Britton v. Commissioner Social Security Administration

Filing 21

OPINION & ORDER: The Commissioner's decision is Reversed and this case is Remanded for further proceedings. Signed on 11/21/22 by Magistrate Judge Jolie A. Russo. (gm)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DANA M. B.,1
Plaintiff,

Case No. 6:21-cv-00971-JR
OPINION AND ORDER

v.
COMMISIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
________________________________
RUSSO, Magistrate Judge:
Plaintiff Dana B. brings this action for judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying her applications for Title II
Disability Insurance Benefits and Title XVI Social Security Income. All parties have consented
to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed.
R. Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner’s
decision is reversed, and this case is remanded for further proceedings.
1

In the interest of privacy, this opinion uses only the first name and initial of the last name of the
non-governmental party or parties in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
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BACKGROUND
Born in 1977, plaintiff alleges disability beginning January 1, 2017, due to major
depression, hypertension, osteoarthritis, degenerative disc disease, post-traumatic stress disorder,
obstructive sleep apnea, and fibromyalgia. Tr. 209-16, 251.
Plaintiff’s application was denied initially and upon reconsideration. Tr. 133-49. On
October 21, 2020, an Administrative Law Judge (“ALJ”) held a hearing, wherein plaintiff was
represented by counsel and testified. Tr. 35-66. A vocational expert (“VE”) also testified. On
November 4, 2020, the ALJ issued a decision finding plaintiff not disabled. Tr. 29. After the
Appeals Counsel denied her request for review, plaintiff filed a complaint in this Court.
THE ALJ’S FINDINGS
At step one of the five step sequential evaluation process, the ALJ found that plaintiff had
not engaged in substantial gainful activity since her alleged onset date. Tr. 19. At step two, the
ALJ determined that the following impairments were severe and medically determinable:
“obesity; chronic knee pain with osteophytosis of the right knee; chronic back pain with mild
lumbar spondylosis; posttraumatic stress disorder; anxiety disorder; depression; seizure
disorder.” Id. At step three, the ALJ found plaintiff’s impairments, either individually or in
combination, did not meet or equal the requirements of a listed impairment. Tr. 20-23.
The ALJ proceeded to evaluate how plaintiff’s impairments affected her ability to work.
Tr. 23. The ALJ determined plaintiff had the residual function capacity (“RFC”) to perform
sedentary work as defined by 20 C.F.R. § 404.1567(a) and 20 C.F.R. § 416.967(a), except she
was limited to:
lifting ten pounds occasionally and less than ten pounds frequently; carrying ten
pounds occasionally and less than ten pounds frequently; sitting for six hours; and
standing and walking for two hours. The claimant can push and pull as much as
she can lift and carry. The claimant can occasionally reach overhead with the right
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upper extremity. For all other reaching, she can reach frequently with the right
upper extremity. The claimant can climb ramps and stairs occasionally, never
climb ladders, ropes, or scaffolds, stoop occasionally, kneel occasionally, crouch
occasionally, and crawl occasionally. The claimant can never work at unprotected
heights, never around moving mechanical parts, and can never operate a motor
vehicle. The claimant is able to perform simple, routine tasks. The claimant is
able to make and perform simple work-related decisions. The claimant is able to
interact occasionally with supervisors, coworkers, and the public. The claimant's
Time Off Task includes time off task that can be accommodated by normal
breaks.
Tr. 23.
At step four, the ALJ determined plaintiff could not perform any past relevant work. Tr.
27. At step five, the ALJ concluded there were a significant number of jobs in the national
economy plaintiff could perform despite her impairments, such as final assembler, addressor, and
laminator. Tr. 29.
DISCUSSION
Plaintiff argues the ALJ erred by: (1) finding her fibromyalgia not medically
determinable at step two; (2) failing to properly weigh the opinion of treating physician Cathleen
Bruner, D.O.; and (3) rejecting the lay witness testimony of her sister. Pl.’s Opening Br. 4-10
(doc. 18). Alternatively, plaintiff contends the record is inadequate, such that the ALJ’s duty to
further develop the record was triggered. Id. at 17.
I.

Step Two Finding
Plaintiff asserts the ALJ committed reversible legal error by failing to include

fibromyalgia as a medically determinable, severe impairment. At step two, the ALJ decides
whether the claimant’s alleged impairment or combination of impairments are medically
determinable and severe. 20 C.F.R. § § 404.1520(c), 416.920(c). An impairment is severe if it
“significantly limit[s]” the claimant's ability to do basic work activities, which are defined as
“abilities and aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1521, 416.921. An
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impairment is medically determinable if it is diagnosed by an acceptable medical source and
based on acceptable medical evidence. SSR 96-4p, available at 1996 WL 374187; 20 C.F.R. §§
404.1513(a), 416.913(a). Generally, the step two threshold is low; the Ninth Circuit describes it
as a “de minimus screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d
1273, 1290 (9th Cir. 1996) (citation omitted).
Specifically, fibromyalgia can be established as medically determinable under either of
two separate sets of criteria, enumerated in Social Security Ruling 12-2p. Rounds v. Comm’r Soc.
Sec. Admin., 807 F.3d 996, 1005 (9th Cir. 2015). First, based on the “1990 ACR Criteria for the
Classification of Fibromyalgia,” this impairment is medically determinable if: (1) the claimant
has a “history of widespread pain—that is, pain in all quadrants of the body (the right and left
sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine,
anterior chest, thoracic spine, or low back)—that has persisted (or that persisted) for at least 3
months. The pain may fluctuate in intensity and may not always be present.”; (2) “[a]t least 11
positive tender points on physical examination”; and (3) there is “[e]vidence that other disorders
that could cause the symptoms or signs were excluded.” SSR 12-2p, 1996 WL 374187, at *2-3.
Second, based on the “2010 ACR Preliminary Diagnostic Criteria,” this impairment is
medically determinable if: (1) the claimant has a “history of widespread pain,” as elaborated in
the 1990 ACR criteria; (2) the claimant has “[r]epeated manifestations of six or more symptoms,
signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory
problems (‘fibro fog’), waking unrefreshed, depression, anxiety disorder, or irritable bowel
syndrome”; and (3) there is “[e]vidence that other disorders that could cause these repeated
manifestations of symptoms, signs, or co-occurring conditions were excluded.” Id. at *3.
Here, in assessing fibromyalgia at step two, the ALJ acknowledged plaintiff’s testimony

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that she “carries a diagnosis of fibromyalgia.” Tr. 23-24. Yet the ALJ determined fibromyalgia
was not medically determinable: “Despite stating that the condition has dramatically worsened
over the last four to five years, the claimant was able to work during that time, and none of her
providers detected the requisite eleven-trigger point testing to confirm the diagnosis during the
adjudicative period.” Tr. 24. Accordingly, the ALJ found “no objective signs showing the
evidence required under SSR 12-2p.” Id.
As an initial matter, an ALJ errs “by not fully accounting for the context of materials or
all parts of the testimony and reports” contained in the record. Reddick v. Chater, 157 F.3d 715,
723 (9th Cir. 1998). Further, it is well-established the symptoms of fibromyalgia “wax and
wane” and that a person may have “good days and bad days.” SSR 12-2p, 1996 WL 374187, at
*6. During the October 2020 hearing, plaintiff testified her fibromyalgia had gradually worsened
since she was diagnosed as a teenager, most “dramatically” over the past five years. Tr. 56-57.
Plaintiff explained that while working at H&R Block between 2009 and 2012, she was better
able to manage her exhaustion and pain, which “wasn’t as bad” as it is now. Tr. 45, 57. After
becoming self-employed in 2013, plaintiff stated she could only work “an hour or two here and
there” but “even that became too much.” Tr. 45, 57. Similarly, while doing seasonal work with
Disney from 2016-2017, plaintiff reported she was physically unable to complete her three-hour
shifts because the fatigue and pain in her back, lower legs, and feet was “just excruciating.” Tr.
47. In other words, the ALJ mischaracterized the tone and the content of plaintiff’s testimony
regarding her work history, which is consistent with the record before the Court. See, e.g., Tr.
399, 404, 427, 536, 770-71, 800-01, 820, 1172.
Notwithstanding any mischaracterization of the record, the ALJ erred by only analyzing
fibromyalgia under the 1990 ACR criteria, as it refers to trigger point testing. Although the ALJ

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is correct that the record before the Court does not indicate detection of the requisite eleven
trigger points,2 he completely ignored the 2010 ACR criteria. See, e.g., Tr. 1005, 1030, 1087,
1143, 1268, 1278 (medical providers assessing anywhere from 6 to 10 trigger points upon
examination).
An ALJ’s failure to evaluate evidence of fibromyalgia under the 2010 ACR criteria
constitutes legal error. Kaytlin B. v. Comm’r Soc. Sec. Admin., 2020 WL 5803937, *4 (D. Or.
Sept. 2020); see also Rounds, 807 F.3d at 1005. Crucially, under the 2010 ACR criteria, trigger
point testing is not required to establish medical determinability.
Consistent with the first prong of the 2010 ACR criteria, the medical record demonstrates
widespread pain symptoms that were discussed regularly with plaintiff’s treating providers. In
fact, fibromyalgia and corresponding pain symptoms were often the chief complaint that led
plaintiff to seek medical attention. See, e.g., Tr. 355, 371, 399-405, 438, 830, 1142, 1144.
Plaintiff also carried widespread chronic pain and fibromyalgia as historical diagnoses. See, e.g.,
Tr. 430-41, 552, 678, 751-54, 1126, 1133, 1161, 1165, 1172-74. For instance, plaintiff visited
either Aaron Erez, D.O., or Dr. Bruner approximately once per month from August 2016 through
January 2018 to address, amongst other conditions, her fibromyalgia, back pain, depression, and
chronic migraines. See, e.g., Tr. 479, 482-83, 499-500, 517, 526, 541-42, 546, 678; see also Tr.
1277 (plaintiff presenting to Dr. Bruner in September 2020 “with depression and PTSD
complicated by chronic pain syndrome, difficulty sleeping, and fibromyalgia”). Additionally, in

According to plaintiff, an exam “finding 11 trigger points was made when [she] was 16.” Pl.’s
Opening Br. 8 (doc. 18); Tr. 50; see also Tr. 847, 1053 (medical records reflecting plaintiff’s
diagnosis with fibromyalgia as a teenager). Plaintiff further notes fibromyalgia is not curable;
therefore, an eleven trigger-point exam “was not tried and failed, it was simply not done as the
diagnosis was clear.” Pl.’s Opening Br. 8 (doc. 18). Even accepting plaintiff’s argument as true,
the fact remains that the record before the Court does not include any acceptable medical
evidence to establish the 1990 ACR criteria..
2

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December 2019, Jordan Reader, D.O., documented that plaintiff was experiencing “chronic pain
in [her] neck and upper and lower back,” as well as regional somatic dysfunction of the head and
rib cage. Tr. 1148-51. In sum, plaintiff’s enduring widespread pain has been well-documented.
Likewise, the record demonstrates six or more fibromyalgia symptoms, signs, or cooccurring conditions identified in SSR 12-2p. Notably, the ALJ determined plaintiff’s anxiety
and depression were medically determinable and severe, both of which are symptoms of
fibromyalgia. Tr. 19. Plaintiff also endured frequent and widespread muscle pain and weakness
across her neck, shoulders, wrists, and lower extremities, along with numbness, tingling, and
chest pain. See Tr. 676 (noting plaintiff was “standing in room due to pain”); see also Tr. 355,
371, 375, 378-82, 445, 520, 554, 676, 688, 752, 1019-22, 1063, 1144. Plaintiff repeatedly
reported chronic fatigue and tiredness. Tr. 461, 721, 742, 748, 1160.3 Furthermore, plaintiff
experienced headaches and migraines, dizziness, and blurred vision. See, e.g., Tr. 355, 461, 554,
721, 832, 1019, 1063, 1163. These manifestations of fibromyalgia, documented by numerous
acceptable medical sources – including Drs. Erez, Bruner, and Reader – satisfy the second prong
of the 2010 ACR criteria.
Turning to the final prong, neither the ALJ nor plaintiff specifically address whether
evidence of other disorders that could cause plaintiff’s repeated fibromyalgia manifestations
were excluded. Nevertheless, the ALJ’s conclusion regarding fibromyalgia is problematic for a
number of reasons. First, with regard to depression and anxiety, the ALJ found both to be
medically determinable, severe impairments. Tr. 19. Those diagnoses, however, are co-occurring
fibromyalgia symptoms, such that they do not foreclose fibromyalgia from being medically

Although chronic fatigue and tiredness can be associated with plaintiff’s obtrusive sleep apnea,
they are also conditions of fibromyalgia under SSR 12-2p.
3

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determinable. See Kaytlin B., 2020 WL 5803937 at *5 (“Clearly, a depression diagnosis would
not be eliminated as a source of symptoms because not only are the conditions often cooccurring, but depression is also itself a symptom of fibromyalgia.”). Second, plaintiff’s
longstanding physician, Dr. Bruner, treated her for fibromyalgia despite the existence of cooccurring or overlapping diagnoses. See, e.g., Tr. 1268-69. Third, an independent review of the
record does not reveal the presence of any other conditions that could account for many of
plaintiff’s symptoms, such as generalized pain that waxes and wanes.
The ALJ’s decision to find plaintiff’s fibromyalgia not medically determinable at step
two adversely affected each subsequent step of the sequential evaluation process (including
plaintiff’s other allegations of errors surrounding the lay testimony and assessment of Dr.
Bruner’s opinion, which outlined restrictions largely related to plaintiff’s fibromyalgia).4 That is,
the ALJ’s subsequent evaluation, including the RFC assessment, explicitly did not consider the
effects of plaintiff’s non-medically determinable impairments. To be sure, the ALJ’s decision
considered several signs or co-occurrences of fibromyalgia, such as plaintiff’s periodic
“forgetfulness” and “anxiety.” Tr. 21-22. Nevertheless, several of plaintiff’s symptoms, such as
dizziness, blurred vision, numbness and tingling, and chest pain, bear little relation or similarity
to the medically determinable impairments the ALJ did identify and evaluate.
As such, the ALJ’s error at step two was harmful. See Stout v. Comm’r of Soc. Sec.
Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (only mistakes that are “nonprejudicial to the
claimant or irrelevant to the ALJ’s ultimate disability conclusion” are harmless); see also Janie
Elizabeth G. v. Saul, 2020 WL 13505040, *5 (W.D. Wash. May 29, 2020); (ALJ commits

4

Importantly, Dr. Bruner endorsed many restrictions beyond those outlined in the RFC, such as
the need to shift positions at will, have unscheduled breaks, lie down intermittently throughout
the day, and miss more than four days of work per month. Tr. 1269-72.
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reversible error at step two by “not including fibromyalgia as a medically determinable
impairment [where] fibromyalgia symptoms [are excluded] from consideration at steps four and
five”).
II.

Remedy
The decision whether to remand for further proceedings or for a finding of disability and

an immediate award of benefits lies within the discretion of the court. Nevertheless, a remand for
an award of benefits is generally appropriate when: (1) the ALJ failed to provide legally
sufficient reasons for rejecting evidence; (2) the record has been fully developed, there are no
outstanding issues that must be resolved, and further administrative proceedings would not be
useful; and (3) after crediting the relevant evidence, “the record, taken as a whole, leaves not the
slightest uncertainty” concerning disability. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d
1090, 1105 (9th Cir. 2014); see also Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015)
(summarizing the standard for determining the proper remedy).
This case is not one of those rare instances where remand for an immediate award of
benefits is warranted. Treichler, 775 F.3d at 1105-07. Failing to consider whether plaintiff’s
symptoms met the 2010 ACR criteria has been recognized as grounds for further proceedings.
See, e.g., Kaytlin B., 2020 WL 5803937 at *7; Weiskopf v. Berryhill, 693 Fed. App'x 539, 542
(9th Cir. 2017).
Additionally, the ambiguities remaining in the record are cause for further proceedings.
For instance, plaintiff was able to engage in substantial gainful activity during 2015, and perform
some work in 2016 and 2017, despite endorsing significantly worsening fibromyalgia symptoms
at that time. The ALJ also found plaintiff’s subjective symptom testimony inconsistent with the
medical record based, in part, on her ability to parent four children with special needs. Plaintiff

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does not challenge that finding on appeal. Tr. 24. In contrast, as addressed herein, the ALJ
overlooked longstanding treatment for a number of plaintiff’s documented fibromyalgia
symptoms, including muscle spasms, dizziness, blurred vision, numbness and tingling, and chest
pain. See, e.g., Tr. 800-801, 820, 1172, 1269. Likewise, the ALJ noted examples of plaintiff
describing problems of forgetfulness and impaired memory to her providers despite her providers
regularly indicating normal memory, cognition, and attention. See, e.g., Tr. 1162, 1262.
Therefore, upon remand, the ALJ must reevaluate the medical and other evidence of
record (especially at step two under the 2010 ACR criteria) and, if necessary, reformulate
plaintiff’s RFC and obtain additional VE testimony.
CONCLUSION
For the foregoing, the Commissioner’s decision is REVERSED, and this case is
REMANDED for further proceedings.
IT IS SO ORDERED.
DATED this 21st day of November, 2022.

____________________________
/s/ Jolie A. Russo
Jolie A. Russo
United States Magistrate Judge

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