United States District Court, D. Arizona
J. Markovich, United States Magistrate Judge.
Ollie Marie Phinizy 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 four issues on
appeal: 1) does substantial evidence support the
Administrative Law Judge's (“ALJ”) finding
that one of Plaintiff's past jobs was performed at the
sedentary level; 2) did the ALJ provide clear and convincing
reasons for rejecting the opinions of treating physician Dr.
Major about Plaintiff's abilities to handle and finger;
3) did the ALJ give clear and convincing reasons for
rejecting Dr. Major's opinions that Plaintiff could stand
3 hours total and walk 3 hours total per workday; and 4) did
the ALJ give clear and convincing reasons for rejecting Dr.
Major's opinions that Plaintiff could not perform
sustained full-time work. (Doc. 14).
the Court are Plaintiff's Opening Brief, Defendant's
Response, and Plaintiff's Reply. (Docs. 14, 15, &
16). 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 further
filed an application for social security disability benefits
on February 12, 2015. (Administrative Record
(“AR”) 94). Plaintiff alleged disability
beginning on February 1, 2011 based on exercise induced
asthma, chronic obstructive bronchitis, allergic rhinitis,
COPD with emphysema, osteoarthritis of spine, knees, and
hands, lumbosacral neuritis, osteoporosis, lung densities on
x-ray, and pain in back, knees, and hands. (AR
Plaintiff's application was denied upon initial review
(AR 93) and on reconsideration (AR 106). A hearing was held
on June 19, 2017 (AR 56), after which ALJ Yasmin Elias found,
at Step Four, that Plaintiff was not disabled because she
could perform her past relevant work as generally performed.
(AR 24). On June 20, 2018 the Appeals Council denied
Plaintiff's request to review the ALJ's decision. (AR
date last insured (“DLI”) for DIB purposes is
December 31, 2017. (AR 14). Thus, to be eligible for
benefits, Plaintiff must prove that she was disabled during
the time period of her amended AOD of October 12, 2013 and
her DLI of December 31, 2017.
was born on August 3, 1957, making her 56 years old at the
amended AOD of her disability. (AR 94). She completed two
years of college and is a licensed practical nurse. (AR 222).
In the past 15 years she has worked as a transitional care
coordinator, public relations director, senior provider
contractor, claim auditor, and in sales at a home
décor store. (AR 232).
primary care physician is Dr. James Major.
24, 2013 Plaintiff was managing her lumbar neuritis without
needing to use Tramadol since adding glucosamine, and had no
recent exacerbations of radiculitis. (AR 412).
January 7, 2015 they discussed Plaintiff's chronic pain;
her husband said it was much more severe than she was willing
to treat because she did not like to take medication. (AR
364). Plaintiff did not have a lot of time for self-care due
to caring for her husband, who was slowly improving after
cancer. Plaintiff had progressive pain and limitation of
activities with her bilateral thumbs, limiting her hobby of
painting. (AR 366). Dr. Major noted she had become fairly
severely disabled and could no longer perform her job because
of chronic pain, and that counseling might be worthwhile
regarding her resistance to medications.
April 2, 2015 Plaintiff had researched osteoporosis drugs but
did not want to take any due to side effects; she then
decided she wanted to get authorization for Forteo. (AR 359).
Her pulmonary consult noted she was stable for 1 year, but
she still had episodes where she was so out of breath, she
felt like she was going to pass out. Her lumbar radiculopathy
and discogenic low back pain were stable and she generally
used one Tramadol a day, rarely two.
August 4, 2015 Plaintiff was seen after a tree fell on her
back; x-rays showed a fracture at ¶ 4. (AR 354). Prior
to this she was doing well with her chronic pain, using one
or two Tramadol most days. Plaintiff had increased activity
except for avoiding lifting, horseback riding, or similar
activity that might cause further injury. Dr. Major also
noted they attempted to get insurance authorization for two
osteoporosis medications that were refused. On exam Plaintiff
had normal range of motion and strength and no tenderness in
the T4 area. (AR 355).
February 16, 2017 her active problems were asthma with COPD,
benign hypertension, chronic knee pain, depression with
anxiety, generalized osteoarthritis of multiple sites,
hyperlipidemia, myofascial pain, osteopenia, and pulmonary
emphysema. (AR 42-43). Her medications were ProAir HFA,
Alprazolam, Lisinopril, Dulera, Tramadol, Bupropion,
Methocarbamol, and Montelukast sodium. (AR 42). Plaintiff
spent a lot of time living in the White Mountains, which made
access for medical evaluation intermittent. (AR 43).
March 20, 2017 Plaintiff complained of chronic pain in both
knees, usually only lasts a few seconds then resolves, and
limits the degree of exercise at times but not enough that
Plaintiff would consider x-rays, PT evaluation, or sports
orthopedic referral. (AR 470). No medication or further
treatment was indicated. (AR 471). Plaintiff's cough had
improved and she felt she was doing well overall.
19, 2017 Dr. Major completed a Medical Work Tolerance
Recommendations form. (AR 473). He opined that Plaintiff
could do part-time sedentary work, up to 6 hours a day; could
stand for 60 minutes at a time, 3 hours total; could sit for
3 hours at a time, 6 hours total; walk for 90 minutes at a
time, 3 hours total; would need to change positions
frequently from sitting to standing or walking; could not use
her feet for frequent movements because of exacerbation of
back pain; could climb 6 flights of stairs but not ladders;
and would be expected to miss 4 or more days of work per
month due to disability and appointments. (AR 473). Dr. Major
further opined that Plaintiff could never kneel; occasionally
bend, crouch, squat, and work with her arms extended in front
of her; and frequently sit in a clerical position and reach
above shoulder. (AR 474). She should avoid power gripping,
pushing, and pulling, and pinching with the thumb and index
finger; could occasionally do fine movements like typing and
small assembly; and occasionally to frequently feel and touch
where sensation is required. She should avoid environmental
hazards such as temperature extremes, fumes, smoke,
unprotected heights, and moving machinery. Dr. Major opined
that Plaintiff could work 6 hours per day, 4 days per week
with these restrictions, but only for limited function due to
lower back pain and degenerative disc disease, emphysema,
arthritis in her hands, and knee problems. He indicated her
limitations would last at least one year but were likely
15, 2017 Dr. Major wrote a letter addendum. (AR 479). He
The patient has chronic discogenic low back pain with
radiculitis, which has been disabling since 2013.
Furthermore, she suffered a thoracic spine compression
fracture in August 2015 which has compromised her ability to
function or to receive significant relief from the use of
medications. As I noted 1/07/2015, tramadol was really not
sufficient to control pain and allow ADLs beyond caregiving
for her husband.
Her COPD/emphysema is further complicated by chronic
pulmonary emphysema and chronic interstitial disease
(scarring plus pulmonary nodules); the patient also has a
component of exercise-induced bronchospasm which is not
prevented by preexercise use of albuterol; ability to
exercise was limited to at most one flight of stairs.
NOTE: The patient continues to have episodes where she
becomes progressively out of breath where she feels that
“I'm trying so hard to breathe that I feel like
I'm going to pass out.” These may to some extent
reflect hyperventilation associated with stress, but stress
management also is difficult. . . .
Her limitation due to bilateral severe thumb MCP destructive
arthritis, limits activities even at a low threshold because
of pain and weakness from “overuse”. This has
progressed further since comments made in January 2015.
Stress and chronic depression, along with chronic pain, had
made it difficult for the patient to focus and complete
tasks; despite medication, this has not improved
significantly to perform a job/employment that would require
close attention or focus on job duties. This focus would be
further interfered with due to the patient's chronic pain
and necessity to get up and move around, limitation of stay
in one place or sitting/walking for an extended period.
The patient also has very severe osteoporosis which increases
her risk for significant fractures . . .
She has continued to have chronic pain, requires opiate
management, has limited ability to tolerate most activities
as described above, and has limitation in cognition resulting
from her medications and from chronic depression and stress.
was treated by Dr. Jacob Chacko at the Catalina Chest Clinic.
On February 3, 2012 Plaintiff had a 20-year history of
emphysema and shortness of breath, progressively getting
worse, occasional wheezing, environmental allergies, and
shortness of breath with moderate activity. (AR 436).
Plaintiff did not think she could climb a flight of stairs
but had no problems with ADL. The assessment was asthmatic
bronchitis and the plan was to continue current medications
and add Singulair. (AR 438). On April 3, 2012 her symptoms
were stable. (AR 440).
February 24, 2015 Dr. Chacko noted he had not seen Plaintiff
in 2 ½ years because she was caring for her husband
with cancer. (AR 432). Plaintiff had worsening asthma over
the past 6 months, mainly exercise-induced, with more
wheezing and shortness of breath. (AR 432). On April 3, 2015
she had a follow-up and was doing better; the assessment was
asthma. (AR 427-430). On August 5, ...