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Martinez v. Commissioner of Social Security Administration

United States District Court, D. Arizona

November 1, 2017

Antonio Perez Martinez, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          DAVID K. DUNCAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Antonio Perez Martinez (“Claimant”) appeals the Commissioner of the Social Security Administration's decision to adopt Administrative Law Judge Ted Armbruster's (ALJ's) ruling denying his applications for Disability Insurance Benefits and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. (Doc. 7 at 2)[1] Claimant argues that the ALJ erred by improperly: (1) finding that Claimant could perform his past job “as generally performed”; (2) finding that Claimant did not suffer from a “severe” impairment or a combination of impairments that is “severe” in Step 2 of the sequential analysis; and (3) making a deficient credibility assessment. (Doc. 22 at 1-2)

         This Court has jurisdiction under 42 U.S.C. § 405(g) and subsequent to the parties' consent to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Court will remand this matter.

         I. BACKGROUND

         A. Application and Social Security Administration Review

         Claimant was 59 years old when he filed his applications for disability benefits and SSI in October 2012, alleging a disability onset date of August 6, 2012. (Doc. 18-6 at 2-16) Claimant alleged that the following mental and physical conditions limited his ability to work: depression, anxiety, anger problems, back problems, problems with sitting and standing, and hypertension. (Doc. 18-7 at 7) His applications were initially denied by the state agency on April 9, 2013 (Doc. 18-4 at 27) and again upon reconsideration on December 27, 2013 (Id. at 67). The ALJ conducted a hearing on Claimant's application on January 6, 2015. (Doc 18-3 at 46-85) The ALJ filed a notice of an unfavorable decision on May 11, 2015. (Id. at 20-37) Claimant requested review by the Appeals Council (Id. at 18), which was denied on December 11, 2015 (Id. at 2-6). At that point, the Commissioner's decision became final. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012).

         B. Relevant Medical Treatment

         1. Shelly Myers, D.O., Fastmed Urgent Care

         On January 17, 2012, Claimant was seen by urgent care physician Shelly Myers, and presented with a right-sided headache after falling back off the lower steps of a ladder and hitting his head on a cinder block wall. (Doc. 18-8 at 3) Dr. Myers recorded that Claimant denied “anxiety/nerves, depression, ” and “joint pain, muscle pain.” (Id.) After performing a general exam of Claimant, the doctor noted that Claimant had normal gait and posture, a supple neck and good range of motion, and normal psychiatric presentation. (Id. at 4) She also noted that Claimant would be “fit for duty” as of the next day. (Id.)

         2. Tammy McFadden, LPC and Banner Behavioral Health

         Tammy McFadden, a licensed professional counselor, signed a statement dated August 20, 2012, addressed to the Hartford Life and Accident Insurance Co. regarding Claimant and his claim for short-term disability. (Doc. 18-8 at 6) Ms. McFadden advised Hartford that Claimant was attending an “intensive out-patient mental health program” at Banner Behavioral Health-Chandler for three days a week, and for three hours each day. (Id.) She explained that the program was “at least” fifteen sessions, but could require up to twenty-four sessions depending on the individual's needs. (Id.) Ms. McFadden completed Claimant's discharge summary from the program. (Id. at 12) She described Claimant's condition upon presenting as involving “anxiety, depression, anger, medical, occupational, financial, isolation, limited support.” (Id.) She noted that Claimant attended three sessions but had to withdraw after his insurance company denied his claim. (Id.) McFadden noted she had recommended that Claimant continue medication management with Dr. William Riley and also seek one-on-one therapy from a counselor. (Id.)

         3. Biltmore Healthcare and William Riley, M.D.

         Dr. William Riley saw Claimant from July 2 through October 11, 2012. (Id. at 15-30) Dr. Riley's specialization was in family practice. (Id. at 9) On July 2, 2012, Claimant presented to follow up on his Type 2 diabetes. (Id.) Dr. Riley's examination notes indicated that Claimant's neck was supple, with a full range of motion, and that he showed normal motor strength in his arms and legs. (Id.) Dr. Riley further indicated that a psychological exam found Claimant “alert, oriented, cognitive function intact, cooperative with exam, good eye contact, judgment and insight good, mood/affect full range, no auditory or visual hallucinations, speech clear, thought content without suicidal ideation, delusions, thought process logical, goal directed.” (Id.) Claimant was also documented as denying painful joints or weakness. (Id. at 16)

         On August 9, 2012, Claimant presented to Dr. Riley with new symptoms of anxiety and shaking. (Id. at 17) Dr. Riley quoted Claimant as saying he was very nervous, that he was “dealing with [his] job again, ” he had been “written up, ” “came very close to doing something stupid, ” “might need some time off, ” and was “afraid to go back to work because someone might get hurt.” (Id.) Dr. Riley's notes indicated that Claimant was “mildly verbally agitated, ” but “in no acute distress, ” exhibited “[t]ight bilat[eral] trapezei, ” was “alert and oriented, ” with a “grossly normal” cognitive exam, a normal gait, good insight and judgement, a full range of mood/affect, clear thought content without suicidal ideation, logical thought process, and that he was “agitated vaguely threatening towards others if he has to go back to work tomorrow but appropriately asking for time off.” (Id. at 17-18) Dr. Riley documented that he prescribed new medications for anxiety, and recommended that Claimant see a psychiatrist to adjust his medications, a psychologist for counseling, and that he told Claimant he expected him to have scheduled an appointment with a psychiatrist before Dr. Riley saw him back in a week. (Id. at 18)

         On August 17, 2012, Dr. Riley reported that Claimant had made an appointment with a psychiatrist for early September 2012, and that he had reported experiencing “one of the worst days with depression and anger.” (Id. at 19) Dr. Riley saw Claimant again on August 27, 2012. The doctor indicated that once Claimant had seen a psychiatrist on September 10, 2012, Claimant could discuss any additional time needed off from work with the psychiatrist rather than with Riley. (Id.) Dr. Riley documented that Claimant told him he was experiencing trouble with concentration, mood swings, depression, sleeplessness, and fear of going back to work, “because he doesn't know what might set him off” if he did. (Id. at 21) The doctor observed that Claimant had an obvious “coarse tremor” when he held his hands out in front of him, but that the tremor was not obvious at rest or at any other time during the appointment. (Id. at 22)

         Claimant next saw Dr. Riley on September 13, 2012. (Id. at 24) The doctor reported that Claimant told him he had attended his appointment with the psychiatrist, but that the psychiatrist told him not to return. (Id.) Dr. Riley was not able to reach the psychiatrist or gain access to her charts at that time. (Id.) The doctor noted that it “[s]eems odd he would be told not to return to see [the psychiatrist]. [Claimant] was referred to anger [management] etc. and 2 more weeks will give him time to get set up. I am not really appreciating that the patient is disabled, just angry at his supervisor.” (Id. at 25) Dr. Riley listed his current medications, which included prescriptions to treat high cholesterol, high blood pressure, anxiety, and depression. (Id. at 24)

         Claimant was examined by Dr. Riley on September 27, 2012. (Id. at 27) The doctor reported having spoken to the psychiatrist Claimant saw earlier that month. (Id.) The psychiatrist said she thought Claimant had not been taking his depression medication regularly. (Id.) Claimant told Dr. Riley that he had not been taking his anxiety medication regularly, but that he was back on schedule. (Id.) The psychiatrist had advised Dr. Riley that Claimant was not a candidate patient for her practice because he did not want to be seen as frequently as she wanted to see him. (Id.) Riley noted that Claimant denied this. (Id.) Claimant told Dr. Riley that he still felt depressed, and that he was using a cane because his back hurt. (Id.) Dr. Riley characterized his impressions as follows:

The patient is depressed, but this all seems to have been triggered by a conflict with his boss [who] apparently chastised him at work. The patient feels this is unfair and has not been back to work since. It is difficult to pull apart here his depression from his inability to get along with his boss. I've encouraged him all along to seek a transfer and apparently he has not contacted anybody yet. At this point I have told him all along he needs to go back soon and [the] date set for that is 10/15/12. At this point I think he should be okay to go back from [the] point of view of depression. Whether he is going to get along with his boss or not is another question. He has not made any threatening comments to make me believe he is a threat to anyone at work. I leave it up to the patient where he is going to work and whether he is going to go back to work. I have strongly encouraged him to transfer to another department or away from his boss, he could leave his job if transferring is not feasible and he has talked about retiring, which is also an option. However he needs to make up his mind and get going on something. To the best of my knowledge he is still not got involved in an employee assistance program either.

(Id. at 28) Dr. Riley also reported he asked Claimant to look for a new psychiatrist, and to contact someone in human resources at his job about a transfer out of his department. (Id.) Claimant last saw Dr. Riley on October 11, 2012. The progress notes suggest no change from the previous visit. (Id. at 29-30)

         Dr. Riley completed an “Attending Physician's Statement of Disability” dated October 2, 2012. (Doc. 18-8 at 7-9) This form addressed “mental health claims.” (Id. at 7) Dr. Riley indicated that Claimant's condition was related to his work environment, and he diagnosed Claimant as having major depressive disorder, generalized anxiety disorder, obsessive compulsive disorder, and panic, as well as hypertension, asthma, sciatica and neck pain. (Id. at 7) Dr. Riley identified Claimant's attitude as “guarded, ” his speech as “halted, ” his thought process as “logical/coherent, ” his insight into his illness as “good, ” his psychomotor activity as “[within normal limits], ” his attention as “intact, ” and his concentration and memory as mildly impaired. (Id.) Dr. Riley also opined on Claimant's ability at that time to perform a number of activities during an 8hour work day. He concluded that Claimant demonstrated “no ability” to: direct, control or plan the activities of others; influence people in their opinions, attitudes and judgements; or deal with people. (Id. at 8) Dr. Riley indicated he thought Claimant had only minimal ability (0-33% of a day) to: perform a variety of duties; express personal feelings; make judgments and decisions; or display reliability/consistency. (Id.) He opined that Claimant then had moderate ability (34-67% of a day) to: attain precise set limits, tolerances, and standards; or working under specific instructions. (Id.) Dr. Riley also indicated that Claimant maintained “full” ability (68-100% of a day) to: perform repetitive or short-cycled work; or work alone or apart in physical isolation from others. (Id.)

         4. Dr. Win Kressel, Chiropractor

         On January 9, 2013, Dr. Win Kressel wrote a letter to the Social Security Administration regarding a disability determination for Claimant. (Doc. 18-8 at 47) Dr. Kressel noted that Claimant's MRI dated November 5, 2012 indicated a loss of disc height at ¶ 5/S1 with “disc bulging and an annular tear[, ]” and further, that Claimant had facet arthropathy at ¶ 4/L5. (Id. at 47) The doctor indicated that Claimant had “difficulty walking” and used a cane, experienced pain sitting and standing for even short periods, and should avoid any lifting or bending. (Id.)

         5. Amy Ryn, D.O.

         Claimant was seen by Dr. Amy Ryn on October 7, 2013. (Doc. 18-8 at 105-109) The appointment notes primarily address Claimant's diabetes, cholesterol, and a finger injury. (Id.) Dr. Ryn's notes indicate that Claimant was using a cane due to low back pain. (Id. at 107) She ordered blood tests. (Id. at 108) An x-ray of Claimant's left hand indicated that his injured left hand, fourth finger appeared normal. (Id. at 109)

         Claimant saw Dr. Ryn on January 6, 2014, to follow up on his back pain. (Id. at 102-104) She noted that Claimant reported his pain as worsening, and radiating down into his bilateral thighs and calves. (Id. at 102) She further noted that Claimant demonstrated “no unusual anxiety or evidence of depression.” (Id. at 103) She prescribed Ibuprofen and use of an at-home transcutaneous electrical nerve stimulation (TENS) unit for his back pain. (Id. at 104)

         During an April 7, 2014 office visit, Dr. Ryn noted that Claimant reported his back pain at a severity of 7, and that the pain occurred intermittently. (Id. at 99) She observed that Claimant was negative for gait disturbance and negative for psychiatric symptoms. (Id. at 100) She documented that Claimant was under the care of a chiropractor, Dr. Kressel, and that Claimant was referred to pain management. (Id. at 101)

         Dr. Ryn saw Claimant again on November 6, 2014. (Id. at 94-97) She reported that he was negative for psychiatric symptoms, and exhibited an appropriate mood and affect. (Id. at 96) The doctor did not mention Claimant's back pain other than to indicate that he continued to take Ibuprofen and that he was under the care of pain management. (Id. at 94-97)

         6. Michael Frost, FNP-BC (The Pain Center of Arizona)

         When Claimant initially presented to Family Nurse Practitioner Michael Frost on May 30, 2014, he complained of pain severity of 8 out of 10 in the back of his head and neck, his entire upper back, lower back, buttocks, hips, legs, and shoulders, with numbness in his arms and fingers. (Doc. 18-8 at 142) He reported that previous treatments, including chiropractic care, massage therapy, home exercise, prescription medication and over-the-counter medication either made no change or had no effect. (Id.) Claimant reported coordination problems, memory loss, concentration difficulties, tremors and weakness, as well as anxiety and depression. (Id. at 143) On a depression questionnaire, Claimant reported suffering from each of the problems listed. (Id. at 146)

         During a visit on July 2, 2014, Claimant's reported pain symptoms were much as they had been a month earlier. (Id. at 138-141) It was noted that his mood and affect were normal. (Id. at 141) He continued to use a cane for walking. (Id.) Nurse Practitioner Frost recommended that Claimant begin receiving physical therapy. (Id.) The examination notes indicated that Claimant continued to struggle to find “positions of comfort.” (Id.)

         At Claimant's October 6, 2014 examination, he declared that the severity of his symptoms had worsened. (Id. at 134) Claimant was referred for an MRI of the lumbar spine, with the possibility that Claimant could require steroid injections. (Id. at 136)

         On November 12, 2014, Nurse Practitioner Frost assessed Claimant's neck pain and his lumbar spine degenerative disc disease as unchanged, but his lumbar radiculopathy as having worsened. (Id. at 132) An MRI of his lumbar spine was reviewed, indicating: (1) an annular tear at ¶ 5-S1 with a disc bulge, but not contacting anything; and (2) an L4-5 annular tear had shifted to an L5-S1 annular tear. (Id. at 133) Frost documented that Claimant continued to have some cervical pain, exhibited a normal mood, and was in no acute distress. (Id.)

         7. Banner Gateway Medical Center E.R., David Zimmerman, PA-C

         Claimant was seen by Physician's Assistant David Zimmerman at the emergency room of the Banner Gateway Medical Center on November 1, 2012, where he reported severe back pain which had commenced about three weeks prior, and was improving after seeing a chiropractor “a few times, ” but which worsened after a sneezing fit the day before his presentment to the emergency room. (Doc. 18-8 at 35) Claimant's physical examination notes indicated that he experienced focal tenderness over his left sciatic region, that he was able to stand with assistance and was ambulatory, and tested with a normal range of motion. (Id. at 37) The medical imaging reviewed by Dr. Mirza, discussed below, indicated mild vertebral abnormalities. (Id. at 34) Claimant was prescribed Valium, Toradol (an anti-inflammatory), and Percocet (a narcotic painkiller) for a few days, as needed, advised to apply ice, and follow up with his personal care physician. (Id. at 38)

         8. Images of Claimant's spine

         On July 15, 2007, a radiologic exam was performed by George Engisch, D.O. (Doc. 18-8 at 117) Dr. Engisch's findings were as follows:

[s]tudy of the lumbar spine reveals some minimal degenerative lipping about the anterolateral aspect of the superior endplates of L4 and L5. There is some subtle disk space narrowing at the L5-S1 interspace. The remaining intervertebral disk ...

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