Benecke v. Barnhart

• Decision Date: 09 August 2004
• Docket Number: No. 03-15155.,03-15155.
• Citation: 379 F.3d 587
• Parties: Kathryn L. BENECKE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

379 F.3d 587

Kathryn L. BENECKE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant-Appellee.

No. 03-15155.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2004.

Filed August 9, 2004.

COPYRIGHT MATERIAL OMITTED

Mark Caldwell, Caldwell & Ober, Phoenix, AZ, for the plaintiff-appellant.

Pamela M. Wood, Social Security Administration, Denver, CO, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona; Stephen L. Verkamp, Magistrate, Presiding. D.C. No. CV-01-02451-SLV.

Before: B. FLETCHER, REINHARDT, Circuit Judges, and RESTANI, Judge.^*

BETTY B. FLETCHER, Circuit Judge:

Plaintiff-Appellant Kathryn L. Benecke appeals a decision of the district court remanding to the Social Security Administration (SSA) for additional administrative proceedings instead of an immediate award of disability insurance benefits. Because there are no outstanding issues that must be resolved and it is clear from the record that Benecke is entitled to benefits, we reverse and remand to the district court with instructions to remand to the Commissioner for an award of benefits.

I. BACKGROUND

Benecke suffers from fibromyalgia, previously called fibrositis, a rheumatic disease that causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue. See, e.g., Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech, Inc., 125 F.3d 794, 796 (9th Cir.1997); Brosnahan v. Barnhart, 336 F.3d 671, 672 n. 1 (8th Cir.2003). Common symptoms, all of which Benecke experiences, 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 associated with this disease. See Brosnahan, 336 F.3d at 672 n. 1; Cline v. Sullivan, 939 F.2d 560, 563 (8th Cir.1991). Fibromyalgia's cause is unknown, there is no cure, and it is poorly-understood within much of the medical community. The disease is diagnosed entirely on the basis of patients' reports of pain and other symptoms. The American College of Rheumatology issued a set of agreed-upon diagnostic criteria in 1990, but to date there are no laboratory tests to confirm the diagnosis. See Jordan v. Northrop Grumman Corp., 370 F.3d 869, 872 (9th Cir.2004); Brosnahan, 336 F.3d at 672 n. 1.

Benecke began experiencing fibromyalgia symptoms in December 1997. In March 1999, she filed an application for disability insurance benefits, alleging disability beginning in April 1998. The SSA denied her claim initially and upon reconsideration, and Benecke timely filed a request for a hearing before an Administrative Law Judge (ALJ). The ALJ denied Benecke's claim, finding that Benecke suffers from "severe impairments" but retains residual functional capacity to perform light or sedentary work, including her past sedentary work as a telemarketer. The Social Security Appeals Council denied Benecke's request for review, and the ALJ's decision became the final decision of the Commissioner.

Benecke filed a complaint in district court challenging the Commissioner's decision. The district court granted Benecke's motion for summary judgment in part, holding that the ALJ committed legal error in discounting Benecke's pain testimony and the opinions of Benecke's treating physicians. However, the district court declined to remand for an award of benefits, instead remanding for additional administrative proceedings. Benecke timely appealed that holding. Because the Commissioner did not cross-appeal the district court's partial grant of summary judgment in Benecke's favor, the sole issue in this case is whether the district court abused its discretion by remanding for further proceedings rather than for an award of benefits.

II. DISCUSSION

A. Jurisdiction

The district court had jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 405(g). We have jurisdiction to review the district court's final decision under 28 U.S.C. § 1291.

B. Standard of Review

The decision to remand to the SSA for further proceedings instead of for an immediate award of benefits is reviewed for abuse of discretion. Harman v. Apfel, 211 F.3d 1172, 1174, 1178 (9th Cir.2000).

C. Evidence of Disability

We recount the evidence in the administrative record in some detail because it is central to our conclusion that Benecke clearly is entitled to an immediate award of benefits.

1. Medical History

The ALJ received written reports on Benecke's condition from numerous treating physicians. Since Benecke first sought treatment in December 1997, her doctors have prescribed a variety of anti-inflammatory medications, painkillers, and antidepressants, and she has undergone physical therapy, massage treatments, aquatic exercise therapy, and participated in a fibromyalgia support group to help her cope with her condition. Benecke worked intermittently from the onset of her disease until April 1998 when she stopped working entirely. Before the onset of her fibromyalgia, Benecke had been employed full-time for more than a decade, except for brief periods between jobs.

As noted above, fibromyalgia is poorly-understood within much of the medical community, which may explain why Benecke saw a succession of physicians before being properly diagnosed. In December 1997, Benecke was examined by Dr. Berghoff, an orthopedist. She complained that she had been unable to work due to pain throughout her body, fatigue, and problems with memory and concentration. Berghoff prescribed anti-inflammatory medications and referred her to a physical therapist for her pain.

In February 1998, Benecke visited a hand and wrist surgeon who also was unable to diagnose her condition, but who suggested that it might be a rheumatic disease. In April 1998, Benecke's sought treatment for severe pain at a hospital emergency room. That same month, she reported to another physician that the pain throughout her body was so severe that it interfered with her ability to complete certain routine tasks and caused her to miss work.

In March and June 1998, Benecke sought treatment from Dr. Drazkowski, a neurophysiologist, who concluded that Benecke might be suffering from fibromyalgia or connective tissue disease. Drazkowski advised Benecke that she should not return to work at that time because of her persistent pain. Drazkowski referred Benecke to a rheumatologist, Dr. Harris, who diagnosed her with fibromyalgia in July 1998. Harris treated Benecke for her condition regularly through December 1998. In August 1998, Benecke also visited a pain management specialist who confirmed her diagnosis.

In February 1999, Dr. Pace, a second rheumatologist, began treating Benecke's fibromyalgia. Pace's notes from Benecke's appointments typically state that Benecke experienced pain in her hands, wrists, elbows, shoulders, neck, back, hips, knees, ankles, and feet; morning stiffness; numbness; headaches; fatigue; and decreased sleep, with three to five hours of restful sleep per night. During the course of treatment, Pace prescribed Benecke a variety of medications for pain and depression and referred Benecke for physical therapy, massage, and aquatic exercise therapy.

Pace filled out two questionnaires assessing Benecke's ability to do work-related activities in mid-1999, after Benecke filed her disability benefits application. Pace indicated on the form that Benecke suffered from symptoms consistent with those described above; her pain and fatigue frequently were severe enough to interfere with her attention and concentration; and she should not sit, stand, or walk for more than one hour at a time. On the basis of these findings, Pace concluded that Benecke would not be able to sustain full-time work.

In January 2000, a third rheumatologist, Dr. Gluck, began treating Benecke for fibromyalgia. Benecke reported symptoms and received treatment consistent with her previous medical history. In July 2000, Gluck completed two questionnaires assessing Benecke's ability to do work-related activities. Gluck reported Benecke's symptoms and stated that Benecke's constant pain and fatigue were severe enough to interfere with her attention and concentration. Like Pace, Gluck concluded that Benecke would not be able to sustain full-time work.

2. Opinions of Non-Treating Physicians

At the request of the Arizona Department of Economic Security (ADES), Benecke visited two physicians who evaluated her condition in connection with her disability application. Because they each examined Benecke only once, their opinions are given less weight than the physicians who treated her. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995); 20 C.F.R. § 404.1527.¹

In December 1999, Dr. Cunningham, a practitioner of internal medicine, recorded symptoms consistent with those described above and provided a diagnosis of fibromyalgia. Cunningham stated that Benecke was able to attend school, drive, and do errands, and he concluded that Benecke's "[s]ubjective complaints far outweigh objective findings."

In January 2000, Dr. Breen, a psychiatrist, evaluated Benecke's mental health. Breen noted that Benecke was able to take one college course at a time with difficulty. Breen observed no psychiatric symptoms of note. Breen concluded that some of Benecke's reported physical symptoms were "scarcely credible." He diagnosed her with somatization disorder, a condition in which a patient's perceived physical problems are of psychological origin. Breen also indicated that Benecke was unable or seriously limited in her ability to understand and carry out complex instructions; use judgment; and deal with work-related stress.

3. Administrative Hearing Testimony

a. Benecke's Testimony

At the hearing, Benecke testified to the following: She experiences constant pain throughout her entire body. Although prescription pain medication reduces her...