Summary
holding that, where plaintiff's physicians diagnosed her with fibromyalgia and an examining physician assessed her as having chronic generalized pain consistent with fibromyalgia, ALJ should not have rejected fibromyalgia diagnosis "because [the physicians'] records did not note the number of trigger points they found before reaching their diagnoses"; "in noting that plaintiff had 'multiple' trigger points, [plaintiff's physicians] may have in fact found more than eleven trigger points," and "[i]t was the ALJ's duty to further develop the record if she felt that a specific finding of the number of trigger points was necessary"
Summary of this case from Penny S. v. Comm'r of Soc. Sec.Opinion
No. CV 09-7272-PLA.
July 19, 2010
MEMORANDUM OPINION AND ORDER
I. PROCEEDINGS
Plaintiff filed this action on October 6, 2009, seeking review of the Commissioner's denial of her applications for Disability Insurance Benefits and Supplemental Security Income payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on October 27, 2009, and November 10, 2009. The parties filed a Joint Stipulation on May 5, 2010, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.
II. BACKGROUND
Plaintiff was born on May 4, 1955. [Administrative Record ("AR") at 9, 29, 109, 113.] She completed seventh grade and some college, but does not have a high school equivalency degree. [Id. at 29.] She also holds certificates as a certified nursing assistant and in armed guard security. [Id. at 29-30.] Plaintiff has past relevant work experience as a security guard and day care provider. [Id. at 22, 131.]Plaintiff protectively filed her applications for Disability Insurance Benefits and Supplemental Security Income payments on August 21, 2008, alleging that she has been unable to work since August 2, 2008, because of "chronic back and neck problems, pinch [sic] nerve; fibromyalgia; congestive heart failure, chronic bronchitis[.]" [Id. at 109-12, 113-16, 122; JS at 2.] After her applications were denied, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 69-74, 77.] A hearing was held on June 16, 2009, at which plaintiff appeared with counsel and testified on her own behalf. [Id. at 26-52.] A vocational expert also testified at the hearing. [Id. at 43-50.]
On August 13, 2009, the ALJ determined that plaintiff was not disabled. [Id. at 7-23.] When the Appeals Council denied plaintiff's request for review of the hearing decision on September 23, 2009, the ALJ's decision became the final decision of the Commissioner. [Id. at 1-3.] This action followed.
III. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995);Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance — it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523;see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence.Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.
IV. EVALUATION OF DISABILITY
Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.
A. THE FIVE-STEP EVALUATION PROCESS
The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n. 5; Drouin, 966 F.2d at 1257.
B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS
At step one, the ALJ determined that plaintiff did not engage in any substantial gainful activity during the period of time between August 2, 2008 (the alleged onset date of disability), and March 31, 2009 (the date the ALJ determined that plaintiff was last insured for Disability Insurance Benefits purposes). [AR at 20.] At step two, the ALJ concluded that plaintiff has the severe impairment of low back syndrome. [Id.] At step three, the ALJ determined that plaintiff's impairment does not, either individually or in combination, meet or equal any of the impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. [Id.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC") "to perform the full range of light work" as defined in 20 C.F.R. §§ 404.1567 and 416.967. [Id.] At step four, the ALJ concluded that, through the date plaintiff was last insured, she could perform her past relevant work as a security guard and day care provider. [Id. at 22.] Accordingly, the ALJ concluded that plaintiff is not disabled. [Id. at 23.]
RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n. 5 (9th Cir. 1989).
Light work is defined as work involving "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. §§ 404.1567, 416.967.
V. THE ALJ'S DECISION
Plaintiff contends that the ALJ improperly 1) conducted the disability analysis at step two and step three of the sequential analysis; and 2) rejected plaintiff's credibility. [Joint Stipulation ("JS") at 3-18, 27-33.] The Court agrees with plaintiff, in part, and remands the case for further proceedings.A. STEP TWO ANALYSIS
Plaintiff contends that the ALJ erred in not finding plaintiff to have fibromyalgia at step two of the sequential analysis. [Id. at 3.] Specifically, plaintiff contends that the ALJ improperly rejected the opinions of her two treating physicians, Dr. Nguyen Thong and Dr. Faustino Bernadett. [Id. at 3-18.] The Court agrees.
At step two of the sequential analysis, an ALJ must determine whether the plaintiff has a severe, medically determinable impairment or combination of impairments that will significantly limit her physical or mental ability to perform basic work activities. Smolen v. Chater, 80 F.3d 1273, 1280, 1289-90 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 140-41, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); 20 C.F.R. §§ 404.1520, 404.1521). A medically determinable impairment is one that results from "anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. §§ 404.1508, 416.908. It "must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the plaintiff's] statement of symptoms." Id. (citation omitted).
Fibromyalgia is a syndrome that "is poorly understood within much of the medical community." Benecke v. Barnhart, 379 F.3d 587, 594 n. 4 (9th Cir. 2004) (citation omitted). Significantly, there is no known cause or cure, and fibromyalgia "is diagnosed entirely on the basis of patients' reports of pain and other symptoms." Id. at 590; Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) ("[Fibromyalgia's] cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective."). Courts have noted that there are no laboratory or diagnostic tests that can confirm the presence of fibromyalgia. Benecke, 379 F.3d at 590 (citations omitted); Sarchet, 78 F.3d at 306; Brosnahan v. Barnhart, 336 F.3d 671, 672 n. 1 (8th Cir. 2003). Hence, fibromyalgia is often diagnosed by eliminating other possible conditions and confirming the presence of the disease's symptoms: widespread pain existing for at least three months, fatigue, disturbed sleep, stiffness, and tenderness in at least eleven of eighteen specified sites ("trigger points") on the body. Brosnahan, 336 F.3d at 672 n. 1 ("[d]iagnosis [of fibromyalgia] is usually made after eliminating other conditions"); Preston v. Sec. of Health and Human Servs., 854 F.2d 815, 818 (6th Cir. 1988) ("no objective tests . . . can conclusively confirm [fibromyalgia]"); Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001) (listing fibromyalgia's symptoms (quoting Sarchet, 78 F.3d at 306)).
Trigger points are also known as "tender points" or "tender spots."
When evaluating medical opinions, the case law and regulations "distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Lester, 81 F.3d at 830; see 20 C.F.R. §§ 404.1502, 416.902. "`The administrative law judge is not bound by the uncontroverted opinions of the claimant's physicians on the ultimate issue of disability, but he cannot reject them without presenting clear and convincing reasons for doing so.'"Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (quotingMontijo v. Sec'y of Health Human Servs., 729 F.2d 599, 601 (9th Cir. 1984)); see also Lester, 81 F.3d at 830. However, the ALJ can discredit a physician's opinion if it is conclusory, brief, and unsupported by medical evidence. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); see also Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (finding the ALJ properly rejected the physician's psychological evaluations "because they were check-off reports that did not contain any explanation of the bases of their conclusions." (citing Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983))).
Generally, the opinions of treating physicians are given greater weight than those of other physicians, "[b]ecause treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient[.]" Smolen, 80 F.3d at 1285; see 20 C.F.R. §§ 404.1527, 416.927. The ALJ is required to provide an explicit explanation, supported by evidence in the record, of the weight given to plaintiff's treating physician's medical opinions. 20 C.F.R. §§ 404.1527, 416.927; Lester, 81 F.3d at 830; Social Security Ruling 96-2p. The treating physician's opinion will be given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [plaintiff's] case record[.]" 20 C.F.R. §§ 404.1527, 416.927. Even where the treating physician's opinion on disability is controverted, it can only be rejected with "specific, legitimate reasons . . . that are based on substantial evidence in the record." Murray, 722 F.2d at 502 (citation omitted). An examining physician's opinion that differs from the treating physician's opinion may constitute substantial evidence if it is based on independent clinical findings which include "diagnoses that differ from those offered by another physician and that are supported by substantial evidence . . . [or] findings based on objective medical tests that the treating physician has not herself considered[.]" Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation omitted). However, if "an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not `substantial evidence.'" Id. (citation omitted). Also, "[i]n many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." Id. at 633 (citing SSR 96-2p). To properly reject a physician's findings, the ALJ is required to "do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id. at 632 (citation omitted).
Social Security Rulings ("SSR") do not have the force of law. Nevertheless, they "constitute Social Security Administration interpretations of the statute it administers and of its own regulations" and are given deference "unless they are plainly erroneous or inconsistent with the Act or regulations." Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989).
"[T]he notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight."
Here, at step two of the sequential analysis, the ALJ found plaintiff's only severe impairment to be low back syndrome. [AR at 20.] In reaching this conclusion, the ALJ credited the opinion of examining physician Dr. Joseph T. Culverwell, who diagnosed plaintiff only with "low back syndrome," over that of plaintiff's two treating physicians, Dr. Nguyen Thong and Dr. Faustino Bernadett, both of whom diagnosed plaintiff with fibromyalgia. [Id. at 16, 186, 214, 229.] The ALJ further noted that even if plaintiff had fibromyalgia, it was not severe enough to result in functional limitations. [Id. at 15.]
1. The Medical Evidence
Dr. Thong assessed plaintiff with fibromyalgia on plaintiff's initial visit on June 19, 2008, finding that plaintiff had multiple trigger points. [Id. at 214, 221.] He reported that he saw plaintiff once every 2 to 3 months, and was still treating plaintiff for fibromyalgia and chronic pain syndrome on June 18, 2009. [Id. at 221, 288.] During his treatment of plaintiff, Dr. Thong conducted neurological examinations [id. at 277], physical examinations [id. at 221], and sensory examinations [id. at 279]; ordered tests to rule out other diseases [id. at 213, 218, 277]; and examined plaintiff's medical history. [Id. at 219.] In identifying plaintiff's symptoms, which he found to be "chronic" [id. at 223], Dr. Thong noted in his treatment records that plaintiff had multiple trigger points. [Id. at 214, 219.] In his October 9, 2008, Medical Report, he again found plaintiff to have "multiple joint and tender points[,]" "tenderness in multiple muscle areas," and also found positive results for her straight leg raising test. [Id. at 221-23.] Further symptoms noted on March 6, 2009, indicated multiple tender points, non restorative sleep, chronic fatigue, morning stiffness, muscle weakness, frequent severe headaches, numbness and tingling, breathlessness, anxiety, and depression. [Id. at 268.] He found that plaintiff is only able to walk for ten minutes, plaintiff's pain limits her reaching, handling or fingering movements, and plaintiff is "unable to lift or carry any load weighing more than two pounds." [Id. at 222, 288.] Dr. Thong prescribed medication [id. at 279], including those specific for treating plaintiff's fibromyalgia [id. at 162], gave plaintiff epidural injections [id. at 41], and also informed plaintiff of treatment options, risks, and potential complications. [Id. at 277.] He found plaintiff to be limited to less than sedentary exertion in a March 2009, RFC questionnaire and reported that plaintiff experienced pain in various areas of her body. [Id. at 268-71.]
A prescription pad statement from Dr. Thong dated June 18, 2009, reads: "Ms. Dillon is currently under my professional care for Fibromyalgia and chronic pain syndrome." [AR at 288.]
Specifically, Dr. Thong's October 23, 2008, sensory examination indicates: "sensation intact to all modalities. [E]xcessive tenderness to palpation of soft tissueswsuboccipital [sic] upper trapezii, sternoid mastoid muscles, lateral epicondyle, buttock, great trochantersupraspinati [sic]." [AR at 281.]
Dr. Thong did not indicate whether plaintiff can walk for ten minutes at a time or during the course of an entire day. [AR at 288.]
Plaintiff states in her Exertion Questionnaire that "Dr. Thong had to [prescribe] Neurontin 600 as an alternative for Lyrica. Medical would not pay for Lyrica. Dr. Thong said I need the Lyrica for the Fibromyalgia." [AR at 162.]
Dr. Thong found pain in bilateral locations of plaintiff's lumbosacral spine, cervical spine, thoracic spine, chest, shoulders, arms, hands/fingers, hips, legs, and knees/ankles/feet. [AR at 269.]
Dr. Bernadett began treating plaintiff on July 25, 2006, and diagnosed her with fibromyalgia on August 26, 2008, two years after he began to treat plaintiff. [Id. at 126, 186.] The record indicates that he was still treating plaintiff as of February 10, 2009. [Id. at 284.] Plaintiff described Dr. Bernadett as her "pain management doctor[,]" whom she saw once a month for a check-up, medication refills, and treatment of her neck and back. [Id. at 126.] In treating plaintiff, Dr. Bernadett reviewed her medical history, examined her after injections [id. at 208], and assessed her pain level. [Id. at 173-211.] From July 25, 2006 (initial visit) to March 10, 2008, he diagnosed plaintiff's pain level on a scale of 1-10 as typically between 4-5, and between 7-9 from then on until October 17, 2008. [Id.] His treatment records consistently indicated that he found plaintiff to have pain, at times severe, in various areas of her body. [Id.] Dr. Bernadett found that plaintiff is never able to twist, stoop, crouch, and climb ladders, and that her reaching, handling, fingering, feeling, and pushing/pulling abilities are limited. [Id. at 274.] In support of his opinion of plaintiff's limitations, he cites medical findings such as an MRI finding and a cervical spine compression test. [Id.] In treating plaintiff, he prescribed pain medications including those specific for treating her fibromyalgia. [Id. at 173-211.] On March 10, 2009, he determined that plaintiff was limited to less than sedentary exertion. [Id. at 273-74.]
Dr. Bernadett's treatment records indicate that he typically saw plaintiff once or twice a month. [AR at 173-211.]
Copies of reports of various procedures were sent to Dr. Bernadett. [AR at 178-83.]
Dr. Stephen W. Jenkins, an examining physician, diagnosed plaintiff with fibromyalgia after looking at plaintiff's medical history that describes that "[p]ain is everywhere in muscles, joints, low back, neck, shoulders, etc . . . [and is] described as sharp and burning in nature", and finding that she has "tenderness in multiple muscle areas paraspinous areas without edema . . . [and] [m]ultiple trigger points." [Id. at 215.]
2. Diagnosis of Fibromyalgia
The ALJ concluded that "the medical records do not establish the diagnostic criteria for fibromyalgia. All [plaintiff] has is subjective pain complaints and that she sometimes says she has subjective tenderness or `excessive tenderness[.'] That is not sufficient to establish a diagnosis of fibromyalgia." [Id. at 15.]
The above review of the medical record indicates that plaintiff's treating physicians (Dr. Thong and Dr. Bernadett) specifically diagnosed plaintiff with fibromyalgia, and an examining physician (Dr. Jenkins) assessed plaintiff with "[c]hronic generalized Pain — consistent with fibromyalgia." [Id. at 186, 215, 221.] To the extent the ALJ rejected plaintiff's physicians' diagnoses of fibromyalgia because their records did not note the number of trigger points they found before reaching their diagnoses, such a rejection constitutes error. See, e.g., Cable v. Astrue, 2007 WL 2827798, *6 (E.D. Cal. Sept. 27, 2007) (the ALJ erred in rejecting plaintiff's treating physician's diagnosis of fibromyalgia because he "failed to record a specific number of trigger points"). It is not at all clear — as the ALJ seems to indicate — that the physicians found less than eleven trigger points. Indeed, in noting that plaintiff had "multiple" trigger points, they may have in fact found more than eleven trigger points. It was the ALJ's duty to further develop the record if she felt that a specific finding of the number of trigger points was necessary. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) ("Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to `conduct an appropriate inquiry.'" (citation omitted)); 20 C.F.R §§ 404.1512, 416.912 ("We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved[.]"). Since the ALJ failed to explain how the physicians' failure to explicitly state the number of plaintiff's trigger points reflected that plaintiff had less than eleven such points, the Court finds that rejecting plaintiff's physicians' diagnoses of fibromyalgia on that basis, without more, constitutes error.
See Rollins, 261 F.3d at 855 ("the rule of thumb is that the patient must have at least 11 [tender spots] to be diagnosed as having fibromyalgia[] that when pressed firmly cause the patient to flinch" (citation omitted)).
The Court also finds that the ALJ's claim that the only evidence for plaintiff's fibromyalgia is her subjective pain complaints and tenderness reveals a misconception of this unique disease. Pain is a distinguishing symptom of fibromyalgia, and plaintiff's pain has been extensively documented by plaintiff's treating physicians (Dr. Thong and Dr. Bernadette) in the medical record. [AR at 173-211, 212-24, 267-71, 272-75, 283-84.] Benecke, 379 F.3d at 590 (Fibromyalgia is "diagnosed entirely on the basis of patients' reports of pain and other symptoms."). Specifically, Dr. Thong's June 19, 2008, treatment record indicated plaintiff had multiple trigger points, a October 9, 2008, Medical Report indicated that plaintiff had "tenderness in multiple muscle areas," and other records noted that plaintiff suffered from fatigue. [AR at 219, 222, 268.] Dr. Bernadett's treatment records also consistently documented plaintiff's body pain, and he in fact prescribed plaintiff with pain medications including those specific for treating plaintiff's fibromyalgia. [Id. at 173-211];see Rollins, 261 F.3d at 855. The ALJ essentially rejected the opinions of Dr. Thong and Dr. Bernadett because they failed to provide any objective evidence to support their opinions. [AR at 16.] Given that the symptoms associated with fibromyalgia are subjective and there are no laboratory tests to confirm fibromyalgia's presence or severity, the ALJ's rejection of the treating physicians' opinions on this ground was improper. See,e.g., Guevara v. Astrue, 2009 WL 650736, *6 (C.D. Cal. March 11, 2009) ("[D]ue to the nature of fibromyalgia, the absence of `laboratory or clinical findings,' also cited by the ALJ in support of his rejection of [plaintiff's treating physician's opinion], is not a legitimate basis for rejecting the treating physicians' diagnosis of fibromyalgia." (citing Sarchet, 78 F.3d at 206)); see Cooper v. Casey, 97 F.3d 914, 917 (7th Cir. 1996) ("Pain, fatigue, and other subjective, nonverifiable complaints are in some cases the only symptoms of a serious medical condition."). Because plaintiff's treatment records extensively document her pain symptoms, trigger points, and fatigue — the distinguishing symptoms of fibromyalgia (see Rollins, 261 F.3d at 855 (fibromyalgia symptoms include multiple trigger points, fatigue, and pain)) — it was improper for the ALJ to reject Dr. Thong's and Dr. Bernadett's opinions on the basis that they relied on plaintiff's subjective complaints in forming their opinions.
The Court notes that the ALJ's adoption of the functional capacity assessment set forth by Dr. Culverwell, an examining physician, without proper rejection of plaintiff's treating physicians' findings, is insufficient. See Murray, 722 F.2d at 502 (the ALJ needs to provide specific, legitimate reasons for rejecting a treating physician's opinion (citation omitted)).
3. Severity of Plaintiff's Fibromyalgia
Plaintiff further contends that her fibromyalgia was severe enough to limit her ability to work and that the ALJ improperly rejected the limitations assessed by Dr. Thong and Dr. Bernadett. [JS at 3.] Both treating physicians determined that plaintiff was limited to less than sedentary exertion. [AR at 268-71, 273-74.] The ALJ rejected this RFC finding.
At step two of the sequential analysis, the ALJ must determine whether plaintiff's impairment or combination of impairments is sufficiently severe enough to limit her "physical or mental ability to do basic work activities[.]" 20 C.F.R. §§ 404.1520, 416.920. She must also "consider [plaintiff's] subjective symptoms, such as pain or fatigue, in determining severity."Smolen, 80 F.3d at 1290 (citation omitted). Typically, "the step two inquiry is a de minimis screening device to dispose of groundless claims." Id. (citation omitted); see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (step two is a "de minimus threshold") (citation omitted). Only impairments that have "`no more than a minimal effect on an individual[']s ability to work'" can be found "not severe." Smolen, 80 F.3d at 1290 (quoting SSR 85-28; Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)).
"Basic work activities are `abilities and aptitudes necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling.'" Smolen, 80 F.3d at 1290 (citation omitted).
The ALJ reasoned that since plaintiff alleges pain from fibromyalgia, "her condition, if it is severe, should result in objective functional restrictions, as would any other medical condition that causes pain. . . . [but] the medical records . . . do not show any severe functional limitations secondary to pain." [AR at 15.] In forming her conclusion, the ALJ rejected the limitations found by treating physicians Dr. Thong and Dr. Bernadett for the following reasons: 1) the alleged limitations are unsupported "by the medical findings or test results as documented in their treatment notes or in the consultative examination reports;" 2) greater weight is given "to the signs, test results, and medical findings noted and contained in the longitudinal treating records, and those reported by the consultative examiners, than . . . to a check off disability form or disability statement that was completed by Dr. Bernadett[] or Dr. Thong for the sole purpose of qualifying the claimant for benefits;" 3) the "assertions in the [check-off disability] forms and/or statements are not supported by, and are inconsistent with, the information contained in [the] doctor's treatment notes and in the other medical records;" 4) no weight should be given to an assessment of Dr. Thong and Dr. Bernadett because they relied "solely on the claimant's subjective complaints and self-assessed functional limitations . . . [when] the claimant's complaints and statements are not credible;" 5) the conservative treatment prescribed by Dr. Thong and Dr. Bernadett is inconsistent with their functionality assessments; and 6) the examining physician's opinion of plaintiff's RFC should be accepted. [Id. at 16.]
Although an ALJ may reject a treating physician's opinions that is conclusory and unsupported by clinical findings (see Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)), such is not the case here. In fact, Dr. Bernadett specifically wrote that plaintiff's limitations were supported by objective medical findings such as MRI results. [AR at 274.] Dr. Thong also noted positive straight leg findings in supporting his diagnosis. [Id. at 268.] The fact that both doctors also conducted various examinations throughout their treatment of plaintiff further supports that they diagnosed plaintiff's limitations not solely on plaintiff's "subjective complaints and self-assessed functional limitations." [Id. at 16, 173-211, 212-24.] Because the ALJ appears to have ignored evidence showing that Dr. Thong's and Dr. Bernadett's findings were based on objective medical findings, the Court concludes that the ALJ improperly rejected the limitations found by these physicians as being unsupported by medical findings. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ must look at the record as a whole and not merely at findings that support a nondisability determination.)
When Dr. Thong was asked to "[i]dentify the clinical findings, laboratory and test results that show your patient's medical impairments[,]" he indicated that plaintiff suffers from "chronic generalized pain refractory to various analgesics." [AR at 268.]
The ALJ also concluded that the assertions of Dr. Thong and Dr. Bernadett "are not supported by, and are inconsistent with, the information contained in [the] doctor's treatment notes and in the other medical records." [AR at 16.] However, in the decision, the ALJ failed to explain her interpretation of the medical evidence and detail her reasoning behind this finding. [Id. at 4-23.] As such, the ALJ has not met the requisite standard to support her finding. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (finding that the ALJ cannot reject a treating physician's opinion by giving reasons that were "broad and vague, failing to specify why [she] felt the treating physician's opinion was flawed" (citation omitted)); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (an ALJ can reject treating physicians' opinions found inconsistent with other medical evidence by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings" (citation omitted)).
The ALJ further found that the conservative treatment prescribed by the treating physicians was inconsistent with the limitations they found. [AR at 17.] This reason is insufficient for rejecting the treating physicians' opinions because Dr. Thong and Dr. Bernadett provided plaintiff with medication, a widely-accepted treatment for fibromyalgia, and the ALJ does not indicate what sort of treatment was available to plaintiff that her treating physicians did not prescribe. See, e.g., Lapeirre-Gutt v. Astrue, 2010 WL 2317918, *1 (9th Cir. June 9, 2010) ("A claimant cannot be discredited for failing to pursue non-conservative treatment options where none exist.") (citable for its persuasive value pursuant to Ninth Circuit Rule 36-3);Cronin v. Astrue, 2010 WL 702033, *3 (C.D. Cal. Feb. 25, 2010) ("The ALJ characterized Plaintiff's treatment with [her physician] as `conservative,' because Plaintiff only received medication management from [the physician]. However, the ALJ failed to articulate what other treatment was available for [f]ibromyalgia.").
The ALJ also rejected the limitations found by the treating physicians in the "check-off" disability forms or statements because they were completed "for the sole purpose of qualifying the claimant for benefits[.]" [AR at 16.] Since the ALJ did not point to any evidence of impropriety on the parts of Dr. Thong and Dr. Bernadett, this is an invalid reason for rejecting the doctors' opinions. See Lester, 81 F.3d at 832 ("`The Secretary may not assume that doctors routinely lie in order to help their patients collect disability benefits.'" (citation omitted)).
Finally, the ALJ states that since "[t]he treatment records and the consultative examination show no significant functional limitations from the mild disc disease of the spine and fibromyalgia[,] . . . I accept and adopt the residual functional capacity from the consultative examiner[.]" [AR at 16.] The ALJ cannot properly reject a treating physician's opinion by merely referencing the contrary findings of another physician. See Murray, 722 F.2d at 502. Here, the ALJ failed to provide legally sufficient reasons supported by substantial evidence in the record for rejecting the limitations found by Dr. Thong and Dr. Bernadett. Her failure to properly reject the limitations assessed by plaintiff's treating physicians undercuts her reliance on the examining physician's opinions, and thus her determination of plaintiff's RFC. See McAllister, 888 F.2d at 602 ("Where, as in this case, the treating physician's opinion is contradicted by that of another doctor and the ALJ wishes to disregard the opinion of the treating physician, the ALJ must set forth `specific, legitimate reasons for doing so that are based on substantial evidence in the record.'" (citing Murray, 722 F.2d at 502)). Remand is warranted to consider plaintiff's impairments and limitations in light of the opinions of Dr. Thong and Dr. Bernadett.
The Court notes that defendant further cites the following reasons for rejecting Dr. Thong's opinion: 1) it was too extreme; and 2) "Dr. Thong's statement that Plaintiff had fibromyalgia symptoms since 2006 was inconsistent with the fact that Dr. Thong began treating her in 2008." [JS at 19, citing AR at 11, 221.] The Court cannot credit this argument because it is constrained to review the reasons the ALJ actually asserts in her decision to reject the opinion, not the reasons that defendant later gives.Barbato v. Comm'r of Soc. Sec. Admin., 923 F.Supp. 1273, 1276 n. 2 (C.D. Cal. 1996) ("If the decision on its face does not adequately explain how a conclusion was reached, that alone is grounds for remand." (citation omitted)); see Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (citation omitted). In any event, there is nothing inconsistent with plaintiff having had symptoms for two years prior to first seeing Dr. Thong, and then reporting to him the time when the symptoms first appeared.
Because the result of this determination may impact the ALJ's assessment of plaintiff's disability at step three of the sequential analysis, that issue will not be addressed herein.
B. PLAINTIFF'S CREDIBILITY
Plaintiff contends that the ALJ improperly rejected her testimony about her pain and limitations. [JS at 3, 27.] The Court disagrees.
The ALJ must make explicit credibility findings whenever she discredits plaintiff's testimony. See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). The ALJ can only reject a claimant's testimony "upon (1) finding evidence of malingering, or (2) expressing clear and convincing reasons for doing so."Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003); 20 C.F.R. §§ 404.1529, 416.929. Once plaintiff has proven an underlying medical impairment, her testimony cannot be rejected "solely because the available objective medical evidence does not substantiate [her] statements." 20 C.F.R. §§ 404.1529, 416.929;Reddick, 157 F.3d at 722; Smolen, 80 F.3d at 1282. Factors that weigh in determining plaintiff's credibility include plaintiff's daily activities, reputation for truthfulness, work record, and treatment or medication for relieving symptoms. Thomas, 278 F.3d at 958-59; 20 C.F.R. §§ 404.1529, 416.929. Other factors include inconsistencies in plaintiff's testimony itself, inconsistencies between plaintiff's testimony and conduct, and testimony from physicians or third parties concerning the nature, severity, and effect of the symptoms of which the claimant complains. Id. If the ALJ's credibility determination is properly supported, it is entitled to "great deference." See Green v. Heckler, 803 F.2d 528, 532 (9th Cir. 1986).
Since the ALJ made no finding that plaintiff was malingering, she was required to justify her credibility determination with "clear and convincing reasons[.]" See Benton, 331 F.3d at 1040;see also Reddick, 157 F.3d at 722 ("`General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.'" (citation omitted)). Here, the ALJ found plaintiff to be incredible because: 1) plaintiff's "subjective complaints and alleged limitations are out of proportion to the objective clinical findings and observed function restrictions;" 2) plaintiff's subjective complaints and alleged limitations are inconsistent with her conservative treatment; 3) plaintiff's "allegation of extreme medication side effects . . . is not documented in the record;" 4) plaintiff's allegations of her limitations are inconsistent with her daily activities; and 5) plaintiff's testimony itself is inconsistent. [AR at 17-18.]
As discussed below, the Court finds that the ALJ properly cited certain reasons-incompatibility of the medical evidence with plaintiff's alleged inactivity and inability to function, inconsistencies between plaintiff's testimony and her daily activities, and inconsistences within plaintiff's testimony — to reject plaintiff's credibility.
First, the ALJ determined that plaintiff's alleged inactivity and inability to function was not supported by the objective medical evidence, reasoning that the lack of severe disuse muscle atrophy weighs against plaintiff's testimony that she has been nearly bed bound for approximately 20 hours per day for the past ten years. [Id. at 9, 17.] While the ALJ may not reject plaintiff's credibility solely on the basis of lack of corroborating medical evidence, she can properly consider that factor as a basis for finding plaintiff incredible. See Rollins, 261 F.3d at 857 (the ALJ can consider a lack of corroborating medical evidence as a factor for finding plaintiff incredible) (citation omitted). As explained herein, the ALJ provided additional valid reasons for finding plaintiff incredible. Accordingly, the lack of objective medical evidence showing muscle atrophy was a valid basis for rejecting plaintiff's credibility. See, e.g., Mitchell v. Astrue, 2010 WL 1486475, *4 (C.D. Cal. March 3, 2010) (the ALJ properly considered the lack of "`evidence of severe disuse muscle atrophy that would be compatible with [plaintiff's] alleged inactivity and inability to function'" as a factor "in finding [plaintiff's] subjective symptoms incredible." (citation omitted) (Report and Recommendation adopted, 2010 WL 1462564 (C.D. Cal. April 8, 2010))).
The Court has reviewed the record and finds that both Dr. Culverwell and Dr. Thong concluded that plaintiff does not have severe disuse muscle atrophy. [AR at 228, 279.]
The ALJ also found that plaintiff's allegations of her limitations are inconsistent with her daily activities. [AR at 17.] She properly referenced plaintiff's testimony of her limitations — i.e., she cannot stand for more than about five minutes, she can only walk a few minutes, and she has been out of bed at most 3 to 4 hours a day since 1999 — as being inconsistent with her having been able to rear her grandchildren all their lives. [Id. at 9, 17, 31-33.] See Thomas, 278 F.3d at 958-59 (inconsistencies between daily activities and testimony is a factor for rejecting credibility). The Court finds that the ALJ's interpretation of plaintiff's testimony is reasonable and supported by the record; therefore, the Court will not second-guess that interpretation. See Rollins, 261 F.3d at 857 (upholding the ALJ's credibility determination even though plaintiff's "testimony [of her activities] was somewhat equivocal about how regularly she was able to keep up with all of these activities, and the ALJ's interpretation of her testimony may not be the only reasonable one" (citation omitted)); see Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) ("Credibility determinations are the province of the ALJ" (citation omitted), and where the ALJ's "findings are supported by substantial evidence in the record, [the Court's] role is not to second-guess that decision.").
Finally, as an additional reason for rejecting plaintiff's credibility, the ALJ pointed to plaintiff's statement that her condition has not really changed since she testified before Judge Hatfield in May 2008, then contrasted that testimony with her additional statement that her physical limitations have gotten worse. [AR at 9, 31.] The Court finds this inconsistency to be a valid reason for rejecting plaintiff's credibility. See Thomas, 278 F.3d at 958-59 (inconsistencies in plaintiff's testimony weigh against her credibility).
In connection with a prior application for benefits, plaintiff testified before Judge Hatfield on May 6, 2008. [AR at 61.]
As the ALJ gave clear and convincing reasons supported by the evidence for her conclusion rejecting plaintiff's credibility, remand is not warranted on this issue.
VI. CONCLUSION
As a general rule, remand is warranted where additional administrative proceedings could remedy defects in the Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). In this case, remand is appropriate for the ALJ to reconsider the treating physicians' opinions, and the impact of those opinions on the sequential analysis. The ALJ is instructed to take whatever further action that is deemed appropriate and consistent with this decision.IT IS HEREBY ORDERED that: (1) plaintiff's request for reversal, or in the alternative, remand, is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion.22 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.
This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.