Gaitan v. Commissioner of Social Security Administration

          ORDER

          HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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. 1)^[1] 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).

         This 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.

         I. BACKGROUND

         A. Application and Social Security Administration review

         Claimant 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 (9^th Cir. 2012).

         B. Relevant medical treatment and imaging

         1. Abrazo Health Care

         In 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)

         2. Valley Arthritis Care

         Claimant 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)

         Beginning 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 112-134)

         3.Integrated Medical Service Primary Care

         In June 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)

         In 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)

         4. Valley Pain Consultants

         In 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 181)

         In 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)

         5. Imaging

         A 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)

         C. Medical source statements

         1. Steve Sumpter, D.O. and Iain Black, P.A.-C

         On 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)

         Dr. 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)

         On 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. (Id.)

         D. Examining consultant evaluation

         1. Shaunna ...