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Ramirez v. Commissioner of Social Security Administration

United States District Court, D. Arizona

May 22, 2018

Sabrina Ramirez, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Hon. Deborah M. Fine, United States Magistrate Judge

         Plaintiff Sabrina Ramirez (“Claimant”) appeals the Commissioner of the Social Security Administration's decision to adopt Administrative Law Judge Randolph E. Schum's (“ALJ”'s) ruling denying her application for Disability Insurance Benefits under Title II of the Social Security Act. (Doc. 1 at 1-2)[1] Claimant argues that the ALJ erred by improperly: (1) rejecting treating physician opinions and according only partial weight to the consultative examiner's opinion; (2) listing jobs in excess of her Residual Functional Capacity (“RFC”); and (3) finding her pain symptom testimony only partially credible. (Doc. 15 at 18-24) She urges that her case be remanded to the Commissioner for an award of benefits. (Id. at 24-26) The Commissioner has filed a responsive brief (Doc. 17), and Claimant has filed her reply (Doc. 18).

         This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and with the parties' consent to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Court will vacate the Commissioner's final decision and will remand for further administrative proceedings.

         I. BACKGROUND

         A. Application and Social Security Administration Review

         Claimant was 44 when she filed her application for disability benefits on April 21, 2015, alleging a disability onset date of February 17, 2012. (Doc. 14-3 at 20, Doc. 14-6 at 2) Claimant asserted diagnoses of physical and mental conditions, including ankylosing spondylitis, human leukocyte antigen (HLA)-B27 positive, arthritis, myasthenia gravis, depression, anxiety, and post-traumatic stress disorder (“PTSD”). (Doc. 14-7 at 8)

         Claimant's application was initially denied by the state agency on August 3, 2015 (Doc. 14-4 at 41-42), and again upon reconsideration on December 30, 2015 (Id. at 62-63). The ALJ conducted a hearing on Claimant's application on November 29, 2016. (Doc 14-3 at 67-86) The ALJ filed a notice of an unfavorable decision on February 24, 2017. (Id. at 17-31) Claimant requested review by the Appeals Council (Id. at 16), which was denied on April 26, 2017. (Id. at 2-4) 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).

         In his decision, the ALJ explained that Claimant had filed a prior application for disability insurance benefits and supplemental security income benefits on July 26, 2012. (Doc. 14-3 at 20) The ALJ had also adjudicated Claimant's 2012 application, and had entered an unfavorable decision on January 6, 2015. (Doc. 14-4 at 2-17) The ALJ noted that the Appeals Council denied review of his prior decision on March 23, 2015, and that the prior decision “remains final and binding and res judicata applies with regard to the period through the date of this decision.” (Doc. 14-4 at 20) The ALJ further noted that an “unadjudicated period” existed, raising a presumption of continuing non-disability. (Id.) However, the ALJ found that Claimant had successfully rebutted the presumption by demonstrating “an increase in the severity of [her] impairments and the existence of additional impairments.” (Id. at 21) The ALJ determined that because “new and material” evidence regarding Claimant's disability had been introduced, he was not required to adopt the findings of his prior decision. (Id.) He found no basis to reopen the prior decision, and stated he would only consider a period of disability beginning on January 7, 2015, the day following the date of his prior decision. (Id.) Under this circumstance, the onset date of disability is January 7, 2015.

         B. Relevant Medical Treatment

         1. East Valley Pulmonary Associates/ Radiology reports

         Claimant underwent imaging of her chest area on February 14, 2012, which identified “noncalcified nodular densities” in her lung. (Doc. 14-8 at 31) She was seen by Dr. Firas Joudeh in July 2015, who noted multiple nodules. (Id. at 83-85) In August 2015, Claimant continued to take antifungal medication and reported feeling better. (Doc. 14-11 at 158) Subsequent imaging indicated her nodules were stable. (Id. at 179) In September 2016, Dr. Joudeh reported that, in addition to pulmonary nodules due to coccidioidomycosis (Valley Fever), Claimant had been diagnosed with chronic airway obstruction, and asthma. (Doc. 14-12 at 22) Dr. Joudeh documented that Claimant reported feeling better, was not suffering shortness of breath, but had coughing and phlegm. (Id. at 23) The doctor observed that Claimant's asthma was “likely due to the [p]arrot and cat she has at home[;]' but that she was “not willing to give them up a[s] they help her son with his Autism.” (Id. at 24) In November 2016, Claimant reported excessive sleepiness and fatigue. (Doc. 14-15 at 53) Dr. Joudeh recommended that Claimant continue to take antifungal medication, inhale Albuterol as needed, take other asthma medication as prescribed, and obtain a sleep study for possible sleep apnea as soon as possible. (Id. at 54)

         2. Ophthalmic Surgeons & Physicians

         The record includes Claimant's eye care for the period between February 2012 and December 2014. (Doc. 14-8 at 56-168) Her records indicate Claimant had undergone cataract surgery in her left eye, but was complaining that the “glasses she got after cataract surgery did not work for her.” (Id. at 78, 96) In October 2014, Claimant underwent successful cataract surgery in her right eye. (Id. at 163-164)

         3. Maricopa Integrated Health Systems, Dr. Sheetal Chhaya

         In August 2014, an MRI of Claimant's lumbar spine indicated “no MRI evidence of ankylosing spondylosis of the lumbar spine, ” and the presence of “L3-L4 and L5-S1 central disc protrusions without significant spinal canal or neural foraminal narrowing.” (Doc. 14-9 at 2) An MRI was also conducted on Claimant's pelvic region, and indicated “[b]ilateral sacroiliac joints are unremarkable. Specifically, [there is] no inflammatory signal or bone marrow edema. No evidence of acute fracture or suspicious osseous lesion.” (Id. at 4)

         Beginning in May 2014, Claimant was treated by Dr. Sheetal Chhaya, D.O. (Id. at 7, 40) Dr. Chhaya's September 2014 notes indicate that Claimant had been diagnosed with myasthenia gravis and with symptoms of a drooping eyelid and difficulty swallowing, and that she had been treated and was doing well. (Id.) Dr. Chhaya noted Claimant's report of pain in her elbows, knees, shoulder girdle, hip girdle, and wrists. (Id.) Claimant stated that it hurt to stand and that most of her pain was in her back. (Id. at 8) In January 2015, Claimant reported that her knee and ankle pain was improved, but that she still suffered lower back and hip pain. (Id. at 15)

         When Claimant was seen by Dr. Chhaya in July 2015, the doctor noted she complained of jaw pain, especially in the morning. (Doc. 14-11 at 182) In August 2015, Dr. Chhaya recorded that Claimant reported worsened pain in her right knee, and left hip, and that the pain radiated down her left leg. (Id. at 187) The doctor indicated that Claimant was using a walker to get around, and that her pain was mainly in her legs. (Id.) Later in August 2015, Claimant received an injection of steroid in her left greater trochanter bursa. (Id. at 189) In December 2015, Claimant's legs were noted to be swollen, and she reported that leg pain awoke her. (Id. at 193) In August 2016, Claimant was injected with a steroid in her left shoulder. (Doc. 14-14 at 41) Also in August 2016, Claimant received three injections of Humira (an immunosuppressant drug). (Id. at 44) She rated her baseline pain as 4 out of 10, and overall felt “improved in terms of pain and function.” (Id.) Dr. Chhaya planned to continue to treat with Humira, because Claimant “seemed to be doing well on it and will require [a] longer time to see maximal effect.” (Id. at 45)

         4. Associated Internists of Ahwatukee

         In March 2014, Claimant was seen by Lana Turk, M.D. for an initial appointment, and complained of not feeling well, having decreased energy, and sleeping poorly. (Doc. 14-10 at 27) Claimant reported joint pain, depression and anxiety. (Id. at 28) Dr. Turk referred Claimant to a neurologist and to a rheumatologist. (Id. at 29) In August 2014, Claimant complained of tiredness and fatigue. (Id. at 13) In January 2015, Claimant presented with sudden onset shortness of breath and numbness in her hands. (Id. at 8) In June 2015, Claimant reported she had neck tenderness and chronic diarrhea. (Id. at 104-105) She was referred to a gastroenterologist. (Id. at 105) Dr. Turk, her primary care physician, noted that Claimant had been in the hospital for several days in August 2015 for treatment of Valley Fever and C-diff. (Id. at 102) In September 2015, Claimant's examination notes indicated she complained of fatigue and tiredness and chronic joint pain. (Id. at 100) In November 2015, she was seen for pain and swelling in her legs around her knees and thighs. (Id. at 95-97)

         In January 2016, she presented for a hospital follow up, and stated that she still “had the C-diff.” (Doc. 14-15 at 7) The examination notes indicated that she felt “well with minor complaints.” (Id.) Dr. Turk reported that “Patient has many issues, and I told her that she is too complicated for me. It doesn't seem that she's doing better with any of her problems so I recommended switching to another PCP [and] maybe she can get satisfied better[;] she would like to see Dr. Woods.” (Id. at 8)

         In March 2016, Dr. Alexis Woods, M.D. saw Claimant, who complained of tiredness and shortness of breath after having pneumonia. (Id. at 9) Dr. Woods documented that Claimant reported being “sexually assaulted allegedly in the parking lot of a casino” in February 2016. (Id.) Dr. Woods noted that Claimant was generally “feeling well, ” but had a cough, and reported decreased exercise tolerance and difficulty breathing on exertion. (Id. at 10) In June 2016, Claimant said her right leg sometimes swelled. (Id. at 20) She also complained of anxiety, depression, joint pain and stiffness. (Id. at 21) In September 2016, Claimant reported sinus issues. (Id. at 24) She was noted to have a deviated septum, and Dr. Woods referred her to an otolaryngologist. (Id. at 25-26) In October 2016, Claimant presented for a medication review, and complained that her fingertips “are very sensitive [and] seem wrinkled to her.” (Id. at 17) Dr. Woods indicated that Claimant was feeling well, did not complain of fatigue or cough, but reported anxiety. (Id.)

         5. Barrow Neurological Institute

         Claimant was examined by Dr. Kumaraswamy Sivakumar at the Barrow Neuromuscular Research Center in 2012. (Doc. 14-8 at 15-20) Dr. Sivakumar concluded that Claimant's medication was “adequate to control the myasthenic symptoms of ptosis.” (Id. at 16) In August 2012, the doctor performed electrodiagnostics on Claimant and concluded it was a “normal study” and that there was “no evidence of a myopathy or neurogenic process.” (Id. at 20) Dr. Sivakumar saw Claimant again in April 2014. (Doc. 14-8 at 52-53) The doctor noted that Claimant had reported severe fatigue, “hand weakness with fine objects, ” and that she was anxious and depressed. (Id. at 52) The doctor observed “give way weakness in proximal muscles of the upper and lower extremities, ” “potentially . . . some fatigability, ” “no true muscle weakness, ” and normal reflexes and sensation. (Id.) Dr. Sivakumar concluded that Claimant's myasthenia gravis symptoms in her eyes had improved and that her difficulties with swallowing were better. (Id.) Claimant was examined by the doctor in February 2015. The examination notes were unchanged from those of previous visits, other than documenting some changes in medication. (Doc. 14-9 at 94-95) When Claimant was again seen by Dr. Sivakumar in January 2016, he recorded virtually identical impressions as he had on previous appointments. (Doc. 14-12 at 19-20)

         6. Jewish Family & Children's Services (mental health care)

         Claimant was seen at this provider between August 2014 and September 2016. (Doc. 14-10 at 30-67, Doc. 14-14 at 47-110) At her initial visit in August 2014, her mental status evaluation was normal for all factors, except for her “depressed mood.” (Doc. 14-10 at 34) Claimant explained that single parenting was stressful, and reported difficulty breathing and having some effects from deterioration of her spine. (Id. at 35) She described symptoms associated with panic attack, and reported having felt depressed her entire adult life. (Id.) Claimant stated that she had been in an emotionally and sexually abusive relationship, was diagnosed in 2006 with PTSD, and had been on medications since then. (Id. at 44) She reported that prescriptions for Xanax and Ativan had worked well for her in the past. (Id. at 45) In October 2014, her mental status exam was normal, except that her mood was “sad.” (Id. at 47)

         Notes from appointments between December 2014 and March 2015 indicate that Claimant: continued to feel anxious when she was too busy, and was seeing a therapist weekly (Id. at 65); had adjustments to her mood medications (Id. at 53, 57, 61); and experienced some variability in her mood (Id. at 53, 57). At an appointment in April 2015, Claimant reported that she experienced fewer crying spells, and was sleeping deeply but was still fatigued. (Id. at 49) Her counselor and she agreed that she was more “burned out than depressed today.” (Id.) In June 2015, Claimant reported doing “ok” with her depression, and complained of sleeping through the night but not feeling rested. (Doc. 14-14 at 100) In August 2015, Claimant said she was “doing well with a stable mood on current medications.” (Id. at 96) She had been in the hospital with Valley Fever, and then “contracted C-diff.” (Id.) She estimated she suffered anxiety attacks once every 20 days. (Doc. Id. at 109) In November 2015, she reported sleeping about six hours a night, and stated that her medications were working well. (Id. at 92) Her mental status exam was documented as normal, except for an “anxious” mood. (Id. at 93)

         Claimant's notes from an appointment in February 2016 reported that she had been sick with Valley Fever, and believed this was “the beginning of the downward slide, medically speaking.” (Id. at 88) Her mental status exam scores were generally normal, but her memory, insight, judgement and concentration were all rated as “fair.” (Id. at 89) In March 2016, Claimant said she was “not well, ” and explained that she had been sexually assaulted, but did not report it to authorities because the “man is claiming that the sexual encounter was consensual.” (Id. at 84) She described feeling “a lot of panic” and noted that the day of her appointment was the first day she had left her house. (Id.) She agreed to an increase in her prescription for Prazosin to treat her nightmares. (Id.) Her mental status exam reported “fair” eye contact, appetite, fund of knowledge, insight and judgement. (Id. at 86) In April 2016, Claimant stated that her symptoms had been “all over the place” due to her pain. (Id. at 80) She also indicated she was stressed because of the demands of dealing with her autistic son, and a pending court case in the matter of her assault. (Id.) Her mental status exam was normal. (Id. at 82) In June 2016, she had made progress dealing with her assault, but still found it difficult to leave the house. (Id. at 76) She reported having “okay days and then I have really bad days.” (Id.) Her mental status exam was primarily normal, except that her memory was rated as “fair.” (Id. at 77-78)

         In August 2016, Claimant said she was upset with the way the investigation was handled in her assault case. (Id. at 72) She reported also being stressed by a pending foreclosure and her pending application for disability benefits. (Id.) She rated her depression as “mild” and her anxiety as “at times, pretty bad, ” but felt that with her current medication regimen, she could “get through this.” (Id.) Her mental status examination was normal, except her mood was rated as “dysphoric, ” and her sleep as “fair.” (Id. at 74) By October 2016, Claimant reported that things were going well, her anxiety symptoms were improved to the point that she said her anxiety was “mild to moderate, ” and her depression was “mild to none.” (Id. at 68)

         7. Hospital stays and emergency room visits

         From August 6 through 12, 2015, Claimant was hospitalized for symptoms of Valley Fever and C-diff. colitis. (Doc. 14-11 at 37-76, 96-153) The exam notes indicated that her case was complicated due to medications that suppressed her immune system. (Id. at 57) Upon discharge, she exhibited a normal range of motion, with normal coordination. (Id. at 52) On September 18, 2015, Claimant returned to the hospital after she suffered a recurrence of C-diff. colitis and her diarrhea symptoms had worsened. (Id. at 19-36) She was treated with oral antibiotics, and discharged with a two-month tapering dose of antibiotic. (Id. at 22) Claimant again presented at the emergency room on November 6, 2015, complaining of right leg swelling and pain. (Id. at 10-18) After ruling out deep vein thrombosis, the hospital released Claimant with pain medications. (Id. at 14) She returned to the emergency room on November 12, 2015, complaining of diarrhea. (Id. at 2-9) Her physical examination was entirely normal, including findings that her back was “nontender, [with] normal range of motion, [and] normal alignment, ” and that she exhibited overall normal range of motion, and no tenderness. (Id. at 4) Her lab work was “completely normal.” (Id. at 5) She tested negative for C-diff. (Id. at 8) She was released with educational materials. (Id. at 5)

         Claimant was taken to the hospital following her sexual assault on February 14, 2016, and was released after approximately four hours. (Doc. 14-13 at 2-123) She had been transported to the emergency room by ambulance after being found in a casino parking lot, partially disrobed, and alleging she had been sexually assaulted. (Id. at 63) She appeared to be intoxicated. (Id.) After treatment and interviews with law enforcement, she was released with information to help her cope with her assault, with contact information for victim services, as well as with information on alcohol intoxication, soft tissue contusions and abrasions. (Id. at 64, 110-116)

         8. Radiology

         An MRI was conducted of Claimant's lumbar spine in October 2012, which indicated “[s]mall central or paracentral disk protrusions from L3-4 through L5-S1, ” and “[n]o disk extrusion or significant stenosis.” (Doc. 14-8 at 35)

         While Claimant was hospitalized in August 2015, her lumbar spine was imaged. (Doc. 14-11 at 75) The MRI indicated: mild loss of disc height at ¶ 3-L4 and mild disc desiccation at ¶ 3-L4 and L5-S1; other disc heights “relatively well maintained”; a “small central disc protrusion without neural impingement” at ¶ 3-L4; “minimal irregular diffuse disc bulge” and “mild bilateral degenerative facet arthrosis” at ¶ 4-L5 without “significant narrowing of the central spinal canal, lateral recesses or neural foramina”; a “mild diffuse disc bulge[, ] [s]mall central disc protrusion with enhancing annular tear[, ]” and “[m]oderate bilateral degenerative facet arthrosis” at ¶ 5-S1, with no “central spinal stenosis or lateral recess narrowing” and “[m]ild to moderate neural foraminal narrowing bilaterally.” (Id.) This imaging revealed no “evidence of ...

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