Rosemary CONTRERAS, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
No. 09-15657.
United States Court of Appeals, Ninth Circuit.
May 5, 2010.
379 Fed. Appx. 656
Argued and Submitted April 16, 2010.
2. Plaintiffs also argue that the district court erred by granting summary judgment on their claim for false advertising under section 17500 of the California Businesses & Practices Code because proof of bad faith prevents federal preemption of a state false advertising claim. We review this issue de novo. Dreiling, 578 F.3d at 1000. The district court did not grant summary judgment on the state false advertising claim because it was preempted. Rather, the court granted summary judgment because the “substantially congruent” state claim failed on the merits. Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir.1994). We affirm for the reasons explained above in connection with the federal claim.
3. Plaintiffs also contend that the district court erred by denying their motion to strike the declaration of a witness. We review for abuse of discretion. Boyd v. City of San Francisco, 576 F.3d 938, 943 (9th Cir.2009). We affirm the district court‘s ruling because Plaintiffs have not demonstrated that it caused them any prejudice. See id. at 950. The district court stated specifically that it was unlikely to reach the issues addressed by the declaration and, indeed, its summary judgment order did not discuss those arguments.
AFFIRMED.
Mary Beth O‘Connor, SSA—Social Security Administration, Office of the General Counsel, San Francisco, CA, for Defendant-Appellee.
Before: TASHIMA and THOMAS, Circuit Judges, and STAFFORD, Senior District Judge.*
MEMORANDUM **
Rosemary Contreras appeals an adverse grant of summary judgment upholding the Commissioner of Social Security‘s denial of her application for disability insurance benefits under Title II of the Social Security Act. We reverse and remand.
We review de novo a district court‘s order affirming the denial of social security benefits and set aside the denial “only if it is not supported by substantial evidence or is based on legal error.” Bray v. Comm‘r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.2009) (quotations omitted). “Substantial evidence ... is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotations omitted). Because the factual and procedural background is familiar to the parties, we will not recount it here.
Contreras contends that the administrative law judge (“ALJ“) erred at step two of the five-step disability inquiry in finding that the fibromyalgia diagnosis of her treating physician, Dr. Dixit, was not “medically determinable.” We agree. An ALJ must provide “specific and legitimate” reasons for discounting the contradicted opinion of a treating physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995). That standard is not satisfied here.
The only rheumatologist to examine Contreras, Dr. Dixit, diagnosed the disease and documented sufficient clinical findings to support his diagnosis. Although Dr. Dixit‘s notes do not identify the number or location of any specific tender points, he diagnosed Contreras in February 2002 “after a full history and physical examination” with fibromyalgia. In June 2003, Dr. Dixit indicated that Contreras “struggles on daily basis with severe fatigue, depression, increase in migraines, and multiple tender points throughout the body.” Three months later, he wrote that Contreras was “disabled” by her fibromyalgia. In April 2005, Dr. Dixit observed that Contreras had tender points in a “widespread distribution” satisfying the “ACR criteria for fibromyalgia.”
The testimony of non-examining physician Dr. Minor does not provide substantial evidence for the ALJ‘s holding. Dr. Minor initially testified that the fibromyalgia diagnosis was “consistent” with Contreras‘s history and records and merely conceded on questioning that Dr. Dixit had not specified the number or location of her tender points. Dr. Minor did not have access to Dr. Dixit‘s April 2005 notation
While several consultative examining and non-examining physicians declined to diagnosis fibromyalgia, a “rheumatologist‘s opinion is given greater weight than those of ... other physicians because it is an ‘opinion of a specialist about medical issues related to his or her area of specialty.‘” Id. at 594 n. 4 (quoting
In light of the discussion above, we reverse the judgment of the district court, with instructions to remand this case to the agency for a redetermination of eligibility for benefits consistent with this disposition.
REVERSED and REMANDED.