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26 ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DARCY K. WATSON,

Plaintiff,

v.

JO ANNE B. BARNHART, 

Commissioner of Social Security,

Defendant.

No. C06-0514-JCC-MJB

ORDER

This matter comes before the Court on Plaintiff’s application for judicial review of the final

decision of the Commissioner of the Social Security Administration (“Commissioner”), the Report and

Recommendation of United States Magistrate Judge Monica J. Benton (“R&R”) (Dkt. No. 15), and

Plaintiff’s Objections to the R&R (Dkt. No. 16). Having reviewed the materials submitted by the parties,

and finding that oral argument is not necessary, the Court hereby finds and rules as follows. 

I. BACKGROUND

Plaintiff filed an application for Supplemental Security Income (“SSI”) on May 30, 2003 (Record

(“R.”) 30), alleging disability since December 21, 2002 (R. 74) based on arthritis, curvature of the

cervical spine, muscle and joint stiffness, swelling, tightness, and redness and sensitivity of the legs. (R.

38.) The claim was denied initially (R. 33) and on reconsideration (R. 38). Administrative Law Judge

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26 ORDER – 2

(ALJ) Marguerite Schellentrager held a hearing on March 30, 2005, and took testimony from both

Plaintiff and vocational expert Michael Swanson. (R. 273.) The ALJ issued an unfavorable decision on

July 12, 2005, determining that Plaintiff was not disabled within the meaning of the Social Security Act. 

(R. 16.) The Appeals Council denied Plaintiff’s request for review on February 11, 2006, making the

ALJ’s decision the final decision of the commissioner. (R. 5.) Magistrate Judge Monica J. Benton issued

an R&R, recommending that this court affirm the Commissioner’s decision. Plaintiff filed her objections

to the R&R on February 16, 2007, claiming that the ALJ (1) failed to fully develop the record regarding

Plaintiff’s alleged fibromyalgia, degenerative joint disorder, and sleep apnea, (2) did not have substantial

evidence to support her finding that the Plaintiff lacked credibility, and (3) failed to conduct a pain

analysis. (Objections (Dkt. No. 16).)

II. STANDARD OF REVIEW

This Court reviews the record de novo when considering objections to a magistrate judge’s R&R.

See 28 U.S.C. § 636(b)(1). A denial of disability benefits may be set aside only when the ALJ’s findings

are based on legal error or are not supported by substantial evidence in the record. Benton ex. Rel.

Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003); see also Flaten v. Sec’y of Health & Human

Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Substantial evidence means “more than a scintilla, but less

than a preponderance,” Bustamente v. Massanari, 262 F.3d 949, 953 (9th Cir. 2001) (quoting Tackett v.

Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999)), or “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion,” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)

(quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). 

The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and

for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes,

881 F.2d at 750). If there is more than one rational interpretation of the evidence, the ALJ’s conclusion

must be upheld. Burch, 400 F.3d at 679; see Andrews, 53 F.3d at 1039–40. 

//

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III. ANALYSIS

Plaintiff contends that (1) the ALJ did not fully develop the record when she did not order further

testing and examinations upon findings of “possible” fibromyalgia and “probable” sleep apnea by

consulting physicians and a diagnosis of arthritis and degenerative joint disease by the treating physician;

(2) the ALJ did not have clear and convincing reasons to find Plaintiff to be not credible; and (3) the ALJ

did not properly conduct a pain analysis as required by Social Security Ruling (SSR) 96-7p (1996). 

A. Developing the Record

Although Plaintiff bears the burden of proving her disability, 42 U.S.C. § 423(d)(5)(A), the ALJ

has an affirmative duty to fully and fairly develop the record. Webb v. Barnhart, 433 F.3d 683, 687 (9th

Cir. 2005) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). This duty is triggered by

“ambiguous evidence, the ALJ’s own finding that the record is inadequate or the ALJ’s reliance on an

expert’s conclusion that the evidence is ambiguous.” Webb, 433 F.3d at 687. Thus, Plaintiff’s burden of

proof must be evaluated in conjunction with the Social Security Administration’s duty to develop a

complete medical history for claimants, 42 U.S.C. § 423(d)(5)(B) (as amended October 9, 1984), and to

obtain missing information from consultative exam reports, 20 C.F.R. § 416.919p(b). 

1. Fibromyalgia

During a consultative examination ordered by the Social Security Administration, the doctor

conducted a partial test for fibromyalgia. (R. 193.) The appropriate test for fibromyalgia consists of an

eighteen-point pressure test, and a diagnosis of fibromyalgia is given if pain is felt with respect to at least

eleven points. See Sarchet v. Chater, 78 F.3d 306, 306–07 (7th Cir. 1996). In this case, the consulting

physician conducted a ten-point test, and pain was felt at eight of those points. (R. 193.) He then gave a

diagnosis of “possible fibromyalgia with multiple trigger points.” (R. 194.) The physician does not

explain why a full eighteen-point test was not conducted, although he mentions that the examination was

limited because the claimant was in discomfort. (R. 193.) The ALJ held that the test is “not conclusive

and lacks objective medical evidence,” and that therefore “the evidence is insufficient to support this

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26 ORDER – 4

diagnosis as a medically determinable impairment.” (R. 23.) 

Neither side disputes that the appropriate fibromyalgia test consists of eighteen points and that

only ten were administered to Plaintiff. The ALJ does not put forth any reason for finding that claimant

does not have fibromyalgia other than the inconclusive diagnosis resulting from the incomplete test. It

was impossible for Plaintiff to meet the threshold of eleven points because the Social Security

Administration’s consulting physician only administered ten points, and therefore Plaintiff cannot be

faulted for failing to present evidence of fibromyalgia. When the evidence is ambiguous or the ALJ finds

the record incomplete, the ALJ has an affirmative duty to complete the claimant’s medical record. Webb,

433 F.3d at 687. In the face of an ambiguous diagnosis and incomplete test on the record, the ALJ had

an affirmative duty to fully and fairly develop the claimant’s medical record. See also 20 C.F.R. §

416.919p(b) (regarding missing information in consultative reports). Because that duty was not met, the

matter shall be REMANDED for a complete fibromyalgia test.

2. Sleep Apnea

The ALJ held that the claimant “was being evaluated for sleep apnea” but that there were “no

objective medical findings to establish this as a medically determinable impairment.” (R. 23.) Plaintiff

was referred to the Swedish Sleep Medicine Institute and was initially diagnosed with “probable” sleep

apnea. (R. 253.) She was told not to drive and was scheduled for an additional examination. (R. 253.) 

She did not attend the follow-up examination, allegedly because she thought her son had broken his leg. 

(R. 283.) There is nothing in the record to contradict the diagnosis of “probable” sleep apnea.

Claimants must attend consultative exams unless they have a good reason for not going. 20

C.F.R. § 416.918(a). A death or serious illness in one’s immediate family constitutes a good reason. Id.

§ 416.918(b)(4). In this case, the follow-up sleep examination was not a consultative examination

ordered by the Social Security Administration. Instead, it was a referral by Plaintiff’s treating physician. 

However, there is evidence that the ALJ treated the referral like a consultative exam because she asked

repeatedly about it during the administrative hearing. (R. 283, 306–07.) She stated that it would be

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26 ORDER – 5

helpful to have the results of that exam because it is “likely there could be something there.” (R. 307.) 

The ALJ then ordered the record held open for two weeks so that additional results could be added. (R.

309.) One week after the hearing, Plaintiff informed the ALJ that additional sleep studies would not be

available in that time frame. (R. 72.) The ALJ then found that there were not sufficient medical findings

to establish that Plaintiff had sleep apnea. (R. 23.) 

As with the incomplete fibromyalgia test, there is inadequate and ambiguous evidence regarding

Plaintiff’s alleged sleep apnea. Absent a finding that Plaintiff did not have a good reason for missing the

exam, Plaintiff was entitled to have the results of the follow-up exam included in the ALJ’s analysis. The

ALJ had an affirmative duty to fully and fairly complete the record by (1) determining whether Plaintiff

had a good reason for missing her follow-up exam and (2) ordering a follow-up exam if Plaintiff had a

good reason. The ALJ failed to fulfill that duty to complete the record. Accordingly, the matter shall be

REMANDED for completion of the record on this issue. 

3. Degenerative Joint Disease

Plaintiff’s treating physician diagnosed her with degenerative joint disorder and referred her for xrays, but Plaintiff did not follow through on that referral. The ALJ then found that “degenerative

disorders of the back/neck are also noted in the record, but there is no objective evidence or imaging to

establish these disorders as medically determinable.” (R. 23.) As part of Plaintiff’s burden of presenting

evidence of disability, Plaintiff has the responsibility to attend consultative and, by extension, referral

examinations. Because Plaintiff failed to follow through on the referral, it is not compelling for her to

now complain that the decision was made without the results of that referral. The ALJ’s finding that

Plaintiff failed to present objective evidence to support a diagnosis of degenerative joint disease is

AFFIRMED, and the Court ADOPTS the R&R as to this issue. 

B. Lack of Credibility

A credibility determination must be based on the entire record. SSR 96-7p (1996). Therefore, if

additional medical evidence is obtained upon remand, the ALJ must reevaluate Plaintiff’s credibility. If

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26 ORDER – 6

no new medical evidence of impairment is obtained, the ALJ’s credibility determination stands because

she had clear and convincing reasons for her credibility finding. ALJs must give specific, clear and

convincing reasons if they find a claimant to lack credibility. Smolen v. Chater, 80 F.3d 1273, 1281 (9th

Cir. 1996). In this case, the ALJ gave specific reasons for her finding that Plaintiff lacked credibility. For

example, Plaintiff alleged that she had memory problems (R. 298), but received a discount on her rent for

reminding her landlord to take her pills (R. 286). Plaintiff also reported that she had applied to the state

to get paid for taking care of her neighbor. (R. 25.) She later reported that she was “going to send in

papers for SSI if unable to get paid for caring for friend.” (R. 235.) These reasons are clear and

convincing, and based on “more than a scintilla” of evidence. The ALJ’s finding that the Plaintiff lacked

credibility was not in error, but it must be reevaluated if additional medical evidence is obtained on

remand. Accordingly, the matter shall be REMANDED for a reevaluation of credibility after completion

of the record. 

C. Pain Analysis

Plaintiff contends that the ALJ did not use the detailed pain analysis listed in Social Security

Ruling (SSR) 96-7p (1996). SSR 96-7p describes how to evaluate the credibility of an individual and

lists seven factors that the ALJ must take into consideration when assessing that credibility. SSR 96-7p

does not require ALJs to explicitly describe how they took each of those factors into consideration. 

Plaintiff does not assert which of the seven factors the ALJ allegedly did not take into account; nor does

Plaintiff cite any authority beyond SSR 96-7p. In this case, although the ALJ did not list how she

analyzed the factors from 96-7p, she did state “I must consider all symptoms, including pain . . . based on

the requirements of . . . SSR 96-7p.” Because the ALJ stated that she did consider SSR 96-7p, and

without any evidence to the contrary, the Court finds no error in the ALJ’s finding that the Plaintiff is not

credible. However, as described supra section III.B, the ALJ must reevaluate Plaintiff’s credibility if any

additional objective medical is obtained. 

//

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IV. CONCLUSION

For the foregoing reasons, the Court hereby ADOPTS the Report and Recommendation IN

PART and REMANDS the matter to the Social Security Administration for further proceedings before

the ALJ consistent with this Order. The Clerk is DIRECTED to send copies of this Order to all counsel

and to Judge Benton. 

SO ORDERED this 3rd day of May, 2007.AJohn C. Coughenour

United States District Judge

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