NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLE KLINGENBERG, 

Plaintiff-Appellant, 

 v. 

KILOLO KIJAKAZI, Acting Commissioner 

of Social Security, 

Defendant-Appellee.

No. 22-35423 

D.C. No. 2:20-cv-00282-JAG 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

James A. Goeke, Magistrate Judge, Presiding

Argued and Submitted May 10, 2023

Seattle, Washington

Before: HAWKINS, W. FLETCHER, and IKUTA, Circuit Judges.

Appellant Nichole Klingenberg (“Klingenberg”) appeals the district court’s 

decision affirming the Commissioner of Social Security’s (“Commissioner”) 

decision denying her social security disability benefits. She contends the 

Administrative Law Judge (“ALJ”) erred in rejecting the opinion of doctors who 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 30 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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diagnosed her with fibromyalgia and severe mental impairments. We agree in part 

and remand for further proceedings.

We may set aside the final decision of the ALJ denying a claim for disability 

benefits when the findings are based on legal error or not supported by substantial 

evidence. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Substantial 

evidence is more than a mere scintilla but less than a preponderance; it is such 

relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Gutierrez v. Comm’r, 740 F.3d 519, 522‒23 (9th Cir. 2014) (internal 

quotation marks and citation omitted). 

We conclude the ALJ erred at Step Two by rejecting Dr. Byrd’s fibromyalgia 

diagnosis. In evaluating medical opinions, the ALJ is required to consider multiple 

factors, including supportability and consistency, as well as the doctor’s 

relationship with claimant and specialization. 20 C.F.R. § 416.920c(c); see 

generally Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022). The ALJ described the 

record evidence regarding Klingenberg’s diagnosis as follows:

The claimant testified to fibromyalgia-related pain. She describes 

fibromyalgia as pain in her hip or cramps in her legs. She has flares 

when she cannot sleep through the night.

• September 2017 medical records references a “possible” diagnosis 

of fibromyalgia versus premenstrual dysphoric disorder.

• On exam in January 2019, the claimant had greater than 11 tender 

points on exam but no overt evidence of active synovitis. She had 

normal range of motion with handgrip, wrist, elbow, shoulder, hip, 

and knee. James Byrd, MD diagnosed polyarthralgia.
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• In April 2019, Dr. Byrd indicated that her presentation was 

consistent with fibromyalgia. However, [] she had negative lab 

workup except for low vitamin D.

The ALJ then summarily concluded:

It does not appear that the claimant meets the criteria for fibromyalgia 

set forth in SSR 12-2p. However, even if established fibromyalgia and 

or polyarthralgia does not meet the 12-month durational requirement.

This explanation is insufficient and conclusory. See Woods, 32 F.4th at 792 

(“Even under the new regulations, an ALJ cannot reject an examining or treating 

doctor’s opinion as unsupported or inconsistent without providing an explanation 

supported by substantial evidence.”). The ALJ does not elaborate why he 

concluded Klingenberg does not meet the criteria set forth in SSR 12-2p.1 The few 

1As we explained in Revels v. Berryhill:

The ruling provides two sets of criteria for diagnosing [fibromyalgia], 

based on the 1990 American College of Rheumatology Criteria for the 

Classification of Fibromyalgia and the 2010 American College of 

Rheumatology Preliminary Diagnostic Criteria. Pursuant to the first 

set of 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 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. Pursuant to the second set of 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 

manifestations of six or more fibromyalgia symptoms, signs, or cooccurring conditions, “especially manifestations of fatigue, cognitive 

or memory problems (“fibro fog”), waking unrefreshed, depression, 
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comments made prior to this conclusion—a lack of active synovitis, normal range 

of motion on exam, or “negative lab workup”—are not inconsistent with a 

fibromyalgia diagnosis, whereas the eleven positive tender points, pain flare ups 

that prevent sleep, and ruling out other disorders through lab work are entirely 

consistent with fibromyalgia. See Revels v. Berryhill, 874 F.3d 648, 656‒57 (9th 

Cir. 2017). Although an ALJ can discount fibromyalgia symptoms due to an 

inconsistency with a claimant’s daily activities, id. at 667, here he erred in doing so 

because “moving as much as 100 pounds on at least one occasion and regularly 

walking 1-2 miles” were not inconsistent with limitations caused by fibromyalgia. 

Id. at 657 (“SSR 12-2p recognizes that the symptoms of fibromyalgia ‘wax and 

wane,’ and that a person may have ‘bad days and good days.’” (citation omitted)).

Nor does substantial evidence support the ALJ’s conclusion, again without 

explanation, that “even if established” this diagnosis would not meet the 12-month 

durational requirement. In April 2019, Dr. Byrd specifically opined that 

Klingenberg had suffered from fibromyalgia since at least August 2016. “[M]edical 

reports are inevitably rendered retrospectively and should not be disregarded solely 

on that basis.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). 

anxiety disorder, or irritable bowel syndrome”; and (3) there is 

evidence that other disorders are not accounting for the pain. 

874 F.3d 648, 656‒57 (9th Cir. 2017) (internal citations omitted).
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Although the Commissioner advances various theories in its brief to support 

discounting Dr. Byrd’s diagnosis, we are constrained to review the reasons actually 

asserted by the ALJ in its decision. Connett v. Barnhart, 340 F.3d 871, 874 (9th 

Cir. 2003). As the questions posed to the vocational expert may not have included 

all of Klingenberg’s limitations from this diagnosis, we remand for the ALJ to reevaluate Klingenberg’s residual functional capacity, construing the medical 

evidence “in light of fibromyalgia’s unique symptoms and diagnostic methods, as 

described in SSR 12-2P.” Revels, 874 F.3d at 662. 

However, substantial evidence supports the ALJ’s determination that 

Klingenberg’s mental health issues were not severe impairments. The ALJ gave 

sufficient reasons for finding the opinion of Dr. Genthe unpersuasive, including that 

Dr. Genthe examined Klingenberg only one time, did not review any records 

pertaining to her mental health history, and relied almost exclusively on her selfreporting, which even he noted suggested “an exaggeration of certain problems.” 

See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Dr. Genthe’s 

conclusions were not supported by objective indications and also not consistent 

with other reports in the record, which suggested her depression was mild and 

adequately controlled with medication. See Tonapetyan v. Halter, 242 F.3d 1144, 

1149 (9th Cir. 2001). 

We remand for further proceedings consistent with this disposition.
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AFFIRMED IN PART, REVERSED IN PART, REMANDED.

Each party shall bear their own costs on appeal.