United States District Court, D. Arizona
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE.
Kriestan Lainie Gaitan (“Claimant”) appeals the
Commissioner of Social Security Administration's decision
to adopt the Administrative Law Judge's (ALJ's)
ruling denying her application for Disability Insurance
Benefits under Title II of the Social Security Act. (Doc.
Claimant argues that ALJ Michael Tucevich committed
materially harmful error by: (1) improperly rejecting
Claimant's testimony regarding her pain, other symptoms,
and level of limitation; and (2) rejecting her treating
physician's assessments and instead accepting the
opinions of a non-examining physician. (Doc. 15 at 1-2,
12-24) Claimant filed her opening brief on June 10, 2019
(Doc. 15), Defendant filed his responsive brief on July 17,
2019 (Doc. 18), and Claimant then filed her reply on August
8, 2019 (Doc. 21).
Court has jurisdiction pursuant to 42 U.S.C. § 405(g)
and with the parties' consent to Magistrate Judge
jurisdiction pursuant to 28 U.S.C. § 636(c). For the
reasons set forth below, the Court will order the final
decision of the Commissioner to be vacated and will remand
this matter to the Commissioner for further proceedings
consistent with this Order.
Application and Social Security Administration
was 39 when she filed her application for disability
insurance benefits in May 2015, alleging a disability onset
date of January 1, 2013. (Doc. 14-6 at 2-3) She later
successfully moved to amend her alleged onset date to August
5, 2015. (Doc. 14-3 at 22) The state agency initially
determined Claimant was not disabled in July 2015 (Doc. 14-4
at 2-12), and again on reconsideration in December 2015
(Id. at 14-30). After conducting a hearing on
Claimant's applications on November 3, 2017 (Doc. 14-3 at
39-60), the ALJ filed a notice of an unfavorable decision on
January 9, 2018. (Id. at 19-32) Claimant then filed
an appeal with the Appeals Council, which was denied by
notice dated October 10, 2018. (Id. at 2-4) At that
point, the Commissioner's decision became final.
Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d
1157, 1162 (9th Cir. 2012).
Relevant medical treatment and imaging
Abrazo Health Care
February 2015, Claimant was seen for a urinary tract
infection. (Doc. 14-8 at 88) She was noted to have a full
range of motion in her musculoskeletal system and a
“nontender” back. (Id. at 92)
Valley Arthritis Care
was treated at this practice between March 2015 and September
2017. (Doc. 14-8 at 149-174; Doc. 14-9 at 170-178; Doc. 14-10
at 112-134) In March 2015, pain on palpitation was noted
bilaterally at the back of Claimant's neck, above the
collarbone, at the top of her shoulders, at the back of her
shoulders, at her buttocks, at the back of her upper thighs,
and at the inner side of her knees. (Doc. 14-8 at 163-164)
Claimant's symptoms persisted through appointments in May
and November 2015, and January, March, and May 2016, along
with her complaints of “shoulder symptoms, upper back
pain (between the shoulder blades), lower back pain, muscle
aches, and diffuse bone pain, muscle pain, and joint
pain.” (Doc. 14-8 at 149, 152, 165; Doc. 14-9 at
173-175, 176-178; Doc. 14-10 at 123-131)
in May 2016, Claimant reported proximal interphalangeal joint
pain upon motion in some of the fingers on both hands. (Doc.
14-10 at 125) In July 2017, Claimant's examination notes
identified her bilateral pain in the back of her head, the
back of her shoulders, the back of her neck and inside her
shoulder blades, her buttocks, her hips, her inner knees, and
her lower neck as trigger points. (Id. at 120)
Claimant received trigger point injections in September 2017.
(Id. at 116) She complained of morning stiffness.
(Id. at 112, 123, 126, 129) Throughout her treatment
history by this practice, Claimant was noted to have
displayed normal motor strength and normal gait and stance.
(Doc. 14-8 at 149-174; Doc. 14-9 at 170-178; Doc. 14-10 at
Medical Service Primary Care
2014, Claimant was seen for pain in her arms and legs, and
severe back pain with urinary tract infection symptoms. (Doc.
14-9 at 22-25) She reported pain “just about
‘everywhere' all the time” with no pattern to
the pain. (Id. at 22) In September 2014, Claimant
was seen for back pain that radiated down both legs but with
no muscle weakness. (Id. at 17) In November 2014,
Claimant was undergoing physical therapy for her lower back
pain and reported being unable to perform the physical duties
of a certified nurse assistant (“CNA”).
(Id. at 14) Her exam notes indicated limb pain but
no lower back pain, and numbness and tingling in her legs,
but no leg weakness. (Id. at 16) In January 2015,
Claimant was noted to suffer from moderately severe
arthralgia in both shoulders, both knees, and in her lower
back. (Id. at 9) She complained of shoulder,
mid-back, and lower back pain. (Id. at 11)
August 2015, Claimant reported symptoms that placed her at
risk for moderate depression. (Id. at 112) She
indicated she had joint pain but no fatigue. (Id. at
115) In February 2016, Claimant was noted to suffer
fibromyalgia moderate in severity, joint pain and stiffness,
and fatigue. (Doc. 14-10 at 43, 46) In July 2016,
Claimant's pain symptoms were reported to be worse when
standing or sitting for over 20-30 minutes, and that she had
to change positions. (Id. at 25) She reported joint
pain and stiffness, but no fatigue. (Id. at 28) Her
examination notes indicated she displayed full strength.
(Id.) In April 2017, Claimant reported no
“back or neck spinal or muscle tenderness, [and] no
muscle spasticity.” (Id. at 21) No. depression
or anxiety were noted. (Id. at 20) In June 2017,
again Claimant reported no fatigue, back or neck tenderness.
(Id. at 13-14) On August 1, 2017, Claimant displayed
fair symptom control of her neck and back pain with
treatment, but that her symptoms from fibromyalgia had become
severe. (Id. at 2) She was observed for the first
time to demonstrate changes in gait. (Id. at 6)
However, on August 8, 2017, Claimant exhibited normal gait
and station, and normal “inspection/palpitation of
joints, bones, and muscles.” (Id. at 69)
Valley Pain Consultants
September 2015, Claimant presented with fibromyalgia
symptoms. (Doc. 14-9 at 147-149) She complained of constant
pain in her neck, back, arms, feet and knees. (Id.
at 147) She reported her symptoms worsened with stress and
sleep deprivation and that she was then being treated with
non-opioid analgesics. (Id.) She complained of an
average pain level of 7 out of 10. Claimant demonstrated full
muscle strength and tone and normal reflexes but was tender
to palpitation over the “classically described
fibromyalgia tender points.” (Id. at 148) On
examination, Claimant exhibited full range of motion in her
cervical and lumbosacral spine and no pain or tenderness to
palpitation in her bilateral shoulders or hips.
(Id.) She received sacroiliac joint injections in
October and November 2015. (Id. at 146, 155) In
December 2015, her review of symptoms indicated anxiety,
changes in sleep pattern, and depression. (Id. at
November 2016, Claimant reported 80% pain improvement after a
medial branch block procedure to her lumbar spine and
requested radiofrequency ablation to her bilateral lumbar
spine. (Id. at 194) Her review of symptoms indicated
no anxiety, changes in sleep pattern, or depression.
(Id. at 193)
four-view x-ray imaging was conducted on Claimant's
lumbar spine on August 15, 2014. The imaging indicated mild
degenerative disc disease at ¶ 12-L1, with no evidence
of spondylosis and no significant facet arthropathy. (Doc.
14-9 at 111)
Medical source statements
Steve Sumpter, D.O. and Iain Black, P.A.-C
August 5, 2015, Dr. Sumpter completed a “Medical
Assessment of Ability to Do Work-Related Physical
Activities” form regarding Claimant's limitations.
(Doc. 14-8 at 175-176) Dr. Sumpter treated Claimant at
Integrated Medical Services. (Doc. 14-9 at 136) He listed her
diagnoses impacting her ability to function as severe back
pain, sciatica, lumbago, neuropathy, fibromyalgia, and
diabetes. (Doc. 14-8 at 175) Dr. Sumpter opined that in an
8-hour work day, Claimant could sit for less than 2 hours,
lift and carry less than 10 pounds, and stand and/or walk for
less than 2 hours. (Id.) He estimated that Claimant
would require alternating between sitting, standing, or
walking every 21 to 45 minutes and that she would require
rest between position changes for 10 to 15 minutes.
(Id.) Dr. Sumpter declared that Claimant could use
her hands and feet, bend, reach, or stoop only 0% to 20% of a
work day. (Id.) He further stated that Claimant
suffered from severe pain, fatigue, and dizziness and that
she would miss six or more days of work each month due to her
medical conditions. (Id. at 176)
Sumpter filled out the same form again on August 1, 2017,
expressing the same medical opinions he identified in the
August 2015 assessment. (Doc. 14-9 at 184-185)
October 9, 2017, P.A.-C Iain Black wrote an opinion
concluding that Claimant was “disabled for all
competitive work requirements.” (Doc. 14-10 at 135) He
described Claimant's limitations as including lifting and
carrying weights, sitting for prolonged periods, walking,
reaching, bending and kneeling. (Id.) Black was not
able to quantify the limits to standing, sitting, or lifting.
(Id.) He stated that Claimant had been
“consistent and believable” in her reports of the
degree of pain, fatigue, and other limitations to her
activities of daily living caused by her symptoms.
Examining consultant evaluation