# Silva v. Kijakazi

> District Court, E.D. Washington · July 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10698335

## Case

- **Court:** District Court, E.D. Washington
- **Decided:** July 12, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10698335

## How later opinions describe it (automated extraction)

- explaining that the data points chosen by an 19 ALJ “must in fact constitute examples of a broader development”
- Noting it is error to 16 reject evidence of a mental impairment “merely because symptoms wax and wane,” 17 and explaining, “Cycles of improvement and debilitating symptoms are a common 18 occurrence . . . .”

## Opinion text

1 FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
2 Jul 12, 2023

3 SEAN F. MCAVOY, CLERK
4 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
5

6 SALVADOR S.,1 No. 1:22-cv-3139-EFS

7 Plaintiff,
ORDER REVERSING THE
8 v. DECISION OF THE ALJ AND
REMANDING FOR FURTHER
9 KILOLO KIJAKAZI, Acting PROCEEDINGS
Commissioner of Social Security,
10
Defendant.
11
12
13 Plaintiff Salvador S. appeals the denial of benefits by the Administrative
14 Law Judge (ALJ). Because the ALJ failed to address Plaintiff’s claimed
15 impairment of fibromyalgia, the ALJ’s decision lacks the requisite supporting
16 substantial evidence. The Court therefore reverses the decision of the ALJ and
17 remands this matter for the ALJ to properly consider fibromyalgia and conduct the
18 sequential evaluation anew.
19 //
20

21
1 For privacy reasons, Plaintiff is referred to by first name and last initial or as
22
“Plaintiff.” See LCivR 5.2(c).
23
1 I. Five-Step Disability Determination
2 A five-step evaluation determines whether a claimant is disabled.2 Step one

3 assesses whether the claimant is engaged in substantial gainful activity.3 Step two
4 assesses whether the claimant has a medically severe impairment or combination
5 of impairments that significantly limit the claimant’s physical or mental ability to
6 do basic work activities.4 Step three compares the claimant’s impairment or
7 combination of impairments to several recognized by the Commissioner to be so
8 severe as to preclude substantial gainful activity.5 Step four assesses whether an
9 impairment prevents the claimant from performing work he performed in the past

10 by determining the claimant’s residual functional capacity (RFC).6 Step five
11 assesses whether the claimant can perform other substantial gainful work—work
12 that exists in significant numbers in the national economy—considering the
13 claimant’s RFC, age, education, and work experience.7
14
15

16

17
2 20 C.F.R. §§ 404.1520(a), 416.920(a).
18
3 Id. §§ 404.1520(a)(4)(i), (b), 416.920(a)(4)(i), (b).
19
4 Id. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c).
20
5 Id. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d).
21
6 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
22
7 Id. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g).
23
1 II. Background
2 In September 2019, Plaintiff filed an application for benefits under Title 16,

3 claiming disability based on low vision, depression, anxiety, stress, social anxiety,
4 bipolar disorder, shoulder pain, and fibromyalgia.8 Plaintiff alleged an onset date
5 of April 26, 2019.9 After the agency denied his application initially and on
6 reconsideration, Plaintiff requested a hearing before an ALJ. In June 2021, ALJ
7 S. Pines held a telephonic hearing at which Plaintiff and a vocational expert
8 testified.10
9 In August 2021, the ALJ issued a written decision denying disability.11 As

10 to the sequential disability analysis, the ALJ found:
11 • Step one: Plaintiff had not engaged in substantial gainful activity since
12 September 3, 2019, the application date.
13 • Step two: Plaintiff had the following medically determinable severe
14 impairments: shoulder dysfunction, hiatal hernia, gastroesophageal
15 reflux disease, severe anxiety, and depression.12

16
17

18
8 AR 161, 179, 196–200, 225, 241.
19
9 AR 170.
20
10 AR 32–54.
21
11 AR 15–26.
22
12 AR 17.
23
1 • Step three: Plaintiff did not have an impairment or combination of
2 impairments that met or medically equaled the severity of one of the

3 listed impairments.
4 • RFC: Plaintiff had the RFC to perform light work, subject to the following
5 additional limitations:
6 [H]e can occasionally reach overhead and can frequently reach
in all other directions. He should not have concentrated
7 exposure to hazards. He is limited to simple, routine work, in
a workplace with no more than occasional workplace changes.
8 He can have occasional superficial contact with coworkers and
cannot have contact with the public.13
9

10 • Step four: Plaintiff had no past relevant work.
11 • Step five: considering Plaintiff’s RFC, age, education, and work history,
12 Plaintiff could perform work that existed in significant numbers in the
13 national economy, such as routing clerk, collator operator, and document
14 preparer.
15 The ALJ found Plaintiff’s medically determinable impairments could
16 reasonably be expected to produce some of the alleged symptoms but that his
17 statements concerning the intensity, persistence, and limiting effects of those
18 symptoms were “not entirely consistent with the medical evidence and other
19 evidence in the record.”14 The ALJ therefore found Plaintiff not disabled.
20

21
13 AR 19.
22
14 AR 20.
23
1 Plaintiff requested review of the ALJ’s decision by the Appeals Council,
2 which denied review. Plaintiff timely appealed to the Court.

3 III. Standard of Review
4 A district court’s review of the Commissioner’s final decision is limited.15
5 The Commissioner’s decision is set aside “only if it is not supported by substantial
6 evidence or is based on legal error.”16 Substantial evidence is “more than a mere
7 scintilla but less than a preponderance; it is such relevant evidence as a reasonable
8 mind might accept as adequate to support a conclusion.”17 Because it is the role of
9 the ALJ to weigh conflicting evidence, the Court upholds the ALJ’s findings “if they

10 are supported by inferences reasonably drawn from the record.”18 Further, the
11 Court may not reverse an ALJ decision due to a harmless error—one that “is
12 inconsequential to the ultimate nondisability determination.”19
13

14
15 42 U.S.C. § 405(g).
15
16 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012).
16
17 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)).
17
18 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). See also Lingenfelter v.
18
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must consider the entire
19
record as a whole, weighing both the evidence that supports and the evidence that
20
detracts from the Commissioner’s conclusion,” not simply the evidence cited by the
21
ALJ or the parties.) (cleaned up).
22
19 Molina, 674 F.3d at 1115 (cleaned up).
23
1 IV. Analysis
2 Plaintiff argues the ALJ erred by (1) failing to properly assess Plaintiff’s

3 fibromyalgia, (2) improperly rejecting Plaintiff’s symptom reports, and
4 (3) improperly rejecting certain medical opinions.20 For the reasons that follow, the
5 Court holds the ALJ reversibly erred by failing to address—or even mention—
6 fibromyalgia.
7 A. Step Two: Plaintiff establishes consequential error.
8 Plaintiff contends the ALJ erred by failing to consider fibromyalgia as a
9 severe impairment at step two.

10 1. Step-Two, Generally
11 At step two of the sequential process, the ALJ must determine whether the
12 claimant suffers from a “severe” impairment, i.e., one that significantly limits his
13 physical or mental ability to do basic work activities.21 This involves a two-step
14 process: (1) determining whether the claimant has a medically determinable
15 impairment (MDI) and, if so, (2) determining whether the impairment is severe.22

16

17
20 See generally ECF No. 10.
18
21 20 C.F.R. § 416.920(c).
19
22 20 C.F.R. § 416.920(a)(4)(ii). Objective medical evidence from an acceptable
20
medical source is required to establish an impairment; absent such evidence, a
21
claimant’s symptom reports, a diagnosis, a medical opinion, or even a combination
22
thereof, will not suffice. Id. § 416.921.
23
1 “The Social Security Regulations and Rulings, as well as case law applying
2 them, discuss the step two severity determination in terms of what is ‘not

3 severe.’”23 A medically determinable impairment is not severe if—and only if—the
4 “medical evidence establishes only a slight abnormality or a combination of slight
5 abnormalities which would have no more than a minimal effect on an individual’s
6 ability to work.”24 Therefore, an impairment is not severe if it has no more than a
7 minimal effect on a claimant’s physical or mental ability to do basic work
8 activities.25
9 “Great care should be exercised in applying the not severe impairment

10 concept,”26 as the step-two inquiry is simply “a de minimis screening device to
11 dispose of groundless claims.”27 “If an adjudicator is unable to determine clearly
12 the effect of an impairment or combination of impairments on the individual’s
13 ability to do basic work activities, the sequential evaluation process should not end
14 with the not severe evaluation step. Rather, it should be continued.”28
15

16
23 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).
17
24 Id.
18
25 20 C.F.R. § 404.921(a) (2010); see SSR 85-28 at *3, Titles II & XVI: Med.
19
Impairments That Are Not Severe (S.S.A. 1985) available at 1985 WL 56856.
20
26 SSR 85-28 at *4.
21
27 Smolen, 80 F.3d at 1290.
22
28 SSR 85-28 at *4.
23
1 2. Step Two & Fibromyalgia, Specifically
2 The Social Security Administration has recognized that cases involving

3 fibromyalgia warrant special considerations. This is because fibromyalgia (FM) is
4 both a “common syndrome” and “a complex medical condition characterized
5 primarily by widespread pain in the joints, muscles, tendons, or nearby soft
6 tissues.”29 Thus, where a person asserts disability based at least partly on
7 fibromyalgia, the ALJ “must properly consider the person’s symptoms when
8 [deciding] whether the person has an MDI of FM.”30 And, where a physician has
9 diagnosed it, the ALJ is instructed to find fibromyalgia as an MDI so long as the

10 record shows—as relevant here—(1) a history of widespread pain;31 (2) repeated
11 manifestations of 6 or more fibromyalgia signs, symptoms, or co-concurring
12 conditions; and (3) that other potential disorders have been ruled out.32
13
14
15

16

17
29 SSR 12-2p at *2, Titles II & XVI: Evaluation of Fibromyalgia (S.S.A. July 25,
18
2012) available at 2012 WL 3104869.
19
30 SSR 12-2p at *2.
20
31 “A history of widespread pain” is defined as pain in all quadrants of the body and
21
axial skeletal pain that has persisted for at least 3 months.
22
32 See SSR 12-2p at *3.
23
1 3. Plaintiff’s Evidence of Fibromyalgia
2 Plaintiff has been diagnosed with fibromyalgia, something he expressly

3 noted at the administrative hearing.33 Indeed, Plaintiff’s primary care physician
4 (PCP)—who appears to be specially trained regarding fibromyalgia34—made
5 medical decisions based on the diagnosis, including deciding against prescribing
6 Plaintiff narcotics to address his pain.35 Importantly, the record also contains
7 numerous treatment notes in which Plaintiff’s providers discuss objective medical
8 evidence indicative of fibromyalgia.36
9 //

10 /
11

12
33 See AR 459 (fibromyalgia diagnosis); AR 42–43 (Plaintiff testifying, “I do have –
13
I’m diagnosed with fibromyalgia they said, from the pain of the injuries.”).
14
34 See AR 546, 557 (listing “FM” under “specialty area/advanced training”).
15
35 See, e.g., AR 478 (Plaintiff’s PCP declining to prescribe narcotics for his pain
16
because “that is not the proper treatment for fibromyalgia.”); AR 572, 654 (treating
17
for fibromyalgia with duloxetine and methocarbamol). But cf. AR 760 (Plaintiff
18
reporting that narcotics previously provided “Complete relief” as to his pain.).
19
36 See, e.g., AR 460 (“Suspect fibromyalgia per PMR.”); AR 476 (treating 6 tender
20
points with lidocaine/bupivacaine injection); AR 478 (“Chronic pain of both
21
shoulders (Primary)—suspect related to fibromyalgia. Recent EMG normal.”);
22
AR 492 (“Diffuse muscle pain, possibility of fibromyalgia.”).
23
1 a. History of Widespread Pain & Other Symptoms
2 Plaintiff’s medical record supports at least a prima facia showing of a history

3 of widespread pain as well as repeated manifestations of 6 or more fibromyalgia
4 signs, symptoms, or co-concurring conditions. For example, Plaintiff has a
5 longstanding history of pain—particularly in his shoulders, back, neck, arms,
6 occipital region, trapezius, and abdominal region—including tenderness upon
7 palpation.37 Additionally, Plaintiff has repeatedly presented with other relevant
8 symptoms and conditions, such as depression, anxiety, cognitive and memory
9 problems, gastroesophageal reflux disease, numbness/paresthesia, headaches, and

10 sleep problems.38
11 Notably, the Administration has stated that fibromyalgia symptoms, signs,
12 and co-occurring conditions are “especially” noteworthy if they involve
13 “manifestations of fatigue, cognitive or memory problems (‘fibro fog’), waking
14 unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.”39 Other
15 relevant symptoms/co-concurring conditions include—but are not necessarily

16 limited to—muscle pain, muscle weakness, headache, pain or cramps in the
17 abdomen, numbness or tingling, dizziness, insomnia, constipation, pain in the
18
19

20
37 See, e.g., AR 409, 440–42, 461, 466, 473, 476, 488, 526–27, 566–67, 595,
21
38 See, e.g., AR 434–37, 447, 468, 473–74, 477–78, 488, 491, 566–67.
22
39 See SSR 12-2p.
23
1 upper abdomen, nausea, diarrhea, gastroesophageal reflux disorder, and blurred
2 vision.40

3 Plaintiff’s medical record contains reports and findings that are varied but
4 match every one of the symptoms/co-concurring conditions listed above, and
5 possibly others. So, while Plaintiff’s presentation could vary significantly from
6 visit to visit, there is nonetheless evidence of the requisite “repeated
7 manifestations” of fibromyalgia signs, symptoms, and/or co-concurring conditions.
8 Moreover, the Administration has specifically noted that fibromyalgia pain “may
9 fluctuate in intensity and may not always be present,” and that its other signs and

10 symptoms “may vary in severity over time and may even be absent on some
11 days.”41
12 b. Ruling Out Other Conditions
13 Finally, in trying to find what was causing Plaintiff’s assorted symptoms, his
14 doctors administered several tests, the results of which were apparently used to
15 exclude other disorders that might have otherwise explained the symptoms at

16 issue. Plaintiff’s providers performed x-rays, CT scans, electromyography (EMG),
17
18
19

20
40 SSR 12-2p at n.9, n.10.
21
41 SSR 12-2p at *2, *5. See also id. at *6 (“[T]he symptoms of FM can wax and wane
22
so that a person may have ‘bad days and good days.’”).
23
1 and nerve-conduction studies (NCS); all yielded unremarkable results.42 Such
2 results are consistent with fibromyalgia,43 yet the ALJ relied on these normal

3 results to discount both Plaintiff’s symptom reports and at least one medical
4 opinion.44
5 4. ALJ’s Lack of Analysis
6 Despite Plaintiff’s allegation of fibromyalgia, his diagnosis, and the
7 supporting evidence, the ALJ’s decision never addressed fibromyalgia as a
8 potential medically determinable impairment, let alone its severity or effects on
9 Plaintiff’s functioning. Indeed, the word “fibromyalgia” does not appear anywhere

10 in the ALJ’s decision.
11 In contrast to the ALJ’s approach, the Administration has recognized the
12 importance of analyzing the longitudinal record in cases where a claimant alleges
13 fibromyalgia as an impairment.45 As discussed, this record contains substantial
14

15
42 See, e.g., AR 357 (normal x-rays of shoulders); AR 490 (normal NCS/EMG
16
studies); AR 601 (normal CT of abdomen and pelvis).
17
43 See Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004).
18
44 See AR 21–22, 24.
19
45 SSR 12-2p at *3 (“When a person alleges FM, longitudinal records reflecting
20
ongoing medical evaluation and treatment from acceptable medical sources are
21
especially helpful in establishing both the existence and severity of the
22
impairment.”).
23
1 evidence—including objective medical evidence—supportive of finding fibromyalgia
2 as an impairment. Further, even if the ALJ thought there was insufficient

3 evidence to assess whether fibromyalgia qualified as a medically determinable
4 impairment and/or to determine its severity, the Administration has highlighted
5 that an ALJ may resolve such insufficiencies by arranging a consultative
6 examination, re-contacting healthcare providers, requesting additional records,
7 and/or asking the claimant and/or others for more information.46 The ALJ erred by
8 failing to address whether Plaintiff has fibromyalgia was a medically determinable
9 impairment.

10 5. Consequential Error
11 Because the ALJ never addressed the issue, substantial evidence does not
12 support his step-two conclusion that fibromyalgia is not one of Plaintiff’s severe
13 medically determinable impairments. An error at step two will be considered
14 harmful only if it consequentially impacted the ALJ’s analysis at other steps of the
15 sequential evaluation.47 Such is the case here.

16
17

18
46 SSR 12-2p at *4.
19
47 See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (“Assuming without
20
deciding that this omission constituted legal error [at step two], it could only have
21
prejudiced [the claimant] in step three (listing impairment determination) or step
22
five (RFC) because the other steps, including this one, were resolved in her favor.”).
23
1 The ALJ did not merely overlook fibromyalgia at step two; his decision
2 provides no indication that he considered fibromyalgia as a potential explanation

3 for the varied medical findings and symptom reports throughout Plaintiff’s record.
4 More, the ALJ repeatedly relied upon evidence that appears supportive of (or at
5 least consistent with) fibromyalgia when assessing—and discounting—other
6 evidence. Had the ALJ found at step two that Plaintiff had fibromyalgia as a
7 severe medically determinable impairment, it is likely that the ALJ would have
8 assessed an RFC with additional limitations. As such, the Court cannot find that
9 the ALJ’s omission was “inconsequential to the ultimate nondisability

10 determination.”48
11 B. Reversal: Further proceedings are required.
12 The ALJ’s error necessarily impacted nearly every aspect of his analysis,
13 including his assessments of the medical opinions and Plaintiff’s symptom reports.
14 Further, because fibromyalgia may result in mental symptoms as well as physical
15 symptoms, the ALJ’s failure to address it mandates remand for a complete

16 reevaluation of Plaintiff’s impairments—both physical and mental.49
17 Though this means that the Court need not reach Plaintiff’s remaining
18 assignments of error, to provide further guidance on remand, the Court briefly
19
20

21
48 See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).
22
49 See Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
23
1 addresses a few of the more-noteworthy issues it observed during its review of the
2 ALJ’s decision and the entirety of the record.

3 1. Dr. Domingo’s Medical Opinion
4 Plaintiff’s PCP, Eileen Domingo, DO, opined that Plaintiff could not perform
5 even sedentary work.50 The ALJ found that Dr. Domingo’s medical opinion was not
6 supported by her own objective findings and that it was inconsistent with the
7 unremarkable x-rays.51 However, both Dr. Domingo’s objective findings and the x-
8 rays appear to be fully consistent with fibromyalgia.52 And while Dr. Domingo
9 listed Plaintiff’s underlying conditions as “chronic pain [bilateral] shoulders” and

10 “chronic upper back pain,” she rendered her medical opinion approximately two
11 months before she diagnosed Plaintiff with fibromyalgia.53 On remand,
12 particularly if fibromyalgia is found to be a severe impairment, the ALJ should
13 take care in assessing whether the medical opinion is truly inconsistent with other
14 evidence.
15

16

17
50 AR 546, 557.
18
51 AR 24.
19
52 See Revels, 874 F.3d at 666; see also SSR 12-2p at *3 (explaining that the tests
20
used to rule-out other potential disorders “may include imaging”).
21
53 See AR 545 (Feb. 2020: physical functional evaluation); see also AR 459
22
(April 2020: fibromyalgia diagnosis).
23
1 The ALJ also found Dr. Domingo’s opinion was inconsistent with Plaintiffs
2 || statement that “he could lift up to twenty-five pounds.”54 But this finding relies on
3 ||a questionable interpretation of the statement at issue. In July 2020, Plaintiff
4 |\ filled out a function report, which included the below snippet.®5
5 Please explain now your ilnesses, injuries, or conditions affect each of the items you checked, (For
example, you can only lift [how many pounds], or you can only walk [how far].)
G Tice LET of%= Ae eounds a hele MeRe THe 10 niinckes
7
8 Making every reasonable inference in favor of the ALJ, the Court reads the
9 ||relevant writing as stating, “I can’t lift o[ve]lr 25 pounds... .” Even so, however,
10 || Plaintiffs July 2020 statement refers to the maximum he could lift at the time; he
11 || gave no indication as to how frequently he could lift such a weight. In contrast,
12 || Dr. Domingo’s February 2020 medical opinion accounted not only for Plaintiffs
13 || maximum lifting capacity, but also how much Plaintiff could lift frequently.*6
14 || Further, the record reflects that Plaintiff engaged in physical therapy, and the
15 || reports regarding his lifting capacity tended to improve from February 2020 to July
16
17
18
Wo
20 54 AR 24.

55 AR 246.

99 56 Dr. Domingo’s opinion defined “frequently” as performing the function for “2.5 to

23 6 hours out of an 8 hour day.” AR 546. See also AR 545 (“difficulty lifting >5 lbs.”).

ORDER - 16

1 2020.57 Plus, to the extent such limitations may be attributed to fibromyalgia,
2 such symptoms can generally be expected to wax and wane.58 Thus, when the

3 record is considered as a whole, Plaintiff’s single statement from July 2020 does
4 not amount to substantial evidence in support of rejecting Dr. Domingo’s February
5 2020 medical opinion.
6 2. Dr. Morgan’s Medical Opinion
7 Licensed psychologist, David T. Morgan, PhD, conducted a psychological
8 evaluation of Plaintiff in January 2020. Dr. Morgan diagnosed Plaintiff with panic
9 disorder and major depressive disorder, recurrent episode, moderate.59 Dr. Morgan

10 assessed Plaintiff with a marked limitation in the ability to “[p]erform activities
11

12
57 See AR 467, 547, 557 (Feb. 2020: “Patient states that he is unable to lift anything
13
more than 5 lb.”); AR 474 (March 2020: “Unable to lift anything more than 10 lb.”);
14
AR 499 (April 2020: physical therapist noting, “Flexion, ER and Scaption remain
15
weak at 4-/5, rhomboid strength improved from 3+/5 to 4-/5.”); AR 237 (June 2020:
16
Plaintiff’s girlfriend reporting that he could lift a maximum of 10 pounds.). Such
17
improvement is further consistent with Dr. Domingo’s opinion, as he said that with
18
proper treatment, the assessed limitations were expected to last only 1–3 months.
19
See AR 546, 557. The ALJ made no mention of this limited duration or its
20
significance, if any.
21
58 See SSR 12-2p at *2, *5, *6; Revels, 874 F.3d at 663.
22
59 AR 434.
23
1 within a schedule, maintain regular attendance, and be punctual within customary
2 tolerances without special supervision.”60 The ALJ, however, found Dr. Morgan’s

3 opinion “only somewhat persuasive,” explaining that “the other evidence of record
4 is not consistent with any marked limitations because a consultative examiner
5 noted that the claimant was able to focus and concentrate on questions and answer
6 appropriately and could follow a three-step command.”61
7 The ALJ’s analysis gives short shrift to the evidence of record suggesting
8 Plaintiff has issues with concentration and/or memory.62 Indeed, in the very record
9 to which the ALJ cites, the examiner also found, in relevant part, as follows:

10 The claimant’s ability to . . . understand, remember, and carry out
complex instructions is poor based on cognitive performance and his
11 current psychiatric concerns. . . .
12
13

14
60 AR 435.
15
61 AR 24.
16
62 See, e.g., AR 437 (Jan. 2020: Dr. Morgan finding Plaintiff’s recent and immediate
17
memory “challenged” and his concentration and abstract thoughts not within
18
normal limits); AR 450 (March 2020: psychiatric examiner noting test results
19
indicative of concentration problems); AR 176 (Nov. 2019: disability interviewer
20
noting Plaintiff demonstrated difficulty concentrating); AR 41 (June 2021: Plaintiff
21
testifying to difficulty paying attention); AR 201 (Jan. 2020: Plaintiff reporting
22
concentration problems); AR 246 (July 2020: same).
23
1 The claimant’s ability to sustain concentration and persist in work-
related activity at a reasonable pace, including regular attendance at
2 work and completing work without interruption is poor to fair . . . .63

3 The ALJ also seemingly ignored that the symptoms of many mental impairments
4 (as with those of fibromyalgia) may tend to wax and wane—meaning an isolated
5 “normal” finding will rarely suffice to undermine the informed opinion of a trained
6 medical expert.64
7 Most importantly, the ALJ failed to explain why any evidence of Plaintiff
8 demonstrating adequate focus/concentration would tend to undermine
9 Dr. Morgan’s medical opinion. Dr. Morgan focused on the effects of Plaintiff’s
10 depression and panic disorder.65 There is little, if anything, to suggest that the
11 marked limitation assessed by Dr. Morgan had anything to do with Plaintiff’s
12 concentration problems. Nor is there anything inherently inconsistent about
13

14
63 AR 451.
15
64 See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (Noting it is error to
16
reject evidence of a mental impairment “merely because symptoms wax and wane,”
17
and explaining, “Cycles of improvement and debilitating symptoms are a common
18
occurrence . . . .”); see also id. at 1018 (explaining that the data points chosen by an
19
ALJ “must in fact constitute examples of a broader development”).
20
65 See AR 434 (noting several associate symptoms, such as depressed mood,
21
anhedonia, fatigue, and recurrent panic attacks). But see id. (also including “poor
22
concentration” among the several symptoms associated with Plaintiff’s depression).
23
1 Plaintiff demonstrating adequate focus/concentration while also being markedly
2 limited in his ability to maintain regular attendance as a result of his depression

3 and panic disorder. The ALJ therefore failed to articulate any true inconsistency,
4 much less one that would warrant rejecting Dr. Morgan’s medical opinion.
5 V. Conclusion & Instructions on Remand
6 Because the ALJ’s failure to address fibromyalgia necessarily impacted other
7 aspects of the sequential analysis, the Court remands this case for the ALJ to
8 conduct the step-five evaluation anew. If necessary, the ALJ on remand shall
9 further develop the record, which may include (1) arranging for a medical expert

10 trained in fibromyalgia to conduct a consultative examination of Plaintiff, and/or
11 (2) calling a medical expert trained in fibromyalgia to present testimony.
12 On remand, the ALJ is to expressly consider fibromyalgia as a potential
13 medically determinable impairment and address how it weighs on his evaluation of
14 the medical evidence and Plaintiff’s symptom reports. The ALJ should account for
15 the fact that the signs and symptoms of fibromyalgia “may vary in severity over

16 time and may even be absent on some days.”66 The ALJ should also be mindful
17 that physical examinations showing mostly normal results are generally
18 considered “perfectly consistent with debilitating fibromyalgia.”67
19
20

21
66 SSR 12-2p at *5. See also Revels, 874 F.3d at 663.
22
67 See Revels, 874 F.3d at 666.
23
1 With respect to the medical-opinion evidence, the ALJ must meaningfully
2 articulate the supportability and consistency of each medical opinion. Reviewing

3 courts are “constrained to review the reasons the ALJ asserts.”68 If the ALJ
4 discounts a medical opinion based on a perceived inconsistency, the ALJ should
5 include sufficient explanation and citations to show (1) that an inconsistency truly
6 exists, and (2) why the inconsistency tends to undermine the medical opinion in
7 question.69 Similarly, if the ALJ again discounts Plaintiff’s symptom reports, the
8 ALJ must articulate clear and convincing reasons for doing so.70 General findings
9 are insufficient.71 The ALJ must identify what symptoms are being discounted and

10 what evidence undermines these symptoms.72
11

12
68 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Connett v.
13
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).
14
69 See 20 C.F.R. § 416.920c(a), (b)(2), (c)(2); see also Woods v. Kijakazi, 32 F.4th 785,
15
792 (9th Cir. 2022) (“Even under the new regulations, an ALJ cannot reject an
16
examining or treating doctor’s opinion as unsupported or inconsistent without
17
providing an explanation supported by substantial evidence.”).
18
70 Ghanim, 763 F.3d at 1163 (quoting Lingenfelter, 504 F.3d at 1036).
19
71 See Garrison, 759 F.3d at 1010.
20
72 Id. (quoting Lester, 81 F.3d at 834, and Thomas v. Barnhart, 278 F.3d 947, 958
21
(9th Cir. 2002) (requiring the ALJ to sufficiently explain why he discounted
22
claimant’s symptom claims)).
23
1 Throughout the sequential evaluation process, when relying upon examples
2 ||to support a finding, the ALJ should ensure that they amount to a fair
3 representation of the record as a whole. “While ALJs obviously must rely on
4 |}examples... the data points they choose must in fact constitute examples of a
5 || broader development... .’7° It is improper for an ALJ to “reach a conclusion first,
6 then attempt to justify it by ignoring competent evidence in the record that
7 suggests an opposite result.”
8 Accordingly, IT IS HEREBY ORDERED:
9 1. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff.
10 2. The ALJ’s nondisability decision is REVERSED, and this matter is
11 REMANDED to the Commissioner of Social Security for further
12 proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
18 3. The Clerk’s Office shall TERM Plaintiff's Opening Brief, ECF No. 10,
14 and the Commissioner’s Brief, ECF No. 15, and CLOSE the case.
15 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and
16 || provide copies to all counsel.
17 DATED this day of July 2023.
18 Mued Lew
19 EDWARD F. SHEA
Senior United States District Judge
20
Qo
99 73 Garrison v. Colvin, 759 F.3d 995, 1018 (9th Cir. 2014).

23 74 Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984).

ORDER - 22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10698335. Public record. Not legal advice.