Stenberg v. Commissioner Social Security Administration

Filing 19

OPINION and ORDER - The Commissioner's decision is not supported by substantial evidence in the record, and it is therefore REVERSED and REMANDED for further proceedings consistent with this opinion. IT IS SO ORDERED. DATED this 4th day of December, 2017, by United States Magistrate Judge John V. Acosta (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

PATRICIA MARIE STENBERG,
CaseNo.1:16 -cv-01399-A C
Plaintiff,

OPINION AND ORDER

COMMISSIO NER,
Social Security Administratio n
Defendant.

ACOSTA, Magistrate Judge:
Patricia Stenberg ("plaintiff') seeks judicial review ofthe final decision of the Commissioner ofthe
Social Security Administration ("Commissioner") denying her application for Disability Insurance Benefits
("DIB") and Supplemental Security Income ("SSI"). Because the Commissione r's decision is not
supported by substantial evidence, her decision is REVERSED and REMANDED for further proceedings.

\\ \ \ \

Page 1 - OPINION AND ORDER

Proceduml Background

Plaintiff filed her application for DIB and SSI on November 29, 2012, alleging disability beginning
October 30, 2012. (Tr. 186.) She subsequently amended her alleged onset date to January 17, 2013,
coinciding with her fiftieth biithday. (Tr. 21.) The Commissioner denied her application initially and upon
reconsideration. (Tr. 94-95, 128-29.) Plaintiffrequested ahearing before an Administrative Law Judge
('.'ALJ"), andanadministrativehearingwasheld onNovember7, 2014. (Tr. 16-17, 37-63.) After the
hearing, the ALJ issued a decision finding plaintiffnot disabled dated Janumy 5, 2015. (Tr. 21-31.) The
Appeals Council denied plaintiffs subsequent request for review on May 5, 2016, making the ALJ' s
decision the final decision ofthe Commissioner. (Tr. 1-6.) Plaintiff filed tills appeal arguingtheALJ erred
by: (I) iinproperly evaluating plaintiff's fibromyalgia at step three; (2) improperly crafting plaintiff's residual
functional capacity ("RFC") by rejecting the opinions ofher treating physicians and improperly evaluating
her fibromyalgia; and (3) failing to pose a hypothetical to the vocational expe11 ("VE") that accounted for
all of plaintiffs limitations.
Factual Background

Born inJanumy, 1963, plaintiff was 50 years old atthe time ofthe administrative hearing. (Tr.
42-43, 64.) She earned a general equivalency diploma ("GED") and worked previously as a desk clerk,
motel general manager, and short order cook. (Tr. 92, 225, 245.) Plaintiff alleges disability due to
scoliosis, arthritis, fibromyalgia, depression, and autoimmune deficiency. (Tr. 64.)
Standard of Review

The court must affirm the Commissioner's decision ifit is based on proper legal standards and the
findings are supported by substantial evidence in the record. Hammockv. Bowen, 879 F.2d 498, 501
Page 2 - OPINION AND ORDER

(9th Cir. 1989). Substantial evidence is "more than amere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to suppo1t a conclusion." Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consol. Edison Co. v. NL.R.B., 305 U.S. 197, 229 (1938)). ThecoUltmust
weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez

v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a
grant or a denial, [a coUlt] may not substitute [its]judgment for the ALJ' s." Massac hi v. Astrue, 486 F.3d
1149, 1152 (9th Cir. 2007) (citation omitted).
The initial bmden ofproofrests upon the claimant to establish disability. Howard v. Heckler, 782
F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to
engage in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected ... to last for a continuous period of not less than 12 months." 42
U.S.C. § 423(d)(l)(A).
The Commissioner has established a five step sequential process for determining whether a person
is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the
Commissioner determines whether the claimant is engaged in "substantial gainful activity." Yuckert, 482
U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). Ifso, she is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe impainnent
or combination ofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920( c).

If the claimant does not have a severe impairment, she is not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either individually
or in combination, meet or equal "one of a number of listed impairments that the [Commissioner]
Page 3 - OPINION AND ORDER

acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 140-41; 20
C.F.R. §§ 404.1520(d), 416.920(d). Ifso, she is presumptively disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant can still perform "past relevant
work." 20 C.F.R. §§ 404.1520(f), 416.920(f). Iftheclaimantcanp erformpastrelevan twork, she is not
disabled; if she cannot, the burden shifts to the Commissioner.
At step five, the Commissioner must establish the claimant can perform other work existing in
significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§
404. l 520(g), 416.920(g). Ifthe Commissioner meets this burden, the claimant is not disabled. 20 C.F.R.

§§ 404.1566, 416.966.
Tlze ALJ's Findings
The ALJ performed the sequential analysis, as noted above. At step one, the ALJ found plaintiff
had not engaged in substantial gainful activity since her amended alleged onset date. (Tr. 23.) At step two,
the ALJ concluded plaintiffhad the severe impaitments ofosteoarthritis, obesity, fibromyalgia, depression,
and post-traumatic stress disorder ("PTSD"). (Id) At step tlu·ee, the ALJ dete1mined plaintiff did not have
animpai1ment or combination of impai:tments thatmet or medically equaled a listed impaitment. (Tr. 24.)
The ALJ determined plaintiff had the RFC to perform "light work" as defined by 20 C.F .R. §§
404.1567(b ), 416.967(b ), but with the following limitations:
[She is] limited to tasks that involve no more than frequent stooping,
climbing, crawling, crouching, or kneeling. She can perform simple,
repetitive, routine tasks that require no more than occasional interaction
with supervisors, co-workers, or the general public.

Page 4 - OPINION AND ORDER

(Tr. 25-26.) At step four, the ALJ found plaintiffwas unable to perform her past relevant work. (Tr. 29.)
At step five, considering the plaintiffs age, education, work experience, and residual functional capacity,
the ALJ found that a significant number ofjobs in the national and local economy existed such that plaintiff
could sustain employment despite her impairments. (Tr. 30.)

Discussion
I. Fibromyalgia Evaluation at Step Three.
Plaintiff argues this case must be remanded because the ALJ did not properly consider plaintiff's
fibromyalgia under Social Security Ruling 12-2p ("SSR 12-2p") at step three. Pl.'s. Br. 09-10 (ECFNo.
15) ("Pl.'s Br."); see SSR 12-2p, available at 2012 WL 3104869 (July 25, 2012). At step three, the
ALJ determines whether a claimant's impailment or combination of impairments meets or equals the c1iteria
for a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Where an impairment does so, it
is per se disabling and the ALJ has no discretion in awarding benefits. 20 C.F.R. §§ 404.1520(d),
416.920(d); Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990). However, an alleged diagnosis of
fibromyalgia itself cannot meet the listing requirements because fibromyalgiais not a listed impairment.

Britton v. Colvin, 787 F. 3d 1011, 1012 (9th Cir. 2015); SSR 12-2p 2012 available at WL 3017612,
at *6 ("[Fibromyalgia] cannot meet a listing in appendix 1 because [fibromyalgia] is not a listed
impairment."). In other words, the analysis of a claimant's fibromyalgia symptoms at step three focuses
on whether a claimant's fibromyalgia symptoms medically equals a listing. Id.
To demonstrate that an impairment medically equals a listing, the claimant must show the
impaitmentmeets all of the medical criteria in that listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

"An impairment that manifests only some ofthose criteria, no matter how severely, does not qualify." Id.
Page 5 - OPINION AND ORDER

"[To] equal a listed impai1ment, a claimant must establish symptoms, signs and laboratory findings 'at least
equal in severity and duration' to the characteristics ofarelevant listed impairment." Tackettv. Apfel, 180
F.3d 1094, 1099 (9th Cir. 1999) (quoting20 C.F.R. § 404.1526(a)). Unlessaclaimantpresentsevidence
in an eff01t to establish equivalence, an ALJ is not required to discuss the combined effects of a claimant's
impairments or compare them to any listing in an equivalency detetmination. Burch v. Barnhart, 400 F.3d
676, 683 (9th Cir. 2005); see also Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001).
SSR 12-2p establishes guidelines for evaluating fibromyalgiain disability claims. However, as the
ruling explains, the inquiry at step three remains examining whether the effects ofthe claimant's fibromyalgia,
either individually or in combination with a claimants other impaitments, "medically equals a listing." SSR
12-2p available at2012 WL 3104869, at *6. Here, the ALJ found plaintiff's fibromyalgia severe at step
two, and there is nothing in SSR l 2-2p that required the ALJ to discuss SSR l 2-2p in determining whether
plaintiff's fibromyalgia medically equaled a listing at step three. See SSR 12-2p available at2012 WL
3104869;see also Wellsv. Colvin, No. 5:14-cv-05503-PSG, 2016WL1070665, at *6 (N.D.Cal. Mar.
18, 2016) (finding no e1rnr when the ALJ did not mention SSR 12-2p at step three because it had no
bearing on the ALJ' s step three determination). Moreover, plaintiff does not specify which listings she
believes she meets; nor does she direct the court to any evidence which would supp01t the diagnosis and
findings of a listed impairment.' Burch, 400 F.3d at 683 ("An ALJ is not required to discuss the combined
1

In plaintiffs briefing, she quotes language from SSR l 2-2p, which lists "inflanrmatoryattlu·itis"
as an exainple ofthetype oflisting fibromyalgia could medically equal. Pl.' s. Br. 9. Liberally interpreting
plaintiff's quotation of SSR l 2-2p as an argument that plaintiffmet the medical equivalency of"inflanunatmy
artlu'itis," plaintiff fails to address the standards for meetingthat listing, nor does she cite to any evidence
in the record that would support a finding that she met that listing. See Burch, 400 F.3d at 683; see also
Lewis, 236 F .3d at 514 (because the claimant did not offer any "theory, plausible or otherwise," as to how
his impainnents combined to equal a listed impairment an ALJ' s failure to consider equivalence was not
Page 6 - OPINION AND ORDER

effects of a claimant's impairments or compare them to any listing in an equivalency dete1mination, unless
the claimant presents evidence in an effort to establish equivalence."). The ALJ, therefore, properly found
plaintiffdid not have an impairment or combination ofimpai1ments that met or medically equaled a listing.
IL RFC Determination.
Plaintiff next argues the ALJ ened in creating an RFC that was not supported by substantial
evidence. The RFC indicates an individual's highest level ofperformance, despite her physical or mental
impairments. 20 C.F.R. §§ 404.1545, 416.945. In formulating an RFC, the ALJ must consider all
medically determinable impainnents, including those that are not "severe," and evaluate "all ofthe relevant
medical and other evidence." Id.; SSR 96-8p, available at 1996 WL 374184 (July 2, 1996). First,
plaintiff argues the ALJ failed to properly weigh the medical opinion evidence. Pl.' s. Br. 9. Second,
plaintiff argues the ALJ failed to properly consider her fibromyalgia in determining her RFC. PL 's Br. 12.
The Court addresses each argument in turn.
A. Medical Opinion Evidence.

Plaintiff argues the ALJ etTed by improperly weighing the medical opinions oftreating physician
Richard Julyan M.D., and treating rheumatologist David D1yland, M.D. PL' s Br. 9-11. An ALJ may
reject the uncontradicted medical opinion of a treating or examining physician only for "clear and
convincing" reasons supported by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211,
1216(9th Cir. 2005) (citingLesterv. Chafer, 81F.3d821, 830-31 (9th Cir. 1995)). AnALJ may reject
the contradicted opinion ofa treating or exaniining doctor by providing "specific and legitimate reasons that

reversible error).
Page 7 - OPINION AND ORDER

are supported by substantial evidence." Id In weighing medical opinion evidence, anALJ considers length
ofthe treating relationship, nature and extent ofthe treatment relationship, supportability, consistency, and,
if relevant, specialization. 20 C.F.R. §§ 404.1527(c), 416.927(c).
1. Treating Physician Richard Julyan M.D.
Dr. J ulyan issued a medical opinion in June 2014 in the form of a residual functional capacity
questionnaire. (Tr. 618-19.) In that questionnaire, Dr. Julyan opined plaintiff would need to take
unscheduled breaks hourly, ofat least twenty minutes, during an eight hour workday. (Id) Dr. Julyan
opined that plaintiffhad the following physical limitations, she: (1) could sit for a maximum one hour during
an eight hour workday, and could sit for a maximum often minutes at any one time; (2) was precluded from
jobs that would require her to stand or walk, and could not stand or walk for longer than zero minutes at
any one time; (3) could lift less than ten pounds occasionally; (4) required jobs which permit shifting
positions at will; and (5) had fingering limitations for fifty percent of an eight hour workday. (Id.)
Here, although the ALJ did not explicitly state the amount ofweight he gave to Dr. Julyan's opinion,
because the ALJ in reconciling the conflicting medical opinions concluded "the record as a whole supports
a restriction to light work," the ALJ implicitly rejected Dr. Julyan' s opinion. Thus, the ALJ was required
to provide "specific and legitimate reasons that are supported by substantial evidence" for doing so.

Bayliss, 427 F.3d at 1216.
The Commissioner cites two reasons for discrediting Dr. Julyan's opinion. First, the Commissioner
argues Dr. Julyan's opinion was inconsistent with contemporaneous treatment notes, citing Tommasetti

v.Astrue,533F.3d 1035, 1041 (9thCir.2008). Def.'sBr.8(ECFNo. 17)("Def.'sBr."). TheALJ's
decision found that Dr. J ulyan' s May 2014 treatment note "provid[ ed] no objective basis for his
Page 8 - OPmION AND ORDER

conclusion" that plaintiffwas limited in sitting, standing, and walking during an eight hour work day. (Tr.
28.) The ALJ also noted plaintiff appeared "well" and in "no apparent distress" at a May 2014
appointment. (Id.)
Read in the context of the medical record the ALJ' s reasoning fails to constitute "specific and
legitimate reasons that are supported by substantial evidence." Bayliss, 427 F.3d at 1216. It is
unsurprising the May 2014 treatment note failed to include objective medical findings regarding plaintiffs
sitting, standing, and walking limitations because, as hertreating physician, Dr. Julyan was treating plaintiff
for an unrelated infection. (Tr. 530-31.) Indeed, Dr. Julyan' s treatment notes when read in their entirety
suppmt his conclusion that plaintiffhad limitations inher ability to sit, stand, and walk. For example, Dr.
Julyan diagnosed plaintiffwith psoriatic aithritis and noted she had a walking "limitation." (Tr. 473-74.)
Moreover, Dr. Julyanreferred plaintiffto specialists for bothherfibromyalgiaandosteoarthritis, and those
specialist made objective findings that support Dr. Julyan's conclusions. (Tr. 460, 465.) For example, in
early May 2014, family nurse practitioner ("FNP") Richard Lotz noted a finding of"severe pain over the
medial and lateraljointline, as well as over the medial subpatellar ai·ea bilaterally," and noted plaintiffs "right
[knee was Jmuch worse than [her] left." (Tr. 460-0 I.) He subsequently prescribed plaintiff cortisone
treatment. (Id.) FNP Lotz faxed the results of her exam and treatment to Drs. Julyan and Dryland who
ultimately opined as to plaintiff's limitations a month later. (Tr. 461.) Finally, it is unclear how plaintiff
appearing "well" and in "no apparent distress" contradicts Dr. Julyan's observation that plaintiffhas
limitations sitting, standing, and walking. Further, neither ofthose observations contradicts Dr. Julyan's

Page 9 - OPINION AND ORDER

opinion that plaintiff could lift less than ten pounds occasionally and had a fingering limitation. Indeed, the
ALJ appears to have ignored Dr. Julyan's opinion entirely regarding those two limitations. 2
Second, the Commissioner argues the ALJ found "the record as a whole" did not suppott Dr.
Julyan'sopinion. 20 C.F.R. §§ 404.1527(c)(4),413.927(c)(4). The Commissioner argues that"theALJ
noted Plaintiff's professed ability to walk the length ofthe mall, with pauses (Tr. 51) and finther discussed
Dr. Schwmtz's indication that Plaintiff can perform at least medium work." This evidence, the
Commissioner argues, "is clearly inconsistent with Dr. Julyan' s check-box assessment that Plaintiff, for
example, can never stand or walk." Def.' s Br. 08-09. This post hoc rationale was not atticulated by the
ALJ in his decision. See Bray v. Comm 'r ofSoc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009)
("Long-standing principles of administrative law require us to review the ALJ' s decision based on the
reasoning and factual findings offered by the ALJ-notpost hoc rationalizations that attempt to intuit what
the adjudicator may have been thinking."). Although the ALJ mentions consultative examiner Dr. Schwaitz
by name in a subsequent pm·agraph discussing plaintiffs heat'ing testimony, that portion of the ALI' s
decision pertains to adopting a limitation of"light work," not discrediting Dr. Julyan's opinion. 3
2

Plaintiffalso argues theALJ failed to address Dr. Julyan'sfingering limitation. The Commissioner
responds that Dr. Julyan's opinion had been properly rejected. Because the court finds Dr. Julyan's
opinion was not properly rejected, the Commissioner's argument lacks merit. The court notes, however,
thathad the ALJ provided pennissible justifications for discounting Dr. Julyan's opinion, anALJ ell's when
she "without explanation" ignores medical evidence, which the ALI did here. Smolen v. Chater, 80 F.3d
1273, 1282 (9th Cir. 1996).
3

Even ifthecourtwhereto considerthispost hoc argument, both the Commissioner in describing
plaintiff's ability to "walk the length ofthe mall, with pauses" and the ALJ in describing plaintiffs ability to
take "regular strolls atthe mall for exercise" mischaracterize the record. See Def. 's Br. 08-09; (Tr. 28.).
At the hearing plaintifftestified: "I try to go to the mall to walk to get exercise ifI can, ifI'm feeling up to
it." (Tr. 46-4 7.) However, she provided the following additional caveat: even though "the mall here is
really small" she had to stop "two, [or] three times" to make it from one end ofthe mall to the other. (Tr.
Page 10 - OPINION AND ORDER

2. Treating Rheumatologist David Dryland M.D.
Dr. Julyan refe!1'ed plaintiffto rheumatologist Dr. David Dryland in early February 2014 for an
initial consultation. (Tr. 465-71.) Atthe initial consultation, plaintiffreported pain "all over" and "all the
time" with "no real pattern." (Tr. 465 .) Dr. Dryland noted plaintiffwas "in pain through the exam" and
endorsed on all eighteen out ofeighteen fibromyalgia tender points. (Tr. 467--68.) Dr. Dryland reviewed
"[ o]utsiderecords" and "discussed [them] with the [plaintiff]." (Tr. 468.) Dr. Drylandinitially assessed
osteoarthritis and fibromyalgia. (Id.) He prescribed plaintiffTraz.adone and asked plaintiffto return in three
to four weeks. (Id.)
In late Febmary 2014, plaintiffreturned for her follow-up appointment where she again complained

of"pain all over" and "all the time" with "no real pattern." (Tr. 444.) Dr. Diyland observed that plaintiff
was in "no acute distress," and plaintiffreported she had suffered "pain for decades." (Id.) Plaintiffagain
endorsed on all eighteen out of eighteen fibromyalgia tender points, and imaging scans revealed "mild"
osteoarthritis in her spine as well as "severe" osteoarthritis in her knees. (Id.) He prescribed plaintiff
Naprosyn and asked plaintiff to return in three months for an additional follow-up appointment. In June
2014, plaintiffagain presented with many ofthe same symptoms regarding pain, and fibromyalgia tender

points. (Tr. 539-42.) Imaging scans also revealed osteoarthritis remained "mild" in her spine and "severe"
in both of plaintiffs knees. (Tr. 540.) Dr. Dryland again assessed plaintiff suffered from fibromyalgia,
severe osteoarthritis in both knees, and recommended she see an orthopedic specialist to treat her knees.
(Tr. 541.)
51.) The Commissioner's argument is post hoc, and ALJ's finding that plaintifftook "regular strolls at the
mall for exercise" is unsupported by the record.

Page 11 - OPINION AND ORDER

Two days later, Dr. Dryland issued his June 2014 medical opinion in the form of a residual
functional capacity questionnaire. (Tr. 614-15.) In that questionnaire, Dr. D1yland noted many ofthe same
limitations found by Dr. Julyan, including that plaintiffwould need to take unscheduled breaks throughout
the day; although he could not predict their frequency or duration. (Id.) Dr. Dryland opined that plaintiff
had the following physical limitations, she: (I) could sit for a maximum one hour during an eight hour
workday, and could sit for a maximum of fifteen minutes at any one time; (2) was limited to jobs that
involved no standing or walking during an eight hour work day, and could stand or walk for a maximum
offive minutes at any one time; (3) could never lift or carry objects in a competitive work environment; (4)
required jobs which pennit shifting positions at will; and (5) had limitations in repetitive reaching, handling,
and fingering; however, he could not predict the percentage oftime it would interfere with plaintiff during
an eight hour work day. (Id.)
Again, although the ALJ did not explicitly state the amount of weight he gave to Dr. Dryland's
opinion, as discussed above, becausetheALJ limited plaintiffto light work, the ALJ rejected Dr. D1yland's
opinion. Thus, the ALJ was required to provide "specific and legitimate reasons that are suppmied by
substantial evidence" for doing so. Bayliss, 427 F.3d at 1216.
The Commissioner cites three reasons for discrediting Dr. Dryland's opinion. First, similarly to the
AU's argument regarding Dr. Julyan, the Commissioner argues Dr. D1yland' s opinion was inconsistent with

contemporaneous treatment notes, citing Tommasetti, 533 F.3d at 1041. Def.' s Br. 8. The ALJ identified
Dr. Dryland's treatment note that indicated plaintiff presented in "no acute dish·ess" at her June 2014
follow-up appointment. Although plaintiffpresented with "no acute distress," the ALJ's reasoning fails to
explain how this contradicted Dr. Dryland's opinion. Indeed, reading the treatment note in its entirety
Page 12 - OPINION AND ORDER

reveals that Dr. D1yland' s conclusions were consistent with his notes from that appointment. For example,
plaintiff endorsed to all eighteen fibromyalgia trigger points, and imaging scans revealed continuing "severe"
osteoarthritis in plaintiff's knees-severe enough, in fact, for Dr. Dryland to recommend plaintiff see an
orthopedic specialist. (Tr. 540-41.)
The additional alleged inconsistencies identified by the ALJ and the Commissioner are not, in fact,
inconsistencies. First, the Commissioner argues that Dr. D1yland opined thatplaintiffhad the ability to sit
for five to ten minutes yet presented with "no acute distress." Def.' s Br. 5. It is unclear how a limitation
on the length oftime plaintiff could sit is inconsistent with her presenting with "no acute distress." This
argument lacks merit. Next, the Commissioner argues Dr. Dryland opined plaintiff could stand or walk for
zero to five minutes yet on examination plaintiffs gait was normal and her joints were stable. Def.' s Br.
5. That plaintiff can stand or walk for up to five minutes is not inconsistent with a normal gait and stable
joints. This argument, too, lacks merit. Dr. D1yland's opinion as to plaintiffs limitations, therefore, was
not inconsistent with contemporaneous treatment notes.
The Commissioner next argues because plaintifftold Dr. Dryland "she had been dealing with similar
pain for decades-which presumably included her most recent period of substantial gainful activity in
2012," his opinion that plaintiffwas precluded from jobs that required her to stand or walk dating back to
2012 was inconsistent with the fact that plaintiffhad pe1formed work during that year, citing Valentine v.

Comm 'r Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009). (Tr. 28.) In Valentine, the ALJ
properly rejected a treating physician by identifying a contradiction in that the physician "repeatedly
reported [the claimant] was unemployable while acknowledging he continued to work full time," and
pointed to additional evidence in the record consistent with that contradiction - the same treating
Page 13 - OPINION AND ORDER

physician's treatment notes showing the claimant had "improved functioning at work." 574 F.3d at 692-93.
No such contradiction exists here. It is not a contradiction that plaintiff had been dealing with
fibromyalgia symptoms for "decades," yet worked during the time period because her fibromyalgia
symptoms were not yet disabling. Indeed, a careful review ofthe evidence in the medical record reveals
the opposite conclusion: plaintiffs symptoms worsened overtime, forcing plaintiffto stop working in
October 2012. Compare (Tr. 304) (March2011: assessing stable fibromyalgia among other impaitments)
with (Tr. 297) (March 2012: reporting pain to shoulder, lmee, back after prolonged standing or sitting and
increasing arthritis medication); and (Tr. 332) (September 2012: repmting "an increase in her total body
pain" after losing health insurance and going offherprescribedm edication); and(Tr. 380) (September
2012: "She's had in increase in her total body pain recently."). Moreover, in contrast to Valentine, the
Commissioner has failed to direct the court to other additional evidence consistent with the alleged
contradiction. Rather, as discussed above, the medical evidence suggests plaintiffs symptoms were
worsening -

not improving. This argument is unavailing.

The Commissioner next argues the ALJ found "the record as a whole" did not support Dr.
Dryland's opinion. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). TheCommissione rinvokesthesame
post hoc rationalization she proposed to discount Dr. Julyan's opinion. Namely, that the "ALJ's decision
recounted Plaintiffs allegations ... and considered Dr. Schwartz, the examining physician." Def.' s Br. 7.
As discussed above, the section ofthe ALJ' s decision the Commissioner appears to be citing to is not the
section discounting Dr. Diyland' s opinion. Moreover, even assuming without finding that it were, the
purpmted contradiction is not, in fact, contradictory. According to the Commissioner, "Plaintiffs own
testimony contradicts Dr. Diyland' s opinion that she can stand for 0 hours per day." Def.' s Br. 7. Dr.
Page 14- OPINION AND ORDER

Dryland did not opine that plaintiff could "stand for 0 hours per day." Rather, his opinion precluded plaintiff
from jobs requiring her to stand or walk; he also opined that plaintiff could walk up to five minutes. (Tr.
614.) Plaintifftestified that in the past she has intermittently attempted to exercise by walking from one end
ofthe local mall to the other. (Tr. 51.) However, she also testified she has to take frequent breaks before
mTiving at the opposite end. That testimony does not contradict Dr. Dryland' s opinion that plaintiff can
walk up to five minutes at any one time.
In sum, the ALJ failed to provide specific and legitimate reasons suppmted by substantial evidence

for rejecting the opinions Drs. Julyan and D1yland.
B. Fibromyalgia Evaluation in the RFC.

Plaintiff assigns as enur to the ALJ' s analysis ofher fibromyalgia in crafting her RFC. Specifically,
plaintiff contends the ALJ's focus on objective evidence is inconsistent with the nature offibromyalgia and
constituted "a substitution ofhis own lay opinion for that of acceptable medical sources." Pl.' s Br. 12.
The Commissioner responds that "disability claims premised on a diagnosis offibromyalgia effectively tum
on the ALJ's findings aboutthereliability of the claimant's alleged symptoms," and plaintiff failed to
challenge the ALJ' s credibility finding here. Def.' s Br. I 0-11. According to the Commissioner, the
"crucial distinction between" Rollins v. Massanari, 261 F.3d 853 (9th Cir. 2001), and Benecke v.
Barnhart, 379 F.3d 587 (9th Cir. 2004), is thatthe ALJ's adverse credibility finding ofthe claimant was

upheld in Rollins, and not upheld in Benecke. Therefore, argues the Commissioner, fibromyalgiacases
hinge on whether an ALJ accepts or rejects a claimant's symptom testimony. Both parties oversimplify the
analysis.

Page 15 - OPINION AND ORDER

As discussed in Section I, SSR l 2-2p describes the method by which the Commissioner evaluates
fibromyalgia claims:
A claimant must provide evidence from an acceptable medical source, like
a licensed physician, to establish that she has fibromyalgia. [SSR 12-2p
at *5.] The record must include certain medical evidence to show the
claimant has fibromyalgia under either Part A or Part B of Section II of
[SSR 12-2p]. Id.

Helms Eddy v. Colvin, No. 3:14-cv-01418-JE , 2016 WL 7013467, at *2 (D. Or. Nov.28, 2016).
Here, plaintiff provided such evidence and, as discussed in Section I, established fibromyalgia as a
medically determinable and "severe" impairment. The ruling goes on to explain:

If objective medical evidence does not substantiate the person's
statements about the intensity, persistence, and functionally limiting effects
ofsymptoms, we consider all ofthe evidence in the case record, including
the person's daily activities, medications or other treatments the person
uses, or has used, to alleviate symptoms; the nature and frequency ofthe
person's attempts to obtain medical treatment for symptoms; and
statements by other people about the person's symptoms. As we explain
in SSR 96-7p, we will make a finding about the credibility ofthe person's
statements regarding the effects of his or her symptoms on functioning.
***
Once we establish that person has a [medically determinable impaiiment]
of [fibromyalgia], we will consider it in the sequential evaluation process
to determine whether the person is disabled.
SSR 12-2p available at 2012 WL 3104869, at *5. In other words, when a claimant establishes
fibromyalgia as a medically determinable impairment, and there is no objective medical evidence to
substantiate the symptoms, SSR 12-2p directs anALJ to evaluate the severity ofthe claimant's symptoms
through a standard credibility determination. 4 Therefore, in one respect the Commissioner is correct:
4

The court notes that, pursuant to Social Security Ruling 16-3p ("SSR l 6-3p"), the ALJ is no
longer tasked with making an overarching credibility determination and instead assesses whether the
Page 16 - OPINION AND ORDER

Where there is alack of objective evidence to substantiate a claimant's fibromyalgia claim, an ALJ must
rely on a credibility dete1mination ofa claimant's own statements to establish the intensity, persistence, and
functional limiting effects of a claimant's fibromyalgia. Because plaintiffdid not challenge the findings related
to plaintiffs credibility or lay witness testimony, the ALI' s conclusions with regard to those findings must
be upheld.
The analysis, however, does not end there. As ChiefJudge Mosman recently explained, SSR 122p imposes additional obligations on ALJs in foimulating a claimant's RFC and at steps four and five ofthe
sequential evaluation:
Some ofthe analysis at each step is unique for claimants withfibromyalgia.
For example, in detennining the RFC ofa claimant with fibromyalgia, the
ALJ must "consider a longitudinal record whenever possible because the
symptoms of[fibromyalgia] can wax and wane so that a person may have
'bad days and good days."' [SSR 12-2p at *6.] Similarly, at steps four
and five, the ALJ has to consider whether the claimant has certain
exertional, nonexertional, and environmental limitations that are unique to
fibromyalgia, and that erode their ability to perform pastrelevantwork or
any other work in the national economy. Id
Helms Eddy, 2016 WL 7013467, at *2. Here, the ALI' s decision failed to explain how he "consider[ed

the] longitudinal record" in accordance with SSR l 2-2p in crafting plaintiffs RFC. The ALJ also failed
to explain at steps four and five how he considered plaintiffs "exertional ornonexertional limitations" in light

claimant's subjective symptom statements are consistent with the record as a whole. See SSR 16-3p,
available at 2016 WL 1119029 (superseding SSR 96-7p ). There is no binding precedent interpreting
this newrnling or whether it applies retroactively. CompareAshlockv. Colvin, 2016 WL 3438490, *5
n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to anALJ decision issued prior to the
effective date), with Lockwood v. Colvin, 2016 WL 2622325, *3 n.1 (N.D. Ill. May 9, 2016) (applying
SSR 16-3p retroactively to a 2013 ALJ decision). Because the plaintiff does not challenge ALJ's
credibility determination, the court need not resolve the issue.
Page 17 - OPINION AND ORDER

ofplaintiffs fibromyalgia. Indeed, there is no mentionofSSR 12-2p anywherein the ALJ's decision. The
ALJ's formulation of plaintiffs RFC failed to include a proper evaluation of the longitudinal record
regarding her fibromyalgia, and is, therefore, not supported by substantial evidence.
III. Step Five.
Plaintiffnext assigns as etrnrto the ALJ's step five finding. Specifically, plaintiff argues, because
the ALJ eJTed in evaluating her impairments and determining her RFC, the hypothetical to the VE did not
adequately reflect the extent of her limitations. Pl.' s Br. 13-14. The Commissioner responds that the
hypothetical to the VE included only the limitations the ALJ found credible. Def.' s Br. 12. Because the
court finds the ALJ failed to provide specific and legitimate rationales for discounting the opinion testimony
ofplaintiff's treating physicians, and because the court finds the AU failed to explain how he evaluated the
longitudinal record in light ofplaintiff's fibromyalgia, the AU failed to incorporate all ofplaintiff's limitations
into her RFC. Thus, the questions posed to the VE at step five were not based on substantial evidence.
Therefore, the VE's answers are of no evidentiaiyvalue. Matthews v. Shala/a, 10 F.3d 678, 681 (9th
Cir. 1993) ("If a vocational expert's hypothetical does not reflect all the claimant's limitations, then the
expett' s testimony has no evidentiaiy value to support a finding that the claimant can perfo1mjobs in the
national economy.") (internal citation omitted).
In the fmal substantive paragraph ofher brief, plaintiff asserts she should have been found disabled
pursuant to Medical-Vocational Rule 201.14. Rule 201 encompasses a table of rules that apply to
claimants whose maximum sustained work capability is limited to "sedentaiywork." 20 C.F .R. Pt. 404,
Subpt. P, App. 2, § 201. Rule 201.14 directs a decision of"disabled" for a claimant who: (1) is
approaching advanced age (age 50-54); (2) has a high school education or its equivalent; and (3) has a
Page 18 - OPINION AND ORDER

skilled or semiskilled work histmy, with nontransferable work skills. Id. at§ 201.14. Conversely, Rule
201.15 directs a decision of not disabled for an otherwise identical claimant with transferable work skills.
Id. at§ 201.14. Assuming without deciding plaintiff is limited to sedentmywork and the 201 tables apply,

the first two elements ofthe bothrnles are likely satisfied here. However, the ALJ made no finding as to
the transferability ofplaintiffs past work skills other than noting the issue oftransferability was "not material
because using the Medical-Vocational rules as a framework supports a finding ofnot 'disabled,' whether
or not the [plaintiff] has transferable job skills." (Tr. 30. ). Plaintiffs assertion, therefore, is misplaced.
Again, assuming without deciding plaintiff is limited to sedentary work, to be found disabled under Rule
201.14, the ALJ must have also found plaintiffs skills were not transferable. See Silveira v. Apfel, 204
F.3d 1257, 1262 (9th Cir. 2000) ("[The claimant's] disability status turns on whether hehas transferable
skills, a findingthatthe AU expressly declined to make. We remand [the claimant's] case to the ALJ for
finding as to whether [the plaintiff] has transferable skills.") (footnotes omitted);Merrittv. Colvin, No.
3:14-cv-5964-KLS, 2015 WL4039355, at *8 (W.D. Wash. July2, 2015) ("ButgiventhattheALJ made
no finding as to the transferability ofjob skills ... it is unclear whethera detennination of' disabled' under
Rule201.14orof'notdisabl ed' under Rule201.15 ... is more appropriate[.]"); compare20 C.F.R., Pt.
404, Subpt. P, App. 2, § 201.14 with§ 201.15.
Accordingly, this case must be remanded.
Remand

The decision whether to remand for fintherproceedings or for immediate payment of benefits is
within thediscretionofthecourt. Harman v. Apfel, 211F.3d1172, 1178 (9th Cir. 2000), cert. denied,
531 U.S. 103 8 (2000). The issue turns on the utility of further proceedings. A remand foran award of
Page 19 - OPINION AND ORDER

benefits is appropriate when no useful purpose would be served by further administrative proceedings or
when the record has been fully developed and the evidence is insufficientto support the Commissioner's
decision. Strauss v. Comm 'r, 635 F.3d 1135, 1138-39 (9th Cir. 201l)(quotingBenecke,379 F.3d at
593). The court may not award benefits punitively and must conduct a "credit-as-true" analysis to
dete1mine if a claimant is disabled under the Act. Id. at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award of
benefits directed where: (I) the ALJ has failed to provide legally sufficient reasons for rejecting such
evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can
be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled
were such evidence credited. (Id.) The "credit-as-true" doctrine is not a mandatory rule in the Ninth
Circuit, but leaves the court flexibility in determining whether to enter an award of benefits upon reversing
the Commissioner's decision. Connettv. Barnhart, 340F.3d 871 876 (9th Cir. 2003) (citing Bunnell,
94 7 F .2d at 348 (en bane)). The reviewing comt should decline to credit testimony when "outstanding
issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
Here, plaintiffconcedes the proper course is to remand for further proceedings. Pl.' s Br. 15. The
court agrees. Fmther proceedings are required to reassess the medical evidence and allow the ALJ to
accept the medical opinions ofDrs. Julyan and Diyland and incorporate all the limitations described by
those doctors into a new RFC or provide legally sufficient reasons for their rejection. On remand, the ALJ
must evaluate plaintiffs fibromyalgia as directed by SSR 12-2p and explain how the longitudinal record
regarding that impairment was considered in creating anew RFC, consider exertional, nonexertional, and
environmental limitations that are unique to fibromyalgia at steps four and five, and take new testimony from
Page 20 - OPINION AND ORDER

the VE regarding plaintiffs ability to perform work that exists in the national economy.

Co11clusion
The Commissioner's decision is not supported by substantial evidence in the record, and it is
therefore REVERSED and REMANDED for further proceedings consistent with this opinion.
IT IS SO ORDERED
DATED this

t...f l/v day of December, 2017.

r10L

V.ACOSTA
tates Magistrate Judge

Page 21 - OPINION AND ORDER