Janine Buell v. Nancy Berryhill, 14-35874

Background

Janine Buell appealed the district court’s affirmance of the Commissioner’s denial of disability insurance benefits under Titles II and XVI.
The ALJ found Buell’s fibromyalgia symptoms did not constitute a severe medically determinable impairment (MDI) at Step Two of the sequential analysis.
Examining physician Dr. Nolan diagnosed fibromyalgia after finding fourteen tender points and documented widespread pain; other records excluded alternative causes.
The ALJ discounted Dr. Nolan’s diagnosis citing (a) lack of documented ACR criteria/tender point testing in the record, (b) alleged multiple positive Waddell’s signs, and (c) reliance on Buell’s self-reports given an adverse credibility finding.
The ALJ found only two Waddell’s signs (not the three required to be clinically significant) and discounted Nolan’s opinion for reliance on patient report despite fibromyalgia being diagnosed by symptom reports.
The Ninth Circuit concluded the ALJ’s Step Two finding lacked substantial evidence, vacated the credibility finding, and remanded for further proceedings because the error was not harmless.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Buell’s fibromyalgia is a severe MDI at Step Two	Dr. Nolan’s exam (14 tender points) plus records meeting ACR criteria establish fibromyalgia as a severe MDI	ALJ: record lacks fulfillment of ACR criteria and no proper tender point test	Held for Plaintiff: ALJ’s Step Two finding not supported by substantial evidence; fibromyalgia diagnosis credible from Nolan’s exam
Whether Waddell’s signs justified discounting Nolan’s opinion	Two Waddell’s signs are insufficient to show nonorganic pain	ALJ: Nolan noted multiple positive Waddell’s signs undermining his diagnosis	Held for Plaintiff: Only two signs found; three are needed to be clinically significant, so ALJ erred in relying on this to discount Nolan
Whether reliance on patient-reported symptoms allowed ALJ to discount Nolan	Fibromyalgia diagnosis properly depends on patient symptom reports; Nolan’s reliance was appropriate	ALJ: Nolan relied on Buell’s self-reports and Buell’s credibility was impaired	Held for Plaintiff: ALJ’s adverse credibility finding cannot be used to discredit Nolan because fibromyalgia diagnosis depends on patient reports; credibility vacated without prejudice
Whether ALJ’s Step Two error was harmless	ALJ’s error may have changed analysis at Steps Three and Four and RFC; record not fully developed for credit-as-true relief	ALJ/Commissioner: error harmless because other findings supported nondisability	Held for Plaintiff: Error not harmless; it may have affected Step Three (medical equivalence) and RFC; remanded for further proceedings

Key Cases Cited

Attmore v. Colvin, 827 F.3d 872 (9th Cir. 2016) (standard of review—de novo for appeals from district court affirmances of Social Security decisions)
Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155 (9th Cir. 2008) (standards for rejecting physician opinions and credibility findings)
Benecke v. Barnhart, 379 F.3d 587 (9th Cir. 2004) (fibromyalgia is diagnosed based on patients’ reports of symptoms)
Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (harmless error analysis in Social Security cases)
Dominguez v. Colvin, 808 F.3d 403 (9th Cir. 2015) (credit-as-true rule requires a fully developed record)
Kennedy v. Colvin, 738 F.3d 1172 (9th Cir. 2013) (if impairments meet or equal a listing at Step Three, claimant is disabled and inquiry ends)