Kanika Revels v. Nancy Berryhill

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KANIKA SHAVON REVELS, No. 15-16477
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-01623-
SRB
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted May 19, 2017
San Francisco, California
Filed October 26, 2017
Before: Andrew J. Kleinfeld and Kim McLane Wardlaw,
Circuit Judges, and Cathy Ann Bencivengo,* District Judge.
Opinion by Judge Wardlaw;
Dissent by Judge Kleinfeld
*
The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
2 REVELS V. BERRYHILL
SUMMARY**
Social Security
The panel reversed the district court’s order affirming the
denial of supplemental security income and disability
insurance benefits by the Commissioner of the Social
Security Administration, and remanded with instructions to
remand the case to the agency for the calculation and award
of benefits.
The administrative law judge (“ALJ”) found that claimant
had three severe medical impairments – arthritis, obesity, and
fibromyalgia – but determined that claimant could perform
her past relevant work, and denied benefits.
In July 2012, the Social Security Administration issued
Social Security Ruling (“SSR”) 12-2P, a ruling that
established that fibromyalgia may be a severe medical
impairment for purposes of determining disability.
The panel held that in determining the intensity,
persistence, and limiting effects of claimant’s symptoms, the
ALJ failed to provide legally sufficient reasons for rejecting
the opinions of rheumatologist Dr. Nolan, physical therapist
Richard Randall, and nurse practitioner Mager. The panel
also held that the ALJ erred in rejecting claimant’s symptom
testimony and the lay opinions of her mother and father. The
panel concluded that these errors arose from a fundamental
misunderstanding of fibromyalgia. The panel further held
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
REVELS V. BERRYHILL 3
that the ALJ failed to properly analyze claimant’s
fibromyalgia-related symptoms pursuant to SSR 12-2P, and
the court’s opinion in Benecke v. Barnhart, 379 F.3d 587 (9th
Cir. 2004).
Specifically, the panel held that the ALJ erred in giving
Dr. Nolan’s opinion no weight, and instead should have
found it to be controlling as to the intensity, persistence, and
limiting effects of claimant’s fibromyalgia. The panel
concluded that because the vocational expert testified that a
claimant with the physical limitations outlined in Dr. Nolan’s
medical opinion would be unable to do any full-time work,
Dr. Nolan’s opinion by itself established that claimant was
entitled to benefits.
The panel concluded that each of the “credit-as-true”
factors, outlined in Garrison v. Colvin, 759 F.3d 995, 1020
(9th Cir. 2014), were satisfied, and that remand for the
calculation and award of benefits was warranted.
Judge Kleinfeld dissented. Judge Kleinfeld would hold
that the ALJ properly found that claimant was not wholly
credible, and properly dismissed medical testimony
supporting claimant’s position. Judge Kleinfeld would
conclude that claimant did not establish that the ALJ’s
conclusions were unsupported by substantial evidence, and he
would affirm the ALJ’s decision to deny benefits.
4 REVELS V. BERRYHILL
COUNSEL
Eric G. Slepian (argued), Phoenix, Arizona, for Plaintiff-
Appellant.
Lars J. Nelson (argued), Special Assistant United States
Attorney; David Morado, Regional Chief Counsel, Region X;
Office of the General Counsel, Social Security
Administration, Seattle, Washington; for Defendant-
Appellee.
OPINION
WARDLAW, Circuit Judge:
Kanika Revels (“Revels”), a now forty-one-year-old
woman who suffers from fibromyalgia, and who last worked
as a phlebotomist, appeals the district court’s order affirming
the denial of supplemental security income and disability
insurance benefits by the Commissioner of the Social
Security Administration (“SSA”). In July 2012, the SSA
issued Social Security Ruling (“SSR”) 12-2P, a ruling that
establishes that fibromyalgia may be a severe medical
impairment for purposes of determining disability. In
addition, the SSA provided guidelines for the proper
evaluation of the disease, echoing many of our statements
about fibromyalgia in Benecke v. Barnhart, 379 F.3d 587 (9th
Cir. 2004). The administrative law judge (“ALJ”), the SSA
Appeals Council, and the district court failed to heed the
instructions of those rulings, and instead analyzed her
symptoms and rejected Revels’ claim without considering the
unique characteristics of fibromyalgia, the principal source of
her disability. We reverse the judgment below and instruct
REVELS V. BERRYHILL 5
the district court to remand the case to the agency for the
calculation and award of benefits.
I.
Revels applied for supplemental security income and
disability insurance benefits on February 2, 2011, claiming a
disability onset date of January 20, 2011. On February 9,
2011, the agency denied Revels’ application for supplemental
security income because her income rendered her ineligible.
Finding her not disabled, the agency denied her application
for disability insurance benefits on June 29, 2011. On
reconsideration on November 23, 2011, the agency again
rejected both claims, relying only on the finding that Revels
was not disabled. Revels requested a hearing before an ALJ,
which was held on October 1, 2012. At the hearing, Revels
provided updated medical records to support her claimed
impairments. In addition, both Revels and a vocational
expert testified.
On October 26, 2012, the ALJ concluded that Revels was
not disabled and denied her claims. The ALJ followed the
five-step sequential evaluation process for determining
whether an individual is disabled. At step one, he found that
Revels had not engaged in “substantial gainful activity” since
January 20, 2011, her alleged disability onset date. At step
two, he determined that she had the following severe
impairments: arthritis, obesity, and fibromyalgia. He
determined that her depression was nonsevere.1 At step three,
the ALJ determined that Revels did not have an impairment
or combination of impairments that met or medically equaled
1
Revels does not challenge this finding on appeal.
6 REVELS V. BERRYHILL
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1.
Before reaching step four, the ALJ determined Revels’
residual functional capacity (“RFC”). He determined that she
was mostly able to perform light work as defined in 20 C.F.R.
§ 404.1567(b). Light work entails lifting up to twenty pounds
at a time, with frequent lifting or carrying of objects up to ten
pounds. 20 C.F.R. § 404.1567(b). It also may include “a
good deal of walking or standing,” or “sitting most of the
time with some pushing and pulling of arm or leg controls.”
Id. The ALJ found that Revels had slight limitations on her
ability to do light work. He found that she could only
occasionally climb ladders, ropes, scaffolds, ramps, and
stairs, and only occasionally stoop, crouch, kneel, and crawl.
He determined that she could frequently balance and reach
overhead bilaterally, and was capable of frequent handling,
fingering, and feeling. He also found that she should avoid
irritants such as fumes, odors, dust, and gases, and should
avoid unprotected heights and the use of moving machinery,
except motor vehicles.
In determining Revels’ RFC, the ALJ found that Revels’
impairments could reasonably be expected to cause the
symptoms she alleged, but that her statements about the
intensity, persistence, and limiting effects of her conditions
were “not entirely credible to the extent they [we]re
inconsistent with the . . . residual functional capacity
assessment.” He found her testimony to be inconsistent with
the medical treatment notes and her descriptions of her daily
activities. The ALJ also discredited Revels’ testimony
because of Revels’ “inconsistent reporting of marijuana
usage,” and inconsistent descriptions of the effectiveness of
her treatments. The ALJ assigned no weight to the opinions
REVELS V. BERRYHILL 7
of Revels’ treating rheumatologist, Dr. Joseph Nolan, or her
physical therapist, Richard Randall. He gave “some weight”
to the opinion of the state agency consultative examiner, Dr.
Keith Cunningham, and assigned significant weight to the
opinions of the two state agency nonexamining physicians,
Dr. Alicia Blando and Dr. Debra Rowse. He also assigned
significant weight to Revels’ hand doctor, Dr. Sebastian
Ruggeri.
At step four, the ALJ determined that Revels’ RFC
allowed her to perform her past relevant work as a medical
assistant and phlebotomist. Accordingly, he denied benefits.
The Appeals Council denied Revels’ request for review
on May 20, 2014. It considered additional evidence
submitted by Revels’ primary care provider, Jacqueline
Mager, but determined that the evidence did not provide a
basis for overturning the ALJ’s decision. Revels then filed a
complaint in the United States District Court for the District
of Arizona, seeking review of the agency’s decision. The
district court affirmed the ALJ’s decision on June 10, 2015.
Revels timely appealed.
II.
A. Standard of Review.
We review de novo a district court’s order affirming a
denial of Social Security benefits by the Commissioner.
Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).
We set aside a denial of Social Security benefits only when
the ALJ decision is “based on legal error or not supported by
substantial evidence in the record.” Benton ex rel. Benton v.
Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). “Substantial
8 REVELS V. BERRYHILL
evidence means more than a mere scintilla, but less than a
preponderance. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Desrosiers v. Sec’y of Health & Human Servs.,
846 F.2d 573, 576 (9th Cir. 1988) (citations omitted) (internal
quotation marks omitted). “Where evidence is susceptible to
more than one rational interpretation, the ALJ’s decision
should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
2007) (internal quotation marks omitted). Yet we “must
consider the entire record as a whole, weighing both the
evidence that supports and the evidence that detracts from the
Commissioner’s conclusion, and may not affirm simply by
isolating a specific quantum of supporting evidence.”
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)
(quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.
2007)). “We review only the reasons provided by the ALJ in
the disability determination and may not affirm the ALJ on a
ground upon which he did not rely.” Id. at 1010; see also
SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds
upon which an administrative order must be judged are those
upon which the record discloses that its action was based.”).
B. Evaluation of Medical Source Opinions.
The medical opinion of a claimant’s treating doctor is
given “controlling weight” so long as it “is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the claimant’s] case record.” 20 C.F.R.
§ 404.1527(c)(2). When a treating doctor’s opinion is not
controlling, it is weighted according to factors such as the
length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment
relationship, supportability, and consistency with the record.
REVELS V. BERRYHILL 9
Id. § 404.1527(c)(2)–(6). Greater weight is also given to the
“opinion of a specialist about medical issues related to his or
her area of specialty.” 20 C.F.R. § 404.1527(c)(5). A
doctor’s specialty is especially relevant with respect to
diseases that are “poorly understood” within the rest of the
medical community. Benecke, 379 F.3d at 594 n.4.
“To reject [the] uncontradicted opinion of a treating or
examining doctor, an ALJ must state clear and convincing
reasons that are supported by substantial evidence.” Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)
(alteration in original) (quoting Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005)). “If a treating or examining
doctor’s opinion is contradicted by another doctor’s opinion,
an ALJ may only reject it by providing specific and legitimate
reasons that are supported by substantial evidence.” Id.(quoting Bayliss, 427 F.3d at 1216); see also Reddick v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for
rejecting a treating doctor’s credible opinion on disability are
comparable to those required for rejecting a treating doctor’s
medical opinion.”). “The ALJ can meet this burden by
setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Magallanes v. Bowen,
881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen,
799 F.2d 1403, 1408 (9th Cir. 1986)). “When an examining
physician relies on the same clinical findings as a treating
physician, but differs only in his or her conclusions, the
conclusions of the examining physician are not ‘substantial
evidence.’” Orn, 495 F.3d at 632. Additionally, “[t]he
opinion of a nonexamining physician cannot by itself
constitute substantial evidence that justifies the rejection of
the opinion of either an examining physician or a treating
10 REVELS V. BERRYHILL
physician.” Lester v. Chater, 81 F.3d 821, 831 (9th Cir.
1995) (emphasis in original).
In addition to considering the medical opinions of
doctors, an ALJ must consider the opinions of medical
providers who are not within the definition of “acceptable
medical sources.” See 20 C.F.R. § 404.1527(b), (f); SSR 06-
3P. While those providers’ opinions are not entitled to the
same deference, an ALJ may give less deference to “other
sources” only if the ALJ gives reasons germane to each
witness for doing so. Molina v. Astrue, 674 F.3d 1104, 1111
(9th Cir. 2012). The same factors used to evaluate the
opinions of medical providers who are acceptable medical
sources are used to evaluate the opinions of those who are
not. Id. § 404.1527(f); SSR 06-3P. Those factors include the
length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment
relationship, supportability, consistency with the record, and
specialization of the doctor. Id. § 404.1527(c)(2)–(6). Under
certain circumstances, the opinion of a treating provider who
is not an acceptable medical source may be given greater
weight than the opinion of a treating provider who is—for
example, when the provider “has seen the individual more
often than the treating source, has provided better supporting
evidence and a better explanation for the opinion, and the
opinion is more consistent with the evidence as a whole.” Id.
§ 404.1527(f)(1).
C. Evaluation of a Claimant’s Testimony and Third-Party
Reports.
We have established a two-step analysis for determining
the extent to which a claimant’s report of her symptoms must
be credited:
REVELS V. BERRYHILL 11
First, the ALJ must determine whether the
claimant has presented objective medical
evidence of an underlying impairment which
could reasonably be expected to produce the
pain or other symptoms alleged. In this
analysis, the claimant is not required to show
that her impairment could reasonably be
expected to cause the severity of the symptom
she has alleged; she need only show that it
could reasonably have caused some degree of
the symptom. Nor must a claimant produce
objective medical evidence of the pain or
fatigue itself, or the severity thereof.
If the claimant satisfies the first step of this
analysis, and there is no evidence of
malingering, the ALJ can reject the claimant’s
testimony about the severity of her symptoms
only by offering specific, clear and
convincing reasons for doing so. This is not
an easy requirement to meet: The clear and
convincing standard is the most demanding
required in Social Security cases.
Garrison, 759 F.3d at 1014–15 (citations omitted) (internal
quotation marks omitted). To reject third-party reports of a
claimant’s impairments, the standard is much lower: an ALJ
need only “give reasons that are germane to each witness.”
Molina, 674 F.3d at 1114 (quoting Dodrill v. Shalala, 12 F.3d
915, 919 (9th Cir. 1993)); see also 20 C.F.R.
§ 404.1529(c)(3).
12 REVELS V. BERRYHILL
III.
The ALJ found that Revels had three severe medical
impairments: arthritis, obesity, and fibromyalgia. However,
the medical records largely pertain to Revels’ fibromyalgia,
as do the assessments concerning her limited functional
ability. Because this case turns on whether the ALJ properly
found Revels not disabled based on his conclusions about her
fibromyalgia-related limitations, it is helpful to understand
what fibromyalgia is, how it is properly diagnosed, and what
its symptoms are.
Fibromyalgia is “a rheumatic disease that causes
inflammation of the fibrous connective tissue components of
muscles, tendons, ligaments, and other tissue.” Benecke,
379 F.3d at 589. Typical symptoms include “chronic pain
throughout the body, multiple tender points, fatigue, stiffness,
and a pattern of sleep disturbance that can exacerbate the
cycle of pain and fatigue.” Id. at 590. What is unusual about
the disease is that those suffering from it have “muscle
strength, sensory functions, and reflexes [that] are normal.”
Rollins v. Massanari, 261 F.3d 853, 863 (9th Cir. 2001)
(Ferguson, J., dissenting) (quoting Muhammad B. Yunus,
Fibromyalgia Syndrome: Blueprint for a Reliable Diagnosis,
Consultant, June 1996, at 1260). “Their joints appear normal,
and further musculoskeletal examination indicates no
objective joint swelling.” Id. (quoting Yunus, supra, at
1260). Indeed, “[t]here is an absence of symptoms that a lay
person may ordinarily associate with joint and muscle pain.”
Id. The condition is diagnosed “entirely on the basis of the
patients’ reports of pain and other symptoms.” Benecke,
379 F.3d at 590. “[T]here are no laboratory tests to confirm
the diagnosis.” Id.REVELS V. BERRYHILL 13
For a long time, fibromyalgia was “poorly understood
within much of the medical community.” Id. Indeed,
“[t]here used to be considerable skepticism that fibromyalgia
was a real disease.” Kennedy v. Lilly Extended Disability
Plan, 856 F.3d 1136, 1137 (7th Cir. 2017). In previous
decisions, we were reluctant to recognize fibromyalgia as an
impairment that could render one disabled for Social Security
purposes. See Rollins, 261 F.3d at 857 (“Assuming, without
deciding, that fibromyalgia does constitute a qualifying
‘severe impairment’ under the Act . . . .”).
A sea-change occurred in 2012, when the SSA issued a
ruling recognizing fibromyalgia as a valid “basis for a finding
of disability.”2 Social Security Ruling (“SSR”) 12-2P, at *2.
The ruling provides two sets of criteria for diagnosing the
condition, based on the 1990 American College of
Rheumatology Criteria for the Classification of Fibromyalgia
and the 2010 American College of Rheumatology
Preliminary Diagnostic Criteria. Id. Pursuant to the first set
of criteria, a person suffers from fibromyalgia if: (1) she has
widespread pain that has lasted at least three months
(although the pain may “fluctuate in intensity and may not
always be present”); (2) she has tenderness in at least eleven
of eighteen specified points on her body; and (3) there is
evidence that other disorders are not accounting for the pain.
Id. at *2–3. Pursuant to the second set of criteria, a person
suffers from fibromyalgia if: (1) she has widespread pain that
2
Though Social Security Rulings do not have the force of law, they
“constitute Social Security Administration interpretations of the statute it
administers and of its own regulations.” Quang Van Han v. Bowen,
882 F.2d 1453, 1457 (9th Cir. 1989). Therefore, “we defer to Social
Security Rulings unless they are plainly erroneous or inconsistent with the
[Social Security] Act or regulations.” Id.14 REVELS V. BERRYHILL
has lasted at least three months (although the pain may
“fluctuate in intensity and may not always be present”);
(2) she has experienced repeated manifestations of six or
more fibromyalgia symptoms, signs, or co-occurring
conditions, “especially manifestations of fatigue, cognitive or
memory problems (“fibro fog”), waking unrefreshed,
depression, anxiety disorder, or irritable bowel syndrome”;
and (3) there is evidence that other disorders are not
accounting for the pain. Id. at *3.
Therefore, diagnosis of fibromyalgia does not rely on X-
rays or MRIs. Further, SSR 12-2P recognizes that the
symptoms of fibromyalgia “wax and wane,” and that a person
may have “bad days and good days.” SSR 12-2P, at *6. In
light of this, the ruling warns that after a claimant has
established a diagnosis of fibromyalgia, an analysis of her
RFC should consider “a longitudinal record whenever
possible.” Id.
IV.
A. Personal and Medical Records.
The administrative record provides a comprehensive
account of Revels’ impairments and functional limitations.
Starting around 2000, Revels began to develop neck and
upper back pain. Because of her pain, as well as her asthma,
she obtained a disability placard in 2003. Around 2010, the
pain in her neck and back increased markedly, and she also
began to experience pain in her hands and feet. Revels
visited the emergency room for pain twice in 2010, and three
times in 2011. At least one of the visits was prompted by a
fall caused by the pain and medication. Revels also
REVELS V. BERRYHILL 15
underwent treatment with a variety of doctors because of the
pain she suffered.
1. Treating providers.
Revels’ primary care provider, nurse practitioner
Jacqueline Mager,3 saw her for at least ten appointments
between 2010 and 2012 . During nine of those appointments,
Revels sought treatment for chronic pain she was
experiencing in her neck, back, feet, and hands. Mager
referred Revels to several specialists: Dr. Doust, a pain-
management specialist; Dr. Nolan, a rheumatologist; and Dr.
Ruggeri, a hand specialist. In addition to her own evaluations
of Revels, Mager received reports from the other doctors. On
March 6, 2012, Mager completed a check-the-box assessment
of Revels’ ability to perform work-related physical activities.
Mager indicated that, in an eight-hour workday, Revels could
sit less than two hours, stand or walk less than two hours, lift
less than twenty pounds, and carry less than fifteen pounds.
She also opined that Revels could only occasionally use her
hands and feet, and could only occasionally bend, crawl,
climb, reach, stoop, balance, crouch, or kneel. The form was
co-signed by a doctor in Mager’s clinic, Dr. Richard Wolfson.
Dr. Doust, a pain-management specialist, first saw Revels
on June 17, 2010. He treated her for the pain she was
experiencing throughout her body, and saw her at least ten
3
We may consider as part of the record on review the medical records
from Mager that were submitted to the Appeals Council. See Brewes v.
Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (“[W]e
have routinely considered evidence submitted for the first time to the
Appeals Council to determine whether, in light of the record as a whole,
the ALJ’s decision was supported by substantial evidence.”).
16 REVELS V. BERRYHILL
times in 2010 and 2011. During her visits with Dr. Doust,
Revels consistently described her pain as moderate or severe,
ranging from seven to ten on a ten-point scale, and repeatedly
explained that her pain significantly interfered with her daily
activities. Dr. Doust ordered MRIs of Revels’ spine, which
revealed a bulging disc in her back and degenerative facets in
her neck. On multiple visits, he also noted that she had a
positive straight-leg raise test, which indicates a lower-back
issue such as a herniated disc. Dr. Doust diagnosed Revels
with fibromyalgia, cervical and lumbosacral degeneration,
unspecified muscle pain and inflammation, cervical and
lumbar nerve compression, and nerve inflammation. To
alleviate her pain, he prescribed various pain relievers and
muscle relaxants: Valium, Flector, Soma, Vicodin, and
Percocet. In addition, he administered facet injections into
her neck and epidural steroid injections into her back.
Dr. Nolan, a rheumatologist, began treating Revels for
chronic pain on September 23, 2010. He saw her at least
twelve times between 2010 and 2012. Dr. Nolan found that
Revels’ joints were normal with no synovitis, and that there
were no limitations in her range of motion. However, during
the first appointment, he noted that Revels’ “history is quite
characteristic of fibromyalgia,” and throughout his treatment,
he consistently found that she had “tenderness to palpation in
the typical fibromyalgic tender points.” Dr. Nolan
administered eight tender-point examinations of Revels
during his treatment. During five of the eight examinations,
she had more than eleven out of eighteen tender points.
Based on those results, Dr. Nolan concluded that Revels met
the American College of Rheumatology’s 1990 diagnostic
criteria for fibromyalgia. To treat this condition, Dr. Nolan
prescribed Neurontin, Robaxin, Trazodone, Lyrica, Soma,
and Vicodin. To treat fibromyalgia flare-ups in Revels’
REVELS V. BERRYHILL 17
hands and wrists, Dr. Nolan administered several steroid
injections. He concluded that her pain would not respond to
surgical treatment.
On September 27, 2011, Dr. Nolan completed a check-
the-box assessment of Revels’ functional capacity. He
reported the following: Revels could sit for forty minutes at
a time, for a total of three hours per day; stand for one hour
at a time, for a total of three hours per day; and walk for
twenty minutes at a time, for a total of two hours per day. He
also indicated that she needed to recline for at least one hour
per day and alternate between sitting and standing positions
every forty minutes, and also required a ten-minute break
every sixty minutes. He reported that she could very
seldomly lift and carry up to ten pounds or climb stairs, bend,
stoop, crouch, kneel, or crawl. He noted that she could not
repetitively grasp, push, pull, or do fine manipulations with
her hands. If Revels was employed, Dr. Nolan estimated she
would miss work at least seventy-five percent of the time. On
September 10, 2012, he filled out another report with similar
findings. Dr. Nolan also completed five insurance forms in
2011 and 2012 certifying that Revels could not work.
Dr. Ruggeri, a hand specialist, began treating Revels on
February 8, 2011, after she experienced increased pain and
weakness in her hands and wrists. Dr. Ruggeri saw Revels
five times over a five-month period in 2011. In addition to
visually examining her hands, Dr. Ruggeri ordered X-rays, a
nerve conduction and velocity study, and an ultrasound. In
his treatment notes, he wrote that she had “normal appearing
hands” and “normal bony anatomy,” and he concluded that
she had “bilateral median neuritis.” To treat the condition, he
recommended vitamin B6, warm soaks and stretching, and
physical therapy. He also prescribed methylprednisone to
18 REVELS V. BERRYHILL
reduce inflammation and “encouraged [her] to go back to
some gainful work.” Though he noted that she was being
treated for fibromyalgia, he did not offer an opinion on
whether her hand pain was related to the condition.
Revels saw a number of other providers on a more limited
basis. Dr. William Stevens, a specialist in spinal issues,
examined her in August and September of 2011. Reviewing
MRIs and X-rays of Revels’ spine, he determined that she
had disc protrusion, stenosis, and radiculopathy. He
recommended physical therapy but did not believe that
surgery would resolve her pain. Dr. Glen Bair, an
orthopedist, treated Revels twice in 2011 for pain in her left
foot following an incident where she “stepped down wrong.”
He determined that X-rays of her feet appeared normal and
recommended stretching. Revels also went to physical
therapy.
2. Examining providers.
Dr. Keith Cunningham examined Revels once, on March
9, 2011, for the Arizona Department of Economic Security.
In his report, he recorded Revels’ complaints of spinal pain.
He wrote that, during the examination, Revels could “squat
and stand,” and could “walk, turn, and face [him] with a
normal gait.” He also recorded that she could “stand on each
leg independently.” He did not state whether she could do
these activities once or multiple times, or whether she could
do them for any prolonged period of time. However, he did
note that she walked “to and from the exam room slowly.”
He found that both her coordination and range of motion were
“normal,” and that a straight-leg raise test was negative.
Based on these findings, he concluded that she had “[c]hronic
back pain with preserved range of motion” and
REVELS V. BERRYHILL 19
“[f]ibromyalgia without typical trigger points on today’s
exam.” On a four-page form entitled “Medical Source
Statement of Ability to Do Work-Related Activities,” Dr.
Cunningham responded only to the first question, indicating
that Revels was not disabled. He did not respond to any of
the follow-up questions, such as what her lifting, carrying,
standing, and walking restrictions were.
Richard Randall, a physical therapist, examined Revels on
August 18, 2011, to evaluate her ability to perform work-
related physical activities. He prepared an eight-page report
after conducting a three-and-a-half-hour examination and
reviewing her medical records. He found that “she was
unable to perform sitting position manipulative activities” for
more than twenty-five minutes, and that she had “20 minutes
of maximum standing tolerance.” He also determined that
she “would not be able to exert up to 10 lbs. of force
occasionally and/or exert a negligible amount of force
frequently to lift, carry, push, pull, or otherwise move objects
including the human body.” He concluded that these
limitations rendered her unable to “maintain any sustained
functional work position in order to function at a rate
conducive to gainful employment.” Randall also conducted
various validity tests to determine whether the results were
reliable, and found that Revels’ reports of pain were accurate
and that she was providing “full physical effort” during the
exam.
3. Nonexamining physicians.
State agency physicians reviewed Revels’ medical records
at both the initial and reconsideration levels. At the initial
level, Dr. Alicia Blando reviewed Revels’ medical records.
In her report, she relied on Dr. Cunningham’s assessment that
20 REVELS V. BERRYHILL
Revels had fibromyalgia but did not show typical trigger
points on the day of his exam, and also on the nerve
conduction and velocity study ordered by Dr. Ruggeri that did
not reveal abnormalities. She noted that Revels’ complaints
of hand pain were contradicted by her ability to write by
hand, “at times, [in] small script,” on one of her Social
Security forms. She further noted that the medical records
showed no atrophy, and that Revels was able to take care of
five children and their daily needs. Dr. Blando assessed
Revels’ RFC: Revels could occasionally lift and/or carry
twenty pounds, and frequently lift and/or carry ten pounds;
she could stand and/or walk (with normal breaks) for six
hours in an eight-hour workday; and she could sit (with
normal breaks) for more than six hours in an eight-hour
workday. She also found that there was no limit to Revels’
ability to push and pull and that she could occasionally climb
ramps and stairs, stoop, kneel, crouch, and crawl, but could
never climb ladders, ropes, or scaffolds. She found that
Revels had no reaching, handling, fingering, or feeling
limitations.
At the reconsideration level, Dr. Debra Rowse reviewed
Revels’ medical records and largely agreed with Dr. Blando’s
RFC assessment. She found that there was “no medical
diagnosis for [Revels’] complaints of ‘pain everywhere.’”
She gave little weight to Dr. Nolan’s opinion because his
“exams do not meet the American College of
Rheumatology’s or SSA’s diagnostic criteria for
fibromyalgia.” Though her RFC assessment mostly matched
Dr. Blando’s, Dr. Rowse found that Revels could frequently
climb ramps and stairs and occasionally climb ladders, ropes,
and scaffolds.
REVELS V. BERRYHILL 21
4. Self-reporting and third-party evidence.
In a function report dated March 14, 2011, Revels
described her daily activities. In response to the prompt
“Describe what you do from the time you wake up until going
to bed,” she listed an array of activities: using the bathroom,
brushing her teeth, washing her face, taking her children to
school, washing dishes, doing laundry, sweeping, mopping,
vacuuming, going to a doctor’s appointment for herself or for
one of her children, visiting her mother and father, cooking,
shopping, getting gas, and feeding her dogs. She repeated
several times, however, that her ability to do those activities
depended on how she felt and “what [her] health permit[ted].”
She explained that she would do as much as possible “until
[she couldn’t] do it anymore.” She “didn’t finish” many of
the tasks she started, and often had to “take a break.” As she
put it, “I just do what I can in a day’s work before I get tired
and give up.”
Throughout the function report, Revels reiterated the
limitations on her daily activities. She stated that she had
difficulty dressing, bathing, caring for her hair, shaving,
feeding herself, and using the toilet. When she would prepare
a complete meal, it took “all day” because she needed to take
breaks. She was sometimes forced to split up grocery
shopping into two trips. She had limited ability to squat,
bend, stand, reach, kneel, sit, walk, or climb stairs, and also
had difficulty holding things. To assist with her pain, she
wore a back brace daily, a leg brace two to three times a
week, and a splint every night for her hands. She stated that
it took her four days to fill out the report.
Revels completed a second function report on September
28, 2011, in which she provided similar information. In
22 REVELS V. BERRYHILL
addition to the above, she stated that she could not walk more
than fifteen to twenty minutes without rest, and that her pain
interfered with her ability to sleep. She also described a
problem with burning herself while cooking because she
would drop pots and pans. Revels’ mother and father filled
out function reports describing many of the same issues.
Revels’ father reported that he often went over to Revels’
home to assist her with household chores.
B. Revels’ Testimony Before the ALJ.
At the hearing before the ALJ, Revels testified that she
had stopped working as a phlebotomist on January 21, 2011,
because she was in “extreme pain.” She had difficulty
kneeling down to assist her patients and had to use the
countertop to stabilize herself. She was concerned for her
patients’ safety. When asked where she experiences pain,
Revels responded, “All over.” She described her pain as
“aching pains, sharp pains in [her] back, sharp pains in [her]
wrist.” She also described numbness in her leg. In addition,
she explained that she had issues with her hands “clos[ing]
up” and “lock[ing]” on her. She testified that she no longer
had problems with her left foot, although it did get swollen at
times. She rated her pain, on average, as a seven out of ten,
noting that it could become worse at times. She stated that
her pain felt like “somebody[] [was] driving . . . a
screwdriver” into her.
Revels testified that she lived in a single-story home with
her grandparents, three daughters (ages 13, 16, and 19), and
three grandchildren (all younger than two years old). She
explained that her pain was always present and limited her
ability to do daily chores. She took her kids to school in the
morning but then had difficulty completing tasks at home,
REVELS V. BERRYHILL 23
such as laundry, mopping, and vacuuming. When asked how
long she could vacuum, she answered, “Maybe 10,
15 minutes tops.” She testified that she could do chores for
only twenty to thirty minutes before she needed to take a
break, and that she needed to lie down every day, usually for
about an hour on average. Though she previously had dogs,
she had to give them up six months before the hearing. She
also explained that she had problems driving and using her
cell phone because of her hand pain. She could not assist
with taking care of her grandchildren because she was not
able to hold them. She testified that she could stand for
twenty to thirty minutes and sit for thirty to forty-five
minutes, and also testified that she could walk no more than
one block and lift no more than ten pounds.
Revels explained that the hand injections she received
from Dr. Nolan “t[ook] the edge off” and provided limited
relief for a week. She relied on medication, however,
because she could “only get so many shots.” She explained
that the medications do not completely take away the pain
and that she was experiencing side effects, including
sleepiness and dizziness. She sometimes fell, and once had
to go to the emergency room after falling in the shower. She
explained that physical therapy had made her symptoms
worse, as did facet and epidural injections. She felt better
when sleeping, although she constantly had to change
positions.
C. Vocational Expert’s Testimony Before the ALJ.
The vocational expert (“VE”) testified about the work
capabilities of several hypothetical claimants. The ALJ first
asked about a claimant who could do light exertional work
with the following limitations: she could occasionally climb
24 REVELS V. BERRYHILL
ladders, ropes, and scaffolds; occasionally stoop, crouch,
kneel, and crawl; frequently balance and climb ramps or
stairs; and needed to avoid irritants such as fumes, odors,
dusts, and gases. The VE testified that such a claimant could
do Revels’ past relevant work as a medical assistant and
phlebotomist. The second hypothetical involved a claimant
who was identical to the first but had bilateral manipulative
limitations allowing her to frequently do activities such as
reaching overhead, handling, fingering, and feeling. The VE
testified that the hypothetical claimant could also work as a
medical assistant and phlebotomist. The third hypothetical
involved a claimant identical to the second, although the
manipulative limitations were greater, allowing her to only
occasionally do the highlighted activities. The VE testified
that the claimant would not be able to do Revels’ past
relevant work of medical assistant and phlebotomist.
However, this person could work as a case aid, furniture
rental clerk, and dressing room or tanning salon attendant. As
a final hypothetical, the ALJ asked about a claimant with the
same capabilities as in the second hypothetical, but who could
only do sedentary, rather than light, work. The VE testified
that the claimant could work as a receptionist.
Revels’ attorney also presented several hypotheticals. He
first presented a hypothetical based on Revels’ restrictions as
described by treating rheumatologist Dr. Nolan. The VE
testified that those limitations would preclude a claimant
from doing any full-time work. Her attorney also asked about
a claimant who needed to lie down for an average of one hour
during a workday. The VE testified that this would likely
preclude competitive employment because, though a typical
employee is allowed an hour of break time, that time is
broken up into two fifteen-minute breaks and one thirty-
minute break. Finally, Revels’ attorney asked about Revels’
REVELS V. BERRYHILL 25
limitations as described by physical therapist Richard
Randall. The VE testified that those limitations would
preclude Revels’ past work and any other work.
V.
We conclude that in determining the intensity,
persistence, and limiting effects of Revels’ symptoms, the
ALJ failed to provide legally sufficient reasons for rejecting
the opinions of Dr. Nolan, physical therapist Richard Randall,
and Nurse Practitioner Mager. He also erred in rejecting
Revels’ symptom testimony and the reports from her mother
and father. These errors arose from an apparent fundamental
misunderstanding of fibromyalgia. The ALJ failed to
properly analyze Revels’ fibromyalgia-related symptoms
pursuant to SSR 12-2P, issued in 2012, and our court’s 2004
opinion in Benecke v. Barnhart. This appears to be a
recurrent problem. See Weiskopf v. Berryhill, No. 15-16008,
2017 WL 2533445, at *2 (9th Cir. June 12, 2017) (“[T]he
ALJ did not properly analyze Weiskopf’s evidence of
fibromyalgia.”); Hamilton-Carneal v. Colvin, 670 F. App’x
613, 613 (9th Cir. 2016) (“The ALJ therefore erred by
discounting Hamilton-Carneal’s ‘subjective complaints and
limitations’ [resulting from fibromyalgia] as ‘simply out of
proportion to and not corroborated by the objective medical
evidence.’”); Payan v. Colvin, 672 F. App’x 732, 732 (9th
Cir. 2016) (“The ALJ failed to properly assess Payan’s
residual functional capacity (“RFC”) in light of Social
Security Ruling 12-2p.”); Benecke, 379 F.3d at 594 (“[T]he
ALJ erred in discounting the opinions of Benecke’s treating
physicians, relying on his disbelief of Benecke’s symptom
testimony as well as his misunderstanding of fibromyalgia.”).
In evaluating whether a claimant’s residual functional
capacity renders them disabled because of fibromyalgia, the
26 REVELS V. BERRYHILL
medical evidence must be construed in light of fibromyalgia’s
unique symptoms and diagnostic methods, as described in
SSR 12-2P and Benecke. The failure to do so is error, as is
true here.
A. The ALJ Erred by Giving The Medical Opinion of
Treating Physician Dr. Nolan “No Weight.”
Dr. Nolan treated Revels at least twelve times between
2010 and 2012, and was thus one of Revels’ treating
physicians. See 20 C.F.R. § 404.1527(a)(2). In determining
Revels’ RFC, the ALJ gave “[n]o weight” to Dr. Nolan’s
medical opinion of her symptoms and her functional
limitations.
Dr. Nolan’s opinion of Revels’ functional limitations was
contradicted by the findings of Dr. Rowse and Dr. Blando,
the nonexamining doctors from the state agency, and, to some
extent, the opinion of Dr. Ruggeri, the hand specialist.
Therefore, in rejecting Dr. Nolan’s opinion, the ALJ was
required to provide specific and legitimate reasons supported
by substantial evidence. He failed to do so.
The ALJ first stated that Dr. Nolan’s opinion was
“conclusory, with little explanation in how he determined the
claimant’s functional limitations.” However, the record
demonstrates that after each of his appointments with Revels,
Dr. Nolan provided a detailed account of the visit, including
Revels’ complaints of pain, the effectiveness of the
prescribed medication or injections, and his findings on the
current state of her fibromyalgia. Moreover, along with his
assessment of Revels’ functional limitations, he included a
two-page, single-spaced letter describing the basis for his
findings. He explained Revels’ medical history, her repeated
REVELS V. BERRYHILL 27
complaints of pain, the medical evidence of fibromyalgia, her
response to prescribed medications, and his analysis of other
doctors’ findings. Therefore, the ALJ’s dismissal of Dr.
Nolan’s opinion as conclusory is not supported by the record.
The ALJ next found that Dr. Nolan’s opinion was
“inconsistent with . . . [his] own treatment notes.” He stated
that Dr. Nolan could not have determined that Revels was
restricted in sitting, standing, or walking because his
treatment notes were “invariably focused on [Revels’]
experience of hand pain.” However, Dr. Nolan’s notes
consistently discuss Revels’ neck and back pain. Moreover,
Dr. Nolan was treating Revels for fibromyalgia, a condition
that involves “chronic pain throughout the body.” Benecke
379 F.3d at 590.
The ALJ further erred by relying on four visits during
which Dr. Nolan found that parts of Revels’ body were
“nontender” and that she had a “normal range of motion.”
Lacking certain tender points does not rule out fibromyalgia-
related symptoms, since a doctor need only find eleven out of
eighteen tender points to diagnose the condition. Moreover,
a person with fibromyalgia may have “muscle strength,
sensory functions, and reflexes [that] are normal.” Rollins,
261 F.3d at 863 (Ferguson, J., dissenting) (quoting Yunus,
supra, at 1260).
In addition, the ALJ rejected Dr. Nolan’s opinion because
it was supposedly not “supported by objective medical
evidence.” The ALJ pointed to several tests that yielded
normal results: a nerve conduction and velocity study of
Revels’ hands by Dr. Ruggeri, as well as wrist X-rays and
spine MRIs. He took issue with Dr. Nolan’s tender-point
examinations because they were “solely based on subjective
28 REVELS V. BERRYHILL
pain complaints,” and he also noted that, at multiple
appointments, Revels showed less than eleven out of eighteen
tender points. This analysis demonstrates a fundamental lack
of knowledge about fibromyalgia. Fibromyalgia is diagnosed
“entirely on the basis of patients’ reports of pain and other
symptoms,” and “there are no laboratory tests to confirm the
diagnosis.” Benecke, 379 F.3d at 590. Pursuant to SSR 12-
2P, tender-point examinations themselves constitute
“objective medical evidence” of fibromyalgia. Id. at *2–3.
Moreover, the symptoms of fibromyalgia “wax and wane,”
and a person may have “bad days and good days.” Id. at *6.
That is why the Social Security Administration recommends
looking at longitudinal records, see id., as Dr. Nolan did. At
five out of eight appointments, Revels had eleven or more
tender points, the cutoff for a diagnosis of fibromyalgia under
SSR 12-2P’s first set of criteria.4
Finally, the ALJ stated that Dr. Nolan’s findings were
inconsistent with Revels’ “own assertions and testimony.”
He pointed to Revels’ remark to Dr. Ruggeri that “she was
independent in daily activities,” as well as Revels’ testimony
that she did various household tasks. However, the ALJ
omitted highly relevant qualifications to this statement. For
example, when Revels described to Dr. Ruggeri that she was
independent, she also added that she “requires a longer time
to complete tasks,” and that her goal was to “return to normal
activities.” The record actually demonstrates that Dr. Nolan’s
4
The dissent defends the ALJ’s finding that Revels was only partially
credible and the ALJ’s dismissal of the opinions of Dr. Nolan, Randall,
Dr. Wolfson, and Nurse Practitioner Mager on the basis of contradictory
objective tests. In so doing, like the ALJ, the dissent fails to evaluate
Revels’ testimony and her medical record in light of fibromyalgia’s unique
symptoms and diagnostic methods, as described in SSR12-2P and
Benecke.
REVELS V. BERRYHILL 29
findings were consistent with Revels’ descriptions of her
daily activities. Revels repeatedly stated—to her doctors and
physical therapists, in her function reports, and at her
hearing—that she struggled to complete household tasks
because she needed to take numerous breaks. Revels’ ability
to complete some household tasks was perfectly consistent
with Dr. Nolan’s opinion of Revels’ limited functional
capacity. Dr. Nolan did not find that Revels was bedridden.
He found that she needed significant breaks when sitting or
standing, and needed to recline for at least an hour each day.
The only remaining reason the ALJ gave for rejecting Dr.
Nolan’s opinion was the contradictory opinions of the state
doctors.5 Both doctors found that Revels’ functional
limitations were significantly less than those found by Dr.
Nolan. However, the opinions of nonexamining doctors
“cannot by [themselves] constitute substantial evidence that
justifies the rejection of the opinion of either an examining
physician or a treating physician.” Lester, 81 F.3d at 831
(emphasis in original).
Even if the ALJ had pointed to substantial evidence
supporting the decision not to give Dr. Nolan’s opinion
controlling weight, he failed to explain why Dr. Nolan’s
opinion deserved “no weight” at all. When a treating
provider’s opinion is not entitled to “controlling weight”
because of substantial contradictory evidence, that opinion is
5
The ALJ also stated that Dr. Nolan’s opinion was contradicted by
Dr. Cunningham and “other treating doctors,” but he did not explain what
he meant. Dr. Cunningham did not provide a functional capacity
evaluation, so it is unclear what discrepancy the ALJ might have been
referring to. And it is similarly unclear what “other treating doctors” the
ALJ was referring to.
30 REVELS V. BERRYHILL
still “entitled to deference” based on factors such as the
length and nature of the treatment relationship. Orn,
495 F.3d at 632–33; see also 20 C.F.R. § 404.1527(c). Here,
there were strong reasons to defer to Dr. Nolan’s opinion. Dr.
Nolan had the most extensive treatment relationship with
Revels. Moreover, a rheumatologist’s specialized knowledge
is “particularly important with respect to a disease such as
fibromyalgia that is poorly understood within much of the
medical community.” Benecke, 379 F.3d at 594 n.4. As a
result, we have previously given a rheumatologist’s opinion
of a claimant’s fibromyalgia “greater weight than those of the
other physicians because it is an opinion of a specialist about
medical issues related to his or her area of specialty.” Id.(internal quotation marks omitted).
The ALJ did not provide “specific and legitimate reasons”
to reject Dr. Nolan’s opinion, and he failed to follow the
appropriate methodology for weighting a treating physician’s
medical opinion. Accordingly, we conclude that the ALJ
erred in giving Dr. Nolan’s opinion no weight. The ALJ
should have instead found it to be controlling as to the
intensity, persistence, and limiting effects of Revels’
fibromyalgia. Because the VE testified that a claimant with
the physical limitations outlined in Dr. Nolan’s medical
opinion would be unable to do any full-time work, Dr.
Nolan’s opinion “alone establishes that [Revels] is entitled to
benefits.” Lingenfelter, 504 F.3d at 1041 n.12 (emphasis in
original).
B. The Agency Erred by Failing to Credit the Opinion of
Nurse Practitioner Mager.
Mager is a nurse practitioner who saw Revels at least ten
times between 2010 and 2012. She assisted in treating
REVELS V. BERRYHILL 31
Revels’ chronic pain and referred her to pain-management
specialist Dr. Doust, rheumatologist Dr. Nolan, and hand
specialist Dr. Ruggeri. She consistently saw Revels during
her pain treatment and received reports from the specialists.
She filled out a check-the-box assessment of Revels’
functional limitations which, like Dr. Nolan’s assessment,
indicated severe restrictions on Revels’ abilities. That form
was not submitted until after the ALJ’s decision, but the
Appeals Council considered it and made it part of the record.
Though Mager’s opinion was submitted after the ALJ’s
decision, we may consider it in determining whether the
ALJ’s decision was supported by substantial evidence. See
Brewes, 682 F.3d at 1163. Also, though Mager is not an
“acceptable medical source,” she is an “other source” and
there are strong reasons to assign weight to her opinion.
Mager was a treating source who examined Revels at least ten
times over two years. See 20 C.F.R. § 404.1527(c)(1)–(2), (f)
(explaining that an opinion from a source who has examined
the claimant and had a longer treatment relationship should
generally be given greater weight). Moreover, Mager was in
a unique position as a primary care provider, as she received
reports from specialists and had an overview of Revels’
conditions. See id. § 404.1527(c)(2)(ii) (in determining the
weight that should be given to an opinion, the ALJ should
look at “the treatment the source has provided and . . . the
kinds and extent of examinations and testing the source has
performed or ordered from specialists”). Moreover, her
check-the-box assessment was co-signed by an acceptable
medical source in her clinic, Dr. Richard Wolfson. Mager’s
opinion thus provides additional support to our conclusion
that the ALJ’s rejection of Dr. Nolan’s opinion was not
supported by substantial evidence.
32 REVELS V. BERRYHILL
C. The ALJ Erred by Failing to State Germane Reasons
for Rejecting Physical Therapist Randall’s Functional
Capacity Evaluation.
Randall is a physical therapist who saw Revels once at the
request of her attorney. He conducted a functional capacity
evaluation and afterward prepared a nine-page report on his
findings. He found that Revels had limitations similar to
those found by Dr. Nolan and Mager. Even though Randall’s
opinion is not entitled to the same deference as “acceptable
medical sources,” the ALJ erroneously afforded his opinion
no weight by failing to provide germane reasons for its
rejection. Molina, 674 F.3d 1111.
First, the ALJ stated that Randall’s opinion of Revels’
limitations was “far beyond what is supported by objective
testing.” Again, this reasoning was based on a flawed
understanding of fibromyalgia, which cannot be diagnosed by
what the ALJ considered to be “objective testing.” Second,
the ALJ stated that Randall’s opinion was inconsistent with
those of Dr. Cunningham, Dr. Rowse, Dr. Blando, and Dr.
Ruggeri. However, Dr. Cunningham never provided an
evaluation of Revels’ functional capacity, and though Dr.
Ruggeri “encouraged” Revels to go back to work, he never
opined on her specific functional limitations. While the ALJ
is correct that Randall’s opinion was inconsistent with the
opinions of Dr. Rowse and Dr. Blando—neither of whom
examined Revels—he failed to note that it was consistent
with that of her treating rheumatologist, Dr. Nolan.
Moreover, though Randall only examined Revels once, he
examined her for three-and-a-half hours and extensively
reviewed the medical records from other doctors, ultimately
producing a nine-page report.
REVELS V. BERRYHILL 33
D. The ALJ Did Not Provide Clear and Convincing Reasons
to Reject Revels’ Testimony.
Revels testified at length about her symptoms and her
functional limitations. She also completed two written
function reports and submitted third-party function reports
from her mother and father. The ALJ found that Revels’
“medically determinable impairments could reasonably be
expected to cause the alleged symptoms,” and he did not
make a finding of malingering. Nevertheless, he concluded
that her symptom testimony was “not entirely credible to the
extent [it was] inconsistent with the . . . residual functional
capacity assessment.” He also assigned little weight to the
third-party reports from Revels’ mother and father.
The ALJ took a backward approach to determining
Revels’ credibility. He found that Revels’ testimony was not
credible “to the extent [it was] inconsistent with the . . .
[RFC].” However, an ALJ must take into account a
claimant’s symptom testimony when determining the RFC.
Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017);
Trevizo v. Berryhill, 862 F.3d 987, 1000 n.6 (9th Cir. 2017).
To determine the RFC first and then assess the claimant’s
testimony is to “put[] the cart before the horse.” Laborin,
867 F.3d at 1154. The ALJ’s approach is “inconsistent with
the Social Security Act and should not be used in disability
decisions.” Id. at 1153; see also Trevizo, 862 F.3d at 1000
n.6. Though this may not itself be reversible error, when
taken together with the ALJ’s failure to provide “clear and
convincing” reasons for rejecting Revels’ testimony, we
cannot conclude anything other than that the ALJ’s failure to
credit Revels’ testimony was error. Like his rejection of the
opinions of Dr. Nolan and physical therapist Randall, the ALJ
34 REVELS V. BERRYHILL
did not consider Revels’ testimony in light of her
fibromyalgia diagnosis.
The ALJ stated that Revels’ testimony was undercut by
the lack of “objective findings” supporting her claims of
severe pain. He highlighted several examinations that had
mostly normal results, such as an X-ray and MRIs of Revels’
neck and back, as well as the nerve conduction and velocity
study of her hands. He also cited medical records showing
that, at several doctor’s appointments, Revels exhibited
normal muscle strength, tone, and stability, as well as a
normal range of motion. This reasoning was similar to his
reasoning for rejecting Dr. Nolan’s opinion, and was similarly
erroneous. As described above, the examination results cited
by the ALJ are perfectly consistent with debilitating
fibromyalgia. The condition is diagnosed “entirely on the
basis of patients’ reports of pain and other symptoms,” and
“there are no laboratory tests to confirm the diagnosis.”
Benecke, 379 F.3d at 590. Indeed, fibromyalgia is diagnosed,
in part, by evidence showing that another condition does not
account for a patient’s symptoms. SSR 12-2P, at *3.
The ALJ also noted that Dr. Ruggeri had encouraged
Revels “to go back to some gainful work,” and that Dr. Bair
had asserted that Revels’ feet were “fine.” Neither doctor’s
opinion provided a legitimate reason for rejecting Revels’
testimony. Dr. Ruggeri’s offhand recommendation that
Revels go back to work was based on his examination of her
hands, and Dr. Bair’s evaluation only pertained to her feet.
Neither evaluated Revels’ fibromyalgia. Therefore, their
opinions merited much less weight than Dr. Nolan’s, who
specifically treated Revels for fibromyalgia, and whose
medical opinion matched Revels’ testimony. See 20 C.F.R.
§ 404.1527(c)(2)(ii) (“For example, if your ophthalmologist
REVELS V. BERRYHILL 35
notices that you have complained of neck pain during your
eye examinations, we will consider his or her medical opinion
with respect to your neck pain, but we will give it less weight
than that of another physician who has treated you for the
neck pain.”).
The ALJ also erred in rejecting Revels’ testimony on
account of the supposedly “conservative” treatment she
received. Any evaluation of the aggressiveness of a treatment
regimen must take into account the condition being treated.
Revels received facet and epidural injections in her neck and
back, as well as steroid injections in her hands. She was
prescribed a variety of medications for her pain, including
Valium, Vlector, Soma, Vicodin, Percocet, Neurontin,
Robaxin, Trazodone, and Lyrica. The ALJ provided no
explanation why he deemed this treatment “conservative” for
fibromyalgia. We have previously “doubt[ed] that epidural
steroid shots to the neck and lower back qualify as
‘conservative’ medical treatment.” Garrison, 759 F.3d at
1015 n.20. Further, Revels’ treatment was significantly more
aggressive than the type of fibromyalgia treatment we found
to be conservative in Rollins v. Massanari.6
6
In Rollins, we found the treatment conservative only after noting that
the doctor had primarily recommended that the petitioner “avoid strenuous
activities.” 261 F.3d at 856. Moreover, Rollins’ analytical approach to
fibromyalgia disability claims is now questionable. We decided that case
eleven years before SSR 12-2P, when it was still unclear whether
fibromyalgia could “constitute a qualifying ‘severe impairment’ under the
Act.” Id. at 857. We only assumed, for the purposes of the opinion, that
it was. In light of SSR 12-2P and our opinion in Benecke, 379 F.3d 587,
fibromyalgia is now unquestionably a qualifying impairment.
Additionally, we did not acknowledge in Rollins that fibromyalgia
symptoms wax and wane, and that a person suffering from the disease
may not display symptoms ordinarily associated with joint and muscle
pain. Our failure to do so was contrary to the more-developed, later
36 REVELS V. BERRYHILL
Finally, the ALJ erred in finding that there was “wide
disparity” between Revels’ symptom testimony and her
reports of her daily activities. Though inconsistent daily
activities may provide a justification for rejecting symptom
testimony, “the mere fact that a plaintiff has carried on certain
daily activities . . . does not in any way detract from her
credibility as to her overall disability.” Benecke, 379 F.3d at
594 (alteration in original) (quoting Vertigan v. Halter,
260 F.3d 1044, 1050 (9th Cir. 2001)). A claimant “does not
need to be utterly incapacitated in order to be disabled.” Id.(quoting Vertigan, 260 F.3d at 1050). The ALJ relied on
Revels’ function report in which she listed a number of
activities she might do in a day: using the bathroom, brushing
her teeth, washing her face, taking her children to school,
washing dishes, doing laundry, sweeping, mopping,
vacuuming, going to a doctor’s appointment for her or for one
of her children, visiting her mother and father, cooking,
shopping, getting gas, and feeding her dogs. He failed to
acknowledge that, over and over in the same report, Revels
explained that she could complete only some of the tasks in
a single day and regularly needed to take breaks—which was
consistent with her symptom testimony. Further, Revels’
description of her daily activities differed in large measure
from the petitioner’s in Rollins. There, we rejected the
petitioner’s testimony regarding her fibromyalgia-related
symptoms because she “was equivocal about how regularly
she was able to keep up with all of [her] activities.” 261 F.3d
at 857. Revels, however, repeatedly and consistently
knowledge about fibromyalgia set forth in SSR 12-2P and Benecke, both
of which recognize that an ALJ must evaluate the record in light of the
unique characteristics of fibromyalgia.
REVELS V. BERRYHILL 37
described the severe limitations on her ability to complete
daily activities.7
Consequently, the ALJ failed to meet the high bar for
rejecting a claimant’s symptom testimony. For similar
reasons, he erred in assigning little weight to the reports
submitted by Revels’ mother and father. He found that their
reports were inconsistent with objective medical evidence and
with Revels’ description of her daily activities. As described
above, that reasoning was erroneous, and not only does it not
constitute “clear and convincing” evidence for rejecting
Revels’ testimony, it does not constitute “germane” reasons
for rejecting the third-party function reports of Revels’
mother and father.
VI.
“The decision whether to remand a case for additional
evidence, or simply to award benefits[,] is within the
discretion of the court.” Sprague v. Bowen, 812 F.2d 1226,
1232 (9th Cir. 1987) (remanding for determination of benefits
where the panel was “convinced that substantial evidence
does not support the Secretary’s decision, and because no
legitimate reasons were advanced to justify disregard of the
treating physician’s opinion”). “[I]f additional proceedings
can remedy defects in the original administrative proceeding,
a social security case should be remanded” for further
proceedings. Garrison, 759 F.3d at 1019 (quoting Lewin v.
7
The ALJ also stated that Revels was not credible because she
inconsistently reported her marijuana usage and her pain levels. On
appeal, the Commissioner does not defend either as a valid ground for
rejecting Revels’ symptom testimony, and thus we do not address them
here.
38 REVELS V. BERRYHILL
Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). Generally,
however, where “(1) the record has been fully developed and
further administrative proceedings would serve no useful
purpose; (2) the ALJ has failed to provide legally sufficient
reasons for rejecting evidence, whether claimant testimony or
medical opinion; and (3) if the improperly discredited
evidence were credited as true, the ALJ would be required to
find the claimant disabled on remand,” id. at 1020, we
remand for an award of benefits.8
We find that each of these credit-as-true factors is
satisfied and that remand for the calculation and award of
benefits is warranted. First, the record has been fully
developed. It includes treatment notes from over fifty
medical visits from 2010 to 2012, as well as additional
medical records stretching back to 2002. It contains
functional capacity assessments from two treating providers
and two nonexamining doctors. It also includes Revels’
testimony about the severity of her symptoms, two function
reports filled out by Revels, and function reports filled out by
her mother and her father. Most importantly, the VE was
asked hypotheticals about the ability of an individual with
Revels’ physical limitations as described by Dr. Nolan, and
testified that those limitations were inconsistent “with the
performance of [Revels’] past work or any other full-time
work.”
The other two credit-as-true factors are also satisfied. The
ALJ failed to provide legally sufficient reasons for rejecting
8
In rare instances, though each of the credit-as-true factors is met, the
record as a whole leaves serious doubt as to whether the claimant is
actually disabled, see Garrison, 759 F.3d at 1021, in which case we
remand for further development of the record.
REVELS V. BERRYHILL 39
the medical opinion of Revels’ treating rheumatologist and
for rejecting Revels’ testimony about her symptoms. He also
erred in rejecting the medical opinion of Revels’ physical
therapist and in rejecting the lay opinions of Revels’ mother
and father. If credited as true, Dr. Nolan’s opinion
establishes that Revels is disabled, because the VE testified
that someone with the limitations established by Dr. Nolan
could not work. Further, there is no “serious doubt” that,
based on “the record as a whole,” Revels is in fact disabled.
Her impairment of fibromyalgia has been repeatedly
substantiated by tender-point examinations, which SSR 12-2P
establishes as proper evidence of the condition. Moreover,
Revels’ testimony, her function reports, and the treatment
notes from her doctors consistently show that she was
suffering from severe pain.9
We therefore reverse the judgment of the district court
with instructions to remand to the ALJ for the calculation and
award of benefits.
REVERSED; REMANDED WITH INSTRUCTIONS.
9
Because we find that the record on appeal establishes Revels’
disability and functional limitations, we need not reach Revels’ contention
that the Appeals Council erred in failing to include additional evidence in
the administrative record.
40 REVELS V. BERRYHILL
KLEINFELD, Senior Circuit Judge, dissenting:
I respectfully dissent. The ALJ’s credibility
determination was adequately supported.1 Even if we might
disagree with his finding that Revels could perform light
work, it was nevertheless supported by “substantial
evidence.”2
I.
This case does not turn on whether Revels has
fibromyalgia. Instead, the issue is Revels’ “residual
functional capacity.” Based on the evidence in the record, the
ALJ found that Revels could perform light work. In so doing,
he found that Revels’ “statements concerning the intensity,
persistence and limiting effects” of her fibromyalgia were
“not entirely credible” because they were inconsistent with
medical evidence and her own testimony.
According to the majority, this was incorrect because
Social Security Ruling 12-2p3 says that fibromyalgia is
actually characterized by inconsistent symptoms. But the
1
See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th
Cir. 1999); see also Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1225
(9th Cir. 2010) (upholding a partial credibility finding because of
discrepancies in the claimant’s testimony).
2
See Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)
(“Substantial evidence means more than a mere scintilla, but less than a
preponderance.”) (citations and quotation marks omitted).
3
77 Fed. Reg. 43,640 (July 25, 2012).
REVELS V. BERRYHILL 41
majority errs because it reads Ruling 12-2p too broadly and
because it gives short shrift to Rollins v. Massanari.4
A. Ruling 12-2p provides extensive guidance about what
constitutes a fibromyalgia diagnosis.5 It notes that
fibromyalgia symptoms often come and go. But when it
comes to the residual functional capacity of a person with
fibromyalgia, this is what Ruling 12-2p says: “For a person
with [fibromyalgia], we will consider a longitudinal record
whenever possible because the symptoms of [fibromyalgia]
can wax and wane so that a person may have ‘bad days and
good days.’”6 And when it comes to evaluating “the intensity
and persistence” of a person’s symptoms, Ruling 12-2p says
that the ALJ considers “all of the evidence in the case record”
if the claimant’s testimony is not backed up by “objective
medical evidence.”7
The ALJ’s determination that Revels can perform light
work is consistent with Ruling 12-2p. The record spans a
thousand pages and describes multiple doctors treating and
examining Revels between 2010 and 2012. That counts as
a “longitudinal record.” Based on that record, the ALJ
found Revels to be only partially credible because
objective tests—like Dr. Ruggeri’s analysis of her hand
functioning—contradicted Revels’ own function reports.
That is not the same as saying that Revels is only partially
4
261 F.3d 853 (9th Cir. 2001).
5
See 77 Fed. Reg. at 43,641–43.
6
Id. at 43,644.
7
Id. at 43,643.
42 REVELS V. BERRYHILL
credible because her symptoms were inconsistent over time.
Revels’ symptoms may “wax and wane,” but having good
days and bad days does not contradict the ALJ’s findings that
she had enough capacity to perform light work.
B. Not only is the ALJ’s credibility determination
consistent with Ruling 12-2p, but it is also supported by
precedent.
In Rollins v. Massanari, we assumed without deciding
that Rollins had a severe impairment of fibromyalgia.8 We
then held that when determining functional capacity, Rollins’
subjective pain testimony could be discounted by her
“testimony about her daily activities, such as attending to the
needs of her two young children, cooking, housekeeping,
laundry, shopping, attending therapy and various other
meetings every week, and so forth.”9 This was despite the
fact that Rollins was “somewhat equivocal about how
regularly she was able to keep up with all of these
activities.”10
Rollins controls here. Revels believes that her pain and
need for breaks during daily activities means that she lacks
the capacity for light work. But even though she may have to
take breaks in her chores, it was permissible for the ALJ to
find that Revels’ activity level is inconsistent with the severe
pain that she describes. Revels describes her pain as being a
constant 7 out of 10, sometimes increasing to 8, 9, or even
8
261 F.3d at 857.
9
Id.10
Id.REVELS V. BERRYHILL 43
“greater than 10.” To a doctor, that means that Revels
experienced constant “severe” pain, sometimes increasing to
the “worst pain imaginable.”11 It was reasonable to infer that
someone in that much pain cannot clean a house or take care
of infants, even with breaks. This inference is supported by
Dr. Rowse’s statement that Revels’ claims were inconsistent
with her activities. The ALJ discussed Revels’
inconsistencies in his decision, thus giving compelling
reasons for partially discounting her testimony.
Despite the majority’s statement to the contrary, Rollins’s
approach is not “questionable.” It is irrelevant that Rollins
was decided before Ruling 12-2p was issued. Even if Ruling
12-2p had been in effect, Rollins would have been decided
the same way: Rollins would have met the requirements for
a fibromyalgia diagnosis, but her residual functional capacity
would have shown that she could still perform some work.
II.
Just as the ALJ properly found that Revels was not wholly
credible, he also permissibly dismissed medical testimony
supporting Revels’ position.
Revels’ examining physician, Dr. Nolan, provided only
conclusory reasons for his findings, and almost all of his
opinions were check-box forms. His description of Revels’
medical issues was also contradicted by objective medical
11
Harald Breivik et al., Assessment of pain, 101 BRIT. J. OF
ANAESTHESIA 17, 18 (2008); see CHRIS PASERO & MARGO MCCAFFERY,
PAIN ASSESSMENT AND PHARMACOLOGIC MANAGEMENT 56 (2011);
Amelia Williamson & Barbara Hoggart, Pain: a review of three commonly
used pain rating scales, 14 J. CLINICAL NURSING 798, 799–800 (2005).
44 REVELS V. BERRYHILL
evidence and Revels’ own activity levels. And “when
evaluating conflicting medical opinions, an ALJ need not
accept the opinion of a doctor if that opinion is brief,
conclusory, and inadequately supported by clinical
findings.”12
The findings of Revels’ physical trainer, Richard Randall,
were not supported by objective medical tests, and they were
contradicted by Dr. Ruggeri’s opinion. Also, Randall is not
an “acceptable medical source” under the Social Security
regulations,13 so he is not entitled to the same deference that
a physician receives.14
The questionnaire signed by Dr. Wolfson and Nurse
Practitioner Jacqueline Mager was a check-box form that is
contradicted by objective medical evidence and Revels’
ability to perform tasks like cleaning and caring for her
grandchildren. Because Ms. Mager is a nurse practitioner,
her opinion also receives less deference than a physician’s (at
least to the extent she did not work under Dr. Wolfson’s
“close supervision”).15
12
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); see also
Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (holding that an ALJ
“permissibly rejected” three psychological evaluations “because they were
check-off reports that did not contain any explanation of the bases of their
conclusions”).
13
71 Fed. Reg. 45,593, 45,594 (Aug. 9, 2006); see also 82 Fed. Reg.
5,844, 5,846–47 (Jan. 18, 2017).
14
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
15
Id.; 71 Fed. Reg. at 45,594. The new rule defining nurse
practitioners as “acceptable” sources had not yet taken effect. See 82 Fed.
Reg. at 5,844, 5,846.
REVELS V. BERRYHILL 45
The ALJ therefore gave each of these testimonies its due.
III.
Revels evidently has fibromyalgia. She doubtless feels
pain or discomfort much of the time. Whether its severity
prevents her from working is a question different from
whether she has the disease. Medical conditions affect
different people differently, and just because someone says
they feel excruciating pain does not make it so. In this
appeal, Revels does not establish that the ALJ’s conclusions
were unsupported by substantial evidence. We should have
affirmed the ALJ’s decision.
Therefore, I respectfully dissent.