Beckstrom v. Astrue

Filing 20

ORDER that judgment in this matter is hereby entered in favor of Plaintiff and against Defendant. The Clerk of the Court shall enter separate judgment accordingly. IT IS FURTHER ORDERED that this matter is remanded to the Commissioner of the Social Security Administration for an immediate award of benefits. Signed by Magistrate Judge Mark E Aspey on 3/30/11. (KMG)

Beckstrom v. Astrue

Doc. 20

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

LYNN ANN BECKSTROM, Plaintiff, v.

MICHAEL J. ASTRUE, Commissioner of Social 12 Security,
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Defendant. ______________________________

) ) ) ) ) ) ) ) ) ) ) ) )

CIV 10-08123 PCT MEA MEMORANDUM & ORDER

The parties have consented to have all proceedings in this case conducted before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. Plaintiff, Ms. Lynn Beckstrom, proceeding pro se,

brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration, Defendant Astrue (the "Commissioner"), denying Defendant Michael claim for

Plaintiff's

disability insurance benefits and for Supplemental Security income ("SSI") benefits, pursuant to Title II of the Social

Security Act, codified at 42 U.S.C. §§ 401-433.

Dockets.Justia.com

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I

Procedural History

On January 18, 2005, Plaintiff filed an application for disability benefits and supplemental security income benefits, alleging she became disabled on July 15, 2004. See

Administrative Record on Review ("R.") (Doc. 18 & Doc. 19) at 21 & 71. Plaintiff stated she had been living in Page, Arizona, Id. at 80. The claim was denied initially, on Id. at 71.

since 1994.

August 5, 2005, and on appeal, on March 1, 2006.

Plaintiff requested a hearing before an Administrative Law Judge, which was conducted in Minnesota on July 16, 2007. Plaintiff was represented by a non-attorney at the hearing. Id. at 21. In a decision issued December 27, 2007, the ALJ Id.

concluded Plaintiff was not disabled and denied benefits. at 18.

Plaintiff sought review of this decision, which was

denied by the Social Security Appeals Council on May 13, 2010. Id. at 7. The date that Plaintiff was last insured for

disability insurance benefits was March 31, 2008. II Standard of review

Id. at 21.

The Court's jurisdiction extends to review of the final decision of Defendant denying Plaintiff's application for Social Security disability benefits and SSI benefits, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Judicial review of a decision of the Commissioner is based upon the pleadings and the record of the contested The

decision.

See 42 U.S.C. § 405(g) (2003 & Supp. 2010).

scope of the Court's review is limited to determining whether the Commissioner, i.e., the ALJ, applied the correct legal standards to Plaintiff's claim and whether the record as a whole
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contains substantial evidence to support the ALJ's findings of fact. See id. § 423; Bray v. Commissioner of Soc. Sec. Admin.,

554 F.3d 1219, 1222 (9th Cir. 2009); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); Bustamante v. Massanari, 262 F.3d 949, 953 (9th Cir. 2001). However, if an ALJ's legal error was harmless,

i.e., if there is substantial evidence in the record to support the ALJ's conclusion on the challenged issue absent the legal error, the case need not be remanded for further proceedings. See, e.g., Carmickle v. Commissioner, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008); Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). Satisfying the substantial evidence standard requires more than a scintilla but less than a preponderance of record evidence. See, e.g., Bray, 554 F.3d at 1222; Ryan v.

Commissioner of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Orn, 495 F.3d at 630; Bustamante, 262 F.3d at 953. Substantial

evidence has been defined as the amount of relevant evidence a reasonable conclusion. mind would accept as adequate to support a

See, e.g., Widmark v. Barnhart, 454 F.3d 1063, 1066

(9th Cir. 2006); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). Evidence is insubstantial if it is overwhelmingly

contradicted by other evidence in the administrative record. See Threet v. Barnhart, 353 F.3d 1185, 1189 (10th Cir. 2003); Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983); Cullen v. Astrue, 480 F. Supp. 2d 1258, 1262 (D. Kan. 2007); Robison v. Barnhart, 316 F. Supp. 2d 156, 163 (D. Del. 2004); Rodriguez v. Barnhart, 252 F. Supp. 2d 329, 332 (N.D. Tex. 2003); Rieder v.
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Apfel, 115 F. Supp. 2d 496, 501 (M.D. Pa. 2000). If the evidence with regard to an issue is in

equipoise, the Court must affirm the decision of the ALJ.

See,

e.g., Bray, 554 F.3d at 1222, quoting Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001); Gwathney v. Chater, 104 F. 3d 1043, 1045 (8th Cir. 1997); Books v. Chater, 91 F. 3d 972, 977-78 (7th Cir. 1996); Casey v. Secretary of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). III Statement of the Law

The Court's jurisdiction extends to review of the final decision of Defendant denying Plaintiff's application for Social Security disability benefits and SSI benefits, pursuant to 42 U.S.C. §§ 405(g). In a Social Security disability benefits

case, the plaintiff does not have a duty to "prosecute" their claims in order to obtain judicial review of an administrative decision, except to file a timely complaint. Judicial review of

the denial of Social Security benefits is authorized by section 1383(c)(3), and section 405(g), which provides in pertinent part: Any individual, after any final decision of the Secretary made after a hearing to which he was a party, ... may obtain a review of such decision by civil action ... brought within the district court of the United States for the judicial district in which the plaintiff resides.... As a part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decisions complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a
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judgment affirming, modifying, or reversing the decision of the Secretary, with or without remand.... The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive .... (emphasis added). Accordingly, once the complaint and a copy of the record are filed, the Court has before it all that is necessary to enter a judgment to on the merits. whether It there is is the Court's

responsibility

determine

substantial

evidence to support the ALJ's decision and whether the ALJ applied the correct legal standard when denying benefits.

Although the Court may afford the parties an opportunity to file additional briefs or motions in support of their positions, the Court is not required to order such pleading. Plaintiff has filed a complaint asserting the ALJ's decision was in error. of the Social In response, the Defendant Commissioner Administration has filed the

Security

Administrative Record on Review. In this particular matter, the Court concludes that requiring briefing would not be helpful in resolving the issue before the Court and, accordingly, in the interest of judicial efficiency no briefing has been ordered or filed. The federal government provides disability benefits under two programs administered by the SSA. []. Title II (SSDI) of the Social Security Act ("Act"), 42 U.S.C. §§401 et seq., provides benefits to persons with mental or physical disabilities, and Title XVI (SSI) of the Act, 42 U.S.C. § 1381 et seq., provides benefits to indigent persons with disabilities. Kildare v. Saenz, 325 F.3d 1078, 1080 (9th Cir. 2003).
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The

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statutory promulgated

definitions by the

of

disability Security

and

the

regulations for

Social

Administration

determining disability governing these two programs are, in all aspects relevant to the matter before the Court, substantively identical. See, e.g., Mickles v. Shalala, 29 F.3d 918, 924 n.2 Federal regulations prescribe the same five-

(4th Cir. 1994).

step "sequential evaluation" for making the SSI disability determination as for a determination pursuant to Title II. See

20 C.F.R. §§ 404.1520, 416.920 (2010); Bowen v, City of New York, 476 U.S. 467, 470, 106 S. Ct. 2022, 2025 (1986).1 To establish eligibility for disability benefits under the Social Security Act, the claimant must show that: (1) she suffers from a medically determinable physical or mental

impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months, see 42 U.S.C. § 423(d)(1)(A) (2003 & Supp. 2010); and (2) the impairment renders the claimant

incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. § 423(d)(2)(A). See id.

If a claimant meets both of these requirements, See Tackett v. Apfel, 180 F.3d

she is by definition "disabled." 1094, 1098 (9th Cir. 1999).

The primary difference between the two benefits programs is that, to be eligible for Title II disability benefits, the claimant must demonstrate they were "disabled" on or before the date they are or were "last insured" for these benefits. See, e.g., McCartey v. Massanari, 298 F.3d 1072, 1077 n.7 (9th Cir. 2002); Ball v. Massanari, 254 F.3d 817, 819 (9th Cir. 2001). -6-

1

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The

Social

Security

Administration

regulations

prescribe a five-step sequential process for determining whether a claimant is "disabled." See 20 C.F.R. § 404.1520 (2010). If

a claimant is found to be "disabled" or "not disabled" at any step in the sequential process, there is no need to proceed to the subsequent step(s). See id.

First, the claimant must establish she is not gainfully employed at the time of her application. See id. §

404.1520(a)(4)(i).

Next, the claimant must be suffering from a

"medically severe" impairment or "combination of impairments." Id. § 404.1520(a)(4)(ii). The third step is to determine

whether the claimant's impairment meets or equals one of the "listed" impairments included in Appendix 1 to this section of the Code of Federal Regulations. See id. § 404.1520(a)(4)(iii). If the claimant's impairments meet or equal one of the

impairments listed in Appendix 1, the claimant is conclusively "disabled." the ALJ to See id. The fourth step of the process requires whether the claimant, despite her

determine

impairment, can perform work similar to work she has performed in the past. allows her A claimant whose "residual functional capacity" to perform be "past denied relevant work" despite See id. her §

impairments,

will

benefits.

404.1520(a)(4)(iv). The claimant bears the burden of proving disability with regard to the first four steps of the evaluation. See

Valentine v. Social Security Admin., 574 F.3d 685, 689 (9th Cir. 2009); Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995). If the claimant cannot perform her past relevant work, at step
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five the burden shifts to the Commissioner to demonstrate the claimant can perform other substantial gainful work that exists in the national economy, given her residual functional capacity. See 20 C.F.R. § 404.1520(a)(4)(v) (2009); Valentine, 574 F.3d at 689; Tackett, 180 F.3d at 1098. When assessing a claimant's residual functional

capacity, the Commissioner must consider the record opinions of physicians. Social Security Administration regulations

distinguish among the opinions of three types of physicians regarding a claimant's residual functional capacity: (1) those who treat the claimant (the "treating" physicians); (2) those who examine but do not treat the claimant (the "examining" physicians); and (3) those who neither examine nor treat the claimant, but who review the claimant's file, usually at the behest of the Social Security Administration (the "nonexamining" or "reviewing" physicians). See 20 C.F.R. § 404.1527(d) (2010); Valentine, 574 F.3d at 692; Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, in determining whether a claimant

is disabled, i.e., in assessing a claimant's residual functional capacity, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's. See

20 C.F.R. § 404.1527(d) (2010); Valentine, 574 F.3d at 692; Lester, 81 F.3d at 830. The Social Security Administration

regulations also instruct adjudicators to give greater weight to medical opinions that are explained than to those that are not explained, see 20 C.F.R. § 404.1527(d)(3) (2010), and to the opinions of specialists concerning matters relating to their
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specialty

over

those

of

nonspecialists.

See

id.

§

404.1527(d)(5).

See also Holohan, 246 F.3d at 1201-02; Saelee

v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). Notably in this matter, an ALJ must provide "specific, cogent reasons," supported by substantial evidence in the

record, for disbelieving a claimant's statements regarding the claimant's own functional capacity. Bunnell, 947 F.2d at 345. See Lester, 81 F.3d at 834;

See also Jernigan v. Sullivan, 948 Unless there is affirmative

F.2d 1070, 1073 (8th Cir. 1991).

evidence indicating that the claimant is actually malingering, the ALJ's reasons for rejecting the claimant's testimony must be clear and convincing. See Lester, 81 F.3d at 834; Swenson v.

Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). The ALJ must specifically identify what portion of the testimony in the record is credible and what testimony

undermines the claimant's statements regarding the severity of their limitations. See Lester, 81 F.3d at 834; Dodrill v. "To find the

Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

claimant not credible the ALJ must rely either on reasons unrelated to the subjective testimony (e.g., reputation for dishonesty), on conflicts between [the claimant's] testimony and [their] own conduct, or on internal contradictions in that testimony." Cir. 1997). To determine whether the claimant's testimony regarding the severity of her symptoms is credible, the ALJ may consider, for example: (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony
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Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th

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by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities. In evaluating the credibility of the symptom testimony, the ALJ must also consider the factors set out in [Social Security Ruling] 88-13. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (internal citations omitted). An ALJ may not discredit a claimant's testimony

regarding her pain "solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell, 947 F.2d at 346-47). 96-7p, 61 Fed. Reg. 34483, See also Social Security Ruling 34485 (July 2, 1996) ("An

individual's statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence."). IV Statement of Facts testified about her disabilities at a At

Plaintiff

hearing in St. Cloud, Minnesota, conducted in July of 2007. the hearing Plaintiff was represented by a

Disability

Specialist. Plaintiff alleged she became disabled in 2004, when she was 35 years of age. The ALJ noted Plaintiff had applied

for both SSI and disability insurance benefits and that she was insured for disability benefits through March 31, 2008. 1175. Plaintiff was seen at a clinic in Onamia, Minnesota, operated by the Mille Lacs Health System, from January of 2004
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R. at

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through October of 2006. physician's assistant,

Plaintiff was seen, inter alia, by a Mr. Dominick, and physicians Cathy

Donovan and Roger Boettcher.

Plaintiff was treated for, inter

alia, fibromyalgia, chronic fatigue, thyroid issues, gastric reflux issues, migraine headaches, and polycystic dysfunction. Plaintiff's treating chiropractic physician, Dr.

Minser, completed a Medical Source Statement of Ability to do Work-related Activities in March of 2005. At that time Dr. Dr. Minser

Minser had treated Plaintiff since May of 2001.

opined that Plaintiff's medical condition imposed limitations lasting longer than 12 months. Id. at 815. The doctor opined

that Plaintiff could only occasionally lift 20 pounds and frequently lift 10 pounds. The doctor concluded that Plaintiff

could stand or walk at least two hours but less than six hours in an eight-hour workday and that Plaintiff could sit for four or five hours in a workday. The doctor stated Plaintiff needed The

to alternate standing and sitting every 20 or 30 minutes.

doctor opined Plaintiff could frequently balance, stoop, kneel, reach and grasp but only occasionally crouch and crawl. The

doctor further stated Plaintiff should not work around heights, moving machinery, or excessive noise. Thomas Dominick, Id. at 817. treating physician's

Plaintiff's

assistant, completed a Fibromyalgia Residual Functional Capacity Questionnaire on November 20, 2005. Id. at 506. He noted he

had examined Plaintiff once or twice a month and that she met the American Rheumatological Society criteria for fibromyalgia. Mr. Dominick stated that Plaintiff also suffered from chronic fatigue and that her prognosis was guarded. Mr. Dominick stated
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that Plaintiff's condition was expected to last at least twelve months. In response to the question "Is your patient a He

malingerer?" Mr. Dominick replied "No."

Id. at 502.

reported that Plaintiff's experience of symptoms was severe enough to interfere with attention and concentration frequently and that Plaintiff had moderate limitations in dealing with work stress. Mr. Dominick opined Plaintiff could walk for four blocks and that she could sit or stand for 20 minutes at one time. He stated Plaintiff could sit and stand or walk for a

total of four hours per eight-hour workday. He stated Plaintiff would need to take unscheduled breaks hourly during the workday for 10 to 20 minutes at a time. He opined Plaintiff could only He

occasionally carry 10 pounds and never more than 10 pounds.

stated Plaintiff could spend only 10 percent of the time during an eight-hour workday using her hands, fingers, and arms. Additionally, Mr. Dominick stated Plaintiff would have good days and bad days and that she would be likely to be absent from work more than three days per month. Id. at 505.

In December of 2005 a licensed psychologist, Ms. Holden, noted she had treated Plaintiff from April of 2004 through July of 2005. Ms. Holden diagnosed Plaintiff as

suffering from Post Traumatic Stress Disorder (PTSD) and major depression. Id. at 508. Ms. Holden noted that, on November 4,

2005, Plaintiff was assessed with severe anxiety and that she was having severe memory problems and serious energy problems. Id. Ms. Holden opined that she had serious reservations
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about

[Plaintiff's]

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ability to be in regular attendance at work; complete a normal workday without experiencing terror that would immobilize her; remember work-like procedures due to her memory problems. I also have concerns about her ability to perform at a competitive rate; handle detailed instruction; and maintain sustained attention and concentration. Id. Ms. Holden completed a Medical Opinion Re: Ability to do Work-related Activities (Mental), on November 8, 2005. at 512-13. Id.

She noted Plaintiff's memory problems and that She opined Plaintiff could not

Plaintiff had panic attacks.

remember work-like procedures, maintain regular attendance, or complete a normal workday and workweek without interruptions from psychologically-based symptoms. Id.

Ms. Holden's treatment notes dated May 11, 2005, state that Plaintiff was discouraged, lonely, fatigued and worried about her health. ... She reports having the anxious physical symptoms of dizziness, shortness of breath, racing heart, restlessness, tight muscles, shaking, numbness, butterflies and sweating and hot flashes. ... She reports doing quite well in Arizona until the father of her child showed up on her doorstep one day and then the anxiety increased immensely. She never returned to the home after this man showed up at her house. Id. at 514. Treatment notes dated August 22, 2005, indicate

Plaintiff had lived "in multiple women's shelters for the last two months." Id. at 514.

A reviewing psychologist, Ms. Johnson, completed a Mental Status Examination Activities of Daily Living Assessment for the Minnesota Social Security Disability Determination
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Services on February 1, 2006.

Id. at 529.

She noted that

Plaintiff was being treated for fibromyalgia by Dr. Gordon and Mr. Dominick, and that Plaintiff was taking Ultram. "A neurology consultation from CentraCare She noted dated

Clinic

07/30/2004 supports Ms. Beckstrom's report of fibromyalgia." Id. Ms. Beckstrom has a history of treatment for anxiety, depression, and PTSD. Ms. Beckstrom denied a history of depression or of treatment for depression. She readily acknowledges that she has had difficulty with anxiety since 1990, and was diagnosed with [PTSD]. She said she was physically abused by her first husband and the father of her daughter... She is in counseling with Sister Marie Donahue at Catholic Charities in St. Cloud, Minnesota. She currently takes 50 mg of Trazodone to address her interval insomnia. ... Id. at 529-30. Plaintiff reported to Ms. Johnson that she could only sit for fifteen to twenty minutes at a time without becoming "very sore" and that it was painful to hold a book. Plaintiff

stated that she could only look at a computer for fifteen to twenty minutes before she needed to change positions. Plaintiff reported that laundry and vacuuming are very painful for her... She stopped driving in October because of her health problems. ... She indicated that she has days where she has `flare-ups' and cannot go about her daily routine. She said she could not tell me how often these flare-ups occur and interfere in her schedule. Id. at 530. Dr. Johnson noted "[Ms. Beckstrom] has had EMDR

treatment for the PTSD and that her symptoms are somewhat
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improved.

She did not give any examples of the PTSD symptoms

interfering significantly with her daily functioning however." Id. at 532. Dr. Johnson concluded:

Based on her level of social/emotional functioning, I believe that Ms. Beckstrom has the ability to understand, remember, and follow through with instructions consistently. I believe that she has mild impairment in her ability to sustain attention and concentration due to residual anxiety related to [PTSD]. I believe she has the ability to carry out work-like mental tasks with reasonably persistence and pace, interact appropriately with coworkers and supervisors, and tolerate workplace stress. Id. at 533. Dr. Boettcher, a physician at the Mille Lacs Health System clinic, completed a Fibromyalgia Residual Functional Capacity Questionnaire on November 20, 2006. treated Plaintiff since March 7, 2006. He stated he had He opined

Id. at 1044.

Plaintiff's impairments could be expected to last at least one year. Id. at 1044. In response to the question "Is your

patient a malingerer?", Dr. Boettcher answered "Yes," and noted "tendency esp[ecially] [with regard to] psych issue". 1045. On February 6, 2007, Dr. Mark Gordon, a treating physician who worked at th Sister Kenny Sports & Physical Therapy Center in Minneapolis, completed a Fibromyalgia Residual Functional Capacity Questionnaire. Id. at 1163. Dr. Gordon Id. at

noted Plaintiff had been to 41 visits at the clinic since December of 2005. In response to the question "Is your patient Dr. Gordon concluded:

a malingerer?" Dr. Gordon answered "No."

"In my professional opinion, based on Ms. Beckstrom's chronic
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condition, that she currently is not able to sustain competitive employment, days/month." that is, work 8 hours/day, not missing 2-3

Id. at 1166.

At the hearing before the ALJ in late 2007 Plaintiff testified that she has two Associates degrees, in natural resource management and health education, and a Bachelor of Science degree in Community Health. Plaintiff testified she had worked for the United States Forest Service for "[f]ive or six years which would be seasonal, maybe working six to eight months out of the year.... I was hiking eight miles plus a day in the Black Hills. It was very physical." Id. at 1184. Plaintiff

testified she had last worked as a driver for a home health services organization in Minnesota, and that she could no longer work this job because she could no longer drive as part of a full-time job. previously positions. Id. at 1180-88, 1194-95. for numerous Plaintiff also in numerous

worked

organizations

Id. at 64-75 (earning statement 1992 through 2004).

At the hearing Plaintiff's representative noted that Plaintiff's treating physicians and physicians assistant, Dr. Boettcher, Mr. Dominick, and Dr. Gordon, had all "completed fibro RFCs that" indicated Plaintiff's residual functional capacity "would prevent competitive employment." Id. at 1178.

Plaintiff testified she had not worked since July of 2004 and that she drove twice a week to physical therapy and chiropractor appointments. Plaintiff testified that her pain Plaintiff without

increased if she drove more than twice a week. testified that she could only drive ten

minutes

experiencing back pain.

Plaintiff stated that she had recently
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stopped oral medication and was getting injections.

Plaintiff

testified that "before I can go get injections, I'm kind of out for a few days just resting and laying around." Id. at 1182.

Plaintiff testified that when she walked for ten minutes her knees and feet hurt and her "left hip goes out." She testified that "after walking, I get really sharp pains in my hip and leg area." Id. at 1185. Plaintiff testified that

she had a daughter, who was seven at the time of the hearing, and that she was a single parent. Plaintiff testified that she

needed help with house-cleaning, help with the laundry, and help taking care of her daughter. Id. at 1187.

Plaintiff testified that pool therapy had helped and that taking Geritol had helped her energy level, although her doctor believed her energy level was still low. Id. at 1188.

Plaintiff testified that she had been taking Nexium for reflux but that she thought that medication was causing migraine headaches so she had ceased taking Nexium. Id. at 1190.

Plaintiff testified that, although she could manipulate her neck through a range of motion in the doctor's office, there were days when she could not keep her head up because of neck and shoulder pain. Id. at 1194. Plaintiff stated that, after

driving, she experienced numbness in her hands and forearms. Id. at 1194. Plaintiff stated that she wore braces at night to Id. at 1192.

address that issue.

Plaintiff testified that, in addition to driving, writing, holding a pen, and doing laundry also aggravated the pain in her hands and forearms. Id. at 1198. Plaintiff

testified her doctor had given her a prescription for a wheeled
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walker with a seat because she was unable to stand in line when grocery shopping. Plaintiff fibromyalgia and Id. at 1199. averred: this muscle "I think with, I mean, has this

pain

exhaustion

affected

everything in my life and I think with almost everything I do things differently than what I used to." Id. at 1199-1200.

Plaintiff stated that, in order to alleviate her health issues, she used a TENS unit, wore tinted sunglasses, wore a thoracic brace, used a device to elevate her dirty dishes when washing them to avoid pain from leaning over into the sink, and used a foot stool when sitting, including at the hearing, to alleviate lower back pain. Plaintiff testified that she could alternate

sitting and standing for about two hours at a time, but then needed to lay down. Id. at 1201. Plaintiff testified that, if

she did not nap during the day, she experienced migraine headaches. Id. at 1201-02.

Plaintiff testified that she had decreased her hours at her last employment, with the Mille Lacs Public Health Department, because she had been missing work due to illness. Id. at 1194. Plaintiff testified that she had experienced dizzy spells and exhaustion. In addition to her physical symptoms Plaintiff stated that she had experienced spousal abuse and suffered from posttraumatic stress syndrome. Plaintiff testified that she

occasionally did not feel safe and that she was often anxious. Plaintiff stated that she had experienced a panic attack which caused her to "pack[] up, my daughter and I, we left for two weeks to stay at a hotel." Id. at 1195.
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Plaintiff testified

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that in May of 2005 she had moved from Minnesota to Page, Arizona, and stayed in a women's shelter. Id. at 1196.

The ALJ concluded that Plaintiff suffered from the severe impairments of fibromyalgia, a thyroid disorder, a pain disorder, headaches, post-traumatic stress disorder, and a general anxiety disorder. Id. at 23. The ALJ determined that

none of Plaintiff's impairments or combination of impairments met or equaled one of the listed impairments. The ALJ concluded Plaintiff had Id. at 24. the residual

functional capacity to perform light work.

The ALJ determined

Plaintiff could lift 20 pounds occasionally and 10 pounds frequently, stand and walk for up to six hours out of an eight hour day, sit for up to six hours out of an eight hour day, with the ability to change positions from sitting to standing up every 15 minutes, with no repetitive power gripping or tasks that involve writing, in an environment with no gases, fumes, strong fragrances, soaps, cleaning supplies, or tires, perform tasks involving 3 to 4 steps, with only routine changes in the work environment and only brief and superficial contact with coworkers, supervisors, and the public. The ALJ stated: ..the undersigned must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to do basic work activities. For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the undersigned must make a finding on the credibility of the statements based on a consideration of the entire case record. Because a claimant's symptoms can sometimes
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Id. at 25.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
2

suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 CFR 404.1529(c)2 and 416.929(c) describe the kinds of evidence, including the factors below, that the undersigned must consider in addition to the objective medical evidence when assessing the credibility of the claimant's statements... Id. at 26. The ALJ then reviewed Plaintiff's medical records and psychological treatment records from July of 2004 through May of 2007. Id. at 27-29. The ALJ determined:

Although the claimant alleges that she is disabled secondary to fibromyalgia, a thyroid disorder, chronic neck and back pain, headaches, and a post traumatic stress disorder, the record documents that the claimant's fibromyalgia symptoms improved with treatment and physical therapy and that she experienced no significant ongoing neurological losses or ongoing losses in the range of motion of her joints. The record also documents that after her fibromyalgia symptoms had improved the claimant was able to stop taking her pain medication, and that she experienced significant periods of time when she did not experience a flair in her fibromyalgia symptoms. In addition, the record documents that the claimant's headaches (sic) symptoms were generally well controlled with medication. Furthermore, as noted above in the evaluation of the claimant's mental impairments, the claimant
(i) Your daily activities; (ii) The location, duration, frequency, and intensity of your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; (v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms; (vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms. -20-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

experienced only mild to moderate symptoms secondary to her mental impairments. Consequently, the Administrative Law Judge finds that the claimant's impairments are inconsistent with total disability, but rather, that they are fully consistent with the residual functional capacity stated above. Id. at 30. The ALJ gave some weight to the March 21, 2005, opinion of Dr. Minser, Plaintiff's treating chiropractic

physician, regarding Plaintiff's residual functional capacity because his opinion was generally consistent with the objective evidence in the record. However, the ALJ did not give Dr.

Minser's opinion significant weight because the ALJ had further reduced Plaintiff's residual functional capacity "to accommodate the claimant's subjective complaints." Id. at 30. The ALJ did

not give significant weight to the opinion of Mr. Dominick, Plaintiff's treating physicians assistant, dated November 30, 2005, because his opinion appeared "to be based largely on the claimant's own reports of her symptoms and pain, and they are inconsistent with the objective evidence in the record, which indicates that the claimant's symptoms improved with treatment." Id. at 30. The November licensed issues, 2005 ALJ did not of give Ms. significant weight to the

opinion

Holden,

Plaintiff's

treating

psychologist, because own "they

regarding appear of to her

Plaintiff's be based

psychological on the are

largely and

claimant's

reports

symptoms,

they

inconsistent with the objective evidence in the record, which indicates that the claimant experienced only mild to moderate
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

symptoms secondary to her mental impairments." The ALJ did not give significant

Id. at 31. weight to Dr.

Boettcher's November 2006 assessment because "they appear to be based largely on the claimant's own reports of her symptoms and pain. In addition, they are inconsistent with the objective

evidence in the record, which indicates that the claimant's symptoms improved with treatment." The ALJ did not give Id. at 31. significant weight to the

February 2007 opinion of Dr. Gordon that Plaintiff was unable to sustain competitive employment because "it is inconsistent with the objective evidence in the record, which indicates that claimant's fibromyalgia symptoms improved with treatment. ..." and because the opinion was based on Plaintiff's own reports of her symptoms and pain, and because the assessment was

inconsistent with treatment notes of October 16, 2006. 31. The ALJ further stated: [I]n the evaluation of the claimant's mental impairments, the claimant's daily activities are inconsistent with total disability, but rather, they are fully consistent with the residual functional capacity stated above. The record does not document that the claimant reported any ongoing medication side effects to her treating physician. Consequently, the Administrative Law Judge did not further reduce the claimant's residual functional capacity to accommodate medication side effects. Id. at 31. Finally, the undersigned considered the claimant's work history, as required by 20 C.F.R. 404.1529. The claimant's earnings record documents earnings that are consistent with mainly part time and minimal part time employment. This may indicate a
-22-

Id. at

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

lack of interest or need for full time employment on the part of the claimant and suggests that her underemployment may be unrelated to her impairments. After considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible. Id. at 31-32. V Analysis The Court concludes that there was not substantial evidence in the record to support the ALJ's conclusions.

Additionally, the ALJ committed an error of law by discounting the opinions of Plaintiff's treating physicians without The ALJ

enunciating clear and convincing reasons for doing so.

also erred by finding that Plaintiff was not credible regarding the limitations that her physical and mental problems placed on her ability to do work-related tasks without evidence of

malingering or clear and convincing reasons for rejecting her testimony. The ALJ erred with regard to his determination of Plaintiff's capacity The ALJ reviewed the evidence in the record, including Plaintiff's statements that her problems were disabling, and the medical evidence. The ALJ noted that Plaintiff's physical credibility regarding her residual functional

symptoms improved with treatment, and stated: After considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible. The ALJ did not make a specific finding that Plaintiff was malingering. However, the ALJ did discount the opinions of

Plaintiff's treating physicians, inter alia because they were based on Plaintiff's reports of her pain and disability. In evaluating the credibility of a claimant's testimony regarding subjective pain, an ALJ must engage in a two-step analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. The claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom. If the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives "specific, clear and convincing reasons" for the rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal citations and quotations omitted), citing Lingenfelter v.

Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ concluded that Plaintiff suffered from, inter alia, the serious medical condition of fibromyalgia. Where, as

here, there is no dispute as to the claimant's underlying physical impairments, in order to reject a claimant's subjective testimony as to pain an ALJ must provide "clear and convincing reasons," Carmickle v. Commissioner of the Soc. Sec. Admin.,

533 F.3d 1155, 1160 (9th Cir. 2008), that rest on findings "sufficiently specific to allow a reviewing court to conclude
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the adjudicator rejected the claimant's testimony on permissible grounds." Bunnell, 947 F.2d at 345. See also Thomas v.

Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). When deciding whether to accept a claimant's testimony concerning subjective symptoms, an ALJ must perform two stages of analysis. medical The ALJ must determine if there is objective of an underlying impairment which could

evidence

reasonably produce the pain or other alleged symptoms.

The ALJ

in this matter concluded Plaintiff did have such an impairment, i.e., fibromyalgia, in addition to migraine headaches and posttraumatic stress disorder. Accordingly, if there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. The ALJ did not cite any evidence of malingering, and the only indication of malingering was the single physician who opined Plaintiff exaggerated her mental disabilities; notably, this physician had not treated Plaintiff for the same length of time as the other opining physicians and psychologist and this physician concluded Plaintiff was physically disabled.

Accordingly, any implicit or less than specific findings by the ALJ denigrating Plaintiff's credibility were not in accordance with legal requirements. See Vasquez, 572 F.3d at at 592.

Because the ALJ made no finding that Plaintiff was malingering, he was required to give clear and convincing reasons in support of his adverse credibility finding. 883. See Robbins, 466 F.3d at

This clear and convincing standard "is the most demanding Moore v. Commissioner of

required in Social Security cases."
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002).

To

support a finding that Plaintiff's report of her limitations was lacking credibility, the ALJ was required to "point to specific facts in the record which demonstrate that [Plaintiff] is in less pain than she claims." 918 (9th Cir. 1993). The ALJ did not give specific, clear, and convincing reasons for rejecting Plaintiff's testimony about the severity of her symptoms. testimony Neither The ALJ's reasons for discounting Plaintiff's her ALJ's limitations findings were not convincing. Plaintiff's Dodrill v. Shalala, 12 F.3d 915,

regarding were the

regarding

credibility supported by substantial evidence. The ALJ erred by finding that Plaintiff was not

credible regarding the extent of her symptoms because her testimony evidence." Plaintiff. was "not consistent with the objective medical

This is an insufficient reason for disbelieving "[A] finding that the claimant lacks credibility

cannot be premised wholly on a lack of medical support for the severity of the [impairments]." Light, 119 F.3d at 792. See

also Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); 20 C.F.R. § 404.1529(c)(2); SSR 96-7p, 1996 WL 374186, at *1. An

ALJ may not "discredit the claimant's testimony as to subjective symptoms merely because they are unsupported by objective

evidence."

Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir.

2004) (quotation omitted). To evaluate credibility, an ALJ must "consider the entire case record and give specific reasons for the weight given to the individual's statements." The ALJ must look to a number
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SSR 96-7p. determine

of

factors

to

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

credibility in addition to the objective medical evidence, the claimant's daily activities, allegations of pain, aggravating factors, types of treatment received and medication taken, and relevant character evidence. Orteza, 50 F.3d at 750; Prochaska

v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006). Neither are the ALJ's findings saved by the citation to 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3). Both

regulations deal with evidence the Commissioner should consider in determining how a claimant's symptoms may affect her capacity to function under the guidelines; neither describe what findings are required before an ALJ can reject a claimant's allegations of disabling pain. When evaluating the credibility of a

claimants subjective complaints of pain, an ALJ must consider the factors listed in SSR 88-13: 1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain; 2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions); 3. Type, dosage, effectiveness, and adverse side-effects of any pain medication; 4. Treatment, other than medication, for relief of pain; 5. Functional restrictions; and 6. The claimant's daily activities. See Smolen, 80 F.3d at 1284. The ALJ should also consider an

"unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment," in addition to "ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid."
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Id.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Additionally, the fact that Plaintiff's fibromyalgia symptoms responded to treatment, allowing her to at least occasionally discontinue use of pain medications generally in favor of trigger-point injections, is not sufficient to find Plaintiff's descriptions of the extent of her limitations not credible at the time of the hearing. See Bauer v. Astrue, 532

F.3d 606, 609 (7th Cir. 2008) (noting a claimant may appear to be doing better at certain points without undermining her claim of disability); Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir. 1996). The ALJ erred in his application of the treating physician rule The ALJ did not accept the opinions of Plaintiff's treating physicians assistant, Mr. Dominick, and the opinion of Dr. Gordon, a treating physician and physical therapist, and Plaintiff's treating psychologist, Ms. Holden, and Plaintiff's treating residual chiropractor, functional Dr. Minser, to do regarding Plaintiff's tasks.

capacity

work-related

Specifically, the ALJ did not accept these individuals' opinions that Plaintiff's fibromyalgia pain, migraine headaches, chronic fatigue, and her PTSD symptoms, would not allow her to achieve regular attendance at competitive employment. A treating physician's opinion regarding a claimant's residual functional capacity is generally due controlling weight in the determination of that issue. See 20 C.F.R. §

404.1527(d)(2).

If the treating physician's opinion is not

contradicted by other medical opinions, the ALJ must give clear and convincing reasons supported by substantial evidence in the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

record for declining to give the treating physician's opinion controlling weight on the issue of functional capacity. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). See If

the treating physician's opinion is contradicted by another doctor, the opinion can be rejected by the ALJ only if the ALJ provides "specific and legitimate reasons supported by

substantial evidence in the record."

Lester, 81 F.3d at 830; The

Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001).

ALJ can meet this burden of substantial evidence by "providing a detailed summary along of a the facts and conflicting clinical thereof."

evidence,

with

reasoned

interpretation

Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989). The Plaintiff's ALJ failed to support his discrediting her of

treating

physicians,

including

physical

therapist and physicians assistant, with clear and convincing reasons supported by substantial evidence in the record. The

ALJ discounted the opinions of Plaintiff's treating physicians based on Plaintiff's reports to those physicians of pain and disability, the same reports which the ALJ improperly discounted in the context of Plaintiff's testimony at the hearing.

Plaintiff's complaints were not been properly discounted because there are no legitimate inconsistencies in her reports of her symptoms, no evidence suggesting she is lying about the

limitations caused by her fibromyalgia, migraine headaches, gastrointestinal symptoms, severe fatigue and PTSD, and there is no evidence in the record of any malingering. 80 F.3d at 1284. See Smolen,

"[A] patient's report of complaints, or

history, is an essential diagnostic tool" in fibromyalgia cases,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and a treating physician's reliance on such complaints "hardly undermines his opinion as to [the claimant's] functional

limitations."

Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d

Cir. 2003) (internal punctuation and citation omitted). The medical opinions of Plaintiff's treating

physicians were supported by medically acceptable diagnostic techniques and were not inconsistent with other substantial evidence in the record. Dr. Gordon's, Dr. Donovan's, Dr.

Johnson's, Dr. Minser's and Mr. Dominick's opinions were not conclusory or unsupported. The administrative record on appeal

runs to some 1200 pages, including extensive clinical findings and progress notes regarding Plaintiff's completely consistent rendition of her symptoms, medical treatments, and tests

undertaken in an effort for Plaintiff's physicians to identify and treat her fibromyalgia pain, migraines, panic attacks, fatigue, gastrointestinal reflux, and fluctuating liver enzyme issues. The ALJ does not proffer adequate justifications for discrediting physicians. reason for the medical opinions of Plaintiff's treating

The Court also finds unpersuasive the ALJ's stated discounting the treating physicians' opinions,

namely, that the limitations they suggested were based on Plaintiff's subjective statements. The federal courts have

recognized that fibromyalgia "often lacks medical or laboratory signs, and is generally diagnosed mostly on an individual's described symptoms," and that the "hallmark" of fibromyalgia is therefore "a lack of objective evidence." 405 F.3d 1208, 1211 (11th Cir. 2005).
-30-

Moore v. Barnhart, See also Benecke v.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (concluding the ALJ erred by "effectively requiring objective evidence for a disease that eludes such measurement"); Sec., 486 F.3d 234, 243 Rogers v. Commissioner of Soc. Cir. 2007) (stating that

(6th

"fibromyalgia patients present no objectively alarming signs"); Green-Younger, 335 F.3d at 108; Sarchet, 78 F.3d at 306. The

lack of objective clinical findings is, at least in the case of fibromyalgia, therefore insufficient alone to support an ALJ's rejection of a treating physician's opinion as to the claimant's functional capacity. This is not a case in which different treating doctors have offered varied opinions. Compare Hamilton v. Astrue, 518

F.3d 607, 611-12 (8th Cir. 2008) (treating doctor's opinion conflicted with another doctor's treatment notes). Nor did the

ALJ rely on a consultative physician's assessment to discount the treating physicians' opinions. Compare id., 518 F.3d at

611-12 (concluding that the findings of consultative doctor served as some evidence to discredit the opinion of the treating doctor's opinion). The fact that on some doctor visits Plaintiff reported that her pain had improved, does not mean Plaintiff retained the ability to work as of the date last insured. Fibromyalgia is

an elusive diagnosis, "[i]ts cause or causes are unknown, there's no cure, and, of greatest importance to disability law, its symptoms are entirely subjective." Sarchet, 78 F.3d at 306. Plaintiff has been diagnosed with fibromyalgia repeatedly and her treating physicians opined that her diagnosis complied with the American Rheumatological
-31-

Association's

criteria

for

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

diagnosing this disease. correspond directly with

Plaintiff's "subjective" complaints the disorder's characteristics:

"chronic widespread aching and stiffness, involving particularly the neck, shoulders, back, and hips, which is aggravated by the use of the affected muscles." (28th ed. 2006). The Credit as True rule When substantial the ALJ's in decision the record is or not is supported the result by of Stedman's Medical Dictionary 725

evidence

prejudicial legal error, whether to remand the matter for additional proceedings or whether to order an immediate payment of benefits is a matter within the Court's discretion. Benecke, 379 F.3d at 590. Evidence should be credited as true and an

action remanded for an award of benefits when: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence; (2) no outstanding issues remain that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were the rejected evidence credited as true. Id. at 593; Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). It is an abuse of discretion to remand for further

proceedings where, as in this matter, no further proceedings are necessary to make a disability determination and it is clear from the record that the claimant is entitled to benefits. Benecke, 379 F.3d at 596. When an Administrative Law Judge ("ALJ") makes an adverse credibility finding with respect to a witness' testimony in a Social Security case, he "must make specific findings
-32-

See

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

justifying that decision." (9th Cir. 1989).

Hammock v. Bowen, 879 F.2d 498, 502

According to the "credit-as-true rule," when

an ALJ fails to provide "specific, articulable reasons to support an adverse credibility finding," the Court should not remand solely to allow the ALJ to make specific findings regarding that testimony, but should "take that testimony to be established as true." dissenting). Vasquez, 572 F.3d at 598 (Hawkins, J.,

See also Lingenfelter, 504 F.3d at 1040-41; Applying the rule is not mandatory

Lester, 81 F.3d at 834.

when, even if the evidence at issue is credited, there are "outstanding issues that must be resolved before a proper disability determination can be made." 593. Vasquez, 572 F.3d at

The Court should remand when, for example, there is a as to when the disability began, crediting the

dispute

improperly discounted evidence as true.

Id. (concluding the

case must be remanded when "application of the [credit-as-true] rule would not result in the immediate payment of benefits."). See also Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). After applying the credit-as-true rule to Plaintiff's improperly discredited hearing testimony and Plaintiff's

treating physicians' opinions regarding Plaintiff's functional limitations, no outstanding issues remain to be resolved before determining that Plaintiff is entitled to benefits. The ALJ added facts mirroring posed to the the discredited vocational testimony expert to the when

hypothetical

("VE")

evaluating RFC. be able to work.

The VE responded that such a person would not Furthermore, the ALJ already had determined

that Plaintiff was insured for disability benefits through March
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

of 2008.

Because it is clear the ALJ would be required to find

Plaintiff disabled, see Benecke, 379 F.3d at 593-95, the Court concludes that Plaintiff is entitled to an immediate award of benefits. Accordingly, IT IS ORDERED that judgment in this matter is hereby entered in favor of Plaintiff and against Defendant. The Clerk of the Court shall enter separate judgment accordingly. IT IS FURTHER ORDERED that this matter is remanded to the Commissioner of the Social Security Administration for an immediate award of benefits. DATED this 30th day of March, 2011.

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