Fitzgerald v. Commissioner of Social Security Administration

          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 ...