               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 08-2486

                           RACHEL JOHNSON,

                       Plaintiff, Appellant,

                                    v.

                        MICHAEL J. ASTRUE,
          Commissioner, Social Security Administration,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

          [Hon. William E. Smith, U.S. District Judge]


                                 Before

                        Lynch, Chief Judge,
                Lipez and Howard, Circuit Judges.



     James J. Gannon and Green & Greenberg, on brief for
appellant.
     Dulce Donovan, Assistant U.S. Attorney, and Robert Clark
Corrente, U.S. Attorney on brief for appellee.


                             July 21, 2009
          Per Curiam.    Claimant Rachel Johnson appeals from the

judgment of the Rhode Island district court affirming the denial of

her application for Social Security disability benefits.   Claimant

alleged disability based primarily on fibromyalgia and a mental

condition (depression and anxiety), and, after a hearing, an

administrative law judge (ALJ) concluded that although claimant

could not return to her past work due to these severe conditions,

claimant nonetheless retained the capacity for light to sedentary

work which (1) is unskilled, routine, and repetitive, (2) provides

an opportunity to alternate between sitting and standing at roughly

30-minute intervals during the day, and (3) involves no overhead

work with the left arm and no kneeling, crawling, climbing, or

squatting.   In finding that there were jobs that a person with such

limitations could perform, the ALJ relied on the testimony of a

vocational expert (VE).      While we agree, for essentially the

reasons stated in the Report and Recommendation of the magistrate

judge, which was adopted by the district judge, that substantial

evidence supports the ALJ’s conclusion that claimant’s mental

impairment was not disabling, we conclude that the ALJ’s reasoning

that claimant’s fibromyalgia also was not disabling was flawed and

must be reexamined.

          We begin with basics.    Fibromyalgia is defined as “[a]

syndrome of chronic pain of musculoskeletal origin but uncertain

cause.”   Stedman’s Medical Dictionary, at 671 (27th ed. 2000).


                                -2-
Further, “[t]he musculoskeletal and neurological examinations are

normal in fibromyalgia patients, and there are no laboratory

abnormalities.”        Harrison’s Principles of Internal Medicine, at

2056   (16th    ed.   2005).     The   American       College    of   Rheumatology

nonetheless has established diagnostic criteria that include “pain

on both sides of the body, both above and below the waist, [and]

point tenderness in at least 11 of 18 specified sites.”                  Stedman’s

Medical Dictionary, supra.

              The principal evidence regarding claimant’s fibromyalgia

for the relevant period -- May 30, 2002 (her onset date) through

June   30,    2003    (the   expiration    of   her    insured    status)   --   is

contained in the reports of Dr. Yousaf Ali, a rheumatologist who

treated claimant.        At her first appointment, in September 2002,

claimant complained of pain and depression, and a musculoskeletal

examination revealed positive, bilateral trapezius trigger points

and “exquisite tenderness” in claimant’s hips and legs.                  Trans. at

267-68.      However, claimant’s motion of her hips, knees, and ankles

was normal, and her neurological examination was grossly intact.

Id. at 268.      Dr. Ali opined that claimant did not appear to meet

the criteria for fibromyalgia.            Id.

              Claimant next saw Dr. Ali in January 2003.              Id. at 269.

At this time, Dr. Ali noted that claimant was doing “much better”




                                       -3-
since she had been getting “local trochanteric bursal injections.”1

Id.       Claimant, however, continued to complain of pain in her

shoulders, hips, and knees.        Id.       Dr. Ali noted the presence of

multiple tender points and, at this time, made a diagnosis of

fibromyalgia.      Id.

             At   claimant’s   third    visit,    in    April    2003,   Dr.   Ali

described her as having “vague arthralgias and myalgias”2 and

feeling as if her joints were “melting.”           Id. at 270.      Dr. Ali then

explained that his diagnosis of fibromyalgia was based on “diffuse

joint symptoms above and below the waist in the setting of negative

serologies and multiple tender points.”             Id.    He also noted that

the   treatment    for   fibromyalgia        involves   analgesics,      physical

therapy, aerobic exercise, and a sleep program.                 Id. at 271.

             On July 11, 2003 -- less than two weeks after claimant’s

insured status expired -- Dr. Ali completed an RFC evaluation form.

Id. at 273.       Dr. Ali indicated, on this form, that claimant (1)

could sit for three hours at a stretch, for a total of four hours

during an eight-hour workday, (2) could stand for one hour at a

stretch, for a total of one hour per workday, and (3) could walk


      1
      The    trochanter is part of the top of the femur (near the
hip), and    a bursa is a “sac or saclike cavity filled with a viscid
fluid and    situated at places in the tissues at which friction would
otherwise    develop.” Dorland’s Illustrated Medical Dictionary, at
1953, 262    (30th ed. 2003).
      2
      Arthralgia refers to pain in the joints, and myalgia refers
to pain in the muscles. Dorland’s Illustrated Medical Dictionary,
at 149, 1205.

                                       -4-
for one hour at a stretch, for a total of one hour per workday.

Id.   Dr. Ali also indicated that claimant could never lift “[u]p to

5 lbs.”    Id.      Since claimant was rated as not being able to sit for

six hours or lift 10 pounds, she lacked the capacity for the full

range of sedentary work. See SSR 96-9p, Implications of a Residual

Functional Capacity for Less than a Full Range of Sedentary Work,

1996 WL 374185, at *6.

              In    concluding       that   claimant   could   perform    light   to

sedentary work, the ALJ gave “little weight” to Dr. Ali’s RFC

assessment, and she provided several unpersuasive reasons for this

decision.      First, the ALJ         noted that, during the relevant period,

Dr. Ali had seen claimant only three times at roughly three-month

intervals.       While the length of time that a medical source has been

treating an individual is a relevant factor in evaluating the

weight to be given to that source’s opinions, see 20 C.F.R. §

404.1527(d)(2)(i), the ALJ here offered no explanation for, or

citation      in    support    of,    her   belief   that   Dr.   Ali’s   treatment

relationship with claimant had been too abbreviated to enable him

to    offer        an    informed     opinion     about     claimant’s    physical

capabilities.           Nor do we think that it is obvious to a lay person

such as the ALJ that Dr. Ali had not treated claimant on a

sufficient number of occasions over a sufficient amount of time.

              The ALJ’s second reason for giving little weight to Dr.

Ali’s RFC assessment was that claimant had shown “considerable


                                            -5-
improvement    in    [her]     shoulder    complaints        after    she    received

trochanteric bursal injections and Ambien for sleep.” Trans. at 27

(emphasis added).        This is a misreading of the record.                       The

injections    that   claimant     received       were   in   her     hips,   not   her

shoulder, and, while Dr. Ali stated that claimant was doing “much

better” after the injections, he did not specify in what respect

she was better; nor, we add, does it appear that Ambien had

anything to do with claimant’s improvement.                   Id. at 269.          More

significant, however, is the fact that this is the only reference

that Dr. Ali made to an improvement in claimant’s condition.

Indeed, local injections in fibromyalgia patients often provide

relief that is only temporary.            Harrison’s Principles of Internal

Medicine, at 2057.

            The   ALJ   next    found     that   Dr.    Ali’s   RFC    opinion     was

inconsistent with his prescription of physical therapy and aerobic

exercise.     The first problem with this reasoning is that this is

the appropriate treatment for fibromyalgia.                  Second, there is no

indication of the level of physical therapy and/or aerobic exercise

that Dr. Ali thought would be suitable for claimant, and, according

to one source, exercise for fibromyalgia patients “should be of a

low-impact type and begun at a low level” with the goal that

“[e]ventually, the patient should be exercising 20 to 30 min[utes]

3 to 4 days a week.”      Id. (emphasis added).           Plainly, if this were

the level of activity that Dr. Ali had in mind, his recommendation


                                        -6-
for physical therapy and aerobic exercise is not inconsistent with

his opinion regarding claimant’s limited physical abilities.

           This leaves what appears to be the ALJ’s primary reason

for giving little weight to Dr. Ali’s limited RFC assessment --

i.e.,   that   such       limitations   were   “of   necessity   based   on   the

claimant’s subjective allegations as the doctor’s examinations of

the claimant were, with the exception of the presence of tender

points, relatively benign.”             Trans. at 27.    Dr. Ali’s “need” to

rely on claimant’s subjective allegations, however, was not the

result of some defect in the scope or nature of his examinations

nor was it even a shortcoming.               Rather, “a patient's report of

complaints,    or     history,    is    an   essential   diagnostic   tool”    in

fibromyalgia cases, and a treating physician’s reliance on such

complaints “hardly undermines his opinion as to [the patient’s]

functional limitations.”          Green-Younger v. Barnhart, 335 F.3d 99,

107 (2d Cir. 2003) (internal punctuation and citation omitted).

Further, since trigger points are the only “objective” signs of

fibromyalgia,       the    ALJ   “effectively    [was]   requiring    objective

evidence beyond the clinical findings necessary for a diagnosis of

fibromyalgia under established medical guidelines,” and this, we

think, was error.         See id. at 106-07 (holding that the ALJ erred in

rejecting the RFC opinion of the claimant’s treating physician on

the ground that, except for the presence of trigger points, there

was no “objective” medical evidence to support such opinion).


                                         -7-
          As a result of all of the foregoing, the ALJ’s reasons

for essentially discounting Dr. Ali’s RFC opinion are significantly

flawed.   And, although two non-examining physicians completed RFC

assessments opining that claimant had the capacity for sedentary or

light work, these assessments provide too cursory a basis upon

which to rest a finding that claimant was not disabled.           “We have

held that the amount of weight that can properly be given the

conclusions of non-testifying, non-examining physicians will vary

with the circumstances, including the nature of the illness and the

information provided the expert.”        Rose v. Shalala, 34 F.3d 13, 18

(1st Cir. 1994) (internal quotation marks and citation omitted).

          In relation to the first such assessment, the non-

examining physician failed to cite claimant’s fibromyalgia as a

diagnosis,   Trans.   at   227,   despite   the   fact   that   the   record

contained, at the relevant time, an opinion from an expert (Dr.

Ali), that claimant, in fact, suffered from such a condition.            We

therefore think that this assessment cannot be accorded much

weight.   The second RFC assessment similarly is flawed because,

although the diagnosis of fibromyalgia was acknowledged, id. at

326, it seems as if this assessing physician misunderstood the

nature of this condition.

          In particular, the physician, in concluding that claimant

retained the functional capacity for light work, basically relied

on the lack of objective findings to substantiate her condition,


                                   -8-
and, as explained supra at 3, such a lack is what can be expected

in fibromyalgia cases.         Because of this error, the second RFC

assessment also is entitled to little weight.          See Rose, 34 F.3d at

18-19 (where the non-examining physicians’ RFC assessments, in

finding that the claimant retained the capacity for at least

sedentary work, relied on the lack of objective evidence to account

for the claimant’s significant level of fatigue associated with his

chronic fatigue syndrome (CFS), such assessments could not provide

substantial support for the ALJ’s conclusion that claimant was not

disabled; that is, a lack of objective proof is normal in CFS

patients).    We add that the latter assessment also suffers from a

second shortcoming -- i.e., it appears that the assessing physician

ignored Dr. Ali’s RFC opinion, see Trans. at 333, although such

opinion was in the record by the time of this assessment.                See

Rose, 34 F.3d at 19 (where a claimant’s RFC depends in large part

on the functional implications of his or her subjective symptoms,

a treating physician’s “on-the-spot examination and observation of

claimant     might    ordinarily   be   thought     important”)    (internal

quotation marks and citation omitted).           We therefore conclude that

the ALJ was not free to disregard Dr. Ali’s RFC opinion, and that

the hypothetical that was presented to the VE -- being based

primarily     on     the   non-examining   RFC     assessments    --   lacked

substantial support in the record.




                                     -9-
             In addition to disregarding Dr. Ali’s opinion, the ALJ

also    decided    not   to     fully    credit    claimant’s        allegations       of

disabling pain, and she based this decision on (1) claimant’s

supposed dereliction in pursuing treatment and (2) the extent of

her daily activities.          In regard to the former, the ALJ first noted

that claimant had declined recommended injections in her knees.

However, this recommendation had been made in May 2001 --about one

year prior to the onset date of May 30, 2002, Trans. at 165 -- and

thus is not pertinent.

             Second,     the    ALJ    cited    claimant’s        failure     to   pursue

physical therapy (PT) that was prescribed in connection with her

recovery from surgery on one of her shoulders (which surgery

removed a cancerous nodule).              Id. at 217-224.           The problem, of

course, is that this PT was unconnected to claimant’s fibromyalgia.

Further,     the   record      shows    that     one   of    claimant’s        treating

physicians had prescribed PT specifically for the fibromyalgia,

and, between April and June of 2003, claimant had attended at least

12 such sessions.        Id. at 225-26, 650-54.          Plainly, then, “[t]his

was not a case in which a claimant failed to seek treatment for

symptoms later claimed debilitating.”               Nguyen v. Chater, 172 F.3d

31, 36 (1st Cir. 1999) (per curiam).

             The ALJ’s third example of claimant’s dereliction in

pursuing treatment similarly is flawed. Specifically, although the

ALJ    is   correct    that    claimant    had    told      one    of   her    physical


                                         -10-
therapists          that    she    had   stopped     taking   Neurontin     (a    pain

medication) because it increased the frequency of her headaches and

that she had not informed her doctors of this decision, Trans. at

652, the ALJ’s description of this event is not entirely accurate.

Specifically, there is no indication, as the ALJ stated, id. at 29,

that claimant had discontinued the Neurontin in order to obtain

replacement medicine, and, in fact, it appears that, at this time,

claimant already was on at least two other pain relievers.3                      Id. at

652, 760, 779.         Moreover, the physical therapist specifically had

instructed claimant to tell her doctors about discontinuing the

Neurontin,      and        the    evidence    does   not   show   whether   claimant

eventually followed this advice.

               As for claimant’s daily activities, the ALJ relied on the

fact that claimant could engage in some of these activities --

e.g.,       light    housework,       meal    preparation,    and   driving      short

distances.          Despite claimant’s abilities in this regard, however,

we see two problems with this reliance. First, such activities are

not necessarily inconsistent with Dr. Ali’s opinion that claimant

could sit for fours hours per eight-hour day and could walk and

stand for one hour each during the same time period.                      And, while

the record shows that claimant probably has the ability to lift



        3
      Confusingly, the ALJ had stated earlier in the opinion that
claimant had taken herself off of the Neurontin without seeking a
replacement, id. at 24, and this is a similarly unsupported
description of the record.

                                             -11-
some amount of weight, this may not be inconsistent with Dr. Ali’s

opinion that claimant could never lift “up to” five pounds.                 That

is, it is unclear whether such an opinion means that claimant never

could lift items weighing, say, one or two pounds.

           Second,    once   the    ALJ     accepted   the      diagnosis     of

fibromyalgia, she also “had no choice but to conclude that the

claimant suffer[ed] from the symptoms usually associated with [such

condition], unless there was substantial evidence in the record to

support a finding that claimant did not endure a particular symptom

or symptoms.”    See Rose, 34 F.3d at 18 (emphasis added).                   The

primary symptom of fibromyalgia, of course, is chronic widespread

pain, and the Commissioner points to no instances in which any of

claimant’s physicians ever discredited her complaints of such pain.

Given this, we do not think that the ALJ’s decision to discredit

claimant was supported by substantial evidence.

           For the reasons given above, the judgment of the district

court is vacated in part, and the case is remanded to that court

with   instructions   to   remand   to     the   Commissioner    for   further

findings and/or proceedings not inconsistent with this opinion.

           It is so ordered.




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