FILED
NOT FOR PUBLICATION
FEB 10 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD G. EITNER, No. 19-35948
Plaintiff-Appellant, D.C. No. 3:18-cv-05607-RAJ
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted February 2, 2021
Seattle, Washington
Before: GRABER, McKEOWN, and PAEZ, Circuit Judges.
Claimant Gerald Eitner appeals from the district court’s judgment affirming
the decision of the Commissioner of Social Security denying his claim for
disability benefits. Reviewing for substantial evidence the Administrative Law
Judge’s ("ALJ") factual findings, Biestek v. Berryhill, 139 S. Ct. 1148, 1154
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(2019), we reverse and remand for reconsideration.
1. The ALJ and Appeals Council did not err in evaluating the medical
opinion evidence. In discounting the opinion of the physician’s assistant, Mike
Myers, they gave germane reasons, Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir.
2017), for doing so.1 Myers’s opinion was inadequately supported and inconsistent
with medical evidence in the record.
2. But the ALJ did not give specific, clear, and convincing reasons to
discredit Claimant’s testimony regarding the extent, severity, and limiting effects
of his fibromyalgia. Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014).
Claimant’s testimony as to the severe pain and persistent fatigue he experienced as
a result of that condition was consistent with the medical evidence. For example,
Claimant’s rheumatologist observed that he had a "very positive" tender point
screen.
Moreover, the ALJ failed to consider possible reasons why Claimant did not
seek or obtain treatment, including the possible lack of effective treatment for
fibromyalgia and the manner in which fibromyalgia interacted with his other
impairments. SSR 16-3p, 2017 WL 5180304, at *9 (Oct. 25, 2017); see also
1
At the time, Myers was not considered an "acceptable medical source." 20
C.F.R. § 404.1513(d)(1)(2013) (amended 2017); Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012).
2
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)
("[A]lthough a conservative course of treatment can undermine allegations of
debilitating pain, such fact is not a proper basis for rejecting the claimant’s
credibility where the claimant has a good reason for not seeking more aggressive
treatment."). At the hearing, the ALJ asked Claimant whether he had received any
specific treatment for the condition, but the inquiry ended there.
The ALJ’s omission of fibromyalgia from the list of severe impairments and
discrediting of Claimant’s testimony regarding the condition were not harmless
errors because, as explained below, the ALJ did not meaningfully consider the
physical limitations of the impairment in the remainder of his analysis. Buck v.
Berryhill, 869 F.3d 1040, 1048–49 (9th Cir. 2017); Stout v. Comm’r, Soc. Sec.
Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006). Had the ALJ included
fibromyalgia as a severe impairment or credited Claimant’s testimony about his
symptoms, the result likely would have been different. See Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005) ("A decision of the ALJ will not be reversed for
errors that are hamless."). Even though the ALJ gave convincing reasons to
discredit Claimant’s testimony as to the symptoms caused by his other
impairments, including scleritis and granulomatosis with polyangiitis, the
3
fibromyalgia-related error is still harmful because it negates the validity of the
ultimate credibility conclusion. Carmickle, 533 F.3d at 1162–63.
3. Although the ALJ wrote that he considered "the effects of pain from the
possibility of" fibromyalgia in the residual functional capacity ("RFC")
assessment, Claimant’s physical limitations (such as his reduced stamina and pain)
were not meaningfully reflected. Because the ALJ failed to include all of the
physical limitations described by Claimant relating to his fibromyalgia, the
evidence did not support the RFC assessment and step-five finding. See DeLorme
v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) ("If the hypothetical does not reflect
all the claimant’s limitations, we have held that the expert’s testimony has no
evidentiary value to support a finding that the claimant can perform jobs in the
national economy.").
4. The record does not require the ALJ to find Claimant disabled, even if the
evidence is reconsidered in light of his fibromyalgia diagnosis and symptoms.
Thus, we remand for further proceedings. Garrison, 759 F.3d at 1020–21.
REVERSED AND REMANDED.
4