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Roberta A. Carter v. Michael J. Astrue

March 3, 2011

ROBERTA A. CARTER,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's application for Disability Insurance Benefits. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings, the defendant has filed the certified transcript of record, and each party has filed its supporting brief.

After reviewing the matter, the Court concludes that the decision of the Commissioner should be reversed and remanded.

On March 29, 2005, plaintiff Roberta A. Carter filed an application for a period of disability and disability insurance benefits, alleging disability beginning January 31, 2001, due to fibromyalgia and recurrent major depression. (Administrative Record ["AR"] 31). On January 25, 2008, an Administrative Law Judge ("ALJ") determined the plaintiff was not disabled within the meaning of the Social Security Act. (AR 26-34).

Following the Appeals Council's denial of plaintiff's request for a review of the hearing decision (AR 21-22), plaintiff filed an action in this Court.

Plaintiff makes two challenges to the ALJ's Decision denying disability benefits. Plaintiff alleges the ALJ erred in (1) improperly rejecting the opinions of the treating physician and the treating psychiatrist, and (2) failing to properly consider plaintiff's subjective symptoms and make proper credibility findings.

For the reasons discussed below, the Court finds that plaintiff's first claim of error lacks merit and plaintiff's second claim of error has merit.

ISSUE NO. 1:

Plaintiff asserts that the ALJ erred in rejecting the opinions of plaintiff's treating physician and treating psychiatrist. Defendant argues that the ALJ properly rejected the opinions of plaintiff's treating physician and treating psychiatrist.

A treating physician's opinion is entitled to special weight because the treating physician has a better opportunity to know and observe the claimant. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Where the treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Even if the treating physician's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific, legitimate reasons supported by substantial evidence in the record. Id. at 830-31. The ALJ can meet this burden by "setting out a detailed summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988).

Here, there were two treating physicians. The first treating physician was Mark M. Bai, M.D., a Kaiser Permanente Medical Group family practitioner. Dr. Bai, in his "Narrative Report," opined that plaintiff was unable to do full-time or competitive work due to fibromyalgia and a major depressive disorder. (AR 450-51).

The ALJ determined that plaintiff had fibromyalgia and suffered from a major depressive disorder (AR 28), but rejected Dr. Bai's opinion that plaintiff was unable to do full-time or competitive work. The ALJ rejected Dr. Bai's opinion because that opinion was based on plaintiff's statements rather than objective medical findings, and also because "the record as a whole, including other substantial medical opinion, provided substantial reason to contradict [Dr. Bai's opinion]." (AR 33).

Fibromyalgia is a disease that causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue." Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). Common symptoms include chronic pain throughout the body, multiple tender points, fatigue, stiffness, and sleep disturbance. Brosnahan v. Barnhart, 336 F.3d 671, 672 n.1 (8th Cir. 2003). Symptoms of fibromyalgia are entirely subjective, and there are no laboratory tests for the severity of fibromyalgia. Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001). The only symptom that discriminates between fibromyalgia and other diseases of rheumatic character is multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch. Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996).

The ALJ's finding that Dr. Bai's opinion was based on plaintiff's statements rather than objective medical findings was not a valid reason for rejecting that opinion. Contrary to the ALJ's statement, Dr. Bai's opinion was based on ten medical visits with plaintiff during which Dr. Bai performed "Physical Exams," "Review of Systems," and "Assessment" tests (See AR 785, 792, 798, 804, 811-12, 844-45, 867), and on the notation in his "Narrative Report" that plaintiff "ha[d] been consistently tender on applying pressure to more than 11 of 18 specific muscle tendon sites" and was in constant body pain.*fn1 (See AR 450). Thus, Dr. Bai's opinion was based on observation and testing of plaintiff. Moreover, the ALJ's objection to the lack of ...


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