Lim v. Kijakazi

• Court: District Court, N.D. California
• Decided: March 9, 2022
• Docket: 1:20-cv-04821
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 MELISSA F. L.,1 Case No. 20-cv-04821-RMI

9 Plaintiff, ORDER RE: CROSS MOTIONS FOR 10 v. SUMMARY JUDGMENT

11 ANDREW SAUL, et al., Re: Dkt. Nos. 22, 26 12 Defendants.

13 14 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying her 15 application for disability insurance benefits and a period of disability under Title II of the Social 16 Security Act. See AR at 19.2 Plaintiff’s request for review of the ALJ’s unfavorable decision was 17 denied by the Appeals Council (see id. at 633-640), thus, the ALJ’s decision is the “final decision” 18 of the Commissioner of Social Security which this court may review. See 42 U.S.C. §§ 405(g), 19 1383(c)(3). Both Parties have consented to the jurisdiction of a magistrate judge (dkts. 8 & 12), 20 and both parties have moved for summary judgment (dkts. 22 & 26). For the reasons stated below, 21 Plaintiff’s motion for summary judgment is granted, and Defendant’s motion is denied. 22 LEGAL STANDARDS 23 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 24 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 25

26 1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the 27 Judicial Conference of the United States, Plaintiff’s name is partially redacted. 1 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 2 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 3 “substantial evidence” appears throughout administrative law and directs courts in their review of 4 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 5 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 6 adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 7 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In 8 determining whether the Commissioner’s findings are supported by substantial evidence,” a 9 district court must review the administrative record as a whole, considering “both the evidence 10 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 11 Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where 12 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 13 679 (9th Cir. 2005). 14 PROCEDURAL HISTORY 15 On May 29, 2012, Plaintiff filed an application for Title II benefits, alleging an onset date 16 of September 30, 2010. See AR at 19. As set forth in detail below, the ALJ found Plaintiff not 17 disabled and denied the application (for the first time) on February 6, 2015. Id. at 21-30. The 18 Appeals Council denied Plaintiff’s request for review (for the first time) on August 21, 2015. See 19 id. at 1-4. Thereafter, Plaintiff (who resided in Sacramento, California at the time) sought review 20 in the United States District Court for the Eastern District of California in October of 2015. See 21 Compl. (dkt. 1), Case No. 2:15-cv-02124-AC (Date Filed 10/12/2015). In August of 2016, the 22 district court entered an order on the Parties’ stipulation for a voluntary remand for further 23 administrative proceedings such that the ALJ could re-evaluate the opinions of Plaintiff’s treating 24 sources. See id. (dkt. 24) at 1. Following remand, the Appeals Council in turn remanded the matter 25 to the same ALJ and ordered her to, inter alia, re-contact Reza Ehyai, M.D., Plaintiff’s treating 26 neurologist (who had previously opined that Plaintiff was disabled), because of a missing page 27 from Dr. Eyahi’s June 8, 2012 findings and opinions. See AR at 860-61. Following remand to the 1 2018, and in November of 2018), after which, the ALJ once again denied Plaintiff’s application on 2 February 15, 2019. See id. at 648-69. The following month, Plaintiff sought review of the ALJ’s 3 decision (see id. at 640), which was eventually denied by the Appeals Council on May 13, 2020. 4 See id. at 633-37. Thereafter, because Plaintiff had since relocated from the Eastern District of 5 California to this district, she sought review of the second denial of her application in this court on 6 July 17, 2020 (see Compl. (dkt. 1) at 1-2) and the instant case was initiated. 7 SUMMARY OF THE RELEVANT EVIDENCE 8 By way of background, Plaintiff earned a university degree in 1993 and worked in various 9 capacities without interruption until 2002 when she was involved in an automobile accident that 10 caused her to suffer back and neck injuries. See Pl.’s Mot. (dkt. 22) at 15; see also AR at 1175. By 11 2006, Plaintiff’s conditions (persistent pain and fatigue) forced her to reduce her work-schedule to 12 part-time work (10 hours a week) until her symptoms worsened to the point where she was forced 13 to stop working entirely (in September of 2010). See Pl.’s Mot. (dkt. 22) at 15. After filing her 14 disability application in 2012, the matter wound its way through administrative proceedings for a 15 number of years, eventually culminating in an adverse decision by an ALJ in 2015, followed by 16 federal court review which resulted in a stipulated remand in 2016 (before the filing of briefing). 17 On remand from federal court, the Appeals Council instructed the ALJ to hire a medical expert to 18 help the ALJ to evaluate the nature, severity, and limiting effects of Plaintiff’s impairments. See 19 Pl.’s Mot. (dkt. 22) at 24. As to Plaintiff’s fibromyalgia, the medical expert opined that Plaintiff is 20 functionally disabled because her condition medically equals the severity of the most closely 21 analogous Listing, which is found at 20 C.F.R., Part 404, Subpt. P, Appx. 1, § 14.06(b). See Pl.’s 22 Mot. (dkt. 22) at 24-25. As discussed below, the ALJ’s rejection of this opinion was error because 23 the opinion is supported by the overwhelming weight of the medical evidence in the record, 24 because it is consistent with similar findings rendered by Plaintiff’s treating physicians, and 25 because it is corroborated by Plaintiff’s own accounts of her chronic pain and its ensuing 26 limitations. 27 // 1 Plaintiff’s Primary Care Physicians 2 Plaintiff’s treatment history with her primary care physicians, Alvin Sokolov, M.D., and 3 Ronald Sokolov, M.D., spans from well before her alleged onset date to well after the date last 4 insured. See AR at 433, 594 (showing Plaintiff’s treatment relationship with Sokolov & Sokolov 5 as ranging between – at least – June of 2010 and August of 2014). On June 10, 2010, Plaintiff was 6 treated for pain in her right shoulder which had persisted for several weeks. Id. at 433. The 7 following week, on June 18, 2010, her symptoms included fatigue, anxiety, depression, and the 8 onset of pain and weakness in her left shoulder – she was diagnosed with recurrent depression and 9 arthralgia (joint stiffness). Id. at 430-32. Several days later, during another office visit on June 30, 10 2010, Dr. Alvin Sokolov diagnosed Plaintiff with recurrent depression, fibromyalgia (a condition 11 that causes widespread pain, sleep problems, fatigue, and mental distress), and myositis (a group 12 of muscle diseases characterized by inflamed muscles causing prolonged muscle fatigue and 13 weakness). Id. at 427-28. Thereafter, for the next several months, the record indicates steady and 14 regular treatment sessions for these conditions (at a high frequency and involving, at least, 15 monthly visits and treatment sessions) with little to no success in abating her symptoms. See id. at 16 410, 413, 416, 418, 421, 424. During an office visit on February 11, 2011, her treatment providers 17 found that her joint and muscle pain was both sharp and chronic, and that it involved multiple 18 trigger points, that she also experienced bone and joint symptoms, muscle weakness, back pain, 19 and sleep disturbances. Id. at 407-09. Her treatment providers continued to make these 20 observations during Plaintiff’s many office visits (sometimes involving multiple treatment 21 sessions per month) during the course of the subsequent months. See id. at 353, 356, 359, 365, 22 372, 375, 381, 384, 386, 388, 391, 394, 397, 400. A sampling of her treatment providers’ 23 assessments and diagnoses is as follows: Plaintiff’s fibromyalgia pain has resulted in decreased 24 activity, fatigue, and generalized weakness (id. at 398); it has also caused back pain, muscle 25 weakness, neck stiffness, muscle spasms in the cervical spine, and thoracic and lumbar back pain 26 (id. at 395-96); Plaintiff’s back feels stiff at all times (id. at 394); Plaintiff’s fibromyalgia is 27 attended with at least 12 trigger points (id. at 392); Plaintiff’s pain is causing her to experience 1 by November of 2011, Plaintiff’s fibromyalgia had rendered it difficult for her to “sit, stand or 2 walk for any period,” given that there are “[m]ultiple trigger points of tenderness thru (sic) [her] 3 body” (id. at 375-76); by December of 2011, her physicians describe her fibromyalgia and chronic 4 fatigue as “uncontrolled” (id. at 372); by May of 2012, Plaintiff’s pain in the thoracic spine is so 5 severe and “burning” that she experiences pain in every position (seated, reclined, etc.) (id. at 359- 6 60); in late May of 2012, given that Plaintiff was experiencing “body aches ‘everywhere,’” her 7 primary care doctors referred her to a neurologist (id. at 365-57); and, in June of 2012, Dr. Ronald 8 Sockolov overserved that Plaintiff’s pain precludes her from sitting, bending, lifting, or walking 9 for long periods of time (id. at 353). 10 On June 11, 2012, Dr. Sokolov executed a medical questionnaire, through which he 11 expressed a number of opinions about Plaintiff’s functional limitations. Id. at 590-91. He opined 12 that: during an 8-hour workday, Plaintiff would be unable to sit, stand, or walk for more than 15 13 minutes at a time; that Plaintiff is able to lift 5 pounds frequently (between 1/3 and 2/3 of a 14 workday) and 10 pounds occasionally (up to 1/3 of a workday); and, that Plaintiff’s abilities are 15 “very limited” with respect to reaching, handling, feeling, pushing, pulling, and grasping. Id. Dr. 16 Sokolov also opined that – since October of 2010, Plaintiff’s medical problems preclude her from 17 being able to perform any full-time work at any exertional level including the sedentary level. Id. 18 Plaintiff’s Treating Neurologist 19 Starting on June 8, 2012, following a neurology referral from Dr. Sokolov, Plaintiff began 20 receiving specialized treatment from Reza Ehyai, M.D. See AR at 1175-77. Dr. Ehyai then noted 21 Plaintiff’s reports of widespread pain by stating that she was experiencing “chronic widespread 22 ache[s] and pain[s] in the upper and lower extremities, neck and posterior shoulder muscles and 23 back pain.” Id. at 1175. More specifically, Plaintiff complained of spasms and tightness in the 24 muscles of her neck, her posterior shoulder muscles, and also in her thoracic paraspinal muscles; 25 additionally, Plaintiff also complained of constant pain in her lower back and her hips, as well as 26 numbness and a tingling sensation in both hands and both forearms. Id. Dr. Ehyai added that 27 Plaintiff “appears slightly tired and, perhaps, depressed.” Id. at 1176. He also found that the Tinel 1 sign3 was positive over both writs and that it was equivocal over the cutital tunnels (which are 2 located in the elbows). An examination of Plaintiff’s cervical spine showed “diffuse tenderness in 3 the upper and lower cervical paraspinal muscles with spasm” as well as “diffuse tenderness in the 4 posterior shoulder muscles on deep palpation.” Id. More specifically, Dr. Ehyai found that “the 5 medial border of the trapezius muscle and scapula are quite tender,” and also that “there is 6 tenderness over the sternal border of the pectoralis major.” Id. He also found that Plaintiff’s 7 “[c]ervical and lumbar erector spinae muscles are quite tender,” that there are “a few tender spots 8 in both thighs,” and that “[t]here is tenderness over the lateral portion of the elbows and [the] 9 medial aspect of the knee.” Id. at 1176-77. He also observed that the “[r]ange of motion of the 10 cervical spine is decreased in forward flexion and extension,” and that there is a “decreased range 11 of motion of the lumbar spine in all directions.” Id. As a result of these observations – which he 12 made in the course of his neurological examination – Dr. Ehyai diagnosed Plaintiff, inter alia, 13 with fibromyalgia, depression secondary to chronic pain, and chronic lower back pain. Id. at 1177. 14 Much like Dr. Sokoliv, Dr. Ehyai expressed the following conclusion: “[i]n my opinion, the 15 patient is permanently and totally disabled from any gainful occupation.” Id. 16 A few weeks later, on June 27, 2012, Plaintiff returned for further treatment with Dr. Ehyai 17 in relation to her fibromyalgia, her neck pain, her lower back pain, and the pain and paresthesia 18 (pins and needles sensation) in her arms and legs. Id. at 337. Dr. Ehyai did another physical 19 examination and noted that – as it relates to Plaintiff’s fibromyalgia – “[t]here are numerous 20 trigger points in the posterior shoulder muscles, lumbar paraspinal muscles, [and her] upper and 21 lower extremities.” Id. Several months later, Plaintiff returned for another follow up visit such that 22 Dr. Ehyai could treat her “multiple neurological problems.” Id. at 481-82. He noted that there was 23 still “diffuse tenderness over the upper and lower cervical paraspinal muscles and there are 24 25 3 The Hoffman-Tinel sign, now more commonly known as the Tinel sign, was defined in 1915 by Paul Hoffmann and Jules Tinel as the “pins and needle feeling” elicited by tapping on a nerve proximally, with 26 resulting paresthesia experienced in the corresponding distal cutaneous distribution of an injured peripheral nerve. The Tinel sign is now used commonly as an indication of peripheral nerve fiber compression or 27 regeneration. See generally Tung Ho; Matthew E. Braza, “Hoffmann Tinel Sign.” Available on the website of the National Library of Medicine: https://www.ncbi.nlm.nih.gov/books/NBK555934/ (last checked 1 multiple tender myofascial trigger points over the posterior shoulder muscles, [and in the] lumbar 2 and thoracic paraspinal muscles.” Id. He also found that the Tinel sign was still positive over both 3 wrists. Id. at 782. Once again, he diagnosed Plaintiff with fibromyalgia and carpal tunnel 4 syndrome in both wrists, and he stated for the second time that Plaintiff is “totally disabled.” Id. In 5 the course of a subsequent follow-up visit, on January 23, 2013, Dr. Ehyai once again observed 6 that Plaintiff’s fibromyalgia continued to manifest “diffuse tenderness over the cervical and 7 thoracic paraspinal muscles” as well as continuing to manifest “tenderness over the posterior 8 shoulder muscles.” Id. at 495-96. 9 Plaintiff’s Treating Psychiatrist 10 Between September of 2013 and April of 2014, Plaintiff underwent extensive 11 psychotherapy (bi-monthly sessions) with Heather Hall, M.D., for “[a] [c]hronic and persistent 12 level of depression with low energy, anhedonia, [and] insomnia.” See id. at 576; see also id. at 566 13 (diagnosed with recurrent major depressive affective disorder), 568 (increases in the 14 manifestations of Plaintiff’s depression and hopelessness), 570, 572 (Plaintiff “reports increased 15 depression, crying spells, chronic back and neck pain” as well as “having dreams that are related 16 to feelings of shame”), 574, 576 (Plaintiff’s depression is complicated by her low self-esteem and 17 anxiety related to certain childhood trauma), 578 (Plaintiff is “stuck in a life that is shameful to her 18 family and keeps her isolated . . . “she reveal[ed] that at least once a week for a year ([at] about 19 age 8 or 9) her father would [sexually abuse] her and [] her younger brother . . .”), 580 (Plaintiff’s 20 early childhood was also marked by another abusive relationship where “her mother [would] [be] 21 both physically abusive and neglectful including beatings with wire hangers, kicking, and 22 burning.”), 582 (adding a new diagnosis of psychosexual dysfunction and noting that Plaintiff “has 23 extreme difficulty in relationships and has chosen a profession [working as dominatrix] that others 24 would find degrading” and noting that Plaintiff “was unable to see that [that] choice is related to 25 the abuse she suffered [at] the hands of both parents [because of the] impression that her only 26 worth was [as] that of a sex object and [that] she identified with the [role of] the aggressor in 27 response to the physical abuse she received from her mother. She is just now getting in touch with 1 Based on this course of treatment, on July 25, 2014, Dr. Hall executed a medical source 2 statement through which she opined about the functional limitations associated with Plaintiff’s 3 psychiatric conditions. Id. at 588. Dr. Hall opined that Plaintiff’s ability to relate and interact with 4 supervisors and co-workers is extremely limited (in other words, it is attended with “almost 5 constant impact on work or [a] total limitation”) because of her anxiety, depression, and poor 6 social skills. Id. As to Plaintiff’s ability to withstand the stress and pressures associated with an 8- 7 hour workday and the rigors of day-to-day work, Dr. Hall opined that Plaintiff’s “anxiety and 8 depression exacerbate her chronic pain syndrome [and] make this impossible.” Id. As to the 9 duration of these conditions and limitations, Dr. Hall concluded that “[t]his is a chronic condition 10 that is unlikely to improve.” Id. 11 The Medical Expert Retained by the ALJ 12 This case has been attended with no fewer than four hearings before the ALJ: September 13 16, 2014 (id. at 35-90), May 25, 2017 (id. at 765-810), April 12, 2018 (id. at 723-65), and 14 November 6, 2018 (id. at 677-722). At the last hearing, the ALJ heard expert testimony from, 15 Joselyn E. Bailey, M.D., an internal medicine physician with fellowship training in nephrology. 16 See id. at 709-720; see also id. at 1343-45. Dr. Bailey’s testimony began with her noting that she 17 had reviewed Plaintiff’s medical records, which she considered to constitute sufficient information 18 upon which to base an opinion to a reasonable degree of medical certainty. Id. at 710-11. Upon 19 inquiry form the ALJ, Dr. Bailey listed Plaintiff’s medically determinable impairments as 20 including diabetes mellitus, depression, back pain, obesity, fibromyalgia, and thoracic kyphosis 21 (aka, dowagers’ hump). Id. at 11. 22 Thereafter, despite receiving an answer each time, the ALJ asked Dr. Bailey three separate 23 times whether or not “there’s objective physical findings, or any testing, or imaging that supports 24 the chronic pain, the fibromyalgia, or other physical complains by the Claimant.” See id. at 714- 25 15. Dr. Bailey repeatedly told the ALJ that Plaintiff’s neurologist and primary care physician (Drs. 26 Ehyai and Sokolov) had properly rendered that diagnosis based on their identification and 27 examination of Plaintiff’s tender points (also referred to as “trigger points”) while adding: “[t]hat’s 1 the previous [method of] diagnosis had to be 11 out of 18 trigger points [but] that definition [is] no 2 longer useful in describing this illness, because there are not really any other objective findings for 3 that diagnosis[,] [i]t’s just trigger points, at least that what it used to be, and it’s debilitating.” Id. at 4 715; see also id. at 714 (Dr. Bailey: “Oh, the objective evidence is the fact that she’s been seen by 5 a neurologist who has declared that she was permanently and totally disabled. That’s about as 6 objective as one can get.”); see also id. at 719-20 (Dr. Bailey: “Fibromyalgia is a certified disease 7 now. And if she has the trigger points, I mean – and it’s a disease that doesn’t have any other 8 manifestations. It doesn’t have any abnormal blood tests, not abnormal – no – nothing to go on 9 except the physical characteristics.”). When the ALJ asked Dr. Bailey whether or not Plaintiff’s 10 trigger points were documented in the record, Dr. Bailey quoted from Dr. Ehyai’s neurologic 11 evaluation and informed the ALJ that “[t]here are numerous trigger points in the posterior shoulder 12 muscles, lumbar paraspinal muscles, [and in the] upper and lower extremities.” Id. at 715. Dr. 13 Bailey then noted that, while there is no listing for fibromyalgia, the combination of Plaintiff’s 14 conditions equal the severity of the criteria found at Listing 14.06(b) (undifferentiated and mixed 15 connective tissue disease).4 Id. at 718. Dr. Bailey then added that the record supports the 16 conclusion that Plaintiff’s impairments combine to medically equal the requirements of Listing 17 14.06(b) as of September 30, 2010 – and, with that, the ALJ adjourned the hearing. Id. at 719-21. 18 Vocational Expert (“VE”) Testimony 19 At the third evidentiary hearing in this case (on April 12, 2018), the VE testified that if a 20 person were required to miss more than 1 day of work per month on a regular basis, that person 21 would be unemployable. Id. at 757. At the second evidentiary hearing (on May 25, 2017), the VE 22 testified that if a person was required to lie down and recline for as little as two hours during an 8- 23 hour workday, or if the person would be off-task for as little as 15% of the workday, that person 24 would be unable to secure any form of competitive employment. Id. at 807-08. Indeed, during the 25 26 4 The requirements of Listing 14.06(b) involve repeated manifestations of undifferentiated or mixed connective tissue disease, with at least two of the constitutional symptoms or signs (severe fatigue, fever, 27 malaise, or involuntary weight loss) and one of the following at the marked level: (1) Limitation of activities of daily living; (2) Limitation in maintaining social functioning; (3) Limitation in completing 1 first evidentiary hearing (on September 16, 2014) the VE had already testified that being off-task 2 as little as 15% of the workday is “generally work preclusive.” See id. at 89. 3 Opinions Rendered by Consultative Examiners 4 On January 3, 2011, Plaintiff was referred to Silvia Torrez, Psy.D., for a one-time 5 psychological consultative examination. See id. at 328-34. Observing that Plaintiff “gets easily 6 fatigued,” Dr. Torrez diagnosed her with depressive disorder while assessing her abilities to 7 function in the workplace as mostly “good,” with the exception that Plaintiff’s ability to complete 8 a normal workday without interruptions and her ability to deal with changes in the work setting 9 were described as “fair.” See id. at 333-34. Two years later, on May 25, 2013, Plaintiff was 10 referred to Deborah Lacy, Psy.D., for a second one-time psychological consultative examination. 11 See id. at 511-19. Diagnosing Plaintiff with dysthymic disorder and a personality disorder, Dr. 12 Lacy opined that in most areas of work-related function, Plaintiff was either unimpaired or only 13 mildly impaired with the exception that her ability to interact with others and her ability to deal 14 with usual workplace stress were “moderately impaired.” Id. at 517-18. Then, four years later, on 15 March 23, 2017, Plaintiff was referred to Alysia Liddell, Ph.D., for a third one-time psychological 16 consultative examination. See id. at 1311-16. Dr. Liddell diagnosed Plaintiff as suffering from two 17 conditions (in addition to fibromyalgia and diabetes): pain disorder and adjustment disorder with 18 depressed mood. Id. at 1315. She then opined that Plaintiff was unimpaired in all of the categories 19 of work-related functioning, except that she was “mildly impaired” in her ability to deal with 20 various changes in a work setting, “given her depression,” which (oddly) was not included in Dr. 21 Liddell’s list of diagnoses. Lastly, on March 25, 2017 (nearly three years after Plaintiff’s date last 22 insured) Plaintiff was referred to Dolores M. Leon, M.D., for a one-time consultative examination 23 by an internal medicine specialist. See id. at 1323-34. Dr. Leon observed that Plaintiff experienced 24 sharp pain in her lower back upon any effort to raise either leg. Id. at 1327. She diagnosed Plaintiff 25 with fibromyalgia with chronic fatigue, as well as uncontrolled diabetes with neuropathy, but 26 opined that Plaintiff could: stand, sit, or walk for up to six hours per day; that she could 27 occasionally lift, carry, push, or pull 20 pounds; that she could frequently push, pull, lift, or carry 1 handle, finger, feel, and reach (forwards and overhead) frequently. Id. at 1328. 2 Plaintiff’s Other Musculoskeletal and Rheumatic Conditions 3 In June of 2010, Plaintiff’s physical therapist noted that Plaintiff “presents with increased 4 thoracic kyphosis,” (id. at 457) a condition which was confirmed by Dr. Bailey upon her review of 5 Plaintiff’s records (id. at 711). As explained by Dr. Bailey, kyphosis is an excessive outward 6 curvature of the spine, causing a hunching of the back. See id. (“what that means is there is a 7 disorder of the curvature of the spine, and which creates problems, especially if someone becomes 8 overweight, or as one gets older.”). Additionally, in September of 2018, Plaintiff underwent MRI 9 imagining of her lumbar spine due to her clinical history of lower back pain and lower extremity 10 radiculopathy. Id. at 1347-48. Plaintiff’s interventional radiologist, David E. Goller, M.D., 11 reviewed the results and found central canal narrowing and broad-based disc protrusion in several 12 of Plaintiff’s thoracic and lumbar vertebrae. Id. at 1347. He found degenerative changes of varying 13 severity (ranging from mild to moderate) in Plaintiff’s lower thoracic and lumbar spine, in 14 addition to the neural foraminal narrowing in the vertebral bodies of her lower lumbar spine. Id. at 15 1348. 16 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY 17 A person filing a claim for social security disability benefits (“the claimant”) must show 18 that she has the “inability to do any substantial gainful activity by reason of any medically 19 determinable physical or mental impairment” which has lasted or is expected to last for twelve or 20 more months. See 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909.5 The ALJ must consider all evidence in 21 the claimant’s case record to determine disability (see id. § 416.920(a)(3)), and must use a five- 22 step sequential evaluation process to determine whether the claimant is disabled (id. § 416.920). 23 “[T]he ALJ has a special duty to fully and fairly develop the record and to assure that the 24 claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 25 Here, the ALJ set forth the applicable law under the required five-step sequential 26

27 5 The regulations for supplemental security income (Title XVI) and disability insurance benefits (Title II) 1 evaluation process. AR at 649-51. At Step One, the claimant bears the burden of showing she has 2 not been engaged in “substantial gainful activity” during the period between her alleged onset date 3 (September 30, 2010) and the date last insured (June 30, 2014). See 20 C.F.R. § 404.1571 et seq. 4 If the claimant has worked and the work is found to be substantial gainful activity, the claimant 5 will be found not disabled. See id. The ALJ found that Plaintiff had not engaged in substantial 6 gainful activity during this period. AR at 651. 7 At Step Two, the claimant bears the burden of showing that she has a medically severe 8 impairment or combination of impairments. See 20 C.F.R. § 404.1520(c); 416.920(a)(4)(ii), (c). 9 “An impairment is not severe if it is merely ‘a slight abnormality (or combination of slight 10 abnormalities) that has no more than a minimal effect on the ability to do basic work activities.’” 11 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting S.S.R. No. 96–3(p) (1996)). At Step 12 Two, the ALJ found that Plaintiff suffered from the following severe impairments: lumbar 13 degenerative disc disease, carpal tunnel syndrome, and fibromyalgia with chronic pain. Id. at 651. 14 At Step Three, the ALJ compares the claimant’s impairments to the impairments listed in 15 appendix 1 to subpart P of part 404. See 20 C.F.R. § 416.920(a)(4)(iii), (d). The claimant bears the 16 burden of showing her impairments meet or equal an impairment in the listing. Id. If the claimant 17 is successful, a disability is presumed and benefits are awarded. Id. If the claimant is unsuccessful, 18 the ALJ assesses the claimant’s residual functional capacity (“RFC”) and proceeds to Step Four. 19 See id. § 416.920(a)(4)(iv), (e). Here, the ALJ found that Plaintiff did not have an impairment or 20 combination of impairments that met or medically equaled the severity of any of the listed 21 impairments. AR at 652-53. Next, the ALJ determined that Plaintiff retained the RFC to perform 22 work at the light exertional level subject to the following limitations and exceptions: she can 23 frequently climb ramps and stairs; she can occasionally climb ladders, ropes, and scaffolds; she 24 can frequently stoop, kneel, crouch, and occasionally crawl; she can frequently handle, finger, and 25 feel with both hands; she must avoid moderate exposure to vibrations and concentrated exposure 26 to hazards; she is capable of non-public work; and, she can only occasionally work in the 27 proximity of the public, but with only superficial interactions. Id. at 653-66. 1 Plaintiff was unable to perform her past relevant work. Id. at 666. Lastly, at Step Five, the ALJ 2 concluded, based on the RFC, Plaintiff’s age, education, and the VE’s testimony, that there are 3 jobs that exist in significant numbers which Plaintiff could perform – namely, the ALJ found that 4 Plaintiff could work as an office helper, a photocopier, or a parking lot attendant. Id. at 667-68. 5 Thus, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Social 6 Security Act, between September 30, 2010 (the alleged onset date) and June 30, 2014 (the date last 7 insured). Id. at 668. 8 DISCUSSION 9 Nearly 10 years have passed since Plaintiff filed her Title II application on May 29, 2012. 10 During this period, the ALJ has written two opinions, retained several experts and even more 11 consultants (including 3 psychologists), and convened no less than four hearings. Upon review of 12 the record in this case, it is abundantly clear that Plaintiff is disabled. At the outset, the court will 13 note some generalities about fibromyalgia. This condition causes pain all over the body (also 14 referred to as widespread pain), sleep problems, fatigue, and emotional and mental distress – the 15 essence of this condition is that it causes those afflicted with it to experience greater sensitivity to 16 pain, which is sometimes referred to as abnormal pain perception processing.6 It is most 17 commonly attended with pain and stiffness all over the body as well as some combination of the 18 following ancillary symptoms: fatigue, depression and anxiety, sleep problems, certain cognitive 19 problems (such as issues with thinking, memory, or concentration), and headaches or migraines. 20 Id. Of the various complications associated with fibromyalgia, two should be noted here as they 21 are relevant to the specifics of Plaintiff’s case. First, it should be noted that “[a]dults with 22 fibromyalgia are more than 3 times more likely to have major depression than adults without 23 fibromyalgia,” and second, “[f]ibromyalgia often co-occurs with other types of arthritis such as 24 osteoarthritis, rheumatoid arthritis, systemic lupus erythematosus, and ankylosing spondylitis.” Id. 25 The court will note that ankylosing spondylitis is an inflammatory disease that, over time, can 26

27 6 See Centers for Disease Control and Prevention: Fibromyalgia. 1 cause some of the spinal vertebrae to fuse (thereby diminishing spinal flexibility), which results in 2 a forward hunched posture (called kyphosis).7 3 Fibromyalgia is a frequent subject of misunderstanding and mishandling by ALJs who 4 rely on their own disbelief of claimants’ complaints about pain as a basis to reject the opinions of 5 treating and examining professionals. See e.g., Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 6 2004) (“[T]he ALJ erred in discounting the opinions of Benecke’s treating physicians, relying on 7 his disbelief of Benecke’s symptom testimony as well as his misunderstanding of fibromyalgia.”); 8 see also Campbell v. Astrue, No. SA CV 07-864-PLA, 2008 U.S. Dist. LEXIS 87626, 2008 WL 9 4792672, at *10 (C.D. Cal. Oct. 29, 2008) (“[T]he ALJ’s finding that Dr. Tsay relied quite heavily 10 on the subjective report of symptoms and limitations . . . does not constitute a specific and 11 legitimate reason for discounting Dr. Tsay’s assessments . . . Dr. Tsay’s reliance on plaintiff’s 12 subjective complaints hardly contradicts her findings concerning plaintiff’s functional limitations, 13 as [a] patient’s report of complaints, or history, is an essential diagnostic tool. . . . This is 14 especially true where plaintiff was diagnosed with, inter alia, fibromyalgia, which is a diagnosis 15 that often lacks objective clinical findings.”) (internal quotation marks and citations omitted). As 16 described below, this is exactly what happened in this case as well. 17 At the fourth evidentiary hearing in this case, the ALJ repeatedly (no fewer than three 18 times) asked Dr. Bailey to point to “objective findings to support the diagnosis of fibromyalgia” in 19 this case. See AR at 714; see also id. at 715 (“I’m just wondering if there’s objective physical 20 findings, or any testing, or imaging that supports the chronic pain, the fibromyalgia, or the other 21 physical complaints by the Claimant?”). As mentioned above, Dr. Bailey repeatedly stated that 22 “[f]ibromyalgia is a certified disease now [] [a]nd if she has the trigger points, I mean - - and it’s a 23 disease that doesn’t have any other manifestations . . . [i]t doesn’t have any abnormal blood tests . 24 . . nothing to go on except the physical characteristics.” Id. at 719-20. 25 As is evident from the ALJ’s written opinion, the ALJ was never able to fully digest Dr. 26 27 7 See Mayo Clinic: Ankylosing Spondylitis. https://www.mayoclinic.org/diseases-conditions/ankylosing-spondylitis/symptoms-causes/syc-20354808 1 Bailey’s testimony in this regard (or the medical records and opinions from any of Plaintiff’s 2 treating physicians). See id. at 652-66. The ALJ rejected Dr. Bailey’s opinion: (1) because it 3 supposedly relied on Dr. Ehyai’s “conclusory” opinion about Plaintiff’s disability; (2) because Dr. 4 Bailey supposedly “admitted that she did not check the rest of the record to determine if the trigger 5 point findings continued throughout the [disability] period at issue”; and (3) that Dr. Bailey’s 6 opinions are generally not consistent with “the other opinions in the record.” Id. at 661. The ALJ 7 rejected Dr. Sokolov’s opinions because the ALJ found that “it appears that Dr. Sokolov relied 8 heavily on the claimant’s own subjective statements about her limitations rather than on objective 9 findings of physical disease.” Id. at 660. Next, the ALJ rejected the opinions Dr. Ehyai, Plaintiff’s 10 treating neurologist: (1) because Dr. Ehyai’s opinion that Plaintiff’s condition prohibits her from 11 being able to work at all “is not a medical opinion”; (2) because “Dr. Ehyai provided no specific 12 work limitations, explanation, or rationale to explain the opinion”8; (3) because Dr. Ehyai’s 13 opinions are supposedly inconsistent with certain treatment notes showing “symmetrical reflexes, 14 normal muscle strength and no radiular symptoms”9; and (4) because Dr. Ehyai’s opinions are 15

16 8 The ALJ’s reliance on what she perceived to be an ambiguity in the record for the rendering of a non- 17 disability finding constitutes an independent error. It is well established that because the underlying administrative proceedings before an ALJ are not adversarial, ALJs have a duty to develop the record in 18 such a manner as to allow for a full and fair disability determination; and, this “duty to fully and fairly develop the record” is meant to “assure that [a] claimant’s interests are considered.” Garcia v. Comm’r of 19 Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (citation omitted); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“In making a determination of disability, the ALJ must develop the 20 record and interpret the medical evidence.”). Indeed, an ALJ’s duty to develop the record “further” is triggered when there is “ambiguous evidence or when the record is inadequate to allow for proper 21 evaluation of the evidence.” See McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2010) (as amended May 19, 2011) (citation omitted); see also Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“Ambiguous 22 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.’” (citing Smolen v. Chater, 80 F.3d 23 1273, 1288 (9th Cir. 1996)). If the ALJ believed that Dr. Ehyai’s opinions could have benefited from further elaboration or explanation, her duty to develop a proper and fair record required her to contact Dr. 24 Ehyai and request that additional information such as to ensure that Plaintiff’s interests are considered. Here, the ALJ not only failed to discharge that duty, but she expressly relied on what she perceived to be an 25 ambiguity in the record as a foundation on which to base a non-disability finding. However, remand for further proceedings is unnecessary because (as discussed below) Plaintiff is clearly disabled and further 26 proceedings would be useless.

27 9 The ALJ’s opinion makes no effort to venture to explain what might constitute the supposed inconsistency between “symmetrical reflexes,” “normal muscle strength,” and the absence of “radicular symptoms,” and 1 supposedly inconsistent with the “longitudinal record documenting little treatment other than 2 medication during the relevant period.” See AR at 660. Lastly, the ALJ rejected the opinion of Dr. 3 Hall (Plaintiff’s treating psychiatrist) for a number of reasons. See id. at 664-65. First, the ALJ 4 stated that “this opinion [from July 25, 2014] was rendered after the end of the relevant period on 5 June 30, 2014. Id. at 664.10 Second, the ALJ premised the rejection of Dr. Hall’s opinion as to 6 Plaintiff’s work-related limitations – from a psychiatric perspective – on the odd notion that “the 7 opinion is inconsistent with Dr. Hall’s treatment notes showing few, if any, objective findings on 8 examinations other than some depressed and anxious moods.” Id. at 664. The court must take a 9 moment, before continuing, to note that this statement is quite glaringly incorrect; as recited 10 above, Dr. Hall’s opinion was based on extensive psychotherapy over a substantial amount of time 11 and through many sessions, after which she managed to sufficiently secure Plaintiff’s trust and 12 confidence in order to develop a clear picture of the abuse and privation that Plaintiff experienced 13 as a child – traumas which continue to dominate her psyche to this very day. See generally id. at 14 566-88. The ALJ simply and casually dismissed this history of trauma by noting that Dr. Hall’s 15 “[t]reatment notes mostly concerned the claimant’s ‘childhood maltreatment’ by her mother [and] 16 [t]here were few, if any, reports of current verbal or physical conflicts with others.” See id. at 665. 17

18 10 The court should first note that this temporal issue (a matter of four weeks) did not dissuade the ALJ 19 from giving “substantial weight” to the opinion of Dr. Leon (a consultative examining psychologist who examined Plaintiff nearly 3 years after the disability period in question and found that Plaintiff was not 20 seriously impaired in any domain of work-related function). See AR at 658-59. The court should also note that ample authority supports the relevance of an examination or opinion rendered after the relevant Title II 21 disability period in the absence of evidence that a claimant’s condition worsened during the gap between the end of the disability period and the date of the subsequent examination or opinion. See Tobeler v. 22 Colvin, 749 F.3d 830, 833 (9th Cir. 2014) (“Bandy’s statement that Tobeler was incapable of working in 2001 is relevant to his ability to work in 1999, at least in the absence of any evidence that Tobeler’s 23 condition worsened between 1999 and 2001.”); Kish v. Colvin, 552 Fed. Appx. 650, 651 (9th Cir. 2014) (“Evaluations conducted after the last insured date can still be relevant to assessing a claimant’s condition 24 during the appropriate period.”); Barnard v. Comm’r, 286 F. App’x 989, 994 (9th Cir. 2008) (“In fact, it is not uncommon that a physician’s examination completed two or more years after the insured status 25 expiration date is considered relevant.”); Wakefield v. Astrue, 267 F. App’x 682, 683 (9th Cir. 2008) (finding that the fact that a physician began treating the claimant after the claimant’s date last insured was 26 not a specific and legitimate reason for rejecting the physician’s opinion); McCartey v. Massanari, 298 F.3d 1072, 1077 n.7 (9th Cir. 2002) (holding that the Appeals Council erred in determining that medical 27 records after the date last insured were immaterial because they were probative of the fact that claimant was disabled before the date last insured); Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 1996) (“Medical 1 Lastly, the ALJ also premised her rejection of Dr. Hall’s opinion on the statement that “[t]he 2 opinion is inconsistent with other opinions in the record.” Id. 3 Based on the record as described above, Plaintiff submits that due to the ALJ’s improper 4 weighing of the evidence, this case satisfies the conditions of the credit-as-true doctrine because 5 the ALJ failed to provide legally sufficient reasons for rejecting this evidence; because, when 6 properly credited, the evidence would require the ALJ to find Plaintiff disabled on remand; 7 because there are no outstanding issues that need to be resolved before a disability determination 8 may be rendered; and, because a review of the record as a whole does not give rise to any serious 9 doubt that Plaintiff is, in fact, disabled. See Pl.’s Mot. (dkt. 22) at 21-33; see also Pl.’s Reply (dkt. 10 29) at 6. Defendant disagrees in all respects and submits that the ALJ committed no reversible 11 error whatsoever; however, Defendant adds that if the court finds reversible error, the proper 12 remedy is remand for further proceedings due to the notion that “[n]umerous inconsistencies and 13 factual issues raise serious doubt about whether Plaintiff is disabled and illustrate why further 14 proceedings would be necessary . . .” See Def.’s Mot. (dkt. 26) at 18-38. 15 The ALJ committed no shortage of errors in the handling of this case. Initially, the court 16 must note that the ALJ omitted any analysis of Plaintiff’s depression at Step Two. See AR at 651- 17 52. As mentioned, Step two is “a de minimus screening device [used] to dispose of groundless 18 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Therefore, “applying our normal 19 standard of review to the requirements of step two, [the Court] must determine whether the ALJ 20 had substantial evidence to find that the medical evidence clearly established that [Plaintiff] did 21 not have a medically severe [depression] impairment.” Webb v. Barnhart, 433 F.3d 683, 687 (9th 22 Cir. 2005). Nevertheless, even overlooking the ALJ’s errors at Step Two and in developing the 23 record (see supra n.8), a review of the ALJ’s opinion in light of the evidentiary record in this case 24 (as summarized above) reveals that the ALJ’s non-disability finding is due to be reversed because 25 it was based on an improper weighing of the evidence where the ALJ erroneously rejected the 26 extremely well-supported findings and opinions of Plaintiff’s primary care physician (Dr. 27 Sokolov), her treating neurologist (Dr. Ehyai), her treating psychiatrist (Dr. Hall), and the ALJ’s 1 agency consultants, and several one-time examiners. See AR at 653-66. Even in combination, the 2 unsupported opinions adopted by the ALJ do not approach the quantum necessary to be 3 considered substantial evidence – at least not when viewed through the lens of the overwhelming 4 body of evidence supporting the opinions of Drs. Bailey, Sokolov, Ehyai, and Hall. 5 In rejecting Dr. Hall’s work-preclusive opinions related to the symptoms and effects of 6 Plaintiff’s major depressive disorder and anxiety, the ALJ offered nearly nothing by way of a 7 plausible explanation. See id. at 664-65. The ALJ faulted Dr. Hall for relying on Plaintiff’s 8 “subjective statements,” rather than on “objective findings on examinations other than some 9 depressed and anxious moods.” See id. at 664. The ALJ also premised the rejection of Dr. Hall’s 10 opinion on the notion that the opinion was “inconsistent” with Plaintiff’s ability to “drive a car,” 11 “shop for food,” “have a boyfriend,” “read,” and “follow television programs and movies without 12 significant difficulty.” Id. at 665. This approach is grossly misguided because no amount of 13 “objective physical examination findings” would reveal the hallmarks or limiting effects of 14 emotional disorders such as depression and anxiety. Indeed, this error in reasoning occurs so 15 frequently that it has led to a wealth of case authority repeatedly lambasting the flaws in SSA’s 16 penchant for dismissing the opinions of treating psychiatrists and psychologists regarding the 17 effects of mental illnesses because those opinions relied in some part on self-reports. In short, it is 18 now axiomatic that mental health evaluations “will always depend in part on the patient’s self- 19 report” because “‘unlike a broken arm, a mind cannot be x-rayed.’” Buck v. Berryhill, 869 F.3d 20 1040, 1049 (9th Cir. 2017) (quoting Poulin v. Bowen, 817 F.2d 865, 873 (D.C. Cir. 1987)). 21 Accordingly, “the rule allowing an ALJ to reject opinions based on self-reports [about physical 22 impairments] does not apply in the same manner to opinions regarding mental illness.” Buck, 869 23 F.3d at 1049. Moreover, an ALJ may not reject a medical source opinion simply because it is 24 based on the claimant’s self-reports when the medical source analyzes those self-reports using 25 objective measures such as a clinical interview and mental status examinations. Id. As for the 26 ALJ’s effort at drawing an equivalence between certain activities of daily life such as watching the 27 television, shopping for food, and reading – these concerns can be fairly rephrased as such: “if you 1 attempt at drawing such equivalences between daily living activities and work-related activities, 2 the ALJ would have needed to explain how activities such as shopping for food, or having a 3 boyfriend can be said to be “transferable to a work setting” or how they might “contradict claims 4 of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). 5 Here, at Step Five, the ALJ found that Plaintiff could work as an office helper, a photocopier, or a 6 parking lot attendant and the court sees no transferability between these job functions and 7 Plaintiff’s residual ability to read, have a boyfriend, shop for food, or follow television programs 8 without significant difficulty. 9 In rejecting the opinions of Drs. Sokolov and Ehyai, the ALJ similarly relied on her own 10 failure to develop the record (regarding Dr. Ehyai’s opinion) as well as on the notion that 11 Plaintiff’s fibromyalgia diagnosis “relied heavily on the claimant’s own subjective statements 12 about her limitations rather than on objective findings of physical disease” (see AR at 660), 13 because Dr. Ehyai’s opinion that Plaintiff’s condition prohibits her from being able to work at all 14 “is not a medical opinion” (see id.), and because Dr. Ehyai’s opinions are supposedly inconsistent 15 with certain treatment notes showing “symmetrical reflexes, normal muscle strength and no 16 radiular symptoms (id). Also, the ALJ rejected Dr. Bailey’s confirming opinion because “[w]hen 17 asked what evidence she used to support her opinion, she cited [to medical records from Drs. 18 Sokolov and Ehyai] and [also to] Dr. Ehyai’s conclusory statement of disability.” Id. at 661. The 19 ALJ also premised the rejection of Dr. Bailey’s opinion on the following notion: “[w]hen asked to 20 identify the specific medical findings that support the diagnosis of fibromyalgia, [Dr. Bailey] 21 stated the only physical finding was positive trigger points and cited merely to [Dr. Ehyai’s 22 November 25, 2011, identification of “[m]ultiple trigger points of tenderness thru (sic) [her] body” 23 (see id. at 376)] [but] [s]he admitted that she did not check the rest of the record to determine if the 24 trigger point findings continued throughout the period at issue.” Id. at 661. As to the trigger points 25 (which, as discussed below, reflect the outdated and now-abandoned method for diagnosing 26 fibromyalgia) the court will note two things: first, Dr. Ehyai did describe his findings and 27 observations about Plaintiff’s trigger points (sometimes called “tender points”) during almost 1 at 337-40, 343, 481, 480, 495, 499); and second, Dr. Ehyai was not the only physician to identify 2 and evaluate Plaintiff’s trigger points. Dr. Sokolov (or staff in his office) also found the existence 3 of “multiple trigger points” with great regularity throughout 2011 (see id. at 407-409 (February 4 11, 2011); see also id. at 391-92 (June 9, 2011); see also id. at 375-76 (November 25, 2011)) and 5 again in the first half of 2012 (see id. at 591 (June 11, 2012)). In other words, there is no doubt 6 that Plaintiff was found to experience pain in trigger points all over her body, throughout the 7 relevant period. 8 In any event, that discussion is rendered academic by more recent developments in the 9 understanding of fibromyalgia which have caused a significant shift in how the disease is 10 diagnosed – rendering trigger points less determinative of the diagnosis than what has been the 11 case in previous years. As mentioned above, fibromyalgia “appears to be linked to changes in how 12 the brain and spinal cord process pain signals . . . [and] [d]iagnostic guidelines from the American 13 College of Rheumatology now include widespread pain throughout your body for at least three 14 months . . . defined as pain on both sides of your body, as well as above and below your waist.”11 15 Thus, until fairly recently, Fibromyalgia would often be characterized by additional pain when 16 firm pressure is applied to specific areas of your body, called tender points or trigger points. Id. 17 “In the past, at least 11 of these 18 spots had to test positive for tenderness to diagnose 18 fibromyalgia.” Id. Because fibromyalgia symptoms can come and go, a person might have 11 19 tender points one day but only ten or eight tender points on another day – and because “many 20 doctors were uncertain about how much pressure to apply during a tender point exam,” (while 21 specialists or researchers may still use tender points) “they are no longer required for your family 22 doctor to make a diagnosis of fibromyalgia.” Id. Accordingly, the ALJ (a) was unfamiliar with the 23 record in this case which clearly demonstrated the existence of numerous trigger points throughout 24 Plaintiff’s body on a multitude of occasions from 2011 through early 2013, and (b) failed to accept 25 Dr. Bailey’s attempt at describing the new diagnostic standard of “widespread pain” in lieu of 26 27 11 See Mayo Clinic – Fibromyalgia: Understand How It’s Diagnosed https://www.mayoclinic.org/diseases-conditions/fibromyalgia/in-depth/fibromyalgia-symptoms/art- 1 “tender points.” Further, it cannot be reasonably contended that the record did not clearly manifest 2 Plaintiff’s affliction with widespread fibromyalgia pain throughout the entire disability period. 3 Medical opinions are “distinguished by three types of physicians: (1) those who treat the 4 claimant (treating physicians); (2) those who examine but do not treat the claimant (examining 5 physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).” 6 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The medical opinion of a claimant’s treating 7 provider is given “controlling weight” so long as it “is well-supported by medically acceptable 8 clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial 9 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); see also Revels v. Berryhill, 10 874 F.3d 648, 654 (9th Cir. 2017). In cases where a treating doctor’s opinion is not controlling, the 11 opinion is weighted according to factors such as the nature and extent of the treatment 12 relationship, as well as the consistency of the opinion with the record. 20 C.F.R. § 404.1527(c)(2)- 13 (6); Revels, 874 F.3d at 654. As to areas of specialization, greater weight is generally accorded to 14 the opinion of a specialist than to the opinion of a non-specialist. See Orn v. Astrue, 495 F.3d 625, 15 631 (9th Cir. 2007) (“Additional factors relevant to evaluating any medical opinion . . . include . . . 16 the specialty of the physician providing the opinion.”); see also Reed v. Massanari, 270 F.3d 838, 17 845 (9th Cir. 2001). 18 “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must 19 state clear and convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r of 20 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (alteration in original) (quoting Bayliss v. Barnhart, 21 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a treating or examining doctor’s opinion is contradicted 22 by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 23 reasons that are supported by substantial evidence.” Id. (quoting Bayliss, 427 F.3d at 1216); see 24 also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for rejecting a treating 25 doctor’s credible opinion on disability are comparable to those required for rejecting a treating 26 doctor’s medical opinion.”). “The ALJ can meet this burden by setting out a detailed and thorough 27 summary of the facts and conflicting clinical evidence, stating his [or her] interpretation thereof, 1 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). Further, “[t]he opinion of a nonexamining physician 2 cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either 3 an examining physician or a treating physician.” Lester, 81 F.3d at 831; see also Revels, 874 F.3d 4 at 654-55; Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. Comm’r, 5 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 6 1993). In situations where a Plaintiff’s condition progressively deteriorates, the most recent 7 medical report is the most probative. See Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986). 8 Assuming that all of the opinions of Dr. Bailey and Plaintiff’s treating physicians were 9 “contradicted,” the court finds that the ALJ failed to express anything remotely resembling 10 specific or legitimate reasons for rejecting those opinions (let alone specific and legitimate reasons 11 that are based on substantial evidence). Indeed, the court finds that the only body of “substantial 12 evidence” in the record supports the opinions of Drs. Bailey, Sokolov, Ehyai, and Hall. Given that 13 the definition of “substantial evidence” is “such relevant evidence as a reasonable mind might 14 accept as adequate to support a conclusion.” (see Biestek, 139 S. Ct. at 1154), the court concludes 15 that the entirety of the ALJ’s decision, at least from Step Three forward, is completely divorced 16 from the body of substantial evidence in the record before this court. Thus, because the ALJ 17 improperly rejected the opinions of Drs. Bailey, Sokolov, Ehyai, and Hall, those opinions will now 18 be credited as true as a matter of law. See Lester, 81 F.3d at 834 (“[w]here the Commissioner fails 19 to provide adequate reasons for rejecting the opinion of a treating or examining physician, we 20 credit that opinion as a matter of law.”); see also Benecke, 379 F.3d at 594 (“Because the ALJ 21 failed to provide legally sufficient reasons for rejecting Benecke’s testimony and her treating 22 physicians’ opinions, we credit the evidence as true.”). 23 Nature of Remand 24 The decision whether to remand for further proceedings or for payment of benefits 25 generally turns on the likely utility of further proceedings. Carmickle v. Comm’r, SSA, 533 F.3d 26 1155, 1169 (9th Cir. 2008). A district court may “direct an award of benefits where the record has 27 been fully developed and where further administrative proceedings would serve no useful 1 three-part test “for determining when evidence should be credited and an immediate award of 2 benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Remand for an 3 immediate award of benefits is appropriate when: (1) the ALJ has failed to provide legally 4 sufficient reasons for rejecting such evidence; (2) there are no outstanding issues that must be 5 resolved before a determination of disability can be made; and, (3) it is clear from the record that 6 the ALJ would be required to find the claimant disabled were such evidence credited. Id. The 7 second and third prongs of the test often merge into a single question; that is, whether the ALJ 8 would have to award benefits if the case were remanded for further proceedings. Id. at 1178 n.2; 9 see also Garrison v. Colvin, 759 F.3d 995, 1021-23 (9th Cir. 2014) (when all three conditions of 10 the credit-as-true rule are satisfied, and a careful review of the record discloses no reason to 11 seriously doubt that a claimant is, in fact, disabled, a remand for a calculation and award of 12 benefits is required). 13 Initially, the court will note that in light of the above-discussed and improperly discredited 14 medical opinion evidence, two things are clear: first, it is clear that Plaintiff has in fact been 15 disabled since her alleged onset date, and second, it is clear that further administrative proceedings 16 would be useless because no further record development is necessary as the ALJ would be 17 required to find Plaintiff disabled on remand based on the evidence and opinions that have been 18 herein credited as true. This is true even if one were to put aside Dr. Bailey’s opinion that 19 Plaintiff’s degenerative disc disease, fibromyalgia, kyphosis, depression, anxiety, carpal tunnel 20 syndrome, and obesity combine to (at least) equal the severity of the criteria found at 20 C.F.R., 21 Part 404, Subpt. P, Appx. 1, § 14.06(b). It does appear to the undersigned that the combination of 22 Plaintiff’s conditions would indeed equal the severity of the conditions and limitations outlined in 23 Listing 14.06(b) in that Plaintiff’s conditions equate the severity of “[r]epeated manifestations of [] 24 mixed connective tissue disease with at least two of the constitutional symptoms or signs (severe 25 fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level: 26 (1) limitation of activities of daily living; (2) limitation in maintaining social functioning; (3) 27 limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, 1 go well beyond the minimum that would be necessary to establish medical equivalency of the 2 severity of the requirements of Listing 14.06(b). 3 Furthermore, it cannot be reasonably disputed that the evidence that has been herein 4 credited as true would necessitate a disability finding during the formulation of the RFC as it is 5 clear that Plaintiff retains no residual functioning capacity to perform in the workplace at all. All 6 three of his treating physicians unequivocally opined to that effect. Based on his extensive 7 treatment relationship with Plaintiff, Dr. Sokolov concluded that (since October of 2010) 8 Plaintiff’s medical problems have combined to preclude her from being able to perform any full- 9 time work at any exertional level including the sedentary level. See AR at 590-91. Plaintiff’s 10 treating neurologist, Dr. Ehyai, concurred and opined (on more than one occasion) that Plaintiff is 11 “permanently and totally disabled from any gainful occupation.” See id. at 782, 1177. Plaintiff’s 12 treating psychiatrist, Dr. Hall, opined that Plaintiff’s ability to relate and interact with supervisors 13 and co-workers is extremely limited (which means that it is attended with “almost constant impact 14 on work or [a] total limitation”) because of her anxiety, depression, and poor social skills. See id. 15 at 588. More importantly, regarding Plaintiff’s ability to withstand the stress and pressures 16 associate with an 8-hour workday and her ability to withstand the rigors of day-to-day work, Dr. 17 Hall concluded that Plaintiff’s “anxiety and depression exacerbate her chronic pain syndrome 18 [and] make this impossible.” Id. As to the duration of these conditions and limitations, Dr. Hall 19 found that “[t]his is a chronic condition that is unlikely to improve.” Id. Crediting all of these 20 opinions as true means Plaintiff has no residual capacity to function in the workplace at all. 21 And, lastly, it is equally clear that on remand, the ALJ would be required to find Plaintiff 22 disabled based on the testimony of the VE. As mentioned above, the VE testified that missing 23 more than 1 workday per month on a regular basis (see AR at 757) or needing to lie down and 24 recline for as little as two hours during an 8-hour workday, or being off-task for as little as 15% of 25 the workday (id. at 89, 807-08), would render someone unable to secure any form of competitive 26 employment. Plaintiff’s depression alone – as explained by Dr. Hall – would satisfy these criteria, 27 let alone in combination with her fibromyalgia, degenerative disc disease, and other conditions. 1 met, it is generally only in “rare instances” where a review of the record as a whole gives rise to a 2 || “serious doubt as to whether the claimant is actually disabled.” Revels, 874 F.3d at 668 n.8 (citing 3 Garrison, 759 F.3d at 1021). This is not one of those “rare instances,” as the record leaves no 4 room to doubt that Plaintiff has in fact been disabled, at least since her alleged onset date, if not 5 || earlier. Needlessly remanding a disability claim for further unnecessary proceedings would only 6 || delay much needed income for claimants such as Plaintiff who are unable to work and who are 7 entitled to benefits; doing so would in turn subject them to “tremendous financial difficulties while 8 awaiting the outcome of their appeals and proceedings on remand.” Varney v. Sec’y of Health & 9 Human Servs., 859 F.2d 1396, 1398 (9th Cir. 1988). The court finds that the ALJ’s unsupported 10 || conclusions in this case were thoroughly negated by the overwhelming weight of the record 11 evidence which conclusively and convincingly established Plaintiff's disability such that no 12 || further inquiry is necessary. 13 CONCLUSION 14 Accordingly, for the reasons stated above, Plaintiff's Motion for Summary Judgment (dkt. 3 15 22) is GRANTED, and Defendant’s Cross-Motion (dkt. 26) is DENIED. The ALJ’s finding of 16 non-disability is REVERSED, and the case is REMANDED for the immediate calculation and 5 17 award of appropriate benefits consistent with the findings and holdings expressed herein. 1g IT IS SO ORDERED. 19 Dated: March 9, 2022 20 Ml Z 21 7 ROBERT M. ILLMAN United States Magistrate Judge 23 24 25 26 27 28