United States District Court, D. Arizona
Beth H. Ong, Plaintiff,
Commissioner of Social Security Administration, Defendant.
Bridget S. Bade, United States Magistrate Judge
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.
September 2013, Plaintiff filed an application for a period
of disability and disability insurance benefits under Title
II of the Act. (Tr. 13.) 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).
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.
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.
James R. Hicks, M.D.
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.)
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.)
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.)
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
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.
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.)
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.)
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
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.)
Joseph Roberson, Ph.D.
Roberson treated Plaintiff for depression starting in April
2013. (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.
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.”
Treatment Records-Physical Impairments
Stephen Hempelman, M.D.
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.)
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.)
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.)
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.
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.
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.)
Chiropractor Samuel Hester, D.C.
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.
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.”
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.)
The Administrative Hearing
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.)
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. (Tr. 70.)
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.)
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.)
The ALJ's Decision
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.
The Five-Step Sequential Evaluation Process
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.
The ALJ's Application of the Five-Step Evaluation
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 ...