United States District Court, D. Arizona
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 ...