Logan Hummel v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 7, 2023
• Docket: 22-36016
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LOGAN L. HUMMEL, No. 22-36016

Plaintiff-Appellant, D.C. No. 6:21-cv-01383-JR

v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Jolie A. Russo, Magistrate Judge, Presiding

Argued and Submitted October 20, 2023 Portland, Oregon

Before: GILMAN,** KOH, and SUNG, Circuit Judges.

Logan Hummel appeals from the district court’s decision affirming the

Commissioner of Social Security’s denial of his application for disability-insurance

benefits and supplemental security income. “We review the district court’s order

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. affirming the ALJ’s denial of social security benefits de novo, and will disturb the

denial of benefits only if the decision contains legal error or is not supported by

substantial evidence.” Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir. 2020)

(cleaned up).

The parties are familiar with the facts, so we recount them only as necessary

to resolve the arguments on appeal. Having jurisdiction under 28 U.S.C. § 1291,

we reverse and remand for further proceedings.

1. Hummel was diagnosed with fibromyalgia and various other health

conditions, and the ALJ recognized that Hummel’s medical impairments “could

reasonably be expected to cause the alleged symptoms[.]” This court has

repeatedly held that ALJs may not rely on “normal” medical results to discount

subjective-symptom testimony in fibromyalgia cases because “examinations that

had mostly normal results” and “medical records showing that . . . [the claimant]

exhibited normal muscle strength, tone, and stability, as well as a normal range of

motion” are “perfectly consistent with debilitating fibromyalgia.” Revels

v. Berryhill, 874 F.3d 648, 666 (9th Cir. 2017) (emphasis added); see also Estrada

v. Saul, 842 F. App’x 154, 155 (9th Cir. 2021) (mem.); Truong v. Berryhill, 774

F. App’x 381, 383 (9th Cir. 2019) (mem.); Hamilton-Carneal v. Colvin, 670

F. App’x 613, 614 (9th Cir. 2016) (mem.). The ALJ therefore erred in concluding

that Hummel’s statements “concerning the intensity, persistence, and limiting

2 effects of” his fibromyalgia were “not entirely consistent” with a handful of

medical examinations indicating normal results. Moreover, the ALJ ignored

certain parts of the record that supported Hummel’s testimony, including medical

examinations from January to March of 2021 finding musculoskeletal tenderness.

2. The ALJ similarly erred in rejecting Hummel’s testimony as inconsistent

with his allegedly “conservative” treatment. Hummel’s course of treatment is not a

valid basis to discount his testimony because, as the district court correctly noted,

“fibromyalgia is routinely treated only with conservative means[.]” Logan H. v.

Kijakazi, No. 21-cv-01383-JR, 2022 WL 6980833, at *4 (D. Or. Oct. 12, 2022);

see also Revels, 874 F.3d at 667 (holding that the ALJ “erred in rejecting [the

claimant]’s testimony on account of the supposedly ‘conservative’ treatment she

received” when the ALJ “provided no explanation why he deemed this treatment

‘conservative’ for fibromyalgia”).

3. Nor does substantial evidence support the ALJ’s conclusion that

Hummel’s testimony was inconsistent with his reported activities. This court has

“repeatedly warned that ALJs must be especially cautious in concluding that daily

activities are inconsistent with testimony about pain[.]” Garrison v. Colvin, 759

F.3d 995, 1016 (9th Cir. 2014) (collecting cases); see also Trevizo v. Berryhill, 871

F.3d 664, 676, 682 (9th Cir. 2017) (holding that when an ALJ neither “develop[s] a

record regarding the extent to which and the frequency with which” a claimant

3 performed certain life activities nor “inquire[s] into whether [the claimant

performed those activities] alone or with the assistance of [others],” the “mere fact

that [a claimant engaged in those activities] does not constitute an adequately

specific conflict with her reported limitations”).

In this case, the ALJ referenced Hummel performing household chores,

practicing yoga, “spend[ing] time YouTubing,” and coaching his children’s sports

teams. But the record indicates that (1) most chores were delegated to Hummel’s

family members, (2) one of Hummel’s medical providers instructed him to practice

yoga to help manage his pain, and (3) even if “spending time YouTubing” were

inconsistent with Hummel’s claimed limitations, Hummel was not in fact doing

any YouTubing.

As for Hummel having coached his children’s sports teams at some point in

the past, nothing in the record indicates that he did any coaching after February

2020. Nor is there any evidence about what the coaching entailed or how often

Hummel coached between June 2019 (his amended disability date) and February

2020. The ALJ did not develop the record about coaching at the April 2021

hearing beyond asking a single question about Hummel having more energy and

wanting to coach, and Hummel explaining in response that he was not coaching at

that time. Considering that “[t]he vast majority of the ALJ’s bases for rejecting

[Hummel]’s testimony were legally or factually erroneous[,]” we cannot say that

4 the limited information about coaching can by itself “constitute substantial

evidence supporting a finding that [Hummel]’s symptoms were not as severe as

[he] testified[.]” See Trevizo, 871 F.3d at 682.

4. The ALJ also rejected the medical opinion of Hummel’s treating

nurse-practitioner as “inconsistent with examinations” showing normal results.

Similarly, the ALJ concluded that the written statement submitted by Hummel’s

wife was “neither inherently valuable nor persuasive when compared to the

objective medical evidence.” This reasoning is identical to one of the ALJ’s bases

for rejecting Hummel’s own testimony, and it is therefore similarly erroneous for

the reasons discussed above. See Revels, 874 F.3d at 666; see also Truong v.

Berryhill, 774 F. App’x 381, 383 (9th Cir. 2019) (holding that the ALJ erred when

he “relied extensively upon [the fibromyalgia patient]’s normal test results to

discount her physicians’ opinions and her and her daughter’s testimony”).

For all of the above reasons, we reverse the judgment of the district court

with instructions to remand to the ALJ for reconsideration consistent with this

Memorandum.

REVERSED and REMANDED.