Mary Ann Parker v. Michael J Astrue

Filing 15

MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
12
13
14
15
16

MARY ANN PARKER,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,1
)
Commissioner of Social Security,
)
)
Defendant.
)
___________________________________)

NO. EDCV 11-01763-MAN
MEMORANDUM OPINION
AND ORDER

17
18

Plaintiff filed a Complaint on November 14, 2011, seeking review of

19

the denial by the Social Security Commissioner (“Commissioner”) of

20

plaintiff’s application for a period of disability and disability

21

insurance

22

consented, pursuant to 28 U.S.C. § 636(c), to proceed before the

23

undersigned United States Magistrate Judge.

The parties filed a Joint

24

Stipulation on July 11, 2012, in which:

plaintiff seeks an order

25

reversing

benefits

the

(“DIB”).

Commissioner’s

On

December

decision

19,

and

2011,

awarding

the

parties

benefits

or,

26
27
28

1

Carolyn W. Colvin became the Acting Commissioner of the Social
Security Administration on February 14, 2013, and is substituted in
place of former Commissioner Michael J. Astrue as the defendant in this
action. (See Fed. R. Civ. P. 25(d).)

1

alternatively, remanding for further administrative proceedings; and the

2

Commissioner requests that his decision be affirmed or, alternatively,

3

remanded for further administrative proceedings.

4
5

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

6
7

On March 6, 2008, plaintiff filed an application for a period of

8

disability and DIB, alleging an inability to work since March 11, 2006,

9

due to “Rt arm can’t push pull lift.

Very weak and bad spasms . . . .”

10

(Administrative Record (“A.R.”) 97-98, 99-100, 107.) Plaintiff has past

11

relevant work experience as a health assistant.

(A.R. 108.)

12
13

The Commissioner denied plaintiff’s application initially and upon

14

reconsideration.

(A.R. 51-60.)

On September 23, 2009, plaintiff, who

15

was represented by counsel, appeared and testified at a hearing before

16

Administrative Law Judge F. Keith Varni (the “ALJ”).

17

November 13, 2009, the ALJ denied plaintiff’s claim (A.R. 13-25), and

18

the Appeals Council subsequently denied plaintiff’s request for review

19

of the ALJ’s decision (A.R. 1-6, 11).

20

this action.

(A.R. 26-48.)

On

That decision is now at issue in

21
22

SUMMARY OF ADMINISTRATIVE DECISION

23
24

The ALJ found that plaintiff has not engaged in substantial gainful

25

activity since March 11, 2006, her application date.

26

ALJ determined that plaintiff has the severe impairment of “post-

27

surgical right shoulder impingement syndrome with subacromial bursitis

28

and rotator cuff tendonopathy,” but through the date last insured, she
2

(A.R. 18.)

The

1

did not have any impairment or combination of impairments that met or

2

medically equaled one of the listed impairments in 20 C.F.R. Part 404,

3

Subpart P, Appendix 1, the Listing of Impairments.

(Id.)

4
5

After reviewing the record, the ALJ determined that plaintiff has

6

the residual functional capacity (“RFC”) to perform less than a full

7

range of light work as defined in 20 C.F.R. 404.1567(b).

8

Specifically, the ALJ found that plaintiff can:

9

pounds occasionally and 10 pounds frequently; stand and/or walk six

10

hours in an 8-hour workday; sit for six hours in an 8-hour workday; and

11

occasionally reach above the shoulder with her right upper extremity.

12

(A.R. 18-19.)

(A.R. 18.)

lift and/or carry 20

13
14

The ALJ found that plaintiff’s past relevant work, as a school

15

health aide, does not require the performance of work-related activities

16

precluded

17

concluded that plaintiff has not been under a disability, as defined in

18

the Social Security Act, since March 11, 2006, the alleged onset date,

19

through December 31, 2008, the date last insured.

by

plaintiff’s

RFC.

(A.R.

21.)

Accordingly,

the

ALJ

(A.R. 22.)

20
21

STANDARD OF REVIEW

22
23

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s

24

decision to determine whether it is free from legal error and supported

25

by substantial evidence.

26

2007). Substantial evidence is “‘such relevant evidence as a reasonable

27

mind might accept as adequate to support a conclusion.’”

28

omitted).

Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.

Id. (citation

The “evidence must be more than a mere scintilla but not
3

1

necessarily a preponderance.”

Connett v. Barnhart, 340 F.3d 871, 873

2

(9th Cir. 2003).

3

substantial evidence, only those ‘reasonably drawn from the record’ will

4

suffice.”

5

2006)(citation omitted).

“While inferences from the record can constitute

Widmark

v.

Barnhart,

454

F.3d

1063,

1066

(9th

Cir.

6
7

Although this Court cannot substitute its discretion for that of

8

the Commissioner, the Court nonetheless must review the record as a

9

whole, “weighing both the evidence that supports and the evidence that

10

detracts from the [Commissioner’s] conclusion.”

Desrosiers v. Sec’y of

11

Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also

12

Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

13

responsible for determining credibility, resolving conflicts in medical

14

testimony, and for resolving ambiguities.”

15

1035, 1039 (9th Cir. 1995).

“The ALJ is

Andrews v. Shalala, 53 F.3d

16
17

The Court will uphold the Commissioner’s decision when the evidence

18

is susceptible to more than one rational interpretation.

19

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

20

review only the reasons stated by the ALJ in his decision “and may not

21

affirm the ALJ on a ground upon which he did not rely.”

22

at 630; see also Connett, 340 F.3d at 874.

23

the Commissioner’s decision if it is based on harmless error, which

24

exists only when it is “clear from the record that an ALJ’s error was

25

‘inconsequential to the ultimate nondisability determination.’” Robbins

26

v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v.

27

Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d

28

at 679.
4

Burch v.

However, the Court may

Orn, 495 F.3d

The Court will not reverse

1

DISCUSSION

2
3

Plaintiff alleges the following issues:

(1) whether the ALJ

4

properly considered fibromyalgia as a severe impairment; (2) whether the

5

ALJ properly considered the opinion of treating physician Paul Liu,

6

M.D.; (3) whether the ALJ properly considered plaintiff’s testimony; and

7

(4) whether the ALJ properly considered if plaintiff could perform her

8

past relevant work.

(Joint Stipulation (“Joint Stip.”) at 3.)

9
10

I.

The

11

ALJ

Failed

To

Properly

Consider

Plaintiff’s

Fibromyalgia As A Severe Impairment.

12
13

At step two of the sequential evaluation process, the ALJ is tasked

14

with

identifying

a

claimant’s

“severe”

impairments.

20

C.F.R.

§§

15

404.1520(a)(4)(ii), 404.1520(c).

16

“significantly limits [a claimant’s] physical or mental ability to do

17

basic work activities.”2

18

term “severe,” most circuits, including the Ninth Circuit, have held

19

that the step two inquiry is “a de minimus screening device to dispose

20

of groundless claims.”

21

1996).

22

be

A severe impairment is one that

20 C.F.R. § 404.1520(c).

Despite use of the

Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.

Accordingly, “[a]n impairment or combination of impairments may

found

‘not

severe

only

if

the

evidence

establishes

a

slight

23
24
25
26
27
28

2

Basic work activities are “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. § 404.1521(b). Examples of such
activities include:
(1) “[p]hysical functions such as walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling”; (2) the capacity for “seeing, hearing, and speaking”; (3)
“[u]nderstanding, carrying out, and remembering simple instructions”;
(4) the “use of judgment”; (5) “[r]esponding appropriately to
supervision, co-workers and ususal work situations”; and (6) “[d]ealing
with changes in a routine work setting.” Id.
5

1

abnormality that has no more than a minimal effect on [a claimant’s]

2

ability to work.’” Webb v. Barnhart, 433 F.3d 683, 686–87 (9th Cir.

3

2005)(citation omitted); see Soc. Sec. Ruling 85–28, 1985 WL 56856, at

4

*3, 1985 SSR LEXIS 19, at *9 (stating that “[a] claim may be denied at

5

step two only if . . . a finding [that the relevant impairments are not

6

medically severe] is clearly established by medical evidence”)(emphasis

7

added).

8
9

On July 2, 2008, Sanjay C. Bhakta, M.D., plaintiff’s treating

10

physician, noted that plaintiff had “diffuse myalgias/trigger point

11

pains suggestive of fibromyalgia . . . .”

12

2009, Dr. Bhakta recounted plaintiff’s symptoms of “persistent pains in

13

the right shoulder, hand and forearm, neck, and knee/ankle[] pains x 17

14

years”

15

250.) Upon physical examination, he noted that plaintiff had “[d]iffuse

16

tender

17

shoulders, elbows, medial knees and medial ankles . . . .”

and

“similar

points

over

milder

the

symptoms

posterior

(A.R. 275.)

on

the

occiput,

left

neck

On February 18,

side.”

anterior

(A.R.

chest,

(A.R. 251.)

18
19

At the referral of Dr. Bhakta, on February 20, 2009, Anthony Te-Hui

20

Lin, M.D., a rheumatologist,3 examined plaintiff for “diffuse pain, rule

21

out fibromyalgia.”

22

of “diffuse arthralgia involving [s]houlders, arms, neck, back and

23

legs.”

(A.R. 318.)

(A.R. 318-22.)

Dr. Lin noted plaintiff’s symptoms

Upon examination, Dr. Lin observed that plaintiff

24
25
26
27
28

3

“Rheumatology is the relevant specialty for fibromyalgia.”
Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th Cir. 2004); see Jordan
v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 872-73
(9th Cir. 2004) (overruled on other grounds in Abatie v. Alta Health &
Life Ins., 458 F.3d 955, 970 (2006).
“Specialized knowledge may be
particularly important with respect to a disease such as fibromyalgia
that is poorly understood within much of the medical community.” Id.
6

1

exhibited “14/18 tender points,” and he diagnosed her with fibromyalgia.

2

(A.R.

3

fibromyalgia.

319.)

He

proscribed

“flexeril

(cyclobenzaprine)”

for

the

(A.R. 320.)

4
5

On August 10, 2009, Dr. Lin noted that plaintiff had “tenderness

6

and stiffness at her tender points” and observed 12 tender points. (A.R.

7

292.)

8

arthritis or muscle weakness” and “[w]orkup for rheumatoid arthritis was

9

negative.”

10

He also noted that there was “no evidence of inflammatory

(A.R. 293.)

Dr. Lin assessed plaintiff with fibromyalgia

and rotator cuff syndrome.

(A.R. 292.)

11
12

On December 23, 2009, Dr. Lin again documented that plaintiff had

13

tenderness

at

12

tender

14

fibromyalgia as improved.

points.

(A.R.

358.)

He

assessed

her

(Id.)

15
16

On April 12, 2010, Dr. Bhakta noted that plaintiff’s fibromyalgia

17

was “inadequately controlled.”

(A.R. 332-34.)

He recommended that she

18

start a “trial of Vitamin B12 shots every 2 weeks for fibromyalgia.”

19

(Id.)

20
21

Plaintiff

testified

that

she

has

pain

in

both

her

upper

22

extremities, hips, legs, and feet, and she has muscle spasms.

(A.R. 38-

23

39.) She has pain “almost constantly.” (A.R. 39-40.) Plaintiff stated

24

that she was diagnosed with fibromyalgia approximately a year prior to

25

the hearing, but “all through the years I was told I had tendinitis.”

26

(A.R. 38.)

27

pounds, has difficulty sitting and standing for prolonged periods of

28

time, and needs to be reclined with her feet up a total of four hours in

As a result of her pain, she can only lift up to five

7

1

a day.

(A.R. 43-44.)

2
3

The ALJ proffered several reasons for finding that plaintiff’s

4

fibromyalgia was “not a severe impairment.”

(A.R. 20.)

First, the ALJ

5

stated that, although plaintiff has been diagnosed with fibromyalgia,

6

the “only basis for the diagnosis . . . appears to be diffuse myalgias

7

and tenderness at tender points,” and therefore, “without further

8

objective evidence, the diagnosis is questionable.”

9

reflects a lack of understanding of fibromyalgia and its diagnosis.

(Id.)

This reason

10
11

Fibromyalgia is not well-understood, its symptoms are subjective,

12

and it is difficult to diagnose.

13

that "fibromyalgia’s cause or causes are unknown, there is no cure, and

14

of greatest importance to disability law, its symptoms are entirely

15

subjective").

16

clinical or diagnostic evidence upon which a fibromyalgia diagnosis may

17

be based.

18

("[f]ibromyalgia

19

“[T]here are no laboratory tests for the presence and severity of

20

fibromyalgia."

21

objectively determinable signs of fibromyalgia does not mean that she

22

does not suffer from it.

There

generally

See Jordan, 370 F.3d at 872 (noting

is

very

little, if

any,

objective

See Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)
.

Id.

.

.

[is

an]

elusive

and

mysterious

disease").

Thus, the fact that plaintiff has only minimal,

23
24

Moreover, Dr. Lin’s findings of “diffuse arthralgia involving

25

[s]houlders, arms, neck, back, and legs” and “14/18 tender points”

26

reflects the principal diagnostic test for fibromyalgia. (A.R. 318-19.)

27

“‘[T]he only symptom that discriminates between [fibromyalgia] and other

28

diseases of a rheumatic character’ [are] multiple tender spots, more
8

1

precisely 18 fixed locations on the body (and the rule of thumb is that

2

the patient has to have at least 11 of them to be diagnosed as having

3

fibromyalgia) that when pressed firmly cause the patient to flinch.”

4

Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001)(quoting Sarchet,

5

78 F.3d at 306).

6
7

Second, the ALJ found that plaintiff’s fibromyalgia was not a

8

severe impairment, because the diagnosis was based on plaintiff’s

9

subjective complaints, which the ALJ found not to be fully credible.

10

(A.R. 20.)

However, as discussed below, the ALJ erred in finding that

11

plaintiff was not credible.

12
13

Third, the ALJ found fibromyalgia to be not a severe impairment,

14

because “no medical source describe[d] any limitations caused by the

15

fibromyalgia.”

16

regarding functional limitations caused by plaintiff’s fibromyalgia, the

17

ALJ

18

accordance with his duty to conduct an appropriate inquiry.

19

C.F.R.

20

additional evidence or clarification from your medical source when the

21

report . . . from your medical source contains a conflict or ambiguity

22

that must be resolved, [or] the report does not contain all the

23

necessary

24

constitutes error.

should

§

(A.R. 20.)

have

However, if the ALJ had any question(s)

recontacted

404.1512(e)

(noting

information”).4

plaintiff’s

that

Failure

the

to

treating

physicians

administration

develop

the

See 20

“will

record

in

seek

fully

25
26
27
28

4
At a minimum, and as properly noted by plaintiff, she had nonfunctional limitations, e.g., pain, for which she was prescribed
medication.

9

1

In sum, plaintiff’s testimony and the opinions of plaintiff’s

2

treating physicians demonstrates that plaintiff’s fibromyalgia would

3

have more than a minimal effect on her ability to function in the

4

workplace.

5

substantial evidence and constitute error.

The ALJ’s findings to the contrary are not based on

6
7

Moreover, contrary to defendant’s contention, the ALJ’s error

8

cannot be deemed harmless.

9

a claimant’s impairment at step two may be deemed harmless only when the
error

did

not

In general, an ALJ’s failure to acknowledge

10

ALJ’s

prejudice

a

claimant

at

later

steps

in

the

11

sequential evaluation process. In Burch, for example, the Ninth Circuit

12

assumed, without deciding, that the ALJ’s failure to discuss plaintiff’s

13

obesity in his step two analysis constituted legal error.

14

682.

15

harmless, because it would not have impacted the ALJ’s analysis at

16

either step four or five of the evaluation process.

17

Ninth Circuit found that, for purposes of step four, plaintiff failed to

18

point to any evidence of functional limitations due to her obesity that

19

would have impacted the ALJ’s analysis.

20

Ninth

21

“adequately considered [plaintiff’s] obesity in his RFC determination,”

22

i.e., there were no “functional limitations as a result of [plaintiff’s]

23

obesity that the ALJ failed to consider.”

24

Astrue, 498 F.3d 909, 911 (9th Cir. 2007)(finding that any error the ALJ

25

committed

26

harmless, because the ALJ “extensively discussed” plaintiff’s bursitis

27

and “considered any limitations posed by the bursitis at [s]tep 4”).

400 F.3d at

The Ninth Circuit concluded, however, that the assumed error was

Circuit

in

found

failing

that

to

no

list

Id. at 683.

prejudice

10

At step five, the

occurred,

because

the

ALJ

Id. at 684; see also Lewis v.

plaintiff’s

28

Specifically, the

bursitis

at

step

2

was

1

In this case, unlike in Burch and Lewis, the Court cannot conclude

2

that the ALJ’s failure to consider plaintiff’s fibromyalgia was harmless

3

error.

4

credibility.

5

testified, if credited, could have impacted the ALJ’s analysis at either

6

step four or five of the sequential evaluation process.

7

because the Court cannot conclude that plaintiff was not prejudiced at

8

a later step, the Court cannot find the ALJ’s step two error to be

9

harmless.

As discussed below, the ALJ improperly rejected plaintiff’s
Certainly the alleged limitations to which plaintiff

Accordingly,

See Stout, 454 F.3d at 1055 (finding an error to be harmless

10

when it “was nonprejudicial to the claimant or irrelevant to the ALJ’s

11

ultimate disability conclusion”).5

12
13
14
15
16

5
Defendant
argues that
plaintiff
failed to
establish
fibromyalgia as a severe impairment prior to her date last insured, and
thus, the ALJ need not have considered fibromyalgia as a severe
impairment. But this is a post hoc rationalization, which the Court
cannot consider. See, e.g., Orn, 395 F.2d at 630 (noting that the court
may “review only the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon which he did
not rely”); see also Connett, 340 F.3d at 874.

17
18
19
20
21
22
23
24
25
26

Plaintiff testified that she was given the diagnosis of
fibromyalgia just one year prior to the date of the hearing, but
previously she “was always told” she had tendinitis. “All through the
years I was told I had tendinitis. And I always wondered, you know, why
doesn’t it go away? Because I thought tendinitis . . . , you know, went
away.” (A.R. 38.)
Dr. Bhakta reported on February 18, 2009, that plaintiff:
notes persistent pains in the right shoulder, hand and
forearm, neck and knee/ankles pains x 17 years [--] s/p
surgery x 2 years ago for calcific tendonitis in the shoulder
[--] seen by Orthopedic Surgery Dept without benefit. Also
notes similar milder symptoms on the left side. Also notes
bilateral medial ankle and knee pains. [--]overall symptoms
are not improving and pt feels like she may have
Rheumatological problem like fibromyalgia vs. other [--]
requests to be seen by a Rheumatologist for further
evaluation.

27
28

(A.R. 250.)
Two days later, plaintiff was diagnosed by Dr. Lin as
suffering from fibromyalgia. It thus strains reason to suggest that
11

1

II.

The ALJ Failed To Give Clear And Convincing Reasons For

2

Finding Plaintiff’s Testimony To Be Not Credible.

3
4

Once a disability claimant produces objective medical evidence of

5

an underlying impairment that is reasonably likely to be the source of

6

claimant’s subjective symptom(s), all subjective testimony as to the

7

severity of the symptoms must be considered.

8

F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345

9

(9th Cir. 1991); see also 20 C.F.R. § 404.1529(a) (explaining how pain

Moisa v. Barnhart, 367

10

and other symptoms are evaluated).

11

malingering based on affirmative evidence thereof, he or she may only

12

find an applicant not credible by making specific findings as to

13

credibility

14

each.”

15

weighing

16

reputation

for

17

claimant’s

testimony

18

conduct; (3) the claimant’s daily activities; (4) the claimant’s work

19

record; and (5) testimony from physicians and third parties concerning

20

the nature, severity, and effect of the symptoms of which the claimant

21

complains.

22

2002); see also 20 C.F.R. § 404.1529(c).

and

stating

“[U]nless an ALJ makes a finding of

clear

and

Robbins, 466 F.3d at 883.
a

claimant’s

or

(2)

between

reasons

for

The factors to be considered in

credibility

truthfulness;

convincing

include:

(1)

inconsistencies

the

claimant’s

the

claimant’s

either

in

the

testimony

and

her

See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.

23
24
25
26
27
28

plaintiff’s fibromyalgia suddenly appeared.
(A.R. 318-22.) The fact
that Dr. Lin diagnosed fibromyalgia so quickly based upon plaintiff’s
medical history and symptoms suggests that plaintiff likely suffered
from undiagnosed fibromyalgia prior to its diagnosis. In view of the
ambiguity surrounding the timing of the onset date of that disease, the
ALJ should further develop the record by contacting Dr. Lin and Dr.
Bhakta regarding this issue. It is well-settled that the diagnosis of
a condition may occur after the onset of that condition.
Lester v.
Chater, 81 F.3d 821, 832 n.9 (9th Cir. 1995).
12

1

Here, the ALJ found that “[a]fter careful consideration of the

2

evidence, . . . [plaintiff]’s medically determinable impairment could

3

reasonably be expected to cause the alleged symptoms . . . .”

4

19.)

5

Accordingly, the ALJ’s reason for rejecting plaintiff’s credibility must

6

be “clear and convincing.”

(A.R.

Further, the ALJ cited no evidence of malingering by plaintiff.

7
8

The

ALJ

stated

that

plaintiff’s

“statements

concerning

the

9

intensity, persistence and limiting effects of [her] symptoms are not

10

credible to the extent they are inconsistent with [the ALJ’s RFC]

11

assessment.”

12

“exaggerating her limitations,” because:

13

testimony that there is no job she can do, she admits she can: cook,

14

drive,

15

examination of [plaintiff] was within normal limits other than for

16

subjective complaints of tenderness”; (3) plaintiff’s “lack of ongoing

17

non-conservative treatment”; and (4) “[t]he medical evidence of record

18

simply fails to support [plaintiff]’s allegation of extreme limitations

19

in sitting, standing and lifting.”

do

(A.R. 19.)

housework,

Specifically, the ALJ found plaintiff to be

do

laundry,

and

(1) “despite [plaintiff’s]

shop”;

(2)

“nearly

every

(Id.)

20
21

The

ALJ’s

first

ground

for

discrediting

plaintiff

does

not

22

constitute a clear and convincing basis upon which to reject her

23

subjective pain testimony. The ALJ fails to demonstrate how plaintiff’s

24

performance

25

translates into the ability to engage in full-time work.

26

v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.1990)(daily activities may not

27

be relied upon to support an adverse credibility decision where those

28

activities do not affect the claimant’s ability to perform appropriate

of

basic

self-care

activities

13

and

household

chores

See Gonzalez

1

work activities on an ongoing and daily basis).

2
3

The

fact
do

that

plaintiff

laundry,

and

can

intermittently

shop”

contradict

do

housework,

5

testimony that she is unable to maintain a full-time job because of the

6

“almost constant[]” pain in both her upper extremities, hip, legs, feet,

7

and hands.

8

she can go to the “grocery store but when [she] get[s] home from the

9

grocery store [her] feet are hurting, [her] ankles are hurting and [are]
(A.R. 43.)

not

drive,

4

(See A.R. 36-38, 40.)

does

“cook,

plaintiff’s

Moreover, plaintiff testified that

10

swollen and red.”

She testified that she does housework

11

only when “[she] feel[s] up to it, and [she] take[s] a break when [she]

12

need[s] to.”

13

drives, some weeks she does not do anything, “[she] do[es]n’t go

14

anywhere.”

15

daily activities cited by the ALJ, which plaintiff apparently struggles

16

to perform, are easily transferable to the more grueling environment of

17

the workplace, much less that they are inconsistent with and/or negate

18

plaintiff’s assertions regarding the subjective symptoms flowing from

19

her objectively determined physical impairments. See Reddick v. Chater,

20

157 F.3d 715, 722 (9th Cir. 1998)(only if the level of activity was

21

inconsistent with claimant’s claimed limitations would the activity have

22

any bearing on claimant’s credibility); Cooper v. Bowen, 815 F.2d 557,

23

561 (9th Cir. 1987)(disability claimant need not “vegetate in a dark

24

room” to be deemed eligible for benefits).

(A.R. 47.) Plaintiff further explained that although she

(A.R. 45.)

There is no basis for finding that the simple

25
26

The ALJ’s second and fourth ground for finding plaintiff to be not

27

credible -- both of which cite the failure of the objective evidence to

28

support plaintiff’s subjective complaints -- do not constitute clear and
14

1

convincing reasons for discrediting plaintiff.

The failure of the

2

objective medical record to corroborate fully plaintiff’s subjective

3

symptom testimony is not, by itself, a legally sufficient basis for

4

rejecting such testimony.

5

at 347 (noting that “[i]f an adjudicator could reject a claim of

6

disability simply because [plaintiff] fails to produce medical evidence

7

supporting the severity of the pain, there would be no reason for an

8

adjudicator to consider anything other than medical findings”).6

Rollins, 261 F.3d at 856; Bunnell, 947 F.2d

9
10

The ALJ’s third ground for discrediting plaintiff, i.e., the lack

11

of

ongoing

non-conservative

12

convincing reason.

13

to work.”

treatment,

is

also

not

a

clear

and

Plaintiff stated that for her pain, “nothing seems

(A.R. 41.)

She testified that she was:

14
15

prescribed two different muscle relaxers and they work so

16

slightly that it’s not worth the feeling that [she] get[s]

17

from them.

18

has] tried two different pain pills and they don’t work, and

19

they -- [she] do[es]n’t like what they do to [her] -- the way

20

[she] feel[s].

21

takes the pain away well enough to be worth the side effects.7

And [she] take[s] Ibuprofen occasionally.

[She

It’s like nothing works well enough. Nothing

22
6

23
24
25
26
27
28

Moreover, as noted above, the lack of objective medical
evidence is consistent with the nature and symptoms of fibromyalgia -an impairment which the ALJ rejected in evaluating plaintiff’s
allegations of disabling pain, symptoms, and limitations. Benecke, 379
F.3d at 594 (stating that fibromyalgia “is diagnosed entirely on the
basis of patients’ reports of pain and other symptoms”).
7

There is no indication that the side effects of plaintiff’s
medications were considered in the disability evaluation. See Erickson
v. Shalala, 9 F.3d 813, 817–18 (9th Cir. 1993)(noting that an ALJ must
consider all factors, including the side effects of medications, that
might have a “‘significant impact on an individual’s ability to work’”)
15

1

(A.R. 41-42.)

2
3

The record also indicates that plaintiff is given Vitamin B12 shots

4

every 2 weeks for her fibromyalgia.

5

testified that it was recommended that she get massages for her pain

6

“but it’s expensive to do that, so [she] ha[s]n’t -- [she] ha[s]n’t done

7

that.”8

8

treatment, it does not appear that it is so conservative as to call into

9

question

(A.R.

45.)

plaintiff’s

Given the

subjective

(A.R. 334, 330, 328.)

nature

and extent

testimony.

of

Further,

Plaintiff

plaintiff’s

there

is

no

10

substantial evidence in the record to support the ALJ’s inference that

11

plaintiff’s debilitating pain and symptoms would be alleviated if she

12

were to secure more aggressive treatment.

13

or

14

disease.

15

for

16

subjective complaints also is not convincing.

other

cure

for

fibromyalgia,

Indeed, there is no surgical

which

can

be

a

debilitating

See Jordan, 370 F.3d at 872 (recognizing that there is no cure

fibromyalgia).

Thus,

this

reason

for

rejecting

plaintiff’s

17
18

Accordingly,
setting

the
forth

ALJ’s
clear

rejection
and

of

plaintiff’s

convincing

reasons,

credibility,

19

without

constitutes

20

reversible error.

21

if they exist, in accordance with the requisite legal standards, for

22

discrediting plaintiff’s pain testimony.

On remand, the ALJ must provide reasons for doing so,

23
24
25
26
27
28

(citation omitted); see also Soc. Sec. Ruling 96–7p, 1996 WL 374186, at
*2–*3, 1996 SSR LEXIS 4, at *7–*8 (noting that type, dosage,
effectiveness, and side effects of any medication the individual takes
or has taken to alleviate pain or other symptoms should be considered in
the disability evaluation); 20 C.F.R. § 404.1529(c)(3)(iv).
8

While an unexplained failure to seek treatment may cast doubt
on a claimant’s credibility, such an inference is unreasonable where
plaintiff is indigent. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir.
1989).
16

1

III. The ALJ Failed To Set Forth The Requisite Specific And

2

Legitimate

Reasons

For

Rejecting

The

Opinion

3

Of

Plaintiff’s Treating Physician, Paul Liu, M.D.

4
5

When the ALJ rejects the opinion of a treating physician which has

6

been contradicted, the ALJ may reject that opinion only by providing

7

specific and legitimate reasons for doing so, supported by substantial

8

evidence in the record.

9

physician opinions considered in assessing a social security claim,

10

“[g]enerally, a treating physician’s opinion carries more weight than an

11

examining physician’s, and an examining physician’s opinion carries more

12

weight than a reviewing physician’s.”

13

1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527.

14

reasons will not suffice for rejecting the treating physician’s opinion.

15

McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).

Lester, 81 F.3d at 830.

In the hierarchy of

Holohan v. Massanari, 246 F.3d
Broad and vague

16
17

The ALJ accorded “very little weight” to Dr. Liu’s opinion that

18

plaintiff has been “unable to work since early 2007, due to chronic

19

activity related right upper extremity pain, pain around the shoulder

20

blade, and related neck and right shoulder discomfort” (A.R. 212),

21

because:

22

Liu “does not describe limitations associated with any other body part”;

23

(3) “[i]n light of the minimal findings . . . , the opinion overstates

24

[plaintiff]’s limitations”; and (4) his opinion is contradicted by the

25

State agency review physicians.

(1) the assessment was made for disability purposes; (2) Dr.

(A.R. 21.)

26
27

The ALJ’s first reason for rejecting Dr. Liu’s opinion -- to wit,

28

that Dr. Liu’s assessment was made for disability purposes -- is
17

1

unavailing.

The ALJ’s assertion lacks foundation and is not a legally

2

sufficient ground upon which to reject a treating doctor’s report.

3

Lester, 81 F.3d at 832 (“The purpose for which medical reports are

4

obtained does not provide a legitimate basis for rejecting them.”); see

5

also Ratto v. Sec’y, 839 F. Supp. 1415, 1426 (D. Or. 1993)(an ALJ “may

6

not assume that doctors routinely lie in order to help their patients

7

collect disability benefits”).

8

of actual improprieties,’” no such evidence exists here.

9

F.3d at 832 (citation omitted).

See

While the ALJ “‘may introduce evidence
Lester, 81

Thus, the fact that Dr. Liu’s letter

10

was prepared for “disability purposes” is of no moment, and Dr. Liu’s

11

opinion constitutes substantial evidence that plaintiff had significant

12

pain, limitations, and restrictions resulting from impairments of her

13

upper extremities. Accordingly, the ALJ’s rejection of Dr. Liu’s letter

14

on this basis is reversible error.

15
16

The ALJ’s second reason for rejecting Dr. Liu’s opinion -- to wit

17

that he "does not describe limitations associated with any other body

18

part” -- is not legitimate.

19

provides findings with respect to plaintiff’s upper extremities in his

20

May 15, 2008 letter, it does mean that those findings alone would not

21

render plaintiff

22

referred

her

upper

23

extremities, particularly for her left and right shoulder pain.

(A.R.

24

176, 182-83.)

25

regarding the extent of plaintiff’s impairments related to her “other

26

body part[s],” then the ALJ should have further developed the record.

to

Dr.

disabled.
Liu

While it is true that Dr. Liu solely

(A.R.

specifically

212.)
for

Moreover,
evaluation

plaintiff was
of

If the ALJ required further, more specific details

27
28

Third, the ALJ concluded that Dr. Liu’s opinion is based on
18

1

“minimal findings . . . [and] overstates the [plaintiff’s] limitations”

2

concerning her upper extremities.

3

finding, it is not evident that there were “minimal findings,” as the

4

medical

5

plaintiff’s

6

regarding her upper extremities -- that support his opinion.9

record

is

replete

symptoms,

with

(A.R. 21.)

numerous

treatment,

and

Contrary to the ALJ’s

notations

objective

--

describing

clinical

findings
Also, Dr.

7
8
9
10

9

On August 15, and October 4, 2006, plaintiff was evaluated for
her right shoulder pain. (A.R. 182, 186.) Dr. Liu assessed “calcific
tendinitis right shoulder” and “impingement syndrome right shoulder.”
(Id.) Plaintiff was given a steroid injection, and she indicated that
she had approximately 80 percent relief for the following couple of
days, but she was currently at 50 percent pain relief. (Id.)

11
12
13

On April 10, 2007, Dr. Liu noted that “X-rays do show a
calcific body in the area of the lateral acromial process. Remainder of
the bony anatomy appears normal.” (A.R. 190.) He diagnosed her with
“right shoulder impingement syndrome with calcific tendinitis.” (A.R.
190.)

14
15
16
17

On April 25, 2007, Dr. Liu noted that plaintiff had
“successful left shoulder surgery for calcific tendinitis” and that
plaintiff’s “right shoulder is not bothering her as badly as the left
shoulder but she is not functioning normally with it because she has on
and off pain, waxes and wanes in the right shoulder.” (A.R. 193.) Dr.
Liu suggested that plaintiff consider surgery for her right shoulder as
well. (Id.)

18
19

An MRI of plaintiff’s right shoulder on May 10, 2007, showed
signs of a “small partial tear” and “small amount of fluid . . . in the
subacromial/subdeltoid bursa.” (A.R. 199.)

20
21
22
23
24

On July 10, 2007, plaintiff underwent an operation on her
right shoulder due to “right shoulder pain, history of calcific
tendinitis with evidence of impingement” and to “rule out rotator cuff
tear.” (A.R. 171.)
On August 16, 2007, Dr. Liu noted that plaintiff’s right
shoulder exhibited decreased range of motion, tenderness, and swelling.
He assessed “calcific tendinitis shoulder” and “rotator cuff syndrome,
s/ scope. Stable, probably will gradually improve.” (A.R. 151.)

25
26
27
28

On October 26, 2007, Dr. Liu noted that plaintiff “got over
tendinitis post op for right shoulder, still sore, but doing exercises
for ROM, and functional rehab.” (A.R. 153.) For her right shoulder,
Dr. Liu noted that she exhibited decreased range of motion, tenderness,
pain, and decreased strength. (A.R. 154.) He also noted tenderness in
her right elbow. He assessed “calcific tendinitis shoulder, right” and
“lateral epicondyltis, right.” (Id.)
19

1

Liu did not complete a functional assessment for plaintiff, and thus, it

2

is

3

limitations” as the ALJ contends.

4

does not constitute a legitimate reason for rejecting Dr. Liu’s opinion.

unclear

whether

Dr.

Liu’s

findings

“overstate[]

(A.R. 21.)

[plaintiff’s]

Therefore, this basis

5
6

Lastly, the ALJ’s fourth basis for rejecting the opinions of Dr.

7

Liu -- to wit, that his opinion is contradicted by the State agency

8

physicians -- is also unavailing.

9

agency physicians, who are non-treating and non-examining physicians,

10

cannot, by themselves, constitute substantial evidence, because they are

11

not based on any independent findings.10 Indeed, it does not appear that

(A.R. 21.)

The opinions of State

12
13
14
15
16

On December 3, 2007, plaintiff presented with “right tennis
elbow pain and wrist pain and forearm discomfort,” as well as “some
numbness in right hand.” (A.R. 171.) Upon examination, Dr. Liu noted
that plaintiff’s right shoulder exhibited decreased range of motion,
minimal pain, decreased strength, and no tenderness. (A.R. 172.) As
for her right elbow, she had normal range of motion but lateral
epicondyle tenderness. (Id.) He recommended a right elbow cortisone
injection. (Id.)

17
18
19
20
21
22
23
24

On January 15, 2008, plaintiff presented with pain of her
right arm. (A.R. 159.) On physical exam, Dr. Liu noted that her right
shoulder exhibited decreased range of motion, pain, and decreased
strength. (A.R. 160.)
On April 1, 2008, plaintiff presented with minimal right
shoulder pain and remarked that the cause of her “arm pain which existed
preop, . . . has been highlighted postop.” (A.R. 168.) Plaintiff’s
right shoulder exhibited decreased range of motion and no pain. (A.R.
169.) Her right upper arm exhibited tenderness but no swelling, edema,
and deformity. (Id.) Dr. Liu recommended an MRI of her right arm.
(Id.)
10

On April 22, 2008, State agency physician David A. Haaland
opined as follows:

25
26
27
28

[Plaintiff] has R shoulder impingement syndrome with
subacaromial bursitis and RC tendonopathy w/o tear. Scoped
7/07 and now recovered so ROM is full for SSA standards and
pain is controlled. Flex and ABD is 140*. She had a similar
problem in L shoulder in 2004 that completely resolved with
shoulder arthroscopy and time for recovery. The R shoulder is
showing the same post op course. She also has a R lateral
20

1

the State agency physicians based their opinions on any medical findings

2

or tests that Dr. Liu did not consider himself.

3

State

4

surgeon.

5

his area of specialty generally receives more weight than the opinions

6

of non-specialist sources.

agency

reviewing

physicians,

Dr.

Liu

Moreover, unlike the
is

an

orthopedic

The opinion of a specialist about medical issues related to

20 C.F.R. § 404.1527(c)(5).

7
8

Accordingly, for the aforementioned reasons, the ALJ failed to give

9

specific and legitimate reasons, supported by substantial evidence, for

10

rejecting the opinions of plaintiff’s treating physician, Dr. Liu. This

11

constitutes error.

12

Liu’s opinions and, to the degree necessary, conduct an appropriate

13

inquiry regarding the extent of plaintiff’s symptoms and limitations,

14

which Dr. Liu opined to be disabling.

15

to obtain from Dr. Liu functional limitations to be imposed based on

16

plaintiff’s impairments, or the ALJ may need to secure a consultative

17

examination for plaintiff.

On remand, the ALJ needs to properly consider Dr.

Specifically, the ALJ should try

18
19
20
21
22
23

epicondylitis that is resolving with conservative measures.
The AOD is 3/06 for this R shoulder case.
[Plaintiff] is
capable of light work with occasional use of the R shoulder
for overhead activities. She is credible for the shoulder
problem but not for the degree of disability alleged. There
will be no 12 month period when this RFC would not be in
effect.

24

(A.R. 209.)

25

Dr. Haaland then opined that plaintiff could lift/carry 20
pounds occasionally and 10 pounds frequently; stand/walk/sit for about
six hours with unlimited push and/or pull abilities; unlimited
manipulative limitations except with occasional above shoulder reaching
with her right upper extremity. (A.R. 204-06.)

26
27
28

On June 9, 2008, State agency physician Dr. Thu N. Do,
affirmed Dr. Haaland’s RFC of plaintiff. (A.R. 213-15.)
21

1

IV.

Because The ALJ’s Findings Regarding Plaintiff’s Ultimate

2

RFC Must Be Reconsidered, Additional Vocational Expert

3

Testimony Likely Will Be Required.

4
5

Based on the foregoing, there are several matters that the ALJ

6

needs to review and reconsider on remand.

As a result, the ALJ’s

7

conclusion regarding plaintiff’s RFC and plaintiff’s ability to do her

8

past relevant work may change.

9

plaintiff’s fourth claim.

Therefore, the Court does not reach

To properly review and reconsider these

10

issues, the ALJ must correct the above-mentioned deficiencies and

11

errors.

12

additional testimony from a vocational expert likely will be required to

13

determine what work, if any, plaintiff can perform.

Further, to the extent that plaintiff’s RFC is reassessed,

14
15

V.

Remand Is Required.

16
17

The decision whether to remand for further proceedings or order an

18

immediate award of benefits is within the district court’s discretion.

19

Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000).

20

useful purpose would be served by further administrative proceedings, or

21

where the record has been fully developed, it is appropriate to exercise

22

this discretion to direct an immediate award of benefits.

23

(“[T]he decision of whether to remand for further proceedings turns upon

24

the likely utility of such proceedings.”).

25

outstanding issues that must be resolved before a determination of

26

disability can be made, and it is not clear from the record that the ALJ

27

would be required to find the claimant disabled if all the evidence were

28

properly evaluated, remand is appropriate.
22

Where no

Id. at 1179

However, where there are

Id. at 1179-81.

1

Remand is the appropriate remedy to allow the ALJ the opportunity

2

to remedy the above-mentioned deficiencies and errors.

3

Benecke, 379 F.3d at 593 (remand for further proceedings is appropriate

4

if enhancement of the record would be useful); see also Stillwater v.

5

Comm’r of Soc. Sec. Admin., 361 Fed. Appx. 809, 812 (9th Cir. Jan. 7,

6

2010)(remand for reconsideration of State agency physicians’ opinions

7

that were discredited because they were based on a treating physician’s

8

opinion that the ALJ rejected improperly); Dodrill v. Shalala, 12 F.3d

9

915,

918

(9th

Cir.

1993)(ordering

remand

so

that

the

See, e.g.,

ALJ

could

10

articulate specific and appropriate findings, if any existed, for

11

rejecting the claimant’s subjective pain testimony); McAllister, 888

12

F.2d at 603 (remand appropriate to remedy defects in the record).

13

///

14

///

15

///

16

///

17

///

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
23

1

CONCLUSION

2
3

Accordingly, for the reasons stated above, IT IS ORDERED that the

4

decision of the Commissioner is REVERSED, and this case is REMANDED for

5

further proceedings consistent with this Memorandum Opinion and Order.

6
7

IT IS FURTHER ORDERED that the Clerk of the Court shall serve

8

copies of this Memorandum Opinion and Order and the Judgment on counsel

9

for plaintiff and for defendant.

10
11

LET JUDGMENT BE ENTERED ACCORDINGLY.

12
13

DATED:

March 26, 2013

14
15
16

MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
24