Bishop v. Commissioner of Social Security

Filing 25

FINAL JUDGMENT AND ORDER Regarding Plaintiff's Social Security Complaint signed by Magistrate Judge Erica P. Grosjean on 10/11/2017. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RANDALL WAYNE BISHOP, as the Heir
and Representative of the Estate of
DEBORAH ANN BISHOP,
Plaintiff,

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v.

Case No. 1:16-cv-00741-EPG
FINAL JUDGMENT AND ORDER
REGARDING PLAINTIFF’S SOCIAL
SECURITY COMPLAINT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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This matter is before the Court on Plaintiff’s complaint for judicial review of an

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unfavorable decision of the Commissioner of the Social Security Administration regarding the

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applications of Deborah Ann Bishop, deceased, (“claimant”) for Supplemental Security Income

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and Disability Insurance Benefits. The parties have consented to entry of final judgment by the

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United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal to the

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Court of Appeals for the Ninth Circuit. (ECF Nos. 7, 8.)

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The Court, having reviewed the record, administrative transcript, the briefs of the parties,
the applicable law, and having heard oral argument, finds as follows:

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For the reasons announced by the Court on the record at the conclusion of the parties’ oral

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argument on September 26, 2017, the Court finds that the decision of the Commissioner of Social

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Security should be reversed and the case should be remanded for an award of benefits.
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The Administrative Law Judge (“ALJ”) erred by failing to provide specific, clear, and

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convincing reasons for finding claimant’s testimony about the severity of her symptoms not fully

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credible. “[A]n ALJ engages in a two-step analysis to determine whether a claimant’s testimony

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regarding subjective pain or symptoms is credible. First, the ALJ must determine whether the

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claimant has presented objective medical evidence of an underlying impairment which could

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reasonably be expected to produce the pain or other symptoms alleged. Garrison v. Colvin, 759

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F.3d 995, 1014 (9th Cir. 2014) (quotations omitted). “If the claimant satisfies the first step of this

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analysis, and there is no evidence of malingering, the ALJ can reject the claimant’s testimony

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about the severity of her symptoms only by offering specific, clear and convincing reasons for

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doing so.” Id. at 1014-15. “It’s not sufficient for the ALJ to make only general findings; he must

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state which pain testimony is not credible and what evidence suggests the complaints are not

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credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (citation and quotations omitted).

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Furthermore, a lack of objective medical evidence is a factor that the ALJ can consider in his

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credibility analysis. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). However, an ALJ

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“may not disregard [a claimant’s testimony] solely because it is not substantiated affirmatively by

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objective medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

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Here, the ALJ determined that claimant had severe impairments consisting of rheumatoid

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arthritis, asthma, obesity, and fibromyalgia, and that her medically determinable impairments

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could reasonably be expected to cause the symptoms she alleged. Finding no evidence of

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malingering, the ALJ concluded that the claimant’s statements concerning the intensity,

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persistence, and limiting effects of her symptoms were not entirely credible. However, the ALJ

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failed to provide specific, clear, and convincing reasons supported by the record for his

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conclusion. First, the ALJ found, “The claimant described daily activities that are not limited to

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the extent one would expect, given the complaints of disabling symptoms and limitations. She

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reported activities of daily living such as making food for herself, doing light household cleaning,

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driving an automobile, walking for exercise, and performing her own activities of daily living

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without assistance.” AR 27. But, claimant’s testimony regarding her activities of daily living was

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not inconsistent with her alleged symptoms. For example, claimant testified, “Doing cleaning, I
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can get a little energy and go in and clean. And the next day I’m down in my bed. I hurt so bad. . .

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. Yesterday I did dinner and I dropped a cup, just trying to reach for it and I dropped it. . . . And it

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shattered and went all in the food. And my husband had to do dinner for me.” AR 45. Claimant

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further testified that she drives once a week, and she requires assistance from her husband or

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daughter to do laundry, cook, vacuum, mop, and sweep. AR 43, 47, 51, 56.
Second, the ALJ found, “The diagnostic and other objective medical evidence [] failed to

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show a physiological basis for the extreme pain and limitation alleged.” AR 27. However,

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claimant’s rheumatologist assessed that claimant’s fibromyalgia may be the major component of

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her pain, rather than rheumatoid arthritis. AR 541. Fibromyalgia “is diagnosed entirely on the

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basis of patients’ reports of pain and other symptoms.” Benecke v. Barnhart, 379 F.3d 587, 590

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(9th Cir. 2004). The symptoms are entirely subjective; there are no laboratory tests for the

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presence or severity of fibromyalgia. Jordan v. Northup Grumman Corp. Welfare Benefit Plan,

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370 F.3d 869, 872 (9th Cir. 2004) overruled on other grounds by Abatie v. Alta Health & Life Ins.

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Co., 458 F.3d 955, 970 (9th Cir. 2006) (en banc); Rollins v. Massanari, 261 F.3d 853, 855 (9th

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Cir. 2001); see also Welch v. UNUM Life Ins. Co. of Am., 382 F.3d 1078, 1087 (10th Cir. 2004)

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(fibromyalgia presents conundrum for insurers and courts because no objective test exists for

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proving the disease, its cause or causes are unknown, and its symptoms are entirely subjective).

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The ALJ’s citation to clinical findings of mild or controlled symptoms of rheumatoid arthritis and

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normal neurological findings, thus, failed to show that claimant did not have pain and limitations

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due to fibromyalgia. Similarly, the ALJ found that claimant reported that medication improved

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her symptoms and her treating physician reported clinically marked improvements. AR 27. But,

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reports of improvement were in regards to claimant’s rheumatoid arthritis symptoms. AR 448,

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451.

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Finally, the ALJ found that claimant was medicinally noncompliant on several occasions.

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An unexplained, or inadequately explained, failure to seek treatment may be the basis for an

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adverse credibility; however, disability benefits may not be denied because of the claimant’s

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failure to obtain treatment she cannot obtain for lack of funds. Orn v. Astrue, 495 F.3d 625, 638

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(9th Cir. 2007) (internal quotations and citations omitted). “A failure to adhere to treatment
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during a period where the claimant had no medical insurance cannot support an adverse

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credibility finding.” Id. The claimant admits that she was not medicinally compliant for various

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periods during her treatment. AR 52. But, the record reflects that claimant’s medical insurance

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failed to fill all her medication. AR 452,502, 547. Accordingly, the ALJ failed to provide legally

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sufficient reasons for finding claimant’s testimony about the severity of her symptoms not fully

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credible.

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The ALJ also erred by failing to provide specific and legitimate reasons for giving the

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opinion of claimant’s treating physician, Dr. Hipolito Mariano, Jr. M.D, little weight. “[T]his

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circuit distinguish among the opinions of three types of physicians: (1) those who treat the

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claimant (treating physicians); (2) those who examine but do not treat the claimant (examining

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physicians); and (3) those who neither examine nor treat the claimant (nonexamining

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physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996).

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Generally, the opinion of treating physicians should be afforded greater weight than that of both

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examining physicians and nonexamining physicians. Id. Where the treating physician’s opinion is

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not contradicted by another physician, it may be rejected only for “clear and convincing reasons”

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supported by substantial evidence in the record. Id. Even if the treating doctor’s opinion is

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contradicted by another doctor, the ALJ may not reject this opinion without providing “specific

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and legitimate reasons” supported by substantial evidence in the record. Id. (quoting Murray v.

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Heckler, 722 F.2d 499, 502 (9th Cir.1983)). “The ALJ can meet this burden by setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.

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1989) (citing Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir.1986)).

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The ALJ provided two reasons for giving Dr. Mariano’s opinion little weight: the

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claimant’s progress notes had insufficient evidence to support limitations of the magnitude

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described by Dr. Mariano and corroborating laboratory testing for fibromyalgia and rheumatoid

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arthritis were lacking. AR 26. However, there are no laboratory tests for the presence or severity

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of fibromyalgia. Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001). Furthermore, Dr.

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Mariano’s findings are not inconsistent with a diagnosis of fibromyalgia. The symptoms of
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fibromyalgia may include “chronic pain throughout the body, multiple tender points, fatigue,

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stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue

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associated with this disease.” Benecke, 379 F.3d at 589–90. The distinguishing symptom of

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fibromyalgia is multiple tender spots that are painful when pressed. Rollins, 261 F.3d at 855. Dr.

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Mariano progress notes indicate that claimant exhibited widespread tenderness. AR 583, 586,

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608. This finding was further supported throughout the record. AR 452, 541.Thus, the ALJ failed

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to provide specific and legitimate reasons for giving the opinion of claimant’s treating physician

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little weight.

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The question now becomes what remedy is appropriate. Section 405(g) of Title 42 of the

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United States Code provides: Athe court shall have the power to enter, upon the pleadings and

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transcript of the record, a judgment affirming, modifying, or reversing the decision of the

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Secretary, with or without remanding the cause for a rehearing.@ In social security cases, the

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decision to remand to the Commissioner for further proceedings or simply to award benefits is

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within the discretion of the court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). “If
additional proceedings can remedy defects in the original administrative proceedings, a social
security case should be remanded.” Id. (citation omitted). However, where “(1) the record has
been fully developed and further administrative proceedings would serve no useful purpose; (2)
the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion; and (3) if the improperly discredited evidence were credited as
true, the ALJ would be required to find the claimant disabled on remand,” a remand for benefits is
appropriate. Trevizo v. Berryhill, No. 15-16277, 2017 WL 4053751, at *13 (9th Cir. Sept. 14,
2017) (citing Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)).

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Initially, for the reasons stated above, the ALJ failed to provide legally sufficient reasons
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for rejecting the claimant’s testimony and the opinion of claimant’s treating physician. Second,

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the claimant complained of disabling pain due to fibromyalgia and rheumatoid arthritis.
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“Rheumatology is the relevant specialty for fibromyalgia.” Benecke, 379 F.3d at 594 n. 4. The

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record establishes that claimant was diagnosed with fibromyalgia by a rheumatologist, and that
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fibromyalgia appeared to be the major component of her pain, rather than rheumatoid arthritis.
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AR 541. There are no laboratory tests for the severity of fibromyalgia. Rollins v. Massanari, 261

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F.3d 853, 855 (9th Cir. 2001). Thus, claimant’s testimony of her subjective pain symptoms is the

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only available evidence of the severity of her fibromyalgia. Id.; see also Bunnell v. Sullivan, 947

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F.2d 341, 345 (9th Cir. 1991) (“[S]o long as the pain is associated with a clinically demonstrated

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impairment, credible pain testimony should contribute to a determination of disability.”)

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Therefore, the record has been fully developed and further administrative proceedings would

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serve no useful purpose. Finally, the claimant testified that she can sit for an hour before needing

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to stand up and for fifteen to twenty minutes, and she needs to lay down for about an hour

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throughout the day. AR 56-57, 59-60. A vocational expert testified that someone with claimant’s

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limitations would be unable to find full-time work. AR 70-74. Accordingly, if claimant’s

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testimony were credited as true, the ALJ would be required to find the claimant disabled on

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remand.

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For the reasons, the Court finds that the decision of the Commissioner of Social Security

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should be reversed and the case should be remanded for award of benefits. See Garrison v.

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Colvin, 759 F. 3d 995, 1021-22 (9th Cir. 2014) (providing that remand for award of benefits is

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appropriate where there is no need to further develop the record, the ALJ failed to provide legally

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sufficient reasons for rejecting evidence, the ALJ would have to find disability if the improperly

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discredited evidence were credited as true, and record afforded no reason to doubt that claimant

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was disabled).

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Accordingly, the Court GRANTS Plaintiff’s appeal from the administrative decision of

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the Commissioner of Social Security and the case is remanded to the Social Security

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Administration for calculation and award of benefits. The Clerk of the Court is DIRECTED to

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enter judgment in favor of Plaintiff and against Defendant Commissioner of Social Security.

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IT IS SO ORDERED.
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Dated:

October 11, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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