Rosalinda Higdon v. Andrew Saul, No. 8:2019cv01622 - Document 20 (C.D. Cal. 2021)
Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (es)
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Rosalinda Higdon v. Andrew Saul Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROSALINDA H.,1 Plaintiff, 12 13 v. 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 I. ) Case No. SACV 19-1622-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 19 denying her applications for Social Security disability income 20 benefits (“DIB”) and Supplemental Security Income (“SSI”). 21 parties consented to the jurisdiction of the undersigned under 28 22 U.S.C. § 636(c). 23 Joint Stipulation, filed May 12, 2020, which the Court has taken 24 under submission without oral argument. 25 below, the Commissioner’s decision is reversed and this action is The The matter is before the Court on the parties’ For the reasons stated 26 27 28 1 Plaintiff’s name is partially redacted in line with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 remanded for further proceedings. 2 II. BACKGROUND 3 Plaintiff was born in 1972. (Administrative Record (“AR”) 4 344.) 5 billing clerk (AR 116-17, 386, 393-94). 6 She completed high school (AR 386) and last worked as a Plaintiff applied for DIB and SSI on October 19 and 30, 7 2015, respectively, alleging a disability onset date of August 8 18, 2015, based on fibromyalgia, migraines, restless-leg 9 syndrome, and sleep apnea. (AR 344-50, 385-86.) After her 10 applications and requests for reconsideration were denied (AR 11 225-40, 243-60, 265-69, 271-75), she requested a hearing before 12 an Administrative Law Judge (AR 276-77). 13 February 13, 2018, at which Plaintiff, who was represented by 14 counsel, testified, as did a vocational expert. 15 a written decision issued May 31, 2018, the ALJ found her not 16 disabled. 17 (see AR 340-43, 475-76), which was denied on July 10, 2019 (AR 1- 18 7). 19 III. STANDARD OF REVIEW 20 (AR 97-110.) One was held on (AR 112-34.) In She sought Appeals Council review This action followed. Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 25 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 means such evidence as a reasonable person might accept as 27 adequate to support a conclusion. 28 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 The ALJ’s findings and Substantial evidence Richardson, 402 U.S. at 401; It 1 is more than a scintilla but less than a preponderance. 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 4 meaning of ‘substantial’ in other contexts, the threshold for 5 such evidentiary sufficiency is not high.” 6 139 S. Ct. 1148, 1154 (2019). 7 evidence supports a finding, the court “must review the 8 administrative record as a whole, weighing both the evidence that 9 supports and the evidence that detracts from the Commissioner’s “[W]hatever the Biestek v. Berryhill, To determine whether substantial 10 conclusion.” 11 1998). 12 or reversing,” the court “may not substitute its judgment” for 13 the Commissioner’s. 14 IV. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY 15 People are “disabled” for purposes of receiving Social 16 Security benefits if they are unable to engage in any substantial 17 gainful activity owing to a physical or mental impairment that is 18 expected to result in death or has lasted, or is expected to 19 last, for a continuous period of at least 12 months. 20 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 21 1992). 42 U.S.C. 22 A. 23 The ALJ follows a five-step evaluation process to assess The Five-Step Evaluation Process 24 whether a claimant is disabled. 25 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 26 1995) (as amended Apr. 9, 1996). 27 Commissioner must determine whether the claimant is currently 28 engaged in substantial gainful activity; if so, the claimant is 20 C.F.R. §§ 404.1520(a)(4), In the first step, the 3 1 not disabled and the claim must be denied. 2 416.920(a)(4)(i). §§ 404.1520(a)(4)(i), 3 If the claimant is not engaged in substantial gainful 4 activity, the second step requires the Commissioner to determine 5 whether the claimant has a “severe” impairment or combination of 6 impairments significantly limiting her ability to do basic work 7 activities; if not, the claimant is not disabled and her claim 8 must be denied. 9 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) & (c). If the claimant has a “severe” impairment or combination of 10 impairments, the third step requires the Commissioner to 11 determine whether the impairment or combination of impairments 12 meets or equals an impairment in the Listing of Impairments set 13 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 14 disability is conclusively presumed. 15 416.920(a)(4)(iii) & (d). §§ 404.1520(a)(4)(iii), 16 If the claimant’s impairment or combination of impairments 17 does not meet or equal an impairment in the Listing, the fourth 18 step requires the Commissioner to determine whether the claimant 19 has sufficient residual functional capacity (“RFC”)2 to perform 20 her past work; if so, she is not disabled and the claim must be 21 denied. 22 has the burden of proving she is unable to perform past relevant 23 work. 24 burden, a prima facie case of disability is established. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. 25 2 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545(a)(1), 416.945(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 If that happens or if the claimant has no past relevant 2 work, the Commissioner bears the burden of establishing that the 3 claimant is not disabled because she can perform other 4 substantial gainful work available in the national economy, the 5 fifth and final step of the sequential analysis. 6 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 416.960(b). 7 B. 8 At step one, the ALJ found that Plaintiff had not engaged in 9 The ALJ’s Application of the Five-Step Process substantial gainful activity since August 18, 2015, the alleged 10 onset date; her date last insured was December 31, 2020. 11 99.) 12 impairment of fibromyalgia. 13 determined that her impairment did not meet or equal a Listing. 14 (AR 102.) 15 a range of light work: (AR At step two, he concluded that she had the severe (AR 100.) At step three, he At step four, he found an RFC allowing her to perform 16 the claimant can lift and/or carry 20 pounds occasionally 17 and 10 pounds frequently; can stand and/or walk for six 18 hours out of an eight-hour workday; can sit for six hours 19 out of an eight-hour workday; cannot climb ladders, rope 20 or scaffolds; can occasionally climb ramps and stairs; 21 can occasionally stoop, kneel, crouch, and crawl; and can 22 frequently balance. 23 (Id.) 24 relevant work as a billing clerk as generally performed in the 25 national economy. 26 (AR 105.) The ALJ concluded that Plaintiff could do her past (AR 104-05.) Thus, he found her not disabled. 27 28 5 1 2 V. DISCUSSION A. The ALJ Did Not Properly Evaluate Plaintiff’s 3 4 Subjective Symptom Testimony Plaintiff claims that the ALJ “failed to provide clear and 5 convincing reasons to reject [her] subjective limitations.” 6 Stip. at 4.) 7 warranted. 8 9 1. (J. As explained below, the ALJ erred, and remand is Applicable law An ALJ’s assessment of a claimant’s allegations concerning 10 the severity of her symptoms is entitled to “great weight.” 11 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 12 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 13 1985) (as amended Feb. 24, 1986). 14 believe every allegation of disabling pain, or else disability 15 benefits would be available for the asking, a result plainly 16 contrary to 42 U.S.C. § 423(d)(5)(A).” 17 F.3d 1104, 1112 (9th Cir. 2012) (citing Fair v. Bowen, 885 F.2d 18 597, 603 (9th Cir. 1989)). 19 “[T]he ALJ is not required to Molina v. Astrue, 674 In evaluating a claimant’s subjective symptom testimony, the 20 ALJ engages in a two-step analysis. 21 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 22 2016). 23 presented objective medical evidence of an underlying impairment 24 [that] could reasonably be expected to produce the pain or other 25 symptoms alleged.” 26 objective medical evidence exists, the ALJ may not reject a 27 claimant’s testimony “simply because there is no showing that the 28 impairment can reasonably produce the degree of symptom alleged.” See Lingenfelter, 504 F.3d “First, the ALJ must determine whether the claimant has Lingenfelter, 504 F.3d at 1036. 6 If such 1 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 2 original). 3 If the claimant meets the first test, the ALJ may discount 4 the claimant’s subjective symptom testimony only if he makes 5 specific findings that support the conclusion. 6 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 7 affirmative evidence of malingering, the ALJ must provide a 8 “clear and convincing” reason for rejecting the claimant’s 9 testimony. See Berry v. Absent a finding or Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 10 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 11 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 12 Cir. 2014). 13 symptoms is supported by substantial evidence in the record, the 14 reviewing court “may not engage in second-guessing.” 15 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 16 2. 17 If the ALJ’s evaluation of a plaintiff’s alleged Relevant background a. 18 Thomas v. Plaintiff’s relevant medical history Plaintiff saw family-medicine practitioner Luis Villa for 19 fibromyalgia on March 31, 2015. 20 factors include[d] muscular aches and pains and arthralgias,”3 21 and her symptoms were “chronic and . . . poorly controlled.” 22 482.) (AR 482-84.) Her “[a]ggravating (AR Dr. Villa assessed her with myalgia and myositis,4 23 3 24 25 26 27 28 Arthralgias are aching pains in the joints without swelling. Arthritis vs. Arthralgia: What’s the Difference?, Healthline, https://www.healthline.com/health/ rheumatoid-arthritis/arthralgia (last visited Mar. 24, 2021). 4 Myalgia are muscle aches. What You Need To Know About Muscle Aches and Pains, Healthline, https://www.healthline.com/ health/muscle-aches (last visited Mar. 24, 2021). Myositis is chronic, progressive muscle inflammation thought to be an autoimmune condition that causes the body to attack the muscles; 7 1 “addressed her [fibromyalgia] and its effects on her pain and 2 emphasized [a] heart healthy diet . . . [and] her weight,” and 3 noted “[e]levated ferritin,”5 chronic nonalcohol-related liver 4 disease, and “prediabetes.” 5 rheumatologist, describing her as a “patient with severe 6 fibromyalgia in need of further treatment.” 7 488.) 8 9 (AR 483.) He referred her to a (Id.; see also AR Rheumatologist Andrew Concoff examined Plaintiff on June 10, 2015. (AR 590-93.) She reported the “gradual onset of body 10 aches [with] bone popping [and] pain in 2007” and “head to toe” 11 pain that “fe[lt] like [a] big bruise.” 12 “shoulders, el[bo]ws, wrists, knees, and low back” were affected. 13 (Id.) 14 [her] bilateral lateral hips” and “[p]ain with sitting and 15 standing” and “light palpation of [the] skin.” 16 had become “10 [times] worse, and cause[d] her to miss work.” 17 (Id.) 18 “disrupted” sleep from pain with movement, “[d]aytime fatigue,” 19 “hair thinning,” recurring stress-induced skin rash to her chin, 20 and “[r]ecurrent” urinary tract infections. 21 were “constant,” and her pain level was nine of 10, radiating to 22 her back, hips, and shoulders. (AR 590.) Her She also complained of lower-back pain that “radiate[d] to (Id.) Her pain She reported “difficulty falling and staying asleep,” (AR 591.) (Id.) Her symptoms She had been taking 23 24 25 26 27 28 researchers believe it may be caused by rheumatoid arthritis, lupus, viruses, or drug toxicity. What Is Myositis and How Can It Be Treated?, Healthline, https://www.healthline.com/health/ myositis#causes (last visited Mar. 24, 2021). 5 Ferritin is a blood protein containing iron; an elevated level may signify liver disease, rheumatoid arthritis, other inflammatory conditions, or hyperthyroidism. Ferritin Test, Mayo Clinic, https://www.mayoclinic.org/tests-procedures/ferritintest/about/pac-20384928 (last visited Mar. 24, 2021). 8 1 2 Cymbalta6 daily since 2007. (AR 590.) Dr. Concoff’s systems review revealed fatigue, 3 “headache[s],” “night sweats,” and “recent weight gain [of] 40 4 [pounds]”; “[w]orsening central vision, foreign body sensation in 5 eye, dryness of the eyes, eye pain, [and] bloodshot eyes”; “chest 6 pain or discomfort and palpitations,” “[d]yspnea,”7 and 7 “[h]eartburn and nausea”; “nocturia and dysuria”8; “muscle 8 weakness, sexual complaints, . . . loss of hair from the head or 9 body,” “easy bruising,” “[m]uscle aches, arthralgias, muscle 10 spasms, swelling localized to one or more joints 11 wrist/shoulders/back/hips/knees/ankles, [and] “localized joint 12 stiffness . . . worse in the morning 2 hours”; “[d]izziness and 13 hyperesthesia”9; “[a]nxiety with persistent worry, depression and 14 initial insomnia”; and “[p]hotosensitivity.” 15 Examination found cervical spine “abnormalities,” 18 of 18 (AR 592.) 16 17 6 18 19 20 21 22 23 24 25 26 27 28 Cymbalta, or duloxetine, treats depression and anxiety. See Cymbalta, WebMD, https://www.webmd.com/drugs/2/drug-91491/ cymbalta-oral/details (last visited Mar. 24, 2021). It is also approved for use to help relieve nerve and back pain associated with fibromyalgia. See id. 7 Dyspnea is shortness of breath. Dyspnea, Healthline, https://www.healthline.com/health/dyspnea (last visited Mar. 24, 2021). 8 Nocturia is having to urinate often during the night. Nocturia, Cleveland Clinic, https://my.clevelandclinic.org/ health/diseases/14510-nocturia (last visited Mar. 24, 2021). Dysuria is painful urination. Dysuria, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/ 15176-dysuria-painful-urination (last visited Mar. 24, 2021). 9 Hyperesthesia is an increased sensitivity to sight, touch, sound, or smell. Hyperesthesia, Healthline, https:// www.healthline.com/health/hyperesthesia (last visited Mar. 24, 2021). 9 1 fibromyalgia tender points,10 and “abnormal posture,” with 2 “rounded shoulders” but normal otherwise. 3 (AR 592-93.) On July 1, 2015, Dr. Concoff evaluated Plaintiff for 4 fibromyalgia and lupus and reviewed her lab results. 5 She reported that her pain had worsened, causing her to miss work 6 the two days prior, and she had stumbled and fallen from lower- 7 back and knee pain. 8 problems were “[a]bnormal antinuclear antibody,”11 “[a]rthropathy 9 of multiple sites,” “[f]atigue,” “[m]igraine headache,” and (Id.) (AR 689.) Among other things, her active “[m]orning stiffness of joints.” 11 showed cervical-spine abnormalities and 18 of 18 fibromyalgia 12 tender points. 13 into [her] left deltoid”12 and recommended further testing for 14 “systemic autoimmunity” and that she continue to take Cymbalta, (AR 690.) (Id.) Examination results 10 He administered “Depo Medrol 80 mg 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Tender points are 18 specific areas of the body tested under the pre-2010 diagnostic approach for fibromyalgia; if 11 of them were tender when firm pressure was applied, a positive diagnosis was supported. Fibromyalgia: Understand How It’s Diagnosed, Mayo Clinic, https://www.mayoclinic.org/ diseases-conditions/fibromyalgia/in-depth/fibromyalgia-symptoms/ art-20045401 (last visited Mar. 24, 2021). Because fibromyalgia symptoms can come and go and be associated with other conditions that must be excluded, diagnostic guidelines now require finding “widespread pain throughout [the] body for at least three months,” with “widespread” meaning “pain on both sides of [the] body, as well as above and below [the] waist.” Id. 11 Antinuclear antibody, or ANA, tests measure the amount of antibodies made by the immune system, too many of which can signify an autoimmune disease. Antinuclear Antibody Panel (ANA Test), Healthline, https://www.healthline.com/health/ antinuclear-antibody-panel (last visited Mar. 24, 2021). 12 Depo-Medrol, or methylprednisolone, is a corticosteroid hormone injected to treat pain and swelling occurring with arthritis and other joint disorders. Depo-Medrol Vial, WebMD, https://www.webmd.com/drugs/2/drug-6160/depo-medrol-injection/ details (last visited Mar. 24, 2021). 10 1 obtain a sleep study, and consider “pool therapy,”13 2 “acupuncture,” “biofeedback/mindfulness meditation,” and vitamin 3 D. (AR 690, 693.) 4 On August 20, 2015, Dr. Concoff reviewed test results and 5 ordered “further labs for systemic autoimmunity,” recommending 6 that Plaintiff remain “off work until follow-up” and “consider 7 [a] pain management program.” 8 worsening pain, with “pins and needles” in her “right deltoid 9 area and right thigh,” “near accidents in car from driving,” (AR 686-87.) She had reported 10 “[l]osing stren[g]th from sharp pains to knees,” and continued 11 severe lower-back pain and worsened sleep because of pain. 12 684.) 13 (AR Pain specialist Arthur Zepeda examined Plaintiff on 14 September 24, 2015. 15 describing it as “heavy, tender, splitting[] sensation, stabbing, 16 punishing-cruel sensation, and a throbbing, cramping, hot- 17 burning, aching, tiring-exhausting, sickening[] sensation” that 18 was worse with “bending, lifting, coughing, sneezing, sexual 19 intercourse, standing a long time, sitting a long time, [and] 20 walking.” 21 His examination yielded mostly normal results, with a normal 22 range of motion, except “[p]alpation of the thoracic and lumbar 23 facets and lumbar intervertebral spaces reveal[ed] pain,” as did 24 “palpation of the cervical facets,” and she had pain with 25 cervical-spine movement and “palpable trigger points in the 26 muscles of the head and neck.” (AR 679.) (AR 679-83.) She reported constant pain, She also felt “blue all the time.” (AR 681.) (Id.) He recommended a 27 28 13 Plaintiff apparently later “[d]ecline[d] Aqua-therapy.” (AR 211, 780.) 11 1 “chronic pain program”; prescribed an anti-inflammatory, a cream 2 for her knees and shoulders, and a restless-leg medication; and 3 suggested a possible increase in Cymbalta dosage. 4 (AR 683.) On October 22 and December 18, 2015, Plaintiff answered 5 pain-management questionnaires, indicating “constant” pain 6 averaging from five to nine of 10, made worse by bending, 7 prolonged sitting, coughing, sneezing, lifting, prolonged 8 standing, sexual intercourse, and walking. 9 (AR 651-52.) At her next appointment with Dr. Concoff, in October 2015, 10 he found that the further laboratory tests were “without 11 conclusive evidence of systemic autoimmunity” and continued her 12 prescriptions and his recommendations for alternative therapies 13 and a pain-management program. 14 appointments with her primary-care provider for chronic pain and 15 other complaints at the end of 2015 indicate that she was 16 awaiting referral to such a program. 17 (AR 678; see AR 674-77.) Several (See AR 659, 673.) Plaintiff had check-ups and fibromyalgia follow-ups with 18 family-medicine specialist Jose L. Valdez from March 3, 2016, to 19 February 20, 2017. 20 an “in-network rheumatologist,” assessing her with fibromyalgia, 21 “chronic pain,” “restless leg syndrome,” “menopause syndrome,” 22 “migraine syndrome,” and “BRCA 2 [positive].”14 23 July 19, 2016, he noted that “fibromyalgia — improve[d with] (See AR 622-36.) Dr. Valdez referred her to (AR 623-24.) On 24 25 14 26 27 28 BRCA2, or breast cancer gene two, means the patient possesses a harmful variant of the gene that elevates the risk of developing breast or ovarian cancer. BRCA Gene Mutations: Cancer Risk & Genetic Mutations, Nat’l Cancer Inst., https:// www.cancer.gov/about-cancer/causes-prevention/genetics/ brca-fact-sheet (last visited Mar. 24, 2021). 12 1 gabapentin,”15 and on February 2, 2017, he noted her request for 2 referral to a rheumatologist for “worsening joint pain,” 3 including “both hands [with] inflammation” and “tenderness.” 4 627, 633.) 5 “pain [wa]s at its worst” during the “past 2 months.” 6 (AR At the February appointment, he further remarked that (AR 634.) Treatment records from Arthritis and Osteoporosis Medical 7 Center from March 26, 2017, to February 9, 2018, show exam 8 findings of neck, shoulder, and knee pain and “abnormal” and 9 limited range of motion in the shoulders, knees, and cervical 10 spine at every appointment. 11 74, 777-78, 782-83.) 12 appointments in April, May, June, October, and December 2017 and 13 February 2018. 14 plan included myofascial trigger-point injections16 and various 15 medications. 16 spine on November 17, 2017, was largely unremarkable except for a 17 “central disc bulge measuring approximately 2.5 [millimeters]” at 18 L5-S1, with “no significant spinal canal compromise.” 19 20 (See AR 208-21, 752-62, 765-67, 773- She had 12 of 18 positive trigger points at (AR 210, 762, 767, 774, 778, 783.) (AR 763-64, 770-71, 775.) Her treatment An MRI of her lumbar (AR 759.) Treatment records from MD Health Clinics reveal appointments weekly in December 2017 and January 2018 for fibromyalgia, 21 22 23 24 25 15 Gabapentin, brand-named Neurontin, is an anticonvulsant that “works in the brain to prevent seizures and relieve pain for certain conditions in the nervous system.” Gabapentin, Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/ gabapentin-oral-route/description/drg-20064011 (last visited Mar. 24, 2021). 16 26 27 28 Myofascial trigger-point injections involve injecting small amounts of anesthetic and steroid into trigger points to relieve pain associated with fibromyalgia. Trigger Point Injections, Cleveland Clinic, https://my.clevelandclinic.org/ health/treatments/17582-trigger-point-injection (last visited Mar. 24, 2021). 13 1 anxiety, migraines, bilateral knee pain, rheumatoid arthritis, 2 insomnia, and shoulder and back pain. 3 undated medication list reflects that Plaintiff had taken various 4 opiod-based medications, among others. 5 b. (See AR 747-51.) An (AR 466.) Plaintiff’s statements 6 On November 28, 2015, Plaintiff stated in a function report 7 that her ability to work was limited by “severe fibromyalgia for 8 over 7 y[ea]rs[,] migraines,” and insomnia “due to pain [and] 9 restless leg syndrome.” (AR 397; see AR 398-405.) Her daily 10 activities included a “little bit of walking, sitting from time 11 to time,” and lying down “due to severe body pains.” 12 She was “unable to help” take care of her husband and 13-year-old 13 son,17 and her sleep was disrupted by “sleep apnea” and “severe” 14 fibromyalgia, with “pain from head to toe.” 15 helped her dress, bathe, and take care of her hair because her 16 arm and shoulder pain limited her movement. 17 out of bed because her “arms, shoulder, knees, [and] legs, [we]re 18 very painful.” 19 couldn’t move her wrist, and her “wrists, arms, [and] hands” were 20 “to[o] painful.” 21 chores. 22 cause her to “lose strength in [her] body,” and she often stayed 23 in the car while her husband bought groceries because of “too 24 much pain.” (Id.) (Id.) (Id.) (Id.) (AR 398.) Her husband He helped her He also prepared meals because she (AR 399.) Pain prevented her from doing daily She didn’t go out alone because her pain would (AR 400.) 25 26 27 28 17 In July 2018, however, Plaintiff told a psychiatrist that she was “stressed” from “being sole care taker of h[u]sband and both elderly and sickly mother and father in law.” (AR 60; see also AR 60, 65-66 (noting that Plaintiff was “primary caretaker of husband who has brain tumor and is disabled”).) 14 1 Her interests included “spending family time,” but she 2 hadn’t done that “at all in the past y[ea]r since her pain” had 3 become “severe.” 4 activities in over a year because she couldn’t walk much and 5 would need to lie down. 6 bend, stand, reach, walk, sit, kneel, climb stairs, and use her 7 hands was affected, and she could not lift at all because of the 8 pain in her shoulders and entire body. 9 attention for only about five minutes before needing to rest, (AR 401.) She hadn’t participated in social (AR 402.) Her ability to lift, squat, (Id.) She could pay 10 move, or lie down; had trouble finishing tasks; and felt 11 depressed and didn’t handle stress well because her pain made her 12 “very emotional.” 13 progressing pain and depression. 14 medicine for her migraines because it interacted with her 15 fibromyalgia medicine, so she slept “very little due to severe 16 body pains from head to toe [and] restless leg syndrome.” 17 404.) 18 (AR 402-03.) She feared insomnia and her (AR 403.) She couldn’t take (AR At her hearing, Plaintiff described having fibromyalgia for 19 10 years and feeling widespread “[h]ead to toe” pain that felt 20 like “a big bruise, a walking bruise — so severe that it’s very 21 hard to even type, hold my arms, my back, my lower back, my 22 knees.” 23 — headaches that lasted for “weeks.” 24 she had a migraine, she would need to “[l]ay down for hours and 25 hours,” and that happened “almost on a daily basis.” 26 Her sleep medication had stopped working, so she was “going 27 through pain management with different types of medication.” 28 120.) (AR 120.) She reported “daily” migraine — not “regular” (Id.; see AR 128.) (AR 128.) She typically slept an hour a night, “if that.” 15 When (AR (AR 121.) 1 The ALJ went through her list of medications, and Plaintiff 2 described having “fog moments,” including “getting lost when 3 [she] dr[o]ve,” being “very forgetful,” and lacking 4 “concentration,” which she had been told could be side effects of 5 her medicine. 6 (AR 123.) Plaintiff tried to cook and clean but had “many pauses in- 7 between from [her] back and [her] pains” and was “so forgetful”; 8 sometimes she had to “stop and think where [she was] going when 9 [she was] driving,” which was “[s]cary.” 10 c. 11 (AR 127.) The ALJ’s decision The ALJ found that Plaintiff’s “medically determinable 12 impairments could reasonably be expected to cause the alleged 13 symptoms; however, [her] statements and allegations concerning 14 the intensity, persistence and limiting effects of these symptoms 15 [we]re not entirely consistent with the medical evidence and 16 other evidence in the record.” 17 for discounting her symptom statements and testimony: (1) 18 “diagnostic findings . . . show[ed] no significant neurological 19 deficits or gait abnormalities to justify greater functional 20 restrictions”; (2) she had had “rather conservative” treatment; 21 and (3) there was “little documentation” of the side effects she 22 complained of at the hearing. 23 she “had complaints of muscular aches and pains for which she was 24 prescribed Cymbalta,” but there was “no known history of 25 rheumatoid arthritis.” 26 numerous trigger point tenderness [sic] in the shoulder, knees, 27 and back; however, her gait, motor and balance were normal.” 28 (Id.) (AR 103.) (AR 104.) (AR 103.) He gave three reasons He further noted that “Her examination revealed Subsequent treatment notes in 2015 “conveyed normal 16 1 physical examination findings except for diffuse tenderness to 2 palpation”; she was referred for pain management, pool therapy, 3 acupuncture, and biofeedback therapy; and medication was titrated 4 upward for “better symptom control.” 5 (Id.) The ALJ recognized that treatment notes from 2016 and 2017 6 reflected that Plaintiff complained of “worsened fibromyalgia 7 pain, but her physical examination findings remained largely 8 unremarkable except for tenderness to palpation of trigger points 9 and neck and back pain with limited range of motion in the 10 spine.” 11 degenerative changes,” and “there [wa]s no indication that she 12 underwent further treatment outside of oral pain medications.” 13 (Id.) (AR 104.) Further, a lumbar-spine MRI “showed minimal 14 Explaining that “there [wa]s little doubt that [Plaintiff] 15 experience[d] pain and discomfort due to fibromyalgia,” the ALJ 16 concluded that “the objective medical evidence d[id] not support 17 the alleged severity of symptoms.” 18 not been “deprived of the ability to perform work” consistent 19 with the RFC “for any 12-month period since the alleged onset 20 date.” 21 22 (Id.) He found that she had (Id.) 3. Analysis The ALJ failed to properly analyze Plaintiff’s subjective 23 symptoms, discounting her testimony and statements based on “an 24 apparent fundamental misunderstanding of fibromyalgia.” 25 v. Berryhill, 874 F.3d 648, 662 (9th Cir. 2017) (collecting cases 26 showing “recurrent problem” of ALJs failing “to properly analyze 27 . . . fibromyalgia-related symptoms”). 28 Plaintiff’s testimony because she “complained of worsened 17 Revels The ALJ discounted 1 fibromyalgia pain [in 2016 and 2017], but her physical 2 examination findings remained largely unremarkable except for 3 tenderness to palpation of trigger points and neck and back pain 4 with limited range of motion of the spine.” 5 are no laboratory tests to confirm the presence or severity of 6 fibromyalgia, which is “diagnosed entirely on the basis of 7 patients’ reports of pain and other symptoms.” 8 Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). 9 the most striking aspects of this disease is the absence of (AR 104.) But there Benecke v. Indeed, “[o]ne of 10 symptoms that a lay person may ordinarily associate with joint 11 and muscle pain.” 12 Cir. 2001) (Ferguson, J., dissenting); see also Cota v. Comm’r of 13 Soc. Sec., No. 1:08-CV-00842-SMS, 2009 WL 900315, at *9 (E.D. 14 Cal. Mar. 31, 2009) (“Joints in fibromyalgia patients appear 15 normal; musculoskeletal examinations generally indicate no 16 objective joint swelling or abnormality in muscle strength, 17 sensory functions, or reflexes.”), judgment vacated on other 18 grounds by 2010 WL 289294 (E.D. Cal. Jan. 15, 2010). 19 Rollins v. Massanari, 261 F.3d 853, 863 (9th The medical records show Plaintiff’s consistent complaints 20 of generalized muscle pain, tender points, fatigue, and sleep 21 problems, all of which are indicative of fibromyalgia. 22 201-03, 209-10, 216-17, 516-20, 521, 574-76, 590-93, 599, 651-52, 23 671-73, 674-78, 762, 767, 774, 778, 783); Benecke, 379 F.3d at 24 590 (noting common symptoms of fibromyalgia as “chronic pain 25 throughout the body, multiple tender points, fatigue, stiffness, 26 and a pattern of sleep disturbance that can exacerbate the cycle 27 of pain and fatigue associated with this disease”). 28 lack of abnormal objective findings on examination was not a 18 (See AR Thus, the 1 sufficient basis for rejecting Plaintiff’s subjective symptom 2 statements in the face of her undisputed fibromyalgia diagnosis. 3 See generally Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 4 1975) (ALJ erred by relying upon “his own exploration and 5 assessment” of plaintiff’s medical condition rather than medical 6 evidence in record). 7 evidence of Plaintiff’s multiple tender-trigger-point findings, 8 sleep disturbance, anxiety, depression, brain fog, fatigue, and 9 chronic, widespread pain lasting over three months. The ALJ did not place in context the See SSR 12- 10 2p, 2012 WL 3104869 (July 25, 2012) (governing SSA’s 11 consideration of fibromyalgia);18 Revels, 874 F.3d at 656 12 (recognizing fibromyalgia “as a valid basis for a finding of 13 disability” when analyzed using SSR 12-2p criteria). 14 The ALJ also erred in rejecting Plaintiff’s testimony based 15 on her not having “under[gone] further treatment outside of oral 16 pain medications as previously advised,” amounting to “rather 17 conservative medical management” of her fibromyalgia. 18 In fact, Plaintiff also received steroid injections. 19 684, 780); see, e.g., Revels, 874 F.3d at 667 (finding opioid 20 medications and steroid injections not conservative treatment for 21 fibromyalgia). 22 not support discounting her statements and testimony. 23 24 (AR 104.) (See AR Thus, her allegedly conservative treatment could Because the ALJ analyzed the medical evidence using improper criteria, his assessment of Plaintiff’s subjective symptom 25 18 26 27 28 One of the preconditions for a diagnosis of fibromyalgia is that there be no other cause of the patient’s symptoms. See SSR 12-2p, 2012 WL 3104869, at *3. Here, the ALJ found that Plaintiff had no other severe impairments besides fibromyalgia (AR 100); thus, it had to have been the cause of her pain and other symptoms. 19 1 testimony was necessarily flawed. Remand is required.19 2 B. Remand for Further Proceedings Is Appropriate 3 When an ALJ errs, the Court “ordinarily must remand for 4 further proceedings.” 5 (9th Cir. 2017) (as amended Jan. 25, 2018); see also Harman v. 6 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended). 7 Court has discretion to do so or to award benefits under the 8 “credit as true” rule. 9 omitted). Leon v. Berryhill, 880 F.3d 1041, 1045 The Leon, 880 F.3d at 1044 (citation “[A] direct award of benefits was intended as a rare 10 and prophylactic exception to the ordinary remand rule[.]” 11 at 1045. 12 proceedings turns upon the likely utility of such proceedings,” 13 Harman, 211 F.3d at 1179, and when an “ALJ makes a legal error, 14 but the record is uncertain and ambiguous, the proper approach is 15 to remand the case to the agency,” Leon, 880 F.3d at 1045 (citing 16 Treichler, 775 F.3d at 1105). 17 Id. The “decision of whether to remand for further Here, further administrative proceedings would serve the 18 useful purpose of allowing the ALJ to give proper consideration 19 to Plaintiff’s fibromyalgia diagnosis and subjective symptom 20 testimony. 21 specific portions of Plaintiff’s testimony did seem exaggerated: 22 it’s hard to imagine that she could function at all, much less 23 occasionally grocery shop, cook, clean, and do other household 24 chores, if she truly got at most an hour of sleep a night and was But although the ALJ did not expressly say so, some 25 19 26 27 28 Even assuming the ALJ did not err in finding that the side effects Plaintiff complained of at the hearing were not documented in the records, that alone would not justify discounting her statements and testimony, particularly in light of the flaws in the other two proffered reasons. After all, the side effects could simply have increased with time. 20 1 almost never without a genuine migraine headache.20 2 Moreover, inconsistencies exist in the record concerning whether 3 she took care of her husband or he of her. 4 with AR 398.) 5 needing to lie down for “hours and hours” every day and being 6 essentially nonfunctional (AR 128, 397-405) with caring for a 7 disabled husband and his parents (AR 65-66). 8 “serious doubt” about whether a plaintiff is disabled, remand for 9 further proceedings is appropriate. (AR 120-21.) (Compare AR 65-66, It’s hard to reconcile her statements about When a court has See Treichler, 775 F.3d at 10 1107. 11 subjective symptoms on remand, he can then provide an adequate 12 discussion of the reasons why. 13 732, 733 (9th Cir. 2016). 14 VI. 15 If the ALJ chooses to again discount Plaintiff’s See Payan v. Colvin, 672 F. App’x CONCLUSION Consistent with the foregoing and under sentence four of 42 16 U.S.C. § 405(g),21 IT IS ORDERED that judgment be entered 17 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 18 request for remand, and REMANDING this action for further 19 proceedings consistent with this memorandum decision. 20 21 DATED: March 26, 2021 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 22 23 24 25 26 27 28 20 Plaintiff had a sleep study in June 2015 and was found to have “mild” sleep apnea caused at least in part by her obesity. (AR 598-99.) 21 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 21
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