NOT FOR PUBLICATION FILED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.