Jenny Swales v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2021
• Docket: 19-36107
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JENNY M. SWALES, No. 19-36107

Plaintiff-Appellant, D.C. No. 1:18-cv-01503-AC

v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon John V. Acosta, Magistrate Judge, Presiding

Argued and Submitted March 3, 2021 Portland, Oregon

Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,** District Judge.

Jenny Swales appeals from the district court’s order affirming the

administrative law judge’s decision denying her application for disability insurance

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. Page 2 of 6

benefits and supplemental security income under Title II and Title XVI of the

Social Security Act.

1. The administrative law judge (ALJ) erred at step two in concluding that

Swales’s alleged fibromyalgia is not a medically determinable impairment (MDI).

To determine whether a claimant has an MDI of fibromyalgia, an ALJ applies one

of two sets of criteria set forth in Social Security Ruling 12-2p. See SSR 12-2p,

2012 WL 3104869, at *2–3 (July 25, 2012). Relevant here, both sets of criteria

require that “other disorders that could cause the symptoms or signs were

excluded.” Id. at *3.

The ALJ’s decision that fibromyalgia was not an MDI because other

disorders were not sufficiently excluded is not supported by substantial evidence in

the record. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The record

includes documentation of an examining physician finding that Swales met the

diagnostic criteria for fibromyalgia, and evidence that her treating nurse

practitioner, Family Nurse Practitioner (FNP) Sarah Roberson, continually

acknowledged Swales’s fibromyalgia diagnosis despite referring Swales to various

specialists for consideration of myriad other possible causes of her pain. At

minimum, the ALJ must provide a more thorough explanation as to why the record

does not support a fibromyalgia MDI. See Bray v. Comm’r of Soc. Sec. Admin., Page 3 of 6

554 F.3d 1219, 1225 (9th Cir. 2009) (limiting review of an ALJ decision to the

reasoning offered by the ALJ).

Further, the ALJ appears to have applied a more stringent standard for

exclusion of other impairments than the one suggested by SSR 12-2p, seeming to

suggest that the existence of degenerative disc disease could preclude an MDI of

fibromyalgia. SSR 12-2p does not require fibromyalgia to be a stand-alone

impairment. See 12-2p, 2012 WL 3104869, at *3. And multiple circuits, including

this court, have found degenerative disc disease or related MDIs to co-exist with

fibromyalgia. See, e.g., Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017)

(arthritis, obesity, fibromyalgia); Romero v. Colvin, 563 F. App’x 618, 619 (10th

Cir. 2014) (degenerative disc disease, depression, obesity, fibromyalgia); Arakas v.

Comm’r, 983 F.3d 83, 94 (4th Cir. 2020) (degenerative disc disease and

fibromyalgia). On remand, the ALJ must therefore explain his reasoning to ensure

that the correct legal standard has been applied. See Molina, 674 F.3d at 1110.

If, on remand, the ALJ concludes that Swales’s fibromyalgia is an MDI, the

ALJ must reconsider the Residual Functional Capacity analysis in light of

fibromyalgia’s unique characteristics, including that it is diagnosed based on a

patient’s self-reported symptoms and that outwardly normal physical examinations

are to be expected. See Revels, 874 F.3d at 656, 663, 666. Because the ALJ

discredited Swales’s testimony and her treating nurse practitioner’s opinion Page 4 of 6

because of perceived inconsistency between Swales’s subjective complaints and

objective medical evidence, an error in excluding fibromyalgia as an MDI at step

two is prejudicial to Swales. See Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d

1050, 1055–56 (9th Cir. 2006). Thus, the error is not harmless, and we will

reverse and remand for further proceedings. See Molina, 674 F.3d at 1111.

2. Additionally, irrespective of the ALJ’s decision upon reconsideration of

fibromyalgia at step two, the ALJ did not provide legally sufficient reasons for

discounting Swales’s pain testimony or the medical opinion of her treating nurse

practitioner, FNP Roberson. First, the ALJ did not provide specific, clear, and

convincing reasons for discounting Swales’s pain testimony based on her daily

activities. Garrison v. Colvin, 759 F.3d 995,1014–15 (9th Cir. 2014). The ALJ

cited Swales’s testimony that she homeschooled and took care of her children, did

chores such as cooking and dishes, and drove occasionally, but did not provide

specific reasons why those activities undermine Swales’s pain testimony.

Particularly in light of our precedent, which urges caution in concluding that daily

activities are inconsistent with pain testimony, see, e.g., Garrison, 759 F.3d at

1016, on remand the ALJ must provide specific and convincing reasons to discredit

Swales’s pain testimony.

Second, the ALJ did not adequately weigh the medical opinion of Swales’s

treating nurse practitioner. The weight of a treating nurse practitioner’s opinion, Page 5 of 6

although not considered an acceptable medical source at the time of Swales’s

application, Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015), must nonetheless

be assessed based on factors including “the length of the treatment relationship and

the frequency of examination, the nature and extent of the treatment relationship,

supportability, consistency with the record, and specialization of [the treating nurse

practitioner].” Revels, 874 F.3d at 655. Here, the ALJ did not discuss the extensive

treating relationship between Swales and FNP Roberson or consider whether FNP

Roberson’s opinion was due more weight because of that long-term treatment. As

such, on remand, the ALJ must reassess FNP Roberson’s medical opinion,

irrespective of his decision at step two.

3. On these grounds, we find that reversal and remand for further

proceedings is the proper remedy. Although the ALJ failed to provide sufficient

reasons for denying the fibromyalgia MDI at step two and Swales has presented

significant evidence concerning her fibromyalgia symptoms, it is not clear from the

record whether the ALJ is required to find Swales disabled. See Smolen v. Chater,

80 F.3d 1273, 1292 (9th Cir. 1996). Further proceedings are needed for the ALJ to

reassess the record based on the instructions herein and to provide an adequate

explanation of the legal standards applied and evidence relied upon in assessing

Swales’s application. Page 6 of 6

REVERSED AND REMANDED.