NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 10 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BONNIE MAY HAMILTON-CARNEAL, No. 14-15398

Plaintiff - Appellant, D.C. No. 2:13-cv-00799-SRB

v.

MEMORANDUM*

CAROLYN W. COLVIN, Commissioner of Social Security Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Submitted March 14, 2016** San Francisco, California

Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.

Bonnie May Hamilton-Carneal appeals the district court’s order affirming the

denial by the Commissioner of Social Security of her application for disability

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). insurance benefits. We vacate and remand with instructions to remand to the

agency for further proceedings.

1. Hamilton-Carneal was diagnosed with fibromyalgia by her treating

physician. Fibromyalgia “is poorly-understood within much of the medical

community.” Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). “The

disease is diagnosed entirely on the basis of patients’ reports of pain and other

symptoms;” “there are no laboratory tests to confirm the diagnosis.” Id.; see also

Rounds v. Comm’r, 807 F.3d 996, 1000 n.3 (9th Cir. 2015). The ALJ therefore

erred by discounting Hamilton-Carneal’s “subjective complaints and limitations” as

“simply out of proportion to and not corroborated by the objective medical

evidence.”

2. The ALJ provided other reasons for discounting Hamilton-Carneal’s

reports of pain. For example, she noted that Hamilton-Carneal “voluntarily

deferred recommended treatment.” See Tommasetti v. Astrue, 533 F.3d 1035, 1039

(9th Cir. 2008) (affirming an ALJ’s decision to discredit pain testimony in part

because the claimant did not “seek an aggressive treatment program”). We

therefore decline to credit Hamilton-Carneal’s testimony as true. See Dominguez v.

Colvin, 808 F.3d 403, 407 (9th Cir. 2016). But the ALJ’s decision indicates that

the absence of “objective medical evidence” was a central factor in her determination

that Hamilton-Carneal was not credible. We also therefore cannot conclude that the

2 error was harmless. See Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th Cir.

2008); Stout v. Comm’r, 454 F.3d 1050, 1056 (9th Cir. 2006).

VACATED AND REMANDED. Each party shall bear its own costs.

3

FILED

Hamilton-Carneal v. Colvin, No. 14-15398

NOV 10 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

KLEINFELD, Senior Circuit Judge, dissenting:

I would affirm. Social Security Ruling 12-2p mandated that the ALJ should

compare objective medical evidence to Hamilton-Carneal’s subjective complaints.

Though laboratory tests may not be useful to diagnose fibromyalgia, see Benecke

v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004), there was objective medical

evidence contradicting Hamilton-Carneal’s testimony. For example, Hamilton-

Carneal’s treating rheumatologists observed she had a normal gait, full range of

motion, and no weakness in her hands. Neurological testing confirmed her full

musculoskeletal functioning. And Hamilton-Carneal demonstrated tenderness in

only ten out of eighteen points, below the threshold for a fibromyalgia diagnosis

according to the agency’s standards. See SSR 12-2p. Though we review the

district court de novo, we should not ignore the district court’s cogent reasons for

affirming the ALJ.