United States District Court, D. Arizona
DAVILA UNITED STATES MAGISTRATE JUDGE.
Carol Anne Tepper filed this action pursuant to 42 U.S.C.
§ 405(g) seeking judicial review of a final decision by
the Commissioner of Social Security. (Doc. 1.) Before the
Court are Tepper's opening brief, the Commissioner's
response brief, and Tepper's reply brief. (Docs. 14, 16,
17.) For the following reasons, this matter will be remanded
back to the agency for reevaluation of Tepper's
applied for disability benefits on March 1, 2015, claiming a
disability onset date of May 9, 2012. AR 10,
86. Her application was denied on September
23, 2015, and again on reconsideration on February 8, 2016.
AR 10, 129, 136. On March 10, 2016, Tepper
requested a hearing before an ALJ. AR 140.
At the hearing, held on July 24, 2017, Tepper testified about
how her chronic fatigue and other conditions affect her daily
life and ability to work, and a Vocational Expert
(“VE”) testified about which jobs a hypothetical
person with Tepper's characteristics can perform.
AR 31-61. On October 27, 2017, the ALJ
issued a written decision finding Tepper not disabled and
denying benefits. AR 7- 18. On August 31,
2018, the Appeals Council denied review. AR
1-3. Tepper now seeks judicial review of the denial
of disability benefits. (Doc. 1.)
Tepper's Personal and Medical History
who is 52 years old, reported having five different jobs
between May 1991 and May 2012. AR 85, 283.
Relevant here, Tepper worked as a laboratory assistant from
May 2010 to May 2012. AR 283. In that
position, she worked three to eight hours per week, earning a
wage of $7.85 per hour. AR 259, 285. Tepper
also worked as an assistant butterfly curator from September
2011 to May 2012. AR 283. In that position,
she worked 20 hours per week, earning a wage of $10.00 per
hour. AR 259, 284. Tepper was also a program
coordinator from January 2007 to July 2009. AR
reported developing a “severe fatigue problem” in
1998, a problem which eventually caused her to resign from
her then-current position as an interpretive park ranger.
AR 244, 642. She was diagnosed with chronic
fatigue syndrome (“CFS”) in November 2015.
AR 331. Tepper also has multiple sclerosis,
which was diagnosed in mid-2014. AR 758,
April 22, 2016, Dr. Raed Sukerji, Tepper's primary care
physician, completed a “Medical Work Tolerance
Recommendations” form. AR 43, 1603-04.
In the form, Dr. Sukerji indicated that Tepper is incapable
of even part-time work in the “sedentary”
exertion range. AR 1603. Dr. Sukerji further
indicated that Tepper can stand for five minutes at one time
and for one total hour in a workday, and that Tepper can walk
for 45 minutes at one time and for three total hours in a
workday. AR 1603. He also indicated that
Tepper would miss an average of four to eight workdays per
month as a result of disability and normal illness.
AR 1603. At the end of the form, Dr. Sukerji
indicated that the “medical note/clinic note [has]
further details” about his opinions. AR
treatment notes, also dated April 22, 2016, Dr. Sukerji
opined that Tepper's “major issue . . . in terms of
employment is that for 3-4 days a week on average she wakes
up with a sense of excessive fatigue, and at those days she
is unable to work.” AR 1774. He opined
further that “even though she can in principal have a
part time light job, her frequent unpredictable days where
her fatigue takes over and she is unable to be functional and
therefore would not be able to show up to work creates a
barrier to her employment.” AR
was examined by Dr. Scott Krasner on September 2, 2015, in
connection with her application for disability benefits.
AR 1429. Dr. Krasner's evaluation report
notes that Tepper has a full range of motion in her
shoulders, elbows, and wrists, but that she loses balance
when trying to walk heel to toe. AR 1430.
Dr. Krasner found that Tepper's balance problems
“will have some mild effects on her functional
capabilities, especially as it pertains to prolonged
ambulation and climbing as well as working on heights,
” and thus “recommend[ed]” that Tepper not
stand or walk for more than 30 minutes at a time, or for more
than four hours in an eight-hour period. AR
is a “Medical Source Statement” attached to Dr.
Krasner's evaluation report. AR 1432-34.
The statement contains questions that prompt for
“yes/no” and “check-the-box” answers.
See AR 1432-34. Notably, Dr.
Krasner indicated “yes” to the question whether
Tepper has “any limitations in STANDING AND/OR
WALKING.” AR 1432. In response to the
follow-up question, “What is the claimant's ability
to STAND AND/OR WALK, ” Dr. Krasner checked the box
indicating that Tepper can stand and/or walk “[a]t
least 2 hours but less than 6 hours in an 8 hour day (specify
# of hours).” AR 1432. Dr. Krasner did
not “specify [the] # of hours” on the Medical
Source Statement as prompted. See AR
1432. The other two check-box answers included
“[l]ess than 2 hours in an 8 hour day (specify how much
less, e.g. 1 hr.)” and “6-8 hours in an 8 hour
day.” AR 1432.
agency physicians, Dr. Luther Woodcock and Dr. John Fahlberg,
conducted paper-only reviews of Tepper's medical file and
rendered opinions on Tepper's residual functional
capacity (“RFC”). AR 96-97,
115-17. At the initial determination level, Dr.
Woodcock opined, among other things, that Tepper can stand
and/or walk for a total of four hours in an eight-hour
workday. AR 96. At the reconsideration
level, Dr. Fahlberg opined, among other things, that Tepper
can stand and/or walk for approximately six hours in an
eight-hour workday. AR 115.
Rothchild, Tepper's mother, completed two adult-function
reports and wrote a letter about Tepper's conditions.
AR 300-07, 320-27, 338-39. Doug Tepper,
Tepper's brother, wrote a letter about Tepper's
conditions. AR 340-41. Linda and Doug
offered similar descriptions of Tepper as a formerly active,
healthy person who is now severely limited due to her extreme
and unpredictable fatigue. AR 338-41.
hearing before the ALJ, Tepper testified generally about her
past work, her then-present attempts to work, and the
symptoms of her chronic fatigue and multiple sclerosis.
See AR 34-38, 40-43, 54-56.
Regarding her fatigue, Tepper testified that her symptoms are
unpredictable, that she sleeps approximately 12 to 13 hours
per day, that she takes multiple naps during the day, and
that after physical exertion she can stay in bed for up to
two days. AR 36-37, 42-43, 49-50. Regarding
her multiple sclerosis, Tepper testified that she has
“a lot of balance problems, ” that she has fallen
and hurt herself multiple times, and that she has difficulty
using her dominant left hand for fine movements. AR
37, 45-46, 50-51. Tepper also testified that she
tries to walk 20 minutes at a time approximately one to three
times per week. AR 44. The ALJ inquired into
a 12-day birdwatching trip that Tepper took in mid-2016, and
Tepper explained that she was able to accommodate her fatigue
by sleeping in late, going to her room early if she became
tired, and sleeping in her rented car if necessary.
testified that Tepper's butterfly curator job was a
composite job consisting of elements of numerous occupations,
and that Tepper performed that composite work at the light
exertion level. AR 57. The VE testified that
Tepper's laboratory assistant job is generally performed
at the light exertion level, but that Tepper performed it at
the sedentary level. AR 57-58. The VE
further testified that the remainder of Tepper's past
jobs were actually and generally performed at the light
exertion level, except for Tepper's program coordinator
job, which she actually performed at the medium exertion
level. AR 58.
asked the VE about a hypothetical claimant with Tepper's
age and education who is limited to frequent climbing of
ramps and stairs, occasional climbing of ladders, ropes, or
scaffolds, occasional balancing, and frequent stooping,
kneeling, crouching, and crawling, but who could otherwise
perform the full range of light work. AR 58.
The VE testified that this hypothetical claimant could
perform all of Tepper's past work except for program
coordinator, which was actually performed at the medium
exertion level. AR 58. When asked how much
work the hypothetical claimant could miss and remain
competitive in the workforce, the VE stated that the
hypothetical claimant could miss two days per month without a
medical excuse and three days per month with a medical
excuse. AR 59. The VE confirmed that her
testimony was consistent with the Dictionary of Occupational
Titles and Selected Characteristics of Occupations.
followed the five-step sequential evaluation process for
determining whether an individual is disabled. AR
11-18. At step one, the ALJ found that Tepper was
not engaged in “substantial gainful activity.”
AR 13. At step two, the ALJ concluded that
Tepper has two “severe” impairments: multiple
sclerosis and CFS. AR 13. The ALJ also
concluded that Tepper's depression and anxiety are
“non-severe” impairments. AR 13.
At step three, the ALJ found that Tepper does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
steps three and four, the ALJ found that Tepper has the RFC
to perform light work with the following limitations: she can
occasionally climb ladders, ropes, and scaffolds, she can
occasionally balance, she can frequently climb ramps or
stairs, and she can frequently stoop, kneel, crouch or crawl.
AR 14. In determining Tepper's RFC, the
ALJ gave “substantial weight” to the opinions of
the non-examining state-agency physicians because they
“are highly qualified physicians who are also experts
in Social Security disability evaluation and their opinion
that the claimant can perform a wide range of light work
activity is consistent with the medical evidence . . .
.” AR 15. The ALJ gave “reduced
weight” to the opinion of Dr. Sukerji that Tepper is
precluded from all work, because the record shows Tepper is
capable of “perform[ing] a whole host of
activity.” AR 15. The ALJ gave
“partial weight” to the opinions of Dr. Krasner,
because Dr. Krasner “examined [Tepper] on a one-time
basis and had no treating relationship with” her.
AR 17. The ALJ gave “some
weight” to the statements of Tepper's family
members, because their observations of a decline in
Tepper's abilities do not necessarily mean that Tepper is
precluded from “performing all work activity.”
four, the ALJ determined that Tepper can perform all of her
past relevant work, both as generally performed in the
national economy and as she actually performed it, with the
exception of program coordinator, which she can perform only
as generally performed. AR ...