United States District Court, D. Arizona
J. MARKOVICH UNITED STATES MAGISTRATE JUDGE
Roberta Rich (“Rich”) brought this action pursuant
to 42 U.S.C. § 405(g) seeking judicial review of a final
decision by the Commissioner of Social Security
(“Commissioner”). Rich raises three issues on
appeal: 1) whether substantial evidence establishes that
Rich's major depression is a severe impairment; 2)
whether substantial evidence supports the Administrative Law
Judge's (“ALJ”) light Residual Functional
Capacity (“RFC”) assessment; and 3) whether the
ALJ committed harmful error by adopting a light RFC with no
mental limitations. (Doc. 25).
the Court are Rich's Opening Brief, Defendant's
Response, and Rich's Reply. (Docs. 25, 26, & 27). The
United States Magistrate Judge has received the written
consent of both parties and presides over this case pursuant
to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of
Civil Procedure. For the reasons stated below, the Court
finds that the Commissioner's decision should be
filed an application for Disability Insurance Benefits
(“DIB”) on July 27, 2012. (Administrative Record
(“AR”) 19, 50). Rich alleged disability beginning
January 5, 2008 based on diabetes, neuropathy, kidney
disease, heart disease, and depression. (AR 50, 170).
Rich's application was denied upon initial review (AR 49,
63) and on reconsideration (AR 64, 79). A hearing was held on
October 24, 2014 (AR 34), after which ALJ Peter J. Baum
found, at Step Four, that Rich was not disabled because she
was able to perform her PRW as an information clerk (AR 19).
On June 14, 2016 the Appeals Council denied Rich's
request to review the ALJ's decision. (AR 1).
date last insured (“DLI”) for DIB purposes is
December 31, 2012. (AR 19, 155). Thus, in order to be
eligible for benefits, Rich must prove that she was disabled
during the time period of her amended alleged onset date
(“AOD”) of November 1, 2012 and her DLI of
December 31, 2012.
was born on May 1, 1963 (AR 50), making her 49 at the amended
AOD of her disability (AR 239). Rich earned a G.E.D. and
attended some college but did not complete a degree. (AR 39,
171). She worked primarily as a customer service
representative and also did home sales for Avon and
Tupperware and internet sales on eBay. (AR 155, 172, 183).
December 10, 2007 Rich saw Dr. Rothe for abdominal pain and
he noted no unusual anxiety or evidence of depression. (AR
January 7, 2008 Dr. Rothe noted Rich was having problems with
her hips and a heel bruise. (AR 261).
February 11, 2008 Dr. Rothe noted Rich's mood was normal.
March 3, 2008 Dr. Rothe noted that other than her toe
bothering her, Rich was not ill, and her mood was normal. (AR
March 5, 2008 Rich was seen for a follow-up to discuss CAT
scan results and a toe infection. (AR 254). Dr. Rothe noted
she was in moderate distress and her mood was normal.
March 6, 2008 Rich had a follow-up for her aortic stenosis.
(AR 272). Dr. Mendoza noted that symptomatically she was not
any worse off than she was a year before, and recommended a
revascularization procedure. Because her demeanor was
“somewhat aggressive and not very pleasant, ” Dr.
Mendoza suggested Rich find a vascular surgeon more suitable
7, 2008 addendum to the February 29, 2008 CTA abdomen report
notes that a comparison to the prior CT scan from March 2007
shows worsening atherosclerotic stenosis of the distal
abdominal aorta. (AR 297-98).
17, 2008 letter from Pima Heart notes that Rich was positive
for fatigue, claudication, post-prandial abdominal discomfort
and nausea, anxiety and stress related to her medical
problems, and muscle aches. (AR 269). Dr. Tuli noted she was
mildly anxious but appropriate in her answers. (AR 270). He
assessed heart disease and recommended a stress test and an
March 19, 2008 Rich reported nausea, indigestion/heartburn,
stress, and anxiety. (AR 266-67). The doctor documented no
unusual anxiety or evidence of depression, and assessed
generalized abdominal pain and hiatal hernia. (AR 268).
25, 2008 stress test had normal results. (AR 303).
March 27, 2008 an echocardiogram showed normal left
ventricular size and ejection fraction, and no valvular
pathology. (AR 301).
April 3, 2008 Dr. Rothe noted Rich was doing well for the
most part, her mood was normal, and her feet were much
improved since quitting smoking and starting Plavix. (AR
April 7, 2008 letter from Arizona EndoVascular Center notes
that Rich's CT scan showed worsening of severe
atherosclerotic stenosis of the distal abdominal aorta. (AR
350). Dr. Berens recommended an aortoiliac bifurcated graft.
He also noted that she had moderate left renal artery
stenosis that was not severe enough to warrant intervention.
April 17, 2008 Rich had an aortoiliac bifurcated graft
procedure. (AR 274).
5, 2008 letter from Arizona EndoVascular Center states that
Rich was two weeks post aortoiliac bypass and was doing well
overall and able to walk without restriction or pain. (AR
27, 2008 Rich was seen for a follow-up after her aortic
bypass. (AR 329). The nurse documented abdominal pain,
probably related to increased activity, and nausea and
dizziness due to a medication change.
2, 2008 Rich was seen for a follow-up for hypertension,
diabetes, and hypothyroidism. (AR 249). She reported mild
abdominal pain/discomfort but said her hips did not hurt and
her legs were perfect. (AR 249-50). Dr. Rothe noted she was
doing well for the most part and that her mood was normal.
17, 2008 letter from Arizona EndoVascular Center notes that
Rich was two months postoperative and still experiencing
nausea and postprandial discomfort. (AR 264).
August 19, 2008 letter from Arizona EndoVascular Center notes
that Rich had no specific postoperative problems from the
aortobifemoral bypass. (AR 358). She was smoking again and
reported right upper quadrant pain, left thigh and neck
spasms, light headedness, and dizziness. Dr. Berens stated
that he could not isolate a particular problem related to her
vascular disease, and that her symptoms were musculoskeletal.
April 30, 2009 Rich was seen at Arizona Kidney Disease &
Hypertension Center. (AR 315). Dr. Cohen described her as
“a very angry woman” and “was just
complaining as soon as she walked into the room.” He
also noted that she was “very unpleasant” but did
calm down, and that she “was obviously in a very bad
mood.” (AR 316). Rich said she had no problems with
diabetes, denied numbness in her legs, had no pain, but
reported she always felt terrible. (AR 315). She had no
neuropathy symptoms, no claudication, and no psychiatric
problems. (AR 316). Dr. Cohen noted her kidney diseases was
not very bad and that she did not need dialysis, but Rich
kept talking about getting a transplant. He recommended that
she better control her blood pressure and blood sugars.
August 1, 2009 Rich went to the ER with a complaint of left
jaw pain radiating to the left arm and chest pain. (AR 527).
The report notes that while her pain was not necessarily
typical for cardiac pain, she had multiple risk factors and
her symptoms were relieved with nitroglycerin. She left
against medical advice due to lack of insurance/money.
August 4, 2009 Rich was seen for a complaint of chest pain.
(AR 395). She reported that the pain began 1 week ago,
occurred every 1 to 2 days, lasted 1 hour, and was moderate.
Review of systems was positive for chest pain, nausea,
diaphoresis, anxiety, and increased stress. The impression
was chest pain, unspecified, non-cardiac, likely secondary to
stress. (AR 396).
September 16, 2009 Rich had no claudication symptoms, was in
no acute distress, her gait and stance were normal, and her
cardiovascular and abdomen findings were normal. (AR 312-14).
A segmental blood pressure examination showed mild arterial
diseases for the right ABI and no significant arterial
disease for the left ABI. (AR 318). A lower arterial Doppler
showed no significant abnormalities. (AR 320).
October 28, 2009 Rich saw Dr. Los for a new patient
appointment. (AR 678). Rich stated she hadn't checked her
sugars for more than 2 years and that she saw Dr. Tuli and
Dr. Berens for peripheral artery disease. Physical findings
included joints with full range of motion, no edema,
tenderness, or crepitus, positive Hawkins and Neer test on
right, normal gait, and mood unhappy with congruent affect.
(AR 679). Dr. Los assessed diabetes uncertain control,
hypertension stable, hypothyroidism labs ordered,
hyperlipidemia tolerating meds, and peripheral artery
November 5, 2009 Rich saw Dr. Los with a complaint of heel
pain, present for 5 days, and also reported pain in her right
shoulder. (AR 676). Exam of the feet revealed no obvious bony
deformities; Dr. Los assessed plantar fasciitis and
prescribed Ultram for heel and shoulder pain. (AR 677).
November 30, 2009 Rich saw Dr. Los and reported her pain was
much improved. (AR 673). Findings on exam included joints
with full range of motion, no edema, tenderness, or crepitus,
normal gait, and mood unhappy with congruent affect. (AR
674). Dr. Los assessed diabetes poor control, hypertension
stable, and hyperlipidemia tolerating meds.
December 30, 2009 Rich saw Dr. Los for a diabetes check. (AR
670). Physical findings included joints with full range of
motion, no edema, tenderness, or crepitus, normal gait, and
mood unhappy with congruent affect. (AR 672). Dr. Los
assessed diabetes improved control, hypertension stable,
kidney disease stable, and hyperlipidemia tolerating meds.
February 27, 2010 Rich went to the ER with a complaint of
feeling bad, run down, palpitations, and chest pains. (AR
507). She reported symptoms started three weeks ago when her
brother committed suicide. The impression was palpitations
and chest pain secondary to emotional anxiety with a
recommendation that Rich be admitted for further treatment,
but she left against medical advice. Rich went back to the ER
later that day with a complaint of chest discomfort; she
actually came in because she could hear her heartbeat in her
ear and because she had some epigastric discomfort, and then
denied any actual chest pain or discomfort. (AR 497). Her
affect was appropriate, though she was initially somewhat
agitated. (AR 498). The doctor assessed atypical chest pain,
actually epigastric discomfort with negative cardiac enzymes,
likely a GI issue because it did respond to Mylanta.
March 2, 2010 Rich saw Dr. Los for a follow-up after she was
hospitalized for anemia. (AR 667). Rich was calm with a
normal affect. (AR 669). Dr. Los assessed anemia likely due
to a GI bleed and referred Rich for a GI evaluation.
March 3, 2010 Rich had a GI consultation. (AR 686). Rich was
described as pleasant with appropriate mood and affect. (AR
March 4, 2010 Rich was seen at Tucson Endocrine Associates.
(AR 683). Rich reported a 26 year history of diabetes and a
lot of grief after her brother recently committed suicide.
The impression was diabetes uncontrolled, clinical
significant neuropathy absent, increased coronary risk
(smoking, diabetes, peripheral vascular disease, and weight),
and kidney disease stage unknown. (AR 683-84).
March 23, 2010 Rich saw Dr. Los for a follow-up. (AR 663).
Physical findings included joints with full range of motion,
no edema, tenderness, or crepitus, normal gait, and mood
unhappy with congruent affect. (AR 665).
March 26, 2010 Rich went to the ER for a cough and fever. (AR
474). She was described as pleasant and cooperative and
admitted for treatment of pneumonia. (AR 476).
29, 2010 Rich reported right shoulder pain after sleeping on
it wrong. (AR 652). Physical findings included full range of
motion, no edema or crepitus, right shoulder positive for
impingement, normal gait, and mood unhappy with congruent
affect. (AR 654). Dr. Los assessed severe anemia likely from
B12 deficiency, PT referral for right rotator cuff syndrome,
diabetes improved control, kidney disease stable, and
hyperlipidemia tolerating meds.
26, 2010 letter from Ideal Rehabilitation recommends that
Rich have PT for her right shoulder pain, to consist of home
exercises and stretching. (AR 691). A discharge note dated
September 3, 2010 states that Rich reported she was doing
really well and had full range of motion (other than being
able to reach behind to fasten her bra) and no pain. (AR
August 23, 2010 Rich saw Dr. Los for a follow-up. (AR 649).
Findings on exam included joints with full range of motion,
no edema or crepitus, right shoulder positive for
impingement, normal gait, and depressed mood with full
affect. (AR 651). Dr. Los assessed anemia resolved, right
rotator cuff syndrome improved, diabetes improved control,
kidney disease stable, hyperlipidemia tolerating meds, and
self-referral to behavioral health for depression.
September 15, 2010 Rich saw Dr. Los for sciatica and reported
pain radiating down her right leg to her foot, and pain in
right wrist. (AR 646). Physical findings included no back or
hip tenderness, deep tendon reflexes diminished bilaterally,
moderately positive straight leg raise (“SLR”) on
right, and right arm positive Tinel sign. (AR 647). Dr. Los
assessed lumbosacral strain with sciatica and carpal tunnel
syndrome, right wrist, and recommended heat for the back and
a wrist brace.
October 14, 2010 Rich reported having only intermittent
shoulder pain after going to PT, right low back pain that
comes and goes, and she did not go to behavioral health
because she denied depression. (AR 642). Findings on exam
included joints with full range of motion, no edema or
crepitus, negative SLR bilaterally, right shoulder positive
for impingement, right trochanter tender to palpation
(“TTP”), normal gait, and depressed mood with
full affect. (AR 644). Dr. Los assessed right rotator cuff
syndrome improved, hypertension high, right trochanteric
bursitis and possible sciatica, diabetes improved control,
kidney disease stable, hyperlipidemia stable, and depression
self-referral to behavioral health.
October 18, 2010 Rich was seen for concerns about her right
big toe turning purple at times. (AR 393). Review of systems
findings were all negative except for anxiety. (AR 393-94).
Rich had not followed up with Dr. Berens for her peripheral
vascular disease due to insurance reasons and was not taking
her cholesterol medication due to cost. (AR 394).
October 19, 2010 Rich had an ABI with exercise test. (AR
392). The impression was normal left lower extremity ABI;
normal left lower extremity exercise ABI; abnormal right
lower extremity ABI consistent with moderate obstructive
peripheral vascular disease; and abnormal right lower
extremity exercise ABI consistent with mild to moderate
obstructive peripheral vascular disease.
November 11, 2010 a bilateral arterial duplex showed no focal
stenosis. (AR 391).
November 17, 2010 a CTA of the abdomen, pelvis, and lower
extremity showed occlusion of the right limb of the
aortobiiliac bypass graft. (AR 704).
January 16, 2011 Rich went to the ER for chest and neck
discomfort and was described as a “hostile and angry
female in no obvious physical distress.” (AR 442, 444).
She went to the ER 5 days earlier when her symptoms started
but left against medical advice. (AR 442, 444). Her cardiac
markers were mildly positive, there were no obvious changes
in her EKG, and x-rays and CT scan of the chest were normal.
(AR 442, 444, 456, 458). She was discharged home in stable
and improved condition, with a recommendation to quit smoking
and follow-up with her doctors. (AR 442-43).
January 25, 2011 Rich was seen for coronary artery disease
and reported chest pain, claudication, and apprehension. (AR
388-39). Other systems and physical exam findings were
normal. (AR 389).
March 28, 2011, Rich was seen for a complaint of intermittent
claudication and reported waking almost every night with
burning leg pain. (AR 334). Rich reported fatigue and sleep
disturbances secondary to pain, and no anxiety or depression.
(AR 335). The nurse noted normal mood and affect, and
assessed atherosclerosis of the extremities with rest pain.
(AR 336). Rich was referred for further testing and told that
smoking cessation was mandatory. (AR 337).
April 4, 2011 Rich went to the ER complaining of right leg
pain and stated she had a femoral artery occlusion. (AR 637).
She ran out of Oxycodone at home and was unable to bear the
pain. Findings on exam were largely normal, with some TTP of
the calf without swelling, and palpable but diminished pulses
in the entire right lower extremity. (AR 638-39). A CT of the
abdomen and pelvis showed occlusion of the right common iliac
segment of the aorta bilateral iliac graft. (AR 639).
Rich's leg pain improved significantly after her blood
sugar was replenished in the ER and she was normal glycemic.
April 5, 2011 Rich reported she could not get her lab work
done due to lack of insurance. (AR 386). She had no symptoms
attributable to valvular heart disease. Review of systems and
physical exam findings were largely normal. (AR 387).
April 12, 2011 letter from Arizona EndoVascular Center states
that Rich was evaluated for severe right leg claudication.
(AR 363). Dr. Berens opined that the “right aortoiliac
graft limb is occluded and probably shut down over six months
ago, ” and recommended a left-to-right femoral-femoral
6, 2011 Rich had a left-to-right femoral-femoral bypass. (AR
23, 2011 letter from Arizona EndoVascular Center notes that
Rich's right leg pain had improved since the surgery,
that she was experiencing dysesthesias along her thighs
probably related to the ...