United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE
brings this action for judicial review of the
Commissioner's decision denying her application for
social security disability insurance benefits. This court has
jurisdiction under 42 U.S.C. §§ 405(g) and
1383(c)(3). On March 31, 2014, Plaintiff filed for disability
insurance benefits, alleging disability as of December 22,
2006. Tr. 18. Following a hearing, the Administrative
Law Judge (ALJ) determined Plaintiff was not disabled under
the Social Security Act. Tr. 36.
rather unusual social security case, Plaintiff's primary
care physician consistently diagnosed Plaintiff with
fibromyalgia over the course of nearly ten years. The record
is silent, however, with regard to what diagnostic testing,
if any, supported the diagnosis. Without inquiring further
into the provider's diagnosis, the ALJ rejected all
symptom testimony related to fibromyalgia. This error
seemingly impacted the ALJ's finding that Plaintiff was
less-than fully credible as to the extent of her limitations,
as well as the ALJ's weighing of the opinion of
Plaintiff's primary care physician. As this case centers
around fibromyalgia, the error prejudiced plaintiff. As
discussed below, this matter is remanded to the ALJ for
reviewing court shall affirm the Commissioner's decision
if the decision is based on proper legal standards and the
legal findings are supported by substantial evidence in the
record. 42 U.S.C. § 405(g); Batson v. Comm'r for
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Hill v. Astrue,
698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, we review the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Cir. 1989). “If the evidence can reasonably support
either affirming or reversing, ‘the reviewing court may
not substitute its judgment' for that of the
Commissioner.” Gutierrez v. Comm'r of Soc. Sec.
Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.
voluminous administrative record, containing nearly 2, 000
pages, contains notes from approximately 100 appointments at
Plaintiff's primary care provider. The record also
contains notes of 50 or so appointments with Plaintiff's
mental health therapist and tens of appointments with a
pulmonary specialist. These providers were unanimous in
believing Plaintiff suffered from fibromyalgia or chronic
pain syndrome. See Tr. 1158 (Plaintiff's
pulmonary specialist noted “The patient has multiple
allergies which makes it difficult to deal with. I think a
lot of them fit in this patient who has chronic pain
syndrome.”); see also Tr. 1634
(Plaintiff's primary care physician opined that
“She has fibromyalgia, chronic back pain and
depression/anxiety that are managed with multiple meds. Her
function is stable but still remains poor overall.”).
The providers also believed a psychological impairment
perhaps contributed to Plaintiff's condition.
See Tr. 1129 (Dr. Kelly noted “It surprises me
that she's having this much trouble. Again, I think there
is a fair amount of psychological overlay with her cough and
asthma.”); see also Tr. 1123 (Dr. Kelly noted
that Plaintiff “always seems to have more symptoms than
we can find objectively.”); see also Tr. 1188
(Plaintiff's FNP wrote “Highly recommend seeing a
psychiatrist I will see if one is available through OHP I
think she would highly benefit from a thorough evaluation for
an accurate psychiatric diagnoses and CBT.”); see
also Tr. 1305 (Plaintiff's FNP wrote “She has
an underlying mental disorder that she is seeing a specialist
about. She feels her underlying mental disability hinders her
ability to eat well and life a balanced life.”);
see also Tr. 1540 (Plaintiff's therapist opined
that Plaintiff “has psychosomatic pain in her
leg.”). Plaintiff too was cognizant that “her
mental issues are impairing her ability to maintain a
household herself or enable her to work.” Tr. 1185.
Revels v. Berryhill, 874 F.3d 648 (9th Cir. 2017),
the Ninth Circuit discussed the “unique characteristics
of fibromyalgia” in disability determinations.
Id. at 652.
Fibromyalgia is a rheumatic disease that causes inflammation
of the fibrous connective tissue components of muscles,
tendons, ligaments, and other tissue. Typical symptoms
include chronic pain throughout the body, multiple tender
points, fatigue, stiffness, and a pattern of sleep
disturbance that can exacerbate the cycle of pain and
fatigue. What is unusual about the disease is that those
suffering from it have muscle strength, sensory functions,
and reflexes that are normal. Their joints appear normal, and
further musculoskeletal examination indicates no objective
joint swelling. Indeed, there is an absence of symptoms that
a lay person may ordinarily associate with joint and muscle
pain. The condition is diagnosed entirely on the basis of
the patients' reports of pain and other symptoms.
There are no laboratory tests to confirm the
Id. at 656 (emphasis added, internal quotation marks
and citations omitted).
addition to the lack of any objective, laboratory testing
that might confirm the diagnosis, the symptoms of
fibromyalgia are known to “wax and wane, ” with
the result that patients have good days and bad days.
Id. at 657. “In evaluating whether a
claimant's residual functional capacity renders them
disabled because of fibromyalgia, the medical evidence must
be construed in light of fibromyalgia's unique symptoms
and diagnostic methods[.]” Id. at 662.
the ALJ concluded that “The diagnosis of fibromyalgia
is not corroborated or supported, and the record does not
support it as a medically determinable impairment.” Tr.
21. In determining Plaintiff's fibromyalgia was not a
severe impairment, the ALJ noted the record contained little
objective findings as to Plaintiff's fibromyalgia.
Specifically, the record did not contain any results of
trigger point testing. As relevant here, under the
regulations-and consistent with the 1990 American College of
Rheumatology Criteria-a diagnosis of fibromyalgia must be
supported with at least 11 (out of 18) tender points on
examination. Social Security Ruling (SSR) 12-2P, at *2-3. The
agency promulgated SSR 12-2P in 2012 and the Ninth Circuit
notes that the ruling-the first recognizing fibromyalgia as a
valid impairment under the Act-was a “sea change”
in the area of social security disability. Revels,
874 F.3d at 656. Indeed, Fibromyalgia was, until quite
recently, “poorly understood within much of the medical
community.” Id. (quoting Benecke v.
Barnhart, 379 F.3d 587, 590 (9th Cir. 2004)). The ALJ
then concluded Plaintiff was less-than fully credible as to
the extent of her limitations. In making this determination,
the ALJ repeatedly noted the objective findings did not
support Plaintiff's allegations of debilitating pain.
See Tr. 26 (noting the objective medical
“findings are not consistent with the extent of the
symptoms and limitations alleged by the claimant” and
that the “modest objective findings” of
Plaintiff's spine are “not consistent with the
degree of debilitation alleged by the claimant.”);
see also Tr. 27 (“Subsequent records continue
to document unremarkable findings that are not consistent
with allegations of debilitating pain and
limitations.”); see also Tr. 28 (“The
medical evidence therefore documents modest findings on
imaging and consistently unremarkable physical examination
findings with occasional spasm and tenderness, findings that
are not consistent with the claimant's allegation of
debilitating pain and significant limitations in her ability
to sit, stand, walk, and use her arms.”). The ALJ also
found that Plaintiff's daily activities rendered her
allegations less-than fully credible. However, the ALJ's
focus on the relatively benign objective findings crept into
the daily activities analysis. See Tr. 31
(“The claimant's activities, when considered in
connection with the modest objective medical evidence,
indicate greater functioning than alleged and are not
consistent with her allegations of debilitating
impairments.” (emphasis added)).
within the District of Oregon have been especially reluctant
to rely on a lack of objective medical evidence when
considering fibromyalgia cases. See, e.g., Nunn v.
Berryhill, No. 6:17-cv-00203-SB, 2018 WL 2244705, at *10
(D. Or. May 16, 2018) (rejecting a lack of objective medical
evidence as a valid factor in considering a fibromyalgia
claimant's testimony); Bair v. Comm'r,
3:17-CV-00622, 2018 WL 2120274, at *5 (D. Or. May 8, 2018)
(holding same). In light of Revels, this Court
recognizes that Fibromyalgia is notable for the lack of
objective medical tests and is often accompanied by
apparently normal strength and musculoskeletal examinations.
The lack of objective medical evidence cannot, therefore,
serve as a clear and convincing reason for rejecting a
Plaintiff's testimony concerning pain stemming from an
acceptable medical diagnosis of Fibromyalgia.
noted above, in rejecting the consistent treatment notes from
multiple providerscontained in roughly 200 treating
appointments over nearly ten years that unanimously agreed
Plaintiff suffered from Fibromyalgia, the ALJ pointed to the
lack of any trigger point testing in the record.
Additionally, the ALJ specifically noted that Plaintiff
“has not seen a rheumatologist or specialist related to
fibromyalgia, and primary care records do not document the
required findings; it appears that the diagnosis is contained
in other records as part of the claimant's reported
medical history.” Tr. 21. While it is true that
Plaintiff never saw a fibromyalgia specialist, it was not for
a lack of trying. Plaintiff's primary care provider
referred Plaintiff to a fibromyalgia clinic but ...