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Ong v. Commissioner of Social Security Administration

United States District Court, D. Arizona

July 6, 2018

Beth H. Ong, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Bridget S. Bade, United States Magistrate Judge

         Plaintiff Beth H. Ong seeks judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for benefits under the Social Security Act (“the Act”). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b), and have filed briefs in accordance with Rule 16.1 of the Local Rules of Civil Procedure. As discussed below, the Court reverses and remands for a determination of benefits.

         I. Procedural Background

         In September 2013, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Act. (Tr. 13.)[1] After the Social Security Administration (“SSA”) denied Plaintiff's initial application and her request for reconsideration, she requested a hearing before an administrative law judge (“ALJ”). (Id.) After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 26-40.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-7.) See also 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council). Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

         II. Administrative Record

         The administrative record includes medical records pertaining to the history of diagnoses and treatment related to Plaintiff's alleged impairments, including seizure disorder, degenerative disc disease of the lumbar spine, bipolar disorder, post-traumatic stress disorder, and social phobia. (Tr. 30.) The record also includes several medical opinions. The Court discusses the relevant treatment evidence below and discusses the opinion evidence in Section VI.

         A. Treatment Records-Mental Impairments

         Plaintiff received treatment from psychiatrist James R. Hicks, M.D., and Joseph Roberson, Ph.D., for bipolar disorder, agoraphobia with panic disorder, social phobia, and post-traumatic stress disorder. (Tr. 286-349, 462-543, 547-65, 590-602, 670-85, 892-901 (Dr. Hicks, Aug. 2009 through Dec. 2015); 606-67, 688-716, 736-45 (Dr. Roberson, Apr. 2013 through Feb. 2016).)[2]

         1. James R. Hicks, M.D.

         During an October 2011 appointment with Dr. Hicks, Plaintiff reported mood swings and memory deficiencies. (Tr. 289.) During a May 2012 appointment, she complained of lack of energy, poor memory, hypersomnia, sadness, social anxiety, panic attacks, and occasional symptoms of post-traumatic stress disorder. (Tr. 323.) On examination, Plaintiff had appropriate dress and adequate hygiene, cooperative behavior, normal psychomotor activity, normal speech, a goal directed thought process, intact insight and judgment, and was alert and oriented. (Tr. 323-24.) At a September 18, 2012 appointment, Plaintiff reported that she was exhausted, irritable, impatient, and agitated. (Tr. 327.) On examination, Dr. Hicks made findings similar to his May 2012 findings. (Compare Tr. 323-24 with Tr. 327-29.) In October 2012, Plaintiff reported that her “mood was empty, she had anhedonia, [and] she [felt] emotionless.” (Tr. 331.) She had suicidal thoughts with a plan to overdose on medication. (Id.) With the exception of noting Plaintiff's suicidal thoughts (Tr. 332), Dr. Hicks' examination findings were similar to his September 2012 findings. (Compare Tr. 327-29 with Tr. 331-33.)

         In January 2013, Plaintiff reported “unrelenting sadness/doom and gloom.” (Tr. 335-37.) Dr. Hicks' findings on examination were similar to his past findings. (Compare Tr. 327-29 with Tr. 335-37.) Dr. Hicks prescribed Lexapro and referred Plaintiff for counseling. (Id.) In February 2013, Plaintiff reported an improved mood with Lexapro, but she reported atypical snacking. (Tr. 339.) Similar to Dr. Hicks' previous findings, on examination he noted that Plaintiff had an appropriate appearance and adequate hygiene, cooperative behavior and good eye contact, normal psychomotor activity, normal speech, a congruent mood, goal directed thought process, intact insight and judgment, and was alert and oriented. (Tr. 339-41.)

         In May 2013, Plaintiff reported that her mood was good, but she lacked energy. (Tr. 343.) Dr. Hicks adjusted the timing of Plaintiff's psychiatric medications to address that issue. (Tr. 345.) Dr. Hicks' findings on examination were consistent with his past findings. (Compare Tr. 339-41 with Tr. 343-44.) In an August 2013 treatment note, Dr. Hicks indicated that Plaintiff's mood was good, but that she had continued fatigue. (Tr. 347.) Dr. Hicks' examination findings were consistent with his past findings. (Compare Tr. 342-44 with Tr. 347-48.)

         In December 2013, Dr. Hicks noted that Plaintiff had been “stable” at her last appointment in August, but she reported worsening depression over the past six-to-seven weeks with suicidal thoughts and a plan to overdose. (Tr. 563.) Dr. Hicks recommended psychiatric hospitalization if Plaintiff developed suicidal intent, and increased her dosages of Lexapro and Abilify. (Tr. 565.) On examination, Dr. Hicks found that Plaintiff had suicidal thoughts with no intent. (Tr. 564.) He described Plaintiff's mood as dysphoric, “sad/depressed, ” with a restricted affect. (Id.)

         In February 2014, Dr. Hicks assessed Plaintiff with “treatment resistant depression” that was unchanged despite prior adjustments to her medications. (Tr. 559.) Dr. Hicks adjusted Plaintiff's medications again. (Tr. 561.) Dr. Hicks' examination findings were similar to his August 2013 findings. (Compare Tr. 342-44 with Tr. 559-60.) In March 2014, Plaintiff saw Dr. Hicks to complete paperwork for her disability application. (Tr. 554.) Plaintiff reported that her “mood [was] lifting a bit but she [was] not yet in remission.” (Id.) Dr. Hicks modified Plaintiff's medications again and recommended that Plaintiff continue counseling with her psychologist Dr. Roberson. (Tr. 556.) On examination, Dr. Hicks found that Plaintiff had a disheveled appearance, cooperative behavior with intermittent eye contact, slow speech with “soft volume, ” a “sad/depressed” and dysphoric mood, a blunted affect, a “circumstantial” thought process, impaired insight and judgment, and was alert and oriented. (Tr. 555-56.)

         In April 2014, Dr. Hicks noted that Plaintiff was continuing counseling with Dr. Roberson. (Tr. 550.) Plaintiff reported “overall tiredness/lack of energy and ongoing treatment resistant depression.” (Id.) Dr. Hicks adjusted Plaintiff's medications. (Tr. 552.) On examination, Plaintiff had appropriate dress and adequate hygiene, cooperative mood and good eye contact, normal psychomotor activity, normal speech, a congruent mood, a goal directed thought process, intact insight and judgment, and she was alert and oriented. (Tr. 550-52.)

         In June 2014, Plaintiff reported that she “tend[ed] to feel more tired in the afternoon.” (Tr. 596.) Dr. Hicks again adjusted Plaintiff's medications. (Id.) Dr. Hicks made examination findings consistent with most of his past examination findings. (Compare Tr. 597-98 with Tr. 550-52.) In July 2014, Plaintiff reported that she was continuing counseling with Dr. Roberson and described her mood as “overall good.” (Tr. 592.) Plaintiff complained of “falling asleep very easily” and Dr. Hicks recommended that she see a sleep specialist. (Tr. 594.) Dr. Hicks' examination findings were consistent with his past examination findings. (Compare Tr. 597-98 with Tr. 592-93.)

         In October 2014, Dr. Hicks again noted that Plaintiff remained in weekly counseling with Dr. Roberson and assessed Plaintiff with “treatment resistant depression.” (Tr. 683, 685.) Dr. Hicks made examination findings consistent with his June 2014 findings. (Compare Tr. 683-85 with Tr. 597-98.) In November 2014, Dr. Hicks noted that Plaintiff had “treatment resistant depression.” (Tr. 679.) Dr. Hicks' examination findings were consistent with his October findings. (Compare Tr. 679-81 with Tr. 683-85.)

         In January 2015, Plaintiff reported worsening depression with thoughts of suicide and a plan to overdose. (Tr. 675.) She also reported negative thinking, low energy, low motivation, anhedonia, hopelessness, a feeling of worthlessness, irritability, frustratation, self-isolation, poor memory, and poor concentration. (Id.) Dr. Hicks recommended inpatient psychiatric hospitalization if Plaintiff developed suicidal intent, and added a retrial of Abilify. (Tr. 677.) On examination, Dr. Hicks noted that Plaintiff had a euthymic mood and suicidal thoughts. (Tr. 675-77.)

         2. Joseph Roberson, Ph.D.

         Dr. Roberson treated Plaintiff for depression starting in April 2013.[3] (Tr. 607-67, 688-716, 736-45 (treatment notes from Apr. 2013 through Feb. 2016).) He saw Petitioner several times a month throughout that time period.

         During two appointments in May 2013, Dr. Roberson noted that Plaintiff was anxious, depressed, and generally alert. (Tr. 655, 657.) He described her diagnosis as unchanged or improved. (Id.) During an appointment in June 2013, Dr. Roberson observed that Plaintiff had an appropriate affect and was generally alert. (Tr. 653.) During two appointments in July 2013, Dr. Roberson noted that Plaintiff was anxious and depressed, but he found that she was generally alert and her diagnosis was improved. (Tr. 688, 689.) During an appointment in August 2013, Dr. Roberson noted that Plaintiff had suicidal thoughts. (Tr. 649.) During an appointment in October 2013, Dr. Roberson noted that Plaintiff was generally alert, and that her diagnosis was improved. (Tr. 639.) In December 2013 Dr. Roberson noted that Plaintiff had suicidal thoughts. (Tr. 634.) Dr. Roberson also noted that Plaintiff had suicidal thoughts in August, September, and October 2014. (Tr. 607, 609, 614, 715.) During several appointments with Plaintiff in September and October 2014, Dr. Roberson found that Plaintiff was anxious, depressed, and confused. (Tr. 607, 609, 610.) He also noted that Plaintiff's condition had “declined.” (Id.)

         B. Treatment Records-Physical Impairments

         1. Stephen Hempelman, M.D.

         Neurologist Dr. Hempelman treated Plaintiff for seizure disorder. (Tr. 391-458, 462-543, 566-74, 603-05, 719-30, 1041-46 (Feb. 2009 through Dec. 2015).) In August 2011, Plaintiff reported having focal seizures several times a week that involved the right-side extremities with persistent clonic movements, and lasted several minutes. (Tr. 448.) Dr. Hempelman adjusted Plaintiff's medications. (Tr. 449.) On November 4, 2011, Plaintiff was admitted to the hospital for observation due to seizures and generalized tremulousness. (Tr. 447.) During a January 3, 2012 appointment, Plaintiff reported continued involuntary jerking movements of her bilateral extremities, occurring several times a week, and lasting several minutes to several hours per episode. (Tr. 445.) Plaintiff also reported three seizure episodes. (Id.)

         Plaintiff was hospitalized in February 2012 for Dilantin toxicity that caused blurred vision and an ataxic gait. (Tr. 353-354.) Plaintiff reported that her last seizure was fourteen days before her hospitalization. (Tr. 353.) Plaintiff's seizure medication was increased. (Id.) In May 2012, Dr. Hempelman decreased Plaintiff's dosage of Tegretol to avoid medication toxicity. (Tr. 443.) In July 2012, Plaintiff reported that her involuntary right upper extremity jerking had returned, and Dr. Hempelman adjusted Plaintiff's medication to try to control the limb jerking. (Tr. 440.)

         In December 2012, Plaintiff reported that she had experienced two seizure episodes in the preceding sixty days, which included head and right upper extremity jerking followed by exhaustion. (Tr. 435.) In June 2013, Plaintiff reported that her “generalized major motor seizures” were fairly controlled on medication, but she still had frequent “partial complex seizures” that manifested as head bobbing with confusion and difficulty communicating. (Tr. 432.) Dr. Hempelman adjusted Plaintiff's medications in an effort to control the smaller seizures. (Tr. 433.) In September 2013, Plaintiff reported that she had suffered several minor seizures and one big seizure during the past few months accompanied by fatigue that made her “feel like a zombie.” (Tr. 429.) Dr. Hempelman noted that Plaintiff's anti-seizure medication made her very fatigued and agreed to taper her off of Keppra. (Tr. 430.) In October 2013, Plaintiff reported that she had to stop taking Keppra due to fatigue. (Tr. 426.) Plaintiff reported that discontinuing Keppra had no effect on the frequency of her focal seizures, and that they occurred several times a week. (Id.) Dr. Hempelman increased Plaintiff's dosage of Tegretol. (Tr. 427.)

         On October 25, 2013, Plaintiff presented to the emergency room with altered mental status, including slurred speech and gait imbalance as a result of an adverse drug reaction to one of her seizure medications, lamotrigine (Lamictal). (Tr. 361.) Plaintiff reported that she had experienced focal tremors during the past five days and had a grand mal seizure in July 2013. (Id.) Plaintiff also reported that she fell and hit her hip and hurt her lower back. (Id.) A CT scan of Plaintiff's lumbar spine revealed broad-based disc bulges and chronic bilateral facet degenerative and hypertrophic changes at the L4-5 and L5-S1 levels. (Tr. 365-66.)

         In February 2014, Dr. Hempelman noted that Plaintiff reported continued episodes of involuntary movement, stiffness, or rigidity of her upper extremities, which occurred two-to-three times per week and occasionally two-to-three times per day. (Tr. 502.) Dr. Hempelman noted that “a variety of anticonvulsants [had] been tried and found wanting.” (Id.) In March 2014, Plaintiff reported continued seizures. (Tr. 568.) Dr. Hempelman noted that a 24-hour ambulatory electroencephalogram “done several years ago showed pretty convincing seizure activity, ” and increased Plaintiff's dosage of Vimpat. (Tr. 569.) In May 2014, Plaintiff reported continued focal seizures that occurred several times a month. (Tr. 566.) Dr. Hempelman noted that he had “trouble controlling [Plaintiff's] seizures . . . .” (Tr. 567.) Dr. Hempelman adjusted Plaintiff's seizure medications. (Tr. 566.)

         In July 2014, Plaintiff reported being seizure-free for three months on Vimpat. (Tr. 603.) In October 2014, Plaintiff presented to the emergency room for a headache and reported that she had suffered a seizure one week earlier, “which [was] her normal frequency.” (Tr. 927.) During a November 2014 appointment with Dr. Hempelman, Plaintiff reported one seizure in September and several seizures in October. (Tr. 725.) She also reported severe headaches. (Id.)

         2. Chiropractor Samuel Hester, D.C.

         After a fall in October 2013, Plaintiff suffered continuing lower back symptoms. Plaintiff received chiropractic care from Dr. Hester for lower back pain and leg discomfort from August 2014 through December 2015. (Tr. 759-891.) In August 2014, Plaintiff reported increased lower back pain that was aggravated by bending, carrying, and cleaning. (Tr. 759.) Physical examinations revealed tenderness over the coccygeal region, muscle spasms on palpation, pain with range of motion of the lumbar spine, tenderness with palpation of the L4-5 levels, sacrum, and pelvis, and antalgic gait. (Tr. 374 (Nov. 2013), Tr. 759-62 (Aug. 2014), Tr. 764-74 (Sept. 2014), Tr. 775-86 (Oct. 2014), Tr. 787-98 (Nov. 2014), Tr. 799-812 (Dec. 2014), Tr. 813-26 (Jan. 2015), Tr. 827-37 (Feb. 2015), Tr. 838-41 (Mar. 2015), Tr. 842-52 (Apr. 2015), Tr. 853-63 (May 2015), Tr. 864-74 (June 2015), Tr. 875-82 (July 2015), Tr. 883 (Aug. 2015), Tr. 884-91 (Dec. 2015), Tr. 911 (Jan. 2016).)

         On December 17, 2014, Dr. Hester noted that Plaintiff's prognosis was good and that she “felt better after the treatment and ha[d] experienced an increase in passive join motion and a decrease in her symptoms since treatment began.” (Tr. 805.) The next day, Plaintiff reported her “lumbar and sacral complaint felt the same since the last visit.” (Tr. 806.) At a December 19, 2014 appointment, Plaintiff reported that since she had begun treatment her lower back pain, her left leg pain, and her right leg pain had improved, and that none of her symptoms had stayed the same or worsened. (Tr. 807.) Plaintiff reported the “her condition had gotten slightly better.” (Id.) On examination, Plaintiff continued to have areas of spasm and point tenderness. (Id.) She also had a “significant decrease in the normal range of motion [with] lumbar flexion and right rotation. (Id.) Dr. Hester described Plaintiff's prognosis as undetermined. (Id.) On December 31, 2014, Plaintiff's “lumbar and sacral complaint felt worse” after she fell on a scooter while playing with her grand kids. (Tr. 812.) On examination, Plaintiff had spasms and point tenderness. (Id.) Dr. Hester described her condition as “acute” and described her prognosis as “guarded and uncertain.” (Id.)

         After the date last insured, a December 2015 MRI of Plaintiff's lumbar spine revealed Grade 1 anterolisthesis, a diffuse annular bulge, and severe bilateral facet hypetrophy at the L4-5 level with moderate right neuroforaminal narrowing. The MRI also revealed a diffuse annular bulge at the L5-S1 level, which was likely creating a mass effect (compression) on the exiting right-sided L5 nerve root with severe bilateral facet hypertrophy and severe right neuroforaminal stenosis. (Tr. 757-58.) In January 2016, because of her ongoing lower back pain, Plaintiff had surgery for lumbar fusion at the L4 though SI levels. (Tr. 733.)

         III. The Administrative Hearing

         Plaintiff was fifty-five years old as of the date of the administrative hearing. (Tr. 37-38.) She had a high school education and past relevant work as an insurance agent and a public relations representative. (Id.)

         At the administrative hearing, Plaintiff testified that she left work during a lay off in 2009, and that her seizure disorder, back pain, and depression interfered with her ability to work. (Tr. 55-56, 58, 64, 68.) She reported that she had severe fatigue, isolated herself at home, and had suicidal ideation. (Id.) Plaintiff testified that she had focal seizures with jerking of her extremities, head, and torso, and that she also had grand mal seizures. (Tr. 57.) She testified that “waiting for a seizure” caused exhaustion and depression. (Tr. 55.) Plaintiff explained that the frequency of her seizures varied, and that she could have two a day, two a week, or two in one month. (Tr. 56.) Plaintiff's seizures lasted from two-to-nine minutes at a time and were followed by extreme exhaustion. (Tr. 63-64.) Plaintiff also testified that she had frequent thoughts of suicide and crying spells. (Tr. 64-65.) Plaintiff stated that she had difficulty retaining information, and she started tasks but did not complete them because of her memory deficiencies. (Tr. 66-67.) Plaintiff testified that she needed to lie down for three hours every day.[4] (Tr. 70.)

         Plaintiff testified that she went on a family trip in November 2015, but she spent time alone and did not go on any “excursions.” (Tr. 60.) Plaintiff testified that she shopped online, had someone clean her house, and did not spend time with her grandchildren alone. (Tr. 60-62.) She testified that she occasionally drove about a mile to pick up her medication. (Tr. 63.)

         A vocational expert also testified at the hearing. The vocational expert testified that a person with limitations that Dr. Hempelman, Dr. Roberson, or Dr. Hicks assessed- being off task 16 to 20 percent of an eight-hour day- could not sustain work. (Tr. 74-75.) The vocational expert also concluded a person with the limitations to which Plaintiff testified-a need to lie down daily for several hours-could not perform sustained work. (Tr. 75.)

         IV. The ALJ's Decision

         A claimant is considered disabled under the Social Security Act if she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard for supplemental security income disability insurance benefits). To determine whether a claimant is disabled, the ALJ uses a five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.

         A. The Five-Step Sequential Evaluation Process

         In the first two steps, a claimant seeking disability benefits must initially demonstrate (1) that she is not presently engaged in a substantial gainful activity, and (2) that her medically determinable impairment or combinations of impairments is severe. 20 C.F.R. §§ 404.1520(b) and (c), 416.920(b) and (c). If a claimant meets steps one and two, there are two ways in which she may be found disabled at steps three through five. At step three, she may prove that her impairment or combination of impairments meets or equals an impairment in the Listing of Impairments found in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. §§ 404.1520(a)(4)(iii) and (d), 416.920(d). If so, the claimant is presumptively disabled. If not, the ALJ determines the claimant's residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e). At step four, the ALJ determines whether a claimant's RFC precludes her from performing her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant establishes this prima facie case, the burden shifts to the government at step five to establish that the claimant can perform other jobs that exist in significant number in the national economy, considering the claimant's RFC, age, work experience, and education. 20 C.F.R. §§ 404.1520(g), 416.920(g). If the government does not meet this burden, then the claimant is considered disabled within the meaning of the Act.

         B. The ALJ's Application of the Five-Step Evaluation Process

         Applying the five-step sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity during the period from her alleged disability onset date of September 18, 2011 through the date last insured of December 31, 2014. (Tr. 30.) At step two, the ALJ found that Plaintiff had the following severe impairments: “seizure disorder; degenerative disc disease of the lumbar spine; bi-polar disorder; post-traumatic stress disorder; and social phobia (20 CFR 404.1520(c)).” (Id.) At step three, the ...


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