1 NOT FOR PUBLICATION 2
3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 FIONA M. B., Case No.: 20-cv-1250-AGS 6 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTION (ECF 14) 7 v. 8 Kilolo KIJAKAZI, Commissioner of Social Security, 9 Defendant. 10 11 The question here is whether a Social Security judge impermissibly rejected 12 claimant’s statements and her mother’s testimony regarding her fibromyalgia symptoms. 13 BACKGROUND 14 Plaintiff Fiona M. B. applied for Social Security disability benefits, alleging that she 15 cannot work due to a multitude of ailments, including chronic joint pain and fibromyalgia. 16 (AR 70-71.) Her symptoms allegedly include weakness, constant pain in her joints, 17 dizziness, migraines, and brain fog. (AR 43-46, 229.) Fiona’s mother offered corroborating 18 testimony. (AR 61-62.) After a hearing, an Administrative Law Judge concluded that Fiona 19 could perform light work with limitations and so denied her disability request. (AR 20, 25.) 20 DISCUSSION 21 After deciding a claimant has an ailment that might cause such symptoms, an ALJ 22 must “evaluate[s] the intensity and persistence of those symptoms to determine the extent 23 to which [they] limit [claimant’s] ability to perform work-related activities.” SSR 16-3p, 24 2017 WL 5180304, at *3 (October 25, 2017). The ALJ determined that Fiona suffered from 25 “chronic joint pain, fibromyalgia, and major joint disfunction,” (AR 20), but her 26 impairments did not “render[] her totally disabled.” (AR 21.) To reach that conclusion, the 27 ALJ rejected Fiona’s statements and her mother’s testimony regarding the intensity of her 28 symptoms. (Id.) Fiona challenges this decision. 1 A. Plaintiff’s Subjective Symptom Testimony 2 When “consider[ing] [the claimant’s] statements about the intensity, persistence, and 3 limiting effects of symptoms, [an ALJ] evaluate[s] whether the statements are consistent 4 with objective medical evidence and the other evidence.” SSR 16-3p, 2017 WL 5180304, 5 at *6. An ALJ may only reject a claimant’s testimony regarding the severity of her 6 symptoms by providing “specific, clear and convincing reasons.” Trevizo v. Berryhill, 7 871 F.3d 664, 678 (9th Cir. 2017). The Court considers below the ALJ’s grounds for 8 discounting Fiona’s testimony about the severity of her symptoms. 9 1. Inconsistent with Objective Medical Evidence 10 One reason the ALJ rejected Fiona’s subjective testimony is because it wasn’t 11 “entirely consistent with the medical evidence.” (AR 23.) The ALJ noted, for example, that 12 Fiona’s physical exams over a five-year span showed that her “range of motion was normal 13 in her musculoskeletal, upper extremities, and neck,” and that there was “no swelling in 14 her bilateral hands, wrists or ankles.” (AR 21.) The ALJ also cited a doctor who “reported 15 there was no specific area of the musculoskeletal to examine[,] and for the extremities, 16 there was no cyanosis, clubbing or edema.” (AR 23.) And when Fiona presented to the 17 emergency room in 2017, her “physical exam was relatively unremarkable, the lab tests 18 were all negative and her vital signs were stable.” (AR 22.) 19 But these results are consistent with Fiona’s fibromyalgia. Fibromyalgia is “poorly- 20 understood within much of the medical community.” Benecke v. Barnhart, 379 F.3d 587, 21 590 (9th Cir. 2004). Its “cause is unknown,” “there is no cure,” and “[t]he disease is 22 diagnosed entirely on the basis of patients’ reports of pain and other symptoms.” Id.; see 23 also Revels v. Berryhill, 874 F.3d 648, 657 (9th Cir. 2017) (“[D]iagnosis of fibromyalgia 24 does not rely on X-rays or MRIs.”); Cota v. Comm’r of Soc. Sec., No. 08-00842, 2009 WL 25 900315, at *9 (E.D. Cal. Mar. 31, 2009) (“Joints in fibromyalgia patients appear normal; 26 musculoskeletal examinations generally indicate no objective joint swelling or abnormality 27 in muscle strength, sensory functions, or reflexes.”). Thus, Fiona’s “unremarkable” tests 28 1 and exams do not contradict her reports of “constant pain” and “full body pain.” 2 (AR 43-44.) 3 In addition, “the symptoms of fibromyalgia ‘wax and wane,’”—“a person may have 4 ‘bad days and good days.’” Revels, 874 F.3d at 657 (quoting SSR 12-2p, 5 2012 WL 3104869, at *6). So a chiropractor’s observation that “Fiona’s prognosis is good 6 at this time,” is compatible with his subsequent remark that “[s]ome days[,] when Fiona 7 has a neurol[o]gical flare[,] there are zero work tasks that can be done and should be 8 refrained from.” (AR 1096.) Because the ALJ failed to consider the medical record “in 9 light of fibromyalgia’s unique [characteristics],” his recitation of Fiona’s medical history 10 is not a convincing reason to reject her testimony.1 Revels, 874 F.3d at 662. 11 2. Routine Conservative Treatment 12 Next, the ALJ contended that Fiona’s record shows “mostly [] routine conservative 13 treatment.” (AR 21.) The Ninth Circuit has “indicated that evidence of conservative 14 treatment is sufficient to discount a claimant’s testimony regarding severity of an 15 impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (internal quotation marks 16 and citation omitted). But there is “no guiding authority on what exactly constitutes 17 ‘conservative’ or ‘routine’ treatment.” Childress v. Colvin, No. 13-CV-03252-JSC, 18 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16, 2014). For example, the “authority 19 considering whether use of narcotic pain medication by itself constitutes ‘conservative’ 20 21 22 1 The Commissioner also argues that Fiona’s physical activities contradict her 23 symptom testimony. (See ECF 17, at 10 (“Plaintiff sought treatment for . . . knee and wrist pain yet reported that she walked for one to three hours per day . . . .”).) But the ALJ did 24 not articulate this rationale, and the Court is “constrained to review the reasons the ALJ 25 asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); see also Bray v. Comm’r of Soc. Sec., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of 26 administrative law require us to review the ALJ’s decision based on the reasoning and 27 factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”). 28 1 treatment goes both ways.” Vuoso v. Colvin, No. CV 15-1255-PLA, 2016 WL 1071576, 2 at *9 (C.D. Cal. Mar. 16, 2016) (gathering cases). Compare Aguilar v. Colvin, 3 No. CV 13-08307-VBK, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (“It would be 4 difficult to fault Plaintiff for overly conservative treatment when he has been prescribed 5 strong narcotic pain medications.”), with Vuoso, 2016 WL 1071576, at *9 (upholding 6 ALJ’s finding that claimant’s treatment was “conservative and routine” when she was 7 “prescribed two narcotic medications” but received no other pain-related treatment). Some 8 courts go even further and consider any regimen, in “the absence of surgery or injections, 9 to be ‘conservative’ treatment.” See Childress, 2014 WL 4629593, at *12 (gathering cases). 10 When treatment is limited to nonnarcotic medications and noninvasive therapies, the 11 treatment is more likely to be considered “conservative.” See, e.g., Edginton v. Colvin, 12 625 F. App’x 334, 336 (9th Cir.
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1 NOT FOR PUBLICATION 2
3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 FIONA M. B., Case No.: 20-cv-1250-AGS 6 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTION (ECF 14) 7 v. 8 Kilolo KIJAKAZI, Commissioner of Social Security, 9 Defendant. 10 11 The question here is whether a Social Security judge impermissibly rejected 12 claimant’s statements and her mother’s testimony regarding her fibromyalgia symptoms. 13 BACKGROUND 14 Plaintiff Fiona M. B. applied for Social Security disability benefits, alleging that she 15 cannot work due to a multitude of ailments, including chronic joint pain and fibromyalgia. 16 (AR 70-71.) Her symptoms allegedly include weakness, constant pain in her joints, 17 dizziness, migraines, and brain fog. (AR 43-46, 229.) Fiona’s mother offered corroborating 18 testimony. (AR 61-62.) After a hearing, an Administrative Law Judge concluded that Fiona 19 could perform light work with limitations and so denied her disability request. (AR 20, 25.) 20 DISCUSSION 21 After deciding a claimant has an ailment that might cause such symptoms, an ALJ 22 must “evaluate[s] the intensity and persistence of those symptoms to determine the extent 23 to which [they] limit [claimant’s] ability to perform work-related activities.” SSR 16-3p, 24 2017 WL 5180304, at *3 (October 25, 2017). The ALJ determined that Fiona suffered from 25 “chronic joint pain, fibromyalgia, and major joint disfunction,” (AR 20), but her 26 impairments did not “render[] her totally disabled.” (AR 21.) To reach that conclusion, the 27 ALJ rejected Fiona’s statements and her mother’s testimony regarding the intensity of her 28 symptoms. (Id.) Fiona challenges this decision. 1 A. Plaintiff’s Subjective Symptom Testimony 2 When “consider[ing] [the claimant’s] statements about the intensity, persistence, and 3 limiting effects of symptoms, [an ALJ] evaluate[s] whether the statements are consistent 4 with objective medical evidence and the other evidence.” SSR 16-3p, 2017 WL 5180304, 5 at *6. An ALJ may only reject a claimant’s testimony regarding the severity of her 6 symptoms by providing “specific, clear and convincing reasons.” Trevizo v. Berryhill, 7 871 F.3d 664, 678 (9th Cir. 2017). The Court considers below the ALJ’s grounds for 8 discounting Fiona’s testimony about the severity of her symptoms. 9 1. Inconsistent with Objective Medical Evidence 10 One reason the ALJ rejected Fiona’s subjective testimony is because it wasn’t 11 “entirely consistent with the medical evidence.” (AR 23.) The ALJ noted, for example, that 12 Fiona’s physical exams over a five-year span showed that her “range of motion was normal 13 in her musculoskeletal, upper extremities, and neck,” and that there was “no swelling in 14 her bilateral hands, wrists or ankles.” (AR 21.) The ALJ also cited a doctor who “reported 15 there was no specific area of the musculoskeletal to examine[,] and for the extremities, 16 there was no cyanosis, clubbing or edema.” (AR 23.) And when Fiona presented to the 17 emergency room in 2017, her “physical exam was relatively unremarkable, the lab tests 18 were all negative and her vital signs were stable.” (AR 22.) 19 But these results are consistent with Fiona’s fibromyalgia. Fibromyalgia is “poorly- 20 understood within much of the medical community.” Benecke v. Barnhart, 379 F.3d 587, 21 590 (9th Cir. 2004). Its “cause is unknown,” “there is no cure,” and “[t]he disease is 22 diagnosed entirely on the basis of patients’ reports of pain and other symptoms.” Id.; see 23 also Revels v. Berryhill, 874 F.3d 648, 657 (9th Cir. 2017) (“[D]iagnosis of fibromyalgia 24 does not rely on X-rays or MRIs.”); Cota v. Comm’r of Soc. Sec., No. 08-00842, 2009 WL 25 900315, at *9 (E.D. Cal. Mar. 31, 2009) (“Joints in fibromyalgia patients appear normal; 26 musculoskeletal examinations generally indicate no objective joint swelling or abnormality 27 in muscle strength, sensory functions, or reflexes.”). Thus, Fiona’s “unremarkable” tests 28 1 and exams do not contradict her reports of “constant pain” and “full body pain.” 2 (AR 43-44.) 3 In addition, “the symptoms of fibromyalgia ‘wax and wane,’”—“a person may have 4 ‘bad days and good days.’” Revels, 874 F.3d at 657 (quoting SSR 12-2p, 5 2012 WL 3104869, at *6). So a chiropractor’s observation that “Fiona’s prognosis is good 6 at this time,” is compatible with his subsequent remark that “[s]ome days[,] when Fiona 7 has a neurol[o]gical flare[,] there are zero work tasks that can be done and should be 8 refrained from.” (AR 1096.) Because the ALJ failed to consider the medical record “in 9 light of fibromyalgia’s unique [characteristics],” his recitation of Fiona’s medical history 10 is not a convincing reason to reject her testimony.1 Revels, 874 F.3d at 662. 11 2. Routine Conservative Treatment 12 Next, the ALJ contended that Fiona’s record shows “mostly [] routine conservative 13 treatment.” (AR 21.) The Ninth Circuit has “indicated that evidence of conservative 14 treatment is sufficient to discount a claimant’s testimony regarding severity of an 15 impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (internal quotation marks 16 and citation omitted). But there is “no guiding authority on what exactly constitutes 17 ‘conservative’ or ‘routine’ treatment.” Childress v. Colvin, No. 13-CV-03252-JSC, 18 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16, 2014). For example, the “authority 19 considering whether use of narcotic pain medication by itself constitutes ‘conservative’ 20 21 22 1 The Commissioner also argues that Fiona’s physical activities contradict her 23 symptom testimony. (See ECF 17, at 10 (“Plaintiff sought treatment for . . . knee and wrist pain yet reported that she walked for one to three hours per day . . . .”).) But the ALJ did 24 not articulate this rationale, and the Court is “constrained to review the reasons the ALJ 25 asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); see also Bray v. Comm’r of Soc. Sec., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of 26 administrative law require us to review the ALJ’s decision based on the reasoning and 27 factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”). 28 1 treatment goes both ways.” Vuoso v. Colvin, No. CV 15-1255-PLA, 2016 WL 1071576, 2 at *9 (C.D. Cal. Mar. 16, 2016) (gathering cases). Compare Aguilar v. Colvin, 3 No. CV 13-08307-VBK, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (“It would be 4 difficult to fault Plaintiff for overly conservative treatment when he has been prescribed 5 strong narcotic pain medications.”), with Vuoso, 2016 WL 1071576, at *9 (upholding 6 ALJ’s finding that claimant’s treatment was “conservative and routine” when she was 7 “prescribed two narcotic medications” but received no other pain-related treatment). Some 8 courts go even further and consider any regimen, in “the absence of surgery or injections, 9 to be ‘conservative’ treatment.” See Childress, 2014 WL 4629593, at *12 (gathering cases). 10 When treatment is limited to nonnarcotic medications and noninvasive therapies, the 11 treatment is more likely to be considered “conservative.” See, e.g., Edginton v. Colvin, 12 625 F. App’x 334, 336 (9th Cir. 2015) (considering “medications and an electronic 13 transcutaneous electrical nerve stimulation unit” to be “conservative treatment”); 14 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (considering “physical therapy 15 and the use of anti-inflammatory medication, a transcutaneous electrical nerve stimulation 16 unit, and a lumbosacral corset” to be “conservative treatment”). This finding is especially 17 likely when more “aggressive treatment program[s]” are available. See Tommasetti, 18 533 F.3d at 1039 & n.2 (“[The applicant] testified that his doctors suggested back surgery, 19 but that he did not want to risk the procedure.”). 20 Fiona has received various treatments over the years: Dilaudid, Norco, hydrocodone, 21 and other narcotics for generalized pain (see AR 73, 345, 347-48, 385, 536, 797-98); 22 Cymbalta and nortriptyline to treat fibromyalgia (AR 426); spinal manipulation and 23 arthrostimulation (AR 1092-93); and physical therapy (AR 407, 423, 492-93, 537, 845). 24 Fiona was also administered at least one nonsteroidal anti-inflammatory injection 25 (AR 389) and sought emergency care for her pain multiple times (AR 22, 73, 82, 106). 26 Given the length and breadth of Fiona’s regimen, “it is not at all obvious to this Court that 27 consistent treatment” with “increasingly strong narcotic pain medications . . . , as well as 28 1 anti-inflammatory drugs and physical therapy, is ‘conservative’ treatment.” See Tran v. 2 Colvin, No. EDCV 15-0671 AS, 2016 WL 917891, at *7 (C.D. Cal. Mar. 8, 2016). 3 Moreover, “the ALJ failed to describe the type of treatment [p]laintiff should have 4 sought for . . . fibromyalgia, . . . a disease for which there is no known cause or cure.” 5 Rose v. Berryhill, 256 F. Supp. 3d 1079, 1089 (C.D. Cal. 2017). So, Fiona “cannot be 6 discredited for failing to pursue non-conservative treatment options where none exist.” 7 Lapeirre-Gutt v. Astrue, 382 Fed. App’x 662, 664 (9th Cir. 2010). The Court concludes 8 that “conservative treatment” was not a valid basis for discrediting Fiona’s testimony. 9 3. Lack of Ongoing Treatment 10 Finally, the ALJ found that the “medical evidence lacks sufficient ongoing 11 treatment,” which he attributed to improvement. (AR 21; see AR 22 (“[Because] the 12 claimant has not sought any medical treatment for her alleged impairments since 13 March 2018, it may be reasonable to assume that her alleged impairments and associated 14 pain have improved and/or been controlled.”).) But the Social Security Administration 15 “will not find an individual’s symptoms inconsistent . . . without considering possible 16 reasons he or she may not . . . seek treatment consistent with the degree of his or her 17 complaints.” SSR 16-3p, 2017 WL 5180304, at *9. Potential reasons a claimant may stop 18 seeking medical help include that the “symptoms have reached a plateau,” that “the side 19 effects are less tolerable than the symptoms,” or that the “individual may not be able to 20 afford treatment.” Id. at *9-10. Additionally, there may be “no further effective treatment 21 to prescribe or recommend that would benefit the individual.” Id. at *10. 22 The record shows that Fiona’s medications were often ineffective. (See, e.g., AR 430 23 (“Tried multiple meds as listed above without improvement.”); AR 447 (“No improvement 24 with [N]orco.”); AR 473 (“No improvement on [M]obic or Pamelor.”); AR 501 (“Norco 25 and [A]dvil with minimal relief.”); id. (“Prednisone from urgent care at high doses did not 26 dramatically improve her symptoms.”).) Fiona also reported that she “couldn’t tolerate[] 27 the side effects” of her medications, which included “blurred/double vision, [central 28 nervous system] effect, and nausea,” (AR 426, 428, 487), and that her fibromyalgia 1 medication “made her too drowsy [so she] stopped.” (See AR 408.) She also alluded to 2 financial constraints deterring her from recent treatment. (See AR 46 (visiting her 3 chiropractor “[w]hen [she has] the money to do so”).) And finally, “[t]here is no cure or 4 known surgical treatment for fibromyalgia.” Olguin v. Astrue, No. CV 08-6548-JEM, 5 2009 WL 4641728, at *11 (C.D. Cal. Dec. 2, 2009). The ALJ’s failure to grapple with any 6 of these explanations in the record renders this last rationale unconvincing. 7 Because the ALJ failed to consider fibromyalgia’s unique characteristics, Fiona’s 8 extensive treatment history, and her legitimate reasons for not seeking more aggressive 9 remedies (or any remedy at all), he erroneously rejected Fiona’s statements regarding her 10 subjective symptoms. 11 B. Harmless-Error Review 12 But the Court must still “affirm if the error is harmless.” Zavalin v. Colvin, 778 F.3d 13 842, 845 (9th Cir. 2015). An error is harmless when it is “inconsequential to the ultimate 14 nondisability determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 15 (9th Cir. 2006). At Fiona’s hearing, the ALJ questioned the vocational expert about a 16 hypothetical claimant based on Fiona’s testimony: “Off task six hours out of eight; miss 17 work two weeks a month; able to walk 1.5 blocks at one time; walk or stand for . . . 18 20 minutes; sit [for] . . . one hour; has to lay down [one hour in every] eight hours”; and 19 other lifting and postural limitations. (AR 68.) In that scenario, the vocational expert 20 confirmed that there would be “no jobs in the competitive economy,” so claimant 21 “wouldn’t be able to maintain any employment.” (Id.) Because fully crediting Fiona’s 22 testimony could lead to a disability finding, the Court concludes that the error here was not 23 harmless. 24 C. Remedy 25 Fiona seeks immediate payment of benefits due to this error. (ECF 14, at 1.) When 26 “the record has been developed fully and further administrative proceedings would serve 27 no useful purpose, the district court should remand for an immediate award of benefits.” 28 Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (citation 1 |}omitted). Even so, courts have “flexibility to remand for further proceedings when the 2 ||record as a whole creates serious doubt that a claimant is, in fact, disabled.” Garrison v. 3 || Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). 4 The record here casts doubt on Fiona’s entitlement to benefits. Plaintiff's reported 5 || activities, which include walking one to three hours each day and “swimming and doing 6 || yoga 2-3 times/week,” raise questions about her physical abilities. (AR 408.) And, although 7 |\\the ALJ found that fibromyalgia was one of plaintiff's medically determinable 8 ||impairments, plaintiff herself reports that she “recently found out [it] could be [Ehlers- 9 || Danlos syndrome] with fibro like symptoms.” (/d.; see also AR 73 (“[Fiona] does not fit 10 || the picture of [fibromyalgia].”).) Finally, Fiona’s mother suggests there may be jobs within 11 |/plaintiff’s capacity. (See AR 61-62 (“Jobs that she’s able to do don’t pay enough.”).) Thus, 12 case should be remanded so that the ALJ may reconsider the full record and consider 13 unique characteristics of fibromyalgia. 14 CONCLUSION 15 The Court need not reach whether Fiona’s mother’s testimony was erroneously 16 |/rejected. Because the ALJ’s erroneous disability ruling requires remand, Fiona’s summary- 17 ||judgment motion is granted. The case is remanded for further proceedings consistent with 18 |/this opinion. The Clerk is directed to issue a judgment and close this case. 19 |}, REVERSED AND REMANDED. 20 || Dated: March 22, 2022 21 — | Hon. ndrew G. Schopler United States Magistrate Judge 23 24 25 26 27 28