Kanika Revels v. Nancy Berryhill

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KANIKA SHAVON REVELS, No. 15-16477

Plaintiff-Appellant,

D.C. No.

v. 2:14-cv-01623-

SRB

NANCY A. BERRYHILL, Acting

Commissioner Social Security,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted May 19, 2017

San Francisco, California

Filed October 26, 2017

Before: Andrew J. Kleinfeld and Kim McLane Wardlaw,

Circuit Judges, and Cathy Ann Bencivengo,* District Judge.

Opinion by Judge Wardlaw;

Dissent by Judge Kleinfeld

*

The Honorable Cathy Ann Bencivengo, United States District Judge

for the Southern District of California, sitting by designation.

2 REVELS V. BERRYHILL

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

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

REVELS V. BERRYHILL 3

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.

4 REVELS V. BERRYHILL

COUNSEL

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.

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

REVELS V. BERRYHILL 5

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

1

Revels does not challenge this finding on appeal.

6 REVELS V. BERRYHILL

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

REVELS V. BERRYHILL 7

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

8 REVELS V. BERRYHILL

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.

REVELS V. BERRYHILL 9

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

10 REVELS V. BERRYHILL

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:

REVELS V. BERRYHILL 11

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).

12 REVELS V. BERRYHILL

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.

REVELS V. BERRYHILL 13

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

2

Though Social Security Rulings do not have the force of law, they

“constitute Social Security Administration interpretations of the statute it

administers and of its own regulations.” Quang Van Han v. Bowen,

882 F.2d 1453, 1457 (9th Cir. 1989). Therefore, “we defer to Social

Security Rulings unless they are plainly erroneous or inconsistent with the

[Social Security] Act or regulations.” Id.

14 REVELS V. BERRYHILL

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 by a

fall caused by the pain and medication. Revels also

REVELS V. BERRYHILL 15

underwent treatment with a variety of doctors because of the

pain she suffered.

1. Treating providers.

Revels’ primary care provider, nurse practitioner

Jacqueline Mager,3 saw her for at least ten appointments

between 2010 and 2012 . During nine of those appointments,

Revels sought treatment for chronic pain she was

experiencing in her neck, back, feet, and hands. Mager

referred Revels to several specialists: Dr. Doust, a pain-

management specialist; Dr. Nolan, a rheumatologist; and Dr.

Ruggeri, a hand specialist. In addition to her own evaluations

of Revels, Mager received reports from the other doctors. On

March 6, 2012, Mager completed a check-the-box assessment

of Revels’ ability to perform work-related physical activities.

Mager indicated that, in an eight-hour workday, Revels could

sit less than two hours, stand or walk less than two hours, lift

less than twenty pounds, and carry less than fifteen pounds.

She also opined that Revels could only occasionally use her

hands and feet, and could only occasionally bend, crawl,

climb, reach, stoop, balance, crouch, or kneel. The form was

co-signed by a doctor in Mager’s clinic, Dr. Richard Wolfson.

Dr. Doust, a pain-management specialist, first saw Revels

on June 17, 2010. He treated her for the pain she was

experiencing throughout her body, and saw her at least ten

3

We may consider as part of the record on review the medical records

from Mager that were submitted to the Appeals Council. See Brewes v.

Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (“[W]e

have routinely considered evidence submitted for the first time to the

Appeals Council to determine whether, in light of the record as a whole,

the ALJ’s decision was supported by substantial evidence.”).

16 REVELS V. BERRYHILL

times in 2010 and 2011. During her visits with Dr. Doust,

Revels consistently described her pain as moderate or severe,

ranging from seven to ten on a ten-point scale, and repeatedly

explained that her pain significantly interfered with her daily

activities. Dr. Doust ordered MRIs of Revels’ spine, which

revealed a bulging disc in her back and degenerative facets in

her neck. On multiple visits, he also noted that she had a

positive straight-leg raise test, which indicates a lower-back

issue such as a herniated disc. Dr. Doust diagnosed Revels

with fibromyalgia, cervical and lumbosacral degeneration,

unspecified muscle pain and inflammation, cervical and

lumbar nerve compression, and nerve inflammation. To

alleviate her pain, he prescribed various pain relievers and

muscle relaxants: Valium, Flector, Soma, Vicodin, and

Percocet. In addition, he administered facet injections into

her neck and epidural steroid injections into her back.

Dr. Nolan, a rheumatologist, began treating Revels for

chronic pain on September 23, 2010. He saw her at least

twelve times between 2010 and 2012. Dr. Nolan found that

Revels’ joints were normal with no synovitis, and that there

were no limitations in her range of motion. However, during

the first appointment, he noted that Revels’ “history is quite

characteristic of fibromyalgia,” and throughout his treatment,

he consistently found that she had “tenderness to palpation in

the typical fibromyalgic tender points.” Dr. Nolan

administered eight tender-point examinations of Revels

during his treatment. During five of the eight examinations,

she had more than eleven out of eighteen tender points.

Based on those results, Dr. Nolan concluded that Revels met

the American College of Rheumatology’s 1990 diagnostic

criteria for fibromyalgia. To treat this condition, Dr. Nolan

prescribed Neurontin, Robaxin, Trazodone, Lyrica, Soma,

and Vicodin. To treat fibromyalgia flare-ups in Revels’

REVELS V. BERRYHILL 17

hands and wrists, Dr. Nolan administered several steroid

injections. He concluded that her pain would not respond to

surgical treatment.

On September 27, 2011, Dr. Nolan completed a check-

the-box assessment of Revels’ functional capacity. He

reported the following: Revels could sit for forty minutes at

a time, for a total of three hours per day; stand for one hour

at a time, for a total of three hours per day; and walk for

twenty minutes at a time, for a total of two hours per day. He

also indicated that she needed to recline for at least one hour

per day and alternate between sitting and standing positions

every forty minutes, and also required a ten-minute break

every sixty minutes. He reported that she could very

seldomly lift and carry up to ten pounds or climb stairs, bend,

stoop, crouch, kneel, or crawl. He noted that she could not

repetitively grasp, push, pull, or do fine manipulations with

her hands. If Revels was employed, Dr. Nolan estimated she

would miss work at least seventy-five percent of the time. On

September 10, 2012, he filled out another report with similar

findings. Dr. Nolan also completed five insurance forms in

2011 and 2012 certifying that Revels could not work.

Dr. Ruggeri, a hand specialist, began treating Revels on

February 8, 2011, after she experienced increased pain and

weakness in her hands and wrists. Dr. Ruggeri saw Revels

five times over a five-month period in 2011. In addition to

visually examining her hands, Dr. Ruggeri ordered X-rays, a

nerve conduction and velocity study, and an ultrasound. In

his treatment notes, he wrote that she had “normal appearing

hands” and “normal bony anatomy,” and he concluded that

she had “bilateral median neuritis.” To treat the condition, he

recommended vitamin B6, warm soaks and stretching, and

physical therapy. He also prescribed methylprednisone to

18 REVELS V. BERRYHILL

reduce inflammation and “encouraged [her] to go back to

some gainful work.” Though he noted that she was being

treated for fibromyalgia, he did not offer an opinion on

whether her hand pain was related to the condition.

Revels saw a number of other providers on a more limited

basis. Dr. William Stevens, a specialist in spinal issues,

examined her in August and September of 2011. Reviewing

MRIs and X-rays of Revels’ spine, he determined that she

had disc protrusion, stenosis, and radiculopathy. He

recommended physical therapy but did not believe that

surgery would resolve her pain. Dr. Glen Bair, an

orthopedist, treated Revels twice in 2011 for pain in her left

foot following an incident where she “stepped down wrong.”

He determined that X-rays of her feet appeared normal and

recommended stretching. Revels also went to physical

therapy.

2. Examining providers.

Dr. Keith Cunningham examined Revels once, on March

9, 2011, for the Arizona Department of Economic Security.

In his report, he recorded Revels’ complaints of spinal pain.

He wrote that, during the examination, Revels could “squat

and stand,” and could “walk, turn, and face [him] with a

normal gait.” He also recorded that she could “stand on each

leg independently.” He did not state whether she could do

these activities once or multiple times, or whether she could

do them for any prolonged period of time. However, he did

note that she walked “to and from the exam room slowly.”

He found that both her coordination and range of motion were

“normal,” and that a straight-leg raise test was negative.

Based on these findings, he concluded that she had “[c]hronic

back pain with preserved range of motion” and

REVELS V. BERRYHILL 19

“[f]ibromyalgia without typical trigger points on today’s

exam.” On a four-page form entitled “Medical Source

Statement of Ability to Do Work-Related Activities,” Dr.

Cunningham responded only to the first question, indicating

that Revels was not disabled. He did not respond to any of

the follow-up questions, such as what her lifting, carrying,

standing, and walking restrictions were.

Richard Randall, a physical therapist, examined Revels on

August 18, 2011, to evaluate her ability to perform work-

related physical activities. He prepared an eight-page report

after conducting a three-and-a-half-hour examination and

reviewing her medical records. He found that “she was

unable to perform sitting position manipulative activities” for

more than twenty-five minutes, and that she had “20 minutes

of maximum standing tolerance.” He also determined that

she “would not be able to exert up to 10 lbs. of force

occasionally and/or exert a negligible amount of force

frequently to lift, carry, push, pull, or otherwise move objects

including the human body.” He concluded that these

limitations rendered her unable to “maintain any sustained

functional work position in order to function at a rate

conducive to gainful employment.” Randall also conducted

various validity tests to determine whether the results were

reliable, and found that Revels’ reports of pain were accurate

and that she was providing “full physical effort” during the

exam.

3. Nonexamining physicians.

State agency physicians reviewed Revels’ medical records

at both the initial and reconsideration levels. At the initial

level, Dr. Alicia Blando reviewed Revels’ medical records.

In her report, she relied on Dr. Cunningham’s assessment that

20 REVELS V. BERRYHILL

Revels had fibromyalgia but did not show typical trigger

points on the day of his exam, and also on the nerve

conduction and velocity study ordered by Dr. Ruggeri that did

not reveal abnormalities. She noted that Revels’ complaints

of hand pain were contradicted by her ability to write by

hand, “at times, [in] small script,” on one of her Social

Security forms. She further noted that the medical records

showed no atrophy, and that Revels was able to take care of

five children and their daily needs. Dr. Blando assessed

Revels’ RFC: Revels could occasionally lift and/or carry

twenty pounds, and frequently lift and/or carry ten pounds;

she could stand and/or walk (with normal breaks) for six

hours in an eight-hour workday; and she could sit (with

normal breaks) for more than six hours in an eight-hour

workday. She also found that there was no limit to Revels’

ability to push and pull and that she could occasionally climb

ramps and stairs, stoop, kneel, crouch, and crawl, but could

never climb ladders, ropes, or scaffolds. She found that

Revels had no reaching, handling, fingering, or feeling

limitations.

At the reconsideration level, Dr. Debra Rowse reviewed

Revels’ medical records and largely agreed with Dr. Blando’s

RFC assessment. She found that there was “no medical

diagnosis for [Revels’] complaints of ‘pain everywhere.’”

She gave little weight to Dr. Nolan’s opinion because his

“exams do not meet the American College of

Rheumatology’s or SSA’s diagnostic criteria for

fibromyalgia.” Though her RFC assessment mostly matched

Dr. Blando’s, Dr. Rowse found that Revels could frequently

climb ramps and stairs and occasionally climb ladders, ropes,

and scaffolds.

REVELS V. BERRYHILL 21

4. Self-reporting and third-party evidence.

In a function report dated March 14, 2011, Revels

described her daily activities. In response to the prompt

“Describe what you do from the time you wake up until going

to bed,” she listed an array of activities: using the bathroom,

brushing her teeth, washing her face, taking her children to

school, washing dishes, doing laundry, sweeping, mopping,

vacuuming, going to a doctor’s appointment for herself or for

one of her children, visiting her mother and father, cooking,

shopping, getting gas, and feeding her dogs. She repeated

several times, however, that her ability to do those activities

depended on how she felt and “what [her] health permit[ted].”

She explained that she would do as much as possible “until

[she couldn’t] do it anymore.” She “didn’t finish” many of

the tasks she started, and often had to “take a break.” As she

put it, “I just do what I can in a day’s work before I get tired

and give up.”

Throughout the function report, Revels reiterated the

limitations on her daily activities. She stated that she had

difficulty dressing, bathing, caring for her hair, shaving,

feeding herself, and using the toilet. When she would prepare

a complete meal, it took “all day” because she needed to take

breaks. She was sometimes forced to split up grocery

shopping into two trips. She had limited ability to squat,

bend, stand, reach, kneel, sit, walk, or climb stairs, and also

had difficulty holding things. To assist with her pain, she

wore a back brace daily, a leg brace two to three times a

week, and a splint every night for her hands. She stated that

it took her four days to fill out the report.

Revels completed a second function report on September

28, 2011, in which she provided similar information. In

22 REVELS V. BERRYHILL

addition to the above, she stated that she could not walk more

than fifteen to twenty minutes without rest, and that her pain

interfered with her ability to sleep. She also described a

problem with burning herself while cooking because she

would drop pots and pans. Revels’ mother and father filled

out function reports describing many of the same issues.

Revels’ father reported that he often went over to Revels’

home to assist her with household chores.

B. Revels’ Testimony Before the ALJ.

At the hearing before the ALJ, Revels testified that she

had stopped working as a phlebotomist on January 21, 2011,

because she was in “extreme pain.” She had difficulty

kneeling down to assist her patients and had to use the

countertop to stabilize herself. She was concerned for her

patients’ safety. When asked where she experiences pain,

Revels responded, “All over.” She described her pain as

“aching pains, sharp pains in [her] back, sharp pains in [her]

wrist.” She also described numbness in her leg. In addition,

she explained that she had issues with her hands “clos[ing]

up” and “lock[ing]” on her. She testified that she no longer

had problems with her left foot, although it did get swollen at

times. She rated her pain, on average, as a seven out of ten,

noting that it could become worse at times. She stated that

her pain felt like “somebody[] [was] driving . . . a

screwdriver” into her.

Revels testified that she lived in a single-story home with

her grandparents, three daughters (ages 13, 16, and 19), and

three grandchildren (all younger than two years old). She

explained that her pain was always present and limited her

ability to do daily chores. She took her kids to school in the

morning but then had difficulty completing tasks at home,

REVELS V. BERRYHILL 23

such as laundry, mopping, and vacuuming. When asked how

long she could vacuum, she answered, “Maybe 10,

15 minutes tops.” She testified that she could do chores for

only twenty to thirty minutes before she needed to take a

break, and that she needed to lie down every day, usually for

about an hour on average. Though she previously had dogs,

she had to give them up six months before the hearing. She

also explained that she had problems driving and using her

cell phone because of her hand pain. She could not assist

with taking care of her grandchildren because she was not

able to hold them. She testified that she could stand for

twenty to thirty minutes and sit for thirty to forty-five

minutes, and also testified that she could walk no more than

one block and lift no more than ten pounds.

Revels explained that the hand injections she received

from Dr. Nolan “t[ook] the edge off” and provided limited

relief for a week. She relied on medication, however,

because she could “only get so many shots.” She explained

that the medications do not completely take away the pain

and that she was experiencing side effects, including

sleepiness and dizziness. She sometimes fell, and once had

to go to the emergency room after falling in the shower. She

explained that physical therapy had made her symptoms

worse, as did facet and epidural injections. She felt better

when sleeping, although she constantly had to change

positions.

C. Vocational Expert’s Testimony Before the ALJ.

The vocational expert (“VE”) testified about the work

capabilities of several hypothetical claimants. The ALJ first

asked about a claimant who could do light exertional work

with the following limitations: she could occasionally climb

24 REVELS V. BERRYHILL

ladders, ropes, and scaffolds; occasionally stoop, crouch,

kneel, and crawl; frequently balance and climb ramps or

stairs; and needed to avoid irritants such as fumes, odors,

dusts, and gases. The VE testified that such a claimant could

do Revels’ past relevant work as a medical assistant and

phlebotomist. The second hypothetical involved a claimant

who was identical to the first but had bilateral manipulative

limitations allowing her to frequently do activities such as

reaching overhead, handling, fingering, and feeling. The VE

testified that the hypothetical claimant could also work as a

medical assistant and phlebotomist. The third hypothetical

involved a claimant identical to the second, although the

manipulative limitations were greater, allowing her to only

occasionally do the highlighted activities. The VE testified

that the claimant would not be able to do Revels’ past

relevant work of medical assistant and phlebotomist.

However, this person could work as a case aid, furniture

rental clerk, and dressing room or tanning salon attendant. As

a final hypothetical, the ALJ asked about a claimant with the

same capabilities as in the second hypothetical, but who could

only do sedentary, rather than light, work. The VE testified

that the claimant could work as a receptionist.

Revels’ attorney also presented several hypotheticals. He

first presented a hypothetical based on Revels’ restrictions as

described by treating rheumatologist Dr. Nolan. The VE

testified that those limitations would preclude a claimant

from doing any full-time work. Her attorney also asked about

a claimant who needed to lie down for an average of one hour

during a workday. The VE testified that this would likely

preclude competitive employment because, though a typical

employee is allowed an hour of break time, that time is

broken up into two fifteen-minute breaks and one thirty-

minute break. Finally, Revels’ attorney asked about Revels’

REVELS V. BERRYHILL 25

limitations as described by physical therapist Richard

Randall. The VE testified that those limitations would

preclude Revels’ past work and any other work.

V.

We conclude that in determining the intensity,

persistence, and limiting effects of Revels’ symptoms, the

ALJ failed to provide legally sufficient reasons for rejecting

the opinions of Dr. Nolan, physical therapist Richard Randall,

and Nurse Practitioner Mager. He also erred in rejecting

Revels’ symptom testimony and the reports from her mother

and father. These errors arose from an apparent fundamental

misunderstanding of fibromyalgia. The ALJ failed to

properly analyze Revels’ fibromyalgia-related symptoms

pursuant to SSR 12-2P, issued in 2012, and our court’s 2004

opinion in Benecke v. Barnhart. This appears to be a

recurrent problem. See Weiskopf v. Berryhill, No. 15-16008,

2017 WL 2533445, at *2 (9th Cir. June 12, 2017) (“[T]he

ALJ did not properly analyze Weiskopf’s evidence of

fibromyalgia.”); Hamilton-Carneal v. Colvin, 670 F. App’x

613, 613 (9th Cir. 2016) (“The ALJ therefore erred by

discounting Hamilton-Carneal’s ‘subjective complaints and

limitations’ [resulting from fibromyalgia] as ‘simply out of

proportion to and not corroborated by the objective medical

evidence.’”); Payan v. Colvin, 672 F. App’x 732, 732 (9th

Cir. 2016) (“The ALJ failed to properly assess Payan’s

residual functional capacity (“RFC”) in light of Social

Security Ruling 12-2p.”); Benecke, 379 F.3d at 594 (“[T]he

ALJ erred in discounting the opinions of Benecke’s treating

physicians, relying on his disbelief of Benecke’s symptom

testimony as well as his misunderstanding of fibromyalgia.”).

In evaluating whether a claimant’s residual functional

capacity renders them disabled because of fibromyalgia, the

26 REVELS V. BERRYHILL

medical evidence must be construed in light of fibromyalgia’s

unique symptoms and diagnostic methods, as described in

SSR 12-2P and Benecke. The failure to do so is error, as is

true here.

A. The ALJ Erred by Giving The Medical Opinion of

Treating Physician Dr. Nolan “No Weight.”

Dr. Nolan treated Revels at least twelve times between

2010 and 2012, and was thus one of Revels’ treating

physicians. See 20 C.F.R. § 404.1527(a)(2). In determining

Revels’ RFC, the ALJ gave “[n]o weight” to Dr. Nolan’s

medical opinion of her symptoms and her functional

limitations.

Dr. Nolan’s opinion of Revels’ functional limitations was

contradicted by the findings of Dr. Rowse and Dr. Blando,

the nonexamining doctors from the state agency, and, to some

extent, the opinion of Dr. Ruggeri, the hand specialist.

Therefore, in rejecting Dr. Nolan’s opinion, the ALJ was

required to provide specific and legitimate reasons supported

by substantial evidence. He failed to do so.

The ALJ first stated that Dr. Nolan’s opinion was

“conclusory, with little explanation in how he determined the

claimant’s functional limitations.” However, the record

demonstrates that after each of his appointments with Revels,

Dr. Nolan provided a detailed account of the visit, including

Revels’ complaints of pain, the effectiveness of the

prescribed medication or injections, and his findings on the

current state of her fibromyalgia. Moreover, along with his

assessment of Revels’ functional limitations, he included a

two-page, single-spaced letter describing the basis for his

findings. He explained Revels’ medical history, her repeated

REVELS V. BERRYHILL 27

complaints of pain, the medical evidence of fibromyalgia, her

response to prescribed medications, and his analysis of other

doctors’ findings. Therefore, the ALJ’s dismissal of Dr.

Nolan’s opinion as conclusory is not supported by the record.

The ALJ next found that Dr. Nolan’s opinion was

“inconsistent with . . . [his] own treatment notes.” He stated

that Dr. Nolan could not have determined that Revels was

restricted in sitting, standing, or walking because his

treatment notes were “invariably focused on [Revels’]

experience of hand pain.” However, Dr. Nolan’s notes

consistently discuss Revels’ neck and back pain. Moreover,

Dr. Nolan was treating Revels for fibromyalgia, a condition

that involves “chronic pain throughout the body.” Benecke

379 F.3d at 590.

The ALJ further erred by relying on four visits during

which Dr. Nolan found that parts of Revels’ body were

“nontender” and that she had a “normal range of motion.”

Lacking certain tender points does not rule out fibromyalgia-

related symptoms, since a doctor need only find eleven out of

eighteen tender points to diagnose the condition. Moreover,

a person with fibromyalgia may have “muscle strength,

sensory functions, and reflexes [that] are normal.” Rollins,

261 F.3d at 863 (Ferguson, J., dissenting) (quoting Yunus,

supra, at 1260).

In addition, the ALJ rejected Dr. Nolan’s opinion because

it was supposedly not “supported by objective medical

evidence.” The ALJ pointed to several tests that yielded

normal results: a nerve conduction and velocity study of

Revels’ hands by Dr. Ruggeri, as well as wrist X-rays and

spine MRIs. He took issue with Dr. Nolan’s tender-point

examinations because they were “solely based on subjective

28 REVELS V. BERRYHILL

pain complaints,” and he also noted that, at multiple

appointments, Revels showed less than eleven out of eighteen

tender points. This analysis demonstrates a fundamental lack

of knowledge about fibromyalgia. Fibromyalgia is diagnosed

“entirely on the basis of patients’ reports of pain and other

symptoms,” and “there are no laboratory tests to confirm the

diagnosis.” Benecke, 379 F.3d at 590. Pursuant to SSR 12-

2P, tender-point examinations themselves constitute

“objective medical evidence” of fibromyalgia. Id. at *2–3.

Moreover, the symptoms of fibromyalgia “wax and wane,”

and a person may have “bad days and good days.” Id. at *6.

That is why the Social Security Administration recommends

looking at longitudinal records, see id., as Dr. Nolan did. At

five out of eight appointments, Revels had eleven or more

tender points, the cutoff for a diagnosis of fibromyalgia under

SSR 12-2P’s first set of criteria.4

Finally, the ALJ stated that Dr. Nolan’s findings were

inconsistent with Revels’ “own assertions and testimony.”

He pointed to Revels’ remark to Dr. Ruggeri that “she was

independent in daily activities,” as well as Revels’ testimony

that she did various household tasks. However, the ALJ

omitted highly relevant qualifications to this statement. For

example, when Revels described to Dr. Ruggeri that she was

independent, she also added that she “requires a longer time

to complete tasks,” and that her goal was to “return to normal

activities.” The record actually demonstrates that Dr. Nolan’s

4

The dissent defends the ALJ’s finding that Revels was only partially

credible and the ALJ’s dismissal of the opinions of Dr. Nolan, Randall,

Dr. Wolfson, and Nurse Practitioner Mager on the basis of contradictory

objective tests. In so doing, like the ALJ, the dissent fails to evaluate

Revels’ testimony and her medical record in light of fibromyalgia’s unique

symptoms and diagnostic methods, as described in SSR12-2P and

Benecke.

REVELS V. BERRYHILL 29

findings were consistent with Revels’ descriptions of her

daily activities. Revels repeatedly stated—to her doctors and

physical therapists, in her function reports, and at her

hearing—that she struggled to complete household tasks

because she needed to take numerous breaks. Revels’ ability

to complete some household tasks was perfectly consistent

with Dr. Nolan’s opinion of Revels’ limited functional

capacity. Dr. Nolan did not find that Revels was bedridden.

He found that she needed significant breaks when sitting or

standing, and needed to recline for at least an hour each day.

The only remaining reason the ALJ gave for rejecting Dr.

Nolan’s opinion was the contradictory opinions of the state

doctors.5 Both doctors found that Revels’ functional

limitations were significantly less than those found by Dr.

Nolan. However, the opinions of nonexamining doctors

“cannot by [themselves] constitute substantial evidence that

justifies the rejection of the opinion of either an examining

physician or a treating physician.” Lester, 81 F.3d at 831

(emphasis in original).

Even if the ALJ had pointed to substantial evidence

supporting the decision not to give Dr. Nolan’s opinion

controlling weight, he failed to explain why Dr. Nolan’s

opinion deserved “no weight” at all. When a treating

provider’s opinion is not entitled to “controlling weight”

because of substantial contradictory evidence, that opinion is

5

The ALJ also stated that Dr. Nolan’s opinion was contradicted by

Dr. Cunningham and “other treating doctors,” but he did not explain what

he meant. Dr. Cunningham did not provide a functional capacity

evaluation, so it is unclear what discrepancy the ALJ might have been

referring to. And it is similarly unclear what “other treating doctors” the

ALJ was referring to.

30 REVELS V. BERRYHILL

still “entitled to deference” based on factors such as the

length and nature of the treatment relationship. Orn,

495 F.3d at 632–33; see also 20 C.F.R. § 404.1527(c). Here,

there were strong reasons to defer to Dr. Nolan’s opinion. Dr.

Nolan had the most extensive treatment relationship with

Revels. Moreover, a rheumatologist’s specialized knowledge

is “particularly important with respect to a disease such as

fibromyalgia that is poorly understood within much of the

medical community.” Benecke, 379 F.3d at 594 n.4. As a

result, we have previously given a rheumatologist’s opinion

of a claimant’s fibromyalgia “greater weight than those of the

other physicians because it is an opinion of a specialist about

medical issues related to his or her area of specialty.” Id.

(internal quotation marks omitted).

The ALJ did not provide “specific and legitimate reasons”

to reject Dr. Nolan’s opinion, and he failed to follow the

appropriate methodology for weighting a treating physician’s

medical opinion. Accordingly, we conclude that the ALJ

erred in giving Dr. Nolan’s opinion no weight. The ALJ

should have instead found it to be controlling as to the

intensity, persistence, and limiting effects of Revels’

fibromyalgia. Because the VE 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 “alone establishes that [Revels] is entitled to

benefits.” Lingenfelter, 504 F.3d at 1041 n.12 (emphasis in

original).

B. The Agency Erred by Failing to Credit the Opinion of

Nurse Practitioner Mager.

Mager is a nurse practitioner who saw Revels at least ten

times between 2010 and 2012. She assisted in treating

REVELS V. BERRYHILL 31

Revels’ chronic pain and referred her to pain-management

specialist Dr. Doust, rheumatologist Dr. Nolan, and hand

specialist Dr. Ruggeri. She consistently saw Revels during

her pain treatment and received reports from the specialists.

She filled out a check-the-box assessment of Revels’

functional limitations which, like Dr. Nolan’s assessment,

indicated severe restrictions on Revels’ abilities. That form

was not submitted until after the ALJ’s decision, but the

Appeals Council considered it and made it part of the record.

Though Mager’s opinion was submitted after the ALJ’s

decision, we may consider it in determining whether the

ALJ’s decision was supported by substantial evidence. See

Brewes, 682 F.3d at 1163. Also, though Mager is not an

“acceptable medical source,” she is an “other source” and

there are strong reasons to assign weight to her opinion.

Mager was a treating source who examined Revels at least ten

times over two years. See 20 C.F.R. § 404.1527(c)(1)–(2), (f)

(explaining that an opinion from a source who has examined

the claimant and had a longer treatment relationship should

generally be given greater weight). Moreover, Mager was in

a unique position as a primary care provider, as she received

reports from specialists and had an overview of Revels’

conditions. See id. § 404.1527(c)(2)(ii) (in determining the

weight that should be given to an opinion, the ALJ should

look at “the treatment the source has provided and . . . the

kinds and extent of examinations and testing the source has

performed or ordered from specialists”). Moreover, her

check-the-box assessment was co-signed by an acceptable

medical source in her clinic, Dr. Richard Wolfson. Mager’s

opinion thus provides additional support to our conclusion

that the ALJ’s rejection of Dr. Nolan’s opinion was not

supported by substantial evidence.

32 REVELS V. BERRYHILL

C. The ALJ Erred by Failing to State Germane Reasons

for Rejecting Physical Therapist Randall’s Functional

Capacity Evaluation.

Randall is a physical therapist who saw Revels once at the

request of her attorney. He conducted a functional capacity

evaluation and afterward prepared a nine-page report on his

findings. He found that Revels had limitations similar to

those found by Dr. Nolan and Mager. Even though Randall’s

opinion is not entitled to the same deference as “acceptable

medical sources,” the ALJ erroneously afforded his opinion

no weight by failing to provide germane reasons for its

rejection. Molina, 674 F.3d 1111.

First, the ALJ stated that Randall’s opinion of Revels’

limitations was “far beyond what is supported by objective

testing.” Again, this reasoning was based on a flawed

understanding of fibromyalgia, which cannot be diagnosed by

what the ALJ considered to be “objective testing.” Second,

the ALJ stated that Randall’s opinion was inconsistent with

those of Dr. Cunningham, Dr. Rowse, Dr. Blando, and Dr.

Ruggeri. However, Dr. Cunningham never provided an

evaluation of Revels’ functional capacity, and though Dr.

Ruggeri “encouraged” Revels to go back to work, he never

opined on her specific functional limitations. While the ALJ

is correct that Randall’s opinion was inconsistent with the

opinions of Dr. Rowse and Dr. Blando—neither of whom

examined Revels—he failed to note that it was consistent

with that of her treating rheumatologist, Dr. Nolan.

Moreover, though Randall only examined Revels once, he

examined her for three-and-a-half hours and extensively

reviewed the medical records from other doctors, ultimately

producing a nine-page report.

REVELS V. BERRYHILL 33

D. The ALJ Did Not Provide Clear and Convincing Reasons

to Reject Revels’ Testimony.

Revels testified at length about her symptoms and her

functional limitations. She also completed two written

function reports and submitted third-party function reports

from her mother and father. The ALJ found that Revels’

“medically determinable impairments could reasonably be

expected to cause the alleged symptoms,” and he did not

make a finding of malingering. Nevertheless, he concluded

that her symptom testimony was “not entirely credible to the

extent [it was] inconsistent with the . . . residual functional

capacity assessment.” He also assigned little weight to the

third-party reports from Revels’ mother and father.

The ALJ took a backward approach to determining

Revels’ credibility. He found that Revels’ testimony was not

credible “to the extent [it was] inconsistent with the . . .

[RFC].” However, an ALJ must take into account a

claimant’s symptom testimony when determining the RFC.

Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017);

Trevizo v. Berryhill, 862 F.3d 987, 1000 n.6 (9th Cir. 2017).

To determine the RFC first and then assess the claimant’s

testimony is to “put[] the cart before the horse.” Laborin,

867 F.3d at 1154. The ALJ’s approach is “inconsistent with

the Social Security Act and should not be used in disability

decisions.” Id. at 1153; see also Trevizo, 862 F.3d at 1000

n.6. Though this may not itself be reversible error, when

taken together with the ALJ’s failure to provide “clear and

convincing” reasons for rejecting Revels’ testimony, we

cannot conclude anything other than that the ALJ’s failure to

credit Revels’ testimony was error. Like his rejection of the

opinions of Dr. Nolan and physical therapist Randall, the ALJ

34 REVELS V. BERRYHILL

did not consider Revels’ testimony in light of her

fibromyalgia diagnosis.

The ALJ stated that Revels’ testimony was undercut by

the lack of “objective findings” supporting her claims of

severe pain. He highlighted several examinations that had

mostly normal results, such as an X-ray and MRIs of Revels’

neck and back, as well as the nerve conduction and velocity

study of her hands. He also cited medical records showing

that, at several doctor’s appointments, Revels exhibited

normal muscle strength, tone, and stability, as well as a

normal range of motion. This reasoning was similar to his

reasoning for rejecting Dr. Nolan’s opinion, and was similarly

erroneous. As described above, the examination results cited

by the ALJ are perfectly consistent with debilitating

fibromyalgia. The condition is diagnosed “entirely on the

basis of patients’ reports of pain and other symptoms,” and

“there are no laboratory tests to confirm the diagnosis.”

Benecke, 379 F.3d at 590. Indeed, fibromyalgia is diagnosed,

in part, by evidence showing that another condition does not

account for a patient’s symptoms. SSR 12-2P, at *3.

The ALJ also noted that Dr. Ruggeri had encouraged

Revels “to go back to some gainful work,” and that Dr. Bair

had asserted that Revels’ feet were “fine.” Neither doctor’s

opinion provided a legitimate reason for rejecting Revels’

testimony. Dr. Ruggeri’s offhand recommendation that

Revels go back to work was based on his examination of her

hands, and Dr. Bair’s evaluation only pertained to her feet.

Neither evaluated Revels’ fibromyalgia. Therefore, their

opinions merited much less weight than Dr. Nolan’s, who

specifically treated Revels for fibromyalgia, and whose

medical opinion matched Revels’ testimony. See 20 C.F.R.

§ 404.1527(c)(2)(ii) (“For example, if your ophthalmologist

REVELS V. BERRYHILL 35

notices that you have complained of neck pain during your

eye examinations, we will consider his or her medical opinion

with respect to your neck pain, but we will give it less weight

than that of another physician who has treated you for the

neck pain.”).

The ALJ also erred in rejecting Revels’ testimony on

account of the supposedly “conservative” treatment she

received. Any evaluation of the aggressiveness of a treatment

regimen must take into account the condition being treated.

Revels received facet and epidural injections in her neck and

back, as well as steroid injections in her hands. She was

prescribed a variety of medications for her pain, including

Valium, Vlector, Soma, Vicodin, Percocet, Neurontin,

Robaxin, Trazodone, and Lyrica. The ALJ provided no

explanation why he deemed this treatment “conservative” for

fibromyalgia. We have previously “doubt[ed] that epidural

steroid shots to the neck and lower back qualify as

‘conservative’ medical treatment.” Garrison, 759 F.3d at

1015 n.20. Further, Revels’ treatment was significantly more

aggressive than the type of fibromyalgia treatment we found

to be conservative in Rollins v. Massanari.6

6

In Rollins, we found the treatment conservative only after noting that

the doctor had primarily recommended that the petitioner “avoid strenuous

activities.” 261 F.3d at 856. Moreover, Rollins’ analytical approach to

fibromyalgia disability claims is now questionable. We decided that case

eleven years before SSR 12-2P, when it was still unclear whether

fibromyalgia could “constitute a qualifying ‘severe impairment’ under the

Act.” Id. at 857. We only assumed, for the purposes of the opinion, that

it was. In light of SSR 12-2P and our opinion in Benecke, 379 F.3d 587,

fibromyalgia is now unquestionably a qualifying impairment.

Additionally, we did not acknowledge in Rollins that fibromyalgia

symptoms wax and wane, and that a person suffering from the disease

may not display symptoms ordinarily associated with joint and muscle

pain. Our failure to do so was contrary to the more-developed, later

36 REVELS V. BERRYHILL

Finally, the ALJ erred in finding that there was “wide

disparity” between Revels’ symptom testimony and her

reports of her daily activities. Though inconsistent daily

activities may provide a justification for rejecting symptom

testimony, “the mere fact that a plaintiff has carried on certain

daily activities . . . does not in any way detract from her

credibility as to her overall disability.” Benecke, 379 F.3d at

594 (alteration in original) (quoting Vertigan v. Halter,

260 F.3d 1044, 1050 (9th Cir. 2001)). A claimant “does not

need to be utterly incapacitated in order to be disabled.” Id.

(quoting Vertigan, 260 F.3d at 1050). The ALJ relied on

Revels’ function report in which she listed a number of

activities she might do in a day: using the bathroom, brushing

her teeth, washing her face, taking her children to school,

washing dishes, doing laundry, sweeping, mopping,

vacuuming, going to a doctor’s appointment for her or for one

of her children, visiting her mother and father, cooking,

shopping, getting gas, and feeding her dogs. He failed to

acknowledge that, over and over in the same report, Revels

explained that she could complete only some of the tasks in

a single day and regularly needed to take breaks—which was

consistent with her symptom testimony. Further, Revels’

description of her daily activities differed in large measure

from the petitioner’s in Rollins. There, we rejected the

petitioner’s testimony regarding her fibromyalgia-related

symptoms because she “was equivocal about how regularly

she was able to keep up with all of [her] activities.” 261 F.3d

at 857. Revels, however, repeatedly and consistently

knowledge about fibromyalgia set forth in SSR 12-2P and Benecke, both

of which recognize that an ALJ must evaluate the record in light of the

unique characteristics of fibromyalgia.

REVELS V. BERRYHILL 37

described the severe limitations on her ability to complete

daily activities.7

Consequently, the ALJ failed to meet the high bar for

rejecting a claimant’s symptom testimony. For similar

reasons, he erred in assigning little weight to the reports

submitted by Revels’ mother and father. He found that their

reports were inconsistent with objective medical evidence and

with Revels’ description of her daily activities. As described

above, that reasoning was erroneous, and not only does it not

constitute “clear and convincing” evidence for rejecting

Revels’ testimony, it does not constitute “germane” reasons

for rejecting the third-party function reports of Revels’

mother and father.

VI.

“The decision whether to remand a case for additional

evidence, or simply to award benefits[,] is within the

discretion of the court.” Sprague v. Bowen, 812 F.2d 1226,

1232 (9th Cir. 1987) (remanding for determination of benefits

where the panel was “convinced that substantial evidence

does not support the Secretary’s decision, and because no

legitimate reasons were advanced to justify disregard of the

treating physician’s opinion”). “[I]f additional proceedings

can remedy defects in the original administrative proceeding,

a social security case should be remanded” for further

proceedings. Garrison, 759 F.3d at 1019 (quoting Lewin v.

7

The ALJ also stated that Revels was not credible because she

inconsistently reported her marijuana usage and her pain levels. On

appeal, the Commissioner does not defend either as a valid ground for

rejecting Revels’ symptom testimony, and thus we do not address them

here.

38 REVELS V. BERRYHILL

Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). Generally,

however, where “(1) the record has been fully developed and

further administrative proceedings would serve no useful

purpose; (2) the ALJ has failed to provide legally sufficient

reasons for rejecting evidence, whether claimant testimony or

medical opinion; and (3) if the improperly discredited

evidence were credited as true, the ALJ would be required to

find the claimant disabled on remand,” id. at 1020, we

remand for an award of benefits.8

We find that each of these credit-as-true factors is

satisfied and that remand for the calculation and award of

benefits is warranted. First, the record has been fully

developed. It includes treatment notes from over fifty

medical visits from 2010 to 2012, as well as additional

medical records stretching back to 2002. It contains

functional capacity assessments from two treating providers

and two nonexamining doctors. It also includes Revels’

testimony about the severity of her symptoms, two function

reports filled out by Revels, and function reports filled out by

her mother and her father. Most importantly, the VE was

asked hypotheticals about the ability of an individual with

Revels’ physical limitations as described by Dr. Nolan, and

testified that those limitations were inconsistent “with the

performance of [Revels’] past work or any other full-time

work.”

The other two credit-as-true factors are also satisfied. The

ALJ failed to provide legally sufficient reasons for rejecting

8

In rare instances, though each of the credit-as-true factors is met, the

record as a whole leaves serious doubt as to whether the claimant is

actually disabled, see Garrison, 759 F.3d at 1021, in which case we

remand for further development of the record.

REVELS V. BERRYHILL 39

the medical opinion of Revels’ treating rheumatologist and

for rejecting Revels’ testimony about her symptoms. He also

erred in rejecting the medical opinion of Revels’ physical

therapist and in rejecting the lay opinions of Revels’ mother

and father. If credited as true, Dr. Nolan’s opinion

establishes that Revels is disabled, because the VE testified

that someone with the limitations established by Dr. Nolan

could not work. Further, there is no “serious doubt” that,

based on “the record as a whole,” Revels is in fact disabled.

Her impairment of fibromyalgia has been repeatedly

substantiated by tender-point examinations, which SSR 12-2P

establishes as proper evidence of the condition. Moreover,

Revels’ testimony, her function reports, and the treatment

notes from her doctors consistently show that she was

suffering from severe pain.9

We therefore reverse the judgment of the district court

with instructions to remand to the ALJ for the calculation and

award of benefits.

REVERSED; REMANDED WITH INSTRUCTIONS.

9

Because we find that the record on appeal establishes Revels’

disability and functional limitations, we need not reach Revels’ contention

that the Appeals Council erred in failing to include additional evidence in

the administrative record.

40 REVELS V. BERRYHILL

KLEINFELD, Senior Circuit Judge, dissenting:

I respectfully dissent. The ALJ’s credibility

determination was adequately supported.1 Even if we might

disagree with his finding that Revels could perform light

work, it was nevertheless supported by “substantial

evidence.”2

I.

This case does not turn on whether Revels has

fibromyalgia. Instead, the issue is Revels’ “residual

functional capacity.” Based on the evidence in the record, the

ALJ found that Revels could perform light work. In so doing,

he found that Revels’ “statements concerning the intensity,

persistence and limiting effects” of her fibromyalgia were

“not entirely credible” because they were inconsistent with

medical evidence and her own testimony.

According to the majority, this was incorrect because

Social Security Ruling 12-2p3 says that fibromyalgia is

actually characterized by inconsistent symptoms. But the

1

See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th

Cir. 1999); see also Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1225

(9th Cir. 2010) (upholding a partial credibility finding because of

discrepancies in the claimant’s testimony).

2

See Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)

(“Substantial evidence means more than a mere scintilla, but less than a

preponderance.”) (citations and quotation marks omitted).

3

77 Fed. Reg. 43,640 (July 25, 2012).

REVELS V. BERRYHILL 41

majority errs because it reads Ruling 12-2p too broadly and

because it gives short shrift to Rollins v. Massanari.4

A. Ruling 12-2p provides extensive guidance about what

constitutes a fibromyalgia diagnosis.5 It notes that

fibromyalgia symptoms often come and go. But when it

comes to the residual functional capacity of a person with

fibromyalgia, this is what Ruling 12-2p says: “For a person

with [fibromyalgia], we will consider a longitudinal record

whenever possible because the symptoms of [fibromyalgia]

can wax and wane so that a person may have ‘bad days and

good days.’”6 And when it comes to evaluating “the intensity

and persistence” of a person’s symptoms, Ruling 12-2p says

that the ALJ considers “all of the evidence in the case record”

if the claimant’s testimony is not backed up by “objective

medical evidence.”7

The ALJ’s determination that Revels can perform light

work is consistent with Ruling 12-2p. The record spans a

thousand pages and describes multiple doctors treating and

examining Revels between 2010 and 2012. That counts as

a “longitudinal record.” Based on that record, the ALJ

found Revels to be only partially credible because

objective tests—like Dr. Ruggeri’s analysis of her hand

functioning—contradicted Revels’ own function reports.

That is not the same as saying that Revels is only partially

4

261 F.3d 853 (9th Cir. 2001).

5

See 77 Fed. Reg. at 43,641–43.

6

Id. at 43,644.

7

Id. at 43,643.

42 REVELS V. BERRYHILL

credible because her symptoms were inconsistent over time.

Revels’ symptoms may “wax and wane,” but having good

days and bad days does not contradict the ALJ’s findings that

she had enough capacity to perform light work.

B. Not only is the ALJ’s credibility determination

consistent with Ruling 12-2p, but it is also supported by

precedent.

In Rollins v. Massanari, we assumed without deciding

that Rollins had a severe impairment of fibromyalgia.8 We

then held that when determining functional capacity, Rollins’

subjective pain testimony could be discounted by her

“testimony about her daily activities, such as attending to the

needs of her two young children, cooking, housekeeping,

laundry, shopping, attending therapy and various other

meetings every week, and so forth.”9 This was despite the

fact that Rollins was “somewhat equivocal about how

regularly she was able to keep up with all of these

activities.”10

Rollins controls here. Revels believes that her pain and

need for breaks during daily activities means that she lacks

the capacity for light work. But even though she may have to

take breaks in her chores, it was permissible for the ALJ to

find that Revels’ activity level is inconsistent with the severe

pain that she describes. Revels describes her pain as being a

constant 7 out of 10, sometimes increasing to 8, 9, or even

8

261 F.3d at 857.

9

Id.

10

Id.

REVELS V. BERRYHILL 43

“greater than 10.” To a doctor, that means that Revels

experienced constant “severe” pain, sometimes increasing to

the “worst pain imaginable.”11 It was reasonable to infer that

someone in that much pain cannot clean a house or take care

of infants, even with breaks. This inference is supported by

Dr. Rowse’s statement that Revels’ claims were inconsistent

with her activities. The ALJ discussed Revels’

inconsistencies in his decision, thus giving compelling

reasons for partially discounting her testimony.

Despite the majority’s statement to the contrary, Rollins’s

approach is not “questionable.” It is irrelevant that Rollins

was decided before Ruling 12-2p was issued. Even if Ruling

12-2p had been in effect, Rollins would have been decided

the same way: Rollins would have met the requirements for

a fibromyalgia diagnosis, but her residual functional capacity

would have shown that she could still perform some work.

II.

Just as the ALJ properly found that Revels was not wholly

credible, he also permissibly dismissed medical testimony

supporting Revels’ position.

Revels’ examining physician, Dr. Nolan, provided only

conclusory reasons for his findings, and almost all of his

opinions were check-box forms. His description of Revels’

medical issues was also contradicted by objective medical

11

Harald Breivik et al., Assessment of pain, 101 BRIT. J. OF

ANAESTHESIA 17, 18 (2008); see CHRIS PASERO & MARGO MCCAFFERY,

PAIN ASSESSMENT AND PHARMACOLOGIC MANAGEMENT 56 (2011);

Amelia Williamson & Barbara Hoggart, Pain: a review of three commonly

used pain rating scales, 14 J. CLINICAL NURSING 798, 799–800 (2005).

44 REVELS V. BERRYHILL

evidence and Revels’ own activity levels. And “when

evaluating conflicting medical opinions, an ALJ need not

accept the opinion of a doctor if that opinion is brief,

conclusory, and inadequately supported by clinical

findings.”12

The findings of Revels’ physical trainer, Richard Randall,

were not supported by objective medical tests, and they were

contradicted by Dr. Ruggeri’s opinion. Also, Randall is not

an “acceptable medical source” under the Social Security

regulations,13 so he is not entitled to the same deference that

a physician receives.14

The questionnaire signed by Dr. Wolfson and Nurse

Practitioner Jacqueline Mager was a check-box form that is

contradicted by objective medical evidence and Revels’

ability to perform tasks like cleaning and caring for her

grandchildren. Because Ms. Mager is a nurse practitioner,

her opinion also receives less deference than a physician’s (at

least to the extent she did not work under Dr. Wolfson’s

“close supervision”).15

12

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); see also

Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (holding that an ALJ

“permissibly rejected” three psychological evaluations “because they were

check-off reports that did not contain any explanation of the bases of their

conclusions”).

13

71 Fed. Reg. 45,593, 45,594 (Aug. 9, 2006); see also 82 Fed. Reg.

5,844, 5,846–47 (Jan. 18, 2017).

14

Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

15

Id.; 71 Fed. Reg. at 45,594. The new rule defining nurse

practitioners as “acceptable” sources had not yet taken effect. See 82 Fed.

Reg. at 5,844, 5,846.

REVELS V. BERRYHILL 45

The ALJ therefore gave each of these testimonies its due.

III.

Revels evidently has fibromyalgia. She doubtless feels

pain or discomfort much of the time. Whether its severity

prevents her from working is a question different from

whether she has the disease. Medical conditions affect

different people differently, and just because someone says

they feel excruciating pain does not make it so. In this

appeal, Revels does not establish that the ALJ’s conclusions

were unsupported by substantial evidence. We should have

affirmed the ALJ’s decision.

Therefore, I respectfully dissent.