                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 12 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SARA M. SAYERS,                                 No.    19-35094

                Plaintiff-Appellant,            D.C. No. 3:17-cv-05967-BAT

 v.
                                                MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Brian Tsuchida, Magistrate Judge, Presiding

                            Submitted March 3, 2020**
                               Seattle, Washington

Before: IKUTA, R. NELSON, and HUNSAKER, Circuit Judges.

      Petitioner Sara Sayers appeals the Social Security Administration’s final

decision, which the district court affirmed. She contends the administrative law

judge (“ALJ”) erred by not assessing the medical evidence in light of her



      *
             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).
fibromyalgia diagnosis. We have jurisdiction under 28 U.S.C. § 1291, and we

vacate and remand.

      Sayers was diagnosed with fibromyalgia. “In evaluating whether a

claimant’s residual functional capacity renders them disabled because of

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

unique symptoms and diagnostic methods . . . .” Revels v. Berryhill, 874 F.3d 648,

662 (9th Cir. 2017). Specifically, fibromyalgia diagnoses are based almost entirely

on subjective “reports of pain and other symptoms,” and “there are no laboratory

tests to confirm the diagnosis.” Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir.

2004). Thus, the ALJ cannot exclusively rely on objective evidence when assessing

a fibromyalgia sufferer’s residual functional capacity (“RFC”). See id. at 594.

      However, when a treating physician indicates that some of a patient’s

symptoms are not caused by fibromyalgia, as here, the ALJ should determine

which symptoms are attributable to fibromyalgia and which are not. To the extent

the patient’s symptoms are caused by fibromyalgia, the ALJ must assess the

patient’s self-reporting of those symptoms in light of the fibromyalgia diagnosis.

See Revels, 874 F.3d at 662; Benecke, 379 F.3d at 594. But to the extent the

patient’s symptoms are not caused by fibromyalgia, the ALJ can discount the

patient’s self-reports under the typical two-step analysis, see, e.g., Vasquez v.

Astrue, 572 F.3d 586, 591 (9th Cir. 2009), because any potential impact to the


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patient’s RFC due to those symptoms would not be “because of fibromyalgia,”

Revels, 874 F.3d at 662.

      Here, the ALJ erred by rejecting Sayers’s limitations noted by Don Lathrop

and Paul Randall, her treating chiropractors, and Joyce Mills and Linnea

Comstock, her treating physical therapists, without fully evaluating this evidence

in light of the fibromyalgia diagnosis. See Revels, 874 F.3d at 665–66. The ALJ

also failed to fully evaluate the findings made by Dr. Nakashima, the

rheumatologist who diagnosed Sayers with weakness. Although no neurological

condition was identified as causing the weakness, Dr. Nakashima’s findings as to

Sayers’s fibromyalgia-related symptoms must be evaluated in light of Sayers’s

diagnosis. See id. at 662.

      The ALJ also erred in evaluating Sayers’s subjective symptom testimony

about nausea, weakness, fatigue, bowel and bladder issues, double vision, and

cognitive problems. Given these are all fibromyalgia symptoms or co-occurring

conditions, SSR 12-2p, 77 Fed. Reg. 43640, 43642 nn.9 & 10 (July 25, 2012), the

ALJ cannot rely exclusively on objective evidence to the extent these symptoms

were caused by Sayers’s fibromyalgia; she must also consider the longitudinal

record, Revels, 874 F.3d at 656–57. Because the ALJ improperly discounted

Sayers’s testimony and used similar reasons to reject lay witness testimony, the lay

witness testimony must also be re-evaluated. Id. at 668; Valentine v. Comm’r Soc.


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Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).

      These errors undermine the ALJ’s ultimate disability decision, see Molina v.

Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), and we vacate the judgment and

direct the district court to remand this case for the agency to analyze Sayers’s

fibromyalgia-related symptoms under SSR 12-2p, and evaluate the fibromyalgia-

related medical evidence under the proper legal standard. See Revels, 874 F.3d at

654–56, 664–68. On remand, the ALJ must distinguish between Sayers’s

fibromyalgia-related symptoms and other symptoms in the medical record

unrelated to this diagnosis. See id. Only a reassessment of the fibromyalgia-related

evidence is required.

      VACATED AND REMANDED.




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