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McConnell v. Commissioner of Social Security

United States District Court, D. Arizona

June 22, 2016

Jon Brian McConnell, Plaintiff,
Commissioner of Social Security, Defendant.


          BRIDGET S. BADE, Magistrate Judge.

         Pro se Plaintiff Jon Brian McConnell seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying his 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 a determination of benefits.

         I. Procedural Background

         On July 25, 2012, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Act. (Tr. 13.)[1] Plaintiff alleged disability beginning October 14, 2007. ( Id. ) After the Social Security Administration (SSA) denied Plaintiff's initial application and his request for reconsideration, he requested a hearing before an administrative law judge (ALJ). ( Id. ) During the hearing, Plaintiff amended the alleged disability onset date to March 2011. (Tr. 33-34.) After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 13-25.) 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 diagnoses and treatment related to Plaintiff's alleged impairments. The record also includes opinions from Plaintiff's treating physician and state agency physicians who reviewed the records related to his impairments, but who did not examine Plaintiff or provide treatment.

         A. Treatment History

         The parties do not discuss Plaintiff's treatment history in detail. (Docs. 11, 12.) Rather, they rely on the ALJ's discussion of Plaintiff's treatment history. The record reflects that Plaintiff received ongoing treatment for chronic back pain before and after he had back surgery in 2006. (Tr. 227-36; Tr. 363, Tr. 382-401, Tr. 404-43, Tr. 452-70.) Plaintiff had lumbar fusion surgery at L3-4 and L4-5 on January 6, 2006. (Tr. 454.) Plaintiff reported that surgery helped his pain until 2010, when his symptoms began to recur. (Tr. 458.) Plaintiff also had chiropractic treatment, physical therapy, and epidural injections. (Tr. 382, 387, 392-401, 454.) Plaintiff saw Kenneth Fisher, M.D. regularly for his chronic back pain. (Tr. 404-43, 534-46, 606-14.)

         Plaintiff was treated for depression at West Valley Behavioral Health. (Tr. 475-94) Plaintiff was assessed with depression and assessed a Global Assessment of Functioning (GAF) score of 54. (Tr. 479, 567.) An April 4, 2013 treatment note states that Plaintiff was angry with the world and felt hopeless and frustrated. (Tr. 561.)

         B. Opinion Evidence

         1. Dr. Fisher's Opinions

         a. March 4, 2013 Opinion

         On March 4, 2013, Dr. Fisher completed a medical source statement. (Tr. 562-65.) He stated that he had been Plaintiff's primary care physician since December 18, 2002, and had treated Plaintiff for back issues and other primary care needs. He identified Plaintiff's diagnoses as "failed back syndrome with associated fatigue, sleep disturbance, and depression of a chronic nature." (Tr. 563.) Dr. Fisher stated that Plaintiff had pain in his lumbar, sacral, and thoracic spine. (Tr. 562.) He also stated that Plaintiff was always in pain and that "simple activities" exacerbated his pain. ( Id. ) Dr. Fisher opined that Plaintiff's condition had declined over the past two years and that he was unable to perform gainful work due to chronic back pain. ( Id. )

         Dr. Fisher further opined that Plaintiff could not stand continuously for six hours. (Tr. 563.) If Plaintiff were stationary, pain would set in within about ten to fifteen minutes of standing. ( Id. ) Plaintiff's pain would persist, but be more tolerable with mild activity and he could tolerate up to an hour of standing under those conditions. ( Id. ) Dr. Fisher opined that Plaintiff could sit for one to two hours "until his pain level [reached] a 9 or 10 on a scale of 1 to 10." (Tr. 564.) He opined that changing positions from sitting to standing seemed to help, but Plaintiff could not endure sitting or standing for the length of time required for "adequate job performance." ( Id. )

         Dr. Fisher opined that Plaintiff had to lie down during the day. ( Id. ) He also opined that some days Plaintiff could walk several blocks, and other days he could not walk at all depending on his level of pain and fatigue. Dr. Fisher opined that Plaintiff could frequently lift ten to twenty pounds and could frequently carry eleven to twenty pounds. ( Id. ) Dr. Fisher found that Plaintiff was unable to push or pull "anything that has resistance." ( Id. ) He found Plaintiff "severely limited" in his abilities to bend, squat, kneel, and to perform "torsional movements of his body." ( Id. ) Dr. Fisher stated that Plaintiff "was constantly observed getting up, sitting down, and moving in a deliberate and paced manner that is consistent with chronic back pain." (Tr. 565.) Dr. Fisher concluded that Plaintiff could not return to his past job because it required seventy miles of travel each way and Plaintiff could not safely drive or travel as a passenger that distance without requiring a period of rest such as lying down or napping. ( Id. ) He also explained that Plaintiff would have trouble sitting or standing more than thirty minutes to an hour before having to change positions. ( Id. ) Dr. Fisher did not expect Plaintiff's condition to change. ( Id. )

         b. April 4, 2013 Opinion

         On April 4, 2013, Dr. Fisher completed a Medical Source Statement of Ability to do Work-Related Activities (Physical). (Tr. 530-32.) He identified Plaintiff's diagnoses as chronic lumbago, sciatica, and spondylosis. (Tr. 530.) Dr. Fisher opined that Plaintiff could occasionally and frequently lift or carry ten pounds. ( Id. ) He opined that because of his chronic back pain and sciatica, Plaintiff could stand or walk less than two hours in an eight hour even if the "activity may be intermittent throughout the day." (Tr. 531.) Dr. Fisher opined that Plaintiff could sit for less than six hours in an eight hour day and specified that Plaintiff could sit for thirty minutes during that time period. ( Id. ) He stated that Plaintiff was unable to sit and unable to drive "due to pain that is immediate and that increases with duration." ( Id. ) Dr. Fisher further found that Plaintiff could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes and scaffolds. (Tr. 532.) He found that Plaintiff could occasionally reach, handle, finger, and feel. ( Id. ) Dr. Fisher opined that Plaintiff should avoid working around excessive noise. ( Id. )

         c. February 11, 2014 Opinion

         On February 11, 2014, Dr. Fisher completed a Treating Physician's Statement. (Tr. 599.) He stated the he continued to treat Plaintiff and opined that his limitations were "essentially the same as in March/April 2013 when [he] previously provided functional information" about Plaintiff. ( Id. ) He opined that Plaintiff needed to lie down periodically throughout the day to relieve his pain, Plaintiff's symptoms would likely increase in a sustained working environment for eight hours a day, and Plaintiff's impairments would produce better days and worse days. (Tr. 599.) Dr. Fisher estimated that Plaintiff would be absent, tardy, or need to leave work early more than three times a month. ( Id. ) He indicated that Plaintiff's condition had declined over the past two years and stated that Plaintiff had been unable to sustain work since 2011, "definitely since his reinjury [of his back] in 2012." ( Id. )

         2. D. Rowse, M.D., and Ernest Griffith, M.D.

         On December 8, 2012, state agency physician Dr. Rowse reviewed the record and completed a medical source statement. (Tr. 91-96.) Dr. Rowse opined that Plaintiff could occasionally lift or carry twenty pounds, frequently lift or carry ten pounds, stand or walk (with normal breaks) for six hours in an eight hour day, and sit (with normal breaks) for a total of six hours. (Tr. 93.) She opined that Plaintiff's need to alternate sitting and standing could be accommodated by a brief stretch break every hour. (Tr. 93-94.) On May 28, 2013, Ernest Griffith, M.D., reviewed the record and concurred in Dr. Rowse's assessment. (Tr. 105.)

         3. Nicole Lazorwitz, Psy.D

         On May 23, 2013, Dr. Lazorwitz reviewed the record and completed a medical source statement. (Tr. 105-17.) Dr. Lazorwitz opined that Plaintiff could carry out simple instructions, follow simple work-like procedures, and make simple work-like decisions. (Tr. 115.) She opined that Plaintiff had a fair ability to sustain attention up to two hours at a time, and a fair ability to perform at a consistent pace if he were engaged in a simple, repetitive task. ( Id. ) She opined that Plaintiff had an adequate ability to maintain a regular work schedule and a fair ability to respond to basic work setting changes. ( Id. ) Plaintiff also had a fair to good ability to organize himself independently and set goals. ( Id. )

         4. James Tuggle, M.D.

         On February 6, 2014, Dr. Tuggle wrote a letter on Plaintiff's behalf. (Tr. 644.) He stated that he was treating Plaintiff at Desert Sierra Medical. He stated that a sleep study indicated that Plaintiff had sleep apnea and low oxygen saturation throughout the night. ( Id. ) He opined that these issues could exacerbate Plaintiff's pain. ( Id. ) He did not assess Plaintiff's functional abilities. ( Id. )

         III. Administrative Hearing Testimony

         Plaintiff was in his early fifties at the time of his amended alleged disability onset date and on the date his insurance coverage expired. (Tr. 15, 197.) He had a high school education and had attended but not completed college. (Tr. 38.) He had past relevant work as a sales person. (Tr. 15-25.)

         Plaintiff testified at the administrative hearing that he stopped working in 2007 due to low and mid back pain. (Tr. 42) Plaintiff had spinal fusion in 2006 that had helped his pain for a period of time. (Tr. 43-44.) However, his job at that time required a long commute and he was having increased back pain. (Tr. 45, 51, 61.) In 2011, Plaintiff's back went out when he was doing "core strengthening." (Tr. 45.) Plaintiff testified that he tried various treatment modalities including physical therapy, chiropractic care, traction, acupuncture, epidural injections, and hot yoga. (Tr. 46.) Plaintiff, however, continued to have pain. (Tr. 46, 49.) In April 2012, Plaintiff's back went out again when he was doing some painting for a friend. (Tr. 47-48.)

         Plaintiff testified that hydrocodone helped his pain, but that his symptoms varied from day to day even when taking the medication. (Tr. 50.) He stated that medication "take[s] the edge off, but [the pain] doesn't completely go away." (Tr. 55, 62. 65.) Plaintiff testified that even with pain medication, he had trouble performing at a persistent pace or completing projects. (Tr. 62.) He testified that he lies down in a zero gravity chair throughout the day to relieve his pain. (Tr. 51, 53, 65.) Plaintiff testified that he could not sit or stand for eight hours a day even if he were allowed to alternate positions. (Tr. 54.) He explained that he gets some pain relief the first time he changes positions, but the pain builds over time. ( Id. ) Plaintiff stated that he gets pain after about fifteen or twenty minutes of standing. (Tr. 64.) Plaintiff testified that he is uncomfortable sitting. (Tr. 56.) He testified that he can sit at a computer for thirty minutes at a time, but just a few times throughout the day. (Tr. 52-53.) He testified that he can drive, but not for very long because the pain builds the longer he sits. (Tr. 61.) As an example, Plaintiff stated that during a trip he took with his wife, he was uncomfortable "every five minutes, " and had pain in thirty minutes, "bad pain" in an hour, and had to pull over to take medication after two hours. (Tr. 61-62.) Plaintiff testified that his low and mid back pain is "not going away, " and that it is a "365-day-a-year thing." ( Id. at 54, 56.) Plaintiff testified that he has sleep problems. (Tr. 56-57.) Plaintiff also testified that he had depression and became agitated. (Tr. 59-60.)

         Plaintiff testified that he was self-employed as a singer, but that it had "gotten to be too much" because of his back pain. (Tr. 38-39, 55.) Plaintiff testified that he did some grocery shopping, mowed his lawn with a power mower for a duration of five to six minutes, and did other light yard work with his wife's help. (Tr. 68-69.)

         A vocational expert testified that an individual with the residual functional capacity (RFC) that the ALJ assessed could not perform Plaintiff's past work.[2] (Tr. 18, 76-77.) However, such an individual could perform work as a cashier, marker, or routing clerk, (Tr. 77-78.) The vocational expert testified that a person with the RFC the ALJ assessed, who would also be absent more than three times a month, or tardy, or have to leave work early more than three times a week, would not be able to sustain employment. (Tr. 79-80.) The vocational expert also testified that there would be no work for an individual who had to lie down during the work day. (Tr. 81.) The vocational expert further testified that a person who would be off-task for ten percent of a workday would be unable to sustain employment. (Tr. 85.)

         IV. The ALJ's Decision

         A claimant is considered disabled under the Social Security Act if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard for supplemental security income disability insurance benefits). To determine ...

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