Erin David v. Kilolo Kijakazi ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIN DAVID, No. 20-36035
Plaintiff-Appellant, D.C. No. 3:20-cv-05009-MAT
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Argued and Submitted November 19, 2021
Pasadena, California
Before: BERZON and RAWLINSON, Circuit Judges, and DORSEY,** District
Judge.
Dissent by Judge RAWLINSON
Erin David appeals the district court’s decision to affirm the Social Security
Commissioner’s denial of her application for disability insurance benefits and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
supplemental security income under Titles II and XVI of the Social Security Act.
We have jurisdiction under 28 U.S.C. § 1291, and hold that the Administrative
Law Judge (ALJ) failed to consider the evidence in light of the unique nature of
fibromyalgia, as recognized in Revels v. Berryhill, 874 F.3d 648 (9th Cir. 2017),
and Social Security Ruling (SSR) 12-2P. Because the ALJ did not sufficiently
evaluate the testimony of David’s two long-time treating physicians—Dr. Kenneth
Bakken and Dr. Clyde Addison—we reverse the district court, vacate the ALJ’s
denial of benefits, and remand to the ALJ for reconsideration under those
authorities.
The ALJ failed to provide clear and convincing reasons for giving little
weight to Dr. Bakken’s opinion that David cannot work a full-time sedentary job.
Giving Dr. Bakken’s opinion the lowest weight of any medical opinion in this case,
the ALJ concluded that it was not based on objective medical evidence and that his
determinations were neither supported by his own examination records nor the
evidence as a whole. But the ALJ ignored the longitudinal record, which shows
that Dr. Bakken treated David for nearly seven years over more than 80 visits, and
that David’s pain level fluctuated with from visit to visit, as fibromyalgia
symptoms tend to do. See Revels, 874 F.3d at 657 (“SSR 12-2P recognizes that the
symptoms of fibromyalgia ‘wax and wane,’ and that a person may have ‘bad days
and good days.’” (quoting SSR 12-2P at *6)). Although not a rheumatologist,
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Dr. Bakken’s pain-management practice is concentrated largely on treating
fibromyalgia patients, so his specialized knowledge should be given more weight
than that of a non-specialist physician. See Benecke v. Barnhart, 379 F.3d 587,
594 n.4 (9th Cir. 2004) (noting that treating physicians’ opinions—especially those
of specialists—are generally afforded greater weight and are “particularly
important with respect to a disease such as fibromyalgia that is poorly understood
within much of the medical community”).
Even if Dr. Bakken’s opinion would not merit controlling weight in
calculating David’s residual functional capacity, the ALJ still erred in failing to
consider factors such as the nature and extent of Dr. Bakken’s treatment
relationship with David when determining the weight to give his specialized
medical opinion. See Revels, 874 F.3d at 654 (citing 20 C.F.R. § 404.1527(c)(2)–
(6)). The ALJ also erred in ignoring the contradiction between Dr. Bakken’s
testimony about how much work David would likely need to miss because of her
symptoms and the vocational expert’s testimony about how many unexcused
absences and daily breaks an employer would tolerate. The ALJ further erred in
giving more weight to the opinion of non-examining Social Security
Administration medical consultants and to that of Dr. Brett Valette (a psychologist
who examined David once) than to that of Dr. Bakken.
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On remand, the ALJ is instructed to account for the “sea-change” that
occurred in fibromyalgia social security jurisprudence following the publication of
SSR 12-2P and this court’s related analytical framework and holding in Revels. Id.
at 656. The ALJ should consider the longitudinal record and account for the
unique nature of the often-misunderstood condition of fibromyalgia, including that
it is diagnosed based entirely on a patient’s subjective reports, not through any X-
ray, magnetic-resonance imaging, electromyography test, or other laboratory test.
In addition to Dr. Bakken’s opinion, the ALJ must also consider David’s own
symptom testimony, along with the medical records from David’s primary-care
physician, Dr. Addison, and the third-party function report of David’s fiancé,
David Pruss.
We reverse the district court, vacate the ALJ’s denial of benefits, and
remand to the ALJ with instructions to re-evaluate the evidence in light of
SSR 12-2P and Revels.
VACATED AND REMANDED.
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FILED
David v. Kijakazi, Case No. 20-36035 DEC 21 2021
Rawlinson, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent from my esteemed colleagues’ conclusion that the
Administrative Law Judge (ALJ) did not adequately analyze the medical opinions
under our decision in Revels v. Berryhill, 874 F.3d 648 (9th Cir. 2017) and Social
Security Ruling (SSR) 12-2p, both of which address fibromyalgia.
In this case, the claimant and Dr. Bakken, her treatment doctor, reported that
her fibromyalgia manifested in neurological impairment. Specifically, Dr. Bakken
opined that the claimant’s fibromyalgia rendered her completely incapable of
standing, walking, or lifting even nominal weight. However, his records contained
no notations reflecting any weakness in patient’s arms or legs, or any limited
mobility. In contrast, a rheumatologist, the practice specialty for treatment of
fibromyalgia, examined the claimant and determined that her neurological exam
was normal. Her motor nerves functioned normally, her sensory nerves functioned
normally, her arms and legs had normal strength, her walk was normal, and her
muscle tone was normal. These findings are completely inconsistent with the
complete inability to stand, walk or lift even nominal weight as opined by
claimant’s treating doctor.
In light of this conflicting medical evidence in the record, it is impossible to
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conclude that the ALJ’s weighing of that evidence is not supported by substantial
evidence. See Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020). After all, it is
the role of the ALJ to weigh the medical evidence, not ours. See Tommasetti v.
Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008).
The ALJ’s decision in this case did not run afoul of Revels or SSR 12-2p.
We reversed the ALJ decision in Revels because the ALJ gave no weight to the
opinion of a rheumatologist, the specialty practitioner for fibromyalgia. See 847
F.3d at 656, 662. Rather, the ALJ credited the opinions of non-examining
physicians. See id. at 662. In this case, the ALJ gave the opinion of the non-
specialist treating physician little weight rather than no weight. The ALJ provided
“specific and legitimate reasons supported by substantial evidence” in the record,
i.e., the various medical reports. Revels requires no more. Id. at 663.
SSR 12-2p offers “guidance” on determining the existence of fibromyalgia
(which is not at issue in this case). See 2012 WL 8104869 at *1 (July 25, 2012).
The closest the ruling comes to weighing medical opinions is a statement that
“[w]idespread pain and other symptoms associated with [fibromyalgia], such as
fatigue, may result in exceptional limitations that prevent a person from doing the
full range of unskilled work in one or more of the exceptional categories . . .”
Nothing in that statement calls into question the weighing of the conflicting
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medical opinions performed by the ALJ in this case.
Because I agree with the district court that the ALJ’s decision was supported
by substantial evidence in the record, I would affirm.
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