Gonzales v. Commissioner of Social Security Administration

          ORDER

          ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Margaret Rose Gonzales 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”). Plaintiff raises three issues on appeal: 1) the Administrative Law Judge (“ALJ”) erred by rejecting a treating physician opinion and instead assigning substantial weight to the state agency physician opinions; 2) the ALJ failed to provide clear and convincing reasons to discount Plaintiff's subjective symptom testimony; and 3) the ALJ erred by rejecting the opinion of Plaintiff's treating psychiatric counselor and instead giving significant weight to the state agency psychological examiner. (Doc. 16).

         Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 24, 25, & 28). 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 remanded for an award of benefits.

         I. Procedural History

         Plaintiff filed an application for Social Security Disability Insurance and Supplemental Security Income on May 14, 2014. (Administrative Record (“AR”) 68). Plaintiff alleged disability beginning on July 11, 2013 based on fibromyalgia, depression, anxiety, and sleep disorder. (AR 68). Plaintiff's application was denied upon initial review (AR 67) and on reconsideration (AR 87). A hearing was held on August 1, 2016 (AR 31), after which ALJ Charles Davis found, at Step Four, that Plaintiff was not disabled because she could perform her PRW as a supervisor, assistant manager, cashier, and retail clerk. (AR 24). On October 18, 2017 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 1).

         Plaintiff's date last insured (“DLI”) for DIB purposes is September 30, 2018. (AR 68). Thus, to be eligible for benefits, Plaintiff must prove that she was disabled during the time period of her alleged onset date (“AOD”) of July 11, 2013 and her DLI of September 30, 2018.

         II. Factual History^[1]

         Plaintiff was born on August 9, 1972, making her 40 years old at the AOD of her disability. (AR 99). She has a GED and past relevant work as a cashier, stocker, assistant manager, and customer service supervisor. (AR 247, 308).

         A. Treating Physicians

         On July 10, 2013 Plaintiff injured her back stacking boxes at work. (AR 367). She had some improvement^[2] but then on September 19, 2013 she reported worsening pain, no improvement from medication, and felt worse after PT.^[3] (AR 346).

         A MRI of the lumbar spine on September 12, 2013 showed small focal central posterior disc protrusion at ¶ 4-5 and bilateral facet hypertrophy at ¶ 3-4. L4-5, and L5-S1. (AR 371). A MRI of the cervical spine on December 10, 2013 showed mild diffuse disc bulge at ¶ 5-6 and mild straightening of the cervical lordosis without listhesis. (AR 487). A MRI of the lumbar spine that same date showed left foraminal disc protrusion and annular fissure at ¶ 2-3 and L3-4, degenerative disc disease at ¶ 4-5, and multilevel mild facet arthropathy. (AR 489).

         Plaintiff was seen at Tucson Orthopedic Institute from January to May 2014. (AR 475-516). At her initial consultation on January 21, 2014 Plaintiff reported neck and back pain, worse with activity and after working more than four hours. (AR 589). At her new patient visit on February 14, 2014 Plaintiff stated her whole back hurt, her hands and arms go numb all the way down to her feet, and her hands and feet tingle. (AR 511). On exam Plaintiff was uncomfortable, had normal mood and affect, and positive SLR on the right. (AR 513). Dr. Brailsford-Gorman suspected injury due to overuse and recommended PT and Voltaren gel. (AR 515). She further opined that Plaintiff's condition would not be permanently disabling but that it would take about a month to get treatments and evaluations done, and that she would recommend work restrictions. On May 2, 2014 Plaintiff reported neck pain radiating to the head, back pain and spasms, trouble sleeping, and fatigue. (AR 475). On exam Plaintiff was uncomfortable, had difficulty going from sitting to standing, was tearful, and had multiple trigger points. (AR 477). Dr. Brailsford-Gorman noted Plaintiff's presentation was more typical for chronic pain syndrome like fibromyalgia and recommended Plaintiff see her PCP, Dr. Baker. (AR 478).

         Dr. Brailsford-Gorman also completed several work status reports. (AR 518-29). On the last report on May 2, 2014 she opined that Plaintiff was unable to work for the month of May but could then return to work if released by her PCP, but would need intermittent days off. (AR 519-20). Dr. Brailsford-Gorman also noted Plaintiff's condition would cause flare-ups and she would be unable to function, causing her to be absent from work one day a week. (AR 522).

         Plaintiff was seen at Ideal Physical Therapy in March and April 2014 and had some improvement but also reported continued pain. (AR 448-70). At her last appointment on April 8, 2014 she reported only being able to work four hours of her eight hour shift due to pain. (AR 448). Her current pain was 8/10, 5/10 best, and 10/10 worst. The therapist noted that “despite aggressive attempts to deactivate the pain spasm cycle in this patient with many different techniques, therapy has not been able to impact this patient's pain.” (AR 449). The therapist recommended Plaintiff stop PT and that she be sent for a pain management consult.

         Plaintiff saw her PCP Dr. Baker on May 29, 2014 and reported no relief from Vicodin and Gabapentin; her pain is all over and she can't get anything done. (AR 608). Plaintiff was positive for dysphoric mood and decreased concentration, myalgias and arthralgias, and negative for back pain, nervousness, and anxiety. (AR 609). On exam she was oriented x3, distressed, had labile affect, tangential speech, and agitated. (AR 609- 610). Dr. Baker assessed fibromyalgia and prescribed Cymbalta. (AR 610). On July 10, 2014 Plaintiff reported medication initially helped then stopped working, and PT did not help her pain. (AR 605). On exam she had pain and spasm in the shoulders and back, and her mood, affect, and behavior were normal. (AR 606-607). On September 10, 2014 Plaintiff reported her pain medications were not working. (AR 602). On exam she had diffuse muscle tenderness, normal behavior, judgment, and thought content, and blunt affect. (AR 604).

         On July 10, 2014 Dr. Baker completed a Medical Assessment of Ability to do Work Related Activities. (AR 530). She opined Plaintiff could sit for 20 minutes at a time and less than one hour total in a work day, could stand/walk for three hours, should change from standing to walking every 20 minutes, could occasionally lift up to five pounds, frequently carry five pounds, never crawl, and occasionally stoop, squat, climb, and reach. (AR 530-31). Dr. Baker further opined Plaintiff had a moderately severe limitation in her activities due to pain and fatigue. (AR 532).

         Plaintiff received mental health services at La Frontera from February 2014 to July 2016. At an assessment on February 21, 2014 Plaintiff reported anxiety, stress, nervousness, frustration, and poor sleep and appetite. (AR 776). On July 14, 2014 she reported increased sadness, crying, anger, and isolation, and that her Cymbalta stopped working. (AR 536). Cymbalta was increased and Plaintiff was referred for 1:1 therapy. (AR 537-38). At an annual assessment on July 6, 2015 Plaintiff reported experiencing symptoms of anxiety, depression, and stress seven days a week. (AR 977). Progress notes reflect increased sadness, crying, anger, anxiety, stress, and isolating (AR 673, 678, 688, 694, 822, 904, 910, 1013); sleep was poor (AR 673, 678, 682); oriented x3, appropriate affect, and good insight, judgment, and concentration (AR 537, 679, 680, 684, 689, 695, 699, 705, 985, 989); and Plaintiff was doing okay or well, improving, and making progress (AR 683, 699, 783, 789, 791, 793, 795, 797, 809, 892, 894, 916, 922, 926, 944, 966, 968, 974, 988).

         On August 28, 2014 Plaintiff's counselor, Janet San Nicholas, completed a RFC assessment and opined that Plaintiff had moderate limitations in her ability to interact appropriately with the public and supervisors and marked limitations in her ability to understand, remember, and carry out short, simple instructions, understand and remember detailed instructions, make simple work-related decisions, interact with co-workers, respond to pressures in a work setting, and respond to changes in a work setting. (AR 541). San Nicholas also opined that Plaintiff would be off-task more than 30%, absent from work more than 5 days a month, unable to complete a work day more than 5 days per month, and would perform at less than 50% efficiency compared to an average worker. (AR 542). San Nicholas noted that Plaintiff was diagnosed with major depressive disorder and generalized anxiety disorder and that the symptoms made it impossible for her to sustain work, that she had maybe one good day a week where she could minimally function, and that her physical pain exacerbated her mental health symptoms.

         Plaintiff was seen at Arizona Endocrine and Rheumatology Associates for her thyroid. At various follow-ups from 2013-2016 she was observed to be alert and oriented with normal mood and affect and to have normal muscle strength and normal gait. (AR 553, 554, 558, 560, 582, 598, 617, 618, 620, 622, 624, 626, 628, 632, 757, 760, 762, 764, 766, 768).

         On September 17, 2015 Plaintiff saw Dr. Baker and reported she went to the ER because she was shaking uncontrollably from stress. (AR 734). On exam she was oriented x3, had anxious mood, affect labile and inappropriate, slurred speech, agitated, and inappropriate judgment. (AR 736). Dr. Baker opined that she was malingering, purposely stuttering and shaking when she walked but then when she was distracted with a question the stuttering went away. (AR 737). She recommended Plaintiff follow-up with her psychiatrist because Plaintiff was taking two of the same medication and it could be causing symptom exacerbation. (AR 738). La Frontera later documented that Plaintiff was overstimulated with the addition of Bupropion to her medications. (AR 1016).

         At a physical on October 20, 2015 Plaintiff had a normal musculoskeletal exam and was oriented x3 with blunt affect, delayed speech, paranoid thought content, impaired cognition and memory, and nervous/anxious. (AR 741-42).

         Plaintiff was seen at Desert Pain and Rehabilitation Specialists from May 2015 to June 2016. At her initial evaluation on May 12, 2105 Plaintiff reported severe overall body pain, focused in the right shoulder and low back. (AR 1070). She tried multiple medications and trigger point injections with no relief. (AR 1070-71). Plaintiff reported her current pain was 10/10, 8/10 at best, and 9/10 average. (AR 1071). PA-C Seidel opined that her pain scores were exaggerated, noting “I do not doubt that the patient feels that she's having the maximum amount of pain. However she [has] not been to an emergency room. Physical examination does permit palpation of muscle spasms and free motion of her joint complexes without vocalization, guarding or retraction.” (AR 1071). PA-C Seidel further noted Plaintiff held tightly to her husband's arm coming in but walked freely out of the exam room, and that he did not believe Plaintiff was aware of her behavior or deliberately malingering, but that the “exaggeration may indicate a possible psychological overlay.” On exam Plaintiff had 18/18 tender points in the precise locations of the fibromyalgia indicators. (AR 1072). The assessment was fibromyalgia pain, low back pain, right shoulder pain, and muscle spasm, with a recommendation for Gabapentin and a muscle relaxant, aqua therapy, ^[4] and trigger point injections.

         On June 9, 2015 Plaintiff saw Dr. Farr at Desert Pain and reported average pain 10/10. (AR 1065). He stated that was an exaggeration and it was more 6-7/10. She was not getting good relief from her medications and on exam she had trigger points between her scapulas and painful shoulders to deep palpation. On June 30, 2015 Plaintiff had injections with immediate relief. (AR 1059). On July 7, 2015 Plaintiff reported reasonably good pain control and increased activity, and that the injections helped her upper back but not her lower back. (AR 1062). On August 4, 2015 Plaintiff reported her average pain was 6-7/10 and that she was not getting good relief with her medications; Dr. Farr increased the dosage. (AR 1056-57). On September 1, 2015 Plaintiff stated her pain control was reasonably good and that she had occasional flare-ups that seemed to be related to the weather. (AR 1053). Plaintiff had injections on September 30, 2015 and December 30, 2015 with an immediate decrease in pain. (AR 1043, 1049). On January 4, 2016 Plaintiff stated current pain was 4/10, good days were 4 and bad days 7/10; she had good relief with medication. (AR 1041). On March 1, 2016 Plaintiff reported her current pain control was ok and that the shots were starting to wear off. (AR 1038). On March 29, 2016 Plaintiff had injections and had immediate relief. (AR 1035-36). On March 30, 2016 Plaintiff reported increased stress was adding to her symptoms; pain control and activity were stable. (AR 1034). On April 27, 2016 Plaintiff reported pain was worse and injections did not work. (AR 1031). On May 22, 2016 Plaintiff reported back pain worse and increased stress; the last set of injections in her back were not effective; pain control and activity were fair. (AR 1030). On June 22, 2016 Plaintiff reported pain all over, average 6/10, and that she did well with the last set of injections in her neck; pain control and activity were fair. (AR 1029). Plaintiff had another set of injections on June 24, 2016 and got immediate relief. (AR 1026).

         B. Examining Physicians

         On February 4, 2015 Plaintiff saw Dr. Marks for a psychological examination. She reported that her moods were not as extreme with medication, but that anxiety and worry were worse when her pain was more intense; three days per week her muscles lock up and she has debilitating pain and her depression rises markedly. (AR 728-29). On a good day she can drive, go to the grocery store, wash dishes, cook, and shower and dress herself. (AR 729). On bad days she is in bed all day and sometimes it takes a week for the symptoms to subside. (AR 730). Dr. Marks observed Plaintiff was extremely slow in standing up and depended on her significant other for support, her ...