Minh Kim Truong v. NANCY A. BERRYHILL, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINH KIM TRUONG,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 17-56332
D.C. No. 3:16-CV-02748-H-DHB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted April 8, 2019
Pasadena, California
Before: PAEZ and CLIFTON, Circuit Judges, and KATZMANN,** Judge.
Plaintiff-Appellant Minh Kim Truong (“Truong”) applied for Title II
Disability Insurance Benefits, claiming disability due to fibromyalgia, neuropathy,
depression, and poor coordination. An Administrative Law Judge (“ALJ”) denied
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
FILED
MAY 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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her application, finding that Truong had the severe impairments of mood disorder
and myositis only and that these conditions were not sufficient to render her disabled.
The Appeals Council denied Truong’s request for review, making the ALJ’s decision
the final decision for purposes of judicial review. The district court affirmed the
ALJ’s decision. Truong timely appeals, challenging the ALJ’s holdings that (1) she
did not have fibromyalgia; (2) her physicians’ opinions were entitled to no weight;
(3) Truong and her daughter were not credible; and (4) she was capable of working.
We reverse the judgment of the district court and remand for further administrative
proceedings with instructions to the ALJ to reconsider its determination consistent
with our intervening decision in Revels v. Berryhill, 874 F.3d 648 (9th Cir. 2017).1
The Social Security Administration recognizes two methods for diagnosing
fibromyalgia: the 1990 American College of Rheumatology Criteria for the
Classification of Fibromyalgia (“1990 Criteria”) and the 2010 American College of
Rheumatology Preliminary Diagnostic Criteria (“2010 Criteria”). Social Security
Ruling (“SSR”) 12-2P at 2, available at 77 Fed. Reg. 43,640 (July 25, 2012). Under
the 1990 Criteria:
a person suffers from fibromyalgia if: (1) she has widespread joint pain
1 Revels was issued several months after the district court ruling. As the dissent
notes, “[a] sea-change occurred in 2012, when the SSA issued a ruling recognizing
fibromyalgia as a valid ‘basis for a finding of disability.’” Revels, 874 F.3d at 656.
In Revels, this Court addressed the effects of this “sea-change” and held that failure
to follow the dictates of the new ruling, Social Security Ruling 12-2P at 2,
constituted reversible error.

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that has lasted at least three months (although the pain may “fluctuate
in intensity and may not always be present”); (2) she has tenderness in
at least eleven of eighteen specified points on her body; and (3) there is
evidence that other disorders are not accounting for the pain.
Revels, 874 F.3d at 656–57 (quoting SSR 12-2P at 2–3).
Under the 2010 Criteria:
a person suffers from fibromyalgia if: (1) she has widespread pain that
has lasted at least three months (although the pain may “fluctuate in
intensity and may not always be present”); (2) she has experienced
repeated manifestation of six or more fibromyalgia symptoms, signs, or
co-occurring conditions, “especially manifestations of fatigue,
cognitive or memory problems (‘fibro fog’), waking unrefreshed,
depression, anxiety disorder, or irritable bowel syndrome”; and (3)
there is evidence that other disorders are not accounting for the pain.
Id. at 657 (quoting SSR 12-2P at 3). Notably, “diagnosis of fibromyalgia does not
rely on X-rays or MRIs.” Id.
Here, the ALJ determined that Truong did not have fibromyalgia because the
medical record did not clearly indicate that Truong’s physicians had identified
eleven out of eighteen tender points, as required by the 1990 Criteria. The ALJ did
not consider the 2010 Criteria, which, as discussed above, do not require physicians
to identify any trigger points to diagnose fibromyalgia. However, Revels makes
clear that either set of criteria may support a diagnosis of fibromyalgia. Id. at 656–
57, 662. Indeed, supportive of a diagnosis of fibromyalgia under the 2010 Criteria,
Truong’s medical record contains extensive documentation of co-occurring
conditions, such as fatigue, non-restorative sleep, depression, and anxiety. The

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ALJ’s failure to consider the 2010 Criteria is therefore legal error warranting setting
aside the denial of Social Security benefits. See id. at 654.
We also note that the ALJ improperly evaluated Truong’s physicians’
opinions and Truong’s and her daughter’s testimony in various ways. In his
assessment of Truong’s activities, the ALJ ignored Truong’s reported limitations
while citing the most physical activities discussed in the record, including some that
Truong’s fibromyalgia symptoms now prevent her from undertaking. The ALJ
relied extensively upon Truong’s normal test results to discount her physicians’
opinions and her and her daughter’s testimony. See id. at 656–57, 662–63 (holding
that normal imaging test results, reflexes, gait, muscle strength, sensory functions,
and range of motion are not necessarily inconsistent with fibromyalgia-induced
disability). The ALJ elevated the opinion of a non-examining physician2 over the
opinions of Truong’s treating and examining physicians without adequate
explanation.3 See 20 C.F.R. § 404.1527(c); Revels, 874 F.3d at 654. Additionally,
the ALJ rejected Truong’s physicians’ opinions without considering many pertinent
regulatory factors, such as the length of the treatment relationship and the
2 The non-examining physician only considered the 1990 Criteria when providing
his opinion about Truong’s fibromyalgia diagnosis and disability.
3 Although the ALJ stated that Truong’s physicians’ opinions were inconsistent with
the overall medical record, he based that determination on inappropriate factors, as
previously noted.

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physicians’ relevant medical specialties, prescribed by 20 C.F.R. § 404.1527(c). See
Revels, 874 F.3d at 654 (noting that “[a] doctor’s specialty is especially relevant with
respect to diseases that are ‘poorly understood’ within the rest of the medical
community.” (citing Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th Cir. 2004)).
In sum, the foregoing ALJ actions were all error.
We therefore reverse the judgment of the district court with instructions to
remand to the ALJ for reconsideration consistent with this disposition.
REVERSED AND REMANDED.

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Truong v. Berryhill, No. 17-56332
CLIFTON, Circuit Judge, dissenting:
I respectfully dissent. Where “the evidence is susceptible to more than one
rational interpretation, 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). Here, the ALJ gave specific and legitimate reasons,
supported by substantial evidence, to discredit the opinion of Truong’s treating and
examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
Most critically, none of those physicians documented a sufficient basis for
diagnosing fibromyalgia under either the 1990 or the 2010 Criteria, and “[w]e
cannot rely upon the physician’s diagnosis alone.” Social Security Ruling (“SSR”)
12-2P, 77 Fed. Reg. 43640-01 at 43641 (July 25, 2012). The ALJ also gave
sufficient reasons for his findings that Truong “attempted to portray her pain as
much more limiting than it actually is,” and that her “statements concerning the
intensity, persistence and limiting effects” of her symptoms were “not entirely
credible,” especially given her daily use of a treadmill and regular yoga and Tai
Chi practice.
The majority remands for reconsideration consistent with what it calls our
“intervening” decision in Revels v. Berryhill, 874 F.3d 648 (9th Cir. 2017), which
it says “ma[de] clear that either [the 1990 or 2010] criteria may support a diagnosis
FILED
MAY 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of fibromyalgia.” But as we explained in Revels, any “sea-change” reflected in that
decision “occurred in 2012,” when the SSA issued SSR 12-2P setting forth both
the 1990 and 2010 Criteria. Id. at 656-57. I am not persuaded that Revels provides
sufficient basis for reconsideration, or that the ALJ’s failure to consider the 2010
Criteria was legal error. Significantly, Truong failed to demonstrate to us either in
briefing or at oral argument that she met the 2010 Criteria.
The ALJ’s interpretation of the evidence “may not be the only reasonable
one,” but “it is still a reasonable interpretation and is supported by substantial
evidence,” so “it is not our role to second-guess it.” Rollins v. Massanari, 261
F.3d 853, 857 (9th Cir. 2001). I would affirm the decision denying benefits.
2

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