United States District Court, D. Arizona
Kelly A. Alcaide, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.
ORDER
Honorable John J. Tuchi United States District Judge.
At
issue is the final decision of the Commissioner of Social
Security, denying a request from Plaintiff Kelly A. Alcaide,
on behalf of Margaret Mary Smith, for Disability Insurance
Benefits (Doc. 9 at 758-760). Plaintiff filed a Complaint
(Doc. 1) on May 3, 2018, asking this Court to review the
denial of Ms. Smith's benefits. The Court has reviewed
the briefs (Docs. 12, 16, 17) as well as the Administrative
Record (Doc. 9) and now finds that the Administrative Law
Judge (ALJ) committed legal error and based her decision on
less than substantial evidence. Furthermore, the Court finds
that the three factors for the credit-as-true test are met.
Accordingly, the Court reverses the ALJ's decision and
remands the case to the Social Security Administration for a
calculation of benefits.
I.
BACKGROUND
Margaret
Mary Smith originally applied for Title II Disability
Insurance Benefits (“DIB”) and Title XVI
Supplemental Security Disability Income (“DI”) on
October 29, 2007 (the “original claims”),
alleging disability beginning November 2, 2006. (R. at 115-
127.) After Ms. Smith's application was denied initially
and on reconsideration, she requested a hearing, which was
held on January 10, 2010. (R. at 19-39.) On April 28, 2010,
an ALJ issued a decision denying Ms. Smith's original
claims. (R. at 44-58.) On April 27, 2011, the Appeals Council
upheld the ALJ's decision. (R. at 1-3.) On June 24, 2011,
Ms. Smith filed an appeal to the federal district court. (R.
at 819-827.)
While
her first claim was pending, Ms. Smith filed a second
application for DIB and DI (the “subsequent
claims”). (R. at 1097-1108.) On December 18, 2013, an
ALJ issued a favorable decision on the subsequent claims and
established a disability onset date of April 29, 2010-the day
after Ms. Smith's original claims were denied by the
first ALJ. (R. at 907-912.)
On
August 15, 2012, this Court reversed the first ALJ's
denial of the original claims and remanded the case for a new
administrative hearing to resolve “conflicting medical
opinions regarding Plaintiff's ability to do work-related
activities[.]” (R. at 870.) Plaintiff appealed the
decision to the Ninth Circuit, asking for a remand for
payment of benefits. (R. at 765.) The Ninth Circuit affirmed
this Court's decision to remand for a new administrative
hearing. (R. at 765.)
The
Appeals Council affirmed the ALJ's approval of the
subsequent claims and directed an ALJ on remand to consider
disability for a closed period between November 2, 2006 and
April 28, 2010. (R. at 903-905.) Ms. Smith passed away on May
23, 2016. (R. at 1019.) Kelly A. Alcaide continued the appeal
on her behalf. (R. at 1019.) On July 6, 2017, an ALJ issued a
decision denying disability benefits for the closed period
between November 2, 2006 and April 28, 2010. (R. at 765-779.)
On March 7, 2018, the Appeals Council denied Ms.
Alcaide's request for review. (R. at 758-760.) The
present appeal followed.
A.
Medical Evidence
Ms.
Smith had multiple medical conditions. The Court will only
address those that the parties discuss in their
pleadings.[1]
1.
Treating Physicians a. Dr. Jeffrey Levine
Dr.
Jeffrey Levine treated Ms. Smith for her orthopedic
conditions for several years. On November 6, 2006, Dr. Levine
diagnosed Ms. Smith with cubital tunnel syndrome of the left
elbow and a left frozen shoulder. (R. at 328.) Dr. Levine
operated on her left elbow on December 14, 2006. (R. at
351-352, 358.) In January 2007, Ms. Smith reported that she
had tripped and injured her left shoulder. (R. at 360.) Dr.
Levine's January treatment notes stated that Ms. Smith
was “doing extremely well, ” had “regained
nearly full motion of the left shoulder, ” and had a
“[f]ull range of motion” in her left elbow. (R.
at 363.) But in February, Dr. Levine diagnosed Ms. Smith with
a “high grade” tear in her left shoulder and
noted that it was “very symptomatic.” (R. at
367.) Dr. Levine first operated on Ms. Smith's left
shoulder on March 20, 2007. (R. at 369-370.) During the
procedure, he diagnosed and repaired several issues. (R.
369-370.) In May 2007, Dr. Levine noted that Ms. Smith was
“doing reasonably well” but was “quite
stiff” and had “minimal motion.” (R. at
374.) In June and July, Dr. Levine reported that Ms. Smith
was doing “very well.” (R. at 377.) But by
August, Dr. Levine opined that Ms. Smith was “not doing
well” due to pain in her left shoulder and left elbow.
(R. at 375.)
Dr.
Levine performed a second operation on Ms. Smith's left
shoulder on December 4, 2007. (R. at 388.) Again, he found
several issues in the joint and made repairs. (R. at 388.) At
Ms. Smith's follow-up appointment, Dr. Levine stated that
her shoulder and wound looked “excellent.” (R. at
393.) In January 2008, he stated that her pain was
“quite minimal” and referred her to physical
therapy (but did not prescribe pain medications due to her
allergies to them.) (R. at 399.) In February, Dr. Levine
noted that Ms. Smith had “minimal, if any, pain”
in her left shoulder but reported symptoms in her right
shoulder (R. at 403.) In March 2008, Dr. Levine found that
Ms. Smith had “regained excellent motion” of her
left shoulder. (R. at 567.) In April 2008, Dr. Levine noted
that an EMG and nerve conduction study substantiated an
“abnormality of the lower extremities” and
recommended a consultation with an orthopedic surgeon for Ms.
Smith's lower back problems. (R. at 566.) He stated that
Ms. Smith's left shoulder was “improving
markedly” with physical therapy. (R. at 566.)
In
November 2007, Ms. Smith reported to Dr. Levine that she had
hip and knee pain. (R. at 387.) Dr. Levine noted that she had
osteoarthritis in all joints. (R. at 387.) He found only mild
tearing in an ultrasound of her knee. (R. at 393.) On May 20,
2008, Dr. Levine saw Ms. Smith for lower back pain, leg pain,
and substantial right hip and left knee pain. (R. at
564-565.) Dr. Levine recommended consultation with a
neurosurgeon regarding her lower back and procedures for her
right hip and left knee. (R. at 565.)
Dr.
Levine assessed Ms. Smith's ability to do work-related
activities on April 14, 2008 and found that she could: stand
and/or walk for less than 2 hours in an 8-hour workday; sit
for 2 hours in an 8-hour workday; and lift or carry less than
10 pounds. (R. at 553-55.) Dr. Levine opined that Ms.
Smith's pain was moderately severe and could be
reasonably expected to result from objective medical
findings. (R. at 556.) Furthermore, Dr. Levine stated that
Ms. Smith would not be able to sustain work on a regular and
continuing basis. (R. at 560.)
b.
Dr. Tutankhamen Pappoe
Dr.
Tutankhamen Pappoe, a spinal care specialist, treated Ms.
Smith from November 2007 through February 2008. (R. at
307-322.) When Ms. Smith first saw Dr. Pappoe on November 5,
2007, she reported pain in her neck, shoulders, lower back,
and legs. (R. at 307.) Dr. Pappoe diagnosed her with cervical
facet syndrome, lumbar facet syndrome, and lumbar
radiculopathy, and ordered an MRI of her spine. (R. at 307.)
Dr. Pappoe's December 11 treatment notes show three
additional diagnoses-a herniated disc, cervical spondylosis,
and lumbar spondylosis-and an order for steroid injections,
which Ms. Smith received on January 16, 2008. (R. at
312-314.) At Ms. Smith's follow-up appointment on January
28, she reported a pain level of 7 out of 10, and Dr. Pappoe
scheduled another round of steroid injections, which occurred
on January 31. (R. at ...