Marie Victoria Salinas v. Carolyn W. Colvin, No. 5:2013cv01329 - Document 23 (C.D. Cal. 2014)

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 case for the award of benefits. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (See Order for Further Details) (kl)

Download PDF

Marie Victoria Salinas v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIE VICTORIA SALINAS, Plaintiff, 12 v. 13 14 15 No. EDCV 13-01329 SS MEMORANDUM DECISION AND ORDER CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant. 16 17 18 19 I. 20 INTRODUCTION 21 Marie Victoria Salinas ( Plaintiff ) seeks review of the 22 23 final decision of 24 Administration (the Commissioner or the Agency ) denying her 25 Disability Insurance Benefits and Supplemental Security Income. 26 The parties consented, pursuant to 28 U.S.C. § 636(c), to the 27 jurisdiction 28 Magistrate Judge. of the Commissioner the of undersigned the Social United Security States For the reasons stated below, the decision of Dockets.Justia.com 1 the Commissioner is REVERSED and the action is REMANDED for an 2 award of benefits consistent with this decision. 3 4 II. 5 PROCEDURAL HISTORY 6 7 Plaintiff filed applications for Title II Disability 8 Insurance Benefits ( DIB ) and Title XVI Supplemental Security 9 Income ( SSI ) on July 16, 2009. (Administrative Record ( AR ) 10 109, 113). 11 (AR 134). 12 12, 2009 and, upon reconsideration, on February 18, 2010. 13 49, 57). 14 an 15 testified before the first of two ALJs, Sharilyn Hopson ( First 16 ALJ ), on March 21, 2011. 1 17 First ALJ issued a decision denying DIB and SSI. She alleged a disability onset date of July 1, 2008. The Agency denied Plaintiff s applications on November (AR On March 16, 2010, Plaintiff requested a hearing before Administrative Law Judge ( ALJ ). (AR (AR 26-44). 64). Plaintiff On May 20, 2011, the (AR 12-22). 18 19 Plaintiff timely filed a Request for Review of the First 20 ALJ s 21 denied on October 21, 2011. 22 action with this Court on December 15, 2011. 23 01924 SS; AR 426-27). 24 remand (AR 404-05), the Court entered an Order and Judgment for 25 Remand on July 16, 2012. 26 27 28 unfavorable decision (AR 6), which (AR 1). the Appeals Council Plaintiff then filed an (Case No. EDCV 11- Following a stipulation for voluntary (AR 402-03). 1 The stipulation directed Plaintiff ultimately appeared before two different ALJs, identified here as First ALJ and Second ALJ. The related proceedings are identified as First ALJ Hearing and Second ALJ Hearing. 2 1 the ALJ to reevaluate the credibility of Plaintiff s subjective 2 complaints and to give further consideration to the Third Party 3 Function 4 Plaintiff s boyfriend. 5 ALJ 6 obtain 7 administrative decision. to Report of Carlos Marroquin, (AR 404-05). reconsider Plaintiff s vocational expert who was described as The order also directed the residual testimony, functional and capacity, issue a new (AR 405). 8 9 On September 24, 2012, the Appeals Council vacated the First 10 ALJ s decision and remanded the case. 11 Council order required the Second ALJ to: (1) further evaluate 12 Plaintiff s subjective complaints; (2) give consideration to the 13 third 14 consideration to Plaintiff s residual functional capacity (RFC) 15 in light of evidence on the record; and (4) obtain evidence from 16 a vocational expert (VE) as to Plaintiff s job prospects in light 17 of her assessed limitations. party other source (AR 397-400). statements ; (3) The Appeals give additional (AR 400). 18 19 Plaintiff testified before the Second ALJ, Margaret Craig, 20 on March 27, 2013. 21 ALJ issued an unfavorable decision. 22 2013, Plaintiff filed the instant Complaint (Dkt. No. 3). 23 \\ 24 \\ 25 \\ (AR 348-96). 26 27 28 3 On April 5, 2013, the Second (AR 323-40). On August 9, 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was born on December 30, 1959. (AR 109). She was 5 forty-nine years old as of the alleged disability onset date, 6 fifty-one years old at the time of her hearing before the First 7 ALJ, and fifty-three years old at the time of her hearing before 8 the Second ALJ. 9 graduate with (AR 113, 26, 346). some college She is education. (AR a high school 34). Plaintiff 10 alleges that her ailments became severe enough to prevent her 11 from she had 12 experienced pain beginning at an unspecified earlier date. 2 (AR 13 126). 14 diabetes. 15 her ailments became severe enough to prevent her from working. 16 (AR 30). 17 on 18 breakdown, which her physician initially diagnosed as an anxiety 19 attack. 20 that same day. 21 ceasing work to depression along with ongoing hand and neck pain, 22 headache, and nausea. working the on or Plaintiff about had (AR 39). July also been 1, 2008, diagnosed although previously with Plaintiff worked as a teacher s aide before Plaintiff told the First ALJ she was on her way to work alleged onset (AR 30-31). date when she suffered a complete She testified that she sought treatment (AR 31). Plaintiff attributed the cause of her (AR 30). 23 2 24 25 26 27 28 The Agency s Application Summary records Plaintiff as stating that she became unable to work on July 1, 2008. (AR 109). However, in the Work Activity Report filed with her application, Plaintiff stated that her impairments did not affect my work until I had to stop July 2008 (sic). (AR 123). It appears that the Agency recorded July 1, 2008 as Plaintiff s last day of work for the sake of convenience, after concluding that [n]o earlier alleged onset date appeared possible. (AR 126). 4 1 A. Medical History And Treating Doctors Opinions 2 3 1. Physical Condition 4 5 a. Dr. Maged Samaan 6 7 Plaintiff D.O., first her primary October on saw 18, 2004. care (AR physician, 248). Maged 8 Samaan, The record 9 indicates that on March 15, 2006, Dr. Samaan or a colleague 10 doubled 11 seizure drug also commonly prescribed to relieve anxiety. 3 12 241). 13 Avandia, two 14 Lexapro, which 15 depression. 4 (AR 16 Administrative Record 17 alleged onset date appears to be that of November 24, 2008, 18 nearly five months later. 5 19 \\ 20 \\ Plaintiff s preexisting dosage of Klonopin, an anti(AR A note from November 12, 2006 refers to Glyburide and drugs typically is prescribed typically 238). that prescribed The is for first dated or and anxiety and note the for treatment on diabetes, after in Plaintiff s (AR 232). 21 22 23 24 25 26 27 28 3 see Clonazepam, MEDLINEPLUS, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a682279.html (last visited Sept. 22, 2014)). 4 See Glyburide, Rosiglitazone, and Escitalopram, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ (locate Browse by generic or brand name and click first letter of drug name) (last visited Sept. 22, 2014)). 5 This evidence varies from Plaintiff s testimony that she sought treatment on the alleged onset date (AR 31) or immediately (AR 358). However, it is possible that Plaintiff initially sought treatment from another physician or that the AR is incomplete as to all of her visits with Dr. Samaan. 5 1 The results of several tests ordered by Dr. Samaan are more 2 readily interpreted. 3 Plaintiff s wrist was in normal condition. 4 stat test conducted on October 7, 2009 measured nerve function 5 in Plaintiff s upper extremities and found [r]ight median nerve 6 conduction within normal limits. (AR 309). 7 June left 8 limits, her right shoulder within normal limits aside from mild 9 undulating scoliosis, and mild early degenerative disc disease 3, 2010 found An x-ray taken on May 3, 2009 showed that Plaintiff s (AR 305). An NC- An x-ray series on shoulder within 10 and bony spondylosis at the thoracolumbar junction. 11 normal 82). (AR 280- 12 13 b. Dr. Babak Zamiri 14 15 Babak Zamiri, M.D., a board-certified rheumatologist, 16 evaluated Plaintiff on July 14, 2009. 17 report noted that Plaintiff complained of pain in her shoulders 18 and hands. 6 19 as showing a history of diabetes, depression, hyperlipidemia, 20 psoriasis 21 fatigue, chest pain or shortness of breath. 22 not complain of nausea, vomiting, diarrhea, constipation, back 23 pain, numbness or tingling, and exhibited a generally good range 24 of motion in her neck and shoulders. (Id.). and kidney (AR 197). Dr. Zamiri s Dr. Zamiri interpreted Plaintiff s records stones. (Id.). Plaintiff showed (AR 198). no She did (Id.). 25 26 27 28 6 Arthralgia means joint pain. See Joint Pain, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/ency/article/003261.htm (last visited Sept. 22, 2014). 6 1 However, Dr. Zamiri observed that Plaintiff experienced pain sixteen of at 3 (Id.). 4 polyarthralgia and diagnosed subacromial (shoulder) bursitis and 5 mild early osteoarthritis. 6 generalized 7 associated (sic) to fibromyalgia, osteoarthritis, and bursitis. 8 (AR 198-99). 9 spine, shoulders and hand, and that Plaintiff concentrate on Dr. the eighteen Zamiri also tender confirmed Dr. (Id.). musculoskeletal pain points fibromyalgia.7 2 of Samaan s diagnosis of He opined that Plaintiff s was likely multifactorial He recommended a blood test, x-rays of the cervical 10 better 11 exercise. 12 a subacromial bursa injection on Plaintiff s next visit, which 13 he scheduled for two weeks later. management of (AR 199). depression, proper sleep, and proper He informed Dr. Samaan that he might order (Id.). 14 15 On July 28, 2009, x-rays detected mild osteopenia (decreased 16 bone density) and mild degenerative disk disease at the C5-6 17 disk. 18 September 19 fibromyalgia, osteoarthritis, shoulder bursitis, and depression. 20 (AR 189). 21 new pain and that she was taking the following drugs: glyburide (AR 192-96). 29, 2009 Plaintiff returned to Dr. Zamiri s office on and he again recorded impressions of He noted that Plaintiff reported a lot of stress + 22 23 24 7 25 26 27 When determining whether a patient has fibromyalgia, doctors examine eighteen fixed locations ( points ) on the body. Doctors press each point firmly to see if the patient flinches. Generally, if a patient flinches after compression of eleven or more points, she will be diagnosed with fibromyalgia. See Rollins v. Massanari, 261 F.3d 853, 863 (9th Cir. 2001). 28 7 1 2 with metformin; Avandia; enalapril with hydrochlorothiazide; lovastatin; citalopram; Robaxin; and Darvocet. 8 (Id.). 3 4 c. Arrowhead Regional Medical Center 5 6 Plaintiff used Arrowhead Regional Medical Center 7 ( Arrowhead ) as her primary care provider beginning in 2011. 8 (AR 365). 9 reported that Plaintiff complained of body pain she put at level A triage assessment conducted on October 7, 2011, 10 six on a one-to-ten scale. 11 noted Plaintiff s diabetes and fibromyalgia diagnoses, recorded 12 Plaintiff s then-current medication regime, and indicated that 13 all eleven medications on the list were to be continued following 14 the assessment. 15 later added Plaintiff s arthritis history, but appears to have 16 been scheduled mainly so that her glyburide prescription could be 17 renewed. (AR 579, 584). (AR 580, 582). The assessment also A similar assessment five days (AR 586-87). 18 19 On November 9, 2011, Plaintiff 20 complaining of hand pain and dry skin. 21 pain at level eight on a one-to-ten scale. visited (AR 590). Arrowhead, She placed her (Id.) Examining 22 23 24 25 26 27 28 8 These drugs are used to treat the following conditions: type 2 diabetes (glyburin with metformin; Avandia); high blood pressure (enalapril with hydrochlorothiazide); serum cholesterol (lovastatin); depression (citalopram); muscle strain and discomfort (Robaxin); and mild to moderate pain (Darvocet). See MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ (locate Browse by generic or brand name and click first letter of drug name). Darvocet was withdrawn from the U.S. market in 2010. See Acetaminophen and Propoxyphene, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601008.html. 8 1 physician Anh Nguyen, M.D. diagnosed arthralgia in both hands and 2 also found Plaintiff s diabetes out of control. 3 Nguyen noted that Plaintiff had been out of meds for four days, 4 and issued a new prescription for naprosyn. 9 5 Plaintiff s next visit to Arrowhead, on December 14, 2011, a 6 diagnosis of depression was added to her treatment record. 7 598). 8 January 12, 2012, recorded Dr. Paladugu s depression diagnosis. 9 (AR 600). (AR 592). (AR 591-92). Dr. At (AR An outpatient note dated approximately a month later, on On March 2, 2012, a similar outpatient note confirmed 10 that Plaintiff was still being treated for bilateral hand pain, 11 fibromyalgia, hypertension, depression, allergies and diabetes, 12 and listed the medications Plaintiff had been prescribed for each 13 condition. 14 laboratory tests ordered by Geesnell Lim, M.D., at Arrowhead. 15 (AR 602-04). 16 phosphatase levels. 10 17 final outpatient note again showed diagnoses of bilateral hand 18 pain, 19 added hot flash symptoms. 20 visit related to Plaintiff s fibromyalgia for eight weeks later. 21 (Id.). (AR 601). On May 7, 2012, Plaintiff underwent The report showed elevated glucose and alkaline fibromyalgia, (AR 603). hypertension, Finally, on May 14, 2012, the depression (AR 605). and diabetes and Dr. Lim ordered a follow-up 22 23 24 25 26 27 28 9 It is not clear from Dr. Nguyen s treatment record whether Plaintiff was out of all or only some of her medications, or to which conditions these prescriptions pertained. 10 An alkaline phosphatase ( ALP ) test is normally ordered to check liver function. However, high ALP levels may also be associated with certain bone conditions and cancers. ALP - blood test, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/ency/article/ 003470.htm (last visited Sept. 23, 2014). 9 1 2. Mental Condition 2 3 a. Dr. Geetha Paladugu 4 5 Plaintiff saw psychiatrist Geetha Paladugu, M.D., on April 6 6, 2009. (AR 225). Dr. Paladugu found Plaintiff s 7 appropriate but her mood depressed. 8 Paladugu s treatment note, Plaintiff reported depression off and 9 on over the past 5 years, and that she was not doing well over (AR 227). affect According to Dr. 10 the past 7 months. 11 thought process were intact. 12 that 13 disturbance, agitation or irritability, guilt and crying spells, 14 as well as moderately poor concentration and mild anxiety. (AR 15 225). the 16 appointment. 17 behavioral 18 ability to function at work or in a relationship with a spouse or 19 partner, as well as moderate impairment of her other primary 20 relationships and her physical health. 21 Celexa and Neurontin. 11 Plaintiff She was noted (AR 225). (AR 227). experiencing that (AR 227). problems Plaintiff s memory, judgment, and Dr. Paladugu recorded moderate Plaintiff was depression, tearful during sleep Dr. Paladugu estimated that Plaintiff s would cause severe impairment (Id.) of her She prescribed (Id.) 22 23 24 On May describing 1, 2009, herself as Plaintiff again overwhelmed and visited Dr. anxious, Paladugu, though with 25 26 27 28 11 Celexa, described above by its generic name citalopram, is an antidepressant. Neurontin may be used to treat seizures but, in patients with diabetes, is typically used to treat nerve damage associated with the disease. See Citalopram & Gabapentin, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/druginfo/meds/htm. 10 1 good and bad days. 2 wrist problems. 3 Paladugu that she was experiencing pain in her neck, shoulders, 4 and hands and spasms in her back, and her mood was not good. 5 (AR 223). 6 low, but her memory was okay and she was not experiencing 7 delusions or thoughts of hurting herself or others. 8 July 9 describing herself as worrying a lot, easily agitated, and not 17, (AR 224). (Id.). She mentioned her shoulder and On June 5, 2009, Plaintiff told Dr. Her sleep could be better and her motivation was 2009, Plaintiff 10 sleeping well. 11 stopped taking 12 Lyrica, a fibromyalgia drug. (AR visited 222). Neurontin and Dr. Paladugu Plaintiff reported that was she (Id.). again, that being she started On now had on (Id.). 13 14 On August 7, 2009, Plaintiff s next consultation with Dr. 15 Paladugu, Plaintiff reported that she was overwhelmed because 16 her s.o. had been in the hospital for twenty days. 17 her son had moved home to help out. 12 18 month, on September 11, 2009, Plaintiff s s.o. had at last been 19 released from the hospital and come home, but he faced a lung 20 transplant and Plaintiff s mood was low. 21 situation had deteriorated on October 7, 2009, when Plaintiff was 22 overwhelmed. 23 again at home but very sick, and Plaintiff s aunt had also 24 died. 25 having good and bad days and her energy and motivation as (AR 219). (AR 217). (AR 221). However, The following (AR 220). The By February 1, 2010, Mr. Marroquin was Plaintiff described her sleep and appetite as 26 27 28 12 The Court understands s.o. to refer to Plaintiff s significant other, Carlos Marroquin, whose Third Party Report is discussed below. 11 1 erratic. 2 between (Id.). April Her mental condition continued to fluctuate 19, 2010 and August 4, 2011. (AR 574-77). 3 4 5 B. Consultative Opinions Regarding Plaintiff s Physical Condition 6 7 1. Dr. Vicente R. Bernabe 8 9 On October 17, 2012, following the initial remand, Vicente 10 R. Bernabe, D.O., a board-certified orthopedic surgeon, performed 11 an examination of Plaintiff. 12 report, dated October 31, 2012, noted that he did not review 13 Plaintiff s 14 diagnoses of 15 diabetes. (AR 539-40). 16 have a throbbing, burning pain in her neck, upper back, lower 17 back that radiates to her shoulders, elbows, knees, wrists, hands 18 and feet. 19 pain is exacerbated by prolonged lifting, bending, walking and 20 sitting. medical (AR 532-44). records, osteoarthritis (AR 540). but of was the Dr. Bernabe s summary aware spine, of Plaintiff s fibromyalgia and He reported that Plaintiff continued to He also noted Plaintiff s claim that her 21 22 Although Dr. Bernabe s report stated that [c]urrently, the 23 only treatment [Plaintiff] is receiving is pain medications, it 24 also listed, on the same page, ten medications Plaintiff was then 25 taking 26 hydrochlorothiazide, Maxalt, metformin, tramadol, enalapril, at least once daily. 27 28 12 (Id.) These included 1 citalopram, carisoprodol, 2 loratadine. 13 (Id.). amitriptyline, glyburide and 3 4 Dr. Bernabe observed that Plaintiff could sit and stand with 5 normal posture, sat comfortably during the examination and rose 6 from a chair without difficulty, and could also get on and off 7 the examination table without difficulty. 8 that there was tenderness to palpation throughout the thoracic 9 and lumbar area, but no scoliosis. (Id.). (AR 541). He found He found no deformity 10 or impaired range of motion in the spine, but noted tenderness at 11 the base of the skull and at the posterior spinous process. 12 (Id.). 13 throughout her upper and lower extremities. He found Plaintiff s range of motion within normal limits (AR 542). 14 15 Dr. Bernabe diagnosed Plaintiff with degenerative disease of 16 the 17 thoracic 18 (AR 543). 19 carry 20 occasionally, and either sit or stand and walk six hours out of 21 an 22 postural limitations and opined that Plaintiff should be able to 23 push or pull on a frequent basis. 24 13 25 26 27 28 cervical and and thoracic lumbar spine, as well musculoligamentous and as with cervical, myofascial strain. However, he concluded that Plaintiff should be able to twenty-five eight-hour day. pounds (AR frequently 543). He and found no fifty pounds manipulative or (AR 544). According to the National Institutes of Health, these drugs are used to treat the following conditions: high blood pressure (hydrochlorothiazide, enalapril); migraine headaches (Maxalt); moderate to severe pain (tramadol); type 2 diabetes (metformin, glyburide); depression (citalopram, amitriptyline); muscle pain (carisoprodol); hay fever (loratadine). See MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ (locate Browse by generic or brand name and click first letter of drug name). 13 1 2. Dr. Sandra Eriks 2 3 Sandra M. Eriks, M.D., a board-certified internist, 4 performed an internal medicine examination of Plaintiff. (AR 5 547). 6 noted that Plaintiff complained of rather diffuse body pain, 7 particularly in the lower back, shoulder and back of the neck, as 8 well as throughout the spine and the anterior chest area. 9 547-48). In her summary report, dated November 6, 2012, Dr. Eriks (AR Dr. Eriks indicated that she had a note from the 10 physician who diagnosed [Plaintiff] with [fibromyalgia] in July 11 2009, presumably Dr. Zamiri, stating that Plaintiff needed to 12 take Robaxin and Lyrica. 13 Eriks 14 Lyrica had caused her to break out in a rash. that she disliked (Id.). taking However, Plaintiff told Dr. both medications and believed (AR 547-48). 15 16 Dr. Eriks found Plaintiff in no apparent distress, but 17 noted marked cutaneous hypersensitivity at the chest, abdomen 18 and back and throughout the extremities. 19 that Plaintiff had a full range of motion in all extremities and 20 good grip strength. 21 and neck pain, Dr. Eriks found Plaintiff s neck and back motion 22 within 23 Plaintiff 24 every area touched with a very, very light fingertip but did 25 not complain of pain when examined with a stethoscope. 26 This, combined with Plaintiff s failure to spontaneously report 27 fatigue, 28 Eriks normal to (AR 550). limits. exhibited morning (AR conclude that She found Despite Plaintiff s reported back 551). exquisite stiffness (AR 549-50). or Dr. Eriks cutaneous hypersensitivity non-restorative Plaintiff 14 did not observed sleep, have that in (Id.). led Dr. fibromyalgia. 1 (Id.). 2 magnifying 3 during the examination, Dr. Eriks concluded that malingering is 4 present. 5 to 6 occasionally, as well as to stand or walk for six hours out of an 7 eight-hour workday. lift Rather, her on basis that symptomology (Id.). and the and Plaintiff appeared relatively to be uncooperative Dr. Eriks opined that Plaintiff should be able carry fifty pounds frequently and 100 pounds (Id.). 8 9 C. Consultative Opinions Regarding Plaintiff s Mental Condition 10 11 1. Dr. Gadson Johnson 12 13 On October 17, 2009, consulting physician Gadson Johnson, 14 M.D., conducted a psychiatric evaluation of Plaintiff. 15 203). 16 psychiatric 17 Plaintiff had been examined by Dr. Paladugu. 18 noted that Plaintiff complained of depression, crying spells and 19 trouble sleeping in addition to her physical symptoms, but denied 20 suicidal or homicidal thoughts. 21 herself as being able to eat, dress and bathe on her own, do some 22 household chores, errands, shopping and cooking, and get along 23 with 24 depressed, with an affect appropriate to her mood. 25 Dr. Johnson found no cognitive deficits, perceptual disturbances, 26 or memory problems and opined that Plaintiff could tolerate the 27 stress inherent in the work environment and could work without Dr. others. Johnson records (AR stated were 201). that Plaintiff s unavailable, She 28 15 but (AR 200). was calm he (AR 200- medical and aware that was (AR 200-201). He Plaintiff described and cooperative but (AR 202). 1 2 supervision. (AR 203). to be only fair. However, he judged Plaintiff s prognosis (Id.). 3 4 2. Dr. Douglas W. Larson 5 6 Douglas W. Larson, Ph.D., a psychologist, conducted a 7 further psychological examination of Plaintiff on November 7, 8 2012, after the present case was remanded but before Plaintiff 9 testified before the Second ALJ. (AR 561-69). Dr. Larson judged 10 Plaintiff reasonably reliable as a historian and noted that a 11 staff member had to help her fill out a questionnaire due to pain 12 in 13 complaints 14 unexplained fits of anger, fatigue, transient suicidal thoughts 15 and problems with concentration. Plaintiff s as hands. (AR including 564). He described Plaintiff s depression, anxiety, confusion, (Id.). 16 17 Dr. Larson reported that Plaintiff could drive, shop, pay 18 bills, do a few chores, interact with her family, read the 19 newspaper and watch television, but that some of her activities - 20 - including dressing, bathing, cooking, household chores and yard 21 work -- were impaired due to her pain. 22 Plaintiff to be pleasant, cooperative, and neatly groomed but 23 also depressed, and noted that Plaintiff cried occasionally while 24 describing her problems. 25 and fund of knowledge variable and her insight and judgment 26 [f]air, in that she is seeking treatment for her problems. 27 (Id.). 28 Plaintiff s (AR 566). (AR 565-66). He found He found her concentration Based on a number of standardized tests, Dr. Larson found memory deficient and 16 her cognitive functioning 1 decreased 2 medication, as well as her depression. . . . probably secondary to her pain and pain (AR 567-68). 3 4 Specifically, Dr. Larson evaluated Plaintiff s performance 5 on the Wechsler Adult 6 significantly scattered from the deficient to low average range, 7 generally consistent with her history of multiple problems. 8 566-67). 9 deficient to borderline range on the Wechsler Memory Scale IV Similarly, Intelligence Plaintiff Scale showed (WAIS-IV) results test scattered as (AR from 10 test. 11 prognosis 12 treatment. 13 Larson 14 interact with supervisors, coworkers and the public, comply with 15 job rules, and respond to change in the normal workplace setting 16 moderately impaired. 17 commands, but was markedly impaired in her ability to maintain 18 persistence and pace in a normal workplace setting. (AR 567). unknown found Dr. Larson termed Plaintiff s mental health and (AR 568). probably dependent on her response to With respect to her ability to work, Dr. Plaintiff s ability (AR 569). to handle complex commands, Plaintiff could handle simple (Id.). 19 20 21 D. Non-examining Physical Physicians Opinions Regarding Plaintiff s Condition 22 23 1. Dr. C.C. Scott 24 25 On September 15, 2009, non-examining state agency physician 26 C.C. Scott, M.D., completed an RFC physical assessment based on 27 28 17 1 Plaintiff s records from Dr. Zamiri. 14 2 Plaintiff s 3 activities as well as Dr. Zamiri s treatment, Dr. Scott concluded 4 that Plaintiff s allegations were partially credible. 5 additional 6 fibromyalgia and ddd. 15 descriptions note was of that her (AR 215). medical clmt has After reviewing conditions trigger pts and daily His sole and sx of (AR 216). 7 8 2. Dr. L.C. Chiang 9 10 L.C. Chiang, M.D., a second non-examining state agency 11 physician, completed an additional RFC physical assessment on 12 February 16, 2010. 13 on records sent by Dr. Zamiri and on Plaintiff s psychiatric 14 evaluations. (AR 274-75). This later assessment was based (AR 274). 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 It is unclear why Dr. Scott s assessment failed to take into account the records of Plaintiff s primary care physician, Dr. Samaan, who had been treating Plaintiff since 2004. Dr. Scott also left the Administration s RFC assessment form, which asks specific questions about claimants physical limitations and symptoms, almost entirely blank. (AR 183-88). Nevertheless, the accompanying Case Analysis form directs readers to See RFC for questions and recommendations. (AR 216). Dr. Scott s evaluation was apparently affirmed on November 12, 2009 by an individual who signed the Case Analysis form as N. Yunak. (Id.) 15 The Court understands sx to mean symptoms and ddd to stand for degenerative disk disease. 18 1 E. 2 Non-examining Physicians Opinions Regarding Plaintiff s Mental Condition 3 4 1. Dr. L.C. Chiang The second 5 6 state agency Case Analysis, which Dr. Chiang 7 prepared on February 16, 2010, reviewed records submitted by Drs. 8 Paladugu and Johnson. 9 Gold, who also signed the Case Analysis, concluded that these 10 sources [did] not demonstrate any evidence contrary to what was 11 previously reviewed. (AR 274). Either Dr. Chiang or Dr. Sidney (AR 275). 12 13 F. Vocational Expert Testimony 14 15 1. 16 Vocational Expert Troy Scott s Testimony At The First ALJ Hearing 17 18 Vocational Expert ( VE ) Troy Scott testified at the First 19 ALJ Hearing regarding Plaintiff s work history and the existence 20 of 21 mental limitations. 22 a past relevant work history as an office manager and preschool 23 teacher s aide. 16 24 capable of performing any of her past relevant work, and her 25 previous skills would not be transferable to other jobs. 26 27 28 jobs that Plaintiff could perform (AR 40-44). (AR 42). given her physical and The VE noted that Plaintiff had He opined that Plaintiff would not be 16 (AR 42- Based on the VE s testimony, the First ALJ ruled that Plaintiff s additional prior occupation -- working for a collections and automobile repossession concern -- did not meet the criteria for past relevant work. (AR 41-42). 19 1 43). 2 education, skills, and physical limitations could perform certain 3 unskilled jobs requiring minimal exertion. 4 included 5 operator, or packing machine operator. 6 these nor comparable jobs would be available to Plaintiff if she 7 had 8 depression, pain, or side effects from her medications. 9 The VE also opined that Plaintiff could not work at any of these 10 However, the VE opined that an individual with Plaintiff s to employment be off as an task electronic twenty (AR 43). worker, (Id.) percent of Examples sewing machine However, neither the jobs if she were absent three or more days a month. time due to (Id.). (AR 43-44). 11 12 2. 13 Vocational Expert Joseph Torres s Testimony At The Second ALJ Hearing 14 15 Vocational Expert Joseph Torres testified at the Second ALJ 16 Hearing. 17 Plaintiff s past relevant work : collections clerk, insurance 18 office manager, and teacher s aide. 19 that 20 physical 21 Plaintiff s past relevant work. an (AR 385-95). individual limitations with Mr. Torres identified three jobs as Plaintiff s would be (AR 390). education, unable to The VE opined skills, perform any and of (AR 390-91). 22 23 The Second ALJ then posed two hypotheticals to Mr. Torres. 24 (AR 391 & 393). The first largely repeated the hypothetical 25 posed by the First ALJ, and Mr. Torres opined that Plaintiff 26 would not be able to perform any of her past relevant work if her 27 abilities matched those of the individual described. 28 However, the VE reasoned that Plaintiff would be able to work as 20 (AR 391). 1 a packer, housekeeper, or small products assembler. 2 The Second ALJ then modified the hypothetical, asking the VE to 3 assume 4 occasionally and walked two hours out of every eight, rather than 5 six 6 Plaintiff would not be able to perform any of her past relevant 7 work. 8 these reduced physical capabilities, Plaintiff would be able to 9 work as an assembler or table worker. that hours. the (AR individual 392). (AR 392-93). Once carried ten-pound again, the VE (AR 391-92). objects opined that only the However, the VE concluded that even with (AR 393). In response to 10 a further question from Plaintiff s counsel, the VE concluded 11 that none of the identified jobs would be available to Plaintiff 12 if 13 several weeks, or if she were absent from work a day a week or 14 four or more days out of the month. she required unscheduled breaks totaling four hours over (AR 394). 15 16 G. Plaintiff s Testimony 17 18 1. Testimony Before the Second ALJ 19 20 At her hearing before the Second ALJ on March 27, 2013, 21 Plaintiff testified that she ceased work at a preschool because 22 it was just too painful to work. 23 stated that she had a lot of pain in my hands, my back, all 24 over and that she sometimes began crying in the morning before 25 leaving for work. 26 fibromyalgia and arthritis, Plaintiff s physicians began treating 27 her with different medications that caused allergic reactions. 28 (AR 358) They (AR 357-58). also referred 21 (AR 356-57). Plaintiff Following her diagnosis with her to Dr. Paladugu, the 1 psychiatrist, because I was having a lot of anxiety and a lot of 2 depression. (Id.) 3 4 At the time of her hearing, Plaintiff was still experiencing 5 symptoms of mental illness. 6 not like to leave her room for weeks because she felt safe in 7 there. 8 suddenly begin to cry, and felt anxious all the time. 9 Plaintiff took a muscle relaxer, a painkiller, and a sleeping (AR 363-64). (AR 361-68). She could be Plaintiff said she did feeling fine and yet (AR 362). 10 pill but was sometimes unable to sleep. 11 she was unable to find ordinary items in her own kitchen, and 12 experienced memory loss. 13 Celexa for anxiety, but still experienced uneasiness. 14 66). 15 health professional because her divorce left her uninsured. 16 364-65). (AR 363-64). (AR 362-63). At times, She continued to take (AR 365- Despite these symptoms, however, she no longer saw a mental (AR 17 18 The Second ALJ then asked Plaintiff to describe her 19 fibromyalgia symptoms. 20 had a lot of pain in my neck, my shoulders. 21 head, especially in the back. 22 unable to hold her hands over her head to wash her hair, and 23 shooting pains in her fingers. 24 fibromyalgia was treated only with medications, though her doctor 25 had suggested she walk on days when she felt able to do so. 26 371). 27 relaxant, having experienced allergic reactions to other (AR 369). Plaintiff responded that she (AR 370). (Id.). It goes up into my She described being Plaintiff stated that her (AR She was currently taking pain relievers and a muscle 28 22 1 2 fibromyalgia drugs, including Lyrica. (AR 372-73). taking any medications for her back or hand pain. She was not (AR 373). 3 4 The Second ALJ asked Plaintiff to describe an average day. 5 (AR 374). In response, Plaintiff said that on a good day she 6 would make her bed, straighten the house, sit on her patio, and 7 sometimes go to a market or prepare dinner. (AR 374). 8 watch but 9 prevented her from turning pages if she tried to read for any television and take the dog out, her She could hand pain 10 length of time. 11 unable to kneel to pray. 12 at all on some days, and she could usually sit for an hour. 13 375-76). 14 Plaintiff had to lie down. 17 15 could not get out of bed at all. 16 she was confined to bed approximately ten days per month, and had 17 not experienced a month with fewer than ten bad days since she 18 had stopped working. (Id.). She sometimes went to church, but was (AR 375, 384). Her back did not hurt (AR However, on other days her back hurt so much that (AR 375). On a bad day, Plaintiff (AR 379). She estimated that (AR 380-81). 19 20 2. Statements On Plaintiff s Benefits Application 21 22 In the Disability Report accompanying Plaintiff s Benefits 23 Application, Plaintiff listed the illnesses limiting her ability 24 to work as fibromyalgia, depression, and diabetes. 25 She described migraine headaches and pain in her neck, shoulders, 26 27 28 17 (AR 134). In response to a question from her attorney, Plaintiff clarified that her ability to carry out household activities and sit for an hour pertained to good days . On bad days, however, she was unable to get out of bed. (AR 379). 23 1 arms and hands. 2 first caused her to seek treatment. 3 she was sometimes unable to write for more than a few minutes or 4 to do household chores. 5 all, due to arthritis pain and back stiffness. 6 reported ongoing fatigue, depression, mood swings and difficulty 7 sleeping. (Id.). She described the crying spell that (Id.). She reported that On other days, she could not get up at (Id.). She also (Id.). 8 9 Plaintiff described having good days and bad days. (AR 10 151). 11 and 12 However, she noted that she was sometimes unable to sleep, drive, 13 do household chores, or go out be myself (sic). 14 hobbies were reading, needlepoint, and other crafts, but she was 15 unable to pursue any of them, with the exception of reading the 16 newspaper. 17 very happy and outgoing person before her illnesses, but fearful 18 that I will not be the way I was. On a good day, she could shower, prepare simple meals, do household chores (AR 155). if she took many breaks. (Id.). (AR 152). Her She described herself as having been a (AR 157). 19 20 H. Carlos Marroquin s Third Party Function Report 21 22 On August 27, 2009, Plaintiff s boyfriend, Carlos Marroquin, 23 completed a Third Party Function Report. 24 explained that he had known Plaintiff for fifteen years and lived 25 with her for the past two. 26 Plaintiff s daily activities, Mr. Marroquin wrote that Plaintiff 27 was able to shower, clean the house as much as she can and cook 28 light meals, but most of the time she is in pain. (AR 143). 24 (AR 143-150). He In his description of (Id.). She 1 had been forced to abandon her former hobbies of arts, crafts, 2 and sewing. 3 personal grooming, however, and was able to drive. 4 146). 5 clothes, 6 However, Plaintiff had difficulty socializing because she is 7 very emotional, a lot of pain [sic] and because she was having 8 [a] hard time going places. 9 along well with authority figures, she could not handle stress or (AR 147). She had no problems with hygiene or (AR 144, Once or twice per week, Plaintiff shopped for groceries or and she spoke on the telephone (AR 148). daily. (AR 147). Although Plaintiff got 10 changes in routine very well. 11 question about whether he had noticed unusual behavior or fears, 12 Mr. Marroquin said Plaintiff [woke] up in pain at nights [sic] 13 crying, mood swing[s]. (AR 149). In response to a (Id.). 14 15 IV. 16 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 17 18 To qualify 19 demonstrate 20 impairment that prevents her from engaging in substantial gainful 21 activity and that is expected to result in death or to last for a 22 continuous period of at least twelve months. 23 157 24 § 423(d)(1)(A)). 25 incapable of performing the work she previously performed and 26 incapable of performing any other substantial gainful employment 27 that exists in the national economy. 28 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). F.3d a 715, for disability medically 721 The (9th benefits, determinable Cir. impairment 25 1998) must a claimant physical or must mental Reddick v. Chater, (citing render 42 the U.S.C. claimant Tackett v. Apfel, 180 F.3d 1 To determine whether a claimant is entitled to benefits, an 2 ALJ conducts 3 416.920. a five-step inquiry. 20 C.F.R. §§ 404.1520, The steps and their related inquiries are as follows: 4 5 (1) Is the claimant presently engaged in substantial 6 gainful activity? 7 not disabled. If so, the claimant is found If not, proceed to step two. 8 (2) Is the claimant s impairment severe? 9 claimant is found not disabled. 10 11 If not, the If so, proceed to step three. (3) Does the claimant s impairment meet or equal one 12 of 13 C.F.R. Part 404, Subpart P, Appendix 1? 14 the claimant is found disabled. 15 to step four. 16 (4) the specific impairments described in 20 If so, If not, proceed Is the claimant capable of performing his past 17 work? 18 If not, proceed to step five. 19 (5) If so, the claimant is found not disabled. Is the claimant able to do any other work? 20 not, the claimant is found disabled. 21 If claimant is found not disabled. If so, the 22 23 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 24 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 25 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 26 27 The claimant has the burden of proof at steps one through 28 four, and the Commissioner has the burden of proof at step five. 26 1 Bustamante, 262 F.3d at 953-54. 2 affirmative duty to assist the claimant in developing the record 3 at every step of the inquiry. 4 claimant meets her burden of establishing an inability to perform 5 past 6 perform some other work that exists in significant numbers in 7 the national economy, taking into account the claimant s residual 8 functional capacity ( RFC ), age, education, and work experience. 9 Tackett, 180 F.3d at 1099, 1100; Reddick, 157 F.3d at 721; 20 work, the Commissioner Additionally, the ALJ has an Id. at 954. must show If, at step four, the that the claimant can 10 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 11 so by taking testimony from a vocational expert or by reference 12 to 13 Subpart P, Appendix 2 (commonly known as the Grids ). 14 v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 15 has 16 limitations, the Grids are inapplicable and the ALJ must take the 17 testimony of a vocational expert. 18 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 19 1340 (9th Cir. 1988)). the Medical-Vocational both exertional Guidelines The Commissioner may do in 20 (strength-related) C.F.R. and Part 404, Osenbrock When a claimant non-exertional Moore v. Apfel, 216 F.3d 864, 20 21 V. 22 THE SECOND ALJ S DECISION 23 The 24 25 26 27 28 Second ALJ incorporated the First reference in her April 5, 2013 decision. 18 18 ALJ s decision by The ALJ employed the The Second ALJ specifically incorporated the summaries and analysis of the prior decision, but not its conclusions. (AR 326). She noted that she would only reference medical exhibits from the earlier proceeding when they were relevant. (Id.). 27 1 five-step 2 Plaintiff was not under a disability within the meaning of the 3 Social Security Act from June 1, 2008, through the date of her 4 decision. sequential evaluation process and concluded that (AR 327). 5 6 At step one, the ALJ found that Plaintiff had not engaged in 7 substantial gainful employment since July 1, 2008. 8 step two, she found that Plaintiff had the severe impairments of 9 type 2 diabetes, bilateral hand arthralgia, degenerative disc 10 disease of the cervical and thoracic spine, cervical, thoracic 11 and 12 subacromial 13 disorder. 14 416.920(c). 15 of 16 hyperlipidemia and mild osteopenia, while medically determinable, 17 did not establish severe impairment. 19 18 the ALJ concluded that Plaintiff did not meet the three criteria 19 required to establish fibromyalgia as a medically determinable 20 impairment: a physician s diagnosis, conformity with either the 21 1990 or 2010 American College of Rheumatology criteria for the 22 disease, and consistency with other evidence in the case record. 23 (AR 330); see also SSR 12-2p, 2012 WL 3104869 (July 25, 2012). lumbar musculoligamentous bursitis, (AR obesity, 328); and cognitive see also myofascial disorder, 20 C.F.R. (AR 328). strain, and §§ At left depressive 404.1520(c) & However, the ALJ reasoned that Plaintiff s history hypertension, chronic headaches, (AR 329-30). psoriasis, Moreover, 24 25 26 27 28 This discussion will refer to the Second ALJ as ALJ except where necessary for clarity. 19 A physical or mental impairment is considered severe if it significantly limits [the claimant s] physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520. 28 1 At step three, the ALJ found that Plaintiff did not have an 2 impairment or combination of impairments that met or medically 3 equaled one of the listed impairments in 20 C.F.R. Part 404, 4 Subpart P, Appendix 1). 5 Plaintiff s mental impairments, 6 combination, do meet 7 listings 12.02 and 12.04. 20 8 Plaintiff had the following RFC: not (AR 330-32). or The ALJ also reasoned that considered medically (AR 331). equal singly the and criteria in of The ALJ then found that 9 10 [Plaintiff] 11 perform light work as defined in 20 C.F.R. 404.1567(b) 12 and 416.967(b). 13 occasionally and 10 pounds frequently. 14 and walk for six hours out of an eight-hour workday, 15 and sit for six hours out of an eight-hour workday. 16 She can occasionally push and pull with the left upper 17 extremity. 18 with 19 occasionally 20 kneel, crouch and crawl. 21 scaffolds, nor can she work at heights. 22 perform forceful twisting, turning, or grasping with 23 her 24 repetitive 25 setting with little workplace changes. her has the residual functional capacity to Specifically, she can lift 20 pounds She can stand She can occasionally perform work overhead bilateral climb bilateral upper ramp hands. tasks. She and extremities. stairs, She balance, can stoop, She cannot climb ladders or She is should She cannot limited be in to a simple, habituated She can have 26 27 28 20 Listing 12.02 describes organic mental disorders. Listing 12.04 describes affective disorders. 20 C.F.R. Pt. 404, Subpt. p, App. 1. 29 1 occasional, 2 supervisors, but no contact with the general public. non-intense contact with coworkers and 3 4 (AR 332). In reaching this finding, the ALJ stated that she had 5 considered all of Plaintiff s symptoms and the extent to which 6 they 7 objective medical evidence and other evidence. 8 considered opinion evidence. could reasonably be accepted as consistent with (Id.). the She also (Id.). 9 10 The ALJ found Plaintiff s subjective allegations less than 11 fully credible. 12 as to the severity of her symptoms were greater than expected 13 given 14 generally 15 claimant s subjective complaints of pain or tenderness. 16 A 17 credibility into question, and no statement from an examining or 18 treating 19 alleged functional limitations. 20 Plaintiff consciously attempted to portray limitations that are 21 not actually present in order to obtain benefits, and twice 22 noted 23 (AR 333-34, 335). 24 attention to Dr. Eriks s opinion, the ALJ asserted that she was 25 giving it less weight, and assuming instead that Plaintiff s 26 complaints 27 limitations. the lack (AR 333). objective . of Dr. . . Eriks s of medical benign aggressive physician pain She opined that Plaintiff s claims evidence, objective treatment endorse[d] suspicion findings, further the extent (Id.). that including a record of than the other called of (Id.). Plaintiff s [Plaintiff s] The ALJ reasoned that Plaintiff was malingering. Nevertheless, despite devoting considerable and use of (AR 336). 28 30 medications suggested greater 1 Similarly, while noting that Dr. Larson had tested 2 Plaintiff s cognitive functioning and assessed her as depressed, 3 the ALJ stated that Dr. Larson s findings deserved significant 4 but 5 Marroquin s third-party report only partially credible because 6 he was not a medical professional, and because he had a romantic 7 and 8 benefits. not full possibly weight. financial (AR 337). interest in She seeing also adjudged [Plaintiff} Mr. receive (AR 334). 9 10 At step four, the ALJ determined that Plaintiff was unable 11 to perform any of her past relevant work as defined by 20 C.F.R. 12 §§ 404.1565 and 416.965. 13 testimony of VE Joseph Torres, and considering Plaintiff s age, 14 education, work experience and RFC, the ALJ opined that Plaintiff 15 could perform jobs that existed in significant numbers in the 16 national 17 unskilled work as an assembler or table worker. 18 sum, the ALJ found that Plaintiff was not under a disability as 19 defined by 20 C.F.R. §§ 404.1520(g) or 416.920(g). economy. (AR (AR 338). 338-39). However, based upon the These included sedentary, (AR 338). In (AR 339). 20 21 VI. 22 STANDARD OF REVIEW 23 24 Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. The court may set 26 aside the Commissioner s decision when the ALJ s findings are 27 based on legal error or are not supported by substantial evidence 28 in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 31 1 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen 2 v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. 3 Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 4 5 Substantial evidence is more than a scintilla, but less 6 than a preponderance. Reddick, 157 F.3d at 720 (citing Jamerson 7 v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 8 evidence which a reasonable person might accept as adequate to 9 support a conclusion. Id. It is relevant To determine whether substantial 10 evidence supports a finding, the court must consider the record 11 as a whole, weighing both evidence that supports and evidence 12 that detracts from the [Commissioner s] conclusion. 13 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th 14 Cir. 15 affirming 16 substitute its judgment for that of the Commissioner. 17 157 F.3d at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 18 (9th Cir. 1995)). 1993)). If or the evidence reversing that can reasonably conclusion, 19 support the court either may not Reddick, VII. 20 Aukland, DISCUSSION 21 Plaintiff challenges the ALJ s decision on three grounds. 21 22 23 First, Plaintiff 24 consider relevant 25 related to 26 (Memorandum contends medical Plaintiff s in Support of that the ALJ evidence, in fibromyalgia Complaint failed to properly particular evidence and ( MSC ) mental at 4). health. Second, 27 21 28 References to the ALJ in this Discussion exclusively to the ALJ on remand, Margaret Craig. 32 will refer 1 Plaintiff contends that the ALJ discounted Plaintiff s subjective 2 testimony without specifying why it lacked credibility. 3 10-14). 4 deemphasis of certain objective findings -- in particular by Dr. 5 Larson -- and failure to credit Plaintiff s testimony resulted in 6 an 7 capacity. Third, erroneous Plaintiff contends determination of that the Plaintiff s ALJ s residual (MSC at selective functional (MSC at 15-16). 8 9 This Court agrees with Plaintiff s contentions. First, the 10 decision below overlooked certain medical evidence that tended to 11 substantiate Plaintiff s claims. 12 related to Plaintiff s fibromyalgia diagnosis were not addressed. 13 Next, 14 regarding Plaintiff s daily activities. 15 did 16 Plaintiff s 17 evidence of her mental health status. 18 credit subjective and objective evidence establishing Plaintiff s 19 disability requires the Court to remand this case for an award of 20 benefits. 21 2014). the not decision provide below clear subjective did and In particular, medical records not consider about entire record Finally, the decision convincing testimony the reasons her pain for rejecting or objective The ALJ s failure to Garrison v. Colvin, 759 F.3d 995, 1019-20 (9th Cir. 22 23 24 A. Substantial Evidence Substantiated Plaintiff s Fibromyalgia And Mental Illness Claims 25 26 Social Security regulations require the Agency to evaluate 27 every medical opinion we receive, giving more weight to evidence 28 from a claimant s treating physician. 33 20 C.F.R. § 404.1527(c). 1 Where the Agency finds the treating physician s opinion of the 2 nature and severity of the claimant s impairments well-supported 3 by accepted medical techniques, and consistent with the other 4 substantive evidence in the record, that opinion is ordinarily 5 controlling. 6 625, 631 (9th Cir. 2007). 7 (citing 8 physician s opinion is owed deference, and often the greatest 9 weight). 20 C.F.R. § 404.1527(c)(2); Orn v. Astrue, 495 F.3d Orn)(even Where a when See also Garrison, 759 F.3d at 1012 contradicted, treating source treating is not or given examining controlling 10 weight, the Agency must give good reasons for the deviation, 11 as specified in its regulations. 12 Garrison, 759 F.3d at 1012 & n.11. 13 rejects a medical opinion or assigns it little weight while doing 14 nothing more than ignoring it, asserting without explanation that 15 another medical opinion is more persuasive, or criticizing it 16 with boilerplate language that fails to offer a substantive basis 17 for 18 Nguyen 19 Moreover, an ALJ must give specific and legitimate reasons for 20 rejecting 21 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). his conclusion. v. Chater, the Garrison, 100 findings F.3d of 20 C.F.R. § 404.1527(c)(2); [A]n ALJ errs when he 759 F.3d 1464 1462, treating at (9th or 1012-13 Cir. examining (citing 1996)). physicians. 22 23 As a threshold 24 specifically 25 Plaintiff s primary care physician, Dr. Samaan. 26 279, 283-85, 294-301 & 315). 22 discuss matter, six the years decision of (AR 332). below treatment did notes not from (See AR 229-48, Moreover, the decision 27 22 28 The Court acknowledges that Dr. Samaan s treatment notes are difficult to decipher. However, the presence of ambiguous 34 1 below did not discuss records from Plaintiff s other treating 2 physicians in detail. The decision also failed to give specific 3 and 4 assessments of some of the consultative physicians opinions. legitimate reasons for according little weight to the 5 6 1. Fibromyalgia Diagnosis And Evidence 7 8 The decision s assertion that Plaintiff was once seen by a 9 rheumatologist back in July 2009 who assessed [Plaintiff] for 10 fibromyalgia discounts the considerable body of evidence showing 11 that 12 discussed 13 occasions more than two months apart, between which Dr. Zamiri 14 ordered additional tests. 15 own initial impression of fibromyalgia at the second examination 16 and communicated it to Plaintiff s primary care physician, Dr. 17 Samaan. 18 physicians, Dr. C.C. Scott, confirmed that Plaintiff exhibited 19 symptoms of fibromyalgia when he reviewed her medical records 20 later in 2009. (AR 216). 21 physicians Arrowhead 22 diagnosis and continued her medications for this illness. 23 581, 598, 600 & 605). Plaintiff above, suffers from Plaintiff (AR 189, 197-99). at fibromyalgia. saw Dr. AR 189-99. Zamiri (AR on 330). at least As two Dr. Zamiri confirmed his One of the non-examining state agency Most recently, Plaintiff s treating again confirmed her fibromyalgia (AR 24 25 26 27 28 evidence is sufficient to trigger the ALJ s duty to fully and fairly develop the record, including by conducting an appropriate inquiry. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The Second ALJ s incorporation by reference of her predecessor s decision did not remedy this oversight, as the first ALJ also overlooked Dr. Samaan s treatment notes. (See AR 19, 326). 35 1 The Ninth Circuit has observed that fibromyalgia symptoms 2 are entirely subjective. 3 Welfare Plan, 370 F.3d 869, 872 (9th Cir. 2004), overruled on 4 other grounds by Abatie v. Alta Health & Life Ins., 458 F.3d 955, 5 970 (9th Cir. 2006). 6 presence or severity of fibromyalgia, and the only symptom that 7 discriminates 8 multiple tender spots. 9 records do not reveal any other clinically documented signs of 10 fibromyalgia, other than headaches (AR 300) does not recognize 11 the unique method of diagnosing fibromyalgia. between Jordan v. Northrop Grumman Corp. There are no laboratory tests for the it and Id. other syndromes and diseases is Thus, the finding that claimant s (AR 330). 12 13 The Agency will find that a claimant has a medically 14 determinable impairment from fibromyalgia if she can make three 15 showings: a physician s diagnosis, conformity with either the 16 1990 or 2010 ACR criteria for the disease, and consistency with 17 other evidence in the case record. 18 at *2 (July 25, 2012). 19 records show fibromyalgia diagnoses by three physicians. 20 Zamiri confirmed that Plaintiff showed tenderness at sixteen of 21 the eighteen tender points associated with the disease -- five 22 more than the Agency s guidelines require. 23 23 other diagnosed ailments, including a history of widespread pain 24 and repeated manifestations of fibromyalgia symptoms, signs, or 25 co-occurring conditions such as anxiety, depression and memory 26 27 28 SSR 12-2p, 2012 WL 3104869, As noted above, Plaintiff s medical 23 Id. Dr. Plaintiff s Even if Plaintiff had not been able to satisfy the tender points requirements outlined in the 1990 ACR criteria, her records are consistent with the 2010 criteria. See SSR 12-2p, 2012 WL 3104869, at *3 (July 25, 2012). 36 1 impairment, are also consistent with a fibromyalgia diagnosis 2 under the Agency s own guidelines. 3 the other than 4 fibromyalgia that explains Plaintiff s relevant symptoms. The 5 ALJ s rejection of the substantial evidence of fibromyalgia was 6 therefore improper. record shows the Id. at *3. existence of a No evidence in condition 7 8 2. Mental Health 9 10 The decision assigned significant but not full weight to 11 Dr. 12 legitimate reasons for this finding. 13 Plaintiff pleasant and cooperative, but depressed and noted 14 that 15 administered a battery of standardized cognitive and memory tests 16 and found decreased cognitive functioning, with poor memory 17 scores and marked limitations in persistence and pace. (AR 18 569). to her 19 inability to function in workplace situations. (AR 569). He 20 found Plaintiff moderately or markedly impaired across her entire 21 functional 22 handle 23 decision 24 Plaintiff s reported symptoms. 25 evidence that Dr. Larson failed to factor his own observations 26 and the objective results of his tests into his conclusions. Larson s she opinions, cried Dr. during Larson their with commands. faulted failed related assessment, simple but Dr. to provide (AR 337). the (Id.). Larson for 28 37 566). impairments of Despite her these uncritically (AR 337). 27 (AR exception and Dr. Larson found interview. Plaintiff s specific ability tests, He to the accepting This Court finds no 1 B. 2 The Decision Below Lacked Clear And Convincing Reasons To Reject Plaintiff s Subjective Testimony And Credibility 3 4 Plaintiff contends that the ALJ committed reversible error 5 by failing to properly consider her subjective complaints. 6 at 13). (MSC This Court agrees. 7 8 9 When assessing a claimant s credibility, the ALJ must engage in a two-step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 10 (9th Cir. 2012). 11 medical evidence of an impairment that could reasonably produce 12 the symptoms alleged. 13 must make specific credibility findings in order to reject the 14 claimant s testimony. 15 techniques of 16 Smolen, 17 inconsistencies in the claimant s conduct and any inadequately 18 explained or unexplained failure to pursue or follow treatment. 19 Tommasetti 20 Additionally, the ALJ may use evidence of the claimant s ability 21 to 22 workplace to discredit her testimony about an inability to work. 23 Morgan v. Comm r, 169 F.3d 595, 600 (9th Cir. 1999). 80 perform (Id.). at 533 The ALJ evaluation 1284. Astrue, daily If such evidence exists, the ALJ (Id.). credibility F.3d v. First, the ALJ must determine if there is The F.3d activities ALJ 1035, that are may during may 1039 use ordinary this inquiry. also (9th consider Cir. transferrable any 2008). to the 24 25 At the first step of her credibility analysis, the ALJ 26 acknowledged Plaintiff s illnesses but largely discounted their 27 relationship to her alleged symptoms and impairments, regardless 28 38 1 of their severity. 24 2 fibromyalgia 3 Plaintiff s mental impairments among those causing only mild 4 restriction on her daily activities. 5 Plaintiff reported that she could perform normal activities such 6 as doing laundry, cooking simple meals, and going to church only 7 on good days that never numbered more than approximately twenty 8 per month. 9 fewer than approximately ten per month, she could not get out of (AR 330-31). diagnosis, already (AR 374-75, 384). 10 bed at all. (AR 379-80). 11 on days 12 bedridden. 13 Larson confirmed. good as and The ALJ discounted Plaintiff s discussed, and (AR 330-31). counted However, On bad days, never numbering She suffered sudden crying spells even debilitating (AR 382, 385). migraines that kept her She suffered memory loss that Dr. (AR 363-64 & 567). 14 15 The ALJ rejected Plaintiff s credibility, asserting that 16 Plaintiff consciously attempted to portray limitations that are 17 not actually present, despite the substantial evidence described 18 above. 19 question, however, the ALJ is required to state specifically 20 which symptom testimony is not credible and what facts in the 21 record lead to that conclusion. 22 ALJ s decision does not identify the specific symptom testimony 23 that is not credible or the facts in the record that lead to that 24 conclusion. 25 24 26 27 28 (AR 333). To call a claimant s symptom testimony into Smolen, 80 F.3d at 1284. The (AR 333). The ALJ acknowledged that the impairments she deemed severe -- diabetes, arthralgia, degenerative disc disease, cervical and lumbar strain, bursitis, cognitive disorder and depression -- affected Plaintiff more than minimally, but then found that Plaintiff suffered only mild restriction in her daily activities. (AR 330-31). 39 1 The ALJ pointed to Plaintiff s poor effort with grip 2 testing of the bilateral hands as evidence of her alleged lack 3 of cooperation. 4 contradicted 5 recorded 6 Similarly, the ALJ attempted to discount Dr. Larson s findings on 7 the basis that Dr. Larson did not have the opportunity to review 8 the 9 contradicted (Id.). by Dr. [g]rip claimant s However, this assertion is directly Eriks, strength the is normal records. by Dr. consultative (AR Larson s internist, bilaterally. 337). This observation (AR who 550). assertion that [t]here is were 10 several physician progress notes generally illegible . . . [that] 11 appear to indicate problems with pain and depression, and [that 12 Plaintiff] had been prescribed Celexa and Neurontin. 13 Dr. Larson also noted that none of the notes indicated problems 14 with 15 February 1, 2010 indicated sleep and appetite had good and bad 16 days. suicidal or homicidal ideation and that a (AR 564). note dated (Id.). 17 18 Although the ALJ s decision asserts that Plaintiff s daily 19 activities 20 individual 21 recognize all of the evidence regarding Plaintiff s limitations. 22 (AR 333-34). 23 that daily activities are inconsistent with testimony about pain, 24 because impairments that would unquestionably preclude work and 25 all 26 consistent with doing more than merely resting in bed all day. 27 Garrison, 759 F.3d at 1016. 28 household the were allegedly suffering from inconsistent debilitating with pain, those the of an ALJ did not An ALJ must be especially cautious in concluding pressures of activities a may workplace be environment will often be The ability to perform ordinary consistent 40 with an inability to 1 function in the workplace. 2 a claimant's testimony merely because symptoms wax and wane in 3 the course of treatment. Id. Likewise, it is error to reject Id. at 1017. 4 5 The record does 6 benign objective 7 reveals eight 8 depression, panic 9 headaches, and not support findings. years of and chronic from conclusion review treatment attacks, pain A a of the of entire medication type fibromyalgia 2 anxiety, diabetes, migraine diagnosed and treated by multiple physicians. 11 F.3d at 1035. 12 comports 13 record for and 10 generally arthritis, all consultative physicians. with See Aukland, 257 Thus, Plaintiff s subjective testimony generally the testimony of her treating doctors and the 14 15 C. If Plaintiff s Subjective Testimony Were Credited As True 16 And All The Other Evidence Were Given Proper Weight, 17 Plaintiff Would Be Found Disabled, Necessitating The Award 18 of Benefits 19 20 The Court must ordinarily remand for an award of benefits 21 where (1) 22 administrative proceedings would serve no useful purpose; (2) the 23 ALJ 24 rejecting 25 opinion; 26 credited as true, the ALJ would be required to find the claimant 27 disabled on remand. 28 alia, Lingenfelter, 504 F.3d at 1041; Orn, 495 F.3d at 640; has the failed record has been fully to provide legally evidence, whether claimant and (3) if the improperly developed sufficient testimony discredited and further reasons or for medical evidence were Garrison, 759 F.3d at 1020 (citing, inter 41 1 Smolen, 2 courts the flexibility to remand for further proceedings, rather 3 than an award, only where the record as a whole creates serious 4 doubt that a claimant is disabled. 80 F.3d at 1292). The credit-as-true rule allows Id. at 1021. 5 6 Remand for benefits, under Garrison, is therefore 7 appropriate here. The Court earlier remanded this case to the 8 Agency with instructions to develop the record more fully. 9 VEs testified that the Plaintiff would be unable to maintain 10 either her previous relevant work or any job consistent with her 11 alleged RFC if she had to miss three or more days of work per 12 month. 13 multiple physical and mental illnesses kept her confined to her 14 bed approximately ten days per month. 15 satisfied that the record has been fully developed and further 16 administrative proceedings would serve no useful purpose, and 17 that if the discounted evidence were credited as true, Plaintiff 18 would be entitled to benefits. (AR 33-34, 394). Two Plaintiff plausibly alleged that her 19 20 21 22 23 24 25 26 27 28 42 (AR 379-80). The Court is 1 VIII. 2 CONCLUSION 3 4 For the foregoing reasons, IT IS ORDERED that Judgment be 5 entered REVERSING the decision of the Commissioner and REMANDING 6 this 7 of the Court shall serve copies of this Order and the Judgment on 8 counsel for both parties. case for the award of benefits. The Clerk 9 10 DATED: October 10, 2014 11 12 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 NOTICE 17 18 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 19 20 21 22 23 24 25 26 27 28 43

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.