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Ostalaza v. Astrue

September 30, 2009


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her application for Supplemental Security Income benefits ("SSI"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred in: (1) failing to follow the directives of Social Security Ruling 99-2p in evaluating Plaintiff's fibromyalgia; (2) failing to properly analyze the effect of Plaintiff's obesity on her other impairments, as required under SSR 02-1p; (3) improperly rejecting the treating physicians' opinions; (4) improperly discrediting the testimony of Plaintiff and of her daughter, Yolindita Abbott; and (5) failing to obtain testimony from a vocational expert. (Joint Stip. at 16.*fn1 ) For the reasons explained below, the Court concludes that the ALJ did err and that remand is warranted for further consideration.


On April 9, 2004, Plaintiff applied for SSI, claiming that she had been disabled since March 3, 1992, due to "osteoarthritis, knee, fibromyalgia, shortness of breath, ulcer, chipped tailbone, osteoporosis, depression, back, muscle spasm, tail bone, asthma." (Administrative Record ("AR") 49, 67-69.)*fn2 The Agency denied the application initially and on reconsideration. (AR 49-60.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 34, 61.) On May 17, 2007, Plaintiff appeared at the hearing without counsel and testified. (AR 382-413.) On July 16, 2007, the ALJ issued a decision denying the application. (AR 15-27.) Following denial of review, (AR 4-6), Plaintiff filed the instant action.


A. Application of Social Security Ruling 99-2p

Plaintiff contends that the ALJ failed to follow the directives of Social Security Ruling ("SSR") 99-2p. (Joint Stip. at 32-37.)*fn3

Plaintiff argues that, under SSR 99-2p, the ALJ could not reject the functional limitations opined by Plaintiff's treating physician, Dr. Bora Kim, without first recontacting Dr. Kim for "further clarification of the severity of her fibromyalgia and what functional restrictions would reasonably be expected to result therefrom[.]" (Joint Stip. at 35.)*fn4 For the following reasons, the Court disagrees.

SSR 99-2p, which ostensibly addresses the evaluation of cases involving chronic fatigue syndrome but also appears to be applicable to cases involving fibromyalgia, provides guidance for "developing and evaluating [disability] claims . . . on the basis of Chronic Fatigue Syndrome (CFS)[.]" The ruling sets forth a definition of CFS and provides guidelines to aid the adjudicator in determining whether CFS is a medically-determinable impairment at step two of the sequential disability analysis. The ruling also states that "[i]f the adjudicator finds that the evidence is inadequate to determine whether the individual is disabled . . . she must first recontact the individual's treating or other medical source(s)" before arranging for a consultative examination to obtain additional information.

SSR 99-2p, and case authority, suggests that the most common issue in CFS or fibromyalgia cases is establishing whether a medically determinable impairment exists in the first place. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) (noting that "[f]ibromyalgia's cause is unknown, there is no cure, and it is poorly-understood within much of the medical community", and that "to date there are no laboratory tests to confirm the diagnosis.") That is not the issue here.

In her decision, the ALJ accepted, without discussion, that Plaintiff's fibromyalgia was a severe impairment. (AR 21.) Indeed, the ALJ clearly rejected examining physician Leoni's opinion that Plaintiff had "no signs of fibromyalgia and no functional restrictions at all." (AR 24.) In determining her residual functional capacity, however, the ALJ rejected Plaintiff's subjective account of her limitations, some of which were allegedly caused by her fibromyalgia. (AR 23-26.)*fn5 Thus, the only issue raised specifically with respect to SSR 99-2p is whether it imposed a separate and additional obligation on the ALJ to recontact Dr. Kim or other physicians before determining that, while Plaintiff's fibromyalgia was a severe impairment, she would be able to work. Plaintiff has not shown that SSR 99-2p imposes such an obligation, and the Court finds that it does not.

The governing regulations provide that the Agency must recontact an applicant's treating physician where the evidence is inadequate to make a disability determination or is ambiguous. See 20 C.F.R. §§ 404.1512(e), 416.912(e), 416.927(c)(3).*fn6 SSR 99-2p incorporates those provisions, requiring the adjudicator to recontact medical sources if the evidence of CFS is inadequate, "in accordance with 20 C.F.R. 404.1512 and 416.912." Here, though she disagrees with the ALJ's interpretation of the evidence, Plaintiff fails to show that the evidence was inadequate or ambiguous.

Further, the ALJ did not reject Dr. Kim's opinion because it was ambiguous or inadequate. She rejected it because it was inconsistent with the "greater objective record" and Plaintiff's subjective complaints and because it was based on a single visit. (AR 24-25.) Because the records were neither inadequate or ambiguous, there was no need to ...

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