Santiago v. Barnhart

Filing 36

ORDER granting in part and denying in part 16 Plaintiff's Motion for Summary Judgment; granted with respect to error in the ALJ's disability determination, but denied to the extent that she seeks a remand for an award of benefits. IT IS F URTHER ORDERED denying 24 Defendant's Cross-Motion for Summary Judgment. Commissioner's decision denying benefits is vacated. This matter is remanded for further proceedings consistent with this Order. Signed by Judge Robert C Broomfield on 2/9/10.(LSP)

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WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Jennifer L. Santiago, Plaintiff, vs. Michael J. Astrue, Commissioner of Social Security, Defendant.

) ) ) ) ) ) ) ) ) ) )

No. CIV 06-3052 PHX RCB ORDER

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social

19 Security Act, plaintiff Jennifer L. Santiago commenced the present 20 action seeking judicial review of a final decision of defendant, 21 Michael J. Astrue, Commissioner of Social Security ("the 22 Commissioner"). The Commissioner denied plaintiff's application

23 for Disability Insurance Benefits ("DIB") and Supplemental Social 24 Security Income Benefits ("SSSI"), under Titles II and XVI of the 25 Social Security Act. Currently pending before the court is

26 plaintiff's motion for summary judgment (doc. 16) wherein she 27 argues that the Commissioner's decision "cannot be sustained as it 28 is based on legal error." Memo. (doc. 18) at 19:24. Plaintiff

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therefore is seeking summary judgment in her favor and a remand for an "immediate award of benefits." Id. at 19:26 (citation omitted).

"At a minimum," plaintiff seeks a "remand[] for further proceedings." Reply (doc. 33) at 19:28. Conversely, the

Commissioner asserts that his final decision "is supported by substantial evidence, making it conclusive upon this court[,]" and entitling him to summary judgment as a matter of law. (doc. 24) at 1, ¶ 2:26. Finding this matter suitable for decision without oral argument, the court rules as follows. Background Plaintiff protectively filed DIB and SSSI alleging disability beginning January 1, 2003. 24. Administrative Record ("Admin. R.") at See LRCiv 7.2(f). Cross-Mot.

Those applications were denied initially and upon Id. Following plaintiff's timely request for

reconsideration.

rehearing, this matter was heard before an Administrative Law Judge ("ALJ"). Id. Plaintiff, represented by counsel, testified at the

hearing, as well as a vocational expert under contract with the Office of Hearings and Appeals. Id. The Administrative record in

this case consists of, inter alia, a fairly sparse hearing transcript and medical records from a number of sources. Ultimately the ALJ issued a decision finding that plaintiff is not disabled within the Social Security Act and its accompanying regulations; and thus she is not entitled to benefits. Id. at 31.

The Social Security Administration Appeals Council denied plaintiff's request for a review of the ALJ's decision. 12. Id. at 9-

At that point, the ALJ's decision became the final decision of

the Commissioner, which in turn, allowed plaintiff to seek judicial -2-

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review in this court as she has done. Discussion I. Standard of Review

See 20 C.F.R. § 404.981.

Assuming familiarity with the well-established standards governing summary judgment motions, the court sees no need to repeat the same herein.1 Instead, the court will focus on the

standards governing judicial review of a Commissioner's decision pursuant to 42 U.S.C. § 405(g). The court "may set aside the

Commissioner's denial of benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. Factual

2009) (internal quotation marks and citation omitted).

determinations by the Commissioner, acting through an ALJ, must be affirmed if supported by substantial evidence. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003). "`In determining whether the Commissioner's findings are supported by substantial evidence, [this Court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.'" Andrews v. Astrue, 2009 WL 2985449, at *3 (C.D.Cal. Sept. 14, 2009) (quoting Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)) (other citation omitted). "Substantial evidence means See Celaya v.

more than a mere scintilla but less than a preponderance; it is

A trilogy of cases in 1986, Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 577, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 323-325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), ushered in a new era of summary judgment motions for the federal courts. See Rand v. Rowland, 154 F.3d 952, 956-57 (9th Cir. 1998) ("It took nearly fifty years for the Supreme Court to pave the way toward mainstream acceptance of the summary judgment procedure with its trilogy of summary judgment cases in the mid-1980s.")

1

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such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Vasquez, 572 F.3d at 591

(internal quotation marks and citation omitted). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Vasquez, 572 F.3d at 591 (internal quotation marks and citation omitted). "Where the evidence can reasonably support either

affirming or reversing the [Commissioner's] decision, [this court] may not substitute [its] judgment for that of the Commissioner." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (citation omitted). "In other words, "where the evidence is susceptible to

more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and

citation omitted). Given this "highly deferential standard of review[,]" Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009), it stands to reason that "[a] decision of the ALJ will not be reversed for errors that are harmless." Stout v. Comm'r, 454 Thus, errors

F.3d 1050, 1054 (9th Cir. 2006) (citation omitted).

that are inconsequential to the ALJ's ultimate determination as to disability are not reversible. Id. at 1055. This court's review

is, in short, fairly limited, although it "must consider the evidence that supports as well as detracts from the [ALJ's] conclusion." Werle v. Astrue, 633 F.Supp.2d 857, 879 (D.Ariz.

2009) (citing Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975)). At the same time, however, the court is keenly aware that

"when applying the substantial evidence standard, [it] should not mechanically accept the Commissioner's findings but should review -4-

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the record critically and thoroughly." at 1156).

Id. (citing Day, 522 F.2d

The court is equally aware of its obligation to

"consider the entire record as a whole and . . . not [to] affirm simply by isolating a `specific quantum of supporting evidence.' " Olguin v. Astrue, 2009 WL 4641728, at *1 (C.D.Cal. Dec. 2, 2009)(quoting Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006)) (other citations omitted). II. Disability Determination Framework "To medically qualify for benefits under the Social Security Act, a claimant must establish `the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." Stout, 454 F.3d at 1052 (quoting 42 U.S.C. There is a five step sequential evaluation

§ 423(d)(1)(A)).

process which the Commissioner, through an ALJ, must employ for determining whether a claimant is disabled. See id. (citing 20 C.F.R. §§ 404.1520, 416.920). The first step requires the ALJ to determine whether the claimant is currently engaged in "substantial gainful [work] activity." 20 C.F.R. § 404.1520(a)(4)(i). A negative response

requires the ALJ to proceed to step two.

See Smolen v. Chater, 80

F.3d 1273, 1289 (9th Cir. 1996) (citation omitted) ("In conducting this [five-step] inquiry, the Commissioner asks five questions in order until a question is answered in such away [sic] that the claimant is conclusively determined disabled or not.") At step two, the focus is on "whether the claimant has a medically severe impairment or combination of impairments that significantly limits -5-

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h[er] ability to do basic work activities."

Webb v. Barnhart, 433 This severity

F.3d 683, 686 (9th Cir. 2005) (citations omitted).

determination is analyzed in terms of what is "not severe." Smolen, 80 F.3d at 1290. If a claimant satisfies this step two

burden of establishing severity, the ALJ proceeds to step three, where medical severity is also a consideration. § 416.920(a)(4)(iii). At step three, the ALJ determines if the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If the claimant Benton 20 C.F.R.

satisfies this criteria, she will be found to be disabled. v. Barnhart, 331 F.3d 1030, 1034 (9th Cir. 2003).

If a claimant's

condition does not meet or exceed the Listing requirements, the analysis proceeds to step four. See id.

The inquiry at step four turns to the claimant's residual functional capacity ("RFC") which is, essentially, "a summary of what the claimant is capable of doing[,]" Valentine, 574 F.3d at 20 C.F.R.

689, as well as the claimant's "past relevant work." § 416.920(a)(4)(iv).

"In assessing an individual's RFC, the ALJ

must consider . . . her symptoms (including pain), signs and laboratory findings, together with other evidence." Combs v.

Astrue, 2009 WL 839046, at *6 (N.D.Cal. March 30, 2009) (citing 20 C.F.R. § 404, Subpt. P, App. 2 § 200.00(c)). If, at step four, the

ALJ determines that the claimant "can still do [her] past relevant work," despite the limitations caused by her impairments, the Commissioner will find that she is not disabled. § 416.920(a)(4)(iv). -620 C.F.R.

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On the other hand, if the claimant does not have "sufficient [RFC] despite the impairment or various limitations to perform her past work[,]" the ALJ will proceed to the fifth and last step in this evaluation process. See Andrews, 2009 WL 2985449, at *4. The

claimant has the burden of proof at steps one through four, but at step five "the burden of proof shifts to the [Commissioner] . . . to show that the claimant can do other kinds of work." Valentine, A

574 F.3d at 689 (internal quotation marks and citation omitted). claimant's RFC also factors into this inquiry. The Commissioner

will "assess[]" a claimant's RFC and her "age, education and work experience to see if [the claimant] can make an adjustment to other work." 20 C.F.R. § 416.920(a)(4)(v). At step five, a finding that

such an adjustment can be made will result in a finding of no disability, whereas a finding that claimant cannot make an adjustment to other work will result in a finding that the claimant is disabled. III. See id.

Overview of ALJ's Sequential Evaluation Findings Engaging in that five-step process here, at step one the ALJ

found that plaintiff "has not engaged in any substantial gainful activity since January 1, 2003." dispute. Admin. R. at 25. This is not in

Proceeding to step two, the ALJ found that the medical

evidence showed that plaintiff had the following: "fibromyalgia,2
2

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Fibromyalgia is, as the Ninth Circuit has explained: [a] rheumatic disease that causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue. . . . Common symptoms, . . . , include chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue associated with this disease. . . . Fibromyalgia's cause is unknown, there is no cure, and it is poorly-understood within much of the medical community. The disease is diagnosed entirely on the basis of patients' reports of pain and other symptoms. The

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irritable bowel syndrome [("IBS")], a bipolar disorder, a post traumatic stress disorder, an anxiety disorder with panic attacks, and an obsessive-compulsive disorder[.]" Id. at 26 (citations omitted) (footnote added). "[W]hen considered in combination[,]" the ALJ also found the foregoing to be "`severe' impairments[.]" See id. The ALJ next found, at step three, that plaintiff did not

have an "impairment, or combination of impairments, that meets or equals in severity the appropriate medical criteria of any impairment" in the Listing. Id. at 26. Implicit in that finding

is that plaintiff was not disabled because her impairments did not satisfy the Listing criteria. step four. At step four, based upon what the ALJ found to be plaintiff's RFC, discussed below, and her past relevant work, the ALJ found that she was "unable to perform any of her past relevant work[.]" Id. at 31 (citations omitted). Proceeding to step five, because Consequently, the ALJ proceeded to

the ALJ found that plaintiff retained the RFC to perform several types of jobs involving "unskilled, light work[,]" he concluded that she "has not been under a disability[.]" Id. was not entitled to DIB or SSSI benefits. Id. Hence, plaintiff

"Like most Social Security cases, this case involves [alleged errors in that] five-step procedure[.]" See Valentine, 574 F.3d at

American College of Rheumatology issued a set of agreed-upon diagnostic criteria in 1990, but to date there are no laboratory tests to confirm the diagnosis. Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004) (citations omitted). Further, "[f]ibromyalgia is a physical disease, . . . , which is diagnosed based on widespread pain with tenderness in at least eleven of eighteen sites known as trigger points." Hanson v. Astrue, 2009 WL 349138, at * 1 n.4 (C.D.Cal. Feb. 11, 2009) (citations and internal quotation marks omitted).

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688 (citations omitted).

Plaintiff Santiago is challenging the Further,

scope of the ALJ's severity determination at step two.

for a host of reasons more fully discussed herein, plaintiff argues that "legal error occurred at step five of the sequential evaluation process" as well. Memo. (doc. 18) at 4:17-18. The

court will address these challenges seriatim. IV. Step Two -Severity The ALJ found at step two, as mentioned earlier, that

9 plaintiff Santiago had a number of impairments which "in 10 combination" were "`severe' . . . within the meaning of the Act and 11 Regulations[.]" AR at 26. The ALJ thus properly and necessarily

12 moved to step three of the sequential disability analysis. 13 Nevertheless, plaintiff claims that the ALJ erred at step two by 14 finding that her "diagnosis of degenerative disc disease with 15 scoliosis[,]" which he broadly described as "claimant's back 16 disorder[,]" was "non-severe[.]" See Admin. R. at 26 and 28. 17 Plaintiff overlooks the fact, however, that because she

18 received a favorable determination at step two, the ALJ continued 19 with the sequential disability analysis. "Thus, any error in

20 failing to consider certain impairments severe[,]" such as 21 degenerative disc disease with scoliosis, "did not prejudice 22 [plaintiff's] claim at this level." See Wright v. Astrue, 2009 WL

23 2827567, at *6 (D.Or. Aug. 24, 2009) (citing, Burch v. Barnhart, 24 400 F.3d 676, 682 (9th Cir. 2005) (any error in omitting an 25 impairment from the severe impairments identified at step two was 26 harmless where that step was resolved favorably to claimant)). 27 Consequently, the court will turn to the bulk of plaintiff's 28 arguments, directed to the ALJ's ultimate step five finding ­ she -9-

1 was not under a disability. 2 V. 3 Step Five "To direct th[e] inquiry [at step five], the . . . ALJ[] must

4 determine the claimant's residual functional capacity, a summary of 5 what the claimant is capable of doing (for example, how much weight 6 he can lift)." Valentine, 574 F.3d at 689 (citation and internal

7 quotation marks omitted); see also Moreno v. Astrue, 2009 WL 8 2711900, at *5 (C.D.Cal. Aug. 26, 2009) (citations omitted) ("A 9 claimant's . . . RFC . . . is what he can still do despite his 10 physical, mental, nonexertional, and other limitations.") The ALJ

11 may, as he did here, "pose to a vocational expert a hypothetical 12 incorporating the . . . RFC; the expert then opines on what kind of 13 work someone with the limitations of the claimant could 14 hypothetically do." Id. (citation omitted). "The ALJ must then

15 determine whether, given the claimant's RFC, age, education, and 16 work experience, [s]he actually can find some work in the national 17 economy." Id. (citations omitted). In contrast to steps one

18 through four, at step five "the burden of proof shifts to the 19 [Commissioner] at step five to show that the claimant can do other 20 kinds of work." 21 omitted). 22 Here, the ALJ found that plaintiff had the RFC to "perform Id. (citation and internal quotation marks

23 unskilled, light work3 with no crawling, crouching, climbing, 24 25 26 27 28
Under Social Security regulations, "[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 C.F.R. § 416.967(b).
3

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1 squatting, or kneeling."

Admin. R. at 31 (footnote added).

As

2 part of that RFC, the ALJ further found that plaintiff was "unable 3 to use her lower extremities for pushing or pulling, or her upper 4 extremities for work above the shoulder level." Id. Additionally,

5 the ALJ found that plaintiff "requires a sit/stand option and is 6 limited to work involving simple operations." Id. Given that RFC,

7 plaintiff's age at the time (36 years old) and her "high school 8 equivalency education[,]" the ALJ asked the vocational expert 9 whether "there are jobs that fit that hypothetical . . . in . . . 10 Arizona and in the national economy[.]" Id. at 426. 11 expert answered in the affirmative. See id. The vocational

Thus the ALJ found,

12 based upon her RFC and "vocational factors," that there "are a 13 significant number of jobs existing in the national economy that 14 [plaintiff] could perform." Id. at 31. As "identified by the

15 Vocational Expert," those jobs "are the unskilled, light jobs of 16 office helper, gate guard and cashier." Id. Consequently, at the

17 fifth and final step of the sequential evaluation process, the ALJ 18 found that plaintiff was not under a disability. 19 Id.

Plaintiff contends that the RFC determination, and resultant

20 denial of benefits, was error because there is not substantial 21 evidence in the record to support that determination. Plaintiff

22 disputes the ALJ's findings at step five on a number of bases. 23 First, plaintiff asserts that the ALJ did not properly consider the 24 findings and opinions of her primary treating physician, Chester 25 Christianson, D.O., a family practitioner. Second, plaintiff

26 disputes the ALJ's adverse credibility finding as to her subjective 27 pain and fatigue. Third, plaintiff challenges two aspects of her

28 RFC, which is an integral part of the disability determination at - 11 -

1 step five.

In particular,

plaintiff contends that the ALJ erred

2 in not including a function-by-function assessment of "the effect 3 of [her] physical restrictions[,]" and by not "adequately 4 address[ing] [her] psychological restrictions." 5 15. 6 Next, plaintiff claims that the hypothetical question which Memo. (doc. 18) at

7 the ALJ posed to the vocational expert was "incomplete and 8 inaccurate" because it omitted "the effects of [her] pain" and her 9 "psychiatric restrictions and limitations." Id. at 15-16. Given

10 those claimed deficiencies, plaintiff argues that the ALJ 11 improperly relied upon the vocational expert's response to the 12 ALJ's hypothetical. Plaintiff asserts that "additional error"

13 occurred when the ALJ "failed to identify and resolve conflicts 14 between [the] vocational consultant['s] testimony and the DOT 15 [Dictionary of Occupational Titles]." Id. Finally, plaintiff

16 contends that "there is no reliable evidence to support the [ALJ's] 17 conclusion[]" that "there are a significant number of `other' jobs 18 that [plaintiff] can perform[.]" Id. at 17. 19 plaintiff's contentions in turn. 20 21 22 A. Treating Physician 1. Governing Legal Standards The court will address

An "ALJ must consider all medical opinion evidence."

23 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 24 C.F.R. § 404.1527(b)). In the seminal case of Lester v. Chater, 81

25 F.3d 821 (9th Cir. 1995), the Ninth Circuit articulated a hierarchy 26 of medical opinions. "Generally, the opinions of examining

27 physicians are afforded more weight than those of non-examining 28 physicians, and the opinions of examining non-treating physicians - 12 -

1 are afforded less weight than those of treating physicians."

Orn

2 v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citations omitted). 3 Succinctly put, opinions of treating physicians are favored over 4 those of non-treating physicians." 5 § 404.1527). Id. (citing 20 C.F.R.

This deference to treating physicians' opinions is

6 understandable in that they are "`employed to cure and ha[ve] a 7 greater opportunity to know and observe the patient as an 8 individual[.]'" O'Neil v. Astrue, 2009 WL 1444437, at *10 (D.Or. 9 May 21, 2009) (quoting Sprague v. Brown, 812 F.2d 1226, 1230 (9th 10 Cir. 1987)). 11 There are limits to this deference though. "[A] treating

12 physician's opinion is not conclusive as to whether or not a 13 claimant meets the statutory definition of disability, because that 14 is a legal conclusion reserved to the Commissioner." 15 inter alia, 20 C.F.R. § 404.1527(e)). Id. (citing,

However, "[a]lthough [an]

16 ALJ is not bound by an expert medical opinion on the ultimate 17 question of disability, []he must provide specific and legitimate 18 reasons for rejecting the opinion of a treating physician." 19 Tommasetti, 533 F.3d at 1041 (citations and internal quotation 20 marks omitted). 21 "In Orn, the Ninth Circuit reiterated and expounded upon its

22 position regarding the ALJ's acceptance of the opinion of an 23 examining physician over that of a treating physician." Murrieta "If a

24 v. Astrue, 2009 WL 2184550, at *7 (E.D.Cal. July 21, 2009). 25 treating physician's opinion is well-supported by medically

26 acceptable clinical and laboratory diagnostic techniques and is not 27 inconsistent with the other substantial evidence in [the] case 28 record, [it will be given] controlling weight." - 13 Orn, 495 F.3d at

1 631 (citations omitted).

Significantly, however, when an ALJ finds

2 that a treating physician's opinion is not entitled to controlling 3 weight, that does not mean "`that the opinion should be rejected.'" 4 Id. at 632 quoting S.S.R. 96-2p at 4 (Cum. Ed. 1996), available at Indeed, according to

5 61 Fed.Reg. 34,490, 34,491 (July 2, 1996)).

6 the Social Security Administration, "`[i]n many cases, a treating 7 source's medical opinion will be entitled to the greatest weight 8 and should be adopted, even if it does not meet the test for 9 controlling weight.'" Id. (quoting S.S.R. 96-2p at 4 (Cum.

10 Ed.1996), available at 61 Fed.Reg. 34,490, 34,491 (July 2, 1996)) 11 (emphasis added). 12 Consistent with the foregoing, even when a treating

13 physician's opinion is not entitled to controlling weight, such 14 "`opinions are still entitled to deference and must be weighed 15 using all of the factors provided in 20 C.F.R. 404.1527[.]'" Id. at 16 632 (quoting S.S.R. 96-2p at 4 (Cum. Ed.1996), available at 61 17 Fed.Reg. 34,490, 34,491 (July 2, 1996)) (emphasis added). "Those

18 factors include the [l]ength of the treatment relationship and the 19 frequency of examination by the treating physician; and the nature 20 and extent of the treatment relationship between the patient and 21 the treating physician." 22 quotation marks omitted). Id. at 631 (citations and internal "Additional factors relevant to

23 evaluating any medical opinion, not limited to the opinion of the 24 treating physician, include the amount of relevant evidence that 25 supports the opinion and the quality of the explanation provided; 26 the consistency of the medical opinion with the record as a whole; 27 the specialty of the physician providing the opinion; and [o]ther 28 factors such as the degree of understanding a physician has of the - 14 -

1 Administration's disability programs and their evidentiary 2 requirements and the degree of his or her familiarity with other 3 information in the case record." 4 quotation marks omitted). 5 Additionally, if a treating physician's opinion "is not Id. (citations and internal

6 contradicted by another doctor," the ALJ may "reject[]" the 7 former's opinion "only for clear and convincing reasons supported 8 by substantial evidence in the record." 9 omitted). Id. at 632 (citations

However, "[e]ven if the treating doctor's opinion is

10 contradicted by another doctor, the ALJ may not reject this opinion 11 without providing specific and legitimate reasons supported by 12 substantial evidence in the record." 13 quotation marks omitted). Id. (citations and internal

An ALJ satisfies that standard "by

14 setting out a detailed and thorough summary of the facts and 15 conflicting clinical evidence, stating his interpretation thereof, 16 and making findings." Id. (citation omitted). It is not enough Id. The ALJ "must

17 for the ALJ to simply "offer his conclusion."

18 do more[;] . . . [he] must. . . explain why [his own 19 interpretations], rather than the doctors', are correct." 20 (citations and internal quotation marks omitted). Id.

As just shown,

21 in the Ninth Circuit an ALJ must adhere to strict standards to 22 justify rejecting a treating physician's opinion. 23 24 2. ALJ's Findings

Application of those principles to the ALJ's decision herein First, the ALJ's

25 is difficult for several reasons.

26 characterization of the medical evidence was very general and he 27 provided only minimal cites to the relatively voluminous record. 28 Second, it is not readily apparent the weight which the ALJ - 15 -

1 accorded the opinions of plaintiff's primary treating physician, 2 Dr. Christianson. For that matter, it also is not clear from the

3 ALJ's decision the weight which he accorded to the opinions of the 4 other physicians, such as Dr. Cunningham. Dr. Cunningham evaluated

5 plaintiff one time at the behest of the Arizona Department of 6 Economic Security. Dr. Cunningham's opinion, therefore, should

7 have been "given less weight than the physicians who treated her." 8 See Benecke, 379 F.3d at 592 (citation and footnote omitted). 9 Moreover, the ALJ explained that "Dr. Cunningham indicated th[at] 10 [plaintiff's] subjective complaints far outweighed the objective 11 findings." Admin. R. At 26. However, "`in light of the unique

12 evidentiary difficulties associated with the diagnosis and 13 treatment of fibromyalgia, opinions[,]'" such as Dr. Cunningham's, 14 "`that focus solely upon objective evidence are not particularly 15 relevant.'" Ostalaza v. Astrue, 2009 WL 3170089, at *5 (C.D.Cal.

16 Sept. 30, 2009) (quoting Rogers v. Commissioner of Social Security, 17 486 F.3d 234, 248 (6th Cir. 2007)). 18 Further muddying the waters is the ALJ's failure to expressly

19 find that Dr. Christianson's opinions contradicted those of any of 20 the other physicians. These omissions made this reviewing court's Nonetheless, careful consideration of

21 task unnecessarily arduous.

22 the entire record, the ALJ's decision, and the applicable law shows 23 that the ALJ did not properly weigh and consider Dr. Christianson's 24 opinions. 25 Over the course of approximately two years, from at least late

26 November 2003 through some time in November 2005, Dr. Christianson 27 treated plaintiff. Admin. R. at 260-305; and at 332-335. During

28 that time he referred plaintiff to Dr. Mallace, a rheumatologist, - 16 -

1 and to Dr. Doust, a pain management specialist. 2 and 368.

Admin. R. at 256;

As the ALJ recognized, Dr. Christianson "opined that due

3 to her fibromyalgia, [plaintiff] was unable to sit or stand for any 4 prolonged time, and she was physically disabled from employment at 5 that time[.]" Id. at 27 (citing [Admin. R. at 272]). Dr.

6 Christianson likewise opined that plaintiff was "unable to do 7 physical labor[.]" Id. at 272. Further, as the ALJ construed Dr.

8 Christianson's "two medical source statements[,]" the doctor also 9 opined that plaintiff "is capable of less than sedentary work 10 activity[.]" Id. (citations omitted). The ALJ did not describe the

11 contents of those two statements, although, as will be seen, 12 without explanation the ALJ appears to have agreed with Dr. 13 Christianson as to many but not all of the physical "limitations 14 and restrictions"4 set forth therein. 15 The ALJ's decision includes an overview of the findings of The ALJ noted that following

16 Drs. Cunningham, Doust and Mallace.

17 his one-time examination of plaintiff, Dr. Cunningham diagnosed 18 plaintiff with "chronic pain syndrome with limited range of motion 19 of the cervical spine and a history of post traumatic stress 20 disorder. Id. at 26. Further, Dr. Cunningham's "[e]xamination

21 revealed a normal gait and coordination, and normal range of motion 22 in the dorsolumbar spine, shoulders, elbows, wrists, fingers, 23 thumbs, hips, knees, and ankles." Id. Dr. Cunningham also noted

24 that "[t]rigger points revealed" that plaintiff had "atypical 25 tender areas behind bilateral knees, the bottom of the feet and 26 27 28
The Medical Source Statement form speaks in terms of both restrictions and limitations. For brevity's sake, hereinafter the court will refer simply to limitations.
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1 some tenderness at the base of the neck."

Id.

As the ALJ

2 stressed, Dr. Cunningham wrote that plaintiff's "subjective 3 complaints far outweighed the objective findings." 4 also id. at 26. Id. at 183; see

The ALJ summarized the contents of Dr.

5 Cunningham's Medical Source Statement as "opin[ing]" that plaintiff 6 "can lift and/or carry 50 pounds occasionally and 25 pounds 7 frequently, and has no limitations in standing, walking or sitting. 8 [Dr. Cunningham] reported the [plaintiff] can occasionally crawl, 9 and frequently kneel and crouch." 10 At 184-186]). 11 Turning to a January 20, 2005, examination by rheumatologist Id. at 26- 27 (citing [Admin. R.

12 Dr. Mallace, the ALJ noted that that doctor found plaintiff's 13 "extremities were normal by inspection, range of motion, muscle 14 tone strength, and alignment." Id. at 27; see also id. at 257.

15 Dr. Mallace further noted that plaintiff "had good motion of the 16 cervical and lumbar spine without paravertebral spasm." 17 also at 257. Id.; see

Dr. Mallace did find "trigger point tenderness" on

18 that date, but that plaintiff "had normal coordination, sensation 19 and reflexes[.]" Id. at 27 (citing [Admin. R. at 256-258]). The

20 ALJ then noted Dr. Mallace's assessment several months later, on 21 May 23, 2005, of "persistent fibromyalgia[.]" 22 R. at 245). Id. (citing Admin.

On July 28, 2005, at her fourth and last visit with

23 Dr. Mallace, he adhered to his diagnosis of fibromyalgia, again 24 noting that plaintiff's "extremities move[d] well," but that she 25 had "chronic trigger point tenderness of fibromyalgia." 26 243; see also at 27. 27 Finally, the ALJ reviewed the medical records from four office Id. at

28 visits which plaintiff made to a pain management specialist, Dr. - 18 -

1 Doust, between late 2005 and early 2006.

Dr. Doust's first

2 examination of plaintiff revealed, as the ALJ stated, "normal 3 joint, bones and muscles of the bilateral upper and lower 4 extremities, full and symmetrical muscle strength, tone and size 5 throughout, intact sensory testing, normal and symmetrical deep 6 tendon reflexes, normal gait and station, and normal spine without 7 muscle spasm." Id. at 27; see also id. at 367-368. Based upon

8 that exam, Dr. Doust diagnosed plaintiff with 9 "fibromyositis/myofascial pain and neuralgia, neuritis and 10 radiculitis." Id. (citing [Admin. R. at 366-369]). Plaintiff's

11 next appointment with Dr. Doust, a few weeks later, showed that she 12 "was within normal limits with the exception of tenderness over 13 most fibromyalgia trigger points." 14 at 339-342]). 15 The only noteworthy aspect of plaintiff's next visit to Dr. Id. at 27-28 (citing [Admin. R.

16 Doust, according to the ALJ, is that she "reported moderate 17 stability of her pain symptomatology[.]" Id. at 28 (citing [Admin. 18 R. at 372]). The ALJ accurately observed that on plaintiff's last

19 visit to Dr. Doust she "indicated increased pain with radiation to 20 the left leg and foot[,]" but "examination was benign." Id.

21 Hence, Dr. Doust "recommend[ed]" id. at 374, that plaintiff have 22 "electrodiagnostic testing of the left lower extremity[.]" Id. at 23 28 citing [Admin. R. at 373-375]). The ALJ concluded his review of

24 Dr. Doust's records commenting that if that testing is completed, 25 it "is not part of the evidentiary record." 26 27 3. Analysis Id.

As mentioned, the well-accepted "controlling weight" standard

28 "first require[s]" the ALJ "to determine whether or not the opinion - 19 -

1 of the treating physician will be given controlling weight, which 2 in turn requires consideration of whether or not the treating 3 physician's opinion is well-supported by medically acceptable 4 clinical and laboratory diagnostic technique and is not 5 inconsistent with the other substantial evidence in the case 6 record." Cota v. Commissioner of Social Security, 2009 WL 900315, Here, the ALJ purported to engage

7 at *8 (E.D.Cal. March 31, 2009).

8 in that first level of inquiry when he declined to "accord 9 substantial persuasive weight to the opinions of Dr. Christianson 10 since they are not supported by his own treatment records, or the 11 medical record as a whole discussed" in the ALJ's decision. 12 R. at 27. Admin.

Even equating "substantial persuasive weight" with

13 "controlling weight," there are several flaws with the ALJ's 14 analysis of the record medical evidence. 15 First, according to the ALJ he did not give controlling weight

16 to the opinion of plaintiff's treating physician because that 17 doctor's "own treatment records . . . contain[ed] little in the way 18 of objective findings[]" regarding his "diagnoses of 19 fibromyalgia[.]"5 Id. The ALJ stressed that one of Dr.

20 Christianson's exams of plaintiff "revealed normal cervical, 21 thoracic and lumbar spine, normal hips and knees, no arthritis or 22 degenerative joint disease, normal range of motion and no motor 23 sensory cerebellum abnormalities." Id. at 27. Disregarding record

24 evidence of trigger point tenderness by plaintiff's treating 25 26 27 28
The court is well aware that the ALJ made that same finding as to the treating physician's other diagnoses of "degenerative disc disease with scoliosis, cervical and lumbar strain, and back pain[.]" Admin. R. at 27. However, because the ALJ did not find those other diagnoses to be "severe impairments," at this juncture his finding as to the lack of objective findings could only have been directed to the fact that Dr. Christian diagnosed plaintiff with fibromyalgia.
5

- 20 -

1 rheumatologist and pain management specialist, the ALJ relied upon 2 the fact that Dr. Christianson's April 16, 2005 handwritten 3 notation does not mention "trigger point tenderness[.]6" Id. 4 (citation omitted) (footnote added). Generally citing to 50 pages

5 of Dr. Christianson's records, the ALJ found that "the objective 6 physical findings substantiating [plaintiff's] subjective 7 complaints [we]re minimal[.]" 8 Id.

There is a near consensus of medical opinion as to plaintiff's Plaintiff's primary treating physician,

9 diagnosis of fibromyalgia.

10 as well as her pain management specialist and her rheumatologist, 11 all diagnosed her with fibromyalgia. 12 272; 303; 368; and 371-372. See e.g., Admin. R. at 243;

The State's non-treating physician,

13 Dr. Cunningham, more broadly diagnosed plaintiff with "[c]hronic 14 pain syndrome with limited range of motion of the cervical spine 15 . . . due to subjective pain." Id. at 183. Moreover, fibromyalgia

16 was among the "impairments" which the ALJ found to be "severe in 17 combination," and that is not disputed. See id. at 26. Thus, the

18 court is left to conclude that because the ALJ found that Dr. 19 Christianson's records did not include objective physical findings 20 of fibromyalgia, the ALJ discounted that doctor's opinions as to 21 some of plaintiff's physical limitations and her overall inability 22 to work. Significantly, however, "courts have found it error for

23 an ALJ to discount a treating physician's opinion as to resulting 24 limitations due to a lack of objective evidence for fibromyalgia." 25 Belmont v. Astrue, 2009 WL 2591347, at *17 (E.D.Cal. Aug. 21, 2009) 26 27 28
As earlier noted, fibromyalgia "is diagnosed based on widespread pain with tenderness in at least eleven of eighteen sites known as trigger points." Hanson, 2009 WL 349138, at * 1 n.4 (citations and internal quotation marks omitted).
6

- 21 -

1 (citing cases). 2 Compounding that error and further hindering this court's

3 review is that, despite the foregoing, the ALJ agreed with Dr. 4 Christianson as to many of plaintiff's limitations. For example,

5 mirroring Dr. Christianson's findings on his Medical Source 6 Statement, the ALJ found that plaintiff should not be required to 7 "crawl[], crouch[], climb[], squat[] or kneel[]." 8 see also id. at 305. Admin. R. at 29;

Evidently the ALJ also gave credence to Dr.

9 Christianson's opinion that plaintiff "need[ed] to alternate 10 standing and sitting[]" in that he found that she "requires a 11 sit/stand option[.]" Id. at 304 (emphasis omitted); and at 29. 12 Yet, by finding that plaintiff had an RFC "to perform unskilled 13 light work[,]" the ALJ implicitly rejected other aspects of Dr. 14 Christianson's opinion such as plaintiff's severe fatigue and her 15 limitations in walking, i.e. "[l]ess than 2 hours in an 8 hour 16 day[.]" See id. at 305; and 304. Thus, similar to Belmont, the ALJ

17 did "not explain why he accepted certain portions" of the treating 18 physician's opinion, despite a purported lack of objective 19 findings, while electing to reject others for that same reason. 20 See Belmont, 2009 WL 2591347, at *17. Hence, the ALJ's decision,

21 based upon the purported lack of objective findings in Dr. 22 Christianson's records, to accept part of his opinions, but reject 23 others, is inherently inconsistent. Perhaps those internal

24 inconsistencies could have been explained adequately if the ALJ had 25 provided specific and legitimate reasons supported by substantial 26 record evidence for rejecting Dr. Christianson's opinions. 27 explained below, the ALJ did not do that. 28 Moreover, because the ALJ did not give controlling weight to - 22 But, as

1 Dr. Christianson's opinions, it was incumbent upon him to weigh 2 those opinions "using all of the factors provided in 20 C.F.R. 3 § 404.1527[,]" and set forth earlier. See Orn, 495 F.3d at 632

4 (citations and internal quotation marks omitted) (emphasis 5 omitted). The ALJ did not do that either. He "did not undertake

6 to examine any factors other than the overall state of the evidence 7 of record[.]" See Cota, 2009 WL 900315. Such a cursory review does

8 not comport with 20 C.F.R. § 404.1527 and the Social Security 9 Rulings and case law construing it. This is yet another error in

10 the ALJ's consideration of the opinions of plaintiff's primary 11 treating physician. 12 Further, as noted at the outset, the ALJ did not make a

13 discrete determination that Dr. Christianson's opinions 14 contradicted those of the other physicians. The record shows,

15 though, that Drs. Christianson and Cunningham contradicted each 16 other at nearly every step of the way as to plaintiff's physical 17 limitations.7 18 19 20 21 22 23 24 25 26 27 28
These contradictions are best shown through a side-by-side comparison of Dr. Cunningham's Medical Source Statement with that of Dr. Christianson. In addition to his general finding that plaintiff was "unable to do physical labor" and that she was "physically disabled for employment[,]" Dr. Christianson found that plaintiff had a number of physical restrictions or limitations. Admin. R. At 272. Dr. Christianson indicated that plaintiff can only "occasionally" lift/carry "less than 10 pounds[,]" but that she "frequently" can lift/carry that same weight. Id. at 303 (emphasis omitted). In contrast, Dr. Cunningham opined that plaintiff could "[o]ccasionally" lift/carry "50 pounds[,]" and that she could "[f]requently" lift/carry "25 pounds[.]" Id. at 184. Dr. Christianson also indicated that plaintiff had "limitations in standing and/or walking[,]" opining that plaintiff could do so for "[l]ess than 2 hours in an 8 hour day[.]" Id. at 304. Likewise, Dr. Christianson noted that plaintiff could sit for only half an hour in an eight hour day. Id. These opinions are markedly different from those of Dr. Cunningham who found that plaintiff had no limitations whatsoever in standing, walking or sitting. Id. at 184; and 185. Drs. Christianson and Cunningham also gave contradictory opinions as to plaintiff's ability to kneel, crouch and crawl. The former concluded that that plaintiff could "never" kneel; only "occasionally (no more than 2 hrs/day)" crouch; and "never" crawl. Id. at 305. On the other hand, Dr. Cunningham found that plaintiff could "occasionally crawl, and frequently kneel and crouch[.]" Id. at 27; see also id. at 185. Dr. Christianson additionally found that plaintiff had a host of other
7

Of equal if not more import is that the former,

- 23 -

1 plaintiff's treating physician and the latter, the State agency's 2 non-treating physician, gave controverting opinions as to 3 plaintiff's disability. Basically, Dr. Christianson opined that Compare

4 plaintiff is unable to work and Dr. Cunningham disagreed. 5 Admin. R. at 181-186 with Admin. R. at 272; and 303-307. 6

One example of this contradictory evidence is particularly The last paragraph of

7 significant in the context of fibromyalgia.

8 the pre-printed Medical Source Statement states: "If your patient 9 suffers from severe fatigue and cannot complete an 8 hour day or 40 10 hour workweek, please comment on what findings you have based this 11 conclusion." Id. at 305 (emphasis omitted). Dr. Christianson

12 agreed with that assessment of plaintiff's condition, commenting 13 that he based that conclusion on his findings of "pain & weakness." 14 Id. By not commenting on that pre-printed Statement, Dr.

15 Cunningham reached the opposite conclusion ­ plaintiff did not 16 "suffer[] from severe fatigue and [could] complete" a standard 17 workweek. 18 See id. at 186.

Despite those contradictory opinions, the ALJ did not

19 "set[]out a detailed and thorough summary of the facts and 20 conflicting clinical evidence, stating his interpretation thereof, 21 and making findings." See Orn, 495 F.3d at 632 (citation omitted).

22 Instead, the ALJ merely "offer[ed] his conclusions[,]" which is not 23 sufficient in this Circuit. See id. Absent from the ALJ's decision

24 are "his own interpretations and explain[ations] why they, rather 25 26 27 28
restrictions or limitations regarding other activities, such as climbing, stooping and reaching, whereas Dr. Cunningham found just the opposite ­ plaintiff had no limitations. Compare id. at 185 with id. at 305. Thus, although the ALJ did not identify any conflicts in the medical evidence, the record is replete with contradictions between plaintiff's treating physician and Dr. Cunningham.

- 24 -

1 than the doctors', are correct."

See id.

These deficiencies are

2 magnified here because, to reiterate, despite agreeing with 3 plaintiff's primary treating physician that she had numerous 4 physical limitations, the ALJ found that plaintiff was not disabled 5 and had the RFC "to perform unskilled light work[.]" Admin. R. at 6 29. 7 The court recognizes "that a determination of a claimant's

8 ultimate disability is reserved to the Commissioner, and that a 9 physician's opinion is not determinative." See Belmont, 2009 WL At the same time

10 2591347, at *18 (citing 20 C.F.R. § 404.1527(e)).

11 though, "the Ninth Circuit has commented that it does not 12 distinguish between a medical opinion as to physical condition and 13 a medical opinion on the ultimate issue of disability." 14 (citation omitted). 15 Administration: 16 17 18 19 `[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.' Thus, the fact that Dr. Id.

Indeed, according to the Social Security

20 Id. (quoting SSR 96-5p) (emphasis added).

21 Christianson's opined, as the ALJ reiterated, that plaintiff "was 22 physically disabled from employment[,]" as she had a significant 23 number of physical limitations, see Admin. R. at 27 (citation 24 omitted), did "not relieve the ALJ of the burden of offering 25 specific and legitimate reasons for rejecting the opinion." See

26 id.; see also Detwiler v. Astrue, 2009 WL 4624979, at *4 (C.D.Cal. 27 Dec. 7, 2009) (citing, inter alia, Lester, 81 F.3d at 830)) ("If 28 the treating physician's opinion on the issue of disability is - 25 -

1 controverted, the ALJ must still provide `specific and legitimate 2 reasons' supported by substantial evidence in the record in order 3 to reject the treating physician's opinion.") 4 not do that here. 5 To be sure, the ALJ was not overtly dismissive of plaintiff's Again, the ALJ did

6 fibromyalgia diagnosis and attendant functional limitations. 7 Nonetheless, because the ALJ failed to provide specific, legitimate 8 reasons for his conclusions as to the opinions of plaintiff's 9 primary treating physician. Therefore, "[p]laintiff is entitled to

10 summary judgment on [her] claim that the ALJ failed to properly 11 credit the opinions of [her] treating physician." See Ballard v.

12 Astrue, 2009 WL 3126282, at *8 (E.D.Cal. Sept. 23, 2009). 13 14 B. Adverse Credibility Determination

Next, plaintiff challenges the ALJ's finding that her

15 "allegations" as to "the severity and extent of her pain [were] not 16 entirely credible." Admin. R. at 29. From plaintiff's standpoint,

17 "[t]he ALJ's failure to set forth sufficient reasons for rejecting 18 [her] subjective complaint testimony warrants a remand for an award 19 of benefits." Reply (doc. 35) at 15 (citation omitted). Asserting

20 that the record "is replete with inconsistencies[,]" the 21 Commissioner retorts that the ALJ properly evaluated plaintiff's 22 credibility and the court should not second-guess the ALJ's 23 negative credibility finding. 24 Cross-Mot. Memo. (doc. 27) at 11:1.

"Pain of sufficient severity caused by medically diagnosed

25 `anatomical, physiological, or psychological abnormalit[y]' 26 may serve as the basis for a finding of disability." Cisneros v.

27 Astrue, 2008 WL 2977459, at *5 (C.D.Cal. 2008) (quoting 42 U.S.C. 28 § 423(d)(5)(A)) (other citation omitted). - 26 Indeed, "[i]n

1 determining a claimant's RFC, an ALJ must consider all relevant 2 evidence in the record, including, inter alia, medical records, 3 . . . , and `the effects of symptoms, including pain, that are 4 reasonably attributed to a medically determinable impairment.'" 5 Robbins, 466 F.3d at 883 (quoting SSR 96-8p, 1996 WL 374184, at *5) 6 (other citations omitted). "Moreover, SSR 96-8p directs that

7 `[c]areful consideration' be given to any evidence about symptoms 8 `because subjective descriptions may indicate more severe 9 limitations or restrictions than can be shown by medical evidence 10 alone.'" Id. (quoting SSR 96-8p, 1996 WL 374184, at *5). That

11 said, "[a]n ALJ is not required to believe every allegation of 12 disabling pain or other non-exertional impairment." Orn, 495 F.3d At the

13 at 635 (citation and internal quotation marks omitted).

14 same time though, the court recognizes that "pain is a highly 15 idiosyncratic phenomenon, varying according to the pain threshold 16 and stamina of the individual[.]" Howard v. Heckler, 782 F.2d

17 1484, 1488 (9th Cir. 1986) (citation omitted). 18 "In evaluating the credibility of a claimant's testimony

19 regarding subjective pain," an ALJ must "engage in a two-step 20 analysis." Vasquez, 572 F.3d at 591 (citation omitted). In the

21 first step, the ALJ must "determine whether the claimant has 22 presented objective medical evidence of an underlying impairment 23 which could reasonably be expected to produce the pain or other 24 symptoms alleged." 25 omitted). Id. (citation and internal quotation marks

This does not require the claimant "to show that her

26 impairment could reasonably be expected to cause the severity of 27 the symptom she has alleged; she need only show that it could 28 reasonably have caused some degree of the symptom." - 27 Id. (internal

1 quotation marks and citations omitted).

Consequently, "the ALJ may

2 not reject subjective symptom testimony . . . simply because there 3 is no showing that the impairment can reasonably produce the degree 4 of symptom alleged." Lingenfelter v. Astrue, 504 F.3d 1028, 1036

5 (9th Cir. 2007) (citations and internal quotation marks omitted) 6 (emphasis added by Lingenfelter Court). 7 If the claimant meets this threshold, and there is no evidence

8 of malingering, at step two "the ALJ can reject the claimant's 9 testimony about the severity of the symptoms only if she gives 10 specific, clear and convincing reasons for the rejection." Id.

11 (citation and internal quotation marks omitted) (emphasis added). 12 That standard, "the most demanding required in Social Security 13 cases[,]" Moore v. Comm'r of Social Sec. Admin., 278 F.3d 920, 924 14 (9th Cir. 2002), mandates that the ALJ "cit[e] the reasons why the 15 [claimant's] testimony is unpersuasive." Orn, 495 F.3d at 635 "`General

16 (citation and internal quotation marks omitted).

17 findings are insufficient; rather, the ALJ must identify what 18 testimony is not credible and what evidence undermines the 19 claimant's complaints.'" Jimenez v. Astrue, 2009 WL 2589780, at * 3 20 (C.D.Cal. Aug. 21, 2009) (quoting Reddick, 157 F.3d at 722) (other 21 citation omitted); see also Smolen, 80 F.3d at 1284 ("The ALJ must 22 state specifically which symptom testimony is not credible and what 23 facts in the record lead to that conclusion.") 24 To illustrate, the Ninth Circuit in Vasquez held that the ALJ

25 did not satisfy the clear and convincing standard because she "made 26 no specific findings in support of her conclusion that Vasquez's 27 claims were not credible, other than the vague allegation that they 28 were `not consistent with the objective medical evidence.'" - 28 -

1 Vasquez, 572 F.3d at 592 (footnote omitted).

As Vasquez clearly

2 shows, an ALJ's "credibility determination" must be based upon 3 "findings sufficiently specific to permit the court to conclude 4 that the ALJ did not arbitrarily discredit claimant's testimony." 5 Tommasetti, 533 F.3d at 1039 (citation and internal quotation marks 6 omitted). 7 The Ninth Circuit has identified a number of legitimate

8 factors an ALJ can employ in weighing a claimant's credibility as 9 to symptoms. Those factors "includ[e] (1) ordinary techniques of

10 credibility evaluation, such as the claimant's reputation for 11 lying, prior inconsistent statements concerning the symptoms, and 12 other testimony by the claimant that appears less than candid; (2) 13 unexplained or inadequately explained failure to seek treatment or 14 to follow a prescribed course of treatment; and (3) the claimant's 15 daily activities." 16 omitted). Id. (citations and internal quotation marks

"[T]he ALJ must also consider the factors set out in SSR

17 88-13[,]" which "include the claimant's work record and 18 observations of treating and examining physicians and other third 19 parties regarding, among other matters, the nature, onset, 20 duration, and frequency of the claimant's symptom; precipitating 21 and aggravating factors; functional restrictions caused by the 22 symptoms; and the claimant's daily activities." Smolen, 80 F.3d at

23 1284 (citation and footnote omitted) (emphasis added); see 24 generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406-01; SSR 25 88-13. 26 Before considering the legal sufficiency of the ALJ's stated

27 reasons for discrediting plaintiff Santiago's pain allegations, the 28 court is compelled to address the ALJ's initial, broader finding. - 29 -

1 More particularly, the ALJ found that "the allegations of 2 [plaintiff], with regard to the severity and extent of her pain, 3 are not entirely credible." Admin. R. at 29 (emphasis added).

4 This "phrase implies that the ALJ found some of plaintiff's 5 statements credible or that he found some or all of her statements 6 credible to some degree." See Stutter v. Astrue, 2009 WL 2824740, Nowhere,

7 at *5 (E.D.Cal. Sept. 1, 2009) (footnote omitted).

8 however, did the ALJ "specify any statements [by plaintiff] that he 9 found to be not credible, either in whole or in part. See id.

10 The court is thus left to guess exactly what parts of plaintiff's 11 pain allegations the ALJ credited and what he rejected in order to 12 determine her RFC. See id. at *5 n. 3. The ALJ's rejection of

13 plaintiff Santiago's subjective pain allegations is certainly not 14 specific and clear, as this Circuit requires. 15 In the present case, the ALJ identified three specific

16 "facts[,]" discussed below, as justification for partially 17 discounting plaintiff's pain allegations. Admin. R. at 29. The

18 ALJ did not, however, discuss plaintiff's subjective complaint 19 testimony in terms of the Ninth Circuit's two-step analysis 20 outlined earlier. Nevertheless, the court is able to infer that That inference arises from "the ALJ's

21 step one is met here.

22 finding (at step two of the sequential evaluation process) that 23 Plaintiff suffered from a medically determinable impairment[.]" 24 See Coleman v. Astrue, 2009 WL 2424676, at * 8 (N.D.Cal. Aug. 7, 25 2009). That step two finding "leads the Court to infer that the

26 ALJ concluded that Plaintiff had presented medical evidence that 27 [s]he suffered an underlying impairment that might cause the kinds 28 of symptoms about which Plaintiff testified." - 30 See id.; see also

1 Cisneros, 2008 WL 2977459, at *6 (citing Smolen, 80 F.3d at 1282) 2 ("[I]mplicit in the ALJ's acceptance of plaintiff's allegations 3 regarding her symptoms and limitations . . . , is a determination 4 that plaintiff's underlying impairments could reasonably produce 5 some degree of the symptom alleged by plaintiff.") Indeed,

6 evidently the parties have come to the same conclusion as they 7 agree that the first step in analyzing plaintiff's credibility is 8 satisfied here. 9 33) at 9:23-28. 10 Given that implicit finding, and because he did not cite to See Cross-Mot. Memo. (doc. 27) at 8-9; Reply (doc.

11 any evidence of malingering,8 the issue becomes whether the ALJ 12 provided "specific, clear and convincing reasons" for his adverse 13 credibility finding as to plaintiff Santiago. See Vasquez, 572

14 F.3d at 591 (citation and internal quotation marks omitted). 15 "`[G]iven the nature of fibromyalgia, . . . subjective pain 16 complaints play an important role in the diagnosis and treatment of 17 the condition[.]'" See Hardt v. Astrue, 2008 WL 349003, at *4 Thus,

18 (D.Ariz. Feb. 6, 2008) (quoting Rogers, 486 F.3d at 248).

19 "`providing justification for discounting a claimant's statements 20 [of subjective pain] is particularly important[]'" where, as here, 21 a claimant has been diagnosed with fibromyalgia. 22 Rogers, 486 F.3d at 248). 23 In the present case, the ALJ offered three specific "facts" as See id. (quoting

24 the basis for discounting plaintiff's pain testimony: (1) lack of 25 "obvious pain behavior[;]" (2) lack of ongoing treatment for pain; 26 27 28
The ALJ did not make any specific finding of malingering by plaintiff; perhaps that is because there is no record evidence suggesting that she was doing so.
8

- 31 -

1 and (3) her ability to perform certain activities of daily living. 2 Admin. R. at 29 (citation omitted). The court will address each in

3 turn to decide whether individually or collectively they meet the 4 clear and convincing standard for discrediting plaintiff's 5 subjective pain testimony. 6 7 1. Lack of "Obvious Pain Behavior"

In discrediting plaintiff's pain allegations, the ALJ relied

8 upon Dr. Watkins "indicat[ion] during his evaluation that no obvious 9 pain behavior was noted[.]" Admin. R. at 29 (citing [Admin. R. at 10 187]). It is possible, as does the plaintiff, to construe this

11 aspect of the ALJ's decision as discrediting her testimony "because 12 it is not substantiated affirmatively by objective medical 13 evidence." See Robbins, 466 F.3d at 883 (citations omitted). That

14 is an impermissible basis for discrediting plaintiff's testimony, 15 however. See id.; see also Shehan v. Astrue, 2009 WL 2524573, at *2

16 (C.D.Cal. 2009) (citing, inter alia, Lingenfelter, 504 F.3d at 17 1035-36) ("[O]nce a claimant has presented medical evidence of an 18 underlying impairment, the ALJ may not discredit the claimant's 19 testimony regarding subjective pain and other symptoms merely 20 because the symptoms, as opposed to the impairments, are unsupported 21 by objective medical evidence.") That is especially so where, as

22 here, the ALJ "effectively requir[ed] objective evidence for a 23 disease that eludes such measurement[]" ­ namely, fibromyalgia. 24 Benecke, 379 F.3d at 594 (citation and internal quotation marks 25 omitted). Indeed, the Ninth Circuit in Benecke held that the ALJ See

26 erred by imposing that requirement on a claimant with fibromyalgia, 27 pointedly noting that "[s]heer disbelief is no substitute for 28 substantial evidence." Id. - 32 -

1

There is another equally compelling reason why the ALJ's cite

2 to Dr. Watkin's isolated comment is not an adequate basis for 3 discrediting plaintiff's credibility. 4 psychology. 5 doctor. Dr. Watkins has a Ph.D. in He is not a medical

PSOF (doc. 17) at 9, ¶ 17:13-14.

Consistent with his area of specialization, and as his

6 report and follow-up documentation for the state of Arizona show, 7 Dr. Watkins was evaluating "[p]laintiff's mental functioning[,]" as 8 opposed to her physical symptoms. See PSOF (doc. 17) at 9, ¶ 27

9 (emphasis added); and DSOF (doc. 26) at 8, ¶ 20; and AR at 187-196. 10 Understandably then, Dr. Watkins did not conduct a physical 11 examination of plaintiff. Thus, Dr. Watkin's passing observation as

12 to plaintiff's lack of "obvious pain behavior" at his one-time 13 evaluation of her "mental functioning" is not a specific, clear and 14 convincing reason for rejecting plaintiff's subjective complaints of 15 pain. 16 17 2. Pain Treatment

The second reason the ALJ proffered for discounting plaintiff's

18 pain testimony is that she was "not currently involved in any 19 ongoing modality for chronic pain, such as epidural injections, 20 biofeedback, acupuncture, or the use of a TENS [transcutaneous 21 electrical nerve stimulation] unit." Admin. R. at 29. In a similar

22 vein, the ALJ mentioned plaintiff's "self-discharge[] from physical 23 therapy after five visits[.]" Id. (citation omitted). From the

24 ALJ's perspective, "if [plaintiff] had pain at the level alleged, 25 she would be seeking some method of pain relief."9 26 27 28
At this point, the ALJ did not specify the level of pain which plaintiff allegedly had. Evidently the ALJ was referring to his earlier summation of plaintiff's testimony where he noted that plaintiff "stated that she has constant pain in her whole body, including pain throughout her spine." Admin. R.
9

Id.

The ALJ

- 33 -

1 made this last observation despite his awareness that plaintiff was 2 "taking prescribed pain medications, and "ha[d] undergone some 3 manipulative therapy[.]" Id. Thus, as the court construes the

4 ALJ's decision, he rejected plaintiff's pain testimony because in 5 his view her treatment was conservative10, consisting primarily of 6 pain medication. 7 Dr. Doust, with The Pain Center of Arizona, recounts that

8 plaintiff "tried numerous medications to address her fibromyalgia 9 including Vicodin, Percocet, Robaxin, tramadol, Flexeril, Neurontin, 10 numerous non steroidal anti[-]inflammatory drugs and other muscle 11 relaxants with little to no change in her pain symptoms." 12 368. Additionally, Dr. Doust prescribed OxyContin. Id. at

Id. at 369.

13 The record corroborates plaintiff's ongoing management of her pain 14 with medication, as Dr. Doust noted. 15 278; 281; 366; and 368-69. See, e.g., id.. at 253; 276;

The record also shows that to alleviate

16 her pain plaintiff "tried physical therapy and osteopathic 17 manipulation which helped temporarily." 18 374-375. 19 Despite the foregoing, when reporting to Dr. Doust, plaintiff Id. Id. at 368; see also id. at

20 uniformly rated her pain level as ten on a scale of one to ten. 21 at 340; 366; 370; and 373.

During her visits to Dr. Doust plaintiff

22 further reported that her pain had "been occurring more 23 frequently[,]" with "[t]ypical episodes . . . longer than before." 24 25 26 27 28
at 25. "The Ninth Circuit has characterized `conservative treatment' as, for example, `treat[ment] with an over-the-counter pain medication[,]' Parra v. Astrue, 481 F.3d 472, 751 (9th Cir. 2007), or a physician's failure `to prescribe . . . any serious medical treatment for [a claimant's] supposedly excruciating pain.'" Huerta v. Astrue, 2009 WL 2241797, at *4 n.2 (C.D.Cal. July 22, 2009) (quoting Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999)).
10

- 34 -

1 Id. 370 and 373.

Viewing the record as a whole shows that plaintiff

2 was in continuous treatment for her pain for at least two years with 3 her primary treating physician. See id. at 260-305. During that

4 time, on several occasions plaintiff also consulted a rheumatologist 5 and a pain specialist about her pain. 6 342; and at 366-375. Id. at 240-259; and at 339-

Plaintiff's pain symptoms were never

7 completely alleviated however, and, at best, she would have 8 temporary moments with some reprieve from pain. As Dr. Doust

9 described it, plaintiff reported that her "pain is constant, 10 increasing with activity and improving somewhat with rest and her 11 current medications" which included OxyContin and Percocet. 12 3642 and 369 13 "Failure to seek relief from pain is probative of credibility Id. at

14 because `a person's normal reaction is to seek relief from pain, and 15 because modern medicine is often successful in providing some 16 relief.'" O'Neil, 2009 WL 1444437, at *8 (quoting Orn, 495 F.3d at 17 638) (other citation omitted). Hence, when a "claimant complains

18 about disabling pain but fails to seek treatment, or fails to follow 19 prescribed treatment for the pain, an ALJ may use such failure as a 20 basis for finding the complaint unjustified or exaggerated." 21 495 F.3d at 638 (citation omitted). Orn,

Additionally, "a conservative

22 course of treatment can undermine allegations of debilitating pain," 23 but that "fact is not a proper basis for rejecting the claimant's 24 credibility where the claimant has a good reason for not seeking 25 more aggressive treatment." 26 omitted). 27 Plaintiff claims that the ALJ improperly discredited her pain Carmickle, 533 F.3d at 1162 (citation

28 testimony because she was not receiving pain treatment with any of - 35 -

1 the modalities which the ALJ identified.

The court agrees although

2 for different reasons than plaintiff advances.11 3 When plaintiff's treatment is assessed in the context of

4 fibromyalgia, which the ALJ did not do, it is apparent that although 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 36 Plaintiff asserts that the ALJ's finding as to her lack of current pain treatment "is not supported in law or fact." Mot. (doc. 18) at 12:4. Somewhat ironically, the same could be said of