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Moore v. Berryhill

United States District Court, C.D. California

May 7, 2018

YVONNE THOMAS MOORE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          MEMORANDUM OPINION AND ORDER OF REMAND

          CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE

         Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that this matter is remanded for further administrative action consistent with this Opinion.

         PROCEEDINGS

         Plaintiff filed a Complaint on May 25, 2017, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge. See Statements of Consent, filed June 19, 2017 and July 21, 2017.

         On March 6, 2018, the parties filed a "Joint Stipulation." On April 25, 2018, this case was reassigned to Magistrate Judge Charles F. Eick.

         BACKGROUND

         Plaintiff, a former home care provider and customer service representative, asserts disability since June 1, 2012, based on, inter alia, alleged fibromyalgia (Administrative Record ("A.R.") 30-43, 192, 207, 314-15, 684-85). A treating physician diagnosed fibromyalgia after finding 14 of 18 "trigger points" (A.R. 684-85). Plaintiff testified to pain, fatigue and other symptomatology of allegedly disabling severity (A.R. 76-77, 96-97).

         An Administrative Law Judge ("ALJ") denied Plaintiff's claim (A.R. 30-45). In doing so, the ALJ found that Plaintiff's alleged fibromyalgia is "not a medically determinable impairment" (A.R. 35). The ALJ discounted the credibility of Plaintiff's subjective allegations based on, among other things, an asserted lack of objective evidence to substantiate those allegations (A.R. 42). The Appeals Council denied review (A.R. 1-4).

         STANDARD OF REVIEW

         Under 42 U.S.C section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

         If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and detracts from the [administrative] conclusion.

         DISCUSSION

         Substantial evidence fails to support the ALJ's finding that Plaintiff's alleged fibromyalgia is not a medically determinable impairment. The ALJ stated that "there is an absence of clinical evidence satisfying the criteria of [Social Security Ruling] 12-2 for the establishment of fibromyalgia" (A.R. 35). As Plaintiff points out, the clinical evidence of record refutes this statement. See Joint Stipulation at 5-8; A.R. 684-85; see also Buell v. Berryhill, 716 Fed.Appx. 600, 601-02 (9th Cir. 2017); Allen v. Colvin, 2016 WL 7368128, at *3 (W.D. Wash. Jan. 8, 2016), adopted, 2016 WL 7368129 (W.D. Wash. Feb. 8, 2016).

         Defendant's contentions regarding this issue as set forth in the Joint Stipulation do not attempt to defend the ALJ's failure to find Plaintiff's alleged fibromyalgia to be a medically determinable impairment (Joint Stipulation at 8-9). Rather, Defendant contends that any error in this regard was harmless because the ALJ found other alleged impairments to be severe (id.). Defendant appears to argue that the ALJ necessarily considered the effects of Plaintiff's alleged fibromyalgia when defining Plaintiff's residual functional capacity, despite having found the alleged fibromyalgia ...


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