and Submitted May 19, 2017 San Francisco, California
from the United States District Court for the District of
Arizona Susan R. Bolton, District Judge, Presiding D.C. No.
G. Slepian (argued), Phoenix, Arizona, for
J. Nelson (argued), Special Assistant United States Attorney;
David Morado, Regional Chief Counsel, Region X; Office of the
General Counsel, Social Security Administration, Seattle,
Washington; for Defendant- Appellee.
Before: Andrew J. Kleinfeld and Kim McLane Wardlaw, Circuit
Judges, and Cathy Ann Bencivengo, [*] District Judge.
panel reversed the district court's order affirming the
denial of supplemental security income and disability
insurance benefits by the Commissioner of the Social Security
Administration, and remanded with instructions to remand the
case to the agency for the calculation and award of benefits.
administrative law judge ("ALJ") found that
claimant had three severe medical impairments - arthritis,
obesity, and fibromyalgia - but determined that claimant
could perform her past relevant work, and denied benefits.
2012, the Social Security Administration issued Social
Security Ruling ("SSR") 12-2P, a ruling that
established that fibromyalgia may be a severe medical
impairment for purposes of determining disability.
panel held that in determining the intensity, persistence,
and limiting effects of claimant's symptoms, the ALJ
failed to provide legally sufficient reasons for rejecting
the opinions of rheumatologist Dr. Nolan, physical therapist
Richard Randall, and nurse practitioner Mager. The panel also
held that the ALJ erred in rejecting claimant's symptom
testimony and the lay opinions of her mother and father. The
panel concluded that these errors arose from a fundamental
misunderstanding of fibromyalgia. The panel further held that
the ALJ failed to properly analyze claimant's
fibromyalgia-related symptoms pursuant to SSR 12-2P, and the
court's opinion in Benecke v. Barnhart, 379 F.3d
587 (9th Cir. 2004).
the panel held that the ALJ erred in giving Dr. Nolan's
opinion no weight, and instead should have found it to be
controlling as to the intensity, persistence, and limiting
effects of claimant's fibromyalgia. The panel concluded
that because the vocational expert testified that a claimant
with the physical limitations outlined in Dr. Nolan's
medical opinion would be unable to do any full-time work, Dr.
Nolan's opinion by itself established that claimant was
entitled to benefits.
panel concluded that each of the "credit-as-true"
factors, outlined in Garrison v. Colvin, 759 F.3d
995, 1020 (9th Cir. 2014), were satisfied, and that remand
for the calculation and award of benefits was warranted.
Kleinfeld dissented. Judge Kleinfeld would hold that the ALJ
properly found that claimant was not wholly credible, and
properly dismissed medical testimony supporting
claimant's position. Judge Kleinfeld would conclude that
claimant did not establish that the ALJ's conclusions
were unsupported by substantial evidence, and he would affirm
the ALJ's decision to deny benefits.
WARDLAW, CIRCUIT JUDGE
Revels ("Revels"), a now forty-one-year-old woman
who suffers from fibromyalgia, and who last worked as a
phlebotomist, appeals the district court's order
affirming the denial of supplemental security income and
disability insurance benefits by the Commissioner of the
Social Security Administration ("SSA"). In July
2012, the SSA issued Social Security Ruling ("SSR")
12-2P, a ruling that establishes that fibromyalgia may be a
severe medical impairment for purposes of determining
disability. In addition, the SSA provided guidelines for the
proper evaluation of the disease, echoing many of our
statements about fibromyalgia in Benecke v.
Barnhart, 379 F.3d 587 (9th Cir. 2004). The
administrative law judge ("ALJ"), the SSA Appeals
Council, and the district court failed to heed the
instructions of those rulings, and instead analyzed her
symptoms and rejected Revels' claim without considering
the unique characteristics of fibromyalgia, the principal
source of her disability. We reverse the judgment below and
instruct the district court to remand the case to the agency
for the calculation and award of benefits.
applied for supplemental security income and disability
insurance benefits on February 2, 2011, claiming a disability
onset date of January 20, 2011. On February 9, 2011, the
agency denied Revels' application for supplemental
security income because her income rendered her ineligible.
Finding her not disabled, the agency denied her application
for disability insurance benefits on June 29, 2011. On
reconsideration on November 23, 2011, the agency again
rejected both claims, relying only on the finding that Revels
was not disabled. Revels requested a hearing before an ALJ,
which was held on October 1, 2012. At the hearing, Revels
provided updated medical records to support her claimed
impairments. In addition, both Revels and a vocational expert
October 26, 2012, the ALJ concluded that Revels was not
disabled and denied her claims. The ALJ followed the
five-step sequential evaluation process for determining
whether an individual is disabled. At step one, he found that
Revels had not engaged in "substantial gainful
activity" since January 20, 2011, her alleged disability
onset date. At step two, he determined that she had the
following severe impairments: arthritis, obesity, and
fibromyalgia. He determined that her depression was
nonsevere. At step three, the ALJ determined that
Revels did not have an impairment or combination of
impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
reaching step four, the ALJ determined Revels' residual
functional capacity ("RFC"). He determined that she
was mostly able to perform light work as defined in 20 C.F.R.
§ 404.1567(b). Light work entails lifting up to twenty
pounds at a time, with frequent lifting or carrying of
objects up to ten pounds. 20 C.F.R. § 404.1567(b). It
also may include "a good deal of walking or standing,
" or "sitting most of the time with some pushing
and pulling of arm or leg controls." Id. The
ALJ found that Revels had slight limitations on her ability
to do light work. He found that she could only occasionally
climb ladders, ropes, scaffolds, ramps, and stairs, and only
occasionally stoop, crouch, kneel, and crawl. He determined
that she could frequently balance and reach overhead
bilaterally, and was capable of frequent handling, fingering,
and feeling. He also found that she should avoid irritants
such as fumes, odors, dust, and gases, and should avoid
unprotected heights and the use of moving machinery, except
determining Revels' RFC, the ALJ found that Revels'
impairments could reasonably be expected to cause the
symptoms she alleged, but that her statements about the
intensity, persistence, and limiting effects of her
conditions were "not entirely credible to the extent
they [we]re inconsistent with the . . . residual functional
capacity assessment." He found her testimony to be
inconsistent with the medical treatment notes and her
descriptions of her daily activities. The ALJ also
discredited Revels' testimony because of Revels'
"inconsistent reporting of marijuana usage, " and
inconsistent descriptions of the effectiveness of her
treatments. The ALJ assigned no weight to the opinions of
Revels' treating rheumatologist, Dr. Joseph Nolan, or her
physical therapist, Richard Randall. He gave "some
weight" to the opinion of the state agency consultative
examiner, Dr. Keith Cunningham, and assigned significant
weight to the opinions of the two state agency nonexamining
physicians, Dr. Alicia Blando and Dr. Debra Rowse. He also
assigned significant weight to Revels' hand doctor, Dr.
four, the ALJ determined that Revels' RFC allowed her to
perform her past relevant work as a medical assistant and
phlebotomist. Accordingly, he denied benefits.
Appeals Council denied Revels' request for review on May
20, 2014. It considered additional evidence submitted by
Revels' primary care provider, Jacqueline Mager, but
determined that the evidence did not provide a basis for
overturning the ALJ's decision. Revels then filed a
complaint in the United States District Court for the
District of Arizona, seeking review of the agency's
decision. The district court affirmed the ALJ's decision
on June 10, 2015. Revels timely appealed.
Standard of Review.
review de novo a district court's order affirming a
denial of Social Security benefits by the Commissioner.
Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.
2015). We set aside a denial of Social Security benefits only
when the ALJ decision is "based on legal error or not
supported by substantial evidence in the record."
Benton ex rel. Benton v. Barnhart, 331 F.3d 1030,
1035 (9th Cir. 2003). "Substantial evidence means more
than a mere scintilla, but less than a preponderance. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Desrosiers v. Sec'y of Health & Human
Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations
omitted) (internal quotation marks omitted). "Where
evidence is susceptible to more than one rational
interpretation, the ALJ's decision should be
upheld." Orn v. Astrue, 495 F.3d 625, 630 (9th
Cir. 2007) (internal quotation marks omitted). Yet we
"must consider the entire record as a whole, weighing
both the evidence that supports and the evidence that
detracts from the Commissioner's conclusion, and may not
affirm simply by isolating a specific quantum of supporting
evidence." Garrison v. Colvin, 759 F.3d 995,
1009 (9th Cir. 2014) (quoting Lingenfelter v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). "We
review only the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon
which he did not rely." Id. at 1010; see
also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)
("The grounds upon which an administrative order must be
judged are those upon which the record discloses that its
action was based.").
Evaluation of Medical Source Opinions.
medical opinion of a claimant's treating doctor is given
"controlling weight" so long as it "is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the claimant's] case
record." 20 C.F.R. § 404.1527(c)(2). When a
treating doctor's opinion is not controlling, it is
weighted according to factors such as the length of the
treatment relationship and the frequency of examination, the
nature and extent of the treatment relationship,
supportability, and consistency with the record. Id.
§ 404.1527(c)(2)-(6). Greater weight is also given to
the "opinion of a specialist about medical issues
related to his or her area of specialty." 20 C.F.R.
§ 404.1527(c)(5). A doctor's specialty is especially
relevant with respect to diseases that are "poorly
understood" within the rest of the medical community.
Benecke, 379 F.3d at 594 n.4.
reject [the] uncontradicted opinion of a treating or
examining doctor, an ALJ must state clear and convincing
reasons that are supported by substantial evidence."
Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198
(9th Cir. 2008) (alteration in original) (quoting Bayliss
v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)).
"If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only
reject it by providing specific and legitimate reasons that
are supported by substantial evidence." Id.
(quoting Bayliss, 427 F.3d at 1216); see also
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)
("[The] reasons for rejecting a treating doctor's
credible opinion on disability are comparable to those
required for rejecting a treating doctor's medical
opinion."). "The ALJ can meet this burden by
setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings." Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting
Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir.
1986)). "When an examining physician relies on the same
clinical findings as a treating physician, but differs only
in his or her conclusions, the conclusions of the examining
physician are not 'substantial evidence.'"
Orn, 495 F.3d at 632. Additionally, "[t]he
opinion of a nonexamining physician cannot by itself
constitute substantial evidence that justifies the rejection
of the opinion of either an examining physician or a
treating physician." Lester v. Chater, 81 F.3d
821, 831 (9th Cir. 1995) (emphasis in original).
addition to considering the medical opinions of doctors, an
ALJ must consider the opinions of medical providers who are
not within the definition of "acceptable medical
sources." See 20 C.F.R. § 404.1527(b),
(f); SSR 06-3P. While those providers' opinions are not
entitled to the same deference, an ALJ may give less
deference to "other sources" only if the ALJ gives
reasons germane to each witness for doing so. Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). The same
factors used to evaluate the opinions of medical providers
who are acceptable medical sources are used to evaluate the
opinions of those who are not. Id. §
404.1527(f); SSR 06-3P. Those factors include the length of
the treatment relationship and the frequency of examination,
the nature and extent of the treatment relationship,
supportability, consistency with the record, and
specialization of the doctor. Id. §
404.1527(c)(2)-(6). Under certain circumstances, the opinion
of a treating provider who is not an acceptable medical
source may be given greater weight than the opinion of a
treating provider who is-for example, when the provider
"has seen the individual more often than the treating
source, has provided better supporting evidence and a better
explanation for the opinion, and the opinion is more
consistent with the evidence as a whole." Id.
Evaluation of a Claimant's Testimony and Third-Party
established a two-step analysis for determining the extent to
which a claimant's report of her symptoms must be
First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying
impairment which could reasonably be expected to produce the
pain or other symptoms alleged. In this analysis, the
claimant is not required to show that her impairment
could reasonably be expected to cause the severity of the
symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom. Nor must a
claimant produce objective medical evidence of the pain or
fatigue itself, or the severity thereof.
If the claimant satisfies the first step of this analysis,
and there is no evidence of malingering, the ALJ can reject
the claimant's testimony about the severity of her
symptoms only by offering specific, clear and convincing
reasons for doing so. This is not an easy requirement to
meet: The clear and convincing standard is the most demanding
required in Social Security cases.
Garrison, 759 F.3d at 1014-15 (citations omitted)
(internal quotation marks omitted). To reject third-party
reports of a claimant's impairments, the standard is much
lower: an ALJ need only "give reasons that are germane
to each witness." Molina, 674 F.3d at 1114
(quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th
Cir. 1993)); see also 20 C.F.R. §
found that Revels had three severe medical impairments:
arthritis, obesity, and fibromyalgia. However, the medical
records largely pertain to Revels' fibromyalgia, as do
the assessments concerning her limited functional ability.
Because this case turns on whether the ALJ properly found
Revels not disabled based on his conclusions about her
fibromyalgia-related limitations, it is helpful to understand
what fibromyalgia is, how it is properly diagnosed, and what
its symptoms are.
is "a rheumatic disease that causes inflammation of the
fibrous connective tissue components of muscles, tendons,
ligaments, and other tissue." Benecke, 379 F.3d
at 589. 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." Id.
at 590. What is unusual about the disease is that those
suffering from it have "muscle strength, sensory
functions, and reflexes [that] are normal." Rollins
v. Massanari, 261 F.3d 853, 863 (9th Cir. 2001)
(Ferguson, J., dissenting) (quoting Muhammad B. Yunus,
Fibromyalgia Syndrome: Blueprint for a Reliable
Diagnosis, Consultant, June 1996, at 1260). "Their
joints appear normal, and further musculoskeletal examination
indicates no objective joint swelling." Id.
(quoting Yunus, supra, at 1260). Indeed,
"[t]here is an absence of symptoms that a lay person may
ordinarily associate with joint and muscle pain."
Id. The condition is diagnosed "entirely on the
basis of the patients' reports of pain and other
symptoms." Benecke, 379 F.3d at 590.
"[T]here are no laboratory tests to confirm the
long time, fibromyalgia was "poorly understood within
much of the medical community." Id. Indeed,
"[t]here used to be considerable skepticism that
fibromyalgia was a real disease." Kennedy v. Lilly
Extended Disability Plan, 856 F.3d 1136, 1137 (7th Cir.
2017). In previous decisions, we were reluctant to recognize
fibromyalgia as an impairment that could render one disabled
for Social Security purposes. See Rollins, 261 F.3d
at 857 ("Assuming, without deciding, that fibromyalgia
does constitute a qualifying 'severe impairment'
under the Act . . . .").
sea-change occurred in 2012, when the SSA issued a ruling
recognizing fibromyalgia as a valid "basis for a finding
of disability." Social Security Ruling ("SSR")
12-2P, at *2. The ruling provides two sets of criteria for
diagnosing the condition, based on the 1990 American College
of Rheumatology Criteria for the Classification of
Fibromyalgia and the 2010 American College of Rheumatology
Preliminary Diagnostic Criteria. Id. Pursuant to the
first set of criteria, a person suffers from fibromyalgia if:
(1) she has widespread pain that has lasted at least three
months (although the pain may "fluctuate in intensity
and may not always be present"); (2) she has tenderness
in at least eleven of eighteen specified points on her body;
and (3) there is evidence that other disorders are not
accounting for the pain. Id. at *2-3. Pursuant to
the second set of criteria, a person suffers from
fibromyalgia if: (1) she has widespread pain that has lasted
at least three months (although the pain may "fluctuate
in intensity and may not always be present"); (2) she
has experienced repeated manifestations of six or more
fibromyalgia symptoms, signs, or co-occurring conditions,
"especially manifestations of fatigue, cognitive or
memory problems ("fibro fog"), waking unrefreshed,
depression, anxiety disorder, or irritable bowel
syndrome"; and (3) there is evidence that other
disorders are not accounting for the pain. Id. at
diagnosis of fibromyalgia does not rely on X-rays or MRIs.
Further, SSR 12-2P recognizes that the symptoms of
fibromyalgia "wax and wane, " and that a person may
have "bad days and good days." SSR 12-2P, at *6. In
light of this, the ruling warns that after a claimant has
established a diagnosis of fibromyalgia, an analysis of her
RFC should consider "a longitudinal record whenever
Personal and Medical Records.
administrative record provides a comprehensive account of
Revels' impairments and functional limitations. Starting
around 2000, Revels began to develop neck and upper back
pain. Because of her pain, as well as her asthma, she
obtained a disability placard in 2003. Around 2010, the pain
in her neck and back increased markedly, and she also began
to experience pain in her hands and feet. Revels visited the
emergency room for pain twice in 2010, and three times in
2011. At least one of the visits was prompted ...