her ability to 5 work. 6 ALJ 7 supplemental evaluation of mental impairment evidence.4 Thus, the ALJ need not address this question. must only complete the remaining inquiries relevant to the Accordingly, the required in the 8 9 10 B. On Remand The ALJ Should Consider Limitations Stemming From limitations and Plaintiff s Fibromyalgia In The RFC Assessment 11 12 In assessing RFC, the ALJ must consider 13 restrictions imposed by all of the claimant s impairments, even those 14 that are not severe. 15 Cir. 2003). Here, the ALJ determined that Plaintiff retained a physical 16 RFC for medium work, except [that] she is able to frequently climb, 17 balance, stoop, kneel, crouch, and crawl. (AR 22). This RFC, however, 18 is inconsistent with the medical evidence that Plaintiff has been 19 diagnosed with fibromyalgia. 20 21 22 23 24 25 26 27 28 See Celaya v. Halter, 332 F.3d 1177, 1181-82 (9th 4 Specifically, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. § 416.920a(c)(2)-(4). Next, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. § 416.920a(d). If the mental impairment is found to be severe, the ALJ must determine if it meets or equals a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.920a(d)(2). Finally, if a listing is not met, the ALJ must then assess the plaintiff s RFC, and the ALJ s decision must incorporate the pertinent findings and conclusions regarding he plaintiff s mental impairment, including a specific finding as to the degree of limitation in each of the functional areas described in [§ 416.920a(c)(3)]. 20 C.F.R. § 416.920a(d)(3), (e)(2). 15 1 2 Indeed, the ALJ acknowledged Plaintiff s fibromyalgia, but concluded that Plaintiff s subjective pain testimony was not credible: 3 4 Although it appears that the claimant experiences some pain 5 due to degenerative disease and fibromyalgia, it is not of 6 the degree she alleges. 7 the hearing that she sees Dr. Frausto only once a month and 8 she sees Dr. Katsaros every 6 to 8 weeks. 9 stated that Dr. Mohr is her primary care physician, but she In fact, the claimant testified at The claimant also 10 has not seen Dr. Mohr in a while. Certainly, such treatment 11 is not consistent with any debilitating condition or the 12 alleged level of pain asserted by the claimant. 13 14 (AR 31). 15 16 As set forth above, the ALJ relied on Plaintiff s frequency of 17 treatment to discredit her subjective pain testimony. (AR 31). 18 Specifically, the ALJ concluded that Plaintiff s frequency of seeing her 19 primary care physician, Dr. Gina Mohr, was not consistent with any 20 debilitating condition or the alleged level of pain asserted by the 21 claimant. (Id.). However, Plaintiff testified that she stopped seeing 22 Dr. Mohr regularly because of the cost. 23 have to pay her in order to get a referral that I don t need so I don t 24 generally go through her anymore. ); see also Smolen, 80 F.3d at 1284 25 ( Where a claimant provides evidence of a good reason for not taking 26 medication for her symptoms, her symptom testimony cannot be rejected 27 for not doing so. ). (AR 73) ( I have to, I woudl Indeed, Plaintiff explained that her ability to 28 16 1 seek medical care was limited by a recent change in her insurance and 2 the fact that she has so many financial problems. (AR 73). 3 Moreover, the Court notes that objective symptoms do not establish 4 5 the presence or absence of fibromyalgia. Jordan v. Northrop Grumman 6 Corp. Welfare Plan, 370 F.3d 869, 872 (9th Cir. 2004). 7 Jordan: As stated in 8 9 [F]ibromyalgia s cause or causes are unknown, there is no 10 cure, and, of greatest importance to disability law, its 11 symptoms are entirely subjective. 12 tests for the presence or severity of fibromyalgia. There are no laboratory 13 14 Id. Instead, a fibromyalgia diagnosis can only be confirmed by a 15 specific test where a patient reports pain in five parts of the body and 16 when at least eleven of eighteen points cause pain when palpated by an 17 examiner s thumb. Id. (citing Rollins v. Massanari, 261 F.3d 853, 855 18 (9th Cir. 2001)). Because Plaintiff suffers from fibromyalgia, the ALJ 19 should not rely on general objective findings to determine related 20 limitations for Plaintiff s RFC. 21 22 On remand, the ALJ should consider limitations stemming from 23 Plaintiff s fibromyalgia in the RFC assessment. Further, the ALJ cannot 24 discredit Plaintiff s subjective pain testimony based on her frequency 25 of medical treatment because she testified that she has severe financial 26 limitations. 27 28 \\ 17 CONCLUSION 1 2 3 Consistent with the foregoing, IT IS ORDERED that judgment be 4 entered REVERSING the decision of the Commissioner and REMANDING this 5 matter for further proceedings consistent with this decision. 6 FURTHER ORDERED that the Clerk of the Court serve copies of this Order 7 and the Judgment on counsel for both parties. IT IS 8 9 DATED: February 26, 2010 10 11 12 ________/S/________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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