United States District Court, D. Arizona
ORDER
LESLIE
A. BOWMAN UNITED STATES MAGISTRATE JUDGE.
The
plaintiff filed this action for review of the final decision
of the Commissioner for Social Security pursuant to 42 U.S.C.
§ 405(g). (Doc. 1, p. 2)
The
Magistrate Judge presides over this case pursuant to 28
U.S.C. § 636(c) having received the written consent of
both parties. See Fed.R.Civ.P. 73; (Doc. 27)
The ALJ
in this case failed to give specific and legitimate reasons
for discounting the opinion of the treating physician. The
case is remanded for further proceedings.
PROCEDURAL
HISTORY
In May
of 2015, Fitzgerald filed applications for disability
insurance benefits and for supplemental security income
pursuant to Title II and Title XVI of the Social Security Act
respectively. (Tr. 18) He alleged disability beginning on
June 13, 2014, due to “carpal tunnel both wrist[s],
upper body problems, nerve damage, COPD [chronic obstructive
pulmonary disease], diabetes.” (Tr. 18, 200)
His
applications were denied initially and upon reconsideration.
(Tr. 119-122, 123-126); (Tr. 131-134, 135-138). Fitzgerald
requested review and appeared with counsel at a hearing
before Administrative Law Judge (ALJ) Peter J. Baum on June
28, 2017. (Tr. 36) In his decision, dated September 14, 2017,
the ALJ found Fitzgerald was not disabled because there are
jobs in the national economy that he can perform considering
his age, education, work experience, and residual functional
capacity. (Tr. 18-28) Fitzgerald requested review, but on
August 23, 2018, the Appeals Council denied review making the
decision of the ALJ the final decision of the Commissioner.
(Tr. 2-5) Fitzgerald subsequently filed this action appealing
that final decision. (Doc. 1)
Claimant's
Work History and Medical History
Fitzgerald
was born in October of 1955. (Tr. 195) He was 61 years old
when ALJ issued his decision in September of 2017. (Tr. 48)
Fitzgerald completed his GED in 1985. (Tr. 201) He was
discharged from his last job in June of 2014. (Tr. 200)
Apparently, he failed a drug test when he accidentally took a
dose of his son's methadone. (Tr. 497) He successfully
challenged his termination and received unemployment
benefits. Id. He worked in the past as a cashier,
deli clerk, produce associate, and stocker. (Tr. 201)
At the
hearing, Fitzgerald testified that he cannot work because he
can no longer perform the required “lifting, bending
and [] kneeling” (Tr. 39) He has pain in his neck,
arms, shoulder and hips. (Tr. 40) Fitzgerald stated he could
lift 15 pounds consistently, stand for ten minutes, and walk
one block. (Tr. 40-41)
He
spends a normal day watching television and sleeping. (Tr.
42) He can do some cooking and cleaning provided he is
allowed to sit and rest. (Tr. 42)
Mental
Impairment
In
August of 2015, Fitzgerald was examined by Michael P.
Christiansen, Ph.D., for the disability determination
services. (Tr. 496) Christiansen's diagnostic impression
was posttraumatic stress disorder and “adjustment
disorder with disturbance of mood and conduct.” (Tr.
500) He opined that Fitzgerald was “moderately
limited” in his ability to complete a normal work
schedule without interruptions from his psychological
symptoms. (Tr. 501)
In
August of 2015, Eugene Campbell, Ph.D., reviewed the medical
record for the disability determination service and offered
an opinion of Fitzgerald's mental impairment. (Tr. 64)
Campbell diagnosed Fitzgerald with affective disorder. (Tr.
64) He then evaluated Fitzgerald's “B”
listing criteria, which gauge the severity of his
limitations. See 20 C.F.R. §§
404.1520a(c)(3), 416.920a(c)(3). Campbell found Fitzgerald
has “mild” difficulties in maintaining social
functioning; “moderate” difficulties in
maintaining concentration, persistence, or pace; and no
evidence of decompensation. (Tr. 64) Campbell further opined
that the medical evidence did not establish the presence of
the “C” criteria, which are an alternative gauge
of the extent of his mental impairment. (Tr. 64) Campbell
concluded that Fitzgerald's mental impairment is
non-severe. (Tr. 64)
In
December of 2015, Alan Goldberg, Psy. D., reviewed the
medical record for the disability determination service and
offered an opinion of Fitzgerald's mental impairment.
(Tr. 96, 101) Goldberg diagnosed Fitzgerald with affective
disorder. (Tr. 95) He then evaluated Fitzgerald's
“B” listing criteria. See 20 C.F.R.
§§ 404.1520a(c)(3), 416.920a(c)(3). Goldberg found
Fitzgerald has “mild” difficulties in maintaining
social functioning; “mild” difficulties in
maintaining concentration, persistence, or pace; and no
evidence of decompensation. (Tr. 95) Goldberg further opined
that the medical evidence did not establish the presence of
the “C” criteria. (Tr. 95) Goldberg concluded
that Fitzgerald's mental impairment is non-severe. (Tr.
64)
Also in
December of 2015, Gabriella Ochoa, M.D., Fitzgerald's
treating physician, provided a medical opinion of
Fitzgerald's mental impairments. (Tr. 532-534) She
diagnosed depression. (Tr. 532) She opined that
Fitzgerald's ability to interact appropriately with the
general public, carry out detailed instructions, and deal
with stress of semiskilled and skilled work was
“fair.” (Tr. 532-533) Ochoa opined that
Fitzgerald would be absent from work more than twice a month
due to psychological symptoms. (Tr. 533)
In May
of 2017, Gabriella Ochoa, M.D., provided a second opinion of
Fitzgerald's mental impairments. (Tr. 884-886); (Tr.
605-607) She opined that Fitzgerald is “under
tremendous physical and psychological stress” and is
“very depressed” and “agitated
easily.” (Tr. 886) He has “no useful
ability” in maintaining attention for a two-hour
segment, maintaining regular attendance, working in
coordination with others, completing a normal workday and
workweek without interruption from psychological based
symptoms, performing at a consistent pace, accepting
instructions or responding appropriately to supervisors,
getting along with co-workers, responding appropriately to
changes in routine, dealing with normal work stress,
understanding and remembering detailed instructions, or
dealing with the stress of semiskilled and skilled work. (Tr.
885-886) Ochoa opined that Fitzgerald would be absent from
work more than twice a month due to psychological symptoms.
(Tr. 886)
Physical
...