Stanley v. Kijakazi

• Court: District Court, N.D. California
• Decided: September 6, 2022
• Docket: 4:20-cv-09302
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAWANYA S., 7 Case No. 20-cv-09302-DMR Plaintiff, 8 v. ORDER ON CROSS MOTIONS FOR 9 SUMMARY JUDGMENT KILOLO KIJAKAZI, 10 Re: Dkt. Nos. 26, 28 Defendant. 11

12 Plaintiff Sawanya S. moves for summary judgment to reverse the Commissioner of the 13 Social Security Administration’s (the “Commissioner’s”) final administrative decision, which 14 found Plaintiff not disabled and therefore denied her application for benefits under Titles II and 15 XVI of the Social Security Act, 42 U.S.C. § 401 et seq. [Docket No. 26.] The Commissioner 16 cross-moves to affirm. [Docket No. 28.] For the reasons stated below, the court grants Plaintiff’s 17 motion in part, denies the Commissioner’s motion, and remands this matter for further 18 proceedings. 19 I. PROCEDURAL HISTORY 20 Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) and 21 Supplemental Security Income (“SSI”) benefits on April 27, 2015, alleging disability beginning 22 December 29, 2014. Administrative Record (“A.R.”) 403-10. The application was initially 23 denied on December 4, 2015 and again on reconsideration on February 22, 2016. A.R. 133-34, 24 171-72. An Administrative Law Judge (“ALJ”) held a hearing on August 15, 2017 and issued an 25 unfavorable decision on January 10, 2018. A.R. 173-87. The Appeals Council remanded the case 26 for a new hearing on October 12, 2018, A.R. 194-98, and the same ALJ held a second hearing on 27 July 18, 2019, and a supplemental hearing on December 13, 2019. Supp. Admin. Tr., A.R. 39-45. 1 determined that Plaintiff has the following severe impairments: major depressive disorder; 2 generalized anxiety disorder; post-traumatic stress disorder; postherpetic neuralgia right; 3 paresthesia; chronic pain disorder; status post right shoulder arthroscopy; osteoarthritis of the right 4 shoulder; and status post right ankle arthroscopy. A.R. 18. The ALJ found that Plaintiff retains a 5 residual functional capacity (“RFC”) for

6 sedentary work as defined in 20 CFR [§§] 404.1567(a) and 416.967(a) except the individual is able to frequently lift and carry less than 10 7 pounds, occasionally lift and carry 10 pounds; sit for up to 6 hours in an 8-hour workday; and stand or walk 2 hours in an 8-hour workday 8 with normal breaks. The claimant can frequently climb ramps and stairs. She can frequently stoop, kneel, crouch and occasionally crawl. 9 The claimant is able to work in environments with no more than occasional exposure to atmospheric conditions such as dust, fumes, 10 and gases, temperature extremes, and vibrations. She can maintain attention and concentration for 2-hour segments before and after the 11 normal morning, lunch and afternoon breaks. The claimant would be absent 1 day per month. Furthermore, the claimant can understand, 12 remember and carry out simple, routine tasks and instructions involving simple work related decision and occasional workplace 13 changes. She is able to perform work limited to no more than occasional interaction with supervisors and coworkers, and perform 14 work which would not entail performing tasks in teams. She can have no more than rare contact (no more than 5% of the workday) with 15 general public, and would be off task 10% of an 8-hour workday. 16 A.R. 21. Relying on the opinion of a vocational expert (“V.E.”) who testified that an individual 17 with such an RFC could perform other jobs existing in the economy, including table worker, lamp 18 shade assembler, and electronics assembler, the ALJ concluded that Plaintiff is not disabled. A.R. 19 27. 20 After the Appeals Council denied review, Plaintiff sought review in this court pursuant to 21 42 U.S.C. § 405(g). 22 II. ISSUES FOR REVIEW 23 Plaintiff raises four issues: 24 1. Whether the ALJ erred in finding that Plaintiff’s fibromyalgia is not a medically 25 determinable impairment; 26 2. Whether the ALJ erred in assigning weight to the medical opinion evidence; 27 3. Whether the ALJ erred in finding Plaintiff not credible; and III. STANDARD OF REVIEW 1 Pursuant to 42 U.S.C. § 405(g), this court has the authority to review a decision by the 2 Commissioner denying a claimant disability benefits. “This court may set aside the 3 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 4 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 5 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 6 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 7 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a 8 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 9 When performing this analysis, the court must “consider the entire record as a whole and may not 10 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. 11 Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation and quotation marks omitted). 12 If the evidence reasonably could support two conclusions, the court “may not substitute its 13 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 14 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s 15 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 16 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 17 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 18 IV. DISCUSSION 19 As noted, the ALJ determined that Plaintiff has the following severe impairments at step 20 two of the five-step sequential evaluation process: major depressive disorder; generalized anxiety 21 disorder; post-traumatic stress disorder; postherpetic neuralgia right; paresthesia; chronic pain 22 disorder; status post right shoulder arthroscopy; osteoarthritis of the right shoulder; and status post 23 right ankle arthroscopy. A.R. 18. The ALJ noted that “the record contains several references to 24 the diagnosis of fibromyalgia,” but concluded that “this extensive medical record contains no 25 evidence showing that the claimant exhibits the symptoms associated with this impairment.” A.R. 26 19. In support, he stated: 27 diagnosed her with fibromyalgia. While the record indicates that the 1 claimant has received trigger point injections and has been treated with prescribed medication, it does not confirm that the claimant has 2 the requisite number of tender point findings (or any tender points) and there is no evidence that medical doctors have excluded other 3 impairments as required in SSR 12-2p. Thus, this diagnosis does not comport with the requirements set forth in SSR 12-2p that requires 4 that an “impairment” must result from anatomical, physiological or psychological abnormalities that can be shown by medically 5 acceptable clinical and laboratory diagnostic techniques. Consequently, the undersigned finds that this impairment does not 6 meet the requirements set forth by the Social Security Administration needed for the determination that fibromyalgia is a medically 7 determinable impairment. 8 Id. 9 Plaintiff argues that the ALJ erred at step two by finding that fibromyalgia is not a 10 medically determinable impairment, arguing that the record “is replete with evidence of treatment 11 for Plaintiff’s intermittent severe pain throughout her body with surgery, steroid injections and 12 pain medication, as well as a fibromyalgia-specific medication, Lyrica.” Mot. 14 (citations 13 omitted). She acknowledges that her original fibromyalgia diagnosis is not part of the record but 14 notes that the record contains evidence that she has repeatedly been diagnosed with the disorder by 15 her primary care and emergency medical providers since 2013. Id. at 15 (citations omitted). 16 Plaintiff notes that what the ALJ characterizes as “several references to the diagnosis of 17 fibromyalgia” in the record, citing five such examples, is actually nearly 100 references 18 throughout the record. Id. at 15-16 (citations omitted). Plaintiff also asserts that the record 19 repeatedly references tender points in contradiction to the ALJ’s contention. Id. at 16. 20 “Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous connective 21 tissue components of muscles, tendons, ligaments, and other tissue.” Revels v. Berryhill, 874 F.3d 22 648, 656 (9th Cir. 2017) (quotation marks and citation omitted). “Typical symptoms include 23 ‘chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep 24 disturbance that can exacerbate the cycle of pain and fatigue.’” Id. (quoting Benecke v. Barnhart, 25 379 F.3d 587, 590 (9th Cir. 2004)). However, those suffering from fibromyalgia “have muscle 26 strength, sensory functions, and reflexes [that] are normal.” Id. (quotation marks and citation 27 omitted). Further, “there are no laboratory tests to confirm the diagnosis.” Benecke, 379 F.3d at 1 symptoms.” Id. The Ninth Circuit has observed that “[f]bromyalgia’s cause is unknown, there is 2 no cure, and it is poorly-understood within much of the medical community.” Id. 3 In 2012, the Social Security Administration (“SSA”) issued a ruling recognizing that 4 fibromyalgia “can be the basis for a finding of disability.” Social Security Ruling (“SSR”) 12-2p, 5 Evaluation of Fibromyalgia, 2012 WL 3104869, at *2 (Jul. 25, 2012); see Revels, 874 F.3d at 656 6 (describing ruling as “[a] sea-change”). The ruling sets forth two sets of criteria for diagnosing 7 fibromyalgia. Pursuant to the first set of criteria, which is based on the 1990 American College of 8 Rheumatology (“ACR”) Criteria for the Classification of Fibromyalgia, the SSA may find that a 9 person has a medically determinable impairment of fibromyalgia if she (1) has “a history of 10 widespread pain . . . that has persisted (or that persisted) for at least 3 months,” although “[t]he 11 pain may fluctuate in intensity and may not always be present”; (2) has “[a]t least 11 positive 12 tender points on physical examination”; and (3) there is “[e]vidence that other disorders that could 13 cause the symptoms or signs were excluded.” SSR 12-2p at *2-3. Pursuant to the second set of 14 criteria, which is based on the 2010 ACR Preliminary Diagnostic Criteria, the SSA may find that a 15 person has fibromyalgia if she (1) has “a history of widespread pain . . . that has persisted (or that 16 persisted) for at least 3 months,” although “[t]he pain may fluctuate in intensity and may not 17 always be present”; (2) “[r]epeated manifestation of six or more [fibromyalgia] symptoms, signs, 18 or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems 19 (‘fibro fog’), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome”; and 20 (3) there is “[e]vidence that other disorders that could cause these repeated manifestations of 21 symptoms, signs, or co-occurring conditions were excluded.” Id. at *3. 22 Here, Plaintiff argues that the ALJ’s analysis references the 1990 Criteria, which include 23 considering positive tender points, but fails to consider the 2010 Criteria altogether, which assess 24 other symptoms and co-occurring conditions. Therefore, she argues, the ALJ erred. Mot. 16-17. 25 See Revels, 874 F.3d at 662 (finding ALJ’s failure “to properly analyze [plaintiff’s] fibromyalgia- 26 related symptoms” was error: “[i]n evaluating whether a claimant’s [RFC] renders them disabled 27 because of fibromyalgia, the medical evidence must be construed in light of fibromyalgia’s unique 1 In the Commissioner’s one-paragraph response on this issue, she admits the ALJ’s error 2 but contends that it was harmless. According to the Commissioner, the ALJ determined that 3 Plaintiff has several other severe impairments that cause pain, including postherpetic neuralgia 4 right; paresthesia; chronic pain disorder; status post right shoulder arthroscopy; osteoarthritis of 5 the right shoulder; and status post right ankle arthroscopy. The Commissioner argues that 6 “[b]ecause the ALJ considered Plaintiff’s allegations of pain in various parts of her body, any error 7 in not considering a specific diagnosis is harmless.” Opp’n 10. She does not discuss this 8 argument in any detail. Her position appears to be that the ALJ’s error was harmless because 9 Plaintiff’s RFC accounted for pain-related limitations. 10 An error is harmless only if it is “inconsequential to the ultimate nondisability 11 determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (quotation marks and 12 citation omitted). Here, the ALJ’s error in concluding that fibromyalgia was not a medically 13 determinable impairment could have affected the analysis at steps three through five. At step 14 three, the ALJ considers the medical severity of the claimant’s impairments. If the claimant has an 15 impairment(s) that meets or equals one of the listings in 20 C.F.R., Pt. 404, Subpt. P, App. 1 [the 16 “Listings”] and meets the duration requirement, the ALJ will find that the claimant is disabled. 17 Fibromyalgia is not a listed impairment, but could be found to medically equal a listing, such as 18 14.09(D) for inflammatory arthritis, or “medically equal[ ] a listing in combination with at least 19 one other medically determinable impairment.” SSR 12-2p at *6 (discussing SSA’s consideration 20 of fibromyalgia at step three). 21 In determining a claimant’s RFC at step four of the sequential analysis, an ALJ must 22 consider “all of the relevant medical and other evidence” in the record, 20 C.F.R. §§ 23 404.1545(a)(3), 404.1546(c), and must consider all of the claimant’s “medically determinable 24 impairments,” including those that are not severe. 20 C.F.R. § 404.1545(a)(2); Orn v. Astrue, 495 25 F.3d 625, 630 (9th Cir. 2007). Although the Commissioner contends that the ALJ took into 26 account “Plaintiff’s allegations of pain in various parts of her body” in determining her RFC, see 27 Opp’n 10, fibromyalgia may cause symptoms other than “pain in various parts of” the body. As 1 include “manifestations of fatigue, cognitive or memory problems (‘fibro fog’), waking 2 unrefreshed, depression, anxiety disorder, or irritable bowel syndrome[.]” SSR 12-2p at *3. 3 “[A]n RFC that fails to take into account a claimant’s limitations is defective.” Valentine v. 4 Comm’r. of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 5 The assessment of the claimant’s RFC impacts the fifth and last step, where the ALJ 6 considers the assessment of the claimant’s RFC and age, education, and work experience to see if 7 the claimant can make an adjustment to other work. If the claimant cannot make an adjustment to 8 other work, the ALJ will find that the claimant is disabled. 9 Given the potential impact of a finding at step two that Plaintiff has the medically 10 determinable impairment of fibromyalgia on each of the subsequent steps, it is not clear whether 11 the ALJ’s error was “inconsequential to the ultimate nondisability determination.” Thus, the court 12 cannot say that the ALJ’s error was harmless. Moreover, this error may have impacted the ALJ’s 13 assessment of the medical opinion evidence and Plaintiff’s credibility. The ALJ concluded that 14 Plaintiff was not entirely credible and that the opinions of several examining and treating 15 physicians were entitled to less weight given her “work activity” from 2015 through 2017 and 16 occasional singing performances. See A.R. 22-26. However, the SSA observed in SSR 12-2p that 17 “the symptoms and signs of [fibromyalgia] may vary in severity over time and may even be absent 18 on some days,” and that the SSA “will consider a longitudinal record whenever possible because 19 the symptoms of [fibromyalgia] can wax and wane so that a person may have ‘bad days and good 20 days.’” SSR 12-2p at *5, 6. Plaintiff testified that when she was working full time, she missed 21 between three and nine days per month due to her physical symptoms, A.R. 82-83, and she was 22 ultimately terminated from her position due to her chronic pain and absences. Supp. A.R. 9, 22; 23 A.R. 554-55. 24 In sum, the court concludes that the ALJ erred when he concluded at step two that 25 fibromyalgia is not a medically determinable impairment and that the error was not harmless. This 26 error could impact other aspects of the ALJ’s decision, including evaluation of the medical 27 opinion evidence, evaluation of Plaintiff’s credibility, medical equivalence findings, and the RFC 1 opinion and remands the case for further proceedings consistent with this opinion. On remand, the 2 || ALJ shall re-evaluate these issues in light of Plaintiff's fibromyalgia. 3 || Vv. CONCLUSION 4 For the foregoing reasons, Plaintiff's motion for summary judgment is granted in part. The 5 Commissioner’s motion is denied. This matter is remanded for further proceedings consistent 6 || with this opinion. KES DISTR 7 aby S ON 8 IT IS SO ORDERED. KS) □ & REDY By ORDE 9 || Dated: September 6, 2022 2 [\ iris sO 10 ~ “|e D G yy Vy by 2 1 Z fics ates qgisttyté □□□□□□ O dee pons □□ □□ q 12 0 A) oN OY Ly oS DISTRICL= 4

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