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Revels v. Berryhill

United States Court of Appeals, Ninth Circuit

October 26, 2017

Kanika Shavon Revels, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner Social Security, Defendant-Appellee.

          Argued and Submitted May 19, 2017 San Francisco, California

         Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding D.C. No. 2:14-cv-01623-SRB

          Eric G. Slepian (argued), Phoenix, Arizona, for Plaintiff-Appellant.

          Lars 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.

         SUMMARY [**]

         Social Security

         The 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.

         The 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.

         In July 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.

         The 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).

         Specifically, 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.

         The 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.

         Judge 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.

          OPINION

          WARDLAW, CIRCUIT JUDGE

         Kanika 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.

         I.

         Revels 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 testified.

         On 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.[1] 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.

         Before 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 motor vehicles.

         In 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. Sebastian Ruggeri.

         At step 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.

         The 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.

         II.

         A. Standard of Review.

         We 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.").

         B. Evaluation of Medical Source Opinions.

         The 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.

         "To 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).

         In 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. § 404.1527(f)(1).

         C. Evaluation of a Claimant's Testimony and Third-Party Reports.

         We have established a two-step analysis for determining the extent to which a claimant's report of her symptoms must be credited:

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. § 404.1529(c)(3).

         III.

         The ALJ 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.

         Fibromyalgia 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 diagnosis." Id.

         For a 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 . . . .").

         A sea-change occurred in 2012, when the SSA issued a ruling recognizing fibromyalgia as a valid "basis for a finding of disability."[2] 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 *3.

         Therefore, 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 possible." Id.

         IV.

         A. Personal and Medical Records.

         The 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 ...


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