Juan Perez Sandoval v. Carolyn W Colvin

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. For all of the foregoing reasons, IT IS ORDERED that: (1) the decision of the Commissioner is REVERSED and this matter REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Memorandum Opinion and Order; and (2) Judgment be entered in favor of Plaintiff. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiff
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

MEMORANDUM OPINION AND
ORDER

Defendant.

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Case No. 5:15-CV-01994-GJS

JUAN PEREZ SANDOVAL,

I.

PROCEDURAL HISTORY

Plaintiff Juan Perez Sandoval (“Plaintiff”) filed a complaint seeking review of

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Defendant Commissioner of Social Security’s (“Commissioner”) denial of his

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applications for Disability Insurance Benefits (“DIB”) and Social Security Income

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(“SSI”). The parties filed consents to proceed before the undersigned United States

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Magistrate Judge [Dkt. 11, 12] and briefs addressing disputed issues in the case

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[Dkt. 18 (“Pltf.’s Br.”) & Dkt. 21 (“Def.’s Br.”)]. The Court has taken the parties’

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briefing under submission without oral argument. For the reasons set forth below,

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the Court remands the decision of the ALJ and orders that judgment be entered

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accordingly.

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II.

ADMINISTRATIVE DECISION UNDER REVIEW

In 2012, Plaintiff filed applications for DIB and SSI, alleging that he became

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disabled as of September 16, 2009. [Dkt. 15, Administrative Record (“AR”) 18,

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264, 275.] The Commissioner denied his claims for benefits initially and upon

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reconsideration. [AR 18, 110-14, 120-23.] On December 3, 2013, a hearing was

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held before Administrative Law Judge (“ALJ”) Alan J. Markiewicz. [AR 38-64.]

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On February 21, 2014, the ALJ issued a decision denying Plaintiff’s requests for

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benefits. [AR 18-31.]

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Applying the five-step sequential evaluation process, the ALJ found that

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Plaintiff was not disabled. See 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1).

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At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful

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activity since the alleged onset date. [AR 20.] At step two, the ALJ found that

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Plaintiff suffered from the following severe impairments: disc disease of the

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cervical spine, disc disease of the lumbar spine, and bilateral wrist sprain. [Id.] At

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step three, the ALJ determined that Plaintiff did not have an impairment or

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combination of impairments that meets or medically equals the severity of one of

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the listed impairments. [AR 23]; see 20 C.F.R. part 404, subpart P, appendix 1.

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Next, the ALJ found that Plaintiff had the residual functional capacity (RFC) for

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light work (citing 20 C.F.R. §§ 404.1567(b), 416.967(b)) and was able to lift and/or

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carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk 6 hours

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out of an 8-hour workday with regular breaks, sit for 6 hours out of an 8-hour

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workday with regular breaks, frequently handle and finger bilaterally, and

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occasionally reach overhead bilaterally. [AR 24.] At step four, the ALJ found that

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Plaintiff was able to perform his past relevant work as a sander/buffer, as that job is

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generally performed in the economy. [AR 30.] Therefore, the ALJ concluded

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Plaintiff was not disabled. [AR 30-31.] The Appeals Council denied review. [AR

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1-3.]

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III.

GOVERNING STANDARD

Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
determine if: (1) the Commissioner’s findings are supported by substantial evidence;
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and (2) the Commissioner used correct legal standards. Carmickle v. Comm’r, Soc.

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Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071,

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1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson v.

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Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see

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also Hoopai, 499 F.3d at 1074.

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

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susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d

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676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by

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the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did

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not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). In addition, “[a]

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decision of the ALJ will not be reversed for errors that are harmless.” Burch, 400

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F.3d at 679.
IV.

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DISCUSSION

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A. Plaintiff’s Claims

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Plaintiff raises the following arguments: (1) the ALJ failed to consider

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significant medical evidence of record in support of Plaintiff’s claim of disability;

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and (2) the ALJ’s conclusion at step four of the sequential evaluation is not

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supported by substantial evidence. [Pltf.’s Br. at 3-9.] The Commissioner asserts

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that the ALJ’s decision should be affirmed. [Def.’s Br. at 6-13.] Because the ALJ

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erred in failing to find Plaintiff’s fibromyalgia to be a medically determinable

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impairment, remand is warranted. The Court therefore does not reach the remaining

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issues.

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B. Medically Determinable Impairment – Fibromyalgia

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Plaintiff argues that the ALJ erred in concluding that fibromyalgia was not a

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medically determinable impairment. [Pltf.’s Br at 3-6.] A medically determinable

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impairment is one that results from “anatomical, physiological, or psychological

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abnormalities which can be shown by medically acceptable clinical and laboratory
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diagnostic techniques.” 20 C.F.R. §§ 404.1508, 416.908. In the context of

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fibromyalgia, the Ninth Circuit has recognized that there are no objective findings to

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establish the presence of the disease. See Benecke v. Barnhart, 379 F.3d 587, 590

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(9th Cir. 2004) (explaining that fibromyalgia “is diagnosed entirely on the basis of

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patients’ reports of pain and other symptoms” and “there are no laboratory tests to

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confirm the diagnosis”) (citation omitted). A claimant can establish fibromyalgia as

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a medically determinable impairment if a physician diagnosed fibromyalgia and the

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claimant meets either the 1990 American College of Rheumatology (ACR) Criteria

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for the Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic

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Criteria for fibromyalgia. See SSR 12-2p, 2012 WL 3104869, at *2-3. Under both

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sets of diagnostic criteria, a finding that a claimant has a medically determinable

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impairment of fibromyalgia requires a history of widespread pain in all quadrants of

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the body and evidence that other disorders associated with symptoms or signs that

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are the similar to those resulting from fibromyalgia have been ruled out. Id., at *3.

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The 1990 ACR also requires a finding of at least 11 of 18 tender points above and

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below the waist bilaterally. Id. Under the 2010 ACR, evidence of “[r]epeated

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manifestations of six or more [fibromyalgia] symptoms, signs, or co-occurring

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conditions,” such as “fatigue, cognitive or memory problems (“fibro fog”), waking

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unrefreshed, depression, anxiety disorder, or irritable bowel syndrome” is required.

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Id.

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In the decision, the ALJ acknowledged that the record contains references to

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fibromyalgia as a possible cause of Plaintiff’s complaints of whole body pain, but

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concluded that the record contained no documented signs consistent with the ACR

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diagnostic criteria, except for some noted abnormalities in the bilateral shoulders.

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[AR 21.] The ALJ’s finding is not supported by substantial evidence.

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The record contains evidence that Plaintiff has the medically determinable

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impairment of fibromyalgia based on the 1990 ACR criteria. Rheumatologist Dr.

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Babak Zamiri first examined Plaintiff in April 2013. [AR 558-60.] He reported that
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Plaintiff had suffered from joint pain for several years in multiple sites throughout

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his body, including the cervical, thoracic, and lumbar spine, shoulders, elbows,

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wrists, hands, fingers, hips, knees, ankles, feet, and toes. [AR 558.] He documented

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the presence of 16 of 18 tender points, noted some signs suggestive of an

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inflammatory process and abnormalities in Plaintiff’s shoulders, hands/wrists, and

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knees, and diagnosed Plaintiff with “joint pain, multiple sites,” “depression with

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anxiety,” and “fibromyalgia.” [AR 559-60.] With regard to the diagnosis of “joint

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pain, multiple sites,” Dr. Zamiri stated that there was insufficient information to

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make a definitive diagnosis based on his current evaluation. [AR 559.] Therefore,

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Dr. Zamiri offered a differential diagnosis that included systemic lupus

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erythematosus, Reiter’s arthritis, rheumatoid arthritis, fibromyalgia, and tendonitis.

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[Id.] He explained that he would be able to make a more definitive diagnosis if

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additional signs or symptoms manifested over time. [Id.] With regard to

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management of Plaintiff’s fibromyalgia, Dr. Zamiri recommended better control of

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depression, stress, and anxiety, restful sleep, and regular aerobic exercise. [AR

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560.] Dr. Zamiri prescribed medication, ordered a number of laboratory test and x-

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rays, recommended that Plaintiff return for a follow-up appointment in six weeks,

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and advised Plaintiff to see his primary care provider for further evaluation of his

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disability. [AR 559-60.]

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In May 2013, Dr. Zamiri completed a second evaluation of Plaintiff. [AR

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517-19.] He again noted Plaintiff’s history of joint pain in multiple sites and the

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presence of 16 of 18 tender points. [AR 517-18.] After conducting a physical

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examination and reviewing Plaintiff’s test results, Dr. Zamiri diagnosed Plaintiff

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with depression with anxiety, fibromyalgia, and chronic low back pain. [AR 518.]

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He reported that there was no evidence of synovitis to suggest an inflammatory

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process like rheumatoid arthritis. [Id.] He also noted the absence of any convincing

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criteria to support a diagnosis of systemic lupus erythematosus. [Id.] Dr. Zamiri

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recommended that Plaintiff follow up with his primary care provider for a referral to
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a pain management group and further evaluation of his disability. [Id.]
In the decision, the ALJ stated that Dr. Zamiri found “there was not enough

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evidence to provide a diagnosis . . . .” [AR 28.] The ALJ’s interpretation of Dr.

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Zamiri’s opinion is inaccurate and incomplete. As noted above, Dr. Zamiri

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documented Plaintiff’s history of widespread joint pain and specifically diagnosed

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Plaintiff with fibromyalgia in April 2013 and again in May 2013. [AR 517-18, 558-

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59.] While in April 2013, Dr. Zamiri offered a differential diagnosis of “joint pain,

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multiple sites” in addition to the diagnosis of fibromyalgia, in May 2013, he

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confirmed his diagnosis of fibromyalgia and essentially ruled out other conditions

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with similar symptoms, such as rheumatoid arthritis and systemic lupus

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erythematosus. [AR 518, 559.] Thus, the ALJ’s suggestion that Dr. Zamiri never

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gave Plaintiff a diagnosis of fibromyalgia is not supported by the record. Further,

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the ALJ failed to discuss Dr. Zamiri’s reports that Plaintiff had 16 of 18 tender

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points and his findings that other possible conditions which could have been related

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to Plaintiff’s symptoms were excluded. [AR 518, 559]; see SSR 12-2p, 2012 WL

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3104869, at *6, n. 7 (“examples of other disorders that may have symptoms or signs

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that are the same or similar to those resulting from [fibromyalgia] include

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rheumatologic disorders, myofacial pain syndrome, polymyalgia rheumatica”).

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Thus, the ALJ’s consideration of Dr. Zamiri’s opinion was error. See Lester v.

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Chater, 81 F.3d 821, 830-31 (9th Cir. 1996); 20 C.F.R. §§ 404.1527(e)(2)(ii) (The

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ALJ must consider all the medical evidence in the record and “explain in [his]

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decision the weight given to . . . [the] opinions from treating sources, nontreating

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sources, and other nonexamining sources.”), 416.927(e)(2)(ii) (same).

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The Commissioner argues that even if the ALJ erred in failing to accept

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Plaintiff’s fibromyalgia diagnosis at step two of the sequential analysis, the error is

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harmless because there was no evidence of pain or limitations that were not already

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accounted for in Plaintiff’s RFC. [Def.’s Br. at 9-10.] Specifically, the

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Commissioner asserts that the ALJ found that Plaintiff suffers from “disc disease of
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the cervical and lumbar spine and bilateral wrist sprain,” conditions associated with

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symptoms of pain in multiple sites that have “no effective difference” from the

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widespread pain associated with fibromyalgia. [Def.’s Br. at 9.] An error is

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harmless only if it is “inconsequential” to the ALJ’s “ultimate nondisability

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determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.

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2006); see also Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (An error is

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harmless if “there remains substantial evidence supporting the ALJ’s decision and

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the error does not negate the validity of the ALJ’s ultimate conclusion.” ) (quoting

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Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). An

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ALJ’s failure to consider an impairment “severe” at step two is harmless if the ALJ

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considers all impairments - regardless of severity - in the subsequent steps of the

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sequential analysis. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (finding

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step two error harmless as the ALJ specifically discussed Plaintiff’s bursitis and its

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effects when identifying the basis for limitations in Plaintiff's RFC). Fibromyalgia

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may cause more symptoms than general complaints of pain, including pain at points

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different than or in addition to those associated with the impairments the ALJ did

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consider, i.e., lumbar spine and wrist problems. See SSR 12-2p, 2012 WL 3104869,

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at *3 (noting symptoms or co-occurring signs of fibromyalgia include

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“manifestations of fatigue, cognitive or memory problems (‘fibro fog’), waking

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unrefreshed, depression, anxiety disorder”). Thus, the ALJ’s error was not

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harmless.

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CONCLUSION
The decision of whether to remand for further proceedings or order an

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

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Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be

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served by further administrative proceedings, or where the record has been fully

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developed, it is appropriate to exercise this discretion to direct an immediate award

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of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings
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turns upon the likely utility of such proceedings”). But when there are outstanding

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issues that must be resolved before a determination of disability can be made, and it

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is not clear from the record the ALJ would be required to find the claimant disabled

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if all the evidence were properly evaluated, remand is appropriate. Id.

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Here, the Court finds that remand is appropriate because the circumstances of

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this case suggest that further administrative review could remedy the ALJ’s errors.

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See INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative

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determination, the proper course is remand for additional agency investigation or

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explanation, “except in rare circumstances”); Treichler v. Comm’r of Soc. Sec.

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Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (remand for award of benefits is

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inappropriate where “there is conflicting evidence, and not all essential factual

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issues have been resolved”); Harman, 211 F.3d at 1180-81. The Court has found

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that the ALJ erred by failing to consider all of the relevant medical evidence and

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find Plaintiff’s fibromyalgia to be a medically determinable impairment. Thus,

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remand is appropriate to allow the Commissioner to continue the sequential

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evaluation process starting at step two.

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For all of the foregoing reasons, IT IS ORDERED that:

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(1) the decision of the Commissioner is REVERSED and this matter

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REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further

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administrative proceedings consistent with this Memorandum Opinion and

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Order; and

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(2) Judgment be entered in favor of Plaintiff.

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IT IS HEREBY ORDERED.

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DATED: September 15, 2016

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GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE

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