NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 21 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIN DAVID, No. 20-36035

Plaintiff-Appellant, D.C. No. 3:20-cv-05009-MAT

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Mary Alice Theiler, Magistrate Judge, Presiding

Argued and Submitted November 19, 2021 Pasadena, California

Before: BERZON and RAWLINSON, Circuit Judges, and DORSEY,** District Judge. Dissent by Judge RAWLINSON

Erin David appeals the district court’s decision to affirm the Social Security

Commissioner’s denial of her application for disability insurance benefits and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer A. Dorsey, United States District Judge for the District of Nevada, sitting by designation. supplemental security income under Titles II and XVI of the Social Security Act.

We have jurisdiction under 28 U.S.C. § 1291, and hold that the Administrative

Law Judge (ALJ) failed to consider the evidence in light of the unique nature of

fibromyalgia, as recognized in Revels v. Berryhill, 874 F.3d 648 (9th Cir. 2017),

and Social Security Ruling (SSR) 12-2P. Because the ALJ did not sufficiently

evaluate the testimony of David’s two long-time treating physicians—Dr. Kenneth

Bakken and Dr. Clyde Addison—we reverse the district court, vacate the ALJ’s

denial of benefits, and remand to the ALJ for reconsideration under those

authorities.

The ALJ failed to provide clear and convincing reasons for giving little

weight to Dr. Bakken’s opinion that David cannot work a full-time sedentary job.

Giving Dr. Bakken’s opinion the lowest weight of any medical opinion in this case,

the ALJ concluded that it was not based on objective medical evidence and that his

determinations were neither supported by his own examination records nor the

evidence as a whole. But the ALJ ignored the longitudinal record, which shows

that Dr. Bakken treated David for nearly seven years over more than 80 visits, and

that David’s pain level fluctuated with from visit to visit, as fibromyalgia

symptoms tend to do. See Revels, 874 F.3d at 657 (“SSR 12-2P recognizes that the

symptoms of fibromyalgia ‘wax and wane,’ and that a person may have ‘bad days

and good days.’” (quoting SSR 12-2P at *6)). Although not a rheumatologist,

2 Dr. Bakken’s pain-management practice is concentrated largely on treating

fibromyalgia patients, so his specialized knowledge should be given more weight

than that of a non-specialist physician. See Benecke v. Barnhart, 379 F.3d 587,

594 n.4 (9th Cir. 2004) (noting that treating physicians’ opinions—especially those

of specialists—are generally afforded greater weight and are “particularly

important with respect to a disease such as fibromyalgia that is poorly understood

within much of the medical community”).

Even if Dr. Bakken’s opinion would not merit controlling weight in

calculating David’s residual functional capacity, the ALJ still erred in failing to

consider factors such as the nature and extent of Dr. Bakken’s treatment

relationship with David when determining the weight to give his specialized

medical opinion. See Revels, 874 F.3d at 654 (citing 20 C.F.R. § 404.1527(c)(2)–

(6)). The ALJ also erred in ignoring the contradiction between Dr. Bakken’s

testimony about how much work David would likely need to miss because of her

symptoms and the vocational expert’s testimony about how many unexcused

absences and daily breaks an employer would tolerate. The ALJ further erred in

giving more weight to the opinion of non-examining Social Security

Administration medical consultants and to that of Dr. Brett Valette (a psychologist

who examined David once) than to that of Dr. Bakken.

3 On remand, the ALJ is instructed to account for the “sea-change” that

occurred in fibromyalgia social security jurisprudence following the publication of

SSR 12-2P and this court’s related analytical framework and holding in Revels. Id.

at 656. The ALJ should consider the longitudinal record and account for the

unique nature of the often-misunderstood condition of fibromyalgia, including that

it is diagnosed based entirely on a patient’s subjective reports, not through any X-

ray, magnetic-resonance imaging, electromyography test, or other laboratory test.

In addition to Dr. Bakken’s opinion, the ALJ must also consider David’s own

symptom testimony, along with the medical records from David’s primary-care

physician, Dr. Addison, and the third-party function report of David’s fiancé,

David Pruss.

We reverse the district court, vacate the ALJ’s denial of benefits, and

remand to the ALJ with instructions to re-evaluate the evidence in light of

SSR 12-2P and Revels.

VACATED AND REMANDED.

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FILED

David v. Kijakazi, Case No. 20-36035 DEC 21 2021 Rawlinson, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent from my esteemed colleagues’ conclusion that the

Administrative Law Judge (ALJ) did not adequately analyze the medical opinions

under our decision in Revels v. Berryhill, 874 F.3d 648 (9th Cir. 2017) and Social

Security Ruling (SSR) 12-2p, both of which address fibromyalgia.

In this case, the claimant and Dr. Bakken, her treatment doctor, reported that

her fibromyalgia manifested in neurological impairment. Specifically, Dr. Bakken

opined that the claimant’s fibromyalgia rendered her completely incapable of

standing, walking, or lifting even nominal weight. However, his records contained

no notations reflecting any weakness in patient’s arms or legs, or any limited

mobility. In contrast, a rheumatologist, the practice specialty for treatment of

fibromyalgia, examined the claimant and determined that her neurological exam

was normal. Her motor nerves functioned normally, her sensory nerves functioned

normally, her arms and legs had normal strength, her walk was normal, and her

muscle tone was normal. These findings are completely inconsistent with the

complete inability to stand, walk or lift even nominal weight as opined by

claimant’s treating doctor.

In light of this conflicting medical evidence in the record, it is impossible to

1 conclude that the ALJ’s weighing of that evidence is not supported by substantial

evidence. See Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020). After all, it is

the role of the ALJ to weigh the medical evidence, not ours. See Tommasetti v.

Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008).

The ALJ’s decision in this case did not run afoul of Revels or SSR 12-2p.

We reversed the ALJ decision in Revels because the ALJ gave no weight to the

opinion of a rheumatologist, the specialty practitioner for fibromyalgia. See 847

F.3d at 656, 662. Rather, the ALJ credited the opinions of non-examining

physicians. See id. at 662. In this case, the ALJ gave the opinion of the non-

specialist treating physician little weight rather than no weight. The ALJ provided

“specific and legitimate reasons supported by substantial evidence” in the record,

i.e., the various medical reports. Revels requires no more. Id. at 663.

SSR 12-2p offers “guidance” on determining the existence of fibromyalgia

(which is not at issue in this case). See 2012 WL 8104869 at *1 (July 25, 2012).

The closest the ruling comes to weighing medical opinions is a statement that

“[w]idespread pain and other symptoms associated with [fibromyalgia], such as

fatigue, may result in exceptional limitations that prevent a person from doing the

full range of unskilled work in one or more of the exceptional categories . . .”

Nothing in that statement calls into question the weighing of the conflicting

2 medical opinions performed by the ALJ in this case.

Because I agree with the district court that the ALJ’s decision was supported

by substantial evidence in the record, I would affirm.

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