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Amber Fewer, Ed v. Michael J. Astrue

April 8, 2011

AMBER FEWER, ED
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, this Court concludes that the decision of the Commissioner should be affirmed in part and remanded in part.

On October 11, 2006, plaintiff Amber Fewer filed an application for Title XVI supplemental security income benefits. On October 13, 2006, plaintiff filed an application for Title II disability insurance benefits. In both applications, plaintiff alleged that she had been disabled since January 1, 2005,*fn1 due to chronic abdominal pain, diarrhea, kidney stones, internal stomach problems, fibromyalgia, and various mental problems. (Administrative Record ["AR"] 9). On May 29, 2009, an Administrative Law Judge ("ALJ") determined that plaintiff was not disabled within the meaning of the Social Security Act. (AR 5-16). Following the Appeals Council's denial of plaintiff's request for a review of the hearing decision (AR 1-3), plaintiff filed an action in this Court.

Plaintiff makes two challenges to the ALJ's Decision denying disability benefits. Plaintiff alleges the ALJ erred (1) in improperly assessing plaintiff's panic attacks, and (2) in improperly considering plaintiff's fibromyalgia.

For the reasons discussed below, the Court finds that plaintiff's first claim of error lacks merit and plaintiff's second claim of error is remanded for further development of the record.

ISSUE NO. 1:

Plaintiff argues that the ALJ erred in assessing plaintiff's panic attacks associated with plaintiff's anxiety disorder. Defendant argues that the ALJ reasonably considered plaintiff's anxiety disorder.

Plaintiff claimed that she suffered from anxiety disorder and panic attacks. (AR 36-37, 216).

The ALJ concluded that plaintiff did not have a disabling anxiety disorder or disabling panic attacks. (See AR 15). In reaching his decision, the ALJ discussed the findings of psychological consultive examiner, Linda Smith, M.D., and medical expert, David Glassmire, M.D. (AR 11-12). The findings of both doctors contradicted plaintiff's claim of disabling panic attacks. (See AR 11-12, 28-29, 524-30). Since the ALJ's conclusion that plaintiff did not have a disabling anxiety disorder or disabling panic attacks was based on substantial evidence, the ALJ's conclusion was proper. See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1164 ( 9th Cir. 2008) ("Reports of consultative physicians called in by the Secretary may serve as substantial evidence" and may be relied upon by the ALJ in order to determine the claimant's RFC.); See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1996) ("Reports of the nonexamining advisor need not be discounted and may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it.").

ISSUE NO. 2:

Plaintiff argues that the ALJ improperly considered plaintiff's fibromyalgia. Defendant argues that the ALJ properly concluded that plaintiff did not have fibromyalgia.

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. Id. 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). Fibromyalgia is diagnosed entirely on the basis of patients' reports of pain and other symptoms, with tenderness in at least eleven of eighteen sights known as trigger points. Benecke, supra, 379 F.3d at 594; Brosnahan v. Barnhart, 336 F.3d 671, 672 n.1 (8th Cir. 2003).

Here, plaintiff claimed that she suffered from fibromyalgia. (AR 177). On January 3, 2007, a physician with "LLU Physicians Medical Group, Inc." issued an "Assessment" that plaintiff had fibromyalgia. (AR 513). On January 19, 2007, a physician with "Valley View Medical Center" issued a "Clinical Impression" that plaintiff had fibromyalgia. (AR 463). On March 12, 2007, a physician with "LLU Physicians Medical Group, Inc." issued an "Assessment" that plaintiff had ...


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