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Contreras v. Berryhill

United States District Court, W.D. Washington, Seattle

May 9, 2018

TAMARA CONTRERAS, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE

         Tamara Contreras appeals the decision of the Administrative Law Judge (“ALJ”) finding her not disabled. Dkt. 1. Ms. Contreras contends the ALJ failed to properly evaluate her fibromyalgia and erroneously rejected the opinion of her treating doctor Khahn Nguyen, specifically his fibromyalgia diagnosis, and improperly evaluated her credibility and lay witness evidence. For the following reasons, the Court recommends REVERSING the Commissioner's final decision and REMANDING the case for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         BACKGROUND

         On March 12, 2014, Tamara Contreras filed an application for Social Security Disability Insurance benefits. Tr. 19, 75. The application was denied initially and on reconsideration. Tr. 08, 112. Ms. Contreras timely requested an administrative hearing. Tr. 117. On November 12, 2015, a hearing was held before Administrative Law Judge Mary Gallagher Dilley, and on March 29, 2016, the ALJ issued a decision denying disability benefits. Tr. 19-32, 42-74. Ms. Contreras timely requested review by the Appeals Council. Tr. 159. On July 14, 2017, the Appeals Council denied review. Tr. 1.

         Utilizing the five step sequential evaluation process, [1] the ALJ found at step one that Ms. Contreras last worked on June 1, 2013. At steps two and three, the ALJ found Ms. Contreras' left hip degenerative disease and adjustment disorder with depressed mood are severe impairments and that these impairments do not meet the requirements of the Listings. The ALJ also noted an ongoing diagnosis of fibromyalgia but found “fibromyalgia is not an established medically determinable impairment.” Tr. 22. At step four, the ALJ found Ms. Contreras retained the residual functional capacity (“RFC”) to perform light work with some additional limitations; and at step five, the ALJ found Ms. Contreras could work as a storage facility rental clerk, an officer helper, or mail clerk, and is therefore not disabled. Tr. 16-32.

         DISCUSSION

         A. ALJ Erred in Concluding Fibromyalgia Diagnosis Did Not Meet Diagnostic Criteria

         Because this case turns largely on whether the ALJ improperly concluded Ms. Contreras' diagnosis of fibromyalgia was not an established medically determinable impairment and therefore did not consider any fibromyalgia-related limitations, it is helpful to understand fibromyalgia. Fibromyalgia is “a rheumatic disease that causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue.” Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). 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.

         SSR 12-p 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. SSR 12-2p, 2012 WL 3104869. 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 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.[2]

         Diagnosis of fibromyalgia does not rely on X-rays or MRIs. Further, SSR 12-2p recognizes 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. Under SSR 12-2p, the ALJ must accept a physician's diagnosis of fibromyalgia and find fibromyalgia is a medically determinable impairment if the 2010 ACR Criteria are met and “the physician's diagnosis is not inconsistent with the other evidence in the person's case record.” SSR 12-2p, 2012 WL 3104869, *2-3.

         At step two, the ALJ acknowledged Ms. Contreras was diagnosed with fibromyalgia but concluded the diagnosis did not meet the criteria of SSR 12-2p because there were no tender point findings. The ALJ also noted that during a consultative rheumatology evaluation in June 2014 with Dr. Papadopoulos, MD, there was no evidence of inflammatory arthritis or inflammatory connective tissue disease. Tr. 22. However, the ALJ did not consider Ms. Contreras' fibromyalgia symptoms in light of the 2010 ACR Criteria nor did she consider the longitudinal record of Ms. Contreras' fibromyalgia symptoms. And, as explained further, the lack of evidence of inflammatory arthritis or inflammatory connective tissue disease supports a finding of fibromyalgia rather than undermines it.

         Ms. Contreras was diagnosed with fibromyalgia by her treating physician, Khahn Nguyen, MD, who had been treating her for two years prior to this diagnosis. Dr. Nguyen referred Ms. Contreras for further evaluation by Rheumatologist Patricia Papadopoulos, MD, who concurred in the diagnosis. Tr. 418. In her evaluation, Dr. Papadopoulos noted a history of widespread pain and signs and symptoms of fibromyalgia including muscle pain, insomnia, fatigue, headaches, oral ulcers, easy bruising, occasional dizziness, muscle weakness, depression and memory loss. Tr. 418-20. Dr. Papadopoulos also noted the absence of inflammatory arthritis or inflammatory connective tissue disease, and agreed with Dr. Nguyen's diagnosis of fibromyalgia. Tr. 424. Because rheumatology is the relevant specialty for evaluating fibromyalgia, Dr. Papadopoulos' opinion is particularly valuable in determining whether Ms. Contreras meets the diagnostic criteria. Benecke, 379 F.3d at 594 n.4. In addition to the diagnoses of Drs. Nguyen and Papadopoulos, Ms. Contreras' medical records reflect repeated manifestations of fibromyalgia symptoms:

         (1) Widespread pain. See, e.g., Tr. 369 (“pain descriptors over entire body”), Tr. 418 (noting that Ms. Contreras' pain “[s]tarted in her left neck and shoulders, back, hips and progressed to generalized pain”), Tr. 424 (“long-standing widespread chronic pain”), Tr. 428 (pain diagram showing pain in almost every part of her body), Tr. 624 (same).

         (2) More than six manifestations of fibromyalgia: (1) Muscle pain - Tr. 369, 418, 624; (2) Fatigue - Tr. 277, 285, 378, 419, 428, 430, 484, 543, 559, 577, 605, 610, 626, 652, 718, 741, 744; (3) Waking unrefreshed - Tr. 55, 277, 378; (4) Memory or cognitive problems - Tr. 277, 420, 605, 627, 629; (5) Abdominal pain - Tr. 277, 553, 559, 561, 577, 605, 610, 627, 753; (6) Headaches - Tr. 276, 279, 284, 288, 300, 303, 419, 430, 484, 536, 577, 586, 605, 610, 627, 629, 753, 765; (7) Depression - Tr. 379, 386, 389, 420, 427, 430, 543, 625, 713, 718, 772; (8) Insomnia - Tr. 277, 350, 420, 430, 630, 741, 750; (9) Easy bruising - Tr. 285, 419, 430, 605, 610, 627; (10) Muscle weakness - 420, 430, 605, 626; (11) Frequent urination - Tr. 285, 453, 553, 561, 569, 576, 625, 750.

         (3) Other causes of symptoms have been excluded. A shoulder x-ray showed no obvious abnormalities. Tr. 398. An MRI of her cervical spine showed minimal degenerative changes. Tr. 424. There was no evidence to suggest an inflammatory condition. Tr. 424. The ALJ stressed the lack of objective medical evidence of any physical impairment aside from Ms. Contreras' left hip impingement. Tr. 22. And Dr. Papadopoulos observed there was “[n]o evidence currently to suggest an inflammatory arthritis or inflammatory connective tissue disease . . . .” As to this latter finding, rather than undermining the fibromyalgia diagnosis as the ALJ mistakenly believed, it appears Dr. Papadopoulos was ruling out other possible causes of Ms. Contreras' symptoms. See, Jordan v. Northrop Grumman Corp. Welfare Plan, 370 F.3d 869, 872 (9th Cir. 2004)(“Objective tests are administered to rule out other diseases, but do not establish the presence or absence of fibromyalgia”), overruled on other grounds by Abatie v. Alta Health & Life Insurance, 458 F.3d 955, 970 (9th Cir. 2006); see also Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)(“ Since swelling of the joints is not a symptom of fibromyalgia, ...


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