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Fuhlman v. Commissioner of Social Security Administration

United States District Court, D. Arizona

February 7, 2019

Vicki Jo Fuhlman, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Eric J. Marcovich United States Magistrate Judge

         Plaintiff Vicki Jo Fuhlman 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 six issues on appeal: 1) the Administrative Law Judge (“ALJ”) failed to perform a proper analysis under SSR 13-2p to determine whether Plaintiff's substance abuse was material to the determination of disability; 2) the ALJ failed to analyze Plaintiff's medically determinable impairment of PTSD; (3) the ALJ failed to perform a proper analysis of the C criteria of the 12.00 Listings of Impairments; 4) the ALJ failed to account for limitations caused by Plaintiff's physical impairments; 5) the ALJ gave improper weight to Dr. Marks's consultative examiner opinion; and 6) the ALJ failed to provide clear and convincing reasons to discount Plaintiff's testimony regarding her social functioning. (Doc. 17).

         Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 17, 22, & 23). 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 the Commissioner's decision should be affirmed.

         I. Procedural History

         Plaintiff filed a Title XVI application for social security disability benefits on October 16, 2015. (Administrative Record (“AR”) 126). Plaintiff alleged disability beginning on October 1, 2015 based on hepatitis C, blindness in left eye, and shoulder and liver problems. (AR 50). Plaintiff's application was denied upon initial review (AR 59) and on reconsideration (AR 60). A hearing was held on November 8, 2017 (AR 27), after which ALJ Peter Baum found that Plaintiff was not disabled because she could perform work existing in the national economy. (AR 21). On January 30, 2018 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 1).

         II. Factual History[1]

         Plaintiff was born on June 27, 1965, making her 50 years old at the AOD of her disability. (AR 50). She has a tenth-grade education and last worked as a seasonal painter in 2002 when business slowed down. (AR 150-51).

         A. Treating Physicians

         Plaintiff was seen at Banner UMC on January 14, 2016 and reported low back ache for several months, growth on toe for several months to years, and requested mental health services. (AR 251). On exam Plaintiff had normal ROM, normal gait, and normal mood and affect, and a dilated pupil due to trauma. (AR 253). She was referred to ophthalmology for her eye, cryotherapy for her wart, and prescribed naproxen for pain. (AR 254).

         On January 29, 2016 Plaintiff had cryotherapy for her wart. (AR 255-57).

         On February 24, 2016 had cryotherapy again. (AR 293-95). She also had low back pain and reported ibuprofen had been effective in the past. (AR 293). On exam she had normal ROM and 800 mg ibuprofen was prescribed. (AR 295).

         On April 29, 2016 Plaintiff had cryotherapy and reported her wart was responding well to treatment. (AR 363).

         On July 15, 2016 Plaintiff was seen for a follow-up for her wart and reported back pain for two days. (AR 422). Findings on exam were normal and the assessment was apparent musculoskeletal strain. (AR 424).

         On August 8, 2016 Plaintiff received cryotherapy for her wart and reported it was painful with every step. (AR 426).

         On August 31, 2016 Plaintiff reported cryotherapy was effective, she was using duct tape as instructed, and the wart was significantly smaller and not causing her pain. (AR 430). The assessment was wart significantly improved and continue to use duct tape until completely resolved. (AR 433).

         On October 3, 2016 Plaintiff had cryotherapy. (AR 438).

         On October 26, 2916 Plaintiff had cryotherapy and reported her wart shrank dramatically and she had no pain. (AR 440).

         On December 7, 2016 Plaintiff had cryotherapy and her wart was significantly improved. (AR 447).

         On January 31, 2017 Plaintiff reported significant improvement of her wart and very mild discomfort after walking long distances. (AR 448).

         On March 9, 2017 Plaintiff had cryotherapy and reported she was very pleased with the degree of improvement of her wart and had no other concerns. (AR 452, 455).

         On April 10, 2017 Plaintiff had cryotherapy and reported significant improvement with taping and soaking. (AR 457, 459).

         At various appointments at Banner UMC, Plaintiff was documented to have a normal mood and affect (AR 233, 257, 295, 365, 424, 428, 432, 443, 447, 451, 455, 459) and was not nervous or anxious (AR 232).

         An October 2, 2017 RFC Assessment from Dr. Wang states that Plaintiff had a corneal transplant and has blurry vision in her left eye that would rarely interfere with her attention and concentration at work, and that she had no other limitations from a visual status. (AR 610-11).

         Plaintiff received mental health services at Pathways of Arizona. At her intake assessment on January 20, 2016 Plaintiff reported pain in her back, knee, and shoulder, numb fingers, problems sleeping, past mental health services at COPE, homelessness, history of rape and abusive relationships, and depression. (AR 344-46). On exam Plaintiff was cooperative, anxious, depressed, and restless, with adequate attention. (AR 349). She drinks a 12-pack of beer daily and uses marijuana to feel better. (AR 350).

         At a psychiatric evaluation on February 2, 2016 Plaintiff reported trauma including her father's death, emotionally and physically abusive relationships, and sexual assault. (AR 340). She also reported constant anxiety, exaggerated startle reflex and hypervigilance, flashbacks of trauma 1-2 times a week, and nightmares 3 times a week. She snaps and starts screaming and throwing things, has poor sleep, poor motivation, and drinks 12 beers a day to deal with her emotions. Plaintiff said her strengths were that she was a people person and loves animals. (AR 341). On exam she was alert and cooperative with labile affect. The diagnosis was PTSD, alcohol use, and cannabis use, and Plaintiff was prescribed Trazodone and Escitalopram. (AR 342).

         Progress notes document the following:

         On February 22, 2016 Plaintiff was anxious with congruent mood; she requested help with housing and did not feel she needed counseling. (AR 562).

         On March 1, 2016 Plaintiff was alert, cooperative, calm, and occasionally teary. (AR 337). She reported her medication was not working, anxiety 8/10, depression 10/10, and increased irritability. She cut down to 8-10 beers per day.

         On March 30, 2016 Plaintiff was alert, cooperative, calm, and did not have an anxious or depressed affect. (AR 333). She reported irritability, anxiety 7/10, depression 5/10, and did not want to try Trazadone because of sleeping in the wash. She continued to drink 8-12 beers and smoke marijuana daily. The provider documented that Plaintiff had a decrease in depression and nightmares and was having a partial response to Lexapro. (AR 334). Abilify was added to address depression, irritability, and impulsivity. (AR 334-35).

         On May 12, 2016 Plaintiff had a good mood and was relaxed. (AR 532). She reported anxiety 7/10, depression comes and goes, improved sleep, mood more stable, and ongoing anger and irritability. Plaintiff's mood was stabilizing and depression and anxiety manageable. (AR 533).

         On May 25, 2016 Plaintiff reported she was doing well and taking her medications daily. (AR 476).

         On June 1, 2016 Plaintiff reported she was doing good, taking her medications, and going to Banner for counseling. (AR 477).

         On June 23, 2016 Plaintiff reported her mood was good and she was cutting back on alcohol. (AR 536). She had an increase in symptoms after discontinuing her meds for a colonoscopy; after restarting meds a week ago her mood was stable and symptoms were at baseline, and she was managing her depression and anxiety well. (AR 536-37).

         On August 4, 2016 Plaintiff reported she was anxious and had an increase in nightmares. (AR 540). Overall her mood was stable and she was managing her depression. Trazadone was restarted to improve sleep and Naltrexone added to reduce alcohol consumption. (AR 541).

         On September 1, 2016 Plaintiff's mood was stable and depression manageable, anxiety ongoing, and reduced irritability. (AR 543).

         On November 9, 2016 Plaintiff reported her mood was great and that others had commented on her reduction in anger and anxiety and improved impulse control. (AR 547).

         On December 22, 2016 Plaintiff reported her medications work and she is fine when she takes them. (AR 482). She can see better out of her left eye now after having surgery. At an annual assessment that same date Plaintiff's mood was agitated, anxious, calm, depressed, and irritable, she was cooperative and restless, had an angry, restricted, and anxious affect, normal concentration, and insight and judgment were poor. (AR 486). With medication she experienced PTSD, anxiety, and depression 1-2 times out of 2 months, and without medication, daily. (AR 487). Improvement was documented as learning and using effective coping skills. (AR 488).

         On February 1, 2017 Plaintiff's mood was stable, anger and anxiety well-managed, and impulse control within normal limits. (AR 550). She was sleeping better and no longer needed Trazadone.

         On May 3, 2017 Plaintiff's mood was stable and medications were helpful for managing symptoms. (AR 554).

         On July 3, 2017 Plaintiff stated she was doing good and only drinking a 6-pack a day because it was hot out. (AR 485).

         On July 13, 2017 Plaintiff reported she was happy, loved her husband and dogs, and was managing her symptoms and taking her medications. (AR 489).

         On July 14, 2017 Plaintiff had recent stressors with the death of a friend and being forced out of the wash but was still taking her medications and her mood was stable. (AR 557).

         On October 2, 2017 Plaintiff had an increase in situational anger, depression, and anxiety due to stressors in her life, ...

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