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Tepper v. Commissioner of Social Security Administration

United States District Court, D. Arizona

September 16, 2019

Carol Anne Tepper, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          MARIA DAVILA UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 application.

         BACKGROUND

         I. Procedural History

         Tepper applied for disability benefits on March 1, 2015, claiming a disability onset date of May 9, 2012. AR 10, 86.[1] 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.)

         II. Factual Background

         A. Tepper's Personal and Medical History

         Tepper, 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 283.

         Tepper 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, 1564.

         B. Treating Physician

         On 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 1604.

         In the 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 1774-75.

         C. Examining Physician

         Tepper 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 1431.

         There 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.

         D. Non-examining Physicians

         Two 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.

         E. Lay-Witness Statements

         Linda 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.

         III. Hearing

         At the 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. AR 46.

         A VE 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.

         The ALJ 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. AR 59.

         IV.ALJ Decision

         The ALJ 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. AR 13-14.

         Between 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.” AR 17.

         At step 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 ...


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