United States District Court, D. Arizona
J. Marcovich United States Magistrate Judge
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).
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
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).
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).
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.
January 29, 2016 Plaintiff had cryotherapy for her wart. (AR
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).
April 29, 2016 Plaintiff had cryotherapy and reported her
wart was responding well to treatment. (AR 363).
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).
August 8, 2016 Plaintiff received cryotherapy for her wart
and reported it was painful with every step. (AR 426).
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).
October 3, 2016 Plaintiff had cryotherapy. (AR 438).
October 26, 2916 Plaintiff had cryotherapy and reported her
wart shrank dramatically and she had no pain. (AR 440).
December 7, 2016 Plaintiff had cryotherapy and her wart was
significantly improved. (AR 447).
January 31, 2017 Plaintiff reported significant improvement
of her wart and very mild discomfort after walking long
distances. (AR 448).
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).
April 10, 2017 Plaintiff had cryotherapy and reported
significant improvement with taping and soaking. (AR 457,
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).
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).
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).
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).
notes document the following:
February 22, 2016 Plaintiff was anxious with congruent mood;
she requested help with housing and did not feel she needed
counseling. (AR 562).
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.
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).
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).
25, 2016 Plaintiff reported she was doing well and taking her
medications daily. (AR 476).
1, 2016 Plaintiff reported she was doing good, taking her
medications, and going to Banner for counseling. (AR 477).
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).
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).
September 1, 2016 Plaintiff's mood was stable and
depression manageable, anxiety ongoing, and reduced
irritability. (AR 543).
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).
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).
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
3, 2017 Plaintiff's mood was stable and medications were
helpful for managing symptoms. (AR 554).
3, 2017 Plaintiff stated she was doing good and only drinking
a 6-pack a day because it was hot out. (AR 485).
13, 2017 Plaintiff reported she was happy, loved her husband
and dogs, and was managing her symptoms and taking her
medications. (AR 489).
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).
October 2, 2017 Plaintiff had an increase in situational
anger, depression, and anxiety due to stressors in her life,