Alam v. Commissioner of Social Security

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/27/18, RECOMMENDING that Plaintiff's 19 motion for summary judgment be denied, Defendant's 25 cross-motion for summary judgment be granted and the Clerk be directed to enter judgment and close this file. Matter REFERRED to District Judge John A. Mendez. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUBINA ZAFAR ALAM,

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Plaintiff,

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No. 2:17-CV-0701-JAM-CMK

vs.

FINDINGS AND RECOMMENDATIONS

COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.
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Plaintiff, who is proceeding with retained counsel, brings this action under

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42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.

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Pending before the court are plaintiff’s motion for summary judgment (Doc. 19) and defendant’s

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cross-motion for summary judgment (Doc. 25).

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I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on October 7, 2013. See CAR 20.1 In

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the application, plaintiff claims that disability began on December 31, 2010. See id. Plaintiff’s

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claim was initially denied. Following denial of reconsideration, plaintiff requested an

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administrative hearing, which was held on September 16, 2015, before Administrative Law

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Judge (“ALJ”) Dianne S. Mantel. See id. In a November 4, 2015, decision, the ALJ concluded

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that plaintiff is not disabled based on the following relevant findings:

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1.

The claimant has the following severe impairment(s): fibromyalgia,
cervical spondylosis and status post lumbar surgeries including
laminectomy;

2.

The claimant does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in the regulations;

3.

The claimant has the following residual functional capacity: medium
work; the claimant cannot perform work where the pace of productivity is
controlled by an external source over which she has no control, such as an
assembly line or conveyor belt;

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Considering the claimant’s age, education, work experience, residual
functional capacity, and vocational expert testimony, plaintiff can perform
her past relevant work and there are jobs that exist in significant numbers
in the national economy that the claimant can also perform.

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See id. at 22-34.
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After the Appeals Council declined review on January 30, 2017, this appeal followed.

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II. STANDARD OF REVIEW

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The court reviews the Commissioner’s final decision to determine whether it is:

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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521

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Citations are to the Certified Administrative Record lodged on August 28, 2017

(Doc. 13).
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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to

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support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

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including both the evidence that supports and detracts from the Commissioner’s conclusion, must

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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones

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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

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findings, or if there is conflicting evidence supporting a particular finding, the finding of the

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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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Therefore, where the evidence is susceptible to more than one rational interpretation, one of

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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

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Cir. 1988).

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III. DISCUSSION

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In her motion for summary judgment, plaintiff argues: (1) the ALJ improperly

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evaluated the medical opinions of state agency consultants, Drs. Gilper and Zeutlin, and treating

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physician, Dr. Moynihan; (2) the ALJ’s credibility finding is not supported by substantial

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evidence; and (3) in determining plaintiff’s residual functional capacity, the ALJ erred by failing

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to comply with Social Security Ruling 12-2p with respect to evaluation of fibromyalgia, which

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was found to be a severe impairment. Plaintiff also argues that, as a result of these errors, the

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ALJ further erred by relying on vocational expert testimony based on hypothetical questions that

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did not accurately reflect plaintiff’s residual functional capacity.

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A.

Evaluation of Medical Opinions
The weight given to medical opinions depends in part on whether they are

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proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d

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821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating

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professional, who has a greater opportunity to know and observe the patient as an individual,

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than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285

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(9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given

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to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4

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(9th Cir. 1990).

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In addition to considering its source, to evaluate whether the Commissioner

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properly rejected a medical opinion the court considers whether: (1) contradictory opinions are

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in the record; and (2) clinical findings support the opinions. The Commissioner may reject an

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uncontradicted opinion of a treating or examining medical professional only for “clear and

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convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.

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While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

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by an examining professional’s opinion which is supported by different independent clinical

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findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

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1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be

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rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester,

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81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of

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the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

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finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and

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legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

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professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,

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without other evidence, is insufficient to reject the opinion of a treating or examining

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professional. See id. at 831. In any event, the Commissioner need not give weight to any
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conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

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1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion);

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see also Magallanes, 881 F.2d at 751.

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As to the state agency reviewing consultants, Drs. Gilper and Zeutlin, the ALJ

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Drs. Gilper and Zeutlin

stated:

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I have also considered the opinions of reviewing State agency medical
consultants as contained in Disability Determination Explanation forms
[Exhibit 1F, 5A]. The consultants reported their summaries of the medical
record and their concluding opinions, with detailed reference to the
medical record, including consideration of the claimant’s subjective
statements. Among other findings, they noted that the claimant did not
report difficulty walking or mental impairments until much later in the
application process. She primarily complained of right shoulder pain, but
the medical findings were minimal and it appears that the claimant made
good recovery following arthroscopic surgery.

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In evaluating the initial claim, the consultants concluded that the claimant
could perform medium work, with the only non-exertional physical
limitation being occasional reaching with the right upper extremity. On
reconsideration, they noted some improvement in use of the right upper
extremity, and after some discussion, concluded that the claimant could
perform medium work, with non-exertional limitations of occasional
climbing ladders, ropes, and scaffolds, frequently climbing ramps and
stairs, balancing, stooping, kneeling, crouching, and crawling. I give great
weight to the opinions of the reviewing consultants, except finds [sic] that
given the continued complaints of upper extremity pain, the claimant
should never climb ladders, ropes, or scaffolds, and never crawl. She
should be limited to frequent reaching in all directions, including overhead
reaching, and she should avoid all exposure to unprotected heights. These
limitations are included to accommodate the claimant’s pain and fatigue
symptoms, and are reasonable given the severe impairments as listed
above.

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CAR 31.

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In challenging the ALJ’s analysis of these doctors’ opinions, plaintiff states that “. . .the ALJ did

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not agree that Ms. Alam can occasionally use her right upper extremity. . . .” Plaintiff adds: “The

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ALJ’s reasons for finding that Ms. Alam is less limited in the use of her right extremity than

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found by the State agency medical consultants are not supported by substantial evidence.”

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Plaintiff’s argument is based on a misreading of the doctors’ opinions and the

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ALJ’s analysis. First, the doctors did not opine, as plaintiff suggests, that she is limited to only

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occasional use of her right upper extremity. To the contrary, and as the ALJ notes, the doctors

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ultimately reached exactly the opposite conclusion. While the doctors initially found that

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plaintiff was limited to only occasional right upper extremity use, they noted improvement and,

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on reconsideration, concluded that plaintiff has no restriction with respect to her right upper

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extremity. The only restrictions noted by the doctors on reconsideration were with respect to

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climbing ladders, ropes, and scaffolds, frequently climbing ramps and stairs, balancing, stooping,

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kneeling, crouching, and crawling. See CAR 104-14, 123-38. Second, the ALJ did not find that

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the plaintiff is less restricted in right upper extremity, as also stated by plaintiff. Again to the

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contrary, the ALJ restricted plaintiff to frequent use of the right upper extremity, whereas the

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doctors opined plaintiff has no restriction.

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Plaintiff also argues that the ALJ erred by relying on the agency doctors’ opinions

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because they are outdated and the doctors did not have the benefit of reviewing plaintiff’s records

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relating to fibromyalgia. As noted by plaintiff, Drs. Gilper and Zeutlin rendered their opinions in

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December 2013 and April 2014, respectively. Plaintiff alleged disability beginning in December

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2010 and fibromyalgia was not even suspected until plaintiff began treating with Dr. Moynihan

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in January 2014. Given this history, the court does not agree with plaintiff that the opinions of

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Drs. Gilper and Zeutlin are rendered irrelevant due to the passage of time. To the contrary, they

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reflect an assessment of plaintiff’s condition as it existed three years after the alleged onset date

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and just before fibromyalgia was indicated as a diagnosis by Dr. Moynihan on a March 2014

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check-the-box form. Moreover, the record reflects that plaintiff submitted evidence of her

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condition after Drs. Gilper and Zeutlin rendered their opinions and after fibromyalgia was

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diagnosed in 2014, and the hearing decision reflects that the ALJ considered this evidence.

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2.

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Regarding treating physician, Dr. Moynihan, the ALJ stated:

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In 2014 the claimant’s primary care was taken over by Kevin Moynihan,
M.D. The claimant again reported lower back pain with sciatica, right
shoulder pain, and bilateral hand pain on January 28, 2014. Evidently the
claimant did not have continuous pain symptoms, as the record states that
at the time of the examination she was not taking any pain medications.
Because the claimant reported pain in both hands, her doctor suspected
bilateral CTS [carpal tunnel syndrome]. The claimant also complained of
diffuse aches and pain, fatigue, depression, and anxiety. The claimant
stated she felt tired all of the time and was depressed. The doctor
suspected fibromyalgia due to the diffuse aches and fatigue and notes
multiple trigger points on the arms, legs, upper back, neck and chest, as
reported. The claimant also stated she had some urinary incontinence.
The only treatment offered was Effexor 75 mg for depression, Prilosec 40
mg for GERD symptoms, and Naproxen 500 mg two per day for pain, and
referral for additional testing was directed [Exhibit 4F18]. A cervical xray obtained February 5, 2014, showed degenerative spondylosis, but no
fractures or lesions and normal vertebral alignment [Exhibit 4F27].

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Dr. Moynihan

At a follow-up on February 14, 2014, the claimant’s treating doctor
diagnosed fibromyalgia, wrist pain, carpal tunnel syndrome, depression,
GERD, lower back pain, neck pain, sciatica, shoulder pain, and urinary
incontinence [Exhibit 4F14]. This recitation of medical conditions seems
to be a mix of subjective complaints and clinical findings and is not
especially helpful in evaluating the claimant’s limitations. A MRI of the
lumbar spine was ordered by that study, if obtained, has not been
submitted as part of the medical record [Exhibit 4F14].

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Dr. Moynihan saw the claimant on March 23, 2014. The treatment record
indicates this was a follow-up appointment for shoulder and back pain.
The doctor listed diagnoses as fatigue, fibromyalgia, lower back pain, and
neck pain. On examination, the doctor found that the neck was normal,
the neurological examination was normal, and the claimant move [sic] all
extremities, walked with a normal gait, and was alert and oriented x 3.
Again the only treatment forward was with medications of Effexor,
Prilosec, and Naproxen [Exhibit 4F4]. The treatment record from this date
is especially significant as the doctor prepared a medical source statement
the same date stating that the claimant was unable to perform sedentary
work. This treatment record contains very little that would support the
doctor’s opinion as to functional limitations. There are no recorded
findings such as clinical observations, testing, or other office procedures
that would be expected given the extreme limitations recommended by the
doctor. . . .

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A little over a month later on April 7, 2014, Dr. Moynihan again listed the
claimant’s multiple conditions, as including suspected fibromyalgia,
complaints of diffuse aches, pains, and fatigue, and complaints of
depression and anxiety. The right shoulder pain had improved with
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medication, but the claimant still reported lower back pain with sciatica
and wrist and hand pain. The only treatment was continuation of
medications [Exhibit 8F47].
In the most recent treatment record from Dr. Moynihan dated July 21,
2015, the claimant reported negative side effects from Effexor so the
prescription was terminated. The claimant reported left elbow pain for the
past four or five months, fatigue, diffuse aches and pain. The doctor
concluded that these symptoms were consistent with fibromyalgia.
Ditropan was prescribed for urinary incontinence and the doctor
considered in the future prescribing Lyrica if fibromyalgia type symptoms
persisted [Exhibit 8F3].

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. . .[O]n March 3, 2014, Dr. Moynihan completed a checkbox form, stating
that the claimant [is] unable to perform full-time work at a sedentary level.
She had limitations in standing, sitting, lifting, bending, fingering, or
reaching. The doctor did not define or describe the extent or degree of
limitations, only that the claimant had limitations. The doctor stated that
the claimant had fibromyalgia, diffuse aches and pains and fatigue, carpal
tunnel syndrome, and chronic shoulder pain [Exhibit 7F]. This opinion is
given little weight. As discussed above, the treatment record from the
same date this opinion was prepared does not contain observations, signs,
symptoms, or findings that support a limitation to sedentary exertional
capability. The examination was generally normal and there were no xrays or other objective diagnostic test results reviewed, or anything in the
limited record that would explain the extent of limitation in standing,
sitting lifting, bending, fingering, or reaching. . . .

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CAR 29-31.

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Plaintiff argues that the ALJ’s focus on lack of objective findings and inconsistency with

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objective findings is inappropriate in fibromyalgia cases.

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The court does not agree with plaintiff for the simple reason this is not a

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fibromyalgia case. Plaintiff claims disability beginning December 2010. Fibromyalgia was not

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even first suspected until January 2014 and not diagnosed until March 2014. Therefore, it cannot

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be said that plaintiff claims disability due to fibromyalgia, a condition which had not even been

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suspected as of the alleged onset date. Moreover, as noted by the ALJ, fibromyalgia was

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diagnosed by Dr. Moynihan on March 3, 2014, even though the doctor observed normal objective

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findings in an examination conducted that same day. Finally, as late as July 2015, Dr. Moynihan

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was only considering prescribing medication to treat fibromyalgia, suggesting that the
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impairment was not as disabling as the doctor suggests in his March 2014 check-the-box form.

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Therefore, to the extent Dr. Moynihan’s opinions are based on his diagnosis of fibromyalgia, the

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court finds that the ALJ did not err by giving little weight to the doctor’s conclusory opinion.

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See Meanel, 172 F.3d at 1113.

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B.

Credibility Assessment

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The Commissioner determines whether a disability applicant is credible, and the

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court defers to the Commissioner’s discretion if the Commissioner used the proper process and

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provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit

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credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903

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F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d

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821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible

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and what evidence undermines the testimony. See id. Moreover, unless there is affirmative

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evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not

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credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d

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1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),

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and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

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If there is objective medical evidence of an underlying impairment, the

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Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely

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because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d

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341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

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The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
be a reasonable inference, not a medically proven phenomenon.
80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).

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The Commissioner may, however, consider the nature of the symptoms alleged,

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including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,

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947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the

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claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent

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testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a

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prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and

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(5) physician and third-party testimony about the nature, severity, and effect of symptoms. See

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Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the

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claimant cooperated during physical examinations or provided conflicting statements concerning

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drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the

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claimant testifies as to symptoms greater than would normally be produced by a given

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impairment, the ALJ may disbelieve that testimony provided specific findings are made. See

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Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

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As to the credibility of plaintiff’s statements and hearing testimony, the ALJ
stated:
The claimant testified [on September 16, 2015] that she has [sic] two
lower back surgeries a week apart when she was 27 or 28, almost 30 years
ago and another lower back surgery in 2009. She has chronic pain in her
back and also her neck. The pain occurs even with just sitting. She has
difficulty standing, walking, and bending. She has pain radiating down
both legs. The claimant estimated that she can sit for an hour, stand 30-45
minutes, and walk only about 10-15 minutes. She has difficulty rising
from a sitting to a standing position. The claimant estimated that she can
only lift or carry 10 pounds or less without having pain symptoms.
In addition to back problems, the clamant testified that she has shoulder
pain not resolved by surgery or physical therapy and bilateral elbow and
hand pain, which she attributes to carpal tunnel syndrome of arthritis. She
also has migraine headaches. She takes over the counter extra strength
Tylenol for headaches, and thought her doctor had given her a new
medication or will give medication at the next appointment. Headaches
occur every two or three days but sometimes every day. The claimant also
testified that she has urinary incontinence and wears special clothing and
takes medication. Her doctor has advised that if the problem does not
resolve surgery may be needed.

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The claimant takes pain medications which help a little with symptoms,
but cause side effects of stomach ache and constipation, for which she has
been prescribed medication.

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The claimant testified that she lives with her spouse and adult children.
She does her own self-care, prepares meals, does household chores, drives,
and attends religious services. She gets help from her family when she has
too much pain. She walks around at times during the day, and watches
and follows television shows, The claimant testified that she feels nervous
when attending religious services and has trouble getting along with
people there. At times she yells at her family when feeling overwhelmed
by all the people in the house. When this occurs she is able to calm herself
by sitting quietly and silently in her bedroom. On average, she lies down
three or four times during the day to rest for an hour.

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In addition to the claimant’s testimony, I have considered all other
statements submitted in support of the claimant’s application.

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In the initial Disability Report dated October 15, 2013, the claimant listed
only back and shoulder injuries. She stated that she could speak and
understand English, but could not read or write the language [Exhibit 2E].

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The claimant described a wide range of daily activities in an Exertional
Activities Questionnaire prepared November 13, 2013. The claimant
stated that she walked normally, but could not lift heavy things, only small
household or kitchen items. She could drive for about 100 miles but then
would feel pain and numbness in her neck, shoulder, arms, and back. The
claimant traveled to Pakistan in 2012, and at times used a wheel chair to
assist with ambulation. Such long distance travel would likely be arduous
and inconsistent with the degree of limitations and symptoms described by
the claimant . Why she used a wheel chair is not explained, as she stated
earlier in the Questionnaire that she was able to walk normally [Exhibit
6E].

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In a Disability Report Appeals dated February 10, 2014, the claimant
alleged that back and shoulder pain was much worse, and starting in 2013
she became very depressed. Her doctor prescribed Effexor for depression,
Naproxen for pain, and Prilosec as an acid reducer. The claimant reported
no negative side effects from medications [Exhibit 6E]. A final Disability
Report Appeals was completed June 20, 2014. The claimant [stated] she
was limited in sitting, standing, and bending, and could not drive. She had
frequent urination urgency, and increased neck, shoulders, and back pain
starting about February 2014. She had wrist pain that made brushing her
teeth and combing her hair difficult. She wore braces on both wrists. The
claimant alleged that she had a “poor attitude” because of the severity of
pain symptoms, and limited her outside activities because of pain [Exhibit
7E].

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As of July 14, 2015, the claimant was taking Omeprazole 40 mg for
GERD, Effexor 75 mg 1/day for depression and Naproxen 500 mg for
pain. No negative side effects of medications were reported [Exhibit 11E].

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CAR 26-28.

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In finding plaintiff’s statements and testimony “not entirely credible,” the ALJ

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stated: “The record does show that the claimant has some pain, aches, and limitations, but the

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medical record does not support the severity, intensity, and frequency of symptoms and

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limitations as alleged by the claimant. . . .” Id. at 28. In particular, the ALJ noted that evidence

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shows plaintiff’s symptoms were generally well-controlled with medications. See id. Finally, in

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support of her conclusion, the ALJ outlined the following longitudinal history of plaintiff’s

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treatment records through January 2014, when plaintiff’s primary care was taken over by Dr.

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Moynihan (discussed above):

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2008

Treatment record for neck and back pain begins. Without
reference to any clinical findings, plaintiff was diagnosed
with cervical radiculopathy, intractable neck pain, cervical
degenerative disc disease, and chronic pain syndrome in
June 2008 [Exhibit 11F11]. In July 2008, plaintiff told her
doctor she used a cane for standing and bending and could
only stand for about 15 minutes, though the record is silent
as to the need for an assistive device [Exhibit 1F2].

2009

The record contains no evidence to support plaintiff’s
testimony that she had back surgery in 2009.

2010

Plaintiff underwent arthroscopic surgery on February 15,
2010 [Exhibit 2F15]. Ten days after surgery, plaintiff
reported significant pain [Exhibit 2F5]. An April 2010
physical therapy report indicated an improved range of
motion. On April 12, 2010, plaintiff reported to her doctor
that she was feeling good overall [Exhibit 2F6].

2011-12

The ALJ noted little significant treatment until November
2012, at which time plaintiff reported that she was unable
to return to work without pain [Exhibit 2F].

2013

In March 2013, plaintiff reported continued pain, especially
in the elbow, forearm, and fingers. A focused examination
of her shoulder was normal. There were no significant
tender points and any orthopedic cause of plaintiff’s pain
was ruled out. The doctor referred plaintiff to a
rheumatologist to rule out fibromyalgia, arthritis, or any

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other auto-immune disorder ]Exhibit 2F9].

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In October 2013, plaintiff’s doctor diagnosed rotator cuff
syndrome and recommended that she remain off work “for
the time being,” despite normal objective findings on
examination including full range of motion and no
tenderness [Exhibit 2F11].

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See CAR 28-29.

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Once again, plaintiff argues that reliance on the lack of objective evidence to

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support pain claims is inappropriate in fibromyalgia cases. As discussed above, the court finds

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that this is not a fibromyalgia case. In any event, plaintiff misreads the ALJ’s decision regarding

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the credibility of her statements and testimony. While plaintiff would like to characterize the

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ALJ’s reasoning in terms of lack of support by objective evidence, which can be a suspect reason

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in fibromyalgia cases, the ALJ in this case found that the record did not support plaintiff’s

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allegations primarily due to numerous inconsistencies, which is always a valid reason to discount

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a claimant’s credibility. Most notably, plaintiff alleges disability beginning in December 2010,

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but the treatment records through the end of 2013 are unremarkable and fibromyalgia was not

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even suspected until January 2014. Therefore, to the extent plaintiff alleges that she cannot work

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due to pain related to fibromyalgia, this allegation is inconsistent with the record as a whole and

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her alleged onset date in particular.

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There are numerous other inconsistencies. For example, plaintiff’s statements and

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testimony are inconsistent in that she told her doctor in 2008 she required use of a cane, but the

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record reflects no such requirement. Additionally, plaintiff testified that she had back surgery in

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2009 but there is nothing in the record to support this contention. As of July 14, 2015, plaintiff

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was taking Effexor and reported no negative side effects, but just one week later on July 21,

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2015, plaintiff reported to Dr. Moynihan negative side effects from Effexor and the medication

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was discontinued.

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The ALJ also identified numerous inconsistencies in plaintiff’s allegations

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regarding her ability to sit in particular. Though plaintiff alleged that she was disabled as of

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December 2010, in an October 2013 statement plaintiff stated she could drive, presumably in the

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seated position, for a distance of 100 miles which, assuming a top speed of 70 miles per hour,

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would yield of duration of over an hour sitting. In her September 2015 hearing testimony,

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however, plaintiff alleged that she could sit no more than an hour. Compounding this

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inconsistency, the record reflects that plaintiff was able to sit on an airplane long enough to travel

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from the United States to Pakistan in 2012 with the assistance of a wheelchair, which does not

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relate to plaintiff’s ability to sit for the duration of the flight.

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C.

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Application of Social Security Ruling 12-2p
Residual functional capacity is what a person “can still do despite [the

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individual’s] limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003); see also Valencia v.

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Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual functional capacity reflects current

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“physical and mental capabilities”). Thus, residual functional capacity describes a person’s

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exertional capabilities in light of his or her limitations.2

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2

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Exertional capabilities are the primary strength activities of sitting, standing,
walking, lifting, carrying, pushing, or pulling and are generally defined in terms of ability to
perform sedentary, light, medium, heavy, or very heavy work. See 20 C.F.R., Part 404, Subpart
P, Appendix 2, § 200.00(a). “Sedentary work” involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small tools. See 20
C.F.R. §§ 404.1567(a) and 416.967(a). “Light work” involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10 pounds. See 20 C.F.R. §§
404.1567(b) and 416.967(b). “Medium work” involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. See 20 C.F.R. §§
404.1567(c) and 416.967(c). “Heavy work” involves lifting no more than 100 pounds at a time
with frequent lifting or carrying of objects weighing up to 50 pounds. See 20 C.F.R. §§
404.1567(d) and 416.967(d). “Very heavy work” involves lifting objects weighing more than
100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more.
See 20 C.F.R. §§ 404.1567(e) and 416.967(e).
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1

Plaintiff argues that, in determining her residual functional capacity, the ALJ’s

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focus on lack of objective evidence violated Social Security Ruling (“SSR”) 12-2p, which sets

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forth the Commissioner’s policies with respect to evaluating fibromyalgia. Citing Revels v.

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Berryhill, 874 F.3d 648, 662 (9th Cir. 2017), plaintiff states that SSR 12-2p requires the ALJ to

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construe the medical evidence “in light of fibromyalgia’s unique symptoms and diagnostic

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methods. . . .” when analyzing residual functional capacity. Plaintiff notes that the Ninth Circuit

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concluded the ALJ “failed to heed the instructions of those rulings, and instead analyzed her

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symptoms and rejected Revels’ claims without considering the unique characteristics of

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fibromyalgia, the principal source of her disability. . . .” Id. at 652. Plaintiff argues: “The ALJ

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made the same error here” and concludes that the ALJ’s residual functional capacity assessment

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“reflects a fundamental misunderstanding of fibromyalgia.” Specifically, plaintiff contends the

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ALJ erred by focusing on the lack of objective evidence, such as x-rays and MRI scans, or

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“objective positive findings” on examination, instead of “trigger points, which are found on

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examination throughout Dr. Moynihan’s records.”

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As discussed above, the court does not agree with plaintiff that this is a

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fibromyalgia case in the sense that she is claiming disability due to fibromyalgia-related pain

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symptoms, as was the case in Revels. But, even if this was a true fibromyalgia case, the court

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finds that the ALJ complied with SSR 12-2p. Specifically, as Revels and the ruling mandate, the

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ALJ considered the longitudinal history of the record. See Revels, 874 F. 3d at 656-57. The ALJ

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outlined the record from 2008 through the most recent treatment record from Dr. Moynihan dated

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July 21, 2015, and found Dr. Moynihan’s opinions and plaintiff’s credibility suspect, findings

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which, for the reasons discussed above, the court finds to be based on proper legal analysis and

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substantial evidence. Though plaintiff would prefer for this court to review the record and reach

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a different result, doing so would exceed the court’s jurisdiction under 42 U.S.C. § 405(g).

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1

D.

2

Vocational Finding
Because the court does not find any errors with respect to plaintiff’s residual

3

functional capacity, the court also rejects plaintiff’s argument that the ALJ erred by relying on the

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vocational expert’s testimony.

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6

IV. CONCLUSION

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Based on the foregoing, the court concludes that the Commissioner’s final

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decision is based on substantial evidence and proper legal analysis. Accordingly, the

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undersigned recommends that:

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1.

Plaintiff’s motion for summary judgment (Doc. 19) be denied;

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2.

Defendant’s cross-motion for summary judgment (Doc. 25) be granted;

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3.

The Clerk of the Court be directed to enter judgment and close this file.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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and

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DATED: August 27, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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