Bowen v. Commissioner Social Security Administration
Filing
14
Opinion and Order: The Commissioner's final decision is reversed and this matter is remanded for calculation and award of benefits. Final judgment shall be entered accordingly. Signed on 4/12/2019 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Thomas B.,1
Plaintiff,
v.
Civ. No. 1:18-cv-00253-MC
OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Thomas B. brings this action for judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying his application for disability
insurance benefits (“DIB”) under Title II of the Social Security Act. This Court has jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c)(3).
The issues before this Court are whether the Administrative Law Judge (“ALJ”): (1) gave
clear and convincing reasons for rejecting the testimony of the Plaintiff; (2) erred in posing
hypotheticals to the vocational expert; and (3) erred in rejecting medical opinions of two treating
physicians. Because the ALJ erred in discounting both Plaintiff’s testimony and that of his
treating physicians, the Commissioner’s decision is REVERSED and this matter is REMANDED
for an award of benefits.
1
In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name of the
non-governmental party in this case and any immediate family members of that party.
1 – OPINION AND ORDER
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff applied for DIB February 5, 2014 and alleges disability since June 14, 2013. Tr.
100, 228.2 His claim was denied initially and upon reconsideration. Tr. 156–61; 163–65. Plaintiff
timely requested a hearing before an ALJ and appeared before the Honorable B. Hobbs on
October 4, 2016. Tr. 166, 79. ALJ Hobbs denied Plaintiff’s claim by a written decision dated
December 2, 2016. Tr. 60–73. Plaintiff sought review from the Appeals Council and was denied
on December 11, 2017, rendering the ALJ’s decision final. Tr. 212, 1–6. Plaintiff now seeks
judicial review of the ALJ’s decision.
Plaintiff was 47 years old at the time of his alleged disability onset and 50 at the time of
his hearing. Tr. 125–26. Plaintiff completed 10th grade and worked for the Army Air Force
Exchange Service in retail, in sales, doing labor in a warehouse, cleaning, and cashiering. Pl.’s
Br. 2, ECF No. 11; tr. 85–90. Plaintiff alleges disability due to rheumatoid arthritis, COPD, and
back, knees, neck, and shoulders issues. Tr. 125, 234.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
See 42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978,
2
Plaintiff initially alleged disability since April 23, 1966, his date of birth, and listed his potential onset date as June
14, 2013, the day he stopped working. Tr. 125–26. He later alleged disability since June 14, 2013. Tr. 100, 102, 228.
2 – OPINION AND ORDER
980 (9th Cir. 1997)). To determine whether substantial evidence exists, the court reviews the
administrative record as a whole, weighing both the evidence that supports and that which
detracts from the ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989) (citing
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)). “‘If the evidence can reasonably
support either affirming or reversing,’ the reviewing court ‘may not substitute its judgment’ for
that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir.
2014) (quoting Reddick v. Chater, 157 F.3d 715, 720–21 (9th Cir. 1996)).
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden
of proof rests on the claimant for steps one through four, and on the Commissioner for step five.
Bustamante v. Massanari, 262 F.3d 949, 953–54 (9th Cir. 2001) (citing Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner’s burden is to demonstrate that
the claimant can make an adjustment to other work existing in significant numbers in the
national economy after considering the claimant’s residual functional capacity, age, education,
and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this
burden, then the claimant is considered disabled. Id.
I. Dr. Greene and Dr. Walker’s Medical Opinions
“To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must state
clear and convincing reasons that are supported by substantial evidence.” Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir.
1995)). “If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion,
3 – OPINION AND ORDER
an ALJ may only reject it by providing specific and legitimate reasons that are supported by
substantial evidence.” Id. When evaluating conflicting medical opinions, an ALJ need not accept
a brief, conclusory, or inadequately supported opinion. Bayliss, 427 F.3d at 1216 (citing
Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)).
Here, Plaintiff concedes that the examining physicians’ findings are in conflict but argues
that the ALJ failed to give specific and legitimate reasons for rejecting Dr. Greene and Dr.
Walker’s medical opinions. Pl.’s Br. 9–10. The ALJ did not expressly reject Dr. Greene’s
November 12, 2014 medical opinion. Rather, the ALJ said that Dr. Greene “assessed” Plaintiff
with fibromyalgia but could not definitively diagnosis him. Tr. 64; see also tr. 1141. Dr. Greene
found 18 out of 18 tender points, consistent with fibromyalgia. Tr. 1141. His assessment
included “probable seropositive rheumatoid arthritis,” “probable right knee [degenerative joint
disease],” and “fibromyalgia,” which he said “certainly complicates matters.” Id. (emphasis
added). Dr. Greene also recommended that Plaintiff wean off narcotics use because they “make
fibromyalgia worse.” Id. This is a definitive diagnosis.
Similarly, the ALJ did not expressly reject Dr. Walker’s medical opinion, but rather
undermined it with little explanation. Finding Plaintiff’s spinal condition to be a non-severe
impairment, the ALJ found that Dr. Walker identified a degree of spinal cord compression at C56 but only discussed “protective/preventative” surgery with Plaintiff. Tr. 63–64; see also tr.
1241. On January 21, 2016, Dr. Walker diagnosed Plaintiff with “quite severe” adjacent level
spondylosis—age-related degeneration of the spinal disks in the neck—at C5-C6. Tr. 1220.3 The
Plaintiff failed to indicate which diagnosis the ALJ allegedly improperly rejected. See Pl.’s Br. 10. Plaintiff earlier
cited to a January 21, 2016 report where Dr. Walker diagnosed Plaintiff with “quite severe” adjacent level
spondylosis at C5-6, which is part of the cervical, not lumbar, spine. Id. at 8; see tr. 1220. The Court assumes that
this was the diagnosis Plaintiff was referring to.
3
4 – OPINION AND ORDER
ALJ wholly overlooked this report. On May 2, 2016, Dr. Walker noted robust fusion of
Plaintiff’s cervical spine at C6-C7, a broken anterior cervical plate, and spinal cord compression
at C5-C6. Tr. 1241. He diagnosed Plaintiff with cervical spondylosis with myelopathy—
compression of the cervical spinal cord—and spinal stenosis (i.e. narrowing) of the cervical
region. Id. He also discussed a protective/preventative surgery with Plaintiff. Id. This indicates
more than “a degree of spinal cord compression,” and the protective/preventative nature of the
surgery does not necessarily render it conservative treatment.
The ALJ failed to give specific and legitimate reasons supported by substantial evidence
for disregarding Dr. Greene’s and Dr. Walker’s medical opinions.
II. Plaintiff’s Credibility and Fibromyalgia
Plaintiff next argues that the ALJ improperly rejected both Plaintiff’s symptom testimony
and the medical opinion of Dr. Greene with respect to fibromyalgia. Pl.’s Br. 5–6.
A. Plaintiff’s Credibility
An ALJ must consider a claimant’s symptom testimony, including statements regarding
pain and workplace limitations. See 20 CFR §§ 404.1529(a), 416.929(a). Where there is
objective medical evidence in the record of an underlying impairment that could reasonably be
expected to produce the pain or symptoms alleged and there is no affirmative evidence of
malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant’s
testimony regarding the severity of her symptoms. Carmickle v. Comm’r Soc. Sec. Admin., 533
F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ is not “required to believe every allegation of disabling pain, or else disability benefits
would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina
5 – OPINION AND ORDER
v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th
Cir. 1989)).
The ALJ “may consider a range of factors in assessing credibility.” Ghanim v. Colvin,
763 F.3d 1154, 1163 (9th Cir. 2014). These factors can include “ordinary techniques of
credibility evaluation,” id., as well as:
(1) whether the claimant engages in daily activities inconsistent with the alleged
symptoms; (2) whether the claimant takes medication or undergoes other
treatment for the symptoms; (3) whether the claimant fails to follow, without
adequate explanation, a prescribed course of treatment; and (4) whether the
alleged symptoms are consistent with the medical evidence.
Lingenfelter, 504 F.3d at 1040.
It is proper for the ALJ to consider the objective medical evidence in making a credibility
determination. 20 C.F.R. §§ 404.1529(c)(2); 416.929(c)(2). However, an ALJ may not make a
negative credibility finding “solely because” the claimant’s symptom testimony “is not
substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 466
F.3d 880, 883 (9th Cir. 2006). The Ninth Circuit has upheld negative credibility findings,
however, when the claimant’s statements at the hearing “do not comport with objective evidence
in her medical record.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.
2009).
Here, Plaintiff testified that he stopped working due to his rheumatoid arthritis, COPD,
and back and neck operations. Tr. 90–91. He has daily issues with his arthritis in his his arms and
most of his joints. Tr. 92. His pain is mild when he takes his weekly injection, then progresses to
severe three or four days before the next injection. Tr. 92–93. He has pain in his lower
extremities and, if he gets on his knees, they hurt badly ten minutes later. Tr. 93. He cannot walk
6 – OPINION AND ORDER
very far because his ankles, feet, and heel hurt. If he does, he must rest for a week. Tr. 91, 93.
The last time he hurt himself he could not move for a month and a half. Tr. 91. He does not go to
the gym or mow the lawn but does light yard work, such as planting plants. Id.
Plaintiff said his fibromyalgia is worse than his rheumatoid arthritis and the pain is
consistent daily. Tr. 93–94. He wakes up in pain and sometimes his wife has to help him out of
bed. Tr. 94. If the pain subsides and he does strenuous work, he becomes short of breath and his
pain intensifies. Id. He can be on his feet only fifteen minutes before needing to rest and is only
able stand and walk for fifteen minutes before having to change position. Id. He can sit for
twenty minutes before having to change position, then he has to get up and stretch his back and
shoulders because they start to ache. Tr. 94–95. The pain in his arms and neck is different than
his fibromyalgia and rheumatoid arthritis pain and becomes overwhelming when he is about to
take his weekly injection. Tr. 95. He does not lift anything if he does not have to, but he
estimates he could “maybe” handle ten pounds if he was required. Id. He loses his grip on things
routinely. Tr. 96.
Plaintiff has had 7 operations and his doctors recommend that he have two more on his
neck and back. Tr. 96. His neck pain is constant. The pain in his elbows, wrists, hands, and
fingers pain is 6 out of 10 when at rest. With movement or exertion, the pain intensifies to 9 or
10. Id. For example, his hands hurt badly after doing the dishes. Tr. 96–97. He also has
abdominal pain from his back and stomach cramps every day, depending on how much he exerts
himself, which dissipate after he lies down for 30 minutes then returns after he resumes activity.
Tr. 97–98. He has to lay down for 30 to 60 minutes 4 times per day every day. Tr. 98.
7 – OPINION AND ORDER
The ALJ found that the objective medical evidence fails to provide “strong support” for
Plaintiff’s allegations of disabling symptoms and does not support limitations greater than
reported in the RFC statement. Tr. 68. The ALJ also found that Plaintiff’s allegations were
generally not consistent with the medical record and that his activities are not limited to the
extent that one would expect given his complaints. Tr. 71. The ALJ concluded that Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record.” Tr. 72.
Specifically, the ALJ found that Plaintiff’s polyarthralgias in his hands “appeared
assuaged by conservative measures,” citing a January 23, 2013 report where Plaintiff was fitted
for nighttime wrist splints and medications “moderately helped” control his symptoms. Tr. 68;
see 410. By that time, however, Plaintiff had experienced 8 to 9 months of hands and fingers
pain, swelling, decreased range of motion, and decreased strength with grasp and lifting. Tr. 410.
He could only fully extend and spread his digits slowly, and although there was no obvious
tenderness, he had articular fullness across the distal interphalangeal, proximal interphalangeal,
and metacarpal phalangeal joints. Tr. 411. Additionally, an elbow examination revealed
markedly restricted flexion and extension. Id.
The ALJ also noted that on March 20, 2013, Plaintiff’s hand pain “improv[ed]
dramatically” since he started taking methotrexate. Tr. 68; see tr. 399. However, Plaintiff’s hand
pain returned on numerous occasions and is well-documented throughout the record. On April 3,
2013, Plaintiff had arthralgias, soft tissue swelling of the finger, and increased joint pain,
especially in the elbows, hands, wrists, and right knee. Tr. 392. His fingers, wrists, elbows,
knees, and ankles showed abnormalities. Tr. 394. Shoulder motion elicited pain. Id. Plaintiff
8 – OPINION AND ORDER
started taking 10 mg of methotrexate weekly in late February 2013, which helped initially, then
he had periods of pain, stiffness, and swelling. Tr. 392. The pain limited his range of motion in
“most joint areas,” especially his shoulders, elbows, wrists, and right knee and significantly
limited him and his ability to complete tasks at work. Tr. 392–93.
On April 5, 2013, Dr. George Mount, M.D., prescribed Plaintiff 20 mg of prednisone
daily to treat his rheumatoid arthritis and increased his methotrexate from 10mg to 15mg weekly.
Tr. 390. On April 9, Plaintiff noted improvement in joint swelling and stiffness. Id. By August
27, Plaintiff said all his symptoms returned each Sunday, and his pain was so bad it made him
cry. Tr. 368. Dr. Mount tapered Plaintiff’s prednisone use because he had been on it for so long
but increased his methotrexate dose to 17.5 mg. Id. As of October 21, 2013, Plaintiff’s symptoms
had increased to 8 out of 10, his joint pain started in his hands bilaterally then worsened acutely
in his right hand and spread to his right elbow and shoulder, and he could barely lift a cup. Tr.
351. The next day, his pain had improved and he could lift a cup after using a Lidocaine patch
and Ibuprofen. Tr. 346.
As of November 7, 2013, Plaintiff had continued arthralgias of the hands and pain
elicited by motion in his right hand, elbow, and shoulder, but no weakness. Tr. 341. By January
21, 2014, Plaintiff still had diffuse arthralgia, joint stiffness, and mild swelling plus decreased
flexion/extension at the wrist and pain on full flexion of the digits of the hands. Tr. 323–25. He
had tenderness to palpation at most joint locations, especially at the shoulders, right, elbow, right
wrist, and right metacarpal phalangeal and proximal interphalangeal joints. Tr. 323. The ALJ
said that despite Plaintiff’s reports, a review of systems on May 20, 2016 was negative for joint
9 – OPINION AND ORDER
swelling. Tr. 72; see tr. 1263. But as previously discussed, Plaintiff’s joints were swollen upon
multiple examinations. See tr. 325, 353, 392, 444.
The ALJ also found that Plaintiff’s back pain “appeared mild in nature,” citing a March
20, 2013 report where Plaintiff complained of chronic pain but a review of systems was negative
for back pain. Tr. 68; see tr. 399–400. Yet the ALJ admitted that physical examination revealed
lumbosacral muscle spasms and lack of full range of motion of the thoracolumbar spine due to
pain. Tr. 401. The ALJ also noted that on September 23, 2013, Plaintiff exhibited normal gait
and stance and right foot tenderness to palpation, but findings were otherwise normal and
indicated full range of motion and strength. Tr. 364.
The ALJ then noted that imaging on October 21, 2013 revealed only “age-related”
degenerative changes in Plaintiff’s thoracic spine. Tr. 69; see 460. However, this imaging also
suggested decreased disk space height at C5-C6, causing a concern for degenerative disk disease.
Tr. 460; see tr. 103, 338, 459. Additionally, Plaintiff had significant endplate spondylosis at
multiple levels, most severely at L4-L5, and decreased disk space height there as well. Tr. 459. A
review of systems on May 7, 2015 was positive for back pain. Tr. 1263. Moreover, as the
Administration’s medical expert, Dr. Joselyn Bailey, M.D., explained, fibromyalgia and
rheumatoid arthritis are “significant exacerbation component[s],” and multifactorial causation
would cause Plaintiff back, knees, shoulders, fingers, arms, wrists, and neck pain. Tr. 112.4
The ALJ next turned to Plaintiff’s rheumatoid arthritis, documenting its improvement as
of October 10, 2013, November 7, 2013, December 20, 2013, January 21, 2014, November 12
The ALJ gave little weight to Dr. Bailey’s opinion. Tr. 71. The Court, however, finds that her opinion is supported
by the medical record. Dr. Bailey referenced specific facts in the record throughout her testimony. See tr. 102–12.
Further, as explained in this Opinion, Plaintiff was diagnosed with seronegative rheumatoid arthritis and his
rheumatoid factor test was weak positive, which is congruous with Dr. Bailey’s testimony. See tr. 1144.
4
10 – OPINION AND ORDER
2014, and November 20, 2014. Tr. 69–70. The relevant medical evidence is summarized as
follows. Plaintiff was diagnosed with seronegative rheumatoid arthritis as early as March 20,
2013 and was prescribed “high-risk” medication for it. Tr. 397, 357; see also tr. 325, 329. On
October 10, 2013, Plaintiff reported hand and finger improvement but soft tissue swelling of a
finger, continued right elbow discomfort, right foot pain, and morning stiffness. Tr. 353. He was
tolerating methotrexate without issue and his rheumatoid arthritis had improved, but low disease
activity continued. Tr. 357. On November 7, 2013, his pain had improved but he still had right
arm pain and right hand, elbow, and shoulder pain elicited by motion. Tr. 340–41.
By November 12, 2013, Plaintiff felt significantly better overall and was generally
unlimited in mobility, but his hand and joint pain was relatively unchanged. Tr. 335–36. On
December 20, 2013, Plaintiff’s pain was well-controlled with medication. Tr. 329. On January
21, 2014, Plaintiff had generally unremarkable plain imaging but was diagnosed with moderate
to severe lifestyle limiting arthralgias and myalgias—joint and muscle pain—despite taking
17.5mg of methotrexate per week. Tr. 325. Notably, Plaintiff had tenderness to palpation at most
joint locations and fingers, elbows, and shoulders abnormalities. Tr. 323–24.
The ALJ said that laboratory testing on November 2014 did not show evidence of
rheumatoid arthritis, when in fact it revealed abnormal rheumatoid factor, putting Plaintiff in the
weak positive range. Tr. 70; see tr. 1140–44. The ALJ also noted that Dr. Green “assessed”
Plaintiff with probable seropositive rheumatoid arthritis but could not diagnose him. Tr. 70; see
tr. 1140–41. However, Plaintiff was previously diagnosed with seronegative rheumatoid arthritis,
as explained above. As Dr. Bailey explained, seronegative disease is a “known factor in
medicine” whereby one can have a condition despite negative blood tests. Tr. 105. Dr. Bailey
11 – OPINION AND ORDER
agreed with the diagnosis and said that Plaintiff’s rheumatoid arthritis must have been significant
if he was prescribed medication as heavy as Humira and methotrexate. Tr. 103–05.
The ALJ also contrasted Plaintiff’s statement that he endured “a constant state of pain”
with office treatment records indicating pain relief. Tr. 71; see tr. 283. But even using the ALJ’s
November 7, 2013 example, Plaintiff’s pain level was still a 4 out of 10. Tr. 71; see 340. Further,
Plaintiff reported decreased relief with hydrocodone and increased overall pain the day before
and of his methotrexate dose. Tr. 340. Although his pain had improved then and at various points
throughout the record, the objective medical evidence indicates an overall narrative of chronic
pain despite aggressive medication. See tr. 312, 317, 322, 325, 328, 329, 335, 343, 347, 359, 360,
392, 397, 410, 440. Contrary to the ALJ’s finding that Plaintiff’s conditions were generally
controlled with medication, Plaintiff’s pain appears unmanageable.
Although the ALJ cited normal findings on June 21, 2012 and September 18, 2012, he
failed to mention the bilateral swelling of Plaintiff’s feet and ankles and bilateral hand pain in the
latter report. Tr. 69; see tr. 450, 444–45. The ALJ also discussed “generally mild findings” on
October 7, 2014 and October 16, 2014. Tr. 72; see tr. 931, 1048. The first report showed pain
elicited on palpation of the heel area but no significant foot or ankle deformities bilaterally. Tr.
931. The second report, however, revealed moderate, not mild, degenerative changes of the first
interphalangeal joint joint and mild to moderate degenerative changes of the first
metatarsophalangeal joint in Plaintiff’s right foot. Tr. 1048.
The ALJ discussed negative laboratory findings, citing a January 16, 2013 report where
Plaintiff had had hand pain of unclear etiology for one month and negative rheumatologic work.
Tr. 68; see 418. Just eight days later, however, Dr. Mount diagnosed Plaintiff with chronic
12 – OPINION AND ORDER
inflammatory polyarthropathy, predominantly in the small joints of his wrists and hands, “in the
setting of negative [rheumatoid arthritis] serology.” Tr. 414. Additionally, plain imaging
suggested mild degenerative changes in Plaintiff’s hands. Id. The etiology was still unclear, but
Dr. Mount opined that seronegative rheumatoid arthritis was a “likely possibility.” Id.
The ALJ’s emphasis on unremarkable and negative findings is misplaced. As explained
above, Dr. Greene diagnosed Plaintiff with fibromyalgia on November 12, 2014. Tr. 1141. The
record contains multiple references to fibromyalgia. See tr. 323 (finding tenderness to palpation
at several fibromyalgia tender points on January 21, 2014), 325 and 499 (finding multifactorial
process with possible contributions from fibromyalgia, among other things, and issues
suggesting a “strong [fibromyalgia] component” on January 21, 2014), 1138 (finding very active
fibromyalgia on December 31, 2014). Therefore, it is important to consider the objective medical
evidence in the context of that diagnosis.
In Revels v. Berryhill, the Ninth Circuit discussed the “unique characteristics of
fibromyalgia” in disability determinations. 874 F.3d 648, 652 (9th Cir. 2017).
Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous
connective tissue components of muscles, tendons, ligaments, and other tissue.
Typical symptoms include chronic pain throughout the body, multiple tender
points, fatigue, stiffness, and a pattern of sleep disturbance that can exacerbate the
cycle of pain and fatigue. What is unusual about the disease is that those suffering
from it have muscle strength, sensory functions, and reflexes that are normal. Their
joints appear normal, and further musculoskeletal examination indicates no
objective joint swelling. Indeed, there is an absence of symptoms that a lay person
may ordinarily associate with joint and muscle pain. The condition is diagnosed
entirely on the basis of the patients’ reports of pain and other symptoms. There are
no laboratory tests to confirm the diagnosis.
Id. at 656 (emphasis added, internal quotation marks and citations omitted).
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In addition to the lack of objective laboratory testing that might confirm the diagnosis,
fibromyalgia symptoms are known to “wax and wane,” and a person may have good days and
bad days. Id. at 657. The ALJ must “consider a longitudinal record whenever possible” when
determining the RFC of a claimant with fibromyalgia. Id. “In evaluating whether a claimant’s
[RFC] renders them disabled because of fibromyalgia, the medical evidence must be construed in
light of fibromyalgia’s unique symptoms and diagnostic methods.” Id. at 662.
Under these circumstances, courts within the District of Oregon have been especially
reluctant to rely on a lack of objective medical evidence when considering fibromyalgia cases.
See, e.g., Nunn v. Berryhill, Case No. 6:17-cv-00203-SB, 2018 WL 2244705, at *10 (D. Or. May
16, 2018) (rejecting a lack of objective medical evidence as a valid factor in considering a
fibromyalgia claimant’s testimony); Bair v. Comm’r of Soc. Sec. Admin., 3:17-CV-00622, 2018
WL 2120274, at *5 (D. Or. May 8, 2018) (holding the same). In light of Revels, this Court
follows that example. Fibromyalgia is notable for the lack of objective medical tests and is often
accompanied by apparently normal strength and musculoskeletal examinations. The lack of
objective medical evidence cannot, therefore, serve as a clear and convincing reason for rejecting
Plaintiff’s testimony.
Turning to Plaintiff’s activities of daily living, the ALJ noted that Plaintiff does laundry,
performs light cleaning and light household repairs, walks, drives and rides in cars, and goes out
alone. Tr. 71; see tr. 261. The ALJ also noted that despite alleged difficulty using his hands, he
could turn a key, prepare a meal, push a heavy door open, make a bed, carry a shopping bag or
briefcase, and use a knife to cut food, and had only mild coordination difficulty with his hands
and dropping things as of May 2016. Tr. 71; see tr. 419, 1241.
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Plaintiff’s activities of daily living are consistent with his allegations. First, his activities
are extremely limited. Plaintiff said that he does light chores throughout the day and must take a
break when he starts to feel pain. Tr. 260. Sometimes he cannot even prepare meals because of
pain and swelling in his hands and ankles. Id. He cannot mow the lawn due to joint pain. Tr.
260–61. When he does too much, he becomes debilitated for a week or two. Tr. 265. He needs
help dressing and bathing when he has hurt himself. Tr. 259. His rheumatoid arthritis makes him
cry when it flares up. Tr. 265. These qualifiers are consistent with Plaintiff’s waxing and waning
chronic pain. Second, Plaintiff’s ability to walk, drive or ride in a car, and go out alone does not
contradict any of his statements. He does not need to vegetate in a dark room in order to be
eligible for benefits. Molina, 674 F.3d at 1112–13 (citing Cooper v. Bowen, 815 F.2d 557, 561
(9th Cir. 1987)) (internal quotation marks omitted).
Substantial evidence does not exist in the record to support the ALJ’s finding that
Plaintiff lacks credibility.
B. Plaintiff’s Fibromyalgia
The ALJ found that the evidence did not support a finding that Plaintiff’s fibromyalgia
medically equals a listing alone or in combination with another medically determinable
impairment, such as musculoskeletal system, neurological disorders, mental disorders, and
immune disorders. Tr. 66. Specifically, the ALJ found that the medical record did not evidence
the requisite SSR 12-2p criteria, namely widespread pain in all four quadrants and at least 11 of
18 positive tender points. Tr. 64.
Had the ALJ properly credited Plaintiff’s reports of pain and Dr. Greene’s medical
opinion, he would have found the requisite SSR 12-2p criteria. Plaintiff testified to widespread
15 – OPINION AND ORDER
pain, as discussed above, and reported pain throughout the record. Dr. Greene diagnosed Plaintiff
with fibromyalgia, finding 18 out of 18 tender points. Tr. 1141. Because the ALJ erred in
discounting Plaintiff’s credibility and Dr. Green’s medical opinion, he failed to properly evaluate
Plaintiff’s fibromyalgia.
III. The ALJ’s RFC Finding
In formulating an RFC, the ALJ must consider all medically determinable impairments,
including those that are not “severe,” and evaluate “all of the relevant medical and other
evidence,” including the claimant’s testimony. Id.; SSR 96-8p, 1996 WL 374184. In determining
a claimant’s RFC, the ALJ is responsible for resolving conflicts in the medical testimony and
translating the claimant’s impairments into concrete functional limitations in the RFC. StubbsDanielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only limitations supported by
substantial evidence must be incorporated into the RFC and, by extension, the dispositive
hypothetical question posed to the vocational expert. Osenbrock v. Apfel, 240 F.3d 1157, 116365 (9th Cir. 2001).
Here, the ALJ found that Plaintiff had the RFC to perform light work and could:
. . . occasionally balance, stoop, crouch, kneel, and crawl. . . never climb ladders, ropes,
[or] scaffolds. . . occasionally reach overhead with both upper extremities. . . tolerate no
exposure to concentrated airborne irritants. . . tolerate no exposure to extreme heat or to
extreme cold. . . [and] have no exposure to hazards, such as machinery and unprotected
heights.
Tr. 66. Based on the vocational expert’s testimony, the ALJ found that Plaintiff could
perform past relevant work as a cashier/checker through the date last insured. Tr. 72. Plaintiff
16 – OPINION AND ORDER
argues that the ALJ erred by failing to include all of his impairments in the hypothetical posed to
the vocational expert, particularly his fibromyalgia, back pain, carpal tunnel syndrome, and
occasional blindness. Pl.’s Br. 6–7. Defendant argues that the diagnoses the ALJ did not credit
were made after Plaintiff’s date last insured and would not undermine the ALJ’s decision
anyway. Def.’s Br. 13.
The record does not even mention carpal tunnel syndrome until December 31, 2014, nor
was Plaintiff diagnosed until February 9, 2015, well after his date last insured. See tr. 933, 942,
955, 967, 1138. Likewise, Plaintiff’s vision loss did not begin until well after his date late
insured, nor is it substantiated by objective medical evidence. See tr. 99, 1241 (finding visual
disturbance but no acute findings in a recent brain MRI), 263 (indicating no trouble seeing), 138
(finding no visual limitation in RFC assessment), 152 (finding the same). As such, the ALJ did
not err in excluding these impairments from the hypothetical. However, this Court already
determined that the ALJ improperly rejected Dr. Greene’s fibromyalgia and Dr. Walker’s
cervical spondylosis diagnoses and failed to consider certain objective medical and testimonial
evidence of Plaintiff’s back pain, as explained above. Therefore, the ALJ erred in failing to
include these impairments in the hypothetical posed to the vocational expert. Therefore, the
ALJ’s RFC finding is not supported by substantial evidence in the record.
IV. The Credit-as-True Doctrine
Because the ALJ erred, the question is whether to remand for further administrative
proceedings or an award of benefits. “Generally, when a court of appeals reverses an
administrative determination, the proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.” Bernecke v. Barnhart, 379 F.3d 587, 595
17 – OPINION AND ORDER
(9th Cir. 2004) (internal quotation marks and citations omitted). Under the “credit-as-true”
doctrine, however, remand for calculation of benefits is appropriate when:
(1) the record has been fully developed and further administrative proceedings
would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient
reasons for rejecting evidence, whether claimant testimony or medical opinion; and
(3) if the improperly discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.
Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
If “the record raises crucial questions as to the extent of [a claimant’s] impairment given
inconsistences between his testimony and the medical evidence,” the issues should be resolved in
further proceedings. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir.
2014). Because “[t]he touchstone for an award of benefits is the existence of a disability” rather
than an ALJ’s error, the court must assess whether outstanding issues remain before considering
whether to credit erroneously rejected evidence as a matter of law. Brown-Hunter v. Colvin, 806
F.3d 487, 495 (9th Cir. 2015) (citations omitted). Even if all the requirements are met, the court
may nevertheless remand “when the record as a whole creates serious doubt as to whether the
claimant is, in fact, disabled” within the meaning of the Act, such as when there are
inconsistencies between testimony and the medical record, or if “the government has pointed to
evidence in the record that the ALJ overlooked” and explained how that evidence belies
disability. Dominguez v. Colvin, 808 F.3d 403, 407–08 (9th Cir. 2015) (quoting Burrell v.
Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014)) (internal brackets and quotation marks omitted).
Here, Plaintiff satisfies all three requirements. The record is fully developed and there are
no ambiguities that further administrative proceedings need resolve. As explained above, the
ALJ failed to provide sufficient reasons for rejecting Plaintiff’s credibility and Dr. Greene and
18 – OPINION AND ORDER
Dr. Walker’s medical opinions. Credited as true, Plaintiff’s allegations and those medical
opinions, along with the vocational expert’s testimony, establish that Plaintiff is disabled under
the Act. The vocational expert testified that missing two or more days of work per month, having
to lay down twice a day for twenty to thirty minutes, or being unable to stand for two hours a day
and sit six hours a day on a regular basis would preclude a person from all employment. Tr. 117.
Because Plaintiff has to lay down for thirty to sixty minutes four times per day every day,
Plaintiff is disabled under the Act. See tr. 98. Moreover, consideration of the record as a whole
convinces the Court that Plaintiff is disabled. The Court sees no purpose for further proceedings.
CONCLUSION
For these reasons, the Commissioner’s final decision is REVERSED and this matter is
REMANDED for calculation and award of benefits. Final judgment shall be entered accordingly.
IT IS SO ORDERED.
DATED this 12th day of April, 2019.
s/Michael J. McShane___________
Michael J. McShane
United States District Judge
19 – OPINION AND ORDER
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