NOT FOR PUBLICATION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 conten ds 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 APPEALS2

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 denyin g 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 preponderan ce; 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. § 4 16.920c(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 great er 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.3

• In April 2019, Dr. Byrd indicated that her presentat ion 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 treati ng
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

1 As 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 Crite ria. 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 co

occurring conditions, “especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed, depression,4

comments made p rior 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, 656‒5 7 (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 subst antial 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 fibromyal gia 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)

.5

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). A s 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 re

evaluate Klingenberg’s residual functional capacity, construing the medical
evidence “in light of fibromy algia’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

suffic ient 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 self

reporting, which ev en 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.6

AFFIRMED IN PART, REVERSED IN PART, REMAN DED.
Each party shall bear their own costs on appeal.