Dilys Blair-Bain v. Michael Astrue

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT DEC 07 2009

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DILYS E. BLAIR-BAIN, No. 08-35460

Plaintiff - Appellant, D.C. No. 3:07-CV-00501-KI

v.

MEMORANDUM *

MICHAEL J. ASTRUE, Commissioner of Social Security Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Garr M. King, District Judge, Presiding

Argued and Submitted July 9, 2009 Portland, Oregon

Before: PREGERSON, RYMER, and TASHIMA, Circuit Judges.

Dilys E. Blair-Bain appeals from the order of the district court affirming the

Commissioner of Social Security’s denial of her claim for social security disability

benefits. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The determination of the administrative law judge (ALJ) not to credit Blair-

Bain’s claims as to the extent of her impairment was supported by substantial

evidence. The records provided by Drs. Sargent, Becker and Burkhardt

demonstrate that,…

MEMORANDUM *

Dilys E. Blair-Bain appeals from the order of the district court affirming the Commissioner of Social Security’s denial of her claim for social security disability benefits. We affirm.

The determination of the administrative law judge (ALJ) not to credit Blair-Bain’s claims as to the extent of her impairment was supported by substantial evidence. The records provided by Drs. Sargent, Becker and Burkhardt demonstrate that, through 2004, more than a year after her last date insured, Blair-Bain was engaged in significant daily activities. Dr. Sargent concluded that Blair-Bain “is in reality doing a full days [sic] work & that she needs to be aware of this,” and “[rjeinforced the fact that she is maintaining the household and her energy levels are appropriate for what she is doing.” While it is true that “one does not need to be ‘utterly incapacitated’ in order to be disabled,” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001), the extent of Blair-Bain’s activity here supports the ALJ’s finding that Blair-Bain’s reports of her impairment from fibromyalgia prior to the last date insured were not credible. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227…

Fibromyalgia is a poorly understood disease within the medical community and poses challenges to disability determinations. 1 I disagree with the majority’s conclusion that the ALJ’s decision in this fibromyalgia ease was supported by substantial evidence. I would remand to the district court with instructions to remand to the Commissioner for a new assessment of Blair-Bain’s residual functional capacity.

The ALJ erred when she discounted the opinions of the specialists who examined and treated Blair-Bain. This court has “made it clear that the medical opinions of a claimant’s treating physicians are entitled to special weight and that, if the ALJ chooses to disregard them, ‘he must set forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence.’ ” Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir.1988) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir.1986)). Furthermore, the Commissioner “generally give[s] more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.” 20 C.F.R. § 404.1527 (d)(5). “Specialized knowledge may be…