United States District Court, D. Arizona
J. MARKOVICH UNITED STATES MAGISTRATE JUDGE
Rhonda Robie brought this action pursuant to 42 U.S.C. §
405(g) seeking judicial review of a final decision by the
Commissioner of Social Security (“Commissioner”).
Plaintiff raises four issues on appeal: 1) the Administrative
Law Judge (“ALJ”) applied the “light”
medical-vocational rules when the “sedentary”
rules more properly applied, which would have resulted in a
finding of disabled under Rule 201.10; 2) the ALJ failed to
account for the limiting effects of Plaintiff's right
hand impairment in the residual functional capacity
(“RFC”) assessment; 3) the ALJ failed to provide
clear and convincing reasons to discount Plaintiff's
subjective symptom testimony; and 4) the ALJ failed to give
reasons germane to the witness for discounting the opinion of
examining chiropractor Noel Shaw. (Doc. 16).
the Court are Plaintiff's Opening Brief, Defendant's
Response, and Plaintiff's Reply. (Docs. 16, 17, &
18). The United States Magistrate Judge has received the
written consent of both parties and presides over this case
pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal
Rules of Civil Procedure. For the reasons stated below, the
Court finds that this matter should be remanded for further
filed an application for social security disability benefits
on July 1, 2015. (Administrative Record (“AR”)
212). Plaintiff alleged disability beginning on
July 25, 2014 based on right ankle problems and back
problems. Id. Plaintiff's application was denied
upon initial review (AR 219) and on reconsideration (AR 243).
A hearing was held on August 28, 2017 (AR 168), after which
ALJ Peter Baum found, at Step Five, that Plaintiff was not
disabled because she could perform other work existing in
significant numbers in the national economy. (AR 136). On
September 27, 2018 the Appeals Council denied Plaintiff's
request to review the ALJ's decision. (AR 1).
date last insured (“DLI”) for DIB purposes is
December 31, 2019. (AR 230). Thus, to be eligible for
benefits, Plaintiff must prove that she was disabled during
the time period of her amended AOD of April 14, 2016 and her
DLI of December 31, 2019.
was born on April 15, 1966 making her 50 years old at the
amended AOD of her disability. (AR 205). She stopped
attending school in the 8th grade. (AR 382). In the past 15
years she has worked as a van driver, a house cleaner, and in
retail. (AR 416).
was seen in 2011 for back pain (AR 486, 488, 498, 501, 510),
right ankle pain (AR 520, 523, 524, 534, 539), and hand pain,
swelling, tingling, and numbness (AR 493, 521, 522, 535). She
continued to report right ankle pain and lower back pain in
2012. (AR 611).
Plaintiff reported continued pain in the right ankle; new
x-rays did not demonstrate any new abnormalities. (AR 554).
Plaintiff reported chronic right foot and ankle pain and
requested a referral to an orthopedist. (AR 579). X-rays on
October 27, 2015 showed post moderate degenerative joint
disease moderately severe in the ankle joint. (AR 618). On
November 10, 2015 Plaintiff reported worsening ankle pain,
grinding, and swelling, severity level 10, aggravated by
walking, standing, and climbing stairs. (AR 630). She was
referred to Dr. Steck for possible total ankle arthroplasty
and recommended to have a rheumatology consult. (AR 633).
of the lumbar spine on June 23, 2015 noted degenerative
changes with narrowing at the L4-5 and L5-S1 disc spaces. (AR
November 13, 2015 Plaintiff reported left hip and back pain
and was prescribed Flexeril and Tramadol. (AR 653, 657).
Plaintiff was seen for right shoulder pain and weakness,
duration 1 year, severity 9/10. (AR 564). She received an
injection on May 12, 2015 (AR 568) and reported 50%
improvement in pain after the injection but only for one week
and stated Aleve helped (AR 559). An MRI on August 25, 2015
showed severe distal and insertional supraspinatus tendinosis
with an 8 mm tear, mild anterior insertional infraspinatus
tendinosis with a probable tear, mild subacromial-subdeltoid
bursitis, and mild acromioclavicular joint osteoarthritis.
(AR 571). The assessment was partial tear of right rotator
cuff and Plaintiff received another injection on September
15, 2015. (AR 639). On November 24, 2015 she reported 20%
improvement for 2 months after the last injection and rated
her pain at 5/10. (AR 624). On exam right shoulder strength
was decreased and left shoulder strength normal; Plaintiff
received another injection and instructions to ice and do
home exercises. (AR 627-28).
was also seen for left shoulder pain. On July 7, 2015 she
reported pain in her left shoulder for 4 weeks. (AR 582).
X-rays of the left shoulder were normal and the impression
was rotator cuff syndrome. (AR 579, 581). An MRI of the left
shoulder on July 27, 2015 showed no rotator cuff tear,
moderate supraspinatus and infraspinatus insertional
tendinosis with interstitial fissuring, biceps tendon with
mild proximal tendinosis, mild to moderate acromioclavicular
joint osteoarthritis, and findings suggestive of mild
subacromial/subdeltoid bursitis. (AR 577-78).
January 4, 2016 Plaintiff was seen for a rheumatology consult
and reported joint pain for many years and pain in the
ankles, low back, neck, and shoulders. (AR 698). She was
using ibuprofen for pain which did not help much and did not
tolerate codeine or Tramadol in the past. The assessment was
primary generalized osteoarthritis and dorsalgia,
unspecified. (AR 700). The doctor noted “not much
evidence of active inflammatory arthritis in the
joints” and a “minimally positive rheumatoid
factor” and recommended x-rays and referral to a pain
specialist if imaging showed significant osteoarthritis.
X-rays of the cervical spine showed mild C5-C6 degenerative
disc disease and incidental longus colli calcific tendinosis.
(AR 704). X-rays of the right foot showed severe right ankle
joint osteoarthritis with disuse osteopenia and no evidence
of inflammatory arthritis. (AR 705). X-rays of hands showed
mild DIP joint osteoarthritis of the index and long fingers
bilaterally and no evidence of inflammatory arthritis. (AR
706). X-rays of the lumbosacral spine showed moderate lower
lumbar spine degenerative disc disease and normal sacroiliac
and hip joints. (AR 707).
October 12, 2016 Plaintiff reported right calf pain and
muscle cramps for 5 years. (AR 745). She was referred to her
orthopedist for follow-up and prescribed cyclobenzaprine for
muscle spasms. (AR 748).
Plaintiff was treated for low back pain at Southwest Sports
and Spine. On February 1, 2017 she reported low back pain for
many years, worsening over the past few months, pain
radiating to thighs and knees, worse on the left. Plaintiff
rated her pain 8- 9/10, constant and sharp, stated ibuprofen
and physical therapy did not help, and pain was worse with
standing, prolonged sitting, and extension-based activities.
The assessment was lumbago; spinal enthesopathy, lumbar
region; spondylosis without myelopathy or radiculopathy,
lumbar region; and radiculopathy, lumbar region. (AR 710).
Plaintiff was referred for an MRI and prescribed Norco. The
MRI showed L3-4 right lateral disc protrusion presses on the
right L4 nerve root, no stenosis; L4-5 degenerative disc
disease bulge with prominent epidural fat contributing to
mild central stenosis, neural foramina are patent; and L5-S1
central disc protrusion with a left paracentral component, no
stenosis. (AR 712-13). Plaintiff received an injection on
February 27, 2017. (AR 714-17). On March 14, 2017 she
reported 20-30% relief. (AR 720). Plaintiff received another
injection on April 6, 2017. (AR 721- 24).
saw Dr. Jerome Rothbaum on March 7, 2012 for a consultative
examination. (AR 546). She reported problems with her right
foot following a car accident in 2006 and a 7-year history of
back pain. (AR 546-47). Dr. Rothbaum's impression was
right ankle fracture 2006, Achilles tendinitis in the right
leg, and low back pain (appears to be primarily myofascial).
(AR 548). He opined that Plaintiff could lift/carry 20 pounds
occasionally and 10 pounds frequently due to her ankle and
low back pain; could stand and walk a total of 3-4 hours per
day, 1 hour at a time, with a 5 minute break due to her ankle
fracture and tendinitis; had no restrictions on sitting; and
had no limitations on reaching, handling, fingering, or
feeling. (AR 549-50).
saw chiropractor Noel Shaw on August 7, 2017 for an
evaluation. (AR 773). Her presenting symptoms were low back
pain, hip and leg pain, right ankle pain and weakness, neck
pain radiating into shoulders, restriction of movement of
cervical spine, shoulder pain radiating into arm and wrists,
numbness and tingling in right hand, right elbow and wrist
pain, mid back pain, fatigue, anxiety, and depression.
Plaintiff stated she felt worse after any activity, that she
could not do activities requiring torso flexion such as
dishes, vacuuming, or mopping, or extended sitting, walking,
standing, traveling, or bending. She reported minor temporary
relief from ibuprofen but her pain is always present. Shaw
completed a physical residual functional capacity assessment
and opined that Plaintiff had the following restrictions:
stand 2 hours or less, sit 15-30 minutes without needing to
change positions, walk less than 1 block without needing to
rest, lift and carry 10 pounds occasionally, never lift and
carry 20 pounds, occasionally reach, never perform fine
manipulation, grasp occasionally, never kneel, stoop, or
crouch, alternate sitting/standing every hour, and would be
unable to work more than 5 days/month due to physical
conditions. (AR 776).
State Agency Physicians
initial disability determination level, Dr. Martha Goodrich
opined that Plaintiff could occasionally lift 20 pounds,
frequently lift 10 pounds, stand/walk 6 hours in an 8-hour
workday, sit more than 6 hours, and do unlimited
pushing/pulling. (AR 217). She also limited Plaintiff to
occasional overhead reaching with no handling/fingering
restrictions. (AR 218-19).
reconsideration, Dr. Carol Hutchinson limited Plaintiff to
standing/walking 4 hours per day due to Plaintiff's
complaints, ankle exams, ...