Galvez v. Colvin, No. 1:2015cv03156 - Document 23 (E.D. Wash. 2017)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, INTER ALIA; granting 14 Plaintiff's Motion for Summary Judgment; denying 19 Defendant's Motion for Summary Judgment. Pursuant to sentence four of 42 U.S.C. §405(g) and § 1383(c)(3), this matter is REMANDED to the Commissioner for further development of the record. Case closed. Signed by Senior Judge Lonny R. Suko. (CV, Case Administrator)
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Galvez v. Colvin Doc. 23 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ______________________________ ) LYDIA GALVEZ, No. 1:15-CV-03156-LRS ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 14) and the Defendant's Motion For Summary Judgment (ECF No. 19). 16 JURISDICTION 17 18 Lydia Galvez, Plaintiff, applied for Title II Disability Insurance benefits (DIB) 19 and Title XVI Supplemental Security Income benefits (SSI) on August 15, 2011. The 20 applications were denied initially and on reconsideration. Plaintiff timely requested 21 a hearing which was held on October 29, 2013, before Administrative Law Judge 22 (ALJ) Larry Kennedy. Plaintiff testified at the hearing, as did Vocational Expert (VE) 23 Trevor Duncan. On December 6, 2013, the ALJ issued a decision finding the Plaintiff 24 not disabled. The Appeals Council denied a request for review of the ALJ’s decision, 25 making that decision the Commissioner’s final decision subject to judicial review. 26 The Commissioner’s final decision is appealable to district court pursuant to 42 U.S.C. 27 §405(g) and §1383(c)(3). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 STATEMENT OF FACTS 2 The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At 4 the time of the administrative hearing, Plaintiff was 48 years old. She has past 5 relevant work experience as a certified nurse aide (CNA). Plaintiff alleges disability 6 since November 16, 2008, on which date she was 43 years old. Her date last insured 7 for Title II benefits is June 30, 2011. 8 9 STANDARD OF REVIEW 10 "The [Commissioner's] determination that a claimant is not disabled will be 11 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 12 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 13 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 14 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 15 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 16 1988). "It means such relevant evidence as a reasonable mind might accept as 17 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 18 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 19 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 20 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 21 On review, the court considers the record as a whole, not just the evidence supporting 22 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 23 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 24 It is the role of the trier of fact, not this court to resolve conflicts in evidence. 25 Richardson, 402 U.S. at 400. If evidence supports more than one rational 26 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 27 F.2d 577, 579 (9th Cir. 1984). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 1 A decision supported by substantial evidence will still be set aside if the proper 2 legal standards were not applied in weighing the evidence and making the decision. 3 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 4 1987). 5 ISSUES 6 7 Plaintiff argues the ALJ erred in: 1) improperly assessing Plaintiff’s 8 fibromyalgia under Social Security Ruling (SSR) 12-2p; 2) improperly discounting 9 Plaintiff’s credibility; and 3) improperly weighing the medical evidence. 10 DISCUSSION 11 12 SEQUENTIAL EVALUATION PROCESS 13 The Social Security Act defines "disability" as the "inability to engage in any 14 substantial gainful activity by reason of any medically determinable physical or 15 mental impairment which can be expected to result in death or which has lasted or can 16 be expected to last for a continuous period of not less than twelve months." 42 U.S.C. 17 § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined to be 18 under a disability only if her impairments are of such severity that the claimant is not 19 only unable to do her previous work but cannot, considering her age, education and 20 work experiences, engage in any other substantial gainful work which exists in the 21 national economy. Id. 22 The Commissioner has established a five-step sequential evaluation process for 23 determining whether a person is disabled. 20 C.F.R. §§ 404.1520 and 416.920; 24 Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines 25 if she is engaged in substantial gainful activities. If she is, benefits are denied. 20 26 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If she is not, the decision-maker 27 proceeds to step two, which determines whether the claimant has a medically severe 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 1 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii) and 2 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 3 of impairments, the disability claim is denied. If the impairment is severe, the 4 evaluation proceeds to the third step, which compares the claimant's impairment with 5 a number of listed impairments acknowledged by the Commissioner to be so severe 6 as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii) and 7 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 8 equals one of the listed impairments, the claimant is conclusively presumed to be 9 disabled. If the impairment is not one conclusively presumed to be disabling, the 10 evaluation proceeds to the fourth step which determines whether the impairment 11 prevents the claimant from performing work she has performed in the past. If the 12 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. §§ 13 404.1520(a)(4)(iv) and 416.920(a)(4)(iv). If the claimant cannot perform this work, 14 the fifth and final step in the process determines whether she is able to perform other 15 work in the national economy in view of her age, education and work experience. 20 16 C.F.R. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v). 17 The initial burden of proof rests upon the claimant to establish a prima facie 18 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 19 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 20 mental impairment prevents her from engaging in her previous occupation. The 21 burden then shifts to the Commissioner to show (1) that the claimant can perform 22 other substantial gainful activity and (2) that a "significant number of jobs exist in the 23 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 24 (9th Cir. 1984). 25 26 27 ALJ'S FINDINGS The ALJ found the following: 1) Plaintiff has “severe” medical impairments, 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 4 1 those being: degenerative disk disease of the lumbar and cervical spine; degenerative 2 joint disease of the right acromioclavicular joint and right full-thickness rotator cuff 3 tear; pain disorder; and major depressive disorder; 2) Plaintiff’s impairments do not 4 meet or equal any of the impairments listed in 20 C.F.R. § 404 Subpart P, App. 1; 3) 5 Plaintiff has the residual functional capacity (RFC) to perform light work as defined 6 in 20 C.F.R. §§ 404.1567(b) and 416.967(b) in that she can stand and/or walk about 7 six hours and sit for about six hours in an eight hour workday with normal breaks; she 8 can lift and carry up to 20 pounds occasionally and up to 10 pounds frequently, with 9 both upper extremities or the with the left (dominant) extremity alone; using just her 10 right upper extremity, she can occasionally lift and/or carry articles such as docket 11 files, ledgers and small tools. With regard to manipulative and postural limitations, 12 the ALJ found Plaintiff should avoid reaching overhead with her right upper 13 extremity; she can occasionally reach below shoulder level with her right upper 14 extremity; she cannot crawl or climb ladders, ropes, or scaffolding; she can frequently 15 balance; she can occasionally stoop, kneel, crouch, or climb ramps or stairs. With 16 regard to environmental limitations, the ALJ found Plaintiff should avoid concentrated 17 exposure to vibration and workplace hazards. With regard to non-exertional mental 18 limitations, the ALJ found Plaintiff can perform simple, routine tasks and follow short 19 and simple instructions; can perform work that requires little or no judgment and can 20 perform simple duties that can be learned on the job in a short period; and requires a 21 predictable work environment with few work setting changes; 4) Plaintiff’s RFC 22 does not allow her to perform her past relevant work, but (5) it does allow her to 23 perform other jobs existing in significant numbers in the national economy as 24 identified by the VE including cashier II, ticket taker, and office helper. Accordingly, 25 the ALJ concluded the Plaintiff is not disabled. 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 5 1 FIBROMYALGIA 2 Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous 3 connective tissue components of muscles, tendons, ligaments, and other tissues. 4 Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). Common symptoms include 5 “chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a 6 pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue 7 associated with the disease.” Id. at 589-90 (citations omitted). Fibromyalgia “is 8 diagnosed entirely on the basis of patients’ reports of pain and other symptoms” and 9 “there are no laboratory tests to confirm the diagnosis.” Id. at 590. 10 SSR 12-2p, 77 Fed. Reg. 143, 43640 (July 25, 2012), 2012 WL 3104869, 11 specifically addresses the evidence the Commissioner evaluates when a claimant seeks 12 disability benefits due to fibromyalgia. In order to establish that she has a medically 13 determinable impairment (MDI) of fibromyalgia (FM), a claimant must provide 14 evidence from a licensed physician documenting “that the physician reviewed the 15 person’s medical history and conducted a physical exam.” 2012 WL 3104869 at *2. 16 A physician must provide the evidence described in one of two sets of diagnostic 17 criteria issued by the American College of Rheumatology (ACR), those being: 1) the 18 1990 ACR Criteria for the Classification of Fibromyalgia; and 2) the 2010 ACR 19 Preliminary Diagnostic Criteria. Id. at *2-3. 20 The 1990 ACR criteria includes all three of the following: (1) a history of 21 widespread pain- pain in all quadrants of the body (the right and left sides of the body, 22 both above and below the waist) and axial skeletal pain (the cervical spine, anterior 23 chest, thoracic spine, or low back)- that has persisted (or that persisted) for at least 24 three months; (2) that a patient report pain in at least 11 of 18 tender points above and 25 below the waist bilaterally; and (3) evidence that other disorders that could cause the 26 symptoms or signs were excluded, such as laboratory testing which may include 27 imaging and other laboratory tests such as complete blood counts, erythrocyte 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 6 1 sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor. 2 2012 WL 3104869 at *2-3. Other physical and mental disorders having symptoms 3 or signs similar or the same as fibromyalgia include rheumatologic disorders, 4 myofacial pain syndrome, polymyalgia, rheumatica, chronic Lyme disease, and 5 cervical hyperextension-associated or hyperflexion-associated disorders. 2012 WL 6 3104869 at n. 7. 7 The 2010 ACR criteria includes numbers (1) and (3) of the 1990 criteria, but 8 in lieu of there being pain in at least 11 of 18 tender points, requires “[r]epeated 9 manifestations of six or more FM symptoms, signs, or co-occurring conditions, 10 especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), 11 waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome. 2012 12 WL 3104869 at *3. Symptoms and signs that may be considered include the 13 following “somatic symptoms:” muscle pain, irritable bowel syndrome, fatigue or 14 tiredness, thinking or remembering problems, muscle weakness, headache, pain or 15 cramps in the abdomen, numbness or tingling, dizziness, insomnia, depression, 16 constipation, pain in the upper abdomen, nausea, nervousness, chest pain, blurred 17 vision, fever, diarrhea, dry mouth, itching, wheezing, Raynaud’s phenomenon1, hives 18 or welts, ringing in the ears, vomiting, heartburn, oral ulcers, loss of taste, change in 19 taste, seizures, dry eyes, shortness of breath, loss of appetite, rash, sun sensitivity, 20 hearing difficulties, easy bruising, hair loss, frequent urination, or bladder spasms. Id, 21 at n. 9. “Co-occurring conditions” which may be considered in addition to irritable 22 bowel syndrome or depression include anxiety disorder, chronic fatigue syndrome, 23 24 1 25 26 27 28 Raynaud’s Phenomenon is characterized by a pale to blue to red sequence of color changes of the digits, most commonly after exposure to cold. It occurs because of a spasm of blood vessels. www.MedicineNet.com ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 7 1 irritable bladder syndrome, interstitial cystitis, temporomandibular joint disorder, 2 gastroesophageal reflux disorder, migraine, or restless leg syndrome. Id. at n. 10. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 The ALJ concluded that Plaintiff did not have a medically determinable impairment of fibromyalgia for the following reasons: At the hearing, the claimant reported having a wide array of pain symptoms and asserted that she had been diagnosed with fibromyalgia [citation omitted]. In March 2011, the claimant visited treating source Dr. Heisey and reported having diffuse pain symptoms that prevented her from working. She displayed no signs of arthritis and displayed normal strength and range of motion in her alleged areas of impairment. Dr. Heisey commented that “I see no evidence of a systemic rheumatologic disorder or other explanation for her diffuse pain” [citation omitted]. In December 2012, Dr. Heisey examined . . . the claimant and found “multiple tender points to palpation.” He then expressed that the claimant had “diffuse pain most consistent with fibromyalgia associated with sleep disturbance and depression” [citation omitted]. However, Dr. Heisey did not specify the number or location of the claimant’s tender points. . . . Dr. Heisey’s medical records do not indicate that the claimant’s symptoms match either set of the ACR criteria [1990 and 2010]. His own remarks indicate that his diagnosis of fibromyalgia was not conclusive, but that this diagnosis was “most consistent” with the claimant’s reported symptoms. The claimant’s medical evidence of record does not otherwise provide detailed tender point testing or an accounting of six or more fibromyalgia symptoms or co-occurring conditions. In addition, there is no discussion by Dr. Heisey that other disorders . . . could cause the symptoms or signs that were excluded (SSR 12-2p). (AR at pp. 22-23). 19 As Plaintiff points out, the ALJ wrongly attributed to Kyle Heisey, M.D., the 20 December 2012 examination results finding “multiple tender points to palpation” and 21 the conclusion that Plaintiff had “diffuse pain most consistent with fibromyalgia 22 associated with sleep disturbance and depression.” This was in fact the conclusion 23 reached by Wendy Eider, M.D., the rheumatologist to whom Dr. Heisey referred 24 Plaintiff for an examination. 25 Plaintiff asserts the record, in particular Dr. Eider’s report, establishes that the 26 first criterion of both the 1990 and 2010 diagnostic criteria is satisfied, that being a 27 history of widespread pain- pain in all quadrants of the body (the right and left sides 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 8 1 of the body, both above and below the waist) and axial skeletal pain (the cervical 2 spine, anterior chest, thoracic spine, or low back)- that has persisted (or that persisted) 3 for at least three months. Dr. Eider’s report indicates that Plaintiff’s right shoulder 4 had “decreased abduction with pain on rotation tenderness over the supraspinatus 5 tendon,” while the left shoulder “had fairly good ROM [range of motion] pain to 6 palpation.” (AR at p. 475). With regard to Plaintiff’s hips, Dr. Eider noted “[f]ull 7 ROM, tenderness over the greater trochanters2 bilaterally.” (Id.). And with regard 8 to the spine, Dr. Eider noted “[m]oderate tenderness along the thoracic spine” and 9 “decreased ROM pain with movement” concerning the lumbar spine (low back). (Id.). 10 Dr. Eider did not, however, specifically acknowledge there was a “history” of pain 11 and that it had persisted for at least three months. 12 Plaintiff further contends “[t]here is no reason to doubt that Dr. Eider’s tender 13 point examination was performed according to the [1990] diagnostic criteria for this 14 disease, but it is clear that as a rheumatologist she was familiar with these 15 requirements.” (ECF No. 21 at p. 3). While the court does not believe such an 16 assumption can be justified at this point, it does believe that Dr. Eider’s finding of 17 “multiple tender points to palpation” is ambiguous and may indeed suggest she found 18 pain in 11 of 18 tender points above and below the waist bilaterally, but simply did 19 not specify that in her report. 20 The ALJ has a basic duty to inform himself about facts relevant to his decision. 21 Heckler v. Campbell, 461 U.S. 458, 471 n. 1, 103 S.Ct. 1952 (1983). The ALJ’s duty 22 23 2 The trochanter is one of the two bony prominences toward the near end of 24 25 26 27 28 the thighbone (femur). The greater trochanter is a powerful protrusion located at the proximal (near) and lateral (outside) part of the shaft of the femur. www.MedicineNet.com ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 9 1 to develop the record exists even when the claimant is represented by counsel. 2 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The duty is triggered by 3 ambiguous or inadequate evidence in the record and a specific finding of ambiguity 4 or inadequacy by the ALJ is not necessary. McLeod v. Astrue, 640 F.3d 881, 885 (9th 5 Cir. 2011). On remand, the ALJ will further develop the record to ascertain whether 6 Plaintiff met the tender points criterion at the relevant time, and whether Plaintiff had 7 a “history” of pain in all quadrants of the body and the axial spine which persisted at 8 least three months.3 9 10 11 3 In August 2013, ARNP Kimberly Rodgers saw Plaintiff for a follow up 12 13 14 appointment regarding Plaintiff’s right shoulder. Rodgers wrote that her examination showed “diffuse pain throughout shoulder and unable to localize 15 16 [with] palpation” and that there were “[n]o discernable trigger points in UE [upper 17 extremity], chest or neck.” (AR at pp. 748-49). First of all, it is clear that Rodgers 18 19 was not focusing on a whole body exam for fibromyalgia. Her examination was 20 limited to the upper body and, in particular Plaintiff’s right shoulder. Secondly, 21 22 23 ARNP Rodgers is not an “acceptable medical source” for either diagnosing fibromyalgia or ruling out such a diagnosis. Nurse practitioners, physicians’ 24 25 26 27 28 assistants, and therapists (physical and mental health) are not “acceptable medical sources” for the purpose of establishing if a claimant has a medically determinable impairment. 20 C.F.R. §§404.1513(a) and 416.913(a). Raymond Snyder, M.D., is ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 10 1 Plaintiff contends the ALJ “made no attempt to consider [the] alternate 2 diagnostic requirement” of repeated manifestations of six or more fibromyalgia 3 symptoms, signs, or co-occurring conditions, “despite numerous signs being amply 4 documented in the record, at least four of which are found in Dr. Eider’s assessment 5 alone.” (ECF No. 21 at p. 4). While the court has reviewed the record and can also 6 ascertain with some reasonable degree of probability the four symptoms or co- 7 occurring conditions in Dr. Eider’s assessment to which Plaintiff refers, it is not the 8 court’s responsibility, but the Plaintiff’s responsibility and burden at step two to 9 identify with specificity what in the medical record amply documents “repeated 10 manifestations of six or more symptoms, signs, or co-occurring conditions.” 11 (Emphasis added). The Plaintiff has not done so yet, and the court will not, at this 12 point, conclude that this diagnostic criterion is satisfied. 13 On the other hand, Plaintiff makes a compelling argument that the current 14 record establishes that other disorders that could cause the symptoms or signs have 15 been excluded. As Plaintiff points out, Dr. Eider observed there was “no evidence for 16 inflammatory arthritis or underlying connective tissue disease,” and while Plaintiff 17 had osteoarthritis in her neck and lower back, that “[did] not explain all her pain and 18 disability.” (AR at p. 475). In May 2012, Dr. Heisey “initiated a referral to 19 rheumatology” precisely because he was unable to ascertain the etiology of Plaintiff’s 20 diffuse pain. Furthermore, prior laboratory testing in June 2011 (thyroid, ANA 21 (Antinuclear Antibody Panel), and rheumatoid factor) had come back negative, 22 thereby excluding other disorders (no thyroid disorder, no active autoimmune disease 23 24 25 26 27 28 an “acceptable medical source,” but he too did not conduct a whole body examination for fibromyalgia and his comment about “no localizing tenderness” was limited to Plaintiff’s right shoulder. (AR at pp. 760-63). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 11 1 such as lupus or rheumatoid arthritis). (AR at p. 478). Dr. Eider referred to this 2 negative testing in her own report in conjunction with her December 2012 3 examination of the Plaintiff4, and further noted that in January 2012, Plaintiff had a 4 normal “hemogram” (CBC or complete blood count) and a normal “chem panel.” 5 (AR at p. 475). 6 The Commissioner contends there is evidence in the record showing “that 7 Plaintiff’s treatment team and the State agency physicians had not excluded other 8 conditions as possible sources of her symptoms.” (ECF No. 19 at p. 4). The 9 Commissioner cites to a March 2011 report from Dr. Heisey, as well as a January 10 2012 report from State agency physician Robert Hoskins, M.D., opining that 11 Plaintiff’s only medically determinable impairment based on his review of the record 12 was obesity (AR at p. 103), and an April 2012 report from Jeffrey Merrill, M.D., that 13 purportedly indicates Plaintiff’s only medically determinable impairments were a 14 spine disorder and major joint dysfunction (AR at p. 134), although Dr. Merrill does 15 not explicitly say that. Significantly, all three of these reports pre-date Dr. Eider’s 16 December 2012 fibromyalgia diagnosis. 17 suggested as a diagnosis before December 2012, whatever is contained in the 18 aforementioned reports of Drs. Heisey, Hoskins and Merrill cannot constitute 19 diagnoses ruling out possible sources of Plaintiff’s symptoms other than fibromyalgia. 20 Moreover, Dr. Heisey’s March 2011 comment that “I see no evidence of a systemic 21 rheumatologic disorder or other explanation for her diffuse pain” (AR at p. 414) Because fibromyalgia was not even 22 23 4 Laboratory testing from June 2011 revealed Plaintiff’s “sed rate” 24 25 26 (erythrocyte sedimentation rate) was 4, which is normal in females. www.MedicineNet.com 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 12 1 obviously did not identify any specific condition that might be the source of Plaintiff’s 2 symptoms other than fibromyalgia and, as noted, the very reason he referred Plaintiff 3 to Dr. Eider for a rheumatology consult was to identify the source of Plaintiff’s 4 symptoms. 5 6 REMAND 7 Social security cases are subject to the ordinary remand rule which is that when 8 “the record before the agency does not support the agency action, . . . the agency has 9 not considered all the relevant factors, or . . . the reviewing court simply cannot 10 evaluate the challenged agency action on the basis of the record before it, the proper 11 course, except in rare circumstances, is to remand to the agency for additional 12 investigation or explanation.” Treichler v. Commissioner of Social Security 13 Administration, 775 F.3d 1090, 1099 (9th Cir. 2014), quoting Fla. Power & Light Co. 14 v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598 (1985). 15 On remand, the Commissioner will follow the directive contained in Paragraph 16 III. C. of SSR 12-2p regarding “When There Is Insufficient Evidence for Us to 17 Determine Whether the Person Has an MDI of FM or is Disabled?” The ALJ may 18 recontact Dr. Eider to see if the necessary information is able to ascertain whether the 19 1990 or 2010 diagnostic criteria are met; request additional existing records for that 20 purpose; ask the Plaintiff or others for more information for that purpose; or purchase 21 a consultative examination for that purpose. 2012 WL3104869 at *4. 22 At this juncture, the court will not address the issues Plaintiff raises regarding 23 the weighing of medical evidence and the discounting of Plaintiff’s credibility 24 because, as both Plaintiff and the Commissioner acknowledge, the ALJ’s finding that 25 Plaintiff did not have a severe medically determinable impairment of fibromyalgia at 26 step two clearly factored into his weighing of medical evidence, his credibility 27 analysis, and therefore his conclusion about Plaintiff’s RFC. A finding on remand 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 13 1 that Plaintiff has a severe medically determinable impairment of fibromyalgia would 2 necessitate a re-weighing of the medical evidence and a new credibility analysis. 3 CONCLUSION 4 5 Plaintiff’s Motion For Summary Judgment (ECF No. 14) is GRANTED and 6 Defendant’s Motion For Summary Judgment (ECF No. 19) is DENIED. The 7 Commissioner's decision is REVERSED. Pursuant to sentence four of 42 U.S.C. 8 §405(g) and § 1383(c)(3), this matter is REMANDED to the Commissioner for 9 further development of the record as set forth above. An application for attorney fees 10 may be filed by separate motion. 11 IT IS SO ORDERED. 12 13 The District Executive shall enter judgment accordingly and forward copies of the judgment and this order to counsel of record. DATED this 19th day of January, 2017. 14 15 16 17 s/Lonny R. Suko LONNY R. SUKO Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 14
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