Taylor v. Commissioner of Social Security

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 HEATHER T., CASE NO. 3:22-CV-5333-DWC 11 Plaintiff, ORDER REVERSING AND 12 v. REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 13 COMMISSIONER OF SOCIAL SECURITY,

14 Defendant. 15

Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of 16 Defendant’s denial of Plaintiff’s applications for supplemental security income (“SSI”) and 17 disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil 18 Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by 19 the undersigned Magistrate Judge. See Dkt. 2. 20 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 21 erred at Step Two of the sequential evaluation process in her assessment of Plaintiff’s 22 fibromyalgia and her assessment is not supported by substantial evidence. In addition, because 23 the ALJ did not consider Plaintiff’s fibromyalgia throughout the sequential evaluation process, 24 1 the Court concludes that the ALJ’s error is harmful. Therefore, pursuant to sentence four of 42 2 U.S.C. § 405(g), this matter is reversed and remanded to the Acting Commissioner of Social 3 Security (“Commissioner”) for further proceedings consistent with this Order. 4 FACTUAL AND PROCEDURAL HISTORY 5 On March 30, 2017, Plaintiff filed an application for DIB alleging a disability onset date

6 of May 1, 2013.1 See Dkt. 8, Administrative Record (“AR”) 381. On April 3, 2017, Plaintiff filed 7 an application for SSI benefits. See AR 383. See AR 381, 383. The applications were denied 8 upon initial administrative review and on reconsideration. AR 21. At Plaintiff’s request, ALJ 9 Virginia M. Robinson held a hearing on November 28, 2018. See AR 47-83. In a decision dated 10 March 13, 2019, the ALJ determined Plaintiff was not disabled pursuant to the Social Security 11 Act. See AR 124. On April 28, 2020, the Appeals Council granted Plaintiff’s request for review, 12 vacated the ALJ’s decision, and remanded the case for further consideration.2 See AR 232-7. 13 Pursuant to the Appeals Council remand order, the ALJ held a telephone hearing on 14 March 16, 2021. See AR 84-120. In a decision dated April 20, 2021, the ALJ determined that

15 Plaintiff was not disabled pursuant to the Social Security Act. See AR 24-40. Plaintiff requested 16 17 18 19 1 Plaintiff previously filed DIB and SSI applications on May 14, 2014. AR. 21. On December 7, 2016, Administrative Law Judge Timothy Mangrum found the claimant not disabled. That decision is 20 administratively final as Plaintiff did not appeal the decision. See AR 21. Subsequently, Plaintiff amended the alleged disability date to September 8, 2016, the day after ALJ Mangrum’s decision. See AR 22.

21 2 The Appeals Council instructed the ALJ to address the Chavez presumption, further evaluate the claimant’s mental impairments, reconsider the claimant’s residual functional capacity, and obtain 22 testimony from a vocational expert. AR. 232-7. As noted by the ALJ, “[t]he prior unfavorable decision creates a presumption of continuing non-disability. AR 22 (citing Chavez v. Bowen, 844 F.2d 691 (9th 23 Cir. 1988). However, the ALJ found the presumption rebutted because the mental listings have changed, and Plaintiff developed new impairments since the last decision. Id. 24 1 review of the ALJ decision and on April 4, 2022, the Appeals Council denied Plaintiff’s request 2 for review, thereby making the ALJ’s decision the final decision of the Commissioner. See AR 1. 3 In Plaintiff’s Opening Brief, she maintains the ALJ erred by: (1) failing to properly 4 evaluate her treating primary care physician’s opinion with respect to her fibromyalgia diagnosis 5 at Step Two of the sequential evaluation process, and (2) failing to provide clear and convincing

6 reasons for rejecting her testimony. 7 STANDARD OF REVIEW 8 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 9 social security benefits if the ALJ’s findings are based on legal error or not supported by 10 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 11 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). Substantial evidence is 12 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 13 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted). 14 DISCUSSION

15 I. Whether the ALJ Properly Assessed Plaintiff’s Fibromyalgia at Step Two of the Sequential Evaluation Process. 16 Plaintiff argues that the ALJ erred at Step Two in determining that her fibromyalgia was 17 neither a medically determinable nor a severe impairment because the ALJ’s determination is not 18 based on substantial evidence. Dkt. 10 at 5. Specifically, Plaintiff contends this is harmful error 19 because the ALJ erred in her evaluation of Plaintiff’s treating physician’s opinion with respect to 20 her fibromyalgia and failed to provide clear and convincing reasons for discrediting Plaintiff’s 21 testimony regarding pain related to fibromyalgia. Dkt. 10. 22 The Commissioner responds that, “even though the ALJ found fibromyalgia not 23 medically determinable and not severe, the ALJ explicitly ‘considered all of [Plaintiff’s] 24 1 complaints, regardless of the source of these symptoms,’ in assessing her residual functional 2 capacity.” Dkt. 11 at 3 (citing AR 25). Specifically, the Commissioner responds that, even if 3 fibromyalgia was a severe impairment, the ALJ discounted Dr. Kirchner’s assessment because 4 her limitations were overstated based on the objective medical evidence including examinations 5 showing full strength, normal muscle tone and bulk, and no atrophy. Id. at 3-4.

6 Plaintiff replies there is nothing in the ALJ’s opinion which supports the ALJ considered 7 Plaintiff’s complaints stemming from fibromyalgia. Dkt. 12 at 2. Specifically, Plaintiff replies 8 that the ALJ lists the conditions considered at Step 3 and does not list fibromyalgia. Id. Plaintiff 9 further replies that the ALJ’s assessment of the objective evidence is not reasonable considering 10 the “myriad examples of objective findings consistent with severe fibromyalgia symptom which 11 support Dr. Kirchner’s opinion.” Id. at 3. 12 At Step Two of the sequential evaluation process, the ALJ determines whether the 13 claimant “has a medically severe impairment or combination of impairments.” Smolen v. Chater, 14 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted); see also 20 C.F.R. §§ 404.1520(a)(4)(ii),

15 416.920(a)(4)(ii) (2012). “An impairment or combination of impairments is not severe if it does 16 not significantly limit your physical or mental ability to do basic work activities.” 20 C.F.R. § 17 404.1522; 20 C.F.R. § 416.922. Basic work activities are “the abilities and aptitudes necessary to 18 do most jobs.” Id. 19 The Administration follows Social Security Ruling (“SSR”) 12-2p when determining 20 whether fibromyalgia is a medically determinable impairment. See SSR 12-2p, Titles II and XVI: 21 Evaluation of Fibromyalgia, 2012 WL 3104869 (July 25, 2012). Fibromyalgia is a “complex 22 medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or 23 nearby soft tissues. . . .” Id. at *2. Fibromyalgia is a medically determinable impairment “when it 24 1 is established by appropriate medical evidence” and “can be the basis for a finding of disability.” 2 Id. In finding fibromyalgia a medically determinable impairment, the Commissioner cannot rely 3 on a physician’s diagnosis alone; rather, “the evidence must document that the physician 4 reviewed the person’s medical history and conducted a physical exam.” Id. Furthermore, SSR 5 12-2p “designates two separate sets of diagnostic criteria that can establish fibromyalgia as a

6 medically determinable impairment.” Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 7 1005 (9th Cir. 2015) (citing SSR 12-2p). 8 Under the first set of criteria, fibromyalgia may be a medically determinable impairment 9 if the claimant has (1) a history of widespread pain; (2) at least 11 tender points on physical 10 examination; and (3) “[e]vidence that other disorders that could cause the symptoms or signs 11 were excluded.” SSR 12-2p, 2012 WL 3104869, at *2-3. According to the second set of criteria, 12 fibromyalgia may be a medically determinable impairment if the claimant has (1) a history of 13 widespread pain; (2) “[r]epeated manifestations” of six or more fibromyalgia symptoms, signs, 14 or co-occurring conditions; and (3) “[e]vidence that other disorders that could cause these

15 repeated manifestations of symptoms, signs, or co-occurring conditions were excluded.” Id. at 16 *3. 17 In this case, the ALJ determined Plaintiff suffered from the severe impairments of 18 degenerative disc disease, obesity, diabetes, asthma, obstructive sleep apnea, depression, anxiety 19 disorder vs. post-traumatic stress disorder, personality disorder, and history of substance use 20 disorder. AR 24. However, the ALJ determined Plaintiff did not have a medically determinable 21 impairment of fibromyalgia. AR 24-5. 22 In explaining, the ALJ noted Administrative Law Judge Mangrum found in a December 23 7, 2016 decision Plaintiff’s fibromyalgia was not a medically determinable impairment because 24 1 the criteria in SSR 12-2p were not met. AR 24; 21. The ALJ notes the decision is 2 administratively final because Plaintiff did not appeal. AR 24; 21. 3 In evaluating the evidence since the prior decision3, the ALJ noted she continued to find 4 fibromyalgia was not a medically determinable impairment because the criteria set forth under 5 SSR 12-2p was still not met. AR. 25. At Step Two, without sufficient explanation, the ALJ

6 appears to credit Dr. Weir’s one-time consultative examination finding that Plaintiff “does not 7 meet the diagnostic criteria for fibromyalgia on examination” over Dr. Kirchner’s, diagnosis of 8 fibromyalgia based on positive tender point testing. The ALJ noted that in June 2017, Dr. A. 9 Peter Weir, consultive examiner, evaluated Plaintiff for fibromyalgia “by applying 4 kg of 10 pressure to 18 standard trigger areas with distraction.” AR 24 (citing AR 594). Of the 18 areas 11 tested, Dr. Weir noted none were positive for tenderness. Id. The ALJ also noted that in August 12 2018, Dr. Shannan Kirchner, Plaintiff’s primary care physician, diagnosed the claimant with 13 fibromyalgia after conducting tender point testing.4 AR 24 (citing AR 994-7; 1061). However, 14 the ALJ noted that the medical records fail to establish the other criteria required by SSR 12-2p

15 including repeated manifestations of six or more fibromyalgia symptoms or evidence that other 16 disorders have been ruled out. AR 24. 17 18

19 3 The ALJ, found the presumption rebutted because the mental listings have changed and Plaintiff 20 developed new impairments since the last decision, but did not reopen the previous application period. In reviewing Plaintiff’s fibromyalgia, the ALJ’s considered only the medical evidence subsequent to the previous denial of disability. As Plaintiff did not raise any issue with respect to the ALJ’s consideration of 21 the prior evidence, the Court has limited its review to the medical evidence considered by the ALJ.

22 4 The ALJ noted the testing was prompted by disability paperwork provided by Plaintiff’s attorney. AR 24. However, Dr. Kirchner also noted back in 2013 that Plaintiff had “multiple sites of 23 hyperalgesia noted (over neck, mid, lower back and also the elbows, knees and ankles (fibromyalgia points)” that were “consistent with fibro[myalgia].” AR 651. There are also additional records from prior 24 to Dr. Kirchner’s assessment documenting fibromyalgia. See AR. 640, 656, 753, 805, 852, 856. 1 Based on Dr. Kirchner’s assessment, Plaintiff provided sufficient evidence to meet the 2 first set of criteria set out in SSR 12-2p. The medical records document Plaintiff’s history of 3 widespread pain. See AR 1139,1208, 1215, 1237,1247, 1345 (tenderness on palpation); AR 4 1139, 1147, 1153, 1188, 1209, 1218, 1225, 1247, 1251, 1279, 1282, 1298 (pain, stiffness, and/or 5 mobility issues); see also AR 1182,1192,1218,1220, 1228, 1247, 1251, 1279,1283,1298

6 (appeared chronically ill). Dr. Kirchner noted that Plaintiff had at least 11 out of 18 tender points 7 and noted 16 tender points bilaterally on a diagram. AR 994-5. In addition, Plaintiff submitted an 8 assessment to the Appeal’s Council from Dr. Kirchner dated July 7, 2021, stating that there has 9 not been significant improvement in her fibromyalgia and that other disorders causing similar or 10 same signs or symptoms have been ruled out. AR 7. See Brewes v. Comm’r of Soc. Sec. Admin., 11 682 F.3d 1157 (9th Cir. 2012) (holding that new evidence considered by the Appeals Council in 12 denying review becomes part of the administrative record which the Court must consider when 13 reviewing the Commissioner’s final decision); see also Taylor v. Comm’r of SSA, 659 F.3d 1228, 14 1232 (9th Cir. 2011). However, the ALJ appears to have improperly applied SSR 12-2p by

15 requiring Plaintiff to meet both criteria. After noting that Dr. Kirchner conducted tender point 16 testing, as required by the first criteria, the ALJ noted the medical records fail to provide 17 evidence of repeated manifestations of six or more fibromyalgia symptoms, which is required 18 only by the second set of criteria set out in SSR 12-2p. AR 24. The Court concludes this was 19 error. 20 While the ALJ further explained that the subsequent records from Dr. Kirchner in 2019- 21 20 show treatment for acute physical conditions unrelated to fibromyalgia, the ALJ cites over 22 100 pages of the record without any further explanation. AR 24 (citing AR 1172-1293). The ALJ 23 also noted the medical record did not list fibromyalgia as a primary or chronic condition, citing 24 1 one page of the record. AR 24 (citing 1384). These assertions are not supported by substantial 2 evidence. In reviewing these records, the court notes fibromyalgia is mentioned on the “patient 3 active problem list” in Plaintiff’s medical records and it is noted that Plaintiff was on medication 4 for pain. e.g., AR 1172, 1179, 1186, 1190, 1194, 1195, 1202, 1210, 1214, 1215, 1216, 1222. The 5 record also shows Plaintiff sought treatment during that time period for a fibromyalgia flare

6 following stress and sought follow-up appointments for pain. See AR 1204-1218. See Flores v. 7 Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 8 (9th Cir. 1984)) (the ALJ “may not reject ‘significant probative evidence’ without explanation”); 9 Mahoney-Garcia v. Colvin, 2015 WL 1965382, at *4-5 (W.D. Wash. Apr. 17, 2015) (finding the 10 ALJ erred when he found Plaintiff’s fibromyalgia was not a medically determinable impairment 11 because he failed to consider all of the criteria in SSR 12-2p and relevant evidence). 12 Accordingly, the Court concludes the ALJ erred in assessing Plaintiff’s fibromyalgia at 13 Step Two by failing to appropriately consider the criteria for finding fibromyalgia a medically 14 determinable impairment and the ALJ’s findings are not supported by substantial evidence.

15 II. Remedy

16 Plaintiff argues that these errors are harmful. Specifically, Plaintiff contends that because 17 the ALJ did not find her fibromyalgia a medically determinable or severe impairment, the ALJ’s 18 determinations with respect to the opinion evidence and her testimony are flawed and not 19 supported by substantial evidence. Dkt. 10. Plaintiff further argues that the ALJ failed to 20 consider fibromyalgia at Step Three. Dkt. 12 at 2. 21 Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 22 1104, 1115 (9th Cir. 2012). An error is harmless only if it is not prejudicial to the claimant or 23 “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r of Soc. 24 1 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina, 674 F.3d at 1115. The 2 determination as to whether an error is harmless requires a “case-specific application of 3 judgment” by the reviewing court, based on an examination of the record made “‘without regard 4 to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-1119 5 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111)). An error at

6 Step Two may be harmless if the ALJ properly considers limitations posed by the omitted 7 impairment subsequently in the sequential evaluation process. See Lewis v. Astrue, 498 F.3d 909, 8 911 (9th Cir. 2007); see also Martin v. Comm’r of Soc. Sec., No. 2:22-CV-562-DWC, 2022 WL 9 17249449, at *6–7 (W.D. Wash. Nov. 28, 2022). 10 The Defendant responds that, even if the ALJ should have found Plaintiff’s fibromyalgia 11 a medically determinable impairment, any error is harmless because Plaintiff’s fibromyalgia is 12 non-severe and the ALJ considered Plaintiff’s pain complaint’s, regardless of the source of these 13 symptoms, in her assessment of her RFC. Dkt. 11 at 3 (citing AR. 25). At Step Two, the ALJ 14 stated that, “even if medically determinable, fibromyalgia is non-severe, and she “considered all

15 of the claimant’s pain complaints, regardless of the source of these symptoms, in [her] 16 assessment of [Plaintiff] RFC.” However, the ALJ failed to provide any reasoning with respect to 17 the severity of Plaintiff’s fibromyalgia. AR. 25; See SSR 12-2p 2012 WL 3104869 at *5-6. In 18 addition, the Court has not found in the decision where the ALJ address Plaintiff’s alleged pain 19 and other symptoms from fibromyalgia. AR. 25. 20 At Step Three, the ALJ considered Plaintiff’s physical impairments of degenerative disc 21 disease; obesity; diabetes; asthma; and obstructive sleep apnea and her mental impairments in 22 determining that she did not have an impairment or combination of impairments that meets or 23 equals a listed impairment. However, had the ALJ found Plaintiff’s fibromyalgia a medically 24 1 determinable or severe impairment, the ALJ would have had to consider whether her symptoms 2 of fibromyalgia medically equaled a listing alone, or in combination with at least one other 3 medically determinable impairment. See SSR 12-2p 2012 WL 3104869 at *5-6. 4 Further, Plaintiff argues that, because the ALJ did not find her fibromyalgia a medically 5 determinable or severe impairment, the ALJ failed to properly evaluate Dr. Kirchner’s opinion

6 evidence and failed to provide clear and convincing reasons for rejecting her testimony in 7 assessing her RFC. Dkt. 10 at 4-16. The ALJ found the limitations opined by Dr. Kirchner were 8 not persuasive because Dr. Kirchner “relied, in part on the diagnosis of fibromyalgia” which the 9 ALJ found to be “either not medically determinable or non-severe.” AR 35. This circular 10 reasoning does not suffice where the ALJ should have found Plaintiff’s fibromyalgia to be a 11 medically determinable impairment. Had the ALJ done so, the ALJ would have had to consider 12 Dr. Kirchner’s opinions based on the fibromyalgia diagnosis. See Hill v. Astrue, 698 F.3d 1153, 13 1161 (9th Cir. 2012) (“Where the ALJ has found a severe medically determinable impairment at 14 step two of the sequential analysis, ‘all medically determinable impairments must be considered

15 in the remaining steps of the sequential analysis’”) (citing Orn v. Astrue, 495 F.3d 625, 630 (9th 16 Cir.2007) (citing 42 U.S.C. § 423(d)(2)(B))); Orellana v. Astrue, 547 F. Supp. 2d 1169, 1172 17 (E.D. Wash. 2008) (“The combined effect ‘shall be considered throughout the disability 18 determination process’”) (citing 42 U.S.C. § 423(d)(2)(B)); Terry B., v. Commissioner, No. 6:21- 19 CV-01438-JR, 2022 WL 17667221, at *2 (D. Or. Dec. 14, 2022) (An ALJ must “actually 20 review[ ] the record and specif[y] reasons supported by substantial evidence for not including 21 the non-severe impairment”) (citations omitted). 22 The ALJ also found Dr. Kirchner’s opinion not persuasive because Kirchner relied, in 23 part, on the claimant’s self-reported pain. AR 36. However, “[f]ibromyalgia is diagnosed 24 1 ‘entirely on the basis of patients’ reports of pain and other symptoms,” and “there are no 2 laboratory tests to confirm the diagnosis.” Revels v. Berryhill, 874 F.3d 648, 663 (9th Cir. 2017) 3 (citing Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). 4 The Defendant states the ALJ also found that Dr. Kirchner’s opinion overstated 5 Plaintiff’s limitations “based on the objective medical evidence” and because her “conditions did

6 not appear to affect her strength, as examinations showed full strength, normal muscle tone and 7 bulk, and no atrophy.” Dkt. 11 at 3-4. Defendant argues that evidence of tenderness and pain 8 does not compel a different interpretation of the record. Id. at 3. However, had the ALJ found 9 Plaintiff’s fibromyalgia was a medically determinable or severe impairment, the ALJ would have 10 had to construe the medical evidence in light of fibromyalgia’s “unique symptoms and diagnostic 11 methods, as described in SSR 12-2p and [Ninth Circuit case law].” Revels 874 F.3d at 666; see 12 also Id. at 662 (citations omitted; internal quotation marks omitted) (“a person with fibromyalgia 13 may have muscle strength, sensory functions, and reflexes [that] are normal”); Id. (citing SSR 14 12-2p at *2–3) (“Pursuant to SSR 12-2P, tender-point examinations themselves constitute

15 ‘objective medical evidence’” of fibromyalgia); Id. (citing SSR 12-2p at *6) (“the symptoms of 16 fibromyalgia ‘wax and wane,’ and a person may have ‘bad days and good’”). 17 With respect to Plaintiff’s testimony, the ALJ only considered Plaintiff’s testimony with 18 respect to her medically determinable impairments. AR 29-33. As such, the ALJ did not consider 19 Plaintiff’s statements with respect to the limiting effects of her pain from fibromyalgia. Instead, 20 the ALJ considered pain from degenerative changes in her lumbar spine. AR 29-30. The ALJ 21 found that her statements concerning the limiting effects were not consistent with the imaging 22 studies and other medical evidence. Id. The ALJ also found her testimony inconsistent with the 23 sporadic complaints and intermittent nature of her care. AR 30. However, had the ALJ found 24 ] || Plaintiff's fibromyalgia to be a medically determinable or severe impairment, the ALJ would 2 || have had to construe Plaintiff’s testimony with respect to her pain as described in SSR 12-2p and 3 || Ninth Circuit case law. Thus, the ALJ also erred with regard to rejecting Plaintiffs testimony. 4 Therefore, because the ALJ did not consider Plaintiff's fibromyalgia throughout the 5 || sequential evaluation process, the Court concludes that the ALJ’s failure to properly evaluate 6 || Plaintiffs fibromyalgia at Step Two is harmful and requires remand. Accordingly, this matter is 7 || reversed and remanded to the Commissioner for further proceedings consistent with this Order. 8 | See Dkt. 10 at 17 (requesting the Court reverse and remand). 9 CONCLUSION 10 Based on the foregoing reasons and the relevant record, the Court ORDERS that this 11 || matter be REVERSED and REMANDED for further administrative proceedings in accordance 12 || with the findings contained herein. JUDGMENT should be for Plaintiff and the case should be 13 || closed. 14 15 Dated this29th day of December, 2022. 16 -

18 United States Magistrate Judge 19 20 21 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS