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Jenkin v. Commissioner of Social Security Administration

United States District Court, D. Arizona

September 6, 2018

Cindy Jenkin, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Eric J. Markovich United States Magistrate Judge.

         Plaintiff Cindy Jenkin (“Jenkin”) brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Jenkin raises four issues on appeal: 1) the Administrative Law Judge (“ALJ”) ignored substantial evidence of fibromyalgia; 2) the ALJ gave inappropriate weight to Dr. Kiarish's treating physician opinion; 3) the ALJ improperly discounted Jenkin's credibility based on her failure to seek treatment and continued smoking; and 4) the ALJ erred by finding that Jenkin's past work as a receptionist qualified as past relevant work (“PRW”) and substantial gainful activity (“SGA”). (Doc. 15).

         Before the Court are Jenkin's Opening Brief, Defendant's Response, and Jenkin's Reply. (Docs. 15, 17, & 18). The United States Magistrate Judge has received the written consent of both parties and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. For the reasons stated below, the Court finds that this matter should be reversed and remanded for further administrative proceedings.

         I. Procedural History

         Jenkin filed an application for Social Security Disability Insurance and Supplemental Security Income on September 13, 2013.[1] (Administrative Record (“AR”) 114). Jenkin alleged disability beginning on January 25, 2012 based on lumbar and cervical spine DDD, bilateral peripheral neuropathy, shoulder pain, headaches, and anxiety. Id. Jenkin's application was denied upon initial review (AR 128) and on reconsideration (AR 144). A hearing was held on November 4, 2015 (AR 72), after which ALJ Laura Speck Havens found, at Step Four, that Jenkin was not disabled because she could perform her PRW as a receptionist as generally performed. (AR 29). The ALJ also made an alternative finding at Step Five that Jenkin could perform other work existing in the national economy. (AR 30-31). On May 23, 2017 the Appeals Council denied Jenkin's request to review the ALJ's decision. (AR 1).

         Jenkin's date last insured (“DLI”) for DIB purposes December 31, 2013. (AR 114). Thus, in order to be eligible for benefits, Jenkin must prove that she was disabled during the time period of her alleged onset date (“AOD”) of January 25, 2012 and her DLI of December 31, 2013.

         II. Factual History

         Jenkin was born on August 23, 1966, making her 47 at the AOD of her disability. (AR 114). She has worked as a grocery cashier, bartender, cocktail waitress, and receptionist. (AR 228).

         A. Treating Physicians[2]

         A letter dated August 19, 2011 from Scott Weary at First Chiropractic states that he treated Jenkin 8 times in 2006 for chronic neck pain and LBP and treatment was generally ineffective for pain relief. (AR 483). He treated Jenkin again in 2010 for neck pain, LBP, and headaches, and she got some relief but overall treatment was not effective. Jenkin reported she had to continually use medication to try and sleep and function during the day, and Weary opined she was unable to work due to these problems. He completed a RFC assessment with the following limitations: sit and stand for 60 minutes at a time; need to sit in a recliner or lie down each day; sit, stand, and walk less than 2 hours each in a 8 hour workday; needed to change positions at will; take unscheduled breaks 4-5 times a day for 15 minutes each time; never carry more than 10 pounds and occasionally carry less than 10 pounds; significant limitation in repetitive reaching, handling, or fingering; and never stoop, crouch, kneel, or climb stairs. (AR 484-85). Weary opined that Jenkin functioned at 75% or less as compared to a healthy individual and would be absent from work more than 4 days per month. (AR 485-86).

         On August 20, 2011 Dr. Kiarish opined that Jenkin could occasionally lift/carry 10 pounds, frequently lift/carry less than 10 pounds, stand and walk less than 2 hours, sit 6 hours, and would need to periodically alternate sitting, standing, and walking, with sitting/standing up to 30 minutes before changing positions and walking around every 5 minutes for 5 minutes at a time. (AR 319). He also opined that Jenkin would need to lie down 4 to 5 times per shift, could never twist, stoop, crouch, or climb ladders, could occasionally climb stairs, and that her reaching and pushing/pulling were affected by neuropathy. (AR 320). She would miss work more than 4 days per month due to her impairments. (AR 321). Dr. Kiarish noted that the limitations were supported by the MRI findings and Jenkin's decreased muscle strength and pain. (AR 320).

         On March 28, 2012 Jenkin saw Dr. Moore and reported back, left buttock, and left hip pain, and said her hands go numb at random times. (AR 344). Findings on exam were upper back with significant increased muscle tone, slight discomfort to palpation at the base of the L SI/lower L buttock but normal ROM L hip. (AR 345). Dr. Moore discussed PT but Jenkin was hesitant due to cost and poor results in the past. (AR 346).

         On April 4, 2012 Jenkin saw Dr. Norton and reported burning sensations in her low back, pain in her shoulders and left leg, and numbness and tingling in her hands. (AR 326). Jenkin said her symptoms started after cervical disc surgery in 2007, which alleviated the pain in her neck and right shoulder, but then she started having other symptoms. Her pain is constant and prevents her from doing most activities. On exam, Jenkin had good flexion/extension of the neck, tenderness to palpation of the back with some spasm, positive SLR on the right, good strength in arms and legs, diminished pinprick in a median nerve distribution bilaterally, and normal gait. Her MRI showed her previous surgery at C3-C4, no evidence of cord compression, and only slight foraminal narrowing at 3-4 on the right. (AR 326-27). Jenkin reported she had epidural blocks that did not provide relief. (AR 327). Dr. Norton could not define her symptoms as coming from a particular root segment, recommended EMGs, and noted she had clinical signs of carpal tunnel. (AR 327).

         On May 31, 2012 Jenkin saw Dr. Song for evaluation of back pain. (AR 322). Dr. Song stated she was “somewhat suspicious” about the L5 radiculopathy shown in the EMG because of the normal MRI and Jenkin's diffuse symptoms. (AR 322-23). Findings on exam included no palpation tenderness over the spine, negative SLR, hip rotation does not reproduce pain, multiple-almost all of 18 tender points of fibromyalgia, and normal bulk and tone, gait, and reflexes. (AR 323). Dr. Song assessed fibromyalgia and noted that “the multiple tender points in her body exam, and the diffuse unexplainable pain may suggest fibromyalgia rather than radiculopathy.” (AR 324). She recommended Gabapentin and a repeat EMG and NCS if no improvement.

         On October 12, 2012 Jenkin went to the ER for constipation. (AR 339). She reported chronic back pain and said she was told she had fibromyalgia.

         On October 18, 2012 Jenkin was seen for constipation. (AR 359). She denied painful joints, weakness, and headaches. (AR 360).

         On March 12, 2013 Jenkin saw Dr. Moore for a medication follow-up and reported Lyrica and Cymbalta failed and she takes Gabapentin only at night because she can't function with it during the day. (AR 335). Jenkin reported pain in her low back with numbness and pain down the left leg into her foot and left elbow pain. She did not want to see pain management because past injections didn't help and she can't afford the $900, can't afford PT, acupuncture didn't help, and she just wanted a diagnosis of what was wrong with her. (AR 335, 337). Dr. Moore encouraged mild exercise but Jenkin said she was unable to do anything. (AR 337). Findings on exam were full ROM left elbow with tenderness, tender to palpation over L SI joints and almost all along the paraspinous muscles thoracic and lumbar, painful and reduced LS ROM, and negative SLR. (AR 336). Dr. Moore assessed cervical disc disease, LS pain with radiculopathy, restless legs, abnormal weight gain, and L lateral epicondylitis. (AR 337).

         On August 15, 2013 Jenkin was seen at the Laser Spine Institute for neck and shoulder pain and left arm numbness/tingling with pain 8/10, duration 15 years. (AR 388). Jenkin also reported buttock and low back pain, average 6-10/10, denied headaches, and reported a history of RLS and fibromyalgia. (AR 390-91). Findings on exam included left lumbar dermatomes hypo-esthetic at L4, L5, and S1; spinal flexion, hyperextension, and rotation painful and limited; and positive facet loading and shopping cart signs. (AR 392). Jenkin had a MRI of the lumbar spine and the impression was “degenerative changes are greatest where there is left paracentral disc bulge exerting mild mass effect upon the exiting left L4 nerve root at the left lateral recess at L3-4” and “the greatest neural foraminal stenosis is moderate on the left at L3-4.” (AR 404). A MRI of the cervical spine found “degenerative changes are greatest where there is a moderate degree of neural foraminal stenosis on the left at L5-6.” (AR 406). X-rays of the cervical spine showed mild retrolisthesis of C5 on C6 with extension, uncomplicated appearing anterior metallic fusion at L3-4, and mild C5-6 degenerative changes. (AR 408). X-rays of the lumbar spine found no abnormal vertebral body motion and mild degenerative changes, greatest at L3-4 and L5-S1. (AR 410). An x-ray of the pelvis showed normal alignment and osteopenia. (AR 411).

         On August 16, 2013 Jenkin saw Dr. Gaitan and reported left side pain beginning above the beltline, radiating into the left glute and thigh. (AR 386). Pain aggravated with standing and walking and alleviated with sitting or walking while bent at the hips and leaning on a shopping cart. Jenkin reported trying chiropractics and injections in the past with little relief. The impression was spinal stenosis at L3/4. Dr. Gaitan recommended surgery based on her symptoms and MRI/CT/x-ray findings showing degenerative disc disease, bulging disc, foraminal stenosis, and facet degen/hypertrophy at L3/4. (AR 384- 85). He explained that she would first undergo a selective nerve root block, and if positive, a left L3/4 laminotomy/foraminotomy and decompression. (AR 386). Jenkin received the nerve root block that day and reported 80% improvement. (AR 399-401).

         On August 19, 2013 Jenkin had surgery: a bilateral lumbar laminotomy and foraminotomy with decompression of the nerve roots, L3/4, and lumbar destruction by thermal ablation of the paravertebral facet joint nerves, right L3/4, bilateral L4/5, and bilateral L5/S1. (AR 363).

         At an August 21, 2013 post-op assessment, Jenkin reported her radicular pain and numbness/tingling were totally resolved, and weakness and axial pain partially resolved. (AR 381). The doctor demonstrated stretching exercises and emphasized the importance of PT.

         On September 3, 2013 Jenkin saw Dr. Moore and reported good results from her lumbar disc herniation surgery with no more pain in her left leg. (AR 331). The assessment was lumbar disc herniation and lumbar disc disease responding to treatment. (AR 332).

         On November 8, 2013 Jenkin called the Laser Spine Institute and reported no improvement from her surgery. (AR 431). Prior to surgery she had primarily left LBP relieved with lying on her left side; now she has bilateral LBP radiating to the left buttocks and thigh, and can't get comfortable in any position.

         On November 22, 2013 Jenkin saw Dr. Morales and reported low back pain, buttock pain, difficulty walking, and numbness/tingling, with pain 6-8 when resting and 9-10 when active. (AR 373). Her pain was constant and she had it for 5 years, pain increased with standing and walking, and pain reduced with sitting. Findings on exam include spinal tenderness at L3/4, L4/5, L5/S1, and SIJ; spinal flexion, hyperextension, and rotation painful and limited; and positive SLR, Hoffman's test, and Patrick's test on the left. (AR 375). X-rays of the lumbar spine showed stable retrolisthesis of L4 on L5 with no evidence of abnormal vertebral body motion, and degenerative changes greatest at L3-4 and L5-S1. (AR 418). X-rays of the pelvis showed no discrete abnormality, osteopenia, lumbar spine degenerative changes, and mild bilateral hip joint osteoarthritic changes. (AR 419). A MRI of the lumbar spine showed: “Interval postoperative changes of bilateral L3 laminectomies with decreased mild canal stenosis at this level. Stable left paracentral disc bulge results in mild mass effect upon the exiting left L4 nerve root the left lateral recess. [and] Stable neuroforaminal stenoses, greatest where there is moderate left-sided neural foraminal stenosis at L3-4.” (AR 424).

         On November 25, 2013 Jenkin had a cervical MRI consult and reported neck pain, shoulder pain, headache, and wearing a neck brace to sleep due to neck pain. (AR 366). Her average daily pain was 7-10/10 and she had it for 8 years; pain worse with any activity; pain reduced with ice and neck/back support. (AR 367). The assessment was spinal stenosis in cervical region, displacement of cervical intervertebral disc without myelopathy, cervical spondylosis without myelopathy, and degeneration of cervical intervertebral disc. (AR 367). On the same date Jenkin also had a lumbar MRI discussion and reported the most intense sharp pain she had prior to surgery was gone, but the rest of her pain remained; she had about 10% relief. (AR 369). She reported lower back pain radiating to the gluteal area and pressure and numbness in the left foot. (AR 371). Her pain is aggravated with everything and sometimes alleviated with changing positions or lying flat on her stomach. (AR 371). On exam strength and sensation in the lower extremities were normal, positive SLR on the left, and lower back pain with facet loading. The doctor reviewed Jenkin's MRI and x-ray results, noted she continued to have similar symptoms that were present preoperatively, and recommended an epidural steroid injection to help with postoperative inflammation and swelling. (AR 372). Jenkin received the injection that day and reported 20% improvement. (AR 395-97).

         On December 11, 2013 Jenkin called Laser Spine Institute and reported no relief from the injection, even initially. (AR 436). The doctor recommended another injection and Jenkin said she would call back to schedule. (AR 437-38).

         On December 29, 2014 Jenkin saw Dr. Gallo and reported that her back was getting worse and that she cried almost every night because of pain. (AR 458). She had not gone to pain management since the Laser Spine Institute because she couldn't afford it. Medication does help her RLS. Dr. Gallo ordered MRIs due to Jenkin's worsening neck and LBP. (AR 460).

         On February 12, 2015 Jenkin saw Dr. Gallo and reported stomach pain and dizzy spells; she went online and thought she had pancreatic cancer. (AR 461). Dr. Gallo noted he referred her to a GI doctor the previous July and she did not go, but now she was willing. He also noted that she “went on and on about concerns” and “doesn't want to do things I tell her to do” and that Jenkin “says she can't afford to do a lot of things anyway.” (AR 463).

         On March 26, 2015 Jenkin saw Dr. Gallo and reported her RLS medication worked for her but she still always had neck and back pain. (AR 464). She takes Gabapentin for the burning sensation in her legs and buttocks and it helps significantly. She also reported bad headaches behind her right eye, she thinks related to her neck pain. Dr. Gallo noted that a MRI of the lumbar spine on January 2, 2015 showed unchanged left foraminal protrusion at L3/4 and bilateral laminectomy L3/4 with decreased scar tissue. (AR 465). He opined that the headaches were separate from Jenkin's neck pain and could be migraines, but she did ...

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