Sandra Lee Timpone v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDRA LEE TIMPONE,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 18-55155
D.C. No. 2:16-cv-09620-SK
MEMORANDUM*
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).
FILED
MAY 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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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

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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

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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.

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Timpone v. Kijakazi, No. 18-55155
CHRISTEN, Circuit Judge, dissenting:
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.
FILED
MAY 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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