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Tanya Tagle v. Michael J. Astrue


September 21, 2012


The opinion of the court was delivered by: Sheri Pym United States Magistrate Judge



On October 14, 2011, plaintiff Tanya Tagle filed a first amended complaint against defendant Michael J. Astrue, seeking a review of a denial of supplemental security income ("SSI"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.

Plaintiff presents one disputed issue for decision: whether the administrative law judge ("ALJ") properly considered plaintiff's credibility.

Memorandum of Points and Authorities in Support of Plaintiff's Complaint ("Pl. Mem.") at 4-12; Memorandum in Support of Defendant's Answer ("D. Mem.") at 2-3.

Having carefully studied, inter alia, the parties's written submissions, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ improperly discounted plaintiff's credibility. Therefore, the court remands this matter to the Commissioner of the Social Security Administration ("Commissioner") in accordance with the principles and instructions enunciated in this Memorandum Opinion and Order.


Plaintiff, who was 39 years old on the date of her December 10, 2009 administrative hearing, is a high school graduate with a certificate for medical assisting. AR at 53, 76. Her past relevant work includes employment as a retail sales clerk and pharmacy clerk. Id. at 98.

On January 16, 2007, petitioner, unrepresented, filed an application for disability insurance benefits and SSI, alleging an onset date of January 1, 2007. *fn1

Id. at 108. ALJ Philip J. Simon denied the claim at the first step. Id. at 111.

On September 17, 2008, petitioner filed a second application for SSI, alleging an onset date of June 22, 2007, due to scoliosis, depression, anxiety, degenerative disc disease, arthritis, and fibromyalgia. Id. at 126, 157-63, 200, 205. The Commissioner denied plaintiff's application initially, after which she filed a request for a hearing. Id. at 126-31.

On December 10, 2009, petitioner, represented by counsel, appeared and testified at a hearing before ALJ Michael J. Kopicki. Id. at 71-104. Howard Goldfarb, a vocational expert, also provided testimony. Id. at 98-103. The ALJ denied benefits on December 21, 2009. Id. at 25-35. *fn2

Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since June 22, 2007, the alleged onset date. Id. at 28.

At step two, the ALJ found that plaintiff suffered from the following severe impairments: fibromyalgia; degenerative disc disease of the lumbar spine; and obesity. Id.

At step three, the ALJ found that plaintiff's impairments did not meet or medically equal one of the listed impairments set forth in the Listings. Id. at 29.

The ALJ then assessed plaintiff's residual functional capacity ("RFC") and *fn3 determined that she had the RFC to perform sedentary work with the following limitations, plaintiff: could stand/walk for two hours in an eight-hour day; could sit for six hours in an eight-hour day; was precluded from climbing ladders, ropes, or scaffolds; could occasionally balance, stoop, crouch, and crawl; and must avoid concentrated exposure to temperature extremes and hazards such as dangerous machinery and unprotected heights. Id. at 30.

The ALJ found, at step four, that plaintiff was unable to perform her past relevant work. Id. at 33.

At step five, the ALJ found that there were jobs that existed in significant numbers in the national economy that plaintiff could perform, including lens inserter, optical assembler, and jewelry preparer. Id. at 33-34. Consequently, the ALJ concluded that plaintiff did not suffer from a disability as defined by the Social Security Act. Id. at 34.

Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. Id. at 7-9, 17. After considering additional information submitted by plaintiff, the Appeals Council again denied plaintiff's request. Id. at 1-3. The ALJ's decision stands as the final decision of the Commissioner.


This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).

"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).


Plaintiff contends that the ALJ failed to properly consider plaintiff's credibility. Pl. Mem. at 4-12. Specifically, plaintiff argues that neither of the two reasons the ALJ provided for discounting plaintiff's credibility -- the testimony was not supported by objective medicine and was inconsistent with plaintiff's daily activities -- were clear and convincing. Id. In fact, the ALJ did not cite inconsistency with plaintiff's daily activities as a reason for discounting plaintiff's credibility. In support of her argument, plaintiff cites to page 48 of the record, but page 48 is the cover page for the March 10, 2008 hearing for plaintiff's prior claim. Pl. Mem. at 9. But although much of plaintiff's argument is based on this factual misstatement, the court agrees that the ALJ failed to provide clear and convincing reasons for rejecting plaintiff's testimony.

The ALJ must make specific credibility findings, supported by the record. SSR 96-7p. To determine whether testimony concerning symptoms is credible, the ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine whether a claimant produced objective medical evidence of an underlying impairment "'which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of malingering, an "ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in weighing a claimant's credibility, including: (1) ordinary techniques of credibility evaluation such as a claimant's reputation for lying; (2) the failure to seek treatment or follow a prescribed course of treatment; and (3) a claimant's daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47.

At the first step, the ALJ found that plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms alleged. AR at 31.

At the second step, the ALJ noted that a treating neurologist suspected that plaintiff was not giving good effort and possibly "making it up" (id. at 31, 356), but did not state that he found this to be affirmative evidence of malingering. As *fn4 such, the ALJ was required to provide clear and convincing reasons for discounting plaintiff's credibility. Here, the ALJ found plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms not credible to the extent they were inconsistent with her RFC because: (1) the symptoms were not supported by the objective findings; and (2) the symptoms were inconsistent with plaintiff's treatment history. Id. at 31-32. The ALJ's *fn5 reasons were not clear and convincing.

First, the ALJ erred in relying on the lack of objective medical evidence to support her claims. An ALJ "may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain," but it may be one factor used to evaluate credibility. Bunnell, 947 F.2d at 345; see also Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Here, the ALJ noted that plaintiff had no remarkable findings including no fracture, dislocation, and nerve root impingement, and negative serology tests. AR at 31-32. But the ALJ also recognized that over time the focus of plaintiff's "diagnosis shifted to fibromyalgia" (id. at 32), and fibromyalgia was the alleged cause of plaintiff's pain. Fibromyalgia is a disease that "is diagnosed entirely on the basis of patient's reports of pain and other symptoms." Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). Its causes are unknown and there are no laboratory tests for the presence or severity of it. Rollins, 261 F.3d at 855 (citing Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)); see also Brosnahan v. Barnhart, 336 F.3d 671, 672 n.1 (8th Cir. 2003) (a fibromyalgia diagnosis "is usually made after eliminating other conditions as there are no confirming diagnostic tests"). The only symptom distinguishing it is evidence of at least eleven out of eighteen tender points. Rollins, 261 F.3d at 855; see also Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 872 (9th Cir. 2004), abrogated on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir. 2006). And here, two physicians found multiple tender points. AR at 386, 445. *fn6

The ALJ also cited the examination findings of plaintiff's treating rheumatologist, Dr. Buhay, and consultative examiner, Dr. To, as further objective evidence that failed to support plaintiff's claims. AR at 32. Both found that *fn7 despite the multiple tender points, plaintiff had good range of motion. Id. But a good range of motion is not substantial evidence of less severe symptoms. See, e.g., Meehan v. Astrue, No. 11-01310, 2012 WL 3778347, at *4 (C.D. Cal. Aug. 30, 2012) (citing Green-Young v. Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003) (explaining that fibrositis patients usually show full range of motion during physical examinations)). Thus, the lack of objective findings is not a clear and convincing reason for rejecting plaintiff's statements concerning the severity of her fibromyalgia.

Second, the ALJ erroneously discounted plaintiff's credibility based on her treatment history. Although "evidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment," plaintiff did not receive conservative treatment. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007); see also Tommasetti, 533 F.3d at 1040 (conservative treatment may be a clear and convincing reason for discounting a claimant's credibility). As the ALJ correctly noted, plaintiff's physicians treated plaintiff's degenerative disc disease and fibromyalgia with a caudal epidural steroid injection, a series of trigger point injections, physical therapy, and pain relievers. Id. at 31, 344-45, 353-55; see e.g., id. at 420-22, 476. While physical therapy and pain medication are conservative, epidural and trigger point injections are not. See Tommasetti, 533 F.3d at 1040 (describing physical therapy and anti-inflammatory medication as conservative treatment); Christie v. Astrue, No. 10-3448, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (refusing to characterize steroid and trigger point injections as conservative). And contrary to the ALJ's conclusion, there was no substantial evidence that plaintiff's symptoms were well controlled with the use of medication. See AR at 31. Nor did the trigger point injections render significant relief. Id. at 353.

More important, there is no cure for fibromyalgia. Benecke, 379 F.3d at 589-90. Thus, the ALJ was wrong to note the lack of referral for surgery as of significance. See AR at 31. Indeed, there is no evidence that any particular course of treatment would have alleviated plaintiff's symptoms. See, e.g., Trujillo v. Astrue, No. 11-1220, 2011 WL 5870080, at *5 (C.D. Cal. Nov. 22, 2011) (strong medications and physical therapy qualified as substantial treatment of fibromyalgia).

In short, the ALJ failed to provide clear and convincing reasons supported by substantial evidence for discounting plaintiff's credibility.


The decision whether to remand for further proceedings or reverse and award benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Benecke, 379 F.3d at 595-96; Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings turns upon their likely utility). But where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the recordthat the ALJ would be required to find a plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 F.3d at 1179-80.

Here, as set out above, remand is required because the ALJ erred in failing to properly evaluate plaintiff's credibility. On remand, the ALJ shall reconsider plaintiff's subjective complaints with respect to her physical impairments and resulting limitations, and either credit plaintiff's testimony, provide affirmative evidence that plaintiff is a malingerer, or provide clear and convincing reasons supported by substantial evidence for rejecting plaintiff's subjective complaints. The ALJ shall then proceed through steps four and five to determine what work, if any, plaintiff is capable of performing.


IT IS THEREFORE ORDERED that Judgment shall be entered REMANDINGthe decision of the Commissioner denying benefits, and dismissing this action with prejudice.

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