UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
February 25, 2010
DENISE CRONIN, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.
The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Plaintiff Denise Cronin ("Plaintiff") seeks review of the decision of Michael J. Astrue, Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying her application for disability benefits. The parties consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the decision of the Commissioner is REVERSED and REMANDED for further proceedings.
II. PROCEDURAL HISTORY
Plaintiff filed an application for disability insurance benefits on March 1, 2007.*fn1 The Commissioner denied Plaintiff's claim on June 13, 2007. (Administrative Record ("AR") 62-65). The Commissioner later denied Plaintiff's request for reconsideration on July 11, 2007. (AR 66). Plaintiff requested a hearing before an Administrative Law Judge on July 31, 2007.
Administrative Law Judge Michael Radensky (the "ALJ") held a hearing on November 12, 2008. (AR 6-45). The ALJ issued a decision denying Plaintiff's application for benefits on February 9, 2009. (AR 61). The Appeals Council denied Plaintiff's request for review on April 21, 2009. (AR 1-4). Plaintiff filed the current action on May 29, 2009.
III. THE ALJ'S DECISION
In his decision, the ALJ determined that Plaintiff suffered from morbid obesity, neck and low back pain, asthma, and fibromyalgia. (AR 53). The ALJ stated that Plaintiff's impairments could produce symptoms of pain and disability. (AR 56-57). However, he determined that the alleged intensity, persistence, and limiting effects of these symptoms alleged by Plaintiff were not credible. (See AR 57-58). As a result, he determined that Plaintiff was not disabled. (AR 61).
IV. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).
"Substantial evidence is more than a scintilla, but less than a preponderance." Reddick v. Chater, 157 F.3d 715, 720 (9th. Cir. 1998) (citing Jamerson v. Chater, 112 F. 3d 1064, 1066 (9th. Cir. 1997)). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, the court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing that conclusion, the court may not substitute its judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21.
Plaintiff contends that the Commissioner's decision should be reversed for two reasons. First, Plaintiff complains that the ALJ failed to give specific and legitimate reasons for rejecting Dr. Pamela Alvarez's findings. (Jt. Stip. at 4). Second, Plaintiff alleges that the ALJ failed to provide clear and convincing reasons for rejecting Plaintiff's subjective pain testimony. (Jt. Stip. at 14). The Court agrees with Plaintiff's contentions and remands this action for further proceedings.
A. The ALJ Failed To Give Specific And Legitimate Reasons For Rejecting Dr. Alvarez's Findings
Plaintiff contends that the ALJ improperly rejected the medical findings of Dr. Pamela Alvarez regarding Plaintiff's limitations.*fn2 (See Jt. Stip. at 5-8). The Court agrees.
Dr. Alvarez found that Plaintiff suffers from fibromyalgia and that Plaintiff suffers constant pain because of the disease. (AR 414-15). Dr. Alvarez concluded that Plaintiff's fibromyalgia prevents Plaintiff from obtaining gainful employment. (AR 415).
The Ninth Circuit has held that it is error to require objective medical evidence for fibromyalgia, a disease that eludes objective measurement. Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). Fibromyalgia is normally diagnosed when a patient experiences a painful reaction when pressure is applied to eighteen fixed locations throughout the body. Id. at 590; Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001). "It's symptoms are entirely subjective. There are not laboratory tests for the presence or severity of fibromyalgia." Id. at 855 (quoting Sarchet v. Chater, 78 F. 3d 305, 306 (7th Cir. 1996)).
Here, the ALJ found that Plaintiff has fibromyalgia. (AR 53). He then considered the "Fibromyalgia Disease Residual Functional Capacity Questionnaire" filled out by Dr. Pamela Alvarez. (AR 59). The report states that Plaintiff meets the American Rheumatological criteria for fibromyalgia and that Plaintiff experiences "always present" pain throughout her body. (AR 414-15). The report concluded that "[Plaintiff] is unable to sustain gainful employment" due to fibromyalgia. (AR 418).
However, the ALJ rejected Dr. Alvarez's report because it "offered no laboratory or clinical findings." (AR 59). An ALJ commits error by rejecting a doctor's determination about the existence or severity of fibromyalgia because of a lack of objective medical evidence. Benecke, 379 F.3d at 594. There can be no objective medical evidence supporting a diagnosis of fibromyalgia because there are no "laboratory tests for the presence or severity" of the disease. Rollins, 261 F. 3d at 855. Accordingly, the ALJ should not have rejected Dr. Alvarez's report due to a lack of laboratory or clinical findings.
Further, "the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996).
The ALJ also rejected Dr. Alvarez's findings because he determined "the medical opinions and notes throughout the record weigh heavily against [Plaintiff's] allegations of disability." (AR 59). The ALJ did not identify, however, with particularity which opinions and notes supported his rejection of Dr. Alvarez's report. (AR 59). The ALJ also stated that "the allegations of [disability] levels that preclude all types of work are not consistent with the evidence as a whole and are not credible." (AR 59). The ALJ did not identify any specific evidence supporting his determination nor did he cite to specific evidence in the record. (AR 59). The ALJ characterized Plaintiff's treatment with Dr. Alverez as "conservative," because Plaintiff only received medication management from Dr. Alverez. However, the ALJ failed to articulate what other treatment was available for ibromyalgia.
The ALJ was required to cite "specific and legitimate reasons that are supported by substantial evidence in the record" to reject Dr. Alvarez's findings. Lester, 81 F. 3d at 830. Here, the ALJ failed to cite specific evidence in his decision, but instead made general statements about the case as a whole. Accordingly, the ALJ did not provide specific and legitimate reasons for rejecting Dr. Alvarez's opinion.
Remand for further proceedings is appropriate where additional proceedings could remedy defects in the Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000), cert. denied, 531 U.S. 1038, 121 S.Ct. 628, 148 L.Ed. 2d 537 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Because the ALJ erred when he rejected Dr. Alvarez's report, the case must be remanded to remedy this defect. Upon remand, the ALJ must either fully credit Dr. Alvarez's report or provide specific and legitimate reasons that are supported by substantial evidence if the ALJ again rejects Dr. Alvarez's findings. Lester, 81 F. 3d at 830.
B. The ALJ Improperly Rejected Plaintiff's Subjective Pain Testimony
Plaintiff also alleges that the ALJ failed to articulate clear and convincing reasons for rejecting Plaintiff's subjective pain testimony. (Jt. Stip. at 3). The Court agrees.
"Unless there is affirmative evidence showing that the claimant is malingering, the ALJ's reasons for rejecting pain testimony must be clear and convincing." Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001)
Here, Plaintiff testified that she experiences constant pain in her arms, legs, back and neck. However, the ALJ stated that "for the reasons discussed above, [Plaintiff's] subjective complaints of pain are not fully credible." (AR 59). This statement fails to identify any specific reason discussed earlier in the decision that supports the ALJ's determination that Plaintiff's subjective pain testimony is not credible. (AR 58). The ALJ also fails to cite any evidence in the record supporting his determination.
The ALJ further states that "there is a lack of medical documentation of an impairment which would cause extreme pain." (AR 59). However, as discussed, Plaintiff suffers from fibromyalgia. (AR 53). This is a disease that causes pain, and there no laboratory tests demonstrating the presence or severity of fibromyalgia. Rollins, 261 F.3d at 855. Accordingly, it is not surprising that there is a lack of medical documentation. However, it is possible that Plaintiff's fibromyalgia could cause severe pain.
An ALJ must give clear and convincing reasons for rejecting a claimant's subjective pain testimony. Burch, 400 F. 3d at 680. The ALJ has not met this standard. Remand for further proceedings is appropriate to remedy this defect. See Harman, 211 F.3d at 1179. Upon remand, the ALJ must either fully credit Plaintiff's testimony or identify clear and convincing reasons supported by the record for rejecting Plaintiff's subjective pain testimony.
Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g),*fn3 IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties.