United States District Court, D. Arizona
J. Markovich United States Magistrate Judge.
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).
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.
filed an application for Social Security Disability Insurance
and Supplemental Security Income on September 13,
2013. (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).
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.
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).
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
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.
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).
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).
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.
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.
October 18, 2012 Jenkin was seen for constipation. (AR 359).
She denied painful joints, weakness, and headaches. (AR 360).
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).
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).
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).
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).
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.
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).
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
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.”
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.
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).
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).
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
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