Vargas v. Saul
MEMORANDUM DECISION AND ORDER - The Petition for Review (Dkt. 1 ) is GRANTED. This action shall be REMANDED to the Commissioner for further proceedings consistent with this opinion. This Remand shall be considered a sentence four remand, consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 1:19-CV-00299-CWD
Commissioner of Social Security
Currently pending before the Court for its consideration is Josefina Vargas’s
Petition for Review of the Respondent’s denial of social security benefits, filed on August
1, 2019. (Dkt. 1.) The Court has reviewed the Petition for Review, the parties’
memoranda, and the administrative record (AR), and for the reasons that follow, will
remand the decision of the Commissioner.
MEMORANDUM DECISION AND ORDER - 1
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed a Title II application for a period of disability and disability
insurance benefits, and a Title XVI application for supplemental security income, on
September 4, 2015, claiming disability beginning May 30, 2014. 1 The applications were
denied initially and on reconsideration, and a hearing was conducted on June 15, 2018,
before Administrative Law Judge (ALJ) David Willis. After considering testimony from
Petitioner and a vocational expert, ALJ Willis issued a decision on August 15, 2018,
finding Petitioner not disabled. Petitioner timely requested review by the Appeals
Council, which denied her request for review on June 7, 2019.
Petitioner timely appealed this final decision to the Court. The Court has
jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was fifty-four years of age. Petitioner lacks
formal schooling beyond the first grade; is unable to speak, read or write in English; and
is unable to read or write in Spanish, her native language. Petitioner’s prior work
experience includes a twenty-year history of seasonal work as a potato sorter.
An individual is considered disabled if he or she “is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
Petitioner later amended her onset date to November 1, 2016.
MEMORANDUM DECISION AND ORDER - 2
expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §
1382c(a)(3)(A). An individual “shall be determined to be under a disability only if his [or
her] physical or mental impairment or impairments are of such severity that he [or she] is
not only unable to do his [or her] previous work but cannot, considering his [or her] age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy….” 42 U.S.C. § 1382c(a)(3)(B)
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is engaged in substantial gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since her alleged amended
onset date of November 1, 2016. 2 At step two, it must be determined whether the
claimant suffers from a severe medically determinable impairment. The ALJ found
Petitioner’s degenerative disc disease and diabetes mellitus (type II) severe within the
meaning of the Regulations. The ALJ did not consider Petitioner’s cataracts, neck and
shoulder pain, acid reflux, hypothyroidism, gastritis, left leg weakness, decreased left grip
strength, wrist abduction, and shoulder abduction severe. The ALJ found that Petitioner’s
evidence did not meet the criteria for a diagnosis of fibromyalgia.
Step three asks whether a claimant’s impairments meet or equal a listed
At the hearing, Petitioner testified she amended her onset date to correspond with the
date she ceased babysitting her daughter’s children. (AR 53.) However, the ALJ in his written
decision indicated the Petitioner’s onset date was May 30, 2014. (AR 36.) It appears the ALJ’s
reference to May 30, 2014, is in error, because later in the decision he notes the onset date
occurred “about a year-and-a-half” after May of 2015. (AR 43.)
MEMORANDUM DECISION AND ORDER - 3
impairment. The ALJ found that Petitioner’s impairments did not meet or equal the
criteria for any listed impairments. The ALJ specifically considered whether the severity
of Petitioner’s physical impairments, considered singly and in combination, met or
medically equaled the criteria of Listing 1.04 (Spine Disorders); and 9.00 (Diabetes
Mellitus and Other Pancreatic Glad Disorders), which directed the ALJ to consider all
related listings for the body systems affected by poorly controlled diabetes. (AR 39 – 40.)
If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess
the claimant’s residual functional capacity (RFC) and next determine, at step four,
whether the claimant has demonstrated an inability to perform past relevant work.
In determining Petitioner’s RFC, the ALJ found that Petitioner’s impairments
could reasonably be expected to cause the symptoms she alleged, but that her statements
about the intensity, persistence, and limiting effects of her conditions were not entirely
consistent with the medical evidence and other evidence of record. (AR 40.) As part of
his evaluation of Petitioner’s RFC, the ALJ found Petitioner less than fully credible.
The ALJ determined Petitioner retained the RFC to perform light work as defined
in 20 C.F.R. § 404.1567(b), with the following limitations:
[The Claimant] can push, pull, lift, or carry 20 pounds
occasionally and 10 pounds frequently. In an 8-hour workday,
she can stand and/or walk for 6 hours and sit for 6 hours. She
can frequently climb ramps or stairs, but she can never climb
ladders, ropes, or scaffolds. She can frequently balance stoop,
kneel, crouch, or crawl. She will be off-task 10% of an 8-hour
workday in addition to normal work breaks, and she will miss
1 day of work per month.
MEMORANDUM DECISION AND ORDER - 4
(AR 40.) In determining Petitioner’s RFC, the ALJ indicated he considered the objective
evidence of tender points related to Petitioner’s fibromyalgia symptoms. (AR 39.)
Based upon the RFC determination, the ALJ found Petitioner was able to perform
her past relevant work as a potato sorter. Therefore, the ALJ did not consider whether, at
step five, Petitioner retained the capacity to make an adjustment to other work that exists
in significant levels in the national economy, considering her residual functional capacity,
age, education, and work experience. Accordingly, the ALJ found Petitioner not disabled.
STANDARD OF REVIEW
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42
U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474
(1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v.
Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a
preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports Petitioner’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,
MEMORANDUM DECISION AND ORDER - 5
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the Commissioner, the decision
must be upheld even when the evidence can reasonably support either affirming or
reversing the Commissioner’s decision, because the Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th
The following three issues are raised on appeal:
Did the administrative law judge (ALJ) reasonably conclude that the record
was sufficiently developed?
Did the ALJ err in finding Petitioner’s fibromyalgia was neither medically
determinable nor severe at step two?
Did the ALJ reasonably evaluate Petitioner’s subjective complaints
concerning her symptoms?
The Court finds the ALJ erred at step two, rendering his evaluation of Petitioner’s
subjective complaints concerning her symptoms erroneous. The Court finds the errors
were not harmless, and require remand, as explained below.
Petitioner’s treating providers first documented Petitioner’s complaints of diffuse
tender points on December 23, 2016, 3 when she complained of pain in her back, neck,
This date is shortly after Petitioner’s amended onset date of November 1, 2016.
MEMORANDUM DECISION AND ORDER - 6
upper back, and between her shoulder blades. (AR 473.) 4 She received trigger point
injections and reported temporary relief. (AR 473.) Physical examination revealed
tenderness to palpitation of the paracervical muscles and trigger points. (AR 474.)
Examinations by both Brennen Larsen, PA-C, and Dr. Gillette throughout 2017
revealed continued complaints of pain in Petitioner’s neck, arms and legs with associated
soreness and left sided weakness. (AR 478, 479, 480.) Examination results in January of
2017 revealed tenderness to palpitation of the paracervical muscles and cervical spine
tenderness and muscle spasms, as well as diffuse tenderness of the deltoid, chest wall and
upper thigh. (AR 478-479.) On June 28, 2017, Dr. Gillette recorded complaints of left
head and shoulder discomfort with associated spasm and tightness. (AR 503.) Physical
examination confirmed left muscle tightness with trigger points in Petitioner’s neck. (AR
504.) Trigger point injections were performed, with “good effect.” (AR 505-506.)
Nonetheless, Petitioner’s pain persisted. (AR 507.) On July 21, 2017, Petitioner
complained of left side pain, along with tingling in her chest and arm. (AR 507.)
Examination revealed tenderness to palpitation in her upper back and tingling in her
upper arm and neck. (AR 508.) EKG results were normal, leading Dr. Gillette to
conclude Petitioner’s left chest pain was related to “muscular pain in this area.” (AR
On January 10, 2018, Dr. Gillette recorded complaints of joint and back pain,
Petitioner was examined by Brennen Larsen, PA-C, who was supervised by Petitioner’s
treating physician, Dr. Gillette.
MEMORANDUM DECISION AND ORDER - 7
described as worsening with sitting for long periods in the morning. (AR 527.) Antiinflammatories helped alleviate symptoms, but the effects wore off. (AR 527.) Dr.
Gillette noted painful tender points without physical abnormality bilaterally along the
trapezius, base of the neck, between the elbows and knees, on the inner thighs, in the low
back or sacroiliac joint, and near the ankles. (AR 528.) Dr. Gillette diagnosed
fibromyalgia, and ordered lab tests, including a Sed Rate/ESR, ANA, rheumatoid factor,
and CRP testing, along with a comprehensive metabolic panel, to rule out another
disorder or inflammatory condition that could be causing or contributing to Petitioner’s
symptoms. (AR 529 – 530.) 5
On January 26, 2018, Petitioner returned to Dr. Gillette complaining of left sided
arm pain as well as general diffuse muscle pain, left sided weakness, and headache. (AR
531.) Physical examination revealed tenderness in the trapezius bilaterally, greater on
left, diminished grip strength on left, and multiple tender points on her upper and lower
back, knees, ankles, wrists, forearms, elbows, and shoulders. (AR 532.) Dr. Gillette
confirmed his diagnosis of fibromyalgia, began a prescription for Lyrica, and
administered trigger point injections. (AR 532.) Petitioner returned to Dr. Gillette’s office
on February 20 and 23, 2018, complaining of diffuse joint and muscle pain. (AR 533,
SSR 12-2p indicates that other disorders that may have symptoms similar to those
resulting from fibromyalgia include rheumatologic disorders, myofacial pain syndrome,
polymyalgia rheumatica, chronic Lyme disease, and cervical hyperextension-associated or
hyperflexion-associated disorders. SSR 12-2p, 2012 WL 3104869 at *2, n.7. Testing may
include imaging and other laboratory tests (for example, complete blood counts, erythrocyte
sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor). Id. at *2.
The results of the lab tests Dr. Gillette ordered are not in the record.
MEMORANDUM DECISION AND ORDER - 8
536.) Multiple tender points were again noted. (AR 537.) Medication dosage was
doubled. (AR 538.)
On March 31, 2018, Dr. Gillette noted some improvement in Petitioner’s
complaints of pain since the increase in medication dosage. (AR 541.) However,
Petitioner described worsening pain in her low back when moving, and loss of grip
strength. (AR 541.) She reported pain in her upper back, shoulders, and elbows, and pain
with movement. (AR 541.) Examination results confirmed tender points bilaterally at the
trapezius muscles, base of neck, base of head, elbows, wrists, SI joints, knees, and ankles.
(AR 542.) Dr. Gillette noted he wrote an updated letter confirming she was unable to
work. (AR 543.) 6 Cervical x-rays were obtained on June 25, 2018, noting normal findings
of the cervical spine and no physical abnormalities that could account for Petitioner’s loss
of grip strength. (AR 553.) An earlier lumbar spine x-ray, taken January 5, 2016,
similarly contained normal, and unremarkable findings. (AR 430-31.)
At step two, the ALJ summarized Petitioner’s treatment history leading to the
January 10, 2018 diagnosis of fibromyalgia, and her treatment thereafter. (AR 39.) He
noted that blood tests were ordered, but that the results were not in the record. The
absence of test results led the ALJ to conclude that Dr. Gillette did not rule out another
etiology for Petitioner’s symptoms, such as an inflammatory arthritic cause. Therefore,
the ALJ concluded Petitioner’s evidence did not meet the diagnostic criteria set forth in
A copy of the letter is not in the record.
MEMORANDUM DECISION AND ORDER - 9
SSR 12-2p for fibromyalgia. Nonetheless, the ALJ stated that he considered Petitioner’s
objective evidence of tender points in developing her RFC assessment.
The ALJ Erred at Step Two
Petitioner argues the ALJ erred by failing to classify her fibromyalgia as a
medically determinable impairment at step two of the evaluation process. Pet. Brief at 7 –
13. (Dkt. 16.) Petitioner contends the ALJ’s error at step two resulted in a “ripple effect”
of errors, specifically an erroneous credibility finding. Pet. Brief at 4, 13. Respondent
argues the ALJ reasonably found Petitioner did not meet her burden at step two to prove
she had fibromyalgia. Alternatively, Respondent argues any error at step two was
harmless, because although the ALJ concluded Petitioner’s fibromyalgia was not a
medically determinable impairment, the ALJ considered Petitioner’s “tender points” in
developing her RFC. Resp. Brief at 7 – 8. (Dkt. 18 at 7 – 8.)
At step two, the ALJ determines if the claimant has a severe medically
determinable impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii).
To satisfy the severity requirement, the claimant must prove the impairment by providing
objective medical evidence; the claimant’s own statement of symptoms alone will not
suffice. See 20 C.F.R. § 416.921. An impairment is considered “severe” if a claimant’s
physical or mental ability to complete basic work activities are significantly limited. Id. §
404.1520. Basic work activities include the “abilities and aptitudes necessary to do most
jobs,” such as walking, sitting, lifting, speaking, remembering simple instructions, using
judgment, and adapting to changes in a routine work setting. See 20 C.F.R. § 404.1522.
MEMORANDUM DECISION AND ORDER - 10
The purpose of this step is to filter out claims that are too weak to be eligible for
disability benefits. Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (“Step two is
merely a threshold determination meant to screen out weak claims.”). If the analysis
proceeds past step two, the lack of severity classification will usually be immaterial. Id. at
1048-49. This is because step two “is not meant to identify the impairments that should
be taken into account when determining the RFC.” Id. This is largely because, when the
ALJ assesses the RFC in the proceeding step, he or she must consider all limitations and
restrictions imposed by reason of an individual’s medically determinable impairment or
combination of impairments, even those not characterized as severe. Id. at 1049; SSR 968p, 1996 WL 374184 (S.S.A. July 2, 1996).
Fibromyalgia “is a complex medical condition characterized primarily by
widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted
for at least 3 months.” SSR 12-2p (S.S.A. July 25, 2012), 2012 WL 3104869 at *2. The
Commissioner will find that a person has a medically determinable impairment of
fibromyalgia if: (1) his or her treating physician diagnosed fibromyalgia and provides
certain supporting evidence; and (2) the physician’s diagnosis “is not inconsistent with
the other evidence in the person’s case record.” Id. at *2. Briefly stated, the evidence
necessary to support a fibromyalgia diagnosis is: (1) a history of widespread pain, at least
eleven “tender points” on physical examination, and evidence that other possible
diagnoses were excluded; or (2) a history of widespread pain, repeated manifestations of
six or more fibromyalgia symptoms, and evidence that other possible diagnoses were
MEMORANDUM DECISION AND ORDER - 11
excluded. Id. at 2-3. Additionally, the evidence must document that the physician
reviewed the person’s medical history and conducted a physical exam. Id.
The Court finds the ALJ did not support with substantial evidence his finding at
step two that Petitioner’s fibromyalgia symptoms failed to amount to a severe medically
determinable impairment. Essentially, the ALJ found the medical evidence in the record
did not fulfill the diagnostic criteria for fibromyalgia, because there was no evidence that
other disorders, such as inflammatory arthritis, that could cause the symptoms or signs,
were ruled out. (AR 39.) The record, however, does not support the ALJ’s conclusion.
After continued and consistent complaints of diffuse, widespread pain since
Petitioner’s amended onset date of November 1, 2016, Dr. Gillette on January 10, 2018,
diagnosed Petitioner with fibromyalgia based upon clinical findings that she exhibited
fourteen tender points. This is three more than the diagnostic criteria set forth in SSR 122p require. There are test results in the record indicating Dr. Gillette considered, and ruled
out, other disorders that could cause similar symptoms. He ordered an EKG to rule out
other causes for her complaints of chest pain, as well as lab tests to rule out other diseases
that could account for her symptoms. Although the results of the lab tests ordered on
January 10, 2018, are not in the record, notably Dr. Gillette did not alter his fibromyalgia
diagnosis at later visits in January, February, and March. Rather, Dr. Gillette confirmed his
diagnosis of fibromyalgia, and began treating Petitioner with Lyrica instead of anti-
MEMORANDUM DECISION AND ORDER - 12
inflammatory medication. 7 See Buell v. Berryhill, 716 F. App’x 600, 602 (9th Cir. 2017)
(finding the ALJ erred at step two when he concluded the claimant did not meet ACR
diagnostic criteria set forth in SSR 12-2p, when claimant exhibited fourteen tender points
and evidence excluded other causes). Cervical and lower lumbar spine imaging were
normal, confirming there was no physical abnormality contributing to Petitioner’s cervical
or lumbar spine symptoms. 8
The Court finds this evidence conforms to the diagnostic requirements set forth in
SSR 12-2p and concludes the ALJ’s determination that Petitioner’s fibromyalgia was not
a medically determinable impairment is not supported by substantial evidence in the
Petitioner argues the ALJ had a duty to obtain the results of this lab testing and
recontact Dr. Gillette. “The ALJ in a social security case has an independent ‘duty to fully and
fairly develop the record and to assure that the claimant’s interests are considered.’” Tonapetyan
v. Halter, 242 F.3d 1144, 1151 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1288
(9th Cir. 1996)). But an ALJ’s duty to develop the record further is triggered only when there is
ambiguous evidence or when the record is inadequate to allow for proper evaluation of the
evidence. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (citing Mayes v. Massanari, 276
F.3d 453, 459–60 (9th Cir. 2001)). There is some merit to Petitioner’s argument here, given the
ALJ was on notice that lab tests utilized to rule out other diagnoses were ordered, yet he relied
upon the lack of lab results in the record to support his finding that Petitioner’s fibromyalgia did
not constitute a medically determinable impairment at step two. However, the Court finds the
absence of the actual lab results of no moment here, where the record unequivocally establishes
that Dr. Gillette confirmed his diagnosis and continued to treat Petitioner for fibromyalgia after
presumably receiving the results. The record was sufficient, therefore, for the ALJ to make a
determination. Nonetheless, the Court finds fault with the ALJ’s reliance upon the absence of the
test results in the record to support his conclusion, when it was obvious they were missing and
could have been easily requested. See Kerley v. Berryhill, No. 2:16-CV-01841 JRC, 2017 WL
3128390, at *3 (W.D. Wash. July 24, 2017) (finding duty to develop the record was triggered
when the ALJ was put on notice medical records evidencing a physical examination conducted
by Petitioner’s treating physician resulting in a diagnosis of fibromyalgia were missing from the
From the record, it does not appear Dr. Gillette ordered these imaging tests.
Nonetheless, the radiology reports are in the record and the ALJ considered them.
MEMORANDUM DECISION AND ORDER - 13
record as a whole. See Buell v. Berryhill, 716 F. App’x 600, 602 (9th Cir. 2017) (finding
the ALJ erred at step two when he concluded the claimant did not meet ACR diagnostic
criteria set forth in SSR 12-2p, when claimant exhibited fourteen tender points and
evidence excluded other causes).
The ALJ’s Error is Not Harmless
An ALJ’s failure to designate an impairment as severe at step two may be
harmless if the ALJ nonetheless incorporates the functional limitations from that
impairment in the remaining steps of the five-step evaluation. See Lewis v. Astrue, 498
F.3d 909, 911 (9th Cir. 2007) (concluding that any failure to list bursitis as severe at step
two was harmless error where ALJ considered any functional limitations imposed by
bursitis at step four); Burch v. Barnhart, 400 F.3d 676, 682-84 (9th Cir. 2005)
(concluding that any failure to list obesity as severe at step two was harmless error where
ALJ considered any functional limitations imposed by obesity at steps three and five and
in RFC determination). Additionally, an error is generally harmless where it is
“inconsequential to the ultimate nondisability determination.” Stout v. Commissioner,
Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Here, the error was not harmless,
because it affected the ALJ’s determinations in later steps of the sequential analysis and
may have influenced the ultimate determination of Petitioner’s nondisability status. Buell
v. Berryhill, 716 F. App’x 600, 602 (9th Cir. 2017).
Respondent’s argument that the error at step two is harmless because the ALJ
considered Petitioner’s tender point symptoms at step four is legally flawed. Respondent
MEMORANDUM DECISION AND ORDER - 14
Resp. Brief at 3. Respondent confuses a failure to find that an alleged impairment is
medically determinable with a failure to find that a medically determinable impairment is
severe. Moore v. Berryhill, No. CV 17-3933-E, 2018 WL 2106470, at *2 (C.D. Cal. May
7, 2018). This is because, in assessing residual functional capacity, the ALJ considers
only those impairments found to be medically determinable, even if not deemed severe.
20 C.F.R. § 404.1545(a)(2). Consequently, a finding that Petitioner’s fibromyalgia was
not a medically determinable impairment renders the ALJ’s purported consideration of
“tender points” suspect. A determination that Petitioner’s fibromyalgia was not medically
determinable necessarily means the ALJ did not incorporate all her alleged limitations
from her fibromyalgia into the RFC. See Butler v. Colvin, 2016 WL 8232243, at *4–5
(E.D. Wash. Aug. 23, 2016) (“[B]y classifying Plaintiff’s fibromyalgia as a nonmedically determinable impairment—rather than a severe or non-severe impairment—the
ALJ excluded the effects of this condition when formulating Plaintiff’s RFC, rendering
the ALJ’s RFC finding suspect”); see also Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir.
2012) (erroneous exclusion of impairment at step two rendered RFC determination
incomplete, flawed, and not supported by substantial evidence in the record); Kerley v.
Berryhill, No. 2:16-CV-01841 JRC, 2017 WL 3128390, at *4 (W.D. Wash. July 24,
2017) (failure to find fibromyalgia was a medically determinable impairment at step two
rendered RFC determination incomplete – ALJ did not credit Petitioner’s fibromyalgia
The failure at step two to find Petitioner’s fibromyalgia a medically determinable
MEMORANDUM DECISION AND ORDER - 15
impairment affected the ALJ’s consideration of Petitioner’s symptom testimony.
Although the ALJ considered Petitioner’s testimony describing her pain in her neck, left
shoulder, left hand, and left leg, he rejected her testimony concerning the intensity,
persistence, and limiting effects of these symptoms due to a lack of objective findings
and treatment with trigger point injections and anti-inflammatory medications. (AR 41.)
The ALJ specifically referenced Petitioner’s normal cervical spine x-ray findings and a
2016 lumbar spine x-ray documenting unremarkable findings. (AR 41, 42.) But,
fibromyalgia “is diagnosed entirely on the basis of patients’ reports of pain and other
symptoms,” and there are “no laboratory tests to confirm the diagnosis.” Benecke v.
Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). Treatment for fibromyalgia may consist of
steroid injections and medications, such as Lyrica, which was prescribed by Dr. Gillette.
See Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (describing treatment regimen
for fibromyalgia and explaining that an evaluation of the aggressiveness of a treatment
regimen must consider the condition being treated).
Therefore, the lack of objective medical evidence, and treatment via trigger point
injections and anti-inflammatory medications, is not a clear and convincing reason for
discrediting Petitioner’s complaints of pain in this case. See Carmickle v. Comm'r, Soc.
Sec. Admin., 533 F.3d 1164 (9th Cir. 2008). If Petitioner’s fibromyalgia had been properly
considered, “the ALJ may have found Petitioner’s testimony regarding her pain, fatigue,
and ability to function more credible, which may have impacted the RFC determination.”
Allen v. Colvin, No. 2:15-CV-01191-TSZ-DWC, 2016 WL 7368128, at *4 (W.D. Wash.
MEMORANDUM DECISION AND ORDER - 16
Jan. 8, 2016), report and recommendation adopted, No. 2:15-CV-01191-TSZ-DWC, 2016
WL 7368129 (W.D. Wash. Feb. 8, 2016).
Petitioner raises other issues, but the Court finds the ALJ’s error at step two
requires remand so that Petitioner’s fibromyalgia may be properly considered as a
medically determinable impairment. This requires reconsideration of each of the
remaining steps in the sequential process in light of Petitioner’s fibromyalgia and any
work limitations caused by this impairment. Because the ALJ’s error at step two impacts
all aspects of the ALJ’s decision, the ALJ is instructed to reevaluate the entire matter on
remand. It is therefore not necessary to address the other two issues raised in Petitioner’s
brief. See Allen, 2016 WL 7368128, at *4. 9
Based on the above, the Court finds the ALJ must reevaluate the evidence in light
of Petitioner’s diagnosis of fibromyalgia. The Court will therefore remand this matter for
To the extent the administrative record is incomplete, and missing the lab test results
ordered by Dr. Gillette as well as his opinion letters addressed to Petitioner’s employer regarding
her ability to work, such deficiencies should be rectified upon remand.
MEMORANDUM DECISION AND ORDER - 17
NOW THEREFORE IT IS HEREBY ORDERED:
1) The Petition for Review (Dkt. 1) is GRANTED.
2) This action shall be REMANDED to the Commissioner for further proceedings
consistent with this opinion.
3) This Remand shall be considered a “sentence four remand,” consistent with 42
U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002).
DATED: September 14, 2020
Honorable Candy W. Dale
United States Magistrate Judge
MEMORANDUM DECISION AND ORDER - 18
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