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Swing v. Colvin

United States District Court, District of Arizona

April 1, 2015

Tammy Rene Swing, Plaintiff,
Carolyn W. Colvin, Defendant.



Tammy Rene Swing (Plaintiff) seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying her application for benefits under the Social Security Act (the Act). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in accordance with Local Rule of Civil Procedure 16.1. For the following reasons, the Court reverses the Commissioner’s decision and remands for further proceedings.

I. Procedural Background

On October 21, 2011, Plaintiff filed applications for a period of disability and disability insurance benefits and supplemental security income under Titles II and XVI of the Act. (Tr. 15.)[1] Plaintiff alleged that she had been disabled since March 31, 2010. (Id.) After the Social Security Administration (SSA) denied Plaintiff’s initial applications and her request for reconsideration, she requested a hearing before an administrative law judge (ALJ). After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 15-27.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff’s request for review. (Tr. 1-6); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council.) Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

II. Administrative Record

The record before the Court establishes the following history of diagnosis and treatment related to Plaintiff’s alleged impairments. The record also includes opinions from State Agency Physicians who examined Plaintiff or reviewed the records related to her impairments, but who did not provide treatment.

A. Medical Treatment Evidence

The record reflects that from 2010 through 2013, Plaintiff was diagnosed with fibromyalgia and received regular treatment for fibromyalgia and related symptoms from Dr. Viji Mahadevan (Tr. 515-43), Dr. Sherif Nasef (Tr. 545-53), Dr. Ehab Farouk Abdulab (Tr. 702-05, 718-20), Dr. Ronald Burns (Tr. 955-60), Dr. Andy Le, and providers at Sun Pain Management. (Tr. 1054, 1318-23.)

During a November 2010 appointment with Dr. Mahadevan, Plaintiff reported that she tried to ride her bike, swim, or walk daily to maintain her weight. (Tr. 541.) Dr. Mahadevan recommended that Plaintiff continue with aquatherapy. (Tr. 538, 543, 547.)

In 2011, Dr. Abdulab referred Plaintiff to a neurologist for her headaches. (Tr. 693-94.) Neurologist Jatin Shah, M.D., treated Plaintiff for chronic headaches in 2011 and 2012. (Tr. 633-37, 639-42.) Dr. Shah observed photophobia and phonophobia. (Tr. 633 (noting that Plaintiff was “lying in a dark room when [Dr. Shah] went to examine her because of the headache”), 639 (noting that noise and light bothered Plaintiff during an attempted EMG).) Dr. Shah prescribed medication (Tr. 633-37, 639-42), and prescribed occipital injections in 2011. (Tr. 634.) Plaintiff sought emergency room treatment for headaches several times during 2010 and 2011. (Tr. 1147-50, 1159, 1170, 1180, 1193.)

Plaintiff was also treated for degenerative disc disease of the cervical and lumbar spine. A July 20, 2011 MRI of Plaintiff’s cervical spine showed C5 to C7 spondylosis and arthropathy causing neural foraminal and central stenosis. (Tr. 643-44.) During appointments with Dr. Abdulab in 2011 and 2012, Plaintiff reported low back pain (Tr. 689, 700, 703, 704, 718) and neck pain (Tr. 690-91, 693-94, 703, 704). Plaintiff’s back pain was treated with pain medication, including Percocet and hydrocodone, and lumbar trigger point injections. (Tr. 689, 690-93, 718, 955-56.) Plaintiff was referred to physical therapy for her neck and back pain. (Tr. 572-78, 697, 700, 935.) In May 2011, Dr. Abdulab noted that physical therapy was not helping. (Tr. 697.) On January 25, 2012, Dr. Abdulab stated that Plaintiff had “failed” physical therapy. (Tr. 700.) A January 26, 2012 discharge summary completed by the physical therapist notes that Plaintiff’s compliance was poor, explaining that she attended sixty percent or less of her scheduled appointments. (Tr. 578.)

In 2011, Dr. Mahadevan also treated Plaintiff for pain and swelling in her knees and ankle. (Tr. 520, 533, 538, 542.) A March 2011 MRI of Plaintiff’s right knee revealed chondromalacia along the medial patellar facet. (Tr. 555.)

Plaintiff also received treatment for pain and numbness in her upper extremities. (Tr. 641-42.) In 2011, motor and sensory nerve studies and an EMG revealed “early evidence” of carpal tunnel syndrome. (Tr. 641-42.) Nerve studies and an EMG in 2013 revealed “very early evidence of carpal tunnel syndrome in right upper extremity.” (Tr. 1315-16.) On May 11, 2012, Dr. Shah administered a “left carpal tunnel injection.” (Tr. 631-32 (left wrist injected with bupivacaine and depomedrol).) Treatment notes from Sun Pain Management in 2012 indicate that Plaintiff had a weak grip in her right and left upper extremities and that she wore a brace on her left wrist. (Tr. 935-38, 1338-39.)

B. Medical Opinion Evidence

1. Michael D. Rabara, Psy.D.

As part of the Agency’s consideration of Plaintiff’s applications for benefits, on June 25, 2012, Michael D. Rabara, Psy.D, examined Plaintiff. (Tr. 657-62.) Plaintiff reported fibromyalgia, migraines, irritable bowel syndrome, sore knees, carpal tunnel syndrome, and neck pain. (Tr. 657.) The referral from the Agency indicated that Plaintiff also had short-term memory loss. (Id.) Dr. Rabara administered psychological tests including the WAIS-IV, WMS-IV, and the Trail Making Test. (Id.) He diagnosed depressive disorder with anxious features, pain disorder associated with psychological factors and fibromyalgia, and borderline intellectual functioning. (Tr. 661.)

Dr. Rabara noted that Plaintiff’s “effort was questionable” on psychological testing. (Tr. 660.) With regard to the WAIS-IV intelligence test, Dr. Rabara stated that Plaintiff’s scores were provided “only for reference” because their “validity is uncertain secondary to questionable effort.” (Id.) Dr. Rabara explained:

Her demeanor during the interview was polite and compliant, but there was a sense that she was overemphasizing her various symptoms and limitations. However, this is difficult to judge without any supporting medical records, but it may be relevant that she exhibited a number of overt pain behaviors throughout the exam. During the testing, she frequently complained about the perceived difficulty of the various tasks presented to her and sometimes seemed to give up very easily. She also seemed to be calling attention to her various pain complaints. Her effort seemed variable at best, but on the Rey 15 Item Memory Test, she recalled only 1 item in the correct position. She then included 10 items not in the original stimuli and in and positions that had a vertical, rather than horizontal sequence of the original design. Such an error is very atypical and suggestive of intentionally poor effort.


Dr. Rabara stated that although Plaintiff seemed to experience genuine depression and anxiety, she had not apparently sought behavioral health treatment and some of her claims seemed “vague.” (Tr. 661.) Dr. Rabara found that Plaintiff’s test scores seemed “much lower than what her reported education and work history suggest.” (Id.) Dr. Rabara estimated that Plaintiff had “borderline to low average cognitive skills, ” but noted that “her current scores were much worse and some highly atypical errors on a screening measure of effort make her overall effort very questionable.” (Id.)

2. Adriana Tarazon Weyer, Ph.D.

On December 14, 2012, state agency consultant Dr. Weyer examined Plaintiff for her benefits applications. (Tr. 1085.) She used several examination procedures including a psychological survey, WAIS-IV, Bender Gestalt Test, WMS-IV, Trail Making Test, and the CTONI-2. (Id.) Dr. Weyer diagnosed major depressive disorder. (Tr. 1088.)

Dr. Weyer noted that Plaintiff displayed “no significant memory or attention problems” during the interview and put forth “good effort” on observation. (Tr. 1088.) However, Dr. Weyer noted that Plaintiff “appeared to be putting forth less than optimal effort” during testing. (Id.) For instance, she “responded very quickly at times and gave up easily on more difficult tasks.” (Id.)

Dr. Weyer administered the CTONI-2, a nonverbal measure of intelligence. (Id.) Dr. Weyer stated that Plaintiff “earned an IQ of 65, ” but was “observed to give up easily on more difficult tasks and provide very quick responses at this point.” (Id.) Dr. Weyer opined that Plaintiff’s IQ score “may reflect lack of optimal effort and therefore is likely an underestimation of her actual abilities.” (Id.) Dr. Weyer concluded that Plaintiff’s effort on intelligence testing “was questionable.” (Tr. 1088.) She also stated that, although Plaintiff seemed to have some level of cognitive impairment, her scores on testing were “difficult to interpret due to [Plaintiff’s] perceived lack of effort during testing.” (Id.)

Dr. Weyer completed a Psychological/Psychiatric Medical Source Statement. (Tr. 1090.) She opined that Plaintiff may perform better with supervision, including explanation of tasks, extra time to complete tasks, and redirection as needed. (Id.) Dr. Weyer also found that Plaintiff may have “moderate difficulties on tasks requiring an ability to complete a normal workday and workweek without interruptions from psychologically based symptoms.” (Id.)

3. Ronald Burns, M.D.

On May 30, 2013, treating physician Dr. Burns completed a medical assessment of ability to do work related physical activities. (Tr. 1310.) He opined that Plaintiff could sit for thirty minutes continuously for a total of two hours in an eight-hour day. (Id.) He opined that she could stand or walk for thirty minutes continuously and for less than an hour total during an eight-hour day. (Id.) To support these limitations, he explained that Plaintiff needed “frequent rest periods.” (Id.)

Dr. Burns found Plaintiff limited to lifting ten pounds occasionally. (Id.) He also opined that Plaintiff should never stoop, squat, crawl, or climb, and that she was limited to occasional reaching and gross or fine manipulation with her right and left upper extremities. (Tr. 1310-11.) He further found that Plaintiff should avoid unprotected heights, moving machinery, and occupational driving. (Id.) He also found that Plaintiff’s pain and fatigue were moderately severe and would cause her to be “off task” eleven to fifteen percent of the time. (Tr. 1312.)

4. State Agency Reviewing Physicians

a. Ramona Bates, M.D.

On May 9, 2012, state agency consultant Dr. Bates reviewed the medical record. (Tr. 620.) She noted Plaintiff’s diagnoses of fibromyalgia, chronic neck and back pain, and headaches. (Id.) She assessed exertional limitations consistent with light work. (Tr. 621, 628.)

b. Paula Lynch, M.D.

On July 18, 2012, state agency medical consultant Dr. Lynch reviewed the medical records and found “insufficient evidence” of mental impairments. (Tr. 665, 677, 679.) Dr. Lynch opined that the available medical evidence was insufficient to establish mental impairment status or function relevant to a date last insured of March 31, 2010. (Tr. 677, 679.)

c. Susan Daugherty, Ph.D.

On January 16, 2013, Susan Daugherty, Ph.D., reviewed Plaintiff’s medical records. (Tr. 1102-15.) Dr. Daugherty noted that Plaintiff had mild restriction in activities of daily living, moderate difficulties maintaining social functioning, and moderate difficulties maintaining concentration, persistence, or pace. (Tr. 1112.) She concluded that Plaintiff could perform work “where interpersonal contact is incidental to the work performed, e.g. assembly work; complexity of tasks is learned and performed by rote, few variables, little judgment; supervision required is simple, direct and concrete (unskilled).” (Tr. 1100-01.)

III. The Administrative Hearing

Plaintiff was in her early forties at the time of the administrative hearing and the ALJ’s decision. (Tr. 16, 201.) She had the equivalent of a high school education. (Tr. 45, 658.) She took community college course, but did not earn a degree. (Tr. 45, 658, 1086.) Plaintiff had past relevant work as a custodian, warehouse worker, and machine operator. (Tr. 47, 58-59, 258, 301-08, 332-45.) She testified that she was unable to work due to her impairments and symptoms of impairments including daily headaches, fibromyalgia, carpal tunnel syndrome, and back and neck pain. (Tr. 47, 50.) She testified that her pain medications caused drowsiness and that cortisone injections and a TENS unit aggravated, rather than relieved, her pain. (Tr. 50, 57, 60.) She stated that she wore wrist splints for carpal tunnel syndrome and frequently dropped things. (Tr. 57, 60.) She also testified that she has problems with memory and concentration. (Tr. 63.) The vocational expert testified that an individual ...

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