United States District Court, D. Arizona
ORDER
Leslie
A. Bowman United States Magistrate Judge.
The
plaintiff filed this action for review of the final decision
of the Commissioner for Social Security pursuant to 42 U.S.C.
§ 405(g). (Doc. 1, p. 1)
The
Magistrate Judge presides over this case pursuant to 28
U.S.C. § 636(c) having received the written consent of
both parties. See Fed.R.Civ.P. 73; (Doc. 15)
The
ALJ's finding that Fenion's back pain is not severe
is not supported by substantial evidence and is not free from
legal error. See Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007). The case is remanded for further
proceedings.
PROCEDURAL
HISTORY
In
August of 2013, Fenion filed an application for disability
insurance benefits pursuant to Title II of the Social
Security Act. (Tr. 127) He alleged disability beginning on
June 26, 2012, due to PTSD (post-traumatic stress disease),
depression, and back pain. (Tr. 127, 150)
His
application was denied initially and upon reconsideration.
(Tr. 74-77); (Tr. 81-83) Fenion requested review and appeared
with counsel at a hearing before Administrative Law Judge
(ALJ) Myriam Fernandez Rice on December 15, 2015. (Tr. 32) In
her decision, dated February 11, 2016, the ALJ found Fenion
was not disabled because he has no severe impairments. (Tr.
17-26)
Fenion
appealed, but on July 21, 2017, the Appeals Council denied
review making the decision of the ALJ the final decision of
the Commissioner. (Tr. 1-5) Fenion subsequently filed this
action seeking review of that final decision. (Doc. 1)
Claimant's
Work History and Medical History
Fenion
was 60 years old at the hearing before the ALJ. (Tr. 34) He
is a high school graduate. (Tr. 34)
Fenion
last worked as a vinyl cutter in a carpet warehouse. (Tr. 34)
He hurt his back in 2011 “when he was lifting a very
heavy vinyl roll weighing some 300 pounds.” (Tr. 292)
He received workers compensation that ended in 2012. (Tr. 34)
Fenion stated that he suffers from PTSD, and COPD (chronic
obstructive pulmonary disease). (Tr. 35) He takes medication
for back pain and for depression. (Tr. 36) Fenion explained
that he can no longer work because he can no longer perform
heavy lifting. (Tr. 37)
Mental
Impairment
In
February of 2014, Raymond Novak, M.D., reviewed the medical
record for the disability determination service and offered
an opinion of Fenion's mental impairment. (Tr. 56-57)
Novak diagnosed Fenion with affective disorder. (Tr. 56) He
then evaluated Novak's “B” listing criteria,
which gauge the severity of his limitations. See 20
C.F.R. § 404.1520a(c)(3). Novak found Fenion has no
restrictions of his daily activities; “mild”
difficulties in maintaining social functioning;
“mild” difficulties in maintaining concentration,
persistence, or pace; and no evidence of decompensation. (Tr.
56) Novak further opined that the medical evidence did not
establish the presence of the “C” criteria, which
are an alternative gauge of the extent of his mental
impairment. (Tr. 56) Novak concluded that Fenion's mental
impairment is non-severe. (Tr. 57)
In
August of 2014, Jaine Foster-Valdez, Ph.D., reviewed the
medical record for the disability determination service and
offered a second opinion of Fenion's mental impairment.
(Tr. 68) Foster-Valdez agreed with the assessment provided by
Novak. Id.
In
January of 2014, Fenion was examined by Gwendolyn W. Johnson,
Ph.D., for the disability determination services. (Tr. 303)
Johnson diagnosed Fenion with depressive disorder resulting
from chronic health problems. (Tr. 305) She opined that his
“prognosis for a successful return to the work force is
estimated as good.” (Tr. 305) Johnson concluded that
Fenion's mental impairment was not severe. (Tr. 306)
Physical
Impairment
In
August of 2011, Fenion underwent an MRI examination of his
lumbar spine. (Tr. 317-318) Mild to moderate disc bulge was
observed at the L2-3 position. Id. Mild disc bulging
was observed at the L3-4, L4-5, and L5-A1 positions.
Id.
In
March of 2012, Fenion underwent an extensive functional
capacity evaluation at the Center for Career Evaluations.
(Tr. 704-732) Susan Ito, RPT, explained that “Mr.
Fenion's safe maximal lifting capacity is 10 lbs. He is
unable to tolerate sitting/standing or walking for more than
10 minutes.” (Tr. 706)
In
April of 2012, Fenion's treating physician, John Giddens,
M.D., completed a Primary Treating Physicians Permanent and
Stationary Report in connection with his workman's
compensation claim. (Tr. 356-358) The form instructions
explain that it should be completed “once the
patient's condition becomes permanent and
stationary.” (Tr. 352) In the Functional Capacity
Assessment section, Giddens marked “50 pounds or
more” under the “Frequent Lift and/or
Carry” section. (Tr. 357) He marked
“Unlimited” in the “Stand and/or
Walk” section and the “Sit” section. (Tr.
357) He marked “Unlimited” in the “Push
and/or Pull” section. Id. Under
“Activities Allowed” he marked
“Occasionally” for Stooping and Crouching, and he
marked “Frequently” for all other listed
activities. (Tr. 357)
In the
narrative section, however, Giddens stated that “Mr.
Fenion cannot bend or stoop repetitively. He should not kneel
or squat, and must be able to alternate sitting and standing
positions. He cannot lift, push, or pull greater than 10
pounds at [a] time.” (Tr. 357-358) This statement is
entirely contrary[1] to the evaluation given in the ...