Revels v. Berryhill, 15-16477.

• Decision Date: 26 October 2017
• Docket Number: No. 15-16477.,15-16477.
• Citation: 874 F.3d 648
• Parties: Kanika Shavon REVELS, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

874 F.3d 648

Kanika Shavon REVELS, Plaintiff-Appellant,

v.Nancy A. BERRYHILL, Acting Commissioner Social Security, Defendant-Appellee.

No. 15-16477.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 19, 2017—San Francisco, California

Filed October 26, 2017

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.

Before: Andrew J. Kleinfeld and Kim McLane Wardlaw, Circuit Judges, and Cathy Ann Bencivengo,^* District Judge.

Dissent by Judge Kleinfeld

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 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 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 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 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, 63 S.Ct. 454, 87 L.Ed. 626 (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. 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...