Ochsner v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: December 16, 2021
• Docket: 2:20-cv-01683
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 No. CV-20-01683-PHX-JJT Trisha Ochsner, 10 ORDER Plaintiff, 11 v. 12 Commissioner of Social Security 13 Administration,

14 Defendant. 15 16 Plaintiff Trisha Ochsner challenges the denial of her Application for Supplemental 17 Security Income under the Social Security Act (“the Act”) by Defendant, the 18 Commissioner of the Social Security Administration (“Commissioner” or “Defendant”). 19 Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review of that denial, 20 and the Court now addresses Plaintiff’s Opening Brief (Doc. 21, Pl. Br.), Defendant’s 21 Response Brief (Doc. 22, Def. Br.), and Plaintiff’s Reply. (Doc. 23, Reply.) The Court has 22 reviewed the briefs and Administrative Record. (Doc. 20, AR.) The Court reverses the 23 Administrative Law Judge’s (“ALJ”) decision and remands for further proceedings 24 consistent with this opinion. 25 I. BACKGROUND 26 Plaintiff filed an application for Supplemental Security Income on November 15, 27 2016, for a period of disability benefits beginning on May 1, 2007, her alleged onset date. 28 (AR. 177-82.) After a hearing on August 13, 2019 (AR. at 40-65), ALJ Matthew C. Dawson 1 issued a written decision denying Plaintiff’s claim on September 5, 2019. (AR. at 18-36.) 2 The Social Security Appeals Council upheld the ALJ’s denial in a letter dated June 23, 3 2020 (AR. at 1-5), and Plaintiff sought judicial review on August 27, 2020. (Doc. 1.) 4 The Court has reviewed the medical evidence in its entirety. The pertinent medical 5 evidence will be discussed in addressing the issues raised by the parties. The ALJ evaluated 6 Plaintiff’s disability based on the following severe impairments: headaches, cervical 7 degenerative disc disease, lumbar scoliosis and spurring, and osteoarthritis of the hand. 8 (AR. at 21.) The ALJ concluded several other impairments, including temporomandibular 9 joint (“TMJ”) dysfunction, a visual impairment, anxiety disorder, and depressive disorder 10 were non-severe. (AR at 21-24.) The ALJ found several more impairments—epilepsy, 11 fibromyalgia, and West Nile Virus or West Nile Meningitis—were not “medically 12 determinable impairments due to a lack of objective evidence.” (AR. at 23.) The ALJ found 13 Plaintiff limited to “medium work,” as defined in federal regulations, with additional 14 limitations to frequent handling, fingering, feeling, balancing, stooping, kneeling, 15 crouching, and climbing ramps or stairs; occasional crawling; never climbing ladders, 16 ropes, or scaffolds; and no exposure to unprotected heights or moving mechanical parts. 17 (AR. at 26.) Based on the vocational expert’s testimony, the ALJ concluded Plaintiff could 18 perform several unskilled jobs. (AR. at 30.) 19 II. LEGAL STANDARD 20 In determining whether to reverse an ALJ’s decision, the district court reviews only 21 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 22 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 23 determination only if the determination is not supported by substantial evidence or is based 24 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 25 relevant evidence that a reasonable person might accept as adequate to support a conclusion 26 considering the record as a whole. Id. Generally, “[w]here the evidence is susceptible to 27 more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 28 1 conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) 2 (citations omitted). 3 To determine whether a claimant is disabled for purposes of the Act, the ALJ 4 follows a five-step process. 20 C.F.R. § 416.920(a)(4). The claimant bears the burden of 5 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 6 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 7 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 8 § 416.920(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 9 medically determinable physical or mental impairment. 20 C.F.R. § 416.920(a)(4)(ii). At 10 step three, the ALJ considers whether the claimant’s impairment or combination of 11 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 12 of 20 C.F.R. Part 404. 20 C.F.R. § 406.920(a)(4)(iii). If so, the claimant is disabled. Id. If 13 not, the analysis proceeds to step four, where the ALJ assesses the claimant’s residual 14 functional capacity (“RFC”) and determines whether the claimant is still capable of 15 performing past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). If the claimant can perform 16 her past relevant work, she is not disabled. Id. If she cannot, the analysis proceeds to the 17 fifth and final step, where the ALJ determines if the claimant can perform any other work 18 in the national economy based on her RFC, age, education, and work experience. 20 C.F.R. 19 § 416.920(a)(4)(v). If she cannot, the claimant is disabled. Id. 20 III. ANALYSIS 21 Plaintiff presents two issues for the Court’s consideration: (1) “The ALJ’s RFC 22 determination is not supported by substantial evidence because he rejected the opinion of 23 Dr. Bugola and Dr. Coleman”; and (2) “The ALJ’s Step 2 determination is not supported 24 by substantial evidence because he failed to evaluate fibromyalgia pursuant to [Social 25 Security Ruling] 12-2p.”1 26 27 1 To the extent Plaintiff is arguing in her Reply that the ALJ failed to cite clear, convincing reasons for rejecting Plaintiff’s symptom testimony, the issue is waived 28 because Plaintiff did not address it in her Opening Brief. See Bray v. Comm’r of Soc, Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009.) 1 A. The ALJ did not err by rejecting the opinions of Drs. Bugola and 2 Coleman. 3 Plaintiff argues the ALJ erred by rejecting the opinions of Drs. Bugola and Coleman 4 and, instead, inventing an RFC that has no basis in the record. (Pl. Br. at 9, stating “It is 5 important to note that there is no medical opinion finding Plaintiff to have a medium 6 RFC.”) Because Plaintiff’s first issue necessarily involves an analysis of the ALJ’s stated 7 reasons for rejecting these opinions, the Court addresses each opinion cited by Plaintiff, in 8 turn. 9 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 10 among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 11 2008).2 Those who have treated a claimant are treating physicians, those who examined but 12 did not treat the claimant are examining physicians, and those who neither examined nor 13 treated the claimant are nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th 14 Cir. 1995). An ALJ “may only reject a treating or examining physician’s uncontradicted 15 medical opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. 16 Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citations omitted). “Where such an opinion is 17 contradicted, however, it may be rejected for ‘specific and legitimate reasons that are 18 supported by substantial evidence in the record.’” Id. (citations omitted). “The 19 Commissioner may reject the opinion of a non-examining physician by reference to 20 specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 21 1998) (internal citations omitted); Buck v. Comm’r of Soc. Sec. Admin., 2021 WL 3508639, 22 at *4 (D. Ariz. Aug. 10, 2021) (citing Sousa). 23 Importantly, it is the province of the ALJ to resolve conflicts and ambiguities in the 24 record, and to “interpret[] terms and phrases used by physicians in their opinions.” Frigon 25 v. Acting Comm’r of Soc. Sec. Admin., 2019 WL 2912498, at *4 (D. Ariz. July 8, 2019) 26 27 2 The Court recognizes Plaintiff filed this Title XVI claim in November 2016, well before the effective date of new regulations pertaining to the evaluation of opinion 28 evidence. 20 C.F.R. § 416.920c. As such, the previous regulatory scheme delineated in 20 C.F.R. § 416.927 applies. 1 (citing Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995)); see Bayliss v. Barnhart, 427 2 F.3d 1211, 1217 (9th Cir. 2005) (“The hypothetical that the ALJ posed to the VE contained 3 all of the limitations that the ALJ found credible and supported by substantial evidence in 4 the record.”). Consequently, the ALJ need not adopt, verbatim, the specific work 5 restrictions or limitations any physician or medical provider assigns, only those supported 6 by substantial evidence. Id.; Magallanes v. Bowen, 881 F.2d 747, 756 -57 (9th Cir. 1989) 7 (“The limitation of evidence in a hypothetical question is objectionable only if the assumed 8 facts could not be supported by the record.”) (internal quotations and citations omitted). 9 1. The non-examining physician, Dr. Alan Coleman. 10 On September 10, 2017, consulting internist, Dr. Alan Coleman, reviewed 11 Plaintiff’s medical file at the behest of the state’s Disability Determination Services. (AR. 12 at 86-99.) He opined Plaintiff was physically limited to the following restrictions and 13 limitations: occasional lifting and/or carrying weights up to 20 pounds; frequent lifting 14 and/or carrying weights up to 10 pounds; standing, walking, and sitting with normal breaks 15 for a period of “[a]bout 6 hours in an 8-hour workday”; pushing and pulling objects within 16 the above-mentioned weight restrictions; frequent climbing of ramps or stairs, balancing, 17 stooping, kneeling, and crouching; occasional crawling; and never climbing ladders, ropes, 18 or scaffolds. (AR. at 98-99.) At the hearing, the vocational expert (“VE”) testified a 19 hypothetical individual with those limitations could perform light jobs. (AR. at 58-59.) 20 In the unfavorable decision, the ALJ assigned “great weight” to Dr. Coleman’s 21 opinion “insofar as he indicated that the claimant [has postural and environmental 22 limitations],” but “little weight” to the conclusion Plaintiff could perform light exertional 23 work. (AR. at 28.) The ALJ explained Dr. Coleman “did not have access to the entire 24 medical record,” and that his “exertional limitation [to light work] is inconsistent with the 25 objective medical evidence as a whole . . . .” (AR. at 28.) The ALJ opined “the medical 26 evidence shows little change between the initial and reconsideration decisions below,” and 27 the “lack of consensus” between Drs. Cunningham, Coleman, and Griffith “strongly 28 undermine[s]” adopting any of their opinions. (AR. at 28.) The ALJ noted their opinions 1 were “drastically different,” despite “little change in the evidence as noted between the 2 dates when those doctors gave their opinions.” (AR. at 28.) 3 Aside from summarily stating the ALJ erred by rejecting Dr. Coleman’s opinion, 4 Plaintiff provides little substantive argument to support that position. Plaintiff, instead, 5 focuses on the other opinions of record, asserting for various reasons that it was error for 6 the ALJ to rely on Dr. Keith Cunningham’s findings (the first consultative examiner) or 7 Dr. Griffith’s opinion (the non-examining state agency physician at the initial level of 8 review).3 (Pl. Br. at 13.) Plaintiff does contend, however, that Dr. Griffith examined only 9 “limited treatment notes” compared to Dr. Coleman and states, “[I]t is clear that the amount 10 of evidence considered definitely changed between initial review [with Dr. Griffith] and 11 reconsideration [with Dr. Coleman].” (Pl. Br. at 15.) 12 Defendant responds that the ALJ’s RFC determination is supported by substantial 13 evidence, including the examination findings of Drs. Bugola and Cunningham, Plaintiff’s 14 reported daily activities, her treatment history, and her lack of compliance regarding her 15 use of marijuana. (D. Br. at 9-10.) Defendant notes the ALJ was not required to adopt any 16 particular medical opinion verbatim, and that “evaluating conflicts in the medical evidence 17 is the sole province of the ALJ . . . .” (D. Br. at 11-12.) 18 Plaintiff replies an ALJ’s failure to explicitly reject, or provide specific, legitimate 19 reasons for crediting one medical opinion over another, is error. (Reply at 4.) Plaintiff also 20 believes, “Defendant failed to address Plaintiff’s arguments regarding the weight given to 21 Dr. Coleman’s opinion and has therefore acquiesced that the ALJ has failed to properly 22 23 3 Here, the ALJ need not wholly reject the opinion of Dr. Cunningham, contrary to Plaintiff’s argument, due to his failure to include certain examination results or follow other 24 vague protocols. (Pl. Br. 12-14.) Plaintiff’s citation to a Social Security website purporting to establish “guidelines to provide minimum content for CE reports for adult claimants,” 25 does not appear to be binding on this Court or the Administration. See, e.g., Consultative Examinations: A Guide for Health Professionals, Part IV—Adult Physical Consultative 26 Examination (CE) Report Content, https://www.ssa.gov/disability/professionals/greenbook/ce-adult.htm#Neurological. This 27 Court follows federal regulation 20 C.F.R. § 416.927 (which applies to Title XVI claims for benefits filed before March 27, 2017, as is the case here), setting forth the factors for 28 the ALJ to evaluate when considering the weight to give a medical opinion. These include supportability, consistency, specialization, and others. Id. at (c)(3)-(6). 1 evaluate this opinion.” (Reply at 5.) Plaintiff argued Defendant has “acquiesced to” the 2 merit of Plaintiff’s argument regarding Dr. Coleman. (Reply at 5.) 3 At the outset, the Court notes the ALJ assigned only “little weight” to 4 Dr. Cunningham and “partial weight” to Dr. Griffith generally. (AR. at 28-29.) The ALJ 5 was explicit in his decision not to rely upon or adopt any specific opinion evidence. (AR. 6 at 28, stating “As for the opinion evidence, no single assessment was adopted.”) 7 Consequently, it is unclear why Plaintiff spends an inordinate number of pages rebutting 8 the opinions of physicians the ALJ never fully relied upon. (Pl. Br. at 12-15.) The Court 9 also declines to accept Plaintiff’s position that Defendant “acquiesced” to the Plaintiff’s 10 argument regarding Dr. Coleman by failing to address it. (Reply at 5.) Defendant construed 11 Plaintiff’s argument, generally, as an attempt to persuade the Court to “reinterpret the 12 totality of the medical evidence and reject the ALJ’s interpretation in favor of [Plaintiff’s] 13 preferred result.” (D. Br. at 12.) Defendant does not ignore Plaintiff’s argument regarding 14 Dr. Coleman, which Plaintiff herself barely addressed. 15 Regarding Dr. Coleman, the ALJ cited the conflicting opinions of other physicians 16 of record, noted Dr. Coleman did not have the full medical file, stated his restrictions are 17 “inconsistent with the objective medical evidence as a whole,” and opined that the medical 18 evidence belies his opinions. (AR. at 28.) To justify rejecting the opinion of a non- 19 examining physician, the ALJ need only point to specific evidence in the record 20 contradicting that physician’s opinion. Sousa, 143 F.3d at 1244. While the ALJ failed to 21 cite specific treatment notes to support his conclusion that Dr. Coleman’s opinion was 22 generally inconsistent with the medical record, the ALJ did note “the lack of consensus” 23 between Dr. Coleman and other physicians under these circumstances “strongly 24 undermine[s]” adopting any of their opinions. (AR. at 28.) That conflict in the medical 25 opinions constitutes a sufficient reason to reject Dr. Coleman’s opinion. Id.; accord, e.g., 26 Clark v. Colvin, 2013 WL 6189726, at *3 (W.D. Wash. Nov. 26, 2013) (report and 27 recommendation adopted) (noting conflicting opinion of examining doctor is sufficient to 28 1 justify rejection of non-examining doctor.). The ALJ did not err in rejecting Dr. Coleman’s 2 opinion. 3 2. The examining physician, Dr. Michael Bugola. 4 On August 14, 2017, consultative examiner Michael Bugola, M.D., interviewed and 5 examined Plaintiff at the behest of the state’s Disability Determination Services. (AR. at 6 331-39.) Dr. Bugola assigned to Plaintiff limitations consistent with light work (AR. at 7 336-38), which Plaintiff argues necessitates a finding of disability as of her 55th birthday.4 8 (Pl. Br. at 16.) The ALJ assigned this opinion only “little weight,” noting that “with the 9 exception of [Plaintiff’s] reduced cervical and lumbar range of motion, the restrictions 10 proposed by Dr. Bugola are completely inconsistent with his own physical examination of 11 the claimant which showed virtually no functional problems.” (AR. at 29) (emphasis in 12 original.) In support, the ALJ generally referred to the three pages of the doctor’s report 13 containing his examination results. (AR. at 29.) The ALJ also noted, however, that the 14 limitations Dr. Bugola assigned “are inconsistent with the conservative therapies and 15 treatments sought by [Plaintiff].”5 (AR. at 29.) 16 The ALJ needed only specific, legitimate reasons supported by substantial evidence 17 for rejecting Dr. Bugola’s opinion as it is contradicted in the record by another consultative 18 examiner and a non-examining consultant. (AR. at 78-80, 300-304.) That an examiner’s 19 conclusions are inconsistent with his examination notes is a specific, legitimate reason for 20 rejecting that examiner’s opinion when that rationale is properly supported in the record. 21 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194 (9th Cir. 2008) (citing Bayliss v. Barnhart, 22 427 F.3d 1211, 1216 (9th Cir. 2005)) (“An ALJ may reject an examining physician’s 23

24 4 The Court declines to accept Plaintiff’s argument that Dr. Bugola’s opinion is most 25 consistent with sedentary work. (Pl. Br. at 9.) Dr. Bugola opined Plaintiff capable of standing or walking anywhere from six-to-eight hours in an eight-hour day and lifting 26 weights up to 20 pounds occasionally. (AR. at 337.) Dr. Bugola noted Plaintiff’s use of a cane, but also that it was not medically necessary. (AR. at 337.) The RFC Dr. Bugola 27 assigned is most consistent with light work. See 20 C.F.R. § 416.967(b). 28 5 Elsewhere in the decision, the ALJ asserted several of Plaintiff’s impairments are “controlled with routine, conservative treatment.” (AR. at 26-28.) 1 opinion if it is contradicted by clinical evidence.”); see Ghanim v. Colvin, 763 F.3d 1154, 2 1161 (9th Cir. 2014) (“A conflict between treatment notes and a treating provider's 3 opinions may constitute an adequate reason to discredit the opinions of a treating physician 4 or another treating provider.”) (internal citations omitted). 5 Referring to the excerpt of the report cited by the ALJ, Dr. Bugola documented that 6 Plaintiff appeared in “no acute distress” with a normal gait and the ability to rise to a 7 standing position (and vice versa) without assistance. (AR. at 333.) Dr. Bugola documented 8 “no focal neurological deficits”; full active and passive range of motion in both upper 9 extremities with normal muscle bulk; normal fine motor skills; and normal lower extremity 10 strength and muscle bulk. (AR. at 334.) The Court acknowledges Dr. Bugola detailed 11 “multiple trigger points” and a few other positive clinical findings upon examination (AR. 12 at 335), but “[w]here the evidence is susceptible to more than one rational interpretation, 13 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas 14 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal citations omitted.) The Court finds 15 the ALJ’s reasons to be legally sufficient and supported by substantial evidence. 16 3. The ALJ’s medium RFC. 17 Regarding the ALJ’s RFC generally, it is not error for an ALJ to assign limitations 18 consistent with what is supported by the record. Bayliss, 427 F.3d at 1217. Plaintiff 19 attempts to rebut the ALJ by noting he “discounted all opinion evidence . . . [and] 20 substituted his own conclusory opinion which contradicted the record as a whole.” (Reply 21 at 5.) But the Court notes the ALJ’s RFC determination is not the least restrictive of RFCs 22 in this record, as two other physicians opined Plaintiff had no exertional limitations at all 23 (AR. at 79-80, 300-304), and it is the ALJ’s duty to evaluate the medical evidence, resolve 24 conflicts and ambiguities in the record and determine a claimant’s RFC. See Tommasetti, 25 533 F.3d at 1041. Further, and as the Court previously stated, the RFC need not match any 26 particular medical source opinion because it is a legal determination. 20 C.F.R. 27 §§ 416.927(d)(2), 416.945, 404.946(c). Importantly, the ALJ cited other factors, beyond 28 the opinion evidence, to explain his RFC determination. (AR. at 28.) In this case, however, 1 and as explained in further detail below, the ALJ’s failure to evaluate Plaintiff’s 2 fibromyalgia using the criteria adopted in Social Security Ruling (“SSR”) 12-2p may have 3 resulted in an RFC determination that does not properly account for all of Plaintiff’s 4 medically determinable impairments. Consequently, the Court will remand. 5 B. The ALJ erred by failing to apply SSR 12-2p. 6 At step two of the sequential evaluation process, the ALJ concluded Plaintiff’s 7 fibromyalgia was not a medically determinable impairment. (AR. at 23-24.) In support, the 8 ALJ cited only Dr. Cunningham’s March 2, 2017 report stating Plaintiff exhibited no 9 trigger points indicative of fibromyalgia. (AR. at 301.) 10 Plaintiff argues this conclusion is not supported by substantial evidence and that the 11 ALJ failed to “properly evaluate Plaintiff’s fibromyalgia pursuant to SSR 12-2p.” (Pl. Br. 12 at 17.) Plaintiff contends, “The ALJ completely ignored the evidence of Dr. Bugola’s 13 objective findings consistent with fibromyalgia and failed to conduct a proper review under 14 SSR 12-2p.” (Pl. Br. at 19.) Plaintiff believes the ALJ’s “RFC did not incorporate all of the 15 limitations that were supported by substantial evidence” because the ALJ failed to properly 16 account for Plaintiff’s fibromyalgia. (Pl. Br. at 19.) 17 Under SSR 12-2p, the Social Security Administration recognizes that the symptoms 18 of fibromyalgia “wax and wane” and warns that an analysis of RFC in such cases should 19 consider “a longitudinal record whenever possible.” SSR 12-2P, 2012 WL 3104869 at *6; 20 Revels v. Berryhill, 874 F.3d 648, 657 (9th Cir. 2017). “SSRs do not carry the force of law, 21 but they are binding on ALJs nonetheless.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 22 1219, 1224 (9th Cir. 2009) (internal quotations and citations omitted). The Courts “defer 23 to Social Security Rulings unless they are plainly erroneous or inconsistent with the Act or 24 regulations.” Quang Van Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 25 The Court agrees the ALJ failed to properly examine Plaintiff’s fibromyalgia using 26 the framework adopted in SSR 12-2p. The ALJ cited a single poorly documented 27 examination to support his conclusion Plaintiff’s fibromyalgia was not medically 28 determinable (AR. at 24), but the record contains evidence of fibromyalgia symptoms 1 elsewhere, including (as Plaintiff points out) Dr. Bugola’s examination notes. (AR. at 335.) 2 The ALJ simply did not explain why Dr. Cunningham’s examination, which showed no 3 tender points at all, should outweigh Dr. Bugola’s, which documented several. (AR. at 24.) 4 The Court also notes Plaintiff exhibited pain to palpation of numerous points about the 5 head and neck area while receiving treatment from a non-physician TMJ specialist in April 6 2018, some of which may be consistent with the ACR criteria. (AR. at 550.) Plaintiff also 7 appeared to exhibit positive tender points upon examination on multiple occasions with 8 pain management providers in 2017 (AR. at 358, 364, 369-70), and different chiropractors 9 in October 2018.6 (AR. at 523, 527.) The ALJ discussed none of this evidence in his 10 analysis of Plaintiff’s fibromyalgia at step two. (AR. at 24.) While the Court does not 11 endeavor to re-weigh this evidence or even conclude Plaintiff’s fibromyalgia is, in fact, 12 medically determinable, these examination notes underscore the deficiency in the ALJ’s 13 analysis. The ALJ cannot cherry-pick from the record. Garrison v. Colvin, 759 F.3d 995, 14 1017 n. 23 (9th Cir. 2014). Here, the ALJ cited the opinion that supported his conclusion 15 and ignored the opinion that did not. (AR. at 24.) 16 Defendant counters that Plaintiff is incapable of proving fibromyalgia is medically 17 determinable on this record even if the ALJ applied the correct standards under SSR 12- 18 2p.7 (D. Br. at 12-15.) Essentially, Defendant argues any failure by the ALJ to properly 19 20 6 The Court acknowledges that only a licensed physician can provide evidence sufficient to establish a medically determinable impairment of fibromyalgia under 12-2p. 21 SSR 12-2p, at *2. But Dr. Bugola documented tender points and a diagnosis of fibromyalgia or “probable” fibromyalgia (AR. at 335-36), and SSR 12-2p specifically 22 contemplates the Administration’s use of a consultative examination, in certain cases, “to determine if a person has an MDI of [fibromyalgia] or is disabled when we need this 23 information to adjudicate a case.” Id., at *4. If the ALJ had concluded Plaintiff’s fibromyalgia was medically determinable, the ALJ could have considered examinations 24 conducted by other sources. This approach is contemplated in SSR 12-2p. Id. at *4. (“We also may consider evidence from medical sources who are not ‘acceptable medical sources’ 25 to evaluate the severity and functional effects of the impairment(s).”). The Court sees no reason to ignore evidence of the disease from other sources which could conceivably lend 26 weight to Dr. Bugola’s opinion, especially in a case such as this where the ALJ’s analysis is de minimis. 27 7 Of note, Defendant argues Plaintiff is incapable of meeting the threshold for 28 fibromyalgia tender points, as the record does not contain sufficient tender points on examination over the three-month duration required by SSR 12-2p, both above and below 1 evaluate Plaintiff’s fibromyalgia under 12-2p constitutes harmless error. (D. Br. at 12-15.) 2 The Court recognizes, however, that while Defendant may be correct regarding the criteria 3 to establish fibromyalgia delineated in SSR 12-2p, the ALJ’s failure to examine or discuss 4 the longitudinal evidence of fibromyalgia in the record runs afoul of 12-2p, and the Court 5 cannot substitute Defendant’s analysis of the record for the ALJ’s lack of analysis. Bray, 6 554 F.3d at 1225-26 (9th Cir. 2009) (“Long-standing principles of administrative law 7 require us to review the ALJ's decision based on the reasoning and factual findings offered 8 by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may 9 have been thinking.”) (internal citations omitted). The ALJ’s omission of important 10 evidence from this discussion is not inconsequential to the disability determination because 11 the ALJ need not account for fibromyalgia in his RFC finding if he concludes, as he did 12 here, that it is not medically determinable. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 13 1050, 1055 (9th Cir. 2006); 20 C.F.R. § 416.945 (“We will consider all of your medically 14 determinable impairments of which we are aware, including your medically determinable 15 impairments that are not ‘severe,’ . . . when we assess your residual functional capacity.”); 16 SSR 96-8p 1996 WL 374184, at *2 (1996) (“[I]n assessing RFC, the adjudicator must 17 consider only limitations and restrictions attributable to medically determinable 18 impairments.”). As noted previously, there is meaningful evidence belying the ALJ’s 19 conclusion that Plaintiff’s fibromyalgia is not medically determinable. While it is not 20 within the Court’s province to reweigh evidence, see Carmickle v. Comm’r of Soc. Sec., 21 533 F.3d 1155, 1164 (9th Cir. 2008), it is to decide whether the ALJ’s conclusions are 22 supported by substantial evidence and whether the ALJ applied the appropriate legal 23 standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (internal citations omitted). 24

25 the waist. (D. Br. at 13-14.) Defendant also argues there is insufficient evidence to show that Plaintiff’s providers ruled out other potential diagnoses, as required by 12-2p. (D. Br. 26 at 14.) Importantly, however, Dr. Bugola documented tender points at the lumbar paraspinal musculature and the “lateral aspect of the hips bilaterally.” (AR. at 335.) 27 Additionally, Plaintiff need not satisfy the 11 tender point threshold under the 2010 ACR Preliminary Diagnostic Criteria. SSR 12-2p, at *3. The Court makes no conclusive finding 28 as to whether these facts are sufficient to establish Plaintiff’s fibromyalgia as an MDI— only that it bears discussion on remand. 1| The ALJ’s conclusion Plaintiff's fibromyalgia is not medically determinable is not supported by substantial evidence because the ALJ cherry-picked from the record and 3 | omitted consideration of important facts. 4 IT IS THEREFORE ORDERED reversing the September 5, 2019 decision of the 5 | Administrative Law Judge (AR. at 18-31). 6 IT IS FURTHER ORDERED remanding this case to the Social Security Administration for additional proceedings consistent with this opinion. 8 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 9| consistent with this Order and close this case. 10 Dated this 16th day of December, 2021. CN 11 “wok: United StatesDistrict Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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