NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 20 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANDRA LEE TIMPONE, No. 18-55155

Plaintiff-Appellant, D.C. No. 2:16-cv-09620-SK

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Steve Kim, Magistrate Judge, Presiding

Submitted May 19, 2022** San Francisco, California

Before: D.W. NELSON, BERZON, and CHRISTEN, Circuit Judges. Dissent by Judge CHRISTEN.

Sandra Lee Timpone appeals the district court’s affirmance of the

Commissioner of Social Security’s denial of her application for Disability

Insurance Benefits under Title II of the Social Security Act. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the district court’s

decision de novo and will set aside the agency’s denial of benefits only if the

decision was not supported by substantial evidence. Buck v. Berryhill, 869 F.3d

1040, 1048 (9th Cir. 2017). We reverse.

1. If a treating or examining doctor’s opinion is contradicted by another

doctor’s opinion, an Administrative Law Judge (“ALJ”) “may only reject it by

providing specific and legitimate reasons” supported by substantial evidence.

Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Ryan v. Comm’r of

Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). The ALJ did not provide specific

and legitimate reasons for discounting the opinions of Dr. Harris and Dr. Arkfeld

and instead according the greatest weight to the opinion of Dr. Vu.

First, the ALJ stated that “there is no indication in the record that suggests

the claimant has to keep her legs elevated given her normal echocardiogram and

nuclear stress tests.” But the ALJ did not explain why normal echocardiogram and

nuclear stress tests contradicted Dr. Harris’s opinion. The ALJ “must do more than

offer [her] conclusions. [She] must set forth [her] own interpretations and explain

why they, rather than the doctors’, are correct.” Reddick v. Chater, 157 F.3d 715,

725 (9th Cir. 1998) (citation omitted). Moreover, the record contradicts the ALJ’s

conclusion, as Timpone’s treatment records are replete with evidence that she

suffered edema and other forms of swelling in her feet and legs, which might

2 require elevation.

Second, the ALJ stated that Dr. Harris’s and Dr. Arkfeld’s opinions were

“simply extreme in light of [Timpone’s] normal neurological findings, full motor

strength, normal gait, and lack of muscle atrophy.” That reasoning reflects a

“fundamental misunderstanding of fibromyalgia.” Revels v. Berryhill, 874 F.3d

648, 662 (9th Cir. 2017). In Social Security disability cases involving

fibromyalgia, “the medical evidence must be construed in light of fibromyalgia’s

unique symptoms and diagnostic methods.” Id. at 662. “Fibromyalgia is

diagnosed ‘entirely on the basis of patients’ reports of pain and other symptoms,’

and ‘there are no laboratory tests to confirm the diagnosis.’” Id. at 663 (quoting

Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004)). A person with

fibromyalgia, such as Timpone, “may have ‘muscle strength, sensory functions,

and reflexes [that] are normal.’” Id. (alteration in original) (quoting Rollins v.

Massanari, 261 F.3d 853, 863 (9th Cir. 2001) (Ferguson, J., dissenting)). Just

stating, as the ALJ did, that a physician’s limitations are “far beyond what is

supported by objective testing” is not a specific and legitimate reason to discount a

treating physician’s opinion in a case involving fibromyalgia. Id. at 665 (internal

quotation marks omitted). The ALJ’s “[s]heer disbelief is no substitute for

substantial evidence.” Benecke, 379 F.3d at 594.

3 Moreover, the ALJ failed to consider multiple factors relevant under 20

C.F.R. § 404.1527(c) when weighing the physicians’ opinions. See Trevizo, 871

F.3d at 676. The ALJ made no reference to the intensive, long-term treating

relationship Dr. Harris and Dr. Arkfeld had with Timpone. The ALJ also failed to

consider that Dr. Harris, an orthopedist, and Dr. Arkfeld, a rheumatologist, are

specialists with particular expertise in Timpone’s claimed impairments. See 20

C.F.R. § 404.1527(c)(5). A “rheumatologist’s specialized knowledge is

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

understood within much of the medical community.’” Revels, 874 F.3d at 664

(quoting Benecke, 379 F.3d at 594 n.4).

2. The ALJ also failed to provide germane reasons to discount Timpone’s

husband’s testimony. The ALJ stated that Timpone’s husband, Ed Timpone, “is

not medically trained to make exacting observations as to dates, frequencies, types,

and degrees of medical signs and symptoms,” making the accuracy of his report

“questionable.” But “[l]ay testimony as to a claimant’s symptoms is competent

evidence that an ALJ must take into account, unless he or she expressly determines

to disregard such testimony and gives reasons germane to each witness for doing

so.” Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017) (quoting Lewis v.

Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). Dismissing lay testimony because the

witness is not medically trained is inconsistent with this established principle, as

4 lay witnesses by definition lack medical expertise but are competent to testify as to

the claimant’s symptoms and daily functioning.

The ALJ also stated that “by virtue of the relationship as the husband of the

claimant,” Ed Timpone could not “be considered a disinterested third party.” The

“fact that a lay witness is a family member,” however, “cannot be a ground for

rejecting his or her testimony,” and, in fact, lay witness testimony from those “who

see the claimant every day”—such as a spouse—“is of particular value.” Smolen v.

Chater, 80 F.3d 1273, 1289 (9th Cir. 1996) (citation omitted). Last, the ALJ

accorded little weight to Ed Timpone’s testimony on the ground that it was “simply

not consistent with the preponderance of the medical evidence.” This conclusion is

based on the ALJ’s fundamental misunderstanding of Timpone’s fibromyalgia, and

in any event, the “fact that lay testimony and third-party function reports may offer

a different perspective than medical records alone is precisely why such evidence

is valuable at a hearing.” Diedrich, 874 F.3d at 640.

3. The ALJ also discounted Timpone’s own testimony regarding her

symptoms and limitations. For reasons discussed already, the ALJ erred insofar as

she rejected Timpone’s testimony based on its purported inconsistency with the

objective medical evidence. The ALJ’s adverse credibility determination may be

supported by substantial evidence in light of Timpone’s testimony regarding her

vomiting symptoms, but the opinions of Timpone’s treating physicians, if afforded

5 the appropriate weight, could bolster Timpone’s credibility, especially because the

single contradiction that supports the ALJ’s credibility determination is immaterial

to the fibromyalgia diagnosis and the opinions of Timpone’s treating physicians.

We therefore reverse and remand to the district court with instructions to

remand to the agency for further proceedings. On remand, the ALJ must

reconsider the medical opinions and lay witness statement in accordance with this

disposition and reevaluate the credibility and weight of Timpone’s testimony in

light of that evidence.

REVERSED AND REMANDED.

6

FILED

Timpone v. Kijakazi, No. 18-55155

MAY 20 2022

CHRISTEN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

In my view, substantial evidence supports the ALJ’s finding that Timpone

lacked credibility because the record does not support Timpone’s unequivocal

testimony that she vomited from her medication daily. Timpone’s credibility is

critical because whether fibromyalgia interferes with her ability to engage in

gainful employment largely boils down to her testimony and the other evidence

establishing the intensity of her symptoms. See Revels v. Berryhill, 874 F.3d 648,

663 (9th Cir. 2017) (holding that “[f]ibromyalgia is diagnosed ‘entirely on the

basis of patients’ reports of pain and other symptoms,’ and ‘there are no laboratory

tests to confirm the diagnosis’” (quoting Benecke v. Barnhart, 379 F.3d 587, 590

(9th Cir. 2004))). Although the evidence in this case is susceptible to more than

one rational interpretation, under the substantial evidence standard of review, we

“must uphold the ALJ’s findings if they are supported by inferences reasonably

drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

Because I would affirm the ALJ’s decision, I respectfully dissent.