United States District Court, D. Arizona
STORMI R. JACKSON, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.
RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE.
an action for judicial review of the denial of disability
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401-434. Plaintiff Stormi R. Jackson has timely
filed her opening brief,  to which defendant, Nancy A. Berryhill,
the Deputy Commissioner of Social Security for Operations,
has responded. Oral argument was not requested and is not
18, 2010, plaintiff filed an application for disability
benefits under Title II of the Social Security Act. Plaintiff
alleges that she became disabled on February 16, 2010.
Plaintiff alleges that she is disabled because of chronic
pain, back pain, arthritis, depression, anxiety, insomnia,
ADD, sciatica, degenerative disc disease, irritable bowel
syndrome, bladder incontinence, spinal-foraminal stenosis,
disc bulging with annular tears, gastritis, flank and
abdominal pain, numbness/weakness in both hands, numbness in
feet, memory loss, and dizzy spells. Plaintiff's claim
was denied initially and on reconsideration. Plaintiff
requested an administrative hearing, which was held on
December 1, 2011. On December 20, 2011, the ALJ denied
plaintiff's claim. Plaintiff sought review by the Appeals
Council. On July 2, 2013, the Appeals Council sent
plaintiff's claim back to the ALJ to reconsider
plaintiff's RFC. Upon remand from the Appeals Council,
the ALJ held an administrative hearing on February 25, 2014.
A supplemental hearing was held on August 6, 2014. On October
8, 2014, the ALJ again denied plaintiff's claim.
Plaintiff sought review by the Appeals Council. On May 1,
2015, the Appeals Council remanded plaintiff's claim to a
different ALJ to once again reconsider plaintiff's RFC.
After an administrative hearing on January 20, 2016, the ALJ
again denied plaintiff's claim. On June 27, 2017, the
Appeals Council denied plaintiff's request for review,
thereby making the ALJ's March 1, 2016 decision the final
decision of defendant. On August 20, 2017, plaintiff
commenced this action in which she asks the court to find
that she is entitled to disability benefits.
was born on May 5, 1973. Plaintiff was 44 years old at the
time of the January 20, 2016 hearing. Plaintiff has a GED.
Plaintiff lives with her mother. She has three children, all
of whom are now adults. Plaintiff's past relevant work
includes work as a medical assistant and a receptionist.
ALJ's March 1, 2016 Decision
first determined that plaintiff “last met the insured
status requirements of the Social Security Act on September
then applied the five-step sequential analysis used to
determine whether an individual is disabled.
one, the ALJ found that plaintiff had “not engage[d] in
substantial gainful activity during the period from her
alleged onset date of February 16, 2010 through her date last
insured of September 30, 2015. . . .”
two, the ALJ found that “[t]hrough the date last
insured, the claimant had the following severe impairments:
status post lumbar fusion; sacroilitis; lumbago; degenerative
changes of the cervical spine; unspecified myalgia/myositis;
history of attention deficit disorder; major depressive
disorder; generalized anxiety disorder; and somatoform
disorder. . . .”
three, the ALJ found that “[t]hrough the date last
insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1. . . .”The ALJ considered Listing
1.04 (disorders of the spine), Listing 12.02 (neurocognitive
disorders), Listing 12.04 (depressive, bipolar and related
disorders), Listing 12.06 (anxiety and obsessive-compulsive
disorders), and Listing 12.07 (somatic symptom and related
disorders). The ALJ considered the “paragraph
B” criteria and found that plaintiff had mild
limitation of activities of daily living, moderate
limitations in social functioning; moderate difficulties with
regard to concentration, persistence, or pace; and no
episodes of decompensation. The ALJ also found that the
“paragraph C” criteria for Listings 12.02, 12.04,
and 12.06 had not been met. As part of his step three
findings, the ALJ found that “fibromyalgia is not a
medically determinable impairment” in this case
“because neither of the two sets of criteria for
diagnosing fibromyalgia described in sections II.A and II.B
of SSR 12-2p is met.”
steps three and four, the ALJ must, as an intermediate step,
assess the claimant's RFC.” Bray v. Comm'r
of Social Security Admin., 554 F.3d 1219, 1222-23 (9th
Cir. 2009). The ALJ found
that, through the date last insured, the claimant had the
residual functional capacity to perform light work as defined
in 20 CFR 404.1567(c). Specifically, the claimant can lift
and carry 20 pounds, occasionally and ten pounds, frequently;
stand or walk for six hours out of an eight-hour workday; sit
for six hours out of an eight-hour workday; occasionally
climb stairs and ramps, but never climb ladders, ropes or
scaffolds; occasionally stoop, kneel, crouch, and crawl; and
occasionally reach overhead bilaterally. The claimant should
avoid even moderate exposure to extreme cold, unprotected
heights, and moving and dangerous machinery. The claimant is
able to understand, remember and carryout simple instructions
and non-detailed tasks. The claimant is precluded from work
in a setting that includes constant/regular contact with the
general public or more than infrequent handling of customer
found plaintiff's pain and symptom statements less than
credible because they were inconsistent with her activities
of daily living, because they were inconsistent with the
objective medical evidence, because she received unemployment
benefits during the relevant time, because her back condition
was “generally stable through 2013[, ]” because
the treatment for her back pain was “generally
conservative and non-aggressive through August of 2014[,
]” and because plaintiff's back pain improved with
gave significant weight to the opinions of Dr. Dickstein and
Dr. Dodson.The ALJ gave little weight to Dr.
Vogt's opinions. The ALJ gave little weight to PA
Smith's opinion. The ALJ rejected the opinions
of Dr. Thompson. The ALJ gave significant weight to Dr.
Dalton's opinion. The ALJ also gave significant
weight to the opinions of Dr.
Penner and Dr. Garland. The ALJ gave
little weight to the opinions of Dr. Huddleston and Dr.
Novie. The ALJ considered the lay testimony of
Kayli Carrillo, Joy Judd, Gary Enmon, and Steven Lemley but
did not give significant weight to any of this
four, the ALJ found that “[t]hrough the date last
insured, the claimant was unable to perform any past relevant
work. . . .”
five, the ALJ found that “[t]hrough the date last
insured, considering the claimant's age, education, work
experience, and residual functional capacity, there were jobs
that existed in significant numbers in the national economy
that the claimant could have performed. . .
.” These jobs included housekeeping
cleaner, merchandise marker, and routing clerk.
the ALJ concluded that plaintiff “was not under a
disability, as defined in the Social Security Act, at any
time from February 16, 2010, the alleged onset date, through
September 30, 2015, the date last insured. . .
to 42 U.S.C. § 405(g), the court has the “power to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of
the Commissioner. . . .” The court “properly
affirms the Commissioner's decision denying benefits if
it is supported by substantial evidence and based on the
application of correct legal standards.” Sandgathe
v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Id. (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). “‘To determine whether substantial
evidence supports the ALJ's decision, [the court]
review[s] the administrative record as a whole, weighing both
the evidence that supports and that which detracts from the
ALJ's conclusion.'” Id. (quoting
Andrews, 53 F.3d at 1039). If the evidence is
susceptible to more than one reasonable interpretation, the
court must uphold the Commissioner's decision.
Id. But, the Commissioner's decision cannot be
affirmed “‘simply by isolating a specific quantum
of supporting evidence.'” Holohan v.
Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
first argues that the ALJ erred in rejecting Dr. Vogt's
opinion. Dr. Vogt was one of plaintiff's primary care
physicians. On January 14, 2014, Dr. Vogt opined that
plaintiff could sit for 2 hours, stand for 2 hours, and walk
for 2 hours; could frequently lift/carry up to 5 pounds;
could use her upper extremities for simple grasping but no
pushing/pulling; could not use her feet for repetitive
movements; could occasionally bend; could not squat, crawl,
climb or reach; could not be around unprotected heights and
moving machinery; could not be exposed to marked changes in
temperature, humidity, dust, fumes, or gases; and could not
drive automotive equipment. Dr. Vogt also opined that
plaintiff had severe pain and fatigue which would likely
cause interruption of her daily or work routine resulting in
her being off task more than 50% of the time.
Vogt was a treating physician. “As a general rule, more
weight should be given to the opinion of a treating source
than to the opinion of doctors who do not treat the
claimant.” Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995). “[I]f the treating doctor's
opinion is contradicted by another doctor, the Commissioner
may not reject this opinion without providing ‘specific
and legitimate reasons' supported by substantial evidence
in the record for so doing.” Id. (quoting
Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.
1983)). Dr. Vogt's opinion was contradicted by the
opinions of Dr. Dickstein and Dr. Dodson. Thus, the ALJ was
required to give specific and legitimate reasons for
rejecting his opinion.
rejected Dr. Vogt's opinion because it was “brief,
conclusory, and inadequately supported by clinical
findings[;]” because it was “inconsistent with
the objective medical evidence as a whole[;]” and
because it was “inconsistent with the claimant's
admitted activities of daily living. . .
.” Plaintiff argues that these were not
legitimate reasons. As for Dr. Vogt's opinion being brief
and conclusory, this was apparently based on the fact that
Dr. Vogt used a check-the-box form to express his opinion.
This was not a legitimate reason. As the Ninth Circuit has
observed, “there is no authority that a
‘check-the-box' form is any less reliable than any
other type of form; indeed, agency physicians routinely use
these types of forms to assess the intensity, persistence, or
limiting effects of impairments.” Trevizo v.
Berryhill, 871 F.3d 664, 677-78 n.4 (9th Cir. 2017).
second reason the ALJ gave was that Dr. Vogt's opinion
was not supported by clinical findings. Although each of Dr.
Vogt's physical exams of plaintiff was unremarkable,
there are other clinical findings in the record that support
his opinion. Dr. Narwani managed plaintiff's pain, and
his treatment notes, which are extensive, show that he
regularly found that plaintiff had pain throughout her spine
with limited range of motion, spasms, positive straight leg
raising tests, and palpable trigger points throughout her
second reason given by the ALJ for rejecting Dr. Vogt's
opinion was not legitimate.
third reason given by the ALJ was that Dr. Vogt's opinion
was inconsistent with the objective medical evidence as a
whole, “which shows that the claimant's pain was
adequately controlled with pain
management.” This was not a legitimate reason as
evidenced by Dr. Narwani's October 31, 2013 summary, in
which he stated that
[o]ver the course of the last three years, [plaintiff] has
had multiple interventional therapies including injection
therapy such as lumbar epidural steroid injections, lumbar
radio-frequency rhizotomies, thoracic epidural steroid
injections, and lumbar facet joint injections. Although she
did receive some short-term symptomatic relief with these
procedures, unfortunately the relief is not long
lasting. She continues to require opiate pain
medications on a regular basis to remain somewhat functional,
and to continue with her activities of daily living for which
she still needs help from her family. Also, I have tried
several different types of medications, which she has either
failed due to side-effects, ineffectiveness, or not
fourth reason given by the ALJ was that Dr. Vogt's
opinion was inconsistent with plaintiff's reported daily
activities. In rejecting a treating physician's opinion,
the ALJ is required to “set out a detailed and
thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making
findings.'” Trevizo, 871 F.3d at 675
(quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th
Cir. 1989)). The ALJ's only discussion of plaintiff's
daily activities was at step three. There, the ALJ noted that
“[e]xamination notes indicated that the claimant was
independent in . . . her personal hygiene tasks[, ]”
that “claimant was able to do light housekeeping and
clean up after herself[, ]” and that “the
claimant was able to maintain her medical appointments with
pain management and physical therapy on a consistent
basis.” Although this is hardly a detailed and
thorough summary of the facts, it is also not inconsistent
with Dr. Vogt's opinion. The ALJ described limited daily
activities, activities that a person with the limitations
opined by Dr. Vogt could reasonably do. The fourth reason
given by the ALJ for rejecting Dr. Vogt's opinion was not
the ALJ erred in giving Dr. Vogt's opinion little weight.
None of the reasons the ALJ gave for rejecting Dr. Vogt's
opinion were legitimate.
next argues that the ALJ erred as to PA Smith's opinion.
On November 28, 2011, PA Smith opined that plaintiff could
sit for 2 hours; could stand for 2 hours; could walk for 2
hours; could frequently lift/carry up to 5 pounds; had no
limits as to simple grasping but could not push/pull or do
fine manipulation; could not use her feet for repetitive
movements; could occasionally bend; could not squat, crawl,
climb, or reach; could not be around unprotected heights and
moving machinery; could not be exposed to marked changes in
temperature, humidity, dust, fumes, and gases; and could not
drive automotive equipment. PA Smith also opined that
plaintiff had severe fatigue that would “likely cause
interruption of daily or work routine resulting in being off
task more than 50% of the time.”
claims filed before March 27, 2017, physician assistants are
not entitled to the same deference as acceptable medical
sources.” Sesco v. Comm'r of Social Security
Admin., No. CIV-16-03391-PHX-MHB, 2018 WL 1324824, at *2
(D. Ariz. March 15, 2018) (citing 20 C.F.R. §
404.1527(f)). Physician assistants are considered
“other sources” and “[t]he ALJ may discount
testimony from . . . other sources if the ALJ gives germane
reasons as to each source.” Id.
rejected PA Smith's opinion for the same reasons the ALJ
rejected Dr. Vogt's opinion. As discussed above, none
of the reasons the ALJ gave for rejecting Dr. Vogt's
opinion were legitimate. Thus, the ALJ also erred to PA
next argues that the ALJ erred as to the opinions of Drs.
Dalton and Penner. The ALJ gave significant weight to the
opinions of Dr. Dalton and Dr. Penner. Dr. Dalton,
who was an examining source, opined that plaintiff was
“likely to have mild to moderate difficulties
sustaining concentration, performing activities within a
schedule and completing a normal workday at a consistent
pace.” Dr. Penner, a non-examining source,
opined that plaintiff was moderately limited in her ability
to maintain attention and concentration for extended periods,
perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances;
complete a normal workday and workweek without interruptions
from psychologically based symptoms; and perform at a
consistent pace without an unreasonable number and length of
argues that the ALJ's RFC failed to include any
limitations related to sustaining concentration, performing
activities within a schedule, performing at a consistent
pace, or completing a normal workweek or workday. All the ALJ
included in his RFC was that plaintiff “is able to
understand, remember, and carryout simple instructions and
non-detailed tasks.” Plaintiff argues that this
limitation does not address the limitations as to
concentration and pace found by Dr. Dalton and Dr. Penner.
Because the ALJ accepted that she had moderate difficulties
with maintaining concentration, persistence, or pace,
plaintiff argues that the ALJ had to include such limitations
in her RFC. Plaintiff argues that limiting her to simple work
or simple tasks was not sufficient.
did not err as to the opinions of Drs. Dalton and Penner.
This case is analogous to Stubbs-Danielson v.
Astrue, 539 F.3d 1169 (9th Cir. 2008). In
Stubbs- Danielson, Dr. McCollum, an
examining source, had found that Stubbs-Danielson had
“good persistence, but a slow pace in thought and
action” and he “observed that Stubbs-Danielson
could follow three-step instructions.” Id. at
1171. Dr. Eather, a non-examining source, noted Dr.
McCollum's observation about Stubbs-Danielson's slow
pace and opined that she “could perform simple work
without public contact.” Id. The “ALJ
determined that Stubbs-Danielson ‘retain[ed] the
residual functional capacity to perform simple, routine,
repetitive sedentary work, requiring no interaction with the
public.'” Id. “Stubbs-Danielson
argue[d that] the RFC finding d[id] not capture the
deficiency in pace and other mental limitations identified
by” Dr. McCollum and Dr. Eather. Id. at 1173.
The court rejected this argument. Id. The court
explained that while Dr. McCollum had found that
Stubbs-Danielson had moderate limitations in terms of pace,
did not assess whether Stubbs-Danielson could perform
unskilled work on a sustained basis. Dr. Eather's report
did. Dr. Eather's report, which also identified “a
slow pace, both in thinking & actions” and several
moderate limitations in other mental areas, ultimately
concluded Stubbs-Danielson retained the ability to
“carry out simple tasks as evidenced by her ability to
do housework, shopping, work on hobbies, cooking and
Id. The court concluded that “[t]he ALJ
translated Stubbs-Danielson's condition, including the
pace and mental limitations, into the only concrete
restrictions available to him-Dr. Eather's recommended
restriction to ‘simple tasks.'” Id.
here, Dr. Dalton found that plaintiff had moderate
limitations as to concentration and pace. But, Dr. Dalton did
not translate these limitations into concrete work
restrictions. Dr. Penner, who relied on Dr. Dalton's
examination of plaintiff,  also found that plaintiff was
moderately limited as to concentration and pace but
ultimately concluded that plaintiff was “able to meet
the basic mental demands of unskilled work in a low social
context. . . .” The ALJ translated plaintiff's
limitations as to concentration and pace into the only
concrete limitations available to him, Dr. Penner's
recommended restriction to unskilled work in a low social
next argues that the ALJ erred as to the lay testimony of
Gary Enmon, Kayli Carrillo, Steven Lemley, and Jory Judd. On
July 14, 2010, Gary Enmon, plaintiff's friend, reported
that plaintiff needed assistance dressing, doing her hair,
and using the toilet,  that sometimes she needed reminders
to shower and wash up, and that she could make simple meals
and do some laundry, cleaning, and yard work. Enmon
reported that plaintiff has problems getting along with
people because she lacks patience “and gets frustrated
with anxiety attacks.” Enmon reported that any
physical activity plaintiff does is “short-lived,
”that she has trouble finishing what she
starts, needs help with written instructions, and tends to
forget spoken instructions. On June 12, 2010, Enmon
reported that plaintiff's “back cause[s] her pain
all the time[.] She can not move for hours at a time daily.
She has neck pain on a daily basis. She has loss of strength
in hands and arm numbness regularly. Pain shoots from her
buttocks to her leg daily[.]” On March 25, 2012, Enmon
wrote that plaintiff
came to stay with me and my mother in Alaska due to her
medical conditions. . . . While she was here she was sleeping
14 hours plus per day. My mother would cook her meals daily
as it is very painful for her to do herself. When I would
come home from work I would help her shower for this is also
very difficult for her. . . . I witnessed her in much pain
day and night. Her medications don't even help her. I
would have to force her to get up and go outside and get some
fresh air with minimal exercise[.
September 1, 2013, Kayli Carrillo, plaintiff's oldest
child, wrote that
[t]here are many times I need to bring my mom down to stay
with me and my family when there is no one else around that
can help her because she cannot take care of herself or her
own needs. She is not able to stand long enough to cook a
meal, shop for food, bathing is difficult. There are many
days she cannot even get out of bed or turn over without
assistance. I'll try to get her out to get fresh air and
some exercise. When she does get out it usually ends up
making [our] trip or activity . . . short for my mother can
only be out for a very short period of time before she is in
tears from her pain. . . .
November 12, 2013, Steven Lemley, plaintiff's friend,
Ever since I have known [plaintiff] she has had trouble with
her back. . . . She is in great pain all the time which is
continuing to get worse over all the years I have known her.
Stormi was finally diagnosed with fibromyalgia a few years
[ago]. When she has fl[ares] of this, which is often[, ] it
increases her chronic pain severely. . . . Stormi can't
enjoy life for [she] is hardly able to leave the house, enjoy
her children and grandbaby. She has lost many friends and
seems to be in a depressed state most of the time. She is in
need of assistance with daily chores, and personal hygiene. .
December 30, 2015, Joy Judd, plaintiff's aunt, wrote that
[t]he past 7-8 years I saw an extreme personality change.
[Plaintiff] has always been a happy, willing, hard working
woman who has been “there” for everyone and all
of a sudden, her sunny disposition and logical look on life
changed. She can barely walk from one place to the next
without extreme pain and a lot of anger in her tone of voice.
The personality changes from constant pain, the lack of
mobility and inability to do anything without resting a lot
has taken its toll on her and everyone else. I see her trying
to do things but the tears and pain in her face really hurt
considered this testimony but declined to give any of it
order to discount competent lay witness testimony, the ALJ
must give reasons that are germane to each
witness.'” Rounds v. Comm'r Social Sec.
Admin., 807 F.3d 996, 1007 (9th Cir. 2015) (quoting
Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir.
the ALJ discounted the lay testimony because these
individuals “are not medically trained to make exacting
observations as to dates, frequencies, types and degrees of
medical signs and symptoms, or of the frequency or intensity
of unusual moods or mannerisms[.]” Defendant
concedes that this was not a proper reason.
the ALJ discounted the lay testimony because of the
witnesses' “personal relationships as . . . family
and friends” of plaintiff. But, an ALJ may not
reject lay testimony merely because the witness has a
personal relationship with the claimant. Valentine v.
Comm'r Social Sec. Admin., 574 F.3d 685, 694 (9th
the ALJ did not give significant weight to this testimony
because it was “not consistent with the preponderance
of the opinions and observations of the medical doctors in
this case.” But, an ALJ cannot “discredit . .
. lay testimony” because it is “not supported by
medical evidence in the record.” Bruce v.
Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). “The
fact that lay testimony . . . may offer a different
perspective than medical records alone is precisely why such
evidence is valuable at a hearing.” Diedrich v.
Berryhill, 874 F.3d 634, 640 (9th Cir. 2017).
the ALJ erred as to the lay testimony. None of the reasons
the ALJ gave for rejecting this testimony were proper.
plaintiff argues that the ALJ erred in finding her pain and